1 |
The Points in the Neo-constitutionalism promotive of
Neo-liberal paradigm
A paradigmatic change in constitutional
philosophy now
erecting altered institutional and legal structures to promote the market order aiming to establish Pax Mercatus, or Pax
Corporatus run by rabid Homo
Economicus illustrating Friedrich A. Hayek's The Constitution of Liberty, published in 1960,
about which Margaret Thatcher is reported have said "This
is what we believe"' |
The emerging effects of
the judicial position in Azadi Bachao
Azadi Bachao (i) promotes the interest of the MNCs both
those entitled to avail of the
benefits of a bilateral tax treaty, and also those who wrongfully turned masqueraders from the third
States to avail of such benefits beyond the Personal Scope of Tax Treaties
through the entente cordiale of fraud and collusion. Azadi Bachao considered corporations' 'personality' so
impregnable by holding that in the realm of Tax Treaties the Doctrine of the
Lifting of the Corporate veil was not applicable because it applied in the
domestic law. This illustrates 'the continuing pressure by corporate
interests to expand corporate rights and limit the corporate obligations'. Azadi
Bachao sustains of the Circular 789 of 2000, ignoring Justice Reddy's
legal perspective provided in
the Constitution Bench decision of McDowell. This led Azadi
Bachao to recognize the paper
companies of Mauritius thousand
of which hibernated in the tax
haven's chartered accounts' hip-pocket,É.. |
2. |
The abandonment/modification of
the traditional constitutional assumptions evolved through national
institutional structures to promote primarily national agenda. |
Azadi Bachao amply illustrate the assumptions evolved
under the neo-liberal paradigm. The Encyclopaedia Britannica notes: "In the middle years of the century (the
19th century) it had been widely held that colonies were burdens and that
materials and markets were most effectively acquired through trade." But after the emergence of this
global architecture, a ruthless regime of Market got established.The
corporations which emerged triumphant after World War II, succeded in
establishing their hegemonial impact through the Bretton Woods institution
culminating in the WTO. Their toughest problem was how to supersede the
national constitutions and laws, as they threatened their corporate regime with their constitutional mission
and agenda. It was decided to erect a system through the Treaties which can
validly derogate from them for pursuing the corporate objectives. The WTO
Treaty and the Agreements under its umbrella, and the Tax Treaties ( and many
otheres not needed to be catalogued) illustrate this strategy. Whilst the USA
and many other States did such things with various riders legislatively imposed.. The
Government of India executed such traties wholly under the opaque system
wholly by the Executive under the notion that its Treaty-making power was not
subject to constitutional restraints. Azadi Bachao erroneously holds that the Government's sovereign power to make treaties for
political ends under the
conviction that the Treaties prevail over the statute or law. |
3. |
Commitment to the neo-liberal
economic paradigm for promoting and establishing capitalism as a hegemonic
over-weaning system: thus emergence of new Market Leviathan to tame which the
national constitutions are yet to evolve mechanism of control and
accountability. |
Azadi Bachao has
the effect of promoting the
neo-liberal economic paradigm for promoting and establishing capitalism. Azadi
Bachao permits the creation of
'residents' out of airy
nothing so that taxes can be
evaded, dirty wealth can be layered through stratagem, so that the triumph of
capitalism creates situation when some are born to all delight but many to
eternal night. |
4. |
Norms
of private property and
individual liberty
As
perceived by 'the Invisible Hand' of the Market which
considers 'Equality' and'Social Justice' detrimental to socio-economic growth.:
hence the Objective of the Rule of Law is the preservation of private property and individual
liberty in the specific neo-liberal sense. |
A little reflection on what emerged from the decision of Azadi
Bachao would show how it goes against
'Equality' and'Social Justice' without which our Constitution gones with the wind. |
5. |
The Executive
To promote the neo-liberal Market Order there must be
almost wholesale delegation of the legislative power : hence Parliament
should pass open-ended legislation leaving law-making power
to the executive not subject to public scrutiny or accountability. Where
there no specific limitation imposed by a statute, the executive's perception
is itself binding law. The
executive is beyond constitutional limitations in promoting the new agenda.
To roll back the welfare state. In the constitutional
state conceived under the neo-liberal paradigm the welfare state deserves to be rolled back, and a limited government must operate for the
exclusive welfare of the Market Order. |
Azadi Bachao has
the effect of granting powers wide enough to override the law of the land and
its Constitution. As the tax treaties are wholly executive acts, the
executive becomes unaccountable
to Parliament, and the procedure suffers from 'democratic deficit'. . As in
other instances of the intrusion of domestic space through existing laws by
widening their province, through the existing law. The MAP is sought to be
justified under Section 90(1) when that was never under its contemplation (as
the Government promotes IMF-WTO agenda by invoking the Land Acquision Act of
the last century. This Mutual Agreement Procedure subverts the rule of law by
subverting the statutory judicial control and by allowing even adjudication
in certain situations to be shifted to foreign fora. And all this done
without the statutory foundation which was provided in the U.K. through
statutory amendment.
