Introduction
Judicial decisions are supposed to uphold objective fidelity to facts and legal doctrines. Emotions are supposed to be kept at bay. They are considered antithetical to rationality and logical reasoning in the delivery of judgments. The judiciary, however, does not function in a vacuum, but there is a constant tension where collective sentiments influence and reinforce patriarchal norms. On the contrary, judicial activism by feminists, queer and marginalised communities continues to demand changes in legal procedures for transformative justice.
Shame in the Formation of Productive and Reproductive Lives of Menstruating Women
In this article, the emotions of shame and guilt are brought into conversation with the current decision on menstrual leave by the top court. This is juxtaposed with the fact that menstruating women’s bodies have historically been under-researched by medical practitioners, although there is now increasing recognition through growing medical research and sharing of experiences online on how these bodies function differently, even among menstruating women. Shame is conceptualised as a failure to meet the standards of the male, able-bodied norms of productivity, even though women function effectively within workplace systems that are steeped in gender hierarchy and stereotypes. Shame here functions as a disciplinary tool through which women are regulated. For shame has been internalised over generations and reproduced.
In post-independence India, women were considered beneficiaries of freedom and equality, especially middle-class urban-based women who entered the job market to contribute to nation-building while simultaneously preserving traditional values at home. In the 19th century, socialist feminists had urged working-class women in European countries to join the factories, arguing that women’s reproductive functions and familial nurturance contribute to the creation of labourers for capitalists. This unpaid domestic work sustains capitalism, and women entering factories was seen as a potential source of solidarity for the working class and a crisis for the capitalists. However, this did not materialise, as capitalism has continually reinvented itself through the extraction, colonisation, and exploitation of labour, especially of women and marginalised communities, viewing them as limitless and source of extraction of labour, unpaid care and conformity. They often become the shock absorbers of capitalist crisis and dispossession.
With neoliberalism in India in the 1990s, market liberalisation shifted the focus from structural issues of women’s emancipation to a predominance of individual liberation. Women were presented with choices to work hard and occupy positions of authority across institutions and workplaces. Neoliberal consumerism emphasised opportunity and merit, positioning productivity as the great equaliser, while obscuring socio-economic inequalities and gendered differences. In contemporary times, crony capitalism has become deeply intertwined with religious fundamentalism such that the developmental project of the Indian nation-state is increasingly framed as an assertion of Hindutva ideology. Tradition is deployed to bolster modern forms of development that lead to greater visibility and respect for Hindu majoritarian sentiments. The differences and marginalisation of socio-cultural groups that may not fit within the unitary framework of majoritarian sentiments are often repressed. Any resistance has often been shamed by calling the resisters anti-nationals and lacking allegiance to the majoritarian nation-state.
Emotions of shame and guilt become pervasive, particularly in relation to menstruation, which continues to be associated with slowing down and is shrouded in shame. I take from Sarah Ahmed’s (2004) understanding of Shame as an emotion that works in how bodies are presented, categorised and controlled. In traditional contexts, menstruation was often considered a phase of impurity, leading to segregation. In contemporary settings, however, the invisibilization of menstrual pain and discomfort is read as a sign of serious professional commitment. Shame and guilt are intensified in a neoliberal economy where one’s own identity is closely tied to individual productivity and consumption. Thus, when judges suggest that mandatory menstrual leave may raise questions about women’s competence, it legitimises existing discriminatory ideas.
Recent surveys and studies, for example, Mindset and Menses, Implementation of Menstrual Leave policy in India and Workplace Menstrual Leave in Urban Kolkata indicate that women have agreed on the implementation of menstrual leave and more flexible work cultures. At the same time, concerns have been raised about the disclosure of menstrual information to colleagues and managers. Menstrual-related absences are often misread as habitual laziness and an escape from work. Some women have even expressed a preference for unpaid leave to avoid being perceived as liabilities by employers.
