Introduction
On January 30, 2026, in a landmark decision regarding the constitutional rights of female students, the Supreme Court of India sided with Dr. Jaya Thakur (the petitioner) in a landmark finding that "menstrual health and hygiene" (MHH) are fundamental rights under Articles 14, 21 and 21A of the Indian constitution. Further, the Court declared that the lack of sanitary facilities (paper and soap) in public school bathrooms also constitutes an infringement of constitutional rights as opposed to a lack of a policy.
The Court's decision marks a pivotal shift from treating menstruation as something which should be managed by families and/or charities (i.e., as a biological condition of womanhood) to a legally enforceable right. With this shift, the Court has been able to provide a measurable, enforceable basis for addressing high dropout rates of girls in schools as a result of the oppression associated with MHH. In so doing, the Court is able to make visible the long-lasting, negative consequences of the invisibility of MHH under the law (i.e., high dropout rates, high rates of physical vulnerability amongst girls, and systemically reducing the participation and equity of girl students in the education system) by defining MHHs as legally enforceable rights under Part III of the Indian constitution instead of simply as a matter of discretionary welfare policy.
Factual and Procedural Background
In 2022, Dr. Jaya Thakur, a social worker, filed a writ petition under Article 32 of the Constitution in the public interest, seeking directions to all States and Union Territories to provide free sanitary pads, functional gender-segregated toilets and menstrual hygiene education to girls in government and government-aided schools from Class VI to Class XII.
In support of her petition, the data on the lack of usable toilets for girls in India was alarming. According to the data available at the time of filing, 28% of schools did not have usable toilets for girls. UNICEF’s studies, which were referenced in the submissions to the Court, established a clear causal relationship between the lack of this type of infrastructure and the drop-out rate of girls from school. Although the Union of India has acknowledged this inadequacy in its National Menstrual Hygiene Policy, it did not develop a legally enforceable obligation.
The petition therefore raised a central question: where the State acknowledges the necessity of providing for a social welfare need but fails to do so, when does that failure become a violation of the Constitution?
The Court’s Legal Reasoning: A Tripartite Constitutional Architecture
Article 21 (Dignity, Privacy and the right to control one’s body).
The basis for the Court’s reasoning in this case is Article 21; this provides for a right to live and live in the community. In the case Francis Coralie Mullin vs Administrator, Union Territory of Delhi (1981) 1 SCC 608, the Supreme Court has continually interpreted Article 21 as not only providing for survival but for living in a manner that provides for dignity.5 The Bench in Jaya Thakur carried this logic through based on the following (see I. Introduction for further details), a girl who has her menstrual period must find no facilities in order to deal with it and leave school due to distinctive physical discomfort in public, is not being provided with the respect that is encompassed in Article 21. The Court has articulated that the lack of menstrual infrastructure creates an atmosphere of alienation from one’s own body—causing young women to perceive their own bodily function as something that creates shame and a lack of presence in society.
In the final decision, the Court also relied upon the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1, which was decided by a nine-member bench of the Supreme Court, in regard to the issue of privacy. In addition to ruling that a person has rights to privacy in relation to their bodily autonomy and the right to make decisions regarding their body free from institutional discrimination, the Court found that these rights of bodily autonomy and the authority to manage one’s body are included in the penumbra of Article 21.6 This is an extremely significant development as the Privacy case had been primarily used in digital and surveillance-related matters.
A period should end a sentence — not a girl's education. 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." — JJ. Pardiwala & Mahadevan
Article 21A and the Right to Education Act: From Aspiration to Infrastructure
Article 21A, added into Law by the Constitution (86th Amendment) Act of 2002, guarantees that children will receive free education for all 6-14 year-olds and the Right to Education Act of 2009 implements this right with operational provisions. The first requirement in Sec. 19 establishes minimum standards for education; Sec. 3(2) provides for the management of menstrual hygiene; Schedule 1 of the RTE Act establishes infrastructure requirements like the provision of separate toilets for boys and girls, etc8. The court found that if one of the provisions of the RTE Act was not being met due to infrastructure, there would be no “right” as one could not receive an education, beginning with 6 year-olds through 14 year-olds if the infrastructure provisions were not being met. If children (girls) were expected to be provided access to education but were missing class because they did not have access to hygiene management as a result of infrastructure barriers, the S.C. ruled that what does or does not appear in the Schedule attached to the RTE Act is irrelevant; children would be denied their right to an education should they miss class due to not having ‘sanitary napkins’ and/or a functioning system to manage menstrual hygiene. As such, the S.C. found that plumbing issues would cause girls to miss class or attend class in severe pain therefore represent a constitutional violation because it is to the province of the State to provide educational access through a capability of accessibility as articulated under the RTI Act.
Constitutional Article 14 And Substantive Equality
When an individual analysis of equality is being conducted under Article 14, a new area of the Court’s exercise power arises; i.e., The Court is no longer just relying on the only formalized equality (i.e., Girls and boys must be treated the same) to find substantive equality with individuals treated in the same manner but also recognizing women's biological uniqueness as compared to male students who are not impacted by biological realities. When designing an infrastructure for both males and females, if the needs of the females are not considered (due to the biological condition females carry), that will create unfair discrimination against females as a result of lack of consideration versus deliberate design. In the case of the Constitution, the Court's Article 14 constitutes the concept of institutional design that appears to be neutral but discriminates against individuals who have substantive differences between them, such as male versus female students.
Critical Analysis: Strengths, Silences and Structural Questions
The Virtue of Continuing Mandamus
One of the major aspects of the judgment is the establishment of continuous mandamus by the Court. Under this approach, the Court retains jurisdiction over the matter and requires the Government to file reports on compliance with the requirements of the judgment every three months. This is a method that has evolved in the context of Indian constitutional law to be used in cases where the rights granted by a court are entirely unenforceable without a mechanism for their enforcement. For instance, the courts have used continuous mandamus to ensure compliance with court orders when it comes to issues of environmental and prison reform. The use of continuous mandamus in this case shows that the Court fully acknowledges the implementation gap in previous social rights cases.
The Federalism Question
The judgment also applies to both the Union and the States and imposes a penalty of derecognition on any school that fails to meet the requirements of the judgment. However, the judgment does not clearly delineate the respective responsibilities of the Union and State governments in ensuring compliance. Education is a concurrent subject under Entry 25, List III of the Seventh Schedule of the Indian Constitution, and therefore, many of the expenses incurred by schools to create toilets, purchase biodegradable sanitary napkins and train teachers will come from State budgets. States that do not have the financial resources to comply with the judgment may believe that it will be impossible to fully comply with the judgment for the foreseeable future. Therefore, one of the biggest deficiencies of the judgment is the failure to establish any sort of structured financing mechanism to assist in compliance.
The Disability Component of Intersectionality
The courts' recognition of disabled girls, as a result of the intersectionality between gender and disability increasing exclusion, is a strong analytic insight. 11 Accessible toilet facilities for disabled girls represent one extreme vulnerable category. However, specific infrastructure standards for accessibility (the width of ramps, the specifications for grab rails, or the types of flooring) are not fleshed out. This will have to be filled in with compliance reports or eventual litigation.
Definitional Issues: What Constitutes a "School"?
The judgment applies to government, government-aided, and private schools. However, tens of thousands of unrecognized schools, madrasas and community learning centers exist in the educational landscape in India that do not fit within the RTE framework. Girls in these types of schools, which are often part of the most marginalised communities, are not included within the judgment. Thus while the Rajagopal judgment has broad application, it has a structural deficit.
Conclusion
The ruling in Dr. Jaya Thakur v. The Government of India represents a constitutional escalation. The ruling has rejected the argument that menstruation is so personal that it cannot be dealt with by the Constitution and, instead, through using the interrelating Articles 14, 21 and 21A, and then purposively interpreting the RTE Act, has done exactly what would be done by the best constitutional rulings ever made, which is identifying a historically established injustice in a novel constitutional language and declaring that it is no longer permissible under the Constitution.
The ruling’s ongoing mandamus, the possibility of deregistration, and the direction to the central government to monitor compliance from the state every three months, show a level of institutional self-awareness with respect to the enforcement issues and challenges surrounding social rights cases (e.g., Olga Tellis v. Bombay Municipal Corporation and Paschim Banga Khet Mazdoor Samity v. State of West Bengal) that were not seen in the older social rights rulings.
Yet the “silences” including issues of Federalism, financial obligations/responsibility for grants to “unrecognized schools” and specific building infrastructure requirements for disabled students remains to this date, unresolved constitutionally. These and other issues will be addressed in the context of litigation that is yet to come. In the meantime, all State and Board of Education/School Authorities have been put on constitutionally “notice” that the menstruating girl does not have to take care of her menstrual cycle in a compound fashion.
FOOTNOTES
1. UNICEF, 'Menstrual Health and Hygiene' (UNICEF, 2023) <unicef.org/wash/menstrual-health-and-hygiene> accessed 5 May 2026; also cited in proceedings before the Supreme Court.
2. Dr. Jaya Thakur v. Government of India & Ors. 2026 INSC 97, Writ Petition (Civil) No. 1000 of 2022, decided 30 January 2026 (J.B. Pardiwala and R. Mahadevan JJ).
3. Constitution of India, art 32 (right to move the Supreme Court for enforcement of fundamental rights).
4. International Bar Association, 'Indian Supreme Court Tackles Gender Inequality with Landmark Ruling' (IBA, 7 April 2026) <ibanet.org> accessed 5 May 2026.
5. Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608 (Bhagwati J) [right to live with basic human dignity].
6. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1 (nine-judge bench) [right to privacy as a fundamental right under Art 21].
7. Right of Children to Free and Compulsory Education Act 2009, ss 3(2) and 19, Schedule I (infrastructure norms including separate toilet facilities).
8. Dr. Jaya Thakur (n 2) [Court holding MHM provision mandatory, not discretionary, under RTE Act norms and standards].
9. State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75; State of Kerala v. N.M. Thomas (1976) 2 SCC 310 [development of substantive equality doctrine under Art 14].
10. Vineet Narain v. Union of India (1998) 1 SCC 226 [Supreme Court articulation of continuing mandamus as a supervisory judicial mechanism].
11. Dr. Jaya Thakur (n 2) [Court's observations on intersectionality of gender and disability in the educational context].
12. Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 [right to livelihood as part of Art 21; enforcement concerns in housing/eviction context].
13. Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996) 4 SCC 37 [right to emergency healthcare; Art 21 imposed positive obligation on State].
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