Case Law Details

Case Name : Zarmina Israr Khan Vs Union of India & Anr. (Delhi High Court)
Appeal Number : W.P. (C.) No. Of 2017
Date of Judgement/Order : 15/07/2017
Related Assessment Year :
Courts : All High Courts (3707) Delhi High Court (1174)

A Public Interest Litigation has been filed in the Delhi High Court challenging the imposition of 12% Goods and Services Tax (GST) on Sanitary Napkins. The Court posted the matter for hearing on November 15. Text of PIL is as follows:-

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P. (C.) NO. OF 2017

(IN THE MATTER OF A PUBLIC INTEREST LITIGATION)

Zarmina Israr Khan  PETITIONER

Versus

Union of India & Anr.

PUBLIC INTEREST LITIGATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA CHALLENGING

THE ILLEGAL AND UNCONSTITUTIONAL LEVY OF 12% GOODS AND SERVICES TAX ON SANITARY NAPKINS

To,

Honorable the Acting Chief Justice and Her Companion Justices of

the High Court of Delhi at New Delhi

The Humble Petition of the Petitioner above named:

MOST RESPECTFULLY SHOWETH

1. That the writ petitioner has no personal interest in the litigation and the petition is not guided by self-gain or for gain of any other person/institution/body and that there is no motive other than of public interest in filing the writ petition.

2. That the source of knowledge of the facts alleged in the writ petition are from the public records and various websites, and news reports/articles appearing in various news-papers and websites, on the issue involved in the writ petition.

3. That the petition has been filed for the benefit of women in general, particularly those belonging to the lower economic strata of society. These persons are incapable of accessing the court themselves on account of being not fully/properly equipped, financially as well as legally, and thus they are in no position to resort to the remedy of ‘Public Interest Litigation’ for highlighting their grievance/problems and necessary relief and redressal thereof through it and also being unaware of the legal procedure/technicalities involved therein.

4. That the institutions/persons likely to be affected by the orders sought in the writ petition are the Union of India and the Goods and Services Tax Council, who have been imp leaded as respondents in the writ petition and to the knowledge of the petitioner, no other persons/body/institutions are likely to be affected by the orders sought in the writ petition.

5. That the Petitioner is presently a Ph.D. scholar, in African studies, at the Jawahar Lal Nehru University, Delhi. She is an Economics graduate, and holds a M.A. in Dalit and Minority studies and an M. Phil. in African Studies. The Petitioner has the means to pay the costs, if any, imposed by the court and gives an undertaking to the court in this respect that she shall abide by any direction in this regard by the Hon’ble Court

6. That several concerned persons have made several representations to the authorities concerned for remedial action but no reply or action has been taken with regard to the same. The Petitioner has not made any representation to the authorities concerned for remedial action as the orders/reliefs sought in the present petition are not likely to be granted by them particularly in view of the fact that they have not done so/and or have already declined to do so despite representations from various stakeholders.

7. That the Petitioner has in the past not filed any public interest litigation or letter petition before this Hon’ble Court.

FACTUAL NARRATION

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8. That the Petitioner is filing this Public Interest Litigation before this Hon’ble Court seeking recourse against the patently discriminatory and illegal treatment being meted out to the women of India by the unconstitutional and illegal imposition of a Goods and Services Tax at a high rate of 12% on sanitary napkins.

9. That the Goods and Services Tax (‘GST’), enforced on July 1, 2017, is a unified Indirect Tax across the country on goods and services. It is the sum of all the indirect taxes that were levied at each stage separately by the Union government and States at varying rates, earlier in the country.

10. That the GST on goods and services have been classified into seven (‘7’) broad brackets with differential rates. These are nil rate, 0.25% rate, 3% rate, 5% rate, 12% rate, 18% rate and 28% rate. The complete list of the rate of GST on Goods is annexed herewith and marked as Annexure P1.

11. That there are certain items that have been exempted from the imposition of GST with an intent to not burden the consumer, keeping in mind the nature of the item and the perceived significance to the consumer. The underlying rationale is to ensure affordability for the customer and to not discourage the use of the item concerned by taxing it. Some of these items include kajal, kumkum, bindis, sindur, alta, plastic and glass bangles, hearing aids, passenger baggage, puja samagri of all kinds, and all types of contraceptives, including condoms.

