In February 2020, college authorities, including the principal, of the Shree Sahajanand Girls Institute (SSGI) in Bhuj, Gujarat, allegedly forced over 60 girls to remove their undergarments to check if they were menstruating. This shocking act, which rightly caused outrage, followed complaints that the girls had entered the temple and kitchen in the premises while on their period, which is against the institute’s rules. Four persons were later arrested.

The stigma attached to menstruation and restrictions in the private and public sphere for the duration of menstruation have long been part of women’s lives in India. The stigma finds its roots in the notion of purity and pollution attached historically to menstruation. This was explained exceptionally by Justice D.Y. Chandrachud in Indian Young Lawyers Association v. The State of Kerala (2018), known popularly as the Sabarimala case, a decision that India is still struggling to accept. He reasoned — and rightly so — that any social practice which excludes women from participation in public life as a result of their menstruation is discriminatory on the ground of their sex. This is because it is drawn from the notion of menstruating women being “impure”, a notion which targets the physiological feature of being women.

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The first ground for rejecting such practices is thus differential treatment, which directly discriminates women on the ground of their sex and is impermissible under Article 14 of the Constitution. Viewed from another lens, it is also against the notion of substantive equality adopted by the Constitution. In fact, it supports a more formal notion of equality of ‘separate but equal treatment’. Women are treated differently because they have distinct physiological features than men but are nevertheless equal to men. An attractive explanation also used to justify caste discrimination previously is nothing but a guise to perpetuate and exacerbate regressive patriarchal notions of our society and must also be readily dismissed under Article 14.

That apart, such social exclusion can be attacked on the ground of privacy. Incidents such as what took place in SSGI not only attack the ‘sex’ of women, but also impact a deeply personal and an intrinsic part of their privacy, namely, their menstrual status. Restrictions of movement imposed on these students are one of the many attempts of state and non-state actors to take control of their person. It is an outrageous exercise of power to prevent them from leading a dignified life during their period. It is undoubtedly an excessive invasion of a biological feature that makes them women. This surely cannot be the intent of our Constitution and its values we adopted, and needs to change.

Taking cognisance of the incident at SSGI, the Gujarat High Court, in early March this year, proposed to introduce a set of guidelines that prohibit the social exclusion of menstruating women from private, public, religious and educational places. The court also emphasised on the negative impact created by such practices on a woman’s emotional state, lifestyle and, most significantly, her health. While surely a ray of hope, the effect of court intervention is yet to be seen in a society where previous decisions of courts categorically holding menstruation to be a part of the fundamental right to (private) life have failed to change societal notions surrounding it.

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The hope for women is that society will slowly but surely get past the taboo around menstruation, and abhorrent practices discriminating against menstruating women will be considered abnormal. That will be a society where no exclusion will be practiced and tolerated, and no discrimination will be perpetrated. It will be a society where women can freely live dignified lives, nurturing all facets of their womanhood. And it will be a society where women will be considered neither polluted nor impure during their menstruation, but will be treated with respect.

Shivani Vij, an advocate, is pursuing a Masters degree from the University of Oxford

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To reassure Indian Muslims, the PM needs to state that the govt. will not conduct an exercise like NRC