An Introduction to The Women’s Sexual, Reproductive, and Menstrual Rights Bill, 2018

Parliamentarian Shashi Tharoor’s 2018 bill on the restoration of the sexual, reproductive and menstrual rights of women creates a space at the table for a conversation which has so far only been confined to the more liberal mindsets of the country. By putting forth a bill which crystallizes women’s agency and independence in a positive sense, the questions plaguing women’s emancipation shift from an abstract sort of in-the-air discussion about their theoretical rights, and instead focus on the realities of making these rights available to women across social and economic strata. The Women’s Sexual, Reproductive, and Menstrual Rights Bill, 2018, (‘Bill’) is by no means the one stop solution to tackling women’s rights issues – but it’s definitely a good place to initiate a conversation.

What does the Bill say?

In terms of sexual rights, the Bill grants women autonomy over their sexual rights and aims to ensure that consent is not presumed where it does not exist. The motive as Mr. Tharoor explains is to shift from a ‘no-means-no’ paradigm of consent to a much more explicit ‘yes-means-yes’ paradigm of consent, where consent is encouraged to be expressly articulated as opposed to being tacitly implied to. The Bill aims to accomplish this by criminalizing marital rape, as well as by prohibiting the use of unrelated facts such as a woman’s ethnicity, education, profession, clothing preference, social circle, personal opinion, past sexual conduct or any other related grounds in presuming her sexual consent.

The Bill mandates free access to sanitary pads in government schools and in public offices for all women. In doing so, it acknowledges that menstruation is an essential involuntary bodily function which cannot be stigmatized. It further grants a woman, irrespective of her marital status, the right to terminate a pregnancy except in cases of female foeticide or where the foetus is viable. Child survivors of rape have been given the absolute right to terminate pregnancy unless a risk to life is involved. In that regard, the Bill proposes amendments in two respects- one, by deleting Exception 2 to Section 375 of the Indian Penal Code, 1860, which refers to the legality of marital rape, and two, by providing for menstrual equity under The Medical Termination of Pregnancy Act, 1971.

Is the Bill truly groundbreaking?

Unfortunately not. Does that mean the Bill in itself is redundant? Not at all.

The biggest value addition of the Bill is in how it has created a conversation about the realities of transforming women’s rights into action. Consider the marital rape exception, which has for long been clamoured against to be new for most of the general public. And yet, the omission of an archaic provision through a Lok Sabha Bill does not imply that the Parliament is willing to legislate and remove the provision from the law. Certainly not, when vast majorities of rural voter bases do not consider marital rape, rape at all. There is considerable doubt as to how receptive Parliament as a whole might be, with a general election looming around the corner.

Similarly, the Bill provides for the availability of sanitary pads at government schools, and at premises of public authority free of cost. This is to be channeled from about 100 crores per annum out of the Consolidated Fund of India. The Bill also suggests amending the Right of Children to Free and Compulsory Education Act, 2009 and recognizing every public authority as defined under the Right to Information Act, 2005, in order to better align itself with its objectives. And yet the general lump sum gives rise to the regular tangents of corruption, red-tapism and a general apprehension that it is unlikely that the funds (in their entirety) will reach the persons so designed to reach.

In terms of menstrual sanitation specifically, are there other challenges the Bill has to tackle?

Menstrual hygiene is a tricky issue to tackle and that is notwithstanding the traditional stigmatization and oppressive practices that are already institutionalized within society. From an entirely personal viewpoint, it seems hasty and imprudent to tackle an aspect of menstrual hygiene without addressing the Gordian knot that is the menstrual hygiene quandary in India. Menstrual hygiene has faced more than its share of stigmatization – a proposal that rests on the full and free distribution of sanitary pads is not without its concerns.

Menstrual sanitation has been conceived of on the symbolic identity of the sanitary pad alone. And anyone who buys a six-month stock for regular use, can attest to what an expensive, uncomfortable and inconvenient affair it is. Sanitary pads (at least, the packaged, company processed ones most of us buy) are costly, difficult to dispose and are absolutely non-reusable. The Bill thus far fails to recognize that there are other sanitation options when it comes to menstruation — menstrual cups, cotton pads, even the trusty tampon must be given as choices of menstrual hygiene products, if the issue is to be appropriately addressed. Women in rural and urban areas alike cannot have true agency over their sexual rights if they do not have any access to choices, and the knowledge and freedom to exercise those choices. Furthermore, the bulk supply of sanitary napkins can lead to poorer quality products as a result of a quick-fix-resort to toxic chemicals and cheaper raw materials for a easily reproducible product. Plastic-heavy and chemically-laden sanitary napkins are a sanitation nightmare not only because of the health risk they cause, but also because they make safe disposal a lot more difficult. As a result, quality control then becomes an important aspect for the Bill to address. The Bill has to lay down a mechanism, especially in light of its free distribution of sanitary menstrual products scheme that there is greater information disclosure and ethical compliance by companies making these products.

Conclusion

The process of making space for women’s agency and autonomy is long and arduous. It is not to be easily tackled in the scope of a single Bill — to be fair, it cannot be. The idea is to work together and get this right the first time so that women despite their socioeconomic backgrounds have access to choice, sanitation and safety. And that is when we can hope to have the kind of autonomy the Bill purports to provide.

Priyanshi Vakharia is the Program Officer, Feminist Justice at One Future Collective.

Featured image: Time