Constitutional Validity of Tax levied on Sanitary Pads (Tampon Tax)- whether they are Essential Commodity or Luxury Commodity

Levying of tax on sanitary pad (tampon tax) is violative of Article 15(1) of the Constitution or not. It is not necessary to tax sanitary pads when condoms are exempted from GST. Most importantly  sanitary pads are essential commodity or luxury commodity for a woman. And this debate started with the petition filed by Sushmita Dev, a Congress MP from Silchar constituency in Assam which says, “Women are being taxed 12 months a year, for about 39 years on a process they have no control over.She also urged that sanitary pads should be made tax free as they are a necessity for every woman.

I being a female is paying tax on sanitary pads (tampon tax)and every women in the country is paying the tax for the same every month. Every woman is being taxed for being women.And the reason behind is that sanitary pads are seen as “luxurious commodities”.

What is Tampon Tax 

The so-called tampon tax is a sales tax on feminine hygiene products which are used to absorb menstrual blood. It refers to a condition in sales tax law under which tampons—and other feminine hygiene products used to absorb menstrual flow—are not tax exemptlike some other medical necessities. It is argued that tampons, sanitary napkins, and comparable products form basic, unavoidable necessities for women and thus should be made tax exempt. The tampon tax in Canada, Britain, Ireland, Spain, the Netherlands, United Kingdomwas removed earlier and now its time for India to flow in the wave.

Sanitary Pads is Essential Commodity or Luxurious Commodity?

The most important question is that sanitary pads are taxed because they fall in the category of “luxury tax”. But I want to ask every women is it really we use sanitary pads as luxury or it is the necessity of every month to use it. First of all let me explain what is luxury commodity and what is essential commodity
Essential goods are physical objects that you can touch and hold that are needed and necessary for survival.Essential goods may include food, water, shelter, clothing and medicine as these goods are essential for survival.on the other hand Luxury goods are not needed for survival, and are things that the consumer wants but does not need.
For example Shelter is an essential good because you cannot live without it.And food and water are essential goods because you can also not live without them.
Examples of luxury goods include, cell phones, televisions, computers, pets and jewellery are all examples of luxury goods because they are not needed for survival. You can live without it. 

If we see sanitary pads than being a female I think that no woman in the country would use it as luxury. But it is one of the most essential and necessary commodity which every woman has to use it without any choice. Sanitary pads are not luxury. They are something that every women wants. They are something that every women needsas a necessity.

In the new Goods and services Bill it proposes a four-tier rate structure. The tax slabs are fixed at 5%, 12%, 18% and 28% besides the 0% tax on essentials. The centre has strictly demanded and got an additional cess on demerit luxury goods that comes under the high 28% tax. Essential commodities like food will be exempted from taxes under GST. Other consumer goods which are common items will be taxed at 5%. When essential goods like food is exempted the sanitary pads being a essential and a necessity for every month must also be exempted.

Is Levying of tax on sanitary pad (tampon tax)is violative of article 15(1) of the constitution.

 According to Article 15(1)- “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. 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.When condoms can be exempted from New Goods and Services Tax then why not Sanitary pads.

Women have to use sanitary napkins every month. They are a necessity, not a luxury. Taxing sanitary napkins is like taxing women for being women. If condoms and contraception are tax-free to promote their use for health reasons, then why not sanitary napkins must be madetax-free.
The reason that condoms and other contraceptive are exempted from GST is that they prevent illness. Although sanitary pads does not prevent illness but they are hygienic to be used in place of cloth or newspaper which is very important for a women’s health. Unhygienic may lead to many illness as well.Women's health has been misunderstood and neglected throughout history.

Earlier also Supreme Court in Air India vs NargeshMirza held that pregnancy based discrimination is violative of Article 15(1) of the Constitution. In same way I would like to submit that tax on sanitary pads burdens only women, and is therefore presumptively hit by Article 15(1) of the Constitution and since condoms which is  essential commodity is exempted under GST Bill, then why nottaxes on sanitary pads  which is also essential commodity must be exempted

It has been seen 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. Therefore Placing tax on sanitary pads, therefore, is discriminatory because it disadvantages women on ground of their sex. Hence taxing sanitary pads is violative of Article 15(1) of the Constitution.

Conclusion

Sanitary pads and tampons to be given the same tax exemption as medicated condoms and birth control Government should look forward because. As women, our voices are sometimes overpowered and underrepresented. And part of that is because we don’t get involved. To weigh in on this issue and voice your opinions on whether the tampon tax should remain or be removed. While discriminatory injustices still exist, we all have the power to do something about them. 

Ms. Neha Sharma

Assistant Professor

Department: Law