The Good, the Bad and the In-Between: Analysing the Supreme Court Judgment on Menstrual Health

On 30 January 2026, the Supreme Court of India in Dr. Jaya Thakur v. Government of India and Ors. recognised menstrual health as a constitutionally protected right under the Indian Constitution. This judgment is significant as it marks the first such concrete effort by the Supreme Court towards a constitutionally rooted rights-based approach towards menstrual health

This piece analyses the judgment and argues that the strength of the Supreme Court’s approach lies in its deeper understanding of the issues and the legal dimensions concerning menstruation. However, at the cost of a deeper analysis, the Court has adopted a linear cause-and-effect understanding, failing to consider alternative dimensions of issues relating to menstruation.

When the Law Meets Reality:  Why the Supreme Court’s Decision is Crucial

(1)   Building a Constitutional Home for Menstruation

The Supreme Court’s reasoning for recognition of menstrual health as a fundamental right is based on a conjoint reading of multiple provisions of Part III of the Constitution. First, Article 14, which guarantees the right to equality. Opting for a substantive equality lens, in line with the recent approach of the Supreme Court, the Court in Dr. Jaya Thakur viewed the equal treatment principle as insufficient, as it guarantees equality in isolation without taking into consideration the position of an individual as shaped by historical and structural disadvantages. Rather, substantive equality ensures that, the ‘right to equality includes, or rather is expressed through the right to be able to participate on equal terms in community and society’ (para. 100). This participation-based lens also informed the Court’s understanding of equal opportunity in the context of education. The Court concluded that the absence of menstrual hygiene management (“MHM”) measures in education entrenches the existing gender disadvantage and also affects a girl’s opportunities to participate in education.

Besides the participative dimension of the right to education, the Court also focused on the role of infrastructure and the quality of education on menstrual rights. According to the Court, in line with Article 21A and the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act”), ensuring MHM measures is also a part of barrier-free access to quality education. Interpreting barrier-free access broadly, the Court observed that it is not confined to ensuring formal access to school buildings, but also includes the removal of all barriers that hinder the presence of children in school. As a result, the absence of sanitary napkins and the lack of a proper mechanism for the disposal of menstrual waste result in the denial of such access. Further, quality education is also not merely restricted to ensuring textbooks, teachers, and classrooms in a school. Lack of MHM also affects the quality of education as it“…disrupts attendance, hinders concentration and consequently, breaks the continuity of schooling” (para 137).

On the other hand, the Supreme Court, through a catena of judgments, such as KS Puttaswamy (Privacy-9J) v. Union of India, Common Cause v Union of India, and Navtej Singh Johar v Union of India, has already recognised the right to dignity, privacy, and autonomy as part of Article 21. At the same time, precedents such as Consumer Education and Research Centre v Union of India, Devika Biswas v Union of India, X v State (NCT of Delhi) have established that right to life under Article 21, including the right to health. Emphasising that MHM measures are inseparable from the right to dignity, the Court in Dr. Jaya Thakur viewed the lack of MHM measures as a cause for absenteeism of girls from schools, and adoption of unsafe practices to manage their menstrual cycle as affecting the bodily autonomy and dignity of school-going girls. At the same time, the Court also tied menstrual health to the fundamental right to health. The Court observed that the right to health includes the ‘right of a menstruating girl to access MHM practices to attain the highest standard of sexual and reproductive health.’ (para. 84)

The only other Supreme Court judgment that uses a rights-based approach towards understanding issues concerning menstruation is Justice Chandrachud’s concurring opinion in the Indian Young Lawyers Foundation Case (popularly known as the Sabarimala Temple Entry Case). While briefly relying on dignity and privacy, Justice Chandrachud’s approach was primarily rooted in Article 17 of the Indian Constitution, which abolishes untouchability. The Court was considering the issue of a ban on the entry of women in their menstruating years in the Sabarimala temple in Kerala. Justice Chandrachud observed that ‘…menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities.’ (para. 81). In comparison, in Dr. Jaya Thakur, the Court makes no mention of Article 17 at all. Instead, the Court viewed exclusion from an equality-based lens, focusing on the fact that the lack of MHM measures might lead to structural exclusion of girls and that this exclusion affects the right to participate on an equal basis, rather than viewing exclusion as a wrong in itself as done by Justice Chandrachud.

This reflects the complexity associated with addressing issues concerning menstrual health. It also underscores why considering alternative dimensions in the case of menstruation is the only way forward towards a comprehensive rights-based approach. A combined reading of both these judgments results in the understanding that menstrual health rights are associated not only with Articles 14, 21 and 21A, but also Article 17 of the Constitution.

