Authored By: SAMANTA AZRIN PRAPTY
Introduction: This case will be considered as a constitutional public interest action wherein the Supreme Court will specifically apply the menstruation health and hygiene as part of the Fundamental Right to life under Article 21 and also the right to free and compulsory education under Article 21A of the Constitution. By recognizing that non-availability of menstrual absorbents and ensured sanitation in schools is not an issue of welfare but a structural barrier in the enjoyment of right to education, dignity and equality, the Court through a continuing mandamus enacts menstrual hygiene management (MHM) in educational institutions as an enforceable constitutional and legislative obligation under Articles 14, 21, 21A and Section 19 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act). This judgment is a milestone in the evolution of social rights jurisprudence in India, making legal a type of transformative equality for the State to overcome the inequalities that surround the gendered and corporeal disparity through affirmative measures instead of solely through the instruments of formally neutral regulations.
Facts of the Case: In 2022, the petitioner, a professional social worker, moved the Supreme Court in a Public Interest Litigation filed under Article 32, which attracted the attention of scholars to the rampant malady of “period poverty” and its consequences on the provision of reproductive health, provision of water, sanitation and sanitary disposal mechanisms for school-going girls in the national territory. She sought orders from the Union, State Governments and Union Territory Governments on four main grounds:
implementation of distribution of complimentary sanitary pads to all females in classes VI to XII;
(ii) construction of gender segregated sanitary napkins in all Government, Aided and Residential schools;
(iii) building custodial staff for upkeep of these which include the provision for keeping these restrooms aseptic;
(iv) implementation of a tripartite awareness programme to help in changing mindsets, which include breaking of taboos, making available of the product and evolution of an efficient hygienic system for The petition was supported by empirical data that proved that dropout and absenteeism rates among menstruating girls are high as a result of a lack of menstrual hygiene management facilities and products in educational institutions.
In the course of judicial proceedings, the Union of India came forward with a proposal going in as Menstrual Hygiene Policy for School-Aged Girls which was approved by the Ministry of Health and Family Welfare and provides for governmental commitments on availability of safe and affordable products, disposal options, provision of facilities for WASH, and integration of menstrual hygiene education in the curriculum. Several State governments provided affidavits on their work in relation to Menstrual hygiene and school sanitation. Nevertheless, the Court noted that large number of States as well as Union Territories failed to procure affidavits, thus it brings to light the basic issue which is not the lack of schemes but the lack of diligence and regularity in implementation of schemes. The empirical matrix thus allows for creating a quintessential picture of a policy that lives on paper but is inaccessible in reality to marginalized female students.
Legal Issues: The Court outlined the following substantive concerns of constitutional and statutory issues:
- Whether the lack of gender segregated toilets and lack of access to menstruation absorbents to adolescent female students amount to violation of the right of equality provided for under Article 14?
- Whether the right to have dignified menstrual health is an essential component of the right to life as enshrined in article 21?
- Whether this unavailability is an infringement of the rights to participate and to equal opportunity as was laid out in Article 14?
- Whether it contravenes the right to education as envisaged in Article 21A and the legal entitlement, free and compulsory education as provided under the RTE Act particularly the norms and standards envisaged under Section 19 of the said Act?
Arguments:
(a) Petitioner: Turning now to an ordered analysis of the summary of the Court’s opinion, the petitioner makes three main arguments. First, she argues that menstrual health forms an integral part of personal dignity and the integrity of the body and hence is squarely within the ambit of Article 21. Secondly, she claims in the lack of separate sanitation facilities, potable water and menstrual hygiene products at educational institutions, shame, stigmatisation and absenteeism ensue; the deficiency of these violates the right to substantive equality and equal opportunity under Article 19 and 21 respectively. Third, she argues that it is the State’s failure to provide such facilities that has violated its obligations under the Right to Education Act – and Section 19 in particular – which provides for adequate infrastructure and sanitation, thereby preventing the realisation of the promise of free and compulsory education. The petitioner also strengthens her argument with reference to seminal instruments of international human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of the Child and CEDAW, which all stress the obligation to guarantee free access to education to girls.
(b) Respondents (Union of India and the States): During the proceedings, the affidavits and submissions of the Respondents (incorporated in the judgment), are a recognition of the prevalent socio-cultural taboos and the limited availability of sanitary products that a hindrance to menstrual hygiene. The Union of India has promulgated an elaborate Menstrual Hygiene Policy for school goings girls, which aims at normalizing the menstrual hygiene practices for government as well as government aided schools and ensuring the affordability of menstrual hygiene products, safe sanitary disposal and incorporating menstrual hygiene management in school curriculum. States and Union Territories have also formulated different programmes relating to school sanitation and menstrual hygiene; however, according to the judgment the implementation of these is fragmented and the State administrations have deficiencies in providing proper affidavits which reveal implementation gaps and a lack of uniform coverage. The Respondents claim an existence of an overarching policy framework; but the Court rules on the assumption that a lacuna exists in terms of regular and effective enforcement.
