When GST was first implemented as a replacement for the previous tax system, the only focus was on categorising goods and services into tax rate slabs. Apart from those that were exempt from taxation due to socioeconomic factors and the significance of the item were assigned to other rate slabs. In recent days, a movement has been launched calling for the sanitary pad fee to be abolished (which is 5 per cent in Delhi and goes up to 14 per cent in certain states). It has been claimed that taxing sanitary pads is based on the assumption that they are luxury items; nevertheless, their influence on reproductive health and women’s general well-being, both at home and work, distinguishes them as necessary rather than luxury commodities.
ARTICLE 15(1) AND SANITARY NAPKINS
Article 15(1) states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Sanitary pads, by definition, are only used by women. A sanitary napkin, also known as a menstrual pad, is a thin pad composed of absorbent material that collects menstrual fluid during discharge. Few sanitary pads are disposable and designed to be used just once. As a result, a tax on sanitary pads is a hardship for women. To put it another way, if a person were not a (menstruating-age) woman, she would not be subject to the sanitary pad tax. As a result, according to the traditional definition, the tax discriminates on ” grounds of sex.”
One thing to keep in mind is that favouritism occurs when there is an imbalance, or when two fellows are treated unequally. For example, the male who commits an offence like adultery is punished under Article 497 of the Indian Penal Code, but a woman who commits adultery is not punished, which constitutes favouritism. Two equal people are treated unequally here.. To put it another way, equality is measured in terms of two or more items. When there is only one entity, there can never be inequity.
According to the government, sanitary napkins fall under category 9619. Before the GST, they were subject to a 6% Concessionary Excise Duty and a 5% VAT, for a total tax incidence of 13.68 per cent on sanitary napkins. As a result, a 12 per cent GST charge was established for sanitary napkins. A note released by the press justifies the slab of comparing the relevant tax on the domestic manufacturer as well as foreign fabricators. Even if the 12 per cent is reduced to 5%, the tax inversion will become even more evident, resulting in a bigger cumulative ITC. This would result in increased financial expenses due to money blockage and related administrative costs of reimbursements, further disadvantaging domestic firms in comparison to imports.
THE REACTION OF PEOPLE ON 12% GST
Zarmina Israr Khan v. Union of India& Anr, in the high court of Delhi, a Public Interest Litigation was filed, stating that the tax on Sanitary pads was removed in July 2018 but before this alter was carried by the central authority, challenging the imposition of tax as unconstitutional. The issues composed by Appellants were (i) that imposing a tax on sanitary napkins would result in the violation of article 21 and Article 15(1) of the Indian constitution.
Keeping in mind the nature of the item the appellant in this matter argued that few commodities have been absolved from the imposition of tax having the intention to not burden the consumer. The primary motive is to assure consumer affordability and not to discourage the use of the item.
According to the appellant, the defendants have combined sanitary pads alongside toys, leather products, roasted coffee, mobile phones, and processed meals, among other items, to impose a tax rate of 12% under the current tax regime. Judgement of the High Court: The High Court of Delhi comprising bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar requested the Centre’s answer to a petition challenging the implementation of a 12% GST on sanitary napkins as a consequence of this case. They also sent letters to the Ministry of Finance and the Goods and Services Tax Council, instructing them to submit counterclaims in case.
In Shetty Women Welfare Foundation v. Union of India, A Litigation was filed in June 2017, by a Non-Governmental Organisation seeking exemption on GST on sanitary napkins. The petitioners’ issues were the same as the Delhi High Court case as well as arguments. This exception, according to the petitioner, is required to make essential menstrual hygiene products more accessible to women. It further said that just 12% of Indian Women can buy pads placing the basic hygiene product out of reach for 88% of women and girls. As a result, the exemption should be given to expanding sanitary napkin availability to the underprivileged and lower-middle-class population.
Judgement: The Maharashtra government was urged by the bench of Justices NH Patil and NW Sambre to cut back the price of napkins and create them on the market at reduced costs. They conjointly suggested that the govt provide recommendations to Gram Panchayats, UN agency would possibly then encourage their feminine members to lift awareness regarding the difficulty among rural females. The court conjointly requested the state to clarify what actions it’s done to lift awareness relating to the usage of sanitary napkins and to create them more cost-effective.
The Supreme Court’s Interference
The proceedings challenging the imposition of GST on sanitary pads were halted by the Supreme Court in both cases. The court stated that it will investigate the issues and determine if they may be combined and considered before the Supreme Court.
The very first argument is: THE TAX IS ON ITEMS, NOT ON PERSONS
It is the obvious objection that the tax is imposed on products, not on persons or in laymen language not on women. Article 15(1) of the Constitution only prohibits biasness, “on grounds of sex”. It does not prohibit discrimination that will ultimately affect particular sex. For example: In Koushal v. Naz, it was held by the court that Section 377 is punished only acts, not people.
The second counter-argument is: THERE IS NO COMPARATOR
A more nuanced criticism would be as follows: because men’s sanitary pads have no counterpart, it makes no sense to assert that a tax on sanitary pads discriminates against women; the whole idea of discrimination legislation is that it is comparative. If you can’t tax males on the equivalent of sanitary pads because there isn’t one, then charging women may be bad in other ways, but it isn’t a kind of discrimination.
Because a tax on sanitary pads affects exclusively women, it is presumed to be covered by Article 15(1) of the Constitution. From the standpoint of Article 15, the fact that it does not impact all women (just menstruation women) makes no difference The fact that it does not, by definition, impact males makes no difference from an Article 15 standpoint.
Nоw understаnding the сurrent sсeneriо, one саn see thаt there аre nоt аny sрeсifiс рrоduсts thаt аre very essentiаl tо men as sanitary pads are essential. The gоvernment dоes nоt tаx the femаle аs suсh, it is the tаx оn the merсhаndise. If а mаn buys the hygeniсаl раd, he will hаve tо раy the sаme аmоunt аs а wоmаn. The stаte is nоt disсriminаting wоmen by tаxin sаnitаry раds, beсаuse in this саse, they аre а single entity. Thus there is nо viоlаtiоn оf Аrtiсle 15 (1) if the stаte is tаxing the sаnitаry раds.
Author’s Name: Shweta (Central University of South Bihar)
 W.P. (c) No. 6034/2017
 W.P.(C) No. 2447- 2448 of 2017