Assignment for Constitutional law and human rights

Submitted by
Pavithra S
Semester 1
MA/MSc Criminology and Crime Science
(SCBS)

Submitted to
Ms. Kirti Minhas
Assistant Professor
(SICMSS)

Menstruating women and culture

Menstruation or period is a normal bleeding of vagina that takes place as an event during a
woman's monthly cycle. A woman's body, every month, prepares itself for pregnancy. If
there are no chances of pregnancy to take place, the uterus (womb) sheds its innermost lining
called endometrium. The menstrual blood that comes out of a woman's body through vagina
during menstruation is partly blood and partly tissue from the uterus lining. This process that
extends for a period of about 5 to 8 days depending on different body types is characterized
starting from premenstrual syndrome (PMS) to severe pelvic cramps and fatigue.
Is menstrual blood impure?

Taking into consideration several scientific and medical Research as there is no particular
component present in menstrual discharge that is in any way a potential toxic substance to be
considered it to be impure. Studies have shown that they contain pluripotent stem cells that
can be used for any purpose. The blood component which is only 4-5 mg is the same as the
arterial blood. Therefore there should be no notion to exist that says menstruating women are
impure.

Culture and menstruation

Cultural aspects that are present in the society with respect to menstruation are innumerous.
Euphemisms for menstruation such as "that time of the month" and "untouchable period"
have been the prominent consequence of the cultural taboo connected to menstruation. Such
menstrual taboos are universal and conditioned us to consider it as a shameful and forbidden
process. Mensuration was there even before language came into existence. Therefore this
period along with other elements together helped in shaping language and many other
important areas. Menstruation, from my point of view, is what paved the way for generations
to take birth and move forward.

History of menstruating women being denied

Even though menstrual taboos were universal, there are literatures where it was seen from a
positive perspective. The ancient communities in Central Africa believed it to be protecting,
healing, sacred and considered it powerful and blessed by the moon. Egyptian medical text
shows that they considered it to be "purification" and such menstrual discharge is used as an
ingredient for several medical cures.
The origin of negative aspects of menstrual taboo were also prevalent in the same society
which considered it to be purification and healing. Many scholars kept arguing about the ill
effects of contact with menstrual blood for menstruating women. Some said it had a
depressive effect while other said they were a sort of natural pollutant due to the fact that it
limited sexual contact. Due to the theories in the thing about said ideas, menstrual negativity
spread like a forest fire. Some presumed that it could have been as a consequence of the idea
that it was toxic and has got a disease-causing effect. It was later disproven through
scientific ways that the research which took place included other reasons and not because
menstrual blood was toxic. Therefore it is clear that there existed a disputing or contrasting
condition about considering menstruation as sacred as goddess or as ritually unclean.

India and menstruation

India has got a long history connected with menstruation. The country where even saying the
word "menstruation" out loud is denied has even today maintained the same scenario, but
with the modern touch. Several social and cultural factors have been a barricade for any kind
of advancements in this particular area. This has been prevalent from the very early Vedic
times where it is often considered that the payment are entitled with lord Indra's guilt of
killing a Brahmin are murderer. With this, started the series of denials that women were
made to follow during menstruation. Both rural and urban areas have their own version of
denials ranging from restricting entry into Puja halls,kitchen, denials in offering prayers,
touching holy books, and sour foods like pickles. It also includes not allowing them to sleep
in bed, using separate clothes for that period of time and certain dietary restrictions too. The
country that worships female goddess Durga for her victory against the demon king and
celebrates it as a 9 day festival, a place that celebrates the first time in menstruators, and
considers them extremely powerful, is the same country that degrades women 's status
through menstruation. Seeds of such a negative perspective have been solved in every part of
the country and harms each and every girl or woman in one way or the other.

Impacts of the denials on woman

The practice of denying women from engaging in everyday chores also benefited a very few
women. It was a kind of relaxation or resting period for the women who were physically or
mentally drained. But as time passed on the major aim of providing them a break completely
turned into restricting them from enjoying their fundamental basic rights. Many women still
haven't realised that they are being abused or denied the basic rights provided to every
citizen, for a reason that they haven't chosen on their own but they were created with.

Menstruating women and human rights

When we deal with this particular topic we need to definitely add a real life incident that is
still taking place in India. The United Nations population fund highlighted a 15 year old girl's
experience with menstruation. This girl named Priyanka Mina belonging to Rajasthan is
made to sleep outside a house in a space which is just covered by a saree. She is also
supposed to use a separate set of clothes and utensils when she is on her periods and she is
not supposed to take them inside the house even after periods are over. The denials or
restrictions that are imposed on a girl or a woman during her periods are multi-dimensional.
Days straight away lead to breaking of the law.
Human rights are the fundamental rights that are provided to every individual regardless of
their age, sex, race, language and religion or any other status. Accordingly, denial of it on the
basis of whatever the issue is unlawful. And it is equally given to every individual in society
by means of their dignity.
Mensuration, to be discussed, is also included in human dignity. When girls or women are
not provided with or denied any basic right during their period it leads to not maintaining or
carrying forward the process of inspiration with dignity. Exclusions or shaming of any sort
can be considered to be breaking the basic principles of human dignity and fundamental
rights. The basic practice of turning the time of relaxation into a time of depreciation can be
due to any kind of gender equality, menstrual poverty, harmful customs or rituals and
inhumane ideas. It has to be understood that not only women or girls, but the transgender
man or any non-binary person who undergo menstration also faces the same may be a little 2
more. Since it is multidimensional, it has got various factors to be talked about.
Exclusion
It is seen in every section of society. Be it excluding them from engaging in any worship
related activities or restrictions on preparing food. The exclusion from any public spaces due
to the perception that period is unhygienic is completely human. It can be also self imposed,
but not involving themselves in any physical activities and poorly claiming any kind of a
public place is a denial of fundamental rights.

