Menstrual Leave and Article 21: A Constitutional Inquiry into Health Dignity and Bodily Autonomy

Abstract: This article captures the recent judgement of Supreme Court on adding menstrual leave under Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. This article combines constitutional interpretation, comparative policy analysis, gender justice theory, and legal reform perspective to assert that menstrual leave should be recognized as a right embedded with dignity, bodily autonomy, health, and substantive equality under article 21. It highlights the gap in educational policies and explores potential reforms towards the step to gender equitable workplace. It captures the need of hour where women have a right to take a leave during menstruation which have been recognized globally as well.

“Menstrual Health is a fundamental human right”.

Recognized by the World Health Organization as essential to dignity, health, and gender equality.

Introduction: In January 2026, The Supreme Court of India has given a verdict on menstrual health that it is a fundamental aspect of right to life and liberty under article 21 of Indian constitution, asserts that no person shall be deprived of their life except according to the procedure established by law. It also protects the right to live with dignity, the right to livelihood, and the right to a healthy environment. Accordingly, it states to ensure menstrual hygiene access in schools and workplace. While previous rulings in 2023 declined to mandate a nationwide paid leave policy due to complexity, the court now focus on lack of menstrual management that constitutes gendered disadvantage.

In the landmark judgement of Dr. Jaya Thakur v. Government of India (2026), ruled that menstrual health is the menstrual  part of the Right to Life and Dignity (Article 21) and the Right to Education (Article 21A). 

 The 2026 judgement highlights that court is emphasizing for obligatory infrastructure to support menstruating individuals, placing the onus on state authorities to ensure each and all women have barrier free access.  This Judgement give relief to all women who face difficulties during those days when they have to go through the intolerable pain still have to perform their duty as there was no voice to listen them.

Menstruation is natural biological process experienced by significant portion of the population stills it continues to be engulfed with the social stigma, silence, and institutional neglect. Recent judicial recognition of menstrual hygiene as an vital part of the right to life under article 21 marks a crucial step towards acknowledging menstruation as a constitutional issue rather than a purely social or private matter. By interpreting constitutional jurisprudence, gender justice principles, and comparative perspectives, This articles attempt to locate menstrual leave a required extension of the right to dignity, bodily autonomy, health, and substantive equality within India’s fundamental rights framework and highlight the need of an hour for coherent legal recognition and reform.

Main Body:

Interpreting Menstrual leave: Concept and Context

• Meaning and Scope of Menstrual Leave- Menstrual leave is a leave granted to individual like female, transgender and non-binary human being during menstruation when physical pain, nausea and bloating become unbearable to participate in school and workplace. Recognizing menstrual leave is not about giving extraordinary treatment but about acknowledging a biological reality that institutions structures often ignore.

Menstruation as a constitutional and Human rights issue

• Menstruation Beyond Biology: Argument of dignity and Equality

Menstruation has been treated has a private or biological issue, because of social stigma and dogma of the society often excluded from legal and policy disclosure. However, Modern constitutional and legal interpretation demands that live realities-particularly those affecting women’s health and dignity must be within the ambit of fundamental rights. 

Legal Scholars writing in Indian Journal of Gender Studies argue that ignoring menstruation in workplace policies reinforces systemic invisibility of women’s experiences.

In the case of Francis Coralie Mullin v. UT of Delhi, The Court clarified that the right to life includes the right to live with human dignity. When one neglects the menstrual health in workplace and schools, it directly affects dignity, comfort, and mental well-being.

Since 2014, the 28th of May has been celebrated as Menstrual Hygiene Day. Many countries have enacted changes to the so-called ‘tampon tax’ and some now provide free products. 

