Karnataka High Court
Smt. Chandravva Hanamant Gokavi W/O … vs State Of Karnataka on 15 April, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 13.01.2026 R
Pronounced on : 15.04.2026
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 15TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.109734 OF 2025 (GM -RES)
BETWEEN:
SMT. CHANDRAVVA HANAMANT GOKAVI
W/O HANAMANT GOKAVI
AGED ABOUT 41 YEARS
OCCU: HOTEL WORKER
R/O IRANNA NAGAR
MUDALAGI (RURAL)
TALUK GOKAK
BELGAUM - 591312.
... PETITIONER
(BY MS.DEEKSHA N.AMRUTHESH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
VIDHANASOUDHA
AMBEDKAR VEEDHI
BENGALURU - 560001
REPRESENTED BY ITS
CHIEF SECRETARY.
2
2. PRINCIPAL SECRETARY.
DEPARTMENT OF LABOUR
GOVERNMENT OF KARNATAKA
NO.414, 4THFLOOR
VIKASA SOUDHA
BENGALURU - 560001.
3. COMMISSIONER,
DEPARTMENT OF LABOUR
GOVERNMENT OF KARNATAKA
KARMIKA BHAVAN,DAIRY CIRCLE
BANNERGHATTA ROAD
BENGALURU - 01.
4. WELFARE COMMISSIONER,
KARNATAKA LABOUR WELFARE BOARD
KARMIKA KALYAN BHAVAN
NO.48, 2NDFLOOR,
MATHIKERE MAINROAD
YESHWANTHPURA
BENGALURU - 560022.
5. DEPUTY COMMISSIONER,
BELGAUM DISTRICT,
OFFICE OF DEPUTY COMMISSIONER
DISTRICT COURT COMPOUND
BELGAUM - 590001.
6. DEPUTY LABOUR COMMISSIONER,
KARMIK BHAVAN
BELGAUM DISTRICT
BELGAUM - 590008.
7. KARNATAKA STATE COMMISSION FOR WOMEN
OFFICE OF DEPUTY COMMISSIONER
DISTRICT COURT COMPOUND
BELGAUM DISTRICT - 590001
REPRESENTED BY
3
NODAL DISTRICT OFFICER.
... RESPONDENTS
(BY SMT.PRATHIMA HONNAPURA, AAG)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO I) ISSUE A
WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE ORDER TO THE
RESPONDENTS TO CONSIDER THE REPRESENTATION VIDE
ANNEXURE-F, DATED 10.12.2025 OF THE PETITIONER IN A TIME
BOUND MANNER, IN THE INTEREST OF JUSTICE AND EQUITY; II)
ISSUE A WRIT OF MANDAMUS, DIRECTING THE RESPONDENT
NO.1-STATE OF KARNATAKA, DEPARTMENT OF LABOUR AND
RESPONDENT NO.2 DEPUTY LABOUR COMMISSIONER, BELAGAVI,
TO IMPLEMENT AND ENFORCE THE GOVT.ORDER BEARING
NO.LD466LET2023 DATED 20.11.2025 VIDE ANNEXURE-D AND
GOVERNMENT NOTIFICATION PUBLISHED IN THE KARNATAKA
GAZETTEE EXTRA ORDINARY PART 1, NO.748/KaE466 LET 2023
DATED 12.11.2025 INTRODUCING THE MENSTRUAL LEAVE POLICY,
VIDE ANNEXURE-D1, DATED 20.11.2025, ACROSS ALL
ESTABLISHMENTS WITHIN THE JURISDICTION OF BELAGAVI
DISTRICT, INCLUDING HOTELS AND SMALL COMMERCIAL UNTIS,
IN THE INTEREST OF EQUITY AND JUSTICE; III) ISSUE A WRIT OF
MANDAMUS ANY OTHER APPROPRIATE WRIT OR ORDER
DIRECTING THE RESPONDENTS TO FRAME AND ISSUE
APPROPRIATE GUIDELINES, CIRCULARS OR INSTRUCTIONS TO
SECURE UNIFORM IMPLEMENTATION AND EXECUTION OF THE
POLICY, PARTICULARLY IN THE UNORGANISED LABOUR SECTOR
WHERE WOMEN WORKERS SUCH AS THE PETITIONER ARE MOST
VULNERABLE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 13.01.2026, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
4
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner, a woman of modest means who asserts that
she has toiled as a labourer for several years, now stands before
the doors of this Hon'ble Court, invoking its extraordinary
jurisdiction, seeking the complete and meaningful implementation
of the policy of the State Government as enunciated on 12-11-2025
and subsequently crystallized through Government Orders dated
20-11-2025 and 02-12-2025.
2. Facts, in brief, germane are as follows: -
2.1. The petitioner is stated to be employed in a small, local
hotel, where her daily existence is marked by relentless physical
exertion. Her duties, as narrated, encompass cleaning, washing of
utensils, serving of food, and the performance of assorted menial
tasks that demand sustained bodily labour from the early hours of
the morning until late into the evening.
5
2.2. The environment in which she is constrained to work is
described as not only physically taxing, but also bereft of adequate
standards of hygiene and dignity. Such conditions, it is urged, bear
with particular severity upon women workers, and more so during
the period of menstruation, when the natural physiological
processes of the body are accompanied by discomfort, fatigue, and
pain, thereby rendering the performance of such arduous tasks
exceedingly burdensome.
2.3. It is further averred that the State of Karnataka,
conscious of these lived realities and the need to secure dignity and
equity in the workplace, initiated, in the year 2024, a progressive
step towards the formulation of a Menstrual Leave Policy by
constituting a dedicated committee to examine the issue in its
multifaceted dimensions. The Committee, in its deliberative
wisdom, invited objections, suggestions, and inputs from a wide
spectrum of stakeholders, including subject-matter experts,
representatives of hotel associations, labour unions, and women's
organizations, among others.
6
2.4. The consultative process, as submitted, witnessed an
overwhelming response, with a significant number of stakeholders
expressing support for the introduction of a structured policy
recognizing menstrual leave as a facet of workplace justice and
gender equity. It is, therefore, the petitioner is before this Court
seeking the following prayer:
"(i) Issue a Writ of Mandamus or any other appropriate order,
to the Respondents to consider the Representation vide
Annexure-F dated 10-12-2025 of the Petitioner in a time
bound manner, in the interest of justice and equity.
(ii) Issue a Writ of Mandamus, directing the Respondent No.1
- State of Karnataka, Department of Labour and
Respondent No.2 - Deputy Labour Commissioner,
Belagavi District to implement and enforce the
Government Order Bearing LD 466 LET 2023 dated 20-
11-2025 vide Annexure-D and Government Notification
published in the Karnataka Gazette Extraordinary Part-1
No.748/ KaE 466 LET 2023 dated 12-11-2025 introducing
the Menstrual Leave Policy, vide Annexure-D1 dated 20-
11-2025, across all establishments within the jurisdiction
of Belagavi District, including hotels and small commercial
units in the interest of equity and justice.
(iii) Issue a writ of mandamus, any other appropriate writ or
order directing the Respondents to frame and issue
appropriate guidelines, circulars or instructions to secure
uniform implementation and execution of the policy,
particularly in the unorganized labour sector where
women workers such as the petitioner are most
vulnerable, in the interest of justice and equity."
7
3. Heard Ms. Deeksha N. Amruthesh, learned counsel
appearing for the petitioner and Smt. Prathima Honnapura, learned
Additional Advocate General appearing for the respondents.
SUBMISSIONS:
PETITIONER:
4.1. Learned counsel Ms. Deeksha N Amruthesh, appearing
for the petitioner, would, with considerable vehemence and
conviction, contend that the recognition of menstrual leave for
women workers and employees has now transcended mere
discourse and has culminated in the formulation of a legislative Bill.
The same, it is urged, constitutes a beneficial and progressive piece
of legislation, intended to advance the cause of gender equity and
workplace dignity.
4.2. It is her emphatic submission that such a salutary
measure ought not to be rendered illusory or stifled at its nascent
stage by inaction or indifference on the part of the State. Rather,
the State is under an affirmative obligation to take all necessary
8
steps to sensitize workplaces across the organized as well as the
vast unorganized sectors towards the realities faced by women
workers.
4.3. The learned counsel would submit that women,
irrespective of the nature or location of their employment - be it
organized, semi-organized, urban, or rural, are often compelled to
undertake physically strenuous labour even during their menstrual
cycle, a period marked by discomfort, pain, and physiological strain.
In such circumstances, the denial of even minimal respite renders
the conditions of labour unduly harsh and, at times, inhumane.
4.4. The learned counsel would further submit that several
nations across the globe have, in recognition of these realities,
thought it fit to introduce legislative measures providing for at least
a day of leave during the menstrual cycle. She draws the attention
of this Court to the deliberative exercise undertaken by the
Committee constituted by the State, which, after an exhaustive
consideration of all relevant facets of the issue, has unequivocally
recommended the introduction of a menstrual leave policy.
9
4.5. It is, therefore, contended by the learned counsel that
the policy, having been so formulated upon due application of mind
and expert consultation, ought not to remain a mere declaration on
paper, but must be translated into tangible implementation. The
same, she urges, must be disseminated and enforced across all
establishments, particularly within the unorganized sector where
women workers remain most vulnerable and least informed of their
entitlements. On these grounds, she would beseech this Court to
grant the reliefs sought for in the petition and to issue appropriate
directions to ensure effective implementation of the policy.
STATE:
5.1. Per contra, learned Additional Advocate General,
Smt. Prathima Honnapura, appearing for the State, has placed
before this Court a detailed statement lending full support to the
policy enunciated by the Government. While affirming the
progressive intent underlying the policy, she has, with due
circumspection, projected certain practical impediments,
10
particularly in relation to the effective monitoring and enforcement
of the policy within the vast and heterogeneous unorganized sector.
5.2. The learned Additional Advocate General has further
drawn the attention of this Court to the report of the Law
Commission, as also to the Bill presently tabled before the
Legislature concerning menstrual leave, thereby indicating that the
matter is actively engaging legislative consideration and
deliberation.
5.3. It is her considered submission that the State is well
within the ambit of its constitutional authority to formulate and
enunciate such a policy, the same being traceable to and supported
by the enabling provisions and directive principles embodied in the
Constitution of India. At the same time, she would fairly submit that
this Hon'ble Court may, in the facts and circumstances of the
present case, issue appropriate directions aimed at sensitization
and awareness, so that women working across both organized and
unorganized sectors may be made cognizant of the policy and its
intended benefits.
11
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
CONSIDERATION:
7. Before venturing into an examination of the
significance of the issue at hand, it is both fitting and
instructive to take a brief, yet meaningful sojourn, through
history. It is a matter, well documented in public domain, that as
early as 1912, the State of Kerala, had exhibited remarkable
foresight by permitting menstrual leave to girl students, during
their annual examinations. This progressive inclination, found
further resonance on the global stage, when Japan in 1947 formally
recognized and institutionalized menstrual leave within its labour
regulations, thereby marking the first statutory acknowledgment of
such a provision in international jurisprudence. In India, the State
of Bihar, grappling with the realities of workplace equity, introduced
a policy granting two days of paid menstrual leave per month, to its
women Government employees. Inspired by such developments,
12
the Government of India undertook legislative efforts through
introduction of the Menstruation Bill, 2017. Although, this marked a
commendable step towards recognizing menstrual leave, it
ultimately did not crystallize into an enforceable law. Subsequent
legislative endeavours also fell short of legislative fruition.
8. A plea was put forth before the Apex Court in a petition
filed under Article 32 of the Constitution of India by one Shailendra
Mani Tripathi in the case of SHAILENDRA MANI TRIPATHI v.
UNION OF INDIA1, seeking a direction to the Union and State
Governments to implement a policy for the grant of menstrual leave
to women under the Maternity Benefit Act, 1961. The Apex Court
while disposing the petition by directing the Union or the State
Government to form a policy for grant of menstrual leave observes
as follows:
".... .... ....
1. The jurisdiction under Article 32 of
the Constitution of India has been invoked for directing
the Union Government, the States and the Union
Territories to implement policies for the grant of
1
2024 SCC OnLine SC 1694
13
menstrual leave to women under the Maternity Benefit
Act, 1961.
2. In a previous Writ Petition, which was filed by
the petitioner (Writ Petition (Civil) No. 172 of 2023),
this Court, by its order dated 24 February 2023, allowed
the petitioner to submit a representation to the Union
Ministry of Women and Child Development to consider
the policy issues involved in the case. The grievance is
that though the petitioner submitted a representation
on 19 May 2023 to the Union Ministry of Women and
Child Development and other relevant authorities, no
response has been received as yet.
3. Since the issue raised multifarious aspects of
policy, this Court was of the view that it must be
attended to by the Union and the States.
4. At this stage of the matter, there is no reason for this
Court to take a different view, particularly, in the light of the
earlier order dated 24 February 2023.
5. However, we permit the petitioner to move the
Secretary in the Union Ministry of Women and Child
Development once again with a copy to Ms. Aishwarya
Bhati, learned Additional Solicitor General, who has
assisted this Court in similar other matters pertaining to
women in the work place.
6. We request the Secretary in the Union Ministry
of Women and Child Development to look into the
matter at a policy level, after due consultation with all
stakeholders, both at the Union and the State levels.
The Union Government may consider whether it would
be appropriate to frame a Model policy for consideration
by all the stakeholders.
7. We dispose of the Writ Petition with these
observations at the present stage.
14
8. We clarify that this order will not stand in the way of
the State Governments independently taking an appropriate
decision.
