Prefatory note
This article provides an in-depth exploration of the evolution of feminism, underscoring its pivotal role in championing women's rights, promoting gender equality, and fostering empowerment.[1] It meticulously examines the transformative impact of both the first and second waves of feminism on societal norms and legal frameworks, laying the foundation for sustained endeavors in realizing gender equality.

The constitutional perspective on menstrual leave in India takes center stage, dissecting the "Golden Triangle" formed by Articles 14, 21, and 41. These constitutional provisions collectively recognize menstrual leave as a crucial step toward equal treatment, addressing the distinctive health needs of women.

The intricate interplay of these articles acts as a protective shield around women's rights, cultivating a society where women can not only thrive intellectually but also stand on an equal footing. Additionally, the article delves into the historical significance of the Maternity Benefit Act of 1929, emphasizing the imperative of proactive measures for its effective application. It concludes by advocating for a cultural shift to overcome biases, fostering inclusivity, and striving towards a more equitable society.

Feminism and Menstrual Leave

The etymology of the word "feminism" unveils a profound connection to its Latin roots, where it finds its origin in the term "femina," meaning "woman." The evolution of the term over time encapsulates the essence of the broader movement dedicated to advocating for women's rights, gender equality, and the empowerment of women in various aspects of life. Delving into the linguistic roots, the Latin word "femina" not only signifies the biological aspect of being female but also encompasses the broader concept of womanhood, including the societal, cultural, and historical dimensions associated with it.

The adoption of "feminism" as a term reflects a deliberate choice to encapsulate the multifaceted struggle for women's liberation and equal standing in society.[2] As the feminist movement gained momentum, especially in the late 19th and early 20th centuries, the term "feminism" became the rallying cry for those advocating women's rights.

Beyond its linguistic origin, the term embodies a rich history of activism, intellectual discourse, and societal change. It conveys the aspiration to challenge and dismantle systemic inequalities, gender stereotypes, and discriminatory practices that have historically marginalized and oppressed women. The use of "feminism" as a label for the movement underscores the centrality of women in the struggle for their own rights.

It serves as a powerful reminder that the movement is rooted in a commitment to acknowledging, valuing, and affirming the experiences, contributions, and aspirations of women. The term encapsulates the belief that addressing issues related to gender requires a deliberate focus on elevating the status and agency of women in all spheres of life.

In contemporary discourse, the etymology of "feminism" serves as a linguistic anchor, grounding the movement in its foundational commitment to advancing the interests and well-being of women.[3] It symbolizes an ongoing endeavor to redefine societal norms, challenge ingrained biases, and create a more inclusive and equitable world where the rights and dignity of women are not only recognized but actively championed.

The first wave of feminism, a pivotal chapter in the history of women's rights, emerged during the late nineteenth and early twentieth centuries. It was a response to the changing dynamics of urban industrialism and the liberal, socialist political landscape of the time. The primary objective of this wave was to dismantle the societal barriers that restricted women and to open up opportunities, particularly with a keen focus on securing suffrage.[4]

The formal inception of the first wave can be traced back to the Seneca Falls Convention in 1848, a groundbreaking event where three hundred men and women gathered to champion the cause of women's equality. At this convention, Elizabeth Cady Stanton, a prominent figure in the feminist movement, played a pivotal role in drafting the Seneca Falls Declaration. This document not only outlined the ideology of the nascent movement but also articulated political strategies to advance the cause.

During its early stages, feminism was intertwined with other social movements, such as temperance and abolitionism. Notable activists like Sojourner Truth, an African-American woman, used her voice to demand recognition and equality, famously asking, "Ain't I a woman?" The activism during this era challenged the prevailing societal norms, particularly the "cult of domesticity" in Victorian America, as women engaged in unconventional activities like public speaking, demonstrating, and even facing imprisonment.

Discussions about women's rights, especially their right to vote and participate in politics, prompted a reevaluation of societal perceptions of gender roles. Some proponents argued that women were morally superior to men, advocating that their inclusion in the civic sphere would lead to improvements in public behavior and the political process.

The second wave of feminism, which unfolded in the 1960s and persisted into the 90s, marked another significant phase in the fight for gender equality.[5] This wave coincided with the anti-war and civil rights movements and witnessed a growing self-consciousness among various minority groups globally.

The New Left, characterized by its radical stance, became a driving force during this period. The second wave placed emphasis on issues related to sexuality and reproductive rights, and a substantial part of the movement's energy was devoted to advocating for the Equal Rights Amendment to the Constitution. This proposed amendment aimed to guarantee social equality irrespective of sex, reflecting the evolving priorities and challenges faced by women in the changing socio-political landscape.

Therefore, both the first and second waves of feminism were transformative in reshaping societal attitudes and legal frameworks, laying the foundation for ongoing efforts to achieve gender equality and women's empowerment. These waves served as catalysts for social change, challenging deeply ingrained norms and pushing the boundaries of what was deemed acceptable for women in their pursuit of equal rights and opportunities.

Empowering women and ensuring their social equality is a multifaceted endeavor that extends far beyond mere acknowledgment. It involves a comprehensive commitment to validating, affirming, and protecting the feminine physiology, thereby guaranteeing equitable access to cerebral and intellectual opportunities. This holistic approach recognizes the interconnectedness of physical well-being, societal standing, and intellectual pursuits in shaping the overall empowerment of women.

Constitutional Perspective of Menstrual Leave in India

In the Indian context, the protection of women's rights and opportunities is enshrined in what can be metaphorically termed the "Golden Triangle" of the constitution. This symbolic triangulation comprises Article 14, Article 21, and Article 41, forming a robust framework that safeguards various facets of women's lives, including health, livelihood, social equality, and overall opportunities for personal and professional development.

Right of Equality under the Article 14 of Indian Constitution

Article 14 of the Indian Constitution establishes the fundamental right to equality before the law and equal protection of laws. This implies that women, like any other citizens, are entitled to equal treatment in all spheres of life, free from discrimination based on gender.

This forms a cornerstone in the pursuit of gender equality.[6] Article 14 of the Indian Constitution is a cornerstone in the chapter of fundamental rights, and it establishes the fundamental right to equality before the law and equal protection of laws. The text of Article 14 reads, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

This fundamental right serves as a powerful safeguard against discrimination and arbitrariness, emphasizing the principle that all individuals, regardless of their background, are equal in the eyes of the law. When we apply the principles of Article 14 to the context of a Menstrual Leave Policy in India, it becomes evident that such a policy is in alignment with the constitutional guarantee of equality. Menstrual leave recognizes the unique biological needs of women and acknowledges that certain health issues associated with menstruation may affect their ability to perform optimally at work during those days.[7]

Implementing a Menstrual Leave Policy ensures equal protection of the laws for women in the workplace. It prevents the discrimination that might arise if women were not granted leave for health reasons specifically related to menstruation. Denying women the provision of menstrual leave could be construed as a violation of their right to equality before the law, as it fails to recognize the inherent differences in health needs between men and women.

The Menstrual Leave Policy contributes to fostering a workplace environment that respects the dignity and well-being of female employees. By acknowledging the specific health challenges associated with menstruation, it promotes inclusively and equal treatment, aligning with the spirit of Article 14.

It is important to note that while the Menstrual Leave Policy is a positive step toward recognizing women's health needs, it should be implemented without perpetuating stereotypes or hindering professional growth. It should be framed in a manner that ensures women do not face discrimination or biased treatment in the workplace based on their biological characteristics.[8]

Right to Health under the Article 21 of Indian Constitution

Article 21, often referred to as the right to life and personal liberty, ensures the protection of an individual's life and personal liberty. In the context of women's empowerment, this extends to safeguarding their health, dignity, and overall well-being, reinforcing the principle that a woman's right to a life with dignity is inviolable. [9]The right to health is a fundamental component of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution.

Article 21 states that "No person shall be deprived of his life or personal liberty except according to a procedure established by law." The interpretation of Article 21 has evolved over time, encompassing the right to health as an integral facet of a person's right to live with dignity.

Under the umbrella of the right to health, the Indian judiciary has recognized the importance of ensuring access to healthcare facilities, sanitation, and a clean environment. It extends beyond merely the absence of illness to the complete physical and mental well-being of an individual. This holistic interpretation emphasizes the government's duty to provide adequate healthcare services and facilities for its citizens.[10]

Menstrual health, being a crucial aspect of women's well-being, has garnered attention in recent times. The concept of menstrual leave recognizes the specific health needs and challenges that women face during their menstrual cycles. While the Indian Constitution does not explicitly mention menstrual leave, it is inferred from the broader right to health and the right to live with dignity.[11]

Many workplaces in India have started acknowledging the significance of menstrual health by instituting policies that allow for menstrual leave. This recognizes that women may experience discomfort, pain, or other health issues during their menstrual periods, impacting their ability to work optimally.