12. That as opposed to the tax-exempt classification of the aforesaid goods, for reasons best known to the Respondent No. 1 herein, the Union of India, and the Respondent No. 2 herein, the GST Council which is the Constitutional body to decide issues relating to GST; sanitary napkins have inexplicably been subjected to taxation under the GST and that too at a grossly high rate of 12%. Sanitary napkins have in this regard have been grouped with toys, leather goods, roasted coffee, mobile phones and processed foods among st others items, all of which are subjected to a GST rate of 12%.

13. That the aforesaid imposition of this high rate of tax, which is ex-facie unconstitutional, illegal and arbitrary, has witnessed strong dissent and calls for corrective action from individuals and organizations across the country. However, the Respondents till date have taken no corrective action to remedy this injustice that women are being subjected to solely on the basis of their gender.

PROPOSITIONS

14. That there are estimated to be over 355 million menstruating women in India, but a vast majority of these women across the country still face significant barriers to a comfortable and dignified experience with menstrual hygiene management. It is estimated that approximately 88% of menstruating women in India have no access to sanitary napkins. A majority of these women utilize alternatives such as old rags, husks, dried leaves, grass, ash, sand or newspapers in the place of sanitary napkins. These materials predispose women to reproductive tract infections and have the potential to severely compromise their health. The health of women is an important issue that has often been neglected by many. Poor health has repercussions not only for women but also their families. The poor health of a mother jeopardizes the well-being of her infant at birth. These women also are less likely to be able to provide food and adequate care for their children. A woman’s health also affects the nation’s economic well-being, as a woman in poor health will be less productive in the labor force. In the aforesaid background, it is important to note that it has been found that the root cause of approximately 70% of all reproductive diseases in India is poor menstrual hygiene. Commercially manufactured sanitary napkins are expensive for low income users, and low-cost pads vary in reach and quality. Consumers in India, particularly in rural and semi-urban areas are very price sensitive and affordability is the most crucial criterion for product adoption. Various studies and surveys with adolescent girls and women in urban and rural India have indicated high cost as the primary reason for not using a sanitary pad. True copies of certain relevant reports and articles that attest to the aforesaid unfortunate reality are being annexed herewith and marked as Annexure P2 (Colly).

15. That in light of the aforesaid glaring facts, it is shocking that the Respondents have grouped sanitary napkins with toys, leather goods, roasted coffee, mobile phones and processed foods among st others for the imposition of a GST rate of 12% under the present tax regime. The classification of an essential and critical sanitation product with goods non-essential to survival, reflect the extent of the gender-inclusive priorities, or the lack thereof, of the State. Aside from the fact that the imposition of any GST on sanitary napkins is illegal, the impugned levy also makes no distinction between high-cost and low-cost sanitary napkins and taxes them on an equal footing. This is quite opposed to the differential treatment given to various goods, such as footwear, on the basis of their retail sale price. For instance, under the GST, Footwear having a retail sale price not exceeding Rs. 500 per pair are taxed at the rate of 3% only, whereas other kinds of footwear not falling within this category have been taxed at 18%. The sheer arbitrariness of the imposition of a 12% rate of GST on sanitary napkins is further evident when it is seen that goods such as kajal, kumkum, bindis, sindur, alta, plastic and glass bangles, hearing aids, passenger baggage, puja samagri of all kinds, and all types of contraceptives, including condoms have in fact been subjected to a ‘nil’ tax rate under the GST. The action of the Respondents amounts to ensuring that a woman is liable to pay tax on her inevitability to menstruate, a biological process that is inherent in women. Such an action, at best, represents a palpable nonchalance to the every-day reality faced by women in India, and at the worst, represents a parochial and misogynistic mind-set.

