India doesn’t have a menstrual leave problem. It has a cost-allocation problem. Everything else, the Supreme Court’s hesitation, the employer’s reluctance, the woman’s silence follows from that single, unresolved question: when a female body needs accommodation at work, who pays?
Until India answers that question honestly, every menstrual leave debate will end exactly the way this week’s Supreme Court hearing ended with a reasonable-sounding observation that amounts to telling women their biology is too expensive to protect.
The Court Was Right About the Wrong Thing
Chief Justice Surya Kant’s concern was genuine and, within its own logic, correct. Mandating menstrual leave by law, with costs sitting entirely on the employer’s books, could make women less hireable. It isn’t speculation that India has already run this experiment. The Maternity Benefit Act of 2017 extended paid maternity leave to 26 weeks, one of the most generous provisions in the world on paper. Within two years, multiple studies documented what followed: formal employment of women in affected firms dropped. Small and medium enterprises, unable to absorb the financial burden the state had placed on them alone, quietly stopped hiring women of reproductive age.
The court looked at this pattern correctly and worried that menstrual leave legislation would repeat it. What the court did not do, and what the debate has never done, is ask why India keeps designing protections this way. Why does the state keep deciding that accommodating women’s biology is an employer’s problem?
This is not a neutral design choice. It is a choice that systematically converts women’s health into a liability on a private balance sheet and then expresses puzzlement when the market treats women as liabilities.
Japan Tried to Do This Right. It’s Complicated.
Japan has had menstrual leave seiri kyuuka since 1947. That is not a typo. For nearly eighty years, Japanese law has recognised a woman’s right to take leave during painful menstruation. By the court’s logic, Japanese employers should have stopped hiring women generations ago.
They did not. But what happened instead is instructive in a way that advocates for menstrual leave rarely acknowledge. Uptake of seiri kyuuka has declined steadily for decades. In recent surveys, fewer than one in ten eligible women actually use it. The reasons women give are consistent: they don’t want to reveal menstrual difficulties to a (usually male) manager. They don’t want to be perceived as less capable. They don’t want to be the woman who takes the period leave when none of her colleagues do.
Japan’s experience does not prove that menstrual leave is a bad idea. It proves something more specific and more uncomfortable: that a legal right, sitting alone without a corresponding cultural shift in how workplaces understand women’s health, can become a right no one uses. The law created a permission. The workplace created a penalty for using it.
This is the gap India’s debate is not yet sophisticated enough to address. The court is worried about the legal architecture. It should also be worried about the social architecture, the invisible tax of stigma that women pay when they exercise protections that men in the same office never need to think about.
The Man Who Filed This Three Times
There is something the court did notice, and did not know quite what to do with: this petition was filed by a man. Not once, not twice, but three times over three years. The bench questioned his standing. Chief Justice Kant suggested, pointedly, that the petition itself might do damage reinforcing the idea that women have “natural issues” and cannot work like men during a certain time of the month.
The critique lands, but only halfway.
It is true that a man repeatedly litigating on behalf of women’s bodies, without a single female petitioner joining him, raises questions worth taking seriously. Paternalism has a long history of framing women as subjects of policy rather than authors of it. A PIL that positions women as fragile, as needing a man to advocate for what they apparently cannot demand themselves that framing is worth interrogating.
But the absence of a female petitioner is not evidence that women don’t want this. It is evidence of something the court did not consider: that a woman who files this petition in her own name puts a target on herself. She becomes the woman who made a fuss about her period in the Supreme Court of India. She becomes, in the minds of every future employer who Googles her name, a risk. The man who files faces no such consequence. He goes home after the hearing. She lives with the headline.
The silence of women in this case is not consent. It is the sound of a rational calculation being made by people who have learned, through experience, that claiming rights publicly is not free.
Voluntarism Is Not a Policy. It Is an Excuse for One.
The court took visible comfort in the fact that some private companies voluntarily offer period leave. Swiggy does. So do a handful of tech firms with DEI mandates and communications teams who write press releases about it.
This is good. It is also almost entirely beside the point.
Voluntary systems protect workers where protection is least needed at companies already progressive enough to recognise the issue. The woman who benefits from Swiggy’s menstrual leave policy was always going to be better off than the woman packing sarees in a textile unit in Surat, because everything about her workplace was already better. Voluntary leave does not reach into contractual labour. It does not touch gig workers, domestic workers, piece-rate employees, women in the informal economy who make up the vast majority of India’s working female population.
When the court says “voluntarily they are giving, then it is excellent,” it is describing a feature of premium employment and calling it a solution to a structural problem. It is looking at the penthouse and deciding the building has solved its water supply.
The Question No One Is Asking
France, Germany, and several Scandinavian countries handle parental leave including maternity leave through social insurance pooled across employers, employees, and the state. No single employer bears the full cost of a woman’s pregnancy. The cost is socialised because the benefit of a workforce that reproduces, that includes women, that doesn’t structurally disadvantage half the population is also socialised.
India has never applied this logic to women’s employment protections. Every protection has been designed as a bilateral arrangement between a woman and her employer, with the state watching from a distance and occasionally mandating terms without funding them.
A menstrual leave policy designed this way as yet another unfunded mandate dropped on employers would likely cause harm. The court is right about that. But the solution that follows is not to abandon the policy. It is to stop designing policies for women the way India has always designed them: as if the country has no stake in the outcome, as if whether women work or are pushed out is a matter between a woman and the man who signs her cheque.
India has a stake. Women’s labour force participation in this country sits among the lowest in the world for a major economy, and it has been falling. Every structural disincentive to hiring women including the ones created by well-intentioned but poorly designed protections costs the economy in ways that dwarf the administrative cost of a menstrual leave fund.
The Supreme Court this week asked the government to frame a policy in consultation with all stakeholders. That is the right instruction. But the stakeholder conversation that actually needs to happen isn’t between the government and employers. It is a conversation India has been avoiding for decades, about a question it keeps dressing up in procedural clothing:
Do we believe women belong in the workforce, or do we merely tolerate them there?
The answer to that question will determine what the policy looks like. Everything else: the leave, the mandate, the cost is a consequence of the answer. Not the other way around.
The Supreme Court of India disposed of a writ petition seeking mandatory menstrual leave on March 13, 2026, directing the Central Government to frame a policy after consulting all stakeholders.
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