As per case facts, a Writ Petition was filed seeking directions for providing free sanitary pads to female students (classes 6-12) and separate, functional toilets in all government, aided, and ...
2026 INSC 97
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
WRIT PETITION (C) NO. 1000 of 2022
DR. JAYA THAKUR …PETITIONER
VERSUS
GOVERNMENT OF INDIA & ORS. …RESPONDENTS
J U D G M E N T
W.P. (C) No. 1000 of 2022 Page 1 of 126
J.B. PARDIWALA & R. MAHADEVAN , JJ.:
For the convenience of exposition, this judgment is divided into the
following parts:-
INDEX
I. THE CONTEXT ............................................................................ 3
II. THE BASICS .............................................................................. 4
III. SUBMISSIONS ON BEHALF OF THE PARTIES ........................... 6
i. Submissions on behalf of the Union of India - Respondent Nos. 1 to 3
respectively ................................................................................... 6
ii. Submissions on behalf of the States - Respondent Nos. 4 to 39
respectively ................................................................................... 8
IV. ISSUES FOR CONSIDERATION ............................................... 13
V. ANALYSIS ................................................................................ 14
A. The right to access education: A fundamental human right . 14
i. Education - an essential human right in the International Human
Rights Law framework ................................................................... 16
ii. Judicial recognition of education as a human right .................... 19
B. Substantive approach to right to equality in education under
Article 14 of the Constitution ................................................... 30
i. Menstruation as a barrier to the right to access education ........... 33
a. Intersectionality of disability, gender, and access to education ..... 39
C. The right to dignified menstrual health a part of Article 21 . 45
i. The right to human dignity as a concomitant of the right to life ... 45
ii. The right to privacy and decisional autonomy ............................. 51
iii. The right to menstrual health as a facet of the right to life ......... 57
D. The right to participation and the equality of opportunity
respectively as constitutional guarantees under Article 14 ...... 72
i. Lack of menstrual hygiene measures as a barrier in exercising the
right to participate in school .......................................................... 73
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ii. Lack of menstrual hygiene management measures impede the
equality of opportunity .................................................................. 80
a. Accessibility of menstrual hygiene management measures – a step
towards Social Justice ..................................................................... 84
E. The fundamental right to education under Article 21A ........ 89
i. Right to free and compulsory education under the RTE Act ......... 96
a. Management of menstrual hygiene as a financial barrier under
Section 3 of the RTE Act .................................................................. 99
b. Menstrual management measures as mandatory “ norms and
standards” for schools under Section 19 of the RTE Act ................. 104
F. Role of Men in Menstruation .............................................. 115
VI. CONCLUSION ........................................................................ 118
VII. DIRECTIONS ....................................................................... 120
W.P. (C) No. 1000 of 2022 Page 3 of 126
“A period should end a sentence – not a girl’s
education.”
1. We are tempted to preface our judgment with the words of
Melissa Berton, an American educator, social activist, and
producer. The statement articulated above resonate with an
undiminishing force in the present petition as well. The issues
that have unfolded before us echo the very same judicial
disquiet. Even with the passage of time, the challenges that
beset a girl child’s education persist in much the same form.
I. THE CONTEXT
2. The petitioner, who is a social worker, has filed the present
petition under Article 32 of the Constitution in public interest
seeking appropriate directions to the respondents – the Union of
India, the States and Union Territories respectively to ensure
providing of (i) free sanitary pads to every female child studying
between classes 6 & 12; and (ii) a separate toilet for females in
all government aided and residential schools. Apart from this,
certain other consequential reliefs have also been sought for in
public interest including the maintenance of toilets and the
spread of awareness programmes. The prayer in the petition
reads thus:-
“a. issue a writ order or directions in the nature of
Mandamus to the Respondents to provide the free
sanitary pads to girl child who are studying from 6th to
12th class and;
b. issue a writ order or directions in the nature of
Mandamus to the Respondents to provide the separate
girl toilet in all Government, Aided and residential
schools;
W.P. (C) No. 1000 of 2022 Page 4 of 126
c. issue a writ order or directions in the nature of
Mandamus to the Respondents to provide one cleaner
in all Government, Aided and residential schools to
clean the toilets and;
d. issue a writ order or directions in the nature of
Mandamus to the Respondents to provide three-stage
awareness programme i.e. Firstly, the spreading of
awareness about menstrual health and unboxing the
taboos that surround it; Secondly, providing adequate
sanitation facilities and subsidized or free sanitary
products to women and young students, especially in
disadvantaged areas; Thirdly, to ensure an efficient
and sanitary manner of menstrual waste disposal and;
e. pass such other or further order/s as this Hon’ble
Court may deem it fit in the facts and circumstances of
this case.”
II. THE BASICS
3. Menstruation refers to the regular discharge of blood and
mucosal tissue from the inner lining of the uterus through the
cervix, which passes out of the body through the vagina at
approximately monthly intervals. It occurs when the egg
released during ovulation is not fertilized, leading to the
breakdown and shedding of the uterine lining. Menarche (the
first menstrual period) occurs after the onset of pubertal growth.
The average age of a female at the time of menarche is between
8 and 15 years, and it usually occurs at intervals of about 28
days.
4. The Ministry of Drinking Water and Sanitation in the National
Guidelines for Menstrual Hygiene Management defines
menstrual hygiene management ( hereinafter referred to as
W.P. (C) No. 1000 of 2022 Page 5 of 126
“MHM”) as, “(i) articulation, awareness, information and
confidence to manage menstruation with safety and dignity using
safe hygienic materials together with (ii) adequate water and
agents and spaces for washing and bathing with soap and (iii)
disposal of used menstrual absorbents with privacy and dignity.”
Further, water, sanitation and hygiene (hereinafter referred to
as “WASH”) facilities include clean water, sex-separated
washrooms, handwashing facilities and MHM.
1
5. According to the 2012 Joint Monitoring Programme of the World
Health Organization, MHM is defined as thus;
“Women and adolescent girls are using a clean
menstrual management material to absorb or collect
menstrual blood, that can be changed in privacy as
often as necessary, using soap and water for washing
the body as required, and having access to safe and
convenient facilities to dispose of used menstrual
management materials. They understand the basic
facts linked to the menstrual cycle and how to manage
it with dignity and without discomfort or fear.”
6. In the aforesaid context, we may discuss what menstrual
poverty or period poverty means. Menstrual poverty, also known
as period poverty, refers to the financial burden and obstacles
that women face in affording menstrual hygiene, or sanitary
products because they are unable to maintain such expenditure.
It extends beyond the lack of sanitary products and includes
inadequate WASH facilities.
1 Standard Operating Procedure for Sustaining Water, Sanitation and Hygiene in Schools,
Ministry of Education, Government of India.
W.P. (C) No. 1000 of 2022 Page 6 of 126
7. The present writ petition seeks to address this issue of lack of
menstrual hygiene management in schools across the country.
The problem identified is two-fold, first, absenteeism; and
secondly, completely dropping out of school due to lack of MHM
measures.
2
8. In such circumstances referred to above, the petitioner is here
before this Court with the present writ petition.
III. SUBMISSIONS ON BEHALF OF THE PARTIES
i. Submissions on behalf of the Union of India - Respondent
Nos. 1 to 3 respectively
9. We have perused the affidavit filed by the Union of India and the
concerned Ministries in pursuance of the order dated
24.07.2023 passed by this Court. The respondent nos. 1 to 3
respectively admitted that menstruation and menstrual
practices are clouded by taboos and socio-cultural restrictions
for women as well as adolescent girls. It was acknowledged that
there is a limited access to sanitary products and lack of safe
sanitary facilities. It was recognized that unhealthy practices
like using old clothes, ash, straw as menstrual absorbent which
not only affect menstrual hygiene but also have long-lasting
implication on the reproductive health.
2 World Bank, Globally, periods are causing girls to be absent from school , 2016.
https://blogs.worldbank.org/en/education/globally-periods-are-causing-girls-be-absent-
school; World Economic Forum, 1 in 10 girls in Africa will drop out of school for this reason,
2015. https://www.weforum.org/stories/2015/12/1 -in-10-girls-in-africa-will-drop-out-of-
school-for-this-reason/.
W.P. (C) No. 1000 of 2022 Page 7 of 126
10. In pursuance of order dated 06.11.2023, the Union of India
through the respondent nos. 1 to 3 respectively, has placed the
Menstrual Hygiene Policy for School Going Girls. It is stated that
the said policy has been approved by the Ministry of Health &
Family Welfare. The policy aims to mainstream menstrual
hygiene within the Government and Government -aided schools
to bolster change in knowledge, attitudes, and behaviour among
schoolgirls.
11. The policy intends to provide access to safe and low-cost
menstrual hygiene products, environmentally safe disposal
methods for menstrual waste , promote clean and gender -
segregated sanitation facilities, and incorporate menstrual
hygiene education into school curriculum to raise awareness
and reduce stigma.
12. In the aforesaid context, the respondent nos. 1 to 3 have
undertaken a number of policy initiatives and programmes
which are summarized hereinbelow:-
Schemes Target Features
Union of India
Jan Aushadhi
Kendras
Sanitary
napkins
Biodegradable sanitary pads at Re 1.
Scheme for
Promotion of
Menstrual
Hygiene
Awareness
+ sanitary
napkins +
disposal
Financial assistance to States to increase
awareness among adolescent girls on
menstrual hygiene; increase access to and
use of sanitary napkins by adolescent girls;
ensure safe disposal of sanitary napkins.
Capacity building and training of teachers,
field level health workers – auxillary nurse
W.P. (C) No. 1000 of 2022 Page 8 of 126
midwives, ASHA workers and Anganwadi
workers.
Sanitary napkins are provided to
adolescent girls at subsidized rate.
Samagra
Shiksha
Sanitary
napkins +
toilets
Ensures that students have access to
equitable and inclusive classroom
through:-
a. Installation of sanitary napkin vending
machine;
b. Composite School Gran t for
maintenance and upkeep of toilets and
WASH infrastructure.
Promotion of
MHM and Pad
Kranti
Sanitary
napkins +
disposal
Makes sanitary napkin vending machine
and incinerators available.
Swachh
Bharat
Mission -
Gramin
Disposal +
Awareness
Funds from 15
th Finance Commission
utilized to ensure availability of Central
Pollution Control Board/State Pollution
Control Board approved incinerators.
Specific funds earmarked for creating
awareness on MHM.
Swachhh
Vidyalaya
Initiative
Toilets
Funds through Centrally Sponsored
Schemes in association with PSUs and
private corporations for separate toilets.
Ministry of Jal
Shakti
Awareness
+ disposal
Shared Information, Education,
Communication (IEC) materials for
menstrual hygiene awareness. Installation
of incinerators by utilizing grants.
ii. Submissions on behalf of the States - Respondent Nos. 4
to 39 respectively
13. The following States have undertaken a number of policy
initiatives and programme s which are summarized
hereinbelow:-
Schemes Target Features
States
Respondent no. 5 - Assam
W.P. (C) No. 1000 of 2022 Page 9 of 126
Samagra
Shiksha
Sanitary
napkins +
Awareness
Installs sanitary napkins vending
machines and incinerators in schools.
One-day training organized to make
handmade sanitary pads. Schools are
encouraged to keep napkins in
collaboration through NGOs.
Adolescent girls, boys, teachers, officials
at district level trained on MHM.
State initiative Toilets Maintenance through annual
maintenance grant.
State initiative Sanitary
napkins +
Awareness
Routine supply of sanitary napkins to
girls in upper-primary and secondary
grades through vending machines along
with IEC on MHM.
State initiative Disposal Incinerators and deep burial methods.
Respondent no. 6 - Bihar
Mukhyamantri
Kishori
Swasthya
Karyakram
Sanitary
napkins +
Awareness
Train girls about menstrual health and
hygiene, impart proper understanding of
use of sanitary napkins.
Department of
Education
Sanitary
napkins
Free sanitary napkins to girl students
between the age 12-18 years.
Respondent no. 8 - Andhra Pradesh
YSR Swechha Sanitary
napkins
Monthly entitlements of 10 free -
biodegradable pads per girl student.
District level monitoring teams are
constituted to monitor the distribution.
Family Doctor
Programme
Awareness Periodical visits to provide clinical
counselling and referral services to
adolescent girls and family.
School Health
& Wellness
Programme
Awareness Teachers (Health Ambassadors) trained
to create awareness on menstrual
hygiene and safe disposal of napkins.
Peer Education
Programme
Awareness Peer educators trained to create
awareness amongst adolescent girls.
Mana Badi
Nadu-Nedu
Toilets Provides funds for construction and
retrofitting of toilets with regular water
supply and other infrastructure.
Toilet
Maintenance
Fund
Toilets Provides funds annually for routine
cleaning, minor repairs, and
maintenance of toilets.
Respondent no. 9 - Arunachal Pradesh
W.P. (C) No. 1000 of 2022 Page 10 of 126
Sanitary-Pad
Incentive
Scheme, 2013
Sanitary
napkins
Monthly cash incentive of Rs. 50 per girl
students in Classes IX -XII, an
alternative to in-kind sanitary napkin
distribution.
Respondent no. 10 - Gujarat
Samagra
Shiksha
Abhiyan
Toilets +
Sanitary
napkins
Gender-segregated sanitation toilets
with sufficient water closets. Installation
of sanitary napkins vending machines
for low cost napkins.
Swachhta
Complex
Support
Scheme
Maintenance
of toilets
Monthly grants to schools for
maintaining cleanliness.
State initiative Awareness Menstrual corners are established for
barrier-free access to knowledge about
menstruation. Orientation on MHM
through DIKSHA portal. Curriculum on
MHM introduced in standard VIII.
Respondent no. 13 - Himanchal Pradesh
Samagra
Shiksha
Sanitary
napkins
Installation of sanitary napkin vending
machine and incinerators; establishes
MHM corners which comprises basic
information on menstrual care.
Respondent no. 14 - Jharkhand
School Health
& Wellness
Programme
Awareness Awareness among girl students on
menstrual hygiene.
State initiative Sanitary
napkins
Supply of sanitary napkins to schools
three months in advance.
State initiative Disposal Multi-option disposal mechanism –
incinerators, deep burial, pit disposal,
manual incinerators chulha.
Information,
Education &
Communication
(IEC) Strategy
Awareness Promotion of sanitary pads through
leaders and MHM training.
Respondent no. 16 - Kerala
Samagra
Shiksha Kerala
Sanitary
napkins
Funds for installation of sanitary pad
vending machines and incinerators.
She-Pad
Project, 2017
Sanitary
napkins
Supply of sanitary napkins and
installation of disposal mechanism, and
storage facilities.
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Kerala State
Women’s
Development
Corporation
Awareness Awareness about menstrual hygiene
and reproductive health.
Respondent no. 18 - Maharashtra
Samagra
Shiksha
Sanitary
napkins
Installation of sanitary napkin vending
machine and incinerators.
School
Adoption
Scheme
Toilets CSR contribution towards MHM
materials and construction of separate
toilets.
National Health
Mission Project
Sanitary
napkins
Sanitary napkins provided by ASHA
workers at Rs. 6 per pack.
Rashtriya
Kishore
Swasthya
Karyakram
Awareness Establishes Adolescent Friendly Health
Clinics to impart counselling about
MHM. Conduct outreach session at
school and community level.
Respondent no. 19 - Manipur
National Health
Mission Project
Sanitary
napkins
Sanitary napkins at Rs. 6 per packet for
rural adolescent girls.
School
Fagathansi
Mission
Sanitary
napkins +
Awareness
Installation of vending machine and
incinerators. Teachers are trained to
spread awareness on menstrual hygiene
once a month.
State Level
Master Training
Programme
Awareness Sensitise teachers about need of
adolescent girls, create awareness about
MHM and school sanitation.
Samagra
Shiksha
Sanitary
napkins +
Toilets
Separate toilets in secondary and
higher-secondary schools. Sanitary
vending machines and incinerator s
installed.
Respondent no. 20 - Meghalaya
Ayushman
Bharat Scheme
Sanitary
napkins +
Awareness +
Toilets
Promotes safe menstrual hygiene
through education. Separate toilets
being made available. Awareness and
sensitization on menstrual health,
hygiene, cleanliness.
Samagra
Shiksha
Abhiyan
Sanitary
napkins
Installation of sanitary vending machine
along with incinerators.
Respondent no. 21 - Mizoram
Rashtriya
Kishore
Awareness Awareness among adolescent girls on
menstrual hygiene through Adolescent
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Swasthya
Karyakram
Health Counsellors and RMNCH+A
Counsels. Weekly counselling services
regarding menstrual hygiene. Training
for disposal of sanitary pads.
Respondent no. 22 - Nagaland
State initiative Awareness Talk on menstrual health and hygiene
was aired in regional language through
AIR radio.
Respondent no. 24 - Punjab
Education
Development
Secondary-42
Sanitary
napkins
Free sanitary napkins to all girls in
standards VI-XII. Installation of vending
machines and incinerators.
State initiative Awareness ASHA workers promote use and
distribution of sanitary napkins.
State
Education
Dept.
Awareness Teachers sensitized on menstrual
hygiene.
Project Udaan Sanitary
napkins
Supply of free sanitary napkins to drop-
out girls.
Respondent no. 27 - Uttarakhand
Menstrual
Hygiene
Awareness
Proggramme
Sanitary
napkins +
Awareness
Awareness about menstrual hygiene,
misconceptions surrounding
menstruation. Distribution of sanitary
napkins through schools, ASHA workers
at Rs. 6 per pack.
Rashtriya
Kishore
Swasthya
Programme
Awareness Peer educators have been trained to
educate adolescent about menstruation.
Respondent no. 28 - Tamil Nadu
Menstrual
Hygiene
Programme
Sanitary
napkins
Distribution of free sanitary napkins in
rural and urban areas through teachers.
Respondent no. 29 - Telangana
State initiative Awareness Distribution of 6 sanitary napkins per
month to girl students free of cost in
standards VIII-XII.
Respondent no. 31 - West Bengal
Rashtriya
Kishore
Swasthya
Sanitary
napkins +
Disposal
Sanitary napkins sold door-to-door in
rural areas to girls aged 10-19 years at
Rs. 6 per pack. Used sanitary napkins
are disposed of through incinerators.
W.P. (C) No. 1000 of 2022 Page 13 of 126
Karyakram,
SAATHI
State
Education
Dept.
Toilets Toilets under construction.
Union Territory
Respondent no. 39 - Leh & Ladakh
Samagra
Shiksha
Abhiyan
Sanitary
napkins
Installation of sanitary pad vending
machine and incinerators. Distributed
pads to students. Building separate
toilets for girls.
State initiative
with NGO
Awareness Encouraged girls to use menstrual cups.
Adolescent &
Self Defence
Programme
Awareness By MHM experts on menstruation,
hygiene for girls as well as boys.
14. At the same time, the States of Uttar Pradesh, Chhattisgarh,
Goa, Haryana, Karnataka, Madhya Pradesh, Odisha, Rajasthan,
Sikkim, Tripura, respectively, and the Union Territories of Delhi,
Lakshadweep, Daman & Diu, Dadra & Nagar Haveli, Andaman
& Nicobar Islands, Puducherry, Chandigarh, and Jammu &
Kashmir respectively have found it convenient to not file their
affidavits.
15. Undoubtedly, there is no dearth of policies, schemes,
programmes aimed at addressing the issue. However, what
seems to be lacking is effective and consistent implementation.
IV. ISSUES FOR CONSIDERATION
16. Having heard the learned counsel appearing for the parties and
having gone through the materials placed on record, the
following questions fall for our consideration:-
W.P. (C) No. 1000 of 2022 Page 14 of 126
a. Whether unavailability of gender-segregated toilets and non-
access to menstrual absorbents could be said to be in
violation of the right to equality for adolescent girl students
under Article 14 of the Constitution?
b. Whether the right to dignified menstrual health could be said
to be part of Article 21 of the Constitution?
c. Whether unavailability of gender-segregated toilets and non-
access to menstrual absorbents could be said to be in
violation of the right of participation and equality of
opportunity as constitutional guarantees enshrined under
Article 14 of the Constitution?
d. Whether unavailability of gender-segregated toilets and non-
access to menstrual absorbents could be said to be in
violation of the right to education under Article 21A, and the
right to free and compulsory education under the Right of
Children to Free and Compulsory Education Act, 2009?
V. ANALYSIS
A. The right to access education: A fundamental human
right
17. Education is a fundamental human right, as it ensures full and
holistic development of a human being. It is a stepping stone
towards realizing other human rights. Education is an integral
part of dignity of a child. It is a right, not a charitable concession.
It promotes the physical and cognitive development of a child. It
W.P. (C) No. 1000 of 2022 Page 15 of 126
also contributes to the realization of the full potential of an
individual. Most importantly, it shapes a person’s sense of
identity and affiliation.
18. A child’s identity, knowledge, values, and skills are largely
formed through social relationships. In other words, active
participation in community life strengthens their ability to relate
to others, promotes inclusivity and harmonious social relations,
and facilitates learning through experiences and interactions. To
put it briefly, to be educated is to be empowered.
19. It is apposite to understand that the right to education does not
exist in a vacuum. Education has a direct impact on an
individual’s civil and political rights, cultural rights, and
physical and emotional well-being. It influences a person’s
ability to make healthier life choices, more particularly, to access
and navigate the healthcare system, and to seek timely medical
assistance. The right assumes importance in the case of girls,
who occupy a comparatively disadva ntaged position within
familial and societal structures. Undeniably, the way our society
perceives women directly translates into prejudice against the
girl child, and this perpetuates an endless cycle of
discrimination.
20. In the aforesaid context, absence of education limits a girl child’s
opportunities for participation and representation in society,
restricts her from challenging social hierarchies, and impedes
her growth and development. A girl child is often burdened with
W.P. (C) No. 1000 of 2022 Page 16 of 126
the weight of social prejudice, stereotypes, and structural
oppression that are foisted upon her from an early age.
Education serves as a counterweight to these factors by
equipping her with knowledge and awareness. In its absence,
inequality is not merely sustained but normalized.
i. Education - an essential human right in the International
Human Rights Law framework
21. Article 26 of the Universal Declaration of Human Rights (UDHR)
recognizes education as a universally protected fundamental
human right. It stipulates that everyone has the right to
education, and elementary education shall be compulsory.
Further, Article 13 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR) also recognizes the right to
education for everyone. The General Comment on Article 13 of
the ICESCR states that the article envisages non-discrimination
and equal treatment in imparting education.
3 To this end, the
ICESCR states that State Parties must include policies,
programmes, and other practices to identify and take measures
to redress any de facto discrimination.
