By Tanvee Kanaujia
In a laudable move, the Scottish Parliament has recently passed a landmark Bill, the Period Products (Free Provision) (Scotland) Bill,[1] considering menstrual rights as important for people’s dignity. Through the Bill, Scotland aims to end period poverty by offering sanitary products free of cost.[2] This makes Scotland the first country in the world to do so, and shows that governance surrounding menstrual rights is either absent or weak in several countries, which are lagging behind Scotland. This could be on account of lack of political will and action, or the prioritisation of issues faced by these countries.
In India, a conspicuous lacuna in the governance of menstruation is the absence of a law. However, India has adopted the Menstrual Hygiene Management National Guidelines, 2015 (“Guidelines”) in pursuance of the Swachh Bharat Mission, an initiative of the Ministry of Drinking Water and Sanitation.[3] Further, the tryst between menstruation and the law has also taken centre-stage in the Sabarimala judgement,[4] and more recently, in discussions revolving around the Essential Commodities Act, 1955.[5] In this post, I argue that the existing regime governing menstruation in India, although appreciable in spirit, is highly inadequate, requiring a stronger implementation structure, and a wider coverage of issues. Accordingly, I first analyse the existing governance framework surrounding menstruation in India; thereafter, I focus on the lacunae in the framework and suggest ways to strengthen it.
The Menstrual Hygiene Management National Guidelines, 2015
In India, the Guidelines aim to[6] provide a framework for effective menstrual hygiene management (“MHM”). The Guidelines have a four-fold aim of providing access to knowledge and information; safe menstrual absorbents; water, sanitation and hygiene, and safe disposal of used menstrual absorbents.[7]
In addition to ascribing roles to various ministries in effective MHM, the Guidelines also apportion responsibility for effective management to state governments, and officials at the district and school levels, with a view to provide adequate training to officials to meet the end goal of capacity-building and creation of community awareness, such that it is not restricted to women.[8] Emphasis has also been placed on the creation of adequate sanitary infrastructure such as washrooms and disposal facilities.[9]
Pertinently, the Guidelines have fixed responsibility for the implementation and monitoring of the Guidelines on State governments, with funding from the IEC (Information, Education and Communication) component under the Swachh Bharat Mission.[10] These are funds primarily used for community awareness initiatives.[11] Further, the Guidelines acknowledge the cost barriers to accessing commercially manufactured sanitary products, and explore the financial viability of local production of low-cost napkins, with community and local women’s groups being given the responsibility to develop appropriate channels for ensuring access to menstrual products.[12].
Lacunae in the Guidelines
While the Guidelines are a step in the right direction, and reflect some thinking towards hygienic menstruation management, they leave much to be desired in the specific context of the below-mentioned issues.
a. Implementation and Monitoring
As stated above, the responsibility of implementation of the Guidelines has been placed upon state governments through IEC funds. However, statistically, IEC Guidelines for States and Districts issued by the Ministry of Drinking Water and Sanitation have reported poor utilisation of IEC funds by states, with less than 30% states in India even uploading their IEC utilisation plans[13] which would evidence the utilisation of funds towards MHM. The Ministry also notes that the reporting of activities and expenditure under this heading has been negligible.[14] While the Guidelines provide performance indicators at the state level for effective MHM evidence in support of effective implementation is poor, resulting in poor accountability of states.
b. Accessibility of menstrual hygiene products
Even though the Guidelines identify access to menstrual absorbents as an aim, the Guidelines merely contain a passing acknowledgement of the prohibitive costs of commercially manufactured sanitary napkins. Further, the Guidelines fail to develop alternatives to these despite recognising the often-poor financial viability of local production of menstrual products. [15] No responsibility of ensuring access has been placed upon government agencies. The effects of these issues are felt most by impoverished communities who are already being denied access to basic menstrual hygiene. Additionally, the Guidelines fail to tackle the following key issues in terms of ensuring enhanced accessibility to such products:
1. The Guidelines define menstruation as a biological process in women where there is blood and material discharge from the lining of the uterus.[16] Th definition is and excludes from its ambit transgender people, or women who have chosen to identify as men or the third gender, thus denying them the benefits of the Guidelines. The occurrence of menstruation needs to be identified with the biological construct of female bodies as opposed to the social construct of gender.
2. The focal point of dissemination of information and capacity-building under the Guidelines has been schools. However, having few focal points for the implementation of the Guidelines can lead to various issues, such as the ‘sanitary napkin crisis’ during the Covid-19 pandemic, with schools remaining closed to students. Schools have been a critical link in the supply chain of sanitary products, [17] and for creating adequate hygiene infrastructure, and their closure has given rise to problems of accessibility which the Guidelines have not anticipated, or provided alternatives to, as they should.
