Taxing Sanitary Pads and Article 15(1) of the Constitution: Some Clarifications and Responses

In the last post, I argued that taxing sanitary pads non-trivially disadvantages women, on the ground of their sex, and consequently, violates Article 15(1) of the Constitution. There have been a substantial number of responses to the argument, both in the comments section of the blog, and elsewhere, which have pushed me to clarify and refine some of my thinking that went into the original post. In this post, I shall attempt to respond to some of the points that have been made.

“Sex” is Not a Biological Fact

I should start by clarifying that my original post assumed “sex” to be both binary, and a given, biological fact. We now know that this framing of “sex” is just that: an assumption, or a social construction. Without getting into complex terminological debates about the difference between “sex” and “gender”, it was correctly pointed out in the comments that in NALSA vs Union of India, the Supreme Court has (at least implicitly) accepted that “sex” under Article 15(1) of the Constitution is as much a matter of personal identification, as it is a matter of biology. It was also pointed out that the argument bypasses the rights of transgender individuals.

I accept the thrust of these criticisms, insofar as there exist individuals who do not identify as women, but who also menstruate, and require sanitary pads. For the purposes of this post, however, while acknowledging this reality, I want to continue using “sex” in terms of a distinction between men and women – only for the reason that the argument depends on working within existing law and jurisprudence, both of which are committed to the binary, objective understanding of “sex”. Once we succeed in establishing the case for sex discrimination on the old, classic model, we can then explore how we might extend it to our present, more nuanced understandings of “sex” and “gender”.

The Gendered Implications of Taxation Regimes

At the heart of a lot of comments disagreeing with my argument, I think, lies a sense of unease with running together tax law and discrimination law. We are accustomed to thinking of taxation as a sovereign function, which conceptually depends upon the State having to make discretionary choices about how best to raise revenue, through a system of financial incentives and disincentives. Taxes, ultimately, are guided by economic considerations and an assessment of goods and services, not of people. Consequently, while it is possible that tax might be used as a weapon of discrimination (jizya is a classic example) – and indeed, both the American and the Indian Supreme Courts have noted the possibility of punitive taxation being used to stifle the free press – this is limited to exceptional cases where the State is clearly acting with hostile purpose.

I would suggest, however, that according taxation law a high threshold immunity from the norms of discrimination would be a mistake. On the contrary, taxation gives the State such a powerful weapon to mould behaviour, that we should be specially solicitous of testing a taxation regime against constitutional norms. Goods and services are intrinsically linked to peoples’ conduct, choices, and ways of living. In my last post, I took the example of a tax levied only on crucifixes: while this might be dismissed as a very obvious, and unlikely example, there are other, indirect ways, in which tax regimes can be discriminatory.

An excellent judicial example of this is the judgment of the Canadian Supreme Court in Symes vs Canada. In Symes vs Canada, it was argued that disallowing childcare expenses as “business deductions” under the Income Tax regime was discriminatory on grounds of sex. The Appellant argued that, in view of the fact that women bore a disproportionate burden of childcare within the family, and consequently, were far more likely to need to hire child-carers in order to pursue their business interests, refusing business deductions amounted to sex discrimination. More broadly, the Appellant’s argument attacked the central assumptions of the Income Tax regime, which had been enacted at a time when gender roles were more rigid, and it was presumed that businesspeople would be male. For instance, under existing precedent, expenditures on taking clients out to golf, or to dinner, were deductible as business expenses, on the ground that these expenditures bore a proximate relationship with promoting the assessee’s business. Under that logic, however, paying a child-carer to free up time to pursue business was equally proximate. The only reason why it was not allowed as a business deduction was that the Income Tax regime was founded upon the assumption of a clear separation between the home and the business world, and was unable to envisage a reality in which women would be primed to pursue business while continuing to be burdened with responsibilities of childcare.