9. Pending applications, if any, stand disposed of."
(Emphasis supplied)
9. Taking cue, the State of Karnataka, embarked upon a
deliberate and consultative journey towards formulating a
menstrual leave policy. A dedicated Committee was constituted to
examine the contours of such policy, inviting objections, eliciting
expert opinions and engaging in thoughtful deliberation. The
recommendations of this Committee were subsequently placed
before the Law Commission of Karnataka, which undertook
exhaustive analysis of the issue, and opined as follows:
"..... .... ....
9. 28thMay is an annual awareness day to highlight the
importance of good menstrual hygiene management. It was
initiated by a German based NGO WASH United in 2013 and was
observed for the first time in 2014. The purpose of observing it
is to engage the decision-makers at the local, regional, national
and global levels in the policy dialogues for creating clean water
and toilet facilities. If these facilities are not given, it affects
their health, education, growth and dignity.
10. The Government/Managements shall annually
celebrate 28thMay as Menstrual Hygiene Day to raise awareness
15
about menstrual hygiene and sanitation when their monthly
visitor comes along.
11. There can be some resistance or opposition to the
introduction of menstrual leave by trooping out the argument
that woman employees can always avail of sick leave from their
bucket of available leaves. There can also be serious challenges
like misuse of menstrual leave facility, prospective employer
preferring men to women, hindering women employees'
promotions, bonus, appraisals, postings, etc... Therefore, we
have to move forward taking a balanced approach and evolving
a harmonized policy.
12. The formation of perception among the male
colleagues, supervisors and superiors that the women are either
unable or unwilling to work is to be avoided. Majority of the
women would not abuse the menstrual policy. For instance,
0.9% of the women avail of the menstrual leave despite offer of
the said leave in Japan. Menstruation is not an uniform
experience but rather multi-faceted. Menstrual leave
legislation has to be therefore made with reference to
women employees' circumstances. The women
employees may be allowed to work remotely when they
are on the periods. Alternatively, a hybrid working
condition may be created wherein women/menstruating
person partly works online and partly offline. The
proposed legislation has to ensure reasonable flexibility
by providing leave to menstruating women while
maintaining an attendance threshold and simplifying the
leave granting process by self-certification. The
employers and supervisors are to be reoriented and
sensitized. Prioritizing women's health and safety is a
hallmark of a civilized and an egalitarian society. It is
high time we realize that the presenteeism is an anti-
thesis to productivity.
13. The reference has to be made not only to a
menstruating woman but also to a menstruating person
who includes both women and transgender menstruators.
The term menstruator implies people who menstruate
including girls, woman and other gender minorities
(transgender men and non-binary people).
16
14. The Law Commission conducted extensive
deliberations with cross-sections of advocates, doctors, social
activists and other stake holders. Each participant has brought
with her/him expertise, experience newer perspective on
stereotypes feminist stand points, labour rights, policy
formulation, social welfare measures, etc.,"
This results in a Government order dated 20-11-2025 which
elucidates as to whom the policy would become applicable,
including other Government organizations. The Government Order
reads as follows:
".... .... ....
In the Notification read at (1) above, to enhance
the efficiency and capacity of women employees, to
improve their morale during their menstrual cycle, a
Committee was formed. consisting of officers from
different departmental levels, expert doctors,
representatives from labour sectors, Industrial
Associations, IT/BT representatives, Garment owners,
Academicians, Social workers, Employer representatives
and others to discuss and submit a report regarding the
issue of notification providing paid leave to all the women
employees working in all industries and establishments in
the State which are registered under The Factories Act,
1948, The Karnataka Shops and Commercial
Establishments Act, 1961, The Plantation Labour Act,
1951, The Beedi and Cigar Workers (Conditions of
Employment) Act, 1966 and the Motor Transport Workers
Act, 1961.
The said Expert Committee, after thorough
discussion, recommended the implementation of a
"Menstrual Leave Policy" in factories, plantations, shops
and commercial establishments employing women, to
grant six annual paid menstrual leaves. For broader
17
public feedback on granting the said leave to women
employees, it was published in the Department's
website karmikaspandana.gov.in on 18-10-2025 inviting
views and suggestions from factories, industries,
institutions, various organizations, women's
organizations, labour representatives. workers and the
public.
75 opinions were received from workers, Labour
unions, employers, employer associations, women's
organizations, the public, and Government Employee's
Federation regarding the proposed Menstrual Leave
policy. Out of these, 56 supported the policy, and 19
opposed it. Out of the 56 supporting opinions, 26 were
from Employers, 7 from Labour Unions, 19 from
Employees, 1 from the public, I from the Government
Employee's Federation, and 2 from women's
organizations. In addition10 among the said opinions
have (including 4 from Administrative section) requested
for increasing the annual leave entitlement from 6 to 12
days.
Since the majority of opinions favour the proposed
policy and the policy would increase the health, welfare,
efficiency and productivity of women employees in
various establishments, which would in turn enhance
women's participation in productive activities and raise
national output, the Commissioner, Department of Labour
sent a proposal as a best global practice for women
workers in Karnataka read at (2) above.
In the Cabinet Note read as (3) above, the Cabinet has
approved "To implement the Menstrual Leave Policy, 2025"
sanctioning one day of paid leave per month for working women
in all sectors including Government offices and various private
industries such as Garments, MNCS, IT and other industries
operating in the State",
After detailed examination of the proposal, the following
order is issued:
18
Government Order No. LD 466 LET 2023,
Bengaluru, dated:20/11/2025
In the above context described in the proposal,
with the intention of enhancing health, efficiency, mental
well being and performance of women employees
between 18 to 52 years of age working in the
establishments registered under The Factories Act, 1948,
The Karnataka Shops and Commercial Establishments
Act, 1961, The Plantation Labour Act, 1951, The Beedi
and Cigar Workers (Conditions of Employment) Act, 1966,
and The Motor Transport Workers Act, 1961, it is ordered
to provide one day of paid leave per month to all
permanent/ contract/outsourced women during their
menstrual cycle, restricting to 12 days per year.
Conditions:
1. Women employees shall utilize "Menstrual
Leave" of respective month in the respective
month itself. Menstrual leave of the previous
month shall not to be allowed to extended (Carry
over) to the next month.
2. Women employees are not required to provide
any medical certificate to avail one day
"Menstrual Leave" every month.
By order and in the name of the
Government of Karnataka,
Sd/-
(SUMA S)
Under Secretary to Government
Labour Department."
Again on 02-12-2025, Government notifies the following order:
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20
With all this, a Bill is also tabled before the Legislature. The bill is,
the "Karnataka Menstrual Leave and Hygiene Bill, 2025". The
recommendations of the Law Commission form the objects and
reasons of the Bill. The Bill reads as follows:
"The Karnataka Menstrual Leave and Hygiene Bill, 2025
Be it enacted by the Karnataka State Legislature in the
th
76 Year of the Republic of India as follows:
1. Short title, extent and commencement.- (1) This Act may
be called the Karnataka Menstrual Leave and Hygiene Act, 2025.
(2) It extends to the whole of the State of Karnataka.
(3) It shall come into force on such date as the State
Government may by notification in the Official Gazette appoint.
2. Definitions.-
(a)"Authority" means an Authority constituted under Section 5
of the Act.
(b)"Educational Institution" means any primary, secondary
or higher secondary school, junior college/pre-university
college, degree college, polytechnic, academy, university,
institution deemed to be university, training centre,
tuition/coaching centre and includes any other institution
imparting education and vocational training, whether it is
Government, aided or unaided.
(c) "Menstruating person" includes girls, women and
transgender persons.
(d)"Private Establishment" means and includes a factory, a
mine, a plantation, an establishment wherein persons are
employed for the exhibition of equestrian, acrobatics and other
performances, cinema and drama theatres, a shop, a motor
21
transport, a concern doing the business or trade or offering
service, a company, a firm, a cooperative or any other society,
an association, a trust, an agency, an institution, an
organisation, a union, a hospital, a clinic, a diagnostic centre, a
hotel, or such other establishment, whether registered or not,
belonging to or concerning one or more individuals, families,
body corporates, etc.
(e) "Services under the aegis of the Government" include
the services in the departments of the State Government and in
the local Self-Governments, Government Corporations,
Government Companies, Government Societies, Public Sector
Undertakings, Statutory Boards and Authorities and the similarly
placed Instrumentalities of the State. Services include
permanent, casual, contract, probationary, part-time, honorary,
etc.,.
(f) "Transgender person" means a person whose gender
does not match with the gender assigned to that person at birth
and includes trans-man or trans-woman (whether or not such
person has undergone Sex Reassignment Surgery or hormone
therapy or laser therapy or such other therapy), person with
intersex variations, genderqueer and person having such socio-
cultural identities as kinner, hijra, aravani and jogta.
3. Every menstruating person shall be entitled to the
following benefits.-
(a) Paid leave and absence from work upto two
days per month in any establishment under the aegis of
the State Government or in a private establishment,
either consecutively or intermittently as per the
requirements during menstruation
(b) In case of menstruating students, leave of
absence from the educational institutions upto two days
per month during her menstruation and consequently 2%
relaxation in the attendance for menstrual issues in
Educational Institutions.
Provided that-
22
(i) The menstruating person shall be entitled to only one
day of menstrual leave, if the menstruation falls on
Sunday or on any other general holiday.
(ii) The said person shall not be entitled to seek any
menstrual leave, if menstruation falls on the days on
which the said person is on other leaves.
(iii) The menstruating person may work from home, i.e.
work via video-conferencing, if she does not wish to avail
of the menstrual leave and if the establishment under the
aegis of the State Government or the private
establishment gives her the said facility.
(iv) The number of days of menstrual leave in an English
calendar year shall not exceed twelve days.
(v) The eligibility for availing of the menstrual leave ends
either on attaining menopause or on the employee
attaining fifty five years of age, whichever is earlier.
(vi) The unutilized monthly menstrual leave shall not be
accumulated and rolled into the subsequent months.
Explanation.- The menstruating person shall avail of the
menstrual leave only if the said person encounters serious
problems during the menstruation. The production of the
medical/doctor's certificate in this regard is not being made
mandatory, as it may cause delay,inconvenience and
complication in the procedure. A simple leave request or email
to the concerned superior authority shall suffice. The availing of
the menstrual leave should not be publicized by the higher
officers unnecessarily. Menstruating persons may avail of half a
day, one day or two days of menstrual leave, but in a
responsible way.
4.The Duties of the Government/Management/Employer.-
The State and its Instrumentalities/Management of Educational
Institutions/Employer in Private Establishments shall-
(a) Provide bio-degradable sanitary pads, menstrual cups,
tampons or such sanitary napkins, panty-liners in the separate
rest rooms at the cost of Government/Management/Employer,
23
as prescribed by the State Government and/or the Authority
constituted under Section 5 of the Act.
(b) Ensure provision of waste dust bins, tissue paper, toilet
papers, bags, envelops, newspapers for the safe, secure and
easy disposal of menstrual discharge.
(c) Meaningfully observe 28thMay as Menstrual Hygiene Day to
create the awareness about the menstrual hygiene and
sanitation and organize workshops, public talks, lectures,
seminars, discussions at the State, District and Taluka Levels for
catalyzing, inspiring and driving impactful actions for providing
menstrual health education and access to hygiene products,
period-friendly toilets, etc...
5. Constitution of the Menstrual Leave and Hygiene
Authority.- (1) The State Government shall, by notification in
the Official Gazette,establish the Authority to be known as
"Karnataka Menstrual Leave and Hygiene Authority" for carrying
out the purposes of this Act.
(2) The Authority shall consist of the following:
(a) The Chairperson of the Karnataka State Commission for
Women shall be the ex-officio Chairperson of the Authority.
(b) The Principal Secretaries of the Departments of (i) Health
and Family Welfare (ii) Women and Child Development (iii)
Education and(iv) Labour shall be the Ex-officio Members of the
Authority.
(c) Two women activists from amongst the lawyers, doctors,
trade unions, social service, who have been espousing the cause
of women, shall be nominated by the State Government as the
members of the Authority.
6. Terms and Conditions of Nominated Members of the
Authority.-
(a) The nominated members shall not be entitled to any salary.
They are entitled to sitting fees and other allowances, which
may be prescribed by the Rules to be made under the Act.
24
(b) The term of the nominated members shall be three years.
No nominated member shall be appointed consecutively for two
terms.
7. Functions of the Authority.-
(i) The Authority shall meet once in three months for the
redressal of the grievances arising from the complaints received
from the menstruating persons under the Act.
(ii) It shall be open to the Authority to take assistance from any
officer at the District level and Taluka level for the purpose of
enforcing the provisions of the Act, including holding or ordering
spot-inspections periodically, getting the reports thereon and
passing appropriate orders to ensure full compliance with the
provisions of this Act.
(iii) The Authority may issue such directions or instructions to all
the public servants within the State of Karnataka as may be
necessary for effective implementation of the provisions of this
Act and the Rules made thereunder.
(iv) The Authority may impose the penalty, as provided for
under Section 9 of the Act.
(v) The Authority shall hold the enquiry following the principles
of natural justice, giving full and equal opportunities to both
complainant and respondent.
(vi) The Authority, on holding the enquiry, may dismiss the false
complaint with or without the costs. It may exonerate the
concerned person from the allegations leveled against him,
advise or warn him.
(vii) The orders passed by the Authority shall be final.
8. Enforcement Officers for Private Establishments.- (1)
The LabourOfficer of each district shall be designated as
Enforcement Officer for the purposes of effectively implementing
the provisions of the Act and for securing the compliance with
the orders of the Authority in private establishments.
(2) The Enforcement Officer shall hold spot-inspections
periodically and give instructions to the private establishments
25
to give full effect to the provisions of the Act. He shall submit
the report of his inspection to the Authority furnishing the
particulars of the shortcomings in the implementation of the Act
in the private establishments.