3. Till date, sanitary napkins have not been considered an “essential commodity” under the Essential Commodities Act, 1955[18] which would entitle it to receive the protection of fair price and uninterrupted supply. The pandemic saw the nation gripped with confusion as to whether sanitary napkins would be essential commodities, requiring a subsequent clarification that sanitary napkins would be considered an essential commodity to overcome supply issues and remove any manufacturing hurdles during the pandemic.[19] Further, in a petition before Bombay High Court seeking inter alia the effective implementation of the Guidelines, the Ministry of Health and Family Welfare has submitted that a decision on bringing sanitary napkins under the Essential Commodities Act would be taken only pursuant to consultation of relevant stakeholders;[20] thus, a decision on the inclusion of sanitary napkins in the Act is still awaited. The Guidelines also fail to touch upon the essential nature of MHM or access to such products in order to achieve MHM goals.
4. One would also have to take note of the Menstrual Hygiene Scheme introduced by the Ministry of Health and Family Welfare, which provides funds to States/UTs for decentralized procurement of sanitary napkins packs for provision to rural adolescents, at a subsidized rate of a pack of Rs. 6 for six napkins.[21] However, this program is restricted in scope to only rural menstruating women, and the effectiveness of the implementation of this Scheme is not known. Further, this Scheme ought to be incorporated in the Guidelines, in order to truly address the issue of access to sanitary menstrual products. Installation of free sanitary napkin dispensers at the expense of the government in educational institutions and public toilets could solve the issue of lack of affordable access to menstrual hygiene products.
c. Social Exclusion due to Menstruation
The Guidelines acknowledge that menstruation in India is considered a taboo and also talk about dispelling myths surrounding menstruation.[22] However, they lack a concrete plan to address various myths surrounding menstruation, and the consequent exclusion of menstruating women from the social and religious spheres. Further, Guidelines largely focus on adolescent girls, even though they briefly discuss the need to create community awareness. However, there is a need for greater thrust in the Guidelines towards creating awareness among older women and the community where myths are more deep-rooted. Moreover, as these myths are rooted in religious beliefs, overcoming the myths and their consequent effects of social exclusion may be challenging. For instance, the verdict of the Supreme Court in the Sabarimala case, which allowed the entry of women between ages 10 to 50 into the Sabarimala temple, was met with widespread protests and opposition. [23] . Further, the Supreme Court has allowed the review petition against this decision which remains pending currently.[24] Notably, in his opinion, Justice DY Chandrachud equated the treatment of menstruating women as impure with untouchability, considering it to be an anathema to constitutional values.[25]
Sustainable Menstruation
While the Guidelines talk about making commercially produced sanitary napkins accessible, a thrust towards sustainable menstruation practices is absent from the Guidelines. Globally, the UNICEF is committed to promoting Menstrual Health and Hygiene in adolescent girls, and the initiative of the UNICEF rests on four pillars, namely, social support, knowledge and skills, provision of facilities (such as WASH facilities or Water, Sanitation and Health facilities) and supply of materials.[26] In its guidance to the UNICEF staff on procurement and supply of materials for MHM, while stating that it is not the role of UNICEF to promote one kind of menstrual product over another so long as the health and dignity needs of girls are being met. However, the document discusses a wide range of menstrual products, from cloth, to reusable pads, to disposable napkins and menstrual cups.[27]
In India, a large percentage of women use home-made alternatives to commercially produced sanitary napkins, which include cloth and reusable pads in addition to other material such as hay or ash.[28] In order to encourage sanitary menstrual practices and discourage unhygienic practices that could give rise to various infections among menstruators, there is a tendency to promote commercially produced sanitary napkins as an alternative to reusable sanitary products. However, this tendency may discourage sustainable menstruation practices which can be promoted by creating adequate sanitation facilities. In that sense, to its credit, the Guidelines do focus on creating adequate sanitation for adolescents and women to wash reusable sanitary products. However, there needs to be a stronger focus on sustainable menstrual products in the Guidelines.
While promoting the usage of sanitary menstrual products, the Guidelines ought to keep in mind that the greater the access to menstrual hygiene products, the greater is the problem of disposal of these products, which are often not biodegradable and may take several hundred years to finally decompose in the environment. In addition to creating adequate infrastructure for disposal of these products, it is imperative that the Guidelines promote the usage of sustainably manufactured menstrual products which can also be disposed sustainably. Towards this end, producers of sanitary products may be given financial incentives to produce sustainable menstrual products.
In India, NGOs such as Boondh are promoting the usage of sustainable menstrual products such as reusable cloth pads and menstrual cups. However, even as the demand for sustainable menstrual products (in the form of menstrual cups and organically produced sanitary napkins) is growing, the price of these products makes them accessible only to a few. Further, products off the shelf which are commercially manufactured and easily available continue to be made from plastics. Adolescents and menstruating women need to be sensitised towards usage of sustainable menstrual products, proper and hygienic management of reusable products (such as proper washing and drying) and also be encouraged to dispose of these products sustainably.
