Lauren Prem
I. Introduction
Menstrual leave policy in short (MLP), a contemporary discussion, has been viewed by many legal practitioners, to take the form of a right. Prominent advocates throughout the country have associated the policy to derive its enactment force from article 14 of the Constitution which encapsulates the essence of treating equals equally and unequals unequally. Along these lines, unequal treatment, by virtue of additional leave through this policy, is said to be justified on grounds that women’s natural bodily make-up incapacitates them from being productive during certain days of a month.
Ronald Dworkin in his popular work Taking Rights Seriously distinguishes between argument of principle and argument of policy to identify whether a particular right exists in a scenario. This article aims to examine the MLP in light of Dworkin’s work, seeking to locate the nature of MLP as a policy or a right, thereby ascertaining its binding force.
Prior to the analysis, it establishes a clearer base to set a disclaimer that the nature of MLP is the predominant focus of this article. As mentioned before, the term policy in MLP is not sufficient to accord policy status to it because substance takes precedence over form, in law. Thus, it is safe to state that a deeper dive into the nature and content of MLP is essential to truly determine its status as a right or a policy. By right, it is to state whether MLP can be claimed as a matter of right, derived from common law principles, before a judge, as rights have more binding force according to Dworkin’s work.
II. Right and Policy Determination in Hard cases
Dworkin, in chapter 4 of his work Taking Rights Seriously, emphasizes on the importance of distinguishing between rights and policies to decide, what he terms, hard cases. Hard cases are those cases which do not have a clear and explicit rule of law that can be applied directly to produce a decision. The main point that he attempts to establish throughout his work concerns resorting to right-based arguments (called ‘arguments of principle’), rather than policy-based arguments (called ‘arguments of policy’) in deciding cases that do not fit within the usual scheme of deductive reasoning that judges directly apply to facts.
Arguments of principle seek to establish the existence of a right to plead a decision in one’s favour. For instance, a person who is unreasonably denied admission into a school may claim that he has a right to education, which is an argument of principle, that possesses a higher binding force in relation to an argument of policy which may state that unlawful denial of education disrupts general welfare or the collective societal goal of literacy.
Dworkin thoroughly establishes the rights thesis, in this manner, by demonstrating the binding force or the strength of an argument of principle. In matters of policy, governments possess substantial discretion to introduce a policy or to not introduce one. The argument in favour of MLP can be strengthened and accorded binding value by establishing it as a matter of right or in Dworkin’s terms, crafting a sound argument of principle in its favour.
Dworkin’s work on policy and rights assume significance in this context because claiming menstrual leave as a right can be classified under a hard case, essentially due to lack of statutory provisions that provide for an explicit right. Now that the importance of this rights-policy distinction is explicated, the methods to ascertain the existence of a right shall be examined.
III. Herculean Theory to Decide Rights
The judge ascertaining the existence of a right is a condition precedent to claiming such a right, in hard cases. In the presence of a clear rule of law, an individual can directly proceed to claim a right flowing from such a law. As menstrual leave is not a right sanctioned by the legislature, claiming such a right based on article 14 falls squarely within a hard case, which necessitates the judge to locate some right based on the existing constitutional scheme in a particular jurisdiction.
Dworkin, in his work, proposes a fictional judge named Hercules (prominently referred to as ‘Herculean theory’) to demonstrate how a right may be located within a specific legal framework. As an illustration, a judge may have to determine conceptions of religious liberty in order to decide a case, within a jurisdiction, which has a constitution invalidating any law that establishes religion. In other words, establishing the existence of a particular right requires political philosophy to justify certain concepts.
In the context of MLP, the judge has to delineate the contours within which an argument may be based on equality. For instance, Dworkin rightly points out that an industry cannot claim subsidies on grounds of equality, if the government allows subsidies for one industry, as it is a policy matter. An argument for subsidies can be validated by the rights thesis upon the said industry having a right to subsidy. Hercules’ role in this scenario would demand him to justify or deny the existence of a right to subsidy, rather than allowing subsidies on grounds of collective good or economic efficiency, which is discretionary as aforesaid. Summing up the role of a judge in a hard case, determination of rights is central to provide justifications to a judicial decision.
