A Jurisprudential Exegesis Of Menstrual Accommodation In India: Re-Characterising Physiological Inevitability As A Constitutional Imperative
- IJLLR Journal
- Feb 4
- 2 min read
Yug Raman Srivastava, BALLB (Hons.), Rajiv Gandhi National University of Law, Punjab
ABSTRACT
This paper proposes a constitutional re-evaluation of menstrual accommodation in India, contesting the dominant perspective that regards menstrual leave as a matter of legislative discretion or employer goodwill. It contends that the persistent inability to accommodate menstruation in the workplace represents a breach of substantive equality, dignity, and health, thereby infringing upon the fundamental rights enshrined in Articles 14, 15, and 21 of the Constitution of India. The paper fundamentally argues that workplaces that are neutral disregard the physiological considerations associated with sex, where these considerations bring structural disadvantage to a particular sex.
Moving one step further from the usual policy explanations, the paper argues that menstrual accommodation is not an optional welfare policy, but rather a standard of equality flowing from the constitution itself. While it acknowledges that courts can’t set specific standards of menstrual accommodation, it must step in when there are none at all. This is further operationalised through a four-figure constitutional test for testing whether any accommodation exists at all. This brings structure to the usually abstractly argued argument, creating enforceable rules within the constitutional limitations.
The paper further addresses issues related to judicial restraint, economic viability, stereotyping, and administrative abuse, illustrating that these criticisms are associated with implementation rather than constitutional legitimacy. By comparing different countries' approaches, the paper shows that menstrual accommodation is not impossible to implement or incompatible with constitutional governance, especially in India's changing constitutional framework. The paper ultimately asserts that the denial of menstrual accommodation signifies not constitutional silence but constitutional failure, and that genuine workplace equality necessitates the acknowledgement of physiological differences as a valid constitutional issue.
Keywords: Menstrual Leave, Constitutional Law, Substantive Equality, Transformative Constitutionalism, Article 21, Dignity, Indirect Discrimination, Workplace Accommodation, Bodily Autonomy, Indian Supreme Court.
