The Rights, Reservations and Development of the SC’s & ST’s

Shruti Sharma ((Student of II Year B.A. LL.B. (Hons.), Semester IV, Symbiosis Law School, Pune)).

Abstract

On the 26th day of January, 1950, the people of India gave to themselves their Constitution which ensured to them Justice, Liberty, Equity and Fraternity. Under part III of the Indian Constitution, the fundamental rights became a necessary consequence of the declaration of the Preamble ((Preamble of the Constitution: A mirror to Society, http://www.importantindia.com/1990/importance-of-preamble-in-indian-constitution/ (last visited: May 04, 2016).))focusing on upholding the dignity of life and the basics for which the human life stands.

Since before independence, the Scheduled Caste have faced caste hierarchy and the age long suppression by the higher caste thus becoming a part of the depressed sections of the Hindus. The social injustice and stigma thus became the sole reason for the need for special protection and help for the facilitation of betterment of their socio-economic and political condition. Furthermore the Scheduled Tribe constitutes a total of 7.5 per cent of India’s total population. For the reason of the fact that they continue to practice their native norms and customs and remain inaccessible to the rest of the world, becomes an important ground for the preservation of their rights.

Through the means of this paper the researcher has studied in depth the problems faced by present day SC’s and ST’s while focusing majorly on the change in culture, lifestyle and traditional practices along with the development and appropriation of rights and reservations to alleviate  their hereditarily backward position in society.

During the course of the paper, the researcher traces the history of their existence with respect to the special rights and privileges awarded to them along with the report by the Mandal Commission and its application in the globalized world. While directing the impact of globalization and the development of nongovernmental institutions towards the betterments of conditions of the SC’s and ST’s in the present day scenario.

Introduction

I don’t go by my caste, creed or religion. My works speak for me – Shashi Tharoor

The caste system prevalent in the Indian society has its roots deep in the history of our nation. The age old caste system that divided the teachers and the preachers, the kings and the worriers, the merchant and the trader and the servant from the master still show their reflection in the modern times. Today the Indian republic stands divided largely on the basis of religion and further on caste into Hindu and Muslim, Scheduled Caste, Scheduled Tribe and Other Backward Classes.

The six decades of independence has changes the face of the ancient caste system giving rise to the present scenario where the Constitution provides the Right to Equality covered under the ambit of part III and works on the motives, objectives and nature of the Fundamental rights. It comprises of Article 14 to 18, of which Article 14 is the most important one. Equality is one of the magnificent corner-stone of Indian democracy ((Thommen J., Indra Sawhney v. Union of India, AIR 1993 SC 477)). The under laying object of Article 14 is to provide equality of position and opportunity to all persons, whether citizen of India or otherwise. Article 15 prohibits discrimination on the basis of cast, sex, creed, religion or place of birth. Further Article 16 guarantees to the citizen of India equality of opportunity in matters of public employment. Article 17 abolishes untouchability and 18 abolishes titles other than those awarded for rendering services to the nation [military or academician] ((Part III, Constitution of India)).

The subsequent question arising now is whether the rights coffered to individual under the Right to Equality is absolute and same for all individuals. The Supreme Court addressed this issue in the case of M.G. Badappanavar v. State of Karnataka, ((AIR 2001 SC 260))where it declared that “Equality is the basic feature of the Constitution of India and any treatment of equals unequally or unequal’s equally will be a violation of the basic structure of the Constitution of India.”

A clearer classification and differentiation between the largely mistaken divisions is explained as under:

Scheduled Caste

The Scheduled Caste (herewith referred to as SC’s) have not technically been a racial, lingual or religious minority. They have been a part of the Hindu sect, usually referred to as untouchable or Harijans. ((Dalit, Harijans and Untouchables, http://mb-soft.com/believe/txo/untoucha.html (last visited: May 12, 2016).))They involved themselves in dirty jobs bestowed upon them by the caste hierarchy, and due to their age long suppression by the higher caste they have become a part of the depressed sections of the Hindus. Their social incapacity and inability thus became the sole reason for the need for special protection and help for the facilitation of betterment of their socio-economic and political condition.

Scheduled Tribe

The Scheduled Tribe (herewith referred to as ST’s) have also been referred to as aborigines, are those sections of our society who continue to follow their native traditions and customs. They observe and continue to follow their tribal way and self-made cultural norms. The basic characterization of these people is (i) their primitive way of living and nomadic habits; (ii) love for drink and dance and (iii) habitation in remote and inaccessible area ((First Report for the Commission for Scheduled Caste and Scheduled Tribe, 3, 11(1952).)).

Today they constitute a total of 7.5 per cent of India’s total population and for the reason of the fact that they continue to practice their native norms and customs and remain inaccessible to the rest of the world, becomes an important ground for the preservation of their rights.

Analysis

The SC’s and the ST’s have been those parts of the Indian society that have, over time been unable to cope with the changes and modernization of the societal order. Some have been crippled by the pressure of the general hierarchy of the Indian society while others still continue to follow their traditional customs with little changes from ancient time. On one hand, while the government continues to play its role in their development by the means of reservation, they limit the purpose of classification of the reasonability of reservation and the provisions following the principle of ‘Doctrine of Reasonable Classification’ ((The doctrine of reasonable classification states that there should be a nexus between the basis of classification and object of law and it should be based on the principle of intelligible differentia)).

Six decades and the exposure of India to the new socio-cultural and economic frontiers have resulted in the fusion of the old and historic customs and practices with the new and emerging prospects for the future. Through the course of this paper, the researcher shall study each of the above mentioned situations and provide an analysis on the effects and repercussions of adopting different policies.

2.1 Impact of globalization on SC’s & ST’s

Globalization in its very basic sense is the opening of local and jingoistic perspective to a broader outlook of an interconnected and interdependent world with free transfer of capital, goods, and services across national frontiers. ((The Business Dictionary, http://www.businessdictionary.com/definition/globalization.html (last visited on May 14, 2016).))In the words of Robert Samuelson “Globalisation is a double–edged sword. It is a controversial process that assaults national sovereignty, erodes local culture and tradition and threatens economic and social stability”. Proving the statement right, globalization has not been a welcome change in the developing countries for the fear of submission of the economy at the hand of multinational giants.

In the Indian scenario, where tribes continue to populate the mineral and natural resource rich areas of the expanse of the country, a major threat hangs in the balance as the unprecedented lobbying poses a menace to the alteration of governmental policies in favour of large scale industrial organization. It brings into question the statutes like Forest Act, the Environment protection Act and the Land Acquisition Act as they are jeopardy at the hands of industrial lobbying facing dilution, repealing or amendment. The violation of the Fifth schedule has been an immediate risk to the tribes of India, it violations in  Andhra Pradesh by the means of ignorance of the Land Transfer Regulation Act by giving mining leases in scheduled areas to private companies, shows the relaxation of the governmental agencies in areas of protection of their rights ((B. Ezhilarasu , Impact Of Globalisation on Tribals in India,  Volume : 4 | Issue : 10 | October 2014 | ISSN – 2249-555X (last visited on May 15, 2016).)).

In furtherance to the unjust allocation of tribal land into private hands, the privatization of the profit making Public Sector Undertakings (PSUs) like BALCO ((C. R. L. Narasimhan, The Balco privatisation, The Hindu, Friday, February 23, 2001))has not only resulted in major displacement of the indigenous tribal population from their natural habitat but also the loss of their employment opportunities at the hand of capital incentive private companies has become a big issue. Furthermore the new displacement policies for the growth of infrastructure continue to disturb the natural order of life. As a result the tribal ended up as wrecked remains of the globalised policies unable to access the resources which were their life sustaining forces or to compete with the mainstream society to be absorbed into alternate economies.

In the case of the Scheduled Caste, the evident unavailability of education and employable skills resulted in the gradual fall in employment for the lower caste as they constituted the technologically backward class of the society. With large companies took over the market, the requirement for technically advanced jobs increased thus crippling the poorly skilled backward class. In a position and caste-based hierarchical reviewed social setup where lower societal position and monetary backwardness is by all accounts coterminous, social status assumes a critical part in deciding one’s financial status. Globalization further exasperates this horrible interrelationship amongst social and financial backwardness. The rationale of financial globalization supports the rich, who can contribute and increase capital. The favoured rich are for the most part found among the purported conventional ‘Upper Class’.

