We need to talk about caste when we talk about menstrual justice

There has been increased interest in thinking about menstruation in terms of menstrual (in)justice, and the difficulties that women and non-binary persons face in negotiating pathways for fair treatment on different needs arising from their experience of menstruation. A recently concluded national conference on menstrual justice organised by Inga Winkler from the Central European University, Vienna and the Safai Karamchari Andolan in Delhi provided an opportunity to think through the issue of menstrual (in)justice in the Indian context. While there has been considerable debate in India on the various aspects of sexual and reproductive health, the discussion on menstruation and its stigmatisation has received only episodic focus, that masks more than it reveals.

The essence of the Indian debate, in my view, is located in the title of an essay by Safai Karamchari Andolan leader Deepthi Sukumar: ‘Caste is my Period’. Her argument is clear: menstrual taboos are embedded in the patriarchal design of caste orders to the extent that women mobilising around the entry of women into the Sabarimala temple used the hashtag ‘#women are not untouchable’.

The framing of this quest for inclusion is deeply problematic in the manner in which it separates women from ‘untouchables,’ without unsettling untouchability practices, proscribed under Article 17 of the Indian Constitution. The Supreme Court of India picked up this thread of reasoning in the Sabarimala judgement in the Indian Young Lawyers Association when it held forth on anti-caste philosophy, while limiting the decision to women’s temple entry as an expression of menstrual injustice—although the term was not explicitly used.

How might we make menstruation ‘’the entry point for addressing the role of caste and patriarchy in the complex oppression faced by Dalit women’’, as Sukumar asks?

There is a growing academic corpus on the subject that ranges from visual representations to studies of ‘period poverty’, to the law’s silence on periods. Margaret Johnson, in her 2019 essay on ‘Menstrual Justice’ that draws on accounts in the US, defines menstrual injustice as ‘’the oppression of menstruators, women, girls, transgender men and boys, and nonbinary persons, simply because they menstruate.’’

However, it is my argument that there can be no “global template” to understand menstrual injustice—especially since menstruation ethnography must be culturally, historically and spatially rooted. It is through ethnographic particularities that assemblages of a larger inclusive narrative on menstrual justice may be crafted. From an Indian standpoint, Johnson’s is an incomplete description/definition because menstrual injustice in a caste supremacist society folds into untouchability practices, incarcerating menstruants from Dalit and minority groups and Dalit men engaged in sanitation work especially, in unspeakable ways reinforcing the stigma of untouchability through the heightened caste exclusions around menstruation. We need to shift the focus away from Brahmin and Brahminical communities and focus our reflections on the Dalit experience in order to dismantle the opacities that structure menstruation evangelism today.

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Tied to the growing concern of ‘menstrual stigma’ is the judicial discourse and policy declarations in India and the global North on the importance of sanitation, clean toilets and the goal of declaring the country ‘open defecation free’. The stark contradiction in these two interlocked concerns—stigma and sanitation—is brought home to us through the arduous labours of the Safai Karamchari Andolan and illustrated in Sukumar’s telling of her encounter with the safai karamchari who went down a manhole to clear the drainage block and surfaced distraught, holding a soiled sanitary pad. To anticipate my argument, unless we think annihilation of caste, we will never be able to move from verbose declamations on ‘justice’ to actual transformation into a just society.

Faultlines in menstrual hygiene management

A quick look at reported case-law in Indian appellate courts threw up a list of 663 cases in which the term ‘menstruation’ had been used. A speed reading of a random selection of these cases showed that the larger context was either marriage/divorce (the date of last menstruation or the period between two menstrual cycles as the most reliable markers of ‘time’ in women’s lives); rape/sexual assault followed by pregnancy (the stoppage of menstruation leading to discovery of rape); protective measures in custodial facilities—for women with disabilities, and shelters/safe houses for women who had been trafficked, for example.

Citing National Family Health Survey (NFHS 5) reports on increased use of hygienic menstrual protection, a recent editorial of The Hindu observes that ‘(a)n irrefutable link has been established between menstruation and dropping out of school, because of stigma, and patchy or no access to sanitation (in terms of access to products, toilets and water). That little has been done to address this all these years reeks of callousness’ (10 November 2023).

While the editorial sets out the facts and causal factors identified through credible surveys, the elephant in the room is the social profile of school dropouts who have ‘patchy or no access to sanitation’—a point I will return to. Can we hazard a guess that it is these children who also do not have access to domestic sanitation and therefore falter on ‘hygiene management’ in their homes and neighbourhoods as well?

In the 2017 case of Setu Niket vs. Union of India – purportedly filed on purely altruistic grounds—the plea was raised within the remit of Article 21A and the Right To Education Act, 2009, besides asking for several measures to be put in place in schools, also speaks of the need for a national policy on the matter. The 2020 case The Court On its Own Motion vs. Government of India & Ors, the High Court of Jammu and Kashmir situated the issue of menstrual justice as an Article 21 and 21A concern—placing it firmly within a reading of the fundamental right to life, personal liberty, dignity and the right to health under Article 21; and the fundamental right to education under 21A. However, the judgement also marks early hysterectomies as part of the menstrual taboo – an oversimplification of the appropriation of labouring women’s bodies in an exploitative labour market broken by caste.

The judgement written by Justice Gita Mittal rues “unscientific attitudes, myths, and misconceptions including the notion that menstruating women are ‘contaminated,’ ‘dirty,’ and ‘impure’ (that) adversely affect their health and social lives. This has included exclusion from places of work, worship and the home, with a rigid hygiene centric routine aimed to prevent ‘pollution’ of spaces which menstruating women may access.”

In 2023, in the case of Dr Jaya Thakur vs. Union of India, the Supreme Court of India shifted the focus to menstrual hygiene management (MHM), casting responsibility on State and union governments to put in place a uniform national policy and submit periodic reports on strategies and plans and details of budgets. The reliefs the petitioner, a social worker sought were: “(i) free sanitary pads to every female child studying between classes 6 to 12; and (ii) a separate toilet for females in all government aided and residential schools; and …other consequential reliefs… including the maintenance of toilets and the spread of awareness programmes” (para 1, emphasis added).

The Rajya Sabha in March 2023 received a report of a committee concerning the introduction of menstrual leave for the benefit of women employees of the Central Government, noting that “menstruation debilitates most women and affects their productivity and performance at workplace”. The question here was placed within the remit of Article 42 (just and humane conditions of work) and the corresponding Article 7 of the International Covenant on Economic, Social and Cultural Rights. Making adequate provisions—including menstrual leave—the Committee felt ‘will have a positive impact on the female labour force participation rate in the formal sector and will help unlock the gender dividend for inclusive and broad-based growth.’ This was also placed before the Lok Sabha later that month.

Finally, in November 2023, the Ministry of Health and Family Welfare uploaded the Draft National Menstrual Hygiene Policy, 2023, which linked the issue of menstrual justice with the Sustainable Development Goals (SDGs), and attempted, rather weakly, to shift the emphasis to equity and recognition of vulnerability. SDG 6: clean water and sanitation in this document is a key focus.

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The Government of India document ‘Menstrual Health in India: An Update’ (undated) hosted on the USAID website folds menstrual health into menstrual hygiene and consolidates the transition into MHM governmentality in India: ‘The history of menstrual hygiene management in the country is interesting to track. It moved from deep, uncomfortable, shameful silence around the issue just a decade ago to the contemporary time when there is a day dedicated annually to MHM i.e. May 28, which is observed as the Menstrual Hygiene Management Day. From being absent from the public health agenda to having a dedicated program on MHM in the country now, menstrual hygiene has come a long way.’ The document ‘seeks to highlight the issues around menstrual hygiene, efforts taken by the government and civil society organisations and social businesses’.

Add to this the 2019 documentary about a menstrual-pad-making microbusiness that won the Academy Award for best short documentary; a year earlier the biopic on Arunachalam Muruganantham inventor of the pad-making machine was a wild success; and we have emojis and apps. Most significantly, national and State-level governments, courts and NGOs are furiously engaged in ‘mainstreaming’ menstruation.

The meta keyword—that is missing from these governmental moves—is CASTE. It is an excluded presence.

Caste and menstrual (in)justice

The deep oppressions of caste and the forced labour the caste system extracts provide the living architecture of state and society built on the logic of caste in its actual workings, although certainly not by constitutional design.

Menstrual injustice is not limited to menstrual health; menstrual health is not limited to menstrual hygiene; menstrual hygiene is not limited to its ‘management’ and sanitary pad evangelism; and menstrual waste disposal is less about incinerators and fundamentally about the entrenchment of violent, carceral caste orders—in urban and rural areas. The experience of sewerage cleaners in urban areas and unceasing reports of sewerage deaths of safai karamcharis, predominantly Dalit, mostly male, must force us to re-examine claims on urban areas making ‘progress’ in MHM.

The experience of safai karamcharis in rural areas, disproportionately women, as Bhasha Singh’s book Unseen: The Truth about India’s Manual Scavengers opens out to us, must push us to challenge easy recourse to statist discourses that lull us into complacency. Additionally, where there is a spiralling of the politics of hate against minority communities, especially Muslims, the bulldozing of homes and neighbourhoods that is part of state practice in some parts of the country, raises the red flag on every aspect of menstrual justice—from public provisioning of hygiene products to public sanitation—that this essay reflects on.

On a twin track, the Supreme Court’s judgement in the case of Balram Singh vs Union of India also decided in 2023, on the proscribed practice of manual scavenging is the latest in a long line of court orders and judgments on this subject invoking the prohibition of untouchability; the outlawing of forced or involuntary labour and the freedom against exploitation—in a practice already covered entirely by Article 17, the SC/ST Prevention of Atrocities Act and The Prohibition of Manual Scavengers and their Rehabilitation Act, 2013. Before extending the reach of Article 17 to cover Hindu women’s temple entry, we need to ask why a practice fully covered by Article 17 and special legislations needs a Supreme Court judgment seeking audits of performance from all governments. What does this ‘callousness’ in the matter of abolition of untouchability as state responsibility point to? What are its implications for menstrual justice?

It is counterfactual to assert that children from vulnerable and poor Dalit communities ‘drop out of school’ —historically, their absence from the schooling system points to their being obstructed through systemic practices that are embedded in the apartheid of caste. To point to the illiteracy of parents and the unwillingness of children is to divert attention from the core problem. The predominant justification for MHM offered by the government and courts alike is that it will enhance the delivery of education for girls. This is a thrust that has its origins in anti-caste movements and Dalit women’s leadership in those struggles. However, we would do well to remember that education, whether through the prevention of early marriages or through MHM— challenges caste orders in fundamental ways. It is a triad, as Dr. Ambedkar declared in 1942: Educate, Agitate, Organise.

I return to the elephant in the room. Why are sanitation and water provisions in rural areas ‘callous’ as The Hindu editorial tells us? The last rung of governmental actors who actually deliver and surveil menstrual hygiene at the village level are the ASHA workers from the local communities who themselves have been on a long strike protesting unfair labour standards, treatment and low wages. Fairness and dignity for women and non-binary persons, in the workplace and in society generally, is a continuum. The blowback from caste discrimination in dealing with caste prescriptions and proscriptions on menstruation will therefore hit the frontline workers first as we witnessed painfully in the case of Bhanwari Devi in Rajasthan, unless, of course, programmes are designed in ways that keep the apartheid of caste in place. In which case, the point of speaking of menstrual injustice is defeated as evangelism striated by caste is unacceptable. If the frontline workers decide to act transformatively, theirs are the ‘bodies on the barricades’ to borrow from cultural theorist Brahma Prakash—the task before the state and court is far more arduous than putting down bullet points on good practice.

Why is it necessary to dismantle the opacity of the word ‘sanitation’ that figures ever so often in the discourse around MHM in India, and indeed in the SDGs as linked to MHM in this country—specifically SDG 6: clean water and sanitation?

This question, and the ideological biases it interrogates is evident in the February 2019 decision of the Government of Delhi to mechanise sewer cleaning (a public need and state responsibility). Instead of acquiring the machines, taking responsibility for their maintenance and making them available to those engaged in this labour equitably, the government announced loans with interest and staggered payment available to people engaged in manual scavenging (entirely impoverished Dalits) who wish to ‘buy’ a machine, arguing that ownership ensures diligent maintenance and care.

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Can there be a greater injustice and derailment of constitutional guarantees? It is state ownership of the occupation of manual scavenging (denoted by its euphemism ‘sanitation’) and its performance through mechanisation organised equitably and with fairness and dignity by the state that will ensure maintenance and care of public sanitation—not the private ownership of machines by social groups imprisoned by caste and impoverished by the state. The exponential rise in the distribution of menstrual hygiene products cannot break the stigma if there isn’t simultaneously a radical reorganisation of labour engaged in sanitation work. At the same time, the increased demands on sewerage workers occasioned by the callous disposal of used products will open out another end of the Dalit experience of menstrual injustice—in this, for Dalit men engaged in this form of forced labour.

Various contradictions of menstrual justice

Caste is a system of graded inequality, and a division of labourers, not a division of labour as Ambedkar famously declared. In introducing the draft constitution in the Constituent Assembly, he made a powerful reference to ‘constitutional morality’, marking it as the basis for a democratic and peaceful body politic and making a distinction between constitutional morality and ‘public morality’—the latter containing encrustations of habits of discrimination that the constitution sought to displace and uproot.

The deep oppressions of women in caste society, the non-derogable right to dignity of labour, the ban on untouchability, and his focus on socialism with state ownership of key industries that would pave the way for a free society devoid of oppression of one class by another in India are particularly relevant in thinking these intertwined concerns through. Professor Upendra Baxi, referring to Babasaheb Ambedkar’s speech in the Constituent Assembly where he famously speaks of India entering a life of contradictions observes that he is ‘‘the only Indian thinker to speak of contradictions.’’

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In an unpublished interview with this author, Baxi delineates six types of contradictions that need deep reflection: ‘’Value contradictions; normative contradictions; institutional contradictions; material contradictions; cultural/civilisational contradictions; economic contradictions’’. In the interlocked question of menstrual injustice, we find every one of these entrenched and mutually reinforcing each other.

How might the question of justice—social, economic and political, as guaranteed in the Preamble to the Indian Constitution be framed anew using the dual apartheid of caste and menstruation as the lens—move beyond hashtags that celebrate menstrual overflows on social media, feel-good policy documents and judgments, and high praise from international agencies like USAID that have global currency? I believe that it must begin with casting the responsibility to protect within the constitutional scheme, on the state to open pathways for dismantling caste apartheid. For in the liberation of Dalit people from the thraldom of caste lies the liberation of all women from menstrual (in)justice in India. How might this transgressive praxis open new ways of engaging from the margins across identities and locations for what poet Adrienne Rich (1951) called ‘a change of world’?

Kalpana Kannabiran is Distinguished Professor, Council for Social Development, New Delhi. This is an abridged version of the keynote address delivered at the National Conference on Menstrual Justice, New Delhi, 11 March 2024.