ESTABLISHING THE UNCONSTITUTIONALITY OF MENSTRUAL EXCLUSION PRACTICES IN INDIA.

• Author: Srinivasan, Divya
• Position: Symposium Conference: Are You There Law? It's Me, Menstruation

INTRODUCTION

Socio-cultural norms, stigmas, and taboos associated with menstruation in India take a number of different forms, often resulting in severe restrictions on menstruators, which are described in Part II, below. In fact, a 2016 study found that only one in eight adolescent girls in India faced no restrictions at all during menstruation. (1) The constitutionality of menstrual exclusion practices has most famously been challenged in the Sabarimala case, where the Indian Supreme Court in a 4:1 majority found that the law restricting entry of women of menstruating age into the Sabarimala temple violated women's constitutional rights to religion and equality. In Part III, analyzing the judgment in Sabarimala, this Article will explore the potential of applying the verdict in Sabarimala to raise constitutional challenges to other forms of menstrual exclusion practices in the country.

1. Scope of Menstrual Exclusion

   Menstrual exclusion largely refers to those practices that restrict, inhibit, and limit menstruators' agency to participate in everyday life. This could potentially have consequences that range from mild to severe psychosocial distress and trauma, to violations that manifest differently in spaces of home, places of worship, schools, and workplaces. As acknowledged by a group of United Nations Human Rights Experts:

   The stigma and shame generated by stereotypes around menstruation have severe impacts on all aspects of women's and girls' human rights, including their human rights to equality, health, housing, water, sanitation, education, freedom of religion or belief, safe and healthy working conditions, and to take part in cultural life and public life without discrimination. (2) As part of a campaign to #StopPeriodPenalty in India, Boondh undertook an online survey between November 2020 and March 2021 to build evidence on the various forms of menstrual discrimination. The survey (3) (unpublished), currently with 1,543 respondents, confirmed the top places of occurrence of such practices are homes/private space (67%), places of worship (63%), followed by schools (28%), workplaces (15%), public places (5%), and medical institutions (3%).

   In spaces where exclusion and non-participation were lesser as seen in the table above, structural inequities of exclusion and discrimination showed up in the form of the far more prevalent forms of forced or imbibed practices and shaming. (4) 44% and 45% of respondents reported shaming in schools/educational institutions and public places, respectively. 55% and 25% reported gaslighting and lack of paid menstrual leave in workplaces.

   Menstrual discrimination includes forms that propagate social seclusion, medical or surgical suppression, that may cause physical disability and harm, (5) lack of opportunity, or a limited degree of freedom are all intertwined with the way menstruators' bodies are perceived to be bodies of reproductive function/labor. These exclusions arise by virtue of "deemed impurity" around the bleeding phase of the cycle, invisibilizing the other aspects of menstrual cycle that contribute to reproductive labor (6) of limited biological agency and choice.

   The institutions of family and religion oppressively propagate these forms of exclusion, which pervade other organized and unorganized institutions as well. It is also within the ambit of "health needs," (7) where menstrual health ought to be recognized as a vital sign of health institutionally and is amplified by menstrual exclusionary practices that enjoy cultural and constitutional impunity.

   The forms of exclusion (8) experienced by menstruators in India include the following.

   1. Menstrual Exclusion Practices Within Private Spaces and Homes

      Menstrual exclusion practices within the home include the denial of menstruators' rights to pray, cook, clean, touch, or be in the presence of others or, specifically, men in the household, partake in funeral or cremation rituals, religious or ritualistic festivals, access to one's own bed/clothes, or access to facilities meeting minimum Water Sanitation and Hygiene (WASH) standards. Menstruators are also shamed and ridiculed for staining during menstruation and have their cycle tracked or monitored by their families. These practices within the household essentially amount to a practice of untouchability. The complex interplay of religion, caste, and gender (9) further aggravate the way in which menstruators experience menstrual exclusion. (10)

   2. Exile through Enforced Menstrual Hut Practices

      A number of communities across India continue to practice banishment, whereby menstruators are placed in enforced isolation to huts or rooms outside the main house during their periods. (11) These huts normally have very basic amenities. Enforced menstrual hut practices are linked to impacts on the physical safety and health of menstruators, as they are vulnerable to sexual assault, natural calamities, and animal attacks, and have access to limited WASH facilities, nutrition, exercise, and education during their periods.

   3. Exclusion from Places of Worship

      Forms of exclusion from places of worship include restrictions on access to temples, mosques, churches, and other institutions, (12) but also family gatherings at wedding halls, party halls, homes, and cremation grounds. (13) This exclusion affects menstruators' psychosocial health...