Does a tax on sanitary pads violate Article 15(1) of the Constitution?

The last few days have seen a campaign asking for a removal of the tax on sanitary pads (which is 5% in Delhi, and goes up to 14% in certain states). It has been argued that the premise of taxing sanitary pads is that they are luxury items; however, their impact on reproductive health and the overall well-being of women, at home and in the workplace, marks them out as essential items rather than luxury goods.

In this post, I will attempt to advance an alternative, legal argument: I will contend that a tax specifically on sanitary pads is unconstitutional, since it amounts to “discrimination on grounds… of sex“, which is prohibited by Article 15(1).  While the argument itself is simple, the possible objections to it are many and complex; consequently, I shall address them in some detail.

Sanitary Pads and Article 15(1)

Article 15(1) prohibits, inter alia, sex discrimination. Discrimination, both in its common usage, as well as in the understanding of the Supreme Court, broadly means to unequally allocate benefits and burdens among identifiable classes of people.

Sanitary pads, by definition, are used only by women. A tax on sanitary pads therefore amounts to a burden upon women. Or, to put it another way, but for being a (menstruating-age) woman, an individual would not be burdened by the sanitary pad tax. Under the classic definition, therefore, the tax discriminates on “grounds of sex.”

This probably sounds rather counter-intuitive. Perhaps the following analogy might help: would not a specific tax on crucifixes amount to discrimination on grounds of religion? If, intuitively, we think that it would, then there is every reason to hold that a tax on sanitary pads amounts to discrimination on grounds of sex: sanitary pads are, arguably, even more important for women than crucifixes are for Christians. That it does not intuitively appear to be so is probably because of a host of political and historical reasons, which have ensured that religious identity is salient in a way that sexual identity is not.

Let us now consider the objections.

Objection 1: The tax is on items, not on persons

The first, obvious, objection is that the tax in question is not a tax on women, but a tax on sanitary pads. Article 15(1) only prohibits discrimination “on grounds of sex“. It does not prohibit discrimination that will ultimately effect a particular sex only (readers will notice echoes of Koushal vs Naz, which held that Section 377 punished only acts, not people).

It is far too late in the day, however, to advance this argument. It is now firmly established, through more than six decades of constitutional jurisprudence (and indeed, pre-constitutional jurisprudence), that the correct test to be used in determining the constitutionality of a statute is not its object or form, but its effect upon rights. This was the holding of the Constitution Bench of the Supreme Court in Khandige Sham Bhat vs Agricultural Officer, in Prem Chand Garg vs Excise Commissioner, and – specific to Article 15(1) – in  Anuj Garg vs Hotel Association. Consequently, the fact that the tax is not a tax on women makes no difference; the fact that it affects women, and women alone, brings it within the ambit of Article 15(1).

Objection 2: “On grounds only of…

A second possible objection might point to the text of Article 15(1), which prohibits discrimination on “grounds only of… sex.” Focusing on the word “only“, the argument would then be that the tax does not burden all women, but only menstruating-age women who use sanitary pads. Consequently, it does not amount to discrimination on grounds only of sex, but “sex-plus”, as it were.

In the early years of Indian sex discrimination jurisprudence, various High Courts disagreed precisely on this issue. While some High Courts upheld putatively discriminatory laws on the basis that they took into account sex and other factors not within the ambit of Article 15(1), other High Courts held that Article 15(1) was applicable to discriminatory laws that were based on sex, and other factors “arising out of sex.” For our purposes, however, the controversy was put to rest by the judgment of the Supreme Court in Air India vs Nargesh Mirza, which held that pregnancy-based discrimination was hit by Article 15(1). The case of pregnancy, I would submit, is on all fours with the case of sanitary pads: not all women get pregnant, but only women get pregnant; similarly, not all women menstruate (and thereby need sanitary pads), but only women menstruate.

More broadly, jurisdictions world over are moving away from what the discrimination law scholar Tarunabh Khaitan calls the strict comparator test. In other words, it is no longer necessary to show, in order to make out a claim of discrimination, that a law must burden all members of one defined class, as opposed to the other. Discrimination law is shifting its focus, rather, to the question of whether laws disadvantage members of a class by virtue of their belonging to that class. That, as we have seen, is clearly the case here.

