Prefacing their judgment with this quote from American educator Melissa Berton, a Supreme Court bench of Justices J B Pardiwala and R Mahadevan, on Friday, delivered a landmark verdict recognising the access to menstrual hygiene as not just a health issue but as a constitutional right.
The court issued a continuing mandamus — a judicial order through which it keeps a matter pending to monitor compliance — directing the Centre and states to ensure free sanitary napkins and functional toilets in all schools.
The court’s reasoning is anchored in the concept of “substantive equality”. While Article 14 of the Constitution guarantees equality before the law, the court noted that treating everyone exactly the same may perpetuate inequality.
The judgment notes that “equal consideration for all may demand very unequal treatment in favour of the disadvantaged.” In the context of schools, it said that if a girl child cannot attend classes because she lacks menstrual absorbents or a toilet, she is not on an equal footing with her male counterparts.
“The absence of menstrual hygiene measures entrenches gendered disadvantage by converting a biological reality into a structural exclusion,” it observed.
The judgment went on to place menstrual health within the right to life and personal liberty guaranteed by Article 21 of the Constitution. It held that the right to life includes the right to live with dignity.
“For menstruating girl children, the inaccessibility of MHM (Menstrual Hygiene Management) measures subjects them to stigma, stereotyping, and humiliation,” the court noted. It added that forcing a student to drop out or absent herself due to a lack of MHM facilities violates her bodily autonomy and privacy.
The court then provides an interpretation of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) through the lens of menstrual health.
It held that the term “free education” in Section 3 of the RTE Act is not limited to waiving tuition fees – it implies the removal of any financial barrier that prevents a child from completing their education.
“When this expenditure [on sanitary products] leads to absenteeism or drop-out, the State’s inaction converts a guaranteed right into a conditional one,” the judgment states. Therefore, providing free sanitary napkins is a statutory obligation to ensure education is truly “free”, reasoned the court.
It then points out that Section 19 of the RTE Act mandates schools to maintain specific norms and standards, including separate toilets for boys and girls. The court clarifies that this is not merely an infrastructural requirement but a substantive one.
“The requirement for ‘barrier-free access’ must be understood in a substantive sense… the absence of sanitary napkins and a hygienic mechanism to dispose it results in absenteeism, or drop-out of girls from school,” the court said, terming the lack of such facilities a “stark constitutional failure”.
The court has issued specific, time-bound directions to the union government, states and union territories, to be complied with within three months.
Firstly, the State must ensure that every school – both government-run and privately managed –provides sanitary napkins free of cost to girl students. The court specified that these should be “oxo-biodegradable sanitary napkins” to ensure environmental sustainability and should be dispensed preferably through vending machines within toilet premises or via a designated authority in the school.
Secondly, the court directed that schools must have safe, hygienic and environmentally compliant mechanisms for disposing of sanitary napkins, along with covered waste bins that are regularly cleaned.
Thirdly, all schools in urban and rural areas must have functional, gender-segregated toilets with usable water connectivity. The court further directed that toilets must be designed to ensure privacy and accessibility for children with disabilities and that they must be equipped with “functional hand-washing facilities, with soap and water available at all times”.
Fourthly, schools have been directed to establish “Menstrual Hygiene Management corners” equipped with essentials such as spare innerwear spare uniforms, and disposable bags to handle menstruation-related exigencies. This would ensure a girl does not have to leave school due to staining or leakage.
The judgment also emphasises on destigmatising menstruation, noting that an “unsupportive, rather hostile and stigmatized environment” renders infrastructure useless.
“It is crucial that boys are educated about the biological reality of menstruation,” the court observed. “A male student, unsensitized towards the issue, may harass a menstruating girl child which may discourage her from attending school.”
The Court has directed the National Council of Educational Research and Training and the State Council of Educational Research and Trainingto incorporate gender-responsive curricula on puberty and menstruation. It has also mandated that all teachers, “whether male or female”, get training to support menstruating students.
District Education Officers (DEO) have been directed to conduct periodic inspections of schools, preferably once a year. The Court has also mandated that DEOs must obtain “anonymous feedback in the form of a tailored survey from the students themselves” to assess the reality of the facilities.
Concluding the judgement, the bench wrote: “We wish to communicate to every girl child, who might have become a victim of absenteeism because her body was perceived as a burden, that the fault is not hers.”