22. Similarly, the Constitution of the United Nations Educational,
Scientific and Cultural Organization (UNESCO) states that the
purpose of the Organization is to further respect for human
3 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 13:
The Right to Education (Art. 13 of the Covenant), UN ESCOR, UN Doc E/C.12/1999/10 (Dec.
8, 1999), available at: https://www.right-to-education.org/sites/right-to-
education.org/files/resource-attachments/CESCR_General_Comment_13_en.pdf .
W.P. (C) No. 1000 of 2022 Page 17 of 126
rights and promote equality of educational opportunity. It calls
upon the member States to formulate policies aimed at ensuring
equality of opportunity and equality of treatment in education.
It encourages making primary education free and compulsory,
the availability and accessibility of secondary education to all,
and the promotion of educational opportunities for persons who
have either not received primary education or have been unable
to complete it.
23. The UNESCO highlights that the primary purpose of education
is to enrich and empower an individual. Education helps shape
a person’s understanding of the world, values, and identity. The
Organization underscored that education provides for the
development of knowledge and skills that helps one negotiate life
and achieve goals. It is crucial to interact and shape the world
around them. It was referred to as a ‘multiplier right’, meaning
that it opens the gate to the enjoyment of other rights.
4
24. The Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) mandates that State
Parties take appropriate measures to eliminate discrimination
against women in the field of education. It requires that equality
must be ensured in access to pre-school, general, technical,
professional and higher technical education. The Convention
further obligates the State Parties to take effective steps to
4 UNESCO and Right to Education Initiative, Right to education handbook (2019), available at:
https://www.right-to-education.org/sites/right-to-education.org/files/resource-
attachments/RTE-UNESCO_Right%20to%20education%20handbook_2019_En.pdf .
W.P. (C) No. 1000 of 2022 Page 18 of 126
reduce female student drop-out rates, and actively work towards
improving access to educational information necessary to
safeguard the health and well-being of families.
25. Similarly, Article 28 of the Convention on the Rights of the Child
(CRC) stipulates that State Parties recognize the right of every
child to education. To give meaning to this right, the State
Parties are obligated to encourage regular attendance at schools
and to reduce drop-out rates. The Convention further mandates
that the administration of the school must be in a manner that
is consistent with the dignity of the child. In this regard, the
State Parties affirm that education must be directed towards the
holistic development of the child ’s personality, more
particularly, mental and physical abilities.
26. The Committee on the Rights of the Child states that
discrimination in education violates the human dignity of a child
and undermines the capa bility of a child to benefit from
educational opportunities. It states that discriminat ory
practices include circumstances that limit a girl child’s
participation in educational opportunities. It emphasizes that
such practices impair a child’s growth to its fullest potential.
5
27. What flows from the aforesaid discussion is that while
interpreting domestic laws it is important to keep in mind the
5 UN Committee on the Rights of the Child (CRC), General Comment No. 1: The Aims of
Education (Article 29) (2001), UN Doc CRC/GC/2001/1 (Apr. 17, 2001) available at:
https://www.ohchr.org/en/resources/educators/human -rights-education-
training/general-comment-no-1-aims-education-article-29-2001.
W.P. (C) No. 1000 of 2022 Page 19 of 126
commitments under various international treaties and interpret
laws in a manner consistent with the international human rights
standards. Article 51 of the Constitution envisages that the
State shall give due regard to international law and treaty
obligations.
28. This Court has, time and again, affirmed India’s obligation with
regard to international laws and conventions.
6 We shall discuss
the application of the aforementioned treaties and conventions
insofar as the Right of Children to Free and Compulsory
Education Act, 2009 (for short, “the RTE Act”), is concerned in
the latter part of this judgment.
ii. Judicial recognition of education as a human right
29. It is necessary for us to look into as to how the courts across the
world have recognized the right to education as a basic human
right. In Brown v. Board of Education of Topeka Shawnee
County Kan Briggs, reported in 1954 SCC OnLine US SC 44 ,
the Supreme Court of the United States was considering
whether segregation of children in schools solely based on race
meant depriving the minority group of equal educational
opportunities. In this context, the Court highlighted the
importance of education. The relevant observations read thus:-
“13. Today, education is perhaps the most important
function of state and local governments. Compulsory
school attendance laws and the great expenditures for
education both demonstrate our recognition of the
6 Vishaka v. State of Rajasthan, (1997) 6 SCC 241; Vellore Citizens Welfare Forum v. Union of
India, (1996) 5 SCC 647; Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759.
W.P. (C) No. 1000 of 2022 Page 20 of 126
importance of education to our democratic society. It is
required in the performance of our most basic public
responsibilities, even service in the armed forces. It is
the very foundation of good citizenship. Today it is a
principal instrument in awakening the child to cultural
values, in preparing him for later professional training,
and in helping him to adjust normally to his
environment. In these days, it is doubtful that any child
may reasonably be expected to succeed in life if he is
denied the opportunity of an education. Such an
opportunity, where the state has undertaken to provide
it, is a right which must be made available to all on
equal terms.”
(Emphasis supplied)
30. In Plyler v. J R Doe Texas, reported in 1982 SCC OnLine US
SC 118, the issue before the Supreme Court of the United States
was whether free public education could be denied to
undocumented school -age children. Although access to
education was not a constitutional guarantee yet the Court held
that the State cannot prevent children from attending public
schools unless a substantial state interest is involved. While
underscoring the importance of education, it observed that
“children denied an education are placed at a permanent and
insurmountable competitive disadvantage, for an uneducated
child is denied even the opportunity to achieve”. The relevant
observations read thus:-
“26. Public education is not a "right" granted to
individuals by the Constitution . San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1, 35,
93 S.Ct. 1278, 1298, 36 L.Ed.2d 16 (1973). But neither
is it merely some governmental "benefit"
indistinguishable from other forms of social welfare
legislation. Both the importance of education in
maintaining our basic institutions, and the lasting
W.P. (C) No. 1000 of 2022 Page 21 of 126
impact of its deprivation on the life of the child, mark
the distinction. The "American people have always
regarded education and [the] acquisition of knowledge
as matters of supreme importance." Meyer v. Nebraska,
262 U.S. 390, 400, 43 S.Ct. 625, 627, 67 L.Ed. 1042
(1923). We have recognized "the public schools as a
most vital civic institution for the preservation of a
democratic system of government," Abington School
District v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560,
1575, 10 L.Ed.2d 844 (1963) (BRENNAN, J.,
concurring), and as the primary vehicle for transmitting
"the values on which our society rests." Ambach v.
Norwick, 441 U.S. 68, 76, 99 S.Ct. 1589, 1594, 60
L.Ed.2d 49 (1979). "[A]s . . . pointed out early in our
history, . . . some degree of education is necessary to
prepare citizens to participate effectively and
intelligently in our open political system if we are to
preserve freedom and independence ." Wisconsin v.
Yoder, 406 U.S. 205, 221, 92 S.Ct. 1526, 1536, 32
L.Ed.2d 15 (1972). And these historic "perceptions of
the public schools as inculcating fundamental values
necessary to the maintenance of a democratic political
system have been confirmed by the observations of
social scientists." Ambach v. Norwick, supra, 411 U.S.,
at 77, 99 S.Ct., at 1594. In addition, education provides
the basic tools by which individuals might lead
economically productive lives to the benefit of us all. In
sum, education has a fundamental role in maintaining
the fabric of our society. We cannot ignore the
significant social costs borne by our Nation when select
groups are denied the means to absorb the values and
skills upon which our social order rests.
27. In addition to the pivotal role of education in
sustaining our political and cultural heritage, denial of
education to some isolated group of children poses an
affront to one of the goals of the Equal Protection Clause
: the abolition of governmental barriers presenting
unreasonable obstacles to advancement on the basis of
individual merit. Paradoxically, by depriving the
children of any disfavored group of an education, we
W.P. (C) No. 1000 of 2022 Page 22 of 126
foreclose the means by which that group might raise
the level of esteem in which it is held by the majority.
But more directly, "education prepares individuals to be
self-reliant and self-sufficient participants in
society." Wisconsin v. Yoder, supra, 406 U.S., at 221,
92 S.Ct., at 1536. Illiteracy is an enduring disability.
The inability to read and write will handicap the
individual deprived of a basic education each and
every day of his life. The inestimable toll of that
deprivation on the social economic, intellectual, and
psychological well-being of the individual, and the
obstacle it poses to individual achievement, make it
most difficult to reconcile the cost or the principle of a
status-based denial of basic education with the
framework of equality embodied in the Equal Protection
Clause. [ Because the State does not afford noncitizens
the right to vote, and may bar noncitizens from
participating in activities at the heart of its political
community, appellants argue that denial of a basic
education to these children is of less significance than
the denial to some other group. Whatever the current
status of these children, the courts below concluded
that many will remain here permanently and that some
indeterminate number will eventually become citizens.
The fact that many will not is not decisive, even with
respect to the importance of education to participation
in core political institutions. "[T]he benefits of education
are not reserved to those whose productive utilization
of them is a certainty . . . ." 458 F.Supp., at 581, n. 14.
In addition, although a noncitizen "may be barred from
full involvement in the political arena, he may play a
role perhaps even a leadership role—in other areas of
import to the community." Nyquist v. Mauclet, 432 U.S.
1, 12, 97 S.Ct. 2120, 2126, 53 L.Ed.2d 63 (1977).
Moreover, the significance of education to our society is
not limited to its political and cultural fruits. The public
schools are an important socializing institution,
imparting those shared values through which social
order and stability are maintained.][…]
xxx
41. Justice MARSHALL, concurring.
W.P. (C) No. 1000 of 2022 Page 23 of 126
42. While I join the Court's opinion, I do so without in
any way retreating from my opinion in San Antonio
Independent School District v. Rodriguez, 411 U.S. 1,
70-133, 93 S.Ct. 1278, 1315-1348, 36 L.Ed.2d 16
(1973) (dissenting opinion). I continue to believe that an
individual's interest in education is fundamental, and
that this view is amply supported "by the unique status
accorded public education by our society, and by the
close relationship between education and some of our
most basic constitutional values." Id., at 111, 93 S.Ct.,
at 1336. Furthermore, I believe that the facts of these
cases demonstrate the wisdom of rejecting a rigidified
approach to equal protection analysis, and of
employing an approach that allows for varying levels of
scrutiny depending upon "the constitutional and
societal importance of the interest adversely affected
and the recognized invidiousness of the basis upon
which the particular classification is drawn." Id., at 99,
93 S.Ct., at 1330. See also Dandridge v. Williams, 397
U.S. 471, 519-521, 90 S.Ct. 1153, 1178-1180, 25
L.Ed.2d 491 (1970) (MARSHALL, J., dissenting). It
continues to be my view that a class-based denial of
public education is utterly incompatible with the Equal
Protection Clause of the Fourteenth Amendment.”
(Emphasis supplied)
31. In Bandhua Mukti Morcha v. Union of India , reported in
(1984) 3 SCC 161, a three Judge Bench of this Court held that
the right to live with dignity under Article 21 is inspired by the
Directive Principles of State Policy which includes, inter alia,
educational facilities.
32. We may also refer to the decision in Mohini Jain (Miss) v. State
of Karnataka, reported in (1992) 3 SCC 666, wherein this
Court held that the right to education forms part of the broader
W.P. (C) No. 1000 of 2022 Page 24 of 126
framework of the right to life and human dignity under Article
21 of the Constitution. As the right to life includes the right to
live with dignity, such dignity cannot be realized without access
to education. While recognizing that denial of education directly
impacts the exercise of fundamental rights, the Court observed
that social justice cannot be achieved in the absence of
education. It observed that education is foundational to the
realization of other fundamental rights . The relevant
observations read thus:-
“8. The Preamble promises to secure justice “social,
economic and political” for the citizens. A peculiar
feature of the Indian Constitution is that it combines
social and economic rights along with political and
justiciable legal rights. The Preamble embodies the goal
which the State has to achieve in order to establish
social justice and to make the masses free in the
positive sense. The securing of social justice has been
specifically enjoined an object of the State under Article
38 of the Constitution. Can the objective which has
been so prominently pronounced in the Preamble and
Article 38 of the Constitution be achieved without
providing education to the large majority of citizens
who are illiterate. The objectives flowing from the
Preamble cannot be achieved and shall remain on
paper unless the people in this country are educated.
The three-pronged justice promised by the Preamble is
only an illusion to the teaming millions who are
illiterate. It is only education which equips a citizen to
participate in achieving the objectives enshrined in the
Preamble. The Preamble further assures the dignity of
the individual. The Constitution seeks to achieve this
object by guaranteeing fundamental rights to each
individual which he can enforce through court of law if
necessary. The Directive Principles in Part IV of the
Constitution are also with the same objective. The
dignity of man is inviolable. It is the duty of the State to
respect and protect the same. It is primarily education
W.P. (C) No. 1000 of 2022 Page 25 of 126
which brings forth the dignity of a man. The framers of
the Constitution were aware that more than seventy
per cent of the people, to whom they were giving the
Constitution of India, were illiterate. They were also
hopeful that within a period of ten years illiteracy
would be wiped out from the country. It was with that
hope that Articles 41 and 45 were brought in Chapter
IV of the Constitution. An individual cannot be assured
of human dignity unless his personality is developed
and the only way to do that is to educate him. This is
why the Universal Declaration of Human Rights, 1948
emphasises:“Education shall be directed to the full
development of the human personality …”. Article 41 in
Chapter IV of the Constitution recognises an
individual's right “to education”. It says that “the State
shall, within the limits of its economic capacity and
development, make effective provision for securing the
right … to education …”. Although a citizen cannot
enforce the Directive Principles contained in Chapter IV
of the Constitution but these were not intended to be
mere pious declarations. We may quote the words of Dr
Ambedkar in that respect:
“In enacting this Part of the Constitution, the
Assembly is giving certain directions to the future
legislature and the future executive to show in what
manner they are to exercise the legislative and the
executive power they will have. Surely it is not the
intention to introduce in this Part these principles as
mere pious declarations. It is the intention of the
Assembly that in future both the legislature and the
executive should not merely pay lip service to these
principles but that they should be made the basis of
all legislative and executive action that they may be
taking hereafter in the matter of the governance of
the country.”
(C.A.D. Vol. VII, p. 476)”
(Emphasis supplied)
33. A Constitution Bench in Unni Krishnan, J.P. v. State of A.P.,
reported in (1993) 1 SCC 645, affirmed the abovementioned
W.P. (C) No. 1000 of 2022 Page 26 of 126
observations in Mohini Jain (supra) to the extent that the right
to education has always been regarded as fundamentally
important to human life. The Court observed that the country
would be unable to achieve the objectives set forth in the
Preamble without education. The relevant observations read
thus:-
“Article 21 and Right to Education:
166. In Bandhua Mukti Morcha [(1984) 3 SCC 161 :
1984 SCC (L&S) 389] this Court held that the right to
life guaranteed by Article 21 does take in “educational
facilities”. (The relevant portion has been quoted
hereinbefore.) Having regard to the fundamental
significance of education to the life of an individual and
the nation, and adopting the reasoning and logic
adopted in the earlier decisions of this Court referred to
hereinbefore, we hold, agreeing with the statement
in Bandhua Mukti Morcha [(1984) 3 SCC 161 : 1984
SCC (L&S) 389] that right to education is implicit in and
flows from the right to life guaranteed by Article 21.
That the right to education p has been treated as one of
transcendental importance in the life of an individual
has been recognised not only in this country since
thousands of years, but all over the world. In Mohini
Jain [Mohini Jain v. State of Karnataka, (1992) 3 SCC
666] the importance of education has been duly and
rightly stressed. The relevant observations have
already been set out in para 7 hereinbefore. In
particular, we agree with the observation that without
education being provided to the citizens of this country,
the objectives set forth in the Preamble to the
Constitution cannot be achieved. The Constitution
would fail. We do not think that the importance of
education could have been better emphasised than in
the above words.[…]”
(Emphasis supplied)
W.P. (C) No. 1000 of 2022 Page 27 of 126
34. Although the 11 judge Bench in T.M.A Pai Foundation v. State
of Karnataka, reported in (2002) 8 SCC 481, overruled the
decision in Unni Krishnan (supra) insofar as the framing of the
scheme qua grant of admission and the fixation of the fee, yet
the observation that primary education is a fundamental right
was affirmed.
35. We may also look into the decision in the case of Minister of
Health v. Treatment Action Campaign, reported in 2002 SCC
OnLine ZACC 17, wherein the Constitutional Court of South
Africa recognized the concept of “minimum core” developed by
the ICESR. The minimum core concept ensures that certain
essential levels of each right, such as access to basic education,
primary healthcare, food, shelter, and dignity, must be
guaranteed immediately. The ICESR recognizes that although
realization of rights may be subject to resources, yet it obligates
State Parties to secure the minimum essential content of the
rights.
36. In R.D. Upadhyay v. State of A.P., reported in (2007) 15 SCC
337, a fervent appeal was made to this Court to issue directions
for the development of children of those mothers who were either
undertrial prisoners or convicts. In such circumstances, this
Court directed that adequate arrangements shall be made
available in all jails to impart education to children of female
prisoners. What has been conveyed by this Court in so many
words is the understanding of education as a continuing and
W.P. (C) No. 1000 of 2022 Page 28 of 126
non-derogable right that cannot be denied even within the
confines of a prison.
37. The Constitutional Court of South Africa in Governing Body of
the Juma Musjid Primary School v. Ahmed Asruff Essay
N.O., reported in 2011 SCC OnLine ZACC 13 , underscored the
importance of education in an appeal assailing an order
authorizing the eviction of a public school from a private
property. To put it in simple words, the Court was addressing a
conflict between the right to education and the right to property.
While holding that the government has a positive obligation to
provide access to schools in fulfilling the right to basic
education, the other non-State actors have a negative obligation
not to infringe that right under the Constitution. The Court held
that any limitation on the right to education must be reasonable
and justifiable. The relevant observations read thus:-
“42. The significance of education, in particular basic
education [ As enshrined in section 29(1) of the
Constitution.] for individual and societal development
in our democratic dispensation in the light of the legacy
of apartheid, [ As pointed out by Berger in ‘The Rights
to Education under the South African Constitution’ (Apr
2003) vol 103, No 3 Columbia Law Review, 616, the
separatist national education policy under apartheid,
manifested in the Bantu Education Act 47 of 1953, was
an integral part of apartheid's segregationist objective.]
cannot be overlooked. The inadequacy of schooling
facilities, particularly for many blacks [ Blacks here
also denoting Indians and Coloureds.] was entrenched
by the formal institution of apartheid, after 1948, when
segregation even in education and schools in South
Africa was codified. Today, the lasting effects of the
educational segregation of apartheid are discernible in
W.P. (C) No. 1000 of 2022 Page 29 of 126
the systemic problems of inadequate facilities and the
discrepancy in the level of basic education for the
majority of learners.
43. Indeed, basic education is an important socio-
economic right directed, among other things, at
promoting and developing a child's personality, talents
and mental and physical abilities to his or her fullest
potential. [ See also Article 29(1) of the Child Rights
Convention, which provides—“States Parties agree that
the education of the child shall be directed to:(a) The
development of the child's personality, talents and
mental and physical abilities to their fullest potential;(b)
The development of respect for human rights and
fundamental freedoms, and for the principles
enshrined in the Charter of the United Nations;(c) The
development of respect for the child's parents, his or her
own cultural identity, language and values, for the
national values of the country in which the child is
living, the country from which he or she may originate,
and for civilizations different from his or her own;(d)
The preparation of the child for responsible life in a free
society, in the spirit of understanding, peace, tolerance,
equality of sexes, and friendship among all peoples,
ethnic, national and religious groups and persons of
indigenous origin;(e) The development of respect for the
natural environment.”] Basic education also provides a
foundation for a child's lifetime learning and work
opportunities. To this end, access to school — an
important component of the right to a basic education
guaranteed to everyone by section 29(1)(a) of the
Constitution — is a necessary condition for the
achievement of this right.”
(Emphasis supplied)
38. In the aforesaid context, if a State Party under the ICESR fails
to discharge this minimum core obligation, it is considered to be
in breach of the Covenant. Moreover, States could justify non-
fulfilment of the obligations only by exhibiting that it made every
W.P. (C) No. 1000 of 2022 Page 30 of 126
possible effort to utilize all resources at its disposal to fulfil these
obligations. Thus, failure to meet the minimum core threshold
deprives the right of its substantive meaning and reduces the
right to dead letters.
39. What appears from the aforesaid discussion is that the 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. In other words, mere enrolment does
not fulfil the right if structural or practical barriers prevent
regular participation, engagement, or progression within the
educational system.
40. To enable a child’s participation in school by way of affirmative
measures reflects commitment to the substantive approach to
equality, which goes beyond formal access to schooling. Such
affirmative measures mandate State action to ensure all
children are placed equally to avail educational opportunities.
B. Substantive approach to right to equality in education
under Article 14 of the Constitution
41. The exercise of the right to education requires the removal of
impediments that obstruct its enjoyment. In the present case,
these impediments include the lack of MHM measures, such as
non-access to toilets, non-availability of menstrual absorbents,
and absence of a safe disposal mechanism. These barriers
W.P. (C) No. 1000 of 2022 Page 31 of 126
disproportionately affect the right to education of adolescent
female students. As a result, the State is under an obligation to
address them through appropriate measures.
42. There is no doubt that the right to education loses its spirit if
such conditions exist that exclude menstruating girl children
from the educational process. As stated aforesaid, addressing
the impediments throu gh affirmative actions would be
consistent with the substantive approach to equality embodied
in Article 14 of the Constitution. In order to place a
menstruating girl child on an equal footing with others, mere
equal treatment would not suffice.
43. We shall now look into and discuss the substantive approach to
the right to equality under Article 14 of the Constitution. Article
14, in its traditional understanding, envisaged formal equality
and guaranteed that likes would be treated alike. Under this
formal conception of equality, although equality before the law
and equal protection of the laws were guaranteed to all, yet
inequality in the realization of other rights continued to persist.
44. The principle of substantive equality recognizes that once two
individuals are placed in unequal positions because of social,
economic, or cultural factors, mere equal “treatment” becomes
inadequate. If two individuals are treated alike, without regard
to their religion, race, caste, sex, or similar characteristics, the
right to equality cannot be given its true effect. In other words,
it cannot be given its true effect in the absence of taking into
W.P. (C) No. 1000 of 2022 Page 32 of 126
consideration the position of the individual, which may be
profoundly shaped by historical and structural disadvantages.
Equal treatment afforded in isolation, or rather without
accounting for such disadvantage, may perpetuate inequality.