Objection 3: No Comparator

A more subtle form of the objection, however, might be as follows: given that there is simply no equivalent to sanitary pads for men, it makes no sense to say that a tax on sanitary pads discriminates against women; the whole point of discrimination law is that it is comparative. If, therefore, you cannot by definition tax men on the equivalent of sanitary pads, because such an equivalent doesn’t exist, then the act of taxing women might be problematic in other respects, but it is not an act of discrimination.

Readers will note that this argument restates the comparator claim in a more subtle form: the claim is no longer that the comparison must be between all women and all men, but that there must be something to compare to.

There are three responses to this argument. The first is that the logic of Nargesh Mirza covers this situation as well. In Nargesh Mirza, it was held that penalising pregnancy amounted to sex discrimination, notwithstanding the fact that men could not, by definition, get pregnant. Here, the State is penalising the use of sanitary napkins, notwithstanding the fact that men do not, by definition, use sanitary napkins. The analogy with Nargesh Mirza might not be immediately intuitive, perhaps because, on reflex, we think of pregnancy as a condition, and sanitary pads as an item of use. On the comparator logic, however, both are the same.

Secondly, we can restate Khaitan’s point that the focus of discrimination law is shifting from comparison to disadvantage. Discrimination law now sees as its focus the redressal of structural and institutional conditions that have been historically responsible for subordination on the basis of certain personal characteristics, such as race, religion, gender, etc. Placing a monetary premium upon menstruation fits within this particular understanding of discrimination.

Thirdly, let us go back to our hypothetical of a tax on crucifixes: there is no specific equivalent of a crucifix in other religions. Can we then say that a tax on crucifixes does not discriminate against Christians? The answer is no. Now, you might argue that the comparator there is other religious symbols, such as the Muslim skullcap, or the Sikh turban. Fair enough; but let us imagine that there are only two religions, Christianity, and Religion X, which has no “symbols“, but is an entirely abstract religion. Now, would we say that a tax on crucifixes does not discriminate on grounds of religion? I would submit that the answer would remain no, suggesting that the purpose of discrimination law is to remedy systemic disadvantage, and not necessarily search for comparisons.

Objection 4: After-shave lotions?

The last objection is a consequential one: there are many products used exclusively by women, and many products used exclusively by men: for instance, aftershave lotion. Holding a tax on sanitary pads unconstitutional would mean that none of those products could be taxed. This is an absurd consequence, and any interpretation that supports this consequence must be rejected.

While I am somewhat tempted to bite the bullet and say yes, a tax on aftershave lotion would be unconstitutional on grounds of Article 15(1), I think that there is a crucial distinction between sanitary pads and aftershave lotion, and that it is a distinction that is relevant to discrimination law. This distinction requires us to stress once more that the point of discrimination law is not to capture every instance of dissimilar treatment on the “grounds” set out under Article 15(1), but to remedy disadvantage. It is here that the arguments made by the political campaign – referred to at the beginning of the post – become relevant, because it has been shown that the use of sanitary pads is crucial to women’s reproductive health, as well as their participation in the workforce on equal terms with men. Placing a monetary premium on sanitary pads, therefore, is discriminatory because it disadvantages women, on grounds of their sex, in a non-trivial way. I am not sure if a similar case can be made for aftershave lotion.

Conclusion

Let me sum up my argument. A tax on sanitary pads burdens only women, and is therefore presumptively hit by Article 15(1) of the Constitution. The fact that it does not affect all women (only menstruating women) makes no difference from the perspective of Article 15(1). The fact that it does not, by definition, affect men at all, also makes no difference from the perspective of Article 15(1). And finally, Article 15(1) is attracted because discriminatory treatment, in this case, causes substantive disadvantage to women on grounds of their sex. This makes the initial, presumptive applicability of Article 15(1) absolute.

*I am grateful to Suhrith Parthasarathy and Jawahar Raja for helping me think through some of the issues in this piece.

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29 Comments

Filed under Article 15 (general), Equality, Non-discrimination, Sex Discrimination, Uncategorized

29 responses to “Does a tax on sanitary pads violate Article 15(1) of the Constitution?

  1. Why can’t I find the name of the author anywhere on the article? Or am I not looking for it in the right places?

    • Saumya Sharma

      it’s by Gautam Bhatia, who runs this blog too. Unless the author’s name is explicitly mentioned, it is implicit that the author is Gautam Bhatia himself.

