Women’s bodies have always constituted the canvas on which the scripts of patriarchy had been violently inscribed, resulting in their historical exclusion from the sphere of production and subjugation in the domestic sphere. Feminists had been up in arms against the oppressive structures, employing multiple strategies to challenge the hierarchies that enforce the exclusion of women. However, neither is ‘women’ an essentialized category nor does it project a homogenized front. This has been asserted by the divergent positions taken by various strands of feminism on multiple issues, the core of which lies the contentious question on the role of biology, the nature and extent of differences between men and women and whether this merits differential treatment or not. Menstrual leave has been a prominent entry in the inventory of feminist debates for a long time but has come to the fore recently with increasing acceptance of the legalised provision for menstrual leave across the world. In this context, the essay attempts to analyse The Menstruation Benefits Bill, 2017[i], tabled on the Lok Sabha of India by M.P Shri Ninong Erring. The Bill deserves a revisit in the current scenario as the demands for menstrual leave is strengthening in India.
The blog consists of two parts.
The first part shall summarise the Bill and locate it within the international and Indian context. The second part shall be a substantive discussion of the provisions of the Bill, the hits and misses, and how to take the debate forward without compromising the emancipatory spirit of feminist politics. I argue that while the provision for menstrual leave is imperative to resist masculinized workplaces, the substantive equality promised will not translate to lived experiences of equity without a parallel emphasis on menstrual hygiene through sensitization and ensuring accessibility to facilitating infrastructure. It is also necessary for the provisions to incorporate the principles of intersectionality that look at menstruating bodies as both gendered and classed, and the role of spaces outside the legal field in its successful implementation.
1. The Menstruation Benefits Bill: Precedents and Key Provisions
The menstruation period is marked by pain and discomfort of varying scales commonly due to uterine contractions. Medically termed dysmenorrhea, its prevalence varies between 16% to 91% in studies across the world[i], with India centric studies placing the numbers between 50% to 87.2%[ii]. The menstrual cramps are often due to chronic conditions like PCOS and are accompanied by lower abdominal pain, vomiting, constipation and/or diarrhoea; and it has been medically advised that taking good rest, use of hot packs, avoiding physically strenuous activities can aid in pain relief along with medications. The idea of paid menstrual leave has a long history tracing to the earliest phases of women entering the sphere of production. Piecemeal provisions of menstrual leave were implemented in the Soviet Union as early as 1920s[iii] as the idea got popularised among the labour unions. Currently provisions of menstrual leave, with variations, have been incorporated in labor laws of Japan, Indonesia, Philippines, Taiwan, South Korea, Vietnam, Zambia, and Spain, along with private companies such as Nike, and Coexist. In the Indian context, it has been claimed that a school in Kerala provided menstrual leave as early as 1912[iv]. Bihar government announced the menstrual leave policy in 1992 and Kerala government declared menstrual and maternity leaves for students in universities. The measures taken by private companies like Culture Machine, Zwiggy, Zomato, and the like, have also contributed to the campaign for menstrual leave.
The campaign knocked on the doors of national legislation with the Menstruation Benefits Bill being tabled at the Lok Sabha in 2017. The key provisions of the Bill include the right to paid menstrual leave for four days[v] for women employees and employers in public and private establishments. Women students in or above Class 8th are also granted leave, and other provisions include 30 minutes of rest periods twice a day for not more than four days, creches, and paid overtime allowance for women who opt to work. Women have the right to self-perception of menstruation and any grievance related to the provisions shall be taken up by committees like the ICC. Denial of the above-mentioned rights and facilities is a punishable offence with imprisonment of one month and a fine which can extend to 50,000 Rs. An analysis of these key provisions constitutes the central theme of the following session.
2. Road to Substantive Equality?
The law has always had a keen interest in the body of the woman. Historically, the conjunction of the legal and medical discourses has showered attention on the reproducing body of women that undergoes menstruation and pregnancy; however, the universal, objective (and masculine) medico-legal jurisprudence failed to attune to the experiences of women. Meanwhile, legal absence has been construed to be at the roots of sex discrimination[i], and hence, there has been a regular appeal to the transformatory potential of law. The Menstrual Benefits Bill, 2017 is an example of the love-hate relationship that feminists share with regard to the law. It also demonstrates how capitalism and patriarchy do not exhibit a monolithic unity, but have divergences of their own. The Bill is looked at from three vantage points- the sameness/difference approach, the rights framework, and intersectionality principle- with the purpose of understanding how the provisions of the Bill can be emancipatory for women, and if not, how can that be addressed.
