MENSTRUAL HEALTH AS A FUNDAMENTAL RIGHT: CURRENT JUDICIAL INTERPRETATION

INTRODUCTION 

“A period should end a sentence, not a girl’s education”.

When we talk about the progress of a nation, it is not only measured by how fast a nation is growing, but it is also measured as to whether a girl can attend an educational institution like schools without being punished by her biology or not. Only two out of every five schools (39%) worldwide provide menstrual health instructions. Less than one in three schools globally (31%) have menstrual waste bins in their restrooms. This drops to 1 in 5 schools (17%) in the least developed nations. A systematic review of 138 studies found that only 48% of 97,070 teenage girls in India knew about menstruation prior to menarche (van Eijk et al., 2016). Menstruation is a natural process but often adolescent girls are not able to understand what is happening to them when they start their periods  because of lack of understanding of biology of menstruation, lack of hygienic conditions in schools, taboos and limitations formed by the society. The absence of the required menstrual facilities in schools force a girl child to manage rather than having a choice over her bodily dignity. 

With all these things, we come to a question that whether the right to menstrual health can be exercised as a fundamental right under article 21 of Indian constitution; which not only talks about right to life, but also emphasizes the liberty an individual enjoys. Whether the girls have the liberty over their own bodily choices rather than being forced to manage in poor conditions? The answer to all these questions is embedded in the recent judgement of Dr. Jaya Thakur vs Union of India, where the Hon’ble Supreme Court recognized the Right to Menstrual Health as an integral part of Article 21 under the Indian Constitution. This article will be focussing on the recent ruling and guidelines laid down by the Apex Court with reference to the above-mentioned case. 

CONCEPTUAL FRAMEWORK: UNDERSTANDING MENSTRUATION AND MENSTRUATION HYGIENE MANAGEMENT 

Menstruation is the normal monthly loss of blood and tissue from the lining of the uterus when pregnancy is not present. After exiting the uterus through the cervix, menstrual blood and tissue exit the body through the vagina. The biological process of menstruation generally starts in girls when they are at the age of 12 years, but nowadays it can also start at the early age of 8 years. Hence, it has become really essential that small girls have knowledge and awareness about the same from an early age. Several initiatives have been taken at an international level to discuss about the hygienic condition girls are entitled to while menstruating. Menstrual hygiene management, also referred to as MHM, involves “women and adolescent girls using a clean menstrual management material to absorb and collect blood, that can be changed in private as often as necessary for the duration of the period, using soap and water for washing the body as required and having access to facilities to dispose of used menstrual management materials.”  

MENSTRUATION BEYOND BIOLOGY: INTERNATIONAL PERSPECTIVE OF MENSTRUAL HEALTH AS HUMAN RIGHTS 

A very important question often arises in our mind that whether menstrual health is considered as an important part of Human Rights when looked upon from International perspective. The answer is YES; menstrual health is considered as a fundamental Human Right. A landmark resolution on gender equality, human rights, and menstrual hygiene management was adopted during the 56th session of the UN Human Rights Council, which was held in Geneva from June 18 to July 12, 2024. It highlights how important MHM is to advancing the human right to health and gender equality. On a global level, menstrual hygiene day is celebrated on 28th may every year in order to raise awareness about menstrual hygiene.  Although great measures have been taken to address the issue of menstrual hygiene and support, many still suffer from period poverty which leads to severe health issues in women like infections. Over 500 million menstruating individuals worldwide are impacted by period poverty. 

CONDITION OF MENSTRUAL RIGHTS IN INDIA: AN OVERVIEW 

• MENSTRUATION AS A TABOO IN INDIA 

In India, menstruation has been seen as a great taboo till date. These persistent taboos not only violate the human rights but impact the socio-cultural rights, mental state and working conditions of the women. The reproductive cycle during which blood moves from the uterus via the vagina is known as menstruation, and it is a biological phenomenon unique to girls. However, menstruation is socially linked to “impurity”. The impurity notion forbids entering the Puja room, entering the kitchen, using the mirror, touching curd, tamarind, and pickles, traveling to places of worship, and touching sacred literature. Due to the sudden changes that occur following puberty, it causes feelings of humiliation, embarrassment, grief, and shock in addition to intangible suffering like anxiety, dread, and depression over religious ceremonies. On occasion, it also compels people to violate the law. 

• INITIATIVES TAKEN BY THE GOVERNMENT FOR BETTER MENSTRUAL HYGIENE 

The Central government has taken various measures to better the conditions of menstrual hygiene among women. Many initiatives and steps have been taken by the Central Government along with collaboration of various union and state ministries. The Ministry of Health and Family Welfare operates the Scheme for Promotion of Menstrual Hygiene (MH) to improve MH among teenage girls (10–19 years old). As part of its overall interventions linked to behavioral change regarding sanitation and hygiene aspects, the Ministry of Drinking Water and Sanitation developed the National Guidelines on Menstrual Hygiene Management (MHM) under the Swachh Bharat Abhiyan to increase awareness of MHM in rural areas. Furthermore, state-specific initiatives for a range of menstrual health and hygiene treatments, including the installation of incinerators and sanitary pad vending machines, are approved under the Department of School Education and Literacy’s “Samagra Shiksha,” an integrated program. Furthermore, the Menstrual Hygiene Scheme has been sponsored by the “National Health Mission” (NHM) from 2015–16 via the State Programme Implementation Plan (PIP) route, which is based on the State recommendations. In and all, we can say that government both at Central and State level has taken sufficient initiative workings towards the menstrual safety and hygiene of girls. 