(3) The Authority shall pass the necessary orders on the
Enforcement Officer's such report, if any and the same shall be
complied with by the concerned individual/officer/employer/
educational institution.
9. Penalty for violation.- Whoever intentionally denies the
menstrual leave to a menstruating person, ill-treats or
discriminates a menstruating person for availing the menstrual
leave or treats the menstruating person as an untouchable shall
be liable to pay the penal amount, as imposed by the Authority.
The Authority may impose the penalty, which may extend to
Rs.5,000/- (Rupees five thousand only) for each contravention
of provisions of the Act.
10. Protection of action taken in good faith. No suit,
prosecution or other legal proceedings shall lie against the
Karnataka Menstrual and Hygiene Authority in respect of
anything which is done in good faith or intended to be done in
pursuance of this Act and the Rules made thereunder.
11. Power of State Government to make Rules.-
The State Government may, by notification in the official
Gazette, make Rules to carry out the purposes of this Act. All
the Rules made under this Act shall be laid as soon as may be
after they are made before the State Legislative Assembly while
it is in session, for a total period of thirty days which may be
comprised in one session or in two or more sessions and if
before the expiry of that period, the State Legislative Assembly
makes any modification in the Rules or directs that any Rule
shall not have effect, the Rules shall thereafter have effect only
in such modified form or be of no effect, as the case may be.
12. Power to remove difficulties.-
(1) If any difficulty arises in giving effect to the provisions of
this Act, the Government may, by order published in the
Gazette, make provisions not inconsistent with the provisions of
26
this Act which appear to be necessary or expedient, for
removing the difficulty:
Provided that no such order shall be made after the expiry of
period of two years from the date of commencement of this Act.
(2) Every order made under this Section shall, as soon as may
be after it is made, be laid before the Karnataka State
Legislature.
13. Effect of the Act on other laws.-
The provisions of this Act and of any Rules or Orders
made thereunder shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time
being in force and the provisions of this Act shall be in addition
to and not in derogation of any other law for the time being
applicable to the Educational Institutions, services under the
aegis of the Government and the private establishments."
(Emphasis added at each instance)
10. Long before the Apex Court ruling, a Division Bench of the
High Court of Gujarat in NIRJHARI MUKUL SINHA v. UNION OF
INDIA2 highlighted the importance of menstrual process, its
awareness to adolescent girls to remove the taboo and to sensitize
every sector. The Division Bench while issuing certain directions to
prevent the exclusionary practice against women on the basis of
their menstrual status, had observed as follows:
2
R/WRIT PETITION (PIL) NO. 38 of 2020, disposed on 26-02-2021
27
".... .... ....
10. It is further submitted that the Social exclusion of
women on the basis of their menstrual status is incidental to
the proclamation of menstrual status of women. Women
have a right over their bodies. The menstrual status of a
woman is an attribute of her privacy and person.
Requiring a woman and/or following practices that
require a woman to reveal her menstrual status is
infringement of her right to privacy. She further
submitted that the exclusion affects the victimized
woman's dignity, results in denial of equal opportunities
in the fields of education, work, religion and
everydayness of life, instills a feeling of being
inadequate and unequal. Such a state of mind is likely to
affect mental health of women infringing right to health,
resulting in violation of fundamental Rights.
11. Menstruation has been stigmatised in our society.
This stigma has built up due to the traditional beliefs in
impurity of menstruating women and our unwillingness to
discuss it normally. We don't know what may have been the
reason that forced the holy men to refer to menstruating
women as "unclean". But all religious (excluding Sikhism) refer
to menstruating woman as "ritually unclean". The practices
mentioned may not be the norm in every household. The
degree of following the rules and the practices followed varies
from family to family. It depends on their beliefs and how
strongly they hold traditional practices.
12. In India, past many decades, mere mention of
the topic has been a taboo and even to this date the
cultural and social influences appear to be a hurdle for
the advancement of knowledge on the subject.
Culturally in many parts of India, menstruation is still
considered to be dirty and impure. The origin of this myth
dates back to the Vedic times and is often been linked to
Indra's slaying of Vritras. For, it has been declared in the Veda
that the guilt, of killing a brahmana- murder, appears every
month as menstrual flow as women had taken upon
themselves a part of Indra's guilt. Further, in the Hindu faith,
women are prohibited from participating in normal life while
28
menstruating. She must be "purified" before she is allowed to
return to her family and day to day chores of her life.
However, scientifically it is known that the actual cause of
menstruation is ovulation followed by missed chance of
pregnancy that results in bleeding from the endometrial
vessels and is followed by preparation of the next cycle.
Therefore, there seems no reason for this notion to persist
that menstruating women are "impure." (vide article authored
by Suneela Garg & Taru Anand)
13. Many girls and women are subject to
restrictions in their daily lives simply because they are
menstruating. Not entering the "puja" room is the major
restriction among the urban girls whereas, not entering
the kitchen is the main restriction among the rural girls
during menstruation. Menstruating girls and women are
also restricted from offering prayers and touching holy
books. The underlying basis for this myth is also the
cultural beliefs of impurity associated with
menstruation. It is further believed that menstruating
women are unhygienic and unclean and hence the food
they prepare or handle can get contaminated. According
to study by Kumar and Srivastava in 2011, the participating
women also reported that during menstruation the body emits
some specific smell or ray, which turns preserved food bad.
And, therefore, they are not allowed to touch sour foods like
pickles. However, as long as the general hygiene measures are
taken into account, no scientific test has shown menstruation
as the reason for spoilage of any food in making.
14. Such taboos about menstruation present in
many societies impact on girls' and women's emotional
state, mentality and lifestyle and most importantly,
health. Large numbers of girls in many less
economically developed countries drop out of school
when they begin menstruating. This includes over 23%
of girls in India. In addition to this, the monthly
menstruation period also creates obstacles for the
female teachers. Thus, the gender-unfriendly school
culture and infrastructure and the lack of adequate
menstrual protection alternatives and/or clean, safe
and private sanitation facilities for female teachers and
girls undermine the right of privacy. There are health
29
and hygiene issues also to consider relating to girls and
menstruation. Over 77% of menstruating girls and
women in India use an old cloth, which is often reused.
Further, 88% of women in India sometimes resort to
using ashes, newspapers, dried leaves and husk sand to
aid absorption. Poor protection and inadequate washing
facilities may increases susceptibility to infection, with
the odor of menstrual blood putting girls at risk of being
stigmatized. The latter may have significant implications
for their mental health. The challenge, of addressing the
socio-cultural taboos and beliefs in menstruation, is
further compounded by the fact the girls' knowledge
levels and understandings of puberty, menstruation,
and reproductive health are very low.
15. Having regard to the aforesaid, we propose to issue
the following directions;
(i) Prohibit social exclusion of women on the basis
of their menstrual status at all places, be it private or
public, religious or educational;
(ii) The State Government should spread
awareness among its citizens regarding social exclusion
of women on the basis of their menstrual status through
various mediums like putting up posters at public
places, including it in school curriculum, using audio
visual mediums like radio, entertainment/news
channels, short films etc. The first and foremost
strategy in this regard is raising the awareness among
the adolescent girls related to menstrual health and
hygiene. Young girls often grow up with limited
knowledge of menstruation because their mothers and
other women shy away from discussing the issues with
them. Adult women may themselves not be aware of the
biological facts or good hygienic practices, instead passing on
cultural taboos and restrictions to be observed Community
based health education campaigns could prove worthwhile in
achieving this task. There is also need to spread
awareness among the school teachers regarding
menstruation.
30
(iii) Empowerment of women through education
and increasing their role in decision-making can also aid
in this regard. Women and girls are often excluded from
decision- making due to their lower literacy levels per
se. Increasing the education status of women plays an
important role in improving the health status of the
community at large and overcoming the cultural taboos,
in particular.
(iv) Sensitization of health workers, Accredited
Social Health Activists and Anganwadi Workers
regarding menstruation biology must also be done so
that they can further disseminate this knowledge in the
community and mobilize social support against busting
menstruation related myths. Adolescent Friendly Health
Services Clinics must also have trained manpower to
address these issues.
(v) The State Government should hold campaigns,
drives, involve NGOs and other private organizations to
spread such awareness;
(vi) The State Government should include the
issue of social exclusion of women on the basis of their
menstrual status in all existing campaigns/schemes
that aims at menstrual hygiene;
(vii) The State Government should allocate necessary
funds for the implementation of the directions;
(viii) The State Government should prohibit all
educational institutions, hostels and living spaces for
women-studying working and others, private or public,
by whatever name called, from following social
exclusion of women on the basis of their menstrual
status in any manner;
(ix) The State Government should undertake surprise
checks, create appropriate mechanism and to take such other
actions, steps as may be necessary to ensure its compliance
including imposition of appropriate penalty against the erring
institution."
31
11. The Hon'ble Apex Court, in JAYA THAKUR (Dr.) v.
UNION OF INDIA3, has unequivocally recognized the significance
of menstrual health as an integral facet of the right to live with
dignity, enshrined under Article 21 of the Constitution of India. In
the said decision, the Court has expansively interpreted the right to
life so as to include menstrual health within the fold of the right to
human dignity, holding it to be a necessary and inseparable
concomitant thereof. The Apex Court has undertaken an elaborate
exposition on the dimensions of menstrual health, workplace equity,
and the necessity of recognizing menstrual health and hygiene as a
component of substantive dignity. The Apex Court has held as
follows:
"....... ........ ........
C. The right to dignified menstrual health a part of Article
21
i. The right to human dignity as a concomitant of the right
to life
69. The right to life under Article 21 means a life with dignity.
This Court, in a catena of decisions, has consistently recognized
that dignity is an essential and inseparable facet of the right to
life and liberty. The right to life means more than mere survival.
3
2026 SCC OnLine SC 133
32
Every human possesses inherent dignity by virtue of being
human, which enables the individual to make self-determining
choices. This Court has recognized dignity to be intrinsic and
inalienable continuing beyond biological existence.
70. When we recognize dignity as forming a significant part of
human existence, we acknowledge the value of life. Dignity
makes life livable. There is no gainsaying to the fact that the right
to a dignified existence secures decisional autonomy, enabling an
individual to transform life from mere subsistence into a
meaningful endeavour. Dignity inheres in every stage and every
aspect of human existence. As a result, the Constitution protects
an individual's expectation that dignity will be preserved and
respected throughout their life.
71. In this regard, we shall refer to the decision in K.S.
Puttaswamy (Privacy-9 J.) v. Union of India, reported in (2017)
10 SCC 1, wherein this Court categorically held that dignity is an
integral part of the Constitution, and its reflections are
found in Articles 14, 19, and 21, respectively. This Court
noted that dignity can neither be given nor taken away. It held
that there is a positive obligation on the State to not only protect
one's dignity but also take steps to facilitate it. It was observed
that dignity ties all the fundamental rights together. The relevant
observations read thus:--
"Jurisprudence on dignity
108. Over the last four decades, our constitutional jurisprudence
has recognised the inseparable relationship between protection
of life and liberty with dignity. Dignity as a constitutional value
finds expression in the Preamble. The constitutional vision seeks
the realisation of justice (social, economic and political); liberty
(of thought, expression, belief, faith and worship); equality (as a
guarantee against arbitrary treatment of individuals) and
fraternity (which assures a life of dignity to every individual).
These constitutional precepts exist in unity to facilitate a
humane and compassionate society. The individual is the focal
point of the Constitution because it is in the realisation of
individual rights that the collective well-being of the community
is determined. Human dignity is an integral part of
the Constitution. Reflections of dignity are found in the
guarantee against arbitrariness (Article 14), the lamps of
33
freedom (Article 19) and in the right to life and personal liberty
(Article 21).
xxx
113. Human dignity was construed in M. Nagaraj v. Union of
India [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007)
1 SCC (L&S) 1013] by a Constitution Bench of this Court to
be intrinsic to and inseparable from human existence.
Dignity, the Court held, is not something which is
conferred and which can be taken away, because it is
inalienable : (SCC pp. 243 & 247-48, paras 26 & 42)
"26. ... The rights, liberties and freedoms of the individual are not
only to be protected against the State, they should be facilitated
by it. ... It is the duty of the State not only to protect the human
dignity but to facilitate it by taking positive steps in that
direction. No exact definition of human dignity exists. It refers to
the intrinsic value of every human being, which is to be
respected. It cannot be taken away. It cannot give (sic be given).
It simply is. Every human being has dignity by virtue of his
existence. ...
***
42. India is constituted into a sovereign, democratic republic to
secure to all its citizens, fraternity assuring the dignity of the
individual and the unity of the nation. The sovereign, democratic
republic exists to promote fraternity and the dignity of the
individual citizen and to secure to the citizens certain rights. This
is because the objectives of the State can be realised only in and
through the individuals. Therefore, rights conferred on citizens
and non-citizens are not merely individual or personal rights.
They have a large social and political content, because the
objectives of the Constitution cannot be otherwise realised.”
(emphasis supplied)
119. To live is to live with dignity. The draftsmen of
the Constitution defined their vision of the society in
which constitutional values would be attained by
emphasising, among other freedoms, liberty and dignity.
So fundamental is dignity that it permeates the core of
the rights guaranteed to the individual by Part III. Dignity
is the core which unites the fundamental rights because
the fundamental rights seek to achieve for each individual
the dignity of existence. Privacy with its attendant values
assures dignity to the individual and it is only when life
can be enjoyed with dignity can liberty be of true
substance. Privacy ensures the fulfilment of dignity and is
34
a core value which the protection of life and liberty is
intended to achieve.”