Sameness/Difference approach is the central theme that characterises the debates on the provision of menstrual leave. Advocates of sameness emphasise that women should be treated just like men, while difference approach asks for taking into account the unique historical subjugation and biological role of women in procreation; a natural difference that turned to social disadvantage, which necessitates differential treatment to ensure equity. The latter has been the spirit behind several progressive legislations like maternity leave and provision for period leave. The sameness approach adopted by opponents of menstrual leave like Barkha Dutt[ii] fail to see how workplace is designed to appease the male body. As MacKinnon[iii] states, the problem is not of inequality but how “the dominant group (here, men) becomes the measure of everything, including the measure of the disadvantaged group’s entitlement to equal right”. The provisions in Menstrual Benefits Bill aims at transforming the workplace and not accosting women to conform to masculine standards and hence is emancipatory.
The Rights framework: The Bill names menstrual leave as a legal right. The constitutionality of the right can be ensured under Article 15(3) which permits special provisions for women and children, and Article 21 which mandates the right to life. Article 23 of UDHR and Article 7 of ICESCR, which guarantees the right to safe and healthy working conditions also substantiates the right. The right to self-perception of menstruation[i] prevents pathologizing of menstruation which might have acted as a disincentive, especially in the Indian context. With no masculine equivalent, these rights are special rights. Carol Smart states that the ‘rhetoric of rights has become exhausted, and even detrimental[ii]” especially in the case of special rights.
They oversimplify power relations and state the issue as ‘resolved’ merely by legal acknowledgement, does not address conflicting rights, and can be appropriated by the more powerful to the detrimental of the rest. Right to menstrual leave can only withstand these critiques through incorporation of various measures to combat the taboos and stigmatization surrounding menstruation[i]. The right to menstrual leave must be culturally sensitive in its reformatory stance too. The Bill counters the association of menstruation with sickness by creating an alternative to sick leaves, but more has to be done to ensure that women are not hesitant to utilise menstrual leaves[ii]. Awareness must be inculcated on the discomforts associated with menstruation[iii]. Access to menstrual hygiene must also be ensured.
Intersectionality perspective: A prominent critique of the Bill that has to be incorporated comes from the perspective of intersectionality. Menstruating bodies are not merely gendered, but also sexed, and classed. The Bill makes no mention of the menstruating transmen bodies, which is conspicuous in its absence. An interesting analysis of women workers as classed bodies has been provided by Jyothsna Belliappa[iv], who highlighted the different experiences of menstrual period amongst the white collar and blue-collar woman workers. While the former set of women belonging to urban settings has access to clean toilets, expensive menstrual care products and relatively spacious means of transportation, it is women employed in blue collar jobs and unorganised sector, whose menstrual hygiene takes a hit due to physically strenuous jobs, crowded public transports (which often has to be switched in between), and lack of clean toilets and sanitary products. The law must be able to accommodate the intersectional disadvantages instead of taking women as a homogenous unit.
To conclude, The Menstruation Benefits Bill is necessary to ensure equity in the working place for women. However, it must be accompanied by a sleuth of measures within and outside the legal field to ensure that women are truly benefitted. Afterall, bloody matters rarely have an easy fix, do they?
Also read: Incarcerated and Invisibilized : The Female Prisoners of India
References:
- Belliappa, Jyothsna Latha. Menstrual Leave Debate: Opportunity to Address Inclusivity in Indian Organizations. Indian Journal of Industrial Relations, Vol. 53, No. 4 (April 2018), pp. 604-617
- Hong Ju, Mark Jones & Gita Mishra. The prevalence and risk factors of dysmenorrhea. Epidemiol Rev. 2014; 36:104-13. doi: 10.1093/epirev/mxt009. 2013 Nov 26. PMID: 24284871.
http://164.100.47.4/billstexts/lsbilltexts/asintroduced/2651LS%20As%20In.pdf
- MacKinnon, Catherine. Butterfly Politics. Cambridge: Harvard University Press. 2017
- Omidvar, S., Bakouei, F., Amiri, F. N., & Begum, K. Primary Dysmenorrhea and Menstrual Symptoms in Indian women Students: Prevalence, Impact and Management. Global Journal of Health Science, 8(8). (2016): 135-144. https://doi.org/10.5539/gjhs.v8n8p135\
- Smart, Carol. Feminism and the Power of Law (Sociology of Law and Crime). NewYork: Routledge. 1989.
- THE MENSTRUATION BENEFITS BILL, 2017. Bill no. 249 of Lok Sabha 2017. Accessed on 25 Feb 2023, from
About the author ..
Manjima A is currently pursuing Masters in Political Science at the University of Hyderabad. She is also an Executive member at the Global Research Forum on Diaspora and Transnationalism (GRFDT), and Editor at The Migration News, an online news platform affiliated to GRFDT, that works on migration issues. Her key research interests include technology and politics, representation of political violence, and postcolonialism in IR.