Many menstruating women endure pain and hormonal challenges in silence to avoid appearing weak or unproductive. The discourse of shame surrounding menstruation frames it as a private matter that must remain outside public visibility. This shame is also reproduced through popular culture and advertisements, where menstruation is rarely mentioned, and period stains are depicted as sources of embarrassment. At the same time, such advertisements suggest that women can ‘do anything’ with the use of the right brand of sanitary products, thereby shifting attention away from pain and discomfort to the management of stains from public exposure. Hence, the sense of shame prevents any discussions on issues of pain, rest and awareness of the functioning of different menstrual bodies during the menstrual cycles.
Public figures like Bharkha Dutt, a well-known journalist in 2017 and Minister of Women and Child Development, Smriti Irani in 2023, opposed mandated menstrual leave, arguing that menstruation should not be treated as a disability or a handicap. In this context, the need for rest or accommodation is framed as a weakness and failure to be productive. The ideal worker remains the able-bodied male, and any deviation, whether through menstruation, disability, or queerness, is stigmatised.
With the rise of digital media, there has been an increase in period-positivity content that shares the experiences of menstruating women and the issue of pain and other complications like Polycystic Ovary Syndrome, Dysmenorrhea, Menorrhagia, Endometriosis and sudden cycles of change. Even among urban, educated individuals, awareness remains limited.
In my own experience, when I visited a gynaecologist in my mid-thirties, my partner chose to sit outside, stating that he would not understand. Similarly, many colleagues have admitted to having little knowledge about menstrual cycles, even when they are married. This reflects the deep-seated nature of silence and stigma.
Although menstrual leave has been provided by some companies like Zomato, Swiggy, Acer India and other corporate companies, the mandated period leave does not take into account the menstruating migrant and marginalised women working in contractual, unskilled and precarious jobs. Chief Justice of India, Surya Kanta, stated that the issue of mandatory menstrual leave belongs to the policy makers, which falls under the legislature and executive, and it is not for the Judiciary to intervene.
The judiciary in contemporary India, it can be argued, has internalised the order of things embedded in productivity (Foucault, 1970). Extending Scott’s argument in (1998), Seeing like a State, I argue that the legal apparatus’s ways of seeing are bound up with the idea of heteropatriarchal productivity. The ideal norm is the able-bodied male, where women have to constantly compete.
Indian courts have been an important site for fighting for gender justice. [1] Women’s rights in India have evolved over the last several decades in complex and interesting ways. This has been due to a vibrant women’s movement and a robust Constitution. Recent years have seen judgments that go against the very spirit of the Constitution. In the case of gender, there have been many adverse judgments. To mention just two, in the Allahabad High Court in the State of Uttar Pradesh v. Jitendra (2015), the High Court judge called the pregnancy of a minor teenage girl outside of wedlock s a stigma. The judge reduced the death sentence to life imprisonment for the parents who were found guilty of killing their daughter. In the State of Madhya Pradesh v. Madanlal (2015) that falls under the Pocso (Protection of Children from Sexual Offence) Act, the Supreme Court Judge stated that the father is the primary caregiver, and to abuse the child is the greatest sin and the betrayal of trust within the family, which affects the child’s sense of safety and dignity. This is stated even when the family as a patriarchal heterosexual institution has often been a site of oppression for women, children and queer people.
Conclusion
It is important to challenge the male able-bodied standards and accept differences, calling for more flexibility in workplaces. The shame should be in not being able to recognise that productivity ought to be built on care, not shame.
References:
Ahmed, Sara. 2004. The Cultural Politics of Emotion. Edinburgh: Edinburgh University Press.
Foucault, M. (1970). The order of things: An archaeology of the human sciences. Pantheon Books.
Scott, J. W. (1998). Seeing like a state: How certain schemes to improve the human condition have failed. Yale University Press.
[1] Landmark judgments on property rights within personal law such as Mary Roy and Ors. v. State of Kerala and Ors. which granted equal inheritance rights to Christian women and Madhu Kishwar and Others v. State of Bihar, which included Adivasi women in the Hindu Succession Act, 1956. https://clpr.org.in/wp-content/uploads/2024/12/Womens-Book_Accessible.pdf
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Ankita Chatterjee is an independent researcher. She has a PhD in Sociology from the Centre for the Study of Social Systems (CSSS), Jawaharlal Nehru University (JNU), New Delhi.