(Emphasis supplied)
72. In Common Cause v. Union of India, reported in (2018) 5
SCC 1, Chandrachud, J., opined that the Constitution protects
the legitimate expectation of a person to live a life with
dignity. The relevant observations read thus:–
“437. Under our Constitution, the inherent value which sanctifies
life is the dignity of existence. Recognising human dignity is
intrinsic to preserving the sanctity of life. Life is truly sanctified
when it is lived with dignity. There exists a close relationship
between dignity and the quality of life. For, it is only when life
can be lived with a true sense of quality that the dignity of
human existence is fully realised. Hence, there should be no
antagonism between the sanctity of human life on the one hand
and the dignity and quality of life on the other hand. Quality of
life ensures dignity of living and dignity is but a process in
realising the sanctity of life.
438. Human dignity is an essential element of a
meaningful existence. A life of dignity comprehends all
stages of living including the final stage which leads to
the end of life. Liberty and autonomy are essential
attributes of a life of substance. It is liberty which
enables an individual to decide upon those matters which
are central to the pursuit of a meaningful existence. The
expectation that the individual should not be deprived of
his or her dignity in the final stage of life gives expression
to the central expectation of a fading life : control over
pain and suffering and the ability to determine the
treatment which the individual should receive. When
society assures to each individual a protection against
being subjected to degrading treatment in the process of
dying, it seeks to assure basic human dignity. Dignity
ensures the sanctity of life. The recognition afforded to
the autonomy of the individual in matters relating to end-
of-life decisions is ultimately a step towards ensuring that
life does not despair of dignity as it ebbs away.
xxx
518. Constitutional recognition of the dignity of existence as an
inseparable element of the right to life necessarily means that
dignity attaches throughout the life of the individual. Every
35individual has a constitutionally protected expectation that the
dignity which attaches to life must subsist even in the
culminating phase of human existence. Dignity of life must
encompass dignity in the stages of living which lead up to the
end of life. Dignity in the process of dying is as much a part of
the right to life under Article 21. To deprive an individual of
dignity towards the end of life is to deprive the individual of a
meaningful existence. Hence, the Constitution protects the
legitimate expectation of every person to lead a life of dignity
until death occurs;”
(Emphasis supplied)
73. Recently, in Gaurav Kumar v. Union of India, reported
in (2025) 1 SCC 641, wherein one of us, J.B. Pardiwala, J., was a
part of the Bench, this Court elucidated the importance of dignity
in achieving substantive equality. This Court held that dignity
encompasses the right of the individual to develop their
potential to the fullest. The relevant observations read thus:–
“99. Dignity is crucial to substantive equality. The dignity
of an individual encompasses the right of the individual to
develop their potential to the fullest. [K.S. Puttaswamy
(Privacy-9 J.) v. Union of India, (2017) 10 SCC 1, para
525] The right to pursue a profession of one’s choice and
earn livelihood is integral to the dignity of an individual.
Charging exorbitant enrolment fees and miscellaneous
fees as a precondition for enrolment creates a barrier to
entry into the legal profession. The levy of exorbitant fees
as a precondition to enrolment serves to denigrate the
dignity of those who face social and economic barriers in
the advancement of their legal careers. [See Neil Aurelio
Nunes (OBC Reservation) v. Union of India, (2022) 4 SCC
1, para 35] This effectively perpetuates systemic
discrimination against persons from marginalised and
economically weaker sections by undermining their equal
participation in the legal profession. Therefore, the
current enrolment fee structure charged by SBCs is
contrary to the principle of substantive equality.”
(Emphasis supplied)
74. In our considered view, MHM measures are inseparable
from the right to live with dignity under Article 21. We say
so because dignity cannot be reduced to an abstract ideal,
it must find expression in conditions that enable
36
individuals to live without humiliation, exclusion, or
avoidable suffering. For menstruating girl children, the
inaccessibility of MHM measures subjects them to stigma,
stereotyping, and humiliation.
75. The absence of safe and hygienic menstrual
management measures undermines dignified existence by
compelling the adolescent female students to either resort
to absenteeism or adopt unsafe practices, or both, which
violates the bodily autonomy of the menstruating girl
children.
ii. The right to privacy and decisional autonomy
76. Dignity cannot be assured without privacy. Privacy is
one of the rights that are inherent in a human being by
virtue of mere existence. Being a natural right, it inures
every individual irrespective of their caste, class, gender,
or any other similar differentiating ground. Privacy enables
each individual to make choices and take decisions in respect of
intimate and personal matters, free from interference. It is this
conception of natural and inalienable right that secures the
autonomy of human being.
77. In Puttaswamy (supra), this Court held the right to privacy
to be a constitutionally protected right under Article 21. It
recognized privacy as a natural right which is inherent in a
human and not bestowed by the State. It was observed
that privacy ensures the fulfilment of dignity and is a core
value which protection of life and liberty has intended to
achieve. In furtherance of this constitutional protection,
the Court held that it is the duty of the State to safeguard
the autonomy of an individual. The relevant observations read
thus:–
“G. Natural and inalienable rights
42. Privacy is a concomitant of the right of the individual to
exercise control over his or her personality. It finds an origin in
the notion that there are certain rights which are natural to or
inherent in a human being. Natural rights are inalienable
37because they are inseparable from the human personality. The
human element in life is impossible to conceive without the
existence of natural rights. In 1690, John Locke had in his
Second Treatise of Government observed that the lives, liberties
and estates of individuals are as a matter of fundamental natural
law, a private preserve. The idea of a private preserve was to
create barriers from outside interference. In 1765, William
Blackstone in his Commentaries on the Laws of England spoke of
a “natural liberty”. There were, in his view, absolute rights which
were vested in the individual by the immutable laws of nature.
These absolute rights were divided into rights of personal
security, personal liberty and property. The right of personal
security involved a legal and uninterrupted enjoyment of life,
limbs, body, health and reputation by an individual.
xxx
46. Natural rights are not bestowed by the State. They
inhere in human beings because they are human. They
exist equally in the individual irrespective of class or
strata, gender or orientation.
xxx
118. Life is precious in itself. But life is worth living because of
the freedoms which enable each individual to live life as it should
be lived. The best decisions on how life should be lived are
entrusted to the individual. They are continuously shaped by the
social milieu in which individuals exist. The duty of the State is
to safeguard the ability to take decisions — the autonomy of the
individual — and not to dictate those decisions. “Life” within the
meaning of Article 21 is not confined to the integrity of the
physical body. The right comprehends one’s being in its fullest
sense. That which facilitates the fulfilment of life is as much
within the protection of the guarantee of life.
xxx
320. Privacy is a constitutionally protected right which emerges
primarily from the guarantee of life and personal liberty in
Article 21 of the Constitution. Elements of privacy also arise in
varying contexts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained
in Part III.”
(Emphasis supplied)
78. Bobde, J., in his concurring opinion in Puttaswamy (supra),
stated that privacy is a prerequisite for the exercise of
liberty and the freedom to perform any activity.
Consequently, the absence of privacy denies an individual
38
the freedom to exercise that particular liberty or to
undertake such activity. Similarly, Nariman, J., recognized the
privacy of choice as an individual’s autonomy over fundamental
choices.
79. As a sequitur, autonomy is a concomitant of privacy. We
say so because privacy is founded on the autonomy of an
individual. At the same time, dignity cannot exist without
privacy. In Puttaswamy (supra), this Court defined
autonomy as “the ability to make decision on vital matters
of concern to life”. While lucidly elucidating facets of
privacy, this Court recognized an individual’s authority to
make decisions as regards their body and mind. Further,
while identifying the various facets of privacy, the Court
recognized decisional privacy to mean the ability of an
individual to make intimate decisions, including those
relating to sexual autonomy. The relevant observations read
thus:–
“297. What, then, does privacy postulate? Privacy postulates
the reservation of a private space for the individual,
described as the right to be let alone. The concept is
founded on the autonomy of the individual. The ability of
an individual to make choices lies at the core of the
human personality. The notion of privacy enables the
individual to assert and control the human element which
is inseparable from the personality of the individual. The
inviolable nature of the human personality is manifested
in the ability to make decisions on matters intimate to
human life. The autonomy of the individual is associated
over matters which can be kept private. These are
concerns over which there is a legitimate expectation of
privacy. The body and the mind are inseparable elements
of the human personality. The integrity of the body and
the sanctity of the mind can exist on the foundation that
each individual possesses an inalienable ability and right
to preserve a private space in which the human
personality can develop. Without the ability to make choices,
the inviolability of the personality would be in doubt.
Recognising a zone of privacy is but an acknowledgment that
each individual must be entitled to chart and pursue the course
of development of personality. Hence privacy is a postulate of
human dignity itself. Thoughts and behavioural patterns which
are intimate to an individual are entitled to a zone of privacy
39where one is free of social expectations. In that zone of privacy,
an individual is not judged by others. Privacy enables each
individual to take crucial decisions which find expression in the
human personality. It enables individuals to preserve their
beliefs, thoughts, expressions, ideas, ideologies, preferences and
choices against societal demands of homogeneity. Privacy is an
intrinsic recognition of heterogeneity, of the right of the
individual to be different and to stand against the tide of
conformity in creating a zone of solitude. Privacy protects the
individual from the searching glare of publicity in matters which
are personal to his or her life. Privacy attaches to the person and
not to the place where it is associated. Privacy constitutes the
foundation of all liberty because it is in privacy that the
individual can decide how liberty is best exercised. Individual
dignity and privacy are inextricably linked in a pattern woven out
of a thread of diversity into the fabric of a plural culture.
298. Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an
intrinsic value, human dignity is an entitlement or a
constitutionally protected interest in itself. In its instrumental
facet, dignity and freedom are inseparably intertwined, each
being a facilitative tool to achieve the other. The ability of the
individual to protect a zone of privacy enables the realisation of
the full value of life and liberty. Liberty has a broader meaning
of which privacy is a subset. All liberties may not be exercised in
privacy. Yet others can be fulfilled only within a private space.
Privacy enables the individual to retain the autonomy of the
body and mind. The autonomy of the individual is the ability to
make decisions on vital matters of concern to life. Privacy has
not been couched as an independent fundamental right. But that
does not detract from the constitutional protection afforded to it,
once the true nature of privacy and its relationship with those
fundamental rights which are expressly protected is understood.
Privacy lies across the spectrum of protected freedoms. […]
Above all, the privacy of the individual recognises an inviolable
right to determine how freedom shall be exercised. […] Read in
conjunction with Article 21, liberty enables the individual to have
a choice of preferences on various facets of life including what
and how one will eat, the way one will dress, the faith one will
espouse and a myriad other matters on which autonomy and
self-determination require a choice to be made within the
privacy of the mind. […] Dignity cannot exist without privacy.
Both reside within the inalienable values of life, liberty and
freedom which the Constitution has recognised. Privacy is the
ultimate expression of the sanctity of the individual. It is a
40constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of
choice and self-determination.”
(Emphasis supplied)
80. In this regard, in Common Cause (supra), this Court held
thus:–
“441. The protective mantle of privacy covers certain decisions
that fundamentally affect the human life cycle. [Richard
Delgado, “Euthanasia Reconsidered — The Choice of Death as an
Aspect of the Right of Privacy”, Arizona Law Review (1975), Vol.
17, at p. 474.] It protects the most personal and intimate
decisions of individuals that affect their life and development.
[Ibid.] Thus, choices and decisions on matters such as
procreation, contraception and marriage have been held to be
protected. While death is an inevitable end in the trajectory of
the cycle of human life of individuals are often faced with choices
and decisions relating to death. Decisions relating to death, like
those relating to birth, sex, and marriage, are protected by
the Constitution by virtue of the right of privacy. The right to
privacy resides in the right to liberty and in the respect of
autonomy. [T.L. Beauchamp, “The Right to Privacy and the Right
to Die”, Social Philosophy and Policy (2000), Vol. 17, at p. 276.]
The right to privacy protects autonomy in making decisions
related to the intimate domain of death as well as bodily
integrity.[…]”
(Emphasis supplied)
81. As explained in the aforementioned paragraphs of this
judgment, the right to equality does not merely mandate
that the State refrains from discrimination but also obliges
it to adopt positive and affirmative measures aimed at
remedying existing structural disadvantage. Likewise,
in Puttaswamy (supra), this Court recognized that privacy has
both positive and negative dimensions. In its positive aspect, it
imposes an obligation on the State to take all necessary measures
to protect the privacy of the individual.
82. What emerges from the foregoing discussion is that a
girl child’s expectation to manage her menstruation in
privacy with dignity is legitimate. In such circumstances,
the lack of resources cannot be permitted to govern her
41
autonomy over her own body. There is no doubt that she
possesses the right to decide how and where menstrual
care is carried out, and the liberty to exercise such care,
free from coercive practices and social restrictions.
83. It is apposite to understand that menstrual hygiene
management is not confined to sanitation, it includes
bodily autonomy and decisional freedom. The denial of
adequate facilities, appropriate sanitary products, or
privacy effectively compels a girl child to manage her body
in a manner dictated by circumstance rather than choice.
Autonomy can be meaningfully exercised only when girl
children have access to functional toilets, adequate
menstrual products, availability of water, and hygienic
mechanisms for disposal.
iii. The right to menstrual health as a facet of the right to
life
84. The aforesaid may be looked at from one another angle.
Article 21 recognizes the right to health. Health is defined
as a state of physical, mental, and social well-being and
not merely the absence of disease or infirmity. By
necessary implication, this right will impliedly extend to
the right of a menstruating girl child to access MHM
practices to attain the highest standard of sexual and
reproductive health. They are intertwined in such a manner
that one cannot survive without the other. The right to
reproductive health implies that an adolescent female
student should have access to safe, effective, and
affordable MHM measures.
