Menstrual health a Constitutional right, says SC

In a significant order expanding citizens’ rights, the Supreme Court on Friday directed all States and Union Territories to provide free biodegradable sanitary napkins and functional, gender-segregated toilets for all the girl students. The verdict comes in response to a PIL filed by Jaya Thakur on December 10, 2024, seeking pan-India implementation of the ‘Menstrual Hygiene Policy for school-going girls’.

The court framed four questions including whether inaccessibility to pads and toilets creates systemic barriers that prevent adolescent girls from participating in education on equal terms with boys in violation of Article 14 (equality). It also dealt with whether menstrual health is essential for reproductive health and a life lived with dignity under Article 21 of the Constitution.

The bench of Justices JB Pardiwala and R Mahadevan issued a slew of directions to all States and UTs to ensure that these facilities are provided in all schools across the country. The order, authored by Justice Pardiwala, warns of stringent consequences for non-compliance, including the de-recognition of private schools and holding State Governments directly accountable for failures of public institutions.

“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 healthy reproductive life embraces the right to access education and information about sexual health,” the bench held.

On the issue of toilets, the SC directed all States and UTs to ensure that “every school... is provided with the functional gender segregated toilets with usable water connectivity”. It said all the existing and newly constructed toilets in schools shall be designed, constructed and maintained so as to ensure privacy and accessibility, including by catering to the needs of children with disabilities. “All school toilets shall be equipped with functional hand washing facilities with soap and water available at all times,” it ordered.Justice Pardiwala said the right to education has been termed as a multiplier right as it enables the exercise of other human rights.

“The Right to Education (RTE) forms part of the broader framework of the right to life and human dignity, which cannot be realised without access to education,” the verdict said.The substantive approach to equality under Article 14 demands that treatment be accorded with due regard to the individual, institutional, systemic and contextual barriers that impede the translation of rights in reality, it said, adding, “At the same time, the state, as a benefactor, is under an obligation to remedy such structural disadvantages”.

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

It said 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.“Inaccessibility of menstrual hygiene management measures strips away the right to participate on equal terms in school. The domino effect of the absence of education is the inability to participate in all walks of life later,” it said.

It also dealt with the fundamental right to education under Article 21 A and the RTE Act which comprises compulsory and quality education.

The verdict said all schools must act in accordance with the norms and standards laid down in Section 19 of the RTE.“In case of a school not established, owned or controlled by the appropriate Government or the local authority is found to be in contravention of the provisions of the RTE Act, it would be de-recognised and the consequences therefrom would follow...,” it said.The detailed judgment is awaited.