Introduction
For the longest time in India, whenever there used to be some talk or discussion about menstrual hygiene, it was treated like a charity project or a private health issue. It was often discussed in the corridors of “welfare” rather than “rights”. But in the recent judgement of the Honourable Supreme Court of India, it was finally called what it actually is, “a fundamental right”[1].
In the case of Dr Jaya Thakur vs Union of India, the court looked at menstruation as a legal barrier for girls and women, which halts their fundamental rights given by the Constitution.[2]. When a girl child drops out of school because she doesn’t have a private toilet or a sanitary pad, it’s not just a “social issue.” It is a direct failure of the State to uphold its constitutional promises. In this recent case of Dr Jaya Thakur vs Union of India, the judiciary has shifted the conversation by linking menstrual hygiene to Article 21 (Dignity) and Article 21(A) (Education). Now the people are not demanding ‘help’ anymore; they are demanding a ‘right’ that has been ignored for too long.[3].
Understanding the reasons for Supreme Court intervention
To understand the reason for the Supreme Court’s intervention, we first need to understand that even though the Constitution of India grants rights to all the people of India equally, there are alterations when applied to real-world scenarios[4]. It’s not just about what is written in the Constitution; it is about whether that text can protect the rights of a girl living in a rural place.
- Equality before the law: Article 14 of the Indian Constitution promises “equality before the law”[5]. Suppose a school in a rural area is providing desks and books to all the students in the school, but doesn’t provide the basic biological needs of females and transgender students, then can it be called equal? Of course not. It is like telling two people to run, but one with a heavy load on his back. If the State doesn’t provide Menstrual Hygiene Management facilities, it is essentially allowing a biological reality to turn into an educational gap[6].
- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: Article 15 of the Indian Constitution clearly states that you cannot discriminate against a citizen based on sex[7]. After this judgment, we have understood that discrimination is not just about saying ‘no’ to a person, it is also about failing to provide basic infrastructure a girl needs because of the biological difference.[8]. Even today in India, there are schools where there is a lack of toilets and pads, and because of that, the girls are disproportionately affected. This leads to a massive dropout rate — some data suggests around 20%, the moment they reach puberty. That is sex-based discrimination, which is in its most basic and physical form.
- The Right to Life and Personal Liberty: Article 21 of the Indian Constitution also covers the right to dignity[9]. Ever since the Maneka Gandhi case, we have known that the “Right to Life” doesn’t just mean staying alive; it means living with dignity.[10]. If a girl is forced to use unhygienic rags or has to go to home in the middle of school because she is afraid of a stain, then there is no dignity left for them. This 2026 ruling makes it clear: if the State can’t provide a basic, private space for a girl to manage her period, it is violating her right to live with dignity.[11].
Menstrual Hygiene from “Welfare” to “Fundamental Right”
Before this recent judgment on Menstrual Hygiene Management, we had the “National Menstrual Hygiene Policy,” but it was mostly a set of suggestions.[12]. The honourable Supreme Court noticed that, despite having a policy on paper, the implementation of that policy was lacking.
The directives given by the court changed it from ‘discretionary welfare’ to ‘mandatory compliance’[13], and that was done mainly in two ways:
- Menstrual Hygiene Management Corners: Schools must have dedicated spaces with spare uniforms, innerwear, and pads[14].
- Technical Standards: The court even specified the use of biodegradable pads to make sure that it doesn’t solve one problem (health) while creating another (environmental waste).
Why India’s path is a bit different and unique from the rest of the World
Numerous countries have taken steps in the field of Menstrual Hygiene, and some of the prominent examples are Scotland, which came up with the Period Products Act, by which they became the first to make pads free for everyone. Another good example can be Kenya, which did something similar by removing the “tampon tax” years ago and mandating free supplies in schools.