• Article 21 and the right to health at the workplace

Right to health as an Integral part of Right to Life: The right to health has been judicially acknowledged as an inseparable component of Article 21. Many countries like Japan (since 1947), Indonesia, South Korea, Taiwan, Vietnam, Zambia, and Spain. Policies vary with Spain offering up to 3 days of medical leave for severe pain, while others like Zambia provide 1 day per month. The impact could be seen in India as well Karnataka became the state to allow 1 day of monthly paid leave for both government and private sector employees. Kerala and Bihar, also have policies in place. Various companies worldwide, such as Zomato, have implemented their own policies regardless of national law. Now the Supreme Court passed the judgement as mandatory to grant leave under article 21.

“Premenstrual dysphoric disorder (PMDD) is similar to PMS but involves more severe symptoms, including depression, irritability, and tension that impact a person’s work or social functioning’’. Hormonal changes that occur during the week or so before the start of menstruation are thought to trigger the psychiatric symptoms. It is estimated to affect about 5% of menstruating women every year. (Pearson2008). PMDD was added to the Diagnostic and Statistical Manual of Mental Disorder in 2013.”

This Data shows the urgency of Menstrual leave in the workplace,

The relevant case, “State of Punjab v. Mohinder Singh Chawla, The Supreme Court explicitly held that the right to health is integral to the right to life”. This position was reinforced in the case of “Paschim Banga Khet Mazdoor Samity v. State of West Bengal, where the court imposed a positive obligation on the state to ensure adequate health facilities”.

• Gender Taboo, Toxicity in workplace And Constitutional Morality

Moving Away from Stereotypes: Constitutional protection for Working Women

Judicial disclosures have repeatedly alerted against reinforcing gender stereotypes in employment. In landmark judgement Anuj Garg v. Hotel Association of India, the Supreme Court held that laws based on stereotypical assumptions about women’s capabilities are constitutionally impermissible. Similarly, In Air India v. Nergesh Meerza, discriminatory service conditions imposed on women were struck down for Article 14 and 21.

Refusing to grant menstrual leave on the assumption that women must adjust to the society’s stereotypes and social stigma the Constitution seeks to dismantle.

Scholars in the Indian Journal of Labor Economics argue that recognizing biological differences does not weaken equality; rather it humanizes labor law. Today in Modern days women have to suffer discrimination in the workplace and forbidden to equal right after various constitutional amendments. Gender discrimination comes in various forms, such as sexual harassment, pay disparities between the sexes, and gender discrimination comes from multiple factors, some of which are prominent and include the gender pay gap, women’s limited career advancement opportunities, playing multiple roles for lower pay, gender stereotyping for higher managerial position in business organization. The world is advances but women still have to go through a lot of difficulty when it comes to equality and gender biasness. Low productivity, low efficiency, and a lack of motivation among staff member are possible outcomes of workplace gender discrimination.

According to Business Standard Report Poll, Women make up only 25% of the labor force in India. The Primary cause of the gender disparity in the workplace and society is gender inequality.

A 2019 study analyzed data from 25 countries over 9 years to examine the gender pay gap in various occupation and healthcare. The findings indicated that women in the general sector were paid 24-36%less while as per article 42 of Indian constitution there should be just and equitable environment and equal pay for men and women. 

Special provision for women and children was considered under article 15(3) of Indian constitution where they were given reserved seats in metro, buses etc.

V. Menstrual Leave and Substantive Equality under Article -14

Equality does not mean Sameness: The Doctrine of Substantive Equality, A common argument that is raised by men that it violates equality by creating “special privileges”. However, constitutional equality under Article 14 does not mandate similar treatment in unequal circumstances. 

In the State of Kerala v. N.M Thomas, The Supreme Court recognized the concept of substantive equality allowing differential treatment to achieve real fairness.