85. There is a legion of decisions of this Court which lays
down that the right to health is an integral facet of the
meaningful right to life under Article 21 of
the Constitution, and obligations of the State in this
regard. We need not discuss all the decisions, but rather intend
to refer and rely upon only a few of them.
86. We may refer with profit the decision in Lakshmi Kant
Pandey v. Union of India, reported in (1984) 2 SCC 244, wherein
42
this Court highlighted the centrality of children to the nation’s
growth and development. It was observed that the framers of
the Constitution were conscious of the inherent
vulnerability of children and hence, reflected in Article
15(3). The relevant observations read thus:–
“6. It is obvious that in a civilized society the importance of child
welfare cannot be over-emphasized, because the welfare of the
entire community, its growth and development, depend on the
health and well-being of its children. Children are a “supremely
important national asset” and the future well-being of the nation
depends on how its children grow and develop. The great poet
Milton put it admirably when he said: “Child shows the man as
morning shows the day” and the Study Team on Social Welfare
said much to the same effect when it observed that “the physical
and mental health of the nation is determined largely by the
manner in which it is shaped in the early stages”. The child is a
soul with a being, a nature and capacities of its own, who must
be helped to find them, to grow into their maturity, into fullness
of physical and vital energy and the utmost breath, depth and
height of its emotional, intellectual and spiritual being; otherwise
there cannot be a healthy growth of the nation. Now obviously
children need special protection because of their tender age and
physique, mental immaturity and incapacity to look after
themselves. That is why there is a growing realisation in every
part of the globe that children must be brought up in an
atmosphere of love and affection and under the tender care and
attention of parents so that they may be able to attain full
emotional, intellectual and spiritual stability and maturity and
acquire self- confidence and self-respect and a balanced view of
life with full appreciation and realisation of the role which they
have to play in the nation building process without which the
nation cannot develop and attain real prosperity because a large
segment of the society would then be left out of the
developmental process. In India this consciousness is reflected
in the provisions enacted in the Constitution. clause (3) of Article
15 enables the State to make special provisions inter alia for
children and Article 24 provides that no child below the age of
fourteen years shall be employed to work in any factory or mine
or engaged in any other hazardous employment. Clauses (e) and
(f) of Article 39 provide that the State shall direct its policy
towards securing inter alia that the tender age of children is not
abused, that citizens are not forced by economic necessity to
enter avocations unsuited to their age and strength and that
children are given facility to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth
43are protected against exploitation and against moral and
material abandonment. These constitutional provisions reflect
the great anxiety of the Constitution makers to protect and
safeguard the interest and welfare of children in the country.
The Government of India has also in pursuance of these
constitutional provisions evolved a National Policy for the
Welfare of Children. This Policy starts with a goal-oriented
preambulatory introduction:
“The nation’s children are a supremely important asset. Their
nurture and solicitude are our responsibility. Children’s
programme should find a prominent part in our national plans for
the development of human resources, so that our children grow
up to become robust citizens, physically fit, mentally alert and
morally healthy, endowed with the skills and motivations needed
by society. Equal opportunities for development to all children
during the period of growth should be our aim, for this would
serve our larger purpose of reducing inequality and ensuring
social justice.”
The National Policy sets out the measures which the Government
of India proposes to adopt towards attainment of the objectives
set out in the preambulatory introduction and they include
measures designed to protect children against neglect, cruelty
and exploitation and to strengthen family ties “so that full
potentialities of growth of children are realised within the normal
family neighbourhood and community environment”. The
National Policy also lays down priority in programme formation
and it gives fairly high priority to maintenance, education and
training of orphan and destitute children. There is also provision
made in the National Policy for Constitution of a National
Children’s Board and pursuant to this provision, the Government
of India has constituted the National Children’s Board with the
Prime Minister as the chair-person. It is the function of the
National Children’s Board to provide a focus for planning and
review and proper co-ordination of the multiplicity of services
striving to meet the needs of children and to ensure at different
levels continuous planning, review and co-ordination of all the
essential services. The National Policy also stresses the vital role
which the voluntary organisations have to play in the field of
education, health, recreation and social welfare services for
children and declares that it shall be the endeavour of State to
encourage and strengthen such voluntary organisations.”
(Emphasis supplied)
44
87. In a petition filed under Article 32, issues arising from
occupational health hazards and diseases affecting workmen
employed in asbestos industries fell for consideration before this
Court in Consumer Education & Research Centre v. Union of
India, reported in (1995) 3 SCC 42. A three Judge Bench of this
Court held that the right to health of a workman is an
integral facet of the meaningful right to life. It
encompasses not only healthy existence but also a robust
and healthy lifestyle. This Court held that the right to
health and medical care is a fundamental right under
Article 21 read with Articles 39(e), 41 and 43 of
the Constitution respectively, insofar as the life of the
workman is considered to make it meaningful and
dignified. It was further held that the State is under an
obligation to promote health of a workman. The relevant
observations read thus:–
“20. Article 1 of the Universal Declaration of Human Rights
asserts human sensitivity and moral responsibility of every State
that “all human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should
act towards one another in a spirit of brotherhood.” The Charter
of the United Nations thus reinforces the faith in fundamental
human rights and in the dignity and worth of human person
envisaged in the Directive Principles of State Policy as part of
the Constitution. The jurisprudence of personhood or philosophy
of the right to life envisaged under Article 21, enlarges its sweep
to encompass human personality in its full blossom with
invigorated health which is a wealth to the workman to earn his
livelihood, to sustain the dignity of person and to live a life with
dignity and equality.
xxx
23. In Sunil Batra v. Delhi Admn., [(1978) 4 SCC 494 : 1979
SCC (Cri) 155], considering the effect of solitary confinement of
a prisoner sentenced to death and the meaning of the word ‘life’
enshrined under Article 21, the Constitution Bench held that the
quality of life covered by Article 21 is something more than the
dynamic meaning attached to life and liberty. The same view
was reiterated in Board of Trustees of the Port of
Bombay v. D.R. Nadkarni [(1983) 1 SCC 124 : 1983 SCC (L&S)
61], Vikram Deo Singh Tomar v. State of Bihar [1988 Supp SCC
734 : 1989 SCC (Cri) 66], Ramsharan Autyanuprasi v. Union of
India [1989 Supp (1) SCC 251]. In Charles Sobraj v. Supdt.,
Central Jail, Tihar [(1978) 4 SCC 104 : 1978 SCC (Cri) 542 : AIR
451978 SC 1514] this Court held that the right to life includes right
to human dignity. The right against torture, cruel or unusual
punishment or degraded treatment was held to violate the right
to life. In Bandhua Mukti Morcha v. Union of India [(1984) 3 SCC
161 : 1984 SCC (L&S) 389] at pp. 183-84 this Court held that
the right to live with human dignity, enshrined in Article 21,
derives its life-breath from the Directive Principles of State Policy
and particularly clauses (e) and (f) of Article 39 and Articles 41
and 42. In C.E.S.C. Ltd. v. Subhash Chandra Bose [(1992) 1
SCC 441 : 1992 SCC (L&S) 313] this Court considered the
gamut of operational efficacy of human rights and constitutional
rights, the right to medical aid and health and held that the right
to social justice are fundamental rights. Right to free legal aid to
the poor and indigent worker was held to be a fundamental right
in Khatri (II) v. State of Bihar [(1981) 1 SCC 627 : 1981 SCC
(Cri) 228]. Right to education was held to be a fundamental
right vide Maharashtra State Board of Secondary & Higher
Secondary Education v. K.S. Gandhi [(1991) 2 SCC 716]
and Unni Krishnan, J.P. v. State of A.P. [(1993) 1 SCC 645]
24. The right to health to a worker is an integral facet of
meaningful right to life, to have not only a meaningful
existence but also robust health and vigour without which
worker would lead life of misery. Lack of health denudes
him of his livelihood. Compelling economic necessity to
work in an industry exposed to health hazards due to
indigence to bread-winning for himself and his
dependants, should not be at the cost of the health and
vigour of the workman. Facilities and opportunities, as
enjoined in Article 38, should be provided to protect the
health of the workman. Provision for medical test and
treatment invigorates the health of the worker for higher
production or efficient service. Continued treatment, while in
service or after retirement is a moral, legal and constitutional
concomitant duty of the employer and the State. Therefore, it
must be held that the right to health and medical care is a
fundamental right under Article 21 read with
Articles 39(e), 41 and 43 of the Constitution and make the life of
the workman meaningful and purposeful with dignity of person.
Right to life includes protection of the health and strength
of the worker and is a minimum requirement to enable a
person to live with human dignity. The State, be it Union
or State Government or an industry, public or private, is
enjoined to take all such actions which will promote
health, strength and vigour of the workman during the
period of employment and leisure and health even after
46
retirement as basic essentials to live the life with health
and happiness. The health and strength of the worker is
an integral facet of right to life. Denial thereof denudes
the workman the finer facets of life violating Article 21.
The right to human dignity, development of personality,
social protection, right to rest and leisure are
fundamental human rights to a workman assured by the
Charter of Human Rights, in the Preamble and
Articles 38 and 39 of the Constitution. Facilities for medical
care and health to prevent sickness ensures stable manpower
for economic development and would generate devotion to duty
and dedication to give the workers’ best physically as well as
mentally in production of goods or services. Health of the
worker enables him to enjoy the fruits of his labour,
keeping him physically fit and mentally alert for leading a
successful life, economically, socially and culturally.
Medical facilities to protect the health of the workers are,
therefore, the fundamental and human rights to the
workmen.
25. Therefore, we hold that right to health, medical aid to
protect the health and vigour of a worker while in service or
post-retirement is a fundamental right under Article 21, read
with Articles 39(e), 41, 43, 48-A and all related articles and
fundamental human rights to make the life of the workman
meaningful and purposeful with dignity of person.”
(Emphasis supplied)
88. In Devika Biswas v. Union of India, reported in (2016) 10
SCC 726, a petition before this Court raised issues, inter alia,
regarding the conduct and management of sterilization
procedures, more particularly, the death occurring
therefrom. In this regard, the Court held that the right to
reproductive health encompasses the right to make all
allied decisions and to attain the highest standards of
reproductive health. The relevant observations read thus:–
“(i) Right to health
107. It is well established that the right to life under Article 21 of
the Constitution includes the right to lead a dignified and
meaningful life and the right to health is an integral facet of this
right. In CESC Ltd. v. Subhash Chandra Bose [CESC
Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441 : 1992 SCC
47(L&S) 313] dealing with the right to health of workers, it was
noted that the right to health must be considered an aspect of
social justice informed by not only Article 21 of the Constitution,
but also the Directive Principles of State Policy and international
covenants to which India is a party. Similarly, the bare minimum
obligations of the State to ensure the preservation of the right to
life and health were enunciated in Paschim Banga Khet Mazdoor
Samity v. State of W.B. [Paschim Banga Khet Mazdoor
Samity v. State of W.B., (1996) 4 SCC 37]
108. In Bandhua Mukti Morcha v. Union of India [Bandhua Mukti
Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S)
389] this Court underlined the obligation of the State to ensure
that the fundamental rights of weaker sections of society are not
exploited owing to their position in society.
xxx
(ii) Right to reproductive health
110. Over time, there has been recognition of the need to
respect and protect the reproductive rights and
reproductive health of a person. Reproductive health has
been defined as “the capability to reproduce and the
freedom to make informed, free and responsible
decisions. It also includes access to a range of
reproductive health information, goods, facilities and
services to enable individuals to make informed, free and
responsible decisions about their reproductive behaviour”.
[WHO, Sexual Health, Human Rights and the Law (2015) cited
from Committee on Economic, Social and Cultural Rights,
General Comment No. 22 (2016) on the Right to Sexual and
Reproductive Health (Article 12 of the International Covenant on
Economic, Social and Cultural Rights), 2-5-2016, E/C.12/GC/22
at para 6 https://documents-dds-
ny.un.org/doc/UNDOC/GEN/G16/089/32/PDF/G16
08932.pdf?OpenElement.] The Committee on Economic, Social
and Cultural Rights in General Comment No. 22 on the Right to
Sexual and Reproductive Health under Article 12 of the
International Covenant on Economic, Social and Cultural Rights
[India ratified this Convention on 10-4-1979.] observed that
“The right to sexual and reproductive health is an integral part of
the right of everyone to the highest attainable physical and
mental health.” [General Comment No. 22 (2016) on the Right
to Sexual and Reproductive Health (Article 12 of the
International Covenant on Economic, Social and Cultural Rights),
E/C.12/GC/22 https://documents-dds-ny.un.org/doc/UNDOC/
GEN/G16/089/32/PDF/G1608932.pdf?OpenElement.]
48
111. This Court recognised reproductive rights as an aspect of
personal liberty under Article 21 of the Constitution in Suchita
Srivastava v. Chandigarh Admn. [Suchita
Srivastava v. Chandigarh Admn., (2009) 9 SCC 1 : (2009) 3
SCC (Civ) 570] The freedom to exercise these reproductive
rights would include the right to make a choice regarding
sterilisation on the basis of informed consent and free from any
form of coercion. f…]
112. It is necessary to reconsider the impact that policies such
as the setting of informal targets and provision of incentives by
the Government can have on the reproductive freedoms of the
most vulnerable groups of society whose economic and social
conditions leave them with no meaningful choice in the matter
and also render them the easiest targets of coercion. The cases
of Paschim Banga Khet Mazdoor Samity [Paschim Banga Khet
Mazdoor Samity v. State of W.B., (1996) 4 SCC 37] and
Bandhua Mukti Morcha [Bandhua Mukti Morcha v. Union of
India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389] have
emphasised that the State’s obligation in respect of fundamental
rights must extend to ensuring that the rights of the weaker
sections of the community are not exploited by virtue of their
position. Thus, the policies of the Government must not mirror
the systemic discrimination prevalent in society but must be
aimed at remedying this discrimination and ensuring substantive
equality. In this regard, it is necessary that the policies and
incentive schemes are made gender neutral and the
unnecessary focus on female sterilisation is discontinued.”
