Abstract
For centuries, menstrual health—an ineluctable biological reality that shapes daily existence—has been hushed into the realm of silence and stigma. In India, though the consequences were silent, they resulted in structural erosion of dignity, education, public participation, and bodily autonomy for millions.
However, through dynamic and progressive judicial interpretation of Articles 14, 21, and 21A of the Constitution of India, menstrual health has transcended from a mere welfare concern to a justiciable fundamental entitlement.
This article unfolds the remarkable trajectory of menstrual health from being a social taboo to a constitutional entitlement in India, coupled with the landmark judgment of the Supreme Court of India in Dr. Jaya Thakur v. Union of India & Ors. (2026 INSC 97), contending that the neglect of menstrual health infrastructure constitutes a fundamental rights violation, not a peripheral administrative lapse.
It further substantiates various principles of dignity, bodily autonomy, and the right to meaningful education.
Keywords: Menstrual Health and Hygiene; Right to Life and Personal Liberty; Substantive Equality; Inclusive and Transformative Future
Introduction: Biology Became a Battleground
“The reality of past or future conditions did not matter deeply to the tenancy debate; what was vital was that tenants were perceived to be poor and oppressed, and their fate linked to legal rights and structures.”
Our Constitution guarantees justice, liberty, equality, and fraternity to every citizen, prohibiting any type of discrimination. Yet, a painful paradox has haunted Indian society for generations.
Menstruation, a natural and ordinary biological truth of womanhood, has been distorted into an excuse for gender discrimination. This bias manifested itself in the form of exclusion, shame, and inequality, thereby justifying the need to uphold menstrual health as a fundamental right.
Menstruation is the monthly shedding of the lining of the uterus, also known as menses, menstrual cycle, or periods. It is a physiological process experienced by approximately 1.8 to 2 billion people, including girls, women, transgender men, and non-binary persons.
Nevertheless, millions of menstruators are deprived of the right to manage their menstrual cycle in a dignified and healthy manner, often resulting in infection, distress, social isolation, and several other tangible consequences.
As per the National Family Health Survey-5 (NFHS-5, 2019–21), nearly one-fifth of women aged 15 to 24 years lacked access to basic menstrual protection in India.
The WaterAid India report also highlighted that over 50% of girls in India were unaware of menarche before experiencing it and faced school absenteeism due to discomfort and inadequate sanitation measures.
Even setting aside the inter-state disparity—which ranges from 95% in Kerala to a mere 32% in Bihar—the list of challenges continues endlessly.
In the land of democracy, where equality and equity are constantly discussed, and where Goddess Kamakhya is worshipped, still half of the nation’s population—women—are systematically sidelined.
Historical and Evolutionary Arc
Throughout the vast expanse of our land, for generations, menstruating women have lived through painful ostracism and pointless restrictions.
The Dharmashastras, specifically Manusmriti and later texts, which were conceived as the foundation of ethical, social, and legal duties of individuals and community well-being, codified menstrual isolation in relation to religious and social obligations.
Initially defined as “Rajasraava” (raja guna), it was later panned as “Aashuchi” (ritually impure).
During her cycle, a woman was directed to remain sheltered, avoid contact with food, distance herself from men, and purify herself before restoring her position in ordinary life.
She was constantly thrust to the bottom of the social ladder, treated even worse than the untouchables.
Ironically, the same society also revered menstruating Goddesses. From the Kamakhya Temple in Assam to the Raja Parba festival in Odisha, menstruation was celebrated as a symbol of life and renewal.
Yet, unfortunately, this reverence hardly extended to menstruating women.
Though unchallenged for centuries, a major institutional step was taken with the introduction of the Menstrual Hygiene Scheme (2011) by the Ministry of Health and Family Welfare, which provided subsidised sanitary napkins to girls aged 10–19 in rural areas.
Subsequently, former Union Minister Smriti Zubin Irani underscored menstrual health and introduced the Centre’s Scheme of Promotion of Menstrual Health (2022) in Lok Sabha.
The scheme aimed to provide sanitary pads through ASHA workers at ₹1 per pad.
Taking these steps further, the Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022 was proposed to provide paid menstrual leave and free access to menstrual products, though it still awaits enactment.