45. Equality is not an abstract concept. It is embedded in social
reality and must be responsive to those who are disadvantaged
and marginalized. Equality entails not merely formal conferral
of rights, but also the adoption of measures necessary to
translate those rights into equality.
7 Substantive equality is
brought into action through policies aiming to redress these
systemic, direct or indirect disadvantages, by addressing the
structural and contextual barriers that impede genuine equality.
To put it briefly, it seeks to reduce the gap between
disadvantages and the effective realization of rights.
46. There is no gainsaying that equality cannot be restricted to a
mere duty of restraint on the State. Substantive equality can be
meaningfully realized only when it is supported by positive overt
actions aimed at remedying existing structural disadvantages.
In other words, such positive duties require the State to take
proactive measures to address patterns of discrimination and
exclusion. In the absence of the aforementioned affirmative
obligations, structural inequalities are merely preserved, and
the promise of equality will be reduced to a paper provision.
7 Peter Westen, The Empty Idea of Equality, 95 Harvard L. Rev. (1982), at 542.
W.P. (C) No. 1000 of 2022 Page 33 of 126
47. In such circumstances referred to above, differential treatment
may be indispensable to achieve equality in practice. As has
been aptly observed by Amartya Sen, “Equal consideration for all
may demand very unequal treatment in favour of the
disadvantaged.”
8 As a result, unequal treatment may be
constitutionally permissible when it is directed towards securing
equal outcomes.
9 In other words, substantive equality focuses
on the extent to which an individual is able to meaningfully
exercise choices, rather than merely possessing a formal right to
do so. It recognizes that access to opportunities shall not be
constrained by social, economic, or physical factors.
i. Menstruation as a barrier to the right to access education
48. In a research
10 conducted on whether schools across the
territory of India are menstrual-hygiene friendly, the researchers
found that more than half of the girls did not have information
about menstruation prior to menarche. The research revealed
that the lack of sanitation facilities in schools hindered the
ability of girls to manage menstruation healthily, safely, and
with dignity.
49. Similarly, the Clean India: Clean Schools Handbook reported
that although the number of schools providing drinking water
and toilets have increased yet poor maintenance has left them
8 Amartya Sen, Inequality Reexamined 1 (Harvard University Press, Cambridge, 1992).
9 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.
10 Shantanu Sharma, Devika Mehra, et.al., “Menstrual Hygiene Preparedness Among Schools
in India: A Systematic Review and Meta-Analysis of System- and Policy-Level Actions” 17
International Journal of Environmental Research and Public Health 647 (2020).
W.P. (C) No. 1000 of 2022 Page 34 of 126
inaccessible. The inaccessibility was attributed to factors such
as absence of dedicated funds for operation and maintenance,
weak management, poor quality of construction, and the lack of
availability of water within toilets.
50. We are disheartened to note that the availability of water for
cleaning and flushing of toilets still remains a major concern.
The Handbook further reported that MHM is absent in a majority
of schools, including the lack of gender-specific infrastructure,
access to sanitary napkins, and a disposal mechanism.
51. In another research
11 conducted to study school absenteeism
during menstruation amongst adolescent school girls in North
India, the researchers found that nearly one-third of girls were
absent from school due to issues related to menstrual health,
restrictive societal norms, and inadequate menstrual hygiene
management. Out of approximately 500 students, 29.2% of the
participants were reported to be absent from school during
menstruation.
52. In the aforesaid study, among the reported reasons for absence,
dysmenorrhea
12 was the most prevalent, followed by restrictions
at home, fear of staining clothes and difficulty in changing
sanitary pads at school. The findings of the study revealed that
11 B.N. Patavegar, S. Ahmad, et.al., “A Study of School Absenteeism During Menstruation
Amongst Adolescent Schoolgirls in An Urban Area of North India” 15 National Journal of
Community Medicine 741 (2024).
12 Painful menstruation; see Merriam-Webster, “Dysmenorrhea”, Merriam-Webster Medical
Dictionary, available at: https://www.merriam-
webster.com/dictionary/dysmenorrhea#medicalDictionary.
W.P. (C) No. 1000 of 2022 Page 35 of 126
students in government schools were more likely to be absent as
compared to those in private schools. Notably, girls using
hygienic methods reported lower absenteeism as compared to
others. To address the aforesaid issues, the researchers
recommended integrating comprehensive menstrual health
education into school curricula and improving access t o
hygienic menstrual products.
53. Accessibility of MHM measures provides the same opportunities
for all students in school, while recognizing unequal distribution
of resources with the objective to attain equal access to human
rights. In other words, it levels the playing field by addressing
unequal starting points.
54. The right to education as a human right does not merely demand
parity between genders but further requires equality of
opportunity in the enjoyment of that right for all. Inaccessibility
of MHM measures perpetuates a systemic exclusion and
discrimination that impacts the admission or continuation of
girl children in school.
55. The observations of this Court in Joseph Shine v. Union of
India, reported in (2019) 3 SCC 39, succinctly capture the
understanding of the substantive approach to equality. It held
that substantive equality is aimed at eliminating all sorts of
discrimination that undermine social, economic, and political
participation in society. It was further held that Article 15(3) of
W.P. (C) No. 1000 of 2022 Page 36 of 126
the Constitution is intended to bring out substantive equality by
remedying the disadvantage. It reads thus:-
“171. Section 497 amounts to a denial of substantive
equality. The decisions in Sowmithri [Sowmithri
Vishnu v. Union of India, 1985 Supp SCC 137 : 1985
SCC (Cri) 325] and Revathi [V. Revathi v. Union of
India, (1988) 2 SCC 72 : 1988 SCC (Cri) 308] espoused
a formal notion of equality, which is contrary to the
constitutional vision of a just social order. Justness
postulates equality. In consonance with constitutional
morality, substantive equality is “directed at
eliminating individual, institutional and systemic
discrimination against disadvantaged groups which
effectively undermines their full and equal social,
economic, political and cultural participation in society”
[ S. Martin and K. Mahoney (Eds.), Kathy
Lahey, Feminist Theories of (In)equality, in Equality
and Judicial Neutrality (1987).] . To move away from a
formalistic notion of equality which disregards social
realities, the Court must take into account the impact of
the rule or provision in the lives of citizens.
172. The primary enquiry to be undertaken by the
Court towards the realisation of substantive equality is
to determine whether the provision contributes to the
subordination of a disadvantaged group of individuals.
[ Nivedita Menon (Ed.), Ratna Kapur and Benda
Cossman “On Women, Equality and the Constitution :
Through the Looking Glass of Feminism in Gender and
Politics in India” (1993).] The disadvantage must be
addressed not by treating a woman as “weak” but by
construing her entitlement to an equal citizenship. The
former legitimises patronising attitudes towards
women. The latter links true equality to the realisation
of dignity. The focus of such an approach is not simply
on equal treatment under the law, but rather on the real
impact of the legislation. [ Maureen Maloney, “An
Analysis of Direct Taxes in India : A Fem inist
Perspective”, Journal of the Indian Law Institute
(1988).] Thus, Section 497 has to be examined in the
W.P. (C) No. 1000 of 2022 Page 37 of 126
light of existing social structures which enforce the
position of a woman as an unequal participant in a
marriage.”
(Emphasis supplied)
56. By yet another Constitution Bench of this Court in Janhit
Abhiyan v. Union of India (EWS Reservation) , reported in
(2023) 5 SCC 1, it was held that when substantive equality is
asserted as a constitutional mandate, the State is tasked to
place the concerned individuals on an equal footing. This Court,
in so many words, held that substantive equality can take
various forms, as per the requirements of the disadvantaged
person or group. It was also observed that social justice cannot
be achieved without substantive equality which means taking
affirmative actions. The relevant observations read thus:-
“87. Indian constitutional jurisprudence has
consistently held the guarantee of equality to be
substantive and not a mere formalistic requirement.
Equality is at the nucleus of the unified goals of social
and economic justice. In Minerva Mills [Minerva Mills
Ltd. v. Union of India, (1980) 3 SCC 625] it was
observed : (SCC p. 709, para 111)
“111. … the equality clause in the Constitution does
not speak of mere formal equality before the law but
embodies the concept of real and substantive
equality which strikes at inequalities arising on
account of vast social and economic differentials
and is consequently an essential ingredient of social
and economic justice. The dynamic principle of
egalitarianism fertilises the concept of social and
economic justice; it is one of its essential elements
and there can be no real social and economic justice
where there is a breach of the egalitarian principle.”
(emphasis supplied)
W.P. (C) No. 1000 of 2022 Page 38 of 126
88. Thus, equality is a feature fundamental to our
Constitution but, in true sense of terms, equality
envisaged by our Constitution as a component of social,
economic and political justice is real and substantive
equality, which is to organically and dynamically
operate against all forms of inequalities. This process
of striking at inequalities, by its very nature, calls for
reasonable classifications so that equals are treated
equally while unequals are treated differently and as
per their requirements.
xxx
99. Thus, it could reasonably be summarised that for
the socio-economic structure which the law in our
democracy seeks to build up, the requirements of real
and substantive equality call for affirmative actions;
and reservation is recognised as one such affirmative
action, which is permissible under the Constitution;
and its operation is defined by a large number of
decisions of this Court, running up to the detailed
expositions in Jaishri Patil [Jaishri Laxmanrao
Patil v. State of Maharashtra, (2021) 8 SCC 1] .”
(Emphasis supplied)
57. We may refer with profit the decision in Gaurav Kumar v.
Union of India, reported in (2025) 1 SCC 641, wherein one of
us, J.B. Pardiwala, J., was a part of the Bench, this Court
reiterated that the substantive approach to equality aims to
eliminate individual, institutional, and systemic discrimination
against the disadvantaged. To put it briefly, substantive equality
can be achieved through affirmative actions aimed towards
eliminating discriminatory factors.
58. Recently, in Jane Kaushik v. Union of India, reported in
(2026) 1 SCC 336 , this Bench held that redressal of a
disadvantage cannot be devoid of an understanding of the other
W.P. (C) No. 1000 of 2022 Page 39 of 126
impediments that an individual may face on account of other
identity markers that may cause such an individual to be
stigmatized and marginalized. The principle of reasonable
accommodation was put into application as a means for
achieving substantive equality.
a. Intersectionality of disability, gender, and access to
education
59. The responsibility of the State is further heightened in the case
of a child with disability, as the intersection of disability with
gender compounds the disadvantage faced during
menstruation. In case of children with disabilities, accessibility
of washrooms is even more essential for inclusion and for
enabling meaningful participation in school. Needless to say, the
absence of such accessibility results in exclusion from education
and reinforces the social and economic marginalization.
60. In Rajiv Raturi v. Union of India, reported in (2024) 16 SCC
654, wherein one of us, J. B. Pardiwala, J., was a part of the
Bench, held that the right to accessibility is an integral part of
the existing human right framework , more particularly, of
Articles 14, 19, and 21 respectively. It was observed that
accessibility enables the exercise of other rights, one of which
forms part of the right to live a meaningful life under Article 21.
The Court further held that to enable such a right the State is
required to implement accessibility measures proactively. The
relevant observations read thus:-
W.P. (C) No. 1000 of 2022 Page 40 of 126
“22. Accessibility is not merely a convenience, but a
fundamental requirement for enabling individuals,
particularly those with disabilities, to exercise their
rights fully and equally. Without accessibility,
individuals are effectively excluded from many aspects
of society, whether that be education, employment,
healthcare, or participation in cultural and civic
activities. Accessibility ensures that persons with
disabilities are not marginalised but are instead able to
enjoy the same opportunities as everyone else, making
it an integral part of ensuring equality, freedom, and
human dignity. By embedding accessibility as a
human right within existing legal frameworks, it
becomes clear that it is an essential prerequisite for the
exercise of other rights.
xxx
26. Similarly, A.K. Sikri, J. in the 2017 judgment [Rajive
Raturi v. Union of India, (2018) 2 SCC 413 : (2018) 1
SCC (L&S) 404] grounded the right to accessibility in
the fundamental rights chapter of the Constitution,
emphasizing that access to public spaces and services
is an essential aspect of the right to life and dignity.
This Court observed: (SCC p. 426, para 12)
“12. The vitality of the issue of “accessibility” vis-à-
vis visually disabled person's right to life can be
gauged clearly by the [Supreme] Court's judgment
in State of H.P. v. Umed Ram Sharma [State of
H.P. v. Umed Ram Sharma, (1986) 2 SCC 68] where
the right to life under Article 21 has been held broad
enough to incorporate the right to accessibility.”
27. The inclusion of accessibility within the
fundamental rights framework ensures that PWDs are
entitled to full participation in society under Articles 14,
19 and 21 of the Constitution. Article 14 upholds equal
access to spaces, services, and information; Article 19
guarantees the freedom to move and express oneself;
and Article 21 ensures the right to live with dignity.
Together, these provisions guarantee not only formal
equality but also substantive equality, which requires
the State to take positive steps to ensure that
W.P. (C) No. 1000 of 2022 Page 41 of 126
individuals can enjoy their rights fully, irrespective of
disabilities. This Court in a plethora of judgments has
repeatedly recognised that the right to dignity and the
right to a meaningful life under Article 21 necessitate
conditions that enable PWDs to enjoy the sam e
freedoms and choices as others. [ See Jeeja Ghosh v.
Union of India, (2016) 7 SCC 761 : (2016) 3 SCC (Civ)
551 : 2016 INSC 412; Rajive Raturi v. Union of India,
(2018) 2 SCC 413 : (2018) 1 SCC (L&S) 404 : 2017 INSC
1243; Ravinder Kumar Dhariwal v. Union of India,
(2023) 2 SCC 209 : (2023) 1 SCC (L&S) 181 : 2021 INSC
916; Vikash Kumar v. UPSC, (2021) 5 SCC 370 : (2021)
2 SCC (L&S) 1 : 2021 INSC 78.] Thus, the right to
accessibility is foundational, enabling PWDs to exercise
and benefit from other rights enshrined in Part III of the
Constitution.”
(Emphasis supplied)
61. We would like to refer to the observations of this Court in Om
Rathod v. Director General of Health Services, reported in
2024 SCC OnLine SC 3130 , to further elaborate upon the
principles of law on substantive equality in disability rights. It
was observed that Section 3 of the Rights of Persons with
Disabilities Act, 2016, casts a positive obligation on the State as
well as private entities to ensure that no person with disability
faces discrimination. The Court held that reasonable
accommodation is a facet of substantive equality and failure to
reasonably accommodate constitutes discrimination. The
relevant observations read thus:-
“29. The principle of reasonable accommodation is not
only statutorily prescribed but also rooted in the
fundamental rights guaranteed to persons with
disabilities under Part III of the Constitution.
Reasonable accommodation is a fundamental right. It
is a gateway right for persons with disabilities to enjoy
W.P. (C) No. 1000 of 2022 Page 42 of 126
all the other rights enshrined in the Constitution and
the law. Without the gateway right of reasonable
accommodation, a person with disability is forced to
navigate in a world which excludes them by design. It
strikes a fatal blow to their ability to make life choices
and pursue opportunities. From mundane tasks of
daily life to actions undertaken to realise personal and
professional aspirations - all are throttled when
reasonable accommodations are denied. Reasonable
accommodation is a facet of substantive equality and
its failure constitutes discrimination.[…]”
30. Section 3 of the RPWD Act affords persons with
disabilities a right to equality and non-discrimination.
In Vikash Kumar (supra) this Court held that Section 3
casts an affirmative obligation on the Government and
private entities to take steps to ensure reasonable
accommodation and utilize the capacity of persons with
disabilities by providing an appropriate environment.
There is a positive obligation to realise the inclusive
premise in the concept of reasonable accommodation.
This includes the duty to create an environment
conducive for the development of persons with
disabilities. This Court has held that:
“… The accommodation which the law mandates is
‘reasonable’ because it has to be tailored to the
requirements of each condition of disability. The
expectations which every disabled person has are
unique to the nature of the disability and the
character of the impediments which are encountered
as its consequence.
…
48. Failure to meet the individual needs of every
disabled person will breach the norm of reasonable
accommodation. Flexibility in answering individual
needs and requirements is essential to reasonable
accommodation. The principle of reasonable
accommodation must also account for the fact that
disability based discrimination is intersectional in
nature. The intersectional features arise in
particular contexts due to the presence of multiple
W.P. (C) No. 1000 of 2022 Page 43 of 126
disabilities and multiple consequences arising from
disability. Disability therefore cannot be truly
understood by regarding it as unidimensional.”
(emphasis supplied)”
(Emphasis supplied)
62. Although accessibility and reasonable accommodation are
distinct concepts, as already recognized in Rajive Raturi v.
Union of India, reported in (2024) 16 SCC 654 , yet the
foundation for both is a substantive approach to equality and
removal of barriers that impede the effective realization of rights.
To put this in context, a commitment to accessibility would
reflect in making the washrooms at school accessible for
children with disabilities. However, this is not enough,
reasonably accommodating a girl child with disability would also
mean making menstrual absorbents available and educating all
the students about menstruation and MHM measures.
63. Thus, we have no hesitation in saying that inaccessibility means
not only depriving a girl child with disability of education but
also violating her right to equality, freedom, and dignity. To
reasonably accommodate means actively creating a conducive
environment for children with disabilities.
64. What can be discerned from the above discussion is that the
steps towards substantive equality are, first, the identification
and recognition of disadvantage; and secondly, actions taken
towards redressing that disadvantage. This Court is mindful
that constitutional guarantees do not attain their true meaning
W.P. (C) No. 1000 of 2022 Page 44 of 126
by mere textual inclusion in statute books but through their
realization in reality.
65. For a menstruating girl child who cannot afford menstrual
absorbents, the disadvantage is two -fold. First, vis-à-vis
menstruating girl children who can afford menstrual
absorbents. Secondly, vis-à-vis male counterparts or non-
menstruating counterparts. Further, 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.
66. 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.
67. The right to education is a universally recognized human right,
which, in circumstances referred to above, stands compromised
and undermined for girl children. 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. There is no gainsaying that
impairment of primary or secondary education has grave and
lasting consequences, not only for individual development but
also for long-term social and economic participation.
W.P. (C) No. 1000 of 2022 Page 45 of 126
68. 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.
C. The right to dignified menstrual health a part of Article
21
i. The right to human dignity as a concomitant of the right
to life
69. The right to life under Article 21 means a life with dignity. This
Court, in a catena of decisions, has consistently recognized that
dignity is an essential and inseparable facet of the right to life
and liberty. The right to life means more than mere survival.
Every human possesses inherent dignity by virtue of being
human, which enables the individual to make self-determining
choices. This Court has recognized dignity to be intrinsic and
inalienable continuing beyond biological existence.
13
70. When we recognize dignity as forming a significant part of
human existence, we acknowledge the value of life. Dignity
makes life livable. There is no gainsaying to the fact that the
13 Common Cause v. Union of India, (2018) 5 SCC 1.
W.P. (C) No. 1000 of 2022 Page 46 of 126
right to a dignified existence secures decisional autonomy,
enabling an individual to transform life from mere subsistence
into a meaningful endeavour. Dignity inheres in every stage and
every aspect of human existence. As a result, the Constitution
protects an individual’s expectation that dignity will be
preserved and respected throughout their life.
71. In this regard, we shall refer to the decision in K.S. Puttaswamy
(Privacy-9 J.) v. Union of India, reported in (2017) 10 SCC 1,
wherein this Court categorically held that dignity is an integral
part of the Constitution, and its reflections are found in Articles
14, 19, and 21, respectively. This Court noted that dignity can
neither be given nor taken away. It held that there is a positive
obligation on the State to not only protect one’s dignity but also
take steps to facilitate it. It was observed that dignity ties all the
fundamental rights together. The relevant observations read
thus:-
“Jurisprudence on dignity
108. Over the last four decades, our constitutional
jurisprudence has recognised the inseparable
relationship between protection of life and liberty with
dignity. Dignity as a constitutional value finds
expression in the Preamble. The constitutional vision
seeks the realisation of justice (social, economic and
political); liberty (of thought, expression, belief, faith
and worship); equality (as a guarantee against
arbitrary treatment of individuals) and fraternity
(which assures a life of dignity to every individual).
These constitutional precepts exist in unity to facilitate
a humane and compassionate society. The individual
is the focal point of the Constitution because it is in the
realisation of individual rights that the collective well-
being of the community is determined. Human dignity
W.P. (C) No. 1000 of 2022 Page 47 of 126
is an integral part of the Constitution. Reflections of
dignity are found in the guarantee against
arbitrariness (Article 14), the lamps of freedom (Article
19) and in the right to life and personal liberty (Article
21).
xxx
113. Human dignity was construed in M.
Nagaraj v. Union of India [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] by a
Constitution Bench of this Court to be intrinsic to and
inseparable from human existence. Dignity, the Court
held, is not something which is conferred and which
can be taken away, because it is inalienable : (SCC pp.
243 & 247-48, paras 26 & 42)
“26. … The rights, liberties and freedoms of the
individual are not only to be protected against the
State, they should be facilitated by it. … It is the
duty of the State not only to protect the human
dignity but to facilitate it by taking positive steps in
that direction. No exact definition of human dignity
exists. It refers to the intrinsic value of every human
being, which is to be respected. It cannot be taken
away. It cannot give (sic be given). It simply is.
Every human being has dignity by virtue of his
existence. …
***
42. India is constituted into a sovereign, democratic
republic to secure to all its citizens, fraternity
assuring the dignity of the individual and the unity
of the nation. The sovereign, democratic republic
exists to promote fraternity and the dignity of the
individual citizen and to secure to the citizens
certain rights. This is because the objectives of the
State can be realised only in and through the
individuals. Therefore, rights conferred on citizens
and non-citizens are not merely individual or
personal rights. They have a large social and
political content, because the objectives of the
Constitution cannot be otherwise realised.”
(emphasis supplied)
W.P. (C) No. 1000 of 2022 Page 48 of 126
119. To live is to live with dignity. The draftsmen of the
Constitution defined their vision of the society in which
constitutional values would be attained by
emphasising, among other freedoms, libert y and
dignity. So fundamental is dignity that it permeates the
core of the rights guaranteed to the individual by Part
III. Dignity is the core which unites the fundamental
rights because the fundamental rights seek to achieve
for each individual the dignity of existence. Privacy
with its attendant values assures dignity to the
individual and it is only when life can be enjoyed with
dignity can liberty be of true substance. Privacy
ensures the fulfilment of dignity and is a core value
which the protection of life and liberty is intended to
achieve.”