Court’s Reasoning and Analysis: The analytical process of the Court is composed of a chronological succession of conceptual manoeuvres, starting with the definition of education as an inherent and multiplicative right. Within this framework, education is presented as a fundamental human right, indispensable to overall development and a condition for the realisation of other human rights. Drawing upon Indian jurisprudence, particularly the scholarship of Mohini Jain, as well as the international instruments such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Court states that for education to be a human right, it must be available, accessible, acceptable and flexible, as opposed to educational provision being offered in a formal sense only. Consequently, education is conceived as a multiplier right that leads to a multitude of civil, political, social and economic rights; in relation to any asymmetrical impairment that evidently restricts the access to education of female students, it is therefore endowed with constitutional significance. Menstrual health, albeit indirectly, comes into play vis-à-vis Articles 21 and 21A. The Court goes on to explain that menstrual health is a complex concept that includes access to menstrual products, water, sanitation and hygiene (WASH) facilities, and dignity in disposal options, as reflected in the concept of “period poverty.” The lack of access to safe and hygienic menstrual management practices is, per se, an infringement of the dignity of female adolescents and, de facto, a violation of Article 21. Simultaneously the issue of menstrual poverty leads to school dropouts and absence from school and thereby violating the Right to Free and Compulsory Education which is enshrined in Article 21A and the Right of the Child to Free and Compulsory Education (RTE) Act. Equality, Intersectionality and Systems of Disadvantage. The Court uses a substantive equality approach, which requires the equitable treatment of people who suffer from entrenched disadvantage by virtue of different circumstances. It looks at how girls who are struggling with menstruation-related issues are at a disadvantage not only against boys but also against more privileged girls who can afford menstrual products. Moreover, the intersection between gender and disability helps to reinforce exclusionary experiences for girls with disabilities. Consequently, a lack of menstrual hygiene management (MHM) is a form of structural discrimination that prevents participation, representation, and equal opportunity, and thus constitutes a violation of Article 14. International Human Rights Law & the Education Framework. The Court emphasises the obligation on the Indian government to interpret laws enacted in its own country, taking into account the provisions on non-discrimination enshrined in international human rights law in the field of education, including the UDHR, the ICESCR, and the Convention on the Rights of the Child (CRC). The jurisprudential basis is given by Section 19 of the RTE Act, which stipulates that infrastructure and services linked to menstrual hygiene management are an integral part of the standards to which all educational institutions must conform. Non-compliance could lead to de-recognition by private schools, as compared to those operated by the states, which will be under direct state control. Destigmatization of Menstruation & Role of Men, One of the critical points highlighted in the ruling is the need to remove the stigma surrounding menstruation. The Court is confident that men, male educators, and parents need to be educated in this respect. It emphasizes the need to increase access to healthcare, including reproductive and sexual healthcare services that constitute a woman’s physical and mental health. The Court affirms that “menstrual health is a collective responsibility and is not just a woman’s matter” and that the promotion of an open setting for dialogue in educational institutions is necessary to eliminate stigmatisation.
Judgment of Law and Ratio Decidendi (Basic Legal Principle) :
- Judgment of Law
(a) Conclusive Determination: The Court hereby grants the petition while finding unambiguously that the right to menstruation health is part of and parcel to the fundamental right to life enshrined under Article 21; it is inextricably linked to the principles of dignity, privacy and autonomy of the person. The decline in educational institutions providing for adequate menstrual hygiene management is a violation of Article 14 and is a contravention of the right to education contained under Article 21A, violation of mandatory norms and standards as they are promulgated under the Right of Children to Free and Compulsory Education (RTE) Act.
- Instructions and Proceeding Mandamus (Essential operational directions are provided below(summarised): It is mandatory for all States and Union Territories to ensure that all schools, both public and private, urban and rural, have functioning, gender-segregated toilet facilities with adequate provision of access, privacy and functionality for children with disabilities, and that have hand washing stations with soap and water.
- Menstrual absorbents: In every educational establishment, an appropriate number of oxo-biodegradable sanitary napkins (in compliance with the standard ASTM D 6954), shall be provided free of charge and in easily accessible places, preferably through automatic dispensing machines or specific distribution points.
- Menstrual Hygiene Management (MHM) corners: Schools will be mandated to have MHM corners which are stocked with spare innerwear, spare uniforms, disposable bags and supplementary materials. Sanitary waste disposal: In compliance with the Solid Waste Management Regulations, institutions shall have safe, hygienic and environmentally acceptable waste-disposal mechanisms, including covered waste receptacles in restrooms.