  2. Thank you so much for this thought provoking, brilliantly argued piece!

  3. Very well written piece! I understood your analysis of how this is discrimination on the basis of sex, however something I think goes missing in your analysis of the jurisprudence and structural reasons for why it is taxed, is how is taxation of these products something that uniquely satisfies the test for violation of Article 15? (is that even a relevant question that should be posed in the context of Article 15?)

  4. I agree that taxing sanitary pads is discriminatory toward women. However, I would invoke Article 14, Article 15(1) and Article 21 to argue this point.

    Also, Gautam Bhatia’s very well-intended discussion of this while very appreciable, labors a bit too much in my opinion, on countering objections that to my mind are objections which are not very convincing to begin with.

    I would put the case like this. Sanitary pads are essential items for menstruating girls and women and the majority of Indian girls/ women need to use them for at least 40-50 years of their lives. These are not luxury items but are indispensable for a menstruating female to live with dignity and to participate in human activity and in family and social life. A housewife needs these as much as a schoolgirl as much as a woman who goes out to work and as much as a woman farmer, etc.

    In the 21st century, the right to access and use sanitary pads could well be considered a human right of all women.

    Sanitary pads are also an essential item for reproductive health and overall health and again this will invoke the Article 21 right to life argument.

    Now why does the State exempt goods from tax. If one looks at the list at http://allindiantaxes.com/pdf/23123da1.pdf and probably if one checks the relevant notifications etc., one of the reasons is to exempt those goods that are indispensable for the poor to survive. The State acts as a welfare State here and refuses to tax those goods that are essential for the poor to survive

    Also certain essential items related to human activity are exempt.

    Thus agricultural implements, handicapped aids, bread, charcoal, condoms and contraceptives, electricity, human blood, indigenous soap, newspaper, meat, grains, rakhi, salt, semen, sugar, seeds, textiles, tobacco, toddy, water, clay idols etc., are all exempt from tax.

    The intent behind notifying an item as tax free in such cases appears to be an intent to not burden the consumer with tax because of the nature of the item and its perceived indispensability/significance to the user or because the State does not want to discourage its use by taxing the item. In these cases, the rationale is to keep the item cheaper for the consumer.

    In some other cases, the rationale is to not burden the manufacturer.

    Now I would argue that sanitary pads are essential for a woman’s right to live with dignity and with freedom and also for her overall health, not just reproductive health. A sanitary pad is as essential as condoms and contraceptives. In fact a sanitary pad is more essential as there is no element of choice in the needs for sanitary pads. A man may or may not choose to have sex, but a menstruating woman has no control over her periods.

    I would argue that by failing to apply the same criteria to sanitary pads as to these other items listed above, the State is failing in its duty to treat women with equality and is discriminating against women.

    I would place data and facts before the Court, pointing out how the usage of sanitary pads in India is still very low as compared to other more developed countries. I would show how lack of access to sanitary pads is responsible for the deterioration in the quality of life for girls and women. How it adversely affects their dignity, their freedom, their physical and mental health, their confidence, their self-esteem, their participation in education and in the work force, their ability to travel and move freely, their ability to participate in physical activity, etc. I would use data to show that the high cost of sanitary pads is a factor for their low usage in India.

    I would in fact argue that the State needs to go further and subsidize sanitary pads in India. These should also be distributed free in schools and to other needy women.

  5. Pingback: Does A Tax On Sanitary Pads Violate Article 15(1) Of The Constitution? | Live Law

  6. This is a very clear analysis.I agree with Seema Sapra. How would we think about pads for elderly people? All genders might need them – those who belong to a certain age or who have a certain condition. Indeed, you could classify sanitary pads under a larger umbrella as “incontinence pads”. I just learnt that some women who have heavy bleeding use them as menstrual pads as well. These pads are therefore used by all genders – either for menstruation or for absorbing urine. So why not use a different law: instead of discrimination based on sex (which raises difficult issues such as the ‘after-shave lotion’ objection) can one not frame the issue around access or dignity ( like Article 21 say?)

    But as it was rightly pointed out to me by Nandita Saikia (on fb) that dignity wouldn’t be the correct way to go as a dignity-based argument “..brings up the issue of why the visibility of menstrual blood is / should be seen as an indicator of indignity / being undignified. ”

    But as Seema Sapra pointed out above one could evoke Article 21 for sanitary pads/incontinence pads as they “are also an essential item for reproductive health and overall health and again this will invoke the Article 21 right to life argument.”