2.2 Role of Non-Governmental Agencies in SC and ST welfare

The NGO’s which can also be called ‘Harbingers of Change’ and ‘Partners in development’, play multifarious roles in the upliftment of Scheduled Castes and Scheduled Tribes. The rights and development of the oppressed class have received high attention on International Agenda and find an echo in the UN Charter ((Available at http://in.one.un.org/task-teams/scheduled-castes-and-scheduled-tribes (Last visited: May 14, 2016).))as well as Universal Declaration of Human Rights ((The Universal Declaration of Human Rights, http://www.un.org/en/universal-declaration-human-rights/ (Last visited: May 14, 2016).)). Post-Independence, development of Scheduled Caste and Scheduled Tribes has been a national goal and a special responsibility of both the Centre and State. The Centre has come up with various policies to strengthen their position in the society. On one hand while constitutional provisions have been made to bring them to mainstream society, on the other hand various schemes like Grant in Aid to Voluntary Organizations working for the welfare of Scheduled Tribes ((Schemes for NGO’s working with Tribal’s and Schedule Caste, http://indiamicrofinance.com/schemes-ngos-working-tribals-schedule-castes.html (Last visited: May 14, 2016).))and National Overseas Scholarship for SC’s are examples of Governmental efforts ((Ministry of Social Justice and Empowerment, http://socialjustice.nic.in/schemespro1.php (Last visited: May 14, 2016).)).

But their failure or rather underachievement breeds place for Non-State actors to come in the picture. The failure of Governmental policies has acted as a fertile ground for the NGO’s to take up the responsibility of the socio economic development issues. What is required in the context of Indian situation is the conscientisation of the Tribals about their latent capacities and to motivate them for acquiring a better life. The activities of the NGOs can be broadly summed up as to supplement the effort of the Government in such fields where the government is unable to reach the outreached; to launch a crusade against the policies and actions of the Government which result in injustice and exploitation.

In the age of Liberalisation, Privatisation and Globalisation where the state is withdrawing its authority from many of the development sectors and market is not much willing to share the burden of development, this sector has appeared on the scene as a liberator to protect the society from the onslaught and challenges of consumerism coupled with an urge for an equitable distribution of the fruits of development. They make an honest endeavour to empower the marginalised people in such a way so that they can stand on their own feet with self-reliance and depend less on charity and concessions provided by others.

The NGOs may create awareness among the Tribals by demonstrating the conservation and preservation of the medical plants. They may use the audio-visual aids for creating a lasting impression and campaign for ensuring the promotion of herbal plants in kitchen-garden and nurseries. Sharing of knowledge in workshops is also recommended where both NGO professionals and tribal counterparts would participate. The NGOs should encourage tribal youths to take up the tradition of practitioners of tribal medicine as livelihood option and encourage in research and development of their practice. There is a global dimension of this problem as well. International agencies and multinationals often pirate the age old knowledge of the Tribals for preparing drugs. Documentation of tribal knowledge becomes an urgent necessity in this case. The NGOs coupled with the Gram Panchayat can play a significant role in it. They can prepare a community register where such knowledge can be documented in the local language. They must be legally made aware of their traditional rights and move in the direction of preserving their knowledge under the auspices of Intellectual Property Right. However, there are certain grey areas in the functioning of the NGOs but they cannot be used to overlook the participation and contribution of the organizations like these. It is an undeniable fact that despite certain drawbacks NGO’s have emerged as watchdogs of the rights of depressed class and a “Universal Third Force” which has rendered Governments more accountable and inclined towards the upliftment of the same.

2.3 Women Rights

The discrimination against women runs deep and manifests itself in subtle but far-reaching ways. Today only 10% of our Parliament comprises of women is testimony in itself. If after 60 years of independence, we live in a system where women find it so difficult to get equal chances as men, then its only imaginable how the already downtrodden castes cope up with the misery. These differentiations based on social taboo and the manifestation of a patriarchal society with special inclination towards a male child have left the weaker gender further weakened with special need for protection in general.

On one hand while women face inequality with special protection granted to them under Article 15(4), ((Article 15(4), Part III, The Constitution of India))the Scheduled Caste and Scheduled Tribe women continue to face the inequality within the gender sect. The high rate of daily wage labourers being lower than national average income is a clear depiction of their plight. While SC’s and ST’s continue to sustain with a minimal income of Rs 34 to Rs. 37 as against the national average of Rs. 42, non-ST/SC earn upto Rs. 56 ((Dalit Women’s Access to Land Resources in the Context of Globalization: A Literature Review)). Defying Article 38 (2), ((Supra at note 11, Article 38 (2).))and 39(d), ((Supra at note 11, Article 39 (d).))of the Indian constitution, these statistics prove that the condition of women belonging to ST and SC community have not been improvised under the law.

In addition to the failing application of constitutional right, the justice system further continues on the path of inequality. In a survey of 500 cases it was produced that;

40.4 per cent of the victims did not attempt to attain justice.

26.6 per cent of the women were barred from filing complaints.

Only 1.6 per cent obtained ‘informal justice’.

While only 17.5 per cent of incidents of violence reached the police, but cases were left unaddressed.

13.9 per cent of cases received appropriate police or judicial action.

Only 1 per cent of the cases ended in conviction ((Supra at note 16)).

Though on a statutory front not much has been done in the field of specific women rights for the SC and ST communities, but various initiatives and the government’s attempt to bring inheritance for tribal women under the ambit of the Hindu Succession Act, 1956 has been a triumph ((Dalit women in India, International Dalit Solidarity Network, http://idsn.org/key-issues/dalit-women/dalit-women-in-india/ (Last visited on: May 14, 2016).)).

Conclusion

“We are Indians, Firstly & Lastly”

  • B. R. Ambedkar

For long the Indian society has functioned on the principle of caste and class. The upper class always exploited and squashed the lower cast. The damage done in such process was so deep that people still remain unable to drag themselves out of the vicious circle of poverty and helplessness. The facilitation of reservation for the upliftment of the socially disabled has been a process to bring all the people of the country on an equal level of opportunity and chances. It follows the crucial principle of the Right to equality by treating equals equally and unequal’s unequally and giving a fair chance to the like. In light of the historic character of the position of the ST’s, ST’s and other backward classes the Mandal Commission worked to liberate them.

Mandal Commission, established in 1979, focused on the organization of the population on the basis of social and educational backwardness and recommend steps for the upliftment of the deprived. The report submitted by the commission presented a figure of 54 per cent people of India belonging to backward classes, consisting of 3,743 different casts and communities ((Mandal Commission Report:25 years later, The Indian Express, September 1, 2015, http://indianexpress.com/article/india/india-others/sunday-story-mandal-commission-report-25-years-later/ ( last visited: 17 September, 2015).)). The recommendation by the Committee for improving the condition of the backward classes is a follows:

Reservation of 27 per cent for those who do not qualify on the basis of their merit.

Reservation of 27 per cent for promotions at all levels.

Age relaxations

The reservation shall be made applicable to all the public sector undertakings, banks and private undertakings receiving grants from the central and state governments, universities and colleges.

Government should make provisions for the implementation of the same ((Ibid)).

These principles were to apply equally to educational institutions and jobs. The motive behind the provision for reservation was never to provide extra benefits to the individuals; the sole motive behind the provision was to give a push to the socially incapable to make them reach the same level as the rest of the population.

While many continue to argue that reservation as a policy completely violative of the principle of equality as it provides undue benefit to some classes while depriving the other, more deserving people, from the above analysis of the present condition of the SC’s and ST’s it is evident that the policies in favour of them need rigorous implementation. The enactment and implementation of statutes to prevent atrocities against the ST’s and SC’s remain a farfetched idea with the requirement for a procedural law remaining a dire need. A procedure established by law would ensure a better protection on their rights, as was laid down in the case of Maneka Gandhi vs. Union of India ((1978 AIR 597))thus recognizing the delivery of justice to the downtrodden and the aggrieved and insuring the in the dynamic world with fast paced changes justice is reachable to the farthest hand.

 

Article 356 of the Constitution: A Critical Analysis

Dr. Seema Sharma, Assistant Professor, MMH College, Ghaziabad, UP, India

Article 356, which empowers the President to impose President’s rule in the States, has been in controversy right from its inclusion in the Constitution. Article 356 incorporated in the Constitution of India gives the President, the power to impose President’s rule in States, where he, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. This is an emergency provision where the Union Government may extend its powers into domains normally reserved for the States. Both houses of the Parliament must ratify this proclamation: failure to do this would result in the proclamation expiring in two months. If the proclamation is ratified, it cannot last beyond six months. The use of the word ‘otherwise’, which was not included in the original draft, has received a lot of flak over the years, as it makes the President more susceptible to pressure from those in power.