Barricading the opportunities

There exist another set of myths that due due to menstruation they might like the capacity to
carry out any sort of physical activity. They also say that since they are physically or
mentally drained they become less capable of it. This purely portrays gender inequality that
is imposed on the girls or the women. But the truth is that many women or girls have done or
are doing and will continue to do or carry out their duties extremely well even men in any
such discomfort.

Menstrual health and hygiene

Due to the tradition of decorating girls for women from their homes can be one reason for the
lack of proper hygiene provided to the section. Use of cloth and not proper exposure in the
Sun for drying of the cloth can lead to several health-related effects. Certain dietary
restrictions on them during this particular period of time also have several issues.
Unavailability of proper toilets, water, sanitary pads and proper food are also counted to add
to menstrual health and hygiene issues.
Onset of victimization
As girls undergo menarche, the first time of menstruation, the denial of rights big in right
then and there. They are considered to be ready for section availability and start a married
life. As a result of it, they are made to be victims of violence and several abuses. Child
marriages are a part of such concept and also rape or Child trafficking for employing them
for sexual work are also as a result of it.

Human rights that are denied

This particular group who undergoes menstruation are denied a lot of fundamental rights that
are available to every citizen in the country. Knowingly or unknowingly, society fails to
provide a proper setup for them in some way or the other. This situation leads to several
denials of rights to women and girls.

Right to health: Women and girls undergo a negative health impact either interest on them
or as a result of an awareness. They continue to face lack of supplies for example sanitary
pads and facilities like proper toilets to maintain healthy menstrual time. The myths of taboos
that are present in the society also block them from getting any help for any discomfort or
disorder they face during menstruation. As a result, the right to health that is provided to
every Citizen under article 21 of Right to life and personal liberty is denied completely. They
are therefore excluded from enjoying or undergoing a good standard of living that is
guaranteed to every citizen under this particular article by the government itself.

Right to education: This particular right is mentioned in the constitution of India as a

separate part in article 21(A). Education is not just a fundamental right but it is a way one can
empower the other. Education helps in bringing up or elevating the standard of living of the
people therefore the government has separately mentioned it in the article so as to ensure that
every person in the country should be given proper opportunity to receive education. There
can be a lot of reasons for this particular light to be denied. It can be due to the lack of proper
hygienic places or unawareness about maintaining good menstrual hygiene even today. Fear
of staining, unavailability of proper supplies like sanitary pads forcing them to use cloth can
highly cause discomfort as well as allergic issues. Therefore children avoid attending classes
during the menstruation and can in some way or other affect their academic performance.
Lack of proper treatment for any pain or disorder due to menstruation also adds to it. It can
be also due to the mis concept that they are ready for starting a sexual life and hence undergo
child marriages which stop them from attending classes or undergoing education. The above
few reasons cause several dropouts of children or poor academic performances to stop.
Therefore these are restricting their right to get a basic education that is promised by the
government. Denying education due to any misconception is a higher degree of breaking the
law that can highly affect the children.

Right to work: Improper awareness of menstrual hygiene and lack of facilities provided to
women in the workplace can be a reason for them to quit or limit certain job opportunities,if
not provided a private space that is safe and clean and a facility for managing menstrual
hygiene it in the workplace. Proper treatment if not identified and given to those women or
girls who are undergoing any sort of pain or discomfort during menstruation can limit them
from taking up any sort of job or perform well. An equal pay even for equal work or shaming
or employees faced also leads to the denial of such rights. And essence of article 15 on
prohibition of discrimination on grounds of religion race cast sex or place of birth is seen in
this particular topic. It is said that nothing in the particular section prevents the government
or state itself from providing any sort of provision for children and women. Utmost care
should be taken by the organisations that are providing working opportunities as well as the
government to create an environment that is safe, clean and comfortable for women to work
and maintaining a menstrual hygiene.

Right to water and sanitation: Proper toilet facilities with adequate water supply are still
not available to a lot of women or girls in the society. Comfortable places to take rest or even
slip are not provided to them that can add up to the already existing discomfort. A private
space that is both safe and clean is a must for maintaining menstrual hygiene. But many still
continue to face issues in obtaining this basic right. Article 21 of the constitution which
provides citizens of the country the Right to life and personal liberty includes the right to
water and sanitation. As per the law no one should be denied based on any grounds from
enjoying their fundamental rights.

