Shivakantjha.org - 'In a Nutshell' - 4: No estoppels against the Constitution: I cannot believe that our P.M. can ever be guilty of constitutional solecism?

'In a Nutshell' - 4

In the Vodafone Context

No estoppels against the Constitution: I cannot believe that our P.M. can ever be guilty of constitutional solecism?

By Shiva Kant Jha

April 2, 2012

The Times of India of 30 March 2012 reports under the suggestive heading: “PM assured no retrospective taxation: wrote to the ex-UK PM Brown in 2010 that Voda will have protection of law”. I do not know whether what has been reported is right or wrong. I cannot believe that our P.M., proficient in our Constitution, would have said so; and the British P.M. knowing the British constitutional law, esp. the Parliament Act of 1911 would have solicited such a view. That Voda would get the protection of law is to say the obvious as none in our country would ever deny this whether one is resident or non-resident, a citizen or a foreigner.

Tax law is not under the executive domain, hence the Prime Minister, powerful though he is, cannot say anything creating estoppels against the law making under Article 265 of the Constitution. The conjoint effect of Articles 109, 110 and 265 of the Constitution of India is that the Executive can do only what it is permitted to do (and in the manner it is permitted to do) by Parliament through an enactment. These Articles of our Constitution draw on the provisions of the United Kingdom’s Parliament Act 1911, and the Bill of Rights.

This reminds me of what I had experienced when I was just a junior Income-tax Officer sometimes in 1960s. I portrayed my experience in my Autobiographical Memoir, On the Loom of Time (at p. 230 and 228). I think it worthwhile to quote two extracts from the book to help my readers to see the point, and form their views: to quote---

‘Those days were different. Once Mr. T.P. Singh, ICS, visited the Central Revenue Building at Patna, and addressed us. He was then the Revenue Secretary. A point cropped up in the meeting: it pertained to a non-recoverable tax demand that deserved to be written off. He was unhappy that that the work was pending since long. In his annoyance he said: ‘Bring the file, I would order that the demand be waived”. Everyone in the Conference was silent, but I sowed my wild oats. I had gained experience of not more than two years. I said, “ Sir, You are not competent to that. Not even the Cabinet can forgo a pie of tax raised in terms of the law. Taxes are raised under the Parliamentary commission. We can only transfer the non-recoverable demand to the Register of dead demand to be periodically reviewed to explore the possibility if that could be recovered.” The Commissioner seemed to wear an angry face looking at me with his stern eyes. Mr. Singh came out after a pause, “Yes, the officer is right. I stand corrected”’.

‘The Executive Government exercises powers over taxation in accordance with the provisions of our Constitution. In our country the Executive is a creature of our Constitution with prescribed duties and conferred powers. The executive power is exercised in terms of Articles 53 and 75 of the Constitution. The Article 265 states, with wonderful precision, the norm of Parliamentary control on ‘taxation’, which had been acquired by Parliament in England after the Glorious Revolution 1668. The Executive had, thus, lost all powers on ‘taxation’; and it could exercise these only in conformity with the law. Our Constitution’s provisions are the same as under the British constitution.’ (p. 228)