Since independence this Article has been flagrantly misused on numerous occasions to suit the purposes of a dominant Centre. There has been a constant demand from different parties to scrap this provision. This paper is an endeavor to discover the answer of the question:  whether Article 356 should be scrapped?

Historical Background           

Doubts and fears were expressed in the Constituent Assembly that this power in the hands of the Chief Executive might be misused by the Centre against the States for partisan ends when the parties governing the Centre and the States would be different.  Prof. Shibban Lal Saxena felt that by these Articles, the autonomy of the States had been reduced to a farce ((Constituent Assembly Debates, Vol. IX at 144)).Pandit H.N. Kunzru maintained that the instability resulting from a large number of political groups in a State Legislature would not justify Central intervention. Dr. Ambedkar hesitantly admitted to the possibility of the emergency provisions being employed for political reasons by stating:

“The proper thing we ought to expect is that such article will never be called into operation and that they would remain a dead letter ((Id. at 177)).”

Article 356 in Practice          

In Indian politics the period until 1967 has been described as the period of “one dominant party system”.  During this period the imposition of President’s rule was not frequent. The reason was that by and large the ruling party at the Centre and in the States was the same and this act ensured that the tensions arising between them could very often be resolved through the mechanism of the party set up.  There was a sharp rise of these occasions from 1967 onwards.  The fourth General Elections saw the emergence of a multiparty polity ending the Congress monopoly of power.  There was a sea change in the political scene.  Coalition ministries were formed in a number of States for the first time. Many of them were unstable being based on convenience rather than principle. From here began the saga of frequent misuse of Article 356 for political ends thereby disturbing the federal structure of our Constitution and endangering democracy in our country.

The provision, which was thought of as a “safety-valve”, proved to be a political weapon of the Centre against the States.  The provision, which was intended to be a “dead letter”, has proved to be a “death letter” for a number of State Governments. Different grounds, which were never thought of by the framers of the constitution, have been used for the imposition of President’s rule in the States to suit the political interests of the party in power at the Centre. Every party plays the game at its pleasure: when in opposition, ask for the amendment or abrogation of Article 356 and when in power at the Centre, misuse the power for political ends. President’s rule has been imposed in the States mainly on the following grounds:

  • Breakdown of law and order.
  • Where no ministry could be formed.
  • Political instability as a result of defections.
  • Popular agitation against the ministry.
  • Complete paralysis of the State Administration.
  • Corruption and mal-administration.
  • To end party rivalry.
  • To prevent or facilitate the bifurcation of the State.
  • Pending elections in newly created States.
  • Where the State government belongs to a party which has suffered an overwhelming defeat in the election to the Lok Sabha.
  • Where a State government works against   secularism.

It is submitted that the grounds (vii) and (x) are totally unjustified.  Losing the Central election does not per se amount to a situation where it could be concluded that the State government has lost the mandate of the people of that State. The State government should complete its full term if it is administering the State properly.  Grounds (ii), (iii), (ix) and (xi) are totally justified.  In other cases it is for the President to be satisfied whether the situation is so grave leading to the breakdown of the constitutional machinery.

Failure of Constitutional Machinery in a State

The crux of the problem is that the Constitution has not specified the circumstances, which can be construed to mean, “The failure of the constitutional machinery” in the State. The expression had been left unexplained during its inception in the Constitution. Dr. Ambedkar on being asked by Pandit Kunzaru about the meaning of this expression, had left it undefined vaguely by comparing it the Government of India Act, 1935 ((Ibid)).This answer of Dr. Ambedkar according to Seervai is an evasion of the difficulty pointed out by Pandit Kunzru.  A heavy price had to be paid for this evasion in the years to come ((H.M. Seervai, Constitutional Law of India at 3089 (4th edn., 1996).)), it seems that by not giving any explanation about the meaning of this phrase, Dr. Ambedkar intended to keep it vague.

Shri Santhanam in the Constituent Assembly had tried to categorize this expression into “physical breakdown”, “political breakdown” and “economic breakdown” ((See supra note 1 at 162)). The Sarkaria Commission has categorized this under the following heads ((Id. at 153)).

  • Political crisis.
  • Internal subversion.
  • Physical break-down.
  • Non-compliance with constitutional directions of the Union Executive.

To Scrap it or retain it: Mixed Reactions

Frequent misuse of this Article in ousting the people’s elected governments, of the opposition parties, have generated arguments to scrap this Article from the Constitution.  The Rajamannar Committee appointed by the Government of Tamil Nadu in 1969 and the Resolution adopted by West Bengal in 1977 had suggested the deletion of this Article.  But the Sarkaria Commission did not recommend its deletion but said that the Article 356 should be used very sparingly and as a measure of last resort in case of genuine breakdown of Constitutional machinery in a State ((The  Report  of  the Commission  on  Centre-State  Relations, Part I at 171 (1988).)).The National Commission to Review the Working of the Constitution (NCRWC) in 2002 also reiterated the findings of the Sarkaria Committee, saying that Article 356 could not be deleted but the state should be allowed to offer an explanation and the governor’s report should be a ‘speaking document’, containing an unbiased lucid view of the facts. It only recommended a constitutional amendment concerning non-dissolution of the state assembly until the proclamation is approved by Parliament.

Judicial Review

Judiciary now has assumed an important role to check the misuse of this provision.  Prior to the case of State of Rajasthan v. Union of India ((AIR 1977 SC 1361)),the High Courts were of the view that there could be no judicial review of the satisfaction of the President. In this case, one of the crucial questions which the court had to answer related to the “political question” doctrine. It was argued that having regard to the political nature of the problem, it was not amenable to judicial review and the court must abstain from inquiring into the same. The leading judgment of Bhagwati and A.C. Gupta, JJ. categorically rejected the contention and held:

“[M]erely because a question has a political complexion, that by itself is no ground why the court should shirk from performing its duty under the Constitution if it raises an issue of constitutional determination … merely because a question has a political colour, the court cannot fold its hands in despair and declare “judicial hands off”.

The learned judges further observed that the satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. But this does not mean that the judges totally abandoned the idea that the exercise of these powers could be subject to judicial review.  Bhagwati, J. observed that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it.Imposition of President’s rule in the State of Karnataka on April 21, 1989 was challenged before the Karnataka High Court in S.R Bommai v. Union of India ((AIR 1990  Kant 5(FB).)). The Presidential satisfaction was based on the Governor’s report and on “other information”. The Full Bench held that Proclamation made under Article 356 of the Constitution was justiciable, and that the courts could look into the materials or the reasons disclosed for issuing the Proclamation to find out whether those materials or reasons were wholly extraneous to the formation of the satisfaction and had no rational nexus at all to the satisfaction reached under Article 356 of the Constitution.

In the case of S.R. Bommai v. Union of India ((Id.)),the Apex Court has finally settled the position. The Court took  note of the Sarkaria Commission’s Report, regarding  the situations which will not warrant resort to Article 356.Some of them are as follows:

  1. A situation of maladministration in a State where a duly constituted Ministry enjoys majority support in the Assembly.
  2. Where a Ministry resigns or is dismissed on losing its majority support in the Assembly and the Governor recommends imposition of President’s rule without exploring the possibility of installing an alternative government..
  3. Where, a Ministry which has not been defeated on the floor of the House, the Governor declines to dissolve the Assembly and without giving the Ministry an opportunity to demonstrate its majority support though the “floor test’, recommends its suppression and imposition of President’s rule merely on his subjective assessment
  4. Where   in the General Elections to the Lok Sabha, the ruling party in the State, has suffered a massive defeat.
  5. Where in a situation of “internal disturbance”, not amounting to or verging on abdication of its governmental powers by the State Government, all possible measures to contain the situation by the Union in the discharge of its duty, under Article 355, have not been exhausted.
  6. Where no prior warning or opportunity is given to the State Government   to correct itself in cases where directives were issued under Article 256, 257, etc.
  7. Where the power is used to sort out internal differences or intra-party problems of the ruling party.
  8.  Where there are serious allegations of corruption against the Ministry.
  9. Where there are only stringent financial exigencies of the State.

In the Bommai judgment the scope of Article 356 was discussed at length some of the conclusion of the judgment are as follows:

  • The Proclamation under Article 356 is not immune from judicial review.  The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.
  • Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given.
  • If a State Government works against secularism, President’s rule can be imposed.
  • Strength of the ministry should be tested on the floor of the House, which is the sole constitutionally ordained forum. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President.
  • Though the power of dissolving of the Legislative Assembly could be said to be implicit in clause (1) of Article 356, it must be held, having regard to the overall constitutional scheme, that the President shall exercise it only after the Proclamation is approved by both the Houses of Parliament under clause (3) and not before. The dissolution of the Legislative Assembly is not a matter of course.  It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation.
  •  In an appropriate case and if the situation demands, the High Court/Supreme Court can also stay the dissolution of the Assembly but not in such a manner as to allow the Assembly to continue beyond its original term.
  • If the Court strikes down the Proclamation, it has the power to restore the dismissed Government in office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension.  In such a case, the Court has the power to declare that the period the Proclamation was in force shall remain unaffected and be treated as valid.