(Emphasis supplied)
72. In Common Cause v. Union of India, reported in (2018) 5 SCC
1, Chandrachud, J., opined that the Constitution protects the
legitimate expectation of a person to live a life with dignity. The
relevant observations read thus:-
“437. Under our Constitution, the inherent value which
sanctifies life is the dignity of existence. Recognising
human dignity is intrinsic to preserving the sanctity of
life. Life is truly sanctified when it is lived with dignity.
There exists a close relationship between dignity and
the quality of life. For, it is only when life can be lived
with a true sense of quality that the dignity of human
existence is fully realised. Hence, there should be no
antagonism between the sanctity of human life on the
one hand and the dignity and quality of life on the other
hand. Quality of life ensures dignity of living and
dignity is but a process in realising the sanctity of life.
438. Human dignity is an essential element of a
meaningful existence. A life of dignity comprehends all
stages of living including the final stage which leads to
the end of life. Liberty and autonomy are essential
attributes of a life of substance. It is liberty which
W.P. (C) No. 1000 of 2022 Page 49 of 126
enables an individual to decide upon those matters
which are central to the pursuit of a meaningful
existence. The expectation that the individual should
not be deprived of his or her dignity in the final stage of
life gives expression to the central expectation of a
fading life : control over pain and suffering and the
ability to determine the treatment which the individual
should receive. When society assures to each
individual a protection against being subjected to
degrading treatment in the process of dying, it seeks to
assure basic human dignity. Dignity ensures the
sanctity of life. The recognition afforded to the
autonomy of the individual in matters relating to end-
of-life decisions is ultimately a step towards ensuring
that life does not despair of dignity as it ebbs away.
xxx
518. Constitutional recognition of the dignity of
existence as an inseparable element of the right to life
necessarily means that dignity attaches throughout the
life of the individual. Every individual has a
constitutionally protected expectation that the dignity
which attaches to life must subsist even in the
culminating phase of human existence. Dignity of life
must encompass dignity in the stages of living which
lead up to the end of life. Dignity in the process of dying
is as much a part of the right to life under Article 21. To
deprive an individual of dignity towards the end of life
is to deprive the individual of a meaningful existence.
Hence, the Constitution protects the legitimate
expectation of every person to lead a life of dignity until
death occurs;”
(Emphasis supplied)
73. Recently, in Gaurav Kumar v. Union of India, reported in
(2025) 1 SCC 641, wherein one of us, J.B. Pardiwala, J., was a
part of the Bench, this Court elucidated the importance of
dignity in achieving substantive equality. This Court held that
W.P. (C) No. 1000 of 2022 Page 50 of 126
dignity encompasses the right of the individual to develop their
potential to the fullest. The relevant observations read thus:-
“99. Dignity is crucial to substantive equality. The
dignity of an individual encompasses the right of the
individual to develop their potential to the fullest. [K.S.
Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10
SCC 1, para 525] The right to pursue a profession of
one's choice and earn livelihood is integral to the dignity
of an individual. Charging exorbitant enrolment fees
and miscellaneous fees as a precondition for enrolment
creates a barrier to entry into the legal profession. The
levy of exorbitant fees as a precondition to enrolment
serves to denigrate the dignity of those who face social
and economic barriers in the advancement of their legal
careers. [ See Neil Aurelio Nunes (OBC
Reservation) v. Union of India, (2022) 4 SCC 1, para 35]
This effectively perpetuates systemic discrimination
against persons from marginalised and economically
weaker sections by undermining their equal
participation in the legal profession. Therefore, the
current enrolment fee structure charged by SBCs is
contrary to the principle of substantive equality.”
(Emphasis supplied)
74. In our considered view, MHM measures are inseparable from the
right to live with dignity under Article 21. We say so because
dignity cannot be reduced to an abstract ideal, it must find
expression in conditions that enable individuals to live without
humiliation, exclusion, or avoidable suffering. For menstruating
girl children, the inaccessibility of MHM measures subjects them
to stigma, stereotyping, and humiliation.
75. The absence of safe and hygienic menstrual management
measures undermines dignified existence by compelling the
W.P. (C) No. 1000 of 2022 Page 51 of 126
adolescent female students to either resort to absenteeism or
adopt unsafe practices, or both, which violates the bodily
autonomy of the menstruating girl children.
ii. The right to privacy and decisional autonomy
76. Dignity cannot be assured without privacy. Privacy is one of the
rights that are inherent in a human being by virtue of mere
existence. Being a natural right, it inures every individual
irrespective of their caste, class, gender, or any other similar
differentiating ground. Privacy enables each individual to make
choices and take decisions in respect of intimate and personal
matters, free from interference. It is this conception of natural
and inalienable right that secures the autonomy of human
being.
77. In Puttaswamy (supra), this Court held the right to privacy to
be a constitutionally protected right under Article 21. It
recognized privacy as a natural right which is inherent in a
human and not bestowed by the State . It was observed that
privacy ensures the fulfilment of dignity and is a core value
which protection of life and liberty has intended to achieve. In
furtherance of this constitutional protection, the Court held that
it is the duty of the State to safeguard the autonomy of an
individual. The relevant observations read thus:-
“G. Natural and inalienable rights
42. Privacy is a concomitant of the right of the
individual to exercise control over his or her personality.
It finds an origin in the notion that there are certain
rights which are natural to or inherent in a human
W.P. (C) No. 1000 of 2022 Page 52 of 126
being. Natural rights are inalienable because they are
inseparable from the human personality. The human
element in life is impossible to conceive without the
existence of natural rights. In 1690, John Locke had in
his Second Treatise of Government observed that the
lives, liberties and estates of individuals are as a
matter of fundamental natural law, a private preserve.
The idea of a private preserve was to create barriers
from outside interference. In 1765, William
Blackstone in his Commentaries on the Laws of
England spoke of a “natural liberty”. There were, in his
view, absolute rights which were vested in the
individual by the immutable laws of nature. These
absolute rights were divided into rights of personal
security, personal liberty and property. The right of
personal security involved a legal and uninterrupted
enjoyment of life, limbs, body, health and reputation by
an individual.
xxx
46. Natural rights are not bestowed by the State. They
inhere in human beings because they are human. They
exist equally in the individual irrespective of class or
strata, gender or orientation.
xxx
118. Life is precious in itself. But life is worth living
because of the freedoms which enable each individual
to live life as it should be lived. The best decisions on
how life should be lived are entrusted to the individual.
They are continuously shaped by the social milieu in
which individuals exist. The duty of the State is to
safeguard the ability to take decisions — the autonomy
of the individual — and not to dictate those decisions.
“Life” within the meaning of Article 21 is not confined
to the integrity of the physical body. The right
comprehends one's being in its fullest sense. That
which facilitates the fulfilment of life is as much within
the protection of the guarantee of life.
xxx
320. Privacy is a constitutionally protected right which
emerges primarily from the guarantee of life and
personal liberty in Article 21 of the Constitution.
W.P. (C) No. 1000 of 2022 Page 53 of 126
Elements of privacy also arise in varying contexts from
the other facets of freedom and dignity recognised and
guaranteed by the fundamental rights contained in
Part III.”
(Emphasis supplied)
78. Bobde, J., in his concurring opinion in Puttaswamy (supra),
stated that privacy is a prerequisite for the exercise of liberty
and the freedom to perform any activity. Consequently, the
absence of privacy denies an individual the freedom to exercise
that particular liberty or to undertake such activity. Similarly,
Nariman, J., recognized the privacy of choice as an individual’s
autonomy over fundamental choices.
79. As a sequitur, autonomy is a concomitant of privacy. We say so
because privacy is founded on the autonomy of an individual. At
the same time, dignity cannot exist without privacy. In
Puttaswamy (supra), this Court defined autonomy as “the
ability to make decision on vital matters of concern to life”. While
lucidly elucidating facets of privacy, this Court recognized an
individual’s authority to make decisions as regards their body
and mind. Further, while identifying the various facets of
privacy, the Court recognized decisional privacy to mean the
ability of an individual to make intimate decisions, including
those relating to sexual autonomy. The relevant observations
read thus:-
“297. What, then, does privacy postulate? Privacy
postulates the reservation of a private space for the
individual, described as the right to be let alone. The
concept is founded on the autonomy of the individual.
The ability of an individual to make choices lies at the
W.P. (C) No. 1000 of 2022 Page 54 of 126
core of the human personality. The notion of privacy
enables the individual to assert and control the human
element which is inseparable from the personality of
the individual. The inviolable nature of the human
personality is manifested in the ability to make
decisions on matters intimate to human life. The
autonomy of the individual is associated over matters
which can be kept private. These are concerns over
which there is a legitimate expectation of privacy. The
body and the mind are inseparable elements of the
human personality. The integrity of the body and the
sanctity of the mind can exist on the foundation that
each individual possesses an inalienable ability and
right to preserve a private space in which the human
personality can develop. Without the ability to make
choices, the inviolability of the personality would be in
doubt. Recognising a zone of privacy is but an
acknowledgment that each individual must be entitled
to chart and pursue the course of development of
personality. Hence privacy is a postulate of human
dignity itself. Thoughts and behavioural patterns which
are intimate to an individual are entitled to a zone of
privacy where one is free of social expectations. In that
zone of privacy, an individual is not judged by others.
Privacy enables each individual to t ake crucial
decisions which find expression in the human
personality. It enables individuals to preserve their
beliefs, thoughts, expressions, ideas, ideologies,
preferences and choices against societal demands of
homogeneity. Privacy is an intrinsic recognition of
heterogeneity, of the right of the individual to be
different and to stand against the tide of conformity in
creating a zone of solitude. Privacy protects the
individual from the searching glare of publicity in
matters which are personal to his or her life. Privacy
attaches to the person and not to the place where it is
associated. Privacy constitutes the foundation of all
liberty because it is in privacy that the individual can
decide how liberty is best exercised. Individual dignity
and privacy are inextricably linked in a pattern woven
W.P. (C) No. 1000 of 2022 Page 55 of 126
out of a thread of diversity into the fabric of a plural
culture.
298. Privacy of the individual is an essential aspect of
dignity. Dignity has both an intrinsic and instrumental
value. As an intrinsic value, human dignity is an
entitlement or a constitutionally protected interest in
itself. In its instrumental facet, dignity and freedom are
inseparably intertwined, each being a facilitative tool to
achieve the other. The ability of the individual to protect
a zone of privacy enables the realisation of the full
value of life and liberty. Liberty has a broader meaning
of which privacy is a subset. All liberties may not be
exercised in privacy. Yet others can be fulfilled only
within a private space. Privacy enables the individual
to retain the autonomy of the body and mind. The
autonomy of the individual is the ability to make
decisions on vital matters of concern to life. Privacy has
not been couched as an independent fundamental
right. But that does not detract from the constitutional
protection afforded to it, once the true nature of privacy
and its relationship with those fundamental rights
which are expressly protected is understood. Privacy
lies across the spectrum of protected freedoms. […]
Above all, the privacy of the individual recognises an
inviolable right to determine how freedom shall be
exercised. […] Read in conjunction with Article 21,
liberty enables the individual to have a choice of
preferences on various facets of life including what and
how one will eat, the way one will dress, the faith one
will espouse and a myriad other matters on which
autonomy and self-determination require a choice to be
made within the privacy of the mind. […] Dignity cannot
exist without privacy. Both reside within the
inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a
constitutional value which straddles across the
spectrum of fundamental rights and protects for the
individual a zone of choice and self-determination.”
W.P. (C) No. 1000 of 2022 Page 56 of 126
(Emphasis supplied)
80. In this regard, in Common Cause (supra), this Court held thus:-
“441. The protective mantle of privacy covers certain
decisions that fundamentally affect the human life
cycle. [ Richard Delgado, “Euthanasia Reconsidered—
The Choice of Death as an Aspect of the Right of
Privacy”, Arizona Law Review (1975), Vol. 17, at p.
474.] It protects the most personal and intimate
decisions of individuals that affect their life and
development. [Ibid.] Thus, choices and decisions on
matters such as procreation, contraception and
marriage have been held to be protected. While death
is an inevitable end in the trajectory of the cycle of
human life of individuals are often faced with choices
and decisions relating to death. Decisions relating to
death, like those relating to birth, sex, and marriage,
are protected by the Constitution by virtue of the right
of privacy. The right to privacy resides in the right to
liberty and in the respect of autonomy . [ T.L.
Beauchamp, “The Right to Privacy and the Right to
Die”, Social Philosophy and Policy (2000), Vol. 17, at p.
276.] The right to privacy protects autonomy in making
decisions related to the intimate domain of death as
well as bodily integrity.[…]”
(Emphasis supplied)
81. As explained in the aforementioned paragraphs of this
judgment, the right to equality does not merely mandate that
the State refrains from discrimination but also obliges it to adopt
positive and affirmative measures aimed at remedying existing
structural disadvantage. Likewise, in Puttaswamy (supra), this
Court recognized that privacy has both positive and negative
dimensions. In its positive aspect, it imposes an obligation on
the State to take all necessary measures to protect the privacy
of the individual.
W.P. (C) No. 1000 of 2022 Page 57 of 126
82. What emerges from the foregoing discussion is that a girl child’s
expectation to manage her menstruation in privacy with dignity
is legitimate. In such circumstances, the lack of resources
cannot be permitted to govern her autonomy over her own body.
There is no doubt that she possesses the right to decide how and
where menstrual care is carried out, and the liberty to exercise
such care, free from coercive practices and social restrictions.
83. It is apposite to understand that m enstrual hygiene
management is not confined to sanitation, it includes bodily
autonomy and decisional freedom . The denial of adequate
facilities, appropriate sanitary products, or privacy effectively
compels a girl child to manage her body in a manner dictated by
circumstance rather than choice. Autonomy can be
meaningfully exercised only when girl children have access to
functional toilets, adequate menstrual products, availability of
water, and hygienic mechanisms for disposal.
iii. The right to menstrual health as a facet of the right to
life
84. The aforesaid may be looked at from one another angle. Article
21 recognizes the right to health. Health is defined as a state of
physical, mental, and social well-being and not merely the
absence of disease or infirmity. By necessary implication, this
right will impliedly extend to the right of a menstruating girl
child to access MHM practices to attain the highest standard of
W.P. (C) No. 1000 of 2022 Page 58 of 126
sexual and reproductive health. They are intertwined in such a
manner that one cannot survive without the other. The right to
reproductive health implies that an adolescent female student
should have access to safe, effective, and affordable MHM
measures.
85. There is a legion of decisions of this Court which lays down that
the right to health is an integral facet of the meaningful right to
life under Article 21 of the Constitution, and obligations of the
State in this regard. We need not discuss all the decisions, but
rather intend to refer and rely upon only a few of them.
86. We may refer with profit the decision in Lakshmi Kant Pandey
v. Union of India, reported in (1984) 2 SCC 244, wherein this
Court highlighted the centrality of children to the nation’s
growth and development. It was observed that the framers of the
Constitution were conscious of the inherent vulnerability of
children and hence, reflected in Article 15(3). The relevant
observations read thus:-
“6. It is obvious that in a civilized society the
importance of child welfare cannot be over -
emphasized, because the welfare of the entire
community, its growth and development, depend on the
health and well-being of its children. Children are a
“supremely important national asset” and the future
well-being of the nation depends on how its children
grow and develop. The great poet Milton put it
admirably when he said: “Child shows the man as
morning shows the day” and the Study Team on Social
Welfare said much to the same effect when it observed
that “the physical and mental health of the nation is
determined largely by the manner in which it is shaped
W.P. (C) No. 1000 of 2022 Page 59 of 126
in the early stages”. The child is a soul with a being, a
nature and capacities of its own, who must be helped
to find them, to grow into their maturity, into fullness of
physical and vital energy and the utmost breath, depth
and height of its emotional, intellectual and spiritual
being; otherwise there cannot be a healthy growth of
the nation. Now obviously children need special
protection because of their tender age and physique,
mental immaturity and incapacity to look after
themselves. That is why there is a growing realisation
in every part of the globe that children must be brought
up in an atmosphere of love and affection and under
the tender care and attention of parents so that they
may be able to attain full emotional, intellectual and
spiritual stability and maturity and acquire self-
confidence and self-respect and a balanced view of life
with full appreciation and realisation of the role which
they have to play in the nation building process without
which the nation cannot develop and attain real
prosperity because a large segment of the society
would then be left out of the developmental process. In
India this consciousness is reflected in the provisions
enacted in the Constitution. clause (3) of Article 15
enables the State to make special provisions inter alia
for children and Article 24 provides that no child below
the age of fourteen years shall be employed to work in
any factory or mine or engaged in any other hazardous
employment. Clauses (e) and (f) of Article 39 provide
that the State shall direct its policy towards securing
inter alia that the tender age of children is not abused,
that citizens are not forced by economic necessity to
enter avocations unsuited to their age and strength and
that children are given facility to develop in a healthy
manner and in conditions of freedom and dignity and
that childhood and youth are protected against
exploitation and against moral and material
abandonment. These constitutional provisions reflect
the great anxiety of the constitution makers to protect
and safeguard the interest and welfare of children in
the country. The Government of India has also in
pursuance of these constitutional provisions evolved a
W.P. (C) No. 1000 of 2022 Page 60 of 126
National Policy for the Welfare of Children. This Policy
starts with a goal-oriented preambulatory introduction:
“The nation's children are a supremely important
asset. Their nurture and solicitude are our
responsibility. Children's programme should find a
prominent part in our national plans for the
development of human resources, so that our
children grow up to become robus t citizens,
physically fit, mentally alert and morally healthy,
endowed with the skills and motivations needed by
society. Equal opportunities for development to all
children during the period of growth should be our
aim, for this would serve our larger purpose of
reducing inequality and ensuring social justice.”
The National Policy sets out the measures which the
Government of India proposes to adopt towards
attainment of the objectives set out in the
preambulatory introduction and they include measures
designed to protect children against neglect, cruelty
and exploitation and to strengthen family ties “so that
full potentialities of growth of children are realised
within the normal family neighbourhood and
community environment”. The National Policy also lays
down priority in programme formation and it gives
fairly high priority to maintenance, education and
training of orphan and destitute children. There is also
provision made in the National Policy for constitution of
a National Children's Board and pursuant to this
provision, the Government of India has constituted the
National Children's Board with the Prime Minister as
the chair-person. It is the function of the National
Children's Board to provide a focus for planning and
review and proper co-ordination of the multiplicity of
services striving to meet the needs of children and to
ensure at different levels continuous planning, review
and co-ordination of all the essential services. The
National Policy also stresses the vital role which the
voluntary organisations have to play in the field of
education, health, recreation and social welfare
services for children and declares that it shall be the
W.P. (C) No. 1000 of 2022 Page 61 of 126
endeavour of State to encourage and strengthen such
voluntary organisations.”
(Emphasis supplied)
87. In a petition filed under Article 32, issues arising from
occupational health hazards and diseases affecting workmen
employed in asbestos industries fell for consideration before this
Court in Consumer Education & Research Centre v. Union
of India, reported in (1995) 3 SCC 42. A three Judge Bench of
this Court held that the right to health of a workman is an
integral facet of the meaningful right to life. It encompasses not
only healthy existence but also a robust and healthy lifestyle.
This Court held that the right to health and medical care is a
fundamental right under Article 21 read with Articles 39(e), 41
and 43 of the Constitution respectively, insofar as the life of the
workman is considered to make it meaningful and dignified. It
was further held that the State is under an obligation to promote
health of a workman. The relevant observations read thus:-
“20. Article 1 of the Universal Declaration of Human
Rights asserts human sensitivity and moral
responsibility of every State that “all human beings are
born free and equal in dignity and rights. They are
endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.” The
Charter of the United Nations thus reinforces the faith
in fundamental human rights and in the dignity and
worth of human person envisaged in the Directive
Principles of State Policy as part of the Constitution. The
jurisprudence of personhood or philosophy of the right
to life envisaged under Article 21, enlarges its sweep to
encompass human personality in its full blossom with
invigorated health which is a wealth to the workman to
earn his livelihood, to sustain the dignity of person and
to live a life with dignity and equality.
W.P. (C) No. 1000 of 2022 Page 62 of 126
xxx
23. In Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494 :
1979 SCC (Cri) 155] , considering the effect of solitary
confinement of a prisoner sentenced to death and the
meaning of the word ‘life’ enshrined under Article 21,
the Constitution Bench held that the quality of life
covered by Article 21 is something more than the
dynamic meaning attached to life and liberty. The same
view was reiterated in Board of Trustees of the Port of
Bombay v. D.R. Nadkarni [(1983) 1 SCC 124 : 1983
SCC (L&S) 61] , Vikram Deo Singh Tomar v. State of
Bihar [1988 Supp SCC 734 : 1989 SCC (Cri) 66]
, Ramsharan Autyanuprasi v. Union of India [1989
Supp (1) SCC 251] . In Charles Sobraj v. Supdt., Central
Jail, Tihar [(1978) 4 SCC 104 : 1978 SCC (Cri) 542 : AIR
1978 SC 1514] this Court held that the right to life
includes right to human dignity. The right against
torture, cruel or unusual punishment or degraded
treatment was held to violate the right to life.
In Bandhua Mukti Morcha v. Union of India [(1984) 3
SCC 161 : 1984 SCC (L&S) 389] at pp. 183 -84 this
Court held that the right to live with human dignity,
enshrined in Article 21, derives its life-breath from the
Directive Principles of State Policy and particularly
clauses (e) and (f) of Article 39 and Articles 41 and 42.
In C.E.S.C. Ltd. v. Subhash Chandra Bose [(1992) 1
SCC 441 : 1992 SCC (L&S) 313] this Court considered
the gamut of operational efficacy of human rights and
constitutional rights, the right to medical aid and health
and held that the right to social justice are fundamental
rights. Right to free legal aid to the poor and indigent
worker was held to be a fundamental right in Khatri
(II) v. State of Bihar [(1981) 1 SCC 627 : 1981 SCC (Cri)
228] . Right to education was held to be a fundamental
right vide Maharashtra State Board of Secondary &
Higher Secondary Education v. K.S. Gandhi [(1991) 2
SCC 716] and Unni Krishnan, J.P. v. State of
A.P. [(1993) 1 SCC 645]
24. The right to health to a worker is an integral facet
of meaningful right to life, to have not only a meaningful
W.P. (C) No. 1000 of 2022 Page 63 of 126
existence but also robust health and vigour without
which worker would lead life of misery. Lack of health
denudes him of his livelihood. Compelling economic
necessity to work in an industry exposed to health
hazards due to indigence to bread-winning for himself
and his dependants, should not be at the cost of the
health and vigour of the workman. Facilities and
opportunities, as enjoined in Article 38, should be
provided to protect the health of the workman.