We can therefore see how a seemingly innocuous element of tax policy – disallowing childcare expenses as business deductions – was based upon a set of assumptions that were presumptively sex discriminatory. Ultimately, by a 7 – 2 majority (interestingly, the only two women on the bench were also the two dissenters), the Supreme Court rejected the case of the appellant; but it did so on the technical ground that the appellant had not shown that women bore a disproportionate share of the expenses on childcare (as distinct from responsibilities of childcare). What remains important, however, is that both the Majority and the Dissent(s) agreed that the taxation regime could – and often did – impact gender equality in both direct and indirect ways.

Condoms, Aftershave Lotion, Lipstick, Underwear, and Disadvantage

Many of the objections to my arguments took the form of counter-examples: if I was resting my case against taxing sanitary pads on the proposition that only women used them, then by the same logic, (men’s) condoms, (men’s) aftershave lotion, (women’s) lipstick, and (women’s) underwear should also be exempt from taxation under Article 15(1).

I should start by clarifying that there are two responses to this that I am not relying upon. First, I am not relying upon Article 15(3) of the Constitution. As I have argued before on this blog, I do not believe that Article 15(3) provides a carte blanche to the State to pass any law benefiting women at the expense of men. Article 15(3)’s location within the broader anti-discrimination clause clearly indicates that it is limited to saving those laws that benefit women with a view to remedying historical and structural discrimination. Consequently, if the principles of my argument applied equally to sanitary pads and to aftershave lotion, then 15(3) could not be a ground to legitimately deny men the benefits of tax-free aftershave.

Secondly, I am not resting my argument purely on a distinction between essential items and luxury goods. That distinction is important, but – as I shall go on to show – it is better understood as an argument not about essentials/luxuries, but about disadvantage.

In the last post, I had argued that the key to my argument under Article 15(1) is a shift from understanding discrimination law as being about a strict comparison between two classes, to understanding it as being about remedying historical and structural disadvantages. These disadvantages – which could take the form of deprivation of goods and services, or humiliation and insult – were located around the sites – or grounds – set out by Article 15(1): sex, race, religion etc.

I should clarify what I mean by this: I do not mean that we should stop thinking of discrimination as a question of equality. However, the kind of equality that is at stake when we think of discrimination law is – in the words of the South African Constitution“the full and equal enjoyment of all rights and freedoms.” The shift is a subtle, but important one: our enquiry is now not whether “X” action applies to “A”, but not to “B” (the strict comparator approach, under which sanitary pads do not raise a discrimination issue because – as a commentator pointed out – men do not menstruate); but rather, does “X” action affect “A’s” “full and equal enjoyment of all rights and freedoms” in a manner that it doesn’t affect “B’s”.

Now if we understand a sanitary pad tax as – effectively – a tax on menstruation, then the applicability of the second framing of discrimination (as disadvantage) should become easier to analyse. It is important to start by noting the well-documented social, cultural, and economic role played by perceptions of menstruation in upholding (unequal) gender roles in society: many societies have viewed menstruation as a symbol of impurity and inferiority; but perhaps more importantly for our purpose, the physiological effects of menstruation have serious economic ramifications upon women’s participation in the workplace on equal terms with men (consider the recent debates on paid menstrual leave, for instance), as well as upon their reproductive health.

I have only set out the form of the argument here: a complete argument would require a detailed scientific and sociological study of the societal affects of menstruation, and the role of sanitary pads in that context. It would also require dealing with an objection raised in the comments, namely, that in view of the fact that only 12% of Indian women use sanitary pads (and the other 88% have to make do with alternatives), in the Indian context perhaps sanitary pads are luxuries: to answer this objection, we would need to consider both women’s testimony, and scientific evidence, on how sanitary pads mitigate the debilitating effects of menstruation

Presumptively, however, I hope that this makes clear the distinction between sanitary pads on the one hand, and condoms, lipsticks, aftershave lotion, and underwear on the other (this is apart from the fact that neither condoms nor underwear is sex-specific): a tax on sanitary pads is effectively a tax on menstruation. It is discriminatory because it entrenches and perpetuates – both materially and symbolically – disadvantages (of different kinds) suffered by women in society because they menstruate. Now if a similar argument can be made for other items, then there is a ground for exempting them from tax as well.

Why Not Article 21? 