(Emphasis supplied)
89. The views expressed by this Court in Independent
Thought v. Union of India, reported in (2017) 10 SCC 800, are
commendable. It held that the concept of good health is not
limited to physical well-being but rather a girl child’s right
to grow into a healthy woman, to exercise choice, and to
pursue education. It was observed that when a girl child is
deprived of the opportunity to study further, her right to
live a dignified life as a woman is also violated. The Court
further emphasized that a girl child must not only be
afforded equality of opportunity with a male child, but
49
must also be provided with additional support, so as to
enable her empowerment physically, mentally, and
economically. The relevant observations read as under:–
“179. There can be no dispute that every citizen of this country
has the right to get good healthcare. Every citizen can expect
that the State shall make best endeavours for ensuring that the
health of the citizen is not adversely affected. By now it is well
settled by a catena of judgments of this Court that the “right to
life” envisaged in Article 21 of the Constitution of India is not
merely a right to live an animal existence. This Court has
repeatedly held that right to life means a right to live with
human dignity. Life should be meaningful and worth living. Life
has many shades. Good health is the raison d’être of a good
life. Without good health there cannot be a good life. In
the case of a minor girl child good health would mean her
right to develop as a healthy woman. This not only
requires good physical health but also good mental
health. The girl child must be encouraged to bloom into a
healthy woman. The girl child must not be deprived of her
right of choice. The girl child must not be deprived of her
right to study further. When the girl child is deprived of
her right to study further, she is actually deprived of her
right to develop into a mature woman, who can earn
independently and live as a self-sufficient independent
woman. In the modern age, when we talk of gender
equality, the girl child must be given equal opportunity to
develop like a male child. In fact, in my view, because of
the patriarchal nature of our society, some extra benefit
must be showered upon the girl child to ensure that she is
not deprived of her right to life, which would include her
right to grow and develop physically, mentally and
economically as an independent self-sufficient female
adult.”
(Emphasis supplied)
90. A three Judge Bench of this Court in X2 v. State (NCT of
Delhi), reported in (2023) 9 SCC 433, wherein one of us, J.B.
Pardiwala, J., was part of the Bench, held that the right to
decide on all matters relating to sexual and reproductive
health is one flower in the bouquet of reproductive rights.
It held that reproductive rights include the right to access
education and information about sexual health. The relevant
observations read thus:–
50
“101. The ambit of reproductive rights is not restricted to
the right of women to have or not have children. It also
includes the constellation of freedoms and entitlements
that enable a woman to decide freely on all matters
relating to her sexual and reproductive health.
Reproductive rights include the right to access education
and information about contraception and sexual health,
the right to decide whether and what type of
contraceptives to use, the right to choose whether and
when to have children, the right to choose the number of
children, the right to access safe and legal abortions, and
the right to reproductive healthcare. Women must also
have the autonomy to make decisions concerning these
rights, free from coercion or violence.”
(Emphasis supplied)
91. It is limpid that when a girl child cannot access
menstrual absorbents, she may resort to natural materials,
newspaper, cloth, tissue, cotton wool, or any other
unhygienic absorbent. In case of a lack of adequate clean
water and soap, she may also struggle to properly clean
and dry herself. It is not unknown that poor menstrual
hygiene may cause reproductive tract infections such as
bacterial vaginosis, which may in turn lead to infertility.
92. Lack of knowledge about menstruation may lead to
unhygienic and negative practices. This lack of body
literacy contributes to a feeling of lack of bodily autonomy,
more particularly, with regards to reproductive choices.
93. The above conspectus of cases reveals that the State
bears a positive obligation under Article 21 to protect the
right to health, more particularly, the menstrual health of
girl children. The State is required to undertake effective
measures to ensure the availability of, and enhance access
to MHM products. We say so because the lack of access to
such products impedes the physical well-being, dignity,
and overall development of menstruating girl children.
94. It is an admitted position that the lack of access to
MHM violates the right to reproductive health, as it
51
compels girl children to resort to unhygienic alternatives
such as rags or cloth, or use of menstrual absorbents for
prolonged periods, all of which have demonstrably adverse
consequences for their health. In schools where there are
no separate washrooms for girl students, they would have
to use male washrooms or the one which is used by all the
students, where they are prone to harassment or sexual
assault.
95. In such circumstances referred to above, it is the duty of
the State to ensure the availability of MHM measures flows
from the positive obligation embodied in Article 15(3) of
the Constitution. The Constitution expressly contemplates
discrimination in favour of women and children, having due
regard to their vulnerability, in order to safeguard their
welfare and interests. This constitutional intent is also
reflected in Articles 24 and 39(e) and (f) of
the Constitution, respectively.
96. It would be worthwhile to refer to the observations made by
this Court in State of A.P. v. P.B. Vijaykumar, reported in (1995)
4 SCC 520, wherein this Court had the occasion to interpret the
expression “any special provision for women” in Article 15(3) of
the Constitution. In such circumstances, it was observed
that the object of the clause is to strengthen and improve
the status of women. The Court held that the special
provision referred in Article 15(3) could be either in the
form of affirmative action or reservation.
“7. The insertion of clause (3) of Article 15 in relation to women
is a recognition of the fact that for centuries, women of this
country have been socially and economically handicapped. As a
result, they are unable to participate in the socio-economic
activities of the nation on a footing of equality. It is in order to
eliminate this socio-economic backwardness of women and to
empower them in a manner that would bring about effective
equality between men and women that Article 15(3) is placed in
Article 15. Its object is to strengthen and improve the status of
women.[…]
8. What then is meant by “any special provision for women” in
Article 15(3)? This “special provision”, which the State may
52make to improve women’s participation in all activities under the
supervision and control of the State can be in the form of either
affirmative action or reservation. It is interesting to note that the
same phraseology finds a place in Article 15(4) which deals with
any special provision for the advancement of any socially or
educationally backward class of citizens or Scheduled Castes or
Scheduled Tribes.[…]This Court has, therefore, clearly considered the scope of Article
15(4) as wider than Article 16(4) covering within it several kinds
of positive action programmes in addition to reservations. It has,
however, added a word of caution by reiterating M.R. Balaji
[1963 Supp 1 SCR 439 : AIR 1963 SC 649] to the effect that a
special provision contemplated by Article 15(4) like reservation
of posts and appointments contemplated by Article 16(4), must
be within reasonable limits. These limits of reservation have
been broadly fixed at 50% at the maximum. The same
reasoning would apply to Article 15(3) which is worded similarly.
(Emphasis supplied)
97. The State’s obligation is heightened insofar as a girl
child belonging to economically weaker sections is
concerned. We say so because such students are placed in
a position of coalesced vulnerability. The economic burden
of sanitary products compounds the existing disadvantage
of, first, being a girl in a structurally unequal
society; secondly, having a biological process that requires
management; and thirdly, lacking the financial means to
manage that process in a safe and hygienic manner.
98. Furthermore, to secure the right to health is not merely
a right enshrined under Article 21 but also a duty on the
State under Article 47 of the Constitution. Article 47
enjoins the State to improve public health as its primary
duty. No doubt the Government is rendering this obligation
by providing MHM measures but in order to make it
meaningful, it has to be reach of the beneficiaries. Thus, it
is only then the objectives of the State can be realized. As
is always said, the rights conferred on citizens and non-
citizens are not merely individual or personal rights. They
have a large social and political content, because the
53objectives of the Constitution cannot be otherwise
realized.[M. Nagaraj v. Union of India, (2006) 8 SCC 212.]If the Government Order and the proposed Bill are examined on the
touchstone of the aforesaid authoritative pronouncement in JAYA
THAKUR’s case supra, what unmistakably emerges is that the
policy concerning the grant of menstrual leave is not merely a
matter of administrative discretion, but is intrinsically connected to
the realization of a fundamental right. Any measure undertaken by
the State towards securing menstrual health and dignity, in the
considered view of this Court, directly engages and advances the
guarantees enshrined under Article 21 of the Constitution. The Apex
Court, having thus elaborately delineated the contours of menstrual
health, has in clear and unequivocal terms held that the right to
menstrual dignity forms a part of the right to life itself.
12. The Policy, by the Government order on
20-11-2025, and later the bill did not spring from air. It has
roots traceable to Article 21 of the Constitution of India.
Apart from that, the bill has taken birth from, the womb of
54the Constitution of India, particularly Articles 15(3), 39(e)
and 42 and they read as follows:
“15. Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.
… … …
(3) Nothing in this article shall prevent the State
from making any special provision for women and
children.
… … …
39. Certain principles of policy to be followed by the
State.
… …
(e) that the health and strength of workers, men
and women, and the tender age of children are not
abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or
strength;
… … …
42. Provision for just and humane conditions of
work and maternity relief.–The State shall make
provision for securing just and humane conditions of
work and for maternity relief.”
Article 15(3) of the Constitution does not impose any fetter upon
the State in making special provisions for women and children. It
bestows the State, Authority to enact measures to initiate policies
towards safeguarding the health and strength of workers, both men
55
and women, ensuring that neither is subjected to conditions that
undermine their wellbeing. Article 42 further elevates this mandate,
by requiring the State to secure just and humane conditions of
work, alongside the provision of maternity relief, their embedding
compassion within the framework of labour jurisprudence. The
executive power of the State flowing from Article 162 of the
Constitution of India, furnishes the necessary authority to
translate these constitutional aspirations into tangible policy
measures. It is too well settled a principle of law that the
State can bring about policies in exercise of its executive
power under Article 162 of the Constitution of India. The
State has articulated the present policy and has proceeded
to usher in the proposed legislation, thereby giving concrete
expression to the spirit and intent of the Constitution.
13. The significance of menstrual leave policy is not
merely administrative, but deeply rooted in the
Constitutional promise of equality that embraces all citizens,
beneath its expansive canopy. While the law proclaims men
and women as equals, nature, in its intricate design, has
56
bestowed upon women, certain biological experiences that
set them apart – menstruation being one such profound
reality. Menstruation, often referred to as periods, is not an
aberration, but a natural and indispensable facet of women’s
reproductive cycle. It is a recurring monthly phenomenon
wherein, the body governed by delicate hormonal rhythms
sheds the uterine lining resulting in bleeding, that typically
endures for 3 to 7 days. Yet beyond its clinical description
lies a lived experience, one that may be accompanied by
discomfort, fatigue, and emotional upheavals. True, equality,
as envisioned by the Constitution, demands a more compassionate
and nuanced approach, one that acknowledges difference not as a
ground for discrimination, but as a basis for accommodation. Thus,
the call for menstrual leave, is not a plea for privilege, but an
assertion of dignity, fairness and humane understanding
within the spaces women inhabit.
57
14. It is also necessary to notice the challenges encountered
by menstruating women as a consequence of their menstrual cycle,
all of which are well-recognized and in public domain.
PROBLEMS FACED BY MENSTRUATING WOMEN DUE TO
THE MENSTRUAL CYCLE:
(a) Among the most prevalent afflictions experienced
during menstruation is dysmenorrhea–commonly referred to as
menstrual cramps or painful periods. This condition often manifests
as acute discomfort in the pelvic region, abdomen, or lower back,
and in certain instances, the intensity of pain can be profoundly
debilitating. Scholarly studies have consistently identified
dysmenorrhea as a significant gynaecological concern worldwide,
contributing not only to absenteeism from educational institutions
and workplaces but also to a marked deterioration in overall quality
of life. Accompanying symptoms such as backaches, headaches,
nausea, light-headedness, and even fainting further compound the
distress endured during this phase.
(b) At times, irregularities in the menstrual cycle serve as
harbingers of more serious underlying disorders. For instance,
menorrhagia–characterized by abnormally heavy or prolonged
bleeding–may signal hormonal imbalances or other medical
complications that warrant careful attention.
58
(c) Excessive menstrual bleeding also elevates the risk of
iron-deficiency anaemia, a condition marked by profound fatigue,
weakness, and dizziness. When severe or chronic, anaemia can
precipitate grave complications, particularly during pregnancy, and
may give rise to broader physiological impairments.
(d) The hormonal fluctuations intrinsic to the menstrual
cycle extend their influence beyond the physical realm, giving rise
to an array of emotional and psychological symptoms. These may
range from bodily soreness, headaches, and muscle pain to
heightened anxiety and depressive states. While commonly
classified under premenstrual syndrome (PMS), more severe and
incapacitating manifestations are recognized as premenstrual
dysphoric disorder (PMDD).
(e) Compounding these physiological challenges is the
pervasive stigma that surrounds menstruation–a stigma deeply
entrenched in societal norms and cultural practices. Menstruating
women are often deemed “impure” and subjected to exclusionary
customs, such as being barred from entering kitchens or
participating in routine activities, under the misguided belief that
they may contaminate their surroundings. Such practices
perpetuate social alienation and reinforce harmful misconceptions.
(f) In addition, several medical conditions associated with
menstruation–such as endometriosis, polycystic ovary syndrome
(PCOS), premenstrual dysphoric disorder (PMDD), and uterine
59fibroids–present with diverse yet often severe symptoms, including
heavy bleeding, unpredictable cycles, and chronic pain. These
conditions may also heighten susceptibility to infections of the
reproductive system. Disturbingly, many of these disorders remain
misdiagnosed or entirely undiagnosed for extended periods,
depriving individuals of timely and effective treatment.