    • I agree that the State ought not to tax incontinence pads as well. I am not sure if the State does tax these at present.

      But I would not call sanitary pads (that are used for menstruation) incontinence pads. These are two very different products meeting two very different needs for two very different groups.

      And I would therefore prefer to make out a case for sanitary pads separately relying upon Articles 14, 15(1) and 21 as I have argued in my comment above.

      Why would you want to lump sanitary pads along with incontinence pads? It makes no sense. It dilutes the case for both products, which deserve to be considered and dealt with separately. Next someone might argue that diapers are also similar to sanitary pads.

      Coming to your suggestion that one should not invoke the dignity argument where you cite Nandita Saika. This I also disagree with. Of course, sanitary pads are essential for a woman to live a life with dignity within her family, community and society. And this does not equate to saying that menstruation should be treated as a taboo or as something not to be mentioned or seen publicly etc. Stating that sanitary pads are essential for a woman to live a life with dignity does not imply that menstruation is an undignified activity or that the sight of menstrual blood is undignified or abhorrent.

      No woman wants to go around for 4-5 days a month leaking blood between her legs, on her clothes and on the floor and on whatever she sits on. Not only is it extremely uncomfortable, it is unhygienic and inconvenient and it can cause rashes and other medical issues. And in a world where blood can transmit several diseases, it is also a health risk. There is nothing undignified in providing women the technology, the products and the facilities to collect this blood so that their daily life is inconvenienced to the bare minimum and they can carry on their human activities with dignity, freedom and privacy.

      This does not mean that the sighting of menstrual blood leaks which happen often enough should be viewed as something shameful etc.
      But it is preposterous to argue that the dignity argument should not be made the way that you suggest. The argument you make on dignity does not work in the real world.

      I repeat and reiterate that the lack of access to sanitary pads is responsible for the deterioration in the quality of life for girls and women. It adversely affects their dignity, their freedom, their physical and mental health, their confidence, their self-esteem, their participation in education and in the work force, their ability to travel and move freely, their ability to participate in physical activity, etc.

  7. And I hope my comments above help the men figure out why sanitary pads are a lot different from shaving lotion and how both products cannot be lumped into one class to ask the question – should they be tax-exempt?

  8. “By definition, only women” use sanitary napkins — remember reading a piece a few days ago which talked about some US state (or some people in a US state?) framing this not with reference to discrimination but with reference to access by bringing trans issues into the pic and pointing out that SNs are required by “people” and not “women” — not all women need them neither do all those legally classified as “men”. Just some people, the vast majority of whom happen to be legally classified as women. Art 21 sounds preferable to me as a basis for making a claim though perhaps via a choice- or liberty-based argument rather than a dignity-based one which latter arg (limited to SN) brings up the issue of why the visibility of menstrual blood is / should be seen as an indicator of indignity / being undignified. No idea what the answers are, just thinking out loud. Suspect the line between the two Art 21 arguments is thin but it seems to me to be analogous to the verecundia / pudor difference: the former outward-looking one in effect says, “People are / society is essentially crap, so to circumvent their prejudices and get on with my own life, I need the the liberty to choose,” in contrast to which the latter, based on dignity, is essentially inward-looking and says that there’s an inherent problem *I* have or with *me* if blood is visible. In any case though, this would be only one prong of an argument that also looked at health & other concerns.

    (Ed. comment first posted on FB.)

    • Nandita – I get your point. But women need menstrual products not just to prevent menstrual blood from being seen by others, but because women need products (pads, tampons whatever) that allows them to live with minimum inconvenience, disruption and discomfort during their period. The visibility point is rather minor as far as women’s need for menstrual products is concerned.

      A woman needs a good menstrual product so that she can run, go to work swim, participate in sport, in family, community and social life without inconvenience. She needs it because a woman should be able to travel, hike, sit anywhere including on a restaurant sofa without being worried that when she gets up her clothes and the sofa will be stained with her blood.

      I once went for a cricket match with guys from my college. Because it was too crowded and loo facilities were inadequate, when I got up at the end, I had a big stain on my jeans. I don’t care what people thought but I would prefer having the choice to not stain my clothes as would most other women. Not many women would choose to go without any menstrual product at all. Therefore women should be offered the best and least expensive choices in menstrual products.