Ramaswamy, J. dissenting with the majority observed that there is no express provision in the Constitution to revive the Assembly dissolved under the Presidential Proclamation or to reinduct the removed Government of the State. He further observed that the political parties must seek a fresh mandate from the electorates and establish their credibility by winning majority seats.  The possibility of reinduction creates functional hiatus.

Seervai supported ((See supra note 9 at 3107))the dissent of Ramaswamy, J.,while Soli Sorabjee favoured the majority judgment. According to Sorabjee, the decision in the Bommai case marks the high watermark of judicial review.  It is a very salutary development and will go a long way in minimising the Centre’s frequent onslaught on the States ((Soli J. Sorabjee, “Decision of the Supreme Court in S.R. Bommai v. Union of India :  A Critique”, (1994) 3 SCC (J) 28)).

Uttar Pradesh in 1998 when Governor Romesh Bhandari, being of the view that Chief Minister Kalyan Singh Ministry had lost majority in the Assembly dismissed him without giving him opportunity to prove his majority on the floor of the House and appointed Shri Jagdambika Pal as the Chief Minister which was challenged by Shri Kalyan Singh before the High Court which by an interim order put Shri Kalyan again in position as Chief Minister. This order was challenged by Shri Jagdambika Pal before the Supreme Court which directed a “composite floor test” to be held between the contending parties which resulted in Shri Kalyan Singh securing majority. Accordingly, the impugned interim order of the High Court was made absolute ((Jagdambika Pal v. Union of India, (1999) 9 SCC 95)).

In the year 2005, the Governor of Jharkhand was ordered by the Supreme Court for holding a floor test to determine which party/political alliance commanded a majority in Jharkhand. The Court made it clear that the discretionary power under Article 164(1) of the Governor is subject to judicial review. And the exercise of such power can constitutionally be insured by conducting floor test. Thus, the democratic principle propounded in Bommai case was again sounded in this case and so as with Arjun Munda v. Governor of Jharkhand (([2005] 3 SCC 399)).

Rameshwar Prasad and Others v Union of India (([2006] 2 SCC 1))is  the first of its kind where even before the first meeting of the Legislative Assembly its dissolution had been ordered on the ground that attempts were being made to cobble together a majority by illegal means and to lay claim to form the government in the State. The judgment concentrated on the Governor’s role and reiterated earlier recommendations about the type of persons who should or should not be appointed as Governors. It appeared to be too soft on the role of other players particularly the Union Cabinet when it merely said: “the Governor may be the main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. So, in the facts and circumstances of the case the “council of ministers should have verified facts stated in the report of the governor before hurriedly accepting it as a gospel truth”. Clearly, the Governor has misled the Council of Ministers…” And we might add that the Council of Ministers misled the President. The Court held that in view of the election process was set in motion and was at an advance stage, in the larger interest, it would not be proper to order revival of a state assembly. Rameshwar Prasad case has reiterated the principles enunciated in State of Rajasthan and Bommai case with more constitutional conscience. The Court made it clear that Article 356 contains an emergency power and this emergency power should be used not as normal power.

Concluding Remarks

It is evident from this study that a provision – Article 356 – which was incorporated in the Constitution for a noble cause of ensuring the governance in the States according to the provisions of the Constitution has been frequently misused by the parties at the Centre to achieve their political ends. The hopes and expectations of Dr. Ambedkar that this provision would remain a dead letter are belied and the apprehensions of many others have been proved true.Since the coming into force of the Constitution of India on January 26, 1950, President’s rule has been imposed on more than 100 occasions and on all these occasions it was seldom used and often misused.  The Union Government has not adopted a uniform pattern in accepting the causes and circumstances   which may warrant the invocation of Article 356. The expression “failure of constitutional machinery in the State” has been liberally used by the parties at the Centre at their pleasure taking undue advantage of the vagueness of this expression.

It is evident that there was divergence of views among judges about the issues of interim relief and the re-induction of the dissolved assembly status quo ante.  The majority judgments came in the affirmative, contrary to the strong dissent of Ramaswamy,J.

Regarding the “floor test”, the dissent of  Ramaswamy,J. is worth mentioning. He had observed that a floor test may provide impetus for corruption and rank force and violence by musclemen or wrongful confinement or vocational capacity of legislators.It is submitted that the only purpose of the “floor test” is to test the majority in the legislature. It is not the sole test for negating the Presidential Proclamation.  The government in power may have majority support in the legislature and yet there may be a breakdown of the constitutional machinery.  In Rao Birinder Singh case ((Rao Birinder Singh v. Union of India, AIR 1968 P&H 441)), President’s rule was  imposed in Haryana in November 22,1967.The dismissed government led by Rao Birinder Singh enjoyed the majority support in the Assembly, but due to frequent defections the administration of the State was totally paralysed.  In the Bihar case, likewise, the Rabari Devi Government enjoyed   the majority support in the legislature, still the Central government had recommended the invocation of Article 356 in the State on   September 22,1998. On the reiteration of the early recommendation of the cabinet, President’s rule was imposed in Bihar on February12, 1999 ((See supra note 2. Also see, Arshi Khan, “Politics of President’s Rule in Bihar”, 37(10) Mainstream 7(1999); Kamla Prasad, “President’s Rule and Bihar Politics”, 37(14) Mainstream 9(1999).)). Similarly if the State government does not comply with the direction or instructions from the Centre issued under Article 257, there can be failure of constitutional machinery in spite of the majority support in the legislature, thereby making fit case for the invocation of Article 356.

It is crystal clear that power under Article 356 has been misused due to vagueness of the expression “failure of constitutional machinery”.  But at the same time, it is not possible to limit the scope of action under Article 356 to specific situations as the failure of constitutional machinery may occur due to various causes all of which cannot be foreseen or put in the strait jacket of a statute.  It is difficult to give an exhaustive list of all the situations.  It is suggested that healthy conventions should be developed for the proper use of Article 356 keeping in mind the recommendations of Sarkaria Commission and Bommai judgment

 I would conclude my paper by saying that, in the ultimate analysis, it is the men and women, who work the law, who make it good or bad.  I would say with Dr. Rajendra Prasad on the day, the Constitution of India was adopted.

… If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution.  If they are lacking in these, the Constitution cannot help the country.  After all, a Constitution like a machine is a lifeless thing.  It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…

It is not a good exercise to scrap a provision, which was inserted in the Constitution after great deliberations with a noble perception. The best exercise is to retain it and practice it with great caution as our Founding Fathers expected, keeping in mind the interest of the people so as to ultimately benefit them, when they are genuinely hampered by dysfunctional governance.

Article 265 and the Authority to impose Tax: An Overview

Author: Bineet Kedia, Lecturer-in-Law, Amity University Rajasthan

The origin of the word ‘tax’ is from ‘taxation’ which means an estimate. In India, the system of direct taxation has been in force in one form or another even from ancient times. There are references both in Manu Smriti and Arthasastra to a variety of tax measures. Manu, the ancient stage and the law giver, cautioned the king against excessive taxation. Kautilya, the author of Arthasastra, emphasizes on equity and justice in taxation ((See, www.incometaxindia.gov.in/History/Pre-1922.ASP, last accessed on 20th of June, 2013.)).

Since the power to tax is considered to be an inherent sovereign power of a state, the constitutional provisions with respect to taxation are considered as limitations on power to tax. Everything which is subject to the sovereign power is proper object of taxation. Consequently, tax laws generally do not have extra-territorial operations and person or property to be taxed should be within the jurisdiction of the taxing authority. Hence immunity from taxation is extended to the property of other sovereign States in international law as every other sovereign State has to respect the independence and dignity of other Sovereign State.