- Awareness and training: The curricula of NCERT and SCERT to include gender responsive inputs on menstruation, puberty and related health issues; training and sensitisation of all teachers including male teachers; dissemination of comprehensive information on Jan Aushadhi Suvidhi napkins and child helplines.
- Oversight and enforcement: District Education Officers shall make regular inspections that include feedback from students; the National Council for Promotion of Research in Child and Adolescent Development (NCPCR) and the State Council for Promotion of Research in Child and Adolescent Development (SCPCR) are given the statutory authority to oversee the implementation process.
In view of the systemic nature of the non-compliance, the Court passes a continuing mandamus for strict compliance and periodic reporting by the Union and the States.
- Ratio Decidendi (Basic Legal Principle)
The mensural ratio can be encapsulated as under: The menstrual health and hygiene of adolescent school going girls, including access to menstrual hygiene products, adequate sanitation, safe disposal and destigmatised knowledge constitute essential components of the right to life, right to respect and dignity – and right to education within the meaning of Articles 21 and 21A. Denial of these provisions amount to unconstitutional discrimination under article 14 and thus obliges the State to take affirmative and enforced measures under the Right to Education (RTE).
Analytical Critique: Conceptually, the judgment is a substantive development in the jurisprudence of the Indian Constitution, while creating idiosyncratic tension in the soul of the Constitution. The Cour harmonises the doctrines of dignity, equality and education in a non-segregated rights paradigm to enhance the application of these rights through binding infrastructural mandates. By taking an intersectional approach by considering gender, disability, and poverty, the decision marks a departure from formal, abstract conceptions of equality to a contextualised and substantive adjudication. The inclusion of menstrual health within Section 19 of the Rights of the Child in Education (RTE) scheme is a significant example of how the Court engages in social rights, through existing legal instruments, without using exhortative rhetoric. Although the regulatory directives are comprehensive and resource-intensive – including product specifications, menstrual hygiene management (MHM) facilities, waste-disposal protocols and curriculum content – the primary role of the directives is to prescribe enforceable standards. Nonetheless, by tying down the Court in consenting to extensive policy and financial prescriptions, these provisions are in danger of giving the appearance of judicial overreach. The practice of continued reliance upon the writ of mandamus, while serving a useful function in promoting compliance, may tend to obscure the distinction between adjudicative duties and the supervisory duty traditionally exercised by the administrative structure of the legislature. Given the patchy distribution of resources and the different geographic characteristics of the states in India, there are challenges in implementation that emerge from the expectation that everyone implements in a uniform manner. Overcoming these obstacles requires sustained fiscal investments, local capacity building and rigorous monitoring. In their absence, compliance might be still symbolic, or limited to isolated exemplars, thus compromising pan-regional coverage. Low-fee private schools in particular can face prohibitive costs linked to these standards that may prevent shared cost schemes and state-based support. The overt clash of stigma, shame, and the gendered roles in this judgment provides a warrant for normative authority, reframing the conversation away from the provision of infrastructural capacity to the people and towards a transforming of social structures and constitutional morality in the everyday practices of legal literacy. While from the doctrinal bases there is ample room for the expansion of rights, it is in the practical working out of the aspirational remedial scheme that the true extent of transformation will ultimately be discernible.
Conclusion: The judgment in the case of Dr. Jaya Thakur vs. Government of India is a significant legal advance in ensuring that a previously optional and merely humanitarian issue such as menstrual hygiene management is now raised to a legally enforceable entitlement. By making this change, the decision overrules previous landmark decisions that have cited the existence of menstruation health as a constitutional right, and it recharacterises the right to menstruation health as a public responsibility, not a discretionary act of state policy. The Court held that insufficiency of menstrual hygiene provision in schools amounts to a violation of Articles 14, 21 and 21A of the Constitution. Consequently, it imposes such provisions as minimum standards in Right to Education Act and it makes the gender-specific physiological need an aspect of individual dignity and a part of social citizenship. The long-term implications of this judgment will depend upon the ability of the Union and the State governments to provide for long-term sustainable funding, to set up effective monitoring procedures, and to create awareness among the people in society. Accordingly the language of the decision goes beyond the pronouncements of jurisprudence to pervade class rooms, sanitation infrastructure and practices. If implemented in an effective manner, this precedent could help transform the educational experience of girls in India and can serve as a precedent for menstrual justice litigation in other jurisdictions.
