All About 101st Constitutional Amendment

It has been noted by various eminent jurists like Dicey and Austin that for a society to survive, it has to constantly evolve itself with the changing times and make room for new generation to carry it forward in its own unique ways. This aspect of law making has been correctly elaborated upon by H.R. Khanna. J in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], where he inter alia states that the Constitution of India is also a social document which is dynamic in nature and contains room for experiment, without changing its basic structure i.e. India is a soveirgn, democratic, republic.

To keep up with the times, the Constitution (122nd Amendment) Bill of 2014 received presidential assent on 8th September, 2016 and became The Constitution (101st Amendment) Act of 2016. The said amendment will pave way for Goods and Service Tax, a concept which can be easily termed as paradigm shift in the arena of indirect taxation.

THE NEED:

One of the most distinguishing features of the proposed GST Model is its dual structure i.e. it will be levied by both Centre and the States. The Dual GST Model is aimed to be implemented through multiple statutes of different states, provided that the basic features of law such as chargeablilty, definition of taxable event, basis of classification etc. would remain the same. The Central GST and State GST would be paid to the accounts of Centre and States respectively.

Article 246 of Constitution talks about subject matter of laws made by Parliament and by the Legislature of the States. It confers exclusive power to Parliament and the States to make laws with respect to matters enumerated in List I (Union List) and List II (State List) of Schedule VII in the Constitution of India, respectively. In addition to this, the article also states that both the Parliament and the States have power to make laws with respect to matters contained in List III (Concurrent List) of Schedule VII of the Constitution.

In accordance with above, following entries in List I talk about taxation aspects of the Centre:

92. Taxes on the sale or purchase of newspapers and on advertisements published therein.
92A. Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce.
92B. Taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.
92C. Taxes on services
Similarly, following entries in List II talk about taxation policy in States:

52. Taxes on the entry of goods into a local area for consumption, use or sale therein.
53. Taxes on the consumption or sale of electricity.
54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 92-A of List I.
55. Taxes on advertisements other than advertisements published in the newspapers and advertisements broadcast by radio or television.

As can be analysed from above, Centre does not have power to legislate on taxation of sale of goods except in case of inter-state sale whereas the States do not have the power to legislate on taxation of services as well as on purchase of goods for sale. The Constitution (101st Amendment) Act of 2016 therefore was passed to confer powers to both Centre and the States to make laws in respect of taxation of sale of goods and of services as well as of purchase of raw materials, respectively, by inclusion of article 246A in the Constitution.

246A.(1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.
(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.
Explanation.—The provisions of this article, shall, in respect of goods and services tax referred to in clause (5) of article 279A, take effect from the date recommended by the Goods and Services Tax Council.

HOW WAS IT DONE:

Constitution of India is a code in itself and provides for its amendment as well. Article 246A was included in the Constitution by way of amendment procedure given in Article 368 of the Constitution:

368. Power of Parliament to amend the Constitution and procedure therefore:
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
(3) Nothing in Article 13 shall apply to any amendment made under this article
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS.

AMENDMENTS:

Apart from inclusion of Articles 246A and 269A, The Constitution (101st Amendment) Act of 2016 also provided for changes in Articles 248 (Residuary powers of Legislation), 249 (Power of Parliament to legislate with respect to a matter in the State List in the national interest), 268 (Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation), 268A (Service tax levied by Union and collected by the Union and the States), 269 (Taxes levied and collected by the Union but assigned to the States), 270 (Taxes levied and distributed between the Union and the States), 271 (Surcharge on certain duties and taxes for purposes of the Union), 288 (Exemption from taxation by States in respect of water or electricity in certain cases), 366 (Definitions), 368 (Power of Parliament to amend the Constitution and procedure therefor) as well as in Entry 84, List I and Entry 54, List II of Schedule VII. The Act also provides for omission of Entry 92, 92C, List I as well as Entry 52, List II of Schedule VII.

RATIFICATION BY THE STATES:

Since the Act provided for changes in Article 368 as well as of List I & II of Schedule VII, the amendment as done in accordance with Article 368(2), and required ratification of the Bill by the Legislature of not less than one half of the States by way of resolution before it was presented to the President for assent. The Act was ratified by the states of Assam, Bihar, Jharkhand, Himachal Pradesh, Chhattisgarh, Gujarat, Madhya Pradesh, NCT of Delhi, Nagaland, Maharashtra, Haryana, Telangana, Sikkim, Mizoram, Goa, Odisha, Puducherry, Rajasthan, Andhra Pradesh, Arunachal Pradesh, Meghalaya, Punjab and Tripura.

It is to be noted that the said act will come into force only by notification of the Central Government.

SOURCES:
Constitution of India, 1950
www.lawmin.nic.in

www.indiankanoon.org

National Workshop on Eradication of Bonded Labour: An Experience

An initiative of National Campaign Committee on Eradication of Bonded Labour in collaboration with Human Rights Law Network and Action Aid Association, the National Workshop on Eradication of Bonded Labour was organised at the Indian Social Institute, New Delhi from 21st-22nd January, 2017 with participation of various organisations, researchers, activists and advocates from as many as 12 states such as Maharashtra, Uttar Pradesh, Bihar, Chhattisgarh, Odisha, Madhya Pradesh, Tamil Nadu, Kerala, Karnataka, Jammu and Kashmir and Rajasthan. The workshop aimed to find difficulties in working for protection of rights of bonded labourers, to facilitate the release of bonded labourers in the unorganised sector, and to find a way forward for these organisations as regards the recourses available for eradication of bonded labour in various sectors.

The aim was to look at the fight against bonded labour not only from a legal but also from a practical perspective. The Guest of Honour for the workshop, Shri Dialu Nial was a rescued bonded labourer himself and the horrifying incident shared by him and his advocate only makes us realise that even after 70 years of independence, the struggle for freedom is still on and worse, there is still a long way to go for every citizen of India to achieve complete independence. Dialu’s hands were chopped off on refusal to migrate for work. What makes the particular incidence inspiring and so different from other such incidences is that justice was served within 3 years of filing the case, one of the very few instances in Indian Legal History. The accused were awarded with imprisonment for life and because the case was of such an exceptional nature so as to invoke the sentiments of all of us, the Presiding Officer personally ensured speedy justice in the case. This achievement was possible only due to the undying spirit and never-back-down attitude of all the advocates and activists involved, but more than that, due to refusal of Dialu Nial to bow down to the perpetrators.

Analysing the position of existence of bonded labourers in the modern society, it was unfortunate to realise that there are more than 50 crore people in India are still living in conditions of what can be easily termed as modern slavery. It’s the bad fortune of the society we live in, that Article 23 of the Constitution of India, which expressly talks about prohibition of trafficking in human beings and bonded labour, is a fundamental right which exists only on paper and has failed to achieve its intended objective i.e. prevention of exploitation of the weak and vulnerable in its true spirit and practice.

One of the major problems faced by activists and advocates in eradication of bonded labour practices is of identification of the workers as bonded labourers. The authorities refuse to recognise the workers as bonded labourers citing the narrower interpretation of provisions of Bonded Labour Abolition Act, 1976, failing to realise that the objective of the Act as intended by the Legislature was not to just legislate on the issue, but to ensure that modern slavery does not in any form exists in our country. The struggle of any activist or a labourer himself is to convince the authorities that they are indeed bonded labourers living in pathetic conditions where even animals wouldn’t want to live.

Once the identification of these workers is done, another challenge is to encourage these workers to revolt against the touts and the owners so that they can obtain the freedom they rightfully deserve, and to do the task as discreetly as possible. Rescue of these workers is a task in itself, and the major challenge is to prevent any leakage of information to the touts and owners. Such leak of information results in further exploitation of these workers.

Given the state of Indian Judiciary, prosecution is as difficult as identification and rescue of the workers and drains out all the energy of not only the worker, but also activists and lawyers fighting for his rights. Interestingly however, there were two conflicting views given by activists relating to how to handle the prosecution of culprits, specifically with regards to who should be the complainant in the said case. While one group of activists stated that the NGO should become the complainant so as to remain involved at every stage of struggle for freedom of these workers and to avoid further exploitation of already vulnerable workers, the other group of activists was of the view that complaint should be made by the exploited worker itself, because ultimately the objective is to empower the worker to fight for his rights not just in respect of bonded labour, but also in respect of any kind of exploitation that he may face in the future. One of the activists also highlighted the fact that there are many instances where these workers even after succeeding in their struggle for freedom and successfully granted Release Certificate still go back to same touts and owners to work in same dingy conditions, suggesting thereby that what is required is not just eradication of bonded labour system and other forms of modern slavery, but also empowerment of most vulnerable group of the society to ensure overall development of the country and the workers themselves.

Many activists and advocates present in the workshop elaborated on the theme of prosecution of the culprits especially in cases of bonded labourers. Even though Bonded Labour Act is a code in itself, most advocates stressed on application of Indian Penal Code (sec 370) and SC/ST Prevention of Atrocities Act (sec 3) as well. It is rather an undisputed fact that the workers almost always belong to SC/ST category and when the perpetrator is a person not belonging to these categories, it becomes almost always essential to include sec 3 of the SC/ST PoA Act in the chargesheet to ensure justice. The recently amended sec 3 of the Act, which deals with atrocities includes, inter alia, employment for any person belonging to SC/ST category for purpose of bonded labour, and the activists find it imperative to make proper use of the provision to ensure complete justice to these workers. Public Interest Litigation is another tool provided by the Judiciary to the society. While a PIL does not always guarantee implementation of rights, it is indeed one of the few measures to help eradicate exploitation of labourers.

Another major point of consideration was to find a way to fight against the Central Sector Scheme, an initiative by the Central Government aimed to rehabilitate bonded labourers. The scheme has one major discrepancy, that it links rehabilitation of workers with not only prosecution of the accused, but also their conviction, meaning thereby that till the time accused are not convicted of any offence, the rescued bonded labourers are not allowed any rehabilitation. The state of Indian Judiciary is such that the said scheme, even though aims to ensure complete justice both to the perpetrators and bonded labourers is in fact detrimental to the workers and defeats the purpose of safeguards provided not only various statutes, but also by the Constitution. The protest against the scheme is still ongoing, and although activists are trying to find a way, practically of the situation remains the same, and that is NHRC is not fastidious enough to cater to urgency of the situation.

The workshop in its totality aimed to sensitise the society towards labourers and to make every person in the country realise the fact that overall development of the country indeed lies with development of the weak and downtrodden. Article 21 talks about the right to life but as it has already been said time and again, right to life does not mean mere existence of a mortal, but it means a right to do or not do everything or anything that makes life worth living. Though there are activists and advocates working selflessly in the area, the need of the hour is to ultimately empower these vulnerable sects of the society so that they can fight for their own rights and contribute in the overall development of the country.

Indian Constitution: The Making and its Features

One the most distinguishing features of the Indian Constitution has to be the manner in which it has been drafted and adopted. While Constitution of other countries was imposed on them by exercise of power, the Indian Constitution was made by people themselves, though by representatives in the Constituent Assembly.

HISTORICAL BACKGROUND:

1. Government of India Act, 1858: Making of the modern Constitution at the earliest began from 1858, when India first came under direct rule of the British Crown. The Govt. of India Act, 1858 marks as a starting point towards making of the Indian Constitution because it was dominated by principle of absolute imperial control, without any popular participation in the administration of the country. The powers of the Crown were to be exercised absolutely by Secretary State of India, assisted by an Executive Council comprising 15 members, which was composed exclusively of people from England, thereby resulting in no concern for public opinion by the State.

2. Indian Councils Act, 1861: The Act introduced only a minute element of popular participation by providing that the Council would include certain non-officio members as well which would then function as a Legislative Council. The inclusion of non-officio members in the Council however was not considered representative, as their functions was restricted only to consideration of legislative proposals made before it.

3. Indian Councils Act, 1892: The Act comprised of 2 major improvements from the previous act:

• Non-officio members were to be now elected by Chamber of Commerce and Local Bodies for State and Province respectively.
• The functions performed by the Council was now widened, and had the power to discuss the Budget as well as to address the questions to Executive.

4. Indian Councils Act, 1909 (Morley-Minto Reforms): Morley Minto reforms is considered as the first attempt at introducing a representative and popular element in the governance in the truest sense. The size of the Legislative Council was enlarged by increasing the number of non-officio members, making the official majority in the Council disappear. The Act also introduced an element of election by announcing separate electorate for Muslims.

5. Government of India Act, 1919: The Act is considered as a landmark in the constitutional development of India, which introduced substantive changes in the existing system of governance. The major features of the Act were:

• Dyarchy (dual government) in Provinces
• Relaxation of Central control over Provinces
• Increase in representative nature of Indian Government.

The Act of 1919 failed to fulfill the aspirations of the nation as the Government structure remained by and large Unitary, with Governor-General being the one through which the British Parliament discharged their duties.

6. Government of India Act, 1935: The Indian Constitution is, to an extent, based on the said Act, whose major features included:

• a. Separate electorate not only for Muslims, but also for Sikhs, Indian Christians and Anglo-Indians.
• Federal System of Governance
• Dyarchy at the Centre
• Bi-cameral Legislature
• Distribution of power.

7. Indian Independence Act, 1947: The said Act provided an interim Constitution to both India and then newly-formed Pakistan, until the two dominions established a Constituent Assembly and draft its own Constitution. The Act abolished the sovereignty and responsibility of British Parliament over India and the Governor General were now merely the Constitutional heads for the Government.

8. The Constituent Assembly began working on the making of the Indian Constitution on 9th December, 1946 and it received the signature of the President on 26th November, 1949. While the provisions relating to citizenship, elections, provisional Parliament and transitional provisions were given immediate effect i.e. from 26th November, the rest of the Constitution came into force on 26th January, 1950.

THE PREAMBLE:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

FEATURES OF THE CONSTITUTION:

Sovereign: means the independent authority of the State, and that it is not subject to the control of any other State or external power.

Republic: A government of the people and for the people, all source of authority as bestowed by the Constitution is the people of India.

Socialist: The principle means of production are under social ownership leading to progressive speeding up of production and equitable distribution of national wealth.

Secular: The State protects all religions equally and does not itself uphold any religion as the State religion. The question of secularism is not one of sentiments, but of law.

Democratic: The Constitution envisages democratic not only political, but also social meaning not only a democratic form of government but also a democratic society, infused with the spirit of justice, liberty, equality and fraternity.

• Other important features, inter alia, include:

1. It is a bag of borrowings: The Constitution is a curation of best features of Constitutions all around the world which is then modified to suit the conditions prevalent in India.

2. Partly rigid and partly flexible: As aptly put by H.R. Khanna, J. in the landmark judgement of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], the Constitution is dynamic in nature and therefore contains room for experiment, however the basic structure of the Constitution cannot be altered, that India is a Sovereign, Democratic, Republic.

3. Quasi-federal form of Government: Federalism essentially means two or more governments exercising concurrent jurisdiction over a territory, where none of the government is subordinate to the other. As laid down in the case of S.R. Bommai v. Union of India [(1994) 2 SCR 644], a state has a federal status but state qua the Union is quasi-federal and that India practises both unitary and federal principle of governance, depending on time and circumstances.

4. Universal Adult Franchise: One person one vote, one vote one value.

5. Cooperative Federalism: the state and centre work in harmony, with the spirit of togetherness and sharing the same goal: of all round development of the nation.

6. It is the longest constitution, comprising of 448 articles in 25 parts, 12 schedules, 5 appendices and 101 amendments.

7. Supremacy of Constitution: The Indian Constitution is supreme in the land and nothing can override the Constitution. The Constitution also provides for redressal mechanism in case of breakdown in any of the state or Union.

SOURCES:
Introduction to the Constitution of India by D.D. Basu;
Case Material on Constitutional Law – I, Faculty of Law, University of Delhi.