Ritwik Sharma
Abstract: This article argues that menstrual exile through “period huts” constitutes untouchability under Article 17. Critiquing the Supreme Court’s ignorance of this social evil in Dr. Jaya Thakur v. Government of India while ensuring menstruating rights of girl students, it advocates a broader, transformative interpretation of Article 17 as a horizontally enforceable “multiplier right” to dismantle stigma and ensure substantive equality for menstruating individuals.
I. INTRODUCTION
On 31st January 2026, the Supreme Court of India in Dr. Jaya Thakur v. Government of India & Ors. (‘Jaya Thakur’) held the right to menstrual hygiene as a fundamental right under Article 21A of the Indian Constitution. The Court issued a continuing mandamus directing all schools in the country to provide gender-segregated toilets and free oxo-biodegradable sanitary napkins complying with the ASTM D-6954 standards to all girl students. While being a welcome directive, the Supreme Court did not take into account the ill practice of menstrual women and children being banished to ‘period huts’ until the end of the menstrual phase of their cycle in certain parts of India such as Maharashtra. Termed as ‘menstrual exile’, this segregation and structural stigmatization of menstruating individuals is violative of the fundamental right to equality and the right to life. However, given that the practice continues unabated, this piece offers an alternative legal lens for protecting such individuals by analysing the Supreme Court’s interpretation of “untouchability” in Indian Young Lawyers Association & Ors. v. the State of Kerala & Ors. (‘Sabarimala judgement’) and its missed relevance in Jaya Thakur to advocate for the consideration of menstrual exile as a form of untouchability. This piece discusses the constitutional legitimacy of the consideration of menstrual exile as an explicit form of menstrual untouchability, and in doing so, it proposes the use of Article 17 instead of the Golden Triangle framework under Articles 14, 19 and 21 to guarantee freedom from confinement of menstruating individuals in period huts during menstruation. Further, the piece recommends the recognition of Article 17 as a multiplier right in the spirit of transformative constitutionalism to combat menstrual untouchability.
II. BEYOND CASTE: MENSTRUAL UNTOUCHABILITY
Article 17 does not define untouchability, but abolishes its practice in ‘any form,’ with the disability arising out of it being an offence punishable ‘in accordance with law.’ Interestingly, the word ‘untouchability’ also remains undefined in the Protection Of Civil Rights Act, 1955 (‘PoCRA’), yet both Article 17 and the PoCRA use the term in quotation marks. Dr. B.R. Ambedkar’s rejection of Naziruddin Ahmad’s suggestion to add the terms ‘caste’ and ‘religion’ to Article 17 in the Constituent Assembly’s Volume VII debate on 29th November 1948 suggests that the legal meaning of the term ‘untouchability’ is intended to be inclusive, and cannot be restricted to caste-based discrimination alone. This space to interpret the Constitution through a broad and liberal sense to meet the changing needs of society has been echoed by the Supreme Court in Transmission Corporation. of A.P. v. Ch. Prabhakar wherein it observed that in the context of fundamental rights that the most beneficial construction which grants the widest possible amplitude of powers needs to be adopted to meet the needs of a changing society.
In the Sabarimala judgement, the Supreme Court accepted an inclusive interpretation of the term “untouchability” by upholding constitutional morality under Article 17 over the social custom of excommunicating menstruating women in the Sabarimala temple premises. In particular, the observation of the Court in paragraph 258 legitimizes the application of untouchability to the context of segregation of women on the basis of their menstrual status.
The then Chief Justice of India, HMJ Dipak Misra observed in paragraph 258 that the notions of pollution and purity limit a menstrual woman’s ability to obtain the freedom of movement and her access to the public sphere. Undoubtedly, menstrual exile is motivated by notions of pollution and purity, the same driving ideological basis of caste-based untouchability. I argue that the essence of applicability of Article 17 is to all such instances where the ideological basis of differential treatment in the right to access public or private spaces is the same notion of pollution and purity. This view is supported by the Court’s express ruling that Article 17 applies to the systemic humiliation and exclusion faced by women. Therefore, the social imposition of any exclusionary disabilities on the basis of menstrual status is squarely violative of Article 17 and amounts to “untouchability.” This makes the practice of menstrual exile unconstitutional, and violative of the fundamental right against untouchability. Consequently, Article 17 protects menstruating women and children from menstrual untouchability.
This approach is supported by the Supreme Court’s recent decision in Jane Kaushik (Transgender Rights Enforcement) v. Union of India (‘Kaushik’) wherein it was observed that while the Constitution captures both formal and substantive equality, the latter requires an active obligation of the state to prohibit discrimination. The Supreme Court in the Sabarimala judgement in its decision to consider the exclusion of women from temples as a form of untouchability, was driven by a duty to accommodate this very form of substantive equality that takes into account past discrimination. I argue that the exclusion of menstrual untouchability from the idea of untouchability would be an example of omissive discrimination, which is a refusal to redress systemic disadvantage and address stigma. Sendra Fredman’s four-dimensional approach to ensure substantial equality, which has been relied on in Kaushik, lists these two elements as two pillars of achieving structural change. The first step towards ending the culture of period huts would therefore be recognizing the formal, positive right against menstrual untouchability under Article 17. Doing so imposes an obligation on the State to address the extant omissive discrimination by legislating against this practice to bring about substantive equality.
