The Supreme Court on Friday issued a landmark ruling recognising the right to menstrual hygiene and access to menstrual hygiene products as a part of the right to life under Article 21 of the Constitution of India [Dr. Jaya Thakur v. Government of India].

The Bench of Justices JB Pardiwala and R Mahadevan held that access to menstrual hygiene measures (MHM) is inseparable from the right to live with dignity.

Non-access to such measures would lead to stigma, stereotyping and the humiliation of menstruating girl students, the Court reasoned. The Court concluded that girl students have a legitimate expectation to manage their menstruation in privacy and with dignity.

"The right to life under Article 21 of the Constitution includes the right to menstrual health. Access to safe, effective, and affordable menstrual hygiene management measures helps a girl child attain the highest standard of sexual and reproductive health. The right to a healthy reproductive life embraces the right to access education and information about sexual health. The right to equality is expressed through the right to participate on equal terms. At the same time, equality of opportunity necessitates that everyone has a fair chance to acquire the skills necessary to access benefits," its judgment added.

The Court passed the ruling on a plea to ensure that free pads are provided to every female child studying between classes 6 and 12 in schools, and to ensure separate toilets for girl students in all government-aided and residential schools.

It has issued a series of directions to ensure menstrual hygiene facilities are available in schools across India. These directions include the following:

- The government is to ensure that all schools, whether government or private, in both urban and rural areas, have functional, gender-segregated toilets with usable water connectivity that are designed to ensure the privacy and dignity of students using them, including those with disabilities.

- All schools must provide oxo-biodegradable sanitary napkins free of cost. These pads should be readily available to girl students, preferably in toilet premises through sanitary napkin vending machines, or, where such installation is not immediately feasible, at a designated place, or with a designated authority within the school.

- Every school must establish Menstrual Hygiene Management (MHM) corners, equipped with, including but not limited to, spare innerwear, spare uniforms, disposable bags, and other necessary materials to address menstruation-related exigencies.

- Every school must be equipped with safe, hygienic, and environmentally compliant mechanisms for the disposal of sanitary napkins, in accordance with the latest Solid Waste Management Rules.

The Court has ordered the conduct of periodic inspections in schools as well to ensure such infrastructure is in place.

Directions have also been issued to increase awareness about menstrual health, including through changes in the school curriculum. These directions include the following.

- The National Council of Educational Research and Training (NCERT) and the State Council of Educational Research and Training (SCERT) are to incorporate gender-responsive curricula, more particularly, on menstruation, puberty, and other related health concerns (PCOS, PCOD, etc.), with a view to breaking the stigma and taboo associated with menstrual health and hygiene.

- The information about availability of free pads are school is to be widely publicised through advertisements, radio, media platforms, etc.

The Court added that it will be monitoring the compliance of its directions, and listed the matter next after three months.

In its judgment, the Court noted that non-access to menstrual hygiene facilities can affect their right to education, particularly when girl students are forced to drop out of school or remain absent from classes because they do not have access to such facilities during their periods.

"Menstrual poverty hinders menstruating girls from exercising their right to education with dignity equal to that of their male counterparts, or students who can afford sanitary products ... Many girls choose to absent themselves during menstruation due to lack of access to, or inability to afford, menstrual hygiene products, unavailability of gender-segregated washrooms, and absence of disposal mechanisms. This establishes a clear causal relationship between menstrual poverty and girls’ lower attendance in school. The absence of such measures lead many girls to absent themselves, or rather drop-out of school, leaving a lasting adverse impact on their education," the Court pointed out.

The Court delved into research on how lack of access to menstrual hygiene facilities posed as barriers to the right to education for girl students. It expressed concerns that a large number of schools lacked even basic hygiene facilties.

"We are disheartened to note that the availability of water for cleaning and flushing of toilets still remains a major concern. The (Clean India: Clean Schools Handbook) further reported that MHM (menstrual hygiene management) is absent in a majority of schools, including the lack of gender-specific infrastructure, access to sanitary napkins, and a disposal mechanism," the Court noted.

It also took note of the added disadvantages faced by menstruating girl students with disabilities.

"When the menstruating girl child is also a child with disability, she is not merely facing disadvantages arising from menstrual poverty, but is additionally subjected to other disadvantageous consequences flowing from the intersection of gender and disability. The aforesaid disadvantages can be redressed by ensuring access to clean gender-segregated washrooms, sanitary napkins, or other suitable menstrual absorbents, hygienic and safe disposal mechanisms; and spreading awareness and imparting education on menstruation and MHM measures," the Court observed.

The Court concluded that inaccessibility to menstrual hygiene measures would amount to a violation of the dignity of girl children.

"The inaccessibility of menstrual hygiene management measures undermines the dignity of a girl child, as dignity finds expression in conditions that enable individuals to live without humiliation, exclusion, or avoidable suffering. Privacy is inextricably linked with dignity. As a corollary, the right to privacy entails a duty on the State not only to refrain from violating privacy, but also an accompanying obligation to take necessary measures to protect the privacy of an individual," it held.

The Court also underscored the need for spreading awareness about menstrual health among male teachers and boy students, to de-stigmatise the topic.

"Menstruation should not be a topic that is only shared in hushed whispers. It is crucial that boys are educated about the biological reality of menstruation. A male student, unsensitized towards the issue, may harass a menstruating girl child which may discourage her from attending school," the Court highlighted.

The Court opined that menstrual health must be viewed as a shared responsibility, and not just a "woman's issue."

The Court added that today's judgment is meant to encourage girl students, teachers and parents to recognise and assert the right to menstrual hygiene facilities.

"It is meant for the classroom, where girls hesitate to ask for help. It is for the teachers who want to help but are restrained due to a lack of resources. It is for the parents who may not realise the impact of their silence, and for society, to establish that progress is measured by how we protect the most vulnerable. We wish to communicate to every girl child who may have become a victim of absenteeism because her body was perceived as a burden, that the fault is not hers. These words must travel beyond the courtroom and law review reports, and reach the everyday conscience of society at large," the Court said.

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