NO TAX WITHOUT THE AUTHORITY OF LAW

Article 265 of the Constitution provides embodies an important constitutional principle, namely, that no tax shall be levied or collected except by the authority of the law. The term ‘law’ in this article means statue law, i.e. an Act of the legislature ((S. Gopalan vs. State of Madras, (1958) 2 MLJ 117)). Accordingly no levy can be imposed either by executive action or by the resolution of the House ((State of Kerala vs. K.P. Govindan (1975) 1 SCC 281)). Further the law must be a valid law ((V.N. Shukla., “Constitution of India”, Eastern Book Company, Luckhnow, edt. Tenth, 2001S))and must satisfy the following requirements:

         i.            The law should be one within the legislative competence of the legislature, being covered by the legislative list assigned to it by the Constitution.

       ii.            The law should not be one prohibited by any constitutional provisions like Articles 27, 276, 286, 301 etc ((D.D. Basu, “Shorter Constitution of India”, Prentice Hall of India, New Delhi, 1994)).

     iii.            The law or relevant portion thereof should not void under Article 13, i.e. in conflict with the fundamental rights.

     iv.            The law should not violate any other constitutional limitations such as Article 301 and 304.

In K.T.Moopil Nair vs. State of Kerala ((AIR 1961 SC 552)), certain provisions of the Act which prescribed the procedure for the levy of tax were struck down on the ground of being obnoxious to Article 19(1) (f). This case illustrates that not only levy but matters pertaining to collection of tax also should be under the authority of law.   In this case the uniform rate of tax at Rs.2 per acre levied under the Travancore- Cochin Land Tax Act, 1955 was challenged. The petitioner contended that though he owned considerable tract of forest land but his income from that land was only Rs. 3100 per annum which was insufficient to pay tax. The Court held that ordinarily the tax on land or land revenue was imposed on the actual or potential productivity was discriminatory.

In Tangkhul vs. Simirei Shailei ((AIR 1961 Mani 1)), the custom to render a day’s free labour to the village headmen in every year or to pay him Rs. 50 in lieu thereof had prevailed from time immemorial. The Court held that the amount of Rs. 50 was in the nature of tax and violated Art 265.

In Khazan Chand vs. State of J& K (([1984] 2 SCC 456: AIR 1984 SC 762)), the Court observed that power to make law with respect to tax comprehends within it the power to levy that tax and to determine the persons who are liable to pay such tax, the rate at which tax is to paid and the event which will attract liability in respect of such tax. The power to make a law with respect to a tax includes the power to make provisions in relevant statue with respect to all matters ancillary and incidental to the levy, assessment, collection and recovery of tax.

The scope of Article 265 was examined by Justice Pathak in Govind Saran Ganga Saran vs. S.T.Commercial ((AIR 1985 SC 1041)), wherein he stated the components of tax. The first is the nature of the taxable event, the second is the person on whom the levy is imposed, the third is the rate at which tax is imposed, and fourth is the measure or value to which the rate will be applied for computing the tax liability.

Where the law does not authorize the tax imposed, Article 265 is infringed. In Mainpuri Municipality vs. Kanhaiyalal ((Air 1960 SC 184)), the court held that where the statue conferred the power to levy the toll only on vehicles entering a municipality, a vehicle plying inside the municipal area could not be taxed. .

In Lohia Machines Ltd. vs. U.O.I (([1985] 2 SCC 197. 223)), an important issue which arises is whether an invalid tax could be challenged after the lapse of some time, at the time of collection. It was held that where the statue itself is ultra virus, the lapse of any number of years would not make the collection of tax under statue legal even by acquiescence.

One of the basic questions to be answered is whether the power to tax can be used to regulate apart from collecting revenue. In Lord Krishna Sugar Mills vs. U.O.I ((AIR 1959 SC 1124)), an export promotion scheme for sugar provided for compulsory supply of sugar by factories for export. In order to make a scheme a success it provided that additional excise duty would be levied on quantity of sugar delivered short of the quota. The Court upheld the validity of the scheme and observed that if there was no provision for imposing penal cess on the defaulters, in this case in the form of additional excise duty, there would be no sanction to compel them to deliver their quota of sugar. Therefore, it may be said that every tax is in some way regulatory.

One of the inherent limitation on the power of taxation is that the legislature should not imposes taxes for the benefit of private persons or in aid of private enterprises and should not be in contravention of Article 19 of the Constitution.

A tax is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. In D. Rama Raju vs. State of A.P. (([1972] 1 SCC 70)), the Andhra Pradesh (Krishna and Godavari Delta Area) Drainage Cess Act, 1968 provided for a levy of drainage cess on owners of land to meet the expenditure of flood prevention scheme. The challenge was that the expenditure was for the benefit of other land owners. The Court rejected the contention and upheld the levy.

PRINCIPLE OF RETROSPECTIVE TAXATION

Retrospective laws are those which decree consequences or create liabilities arising out of facts which existed or transactions which took place before the enactments of the laws, and which consequences or liabilities did not by law exist with respect to such facts or transactions at the time the facts existed or the transactions took place ((K. Parameswaran, “Power of Taxation Under the Constitution”, Eastern Book Company, Lucknow, 1987)). The Indian constitution does not contain any prohibition against retrospective legislation. A Retrospective tax can be challenged on two grounds namely:

         i.            That by such retrospective operation the nature and the character of the tax have been altered, and

       ii.            That such retrospective taxation infringes the fundamental right under Part III of the constitution ((N.M. Renuka, “Taxation and the Constitution”, Current Tax Reporter, 2004)).

The power to tax retrospectively includes the power to levy tax for a period at which time the legislature itself was not in existence ((Laxmi cotton Traders vs. State of Haryana, AIR 1969 Punj 12)). In Chandrana & Co. vs. State of Madras (([1972] 1 SCC 17, 22-23)), in 1957-58 the Mysore legislature was competent to impose 10% ad volorem tax on textiles. But, in 1958 the Central Sales tax Act made imposition of tax on textiles above 2% ad volorem illegal. In 1964, the Mysore legislature imposed a tax on textiles at 10% to operate in 1957-58. The Supreme Court held that a present limitation on the legislature did not disable it from imposing a tax, which it would have otherwise been competent to impose during the relevant period.

The Parliament can step in where a State Legislature has been found incompetent to levy a tax and may even provide for its retrospective operation ((Jaora Sugar Mills vs. State of Madhya Pradesh, AIR 1966 SC 416, 421)). In such cases, the parliament need not re-enact the whole legislation already passed by the State Legislature but need only provide that the State Law shall be deemed to have been enacted by the Parliament.

A series of decision have laid down the proposition of law that where a provision of the taxing statue or an assessment order was held to be invalid by a court of law, the legislature may change the law retrospectively in order to get over the judicial decisions ((Janapada Sabaha vs. Central Provinces Syndicate, (1970) 1 SCC 509)). The retrospectively levy of tax may be challenged on the ground that by such operation the nature and character of tax are altered. Every tax has two essential elements, one of the revenue and other of the regulation. Where the regulatory aspect of a tax is prominent, and if such tax is levied retrospectively, the Court may take the view that it was a penalty rather than a tax ((M.P. Jain, “Indian Constitutional Law”, Wadhwa and Company, Nagpur, 2003)).

Where a tax is levied retrospectively and an assessee has reason to doubt its legality it may be challenged as infringing the Fundament Rights in Part III of the Constitution. Article 20(1) of the Constitution contains a general prohibition against ex-post facto criminal laws. In Tiwari Kanhaiyalal vs. C.I.T (([1975] 4 SCC 101)), the appellant had filed his return under the Income Tax Act, 1922. Later he was proceeded against for filing false return under Income Tax Act, 1961. Under Section 28(4) of the 1922 Act if penalty had been imposed on the assessee, he could not be prosecuted, but there was no such bar under the Act of 1961. It was held that Art 20(1) of the Constitution would not apply because section 28(4) of the 1922 Act did not obliterate the commission of the offence. However the Court held that in as much as Section 227 of the 1961 Act provided for greater punishment than section 52 of the Act of 1922 and to that extent, the appellant was entitled to the benefit of the second part of clause(2) of Art 20 of the Constitution.

A taxing statue may also provide for civil sanctions. When a taxing statue provides for imposition of penalty, the question arises whether the liability is one of criminal nature being for an act or omission constituting an offence, or one of civil liability only. In P. Ummali Umma vs. Insp. Asst. Comm. (([1967] 64 ITR 669 [Ker])), it was held that penalties imposed for evading tax created only civil liability and Article 20(1) was not attracted. This view was approved by the Supreme Court in Shiv Dutt Rai Fateh Chand vs. U.O.I (([1983] 3 SCC 529)), where it was observed that a penalty imposed by sales tax authorities is only a civil liability through penal in character.

An important issue is what is the proper law to be applied for imposition of the penalty whether the law at the time of the act or omission or law at the time of proceeding. In Jain Brothers vs. U.O.I (([1969] 3 SCC 311, 319)), the Constitutional Bench held that the crucial date for the purpose of the penalty was the date of completion of the assessment proceedings. But in Brij Mohan vs. C.I.T (([1979] 4 SCC 118)), the Court observed that the law operating on the date of the wrongful act should determine penalty.

