Abstract
This article examines the phenomenon commonly described as the “Pink Tax”, referring to the higher prices charged for goods and services marketed towards women. While such practices are often justified as necessary market segmentation, this piece argues that gender-based price differentiation raises serious concerns when evaluated through the lens of the Indian Constitution and the Consumer Protection Act, 2019. By analysing Articles 14 and 15 of the Constitution of India alongside the Consumer Protection Act, 2019, the article suggests that systemic pricing disparities may constitute unfair trade practices and are inconsistent with the broader commitment to substantive equality. It concludes by proposing modest regulatory and legislative interventions aimed at improving fairness and transparency in consumer markets.[1]
I. The Pink Tax and the Question of Legal Characterisation
The term “Pink Tax” refers to the higher prices frequently charged for goods and services marketed toward women compared to substantially similar alternatives marketed toward men. This phenomenon has been documented across jurisdictions and product categories, ranging from personal care products to everyday services such as haircuts and dry cleaning.[2]
From an economic perspective, such practices are often explained as a form of third-degree price discrimination, where sellers differentiate prices based on perceived consumer preferences or willingness to pay.[3] In principle, market-based price differentiation is not inherently unlawful. However, when it is solely based on gender, and the underlying products offer no meaningful differences in quality, composition, or utility, the practice raises concerns that go beyond ordinary commercial discretion.
The central issue, therefore, is not whether businesses are permitted to differentiate prices, but whether gender-based differentiation for substantially similar goods and services can be reconciled with India’s constitutional commitment to equality and its statutory framework for consumer protection.
II. Equality, Discrimination and Consumer Protection Law
The constitutional implications of gender-based pricing arise most directly under Articles 14 and 15 of the Constitution of India.
Article 14 guarantees equality before the law and requires that any classification must be founded on an intelligible differentia with a rational nexus to a legitimate objective.[4] Where two products are functionally identical yet priced differently solely because one is marketed toward women, it becomes difficult to identify a rational basis for such differentiation. Indian constitutional jurisprudence has consistently held that arbitrariness is antithetical to equality.[5] In this context, gender-based pricing for substantially similar goods risks being characterised as an arbitrary distinction lacking legitimate justification.
Article 15(1) further prohibits discrimination on grounds of sex. While traditionally understood as applying primarily to State action, Indian courts have increasingly recognised that constitutional values must inform the regulation of private conduct, particularly where systemic forms of inequality persist.[6] From this perspective, the State’s failure to address entrenched discriminatory practices in private markets raises broader questions about its obligation to advance substantive gender equality.
In addition to constitutional principles, the Consumer Protection Act, 2019 (CPA) provides a statutory framework for addressing such practices. Section 2(47) defines “unfair trade practice” to include unfair or deceptive methods adopted for the purpose of promoting the sale of goods or services.[7] Where consumers are induced to pay higher prices for products that are substantially similar in quality and function, solely on the basis of gendered branding, such conduct may reasonably be examined through the lens of unfairness.
The CPA also protects the consumer’s right to be informed about the quality, standard, and price of goods.[8] Marketing strategies that obscure functional similarity between products marketed to different genders risk undermining informed consumer choice and weakening price transparency in the marketplace.
III. Economic Justifications, Comparative Practice, and the Scope for Reform
The practice is commonly justified by referring to higher marketing costs, differentiated packaging, or variations in consumer preferences. In certain cases, such considerations may be commercially relevant. However, empirical evidence suggests that price disparities frequently persist even where products are substantially identical in composition and function.
The New York City Department of Consumer Affairs’ study From Cradle to Cane documented systematic price differences across multiple product categories, including instances where products differed only in colour or branding.[9] Where alleged cost-based justifications bear little relationship to the actual price gap, the distinction becomes increasingly difficult to defend on objective grounds.
Comparative legal developments also offer useful perspective. In the United States, California’s Gender Tax Repeal Act, 1995 prohibited gender-based price discrimination in services such as haircuts and dry cleaning.[10] At the federal level, the proposed Pink Tax Repeal Act seeks to prohibit the sale of substantially similar goods at different prices based on gender.[11] Within the European Union, Directive 2004/113/EC prohibits discrimination based on sex in access to goods and services, reflecting a broader commitment to extending equality principles into consumer markets.[12]
India’s experience with the “Tampon Tax” debate further illustrates the relevance of these concerns domestically. The decision to exempt sanitary napkins from GST in 2018 followed sustained advocacy that taxing biological necessities disproportionately burdens women and undermines dignity.[13] Scholars have argued that such fiscal choices must be informed by principles of constitutional morality and distributive justice.[14] The underlying logic—that market practices and pricing structures can perpetuate gender inequality—has relevance beyond menstrual health products and extends naturally to the broader issue of gendered pricing.
Rather than requiring sweeping regulatory intervention, modest reforms could meaningfully address these concerns. An explicit recognition of gender-based pricing for substantially similar goods as an unfair trade practice under the CPA would provide greater clarity. Strengthening price transparency through unit pricing disclosures could empower consumers to make informed comparisons. Encouraging service providers to adopt objective pricing criteria based on time, quantity, or complexity rather than gender would further support fairness without unduly constraining commercial autonomy.
IV. Conclusion
The Pink Tax represents a subtle yet persistent form of economic disparity embedded within everyday consumer practices. While market autonomy is an important principle, it cannot be viewed in isolation from constitutional commitments to equality and fairness. India’s existing legal framework, particularly the Consumer Protection Act, already provides conceptual tools capable of addressing such practices; what is required is clearer recognition and more consistent application.
Incremental reforms aimed at transparency, fairness, and consumer empowerment would not disrupt markets but would help align marketplace practices more closely with constitutional values. A move toward greater pricing neutrality is therefore not merely a matter of policy preference but a logical extension of India’s broader commitment to substantive equality.
Referance
[1] Constitution of India, arts. 14–15; Consumer Protection Act, 2019.
[2] New York City Department of Consumer Affairs, From Cradle to Cane: The Cost of Being a Female Consumer(2015).
[3] A. Manara, “The Pink Tax: A Modern Form of Gender Discrimination,” Stanford Economic Review (2021).
[4] Constitution of India, art. 14.
[5] E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
[6] NALSA v. Union of India, (2014) 1 SCC 519.
[7] Consumer Protection Act, 2019, s. 2(47).
[8] Consumer Protection Act, 2019, s. 2(9).
[9] NYC Department of Consumer Affairs, supra note 2.
[10] California Civil Code § 51.6 (Gender Tax Repeal Act, 1995).
[11] Pink Tax Repeal Act, H.R. 2048, 117th Congress (2021) (proposed).
[12] Council Directive 2004/113/EC, 2004 O.J. (L 373) 37.
[13] GST Council Decision on Exemption of Sanitary Napkins, July 2018.
[14] M. Dugar, “Taxing the Biological: The Jurisprudence of the Tampon Tax,” Journal of Indian Law and Society (2018).
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Author- Shweta Upadhyay | Founder & Partner | Solace Law Practice | Shweta@solacelawpractice.com
