Inadequate Menstrual Hygiene Facilities Impeding Right to Education: Jammu & Kashmir HC Seeks Center's Response

The primary focus of the Bench of Chief Justice Gita Mittal and Justice Sindhu Sharma was over the difficulties faced by the female adolescents in exercising their Right to Education, when they are deprived of proper menstrual hygiene products or education about menstruation or menstrual hygiene.

The Bench said that such illiteracy about such an important subject will lead to unhygienic practices that have serious health consequences, and increased obstinacy, which will lead to an eventual dropping out from schools.

It has therefore instructed the Government of India and the Union Territories of Jammu and Kashmir and Ladakh to report on the situation of menstrual hygiene in the two UTs.

The Court also asked that menstrual health should be read along with the Right to Education, which has been enshrined under Article 21A of the Constitution of India.

The Right to Education Act, 2009 states that all children from the ages of 6-14 years should have compulsory attendance of schools and should complete elementary education. The Act also calls for gender-based segregation of sanitation facilities. The Bench held that achieving both of these objectives was not possible as there existed an imbalance in the gender dynamic that hindered equal access to educational facilities.

When addressing the Right to Education and menstrual hygiene, the Court stated, "Inadequate Menstrual Hygiene Management (MHM) options would be a major barrier to education, even in Union Territories of Jammu & Kashmir and Ladakh, with many adolescent girls dropping out due to lack of access to sanitation facilities, menstrual products and the stigma associated with menstruation. The difficulties faced by these young girls are compounded by the fact that there are several educational facilities and institutions without basic toilet facilities. It cannot be denied that separate and basic toilets are essential for ensuring constitutional guarantees to these children."

When talking about how the topic of menstruation has been dealt with historically, the Court observed that due to the lack of awareness about this topic, there is a lot of misinformation and taboo related to menstruation. The Court further remarked that such taboos have put a restraint on the life of women.

"Poor awareness of the physiology, unscientific attitudes, myths, and misconceptions including the notion that menstruating women are "contaminated," "dirty," and "impure" adversely affect their health and social lives. This has included exclusion from places of work, worship and the home, with a rigid hygiene centric routine aimed to prevent "pollution" of spaces which menstruating women may access," the Court said.

In this context the Bench referred to the Supreme Court's verdict in the Sabarimala judgment where it was held that "The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity."

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The Bench remarked that such myths force the girls into dropping out of school as they are ostracised for the time during which they are menstruating. This also affects the hiring of women in workplaces as the employers often feel that menstruation will bring down the productivity of the women. The Court further went on to say that such myths and misinformation is the reason why menstruation continues to be treated as a taboo and why in many communities, it is still "shrouded in a culture of silence and shame."

The Court remarked that menstruation in a hygienic manner is important to the dignity and well-being of women, especially in a democratic country like India.

The Bench further added, "It constitutes an integral component of basic hygiene, sanitation, and reproductive health services. Inadequate menstrual hygiene management compromises girls' education, health, and wellbeing. Therefore, efforts to address these inadequacies must involve provision of sanitation and hygiene facilities along with creating an enabling social and physical environment that addresses all menstruation-related needs."

The Court said that it is the responsibility of the states to educate children about menstrual health and hygiene and to make sanitary products accessible to all adolescents, especially those who cannot afford them due to financial constraints. It is important to note here that some states have introduced schemes that promote menstrual hygiene and health- the State of Kerala had introduced the 'She Paid Scheme' in 2017, which aimed at providing sanitary products to all the girl students and the Government of NCT of Delhi had launched the 'Rashtriya Kishor Swasthiya Karyakaram' for subsidizing the procurement of menstrual products.

The Government of India had also launched some schemes to promote menstrual hygiene and the court had mandated that Jammu & Kashmir and Ladakh should aim for effective implementation of these schemes in their respective Union Territories.

The Court has now given the following directives to the Government of India and the Union Territories of Jammu & Kashmir and Ladakh:

i) The respondents shall conduct an audit and consider the issues detailed hereinafter and, place a report before this court regarding the feasibility of the matters noted by us. In case measures are in place, status report thereof be filed before this court within six weeks from today.

ii) The status report shall set out the steps taken for implementation of the various Government schemes noted above.

iii) The respondents shall submit a report on the following:

a) Availability of affordable menstrual hygiene products to all adolescent girls. If necessary, such products being made available at subsidized rates or even free of cost either within the school or in collaboration with local health centres/ clinics.

b) Implementation of the current national schemes; development of contextual programs for the purposes of awareness generation; provision of sanitary products and establishment of required facilities; implementation of the policies formulated across all schools whether Government aided or unaided and minority schools; ensuring access of every adolescent girl to a trained female school teacher/ health councilor in the school premises on a periodical basis for imparting education about menstrual health, addressing concerns of the adolescent girls and for creation of awareness of personal hygiene; proper use and distribution of sanitary napkins in the school and at home and a day be also fixed say the last working day of the month for distribution of the sanitary products. Installation of vending machines in the school complexes should also be ensured.

c) Action plan for sensitization and education on the subject of menstruation and menstrual hygiene.

d) Each head of the school to nominate a female teacher as Nodal In-charge in his/her school for the above programme and 13 WP(C) PIL no.36/2020 for distribution of sanitary napkins among girl students free of cost.

iv) The Respondents shall place a report before this court with regard to the implementation of the Menstrual Hygiene Scheme under the "Rashtriya Kishore Swasthiya Karyakaram" of the Government of India; the grant received and utilization thereof as also the out lay of the Government of the Union territories of Jammu & Kashmir and Ladakh on the scheme. Similar information to be provided regarding implementation of other relevant schemes under the different ministries as and beyond mentioned in this order.

v) The Respondents shall file an affidavit giving the details of programmes in place with regard to the issues noted above as also the budgetary outlay on the same and the manner in which the schemes are being worked.

vi) The respondents Nos. (ix) & (xii) shall submit details of educational programmes/ schemes as also schedule of the programmes for imparting education on the schemes in the schools of UTs of Jammu and Kashmir and Ladakh.

vii) The respondent no. (xiv) shall conduct an audit of every school in Jammu & Kashmir and Ladakh with regard to availability of separate working toilets for girl students in the schools. The respondents shall place on affidavit an action plan regarding construction of hygienic and separate toilets inclusive of Menstrual Hygiene Management (MHM) features for girls in every school giving timelines within which the same shall be completed. This entails facilities with adequate lighting, ventilation and other amenities such as clean water, 14 WP(C) PIL no.36/2020 soap and disposal facilities such as incinerators inside the cubical. Furthermore, these sanitation facilities need to be inclusive and account for those with varied needs such as the differently abled.

viii) The respondents shall place a report regarding adequate means of sanitary waste disposal mechanisms taking into account environmental concerns.

The Court has instructed that the aforementioned affidavits are to be filed within six weeks. Matter is now listed for hearing on February 10, 2021.

Related News:

Recently, the Delhi High Court directed the Central Government to consider as a representation, a plea seeking period leave and facilities of periodic rests, separate and clean toilets and provision of sanitary napkins to woman employees during menstruation period.

While grounding the relief in the physical pains experienced by women during menstruation, the petition stated: 'In our society, menstruation and complications related to it are still considered as taboo; they are shrouded in overwhelming shame and inability of female employees to discuss their bodily functions and impairments openly. There is a stark absence of official recognition for this actual, tangible physical condition that only the female employees have to undergo every month. There is simply no opportunity or agency for female employees to frankly air their grievances and raise demands for menstrual benefits.'

Case Title: Court on its own motion v. Government of India & Ors.

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