Reference(S):
Primary Case Law (India)
1.Dr Jaya Thakur v Government of India and Others [2026] INSC 97 (Supreme Court of India, 30 January 2026) Writ Petition (Civil) No 1000 of 2022,https://api.sci.gov.in/supremecourt/2022/35023/35023_2022_7_1502_68117_Judgement_30-Jan-2026.pdf.
2.Devika Biswas v Union of India (2016) 10 SCC 726 (SC),https://www.globalhealthrights.org/devika-biswas-v-union-of-india/.
3.CESC Ltd v Subhash Chandra Bose (1992) 1 SCC 441, AIR 1992 SC 573 (SC),https://www.globalhealthrights.org/c-e-s-c-ltd-v-subhash-chandra-bose-and-ors/.
4.Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37, AIR 1996 SC 2426 (SC),https://www.casemine.com/commentary/in/paschim-banga-khet-mazdoor-samity-v.-state-of-west-bengal%3A-affirmation-of-article-21-right-to-immediate-medical-care-in-government-hospitals/view.
5.Mohini Jain v State of Karnataka 1992 AIR 1858, 1992 (3) SCC 666 (SC),https://indiankanoon.org/doc/40715/.
6.Jane Kaushik v Union of India and Others 2025 INSC 1248, Writ Petition (Civil) No 1405 of 2023 (Supreme Court of India, 17 October 2025),https://indiankanoon.org/doc/109624343/.
Constitutional and Statutory Materials (India)
7.Constitution of India (as amended to the 104th Constitutional Amendment Act 2019) – Relevant provisions: Arts 14, 15(3), 21, 21A.
8.Right of Children to Free and Compulsory Education Act 2009 (Act 35 of 2009) – Especially ss 3 and 19.
International Human Rights Instruments
9.Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III)),https://www.un.org/en/about-us/universal-declaration-of-human-rights.
10.International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3,https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights.
11.Convention on the Rights of the Child (CRC) (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3,https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child.
12.Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13,https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women.
Authoritative Case Notes and Commentaries on Dr Jaya Thakur
13.Supreme Court Observer, ‘Menstrual Health as a Facet of Right to Life – Dr Jaya Thakur v Government of India’ (SCO.LR case summary, 30 January 2026),https://www.scobserver.in/supreme-court-observer-law-reports-scolr/dr-jaya-thakur-v-government-of-india18873/.
14.SCC Times, ‘Right to Menstrual Health part of Right to Life: SC issues directions on Free Sanitary Pads, Menstrual Hygiene Management corners in schools’ (30 January 2026),https://www.scconline.com/blog/post/2026/01/30/right-to-menstrual-health-part-of-art-21-of-constitution/.
15.Lawcurb, ‘Legal Review and Analysis of Dr Jaya Thakur vs Government of India & Ors 2026 INSC 97’ (28 January 2026),https://www.lawcurb.in/judgements/dr-jaya-thakur-vs-government-of-india-%26-ors-2026-insc-97.
16.CaseMine Commentary, ‘Menstrual Hygiene Management in Schools as an Enforceable Fundamental Right and RTE Act Standard’ (31 January 2026),https://www.casemine.com/commentary/in/menstrual-hygiene-management-in-schools-as-an-enforceable-fundamental-rights-and-rte-act-standard/view.
17.Drishti Judiciary, ‘Menstrual Health is a Fundamental Right’ (Current Affairs note, 31 January 2026),https://www.drishtijudiciary.com/current-affairs/menstrual-health-is-a-fundamental-right.
18.NEXT IAS, ‘Menstrual Health Fundamental Right under Article 21: SC’ (Current Affairs brief, 31 January 2026),https://www.nextias.com/ca/current-affairs/31-01-2026/menstrual-health-article-21.
19.InsightsIAS, ‘Right to Menstrual Health as a Fundamental Right’ (Current Affairs, 31 January 2026),https://www.insightsonindia.com/2026/01/31/right-to-menstrual-health-as-a-fundamental-right/.
20.The Mentorship Project, ‘Supreme Court Declares Menstrual Hygiene Facilities in Schools a Constitutional Right under Articles 14, 21 and 21A’ (news brief, 2026),https://www.thementorshipproject.in/news-details/VjAMMg%3D%3D/Supreme-Court-Declares-Menstrual-Hygiene-Facilities-in-Schools-a-Constitutional-Right-Under-Articles-14-21-and-21A.
21.The Wire, ‘Five Significant Observations from the Supreme Court Verdict on Menstrual Hygiene’ (analysis, 1 February 2026),https://thewire.in/gender/five-significant-observations-from-the-supreme-court-verdict-on-menstrual-hygiene
22.LawStreet Journal, ‘Dignified Menstrual Health Integral to Right to Life: SC’ (2026),https://lawstreet.co/judiciary/dignified-menstrual-health-integral-to-right-to-life-sc.