The complaint against retrospective legislation is that it affects vested rights or already completed transactions and that too without too any prior notice. Thus the Courts began to examine such laws under Article 14 and 19 to see whether they impose any unreasonable restriction on the fundamental right of the citizen to carry on trade and business ((K. Parameswaran, “Power of the Taxation under the Constitution”, Eastern Book Company, Luckhnow, 1987)). A legislation which imposes retrospective taxation should have very clear and important objectives, such a prevention of tax evasion, in order to pass the gauntlet of judicial review. Bur, on the other hand, enactments for the validation of a defective levy or collection of tax are generally more leniently viewed by courts because the legislature presumably did not suspect any incompetence or defect when it originally enacted such law. It was held in Sat pal & Co. Ltd. vs. Governor of Delhi (([1979] 4 SCC 232, 242)), that merely because a statue was found to be invalid on the ground of legislative incompetence that does not permanently inhibit the legislature from re-enacting the statue if it is prove that the legislature had power to enact such a statue.

From the above cases it is clear that judicial scrutiny in this area is highly superficial. The Court has not given sufficient reasons to uphold the retrospective tax laws. Moreover, there was no valid notice to the taxpayer of his liability and the law operated for periods when the tax was not legally due.

THE CONCEPT OF TAX AND FEES

Definition of Fee

In order to know the true meaning of the fees, we will have found its meaning given in different legislations, such as:

Income Tax Act, 1961

Section 43B ((Sec 43B refers to the deduction allowable in respect of the sum payable by an assessee by the way of tax, duty, cess, fee, or by whatever name called under any law for the time being in force is paid within the stipulated time))of 1961 Act refers to the word “fees” in association with the words “tax”, “duty”, or “cess” and the word “fee” will take colour from other words in whose association it appears ((Dr. I. Vijayakumar, “Business Expenditure Definition of Fees referred to in Section 43B of the Income Tax Act”, Current Tax Reports, Vol. 177, pg. 49  )). The Bombay High Court has explained the meaning of the word ‘fee’ in CIT vs. Shree Warna Sahakari Sakhar Karkhana Ltd (([2002] 173 CTR (Bom) 188: 2002 253 ITR  (Bom).)). by applying the rule of “ejusdem generis” ((It means when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to the things of the same kind as those specified)). In this case, it was held that there is no generic difference between tax and fee, though broadly a tax is a completely extraction as part of common burden without promise of any specific advantages to the classes of taxpayers whereas a fee is payment of service rendered, benefit provided or privileges conferred. The specific benefit or advantage to the payers of fees may even be secondary as compared with primary motive of regulation in public interest.

Thus, the concept of “fees” referred to in Section 43B cannot be equated with levy of audit charges payable for getting the audit of the accounts done. In this case levy of audit charges was nothing but the price required or demanded for the services rendered by the Government Auditors. The provision of section 43B does not apply to Government audit charges. The Court finally held that disallowance on account of outstanding government audit fees could not have been affirmed by the Commissioner and the Tribunal rightly allowed the same.

Om Parkash Aggarwal vs. Giriraj Kishore (([1987] 164 ITR 376 SC)), was the first case where the Supreme Court define the term ‘tax’ to differentiate from the term ‘fee’. In this case, three characteristics of tax have been pronounced which are as follows:

         i.            A tax is imposed under statutory power without the taxpayers’ consent and the payment is enforced by the law;

       ii.            That it is an imposition made for public purposes without reference to any special benefits to be conferred on the payer of tax; and

     iii.            That is part of common burden, the quantum of imposition upon the taxpayer depending generally upon the capacity of the taxpayer to pay.

     iv.            As regards fee the Supreme Court observed that essential qualification of a ‘fee’ is that it is absolutely necessary that the levy of a fee should on the fact of the legislative provision, be correlated to the expenses incurred by the government in rendering the services.

Constitution of India

The term ‘fee’ has been no where defined in the Constitution. The Courts have endeavored to define this term in contradiction to the term tax. In Commissioner H.R.E vs. L.T.Swamiar ((AIR 1952 SC 282: 1954 SCR 1006)), it was held that there is no generic difference between a tax and a fee, but the Indian Constitution recognizes a clear distinction between the two in the three lists in the Seventh Schedule. Each list has a number of tax entries, but at the end also has an entry authorizing levy of fees in respect of any of the matters included in the list ((J.N. Pandey, “Constitutional Law of India”, Central Law Agency, 2004)). For example, Entry 96, List I, reads as “Fees taken in respect of any of the matters within this list but not including fees taken in any court.” Now here expression “any of the matters in the list” necessarily includes also the entries relating to taxation. This means that a fee may be levied even under an enactment relating to the imposition of tax. The prohibition that no tax can be levied or collected without the authority of law, applies only in respect of taxes. The prohibition does not apply in respect of fees ((Ibid)), Section 76 of Madras Hindu Religion Endowment Act, 1927, which provided for a contribution at the rate of 5% of the income of religious institution and an additional levy of one and half percentage where such income exceeds Rs. 1000 to meet the cost of services and auditing, was challenged as imposing not a fee but a tax in reality.

Difference between Fee and Tax

Since quite some time, controversies had been surfacing in regard to the concept of ‘fee’ and how it differs from tax. The term ‘fee’ was explained by the Apex Court in several decisions in the context of legal maxim ‘quid pro quo’ ((Payment made for something received of more or less equivalent value or advantage while a tax was conceived of as a levy for providing common facilities)).

In the above case, the Supreme Court while enumerating the different characteristics of fee and tax expressed the view that distinction between tax and fee lies primarily in the fact that tax is levied as a part of common burden while fee is a payment for a special benefit or privilege. The court held that a tax is a compulsory exaction of money by pubic authority for public purposes enforceable by law and is not payment for service rendered. It was also held that specific definition of fee cannot be formulated as there are different types of fees. But it may be defined as a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenditure incurred by the government in rendering the services ((T.N. Pandey, “Fees VS. Tax- Supreme Court enlarges the concept of Fee”, Current Tax Reports, 2001, Vol.166, at pp.  73)).

The distinction has also been explained in relation to Article 366 of the Constitution where the Court held that the reference in Article 366 to an impost suggested that fee were included in taxation.

The Supreme Court in the case of Indian Mica and Micanite Industries Ltd. ((1971 ASC 1182)), held that before any levy can be upheld as a fee, it must be shown that the levy has reasonable co-relationship with the services rendered by the Government. In brief it can be said that levy must be proved to be a quid pro quo.

In Secunderabad Hyderabad Hotel Owners Association vs. HMC ((AIR 1999 SC 635)), it has been held that though the element of quid pro quo is necessary in order to determine whether license fee is a tax or fee, but it is not essential in cases where the license fee is merely regulatory or compensatory. It may be either regulatory or compensatory. When a fee is charged for rendering specific services certain element of quid pro quo must be there between the services rendered and the fee charged so that the license fee is commensurate with the cost of rendering the services although exact arithmetical equivalence is not expected. In this case the petitioner had challenged the increase in the license fee for trade license for running a lodging and eating house on the ground that the increased license fee was not in the nature of fees since there was no quid pro quo between the fee charged by the respondent municipal corporation and the services rendered by them to the traders.  The court held that the license fee charged for regulating the activities for which license is given as a fee and not tax although no service is rendered.

In Sri Jagananth vs. State of Orissa ((AIR 1954 SC 400)), it has been pointed out that there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself ((Parameswaran, “Power of Taxation under the Constitution”, Eastern Book Company, 1987)). From the above discussion following points of differences can be traced:

         i.            A tax is a common burden and the only return the tax payer gets is the participation in the common benefit of the state. It is common compulsory exaction of money by public authority for public purposes enforceable by law and is not a payment for service rendered. Fees, on the other hand, are payments for some special services rendered, or some work done, for the benefit of those from whom payments are demanded. Thus, in fees, there is always an element of quid pro quo which is absent in tax.

       ii.            No tax can be levied outside the tax entries while fees can be levied in respect of non tax entry as well.

     iii.            Another difference is that Art 110(2) and 119(2) which deal with Money Bill lays down expressly that a Bill will not be deemed to be Money Bill by reason only that it provides for the imposition of fines, or the demand or the payment of fees for license or fees for service rendered, whereas a bill dealing with imposition or regulation of a tax will always be regarded as a money bill.

