SC Concludes Menstrual Leaves May Harm Women’s Careers, After Designating Menstrual Hygiene as a Fundamental Right

Key Points

The Supreme Court, on 13 March 2026, dismissed a public interest litigation (PIL) seeking a nationwide menstrual leave policy, arguing this would reinforce gender stereotypes and negatively impact women’s employment. Earlier on 30 January 2026 in a separate case, the court had designated menstrual hygiene as a fundamental right.

While hearing the more recent plea, a Bench of Chief Justice Surya Kant and Justice Joymalya Bagchi remarked: “These pleas are made to create fear, to call women inferior – that menstruation is something bad happening to them. This is an affirmative right but think about the employer who needs to give paid leave.”

The Bench also questioned the locus standi of the petitioner, Shailendra Mani Tripathi, arguing that a woman herself has not approached the court. “These petitions are deeply rooted, designed PILs. You are not a bona fide petitioner. This is basically only to create a type of impression in young women that you still have some natural issues and you are not at par with male persons and you cannot work like them during a particular time,” CJI Kant commented.

Tripathi had earlier filed two similar petitions which were disposed of by the court. In the first case, the petitioner was directed to approach the Union Ministry of Women and Children. In the second, after the Ministry did not respond to Tripathi, the court ordered the Central government to take a policy decision in the matter.

Even in this instance, the Bench observed that the competent authority should examine the earlier representation, consult relevant stakeholders, and consider drafting a policy in the matter. “It is for the government to take a call,” Justice Bagchi remarked.

The petitioner’s counsel argued that states like Odisha, Bihar and Karnataka have already implemented menstrual leave policies, while Kerala has enforced a similar directive across schools. The counsel also added that many private companies voluntarily allow such leaves.

“Voluntarily they are giving, then it is excellent,” CJI Kant observed. “But the moment you say it is a compulsory condition in law, you do not know the damage it will do to the career of women. Nobody will give them responsibilities. Not even in judicial services, a normal trial will be assigned to them. Their career will be over. They will say you should sit at home after informing everyone.”

Considering the “long-term impact” of such a policy, Justice Bagchi further said: “Affirmative action in respect of females is constitutionally recognised. But look at the practical reality in the job market. The more unattractive the human resource, the less is the possibility of assumption in the market. Look at the business model. Will any employer be happy with the competing claims of other genders?”

The court’s decision in the matter sharply contradicts observations made by another Bench earlier this year.

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SC Designates Menstrual Hygiene as a Fundamental Right

Passing judgement on a petition filed by Dr. Jaya Thakur, a Division Bench of Justices JB Pardiwala and R Mahadevan, on 30 January 2026, held that menstrual health falls under the ‘right to life’ and the ‘right to live with dignity’ under Article 21 of the Constitution.

The petition detailed a lack of menstrual hygiene management (MHM) measures across Indian schools and sought implementation of a nationwide “Menstrual Hygiene Policy for school-going girls.” The Bench noted that a lack of such measure is a violation of students’ right to privacy and bodily autonomy. It further concluded that the right to menstrual health intersects with the right to free and compulsory education under Article 21A.

Pronouncing a verdict on the case, the Bench prefaced their conclusion with a quote by American educator Melissa Berton: “A period should end a sentence – not a girl’s education.”

“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 remarked.

The court further issued directives to States and Union Territories to ensure all students are provided with free, biodegradable sanitary napkins along with adequate measures for disposal; all schools are equipped with functional, gender-segregated washrooms and ‘MHM corners’ to address menstruation-related emergencies; and all teachers are trained in sensitive menstrual hygiene management and gender responsive material is incorporated into school curricula.

“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 observed.

The Bench concluded its judgement, stating, “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.”

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Contradiction in the Court

Side by side, the two Supreme Court judgements reveal a stark contrast: in one instance, affirmative action for menstrual hygiene is deemed to ensure equality of education; on the other hand, accommodations are seen as a hurdle to equal employment.

The January 2026 judgement acknowledged the stigma surrounding menstruation but also noted the substantive impact that results from it. “The absence of sanitary napkins and a hygienic mechanism to dispose of it results in absenteeism, or drop-out of girls from school,” the Bench had noted. It further emphasised destigmatisation as necessary for ensuring menstrual hygiene.

In the March 2026 judgement, the court noted affirmative action as the cause of stigma. The Bench went so far as to argue that menstrual leaves would exacerbate gender inequality in the workplace.

Notably, in arriving at this conclusion, the Bench seemed to consider the situation from the perspective of businesses looking to hire women. It did not at any point, however, look at the merits of the argument. In doing so, the judgement seems to have overlooked the varied health consequences of menstruation itself, while also failing to provide any redressal mechanisms for the discrimination faced by women in the workplace.

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