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 specically 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.

Read the full article here.


(The article is not written by the author of this page)



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