Conclusion
In India, movies such as Padman have attempted to create awareness about menstruation, and to sensitise the population to the stigma surrounding it. However, in terms of inculcating a strong commitment towards MHM, depictions of this kind gain short-term traction, with their message of awareness being forgotten. Thus, there is a need for a stronger commitment at the societal level towards hygienic menstruation. To this end, while India has developed a set of Guidelines to address hygienic menstrual management, it is imperative that it focuses on effective implementation of the Guidelines, which ought to be strengthened and updated on a regular basis. With countries such as Scotland determined to end period poverty, India’s rudimentary framework needs to evolve if effective MHM is to be achieved. Through the identification of lacunae in the existing framework and suggestions to remedy these lacunae, I have attempted to suggest methods of strengthening the existing governance framework in India surrounding menstruation.
The author, Tanvee Kanaujia, is an alumna of the National Law School of India University (NLSIU), and currently works at a law firm in New Delhi.
[1] The Period Products (Free Provision) (Scotland) Bill, 2020 available at https://beta.parliament.scot/bills/period-products-free-provision-scotland-bill#target4, last seen on 20/12/2020.
[2] A. Broster, Scotland’s Pioneering Law To Make Period Products Free & End Period Poverty, Forbes (25/11/2020), available at https://www.forbes.com/sites/alicebroster/2020/11/25/scotlands-pioneering-law-to-make-period-products-free–end-period-poverty/?sh=1b9ddfc26d45, last seen on 20/12/2020.
[3] Menstrual Hygiene Management National Guidelines, 2015 available at http://www.ccras.nic.in/sites/default/files/Notices/16042018_Menstrual_Hygiene_Management.pdf, last seen on 20/12/2020.
[4] Indian Young Lawyers Association v. The State of Kerala, (2019) 11 SCC 1.
[5] Essential Commodities Act, 1955.
[7] Supra 3, at 2.
[8] Supra 3, at 6-7.
[9] Supra 3, at 3.
[10] Supra 3, at 2.
[11] IEC Guidelines for States and Districts, available at https://jalshakti-ddws.gov.in/sites/default/files/SBMG%20IEC%20Guidelines.pdf, last seen on 20/12/2020.
[12] Supra 3, at 16.
[13] Supra 12, at 2.
[14] Supra 12, at 2.
[15] Supra 3, at 16.
[16] Supra 3, at 6.
[17] Coronavirus sparks a sanitary pad crisis in India, BBC News (25/05/2020) available at https://www.bbc.com/news/world-asia-india-52718434, last seen on 20/12/2020.
[18] Essential Commodities Act, 1955.
[19] S. Dsouza, Government Expands List Of Essential Items To Include Hygiene Products, Bloomberg Quint (30/03/2020), available at https://www.bloombergquint.com/business/government-expands-list-of-essential-items-to-include-hygiene-products, last seen on 20/12/2020.
[20] O. Gokhale, Willing to make sanitary napkins ‘essential commodity’ but not without consulting all stakeholders: Centre to Bombay HC, The Indian Express (02/07/2020) available at https://indianexpress.com/article/cities/mumbai/willing-to-make-sanitary-napkins-essential-commodity-but-not-consulting-all-stakeholders-centre-to-bombay-hc-6485046/, last seen on 20/12/2020.
[21] Scheme for Promotion of Menstrual Hygiene among Adolescent Girls in Rural India, available at https://nhm.gov.in/WriteReadData/l892s/61090433691481276612.pdf, last seen on 20/12/2020.
[22] Supra 3, at 5.
[23] A. Pathan, Sabarimala: protest mounts against SC verdict, The Hindu (03/10/2018) available at https://www.thehindu.com/news/national/sabarimala-protest-mounts-against-sc-verdict/article25106618.ece, last seen on 20/12/2020.
[24] Kantaru Rajeevaru v. Indian Young Lawyers Association, 2019 SCC OnLine SC 1461.
[25] Indian Young Lawyers Association v. The State of Kerala, (2019) 11 SCC 1.
[26] Guidance on Menstrual Health and Hygiene, 16, UNICEF (2019) available at https://www.unicef.org/wash/files/UNICEF-Guidance-menstrual-health-hygiene-2019.pdf, last seen on 20/12/2020.
[27] Supra 28, at 8.
[28] M. Gopalan, Less than 20% menstruating girls & women in India use pads. Here’s how to overcome barriers, The Print (10/11/2019) available at https://theprint.in/health/less-than-20-per-cent-menstruating-girls-women-in-india-use-pads/317570/, last seen on 20/12/2020.
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