The Karnataka Employers’ Association has filed a writ petition praying for the State Government’s notification mandating certain workplaces to provide menstrual leave to women workers (‘Menstrual Leave Notification’) to be struck down as unconstitutional as per Article 14 of the Indian Constitution.1 Tagged with this is a petition by 15 women from various professions, who reportedly argue that it is a product of ‘benevolent sexism’ – that is, though apparently protective, it is rooted in ‘paternalistic stereotypical assumptions about women’s capabilities, portraying them as weaker and less reliable employees’, and reinforces biases that ‘women have fought for decades to overcome’.
I argue that this petition must fail, for it neglects recent progressive developments in constitutional law on beneficial policy reforms for women.
‘Benevolent Sexism’ in Indian Constitutional Law
The concern about benevolent sexism is best understood in light of the trajectory of Supreme Court cases on the constitutionality of beneficial legislation for women. As Shreya Atrey writes in her paper on feminist constitutionalism in India, this history is somewhat chequered.
In her categorisation, the early years after the enactment of the Constitution saw several instances of ‘romantic paternalism’ on the court’s part – that is, in articulating the scope of Article 15(3) of the Constitution and testing a variety of beneficial legislation against it, it frequently cast ‘women in the image of powerless subjects in need of protection by the state’. Prominent contexts in which this played out included the constitutionality of exempting women from prosecution for adultery under criminal law and the offence of ‘outraging the modesty’ of a woman.
Yet, later decisions mark a gradual shift away from this disempowered image of women. For instance, the court’s view of women as entitled to rights in the workplace as workers, as distinct from feminine subjects in need of state protectionism, in Vishaka v. State of Rajasthan (1997), and of the need for security measures for women not to erode their autonomy in Anuj Garg v. Hotel Association of India (2008), marked a significantly more feminist view of women-orientated policy reforms. More recently, the recognition that state paternalism must not diminish people’s, specifically women’s and sexual minorities’, dignity and autonomy in Puttaswamy v. Union of India (2018) represents a clear break from earlier paternalistic perspectives.
‘Decisional Autonomy’ as a Feminist Alternative
In line with this shift, there is also cause for optimism regarding judicial decisions specifically on menstrual health management. The recent Supreme Court judgement on this, Dr Jaya Thakur v. Union of India (2026), for instance, has steered clear of paternalistic rationales for better resource allocation for menstrual health management among young girls. Here, the court held that the right to access menstrual products is a facet of the right to live with dignity under Article 21 of the Constitution. It invoked, importantly, the Puttaswamy idea of decisional autonomy to observe that menstrual health management includes ‘bodily autonomy and decisional freedom’.
The Karnataka High Court has also avoided a paternalistic articulation of the need for menstrual leave in Chandravva Hanamant Gokavi v. State of Karnataka (2026), where it directed the state government to ensure ‘rigorous implementation’ of the Menstrual Leave Notification across all sectors. Citing paragraphs of Dr Jaya Thakur and Puttaswamy on decisional autonomy, it has framed menstrual leave as an assertion of dignity and fairness ‘within the spaces women inhabit’.
These decisions serve to rebut the petitioners’ argument, as they show that the constitutional law understanding of beneficial legislation for women has evolved. It is no longer rooted in paternalism but in far more feminist ideas of decisional autonomy and dignity.
Sameness versus Difference Feminism
Beyond the law, the petitioners’ argument also highlights the divergence between formal and substantive equality within political theory and between ‘sameness’ versus ‘difference’-oriented strands in feminist thinking.
It highlights, specifically, a formal equality/‘sameness’-feminism position, emphasising that women’s claim to equality stems from their having the same abilities to work and perform as men. This is distinct from substantive equality/’difference’-feminism, which would emphasise women’s claims to different treatment in some contexts, due to differences in their social roles and experiences from men.
While the suitability of either type of argument is often dependent on context, there is little justification for formal equality/‘sameness’-oriented arguments to hinder policy reforms that are ultimately favourable to women, such as menstrual leave, particularly given that judicial reasoning has created space for articulating the rationale behind it in feminist terms.
Conclusion
The use of decisional autonomy as a conceptual framework to justify menstrual leave, therefore, is an innovation that advances substantive equality without compromising the gains made through ‘sameness’ / formal equality-oriented feminist efforts. Feminists – and employers – in India will do well to embrace this burgeoning idea and advocate for policy design that reflects and promotes it in the context of menstrual leave, rather than opposing such a policy at the outset.
1. This petition has been tagged along with Karnataka Employers Association and Ors v Government of Karnataka (Writ Petition No. 109/2026). It is posted for the next hearing on 22 July 2026 at the time of writing.
