Introduction
Article 21A recognises education as a fundamental right. But mereenrolment in school do not fulfils the purpose of this right. Education being the most important factor to understand what all other rights a person has. TheSupreme Court in its recent judgment in Jaya Thakur vs Government of India has recognised the right to dignified menstrual health as fundamental right as part of right to life with dignity under article 21. The article analyses the constitutional dimension recognised under this case in educational institution.
Context
The petitioner filed PIL seeking directions for (i) providing free sanitary pads to every female student studying between 6 to 12. (ii)A separate toilet for female and male students. (iii)A cleaner and also asked for (iv)awareness program in educational institutions. The court examined the infrastructural problem of menstrual hygiene in educational institution.
What is the real problem
The problem identified in two-fold, First is related to absenteeism and second is about drop out from the school because of the menstrual cycle. Menstruation is the periodic discharge of blood and tissues via vaginal canal. Because of the lack of awareness instead of proper absorbent very unhealthy practice is prevalent in India such as using old cloths, ash, straw etc. Which not only affects the menstrualhygiene but also affects the reproductive health.
The Data given by the Shrama and Mehra who have analyseddozens of studies about menstrual health and ground reality is so shocking. It says that only around 50% female were aware of what is menstruation before menarche and around 7% of teachers are involved in menstrual education. Separate toilets in school were available in 56% of schools only. Although Swach Bharat SwachVidhyalayaabhiyan says that there has to be 1 Urinal for 20 students for residential school and 1 urinal for 25 students in non-residential school. Although direction of facilities of separate toilets, soap, water facility, mirror, hook to hang cloths and privacy walls are there but once this facility gets built it often gets neglected. Data shows that only fifty percent of it gets maintain leaving it unusable. These are the data available related to lack of MHM (menstrual health management).
Why education is so important
The Indian constitution has recognised education as fundamental right under Article 21A. Along with that many international laws such as UDHR declare under article 26 right to education as fundamental right. Judicially it is recognised that education is the stepstone to understand or realise other fundamental human rights. Also, Education doesn’t exist in vacuum, different social factors, norms shapes or affect education and education influence those factors in turn. The girl is often burdened with social barriers and structural oppression, social norms, stereotypes, taboos and it influence from early age. The girl child always been in the disadvantageous position in social structure. She has to face two layers of discrimination and has to face double burden along with burden of being girl in this society. She is dealing with intersection of the of disadvantages like if she is belonging the oppressed caste, she is not just dealing with caste-based discrimination on top of that she also has to deal with gender-based discrimination. Education serves as counterweight to these factors by equipping her with knowledge and awareness.
The right to education is not limited to mere enrolment in schools and only by giving opportunity to students to participate in education meaningfully, continuous and non-discriminatory manner fulfil the purpose of substantive right to education secured under article 21A. The article requires to remove the obstruction that has been against that enjoyment. Without regard to the social position of the group the substantive equality doesn’t give its true effect. Study of North India school about absenteeism shows that out of 500 students around 29% student absent because of menstruation. The reason of the absentee is because of the restriction at home, fear of stanning cloths, difficulty in changing cloths. Existing of absenteeism only because of such reason serves formal equality whereas article 21A demands Substantive equality. Of Substantive equality needs support through affirmative policies if there exist social barrier, and unequal treatment is constitutionally permissible if it is directed towards securing equal treatment.
The right to dignified menstrual health a part of article 21.
The right to life and liberty is wider right and it includesright to live with dignity. Dignity is inseparable facet of Right to life and liberty. Dignity is protected when a person is enjoying the life meaningfully without social barrier or burden. Menstruation in society already attached to stigma, stereotypes and humiliation and dignity suffers in existence of inaccessibility of MHM. Dignity is protected when such social barrier is avoided and in this case by securing MHM it can be avoided. The protecting education of student is part of substantiveright to life where if the student is facing any social issue, it conveysunfulfillment of the purpose. Absence of MHM compel student from either drop out from school or absenteeism which is disturbing the right to meaningful education. This doesn’t only become logistic failure but constitutional concern.
Stigma, stereotype is not just social issue. When stigma combines with lack of infrastructure and structural support it produces discrimination and reproduces stigma. The absence of adequate menstrual hygiene management in school creates false choice between attending school and staying at home during menstruation. Lack of MHM compelled student to remain absent and such choice is not voluntary but structurally imposed. Which take away the substantive right of education and education is part of dignity. Thus, menstrual health becomes indirectly protected through combined reading of article 21 and 21A.
RTE
Right to education act enacted to secure free and compulsory education to students. Section 3(2) says no child shall liable to pay any kind of fee or charges or expense which prevent her or himfrom pursuing elementary education. For instance, expenses related to washroom, uniform, bus services, electricity, medical assistance, books etc. Where as expense related to menstrual hygiene not only but if leads to drop out or absenteeism the it operates as structural barrier protected and guaranteed under the act. The act instituted for full participation in society in any circumstances protected under article 14,19 and 21. Whereas article 14 uphold equal access to space, services and information. Whereas article 19 guarantees the freedom to move and express oneself and article 21 ensures the right to live with dignity. Together these provisions guarantee not only formal equality but also substantive equality. Failure to build MHM structure is failure of dignity and to guarantee free and compulsory education.
Directions of the Court
The court commented that the environment of school is not of females only it consists of young boys, male teachers and male staff also. Until the whole ecosystem is sterilized of the stigma associate with the menstruation the infrastructure efforts would remain underutilized. Therefor court directed to arrange awareness program about menstrual health as role of men is also relevant to eradicate stigma related to that.
Directed all States and Union territories to ensure in every school gender-segregated toilets with usable water connectivity and its maintenance. Also asked to provide oxo biodegradable sanitary napkins manufactured in compliance with the ASTM D-6954 standards free of cost. While talking about disposable of absorbent SC say that every school has to be equipped with a safe, hygienic, and environmentally compliant mechanism for the disposal of sanitary napkins.
Conclusion
Equality cannot be examined in abstraction from social realties. Where biological difference intersects with social stigma to enjoy right to education the Constitution demands corrective intervention. The Court in recognising dignified menstrual health, did not not create a new right. It simply recognised that the Constitutional already protects menstrual health as a part of dignity, equality and substantive access to education.
Author Name- Ganesh Nanandkar