(g) Menstrual health conditions may also adversely impact
fertility and safe childbirth. Endometriosis, affecting approximately
10-15% of women of reproductive age, stands as one of the
leading causes of infertility. Similarly, PCOS, which affects around
10% of women in this demographic, is associated not only with
infertility but also with heightened risks during pregnancy, including
preterm delivery, gestational diabetes, preeclampsia, miscarriage,
and even fetal loss. While uterine fibroids may not always hinder
conception, they can significantly complicate pregnancy and
childbirth, potentially leading to pregnancy loss or restricted fetal
growth.
15. PROBLEMS FACED BY MENSTRUATING WOMEN AT
THE WORKPLACE:
(a) Within professional environments, menstruation
remains an often-overlooked reality. Workplaces are seldom
designed with the needs of menstruating individuals in mind, much
like they frequently fail to accommodate pregnancy and childbirth.
60
In the absence of appropriate provisions, employees may find their
productivity diminished or feel compelled to take leave during their
menstrual cycles.
(b) The lack of access to proper facilities can have serious
health implications. When individuals are unable to change
menstrual products as required, they may resort to makeshift
alternatives such as tissues or paper towels, increasing the risk of
irritation, infection, and, in rare cases, toxic shock syndrome.
(c) Inadequate workplace support may also deter
individuals from pursuing professional opportunities or even compel
them to exit the workforce altogether. Common challenges include
insufficient menstrual hygiene facilities, lack of inclusive leave
policies, social discomfort, limited access to menstrual products,
and pervasive stigma.
(d) Furthermore, the absence of clean, well-equipped
restrooms stocked with menstrual hygiene products places an
undue burden on employees, who must often carry their own
supplies. Providing free and readily accessible sanitary products–
such as pads, tampons, or menstrual cups–can substantially
alleviate this stress and foster a more supportive work
environment.
(e) To address these concerns, workplaces must ensure the
availability of menstrual-friendly restrooms, secure storage spaces
for personal items, and facilities for changing clothing when
61
necessary. Additionally, provisions such as access to quiet resting
areas and flexible arrangements allowing employees to sit, stand,
or stretch can help mitigate fatigue associated with hormonal
fluctuations.
INTERNATIONAL ORGANIZATIONS:
16. RECOGNITION OF MENSTRUAL HEALTH AS A
HUMAN RIGHTS ISSUE:
(a) The World Health Organization has emphatically
advocated for the recognition of menstrual health as a fundamental
health and human rights issue, rather than confining it merely to
the domain of hygiene. It calls for a holistic understanding that
encompasses the physical, psychological, and social dimensions of
menstruation across the entire life course – from menarche to
menopause.
(b) Menstrual health, in its truest sense, necessitates that
women, girls, and all individuals who menstruate have access to
accurate information, adequate education, appropriate menstrual
products, and safe water, sanitation, and disposal facilities. It also
entails access to compassionate and competent healthcare, and the
assurance of environments–whether at home, school, or
workplace–where menstruation is regarded as a natural and
healthy phenomenon, free from shame or stigma. Crucially, it
62underscores the right to participate fully and equally in all aspects
of life during menstruation.
(c) The WHO further emphasizes the need to integrate
menstrual health considerations into sectoral policies, planning, and
budgeting, ensuring that progress is measurable and sustained.
EVOLVING GLOBAL LANDSCAPE:
17. It is pertinent to take cognizance of the evolving
global landscape, wherein several Nations through
legislative enactments, policy formulation or ongoing
deliberative processes, sought to recognize and
institutionalize menstrual leave. This emerging international
consensus, reflects a growing acknowledgment of
menstruation, not merely as a private biological occurrence,
but a matter warranting policy intervention within the realm
of labour rights and human dignity. The Nations that have
brought in or deliberating to bring in a policy for menstrual leave
are as follows:
63
SOVIET UNION:
In 1922 and 1931, the Soviet Union introduced the “Special
Protective Labor Laws” which set out the terms for menstrual leave.
The Bolshevik menstrual policy was directed at women working in
factory jobs, providing them with two to three days paid leave
during menstruation. Menstrual leave was introduced by the Soviet
State as a policy designed to “protect the health of women workers
in order that they should be able to fulfil their reproductive and
maternal functions.” Menstrual leave was thus entangled with
Soviet pronatalist ideology, which envisaged specific female “roles
and duties in the process of socialist construction.”
JAPAN:
In Japan, menstrual leave, or “Seirikyuuka”, came onto the
political agenda around the same time as the Soviet Union, but for
different reasons. In 1928, female conductors for the Tokyo
Municipal Bus Company went on strike demanding menstrual leave
be provided for industrial reasons. However, collective demands for
menstrual leave did not translate into formal policy until the post-
war period, when inadequate workplace sanitation emerged as a
64national labour concern. Menstrual leave was subsequently
incorporated in the “National Labor Standards Act 1947 [Act No 49
of 1947]” and remains active. Article 68 of the Act reads as follows:
“When a woman for whom work during menstrual periods would
be especially difficult has requested to leave, the Employer shall
not have said woman work on days of said menstrual period.”INDONESIA:
Indonesia was the third country to implement a national policy
for menstrual leave in the early 20th century. The original policy was
established in 1948 and then restructured in 2003 as part of a
legislative reform process which, left the right to menstrual leave
intact but with “specific provisions located in company regulations
and enterprise agreements”. Article 81(1) of the “Law Number
13/2003 Concerning Manpower” reads as follows:
“Female workers/ labourers who feel pain during their menstrual
period and tell the entrepreneur about this are not obliged to
come to work on the first and second day of menstruation.”The 2003 Reforms weakened menstrual leave as a workplace
entitlement, as the law no longer mandated two days paid leave but
rather made the policy “subject to negotiation between employers
and enterprise unions” with no enforceable payment mechanism.
65SOUTH KOREA:
Ratified in the year 2001, Article 73 of the “Labour Standards
Act [Act No. 5309/1997]” provides for one day of unpaid leave per
month, awarded at the employee’s request. Article 73 reads as
follows:
“An employer shall, upon request of a female worker, grant her
one-day menstruation leave per month.”
Employers do not have discretion to deny menstrual leave and
all female employees are entitled to the benefit irrespective of job
status or how long they have worked for their employer. There are
criminal penalties for non compliance and employers who violate
the law are liable for payment of a fine not exceeding five million
won.
TAIWAN:
Enacted in the year 2002, Taiwan’s menstrual leave policy is
incorporated in the Gender Equality in Employment Act. Article 14
of the Act allows a maximum of day menstrual leave per month
66with employees receiving half of their regular wage. Article 14 reads
as follows:
“(I)Female employee having difficulties in performing her work
during menstruation period may request one day menstrual
leave each month. If the cumulative menstrual leaves do not
exceed three days in a year, said leaves shall not be counted
toward days off for sick leave. All additional menstrual leaves
shall be counted toward days off for sick leave.(II)Wages for menstrual leaves, whether said leaves are sick
leaves or non-sick leaves as prescribed in the preceding
Paragraph, shall be half the regular wage.”
Unlike China and South Korea, the drafting of Taiwan’s
menstrual leave policy is intricately connected to the provision of
common sick leave. Under the non-amended entitlement, women
were entitled to menstrual leave, but this was integrated into the
30 days of sick leave which also provided for half pay. Thus, if a
woman claimed three days menstrual leave, this would only leave
27 days of common sick leave for the year. The new scheme,
established in 2013, sought to change this integrated framework,
with legislators arguing the deduction of menstrual leave from
common sick leave was unfair and a violation of women’s basic
rights. While women are entitled to 33 days of leave post-
amendment, if an employee exceeds 30 days leave (including
67
common sick leave and menstrual leave) then the additional three
days are unpaid.
VIETNAM:
Vietnam formally incorporated the Menstrual Leave Policy in its
“National Labour Code [Decree No 85/2015]” in November 2015.
Article 137(4) of the Code provides a break for thirty minutes per
day to a female employee during her menstrual period. Article
137(4) reads as follows:
“4. A female employee in her menstruation period shall be
entitled to a 30 minute break in every working day; a female
employee nursing a child under 12 months of age shall be entitled
to a 60-minute break in every working day with full wage as
stated in the labor contract.”
ZAMBIA:
Zambia introduced the Menstrual Leave Policy in the year
2015, which was officially called the “Mother’s Day” which allows
female employees to take one discretionary off each month. Article
47 of the “Employment Code Act 2019” reads as follows:
“Mother’s day
68
47. A female employee is entitled to one day’s absence from work
each month without having to produce a medical certificate or
give reason to the employer.”
Article 47 states that no certificate or reason is required to be given
to the employer while availing the menstrual leave.
18. I have deemed it appropriate to advert to the
aforesaid discussion, for the reason that it reflects a
remarkable unity of thought, in favour of granting menstrual
leave to women, during their menstrual cycle, at the very
least, for a day. Indeed, it is of some significance that the Union
of India, has, on two separate occasions, introduced bills
contemplating the grant of minimum of two days’ paid menstrual
leave per month. It is equally noteworthy that similar legislative
initiative was undertaken in the State of Arunachal Pradesh,
however, the bill was ultimately withdrawn in the face of opposition.
UNORGANIZED SECTOR:
19. The question that now arises pertains to the scope of
applicability of the Government Orders, which in their present form
69
are confined to the organized sector. The position of the
unorganized sector therefore warrants careful consideration.
19.1. The Apex Court in MUNICIPAL CORPORATION OF
INDIA v. FEMALE WORKERS (MUSTER ROLL)4 while
interpreting Maternity Benefit Act, 1961 and as to its
implementation to the female muster roll workers engaged by the
Municipal Corporation of Delhi observes as follows:
“……. …….. ……..
33. A just social order can be achieved only when
inequalities are obliterated and everyone is provided what
is legally due. Women who constitute almost half of the
segment of our society have to be honoured and treated
with dignity at places where they work to earn their
livelihood. Whatever be the nature of their duties, their
avocation and the place where they work, they must be
provided all the facilities to which they are entitled. To
become a mother is the most natural phenomenon in the life of a
woman. Whatever is needed to facilitate the birth of child to a
woman who is in service, the employer has to be considerate and
sympathetic towards her and must realise the physical difficulties
which a working woman would face in performing her duties at
the workplace while carrying a baby in the womb or while rearing
up the child after birth. The Maternity Benefit Act, 1961 aims to
provide all these facilities to a working woman in a dignified
manner so that she may overcome the state of motherhood
honourably, peaceably, undeterred by the fear of being victimised
for forced absence during the pre-or post-natal period.”
4
(2000) 3 SCC 224
70
19.2. The Apex Court again in AJAY MALIK v. STATE OF
UTTARAKHAND5 while noticing several enactments which are yet
to reach domestic workers on the score that domestic workers lack
legal protection in the nation has observed as follows:
“……. …….. ……..
42. Before we discuss the Indian legal experience with
domestic workers, it is perhaps fitting to advert to the prevailing
international standards.
D. 4.2 International norms and standards
43. In the international spectrum, over the course of
many decades, the ILO has provided various guidelines and
conventions for the betterment of labour laws across the world.
It is noteworthy that it has also extensively sought to protect the
rights of domestic workers, which it recognises as a uniquely
disadvantaged and marginalised class. It proactively advocates
for the inclusion of domestic workers in pre-existing labour
treaties. For instance, during discussions on the Protection of
Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No.
173), the definition of ‘insolvency’ was revised to refer to as
’employer’s assets’ instead of the narrower term ‘enterprise’s
assets,’ ensuring domestic workers were covered. Moreover,
Article 2 of the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), applies to all
‘workers and employers’ without any exception.
44. Reference may also be made to the principles of non-
discrimination and equal opportunity in the Discrimination
(Employment and Occupation) Convention, 1958 (No. 111), and
the Equal Remuneration Convention, 1951 (No. 100), which also
cover domestic workers. In fact, the ILO Committee of Experts
has repeatedly emphasised that laws or policies promoting
equality in jobs must include domestic workers and that
excluding them would violate these Conventions.
5
2025 SCC OnLine SC 185
71
45. However, the most significant international
development in the realm of the rights of domestic workers was
in 2011, with the adoption of the Domestic Workers Convention,
2011 (No. 189). This Convention offers specific protection to
domestic workers while laying down the basic rights that such
workers are entitled to, and the measures that States must take
to ensure decent work conditions. These protections include
regulating work settings and providing domestic workers with
social security benefits that are at par with other workers. This
Convention is supplemented by the ILO Recommendation No.
201, which further addresses the need for facilities like proper
accommodation, food, and the medical health of domestic
workers.
46. Apart from the illustrative treaties reproduced
hereinabove, the plight of domestic workers is also addressed in
several other Conventions. For instance, the International
Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, 1990, in its General Comment
No. 1, provides for and acknowledges the particularly vulnerable
position of migrant domestic workers. Similarly, General
Comment No. 26 to the landmark Convention on the Elimination
of All Forms of Discrimination Against Women, 1979 addresses
female migrant workers and extends to those undertaking
domestic work as well.
47. Thus, contemporary international standards not only
acknowledge the vulnerability of domestic workers but also
strive to provide them extensive protection and parity with other
labourers.
D. 4.3 Domestic laws and guidelines
48. Coming to the legal standing of domestic workers
within India, there seems to be a degree of lacunae in legislative
frameworks, safeguarding and protecting their rights.
49. At this juncture, we must fairly note that there have
already been several attempts to bring domestic workers under
legal protection. However, for a plethora of reasons that are
beyond the scope of the present discussion, these Bills have
72
never materialized into tangible laws or policies. In this regard,
we may briefly note the following:
i. The Domestic Workers (Conditions of Employment)
Bill of 1959 was among the earliest legislative attempts
to regulate the working conditions of domestic workers. It
aimed to establish minimum standards for wages, work
hours, and employment terms for domestic workers.