      I understand your point about dignity, But arguing for better and cheaper or even free menstrual products for women does not imply that anyone is suggesting that women have a “problem”. Menstruation is a bodily function,nothing more, nothing less.

      So while making the case for tax exempt, subsidized or free menstrual products for women, I think it is completely fine to invoke the right of women to live with dignity and freedom. Menstrual products are essential items for women and in the real world, lack of access to menstrual products hampers the right of women to live with freedom and dignity. A woman has the right to discrete menstrual products. She might not want the whole world to know that she is menstruating. Menstrual products don’t confer dignity upon women, but they help a woman live through her menstrual cycles with freedom, dignity and privacy, if she so chooses.

      A woman is free not to use menstrual products if she so wants. But not many women will want to spend four days with their panties soaked in blood with blood dripping all over.

      The dignity point is important while countering taboos, stigma and shame around menstruation.

      But the points I am making and the position I am arguing from are about the right of a woman to good and accessible menstrual products. Note that I don’t even call them menstrual hygiene products. Because I don’t think there is anything unhygienic about menstruation.

      I don’t see the harm in invoking both the dignity and the liberty arguments under Article 21. A combined use of these will be much more effective.

  9. Let me put it this way.

    Can a daily wage earning female construction/ factory worker not argue that she is unable to use sanitary pads because she cannot afford them.
    As a result she has two choices. Either to go to work while she is menstruating without adequate menstrual product protection. As a result she is not only uncomfortable and restricted in her activities, but she also always has visible staining which in turn invites uncomfortable and unwanted attention and ridicule from her fellow workers who are mostly male and from members of the public on her commute home.
    Or she is compelled to not work on the days that she is menstruating. As a result, on those days she is unable to earn and feed her family and herself.
    She can certainly argue that her right to life is affected by this situation and if the Government can exempt Rakhis, food items, toddy, betel leaf, condoms etc. from tax, then it certainly ought to consider exempting an essential item like sanitary pads from tax and should further consider subsidizing these for women like her.

    A female student can be in a similar position.

    Should these women not argue that the inaccessibility of sanitary pads due to high cost and taxes adversely impacts their right to life and to work or to access education and that they have the right to access menstrual products in order to live their lives with dignity, freedom and privacy? Why should anyone have any “conceptual” objection to the use of the word “dignity” in such an argument advanced on behalf of women in this situation?

    • Seema Sapra the way Nandita Saikia thinks of dignity is not the way you seem to be thinking of it. The use of ‘dignity’ can get a little unclear, it’s better to clarify what it means. I should have done the same.

      The way Nandita Saikia has clarified it is in terms of how the concept is inward looking: as if there’s something wrong with me, as if I do not have to in the first place, as if I need a law to give me dignity, to maintain it, etc.

      The way you seem to use dignity is in terms of access. I should have easy access to menstrual product – my dignity behooves the state to do so. Or you might think of dignity even in terms of right. If I have a right to a sanitary pad, my intrinsic dignity behooves the state to create those enabling conditions for me to exercise that right. I was thinking of dignity in these terms as well.

    • Thank you, Seema! That was much-needed clarity. I discussed this post with my friends and used pretty much verbatim arguments before I saw your reply. I think the original intent of my question was that I agree with the issue being tackled from the POV of Article 15, however a friend of mine said that this should ideally be tackled with by citing Article 21.
      Do you see any conflict per se, given the trend of the Supreme Court opening up the dimensions that Article 21 has to include everything right down to the right to sleep? I don’t think that approaching it from the lens of Art. 21 to show an eclipse of dignity would impose a value judgment on menstruation itself, it only goes to affirm the traditional scope of ‘life’ as being more than just mere animal existence and excluding anything that hampers limb or faculties that would deteriorate the quality of life that everyone, citizen or foreigner, is entitled to.

      • The right to life most certainly includes the right to sleep. This is literally true. Sleep deprivation is an established method of torture practiced by intelligence and police agencies (among other torturers) all over the world that causes damage to both physical and mental faculties.
        Sleep deprivation for reasons other than intentional torture can cause a host of life threatening situations like a man falling asleep in dangerous situations (driving or handling machinery) and can result in chronic illnesses.
        Sleep is also necessary for human memory and learning.
        Just google it.
        Sleep is essential for human life just as food, water and air are.
        Human beings can survive without clothes in warm climatic conditions but not without sleep.

