Author: RIZUL SHARMA

INTRODUCTION:

The societies are governed by norms, customs and values instilled in it from the time immemorial. The changes are needed in society for the betterment of society. The introduction of certain new things or changes in the old structures or habits in society takes time. Sometimes the integral values are so attached with the customs and cultural as well as religious practices of the societies that they become taboos which affect the society and the certain section or the people living in the society. Menstrual Health is one such issue, especially in India. 

The Menstrual Health has recently been under the most controversial topic, which was even looked for after the Judgment of the Hon’ble Supreme Court in the case of “Dr. Jaya Thakur v. Govt. Of India and Ors.”There is some part of Indian society which views menses as a taboo due to their conservative mindset and thinking. But one thing is quite common in this that the women have to be the ultimate victim in all this as they have to face all the obligations as well as restrictions imposed by the society under the guise of religion and culture.

Hence, the Court in this case expanded the scope of Fundamental Right of “Article 21” Of the Constitution of India to include Right to Menstrual Health as the part of it.

ANALYSIS OF THE JUDGMENT:

The Court in the given case held that the right to life and human dignity, which are inextricably linked to the right to education, cannot be fulfilled without it.
The Writ petition by the Social Worker under “Article 32” of the Indian Constitution has been filed for the welfare of public and in the public interest with respect to:

1. Providing of the free sanitary napkins to all the female students studying in class 6 to class 12 and; 
2. Accessibility to separate toilets to all females in government aided as well as the residential schools. 
3. Certain other consequential reliefs were also asked which may deem appropriate for the public interest inclusive of maintenance of public toilets and awareness campaigns.

The Court discussed about the concept of Menstruation as well as the Menstrual Poverty which is being faced by the women belonging to the lower segment of society. The Court addressed the issue of Menstrual Hygiene Management, which is of crucial for the females, especially schoolgirls.

The fundamental issues as framed by the court in the present case are:

1. Whether the inaccessibility of menstrual absorbents and gender-segregated toilets violates the teenage girl’s Right to Equality as well as the equality of opportunity entrenched in “Article 14”, as guaranteed by the “Constitution of India”?
2. Whether the “Article 21” of the Indian Constitution could be interpreted to include Right to dignified menstrual health?
3. Whether inaccessibility or absence of menstrual absorbents and gender-segregated toilets is in violation to the “Article 21-A” of the Indian Constitution and the “Right to Free and Compulsory Education Act, 2009”?

The Supreme Court held that the non-availability of the menstrual absorbents and the gender segregated toilets have two-fold impact on the education as well as the overall development of the girl child. Firstly, it affects the education of the girl child; Secondly, due to menstrual poverty there are instances that the girl child cannot afford menstrual absorbents and other sanitation facilities.

The Court highlighted various judgments to address the issue of the equality of opportunity and observed that the girl child has the similar right to education and development unlike other gender and it cannot be taken away or cannot be hampered dur to presence of some obstructions. Menstruation cannot hinder their way of getting education and opportunities. “The inability to afford menstrual hygiene products, unavailability of gender-segregated toilets and the improper disposal mechanisms are some of the issues which directly establish the causal relationship between menstrual poverty and girls’ lower attendance in schools.” The Right to Equality and equal opportunity is the inherent right of all human beings and non-one shall be deprived of it. It is an inalienable right of human beings which must be protected by the state at any cost.

The Court observed that the Right to Dignified Life is also an important right provided to any individual which includes Right to Health as a part of it. The person can enjoy a dignified life only when they are having good health as well as well-being, which can be ensured by the access to proper medical care and sanitation. Hence, the adolescent girls and the female must be provided with the proper availability of gender-segregated toilets, menstrual hygiene products etc. for their enjoyment of right to dignified menstrual health and life as enshrined under Indian Constitution.

The Hon’ble Court gave the following directions:

1. With respect to “Toilet and washing facilities”:

1. Every State and Union Territory makes sure that all schools, whether privately or government-run, in both urban and rural areas, have functional, gender-segregated restrooms with usable water connectivity. 
2. All the maintenance, construction of the toilets in the schools must be in a way which ensures privacy as well as accessibility and must be in accordance with the need disabled persons.
3. All toilets must be equipped with all the sanitation equipment like soap and water, etc.
4. With respect to “availability of menstrual absorbents”:

1. The provision of free oxo-biodegradable sanitary napkins produced in accordance with ASTM D-6954 standards must be guaranteed by all States and Union Territories, regardless of whether the schools are privately managed or government-run, in both urban and rural locations.
2. Girls’ students should have easy access to these sanitary napkins, ideally in the restrooms via sanitary napkin vending machines. If this installation is not immediately possible, they should be available at a specific location or with an authorized authority inside the school.
3. Every state and union territory must make sure that all schools, whether privately or publicly operated, have Menstrual Hygiene Management (MHM) corners in both urban and rural locations.
4. With respect “awareness training and menstrual health and puberty”:

1. The State Council of Educational Research and Training (SCERT) and NCERT will implement gender-responsive curricula, specifically on menstruation, puberty, and other related health issues (PCOS, PCOD, etc.), to dispel the stigma and taboo surrounding menstrual health and cleanliness.
2. Regardless of gender, all educators must receive sufficient training and education on menstrual hygiene, including how to support and help female students who are menstruating.
3. Information about the Jan Aushadhi Suvidha Oxo-Biodegradable Sanitary Napkin’s availability shall be extensively shared via print, radio, television, and film advertisements, as well as outdoor publicity such as bus queue shelter branding, bus branding, vehicle wrapping, and wall paintings.

CONCLUSION:

Hence, it can be concluded that by way of this judgment an effort has been made by the Hon’ble Supreme Court to protect the Women’s right to menstruation by linking it to the Right to health and education hence, widening the scope of Article 21 of the Indian Constitution.

The Supreme Court observed in this case that the Menstrual Health is not a topic to be discussed in silence, it is the issue about which the awareness must be spread to the public at large and even men must play a significant role to females in this regard.

It only takes an effort to improvise thinking and spread innovative ideas in society which can be done by all people. Normalizing the Menstruation rather than considering it as a taboo is essential which can be done by the combined efforts of all irrespective of any gender.