SC: Menstrual hygiene a fundamental right

New Delhi: Bringing the right of access to menstrual hygiene and gender-segregated toilets within the ambit of fundamental rights, Supreme Court directed states and Union territories on Friday to provide free sanitary napkins to adolescent girls in all govt and private schools and also construct separate toilets for them on campus.

In a judgment jointly authored by Justices J B Pardiwala and R Mahadevan, the bench fixed a timeline of three months for the govts to enforce its direction. In order to ensure that its directions did not remain only on paper, it decided to monitor its implementation and posted the case for hearing after three months to examine compliance. "We wish to communicate to every girl child, who might have become a victim of absenteeism because her body was perceived as a burden, that the fault is not hers. These words must travel beyond the courtroom, law review reports, and reach the everyday conscience of society at large," the bench said.

The court passed the landmark judgement on a PIL filed by social activist Jaya Thakur after her lawyer Varun Thakur brought to the SC's notice various studies which showed that lack of access to menstrual hygiene is a big stumbling block for girls to get education, particularly in rural areas.

Failure to provide pads creates gender-specific barrier, says SC

The court said the absence of the measures entrenches gendered disadvantage by converting a biological reality into a structural exclusion which must be removed.

“Dignity finds expression in conditions that enable individuals to live without humiliation, exclusion, or avoidable suffering. The right to life under Article 21 of the Constitution includes the right to menstrual health. Access to safe, effective, and affordable menstrual hygiene management measures helps a girl child attain the highest standard of sexual and reproductive health. The right to healthy reproductive life embraces the right to access education and information about sexual health,” it said.

Observing that quality of education goes beyond textbooks, teachers, or classrooms, and it includes all the conditions that enable effective learning and continuity of schooling, the bench said the failure to provide sanitary napkins creates a gender-specific barrier that impedes attendance, and continuity in education, thereby defeating the substantive guarantee of free and compulsory education.

It directed measures be taken to spread awareness about it to ensure that menstruation should not be a topic that is only shared in whispers. It ordered NCERT and the State Council of Educational Research and Training to incorporate gender responsive curricula, more particularly on menstruation, puberty, and other related health concerns, with a view to break stigma and taboo associated with menstrual health and hygiene.

“It is crucial that boys are educated about the biological reality of menstruation. A male student, unsensitised towards the issue, may harass a menstruating girl child which may discourage her from attending school… Time is overripe that we recognise menstrual health as a shared responsibility rather than a woman’s issue. Awareness must not be limited to girls, but extends to boys, parents, and teachers. When menstruation is discussed openly in schools, it ceases to be a source of shame. It is recognised as what it is, a biological fact. Needless to say, it must be seen as a collective effort rather than a constitutional pull,” the bench said.

Regarding lack of gender-segregated toilets in schools despite almost two decades after the Right to Education law was passed, the bench said, “What emerges is a stark constitutional failure, inasmuch as, although the statute mandates barrier-free access to the school building and separate toilets for boys and girls, yet, even after almost 17 years of enactment of the legislation, many schools continue to lack basic necessities for students. The norms and standards laid down in the Schedule are not merely procedural in nature but are integral to the effective realisation of Section 3 of the RTE Act, and more particularly, the right to education under Article 21A.”
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