The Indian Journal of Constitutional Law highlights that law must account for structural disadvantages rather than adopt a formalistic notion of equality. Menstrual leave viewed through this side, become a tool to level the playing field rather than an exception to equality. Article 14 guarantees equality before law, yet its interpretation by the Supreme Court makes its clear that equality ensures reasonable classification to achieve fairness. Further Article 15(3) expressly empowers the State to make special provisions for women, Reservation Policies, upheld under Articles 15(4) and 16(4), are accepted not as “special treatment” but as constitutionally sanctioned tools to correct historical inequality. In the same Constitutional logic, menstrual cannot be dismissed as preferential treatment. When read alongside Article 42, which directs the State to ensures just and human conditions of work, to accept reservation as quality enhancing while rejecting menstrual leave as favoritism is to misapply the constitutional’s own understanding of justice.

vi. International Human Rights Perspective

Menstrual Health as a Recognized Human Right: International conventions such as CEDAW and ICESCR (Article 12) recognize women’s Organization has recognized “Menstrual Health as a fundamental aspect of overall well-being”. The past fact shows that Indian courts have often relied on international norms to interpret constitutional rights, making these instruments relevant to domestic debates on menstrual leave.

Suggestions and the Way Forward: Towards Comprehensive and Pragmatic Menstrual Leave Reforms

This is the fundamental of any problem to find out the measures to curb it and focus on how it can be implemented in a manner that is fair, dignified, and workable. Constitutional right is not meant to be projected in the books only but they must respond to practicalities faced by individuals in workplace and educational institutions.

1. Acknowledging Menstrual Health in Law Without Over-Regulation: The Constitution of India does not treat health and dignity as aspirational ideals; it embeds them as enforceable value. Article 21 has been consistently emphasized to include the right to health, human working conditions and dignity.  When read along with Article 42, which directs the state to ensure just and human condition of work, and Article 47, which places a duty on the state to improve public health, a clear constitutional foundation emerges for recognizing menstrual health within workplace policy. Instead of immediately mandating menstrual leave across all sectors, the state can begin by recognizing menstrual health as a constitutional concern and encouraging practical accommodations that uphold dignity. 

One such example that is visible today in several public institutions is the installations of sanitary napkin vending machines and disposal units in workplace and educational restrooms. Such accommodations demonstrate how constitutional value can be translated into everyday infrastructure.

• Designing Inclusive and Gender-Sensitive Policies

Any menstrual leave policy must not to reinforce nonchalant gender stereotypes. Menstruation is a biological process, not a marker of professional capability. Policy should therefore use gender-neutral language and extend protection to all menstruating persons, including transgender and non-binary individuals. 

In National Legal Service Authority v. Union of India (NALSA), the Supreme Court affirmed the right of transgender persons to self-identity their gender and held that gender identity is integral to personal autonomy and dignity under Article 14,19 and 21. Subsequently, the Transgender Persons (Protection of Rights) Act, 2019 sought to prohibit discrimination in employment, healthcare, and access to public facilities, reinforcing the constitutional obligation to create inclusive space. 

Shifting the Narrative: From “Special Treatment” to Reasonable Accommodation

One of the most continuous criticisms of menstrual leave is that it grants special privileges and undermine equality. However, equality in constitutional term has never meant treating everyone identically. Article 14 guarantees equality before law, but its judicial interpretation has consistently acknowledged that treating unequal situations alike may itself result in injustice.

In State of Kerala v. N.M.Thomas, the Supreme Court clarified that equality under Article14 permits differential treatment when it aimed at addressing existing disadvantages. This idea of Substantive equality allows the State to adopt measures that correct structural and biological inequalities rather than ignore them. Articles published in the Indian Journal of Constitutional Law argue that accommodation-based policies-such as maternity benefits or health-related workplace adjustments-are not exception to equally but expression of it. Similarly, the Journal of the Indian Law Institute (JILI) has highlighted that workplace equally must account for biological and social realities to avoid indirect discrimination.

Conclusions:

The question of menstrual leave ultimately compels a re-examination of how constitutional rights engage with everyday bodily realities in professional spaces. Indian constitutional interpretation has long rejected a narrow or mechanical understanding of fundamental rights. Through judicial expansion, Article 21 has come to represent not only the right to exist, but the right to live with dignity, health, autonomy, and humane conditions. Judgments such as Francis Coralie Mullin v. Union of India, Bandhua Mukti Morcha v. Union of India, and Justice K.S. Puttaswamy v. Union of India underscore that constitutional protection extends to the quality of life and the conditions under which individuals are expected to function.