Provision for medical test and treatment invigorates the
health of the worker for higher production or efficient
service. Continued treatment, while in service or after
retirement is a moral, legal and constitutional
concomitant duty of the employer and the State.
Therefore, it must be held that the right to health and
medical care is a fundamental right under Article 21
read with Articles 39(e), 41 and 43 of the Constitution
and make the life of the workman meaningful and
purposeful with dignity of person. Right to life includes
protection of the health and strength of the worker and
is a minimum requirement to enable a person to live
with human dignity. The State, be it Union or State
Government or an industry, public or private, is
enjoined to take all such actions which will promote
health, strength and vigour of the workman during the
period of employment and leisure and health even after
retirement as basic essentials to live the life with health
and happiness. The health and strength of the worker
is an integral facet of right to life. Denial thereof
denudes the workman the finer facets of life violating
Article 21. The right to human dignity, development of
personality, social protection, right to rest and leisure
are fundamental human rights to a workman assured
by the Charter of Human Rights, in the Preamble and
Articles 38 and 39 of the Constitution. Facilities for
medical care and health to prevent sickness ensures
stable manpower for economic development and would
generate devotion to duty and dedication to give the
workers' best physically as well as mentally in
production of goods or services. Health of the worker
enables him to enjoy the fruits of his labour, keeping
W.P. (C) No. 1000 of 2022 Page 64 of 126
him physically fit and mentally alert for leading a
successful life, economically, socially and culturally.
Medical facilities to protect the health of the workers
are, therefore, the fundamental and human rights to
the workmen.
25. Therefore, we hold that right to health, medical aid
to protect the health and vigour of a worker while in
service or post-retirement is a fundamental right under
Article 21, read with Articles 39(e), 41, 43, 48-A and all
related articles and fundamental human rights to make
the life of the workman meaningful and purposeful with
dignity of person.”
(Emphasis supplied)
88. In Devika Biswas v. Union of India, reported in (2016) 10 SCC
726, a petition before this Court raised issues, inter alia,
regarding the conduct and management of sterilization
procedures, more particularly, the death occurring therefrom. In
this regard, the Court held that the right to reproductive health
encompasses the right to make all allied decisions and to attain
the highest standards of reproductive health. The relevant
observations read thus:-
“(i) Right to health
107. It is well established that the right to life under
Article 21 of the Constitution includes the right to lead
a dignified and meaningful life and the right to health
is an integral facet of this right. In CESC
Ltd. v. Subhash Chandra Bose [CESC Ltd. v. Subhash
Chandra Bose, (1992) 1 SCC 441 : 1992 SCC (L&S)
313] dealing with the right to health of workers, it was
noted that the right to health must be considered an
aspect of social justice informed by not only Article 21
of the Constitution, but also the Directive Principles of
State Policy and international covenants to which India
is a party. Similarly, the bare minimum obligations of
the State to ensure the preservation of the right to life
W.P. (C) No. 1000 of 2022 Page 65 of 126
and health were enunciated in Paschim Banga Khet
Mazdoor Samity v. State of W.B. [Paschim Banga Khet
Mazdoor Samity v. State of W.B., (1996) 4 SCC 37]
108. In Bandhua Mukti Mor cha v. Union of
India [Bandhua Mukti Morcha v. Union of India, (1984)
3 SCC 161 : 1984 SCC (L&S) 389] this Court underlined
the obligation of the State to ensure that the
fundamental rights of weaker sections of society are
not exploited owing to their position in society.
xxx
(ii) Right to reproductive health
110. Over time, there has been recognition of the need
to respect and protect the reproductive rights and
reproductive health of a person. Reproductive health
has been defined as “the capability to reproduce and
the freedom to make informed, free and responsible
decisions. It also includes access to a range of
reproductive health information, goods, facilities and
services to enable individuals to make informed, free
and responsible decisions about their reproductive
behaviour”. [ WHO, Sexual Health, Human Rights and
the Law (2015) cited from Committee on Economic,
Social and Cultural Rights, General Comment No. 22
(2016) on the Right to Sexual and Reproductive Health
(Article 12 of the International Covenant on Economic,
Social and Cultural Rights), 2-5-2016, E/C.12/GC/22
at para 6 <https://documents -dds-
ny.un.org/doc/UNDOC/GEN/G16/089/32/PDF/G16
08932.pdf?OpenElement>.] The Committee on
Economic, Social and Cultural Rights in General
Comment No. 22 on the Right to Sexual and
Reproductive Health under Article 12 of the
International Covenant on Economic, Social and
Cultural Rights [ India ratified this Convention on 10-4-
1979.] observed that “The right to sexual and
reproductive health is an integral part of the right of
everyone to the highest attainable physical and mental
health.” [ General Comment No. 22 (2016) on the Right
to Sexual and Reproductive Health (Article 12 of the
International Covenant on Economic, Social and
W.P. (C) No. 1000 of 2022 Page 66 of 126
Cultural Rights), E/C.12/GC/22 <https://documents-
dds-
ny.un.org/doc/UNDOC/GEN/G16/089/32/PDF/G16
08932.pdf?OpenElement>.]
111. This Court recognised reproductive rights as an
aspect of personal liberty under Article 21 of the
Constitution in Suchita Srivastava v. Chandigarh
Admn. [Suchita Srivastava v. Chandigarh Admn.,
(2009) 9 SCC 1 : (2009) 3 SCC (Civ) 570] The freedom
to exercise these reproductive rights would include the
right to make a choice regarding sterilisation on the
basis of informed consent and free from any form of
coercion.[…]
112. It is necessary to reconsider the impact that
policies such as the setting of informal targets and
provision of incentives by the Government can have on
the reproductive freedoms of the most vulnerable
groups of society whose economic and social conditions
leave them with no meaningful choice in the matter and
also render them the easiest targets of coercion. The
cases of Paschim Banga Khet Mazdoor
Samity [Paschim Banga Khet Mazdoor Samity v. State
of W.B., (1996) 4 SCC 37] and Bandhua Mukti
Morcha [Bandhua Mukti Morcha v. Union of India,
(1984) 3 SCC 161 : 1984 SCC (L&S) 389] have
emphasised that the State's obligation in respect of
fundamental rights must extend to ensuring that the
rights of the weaker sections of the community are not
exploited by virtue of their position. Thus, the policies
of the Government must not mirror the systemic
discrimination prevalent in society but must be aimed
at remedying this discrimination and ensuring
substantive equality. In this regard, it is necessary that
the policies and incentive schemes are made gender
neutral and the unnecessary focus on female
sterilisation is discontinued.”
(Emphasis supplied)
W.P. (C) No. 1000 of 2022 Page 67 of 126
89. The views expressed by this Court in Independent Thought v.
Union of India, reported in (2017) 10 SCC 800 , are
commendable. It held that the concept of good health is not
limited to physical well-being but rather a girl child’s right to
grow into a healthy woman, to exercise choice, and to pursue
education. It was observed that when a girl child is deprived of
the opportunity to study further, her right to live a dignified life
as a woman is also violated. The Court further emphasized that
a girl child must not only be afforded equality of opportunity
with a male child, but must also be provided with additional
support, so as to enable her empowerment physically, mentally,
and economically. The relevant observations read as under:-
“179. There can be no dispute that every citizen of this
country has the right to get good healthcare. Every
citizen can expect that the State shall make best
endeavours for ensuring that the health of the citizen is
not adversely affected. By now it is well settled by a
catena of judgments of this Court that the “right to life”
envisaged in Article 21 of the Constitution of India is
not merely a right to live an animal existence. This
Court has repeatedly held that right to life means a
right to live with human dignity. Life should be
meaningful and worth living. Life has many shades.
Good health is the raison d'être of a good life. Without
good health there cannot be a good life. In the case of a
minor girl child good health would mean her right to
develop as a healthy woman. This not only requires
good physical health but also good mental health. The
girl child must be encouraged to bloom into a healthy
woman. The girl child must not be deprived of her right
of choice. The girl child must not be deprived of her right
to study further. When the girl child is deprived of her
right to study further, she is actually deprived of her
right to develop into a mature woman, who can earn
independently and live as a self-sufficient independent
W.P. (C) No. 1000 of 2022 Page 68 of 126
woman. In the modern age, when we talk of gender
equality, the girl child must be given equal opportunity
to develop like a male child. In fact, in my view, because
of the patriarchal nature of our society, some extra
benefit must be showered upon the girl child to ensure
that she is not deprived of her right to life, which would
include her right to grow and develop physically,
mentally and economically as an independent self-
sufficient female adult.”
(Emphasis supplied)
90. A three Judge Bench of this Court in X2 v. State (NCT of Delhi),
reported in (2023) 9 SCC 433 , wherein one of us, J.B.
Pardiwala, J., was part of the Bench, held that the right to decide
on all matters relating to sexual and reproductive health is one
flower in the bouquet of reproductive rights. It held that
reproductive rights include the right to access education and
information about sexual health. The relevant observations read
thus:-
“101. The ambit of reproductive rights is not restricted
to the right of women to have or not have children. It
also includes the constellation of freedoms and
entitlements that enable a woman to decide freely on
all matters relating to her sexual and reproductive
health. Reproductive rights include the right to access
education and information about contraception and
sexual health, the right to decide whether and what
type of contraceptives to use, the right to choose
whether and when to have children, the right to choose
the number of children, the right to access safe and
legal abortions, and the right to reproductive
healthcare. Women must also have the autonomy to
make decisions concerning these rights, free from
coercion or violence.”
(Emphasis supplied)
W.P. (C) No. 1000 of 2022 Page 69 of 126
91. It is limpid that when a girl child cannot access menstrual
absorbents, she may resort to natural materials, newspaper,
cloth, tissue, cotton wool, or any other unhygienic absorbent. In
case of a lack of adequate clean water and soap, she may also
struggle to properly clean and dry herself. It is not unknown that
poor menstrual hygiene may cause reproductive tract infections
such as bacterial vaginosis, which may in turn lead to
infertility.
14
92. Lack of knowledge about menstruation may lead to unhygienic
and negative practices. This lack of body literacy contributes to
a feeling of lack of bodily autonomy, more particularly, with
regards to reproductive choices.
93. The above conspectus of cases reveals that the State bears a
positive obligation under Article 21 to protect the right to health,
more particularly, the menstrual health of girl children. The
State is required to undertake effective measures to ensure the
availability of, and enhance access to MHM products. We say so
because the lack of access to such products impedes the
physical well-being, dignity, and overall development of
menstruating girl children.
94. It is an admitted position that the lack of access to MHM violates
the right to reproductive health, as it compels girl children to
14 Belen Torondel, Shalini Sinha, et.al., “Association between Unhygienic Menstrual
Management Practices and Prevalence of Lower Reproductive Tract Infections: A Hospital-
Based Cross-Sectional Study in Odisha, India” 18 BMC Infectious Diseases 473 (2018),
available at: https://pubmed.ncbi.nlm.nih.gov/30241498/ .
W.P. (C) No. 1000 of 2022 Page 70 of 126
resort to unhygienic alternatives such as rags or cloth, or use of
menstrual absorbents for prolonged periods, all of which have
demonstrably adverse consequences for their health. In schools
where there are no separate washrooms for girl students, they
would have to use male washrooms or the one which is used by
all the students, where they are prone to harassment or sexual
assault.
95. In such circumstances referred to above, it is the duty of the
State to ensure the availability of MHM measures flows from the
positive obligation embodied in Article 15(3) of the Constitution.
The Constitution expressly contemplates discrimination in
favour of women and children , having due regard to their
vulnerability, in order to safeguard their welfare and interests.
This constitutional intent is also reflected in Articles 24 and
39(e) and (f) of the Constitution, respectively.
15
96. It would be worthwhile to refer to the observations made by this
Court in State of A.P. v. P.B. Vijaykumar, reported in (1995)
4 SCC 520, wherein this Court had the occasion to interpret the
expression “any special provision for women” in Article 15(3) of
the Constitution. In such circumstances, it was observed that
the object of the clause is to strengthen and improve the status
of women. The Court held that the special provision referred in
Article 15(3) could be either in the form of affirmative action or
reservation.
15 Society For Enlightenment & Voluntary Action v. Union of India, 2024 SCC OnLine SC 2922;
Maniben Maganbhai Bhariya v. Distt. Development Officer, Dahod, (2022) 16 SCC 343.
W.P. (C) No. 1000 of 2022 Page 71 of 126
“7. The insertion of clause (3) of Article 15 in relation to
women is a recognition of the fact that for centuries,
women of this country hav e been socially and
economically handicapped. As a result, they are unable
to participate in the socio-economic activities of the
nation on a footing of equality. It is in order to eliminate
this socio-economic backwardness of women and to
empower them in a manner that would bring about
effective equality between men and women that Article
15(3) is placed in Article 15. Its object is to strengthen
and improve the status of women.[…]
8. What then is meant by “any special provision for
women” in Article 15(3)? This “special provision”, which
the State may make to improve women's participation
in all activities under the supervision and control of the
State can be in the form of either affirmative action or
reservation. It is interesting to note that the same
phraseology finds a place in Article 15(4) which deals
with any special provision for the advancement of any
socially or educationally backward class of citizens or
Scheduled Castes or Scheduled Tribes.[…]
This Court has, therefore, clearly considered the scope
of Article 15(4) as wider than Article 16(4) covering
within it several kinds of positive action programmes in
addition to reservations. It has, however, added a word
of caution by reiterating M.R. Balaji [1963 Supp 1 SCR
439 : AIR 1963 SC 649] to the effect that a special
provision contemplated by Article 15(4) like reservation
of posts and appointments contemplated by Article
16(4), must be within reasonable limits. These limits of
reservation have been broadly fixed at 50% at the
maximum. The same reasoning would apply to Article
15(3) which is worded similarly.
(Emphasis supplied)
97. The State’s obligation is heightened insofar as a girl child
belonging to economically weaker sections is concerned. We say
so because such students are placed in a position of coalesced
W.P. (C) No. 1000 of 2022 Page 72 of 126
vulnerability. The economic burden of sanitary products
compounds the existing disadvantage of, first, being a girl in a
structurally unequal society; secondly, having a biological
process that requires management; and thirdly, lacking the
financial means to manage that process in a safe and hygienic
manner.
98. Furthermore, to secure the right to health is not merely a right
enshrined under Article 21 but also a duty on the State under
Article 47 of the Constitution. Article 47 enjoins the State to
improve public health as its primary duty. No doubt the
Government is rendering this obligation by providing MHM
measures but in order to make it meaningful, it has to be reach
of the beneficiaries. Thus, it is only then the objectives of the
State can be realized. As is always said, the rights conferred on
citizens and non-citizens are not merely individual or personal
rights. They have a large social and political content, because
the objectives of the Constitution cannot be otherwise realized.
16
D. The right to participation and the equality of opportunity
respectively as constitutional guarantees under Article
14
99. The opening declaration of the Constitution, “We, the People”,
illustrates that the Constitution and its principles thrive on
participation. Equality is not confined to the recognition of
individual dignity, it encompasses the assurance of equal
16 M. Nagaraj v. Union of India, (2006) 8 SCC 212.
W.P. (C) No. 1000 of 2022 Page 73 of 126
opportunity for every individual to advance their human
potential and pursue their social, economic, and legal interests.
i. Lack of menstrual hygiene measures as a barrier in
exercising the right to participate in school
100. The right to equality includes, or rather is expressed through the
right to be able to participate on equal terms in community and
society. Substantive equality requires that voice an d
participation is enhanced in order to counter exclusion. We say
so because providing equal opportunities equalizes the starting
point so that all participants can compete on the same terms.
As a sequitur, deprivation of opportunities to pursue one’s
valued choices puts one at a disadvantageous position. Thus,
without affording participation on equal footing, equality would
be nothing more than lip service.
101. Equality demands that it is not just recognized but reverberated
throughout society. Articles 15 and 16 of the Constitution
respectively constitute a substantive framework of equality that
goes beyond formal non-discrimination. It seeks to ensure
meaningful participation of disadvantaged and marginalized
communities in social, educational, and public life.
102. In the aforesaid context, the Constitution recognizes that
entrenched disadvantage cannot be dismantled by mere
neutrality on the part of the State. Hence, it imposed a positive
constitutional duty upon the State to adopt affirmative
W.P. (C) No. 1000 of 2022 Page 74 of 126
measures aimed at redressing inequalities. Articles 14, 15 and
16 respectively reflect the constitutional commitment to uplift
those placed at systemic disadvantage and to secure their
effective participation on equal terms in the nation ’s
opportunities and institutions.
103. Over the years, this Court has recognized the right to participate
as an essential expression of the right to equality. A Constitution
Bench in Navtej Singh Johar v. Union of India, reported in
(2018) 10 SCC 1, held Section 377 of the Indian Penal Code,
1860, unconstitutional to the extent it was discriminatory, being
premised on stereotypes and stigma about genders. It denied full
and equal participation of certain individuals as citizens and
equal enjoyment of life. This Court held that equitable justice
can be achieved only by “inclusion of all and exclusion of none”.
It was noted that the ideals of the Constitution can be achieved
only when each and every individual is able to participate in all
walks of life. The relevant observations read thus:-
“264. The very existence of Section 377 IPC
criminalising transgenders casts a great stigma on an
already oppressed and discriminated class of people.
This stigma, oppression and prejudice has to be
eradicated and the transgenders have to progress from
their narrow claustrophobic spaces of mere survival in
hiding with their isolation and fears to enjoying the
richness of living out of the shadows with fu ll
realisation of their potential and equal opportunities in
all walks of life. The ideals and objectives enshrined in
our benevolent Constitution can be achieved only when
each and every individual is empowered and enabled
to participate in the social mainstream and in the
journey towards achieving equality in all spheres,
W.P. (C) No. 1000 of 2022 Page 75 of 126
equality of opportunities in all walks of life, equal
freedoms and rights and, above all, equitable justice.
This can be achieved only by inclusion of all and
exclusion of none from the mainstream.
xxx
602. The flourishing of a constitutional order requires
not only the institutional leadership of constitutional
courts, but also the responsive participation of the
citizenry. [ Marc Galanter, “Fifty Years on”, in B.N.
Kirpal et al, Supreme but Not Infallible : Essays in
Honour of the Supreme Court of India, Oxford
University Press (2000), at p. 57.] Constitutional
morality is a pursuit of this responsive participation.
The Supreme Court cannot afford to denude itself of its
leadership as an institution in expounding
constitutional values. Any loss of its authority will
imperil democracy itself.”
(Emphasis supplied)
104. In Jane Kaushik (supra), this Court held that elimination of
structural and institutional discrimination is necessary for
participation in society. The decision in Jane Kaushik (supra)
relied on Vikash Kumar v. UPSC, reported in (2021) 5 SCC
370, to highlight that reasonable accommodation flows from
positive obligations on State to facilitate participation of persons
with disability in society. The Court held that Articles 14, 15,
and 16 of the Constitution respectively provide a framework for
equality that translates into participation. Further, it was noted
that the right to participate traces itself to the right to freedom
of expression and the right to life, in order to make life
meaningful. The relevant observations read thus:-
“97. A fundamental requirement of substantive
equality is the elimination of structural and institutional
discrimination to achieve true participation in social
settings by the community being discriminated against.
W.P. (C) No. 1000 of 2022 Page 76 of 126
Articles 14, 15 and 16 of the Constitution respectively
provide a framework for equality that translates into
participation of communities situated at the fringes of
society and mandate that the constitutional vision of
inclusion of different and diverse voices be achieved.
Such a constitutional mandate flows not only from the
equality provisions contained in Articles 14, 15 and 16
respectively but also from the broader themes of
freedom of speech, expression and participation
enshrined in Article 19 along with the right to a
dignified social life contained in Article 21. The
fundamental right to equality, fundamental freedoms
and the right to life together ensure and aspire for
meaningful participation and expression of the
minorities.”
xxx
105. What is discernible from the aforesaid judgments
is that though the courts have not expressly carved out
a right to public participation, yet they have
emphasized on the constitutional value of the same by
associating it with the right to freedom of expression
and the right to life. In our considered opinion,
participation in public life is an important facet of the
right to equality as well. The Constitution considers all
the people to be equal citizens. The ability and choice
to participate in public and social life without any fear
of discrimination and ridicule, is a reflection of the
same.
xxx
109. The aforesaid expositions leave no manner of
doubt in our minds that the right to participation is an
embodiment of the constitutional vision of equal
opportunity and dignity for all. The said right finds its
roots in the right to freedom of expression and is
shaped by the constitutional mandate of substantive
equality with the end goal of affording the marginalized
sections of the society a meaningful life in terms of
Article 21 of the Constitution.”
(Emphasis supplied)
W.P. (C) No. 1000 of 2022 Page 77 of 126
105. We may also look into the decision in Nipun Malhotra v. Sony
Pictures Films India (P) Ltd., reported in 2024 SCC OnLine
SC 1639, wherein this Court recognized that stereotype
exacerbates systemic inequalities, and inhibits dignified
participation in education or employment. What has been
conveyed in so many words by this Court is that stereotype stem
from a lack of familiarity, and this lack arises due to inadequate
representation and participation. Again, in Sukanya Shantha
v. Union of India, reported in (2024) 15 SCC 535, this Court
reiterated that meaningful participation in social life is
obstructed when treatment is based on stereotype.
106. The aforesaid expositions leave no manner of doubt in our minds
that the right to participation recognizes that individuals are
inherently social, and for a dignified life, one shall have the
ability to participate on equal terms in community. Juxtaposing
this logic, the absence of access to education restricts an
individual from participating fully and effectively in democratic,
social, and economic life.
107. In a study
17 conducted among students of classes sixth to eighth
belonging to low-income households, the participants were given
an opportunity to ask questions relating to menstruation. The
study found that 18% of the participants raised questions
concerning menstrual symptoms, while more than 17% of the
17 Vikas Chothe, Jagdish Khubchandani, et.al., “Students’ Perceptions and Doubts About
Menstruation in Developing Countries: A Case Study From India” 15 Health Promotion
Practice 319-326 (2014).
W.P. (C) No. 1000 of 2022 Page 78 of 126
questions pertained to myths and taboos surrounding
menstruation. These questions were related to restrictions on
bathing, touching objects, leaving the house, visiting temples,
and performing daily chores during menstruation. The students
were seeking to understand the rationale behind such
restrictions.
108. The researchers observed that adolescent girls lacked adequate
awareness regarding menstruation, including the proper use
and disposal of sanitary pads. The study revealed that of all the
questions asked concerning the treatment of menstrual
abnormalities, only one related to seeking medical assistance
from a professional, while the remaining questions reflected
reliance on home-based remedies. It concluded that illiteracy
together with poverty was as a key factor contributing to taboos,
unhealthy and harmful practices, leading to adverse health
outcomes.