  10. Here are two useful links. Both of them buttress the arguments that I put forward and both of them use the term dignity in relation to women’s menstruation related rights.
    http://www.sswm.info/content/menstrual-hygiene-management

    http://ehg.lshtm.ac.uk/menstural-hygiene/

  11. Haven’t read the comments in detail but just clarifying before I bow out of this discussion:

    1. I’ve used the standard dictionary meaning of “dignity”. The first definition which pops up on Google is “the state or quality of being worthy of honour or respect” — I am uncomfortable with the thought of a world in which whether one is considered “worthy of honour or respect” is linked to the use of SN or not. This has nothing to do with menstruation itself but with the societal construct of its perception.

    2. Happy to have menstrual products linked to hygiene. Don’t believe that is a comment on the supposed (im)purity menstruation itself but simply recognition of the fact that damp, humid, bloody material esp without access to clean water and a basic degree of privacy is likely a breeding ground for God knows what bacteria, and isn’t ideal.

    • To clarify – women have human dignity like all human beings because of their being human. Humans deserve respect. They deserve a basic quality of life.
      Menstruating women deserve respect and a basic quality of life.
      Dignity refers to the inherent value and worth of humans and respect is due to a person simply because of his existence.
      So no one is suggesting that menstruating women should earn dignity by using menstrual products or that menstruating women not using menstrual products are undignified. No one is suggesting that a woman only becomes worthy of respect because she uses sanitary napkins.
      The argument instead is that a woman who is inherently entitled to be accorded dignity and respect is also entitled to the right to access and use menstrual products and to adequate sanitation facilities in the 21st century. The failure of the State to ensure such access violates the human right of such woman to live with dignity, and to live with freedom, equality and privacy.

      • From Wikipedia –

        “Human dignity is the fundamental principle of the German constitution. Article 1, paragraph 1 reads: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”[56] Human dignity is thus mentioned even before the right to life. This has a significant impact on German law-making and jurisdiction in both serious and trivial items:”

        “The need to respect human dignity has been written in the Iranian constitution law.”

        “The Constitution of South Africa lists “human dignity, the achievement of equality and the advancement of human rights and freedoms” as one of the founding values of the South African state, and the Bill of Rights is described as affirming the “democratic values of human dignity, equality and freedom”.”

        “The Swiss Federal Constitution provides in article 7 that “Human dignity must be respected and protected”.”

        The Indian Supreme Court has also interpreted the right to life under Article 21 as the right to live with dignity and respect.

  12. Vaibhav Manchanda

    Okay firstly don’t label me as a sexist the moment you see my stand on the issue in the following line unless you read my entire argument first. I don’t think a tax on sanitary pads violates article 15(1) of the constitution or the
    equality law in general as has been pointed out by the author.

    Getting straight into arguments I would like to re-examine objection 3 of the author which deals with the issue being incomparable to men as men don’t use sanitary pads. On the outset I felt that this was the most important objection. Other objections and their responses were important and intelligent but if objection 3 is not resolved then the argument as far as it is related to equality fails to stand. Hence I felt more solid arguments were required to resolve the problem raised by this objection. The author in this article relied upon Air India vs. Nargesh Mirza. Relying on this author came to a conclusion that since penalising pregnancy amounted to sex discrimination therefore penalising or taxing sanitary pads would also amount to same. Here even though the author could spot the difference between a condition(pregnancy) and a product(sanitary pads) but he didn’t apply the same while forming a logical argument. He summed it up in one line- “On the comparator logic, however, both are the same.” However this is not true because we need to see the context in which that judgment was given. There was a clear discrimination happening between the air hostesses and their male counterparts in regards to the retirement age which was 58 in case of males and 35 or 45 for females in that case. Also there were restrictions in regard to pregnancy. I don’t remember properly but I think it there was a specific time period within which if the female air hostess got pregnant or got married then they would lose their jobs.The court rejected a separate class argument between males and females and held that these rules were discriminatory in nature.
    So basically in this case men were gaining an unfair advantage over their female counterparts when it came to retirement and especially when it came to pregnancy. Clearly no matter how much sex do men indulge themselves in they are not the ones who are ever going to be pregnant and consequently not the ones who are going to lose their jobs. So the point to be kept in mind is that men were gaining some form of advantage(as they were not going to lose their jobs on the grounds of pregnancy) and women were at a disadvantage on this issue because of these rules. But when it comes to sanitary pads their is no advantage being caused to men in respect to which women can claim a disadvantage to their gender being caused and hence no grounds for “DISCRIMINATION” per se. Infact in regards to this product men just can’t be forcefully brought in. So it is my opinion that the authority that the author used to justify his main point cannot be used in the manner as he used. Not using a courts words in the right context is no less than cherry-picking words from a judgment and then horizontally applying them as ratio in all possible scenarios. This is completely unreasonable and therefore the ratio in Nargesh Mirza does not stand in this case.