By providing menstrual leave, employers contribute to creating a more supportive and inclusive work environment that respects the biological needs of women. In this context, the right to health under Article 21 aligns with the idea that individuals, irrespective of gender, should have the right to access healthcare facilities and also be accommodated in the workplace to manage their health needs effectively.

Menstrual leave is a step toward recognizing the unique health challenges faced by women and ensuring that they can maintain their productivity and well-being without compromising their dignity.

Right to decent work under the Indian Constitution

The provision of menstrual leave in workplaces aligns with the spirit of Article 41 of the Constitution of India, 1950, which emphasizes the state's responsibility to make effective provisions for securing the right to work, education, and public assistance in various circumstances, including sickness. Article 41 recognizes the broader societal obligation to address issues related to health, well-being, and undeserved want.[12]

The specific inclusion of sickness in Article 41 implies an acknowledgment of the impact of health-related issues on an individual's ability to work and lead a dignified life. Menstruation, being a natural and recurring biological process for women, is a relevant aspect of women's health. Implementing menstrual leave policies is a practical step toward recognizing and addressing the unique health needs associated with menstruation.

When the state, as mentioned in Article 41, facilitates the provision of menstrual leave, it contributes to the realization of the right to work and public assistance during times of sickness.[13] Menstrual leave ensures that women can take the necessary time off during their menstrual cycles without facing adverse consequences in the workplace. This provision becomes especially significant considering that menstruation can often be accompanied by physical discomfort, pain, and other health-related challenges.

The constitutional commitment in Article 41 to securing the right to work is not only about providing employment opportunities but also encompasses creating an environment where individuals can effectively fulfill their professional responsibilities without compromising their health. Menstrual leave, therefore, becomes a means of ensuring that women can participate fully in the workforce while addressing the specific health requirements related to their menstrual health.

Additionally, Article 41 emphasizes public assistance in cases of undeserved want, which can include circumstances where individuals may face challenges due to health issues. By acknowledging the impact of menstruation on women's health and facilitating policies such as menstrual leave, the state takes a proactive step in addressing an aspect of undeserved want and ensuring that women are not unduly burdened by societal expectations during their menstrual periods.

It is essential for policymakers and employers to be cognizant of the broader implications of menstrual health on women's overall health and productivity. Instituting supportive policies, informed by the constitutional right to health, not only promotes gender equality but also reflects a commitment to creating a work environment that respects the dignity of every individual. The convergence of the right to health and the recognition of menstrual leave contributes to a more inclusive and equitable society where the well-being of all citizens is prioritized.

The interplay between these constitutional provisions creates a synergistic effect, forming a protective shield around women's rights and opportunities. It encompasses their right to live free from discrimination, express themselves without fear, and pursue intellectual and professional endeavors with the assurance of equal opportunities.

The "Golden Triangle" thus becomes a powerful symbol of constitutional commitment to gender equality, intertwining the legal framework with the broader goal of empowering women. Recognizing and affirming the importance of feminine physiology within this framework underscores the acknowledgment that women's rights encompass not only legal and social aspects but also extend to the preservation and promotion of their physical and intellectual well-being.

In essence, this approach contributes to the creation of a society where women can thrive intellectually, contribute meaningfully to various fields, and stand on equal footing with their male counterparts.

The Maternity Benefit Act of 1929

The Maternity Benefit Act of 1929 stands as a historic milestone in India's legislative landscape, being the first pre-independence law explicitly designed to address the crucial need for protections related to childbirth in the workplace.[14] This landmark legislation was a response to the pressing issues faced by women, particularly those employed in the cotton factories of Bombay, who were being denied their reproductive freedom.

The Act aimed to establish a framework that acknowledged and safeguarded the rights of women during maternity, a crucial step towards recognizing the dual responsibilities of women in both the workplace and as caregivers.

The impetus for a more comprehensive maternity protection framework gained momentum with the updated International Labour Organization Maternity Protection Convention of 1952. This global initiative provided the push that independent India needed to adopt more humane working standards for women. In 1961,[15] the Maternity Benefit Act was enacted, building upon the foundation set by the earlier legislation.

While it initially covered government agencies and factories, it did not extend its assistance to small-scale industries or agriculture. Subsequently, the act evolved to include the private sector under its ambit, marking a significant stride in expanding maternity benefits to a broader spectrum of working women. One notable provision introduced through the Maternity Benefit Amendment Act allows new mothers the option to work from home after the completion of the 26-week leave term.

