From Rights Recognition To Resource Deficit: Implementation Realities After Dr. Jaya Thakur v. Union Of India

The Supreme Court in the case of Dr. Jaya Thakur v. Union of India marks a very progressive shift and has set a milestone for menstrual health rights in India by recognising menstrual hygiene as a component of equality, dignity, health and education under Articles 14, 21, and 21A. The court has adopted the rights-based approach in this case and not the charitable-based approach by clearly mandating free sanitary pads, separate and clean toilets, trained staff, awareness initiatives and scientific waste disposals.

However, if we examine India's existing school sanitation and educational infrastructure, a serious concern emerges because, according to empirical data studies, the gap between constitutional ideals and on-the-ground implementation is structural, not merely administrative.

This article critically examines the Supreme Court's decision in this particular case by assessing the gap between constitutional recognition of menstrual dignity and the State's administrative capacity to implement it, highlighting how rights risk remaining symbolic without statutory backing and infrastructural readiness.

Do Supreme Court Directions Match India's Sanitation Realities?

Although in this case, the court has basically recognised menstruation to be acting as a barrier to girls' education, which can become the clear cause for absenteeism, stigma and dropout from schools that sought to prevent exclusion arising from biological realities. Moreover, these directions basically assume the existence of basic school infrastructure, which is an assumption that fails in large parts of India. According to the data of the WHO (2023), which shows that 47 million children in India lack school sanitation, making India the world's largest contributor to this deficit. However, the court's expecting comprehensive menstrual hygiene management where toilets and water are absent, which clearly reflects constitutional idealism, risking paper compliance while rural and tribal realities remain unchanged.

According to the data of the National Family Health Survey (NFHS-5), which indicates improved use of hygiene methods, i.e. 77.3% while the inequalities persist, as nearly half, i.e. 49.3% of girls still rely on cloth or local absorbents as a result of compulsion and not choice. However, uniform judicial directions without any differentiated framework may deepen inequality, as even if the girls get the free napkins from schools, there is not even facilities of dumping grounds for them. Moreover, neither the National Health Policy 2017 nor the National Education Policy 2020 addresses the concern of menstrual hygiene, clearly leaving rights unenforceable without legislative backing.

Why Does Menstrual Hygiene Remain Neglected In Schools Despite Legal And Judicial Recognition?

The Right to Children to Free and Compulsory Education Act, 2009, provides a robust yet still underutilised statutory basis as far as menstrual hygiene entitlements are concerned. Section 3 of this Act guarantees not merely admissions, but freedom from all financial and structural barriers to regular school attendance. The absence of menstrual hygiene products in school imposes an indirect financial cost on menstruating girls, forcing them to miss school during their cycle.

The Supreme Court in Society for Unaided Private Schools of Rajasthan v. Union of India interpreted Section 3 of RTE Act as a safeguard against any barrier and held that failure of the state to provide basic menstrual absorbents to school-going girls equally amounts to the imposition of an indirect cost on their education. Furthermore, Section 19 of the act mandates minimum “norms and standards” for school recognition, including separate toilets for girls. Despite this explicit requirement, multiple High Court findings, including a 2025 suo motu PIL in the Daily News Paper, Dainik Bhaskar, Chhattisgarh, reveal hundreds of schools with unusable or common toilets, affecting not only students but female teachers as well.

Moreover, Indian courts have consistently recognised menstrual dignity as part of the right to life, from Nikita Narayan Gore v. Union of India to State of West Bengal v. Krishnendu Biswas. Most recently, even the Supreme Court Bar Association has approached the Court seeking guidelines to protect menstrual dignity at workplaces. Hence, these persistent infrastructural failures reveal that the judicial recognition alone cannot be able to alter these lived realities. However, courts can only articulate rights, but without administrative accountability and capacity, this constitutional recognition will only become symbolic rather than transformative.

The Way Forward: Strengthening Implementation Frameworks

Therefore, the problem does not rely on the judicial ambition; it is more focused on the administrative unreadiness for the implementation of the same. Hence, for this judgment of Jaya Thakur to become another well-meaning yet weakly implemented judgment, structural reforms are the need of the hour. There are certain suggestions which can act as a catalyst for the implementation mechanism of the directions issued by the Hon'ble court-

Firstly, District Legal Services Authorities (DLSAs) should be institutionally integrated into the process of implementation. With the help of funds, it can conduct awareness programmes, monitor complaints and also provide with the grievance redressal at the district level, for ensuring decentralised accountability.

Secondly, the most important thing is that the concept of menstrual hygiene facilities should be expressly incorporated under Section 19 of the RTE Act, which basically talks about the “norms and standards”. However, this will result in the statutory recognition of these consitutional interpretation into an enforceable obligation over the schools, which ultimately reduces the dependence on the executive discretion.

Thirdly, the implementation should be integrated with the existing schemes such as Samagra Siksha, Menstrual Benefits Bill, 2024, Jal Jeevan Mission and the School Health & Wellness Programme, instead of creating parallel bureaucratic frameworks.

Hence, Dr. Jaya Thakur v. Union of India represents an important constitutional moment, while these constitutional moments should translate into constitutional living. Since constitutional promises don't fail because courts dream big, they mainly fail because the State doesn't build enough. Unless implementation capacity is enhanced, menstrual dignity will be acknowledged in judgments but ignored in classrooms where it matters the most.

Authors are Law students of Maharashtra National Law University. Views are personal