    Although it should be noted that probably the author understood this and tried to bypass this point through other arguments. He talked about a shift in the focus of discrimination law from comparison to disadvantage. That the law now tries to focus on redressing these disadvantages. While this may be true but I think the author has not used this argument in a logical manner when it comes to the question in hand. What the author is intending to say is that we should not look at the comparisons. In his third argument to resolve this objection he even comes to a conclusion that the purpose of discrimination law is to remedy systemic disadvantage, and not necessarily search for comparisons. Even if I was to agree with him then we need to look at the logical flaw in his inference. So he basically says you should remedy the systemic disadvantage i.e. the lack of unavailability of sanitary pads in this case and not look for drawing comparisons on whether men gain anything out of this unavailability of pads to women. Even as per author this can’t happen and the fact that just because men cannot gain anything out of it should not become a ground for creating a requirement for an artificial advantage for men to be there at the first place to bring the issue within the ambit of equality. This is an intelligent argument to make but in my opinion does not stand.
    In my opinion it is this activity which qualifies as searching for comparisons which the author talks about and does not agree with. The moment you decide to start picking up products or services which are important or necessary only to women because of biological reasons and ask for any taxes to be removed from those products and services not on the grounds that they are essential but on the grounds that they somehow violate the equality principle as men do not have to pay for them while acknowledging that they don’t have to pay for them because they just can’t due to lack of choice is an absurd and farfetched process to say at least. It is this process which is actually leading to a comparison. A comparison to examine whether men are gaining any advantage in this case and accepting that they are not and while doing so the author comes up with an argument that hey we do not need to compare this thing only because they are incomparable and even though they are incomparable somehow women are at a disadvantage as per his first argument relying on Nargesh Mirza case and therefore their right to equality is violated. But in the above paras I just proved to you that how the ratio in this case does not extend to this one and therefore hold the opinion that there is a logical flow in the argument that the author has come up with.

    Now if while reading this reply you have actually made it this far then firstly I would like to thank you and if you have any doubts in relation to my argument then please reply.
    Personally I feel this is a serious issue but needs to be dealt under Article 21 as previous commentators have concluded and not under 14 or 15. Government should either abolish the taxes on sanitary pads or provide for subsidies. But it would not be fare to conclude that the current imposition of taxes on these sanitary pads amounts to some form of gender discrimination leading to action on this ground. Plus then there is this issue of “Incontinence pads” also as removing taxes on them also involves similar grounds and that these pads are used by both males and females.
    In the end I would also acknowledge and appreciate the efforts of author to frame an elaborate argument on this issue under article 15. Even though I may not agree with him but he did come up with some intelligent arguments for discussion to take place.

  13. Vaibhav Manchanda

    In the last line of 4th last para I meant flaw and not flow

  14. Aparna Chandra

    Adding a comment I posted on FB:

    Thinking aloud here. I read this article which cites studies to say that about 90% women in India don’t use sanitary pads (for a variety of reasons, affordability being one of them). Further, we know that using sanitary pads has a huge environmental cost. I wonder whether these two elements will change the Art. 15 (1) analysis. Can the state argue for example, that they are only taxing a high end product which does not deprive women of access to other forms of menstrual hygiene. To draw analogies with the pregnancy example, if the state were to impose a service tax on all institutional deliveries one could make a pregnancy discrimination claim. But if the government were to only tax delivery in a deluxe birthing suite, would it still be open to an art. 15(1) challenge? On the environmental impact, again this might be the ‘sex plus’ criterion? Sanitary pads exact a huge environmental cost, and by taxing them, the government is making users internalise the cost (this argument of course fails if the government also taxes more environmentally sustainable menstrual products like menstrual cups or commercially available reusable cloth pads, etc).