The reason why it is different in India is that all those changes and rules in the other nations came through the parliament, and in India, as the Parliament is silent on these issues, the Judiciary had to step in.[15]. Although the judiciary has taken a step, it is difficult to implement it because the judiciary doesn’t hold the power to allocate the budget. They can tell the Government what to do, but they can’t control how the money is spent.
Supreme Court’s Decision to Break the Silence
The Honourable Supreme Court has also addressed the old cultural issue that this is a ‘women’s only’ problem by mandating the male teachers and students to actively take part in such activities of helping their teachers and colleagues.[16]. The Court has done this to break the cultural silence, which is a legal barrier for the girls. If a male teacher denies a girl a break to change her pad, or if male classmates mock her, that is a hostile environment. By involving men in the conversation, the Court is trying to break the invisible wall of shame that surrounds menstruation.[17].
The Real Problem
The actual hurdle before the court was to decide on the issue of funding for this new step. The Supreme Court suggested that it should be split between the Central and State Governments, in the ratios of either 60:40 or 90:10. This is where things get messy. In our system of “Fiscal Federalism,” the Centre often sets the goals, but the States have to do the heavy lifting.
Suppose a State is already struggling with its educational fund, then will it allocate a significant amount for these initiatives, like Menstrual Hygiene Management, over building classrooms? Without a dedicated National Menstrual Health Fund, there’s a fear that these directives will be followed in big cities but ignored in the villages.
Conclusion
The 2026 ruling in Dr Jaya Thakur v. Union of India is huge, but it’s not the finish line—it’s the starting point. The Court did its part by recognising the right. Now it’s on the government to actually build the systems that make it real.
For a girl in school, getting her period should just be biology—not a reason to miss class. We’re finally done with the hushed tones and charity handouts. Menstrual hygiene is a constitutional right now. Our schools, our budgets, and our attitudes need to catch up.
Author(s) Name: Harshit Tiwari (Army Institute of Law, Mohali)
References:
[1] Drishti IAS, “Menstrual Health as a Fundamental Right” (4 February 2026) <https://www.drishtiias.com/daily-updates/daily-news-analysis/menstrual-health-as-a-fundamental-right> accessed 10 February 2026.
[2] Dr Jaya Thakur v Government of India (Supreme Court of India, WP(C) No 1000/2022, 30 January 2026) (2026 INSC 97).
[3] Supreme Court Observer, “Menstrual Health as a Facet of Right to Life” https://www.scobserver.in/supreme-court-observer-law-reports-scolr/dr-jaya-thakur-v-government-of-india18873/ accessed 10 February 2026.
[4] Dr Jaya Thakur v Government of India (n 2) [42-68] (discussing substantive equality and constitutional framework).
[5] Constitution of India 1950, art 14.
[6] Gursimran Kaur Bakshi, “Menstrual Health Fundamental Right Under Article 21; Ensure Girls Get Free Sanitary Pads In Schools: Supreme Court” (LiveLaw, 30 January 2026) <https://www.livelaw.in/top-stories/menstrual-health-fundamental-right-under-article-21-ensure-girls-get-free-sanitary-pads-in-schools-supreme-court-521230> accessed 10 February 2026.
[7] Constitution of India 1950, art 15.
[8] Dr Jaya Thakur v Government of India (n 2) [42-68].
[9] Constitution of India 1950, art 21.
[10] Maneka Gandhi v Union of India (1978) 1 SCC 248.
[11] Dr Jaya Thakur v Government of India (n 2) [69-98].
[12] Drishti IAS (n 1).
[13] Dr Jaya Thakur v Government of India (n 2).
[14] Bakshi (n 6).
[15] Lawctopus Academike, “Menstrual Health and Right to Life: A Progressive Step by the Supreme Court” <https://www.lawctopus.com/academike/menstrual-health-and-right-to-life-a-progressive-step-by-the-supreme-court/> accessed 10 February 2026.
[16] Dr Jaya Thakur v Government of India (n 2).
[17] Bakshi (n 6).
