Legal omissionThe draft constitution should include a provision against untouchability practised during menstruation
The April 25 earthquake and its aftershocks left scores of people homeless. Many managed to escape death from fallen objects with nothing but a shirt on their backs. However, in the aftermath, many adolescent girls and women, instead of feeling relieved that they had survived the quake, were worried about their menstruation cycle. It was a matter of grave concern for women who had been rendered homeless.
Initially, most relief agencies did not think about the women’s need for sanitary pads. Hence women organisations became actively engaged in the distribution of over-the-counter sanitary pads and reusable sanitary napkins to earthquake-affected adolescent girls and women. This generated a debate whether distributing over-the-counter sanitary pads to women, particularly in the villages, was a good idea in terms of comfort, accessibility, affordability and sustainability. Many argued that such pads would pollute the environment. Even as the debate raged on, menstruating girls and women were found to be relieved to get sanitary materials of whatever kind.
Be as it may, this earthquake inadvertently helped break the silence regarding menstruation in Nepali society. Dozens of articles on menstruation were published in the daily and weekly papers, blogs—this led to charged discourses in the social media. The faculty and students of various universities, while distributing sanitary packages (Mahinawari Jhola), also held community dialogues regarding menstruation. In such programmes, adolescent girls and women expressed anger at the menstruation stigma and also talked about their expectations from the state to eliminate ‘gender-based untouchability’. Adult men, elderly women and male youths in those communities also supported their argument.
Find a new term
Feminist theories tell us that untouchability due to menstruation is a manifestation of patriarchal subordination of women. Indeed, gender-based untouchability is against women’s rights. It clearly infringes the right to lead a dignified life as enshrined in Article 21 of the draft constitution.
The ‘politics of menstruation’ starts right from how menstruation is described in the Nepali language. Nepali dictionaries describe this periodic/cyclic biological occurrence with terms such as ‘Nachhune’—one who cannot be touched—and ‘Para Sareko’—one who has, albeit temporarily, moved ‘away’ from normal household activities. So, menstruation continues to be depicted through a hegemonic patriarchal perspective which has a ‘social meaning’ instead of a ‘biological meaning’. Therefore, to do way with the patriarchal politics of menstruation, dictionaries should be rewritten by omitting the social meaning of the monthly cycle.
Nepal has come a long way since the abolition of caste-based untouchability in the Muluki Ain 1963. The 1990 Constitution also rejected untouchability based on occupation, caste and ethnicity. Clause (4) of the right to equality in Article 11 of the 2007 Interim Constitution stipulates, “No person shall, on the basis of caste, be discriminated against as untouchable, be denied access to any public place, or be deprived of the use of public utilities. Any contravention of this provision shall be punishable by law.” To strengthen this constitutional commitment, Caste-based Discrimination and Untouchability (Offence and Punishment) Act 2011 has also already been enacted. Against this backdrop, isn’t it appalling that gender-based untouchability related to menstruation is persistently considered a non-political and non-legal issue?
Clauses (1), (3) and (4) of Article 29 of the draft constitution, which deal with rights against untouchability and discrimination, state that there shall be no untouchability or discrimination of any kind to any individual on the basis of caste, ethnicity, origin, community, profession or physical condition in private and public places, including the workplace. They further stress that any such act of hate or ideology of untouchability based on caste will be discouraged. Furthermore, Clause (5) states that untouchability of all kinds and grave acts of discrimination shall be considered a social crime punishable by law and the victims of such acts shall have the right to be compensated through legal means.
In spite of the progressiveness and inclusiveness of Article 29, it remains silent on ‘gender-based untouchability’. This is in conflict with Article 21 which talks of the right to lead a dignified life for all people—this includes women who make 50 percent of the total population of this country. Furthermore, the omission is also against Clause (3) of Article 43 on women’s rights which states that there shall be no physical, mental, sexual, and psychological or any other kind of violence or exploitation of women based on religious, social, cultural traditions or customs, or other bases.
Dignity for all
As a redress against gender-based untouchability attached to menstruation, the Supreme Court issued a directive to the government of Nepal back in 2005. Accordingly, there is a ‘Guideline to Eliminate the Custom of Chhaupadi 2007’ in place. ‘Chhaupadi’ is an extreme form of gender-based untouchability practiced mostly in the Western hill districts of the country. Despite this, discrimination against menstruating girls and women persists throughout the country across class, caste and ethnicity differing only in severity. Even so, its violation of ‘dignity’ of menstruating girls and women is the same for all.
Hence it is imperative to insert the notion of gender-based untouchability in Clauses (1), (2), (3) and (4) of Article 29, the Right against Untouchability and Discrimination. Additionally, Clause (3) of Article 43 concerning women’s rights must also add that ‘gender-based untouchability’ shall be considered violence against and exploitation of women. Better still, drafters could create a separate clause under Article 43 named ‘Women’s Rights Against Gender-based Untouchability’.
By doing so, the draft constitution can create cracks in the deeply entrenched patriarchal practice in Nepali society.
Bhadra is Professor Emeritus of Gender Studies, Tribhuvan University