CONSTITUTIONAL ASPECTS

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CONSTITUTIONAL ASPECTS

• By K.S.Naveen Kumar, Advocate, Bangalore

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MODULE 1

• What is law
• Scholars views about law
• Significance of law
• Objective To understand the basic description
  of law and its significance

K.S.NAVEEN KUMAR, ADV.
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WHAT IS LAW?

• Law is nothing but a bundle of common sense.
• Technical sense
• A set of rules and procedures to be followed in
  general by the members of public or particular
  section of the society. Eg. Traffic Rules and
  criminal law, Advocates Act and CAs Act.

K.S.NAVEEN KUMAR, ADV.
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ABOUT LAW.

• Rules of conduct enforced by the State to
  maintain peace and order in the society
• The system of rights and obligations which the
  State enforces.
• Scholars views
• Austin Law is a rule of conduct imposed and
  enforced by the sovereign.

K.S.NAVEEN KUMAR, ADV.
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SCHOLAR S VIEW ABOUT LAW

• Salmond Law is the body of principles
  recognized and applied by the State in the
  administration of justice.

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SIGNIFICANCE OF LAW

• Why law
• Law is like oxygen in air, people would not
  realize its importance unless it is withdrawn.
• Man lives in a society Social animal. Does not
  live in isolation. Other individuals also
  co-exist. Rights and obligations to be defined to
  maintain peace, law and order.
• Every right has a corresponding obligation.
• Eg. Listening to music (nuisance noise
  pollution), Peaceful enjoyment of property
  (Trespass), Parking.

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SIGNIFICANCE OF LAW

• In life or business survival of the fittest.
  Without law it would be survival of the most
  ruthless.
• Law makes rights secure.
• Rule of man will prevail without law (eg. If
  discretion of tax collection is vested with an
  officer without any legal basis subjects will
  be exposed to arbitrary, capricious and whimsical
  exercise of power).

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MODULE 2

• Source of Law
• Tax - historical background
• Nature of tax
• Objective (a) To know from where law emerges.
• (b) To briefly understand history of taxation and
  its nature

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LAW SOURCES OF LAW

• Currently
• a. Legislation i.e. Acts of Parliament and State
  Legislatures.
• b. Rules made by Government authorities.
• c. Judgments i.e. case laws.
• d. Customs and usages.
• Olden times
• a. Scriptures.
• b. Customs and usages.
• c. Rulers / Kings mandate/ verdict.

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Historical perspective of Tax

• 2000 years ago Decree from Augustus Caesar that
  all the world should be taxed.
• Taxes in Greek, Roman and German Empire
• Basis of turnover or occupation
• Manu Smriti and Arthasastra refers to variety
  of tax measures

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Historical perspective

• Kautilya (Chanakya or Vishnu Gupta)
  Arthasastra.
• Major portion devoted to financial matters
  including financial administration.
• Arthasastra first authoritative text on public
  finance, administration and fiscal laws in this
  country.
• Bhaga, Bali, Kara, Vivita, Hiranya, Rajju, Chora
  Rajju

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Historical perspective

• Manu said
• - Taxes should be related to the
  income and expenditure of the subject.
• - Either complete absence of taxes or
  Exorbitant taxation should be avoided.
• - King should arrange the collection of taxes
  in such a manner that the subjects do not feel
  the pinch of paying taxes.

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Historical perspective

• Mughal rule taxes prevailed
• Britishers levied various taxes
• It was only for the good of his subjects that he
  collected taxes from them, just as the Sun draws
  moisture from the Earth to give it back a
  thousand fold Kalidas
• The hardest thing in the world to understand is
  the income-tax Albert Einstein

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What is tax?

• Essential characteristics of a tax
• Not a voluntary payment or donation
• Enforced contribution exacted pursuant to
  legislative authority, in exercise of taxing
  power.
• Imposed, levied and collected for the purpose of
  raising revenue
• Used for public or governmental purposes and not
  for payment for some special privilege granted or
  service rendered

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Module 3

• Constitution
• Context and background
• Preamble
• Fundamental duties
• Fundamental rights
• Important Articles w.r.t. taxation
• Lists legislative fields w.r.t. taxation
• Objective To examine few basic aspects of
  constitution, which are relevant to indirect
  taxes

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FUNDAMENTAL DUTIES Article 51A It shall be the duty of every citizens of India -To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem To cherish and follow the noble ideals which inspired our national struggle for freedom

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To uphold and protect the sovereignty, unity and
integrity of India To defend the country and
render national service when called upon to do
so
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• To promote harmony and the spirit of common
  brotherhood amongst all the people of India
  transcending religious, linguistic and regional
  or sectional diversities to renounce practices
  derogatory to the dignity of women
• To value and preserve the rich heritage of our
  composite culture
• To protect and improve the natural environment
  including forests, lakes, rivers and wild life,
  and to have compassion for living creatures

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• To develop the scientific temper, humanism and
  the spirit of inquiry and reform
• To safeguard public property and to abjure
  violence
• To strive towards excellence in all spheres of
  individual and collective activity so that the
  nation constantly rises to higher levels of
  endeavour and achievement.
• Who is a parent or guardian to provide
  opportunities for education to his child or, as
  the case may be, ward between the age of 6 and 14
  years.

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Fundamental Rights

• Article 13 Laws inconsistent with or in
  derogation of the fundamental rights void
• Right to Equality
• Article 14 Equality before law
• Article 15 Prohibition of discrimination on
  grounds of religion, race, caste, sex or place of
  birth

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Fundamental Rights.

• Art.16 Equality of opportunity in matters of
  public employment
• Art.17 - Abolition of untouchability
• Art.18 Abolition of Titles

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Fundamental Rights .

• RIGHT TO FREEDOM
• Art.19 Protection of certain rights regarding
  freedom of speech and expression, assemble
  peaceably and without arms, form associations or
  unions, movement throughout territory of India,
  practise profession and carry on occupation,
  trade or business. etc.

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Fundamental Rights

• Art.20 Protection in respect of conviction for
  offences
• No person shall be convicted of any offence
  except for violation of the law in force at time
  of commission of the act charged as an offence,
  nor be subjected to a penalty greater than that
  which might have been inflicted under the law in
  force at the time of the commission of the
  offence Art.20(1)

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Fundamental Rights

• Art.20(2) No person shall be prosecuted and
  punished for the same offence more than once.
• Art.20(3) No person accused of any offence
  shall be compelled to be a witness against
  himself.

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Fundamental Rights

• Art.21 Protection of life and personal liberty
  No person shall be deprived of his life or
  personal liberty except according to procedure
  established by law.

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Fundamental Rights

• Art.21A Right to Education
• Art.22 Protection against arrest and detention
  in certain cases

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Fundamental Rights

• RIGHT AGAINST EXPLOITATION
• Art.23 Prohibition of Traffic in human beings
  and forced labour
• Art.24 Prohibition of employment of children in
  factories etc.

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Fundamental Rights.

• RIGHT TO FREEDOM OF RELIGION
• Art.25 Freedom of conscience and free
  profession, practice and propagation of religion
• Art.26 Freedom to manage religious affairs

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Freedom rights

• Art.27 Freedom as to payment of taxes for
  promotion of any particular religion
• Art.28 Freedom as to attendance at religious
  instruction or religious worship in certain
  educational institutions.

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Fundamental Rights

• CULTURAL AND EDUCATIONAL RIGHTS
• Art.29 Protection of interests of minorities
• Art.30 Right of minorities to establish and
  administer educational institutions

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Fundamental Rights

• RIGHT TO CONSTITUTIONAL REMEDIES
• Art.32 Remedies for enforcement of rights
  conferred by this part

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India discovered in new ST law!!

• India section 65B(27) - (27) "India" means,-
• (a) the territory of the Union as referred to in
  clauses (2) and (3) of article 1 of the
  Constitution
• (b) its territorial waters, continental shelf,
  exclusive economic zone or any other maritime
  zone as defined in the Territorial Waters,
  Continental Shelf, Exclusive Economic Zone and
  other Maritime Zones Act, 1976 (80 of 1976.)

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India.

• (c) the seabed and the subsoil underlying the
  territorial waters
• (d) the air space above its territory and
  territorial waters and
• (e) the installations, structures and vessels
  located in the continental shelf of India and the
  exclusive economic zone of India, for the
  purposes of prospecting or extraction or
  production of mineral oil and natural gas and
  supply thereof

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Distribution of Legislative Powers

• Art.245 Extent of laws made by Parliament and
  by the Legislatures of States
• Art.246 Subject matter of laws made by
  Parliament and by the Legislature of States
• Art.248 Residuary powers of legislation

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Constitution

• Art.265 No tax shall be levied or collected
  except by authority of law.
• Art.285 Exemption of property of the Union from
  State taxation
• Art.289 Exemption of property and income of a
  State from Union taxation
• Art.300A Persons not to be deprived of property
  save by authority of law

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Three organs of the State

• Parliament/Legislature
• Judiciary
• Executive

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• Art.226/227 Writ Petition - Types
• Types of writ mandamus, certiorari,
  prohibition, quo-warranto, habeas corpus

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Art.366 - Definitions

• Art.366(28) taxation includes the imposition of
  any tax or impost, whether general or local or
  special, and tax shall be construed
  accordingly.
• Art.366(29A) deeming fiction of sale or
  purchase of goods 46th amendment - 1982

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Constitution of India

• Union List few entries
• 82 Taxes income other than agricultural income
• 83 Duties of customs including export duties
• 84 Duties of excise on tobacco and other goods
  manufactured or produced in India except

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Union list

• (a) alcoholic liquors for human consumption
• (b) opium, Indian hemp and other drugs and
  narcotics,
• but including medicinal and toilet preparations
  containing alcohol or any substance including in
  sub-paragraph (b) of this entry

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Union list ..

• 85 Corporation Tax
• 92A Taxes on sale or purchase of goods other
  than newspapers, where such sale or purchase
  takes place in the course of interstate trade or
  commerce
• 92B Taxes on consignment of goods where such
  consignment takes place during interstate trade
  or commerce.

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Union list .

• 92C Tax on services (not yet effective).
• 97 any other matter not included in List II,
  III and any tax not mentioned in list II or III
  (residual powers)

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State List few entries

• 46 Taxes on agricultural income
• 51 Excise duty on alcoholic liquors, opium and
  narcotics
• 52 Tax on entry of goods into a local area for
  consumption, use or sale therein (usually called
  octroi)
• 54 Tax on sale or purchase of goods other than
  newspapers except tax on interstate sale or
  purchase

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Concurrent list few entries

• 35 Mechanically propelled vehicles including
  the principles on which taxes on such vehicles
  are to be levied.
• 44 Stamp duties other than duties or fees
  collected by means of judicial stamps, but not
  including rates of stamp duty

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Importance of constitution events/persons
(N.A.Palkhivala Justice M.N.Venkatachaliah)
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About Constitution

• If the Constitution is to be taken seriously,
  the interpretation and fulfillment of these
  general objects of policy will raise great
  difficulties for legislatures, and these
  difficulties will bring the Constitution, the
  Courts and the Legislature into conflict and
  disrepute. If these declarations are, however, to
  be treated as words they will bring discredit
  upon the Constitution also Prof.Wheare

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