16. That sanitary napkins are essential for a woman’s right to live with dignity and freedom, and for the protection of her overall health. A menstruating woman has no control over her periods, and thus taxing a woman for using sanitary napkins amounts to taxing her for being a woman which is ex-facie discriminatory and constitutionally and morally

17. That in the 21stcentury, the right to access and use sanitary napkins is a fundamental human and constitutional right for all women. The Respondents, through the imposition of a 12% rate of GST on sanitary napkins have significantly compromised this right for Indian women. The imposition of a 12% rate of GST on sanitary napkins (‘impugned levy’) is patently illegal and unconstitutional and the same is liable to be struck down on the following among st, other:

GROUNDS

A. That the impugned levy violates the inviolable and fundamental right to life that is contained in Article 21 of the Constitution of India in as much as it makes it more onerous for women to be able to access an essential item relating to their reproductive, and overall, health;

B. That the impugned levy violates the constitutional guarantee of the right to live with human dignity enshrined in Article 21 of the Constitution of India;

C. That the impugned levy in fact amounts to a levy on the reproductive rights of women, which include the right to gain access to reproductive health services, and which is ex-facie unsustainable and opposed to the Constitutional

D. That the impugned levy is discriminatory and violative of Article 15(1) of the Constitution of India in as much it burdens only women, who ultimately are the consumers of sanitary napkins. A menstrual cycle is not a matter of Sanitary napkins are thus, not a luxury, nor are they a life-style product. On the contrary, they are, in fact, a basic necessity and an essential item for women;

E. That the impugned levy is violative of Article 14 of the Constitution of India in as much as the same is palpably arbitrary and unreasonable, and violates the mandate of equality contained therein.

F. That the Respondents have exempted goods like kajal, kumkum, bindis, sindur, alta, plastic and glass bangles, hearing aids, passenger baggage, puja samagri of all kinds, and all types of contraceptives, including condoms; from the purview of taxation. They have, however, shockingly not extended the said exemption to sanitary napkins, which are essential for the health of women. Furthermore, the Respondents have 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% under the present tax regime. Such an action/omission is palpably arbitrary and unreasonable.

G. That aside from the fact that the imposition of any GST on sanitary napkins is illegal, the impugned levy is also arbitrary in as much as it makes no distinction between high-cost and low-cost sanitary napkins and taxes them all on an equal basis. This is quite opposed to the differential treatment given to various goods, such as footwear, on the basis of their retail sale price. For instance, under the GST, Footwear having a retail sale price not exceeding Rs. 500 per pair are taxed at the rate of 3% only, whereas other kinds of footwear not falling within this category have been taxed at 18%.

H. That the impugned levy is diametrically opposed to the commitment towards securing just and humane conditions of work enshrined in Article 42 of the Directive Principles of State Policy. Further, considering the importance of sanitary napkins in ensuring women access to the work-place in particular, and public spaces in general, during the period of mensuration, the impugned levy also violates the right of women to an adequate means of livelihood and also compromises their health, thus falling afoul of the commitment contained in Articles 39 and 47 of the Directive Principles of State Policy. Though the same may not be enforceable in the strict sense, there can be no cavil that it is the duty of the State to adhere to the commitments contained in the Directive Principles while framing laws, and it cannot be permitted to act to the contrary as it has done in the present case.

18. That in the aforementioned facts and circumstances it is necessary, expedient and in public interest that this Hon’ble Court may be pleased to exercise its powers under Article 226 of the Constitution of India and grant the prayers sought for in the present petition.

19. That the petitioner has got no other equally efficacious alternative remedy for the reliefs prayed for in the petition.

20. That the petitioner has not previously filed a similar writ petition in this Hon’ble Court, in the Supreme Court of India or in any other High Court of India.

21. That this petition is filed bonafide and in the interest of

PRAYER

In the premises aforesaid, it is most humbly and respectfully prayed that this Hon’ble Court may be pleased to issue:

(a) An appropriate writ, direction or order quashing the imposition of 12% Goods and Services Tax on Sanitary Napkins, and declaring Sanitary Napkins to be liable to a ‘nil’ rate or a reduced rate;

(b) Such other and further orders and/or directions as this Hon’ble Court may deem fit and proper in the fact and circumstances of the case.

Petitioner

Through

Counsel for the Petitioner

New Delhi 15.07.2017

Filed by:
Dr. Amit George and Mr. Swaroop George,
Advocates
T-15, Green Park Extension, New Delhi-110016
Mob: +91-9910524364; Tel: +91-26177424, +91-41756995
e-mail: amitgeorge@outlook.com

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