This provision recognizes the changing dynamics of the modern workplace and emphasizes flexibility in employment, catering to the diverse needs of women in different professions. However, the effectiveness of such progressive laws depends significantly on their application. It is imperative for state governments to take proactive measures to encourage companies to address gender equality and consider women's biological needs.

This could involve implementing penalties for non-compliance to ensure employers adhere to the legislation. To further incentivize compliance, employers could receive monetary benefits and prizes, such as the remission of license costs, fostering a culture of adherence to maternity protection laws.[16]

A crucial aspect of promoting gender equality is the elevation of women to positions of power within organizations. Increasing the number of women in leadership roles not only addresses the issue at its root but also contributes to creating a more welcoming and inclusive workplace environment for women.

The narrative then shifts to the societal perspective on menstruation, emphasizing that viewing it as a physiological phenomenon is essential for promoting social equity. However, stigmatizing menstruation by labeling it as a source of humiliation is a clear departure from the intent of achieving equality.

The concern arises when societal norms, perpetuated even by influential figures like ministers, inadvertently endorse patriarchal logic, thereby legitimizing discrimination.[17] The call for social equity demands not just legislative measures but a cultural shift and a collective effort to challenge and overcome ingrained biases and discriminatory practices.

Written By:

1. Ms. Saba Khan Firdous, Student of LLM (Constitutional Law), at Department of Studies in Law, University of Mysore
2. Ms. Kanchana M., Student of LLM (International Law), at Department of Studies in Law, University of Mysore
3. Ms. Taiba Najibi, Student at Institute of Legal and Policy Research (ILPR)
4. Ms. Hasina Rasoli, Student at Institute of Legal and Policy Research (ILPR)

References:

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2. Margaret Ferguson, Feminism in Time, 65 Mod. Lang. Q. (2004).
3. Kathleen A. Laughlin et al., Is It Time to Jump Ship? Historians Rethink the Waves Metaphor, 22 Fem. Form. 76 (2010).
4. Four Waves of Feminism | Pacific University, https://www.pacificu.edu/magazine/four-waves-feminism (last visited Jan 23, 2024).
5. Id.
6. Menstrual Leave: Legal Implications and Workplace Policies, https://www.legalserviceindia.com/legal/article-13670-menstrual-leave-legal-implications-and-workplace-policies.html (last visited Jan 23, 2024).
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8. Sunalini Mathew, The Period Leave Debate: Deserving or Not?, The Hindu, Mar. 3, 2023, https://www.thehindu.com/society/paid-menstrual-leave-period-leave-debate-deserving-or-not-aditi-gupta-menstrupedia-usha-sriram-endocrinologist-indira-jaising-lawyer-sinu-joseph-menstrual-educator-sujata-sriram-psychologist-ankesh-ch/article66566652.ece (last visited Jan 23, 2024).
9. Article 21 of the Constitution of India: Understanding Right to Life and Personal Liberty from Case Laws - Academike, https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/ (last visited Jan 23, 2024).
10. admin, Article 21 of the Indian Constitution: Right to Life & Personal Liberty, Century Law Firm Blog (Feb. 28, 2023), https://www.centurylawfirm.in/blog/article-21-of-the-indian-constitution/ (last visited Jan 23, 2024).
11. Virendra Kumar, Dynamics of the "Right to Privacy": Its Characterization Under the Indian Constitution, 61 J. Indian Law Inst. 68 (2019).
12. V. M. Dandekar, Making Right to Work Fundamental, 26 Econ. Polit. Wkly. 697 (1991).
13. Rachel B. Levitt & Jessica L. Barnack-Tavlaris, Addressing Menstruation in the Workplace: The Menstrual Leave Debate, in The Palgrave Handbook of Critical Menstruation Studies (Chris Bobel et al. eds., 2020), http://www.ncbi.nlm.nih.gov/books/NBK565643/ (last visited Jan 23, 2024).
14. Maternity benefit act-boon and bane for the nation, https://timesofindia.indiatimes.com/readersblog/maternitybenefitactboonandbaneforthenation/maternity-benefit-act-boon-and-bane-for-the-nation-51056/ (last visited Jan 23, 2024).
15. Id.
16. Id.
17. Laura Rossouw & Hana Ross, Understanding Period Poverty: Socio-Economic Inequalities in Menstrual Hygiene Management in Eight Low- and Middle-Income Countries, 18 Int. J. Environ. Res. Public. Health 2571 (2021).