Black, White and Red – The Curious Case Of Court Complexes And Washroom Equity For Women in India

When a PIL in this regard had been filed by Advocate Shailendra Mani Tripathi before the Supreme Court, the Apex Court had refused to entertain the same stating that it fell within the domain of policy. CJI DY Chandrachud also went on to observe that it was true that if employers were compelled to grant menstrual leave, it may disincentivize them from hiring women at all, in the first place.

While discussions regarding menstrual leave – to have or not to - are abound, there are certain other aspects as well, that perhaps require to be pondered upon, in this regard, particularly in light of this year’s theme for International Women’s Day, which is that of ‘Embracing Equity’.

“Equality is giving everyone the same pair of shoes. Equity is giving everyone a pair that fits”.

While equality refers to treating everyone the same way, regardless of their differences, equity emphasizes upon providing each person with what they need, while recognizing that not everyone begins at the same place in society. It is equity that is sought to be relied upon in order to pave the path for a more inclusive institution, workplace, and society.

But how far we have been able to achieve such equity, and menstrual equity in particular, in the country in order to ensure inclusivity, remains a question in itself, which this article seeks to address.

Bleeding with Dignity – Assuring Menstrual Equity

One stark problem faced by women in India is that of Menstrual or Period Poverty. There are 1.8 billion people in the world who undergo menstruation every month. Of these, there are around 400 million menstruators in India alone. Yet, a significant number of women in our country still face period poverty.

Period poverty can very simply be referred to as a lack of access to menstrual products, sanitation facilities, information, and infrastructure for disposal of such menstrual materials.

Period products are often regarded as ‘luxuries’ due to the range at which such products are priced, and due to the lack of availability of some products, as well.

In 2018, the Indian Government had declared tampons and sanitary napkins to be tax free, however, the fact remains that most of these products are still priced quite high. The more eco-friendly options such as menstrual cups are also not as easily available in order to make the switch. However, a silver lining here is that there has been a marked improvement in the number of women using hygienic menstrual methods, as evidenced by the National Family Health Survey.

Another dimension to attaining menstrual equity as had been mentioned before is achieving access to water, sanitation, and hygiene (WASH) facilities. For the same, ‘female friendly toilets’ are also crucial. The sanitation facilities required by females are different from those required by their male counterparts, and it is at this juncture that the concept of female friendly toilets assume relevance, as another important factor in truly ‘embracing equity’ in the workplaces and other institutions.

These include ensuring adequate water supply, such as well-functioning taps, health faucets, and the availability of buckets and mugs; locks and doors for toilet stalls for privacy; regular cleaning of such stalls, trash bins or other avenues for menstrual waste disposal; and regular monitoring of such disposal systems. As the authors quote in the article on ‘Makingthe Case for Female Friendly Toilets’, there is a need for continuous engagement and dialogue between the stakeholders and the relevant actors, and “the sustainability of female-friendly toilets remains dependent on the adherence to routine monitoring and evaluation of this infrastructure, both at the onset but also over time”.

A curious case in this regard appears to be how the sanitation facilities, menstrual equity, and even toilet parity for that matter exist and are maintained in courts of law which often espouse and uphold the principles of equality and equity.

The Absence Of Adequate Sanitation Facilities In Places Of Justice

With more women donning the robes and finding their way into the legal fraternity as lawyers, and judges, one would expect Court complexes to be spaces having adequate infrastructure, making them inclusive spaces keeping in mind the needs of women, as well.

Alas! The sad reality is that many of the court complexes lack basic infrastructure and sanitation facilities. As pointed out by Vidhi in its 2019 study, around 100 district court complexes did not have a separate washroom for women, and lacked basic hygiene.

This had been attested to by the former CJI N.V. Ramana, who had stated in 2021 that 26 per cent of the court premises had no separate toilets for women and that 16 per cent did not even toilets. Recently, the Union Law Minister Kiren Rijiju, had also informed the Rajyasabha of the same.

Even in those court complexes which do have separate toilet facilities for women, the state of such washrooms more often than not, appear to be deplorable.

In fact, most practicing women lawyers do try their best to not use such toilet facilities in Courts, unless they have no other option.

A young female lawyer who had practiced in the Karnataka High Court and lower courts until last year quipped, “The washrooms in the lower courts are quite terrible, at least until I had been practising back then. Either the stalls doors don't close, or there isn't any soap dispenser or the floors are really wet, and there is absolutely no facility to keep the files in case one has an emergency. Although every floor has two sets of washroom, some would still be locked, and I don’t understand why that is. Some of the State Commissions also did not have any proper toilet facility or hygiene maintained, and there would be spit marks, and no adequate water supply. The High Court is slightly better than the lower courts, but again, it also did not have proper doors”. She added that the disposal facility for sanitary napkins was also quite bad. “There would be a broken dustbin somewhere, and if you're lucky, it won't be filled with water,” she said.

