Menstrual health part of right to life, says SC, orders free sanitary pads, separate toilets in all schools

“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,” the bench said.

“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 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,” the bench said.

The absence of MHM measures “does not merely disrupt a girl child’s presence in school,” it said. “It impairs her access to opportunities both during schooling and later in life. The absence of MHM measures at school would lead to recurrent absenteeism, which would result in gap in learning. Over a period of time, these gaps would translate into lower academic performance, and reduced participation in classroom…The resultant effect of frequent and prolonged absenteeism is dropping out,” it added.

The court said that “substantive equality can be meaningfully realised 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.”

“Access to safe, effective and affordable menstrual hygiene management measures helps a girl child attain the highest standard of sexual and reproductive health. The right to healthy reproductive life embraces the right to access education and information about sexual health,” the bench said.

The court asked all States and UTs to “ensure that every school, whether government-run or privately managed, in both urban and rural areas, is provided with functional, gender-segregated toilets with usable water connectivity.”

It directed that all the existing and newly constructed toilets in schools should be designed, constructed and maintained so as to ensure privacy and accessibility, including by catering to the needs of children with disabilities and “all school toilets shall be equipped with functional hand-washing facilities, with soap and water available at all times.”

The schools should provide “oxo-biodegradable sanitary napkins manufactured in compliance with the ASTM D-6954 standards free of cost,” it said. “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,” it added.

The court asked schools to also “establish MHM corners” which “shall be equipped with, including but not limited to, spare innerwear, spare uniforms, disposable bags, and other necessary materials to address menstruation-related exigencies”. There should also be “safe, hygienic, and environmentally compliant mechanism for the disposal of sanitary napkins, in accordance with the latest solid waste management rules”, it said.

Referring to the Schedule to the Right to Education Act, which says that school buildings shall have “barrier-free access” and “separate toilets for boys and girls”, the bench said Section 19 of the Act states that no school shall be recognised until it fulfills the norms laid down in the Schedule.

The requirement for “barrier-free access” must be understood in a substantive sense, the bench said. “It obliges the schools not to merely 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 dropout of girls from school,” it said.

Accordingly, it directed that “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-recognised 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,” it said.

The bench also directed district education officers (DEO) “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.”

To spread awareness and provide training about menstrual health and puberty, the bench asked the National Council of Educational Research and Training (NCERT) and the State Council of Educational Research and Training (SCERT) to “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.”

“Information regarding the availability of…sanitary napkins shall be widely disseminated through advertisement in social media, print media, radio advertisement, TV advertisement, cinema advertisement, and outdoor publicity like bus…shelter branding, bus branding, auto wrapping, wall painting,” it said.

It also asked the National Commission for Protection of Child Rights (NCPCR), or, as the case may be, the State Commission for Protection of Child Rights (SCPCR), “to oversee the implementation” of its directions. The court said these “directions, along with the Union’s Menstrual Hygiene Policy for School Girls, shall operate as mandatory standards in addition to the steps being taken by the States through its policies, schemes, programmes etc”.

Directing the Centre, States and UTs to ensure that its directions are “strictly complied with within a period of three months from the date of the pronouncement of this judgment”, the bench said: “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. The Union shall also ensure… 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.”

The ruling came on a PIL filed by a petitioner, Jaya Thakur, through Advocate Varun Thakur, seeking directions to the Centre, States and UTs to ensure the provision of free sanitary napkins for girls studying in Classes 6 to 12, separate toilet facilities and to undertake awareness programmes.

The court will now hear the matter after three months when it will consider the compliance reports from the Centre and States.