Collectively, these legislative efforts show a gradual shift in societal approach—once treated as a social taboo, now increasingly recognised with dignity, equality, and public health concerns.
Constitutional Guarantees: Articles 14, 21 and 21A
The recognition of menstrual health as a right cannot be derived from a single provision; rather, it is established on three constitutional pillars.
Article 21 guarantees the Right to Life and Personal Liberty. Through judicial progressiveness, it has come to embrace the right to health, dignity, privacy, and reproductive as well as bodily autonomy.
This is firmly affirmed in Justice K.S. Puttaswamy v. Union of India (2017) and Suchita Srivastava v. Chandigarh Administration (2009).
Article 14 upholds the principle of substantive equality. It demands the elimination of structures that have historically strangled menstruating women.
When a woman is barred from temples, denied access to work, and deliberately secluded from public life only because she bleeds, this stands beyond mere tradition and undermines the very essence of our Constitution.
Further, Article 21A, which secures the right to free and compulsory education, remains unsettled when menstruation becomes a hurdle to schooling.
Studies disclose that the rate of absenteeism among school-going girls is nearly 40% due to pain, fear, and lack of facilities.
A major breakthrough came in Indian Young Lawyers Association v. State of Kerala (Sabarimala Case, 2018), wherein the Supreme Court held:
“The subversion or repression of women under the garb of biological or psychological factors cannot be given the seal of legitimacy.”
This judgment became the constitutional foundation for further development.
A Judicial Milestone: Dr. Jaya Thakur v. Union of India
The constitutional recognition of menstrual health as a fundamental right came through the interpretation of Article 21 in Dr. Jaya Thakur v. Union of India & Ors. (2026 INSC 97).
A Public Interest Litigation was filed by social activist Jaya Thakur in December 2022, raising the crucial question of whether the absence of proper menstrual hygiene infrastructure in schools constitutes a violation of fundamental rights.
A division bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan, on 30 January 2026, unequivocally upheld menstrual health and hygiene as an essential component of Article 21, read with Articles 14 and 21A.
This recognition was translated into legally binding directions for all States and Union Territories.
Irrespective of whether government-aided or private, every school must provide free oxo-biodegradable sanitary pads to students of Classes 6 to 12.
For safe disposal and to subdue the taboo around menstruation, schools must establish a dedicated Menstrual Hygiene Management (MHM) corner equipped with essentials and spare uniforms.
Every school must also have functional, gender-segregated toilets with soap, privacy, and water connectivity.
Further directions include:
- Inclusion of menstrual health education in NCERT and SCERT curricula
- Compulsory training of teachers, especially male teachers
- Gender sensitisation measures
- Regular inspections by District Education Officers
- Anonymous student feedback mechanisms
- Possibility of derecognition for non-compliance
- Quarterly review through continuing mandamus writs
Conclusion
Decades of systematic and structural neglect have left a lasting imprint on India.
Records show that around 1.23 lakh cases of cervical cancer are registered annually, making it the second most common cancer among women aged 15 to 44.
These figures are not merely statistics; they showcase the consequences of long-sealed lips.
However, the winds have slowly changed direction.
As per NFHS-5, there is a significant rise in accessibility of menstrual protection products—from 57.6% to 77.3%—reflecting coordinated state efforts.
Additionally, over 16,000 Jan Aushadhi Kendras provide sanitary napkins at ₹1 per pad across the country.
Government initiatives such as the Samagra Shiksha Scheme help schools install sanitary pad vending machines.
Other schemes like Beti Bachao Beti Padhao and Rashtriya Kishor Swasthya Karyakram have also supplemented these efforts.
At the global level, the United Nations Human Rights Council Resolution 47/4 (2021) and the Sustainable Development Goals, particularly SDG 3 and SDG 5, have concretely acknowledged menstrual health and hygiene as an imminent part of human rights and dignity.
India’s vision of Viksit Bharat 2047 cannot be realised if half its population remains obstructed from classrooms, workplaces, and public life.
Inclusive growth necessitates the full participation of women—without discrimination, discomfort, or distress.
The execution of the Supreme Court’s judgment is not merely a procedural compulsion; it is the constitutional promise of dignity every woman deserves.
Saanvi Panigrahi,
Student, University Institute of Legal Studies (UILS),
Panjab University,
Chandigarh, India