Talking about the sanitation facilities in Madras High Court, another young female lawyer said, “It is a common opinion that the common washrooms in the High Court are quite bad, and that they stink. There is some facility available for disposal of menstrual waste, but over-all it isn’t all that great. There have been two new washrooms which have been constructed recently, which are relatively alright”. On the facility available in the City Civil Courts, the lawyer quipped, “the washrooms in the City Civil Courts are extremely bad. There is some facility for disposal of napkins there as well, but it does not come to be of any use at all, since it is terribly maintained. Secondly, even the doors cannot be latched properly in these City Civil Courts”. She went on to add, “So what most of us end up doing is that we drink less water so as not to use the washrooms there. Considering the High Court is air conditioned, it really does take a toll on us, since the urge to use washrooms is so much more in such conditions, yet, we do end up somehow resisting/controlling the same. Since Madras High Court is a huge High Court with so many litigants as well as Advocates, it is all the more necessary that the basic sanitation facilities be neat and well-maintained”.

A female lawyer practicing at the Punjab and Haryana High Court, Chandigarh, states, “I have encountered this issue that there’s never enough toilet paper rolls which is a big necessity in public washrooms as women are more prone to UTI infections. Recently, I had a word with a peon taking care of the court washroom, and on being asked why toilet papers are not available, the peon replied ‘Didi, wo bhejtey nahi hai, itna hi dete hai’”.

Although the situation in Kerala is relatively better than most, the same cannot be said about all of the lower courts in the State. “It is a very bad situation in some of the lower courts. Most Court washrooms and toilets are not very hygienic. The Court complex should have arranged facility for washrooms in all floors, but sadly, that isn’t the case,” a young lawyer practicing in a few lower courts in Kerala points out. But thankfully, the High Court and certain other lower courts seem to be faring well. “I once had to use the facility in Malappuram, and I must say, it was actually very clean,” another female lawyer said. A young lawyer who practices in the lower courts at Kottayam district, points out another facet to the issue, “We are one of the Bars that has a ladies’ room, which is a plywood enclosure in one corner of the bar association hall where the male colleagues roam about. However, one would hardly ever find junior lady lawyers resting there, which I believe is a reflection of the senior- junior hierarchy”. Regarding the sanitation facility in the Court complex, she says, “We do have a decent washroom, but it is not well maintained. A room to rest and a washroom to relieve oneself is a necessity that every lady should have in her work place and shouldn't feel shy to ask for”.

In certain other areas, the situation appears to be much better. A female lawyer who has practiced in the Delhi High Court and the Lucknow Bench of the Allahabad High Court says that the sanitation facilities at both places are well equipped. “Each floor of the commercial building in Delhi High Court and the Lucknow Bench of the Allahabad High Court has sanitary napkin vending machine. As regards the disposal, it is more upon the public to dispose it properly since there are facilities in place to dispose the same adequately. This I would say is better in the Delhi High Court since the civic sense in general is better there. The Lucknow Bench also has separate toilets for the disabled, which I think is a very good step, although it is not there in every floor of the building”.

In certain other legal institutions, even a separate washroom facility for women as such seem to be entirely amiss.

For instance, the officeof the Additional Labour Commissioner, Pune, seems to be missing this very vital aspect of having a separate toilet facility for women in their office. In fact, just like such Commissions, a separate sanitation facility for women is also markedly absent in legal offices.

“The offices are already such small spaces. There are no ways to have separate washrooms for women, hence. So, lady lawyers often end up using the Bar Association facility, where it would be slightly better,” a female lawyer said.

As trivial as it may seem, the issue still provides some food for thought since the lack of sufficient washroom facilities could lead to plausible health consequences, as well.

Considering the long hours put in by litigating lawyers, it is saddening to note that even such basic facilities are either absent or in a dilapidated condition. And this comes at a time when the State governments are even mulling proposals to have exclusive washrooms for the third gender. For instance, the Delhi government had mandated that all its departments, offices, district authorities, municipal corporations, state-run companies and the Delhi Police ought to have separate and exclusive washrooms for transgender persons. It is important to realize that it isn’t merely enough to have such structures in place, but to also see to it that they are well maintained and hygienic enough to be used.

“The structure of the legal profession even today across India is feudal, patriarchal, and not accommodative of women,” said CJI Chandrachud.

It appears that truer words could not have rung out when one takes a look at the very infrastructure of court complexes, that presents a strange case for ‘physician heal thyself’.

Sometimes, all it takes to ensure equity that paves the path for equality and inclusivity for women in work places can be as simple as ensuring they have a safe, hygienic facility to relieve themselves and avenues to safely dispose of their sanitary napkins during their red days, particularly in institutions that declare and protect such rights. It is to be remembered that females have distinctsanitation needs when compared to males, in order to manage their menstruation and other needs comfortably and with dignity, including easy access to water and soap, safety measures, such as locks, and mechanisms for discreetly handling menstrual wastes.

Menstrual leaves, if they do become a reality in every State in the country and not just in Bihar and Kerala, are great; but something as basic as having separate toilets in the Court complexes and legal offices (and every other institution/workplace, of course), are even better.