III. WHY ARTICLE 17 IS THE RIGHT TOOL TO COMBAT MENSTRUAL EXILE
The Golden Triangle framework under Articles 14, 19 and 21 has historically only enjoyed vertical enforceability, against state actors. While the Supreme Court in Kaushal Kishor v. State of Uttar Pradesh (‘Kishor’) expanded the horizon of Articles 14 and 21 by allowing for horizontal applicability, the majority judgement in Kishor fails to take into account that this expansion is largely redundant due to the existence of common law remedies, as emphasized in HMJ Nagarathna’s dissenting opinion. The extent of writ jurisdiction is largely limited to instances where all other remedies have been exhausted. Hence, Articles 14 and 21 cannot always be evoked against private actors when alternate and efficacious remedies can be availed in common law. Relying on these Articles in cases of untouchability therefore does not sufficiently further the objectives of Transformational Constitutionalism.
The majority judgement in Kishor, however, re-iterated that certain fundamental rights, particularly under Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) inherently enjoy horizontal enforcement against non-state actors, as envisioned to be availed as such by the drafters of the Constitution itself. For these rights, alternative equitable remedies in common law do not exist. For menstrual untouchability specifically, the omissive discrimination is particularly clear as the PoCRA does not expressly recognize it as a “social disability,” under Section 4 while recognizing many other acts of untouchability. This discrimination leaves a statutory blind spot for instances of menstrual untouchability, with there being no legislative remedy for aggrieved parties. Hence, the aforementioned rights are better-suited to tackle a social evil like menstrual untouchability and exile.
Out of these, the right against untouchability under Article 17 is the best equipped to tackle cases of menstrual exile. The Supreme Court’s analysis of the Transgender Persons (Protection of Rights) Act, 2019 in Kaushik about its limited enforcement mechanisms reducing its transformative potential in the context of operationalizing the horizontal effect of fundamental rights rings true for the PoCRA too, given the absence of a definition of the term “social disabilities” in the Act. Hence, the liberal interpretation of Article 17 post the Sabarimala judgement offers an effective constitutional route to tackle legislative omissive discrimination for menstrual untouchability.
IV. CONSIDERATION OF ARTICLE 17 AS A ‘MULTIPLIER RIGHT’ AS THE WAY FORWARD
The missed opportunity in Jaya Thakur to direct a prohibition on period huts substantiates the view that the Golden Triangle framework alone cannot be used to curtail harmful social practices when they are confined to domestic or private spaces. While the Supreme Court in Jaya Thakur routed the right to menstrual facilities under Article 21A in context of the right to education, paragraph 258 of the Sabarimala judgement also recognized that practices which legitimize menstrual taboos due to notions of “purity and pollution” violate the right to education. Hence, the Court erred in overlooking the need to curtail the practice of menstrual exile when issuing directions for the enforcement of mandating appropriate toilet facilities for menstruating students in schools across India.
Until judicial activism catches up, a possible solution is legislative prohibition on any premises being used as a period hut. However, as experience in jurisdictions like Nepal has revealed, a mere statutory ban does not lead to enforcement. Another proposed solution to improve the quality of life of women suffering from menstrual exile is to build better facilities for them in menstrual homes such as for women in tribal pockets of Maharashtra. I argue that this approach is wholly against the spirit of transformative constitutionalism, and defeats the constitutional doctrine of non-retrogression. Instead, the focus should be to aggressively utilize the Sabarimala judgement’s liberal interpretation of menstrual seclusion as a form of untouchability under Article 17 and to avail remedies under writ jurisdiction. The inherent horizontal applicability of Article 17 will ensure seamless enforcement as unlike other fundamental rights, untouchability operates directly against private individuals and social communities.
That said, Article 17 itself must become the flagbearer of transformative constitutionalism. I welcome Jaya Thakur’s recognition of the fundamental right to Education under Article 21A as a ‘multiplier right’ which enables the recognition and exercise of other rights. The best example of a multiplier right is inevitably the Right to Life, which Courts have increasingly used to encompass various new facets within the cover of Article 21 of the Constitution. Given that the State is already under a Constitutional obligation under Article 14 to remedy structural disadvantages such as challenges related to menstrual hygiene and Jaya Thakur exemplifies the judicial trend to course-correct the State where it has lacked, there is a substantial scope for the Supreme Court to use other fundamental rights to give tangible directives that further social justice. Hence, the judicial acknowledgement of Article 21A as a multiplier right is a step forward as it opens the doors for the other fundamental rights that have been underutilized so far to be actively used in reducing structural inequalities through their potential as multiplier rights. As eloquently observed by the learned HMJ Vivian Bose in State Of West Bengal v. Anwar All Sarkarhabib Mohamed, the words of the Constitution are not merely lifeless, static or hidebound as in some mummified manuscript, but are living flames to give life to a great nation; and the courts must let the spark of Article 17 set the menstrual huts of India ablaze.
Ritwik Sharma is a fourth-year student at Rajiv Gandhi National University of Law, Punjab with a keen interest in Constitutional law, Technology law, and intersectional studies. Beyond academics, Ritwik is interested in Psychology, Literature and Mythology.