    More importantly though, agree with previous commentators that we lose out something by locating the argument only within the equality framework. We could make a good Art. 21 case for right to health, as well as the right of access to public spaces and right to work (in an social environment where we have severe menstrual taboos). Of course this is not an either or argument – we can argue on equality grounds as well as these other grounds and access has an equality component too, but I do think that access and health better reflect is how many women experience menstruation in our society.

    • Two part response – High end sanitary products like sanitary pads provide the best protection, apart from tampons & menstrual cups (girls are not encouraged to use insertion products in India).
      So the fact that 90% women don’t use pads is because they can’t and not because they would not want to if they had the full information and the ability.

      Even with pads, the expensive pads are way superior to the cheaper ones sold in India. Pads available in India today are way superior to those available in India 30-40 years ago. But even today, even the expensive pads in India are not as good as the ones sold in the US or in Europe.

      The quality of a menstrual product determines how comfortable you are and how able you are to carry on withnormal activity. For example, a cheap pad would end up leaking even with a girl sitting down for a three hour school exam on a day when her period flow is heavy.

      Women deprived of manufactured menstrual products are forced to use leaves, ashes, dung, cloth, sand and all kinds of things,
      Even the use of cloth pads is unsatisfactory for several reasons mentioned in the links I posted above.
      Plus cloth pads can never be as efficient and effective as manufactured pads.

      Modern sanitary pads are built using modern fiber technology and design.

      Women who are menstruating deserve the best protection because the quality of protection directly affects the quality of their life for those 5-6 days a month.

      Now coming to the waste management part. I agree that disposal methods of menstrual waste need to be specially addressed.

      But I would not restrict a woman’s right to use the most efficient and most comfortable product merely on the ground of environmental issues, because what is at stake is the quality of life of that woman.

      Most sanitary pads are biodegradable. All can be disposed off safely. And we can work on creating more biodegradable products and on sustainable methods to dispose of menstrual waste.

      But really we humans generate far greater amounts of waste from other stuff. So why balk only at menstrual waste. People buying food and drink in plastic and paper containers generate far more waste than a menstruating woman does on account of using sanitary pads.

      Just two figures, India produces around 150 million tonnes of waste per day (2009 figure). Menstrual waste is estimated at 9000 tonnes per month nationwide.

      So I don’t see menstrual waste as a very significant burden compared to all the other waste that we generate. And I would refuse to use cloth pads myself just because someone told me it was better for the environment. Every menstruating girl and woman should have the same right.

      • Here’s some interesting information. McDonalds generates almost half a million tonnes of waste per year in the US alone.

        I quote – not linking to the source.
        “Wrappers and cups from McDonald’s meals make up nearly a third of fast food litter on streets, according to a survey.

        Fast food litter was second to cigarette ends in littering the country’s streets and 29 per cent of that was from McDonald’s.”

        “The biggest source (49 percent) of litter is fast food. The five most significant sources were McDonald’s, Burger King, Seven Eleven, Starbucks and Wendy’s. Up to 31 percent of the trash collected could be eliminated by reusable alternatives.”

        And this would include a large amount of plastic waste.

        The situation in India would be similar if not worse.

        So instead of telling women that they should not use manufactured high-quality sanitary pads because the waste will damage the environment, we should focus on reducing waste from other activities.

        A woman menstruates for 5 days a month, that is 60 days in a year, that adds up to two months in a year. So if she menstruates for 40 years, she is menstruating for 80 months over her life time, which would add up to six years and 8 months over a lifetime.

        That’s a pretty long time to expect a human being to spend soiled with her own blood and waste tissue without giving her access to at least decent if not the best menstrual products to manage her menstruation.

        And just because women have managed in the past centuries and millennia, is no excuse to expect them to manage without decent menstrual products in the 21st century.

  15. amazing your discussion……………..

  16. Raktima Roy

    Deeply curious as to how the “only women” part of the analysis fits in with NALSA and the right of self identification, which means that some men menstruate too. Perhaps you could do another post on that?

  17. Pingback: Taxing Sanitary Pads and Article 15(1) of the Constitution: Some Clarifications and Responses | Indian Constitutional Law and Philosophy

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