Explained: Gujarat High Court’s guidelines to end menstruation taboo, discriminatory practices

SSGI, a self-financed college having its own girls’ hostel, is run by a trust of the Swaminarayan Temple and is affiliated to the Krantiguru Shyamji Krishna Verma Kutch University. It was in the aftermath of this incident that two activists filed a PIL before the Gujarat HC, seeking that the constitutional court declare the need to frame legislation that deals with the exclusionary practices against women on the basis of their menstruation status.

The Shree Sahjanand Girls Institute in Bhuj. (Express photo)

What has the PIL sought and who are the parties involved?

At the time, the Gujarat Mahila Manch had demanded the “removal of the warden with immediate effect” of the Bhuj hostel. The statement was issued by 1,291 women, including activists Manjula Pradeep, Persis Ginwalla, Nirjhari Sinha and Mallika Sarabhai. In March 2020, the PIL was filed before the Gujarat HC by Ahmedabad-based social activist – Nirjhari Sinha, who is also the founding member and chairperson of Jan Sangharsh Manch in Ahmedabad and Jharna Pathak, faculty member at Gujarat Institute of Development Research. The petitioners, represented by advocate Megha Jani, are seeking the court’s direction to government authorities to frame guidelines to prohibit such discriminatory practices especially in educational institutions, hostels and living spaces for women studying, working and others, whether private or public, taking a leaf from the Vishaka guidelines, which were formulated following a PIL in SC. The petitioners have also sought to set-up an effective mechanism to see to it that the guidelines are adhered to and followed by all such institutions.

The PIL, specific to the incident that triggered the litigation, has also sought that the court direct SSGI and any and every other institution run/managed/administered by them must be directed to stop social exclusion on the basis of menstruation status with “immediate effect.”

Respondent parties in the litigation include the state and central governments along with SSGI, Nar Narayan Dev Gadi Sansthan (a Swaminarayan temple gadi), which runs SSGI.

What have been the petitioners’ arguments so far?

The arguments made so far have been primarily three-fold. First, it has been argued that treating menstruating women differently amounts to a practice of untouchability. Secondly, while several laws have been enacted aimed at preventing gender discrimination, given the rampant superstition, taboo and myths around menstruation that results in ostracisation and discriminatory rituals, a specific law addressing abolition of untouchability of menstruating women must be thus brought in force as the Bhuj incident is only an “indicator” of an otherwise widespread problem. Thirdly, exclusion on the basis of menstruation status is not only an infringement of women’s bodily autonomy but also an infringement of right to privacy. Apart from arguing that the practices are violative of fundamental rights, the petitioners have also highlighted the denial of equal opportunities such taboo and discriminatory practices lead to, with a large number of girls dropping out of school when they begin menstruating. It was also highlighted that a special provision is also required to be made in view of the Convention on Discrimination on all form of Discrimination against Women. The petitioners have relied on the Supreme Court’s Sabarimala temple entry judgment where a 4:1 majority bench had held that the temple’s practice of excluding women’s entry is unconstitutional.

Gujarat High Court (File Photo)

What has the Gujarat HC observed in relation to ending the taboos and myths around menstruation?

A division bench headed by Justice JB Pardiwala while taking up the matter in December 2020 had observed that the petition in public interest is something “extremely important.” The court’s observations and proposed guidelines take a step towards addressing unscientific taboos and myths that persist and urges the state government to raise awareness among various strata including health workers, field and community health workers etc. The bench’s order also stresses on the need to normalise conversations around menstruation.

The bench has not minced words to note that “menstruation has been stigmatised in our society,” built up due to the “traditional beliefs in impurity of menstruating women and our unwillingness to discuss it normally.” The bench has acknowledged that in India, since the past “many decades, mere mention of the topic has been a taboo” and such taboos about menstruation have a long-lasting impact on girls’ and women’s “emotional state, mentality and lifestyle and most importantly, health.”

Of the nine points proposed as plausible guidelines, the key remains the first point which states: Prohibit social exclusion of women on the basis of their menstrual status at all places, be it private or public, religious or educational. The guidelines also list the state government’s role in raising awareness, including the topic in school curriculum and sensitisation drives.

How have other courts reacted in the recent past pertaining to menstruation?

The Sabarimala temple entry judgment of the Supreme Court in 2019 had addressed the evil practices of menstruation, with the judgment noting, “Notions of “purity and pollution”, which stigmatize individuals, can have no place in a constitutional regime. Regarding menstruation as polluting or impure, and worse still, imposing exclusionary disabilities on the basis of menstrual status, is against the dignity of women which is guaranteed by the Constitution.”

The Delhi High Court in November 2020 had asked government authorities to treat a PIL seeking direction to grant paid period leave to all women employees for four days each month and payment of overtime allowance in case the women opt to work during the menstruation period, as a representation.

However, the Rajasthan High Court in 2018 had deemed premenstrual stress syndrome as a sufficient ground to plead defense of insanity in a criminal appeal. The judgment led to the acquittal of a woman for murder and attempt to murder for pushing three children into a well. Menstruation was discussed at length as the accused had pleaded innocence on grounds of being afflicted with ‘pre-menstrual stress syndrome’ that made her lose control over her emotions. The court had ultimately observed, “According to the position emerging from the evidence in the light of such settled law, the appellant has been able to probabilize her defence that at the time of incident she was suffering from unsoundness of mind and was labouring under a defect of reason triggered by premenstrual stress syndrome.”

What next?

Before issuing any concrete directions, the division bench has given an opportunity to the state and central government to opine on the guidelines that are being proposed by the bench. The bench clarified that the proposed guidelines are only “a prima facie consideration of the issue in question” and given the “very delicate issue” the court deems it necessary to hear all the respondents and other stakeholders. “A healthy and meaningful debate or deliberations is necessary in the present litigation,” the bench concluded.