109. In our considered opinion, the study demonstrates a serious
deficit in menstrual health knowledge among adolescent girls,
particularly those from economically weaker section s. The
prevalence and reliance on myths and taboos reflects not merely
lack of information but the persistence of structural barriers
which arise from stigma and stereotype.
110. The lack of MHM measures acts as a significant barrier to girls’
participation in school. Even within educational institutions,
menstruation is beset by stigma, stereotype, and neglect. When
W.P. (C) No. 1000 of 2022 Page 79 of 126
schools fail to provide clean washrooms, required menstrual
absorbents, safe disposal mechanisms, girl children would be
compelled to either absent themselves or drop-out from school.
In both scenarios, her right to participate in schooling, sports,
extra-curricular activities are jeopardized.
111. As a result, lack of these measures directly impairs her
participation in school. Such conditions ultimately affect her
regular attendance and equal involvement in schooling.
Needless to say, participation in education is not limited to
physical presence in the classroom, it encompasses the ability
to attend school, more particularly, having the choice to attend
the school, concentrate during lessons, and take part in
academic and co-curricular activities on an equal footing with
peers.
112. In the absence of clean and functional washrooms, girl children
would be unable to manage menstruation with privacy and
dignity in school. This will put her in constant anxiety of leakage,
staining clothes, and exposure to embarrassment. It is this fear
which discourages her from attending school altogether .
Similarly, lack of access to menstrual absorbents affect s
participation by making it practically unfeasible for girls to
remain in school for long hours or actively participate.
113. Further, when schools fail in providing appropriate disposal
facilities, girls would be forced to carry used menstrual products
with them, or dispose of them in unsafe or undignified ways. The
W.P. (C) No. 1000 of 2022 Page 80 of 126
fear of being ridiculed lingers and creates a disincentive to
attend school during this time. The lack of awareness and
education regarding menstruation exacerbates these barriers by
fostering stigma and silence within school spaces . Where
menstruation is not openly acknowledged or discussed, girls are
less likely to seek support from teachers or peers.
114. Awareness not only reduces the act of teasing, passing
insensitive remarks, or promoting stereotypical practices but
also prevents self-exclusion by girls from schooling. This way,
the participation becomes continuous and equal rather than
conditional and irregular. These structural deficiencies are a
cause for inconvenience to menstruating girl children. Moreover,
it curtails their participation in school and defeats the human
right of education, which includes inclusive education.
ii. Lack of menstrual hygiene management measures
impede the equality of opportunity
115. It is in the same breath that we say that equality of opportunity
entails removal of obstacles that impede the advancement of
disadvantaged, more particularly in the present case, the
women. The concept of substantive equality seeks to work on
the factors causing discrimination. It intends to provide uniform
opportunities to develop the desired skills to stand on an equal
footing. It aims to equalize the starting point rather than the end
W.P. (C) No. 1000 of 2022 Page 81 of 126
result.
18 To illustrate, when schools evaluate performance
through written examinations, equality of opportunity would
ensure that students with visual or learning disabilities are
provided appropriate assistive devices, scribes, or additional
time.
116. What is discernable from the aforesaid is that equality of
opportunity necessitates that everyone has a fair chance to
acquire the skills necessary for accessing benefits. This can be
achieved only when structural impediments in acquiring such
skills are eliminated. Equality of opportunity would help persons
at a disadvantageous position to overcome structural
discrimination. When equal opportunities are given, we
recognize her right to choose and capability to choose. Hence,
affording equal opportunity is an expression of treating a girl
child equally.
117. The idea behind equal opportunities is to stimulate her
potential, and provide her with more choice and space to
develop. The principle of equality of opportunity is an essential
part of social justice. In a monograph on social justice, equal
opportunity has been categorized as thus:-
19
i. First, having an equal start, i.e., those with identical
potential should be given the opportunity to survive and
develop. In this regard, John Rawls study states that
18 Sandra Fredman, “Substantive Equality Revisited” 14 International Journal of
Constitutional Law 723 (2016).
19 Zhongmin Wu, Why is Social Justice Possible? Social Justice Issues during China’s Period
of Transition (Springer Nature, Singapore, 2024).
W.P. (C) No. 1000 of 2022 Page 82 of 126
expectations of those with identical abilities shall not be
influenced by one’s social class.
ii. Secondly, realizing equal opportunities, i.e., it is not
sufficient to acknowledge that the starting point shall be
same; the process of being able to access the opportunities
is equally important. In this regard, any impediment that
might interfere with the process should be eliminated.
iii. Thirdly, recognizing and respecting people’s potential, i.e.,
natural differences must be respected as normal and
reasonable. This seeks to addresses social and historical
constraints.
118. We may aptly refer to the decision in State of Karnataka v.
Appa Balu Ingale, reported in 1995 Supp (4) SCC 469 ,
wherein this Court observed that dignity of a person is
acknowledged by providing them equality of status and
opportunity. It recognized that denial of equal opportunities in
any aspect of life is denial of equal status and is reflective of
inhibiting equal participation. The relevant observations read
thus:-
“10. The Preamble of the Indian Constitution imbued its
people with pride of being its citizens in an integrated
Bharat with fraternity, dignity of person and equality
of status. But casteism; sectional and religious
diversities and parochialism are disintegrating the
people. Social stratification needs restructure.
Democracy meant fundamenta l changes in the social
and economic life of the people, absence of inequitous
conditions, inequalities and discrimination. There can
be no dignity of person without equality of status and
opportunity. Denial of equal opportunities in any walk
W.P. (C) No. 1000 of 2022 Page 83 of 126
of social life is denial of equal status and amounts to
preventing equal participation in social intercourse and
deprivation of equal access to social means. Human
relations based on equality, equal protection of laws
without discrimination would alone generate amity and
affinity among the heterogenous sections of the Indian
society and a feeling of equal participants in the
democratic polity. Adoption of new ethos and
environment are, therefore, imperatives to transform
the diffracted society into high degree of mobility for
establishing an egalitarian social order in Secular
Socialist Democratic Bharat Republic.[…]”
(Emphasis supplied)
119. The absence of MHM measures does not merely disrupt a girl
child’s presence in school. It impairs her access to opportunities
both during schooling and later in life. As stated aforesaid,
equality of opportunity is concerned with conditions that enable
an individual to participate and compete on equal terms. When
such conditions are absent, naturally, an individual is put at a
disadvantageous position.
120. The absence of MHM measures at school would lead to recurrent
absenteeism which would result in gap in learning. Over the
period of time, these gaps would translate into lower academic
performance, and reduced participation in classroom.
Opportunities for academic development, such as participation
in competitions, sports or leadership roles, inevitably get
disturbed.
W.P. (C) No. 1000 of 2022 Page 84 of 126
121. The resultant effect of frequent and prolonged absenteeism is
dropping out. At this age, dropping out forecloses future
opportunities, eventually limiting access to higher education,
employment, social participations, to name a few. In other
words, the consequence is not merely economic deprivation, but
narrowing life chances as well. Thus, the impairment of
educational opportunity during formative years has a cascading
effect later in life. Furthermore, it restricts a woman’s ability to
make informed choices regarding health, family, and civic
participation.
a. Accessibility of menstrual hygiene management measures
– a step towards Social Justice
122. The aforesaid may be looked at from one another angle. Social
justice seeks not merely absence of discrimination, but the
creation of conditions through which substantive equality can
be attained. These conditions are opportunities, more
particularly, access to education for those who have been
disadvantaged due to inherent factors.
123. Social justice would be achieved through continuous removal of
injustice and inequity in society. It requires efforts to correct
structural and historical disadvantages that prevent
participating on equal terms. Any effort towards social justice is
an act towards inclusion. The acts by the State adopting
affirmative measures, namely, welfare schemes, beneficial
legislations, are attributable to promoting social justice. Thus,
W.P. (C) No. 1000 of 2022 Page 85 of 126
social justice is not a static idea but a continuous process
towards achieving a just and equitable society.
124. The concept of social justice requires that everyone’s life to be
meaningful and livable with human dignity . This Court in
Consumer Education (supra), has recognized social justice to
be species of broad idea of justice. In other words, social justice
mitigates inherent disadvantage s and elevates the
disadvantaged to the level of equality to live a life with dignity.
The observations read thus:-
“18. The Preamble and Article 38 of the Constitution of
India — the supreme law, envisions social justice as its
arch to ensure life to be meaningful and liveable with
human dignity.[…]The Constitution commands justice,
liberty, equality and fraternity as supreme values to
usher in the egalitarian social, economic and political
democracy. Social justice, equality and dignity of
person are cornerstones of social democracy. The
concept “social justice”, which the Constitution of India
engrafted, consists of diverse principles essential for
the orderly growth and development of personality of
every citizen. “Social justice” is thus an integral part of
‘justice’ in the generic sense. Justice is the genus, of
which social justice is one of its species. Social justice
is a dynamic device to mitigate the sufferings of the
poor, weak, dalits, tribals and deprived sections of the
society and to elevate them to the level of equality to
live a life with dignity of person. Social justice is not a
simple or single idea of a society but is an essential part
of complex social change to relieve the poor etc. from
handicaps, penury to ward off distress and to make
their life liveable, for greater good of the society at large.
In other words, the aim of social justice is to attain
substantial degree of social, economic and political
equality, which is the legitimate expectation. Social
security, just and humane conditions of work and
W.P. (C) No. 1000 of 2022 Page 86 of 126
leisure to workman are part of his meaningful right to
life and to achieve self-expression of his personality
and to enjoy the life with dignity; the State should
provide facilities and opportunities to enable them to
reach at least minimum standard of health, economic
security and civilised living while sharing according to
their capacity, social and cultural heritage.
19. […]The constitutional concern of social justice as an
elastic continuous process is to accord justice to all
sections of the society by providing facilities and
opportunities to remove handicaps and disabilities with
which the poor etc. are languishing and to secure
dignity of their person. The Constitution, therefore,
mandates the State to accord justice to all members of
the society in all facets of human activity. The concept
of social justice embeds equality to flavour and enliven
practical content of ‘life’. Social justice and equality are
complementary to each other so that both should
maintain their vitality. Rule of law, therefore, is a potent
instrument of social justice to bring about equality in
results.”
(Emphasis supplied)
125. Equality of status and opportunity flows from the constitutional
principles on equality code. In M. Nagaraj v. Union of India,
reported in (2006) 8 SCC 212, this Court recognized that there
can be no justice without equality of status and of opportunity.
In Indian Medical Assn. v. Union of India, reported in (2011)
7 SCC 179, this Court observed that aspects of socially just and
equitable society are an essential component of the basic
equality code itself. The Court further observed that the policies
of the State must be in consonance with the principles of equity
and justice inherent in Articles 14, 19, and 21 of the
Constitution respectively. The relevant observations read thus:-
W.P. (C) No. 1000 of 2022 Page 87 of 126
“165. It is now a well -settled principle of our
constitutional jurisprudence that Article 14 does not
merely aspire to provide for our citizens mere formal
equality, but also equality of status and of opportunity.
The goals of the nation State are the securing for all of
its citizens a fraternity assuring the dignity of the
individual and the unity of the nation. While justice—
social, economic and political is mentioned in only
Article 38, it was also recognised that there can be no
justice without equality of status and of opportunity
(see M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8
SCC 212 : (2007) 1 SCC (L&S) 1013] ). As recognised
by Babasaheb Ambedkar, at the moment that our
Constitution just set sail, that while the first rule of the
ship, in the form of formal equality, was guaranteed,
inequality in terms of access to social and economic
resources was rampant and on a massive scale, and
that so long as they individually, and the social groups
they were a part of, continue to not access to social and
economic resources that affords them dignity, they
would always be on the margins of the ship, with the
ever present danger of falling off that ship and thereby
never partaking of the promised goals of that ship.
Babasaheb Ambedkar with great foresight remarked
that unless such more fundamental inequalities, that
foster conditions of injustice, and limit liberty of thought
and of conscience, are eradicated at the earliest, the
ship itself would be torn apart.
xxx
168. An important and particular aspect of our
Constitution that should always be kept in mind is that
various aspects of social justice, and an egalitarian
social order, were also inscribed, not as exceptions to
the formal content of equality but as intrinsic, vital and
necessary components of the basic equality code itself.
To the extent there was to be a conflict, on account of
scarcity, it was certainly envisaged that the State
would step in to ensure an equitable distribution in a
manner that would be condu cive to common good;
nevertheless, if the State was to transgress beyond a
certain limit, whereby the formal content of equality
W.P. (C) No. 1000 of 2022 Page 88 of 126
was likely to be drastically abridged or truncated, the
power of judicial review was to curtail it. However, as
long as the policy initiatives of the State were in
consonance with principles of equity and justice
inherent within the equality code, and indeed even the
freedom code, via Article 21's guarantee of the right to
life, and for promotion of freedom of expression and
thought, especially to promote excellence in our debates
and arguments in the political sphere so that
democratic richness could be better served, or were
framed in pursuance of the directive principles of State
policy, that were based on reasonable and intelligible
classifications, the courts were to have no further place
in entering the field of policy choices. The courts could
of course, also, impose positive constitutional
obligations on the State, where the abnegation of those
positive and affirmative obligations, encoded within
fundamental rights itself, were so gross as to constitute
a fraud on the face of the Constitution.”
(Emphasis supplied)
126. From the perspective of substantive equality, the absence of
menstrual hygiene measures entrenches gendered disadvantage
by converting a biological reality into a structural exclusion. The
denial of basic enabling conditions, i.e., lack of clean and
functional washrooms, menstrual products, disposal
mechanism, and awareness about MHM measures, impedes not
only a girl child’s right to participate in education, but also her
right to opportunity to compete, to advance, and to realize her
potential throughout her life. It is crucial to address these
deficiencies to prevent temporary exclusion from turning it into
permanent inequality.
W.P. (C) No. 1000 of 2022 Page 89 of 126
E. The fundamental right to education under Article 21A
“Education is what survives when what has been
learned has been forgotten.”
127. We wish to preface this part of our judgment with the
enlightening words of B. F. Skinner emphasizing on the lasting
impact of education. It seeks to convey that even when specific
details are forgotten, the intellectual and moral development
nurtured by education stays.
128. In Anjuman Ishaat-e-Taleem Trust v. State of Maharashtra,
reported in 2025 SCC OnLine SC 1912 , Dipankar Datta, J.,
succinctly highlighted the constitutional journey of Article 21A
and the right to elementary education in India. The decision
traces the relevant judicial pronouncements, discussed in the
earlier parts of this judgment, which recognized education as an
essential part of the right to life, and contributed towards
insertion of Article 21A in the Constitution. The relevant
observations read thus:-
“72. The right to elementary education in India did not
begin its journey as a fundamental right. In the
Constitution, as originally drafted, elementary
education was initially recognized only as a Directive
Principle of State Polic under Article 45, which provided:
“The State shall endeavour to provide, within a
period of ten years from the commencement of this
Constitution, for free and compulsory education for
all children until they complete the age of fourteen
years.”
73. Article 45 seems to be the only directive principle
framed with a specific time frame, reflecting the
urgency and significance that the framers of
W.P. (C) No. 1000 of 2022 Page 90 of 126
the Constitution placed on its implementation. This
directive, though aspirational, was unfortunately not
judicially enforceable and depended heavily on the
discretion and capacity of the State. The framers of
the Constitution consciously placed ‘EDUCATION’ in
Part IV, recognizing its criticality but also
acknowledging the financial and administrative
limitations of the newly independent nation.
xxx
80. These judicial efforts culminated in the Constitution
(Eighty-sixth Amendment) Act, 2002, which introduced
Article 21A into the Constitution.
81. Alongside Article 21A, the amendment also
substituted Article 45 to focus on early childhood care
and education and introduced a corresponding
fundamental duty under Article 51A(k), requiring
parents and guardians to ensure educational
opportunities for their children between the ages of 6
and 14.
82. Article 21A, thus, marked a constitutional
transformation by elevating the child's right to free and
compulsory elementary education to the status of an
enforceable fundamental right.”
(Emphasis supplied)
129. Thereafter, Article 21A came into effect on 01.04.2010 along
with the RTE Act with the avowed objective to provide free and
compulsory education to all children of the age six to fourteen
years.
130. In light of the aforesaid, Devesh Sharma v. Union of India,
reported in (2023) 18 SCC 339, held that the fundamental right
to education must be meaningful, and of good “quality”. This
Court traced the country’s progress in making the right to
W.P. (C) No. 1000 of 2022 Page 91 of 126
education a justiciable and enforceable right. The relevant
observations read thus:-
“14. The 1986 National Policy on Education, modified
in the year 1992, declared that free and compulsory
elementary education of “satisfactory quality” be given
to all children up to the age of fourteen years, before
the nation enters the next century i.e. 21st Century.
15. Later, in the seminal judgment of this Court in Unni
Krishnan, J.P. v. State of A.P. [Unni Krishnan,
J.P. v. State of A.P., (1993) 1 SCC 645 : 1 SCEC 523 :
AIR 1993 SC 2178] , it was held that children have a
fundamental right to free education, till they complete
the age of fourteen years.
16. In the year 1997, in order to make free and
compulsory education a fundamental right the 83rd
Constitutional Amendment Bill was introduced in
Parliament, to insert a new Article in Part III of the
Constitution of India, which was to be Article 21-A. The
Bill was sent for the scrutiny of the Parliamentary
Standing Committee on Human Resources
Development. The Standing Committee not only
welcomed the amendment but in addition emphasises
on the “quality of elementary education”. This is what
it said:
“The eminent educationists felt that the Bill is silent
on the “Quality” of Education. They suggested that
there should be a reference to “quality” of education
in the Bill. The Secretary, Education agreed that the
“quality” aspect also has to be seen. Education
definitely must mean “quality” education and
anything less than that should not be called
education. Therefore, the emphasis would be
through strengthening the teacher education
content, the Secretary stated.” [ Para 13 of the
Report of the Parliamentary Standing Committee on
Human Resource Development.]
W.P. (C) No. 1000 of 2022 Page 92 of 126
17. Finally, by way of the Constitution (86th
Amendment) Act, 2002, Article 21-A, was inserted as a
fundamental right in Part III of the Constitution, and
made effective from 1-4-2010. Article 21-A of the
Constitution reads as under:
“21-A. Right to education.—The State shall provide
free and compulsory education to all children of the
age of six to fourteen years in such manner as the
State may, by law, determine.”
18. In order to fulfil the above mandate the Right to
Education Act, 2009, was passed by Parliament on 20-
8-2009, which became effective from 1-4-2010. The
Object and Reasons of the Act declared loud and clear
that what the Act seeks to achieve is not merely “free”
and “compulsory” elementary education, but equally
important would be the “Quality” of this education! The
Preamble to the Act states “that every child has a right
to be provided full-time elementary education of
satisfactory and equitable “quality” in a formal school
which satisfies certain essential norms and
standards”.
(Emphasis supplied)
131. In Avinash Mehrotra v. Union of India, reported in (2009) 6
SCC 398, a PIL sought safer school conditions in order to protect
the right to life and the right to education under Articles 21 and
21A respectively. The petitioner approached this Court pursuant
to an incident when a fire broke out in a private school’s kitchen
while the mid-day meal was being prepared leading to death of
several students. In such circumstances, this Court held that
the right to education includes the right to a safe school. It
observed that the right to education is an inalienable human
right, and is, as essential to the life of an individual as health
and dignity. It further observed that the Government shall make
W.P. (C) No. 1000 of 2022 Page 93 of 126
an endeavour to implement Article 21A in its letter and spirit.
The relevant observations read thus:-
“35. The Constitution likewise provides meaning to the
word “education” beyond its dictionary meaning.
Parents should not be compelled to send their children
to dangerous schools, nor should children suffer
compulsory education in unsound buildings.
36. Likewise, the State's reciprocal duty to parents
begins with the provision of a free education, and it
extends to the State's regulatory power. No matter
where a family seeks to educate its children, the State
must ensure that children suffer no harm in exercising
their fundamental right and civic duty. States thus bear
the additional burden of regulation, ensuring that
schools provide safe facilities as part of a compulsory
education.
xxx
38. This Court in Ashoka Kumar Thakur
case
6 observed as under: (SCC p. 660, para 482)
“482. It has become necessary that the Government
set a realistic target within which it must fully
implement Article 21-A regarding free and
compulsory education for the entire country. The
Government should suitably revise budget
allocations for education. The priorities have to be
set correctly. The most important fundamental right
may be Article 21-A, which, in the larger interest of
the nation, must be fully implemented. Without
Article 21-A, the other fundamental rights are
effectively rendered meaningless. Education stands
above other rights, as one's ability to enforce one's
fundamental rights flows from one's education. This
is ultimately why the judiciary must oversee the
Government spending on free and compulsory
education.”
39. In view of the importance of Article 21-A, it is
imperative that the education which is provided to
W.P. (C) No. 1000 of 2022 Page 94 of 126
children in the primary schools should be in the
environment of safety.”
(Emphasis supplied)
132. A three Judge Bench in State of T.N. v. K. Shyam Sunder,
reported in (2011) 8 SCC 737, while dealing with the challenge
relating to implementation of uniform system of education in
Tamil Nadu observed that there shall be no discrimination in
quality of education. It was observed that the right to education
shall not be restricted only to free and compulsory education but
also encompasses quality education. The quality of education
disseminated shall be uniform irrespective of social, economic,
and cultural background. Education is not merely access to
school but an active process of developing the knowledge, skill,
mind by formal schooling. The relevant observations read thus:-
“20. The right to education is a fundamental right under
Article 21-A inserted by the Eighty-sixth Amendment of
the Constitution. Even before the said amendment, this
Court has treated the right to education as a
fundamental right. (Vide Mohini Jain v. State of
Karnataka [(1992) 3 SCC 666 : AIR 1992 SC 1858]
; Unni Krishnan, J.P. v. State of A.P. [(1993) 1 SCC 645
: AIR 1993 SC 2178] and T.M.A. Pai
Foundation v. State of Karnataka [(2002) 8 SCC 481].)