Viewed within this framework, menstrual health cannot be dismissed as a private inconvenience outside the scope of constitutional concern. The insistence that menstrual leave constitutes preferential treatment rests on a formal and incomplete reading of equality. The Supreme Court’s articulation of substantive equality in State of Kerala v. N.M. Thomas clarifies that equal protection does not require uniform treatment in all circumstances. When read alongside Article 15(3), which explicitly authorizes protective measures for women, the Constitution permits differential arrangements aimed at addressing genuine disadvantage. Menstrual leave, understood as a health-based accommodation, therefore strengthens rather than undermines constitutional equality.

The evolving jurisprudence on gender identity further supports the need for inclusive policy design. In National Legal Services Authority v. Union of India, the Court recognized dignity and autonomy as foundational constitutional values that transcend rigid biological classifications. This reasoning is particularly relevant in ensuring that menstrual health policies are framed in a gender-neutral and non-stigmatizing manner. Comparative legal developments in countries such as Spain, Japan, and South Korea demonstrate that recognizing menstrual health within labor frameworks is both practicable and compatible with principles of equality and efficiency.

A constitutionally sound approach does not demand sweeping or inflexible mandates. Instead, it calls for the recognition of menstrual health within the broader constitutional commitment to health and humane working conditions under Articles 21, 42, and 47, supported by practical accommodations such as sanitary infrastructure, flexible arrangements, and optional leave policies. Ultimately, the Constitution does not require individuals to disregard their bodies in order to participate equally in public life. It requires institutions to respond with sensitivity, ensuring that dignity remains central to both rights and governance.

Reference(S) / Bibliography

Constitutional Provisions

INDIA CONST. arts. 14, 15(3), 21, 42, 47.

Case Law

• Francis Coralie Mullin v. Union Territory of Delhi (1981) 1 S.C.C. 608 (India).
• Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 608 (India). State of Kerala v. N.M. Thomas, (1976) 2 S.C.C. 310 (India).
• State of Punjab v. Mohinder Singh Chawla, (1997) 2 S.C.C. 83 (India).
• Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 S.C.C. 37 (India).
• Air India v. Nergesh Meerza, (1981) 4 S.C.C. 335 (India).
• Anuj Garg v. Hotel Ass’n of India, (2008) 3 S.C.C. 1 (India).
• Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).
• National Legal Service. Auth. v. Union of India, (2014) 5 S.C.C. 438 (India).

Legislation

• The Transgender Persons (Protection of Rights) Act, No. 40 of 2019, INDIA CODE.
• The Code on Social Security, No. 36 of 2020, INDIA CODE.
• The Occupational Safety, Health and Working Conditions Code, No. 37 of 2020, INDIA CODE.

International Instruments

• Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.
• International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
• World Health Organization, Menstrual Health (WHO Policy Briefs & Technical Guidance).

Journals & Scholarly Articles

• Indian Journal of Constitutional Law, Substantive Equality and Protective Discrimination in India.
• Indian Journal of Gender Studies, Menstruation, Dignity, and the Politics of Visibility.
• Journal of the Indian Law Institute, Health as a Constitutional Right under Article 21.
• Indian Journal of Labor Economics, Workplace Health, Gender Justice, and Labor Law Reform.
• Harvard Human Rights Journal, Health, Bodily Autonomy, and Dignity as Human Rights Norms.

Comparative Law & Policy Materials

• Spain, Organic Law on Sexual and Reproductive Health and Voluntary Termination of Pregnancy (2023 amendments).
• Japan, Labour Standards Act, Act No. 49 of 1947 (Menstrual Leave Provisions).
• South Korea, Labor Standards Act (Menstrual Leave Provisions).
• Indonesia, Manpower Act, Law No. 13 of 2003.

Online Journal Article:

• Indian Kanoon
• Taylor & Francis Online
• India Today
• Psychiatry.org
• National institute of Health