Many commentators were of the view that Article 21 – through arguments about the right to dignity and the right of access to health – might provide a better constitutional foundation for an argument against taxing sanitary pads. I would, however, prefer to maintain a focus on Article 15(1), for three reasons: first – for the reasons advanced above – I do actually believe that a tax on sanitary pads is predicated upon long-held assumptions that are basically gendered and discriminatory; secondly, an Article 15(1) argument helps us to move beyond the strict comparator bind that we’ve been in for the last six decades, and to think of fresh ways of conceptualising discrimination; and thirdly, I’m hesitant about an expansive reading of Article 21. As I have argued before on this blog, we should be wary of continuing to use Article 21 in a manner that both dilutes the core right (life and personal liberty), as well as risks taking us to a place where Article 21 begins to swallow up other rights under the new judicial fad of “balancing rights”. This does not, of course, take away from the fact that the sanitary pad tax does raise a core issue of access to health (as much as it raises an issue of discrimination), and under existing jurisprudence, Article 21 does include a right of access to health.

Specific and Holistic

One commentator raised an important point: would the tax on sanitary pads remain discriminatory if it was shown that overall, the tax regime as a whole was more favourable to women than men? In other words, what if it could be shown that the burden on sanitary pads was offset by other benefits in the IT Act, so that at the end of the day, women had a smaller overall tax burden?

In my view, I think this argument would have force if we continued to think about discrimination as centred around a strict comparative approach. On the shift to the disadvantage approach, however, it doesn’t matter if overall women are placed better off than men: the tax on sanitary pads – which is effectively a tax on menstruation – causes disadvantage that is of concern to discrimination law, even if that disadvantage is offset by advantage elsewhere. However, I am not entirely convinced of this response.

Conclusion

In conclusion, therefore, I think that despite some nuanced and important objections, the basic form of the argument – that a tax on sanitary pads presumptively constitutes sex discrimination under the Constitution – continues to hold. Whether it actually constitutes sex-discrimination depends upon producing the kind of evidence that I have outlined above, including – and especially – the personal testimonies of women.

Advertisements

7 Comments

Filed under Article 15 (general), Article 21 and the Right to Life, Equality, Non-discrimination, Right to Health, Sex Discrimination

7 responses to “Taxing Sanitary Pads and Article 15(1) of the Constitution: Some Clarifications and Responses

  1. I agree that taxation can result in sex discrimination and therefore taxation can be challenged under 15(1).
    I also agree that sex discrimination need not be actual discrimination between the sexes but could also arise from an act of the State (by commission or omission) which results in disadvantaging a particular sex by taxing members of that sex in a way that perpetuates historical and structural disadvantages resulting in the denial of the full and equal enjoyment of all rights and freedoms by members of that sex.
    A tax on sanitary pads “entrenches and perpetuates – both materially and symbolically – disadvantages (of different kinds) suffered by women in society because they menstruate” and therefore amounts to an indirect tax on menstruation. (I agree and I tweeted to Gautam Bhatia yesterday that it amounted to indirectly taxing menstruation).

    But I would still invoke Article 14, 15(1), 15(2), 15(3) and 21 to argue this case. Because the part about “denial of the full and equal enjoyment of all rights and freedoms by members of that sex” already brings in 21.

    The question of whether or not to use Article 21 depends upon what the campaign and petition should strive for. Even if the Government were to make sanitary pads tax exempt, this would still not help most women for whom these products would be still too expensive. The end goal should not only be tax exemption but subsidization and free distribution to the most needy classes of women.

    These goals can only be achieved by making out a case under 21. This would argue that lack of access to menstrual products and adequate sanitation for women violates their right to live with dignity, freedom, and privacy, that it violates their right to work, to access services like education, right to access public spaces, that it violates their right to health and sanitation, and their right to pray under Article 25 etc.

    I would also argue that the Government consider making special provisions for menstruating women under Article 15(3) that will provide access to menstrual products, adequate sanitation, educational programs for women and for men and for communities that address the taboos and myths around menstruation etc.

    You write: “I do actually believe that a tax on sanitary pads is predicated upon long-held assumptions that are basically gendered and discriminatory”.