CONCLUSION

Over the centuries, the financial resources of nation have depended upon its tax policies. Although the Indian constitution has clearly stated that tax can be levied only under authority of law, that is, only when a legislature passes a relevant law; due to the concept of delegated legislation, the executives are playing a larger role in law making today, than ever before. This has led to the abdication of even the essential legislative functions to the executive, which is against the spirit of the constitution. Even the Courts, have upheld the cases of executive or local government making rules and bye-laws, which, in some instances, have been the result of excessive delegation of power. In my view, the Parliament as well as State Legislatures should be more active in enacting comprehensive tax statues.

When we study the post-constitutional judicial decisions over the years, we find that the Courts have consistently applied a liberal interpretation to the tax statues. Consequently, even retrospective taxation has been upheld in most cases. This has lead to the dilution of judicial scrutiny regarding the constitutionality of a particular tax law. Therefore, in my view, even though a liberal interpretation of tax law is necessary, but at the same time courts should not dilute the criteria for testing the constitutionality of a statue.

The term ‘fee’ has not been specifically defined in the Constitution so there is a lot of confusion regarding it. The Courts have diluted the basic premise of a ‘fee’ by holding that quid pro quo, that is, direct relation between the fee levied and the services rendered is not necessary, for a particular levy to be called a fee.

Inadequacies of Reservations to Human Rights Conventions

Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), LLM (Exeter, UK), Assistant Professor, NLU Jodhpur)).

A review of the effect of reservations to international human rights instruments

Reservations allow a state to be a party to a treaty and at the same time to exclude some of the provisions or to modify the same ((On the other hand declarations purports to be an understanding, i.e. an interpretation of the agreement in a particular respect and is not a reservation if it reflects the accepted view of the agreement, Section 313 of the Restatement (Third), Foreign Relations Law of the U.S. (1987). An example of declaration would be the declaration made by India while ratifying CEDAW in 1993 in respect to Article 16(2) making the registration of marriages compulsory. India declared that though they support the principle of universal and compulsory marriage registration, such registration is not practical in a vast country like India with its variety of customs, religions and level of literacy, http://www.hrdc.net/sahrdc/hrfeatures/HRF172.htm)). The most important point to note here is that reservations make it possible for the state which has difficulties in guaranteeing all the rights in the covenant or treaties at least to accept the generality of obligations in that instrument ((Human Rights Committee, Comment 24 (1994), Para 4)).

According to Art.2 (1) (d) of the Vienna Convention of the Law of Treaties, 1969 a reservation means a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state. Article 19 of the Vienna Convention restricts the state to make reservations if the reservation is prohibited by the treaty, if the treaty provides for specific reservations and if it is incompatible with the object and purpose of the treaty (the latter one is often termed as the permissibility/admissibility doctrine). Clause 3 of article 21 specifies the legal effects of reservation wherein it provides that “when a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation (this is often termed as the opposability/admissibility doctrine).”

Human rights treaties and its non-reciprocal character

The Vienna Convention makes its definition and other incidental provisions applicable to all kinds of treaties. Most of the provisions in the convention are on the basis of reciprocity but here there is slight difference between human rights treaties and other treaties in regard to the fact that human rights treaties do not create reciprocal relationship and instead their prime objective is protection of human rights and obligations are towards individuals ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 437)). The general exception to this concept is reciprocity of inter-state complaints with regard to human rights that has been provided under article 41 of ICCPR ((Article 40, ICCPR: A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration)).

The non reciprocal character of human rights treaties find mentioned in the Vienna Convention as under Article 60 which deals with termination due to breach clause 5 stipulates that these do not apply to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties ((Article 60: Termination or suspension of the operation of a treaty as a consequence of its breach- 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.  2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties)).

It is argued that “the Vienna Convention’s rules on reservations are based on a bilateral pattern of relationships between states, and are therefore not well suited to human rights treaties which are of a non-reciprocal nature on the ground that the absence of reciprocity discourages states to object to inadmissible reservations, which makes the general regime of reservations when applied to human rights treaties extremely ineffective ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 441,442)).”

ICJ – Advisory Opinion

Generally in multilateral treaties if a state makes a reservation it will be valid only if the other contracting parties accept it and in case of objection the state may have to withdraw the reservation or leave the convention ((Rhona K.M. Smitha, Texts and Materials on International Human Rights (2nd edn Routledge) p. 84)). The ICJ was referred for an advisory opinion on the issue of reservations to Genocide Convention and the court observed that though one or more states object to reservation, the state making a reservation may be regarded as a party to the convention as long as the reservation is compatible with the object and purpose of the convention ((G.A. resolution of 16 Nov 1950 (1951 ICJ 15).)). It is true that there may not be inter partes agreement, i.e. the state making the reservation and the ones objecting to the same. But the observation of ICJ cannot be taken as a general rule as this ruling may be due to the specific nature of the Genocide Convention [major humanitarian instrument]. ((Rhona K.M. Smitha, Texts and Materials on International Human Rights (2nd edn Routledge) p. 85))The ICJ observed that “the object and purpose of the convention thus limit both the freedom of making reservations and that of objecting to them. It follows that it is the compatibility of a reservation with the object and purpose of the convention that must furnish the criterion for the attitude of a state in making the reservation on accession as well as for the appraisal by a state in objecting to the reservation.”

General Comment No.24, Human Rights Committee

In the very early time itself the role of the supervisory bodies in judging the validity of reservations was discussed in the international scenario. In 1976 the Committee on the Elimination of Racial Discrimination referred to the Office of the Legal Affairs of the UN as to whether the committee had power to do so and the answer was in the negative. The same was the response when the Committee on the Elimination of Discrimination against Women referred the matter but the Office of Legal Affairs observed that the committee may, at the most, comment about the incompatibility of reservations in its report.

According to the General Comment No.24, though its not very easy to differentiate between a reservation and a declaration regard should be given to the intention of the state and not the form of the instrument ((Human Rights Committee, Comment 24 (1994), Para 3: if a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the state, it constitutes a reservation.)).

Regarding ICCPR the General Comment stated that the covenant that represent customary international law may not be the subject of reservations and the state may not reserve the right to engage in slavery, torture, cruel and inhuman punishment, arbitrary arrest and detention, to deny freedom of thought, conscience and religion, presumption of innocence, to execute pregnant women or children and many other. The comment also states that reservations to specific clauses of article 24 may be acceptable but a general reservation to the right to a fair trial will not be acceptable ((Human Rights Committee, Comment 24 (1994), Para 8)).

The intention of General comment No.24 is made clear in para 12 and it is that the covenant strives the domestic laws to be changed in order to protect the rights under the covenant and reservations allows the state not to change a particular law which may render the rights under the covenant ineffective.

As regards the reservations to the optional protocols to the covenant and generally, the comment under para 20 stated that the states may indicate in precise terms the domestic legislation or practices which it believes to be incompatible with the covenant obligation reserved and to explain the time period it requires to render its own laws and practices compatible with the covenant or why it is unable to render its own laws and practices compatible with the covenant. It also stipulates that states should also ensure that the necessity for maintaining reservations is periodically reviewed, taking into account any observations and recommendations made by the committee during examination of their reports ((Human Rights Committee, Comment 24 (1994), Para 20)).

However, regarding the manner of determining admissibility the General Comment in para 17 states that, “an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant.” At the same time it also emphasize that non-objection does not mean that the reservation is in tune with the object and purpose of the covenant. In this regard it is pertinent to note the observation made in of Belilos v. Switzerland (1988) that “the silence of  the Contracting Parties does not deprive the Convention organs of the power to make their own assessment of the reservation.”

Giving power to the committee to judge the validity of reservations has got its advantages especially in considering the fact that human rights treaties or the covenant for that matter is dynamic and the interpretation hence should also be dynamic. It means that a reservation may be made by a state during the time of ratification which may have obtained other states’ consent. But at a later time it may be felt that the reservation is in conflict with the object and purposes of the convention and the states will not be in a position to object as they consented to it earlier and in such circumstances it is in all ways better to empower the committee or the treaty monitoring bodies to adjudge incompatible reservations ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 457)).

Severability or Non-severability

As regards the observations made by the committee in para 18 of the General Comment No.24 regarding severability ((Human Rights Committee, Comment 24 (1994), Para 18: “The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.”))several criticisms were raised by U.S., U.K. and France. According to the U.S., “if it were determined that any or one or more of the US reservations were ineffective the consequence would be that the ratification as a whole could be nullified and the US would not be a party to the covenant ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).” According to France, “the only course open is to declare that this consent is not valid and decide that the states cannot be considered parties to the instrument ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).” United Kingdom observed that “the general comment would risk discouraging states from ratifying human rights conventions since they would not be in a position to reassure their national Parliaments as to the status of treaty provisions on which it was felt necessary to reserve ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).”

