Anushka MehtaCo-Founder, Rightantra As most students and lovers of history would know, most fundamental rights, especially Article 21 of the Indian Constitution have been liberally interpreted since the post-emergency period. The main objective behind this broad interpretation is to make the exercise of the right more meaningful, especially for the benefit of the downtrodden and voiceless strata in society. One such instance of including smaller rights under the umbrella of a fundamental right was recently brought forward by the Madras High Court. In a matter that is presently being heard, a bench comprising Justices BV Nagaratha and J Khazi held that providing sanitary napkins to girl children and ensuring separate toilets for different genders would not only be an act of empowerment but also a step towards realising Article 21A, right to education. Facts:
A petition was filed, in the nature of a public interest litigation, before the Madras High Court for implementation of the Shuchi Scheme in Karnataka. This scheme was started in 2013 to improve the hygiene and health of adolescent girls by providing them with sanitary napkins. It was initially sponsored by the central government, however, since 2015 this responsibility has been bestowed upon each state. The scheme provides for the distribution of sanitary napkins to girls ageing between 10 to 19 years Unfortunately, in the most recent budget passed by the Government of Karnataka, in March 2020 no allotment of funds was made towards the Shuchi scheme on account of an overall reduction in grants to the Health Department. Court’s Direction: The High Court was notified of a survey conducted by the Karnataka State Legal Services Authority (KSLSA) carried out in association with the National Law School of India University (NLSIU) in 2019 wherein it was reported that out of 889 schools in the State, 63 percent of schools had separate toilets for girls, out of which 82 percent are function. The State was directed to file its response with a status of implementation of the scheme in 2021 and a timeline for approvals sought. The matter is now set to be heard on April 16, 2021. Jurisprudence: This is not the first time that an observation about sanitary hygiene in schools being an intrinsic part of the right to education under Article 21A has been made by courts. Recently in a sou moto action taken by the High Court of Jammu and Kashmir, in Court in its own motion v. Union of India, made similar observations. The action was initiated on account of the rates of girls dropping out of school due to a lack of awareness about menstrual hygiene. The High Court of J&K held that the right to health, including reproductive health, is derived from the Directive Principals of State Policy and Article 21 of the Indian Constitution. Further, the Court held that menstrual health must be included within the larger framework of Sexual and Reproductive Health Rights. Inadequate Menstrual Hygiene Management (MHM) options would be a major barrier to education, due to the stigma attached to menstruation compounded by a lack of basic sanitation and toilet facilities. Steps were to be taken far earlier with directions issued by the University Grants Commission, which issued a notification in 2018 for the installation of sanitary napkin vending machines and incarcerators in women’s hostels to ensure proper disposal of menstrual waste. Therefore, menstrual hygiene should not be taken lightly and awareness is key so that gender equality can be attained and girls are provided with their inherent right to education.
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