    I am not sure this is the case. I think women’s issues are most often simply neglected. No one bothered to raise all these issues or to lobby for tax exemption. At one point, sanitary pads were reserved for small scale industry only, which was a factor in why the pads were expensive and also why pads made in India used older technology and designs and were thus not very good quality. Pads when introduced were marketed to urban, upper-middle class women, so the Government probably saw no harm in taxing them.

    Coming to your point about avoiding expansive readings of 21. I agree but I think this menstrual product and sanitation access issue is a fit case for reading these rights into 21. The balancing part of course we must vigorously oppose but no one’s fundamental rights are restricted by giving women cheaper or free sanitary pads.

  2. “The bottom line is that we still await a conclusive evolutionary explanation for human menstruation.”

    https://www.psychologytoday.com/blog/how-we-do-it/201408/the-first-curse-women-menstruation

    An extremely interesting article mentioning scientific theories about why women bleed so much compared to higher primates and the few other mammals who menstruate.

  3. Himayush Chopda

    Firstly, kudos to you. I could never have thought of this argument, and you’re doing a really commendable job stimulating thought processes. I think such stimulation is essential for a democracy to survive.

    With respect to your argument, I had initially said that men and women are inherently unequal, and hence unequal treatment shouldn’t be challenged. After reading these clarifications, I think your argument holds water. From what I have made of it, and I’d be glad if you would take the time out to correct me if I’m wrong, Article 15(1) imposes not only a mandate on the State to not perform an act which would discriminate on grounds of sex, but also a positive obligation on the State to perform an act which would remove such existent discriminations. Therefore, it is no defence for the State to say that we have not directly through our acts created such discrimination because it’s nature that does so, and hence we have not positively discriminated, and therefore our action cannot be challenged. There is also an obligation on the state to positively remove such naturally created (or created by any other non-state factors) discrimination.
    For example, considering the prima facie comparison approach- Hyopthetically, men and women both menstruate. Tax is imposed only on female sanitary napkins. Discriminatory, no doubt. A party (females) are placed at a disadvantage or are discriminated against solely on sex.
    Now, only women menstruate. Men don’t. Tax is imposed on napkins for women. The State would say that they have not discriminated, nature has, and hence there action cannot be challenged. They have not placed females at a disadvantage. Nature has.
    However, your argument would mean that even in the last case, there is a positive obligation to eradicate such naturally created discriminations through positive actions (exempting napkins from tax).

    This would be extending an expansive Article 21 like interpretation to 15(1), in addition to its prima facie meaning. Further, this interpretation imposing a positive obligation on the State cannot be stretched too far, and hence only applies to essential items, sanitary napkins being one of them. I now absolutely agree with your approach, but I’d like to add that Indian courts have been very cowardly when dealing with the State, and would think twice before imposing such an obligation on it, lest the judges presiding over them lose their post retirement benefits.

  4. Himayush Chopda

    On further thought, I agree with you.
    The wordings of the Article say that the State shall not discriminate against anyone based only on religion. Therefore, it must be an act of the State which puts the women at a disadvantage. This act is the taxing of the pads. Also, this act must be based only on grounds of sex. Meaning, it should be done only because the parties in concern are women. I don’t think that’s the case here. The pads are being taxed because they’re products, not because they’re products for women. So ideally, the argument I think wouldn’t stand.
    But still, that would be on a strict construction of the words of the Article. That way, even Article 21 couldn’t hold the due process clause.
    I think what he says is that under Article 15(1) there’s a positive obligation on the State to end discrimination and do positive acts to make disadvantaged parties at par with the other ones. The fact that the State is not taking any action to remedy historical and natural discrimination and disadvantage is discrimination in itself and hence violative of Article 15(1).
    It isn’t in line with the Article if you interpret it strictly according to its words, but I think all the FRs should be interpreted in a manner putting the citizens at an advantage. So yeah

  5. A really silly article titled “Why India Doesn’t Need The Sanitary Napkin Revolution”
    https://swarajyamag.com/culture/why-india-doesnt-need-the-sanitary-napkin-revolution

    Apparently this is written by a woman.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s