It is also mentioned that a presumption favouring severance is better in any case as the corrective action that the state may take in response to an erroneous decision not to sever would be reratification and in response to an erroneous decision to sever would be withdrawal and the latter one is comparatively much easier than the former ((Ryan Goodman, “Human rights Treaties, Invalid Reservations, and State Consent” 96 Am.J.Int.L. 531 in Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1151; according to the author “an adjudicator’s erroneous expulsion of a state from a treaty risks significant costs along two dimensions namely international, i.e. a sovereignty impact from the state’s expulsion against its will, reputational costs to the state’s international standing, loss of a leadership or participatory role in the regime and national, i.e. the unhinging of a wide array of judicially enforceable civil and political rights protections, facilitation of illiberal rollbacks.”)).

Preliminary Conclusions of the International Law Commission on Reservations to Normative Multilateral Treaties, Including Human Rights Treaties (1997 session)

Though the ILC tried to formulate the powers of treaty monitoring bodies it in fact resulted in wide variety of confusions as it was contrary to observations made in General Comment No.24. According to ILC the treaty monitoring bodies have only powers to comment and make recommendations and that too “the competence of the monitoring bodies does not exclude or otherwise affect the traditional modalities of control by the contracting parties ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 469)).” The ILC also observed that “unless monitoring bodies have been expressly provided with such competence, ‘the legal force of the findings made by monitoring bodies in the exercise of their power to deal with reservations cannot exceed that resulting from the powers given to them for the performance of their general monitoring role ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 470)).” The most contradicting part is that where the General Comment No.24 gave importance to severability the ILC’s observations goes like this, “if reservations are found to be inadmissible, ‘it is the reserving State that has the responsibility for taking action…such action may consist in the state either modifying or withdrawing its reservation or abstaining from becoming a party to the treaty ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 470)).”

Observations of Human Rights Committee

In Kennedy v. Trinidad and Tobago ((Communication No 845/1999, Human Rights Committee, 31 Dec 1999)), where the communication was received from person awaiting death sentence clamming violations of Articles 6 and 7 on grounds of compulsory nature death penalty for murder, non consideration of mitigating circumstances, lack of fair hearing, torture before trial and so on, the Committee had to consider the reservation made by the state with regard to article 1 of the Optional Protocol of the ICCPR whereby the Human Rights Committee was not empowered to entertain communications relating to any prisoner under death sentence or in relating to his prosecution or detention or trial or conviction ((The reservation was made after the publication of Human Rights Committee, Comment 24 (1994).)). The committee decided that the reservation excludes the competence of the committee not with regard to a specific provision of the covenant but with regard to the entire provisions for one group of complainants and the same is not in consonance with the object and purpose of the covenant. The committee called for a report from the state party in this regard on the ground that the reservation constitutes a discrimination, that is, discriminating one group of individuals (prisoners awaiting death sentence) from the rest of the individuals. The committee’s effort was not a complete success as Trinidad and Tobago withdrew from the Optional Protocol. But now the General Comment No.26 has expressly stated that the Committee is of the view that “international law does not permit a State which has ratified or acceded or succeeded to the Covenant to denounce it or withdraw from it ((General Comment No. 26: Continuity of obligations: 12/08/1997 available on http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/06b6d70077b4df2c8025655400387939?Opendocument)).”

Reservations under ECHR and other conventions

Article 57 of the European Convention on Human Rights refers to the provisions of reservation ((Article 57, ECHR: Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article. Any reservation made under this Article shall contain a brief statement of the law concerned)). It was for the first time in Temeltasch v. Switzerland (1982) that the European Commission, apart from the general rule of states judging validity of reservations, judged the validity of a reservation. In the instant case a declaration made by Switzerland in regard to Article 6(3) (e) of the Convention ((Removing the obligation to provide the free assistance of an interpreter if a person charged with a criminal offence cannot understand or speak the language used in court))was held to be a reservation and judged the same to be valid as it was not of a general character. Though there is an express requirement in Article 57 of ECHR that the reservation should contain a brief statement of the national law which is not in conformity with the provision of the Convention reserved, it was absent in the instant reservation but the same was held to be a formal requirement and held the reservation valid. In the instant case the commission referred to the objectives of the Convention to derive its power by stating that “the Convention did not intend to concede to each other reciprocal rights and obligations in pursuance of their individual interests, but … to establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedoms and the rule of law.”

In the case of Belilos v. Switzerland (1988) the declaration made by Switzerland on Art.6(1) of ECHR was considered to be a reservation and held it invalid by the European Court of Human Rights as it was a general one ((The court observed that the reservation is general if it is ‘couched in terms that are too vague or broad for it to be possible to determine [its] exact meaning and scope’.)). Contrary to observations mad in Temeltasch v. Switzerland (1982), the court observed that the requirement in Article 57 of ECHR that the reservation should contain a brief statement of the national law which is not in conformity with the provision of the Convention reserved is not a purely formal requirement but a condition of substance. In this case the court derived its power to judge the validity of reservations from provisions enabling to ensure the observance of the engagements undertaken by the state parties to the Convention, jurisdiction of the court over the interpretation and application of the Convention and the jurisdiction of the court to determine its own jurisdiction. The court also noted the difference between the ‘will’ to be bound by the convention and the ‘will’ to enter a reservation and held that invalidating the reservation does not invalidate the consent to be bound by the convention.

Moreover in the case of Loizidou v. Turkey (1995) the court held the declarations of Turkey restricting the application of the Convention to Northern Cyprus to be an invalid reservation on the ground that the provisions governing reservations suggests that “States could not qualify their acceptance of the optional clauses thereby effectively excluding areas of their law and practice within their “jurisdiction” from supervision of the Convention institutions”. In this case the authority of the court to judge the validity of reservations has been stated as follows, “the Court must bear in mind the special character of the Convention as an instrument of European public order for the protection of individuals, and its mission to ensure the observance of the engagements undertaken by the High Contracting Parties.”

When it comes to the American Convention on Human Rights it has been specifically provided under article 75 coming under Part III, Chapter X that the reservations to the convention shall be in conformity with the Vienna Convention on the Law of Treaties.

Advisory opinion on the Restrictions to the Death Penalty in regard to Arts.4[2] ((In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply))and 4[4] ((In no case shall capital punishment be inflicted for political offenses or related common crimes))of the American Convention on Human Rights ((OC-3/83, September 8, 1983, Inter-Am. Ct. H.R)).

The court was confronted with two main issues. One as to whether a state can apply the death penalty for crimes for which the domestic legislation did not provide for such punishment at the time the American Convention on Human Rights entered into force for said state and the other one was whether a government, on the basis of a reservation to Article 4(4) of the Convention made at the time of ratification, adopt subsequent to the entry into force of the Convention a law imposing the death penalty for crimes not subject to this sanction at the moment of ratification ((Para 8)). Apart from the jurisdictional issues, the court answered both these questions in the negative and observed that “it follows that a State which has not made a reservation to paragraph 2 is bound by the prohibition not to apply the death penalty to new offenses, be they political offenses, related common crimes or mere common crimes. On the other hand, a reservation made to paragraph 2, but not to paragraph 4, would permit the reserving State to punish new offenses with the death penalty in the future provided, however, that the offenses in question are mere common crimes not related to political offenses. This is so because the prohibition contained in paragraph 4, with regard to which no reservation was made, would continue to apply to political offenses and related common crimes ((Para 70)).”

Conclusion

In regard to CEDAW though the articles were framed to protect the human rights of women, the general reservations made by the countries have made the effectiveness of the convention doubtful. For example the Arab Republic of Egypt had made a general reservation on Article 2 by stating that they are willing to comply with the same provided that it does not run contrary to Sharia principles. One possibility to bring finality to issues with regarding to inadmissible reservations would be to make the findings of the Human Rights Committee binding but it may not work out at the international level where most of the activities depend upon cooperation between various states and the solution of making the committee’s finding binding on the state parties may not be acknowledged by them. There are still too many questions that require further consideration and they are the following:

1)      What is the use of entering into a treaty if the current system of reservation benefits the state to get itself exempted from the specific obligations of the treaty? (especially in the light of CEDAW) / who should be the given the power to determine the validity of reservations: the states or treaty monitoring bodies?

2)      Can the advisory opinion of the ICJ be made applicable to the general international human rights instruments or is it only applicable to the Genocide Convention?

Should the matters like Kennedy v. Trinidad and Tobago be left to a stage where the state backs out from the convention obligations and render the objectives of the covenant meaningless?