Gender inequalities and untouchability: According to the right to equality, every girl or
woman should enjoy their rights that every man enjoys. The traditional customs of
considering men superior and providing only them with proper comfort and quality food
needs to be changed. Tagging them impure and treating them as a kind of untouchable
product is also a practice which is against article 17.
Indian Young Lawyers Association vs. the State of Kerala

When talking about discrimination on the basis of menstration for gender, the famous case of
Indian lawyers Association vs the state of Kerala has to be mentioned. This particular case
had brought a lot of controversies regarding the judgement and also the denial of payment
from entering a particular temple. Sabarimala is a temple that is located in the Western ghats,
Kerala's Pathanamthitta district where lord Ayyappa is worshipped. The temple is under the
control of the Travancore devaswom board (TDB). There has been a custom or a ritual of
prohibiting women between the age of 10 to 50 years from entering the shrine. It was
believed that the menstruating women between the age of 10 to 50 were not allowed entry
because Lord Ayyappa was a brahmachari. The Travancore devaswom board said that this
prohibition was as part of a religious practice that was followed by the lord Ayyappa
devotees. In 1991, the Kerala High court said that the fact of Lord Ayyappa being a
brahmachari itself is a prime reason for restricting women between the age of 10 to 50 from
entering into the temple. As a result women were legally banned from entering the
Sabarimala temple from 1991 to 2018.

But in 2018 this issue again came into the limelight and was brought in front of the Supreme
court. The petitioners argued that not allowing women of this particular age was not part of
any basic foundation of the religion. Restricting women from entering into the temple
because of the fact that they are impure is a pure practice of denial of the rights that are
provided in the constitution of India. They even argued that it was denying them the right
against discrimination that is mentioned in the article 15 (1) of the constitution. It also
suspends their right to follow religious freedom that is promised under article 25 (1).
A five member constitution bench of the supreme court dealt with this particular judgement.
In a forest one judgement of the court allowed women of all ages to worship in Sabarimala
temple. Chief justice Deepak Mishra, Justice RF Nariman, Justice AM Khanvilkar and
Justice DY Chandrachud were among the majority who supported this judgement but it was
only Justice Indu Malhotra who was dissenting against this particular judgement.
The supreme court in its judgement mentioned that devotion cannot be a subject to gender
discrimination. It focused on the fact that any sort of restriction on the basis of biological or
physiological features like menstruation is considered unconstitutional. It it dealt with
discrimination that was purely on the basis of biological factor particular to gender. It is
purely a violation of the right to equality and dignity of women. The stigma of considering
menstruating women as polluted and impure is a pure form of untouchability and such will
not be supported by the the Constitution of India. It also said that they do not form a separate
denomination just because they worship Lord Ayyappa. It can only be considered to be a part
of Hindu worship. Therefore the supreme court ruled out Section 3 of the Kerala Hindu
Places of Public Worship Act,1965.

As a result in September 2018 supreme court of India ruled that all Hindus without any
gender discrimination can enter into the Sabarimala temple. It also said that restricting
women or placing an exception in cases of women who are menstruating from entering into
the temper due to any sort of biological differences is equal to violating the constitution. It
also said that such a ban is a violation of Right to equality under article 14 and freedom of
religion under article 25.

Due to this landmark judgement there were several protests that were taking place in the
centre and the state throughout. Several women tried to enter the temple but then there were
threats for such entry therefore it failed. But in 2019 January of 2019, women who belong to
the banned age group entered the temple. Later on in February 2019 the Travancore
devaswom board who is in charge of the temple started allowing the women to enter the
temple according to the supreme court judgement.

Reference

UNFPA.(2021,June).Menstruation and human rights- frequently asked questions. United

Nations Population Fund.https://www.unfpa.org/menstruationfaq.

Kluwer,W.(2015,April). Menstruation related myths in India: strategies for combating it.

Medknow Publication.
 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4408698/#:~:text=Cultural
%20norms%20and%20religious%20taboos,being%20used%20by%20evil%20spirits.

UNICEF.(2018,May,25).FAST FACTS: Nine things you didn't know about menstruation.

United Nations Children's Fund. https://www.unicef.org/press-releases/fast-facts-nine-things-
you-didnt-know-about-menstruation

World Vision International.(2017, February,13). Menstrual hygiene rights are human

rights.Period. https://www.wvi.org/blogpost/menstrual-hygiene-rights-are-human-rights-
period

Constitution of India, Bareact.

Case Name: Indian Young Lawyers Association & Ors vs. The State of Kerala &
Ors.Citation: Writ Petition(Civil) No 373 of 2006. Parties name: Indian Young Lawyers
Association (petitioner). Travancore Devaswom Board (respondent).State of Kerala
(respondent).Pandalam Royal Family (respondent).Chief Thanthri (respondent).Bench:
Deepak Mishra, A.N. Khanwilkar, Rohintan Nariman, Indu Malhotra, D.Y. Chandrachud