Menstrual Health as a Fundamental Right: Comprehensive Briefing

The Supreme Court of India (SC), in the landmark case of Dr. Jaya Thakur v. Government of India & Ors. (2026), officially recognized Menstrual Health and Hygiene (MHH) as a fundamental right under the Indian Constitution. This ruling transitions MHH from a welfare-based concern to a binding constitutional entitlement, primarily under Article 21 (Right to Life and Dignity) and Article 14 (Right to Equality).

Constitutional and Legal Foundations

The Court’s ruling redefines several key legal concepts to ensure that menstruation does not serve as a barrier to fundamental rights.

1. Article 21: Dignity and Bodily Autonomy

• Fundamental Dignity: The Court ruled that lack of access to MHH facilities subjects individuals to "stigma, stereotyping, and humiliation," which violates the right to live with dignity.
• Right to Health: MHH is recognized as integral to reproductive health and privacy.
• Positive Liberty: The judgment moves from "Negative Liberty" (the State not preventing school attendance) to "Positive Liberty" (the State providing the material conditions, like pads and toilets, to make attendance possible).

2. Article 14: Substantive Equality

• Biological Tax: The ruling introduces the concept of "Biological Citizenship," where the State is responsible for neutralizing the "biological tax" or disadvantages women face due to natural processes.
• Structural Exclusion: Treating everyone the same ("formal equality") ignores unique biological needs, creating exclusion. "Substantive equality" requires the State to address these specific disadvantages to ensure girls are on equal footing with male peers.

3. Right to Education (RTE) Act, 2009

• Redefining "Free": Under the RTE Act, "free" education is no longer just the absence of tuition fees. It now includes the removal of financial barriers such as the cost of sanitary products.
• Substantive Infrastructure: Separate toilets are no longer merely "infrastructural guidelines" but "substantive" requirements. Failure to provide them is now categorized as a "stark constitutional failure."

Mandatory Judicial Directions and Standards

The Supreme Court issued a continuing mandamus to monitor compliance across the Centre and states. The following standards are now mandatory pan-India:

The Socio-Economic Impact of "Menstrual Poverty"

The ruling highlights the direct link between biological realities and educational outcomes:

• Dropout Rates: Approximately 23% of girls drop out of school or face chronic absenteeism following puberty.
• Hygienic Access: NFHS-5 data indicates that only 77.3% of women aged 15–24 use hygienic menstrual methods; nearly one-fourth are deprived of basic support.
• Stigma as a Barrier: The Court identified that a "hostile environment" created by un-sensitized peers and teachers is a primary driver for school dropouts.

Current Government Framework and Measures

Several existing initiatives are noted as foundational to the improvement of MHH:

• PMBJP (Janaushadhi Kendras): Over 16,000 centers provide "Suvidha" oxo-biodegradable napkins at Rs. 1 per pad. Cumulative sales reached 96 crore pads by November 2025.
• ASHA Network: Distributes subsidized packs (Rs. 6 for 6 napkins) and conducts community meetings to break taboos.
• Samagra Shiksha: Ministry of Education funds for sanitary pad vending machines and incinerators in schools.
• Mission Shakti: Includes MHH awareness as part of Beti Bachao Beti Padhao.
• UGC Advisory: Mandates Higher Educational Institutions (HEIs) to provide sanitary facilities in conspicuous locations.

Key Implementation Challenges

Despite the legal mandate, several hurdles remain for effective implementation:

• Infrastructure Deficit: Toilets often exist "on paper" but lack running water, soap, or cleaning staff.
• O&M Constraints: A lack of recurring Operation and Maintenance (O&M) budgets leads to the rapid deterioration of facilities.
• Procurement Logistics: Scaling up the supply of quality oxo-biodegradable pads within tight timelines strains state budgets.
• Waste Disposal Risks: Inadequate technical capacity for incinerators and a lack of standardized protocols threaten environmental compliance.
• Feedback Authenticity: Power hierarchies in schools may prevent students from providing honest reporting through surveys.

Recommendations for Strengthening MHH

The following measures are proposed to ensure the effectiveness of the MHH mandate:

• Inclusivity: Policies must include trans-men and non-binary individuals who menstruate.
• Sashaktikaran (Empowerment): Leverage Self-Help Groups (SHGs) for local production of biodegradable napkins.
• Jal Jeevan Integration: Ensure 24/7 running water in school toilets by integrating with the Jal Jeevan Mission.
• Privacy-First Design: Install "privacy screens," internal latches, mirrors, and hooks in toilets.
• Direct Benefit Transfer (DBT): Explore "Pad Credits" or DBT for hygienic products in areas where supply chains are broken.
• Standardized Procurement: Establish Centralized Procurement Cells to ensure napkins meet biodegradability standards (ASTM D-6954 or IS 17518).
• Sensitization: NCERT and SCERTs must incorporate gender-responsive curricula to educate boys and train all teachers.

Conclusion

The Supreme Court’s recognition of menstrual health as a fundamental right marks a shift from discretionary welfare to a constitutional entitlement. By addressing "menstrual poverty" through structural reform and state responsibility, the judgment seeks to ensure that biological functions do not result in educational or social exclusion. As the Court noted: “A period should end a sentence, not a girl’s education.”