#LahuKaLagaan: Will SC Uphold Women’s Right to Bleed in Peace?

Indian women are already conditioned to whisper for napkins and shove them hastily inside black polythene bags.

What’s common between a young female PhD scholar in Delhi’s Jawahar Lal Nehru University and an NGO, many, many kilometres away in Mumbai? As of last year, they were both petitioners before the country’s courts, pleading for their right to bleed.

On 22 January, their petitions – along with a bunch of others – were heard by the Supreme Court, following a plea by the Centre to transfer all petitions against GST imposition on sanitary napkins from several high courts to the apex court.

The matter was brought before a bench headed by Chief Justice Dipak Misra, who said that the SC would examine the case to see if all matters pertaining to it should be heard by the Supreme Court. The SC also stayed all proceedings in Delhi and Bombay High Courts and issued a notice to the petitioners.

So far, according to Additional Solicitor General Pinky Anand and senior advocate V Mohana – both representing the Centre – two separate PILs were being heard by the Delhi High Court and one by the Mumbai High Court with similar prayers. However, various news reports had claimed that there were a “batch of petitions” pending both in the Supreme Court and various high courts.

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Here’s all you need to know about the petitions and both sides of the argument:

What are the Petitions About?

The petition filed in July 2017 by Zarmina Israr Khan – who is a PhD scholar in African studies in JNU – challenged the levying of 12 percent GST on sanitary napkins, terming it illegal and unconstitutional and seeking to bring it down to a reduced or nil rate.

“The government has grouped sanitary napkins with toys, leather goods, roasted coffee, mobile phones and processed foods amongst others for the imposition of a GST rate of 12 percent under the present tax regime. Such an action/omission is palpably arbitrary and unreasonable.” – says the petition.

In the very same month, another PIL (Public Interest Litigation) was filed – this time before the Bombay High Court – by Shetty Women Welfare Foundation, on behalf of SheSays, an NGO campaigning for women’s rights. This one sought to exempt sanitary napkins from GST completely, while also arguing that “steps were necessary to make access to basic menstrual hygiene products easier for women”.

In both cases, the bench came down heavily on the government.

While the Delhi HC asked severely:

“Have you discussed it with the Ministry of Women and Child Development before doing it or have you just looked at the import and export duty?”

Bombay HC, in pretty much the same vein as its northern counterpart, schooled the State to declare:

“This is an important issue and affects half the population. What has the Maharashtra government done to increase and spread awareness about the use of sanitary napkins?”

Both pertinent questions. Both poised to pique the consciousness of the Centre. Both, now, redirected to the SC.

So, once again, before we look to the SC for redressal, here’s a quick lowdown of both corners.

What Does the Government Say?

Why is the government seemingly so reluctant to touch or tamper with the GST already levied on sanitary napkin? In more than one interview, a caustic Arun Jaitley has pointed at how commentators demanding the removal of GST are “ill-informed”, saying,

“The removal of taxes on sanitary napkins will kill domestic produce and only leave Chinese products in the market.”

The effective tax on sanitary napkins, Jaitley said, in response to a question at the HT Leadership Summit, taking input tax credits into account, was about 3%-4%, as compared with around 13% before the GST regime. “If you reduce the 12%... we won’t have an Indian manufacturer left.”

Now, what is input tax credit?

To understand that, one might look at each term as a separate entity – input+tax+credit. ‘Input’ is what the manufacturer puts in towards making the product (in layman’s terms, it is his/her cost incurred). Tax is levied at each stage that the product passes through, and the manufacturer has to pay a certain amount to the Centre. With ‘credit’ – introduced through GST – the manufacturer gets the benefit of the tax he has already paid to the government during the product making/manufacture.

This means – and as the fulcrum of the government’s response – if one were to nullify GST, manufacturers would not be able to receive the credit for the tax already paid by them.

Also – according to the counter affidavit filed by the Centre in response to the petition in Delhi HC – the raw materials used in the manufacture of sanitary napkins attract a GST of 18 percent by themselves. This enables the Centre to argue that the current 12 percent GST on the finished product is actually an inversion in the tax structure.

The “import” problem Jaitley talks about, comes from the fact that we import sanitary napkins and tampons as well – but these are rated zero. Thus, as the government argues, domestic manufacturers will concede to their foreign counterparts and lose a level playing field.

The Problem With the Government’s Move…

Now, this is all good and fine – but, as the Delhi HC rather sanguinely put it during the hearing of Zarmina Israr Khan’s petition, these are “all technical and statistical reasons” and “the government is simply playing with figures”.

The question remains – why should the government not, in trying to benefit local manufacturers, hike the import duty on sanitary towels (napkins and pads) that come from foreign shores instead? According to several tax websites that compute GST on imported goods, currently sanitary towels attract a Customs Duty of 23.2 percent.

Is the rationale simply that, hiking customs duty would attract low quality imports – which, again, would raise the issue of hygiene?

The Centre is making absolutely no room or space for the estimated 355 million women who menstruate every month and have no access to basic sanitary facilities. As Khan’s petition told the court,

“…approximately 88 percent of menstruating women have no access to sanitary napkins”.

This is particularly hard for the millions of women in low-income groups.

The GST on pads takes no cognisance of the reproductive health of these women either; various studies have indicated that about 70 percent of all reproductive diseases in India is due to poor menstrual hygiene. Most women in India’s rural belt already use scraps of old cloth, which they wash and re-use, to the detriment of their health.

A multitude of Indian women are already conditioned to whisper and mumble their way through asking for napkins and shoving them hastily inside black polythene bags. How far in the general direction of the chemist do you think these women will travel, once the costs add up and discourage them further?

The clock has almost invariably been turned back in Kolkata’s red light district Sonagachi, where sex workers have only now started using sanitary pads after a long and concerted awareness campaign.

“In 2000, the rate of usage of sanitary napkins among sex workers was 20 percent and now, more than 85 percent of them use sanitary napkins,” Samarjit Jana, an official of Durbar Mahila Samanwaya Committee (DMSC) told PTI.

The DMSC is an umbrella organisation of the state’s sex workers.

Whilst the zero tax rate on condoms has been appreciated by the women here, the prices of pads threaten to push them back to the cloth fold.

“It is a necessity for us. But if the prices go up, we will be left to go in for alternative means to maintain hygiene,” said Soma, a 34-year-old sex worker to PTI, without elaborating on the ‘alternate means’.

In an effort to placate local manufacturers, the government has completely ignored the needs of 355 million women – dismissing the ‘need’ and classing it under the moniker of ‘luxury’, something very few women who bleed every month will tell you their period is.

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And – as the high court’s rather caustic admonishment points out – the decision was taken by a 31-member GST Council that had no women.

Bleeding isn’t a luxury. Neither is braving long-held social taboos, (often) traipsing miles to pick up a packet of pads. Now that the SC has agreed to examine the case, will it uphold the right to, at least, bleed in peace?