21. There has been a campaign that right to education
under Article 21-A of our Constitution be read in
conformity with Articles 14 and 15 of the Constitution
and there must be no discrimination in quality of
education. Thus, a common syllabus and a common
curriculum is required. The right of a child should not
be restricted only to free and compulsory education, but
should be extended to have quality education without
any discrimination on the ground of its economic, social
and cultural background. Arguments of the
propagators of this movement draw support from the
W.P. (C) No. 1000 of 2022 Page 95 of 126
judgment of the US Supreme Court in Brown v. Board
of Education [98 L Ed 873 : 347 US 483 (1953)]
overruling its earlier judgment
in Plessy v. Ferguson [41 L Ed 256 : 163 US 537
(1895)] where it has been held that “separate education
facilities are inherently unequal” and thus, violate the
doctrine of equality.
xxx
24. In State of Orissa v. Mamata Mohanty [(2011) 3
SCC 436 : (2011) 2 SCC (L&S) 83], this Court
emphasised the importance of education observing that
education connotes the whole course of scholastic
instruction which a person has received. Education
connotes the process of training and developing the
knowledge, skill, mind and character of students by
formal schooling. The Court further relied upon the
earlier judgment in Osmania University Teachers'
Assn. v. State of A.P. [(1987) 4 SCC 671 : AIR 1987 SC
2034], wherein it has been held as under : (Osmania
University Teachers' Assn. case [(1987) 4 SCC 671 :
AIR 1987 SC 2034], SCC p. 685, para 30)
“30. … Democracy depends for its very life on a high
standard of general, vocational and professional
education. Dissemination of learning with search for
new knowledge with discipline all round must be
maintained at all costs.”
The case at hand is to be proceeded with keeping this
ethical backdrop in mind.”
(Emphasis supplied)
133. A Constitution Bench in Pramati Educational & Cultural
Trust v. Union of India, reported in (2014) 8 SCC 1, upheld
the constitutional validity of the Constitution (Eighty-sixth
Amendment) Act, 2002, and categorically held that the insertion
of Article 21A in the Constitution does not violate the basic
structure of the Constitution. However, Article 21A is not self-
executing. It finds its concrete expression through the RTE Act.
W.P. (C) No. 1000 of 2022 Page 96 of 126
i. Right to free and compulsory education under the RTE
Act
134. The focus of the RTE Act is to make education accessible by
providing elementary education of satisfactory and equitable
quality. The Act casts an obligation on the Government to
provide and ensure admission, attendance and completion of
elementary education. It envisages that no child shall be made
to pay any kind of fee or expenses which may prevent it from
pursuing and completing elementary education.
135. The decision in Anjuman Ishaat-e-Taleem Trust (supra),
pithily expresses the core objectives of the RTE Act and captures
the vista of Article 21A. The relevant observations read thus:-
“86. As outlined in the Statement of Objects and
Reasons accompanying the Right of Children to Free
and Compulsory Education Bill, 200865, the objectives
of the RTE Bill read:
“The Right of Children to Free and Compulsory
Education Bill, 2008, is anchored in the belief that
the values of equality, social justice and democracy
and the creation of a just and humane society can
be achieved only through provision of inclusive
elementary education to all. Provision of free and
compulsory education of satisfactory quality to
children from disadvantaged and weaker sections
is, therefore, not merely the responsibility of schools
run or supported by the appropriate Governments,
but also of schools which are not dependent on
Government funds.”
87. Viewed holistically, the RTE Act—contrary to the
commonly held belief— does not impose an onerous or
excessive regulatory burden; rather, it lays down the
bare minimum core obligations and standards that all
schools [as defined in Section 2(n)] must follow to
W.P. (C) No. 1000 of 2022 Page 97 of 126
ensure that the constitutional promise envisioned by
Article 21A is not rendered meaningless. They include
requirements such as trained teachers, student-teacher
ratio, adequate infrastructure, inclusive admission
policies, age-appropriate common curriculum, etc. All
these are indispensable to deliver quality elementary
education.
88. At its heart, the RTE Act is an instrument for
universalisation of education, which is rooted in the
values of social inclusion, national development, and
child-centric growth. It is aimed at bridging the gap
between privileged and disadvantaged, and it ensures
that every child, regardless of caste, creed, class, or
community, is given a fair and equal opportunity to
learn, grow, and thrive. The RTE Act is designed not to
stifle institutional autonomy but to uphold a threshold
of dignity, safety, equity, and universality in the
learning environment for a child.
89. Born of Article 21A, the RTE Act is not merely
another addition to the statute books. It is the living
expression of a long-deferred promise. When the
Constitution was first adopted, the right to education
could find place only among the Directive Principles,
tempered by the economic and institutional limitations
of a newly independent nation; yet, the vision was
never abandoned but merely postponed. It took the
nation over half a century of democratic maturity, social
awakening, and judicial insistence for this vision to be
shaped into a fundamental right.
90. In this sense, Article 21A stands, perhaps, a shade
taller than many other rights, not merely by hierarchy
but by the weight of the journey it carries—a journey of
struggle, consensus, and above all, a reaffirmation that
right to elementary education is not charity, but
justice.”
(Emphasis supplied)
W.P. (C) No. 1000 of 2022 Page 98 of 126
136. It would be apposite to refer to the decision in Devesh Sharma
v. Union of India, reported in (2023) 18 SCC 339, wherein this
Court was dealing with the question, whether the National
Council for Teacher Education was right in including B Ed
qualification for appointment to the post of primary school
teacher. In other words, the Court assessed whether BEd
candidates were trained to teach in primary classes. In this
context, the Court held that free and compulsory education
would be meaningless if it is not quality education. The quality
of education is influenced by many factors, one of them being
the qualifications of teachers. The Court held that any
compromise on “quality” of education would be a violation of
Article 21A.
137. It can be safely concluded that quality of education goes beyond
textbooks, teachers, or classrooms. It includes all the conditions
that enable effective learning and continuity of schooling.
Inaccessibility of MHM disrupts attendance, hinders
concentration, and consequently, breaks the continuity of
schooling.
138. In Society for Unaided Private Schools of Rajasthan v.
Union of India
20, reported in (2012) 6 SCC 1, the Court held
that the word “free” in the title of the RTE Act indicates removal
20 The decision in Society for Unaided Private Schools of Rajasthan (supra) has been overruled
by Pramati Educational & Cultural Trust (supra) insofar as it held that the RTE Act was
applicable to aided minority schools. Thus, the RTE Act is not applicable to aided or unaided
minority schools covered under Article 30(1) of the Constitution.
W.P. (C) No. 1000 of 2022 Page 99 of 126
of any financial barrier that prevents a child from elementary
education. It was observed that the provisions of the RTE Act
envisaged imparting quality education which comprises
providing required infrastructure and complying with standards
specified by the RTE Act. The relevant observations read thus:-
“7. The word “free” in the long title to the 2009 Act
stands for removal by the State of any financial barrier
that prevents a child from completing 8 years of
schooling. The word “compulsory” in that title stands
for compulsion on the State and the parental duty to
send children to school. To protect and give effect to this
right of the child to education as enshrined in Article 21
and Article 21-A of the Constitution, Parliament has
enacted the 2009 Act.
8. The 2009 Act received the assent of the President on
26-8-2009. It came into force w.e.f. 1-4-2010. The
provisions of this Act are intended not only to guarantee
right to free and compulsory education to children, but
it also envisages imparting of quality education by
providing required infrastructure and compliance with
specified norms and standards in the schools. The
Preamble states that the 2009 Act stands enacted inter
alia to provide for free and compulsory education to all
children of the age 6 to 14 years. The said Act has been
enacted to give effect to Article 21 -A of the
Constitution.”
(Emphasis supplied)
a. Management of menstrual hygiene as a financial barrier
under Section 3 of the RTE Act
139. Section 3 of the RTE Act stipulates that every child of the ages
of six to fourteen years shall have the right to free and
compulsory education. The section aims to remove financial
W.P. (C) No. 1000 of 2022 Page 100 of 126
barriers which prevent a child from exercising its right to
education. It reads thus:-
“3. Right of child to free and compulsory education.—
[(1) Every child of the age of six to fourteen years,
including a child referred to in clause (d) or clause (e) of
section 2, shall have the right to free and compulsory
education in a neighbourhood school till the completion
of his or her elementary education.]
(2) For the purpose of sub-section (1), no child shall be
liable to pay any kind of fee or charges or expenses
which may prevent him or her from pursuing and
completing the elementary education.
* * * * *
[(3) A child with disability referred to in sub-clause (A)
of clause (ee) of section 2 shall, without prejudice to the
provisions of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995 (1 of 1996), and a child referred
to in sub-clauses (B) and (C) of clause (ee) of section 2,
have the same rights to pursue free and compulsory
elementary education which children with disabilities
have under the provisions of Chapter V of the Persons
with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995:
Provided that a child with “multiple disabilities”
referred to in clause (h) and a child with “severe
disability” referred to in clause (o) of section 2 of the
National Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 (44 of 1999) may also have the
right to opt for home-based education.]”
(Emphasis is ours)
140. The word expression “to pay any kind of fee or charges or
expenses” in Section 3(2) is not only restricted to school fees but
also includes all kinds of charges or expenses that would prevent
a child from pursuing as well as completing elementary
education. For instance, expenses relating to washroom
W.P. (C) No. 1000 of 2022 Page 101 of 126
facilities, uniform charges, maintenance of the bus service,
electricity charges, medical assistance
21, books and school
essential charges.
141. In Society for Unaided Private Schools of Rajasthan (supra),
the object of Section 3(2) was identified as removing a financial
barrier which prevents a child from accessing education. Thus,
it was held that no child shall be asked to pay any kind of fee or
charges which may prevent him or her from pursuing
elementary education.
142. In Justice for All v. State (NCT of Delhi), reported in 2020
SCC OnLine Del 1217, the Delhi High Court was dealing with
a PIL seeking the supply of free devices to children belonging to
EWS/DG in order to enable them to attend classes by way of
video conferencing.
While interpreting the statute through the ‘always speaking’
rule of interpretation, the Court held that, in furtherance of
Section 3 of the RTE Act, private unaided schools are required
to provide necessary devices to the 25% EWS/DG students free
of cost, as such devices are indispensable for accessing
education. The schools under the RTE Act must ensure that the
students are able to access the mode of teaching opted by the
respective schools. The Court observed that by not providing the
equipment, the schools are creating a financial barrier qua such
students. The relevant observations read thus:-
21 Kadambur Higher Secondary School v. Kerala State Commission for Protection of Child Rights
Sreeganesh, 2024 SCC OnLine Ker 1746.
W.P. (C) No. 1000 of 2022 Page 102 of 126
“150. Upon a holistic reading of Sections 3, 8 and
12(1)(c), it is apparent that the obligations of the State
as well as private unaided schools under the RTE Act,
2009 are to the students studying in government
schools and 25% EWS/DG students except for fee
paying students.
xxx
156. The argument that private unaided schools are
required to provide equipment to EWS/DG students
only if they are providing such equipment to the 75%
fee paying students is mis-conceived. Section 12(1)(c)
requires private unaided schools to inter alia provide
free and compulsory elementary education to 25%
EWS/DG students; which means
education sans financial barrier viz-a-viz those things
which are indispensable for access to elementary
education. Section 12(1)(c) obligation is in no way
dependent upon what school gives to the fee paying
children, free or otherwise. The equipment in question
is indispensable/mandatory for the purpose of
accessing and availing elementary education through
online means and therefore has to be provided free of
cost under Section 12(1)(c). Moreover, everything which
is necessary for pursuing and completing elementary
education which fee paying students are also required
to have, are not provided free to such students.[…].
xxx
161. In order to address this discrimination and fulfill
their obligations, the private unaided schools under
Section 12(1)(c) and Government schools like Kendriya
Vidyalayas under Section 3(2) of RTE Act, 2009 are
directed to provide equipment of optimum configuration
which is sufficient to enable EWS/DG students to get
access to online learning.”
(Emphasis supplied)
143. In Master Manjunath v. Union of India, reported in 2019 SCC
OnLine Kar 3101 , the question before the Karnataka High
Court was whether the State Government is under an obligation
to provide two sets of uniforms to the children to whom Section
W.P. (C) No. 1000 of 2022 Page 103 of 126
3 of the RTE Act is applicable. The school provided only one set
of uniform. In such circ umstances, the Court directed
distribution of second set of uniforms as a Government Order
dated 30.06.2018 permitted its distribution, and held that if the
rules require the children to compulsorily wear uniforms, the
parents would have to incur expenses, and ultimately it will
prevent the children from pursuing education. The Court
observed that providing one set of uniform for five or six days
would be irrational or rather unhygienic.
144. What flows from the aforesaid discussion is that Section 3 of the
RTE Act is not restricted to the formal entitlement of enrolment
in a school. The right it guarantees is one of effective and
continuous access to education. Section 3 incorporates the
requirement that education shall be provided in conditions
consistent with dignity and equality. The absence of sanitary
napkins and safe disposal mechanisms compels menstruating
girls to stay away from school for several days each month.
When such circumstances continue to persist, it is an indication
that the State has failed in ensuring regular attendance and
continuity of education. This results in direct denial of the right
guaranteed under Section 3.
145. One another good reason to hold the aforesaid is that education
under Section 3 must be free. Free education means that no
child should be required to incur expenditure that becomes a
barrier to accessing education. When this expenditure leads to
W.P. (C) No. 1000 of 2022 Page 104 of 126
absenteeism or drop-out, the State’s inaction converts a
guaranteed right into a conditional one.
146. We must mention that any condition that forces a girl child to
choose between dignity and education cannot be regarded as
just and equitable. The failure to provide sanitary napkins
creates a gender-specific barrier that impedes attendance, and
continuity in education, thereby defeating the substantive
guarantee of free and compulsory education. We further stress
that while Section 3 guarantees the right to education, Section
19 operates at the institutional level by prescribing minimum
infrastructural standards in order to strengthen the right to
education. Thus, the provisions must be read conjunctively.
b. Menstrual management measures as mandatory “norms
and standards” for schools under Section 19 of the RTE
Act
147. Section 18 of the RTE Act states that no school, i.e., a school not
established, owned, or controlled by the appropriate
Government or the local authority, shall be established or
function, without obtaining a certificate of recognition from the
District Education Officer. For such a school to be recognized, it
is necessary that it, inter alia, fulfils norms and standards
specified in Section 19.
148. Sub-section (3) of Section 18 provides that, upon contravention
of the conditions of recognition, which include adherence to the
W.P. (C) No. 1000 of 2022 Page 105 of 126
prescribed norms and standards, the competent authority may
withdraw such recognition. Further, from the date of withdrawal
of the recognition, the school ceases to be entitled to continue
functioning. Any continuance thereafter would render the school
liable to a fine prescribed under sub-section (5) of Section 18.
149. In the aforesaid context, it would be apposite to look at Rule 15
of the Right of Children to Free and Compulsory Education
Rules, 2010 (for short, “the RTE Rules”), which prescribes that
every school that had made a self-declaration within three
months of the commencement of the Act had to conform to, inter
alia, the values enshrined in the Constitution. Further, sub-rule
(6) of Rule 15 stipulates that schools that do not conform to the
norms, standards, and conditions mentioned in the Schedule
within three years from the commencement of the RTE Act shall
cease to function. Furthermore, in order to be recognized, every
school established after the commencement of the RTE Act is
required to conform to the same norms, standards, and
conditions.
150. Section 19 of the RTE Act stipulates that schools which are not
established, owned, or controlled by the appropriate
Government or the local authority shall not be established and
granted a certificate of recognition unless they fulfil the norms
and standards set out in the Schedule. This stipulation applies
irrespective of whether the school is a Government school or a
private school. In other words, the section operates
independently of Section 18.
W.P. (C) No. 1000 of 2022 Page 106 of 126
151. The net effect of the aforesaid is that every school, whether
Government-run or privately managed, must act in accordance
with the norms and standards laid down in Section 19 of the
RTE Act. The RTE Act expressly provides consequences in the
event of non-compliance by schools that are not established,
owned, or controlled by the appropriate Government or a local
authority. Insofar as schools established, owned, or controlled
by the appropriate Government or a local authority are
concerned, non-compliance with the norms and standards
would amount to a contravention attributable to the State itself.
152. We take notice of the building norms and standards listed in the
Schedule to the RTE Act. It reads thus:-
“2. Building
All-weather building consisting of—
(i) at least one class-room for every teacher and an
office-cum-store-cum-Head teacher’s room;
(ii) barrier-free access;
(iii) separate toilets for boys and girls;
(iv) safe and adequate drinking water facility to all
children;
(v) a kitchen where mid-day meal is cooked in the
school;
(vi) Playground;
(vii) arrangements for securing the school building by
boundary wall or fencing.”
(Emphasis is ours)
153. We shall clarify that the expression “barrier-free access” to a
school building is not confined to the structural design of the
building alone but extends equally to the amenities and facilities
W.P. (C) No. 1000 of 2022 Page 107 of 126
within it. Barrier-free access signifies that schools are required
to identify and remove all impediments that obstruct access to
education, whether by eliminating physical barriers or by
adopting affirmative measures necessary to secure the effective
realization of barrier-free access to education. Nothing within
the school shall prevent a student from attending school, and/or
once entered, from remaining in school for the full duration
necessary to meaningfully participate in educational activities.
154. In Radha Shekhawat v. State of Rajasthan, reported in 2015
SCC OnLine Raj 3428 , the Rajasthan High Court took
cognizance of the report submitted by the Advocate Genera l,
wherein it was stated that construction was underway in 176
schools which had no toilets, and 700 schools which had only
one toilet. The Court expressed dismay at the non-availability of
toilets and the condition of existing toilets, which were nothing
more than walls to hide, without any door, roof, or facility of
water.
The Court directed that the responsibility of construction
and maintenance of toilets shall be shared by the School
Management Committee, and the Sarpanch in light of Article
243(G) of the Constitution. Needless to say, the Court held that
the right to education remains unfulfilled, if there are
inadequate classrooms, electricity, water, and proper toilets in
the schools. The relevant observations read thus:-
“10. The survey report, submitted in pursuance to the
orders passed by the Court, has brought on record the
fact that even where there are toilets available, they are
either broken or not suitable for girls, and that all most
W.P. (C) No. 1000 of 2022 Page 108 of 126
all the toilets are not being properly maintained. We
have already observed that the open and unclean
toilets are of no consequence, unless separate toilets
are provided for girls and boys, and that each toilet has
a roof and door with a latch by which can be closed,
specially for girls, water and that it is regularly
cleaned.
xxx
12. We find sufficient force in the contention of learned
counsel appearing for the petitioner that apart from the
school staff, who is responsible for construction and
maintenance of the toilets, the responsibility should
also be shared by the School Management Committee,
which is chaired by the parents, and of which the Head
Master is the Secretary. Learned Advocate General has
also made valuable suggestions that in order to secure
availability of toilets in Government Schools and its
maintenance, the Sarpanch of Panchayat should also
be made responsible. We find sufficient force in the
suggestions, inasmuch as, the Eleventh Schedule in the
Constitution of India, with reference to Article 243(G),
gives the responsibility of availability of drinking water,
and education including Primary and Upper Primary
Schools, to village Panchayats. The right to receive
education for the children guaranteed by Article 21-A of
the Constitution of India, includes right to education in
a hygienic conditions. The right to education remains
unfulfilled, if there are inadequate class rooms,
electricity, water and proper toilets in the schools.
xxx
14. The Sarpanch of the village, will have overall
supervision of the provision of toilets, and its
maintenance and cleanliness in the schools in rural
areas, and that the Schools Management Committee for
all the schools both the urban and rural areas, will
carry out overall supervision of the provision of
maintenance and cleanliness of the toilets and
availability of water in all the schools. It will be open to
them to report the non-availability of the budget and its
disbursement to the Block Development Officer in rural
W.P. (C) No. 1000 of 2022 Page 109 of 126
areas and Elementary Education Officer in urban
areas.”
(Emphasis supplied)
155. The Madras High Court, in Setupati Higher Secondary School
v. State of T.N., reported in 2016 SCC OnLine Mad 31508 ,
dealt with the issue, whether the Government, being the funding
authority in a recognized and aided private school, has the right
to frame rules for fixation of teaching posts and to grant approval
for appointments, including vocational instructor posts. The
High Court rejected the contention of the respondent-State by
placing reliance on the decision of this Court in State of
Orissa v. Mamata Mohanty , reported in (2011) 3 SCC 436. In
the said decision, this Court held that paucity of funds cannot
be a ground for the State to evade maintenance of educational
standards.
Taking into consideration Sections 19 and 25 of the RTE Act
respectively, read with the Schedule, the Court held that the
Government cannot shirk its duties and run away from its
responsibilities, stating that due to a want of funds, posts
cannot be sanctioned in schools. In such circumstances, the
Court directed the respondents to approve the appointment of a
vocational instructor. The relevant observations read thus:-
“12. In the case of State of Orissa v. Mamata Mohanty,
reported in (2011) 3 SCC 436, the Hon'ble Supreme
Court held that standard of teaching shall not suffer on
the ground of want of funds/paucity of funds cannot
be a ground for the State for not maintaining the
standard of education and not providing quality
education to its citizens. In Paragraph No. 33 of the said
decision, the Hon'ble Supreme Court held thus:—
W.P. (C) No. 1000 of 2022 Page 110 of 126
“33. In view of the above, it is evident that education
is necessary to develop the personality of a person
as a whole and in totality as it provides the process
of training and acquiring the knowledge, skills,
developing mind and character by formal schooling.
Therefore, it is necessary to maintain a high
academic standard and academic discipline along
with academic rigour for the progress of a nation.
Democracy depends for its own survival on a high
standard of vocational and professional education.
Paucity of funds cannot be a ground for the State not
to provide quality education to its future citizens. It
is for this reason that in order to maintain the
standard of education the State Government
provides grant-in-aid to private schools to ensure the
smooth running of the institution so that the
standard of teaching may not suffer for want of
funds.”
xxx
16. Under such circumstances, the refusal for approval
of appointment is without basis and without
application of mind. Hence, the impugned orders, dated
07.11.2014 and 10.11.2014, are set-aside and the
respondents are directed to approve the appointment of
Thiru. R. Kannan, as Vocational Instructor, in the
petitioner school, with sanction of grant-in-aid, within a
period of four weeks from the date of receipt of a copy
of this order.”
(Emphasis supplied)
156. We may look into the decision of the Uttarakhand High Court in
Deepak Rana v. State of Uttarakhand, reported in 2016 SCC
OnLine Utt 2454, wherein the Court expressed disappointment
at the condition of school infrastructure in the State. The Court
found that there were no toilets for girls in 67 schools. It
observed that the fundamental right to free and compulsory
education entails the availability of basic facilities such as a
W.P. (C) No. 1000 of 2022 Page 111 of 126
school building with furniture, blackboards, toilets, free
uniforms and books, and mid-day meal facilities. The lack of
infrastructure was identified as a major factor lowering the
standards of education. At last, the Court issued a slew of
directions, including the construction and maintenance of
separate toilets for boys and girls.