(2) Playing with the Words: Supreme Court’s Clear Interpretation of MHM and State’s Obligations

The Supreme Court’s judgment in Dr. Jaya Thakur is also crucial for its broad interpretation of MHM. The Court has underscored that MHM is not only about sanitation, but includes bodily autonomy and privacy, which can be exercised only if girls have access to functional toilets, adequate menstrual products, and availability of water and hygienic mechanisms for disposal.

At the same time, the Court’s approach is important because it not only recognises menstrual health as a fundamental right but also imposes a corresponding duty on the State. The Court, under all three provisions referred above, i.e., Articles 14, 21, and 21A, read with the RTE Act, 2009, held that the state has a positive obligation to provide access to safe, effective, and affordable MHM measures. Consequently, the Court issued directions on the following issues. First, on material access, i.e., ensuring access to toilets, washing facilities, menstrual absorbents, and other materials. Second, on social awareness, including gender responsive curricula in textbooks, training for teachers, and advertisements promoting government schemes on menstruation. Third, on putting in place a compliance mechanism in the form of a continuing mandamus on the Union to ensure observance with the directions.

(3) The Inclusivity Angle: Including All Women, Men, and the Society

The Supreme Court’s judgment also reflects an awareness of the deeper issues tied to menstruation in India. For instance, using an intersectionality-based lens, the Court acknowledged both compounded disadvantage and the need for heightened state responsibility in the case of girls with disabilities. Second, the Court also underscored the need for involving men, including classmates, teachers, and staff. The Court observed that the implementation of such laws is weak due to the deep-seated stereotypes, and hence, any real change would require the transformation of the school environment, which also includes men. Third, as highlighted above, the Court imposed an obligation on the state to not only include gender responsive curricula on menstruation and allied health concerns, such as PCOS, in textbooks, but also provide information regarding the availability of Jan Aushadhi Suvidha via advertisements in media and public places.

The Overlooked Dimension: Supreme Court’s Failure To Address the Impact of Menstrual Pain on School Absenteeism

The point where the linear cause-and-effect approach is most evident in the Supreme Court’s reasoning is its analysis concerning school absenteeism. The Court’s decision is based on the understanding that school absenteeism during menstruation is primarily due to infrastructural and material issues, i.e., lack of safe and hygienic MHM measures (para 75). Though true, this is not the only reason why girls miss school during menstruation. Dysmenorrhea, commonly referred to as menstrual pain, is also a well-recognised reason for school absenteeism. The Supreme Court, despite citing these studies, fails to consider an alternative reasoning by focusing on the impact of menstrual pain on school absenteeism and lack of quality participation. Recognition of discomfort caused by menstrual pain also underscores the need to set up a fully functional healthcare facility that can provide temporary pain relief for menstrual pain in all schools. At the same time, because menstrual pain is often dismissed as normal and something that must be suffered, acknowledging it also highlights that the teachers and the healthcare staff must be adequately trained to provide relief for menstrual pain. However, neither the establishment of a healthcare facility nor specific training in pain management find a mention in the directions passed by the Supreme Court in Dr. Jaya Thakur.

An Incomplete Picture: The Silence on the Role Played By the Parents

In terms of stakeholders involved, the Court’s judgment focuses only on the role played by teachers and peers in a school environment. However, Rabin (2008) argues, and rightly so, that realisation of the right to education involves participation of three parties: the state, the child, and the parents. At the end of Dr. Jaya Thakur, the Court directly speaks to every school-going girl, telling her that ‘the fault is not hers.’ At the same time, the Court also imposed duties on the state. But it failed to consider the alternative, wherein a girl’s experience regarding menstruation is not shaped just in school, but also at home. Research highlights that mothers are the primary source of information for menstruation-related knowledge for girls, there being a direct relationship between the education level of mothers and school absenteeism. Hence, comprehensively dismantling stereotypes relating to menstruation also requires adequate sensitisation and training for parents. However, the Court’s judgment is silent on this, with only one single line in a 127-page judgment stating that awareness must be extended to boys, parents, and teachers (para 170).

A Watershed Moment

In sum, as the Draft Menstrual Policy, 2023 continues to be in the pipeline, this Supreme Court judgment is timely and significant for marking the beginning of the rights-based approach towards menstruation in India. The next step in the right direction needs to focus on considering the alternative dimensions of issues concerning menstruation. Only then can we comprehensively ensure a dignified menstruation for all girls and women in India.

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This Article has been authored by Ms. Seerat Gill, a lecturer at Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana