Menstrual Health Under Article 21: Supreme Court’s Shift from Silence to Substantive Equality and Its Implications for Paid Menstrual Leave

Contributor: Mr. Anish Sinha (Lawyer based out of New Delhi, currently practicing in the domain of Constitutional and Criminal Law)

Introduction

The constitutional recognition of menstrual health marks a decisive moment in Indian jurisprudence. On 30 January 2026, the Supreme Court of India, in Dr. Jaya Thakur v. Government of India, moved menstruation from the margins of social discomfort into the core of constitutional dignity. While deciding a writ petition seeking free sanitary pads and gender-segregated toilets for schoolgirls, the Court articulated a principle that extends far beyond classrooms and school corridors. It held, unambiguously, that menstrual health is not a matter of charity, policy discretion, or social benevolence, but a constitutional entitlement flowing directly from Article 21.

The Court declared:

“The right to education is a multiplier right as it enables the exercise of other human rights.”

It further held: “Inaccessibility of menstrual hygiene management measures undermines the dignity of a girl child.”

Most significantly, the Bench of J.B. Pardiwala and R. Mahadevan, JJ. constitutionalised menstrual health itself by observing:

“The right to life under Article 21 of the Constitution includes the right to menstrual health.”

This pronouncement fundamentally alters the legal landscape. Once menstrual health is recognised as an element of the right to life and dignity, the question is no longer whether the State or institutions may accommodate menstruation, but whether their failure to do so amounts to constitutional violation. This shift has profound implications not only for schools, but also for workplaces, labour policy, and the long-debated question of paid menstrual leave in India.

Menstruation, Silence, and Structural Inequality

India is a country rich in customs, traditions, and social conventions, yet menstruation remains cloaked in silence. Even in the twenty-first century, sanitary napkins are discreetly handed over in black polythene bags, menstruating individuals are barred from kitchens and temples, and deeply embedded stereotypes continue to regulate women’s bodies. Menstruation is treated as something to be hidden, endured privately, and never acknowledged in public or institutional spaces.

This social stigma translates directly into structural disadvantage. Menstruation is accompanied by cramps, pain, fatigue, hormonal imbalance, nausea, emotional distress, and discomfort. It is experienced not only by women but also by trans persons with a functional uterus and ovaries. Yet workplaces and educational institutions are designed on the assumption of a “neutral” body that does not menstruate. What is projected as neutrality, in effect, becomes exclusion.

The Supreme Court recognised this lived reality when it observed that menstrual poverty has a two-fold impact that is absenteeism and complete drop-out from education. The Court explained that menstrual poverty refers to the inability to afford or access menstrual hygiene products and facilities, resulting in denial of equal participation in education. The disadvantage is further compounded when the menstruating individual is also a child with disability, where gender and disability intersect to deepen exclusion.

The Court poignantly stated

“Right to education is not confined to the physical existence or formal availability of schools. It extends to the ability of a child to participate in education in a meaningful, continuous, and non-discriminatory manner.”

This reasoning provides the constitutional bridge between menstrual hygiene in schools and menstrual accommodation in workplaces. If dignity and equality demand institutional accommodation in education, the same constitutional logic applies to employment.

Historical and Global Context of Menstrual Leave

The idea of menstrual leave is not novel. Its origins can be traced to Japan in 1947, during post-war reconstruction. Poor sanitation in factories made it extremely difficult for women to work during menstruation, prompting the introduction of formal menstrual leave. Indonesia followed in 1948 with two days of leave per month. South Korea introduced menstrual leave in 2001, Taiwan allows three days per year, and Zambia provides an informal but widely understood “Mother’s Day” leave.

Spain has recently in February 2023, become the first European country to legislate paid menstrual leave, granting three days per month, extendable to five. Yet even in countries with such policies, utilisation has often declined due to fears of workplace discrimination, revealing that legal recognition alone is insufficient without cultural change.

India, despite its constitutional commitment to dignity and equality, has no central legislation on menstrual leave. Some private companies, such as Zomato, Swiggy, and Byju’s, introduced paid period leave policies in 2020. Bihar has allowed two days of paid menstrual leave per month since 1992, and Kerala has extended menstrual leave to students in higher educational institutions. These remain fragmented and uneven responses to a systemic issue.

Arguments For and Against Paid Menstrual Leave

The debate around paid menstrual leave in India, while increasingly discussed in workplaces and policy circles, remains deeply contested, reflecting both practical concerns and constitutional considerations. Critics of a dedicated menstrual leave policy argue that such a provision may unintentionally reinforce stereotypes of women as weaker or less capable in professional environments. They contend that highlighting menstruation as a reason for absence risks portraying menstruating individuals as inherently less productive, potentially discouraging employers from hiring women or allocating them critical roles. Concerns also extend to perceived inequality between men and women in workplaces: while men do not have such a specialized leave, women would ostensibly receive additional time off, which could foster resentment or claims of unfair advantage. Privacy is another central concern, as employees may be required to disclose personal health information to supervisors or managers, creating a space for stigma and potential discrimination. Additionally, critics argue that existing leave frameworks, such as medical or casual leave, already allow employees to take time off to manage health concerns, making a separate provision for menstrual leave unnecessary. There are also logistical concerns: women in manual labor, factory jobs, or other physically demanding roles where remote work is impossible may not truly benefit from a policy that is primarily framed around office or knowledge work. Taken together, these concerns underscore the need for caution. Supreme Court further emphasised that interventions must be carefully designed to avoid exclusion or new disadvantages, warning that:

“Time is over ripe that we recognise menstrual health as a shared responsibility rather than a woman’s issue. Awareness must not be limited to girls, but extends to boys, parents, and teachers. When menstruation is discussed openly in schools, it ceases to be a source of shame. It is recognized as what it is, a biological fact. Needless to say, it must be seen as a collective effort rather than a constitutional pull.”

This statement validates the concern that poorly designed policies could inadvertently mark menstruating individuals as distinct or weaker, instead of fostering collective responsibility and structural support.

On the other hand, the proponents of paid menstrual leave argue from a perspective of substantive equality and human dignity. They emphasise that equality under the Constitution does not mean identical treatment, but rather treatment that acknowledges real, physiological, and social differences. Many menstruating individuals experience severe cramps, nausea, fatigue, bloating, mood swings, or other health conditions that can significantly impair concentration and productivity. In such cases, one or two days of paid leave can act as a reasonable accommodation, enabling employees to manage their health without penalty, ultimately improving efficiency and well-being. The Supreme Court has reinforced this perspective through its pronouncement that menstrual health is inseparable from the right to life:

“The right to life under Article 21 of the Constitution includes the right to menstrual health.”

By constitutionally recognising menstrual health, the Court implicitly validates measures including workplace accommodations that ensure individuals can function without being forced to compromise their health or dignity. Moreover, the Court has repeatedly stressed the link between access, dignity, and participation

“Accessibility of menstrual hygiene management measures provides the same opportunities for all, while recognizing unequal distribution of resources with the objective to attain equal access to human rights.”

Although articulated in the context of education, this principle extends logically to the workplace, where a lack of accommodation similarly prevents meaningful participation. Just as girls are at a disadvantage without access to menstrual hygiene facilities at school, menstruating employees are disadvantaged without supportive workplace policies. Advocates further argue that institutional acknowledgement of menstruation helps dismantle stigma and foster an inclusive culture, normalising dialogue and awareness. The judgment underscores the social imperative of breaking menstrual taboos:

“Inaccessibility of menstrual hygiene management measures undermines the dignity of a girl child.”

By analogy, in the workplace, failure to recognise menstruation as a legitimate reason for temporary accommodation similarly risks undermining dignity and reinforcing invisible barriers to equality. Proponents also highlight international precedents, such as Spain, Japan, Indonesia, and South Korea, where paid menstrual leave policies exist, demonstrating that menstruation is increasingly recognised globally as a public health, labour, and social equity issue rather than a private inconvenience.

Taken together, these considerations show that both sides of the debate are valid in their reasoning. Critics caution against unintended discrimination, misuse, and inequitable application, while proponents underline the necessity of recognition, accommodation, and dignity to ensure substantive equality. This judgment provides a framework for balancing these competing concerns: while policies must respect privacy, prevent stigma, and avoid reinforcing stereotypes, they must simultaneously provide meaningful opportunities for health, participation, and equality. This dual approach suggests that any policy on paid menstrual leave must be carefully calibrated, context-sensitive, and inclusive, rather than implemented as a one-size-fits-all mandate. As the Court emphasised

“Right to education is not confined to the physical existence or formal availability of schools. It extends to the ability of a child to participate in education in a meaningful, continuous, and non-discriminatory manner.”

This principle of substantive participation can be applied to workplaces as well: meaningful equality requires recognizing the physiological realities of menstruation, while simultaneously designing frameworks that do not reinforce stigma, violate privacy, or exclude segments of women unable to benefit due to the nature of their work.

Constitutional Foundations: Equality, Dignity, and Health

Indian constitutional jurisprudence offers a strong foundation for recognising menstrual leave as a matter of rights. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, the Supreme Court held:

“The right to life includes the right to live with human dignity.”

In Vishaka v. State of Rajasthan[1], The Court linked workplace dignity with Articles 14, 15, and 21, recognising that conditions which compel women to work in discomfort violate equality and dignity. In Seema v. Ashwani Kumar[2], The Court acknowledged women’s right to health and hygiene as integral to dignity. In Sampurna Behura v. Union of India[3], it reiterated the State’s obligation to provide health facilities to women.

The Dr. Jaya Thakur judgment builds upon this jurisprudence and extends it decisively. The Court held that lack of menstrual hygiene facilities violates Articles 14, 21, and 21A. It clarified that free education includes all expenses that prevent a child from pursuing education, and that menstrual hygiene is one such barrier.

Importantly, the Court framed menstruation not as a “women’s issue” but as a collective responsibility. It observed:

“Time is over ripe that we recognize menstrual health as a shared responsibility rather than a woman’s issue.”

This observation is crucial. It dismantles the argument that menstrual accommodation unfairly privileges women. Instead, it frames accommodation as a constitutional obligation to ensure substantive equality.

The Court further provided comprehensive directions on toilets, menstrual absorbents, waste disposal, awareness, and training. It mandated free Oxo-biodegradable sanitary napkins, Menstrual Hygiene Management corners, gender-segregated toilets, and periodic inspections. It ordered NCERT and SCERT to incorporate menstruation and puberty into curricula and emphasised sensitisation of male students and teachers.

The court issued a continuing mandamus, recognising that menstrual dignity cannot be ensured through symbolic compliance. It declared that these directions must operate as mandatory standards, alongside existing policies.

Perhaps the most powerful part of the judgment lies in its closing words:

“This pronouncement is not just for the stakeholders of the legal system… progress is measured by how we protect the most vulnerable.”

Paid Menstrual Leave maybe logical next step

If denial of menstrual hygiene violates dignity and equality in schools, forcing individuals to work through debilitating menstrual pain without accommodation raises the same constitutional concerns. Paid menstrual leave, therefore, is not an act of concession, but an extension of the constitutional logic articulated by the Supreme Court.

At the same time, the concerns raised by critics necessitate a nuanced approach. A rigid, mandatory policy may backfire. What is needed is a flexible, rights-based framework that offers optional menstrual leave without medical disclosure, combined with work-from-home options, adequate sanitation, privacy safeguards, and sensitisation programmes. Such a framework would benefit both white-collar and manual workers, while minimising stigma.

India’s obligations under CEDAW further strengthen this case. Discrimination includes any gender-based distinction that impairs equality. Refusing menstrual accommodation, while pretending neutrality, perpetuates indirect discrimination. The Supreme Court has spoken with clarity that menstrual health is constitutionally protected. The silence that once surrounded menstruation can no longer justify institutional neglect. The question now is whether lawmakers and employers will translate this constitutional recognition into meaningful accommodation.

Paid menstrual leave, if thoughtfully designed, can be a powerful tool of substantive equality. It can acknowledge biological reality without reinforcing stereotypes, protect dignity without undermining opportunity, and move India closer to a workplace culture that reflects its constitutional promises.

The Dr. Jaya Thakur judgment is not merely a decision about toilets or sanitary pads; moreover, it is a statement about whose bodies the Constitution recognizes, whose pain it acknowledges, and whose dignity it protects. In that recognition lies the future of menstrual justice in India.

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[1] (1997) 6 SCC 241 

[2] (2006) 2 SCC 578

[3] [2018] 2 SCR 940