RECENT JUDICIAL DEVELOPMENTS 

 Under Article 21, everyone has Right to life and personal liberty. This article of constitution allows person not only just mere living but the Right to Live with human dignity. The Hon’ble Apex Court has broadened the scope of this article, by including The Right to menstrual health as in integral part of article 21 of the Indian Constitution. In the recent judgement of Dr. Jaya Thakur vs Government of India, the Apex Court declared the right to life under article 21 of the Constitution includes the right to menstrual health.  

BACKGROUND OF THE CASE 

The case was filed as a writ petition, which focussed on the issues like gender inequality adolescent girls faced because of their biological natural process of menstruation, the right to live with dignity being hampered by the lack of unavailability of necessary resources in schools  required during menstruation, which one way or the other also violates the Right of Children  to Free and Compulsory Education as guaranteed under Article 21A of the Constitution of India. 

CONSTITUTIONAL FOUNDATION OF THE RIGHT TO MENSTRUAL HEALTH IN INDIA

ARTICLE 14 AND THE RIGHT TO MENSTRUAL HEALTH 

Article 14 of the Indian Constitution states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It emphasizes that there should be no discrimination that should exist on the basis of gender. This shows that both boys and girls should get equal opportunity to participate but the lack of MHM (Menstrual Health Management) measures act as a barrier in girls participation which results in girls been absent or dropping out from schools leading to the inequalities. Thus, leading to violation of her Fundamental Right.

ARTICLE  21 AND RIGHT TO MENSTRUAL HEALTH 

Article 21, it is one of the most widely interpreted Article of the Indian Constitution. It is regarded as the heart of the Constitution with its progressive and flexible nature. In the recent judgement, it is clear that a girl kid has a right to regulate her menstruation in private and with respect. In these situations, her autonomy over her own body cannot be controlled by a lack of resources. Without a doubt, woman has the freedom to choose how and where menstruation care is provided, as well as the freedom to do so without being subjected to social pressures or coercive practices. Hence, the women also have the right to reproductive health. 

ARTICLE 21A ALONG WITH RTE ACT AND RIGHT TO MENSTRUAL HEALTH 

 Article 21A came into effect on 01.04.2010 along with the RTE Act with the avowed objective to provide free and compulsory education to all children of the age six to fourteen years. This judgement emphasized that effective learning of children is not limited to books but extends to the effective learning and the regular participation of the children. The Court went on to say that the fundamental right to education under Article 21A and the RTE Act includes free, mandatory, and high-quality education. Free education includes any fees or expenses that would prevent a child from pursuing and completing primary school. 

WAY FORWARD 

Ensuring the constitutional validity of the Right to Health as an integral part of the Article 21, the Hon’ble Supreme Court led further guidelines and directions for the same. It covered various facilities starting with the toilet and washing facilities, where the Supreme Court stated that all states and Union Territories should make sure that every school either privately owned or run by the government should provide with working and gender segregated toilets with proper water connectivity. Toilets should be accessible and should meet the needs of children with disability as well. There should be proper hand wash system available with working water facilities. Each school should provide with oxo- biodegradable sanitary napkins, which should be easily accessible to all the girls. There should be Menstrual Hygiene Management corners in every school. There should be availability of proper waste disposal system. NCERT and SCERT shall incorporate gender- responsive curriculum. The judgement also emphasized the role of men in menstruation. Although these directions and guidelines given by the Apex Court are great but it can still face challenges because of lack of awareness, social conditioning, implementation gap and the efficient monitoring mechanism. 

CONCLUSION 

Menstrual health is a fundamental human right which is globally recognized. A large number of women across the world deals with menstrual poverty. In India, various initiatives have been taken by both the Central and State governments to deal and provide with Menstrual health safety. In the recent judgement of Dr Jaya Thakur judgment, the Hon’ble Apex Court opined that the Right to Menstrual Health is an integral part of Right to Life and Personal Liberty under Article 21 of the Indian Constitution. 

The Right to Menstrual Health as an integral part of article 21, also runs parallel to the Article 21A of the Indian Constitution, which provides with free and compulsory education along with the Right to Education Act, 2005. The Right to Menstrual Health also safeguards the Article 14 of Constitution, as menstrual discomfort and lack of basic facilities used to lead to large number of girls being absent from school or dropping out after starting their periods. This used to impact the equal participation of the girls in schools.

Each and every girl has a right to live her life with dignity but the lack of basic facilities used to leave girls with no choices, forcing them into situations that violated their choice of bodily autonomy. Hence, the recent development is a great turning point which will not only safeguard bodily autonomy but will allow girls to live with dignity. It will further help bridge the gap of gender inequality and will act as a multiplier right. The challenges that may arise in the execution of the directions issued by the Apex Court can be overcome by statutory backing, clear national guidelines, efficient monitoring, raising awareness, breaking social stigma and many such effective measures. 

REFERENCE(S): 

1. Press Information Bureau, Government of India, Press Release (Jan. 30, 2026), https://www.pib.gov.in/PressReleasePage.aspx?PRID=2205104&reg=3&lang=1 (last visited Feb. 1, 2026).
2. India Const. art. 21.
3. Dr. Jaya Thakur v. Union of India, (2023) INSC 616 (India Sup. Ct. July 11, 2023).
4. Dr. Jaya Thakur v. Union of India, 2026 INSC 97 (India Sup. Ct. Jan. 30, 2026).
5. India Const. art. 21A.
6. Right of Children to Free and Compulsory Education Act, No. 35 of 2009, India Code (2009).
7. India Const. art. 14.
8. SCC Online, Right to Menstrual Health Part of Art. 21 of Constitution, SCC Blog (Jan. 30, 2026), https://www.scconline.com/blog/post/2026/01/30/right-to-menstrual-health-part-of-art-21-of-constitution/.