IV. Gauging the Binding Force of a Claim
Dworkin’s fictional judge Hercules would rule in favour of a petitioner’s right to menstrual leave upon menstrual leave possessing the status of a right and not a policy, as the former possesses a greater binding force. Binding force, for the purposes of this analysis, is similar to Dworkin’s conception of enactment force, which signifies the degree of compulsion that a judge would feel to rule in favour of such claim.
Rights certainly have a higher binding force than that of policies, which may be allowed to the extent that economic efficiency is satisfied. In the subsidies illustration above-mentioned, the court may decide to allow subsidies to the extent where it feels that economic efficiency to a desirable level is reached. Subsequently, a claimant cannot force the judge to rule in his favour in the same way that he may be entitled to do so upon the claim being a matter of right.
Denial of subsidies to one industry (even of a same nature) cannot attract a case of article 14 violation, whereas denial of free education to a ten-year-old child would constitute infringement. The answer to establishing an MLP claim as a right or policy lies in the difference between these two situations. Hercules may ask himself: Whether denying Menstrual leave to a particular individual would tantamount to an article 14 violation? Whether every working woman has a right to menstrual leave? These considerations would ultimately assist in gauging the binding force that is exerted upon a judge who faces a claimant assuming a right to menstrual leave.
V. MLP: Locating it within the Indian Constitutional Scheme
Two crucial questions set forth above reflect the need for a deeper analysis, similar to the ones carried out by the legislature during law-making process. As Dworkin rightly points out, the judge must only bring forth an existing right within the broad constitutional scheme, rather than creating new rights.
To demonstrate how such a right may be located within the Constitution, Dworkin cites the example of religious liberty in a fictional Constitution. Suppose that a country’s constitution prohibits favoring one religion and the state establishes a church. In this scenario, Hercules would be required to explore conceptions of religious liberty and what it composes, to decide if ruling against the establishment of a church would violate citizens’ right to liberty. According to Dworkin’s theory, these abstract conceptions are shaped by community morality, i.e., how a particular community conceives them.
Similarly, to decide if denial of menstrual rights would violate the right to equality of a woman, it is essential to explore what comprises of equality under the Indian Constitution. Indian jurisprudence largely pays regard to the aspect of equity – the essence of which is captured in the motto, treaty equals equally and unequals unequally.
Past legal adjudication in India has proven that biological differences or systemic inequalities, which are outside the control of an individual, are taken into consideration in equality-based law making. For instance, children accused of crimes, are treated differently than adults for reasons concerning maturity levels (biological difference). Likewise, maintenance and alimony jurisprudence in India largely caters to the needs of women due to systemic differences which limited their access to finance. A closer example would be maternity leave for women on account of biological differences. All these differences fall within the conception of equality for the reason that they are uncontrollable. This jurisprudence is recognized, not merely nationally, but internationally as well. Giving birth, is a biological capability, possessed by only women and for that reason, it is ensured that biological-make does not prove to be a hurdle. Adopting this reasoning is not a new jump for the Indian legislature, as maternity leave is founded upon this.
Post his analysis on conceptions of equality, Hercules, being fully capable of drafting a whole political theory, would not have a good enough justification to deny menstrual right in a jurisdiction that affords maternity leave.
VI. Conclusion
A claim for Menstrual Leave Policy (MLP) before the judiciary squarely falls within a hard case. Hard cases, as termed by Ronald Dworkin in his work Taking Rights Seriously, does not posit application of a clear, explicit rule of law and thereby, requires judges to produce decisions based on the existence of a right. MLP, squarely falls within the ambit of right as stronger arguments of principle exist in its favour. Hercules’ elaboration of the Indian conception of equality easily accommodates menstrual right within its gamut.
Lauren Prem is a third year, undergraduate student, pursuing a BCom LLB (Hons.), Tamil Nadu National Law University, Tamil Nadu, India
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