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The Jammu and Kashmir High Court, on its own motion has taken cognisance of adolescent girls unable to receive education due to lack of access to sanitation facilities and menstrual hygiene products. The then Chief Justice of J&K High Court, Gita Mittal along with fellow judge Justice Sindhu Sharma passed this order on December 8, on Justice Mittal’s last day in office before her retirement. The court will next hear the matter on February 10, 2021.
The court referred to a Delhi High Court judgment in Setu Niket v. UOI (WP (C) 5909/2017) whereby the Delhi government was mandated to provide free or subsidised access to menstrual hygiene products in schools and to make arrangements for education on menstruation and menstrual hygiene. The court had also called for the issues of menstrual health to be read in conjunction with the fundamental right to education under Article 21A of the Constitution
The court thus observed,
“the Right to Education Act 2009 (the “Act” hereafter), provides for compulsory attendance and completion of elementary education for all children in this age group. The Act also specifies that schools must have gender-segregated sanitation facilities. Both these objectives cannot be achieved with an imbalanced gender dynamic that prevents equal access to educational facilities.”
The court also stressed upon the right to health and stated how menstrual health must be included within the larger framework of Sexual and Reproductive Health Rights (SRHR). The court also relied upon the apex court’s landmark judgment in Indian Young Lawyers Association and Others (Sabarimala Temple, In Re) v. State of Kerala and ors (2019) 11 SCC 1, whereby the court had ruled that discriminatory emphasis placed on biological differences constituted a violation of Article 14 – the Right to Equality, and emphasized that “the social exclusion of women based on menstrual status is a form of untouchability.”
Difficulties faced adolescent girls
The court opined that inadequate Menstrual Hygiene Management (MHM) was a major barrier to education as adolescent girls were dropping out of school 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 the constitutional guarantees to these children,” the court stated.
Poor awareness of 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 added.
The court pointed out that girls coming from economically deprived families are unable to afford hygienic sanitary products and hence are forced to abandon education, thus depriving them of their right. Financial incapacity has been the largest barrier for sanitary napkins and has been the major reason for adolescent girls dropping out of schools, said the court. The court also relied upon a report by the Citizen Bureau published on May, 31 2016 which concluded that around 20% of the girls drop out of school on reaching the age of puberty.
Menstrual Hygiene
Stressing upon menstrual hygiene, the court stated, “The ability to manage menstruation in a hygienic manner is fundamental to the dignity and well-being of women, especially in a democratic society… 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 suggested a three-pronged approach: firstly, the spreading of awareness about menstrual health and unboxing the taboos that surround it; secondly, providing adequate sanitation facilities and subsidised or free sanitary products to women and young students, especially in disadvantaged areas; thirdly, to ensure an efficient and sanitary manner of menstrual waste disposal.
Role of the State
The order also stresses upon the responsibility of the state to empower children not only about knowledge and information but also removing all financial constraints in the way of children and the adolescents accessing the sanitary products. The court then stated that the Union Territories of Jammu & Kashmir and Ladakh should undertake an audit as to the applicability of central government schemes in this regard and their implementation.
The court impleaded Union Ministry of Health and Family Welfare; Ministry of Education; Ministry of Women and Child Development; Ministry of Drinking Water and Sanitation; Ministry of Housing and Urban Affairs; Ministry of Rural Development and Ministry of Chemicals & Fertilizers; Department of Pharmaceuticals as well as at the UT level, Health and Family Welfare Department; Education Department; Social Welfare Department as well as Housing and Urban Development Department.
The court issued the following directions to all respondents to submit report on:
a) Availability of affordable menstrual hygiene products to all adolescent girls.
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… 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
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
e) adequate means of sanitary waste disposal mechanisms taking into account environmental concerns.
The court further directed:
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
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
The court also directed UTs of Jammu and Kashmir and Ladakh to submit details of educational programmes/ schemes as also the schedule of the programmes for imparting education on the schemes. It further directed J & K’s Housing and Urban Development Department to 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 court expects these reports within 6 weeks and will hear the matter on February 10, 2021.
The complete order may be read here.
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