157. The Calcutta High Court in State of W.B. v. Krishnendu
Biswas, reported in 2025 SCC OnLine Cal 2888 , while dealing
with the enhancement of qualification of the respondent therein,
observed that there are drop-outs or out-of-school children in
society, and it is the duty of the State to fulfil the object of the
RTE Act qua those children. The Court noted that factors
contributing towards the drop-out of children from school, more
particularly girls, are poor sanitary problems due to poor
infrastructural facilities. The relevant observations read thus:-
“16. The petitioner's termination also constitutes a
violation of his “fundamental right to livelihood under
Article 21 of the Constitution of India”. Depriving the
drop out or out of school children from their free and
compulsory education to children aged 6 to 14 years is
sheer violation of the RTE Act and also Article 21-A of
the Indian Constitution, inserted by the 86th
Amendment in 2022 which mandat es the State to
provide free and compulsory education to all children
aged 6 to 14 years as determined by law, making
education a fundamental right.
17. There is no dispute that there are no drop out
students. The issue of dropout student continued to
prevail in the country, preventing many children from
attending school due to mainly engagement in domestic
work to support their families, lack of interest in studies
W.P. (C) No. 1000 of 2022 Page 112 of 126
and sometimes especially difficult for girls to continue
study because of concerned about their safety and
sanitary problems due to poor infrastructural facilities.
To curb such problems, State should provide efficient
and sufficient infrastructure. Apart from that, the State
shall also set-up an alternative and innovative school
education as well as bring back them to have
education. State can involve those Shiksha Mitras to
educate them and/or also inculcate awareness
amongst the dropout children and their parents so that
children may attend the school regularly for having
education then only actual object of SSA and RTE act,
will be fulfilled.”
(Emphasis supplied)
158. An application was filed by a school for recognition of classes I
to IV but was rejected by the Kerala State Educational
Department on the ground that the school did not have a
playground, and there were 15 government-aided schools within
5 kms of the applicant school. In such circumstances, the Kerala
High Court in St Mary's English Medium School v. State of
Kerala, reported in 2025 SCC OnLine Ker 4092, took notice of
Sections 18 and 19 of the RTE Act respectively and the Schedule
appended to the Act.
The Court refused to interfere with the order of rejection as
the school was not set up according to the norms and standards
provided in the Schedule. It was held that adherence to the
prescribed norms and standards must not be mere lip service.
The relevant observations read thus:-
“7. Thus, a school must be set up according to the
norms and standards as provided in Schedule read
with Section 19, and it must have recognition from the
competent authority to run the school. If the school does
not have norms and standards prescribed under the
W.P. (C) No. 1000 of 2022 Page 113 of 126
Schedule, no recognition can be granted and such a
school cannot be allowed to be run. For running such a
school which does not fulfill the norms and standards
and does not have recognition, consequences are
provided in Section 18 itself.
8. As per the Schedule, the school inter alia must have
a building which should be all weather building
consisting of the followings:
i. at least one class-room for every teacher and an
office-cum-store-cum-Head teacher's room;
ii. barrier-free access;
iii. separate toilets for boys and girls;
iv. safe and adequate drinking water facility to all
children;
v. a kitchen where mid-day meal is cooked in the
school;
vi. Playground;
vii. arrangements for securing the school building by
boundary wall or fencing.
9. The playground is one of the requirements of the
building.
10. The petitioner in the writ petition has not stated the
dimensions of the playground of his school. Nowhere in
the writ petition I find anything mentioned about the
area of the playground which the petitioner school
have. When the Act contemplates playground, it means
that it should be enough for sports facilities and if the
playground is very small, it cannot be said to be a
sufficient playground. When the Schedule
contemplates a building to have a playground, it means
it should have a playground of sufficient area in which
sports can be played. In the absence of the requisite
pleadings, I cannot accept the argument of the
petitioner that the petitioner school has a playground of
sufficient dimensions, which can provide a sports
facility to its students.”
(Emphasis supplied)
W.P. (C) No. 1000 of 2022 Page 114 of 126
159. What emerges from th e aforesaid discussion is that the
fundamental right to education necessarily embodies the
availability of basic and enabling facilities. These include clean
and functional separate toilets commensurate with the strength
of the students, access to sanitary napkins, and a designated
and hygienic mechanism for the disposal of used sanitary
napkins. These facilities are not ancillary conveniences but
integral to ensuring barrier-free access to education, more
particularly, for girl students.
160. In the aforesaid context, compliance with Section 19 read with
the Schedule cannot be subjected to financial convenience. In
other words, the State cannot be permitted to plead absence of
funds as a justification for non-compliance with the norms and
standards. We say so because the State is under an obligation
to provide barrier-free access to education.
161. The aforesaid is further fortified in light of the duties of the
appropriate Government and local authority stipulated under
Sections 8 and 9 respectively. The appropriate Government and
the local authority are entrusted with the duty to provide
infrastructure including school building, teaching staff and
learning equipment. The appropriate Government and the local
authority have to ensure and monitor admission, attendan ce
and completion of elementary education by every child. Most
importantly, it also has to ensure good quality elementary
education conforming to the standards and norms specified in
the Schedule.
W.P. (C) No. 1000 of 2022 Page 115 of 126
162. We need not discuss further on the requirement of separate
toilets for boys and girls. The requirement for “barrier-free
access” must be understood in a substantive sense. It obliges
the schools not merely to ensure formal access to school
buildings, but to proactively identify and remove all barriers
impeding presence of a child in the school. To put this in
context, the absence of sanitary napkins and a hygienic
mechanism to dispose it results in absenteeism, or drop-out of
girls from school. We are constrained to observe that such
failure is not administrative but constitutional.
163. What emerges is a stark constitutional failure, inasmuch as,
although the statue mandates barrier-free access to the school
building and separate toilets for boys and girls yet even after
almost 17 years of enactment of the legislation, many schools
continue to lack basic necessities for students. The norms and
standards laid down in the Schedule are not merely procedural
in nature but are integral to the effective realization of Section 3
of the RTE Act, and more particularly, the right to education
under Article 21A.
F. Role of Men in Menstruation
164. At this stage, we would like to emphasize on the role young boys
and male teachers play in the life of adolescent girl students. We
have no hesitation in saying that if the spirit of Article 21A and
the RTE Act is to be achieved in its fullest sense, it would not be
W.P. (C) No. 1000 of 2022 Page 116 of 126
sufficient that merely gender-segregated toilets or sanitary
napkins are provided. We say so because this is far more than
an infrastructural problem. The absence of menstrual hygiene
facilities in schools is not the only barrier that impedes
education but rather it is only half the problem. More often than
not, the environment within which the girl child is acquiring
education, is equally impeding, if not a greater barrier.
165. Undoubtedly, laws have the power to shape and influence social
behaviour and bring forth transformative change. However, we
must also acknowledge the grim reality that the implementation
of these laws faces several challenges arising from deep-rooted
attitudes and norms which our society is unwilling to break
away from.
166. A school may have adequate facilities for menstrual hygiene, but
an unsupportive, rather hostile and stigmatized environment
would render them of no use. The environment at school is not
a monolith of females, it consists of young boys, male teachers,
and male staff. Until the whole ecosystem is sterilized of the
stigma associated with menstruation, the infrastructural efforts
would remain underutilized.
167. 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.
W.P. (C) No. 1000 of 2022 Page 117 of 126
168. In this context, the responsibility weighs even heavier on the
male teachers. They must be sensitized to the needs of a girl
child. For instance, a request to the restroom or the sudden need
to leave the classroom must be treated with sensitivity rather
than straight dismissal or invasive questioning. To put briefly,
we would say, ignorance breeds insensitivity, knowledge breeds
empathy.
169. All that we are trying to convey is that, men have a multifaceted
role in menstrual hygiene and awareness for school -going
adolescent girls. On one hand, male teachers can integrate
accurate, stigma-free information into lessons. At the same time,
the staff would be responsive towards maintaining cleanliness
and hygiene in toilets. On the other hand, peers and classmates
would be empathetic and helpful.
170. Time is over ripe that we recognize 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.
171. We acknowledge and appreciate the efforts on part of the Union
and States to undertake awareness and training programmes for
teachers, and implement capacity -building programme.
W.P. (C) No. 1000 of 2022 Page 118 of 126
However, one swallow does not make the summer. These
initiatives are uneven and what is lacking is an active monitoring
mechanism to oversee implementation.
VI. CONCLUSION
172. A conspectus of the aforesaid detailed discussion on the Articles
14, 21 and 21A of the Constitution, respectively, and the RTE
Act is as follows:-
a. The right to education has been termed as a ‘multiplier
right’ as it enables exercise of other human rights. The
right to education forms part of the broader framework of
the right to life and human dignity, which cannot be
realized without access to education.
b. 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. At
the same time, the State, as a benefactor, is under an
obligation to remedy such structural disadvantages.
c. Inaccessibility of menstrual hyg iene 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 to not only
refrain from violating privacy but an accompanying
W.P. (C) No. 1000 of 2022 Page 119 of 126
obligation on the State to take necessary measures to
protect the privacy of an individual.
d. 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.
e. 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.
f. The fundamental right to education under Article 21A and
the RTE Act comprises free, compulsory, and quality
education. Free education includes all kinds of charges or
expenses that would prevent a child from pursuing and
completing elementary education.
W.P. (C) No. 1000 of 2022 Page 120 of 126
g. All schools, whether run by the appropriate Government
or privately managed, must act in accordance with the
norms and standards laid down in Section 19. 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-recognized and the consequences therefrom
would follow. Insofar as a school 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, the State would be held accountable.
VII. DIRECTIONS
173. Having exhaustively discussed the constitutional and the
statutory framework as regards the issue at hand we find it
appropriate to direct the following:
I. As regards the “toilet and washing facilities”, we direct
that:-
i. All States and Union Territories shall ensure that every
school, whether Government-run or privately managed,
in both urban and rural areas, is provided with the
functional, gender-segregated toilets with usable water
connectivity.
ii. All the existing and newly constructed toilets in schools
shall be designed, constructed, and maintained so as to
W.P. (C) No. 1000 of 2022 Page 121 of 126
ensure privacy and accessibility, including by catering
to the needs of children with disabilities.
iii. All school toilets shall be equipped with functional hand-
washing facilities, with soap and water available at all
times.
II. As regards the “availability of menstrual absorbents”, we
direct that:-
i. All States and Union Territories shall ensure that every
school, whether Government-run or privately managed,
in both urban and rural area s, provides oxo-
biodegradable sanitary napkin s manufactured in
compliance with the ASTM D-6954 standards free of cost.
Such sanitary napkins shall be made readily accessible
to girl students, preferably within the 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.
ii. All States and Union Territories shall ensure that every
school, whether Government-run or privately managed,
in both urban and rural area s, establish Menstrual
Hygiene Management (MHM) corners. Such MHM
corners shall be equipped with, including but not limited
to, spare innerwear, spare uniforms, disposable bags,
W.P. (C) No. 1000 of 2022 Page 122 of 126
and other necessary materials to address menstruation-
related exigencies.
III. As regards the “disposal of sanitary waste”, we direct that:-
i. All States and Union Territories shall ensure that every
school, whether Government-run or privately managed,
in both urban and rural areas, is equipped with a safe,
hygienic, and environmentally compliant mechanism for
the disposal of sanitary napkins, in accordance with the
latest Solid Waste Management Rules.
ii. Each toilet unit shall be equipped with a covered waste
bin for the collection of sanitary material, and cleanliness
and regular maintenance of such bins shall be ensured
at all times.
IV. As regards the “awareness and training about menstrual
health and puberty”, we direct that:-
i. The National Council of Educational Research and
Training (NCERT) and the State Council of Educational
Research and Training (SCERT) shall incorporate gender-
responsive curricula, more particularly, on
menstruation, puberty, and other related health
concerns (PCOS, PCOD, etc.), with a view to break stigma
and taboo associated with menstrual health and hygiene.
ii. All teachers, whether male or female, shall be adequately
trained and sensitized on menstrual hygiene, including
W.P. (C) No. 1000 of 2022 Page 123 of 126
appropriate ways of supporting and assisting
menstruating students.
iii. Information regarding the availability of Jan Aushadhi
Suvidha Oxo-Biodegradable Sanitary Napkin shall be
widely disseminated through advertisement in social
media, print media, radio advertisement, TV
advertisement, cinema advertisement, and outdoor
publicity like bus queue shelter branding, bus branding,
auto wrapping, wall paintings.
iv. The child helpline set up by the National Commission for
Protection of Child Rights in furtherance of Rule 26 of the
RTE Rules be disseminated forthwith through social
media, print media, radio advertisement, TV
advertisement, cinema advertisement, etc.
174. The District Education Officer (DEO) is directed to conduct
periodic inspections, preferably once in a year, of school
infrastructure, particularly with regard to toilet and washing
facilities, availability of menstrual absorbents, sanitary waste
disposal mechanisms and training/awareness measures
undertaken by the concerned school. Whilst conducting such
periodic inspections, the DEO must mandatorily obtain
anonymous feedback in the form of a tailored survey from the
students themselves and ensure that any further action taken
pursuant to such a periodic inspection gives due regard to the
responses received from such a survey.
W.P. (C) No. 1000 of 2022 Page 124 of 126
175. The aforementioned action taken by the DEO must be in
accordance with Section 18 of the RTE Act read with Rule 16 of
the RTE Rules. Additionally, for the purpose of ensuring that
transparency and accountability is fixed on part of both the DEO
and the concerned school respectively, the DEO must annex a
copy of the report of the periodic inspection and a copy of the
consolidated responses received from the student survey along
with the notice which is to be issued under Rule 16(1)(a) of the
RTE Rules.
176. The National Commission for Protection of Child Rights
(NCPCR), or, as the case may be, the State Commission for
Protection of Child Rights (SCPCR), is requested to oversee the
implementation of the aforesaid directions. In case of non-
compliance, the NCPCR and SCPCR shall take necessary steps
as provided under Sections 15 and 24 of the Commissions for
Protection of Child Rights Act, 2005, respectively. Section 15 of
the said Act vests the Commissions with the power to
recommend that the concerned Government or authority take
appropriate action. Thus, the powers of the DEO and the
concerned Commission are not overlapping.
177. We do not say for a moment that the steps taken by the States
at present be discontinued in view of the aforesaid directions.
These directions, along with the Union’s Menstrual Hygiene
Policy for School Girls, shall operate as mandatory standards in
W.P. (C) No. 1000 of 2022 Page 125 of 126
addition to the steps being taken by the States through its
policies, schemes, programmes etc.
178. Considering the nature of the case, the Union will have to satisfy
us on substantial compliance. In this regard, we, therefore,
issue a continuing mandamus. Th e Union shall also ensure
upon the compliance of our directions and guidelines in all
States. It will be for the Union to also apprise us on the
compliance by all the States.
179. The Union of India and all the States and Union Territories
respectively shall ensure that the aforesaid directions are strictly
complied with within a period of three months from the date of
the pronouncement of this judgment.
180. Before we part, we would like to say something on the issue we
have addressed. This pronouncement is not just for the
stakeholders of the legal system, it is also meant to be for the
classroom where girls hesitate to ask for help, it is for the
teachers who want to help but are restrained due to lack of
resources, and it is for the parents who may not realize the
impact of their silence, and for the society to establish that
progress is measured how we protect the most vulnerable. 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. These words must travel
beyond the courtroom, law review reports, and reach the
everyday conscience of society at large.
W.P. (C) No. 1000 of 2022 Page 126 of 126
181. The Registry shall forward one copy each of this judgment to the
following:-
i. All the High Courts;
ii. All State Governments/Union Territories through Secretary,
Ministry of Health and Family Welfare, Government of India;
iii. Secretary, Ministry of Education, Government of India;
iv. Secretary, Ministry of Drinking Water and Sanitation,
Government of India;
v. Secretary, Ministry of Women and Child Development,
Government of India.
182. We treat this matter as part heard. The Registry shall notify this
matter after three months alongwith the compliance report on
behalf of the States and Union Territories before this very Bench.
…………………………..J.
(J.B. PARDIWALA)
.…………………………..J.
(R. MAHADEVAN )
New Delhi;
30
th January, 2026
In a landmark ruling, the Supreme Court of India has issued a continuing mandamus, reaffirming that access to adequate Menstrual Hygiene Management (MHM) in Schools is an integral component of the fundamental Right to Education India. This pivotal judgment, now available on CaseOn, underscores the State's positive obligation to ensure that all adolescent girls can pursue their education with dignity and without discrimination. The decision emphasizes that a lack of proper menstrual hygiene facilities and education not only impedes academic progress but also violates fundamental constitutional rights, setting a crucial precedent for educational and social reforms across the country.
The petition, filed by social worker Dr. Jaya Thakur under Article 32 of the Constitution, highlighted a critical barrier to girls' education: the pervasive lack of proper menstrual hygiene management in schools across India. Specifically, the plea sought directions for:
The court acknowledged the two-fold problem arising from inadequate MHM: increased absenteeism and ultimately, dropping out of school for adolescent girls. The Union of India and several States admitted to existing taboos, limited access to sanitary products, and unsafe practices due to lack of facilities.
The Supreme Court meticulously examined the issue through the lens of fundamental rights enshrined in the Indian Constitution and international human rights law.
The court reiterated that the right to elementary education under Article 21A, read with the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), is not merely about formal enrollment but about ensuring meaningful, continuous, and quality education. This right is seen as a “multiplier right” that enables the exercise of other human rights. The RTE Act mandates free and compulsory education, meaning no child should incur expenses that act as a barrier to completing elementary education. The court found that the lack of MHM measures creates such financial and practical barriers, disrupting attendance and hindering academic performance.
The judgment adopted a substantive approach to equality, moving beyond mere formal equality to address systemic, institutional, and contextual barriers. It recognized that menstruation, combined with social, economic, or physical disadvantages (like disability or poverty), creates unique challenges for adolescent girls, denying them equal opportunities. Affirmative action, such as providing MHM measures, is essential to level the playing field and achieve true equality.
The court emphasized that the right to life under Article 21 includes the right to live with dignity, which is intrinsically linked to health and privacy. Menstrual health was recognized as an integral facet of reproductive health. The absence of safe and hygienic MHM measures subjects girls to stigma, stereotyping, humiliation, and unsafe practices, violating their bodily autonomy and dignity. The right to privacy also encompasses decisional autonomy over intimate personal matters, including menstrual care, which cannot be truly exercised without adequate facilities.
The court drew upon international instruments such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). These treaties obligate State Parties to ensure non-discrimination in education, reduce female student dropout rates, and take measures to redress de facto discrimination, all of which align with the need for robust MHM in schools.
The Supreme Court's analysis meticulously connected the theoretical rights to the practical realities faced by menstruating girls in schools.
Research presented to the court revealed that a significant number of girls lack basic information about menstruation, and inadequate sanitation facilities contribute to absenteeism and dropouts. Girls in government schools were more likely to be absent due to MHM issues. This directly undermines the substantive equality principle, as it prevents girls from participating meaningfully in the educational process and broader societal opportunities.
The lack of gender-segregated washrooms, sanitary products, and disposal mechanisms forces girls into undignified situations, leading to fear of staining, embarrassment, and opting to stay home. This absence of dignity and privacy infringes upon their bodily autonomy and the right to make choices about their personal health, which are core aspects of Article 21.
The court clarified that the term “free” in the RTE Act extends beyond school fees to all expenses that prevent a child from accessing and completing education, including costs associated with MHM. The lack of free sanitary products thus constitutes a financial barrier. Furthermore, Section 19 of the RTE Act mandates certain “norms and standards” for schools, including barrier-free access and separate toilets. The court held that MHM facilities are integral to these standards, and financial constraints cannot be an excuse for non-compliance, as it directly impacts the quality of education guaranteed under Article 21A.
For legal professionals and students seeking to quickly grasp the nuances of such critical judgments, CaseOn.in offers concise 2-minute audio briefs, providing an efficient way to analyze rulings on topics like Menstrual Hygiene Management (MHM) in Schools and the Right to Education India without deep diving into lengthy texts.
A crucial aspect highlighted by the court was the need to involve boys and male teachers in menstrual awareness programs. Ignorance and prevailing taboos lead to insensitivity, teasing, and stigma, creating a hostile environment that discourages girls from attending school. The judgment emphasized that menstrual health is a shared responsibility, not just a “woman’s issue,” and open discussions are vital to normalize it as a biological fact and foster empathy.
To address these systemic issues, the Supreme Court issued the following comprehensive directions, effective within three months from the judgment date (30th January 2026):
The Union of India is entrusted with the responsibility of ensuring substantial compliance by all States and Union Territories and must apprise the court of compliance within three months.
This judgment is a crucial read for lawyers, legal professionals, and students alike for several reasons:
Expansive Interpretation of Rights: It demonstrates the Supreme Court’s proactive and expansive interpretation of fundamental rights, particularly Articles 14, 21, and 21A, linking seemingly disparate issues like menstrual hygiene to the core constitutional guarantees of equality, dignity, privacy, and education. It emphasizes that these rights demand positive state action.
Substantive Equality in Practice: The ruling champions the concept of substantive equality, moving beyond formalistic approaches to recognize and redress structural disadvantages. This framework can be applied to various other social justice issues where unequal starting points prevent marginalized groups from fully exercising their rights.
Reinforcing RTE Act Mandates: It clarifies and strengthens the mandates of the RTE Act, emphasizing that 'free' and 'quality' education necessitates adequate infrastructure and essential provisions like MHM facilities. This has significant implications for educational policy and resource allocation.
Intersectionality in Jurisprudence: The judgment subtly touches upon intersectionality by acknowledging how gender, economic status, and disability can compound disadvantages, requiring tailored solutions and reasonable accommodation.
Holistic Approach to Social Change: By involving male teachers and boys in menstrual hygiene awareness, the court highlights the necessity of a holistic societal approach to dismantle taboos and foster empathy, recognizing that legal mandates alone are insufficient without cultural shifts.
Accountability and Monitoring: The detailed directions for periodic inspections, student feedback, and oversight by national and state commissions establish a robust mechanism for accountability and effective implementation, offering a model for monitoring other welfare schemes.
This pronouncement transcends the courtroom, aiming to impact classrooms and foster a society where every girl child can pursue her education with dignity, free from the burden of biological stigma and resource scarcity. It’s a powerful affirmation that social progress is measured by how effectively we protect our most vulnerable.
Disclaimer: All information provided in this blog post is for informational purposes only and does not constitute legal advice. While efforts have been made to ensure accuracy, readers should consult with a qualified legal professional for advice on specific legal issues. CaseOn.in is a platform for legal research and learning, and users should exercise their own judgment and discretion.
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