The judicial view that tax treaties can override the law is, if investigated, based only
on the self-serving circulars issued by the CBDT to establish strange
executive imperium to serve the
interests of those who can manipulate the governmental system for their
benefit. |
6. |
Legislature
As the electoral politics
has failed in creating a
democratic order promotive of the Market Order, the wings of the Legislature
must be clipped leaving the power and discretion to rule to the executive and
judiciary bidden to act to
promote the neo-liberal agenda. Parliament must allow the subjugation of the political realm to the
economic realm as per the architecture of the neo-liberal paradigm. |
In the realm of treaty-making our Parliament is said to
have no function. There was a time before the onset of the neo-liberal waves
when this 'democratic deficit' did not matter as the governmental acts at
international plane did not matter in the domestic realm. But through the
Treaty terms the domestic space of policy and sovereignty are now invaded. Azadi
Bachao failed to see how certain dicta to
that effect in Maganbhai and Berubari had lost their constitutional relevance, and are ex facie erroneous
Azadi Bachao .permits most unfortunate trespass by the Executive
on the legislative sphere, illustrating the growing irrelance of our
Parliament. Nothing illustrates it better than than the reasons for which the
CBDT Circular 789 of 200 was sustained in Azadi Bachao: viz. its approval of the conclusive presumptions as to owenership and residency
in the said Circular forgetting that presumptopns or conclusive presumptions
are only legislatively enacted. And MAP override limitations provisions which
can be done only legislatively.. |
7. |
The
Role of Judiciary
The
Judiciary to give a new pro market and corporation view of the Rule of Law
and the Doctrine of the Separation of Powers. The judiciary's policy making role must be in synergy with
the executive's. Judiciary's constitution role must undergo a functional
change. through the technique of MBO (management by objective).
To take steps roll back the welfare state thus
complementing the task of the executive. . |
Azadi Bachao has
the effect of patronizing the new despotism of the executive by approving for
judiciary a costitutional
role under which groundswell of neo-liberal ideas will
allow judges to roll back the
welfare state, and narrow the domain of the judicial control on the specious plea invoking the doctrine of "Juices
est. jus dicer, non dare" (now not approved in Standard Chartered Bank Case }. This led the Hon'ble Court to
severely criticize McDowell which reflected the ideas in Furniss v. Dawson [1984] 1 All ER 530, [1984] AC 474 and National Federation of
Self-Employed and Small Businesses Ltd which our Court had accepted before and approved later [as in S.P.
Gupta & Ors v President of
India & Ors (AIR 1982 SC 149] . The net effect of Azadi Bachao is a futile cri de Coeur to Parliament and the executive defeating Lord Denning's dictum that
'Fraud unravels everything'" and benedicting the neo-liberal stratagem by considering certain evils
'tolerable'. This approach led Azadi Bachao to
ridicule its own Constitution Bench decision, and to bank on a book by the
interested party illustrating a gruesome departure from judicial norms. This also led it wrongfully to assume that the
doctrine of the Lifting of the corporate veil belonged to the sphere of
domestic law. Our law and
Constititution were ignored, our value even under our Fundamental Duties were
ignored but copious borrowings of ideas were made from the OECD etc countries
commiting the fallacy which Sir
Francis Bacon, the Lord Chancellor of England 1618-21 ) called the fallacy of
non "recognition of similitudes". |
8. |
Even
Satan be the Guide
Market Forces are amoral, if it helps even Satan be its Guide as he was always a
better logician than God who could Paradise lost meekly whereas He had lost
it to the majestic Satan. In effect.
Means matters not
end. |
Azadi Bachao is gnawingly
unfortunate. If the doctrine of toleration of Evil "in the interest of long
term development", is allowed to have a grip over our thinking, even God
would leave us to groan under the
Slough of Despond. Hitler destroyed the Weimer Constitution justifying his
act as a necessary evil to wipe out the disgrace that the Peace Treaty of
Versailles. Mrs. Gandhi justified the ignominious Emergency pleading this as
a justification. |
9. |
Democracy
But our constitutional socialism cannot allow the neo-liberals to
promote GREED as socially accepted good. They believe,
as Milton Friedman said in Capitalism and Freedom, that freedom could only be brought about by a
return to market economy which would ensure economic freedom to men; that as
Friedman argued, that 'health, schooling, and racial discrimination could be
helped by a return to free market economics only' |
Azadi Bachao has
the effect of approving such strides away from all that we valued in course
of our Struggle for Independence, and Constitution. . |
10. |
Fundamental Rights and the Doctrine of Basic Structure
must be wrecked where to do so is good for the Market Order. |
Azadi Bachao has the effect of approving such strides. Azadi
Bachao approves the per incuriam ideas as to
Treaty-Making Power casually
stated in Maganbhai where none
bothered about the Fundamental Rights, the Basic Structure of our
Constitution, or the Preamble to the Constitution. |
11. |
The Holistic approach
To acquire a holistic control over matters cultural,
political, social and social to
charter ways following the loadstone of the Neo-liberal Paradigm. No idealism
is higher than the Market |
Azadi Bachao, in effect, reiterates what Roy Rohatgi said: 'Overall countries need to take, and do take, the
holistic view' Under the Rogue Financial system the lobbyists paint rainbow. It is not clear how the calculus of
revenue losses and non-tax benefits works when the tax authorities are
prohibited from examining operative facts, and when Azadi Bachao approves
this opaque system. |
