Nirjhari Mukul Sinha v. Union of India (2021) - Social exclusion of women on basis of their menstrual status

DATE OF JUDGMENT: 26th February, 2021.
 

JUDGES: J.B. Pardiwala, Ilesh J. Vora.
 

PARTIES

• Nirjhari Mukul Sinha (Appellant)
• Union of India (Respondent)

SUMMARY: The following case deals with the issue of whether or not a woman can be excluded from private and public places, including religious and educational places, on the basis of their menstrual status.

OVERVIEW

1. It was reported, in this case, that 68 undergraduate girls were paraded through a college into the restroom and forced to individually remove their undergarments to prove that they were not menstruating.
2. The incident in question took place after the hostel rector complained to the principal that some of the girls had been violating their religious norms, specifically for menstruating females.
3. An appeal was filed by the appellant seeking directions for a law to specifically deal with the exclusionary practice against women on the basis of their menstrual status.
4. It was specifically submitted before the court that the practice which is being followed and encouraged of exclusion of women on the basis of their menstrual status is violative of human, legal and fundamental rights of women, more particularly, those as enshrined under Articles 14, 15, 17, 19, and 21 respectively of the Constitution.
5. The matter is now before the High Court.

ISSUE

The following were the issues analyzed by the High Court:

• Whether the issuance of a guideline is warranted in the instant case.
• Whether the practice of exclusion of women on the basis of their menstrual status is violative of the provisions of articles 14, 15, 17, 19 and 21 of the Constitution.

IMPORTANT PROVISIONS

• Art. 14 of the Constitution: Equality before the law
• Art. 15 of the Constitution: Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.
• Art. 19 (1) (d) of the Constitution: Freedom to move freely throughout the territory of India.
• Art. 21 of the Constitution: Right to life and personal liberty.

ANALYSIS OF THE JUDGMENT

1. The counsel for the appellants submitted before the court that although menstruation is a physiological phenomenon, a natural part of reproductive cycle experienced by every woman, yet it has always been associated with taboos and myths, which exclude women from their daily course of lives. The myths are based on an assumption that a woman is impure and would pollute during her menstruation.
2. The counsel further argued that the incident which occurred is an indicator of the fact that there could be many other institutions, hostels and other common houses, spaces for women following and imposing such exclusionary practices.
3. The appellants would further submit that the exclusionary practices like excluding a woman from touching water, vessels, entering kitchen, entering sleeping quarters, entering temples and/or forcing any woman to stay in isolation during the period of her menstruation is violative of human, legal, and fundamental rights of women, more particularly those under Articles, 14, 15, 17,19 and 21 of the Constitution as also of the promise of securing justice, equality and liberty to all the citizens declared in the Preamble to the Constitution.
4. Citing the judgment given in the case of Indian Young Lawyers Associations & Ors. vs. State of Kerala & Ors1, the counsel for the appellant argued that exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in can have no place in a constitutional order founded on liberty and dignity.
5. Therefore, citing the aforementioned instances, the counsel for the appellant requested the court to issue guidelines to address this issue.
6. The Additional Solicitor General, appearing on behalf of the respondents, submitted before the court that a report has been prepared, a copy of which, shall be furnished to all the other learned counsel appearing in this litigation for the purpose of assisting this Court in adjudicating this litigation.
7. It was later clarified by the Additional Solicitor General that this report is a preliminary report and as and when some more information is required, the same shall be furnished to this Court.
8. The court, on hearing both sides of the case, held that there is a need to issue guidelines to address this issue, following which the court proposed to issue guidelines for the State Government to follow.
9. The Court observed that the young girls often grow up with limited knowledge of menstruation because their mothers and other women shy away from discussing the issues with them and that there is also need to spread awareness among the school teachers regarding menstruation.
10. The Court also observed that the gender-unfriendly school culture and infrastructure and the lack of adequate menstrual protection alternatives and/or clean, safe and private sanitation facilities for female teachers and girls undermine their right to privacy.

CONCLUSION

The crux of the present case is the need to issue guidelines to deal with the exclusionary practice against women on the basis of their menstrual status.

The court, in the instant case, has ruled in the affirmative, and has issued guidelines to address this issue. The court took the liberty to address the issue of taboos and stigmas that are associated with the issue of menstruation. It was held by the court that such taboos about menstruation present in many societies impact on girls’ and women's emotional state, mentality and lifestyle and most importantly, health. Large numbers of girls in many less economically developed countries drop out of school when they begin menstruating. In addition to this, the monthly menstruation period also creates obstacles for the female teachers. The challenge, of addressing the socio-cultural taboos and beliefs in menstruation, is further compounded by the fact the girls’ knowledge levels and understandings of puberty, menstruation, and reproductive health are very low.

Therefore, the court held that it is of prime importance that the issue of social exclusion of women on the grounds of their menstrual status is addressed.

Click here to download the original copy of the judgement