However, the Bill received little support and was
ultimately not enacted into law.
ii. The House Workers (Conditions of Service) Bill of
1989 sought to address similar issues, focusing on
formalising employment practices and providing essential
safeguards for domestic workers. Despite being
introduced, this Bill neither formed the subject of
significant Parliamentary discussions nor advanced
towards enactment.
iii. The Housemaids and Domestic Workers (Conditions
of Service and Welfare) Bill, 2004 was introduced in
the Rajya Sabha as a private member’s Bill. This Bill
proposed mandatory registration of domestic workers and
required the government to ensure sufficient employment
opportunities, medical benefits, and other welfare
measures. It also included penalties for employers hiring
unregistered workers. However, the Bill was not passed by
Parliament.
iv. The Domestic Workers (Registration, Social Security
and Welfare) Bill, 2008, introduced by the National
Commission for Women, aimed to establish a registration
process for domestic workers and to provide them with
social security benefits. The Bill did not progress beyond
its drafting stage and was not enacted into law.
v. The Domestic Workers (Decent Working Conditions)
Bill of 2015 sought to include domestic workers under
existing labour laws, such as the Industrial Disputes Act of
1947. The Bill proposed ensuring fair wages and regulated
working conditions for domestic workers. However, it
remained pending and was not enacted into law.
73
vi. The Domestic Workers Welfare Bill, 2016 proposed
including migrant and minor domestic workers within its
ambit. The Bill prescribed working conditions, terms of
employment, and the collection of a cess from employers
to maintain a social security fund. It also mandated the
registration of workers by employers and placement
agencies. This Bill was, however, not enacted.
vii. The Domestic Workers (Regulation of Work and
Social Security) Bill, 2017 sought to regulate the work
of domestic workers, prescribe duties for employers and
placement agencies, establish Boards for their
registration, address issues related to the marginalisation
caused by migration, and provide for the inclusion of
domestic workers in significant labour laws. However, the
Bill was never enacted.
50. It, thus, seems to us that no effective legislative or
executive action in furtherance of enacting a statute, which could
prove to be a boon to millions of vulnerable domestic workers
across the country, has been undertaken as of now. Over and
above the absence of any legislation protecting their interests,
domestic labourers also find themselves excluded from existing
labour laws as well. These, inter alia, include statutes such as
the Payment of Wages Act, 1936, Equal Remuneration Act,
1976, Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013, Juvenile Justice (Care and
Protection of Children) Act, 2015, etc.
51. Be that as it may, we must also acknowledge that
recent years have witnessed certain positive developments
aimed at improving the legal and social status of domestic
workers in India. These developments, while still in their initial
stages of implementation, signal recognition of the need to
address the systemic neglect faced by this workforce. In this
regard, reference may be made to the Code on Wages,
2019, which introduces provisions to address the issue of
minimum wages for domestic workers. Moreover, statutes
such as the Social Security Code of 2020 replace earlier
legislation, including the Unorganized Workers’ Social
Security Act of 2008, bringing domestic workers within
the ambit of ‘unorganised workers’. This inclusion makes
them eligible for various benefits such as social security,
74
health insurance, provident fund, and maternity benefits.
Further, the introduction of the e-Shram portal in 2021
has facilitated the creation of a centralised database to
identify and register migrant/domestic/unorganised
workers, enabling their access to welfare schemes.
52. It is equally noteworthy that despite the absence of
comprehensive protections for domestic workers through a
Central Law, several States have taken initiatives to safeguard
their rights and welfare. Tamil Nadu established the Tamil Nadu
Domestic Workers Welfare Board in 2007 under the Tamil Nadu
Manual Workers (Regulation of Employment and Conditions of
Work) Act, 1982. The Board administers various social security
benefits, including education assistance, marriage assistance,
delivery assistance, accidental death compensation, and
pensions. These benefits are provided through monetary
compensation at fixed rates. Maharashtra has enacted the
Maharashtra Domestic Workers Welfare Board Act, 2008,
creating District Domestic Labour Welfare Boards with tripartite
representation from employers, employees, and the
government. This Act allows domestic workers to voluntarily
register to access social security benefits, including maternity
and child care, education assistance, and medical expense
reimbursement. Similarly, Kerala introduced the Kerala Domestic
Workers (Regulation and Welfare) Bill, 2021 to protect, regulate,
and improve the welfare of domestic workers. The Bill aims to
ensure minimum wages, fair treatment, and lawful payment for
workers, many of whom are employed through third-party
agencies.
53. Amidst this backdrop, which motions the lack of
specific protections covering domestic workers in India, it
becomes this Court’s solemn duty and responsibility to
intervene, exercise the doctrine of parens patriae and forge the
path leading to their proper welfare. In a catena of decisions
[Rudul Sah v. State of Bihar, (1983) 4 SCC 141; M.C. Mehta
(2) v. Union of India, (1988) 1 SCC 471; Nilabati Bahera v. State
of Orissa, 1993 Cri LJ 2899; Vishwa Jagriti Mission v. Central
Govt., (2001) 6 SCC 577; Aruna Ramachandra
Shanbaug v. Union of India, (2011) 4 SCC 454; Vineet
Narain v. Union of India, (1998) 1 SCC 226; Vishaka v. State of
Rajasthan, (1997) 6 SCC 241 : AIR 1997 SC 3011], this Court
has repeatedly stepped in and laid
down interim guidelines to protect vulnerable groups who
75
were utterly unprotected due to legal gaps. That being said,
we do not presently deem it appropriate to lay down
an interim legal code which would govern the working conditions
of domestic workers. We say so, being cognizant of the factum
that ordinarily, the judiciary should not stray too far out of
bounds, and expressly interfere in the legislative domain. The
democratic setup of this country may be likened to a tripartite
machine, fueled by the doctrine of separation of powers, without
which it’s functioning shall surely come to a grinding halt.
54. It is in this vein, that we once again repose our faith
in the Legislature, and the elected representatives of the Indian
people, to take the imperative steps towards ensuring an
equitable and dignified life for domestic workers. In light of the
same, we seek to dispose of these appeals with certain pointed
directions to the Government of India.”
The Apex Court notices that the Social Security Code of 2020
replaced the earlier legislation, the Unorganized Workers Social
Security Act of 2008 bringing domestic workers within the ambit of
unorganized workers. The inclusion of unorganized workers made
those domestic workers eligible for various benefits such as social
security, health insurance, provident fund and maternity benefits.
The Apex Court also notices the efforts of the Government of India
in introduction of e-Shram portal in 2021 which facilitates creation
of centralized database to identify and register migrant/domestic/
unorganized workers enabling access to welfare schemes.
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20. The Apex Court in the case of HAMSAANANDINI
NANDURI v. UNION OF INDIA6 rendered in the context of the
Maternity Benefit Act, 1961, deliberates upon the importance of
social security benefits to women in the workforce. The
observations of the Apex Court becomes germane to be
paraphrased to the subject order. It reads as follows:
“…. …. ….
59. The discussions in the foregoing paragraphs
establishes that the purport and intent of the MB Act, now
forming part of the 2020 Code, is to dignify motherhood,
safeguard maternal well-being, while ensuring continued
participation of women in the workforce. The said Act is a
legislative recognition of the physical, emotional, and social
dimensions of motherhood, and accommodates the pivotal role
it plays in a woman’s life. By providing institutional support,
the MB Act endeavours to harmonize professional obligations
with familial responsibilities in order to promote an
environment in which both the mother and the child would
thrive.
60. In 2020, the MB Act, along with other laws relating
to social security, were consolidated in order to extend social
security coverage to all persons working in both the organized
and unorganized sectors uniformly. Social security benefits
guarantee labour and economic protection against loss of work
due to illness, disability, death of family members, old age,
unemployment, and maternity.
61. In the case at hand, we are concerned with
maternity benefit. With the increasing participation of
women in the workforce, there emerged a growing
recognition of economic contribution by women, and of
6
2026 SCC OnLine SC 402
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the substantial loss of income when their employment
was interrupted. Thus, social security is intended to
provide protection against contingencies that impair a
person’s capacity to actively participate in work.
62. In the aforesaid context, maternity is one such
contingency, as it involves temporary physical,
emotional, and economic vulnerability. In other words,
maternity benefit form an integral component of the
social security framework, aimed at ensuring economic
security, safeguarding maternal health, and promoting
welfare of the child.
…. …. ….
75. Undoubtedly, the fundamental objective of the 2020
Code is to recognize human dignity by guaranteeing labour
and economic protection to persons who are temporarily
deprived of their capacity to fully participate in the workforce.
There is no gainsaying that the protection granted earlier
under the MB Act, and now subsumed within the 2020 Code,
has been conceived with due regard to the multifaceted role of
a woman as a mother.
76. The legislation acknowledges the
indispensable contribution of a woman in familial
stability, her responsibility in nurturing and caring for a
child, and the physical and emotional demands attached
to motherhood. By providing income security and
institutional support during this critical phase, the
legislation seeks to ensure that motherhood does not
operate as a source of disadvantage at a work place, but
is instead accommodated as a socially valuable function
warranting protection and respect.
77. The purpose of maternity leave neither varies
with the nature of employment nor with the manner in
which the child is brought into the life of the mother.
When we look closely, the natural effect of maternity
benefit is to facilitate the physical and emotional
adjustment of a mother, ensure the welfare and holistic
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development of a child, and promote bonding between
parents and children during the crucial initial phase of
family integration.
78. Thus, taking into consideration the
aforementioned object and intention of the 2020 Code,
could it be said that women adopting a child aged three
months or above do not require the same protection as
is afforded to women adopting a child below the age of
three months? The answer is an emphatic ‘No’. We say
so because the object of maternity benefit is not
associated with the biological process of childbirth
alone but also takes into account a holistic
understanding of attainment of motherhood and
consequent fulfillment of the role.
79. What flows from the aforesaid is that the need
for economic security, institutional support, and
protection of dignity does not diminish merely on
account of the age of the child at the time of adoption.
The necessity of nurturing, care, and family integration
remains equally relevant and pressing irrespective of
whether the adopted child is below or above the age of
three months.
80. In light of the object of the 2020 Code, women
who adopt a child aged three months or above are
similarly situated to women who adopt a child below the
age of three months, insofar as their roles,
responsibilities, and caregiving obligations are
concerned. The essential attributes, capacities, and
commitments of adoptive mothers do not undergo any
material change merely on account of the age of the
child at the time of adoption and the immediate period
following the adoption.
81. We are of the considered view that the distinction
drawn by Section 60(4) of the 2020 Code, does not have a
rational nexus with the underlying beneficial object of the
statute. The submission canvassed on behalf of the
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respondents proceeds on a narrow and restrictive
understanding of adoption by limiting it to “caregiving
responsibilities” towards an infant. Such a view disregards the
bilateral process of adjustment and integration of the adopted
child with the adoptive family. This disparity not only
marginalizes the role that adoptive parents play in the life of
the child but also reduces the recognition of their
responsibilities.
82. While adoption may not involve the physical
tribulations associated with the biological process of giving
birth, or intensified caregiving responsibilities for an infant, the
psychological and emotional factors assume significant
importance, thereby requiring the mother to devote time to
forge the bond of motherhood with the adopted child. A
general approach which fails to consider the nuances
associated with modern parenting would denigrate the
understanding of motherhood, which flows from the status of
being a mother and not merely from the manner of its
attainment. Such an approach would also inevitably disregard
the welfare of the child.”
(Emphasis supplied at each instance)
21. In the light of the Apex Court directing or recognizing the
rights of those unorganized sector workers and the importance of
social security benefits to female workers, it is necessary for the
State now to tap the unorganized sectors to take the benefit of the
Government order or the Bill when it becomes an Act.
22. Broadly understood, the unorganized sectors may be
classified into two categories. First, enterprises owned by
80
individuals or self-employed persons, engaging fewer than 10
workers and the second, daily wage labourers, who remain outside
the purview of the said Government Orders. These distinctions
are indicative of the necessity for the State for more
inclusive and responsive approach. Therefore, it becomes
incumbent upon the State to undertake comprehensive
measures aimed at sensitizing all sectors, both organized
and unorganized. While the organized sectors may be
regulated through Government orders and legislative
intervention, the unorganized sector requires a more
facilitative mechanism. However beyond regulatory
frameworks, what remains imperative is, a sustained and
pervasive effort to sensitize all segments of society,
reaching every corner of the State to foster awareness,
empathy and compliance.
23. In the light of the foregoing discussion, this Court deems
it appropriate to dispose of the present petition by issuing a
direction for the strict and faithful implementation of the
existing policy, pending the formal enactment of the proposed
81
legislation. Upon such enactment, the State shall, without undue
delay, frame appropriate Rules so as to give full and meaningful
effect to the statutory mandate. In the interregnum, it shall be
incumbent upon the State to ensure effective operationalization of
the policy through the issuance of suitable guidelines, circulars, and
administrative instructions, as may be necessary to secure its
uniform, consistent, and rigorous implementation across all sectors.
This Court would also observe that the State ought not to be
deterred or constrained by misplaced apprehensions
founded upon a superficial invocation of Article 14 of the
Constitution of India.
Men and women stand equal in the eyes of the law; yet,
they are biologically distinct. To acknowledge such
differences, particularly in matters concerning health,
dignity, and bodily autonomy, is not to transgress the
guarantee of equality, but to give it substantive meaning.
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This Court places its appreciation to the able assistance
rendered by Miss. Sai Suvedhya R., and Miss. Samriddhi N. Shenoy,
Law Clerk cum Research Assistants attached to this Court.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ
