Sunday, March 06, 2011


By K P C RAO.,
Practising Company Secretary

 The word caveat has been derived from Latin which means “beware”. “A Caveat is an entry made in the books of the offices of a register or court to prevent a certain step being taken without previous notice to the person entering the caveat”.[1] In other words, a caveat is a caution or warning given by a party to the court not to take any action or grant any relief to the applicant without notice being given to the party lodging the caveat. It is very common in testamentary proceedings. It is a precautionary measure taken against the grant of probate or letters of administration, as the case may be, by the person lodging the caveat.  Section 148-A of the code of civil procedure  provides for lodging of a caveat.

(1)        Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

(2)        Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be, made, under sub-section (1).

(3)        Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.

(4)        Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5)        Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.


The underlying object of a caveat is twofold:

(i)                to safeguard the interest of a person against an order that may be passed on an application filed by a party in a suit or proceeding instituted or about to be instituted.  Such a person lodging a caveat may not be a necessary party to such an application, but he may be affected by an order that may be passed on such application. Thus Section 148-A affords an opportunity to such party of being heard before an ex parte order is made; and

(ii)             to avoid multiplicity of proceedings.

In the absence of such a provision, a person who is not a party to such an application and is adversely affected by the order has to take appropriate legal proceedings to get rid of such order.  Such a provision is found in the Supreme Court Rules.  The Law Commission, therefore, recommended insertion of such a provision in the Code of Civil Procedure also.  Accordingly, Section 148-A has been inserted by the Amendment Act of 1976.  

A caveat can be lodged in a suit or proceeding. In Ramachandra v State of UP[2], the expression “Civil Proceedings” in Section 141 of the Code includes all proceedings which are not original proceedings.

A caveat may be filed by any person who is going to be affected by an interim order likely to be passed on an application which is expected to be made in a suit or proceeding instituted or about to be instituted in a court[3]. Generally, a caveat can be filed after the judgment is pronounced.  In exceptional cases, however, a caveat may be filed even before the pronouncement of the judgment.[4] 


 No form is prescribed for the caveat. The caveator may file a caveat in the form of an application or a petition before the court submitting the cause of action giving the name and description of the opponent.


A caveat protects the interests of caveator.  The court must give a notice to the caveator or to his advocates. If the opponent  party files proceedings/application for the interim order, the court shall not give any ex parte interim order to the opponent party without hearing the caveator.


The intention of the legislature in enacting the provision of caveat is to enable the caveator to be heard before any orders are passed and no orders are passed by the court ex parte.  It is, therefore, clear that once a caveat is filed, it is a condition precedent for passing an interim order to serve a notice of the application on the caveator who is going to be affected by the interim order.  Unless that condition precedent is satisfied, it is not permissible for the court to pass an interim order affecting the caveator, as otherwise it will defeat the very object of Section 148-A.[5]  


The caveat will remain in force for 90 days from the date of filing and can be extended for a similar period by making an application / a petition referred to in sub-section (1) of sec 148-A before the expiry of 90 days.  

    [Published in Corporate Secretary of ICSI, August, 2010]

[1]  The Dictionary of English Law
[2]  AIR 1996 SC 1888:1966 Supp SCR 393
[3]  Nirmal Chandra v Girindra Narayan, AIR 1978 Cal 492(494): 82 Cal WN 1026
[4]  Pashupatinath v Registrar, Coop socities, AIR 1986 Cal 74
[5]  Siddalingappa v. veeranna AIR 1981 Kant 242 (243); Seethaiah v. Govt. of AP., AIR 1983 AP 443



Practising Company Secretary


The Separation of Powers, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the un-codified Constitution of the Roman Republic. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches . The normal division of branches is into an executive, a legislature, and a judiciary.
Different Models
Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. In Italy the powers are completely separated, even if Council of Ministers needs the vote of confidence from both chambers of Parliament, that's however formed by a wide number of members. A number of Latin American countries have electoral branches of government.

Countries with little separation of power include New Zealand and Canada. Canada makes limited use of separation of powers in practice, although in theory it distinguishes between branches of government.

Complete separation-of-powers systems are almost always presidential, although theoretically this need not be the case. There are a few historical exceptions, such as the  ‘Directoire’  system of revolutionary France. Switzerland offers an example of non-Presidential separation of powers today: It is run by a seven-member executive branch, the Federal Council. However, some might argue that Switzerland does not have a strong separation of powers system, as the Federal Council is appointed by parliament (but not dependent on parliament), and the judiciary has no power of review.

Theory of Classification of powers

The theory of separation of powers signifies three formulations of structural classification of governmental powers:

(i)       The same person should not form part of more than one of the three organs of the government. For example, ministers should not sit in Parliament.
(ii)    One organ of the government should not interfere with any other organ of the government.
(iii)  One organ of the government should not exercise the functions assigned to any other organ.

In the Indian Context

In a welfare State, the State performs important functions as a Provider, Entrepreneur and Economic Controller, and the objective of the rule of law should be to see that these multifarious and diverse encounters are fair, just and free from arbitrariness. Therefore, it is important to structure and restrict the power of the executive government so as to prevent its arbitrary application or exercise. The rule of law which runs like a golden thread, through every provision of the Constitution and indisputably constitutes one of its basic features requires that every organ of the State must act within the powers conferred upon it by the Constitution and the law.

In India, the doctrine of separation of powers has not been accorded a constitutional status. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody nay formalistic and dogmatic division of powers. The Supreme Court in Ram Jawaya Kapur v. State of Punjab[1], held.

Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the State of functions that essentially belong to another.”

In Indira Nehru Gandhi v. Raj Narain[2], Ray C.J. observed that in the Indian Constitution there is separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. However, the court held that though the constituent power is independent of the doctrine of separation of powers to implant the theory of basic structure as developed in the case of Kesavananda Bharati v. State of Kerala[3] on the ordinary legislative powers will be an encroachment on the theory of separation of powers. Nevertheless, Beg, J. added that separation of powers is a part of the basic structure of the Constitution. None of the three separate organs of the Republic can take over the functions assigned to the other. This scheme of the Constitution cannot be changed even by resorting to Article 368 of the Constitution.


In India, not only is there a ‘functional overlapping’ but there is ‘personnel overlapping’ also. The Supreme Court has the power to declare void the laws passed by the legislature and the actions taken by the executive if they violate any provision of the Constitution or the law passed by the legislature in case of executive actions. Even the power to amend the constitution by Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes the basic structure of the Constitution[4]. The President of India in whom the executive authority of India is vested exercises law-making power in the shape of ordinance-making power and also the judicial powers under Article 103(1) and Article 217(3), to mention only a few. The council of Ministers is selected from the legislature and is responsible to the legislature. The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its privilege, impeachment of the president and the removal of the judges. The executive may further affect the functioning of the judiciary by making appointments to the office of chief Justice and other judge. One can go on listing such examples yet the list would not be exhaustive.  
Check and Balance

The separation of powers is a doctrine which provides a separate authority, which makes it possible for the authorities to check each other’s checks and balances. The Supreme Court in Indira Nehru Gandhi v. Raj Narain, it held that adjudication of a specific dispute is a judicial function which Parliament, even acting under a constitutional amending power, cannot exercise.

The Constitution has invested the constitutional courts with the power to invalidated laws made by parliament and State Legislature transgressing constitutional limitations. Where an Act made by the legislature is invalidated by the courts on the ground of legislative incompetence, the legislature cannot enact a law declaring that the judgment of the court shall not operate; it cannot overrule or annual the decision of the court. This is what is meant by “check and balance” inherent in a system of government incorporating separation of powers[5].

If the doctrine of separation of powers in its classical sense, which is now considered as a high school textbook interpretation of this doctrine, cannot be applied to any modern government, this does not mean that the doctrine has no relevance in the world of today. The logic behind this doctrine is still valid. Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs of the State is the soul of the doctrine of separation of powers. Hence the doctrine can be better appreciated as a ‘doctrine of check and balance’ and in this sense administrative process is not an antithesis of the ‘doctrine of separation of powers’.

In Indira Nehru Gandhi v. Raj Narain[6], Chandrachud, J. (as he then was) also observed that the “…political usefulness of the ‘doctrine of separation of powers’ is now widely recognised…” No Constitution can survive without a conscious adherence to its fine checks and balances. “Just as courts ought not to enter into problems entwined in the ‘political thicket’, Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which ‘has in it the precept, innate in the prudence of self-preservation…that discretion is the better part of valour’.


Therefore, the “Doctrine of separation of Powers” in today’s context of Liberalisation, privatisation and globalisation cannot be interpreted to mean either ‘separation of powers’ or ‘check and balance’ or ‘principle of restraint’ but community of powers exercised in the spirit of cooperation by various organs of the State in the best interest of the people.


              [Published in Corporate Secretary, September, 2010] 

[1] Ram Jawaya Kapur v. State of Punjab;1955 SC 549;
[2] Indira Nehru Gandhi v. Raj Narain; 1975 Supp SCC 1
[3] Kesavananda Bharati v. State of Kerala; (1973) 4 SCC 225
[4]  Kesavananda Bharathi v. State of Kerala, (1973) 4 SCC 225: AIR 1973 sc 1461
[5]  P . Kannadasan v. State of T N, (1996) 5 SCC 670.
[6] Indira Nehru Gandhi v. Raj Narain; (1975) Supp SCC 1, 260


By K P C Rao. ,
Taxing Power

Article 265 of the constitution mandates that no tax shall be levied or collected except by the authority of law. It provides that not only levy but also the collection of a tax must be under the authority of some law. The tax proposed to be levied must be within the legislative competence of the Legislature imposing the tax. The validity of the tax is to be determined with reference to the competence of the Legislature at the time when the taxing law was enacted. The law must be validly enacted; i.e., by the proper body which has the legislative authority and in the manner required to give its Acts, the force of law. The law must not be a colourable use of or a fraud upon the legislative power to tax. The tax must not violate the conditions laid down in the constitution and must not also contravene the specific provisions of the Constitution. The tax in question must be authorised by such valid law. Taxation, in order to be valid, must not only be authorised by a statute but, must also be levied or collected in strict conformity with the statute, which authorises it. No tax can be imposed by any bye-law rule or regulation unless the ‘statute’ under which the subordinate legislation is made specifically authorises the imposition and the authorisation must be express not implied. The procedure prescribed by the statute must be followed. Tax is a compulsory exaction made under an enactment. The word tax, in its wider sense includes all money raised by taxation including taxes levied by the Union and State Legislatures; rates and other charges levied by local authorities under statutory powers. Tax includes any ‘impost’ general, special or local. It would thus include duties, cesses or fees, surcharge, administrative charges etc. A broad meaning has to be given to the word “tax”.

The ‘tax’, ‘duty’, ‘cess’ or ‘fee’ constituting a class denotes to various kinds of imposts by State in its sovereign power of taxation to raise revenue for the State. Within the expression of each specie each expression denotes different kind of impost depending on the purpose for which they are levied. This power can be exercised in any of its manifestation only under any law authorising levy and collection of tax as envisaged under Article 265 which uses only expression that no ‘tax’ shall be levied and collect except authorised by law. It in its elementary meaning conveys that to support a tax legislative action is essential, it cannot be levied and collected in the absence of any legislative sanction by exercise of executive power of State under Article 73 by the Union or Article 162 by the State Under Article 266(28) “taxation” has been defined to include the imposition of any tax or impost whether general or local or special and tax shall be construed accordingly. “Impost” means compulsory levy.

The well known and well settled characteristic of ‘tax’ in its wider sense includes all imposts. Imposts in the context have following characteristics: (I) The power to tax is an incident of sovereignty; (ii) ‘Law’ in the context of Art, 265 means an Act of legislature and cannot comprise an executive order or rule without express statutory authority; (iii) The term ‘tax’ under Article 265 read with Article 266(28) includes imposts of every kind viz., tax, cess or fees; (iv) As an incident of sovereignty and in the nature of compulsory exaction, a liability founded on principle of contract cannot be a ‘tax’ in its technical sense as an impost, general, local or special.

Article 246 deals with the distribution of legislative powers as between the Union and the State legislatures, with reference to the different lists in the Seventh Schedule. The gist of the article, in short is, that the Union Parliament has fully and exclusive power to legislate with respect to matters in List I and has also power to legislate in respect to matters in list III. The State legislatures, on the other hand, has exclusive power to legislate with respect to matters in List II, minus matters falling in Lists I and III and has a concurrent power with respect to matters included in List III. The Parliament and the State legislature can legislate only in respect to the matters contained relating to tax in such List. One cannot travel beyond the power conferred under the said Article.

Taxes are levied and collected to meet the cost of governance, safety, security and for welfare of the economically weaker sections of the Society. It is well established that the Legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc., for taxation. The tests of the vice of discrimination in a taxing law are less rigorous. It is well established that the Legislature is promulgated to exercise an extremely wide discretion in classifying for tax purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes.

 Rules of Interpretation

In every treatise upon interpretation of statutes, different attitudes are attributed to the subject matter or nature of the statute so as to consider as to the effect of the object of the particular statute which is sought to be achieved. For such purpose the expressions “shall” or “may” or laying down an affirmative procedure etc. used in the statute frequently came for judicial consideration. Having regard to the subject matter of statute such in as beneficial or welfare legislature the word “may” which generally confer a discretion upon the authority exercising the power is very often construed as a discretion coupled with duty so as to construe the expression “may” as a mandatory provision in that what was not explicitly stated in the statute is construed as mandatory, as if this is implicit in the statute.

Mandatory and Directory

The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design, and the consequences which would follow from construing it one way or the other. The use of the word shall in a statutory provision, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid. On the other hand, it is not always correct to say that where the word “may” has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceedings invalid. The user of the word “may” by the legislature may be out of reverence. In the setting in which the word “may” has been used need consideration and given due weightage.

Sec 154 of IT Act 1961, is to ensure that injustice to the assessee or to the revenue may be avoided. It is implicit in the nature of the power and its entrustment to the authority invested ,with quasi-judicial functions under the Act, that to do justice it shall be exercised when a mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceeding. That power is not discretionary and the Income-tax Officer cannot, if the conditions for its exercise were shown to exist, decline to exercise it as held by the Supreme Court in L. Hirday Narain vs. I.T.O[1].

The use of the word “shall” in a statute ordinarily speaking means that the statutory provision is mandatory. It is construed as such unless there is something in the context in which the word is used which would justify a departure from this meaning. Where the assessee seek to claim the benefit under the statutory scheme, they are bound to comply strictly with the condition under which the benefit is granted. There is no scope for the application of any equitable consideration when the statutory provisions are stated in plain language. The courts have no power to act beyond the terms of the statutory provision under which benefits have been granted to the assessee.

It is beyond any cavil that the question as to whether the provision is directory or mandatory would depend upon the language employed therein. (See Union of India and Others vs. Filip Tiago De Gama of Vedem Vasco De Gama[2]. In a case where the statutory provision is plain and unambiguous, the Court shall not interpret the same in a different manner, only because of harsh consequences arising there from. The ‘Court’s jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation.

It is also necessary to determine that there exists a presumption that the Legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression ‘shall or may’ is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the Legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the Legislature was that the provisions are mandatory in character.

In India, however, the Courts of law in construing a taxing statute lean on the ratio of the case of Cape Brandy Syndicate and goes by the words used in the statute without searching for any intendment of use of such expressions as they often do in construing different nature of statute such as beneficial statute, welfare statute more particularly the legislation relating to protection of the rights of industrial workers. However, an exception to this rule has been made by the Supreme Court in the case of State of Orissa vs. M. A. Tullock & Co[3].  In that case while the statute namely sec. 5 (2)(a)(ii) of the Orissa Sales Tax Act, 1947 did not make it mandatory for a dealer that he must produce a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by dealer that the goods in question are specified in that purchasing dealer’s certificate of registration being required for resale by him or in the execution of a contract the rule made by the rule making authority made it mandatory. The Supreme Court held in the case of Kedarnath Jute Manufacturing Co. vs. CTO[4]  that the said mandatory provision in the Orissa Sales Tax Rule was inconsistent with sec. 5(2)(a)(ii) of the Orissa Sales Tax Act and to avoid that conflict that notwithstanding the use of the expression “shall produce a true declaration” that the rule was only directory and therefore it would be enough if it was substantially complied.

Revenue Statute

In a revenue statute where by the legislature by an enactment imposes a tax or charge the rule of construction or interpretation of such statute has been more or less unanimously construed by Courts in England as also in India in a simpler manner.

In the words of Lord Thankerton in the case of I R C vs. Ross and Coulter[5] observed “counsel are apt to use the adjective ‘Penal’ in describing the harsh consequences the taxing provisions, but if the meaning of the provisions, is reasonably clear, the Courts have no jurisdiction to mitigate such harshness. On the other hand, if the provision is capable of two alternative meanings, the Courts will prefer that meaning more favourable to the subject. If the provision is so wanting in clarity that no meaning is reasonably clear, the courts will be unable to regard it as of any effect.”

These fundamental principles have been accepted by Supreme Court in a number of cases. To illustrate  Bhagawati  J. stated the principle as follows:

“In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of law. If the revenue satisfies the court that the case falls strictly with the provisions of the law, the subject can be taxed, If, on the other hand, the case is not covered within the four corners of the provisions of the statute, no tax can be imposed by inference or by analogy or by trying to prove into the intentions of the legislature and by considering what was the substance of the matter”.

Long days back the House of Lord expressly affirmed the cardinal principles of Duke of Westminster vs. I.R[6].  in applying the principle of construction implicit in a revenue statute that the citizen has the legal right to dispose of his capital and income so as to attract upon himself the least amount of tax. Avoidance of tax is not a tax evasion and it carries no ignominy with it anybody can so arrange his affairs so as to reduce the burden of tax to minimum. In the case of Duke of Westminster the House of Lords so observed that “given that a document of transaction is genuine the Court cannot go behind it to some supposed underlying substance”.

However, the Supreme Court in a Sales Tax case in McDowell vs. CTO[7] took the view that the legal position in case of tax avoidance should be taken as altered in the light of three judgments of the House of Lords (i) Ramsay vs I R[8]  (ii) I R vs. Burmah Oil[9]  (iii) Furniss vs Dawon[10].

The eminent jurist Mr. N. A. Palkhivala in one of his books “We The Nation, The Lost Decades” in an illuminating article have analysed the judgment of Supreme Court in McDowell vs. CTO and considered the validity of ruling of the Supreme Court blurring the distinction between tax avoidance which is legitimate and tax evasion. By an in depth analysing the said judgment in McDowell’s case, Mr. Palkhivala observed that the Courts’ pronouncement obliterating such distinction is patently incorrect and proceeds on a total misreading of three decisions of the House of Lords. In the said article he also observed “the whole object is that in a taxing statute the courts have little scope to find out the underlying intention of the legislature beyond what is stated in the plain language of the statute” is relevant in this context.


I conclude this Article by quoting a classic passage of words of the Late Rowlatt J  who explained the rule of interpretation of revenue statute in the case of Cape Brandy Syndicate vs. I R C[11]:

“In a taxing enactment, one has to look at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.”

The Author of this article is a co-author of the book titled ‘The Principles of Interpretation of Statutes’.

[Published in Circuit Magazine (Monthly), ICWAI , November, 2010]

[1] L. Hirday Narain vs. I.T.O; (1970) 78 I.T.R. 26 (S.C.)
[2] Union of India and Others vs. Filip Tiago De Gama of Vedem Vasco De Gama; (AIR 1990 SC 981 : (1989) Suppl. 2 SCR 336)
[3] State of Orissa vs. M. A. Tullock & Co; 1964 (15) STC 641 (SC)
[4] Kedarnath Jute Manufacturing Co. vs. CTO; AIR 1966 SC 12
[5] I R C vs. Ross and Coulter; 1948 (1) All E.R. 616 at 625 (H.L.)
[6] Duke of Westminster vs. I.R; 19 TC 490, 520, 524
[7] McDowell vs. CTO; (1985) (154 ITR 148 (SC)
[8] Ramsay vs I R; 54 T C 101
[9] I R vs. Burmah Oil; 54 T C 200
[10] Furniss vs Dawon; 55 T C 324
[11] Cape Brandy Syndicate vs. I R C; 1921 (1) KD 64, 71F


By K P C Rao., FCS
Practising Company Secretary


Power is a measure of a person's ability to control the environment around, including the behavior of other persons. The term authority is often used for power perceived as legitimate by the social structure.  Power manifests itself in a rational manner: one cannot meaningfully say that a particular social actor "has power" without also specifying the role of other parties in the social relationship.

Political power  is a type of power held by a person or group in a society. There are many ways to hold such power. Officially, political power is held by the holders of sovereignty. Political powers are not limited to heads of states, however, and the extent to which a person or group holds such power is related to the amount of societal influence they can wield, formally or informally. In many cases this influence is not contained within a single State and it refers to international power. Political scientists have frequently defined power as "the ability to influence the behaviour of others" with or without resistance.

Sovereignty is the most important constituent element of the State and there can be no State without a Sovereign power. The sovereignty of the State is unlimited internally as well as externally. It is original and absolute power and it cannot be divided. Division of sovereignty means destruction of sovereignty. Sovereignty represents the unity of the State, and the sovereign State is one which is externally free and internally supreme.

All governmental organs and institutions owe their origin to the constitution and derive their powers from its provisions. These organs and institutions enjoy only such powers as are conferred on them and function within limits demarcated by the constitution. Parliament is no exception and unlike British Parliament, cannot claim unlimited powers. It must function within its limits and its actions are subjected to judicial scrutiny. It is given the power to amend the constitution, but the power to amend must be exercised within the bounds of the constitution. Besides conforming to the procedure laid down for this purpose, the power to amend should not be exercised so as to destroy or abrogate the basic structure or framework of the constitution.

In a sense the constitution may appear to be sovereign as it is the supreme law of the land. However a document cannot be the sovereign. The people of India, according to the Preamble, have given to themselves this constitution. The source of the constitution is the people of India will continue to be governed under the constitution so long as it is acceptable to them and its provisions promote their aims and aspirations. It is true that the constitution was adopted by the constituent assembly which was not directly elected by the people. But that does not necessarily mean that the constituent assembly as it came to be constituted, did not project the feelings of the people. The fact that the constitution has been in operation for about sixty years with a number of general elections from time to time is an evidence of the people having accepted the constitution in its present form. Following the course of Indian history and the pattern of Indian politics, it may be said that, unlike the Western society, it is the elite of the Indian society rather than the people themselves who have set the tone for the reformation of the society. Besides the fact that the Preamble provided that the people of India have enacted and given to themselves the constitution and its continued acceptance by the people over the years leads to no other conclusion that the binding force of the constitution is the sovereign will of the people of India. If at any stage of history, the people find the constitution is not serving the needs of the Indian Society, the people of India may, if necessary, set in motion machinery which provides for a system suited to the aims and aspirations of the people. It may therefore, be rightly observed that the sovereignty lies with the people of India.

Taxing Power

Taxation is the legal capacity of the sovereignty or one of its governmental agents to exact or impose a charge upon persons or their property for the support of government and for the payment for any other public purposes which it may constitutionally carry out. The power of taxation differs from the power of eminent domain, and where as the government under taxation, is required to make and enforce contribution of money or property by the citizen as his share of the burden of support of the government.

A government cannot exist without raising and spending money. Parliament controls public finance which includes granting of money to the administration for expenses on public services, imposition of taxes and authorization of loans. This is a very important function of Parliament. Through this means Parliament exercise control over the executive because whenever Parliament discusses financial matters, government’s broad policies are invariably brought into focus. The Indian Constitution devises an elaborate machinery for securing parliamentary control over finances which is based on the following four principles.

1)     The first principle regulates the constitutional relation between the Government and Parliament in matters of finance. The executive cannot raise money by taxation, borrowing or otherwise, or spend money, without the authority of Parliament.
2)     The second principle regulates the relation between the two Houses of Parliament in financial matters. The powers of raising money by tax or loan and authorizing expenditure belongs exclusively to the popular House, viz., Lok Sabha. Rajya Sabha merely assents to it. It cannot revise, alter or initiate a grant. In financial matters, Rajya Sabha does not have co-ordinate authority with Lok-Sabha and Rajya Sabha plays only a subsidiary role in this respect.
3)     The third principle imposes a restriction on the power of Parliament to authorize expenditure. Parliament cannot vote for raising money by tax for any purpose whatsoever except on demand by ministers.
4)     The fourth principle imposes a similar restriction on the power of Parliament to impose taxation. Parliament cannot impose any tax except upon the recommendation of the Executive.

The legislature having the power to impose a tax has also the power to prescribe the means by which the tax shall be collected and to designate officers by whom it shall be enforced; the obligation and indemnity of those officers; the means to ensure proper realization of the tax. The method and manner of collection of tax is no criterion for judging the vires of the tax law.

The following powers flow from the power to tax as ancillary powers:

1)     To provide for refund of a tax illegally or improperly collected and to impose restriction upon the right to claim such refund.
2)     To provide for the prevention of evasion of the tax imposed.
3)     To levy a penalty for the proper enforcement of the taxing statute, or collecting any amount wrongly under colour of that statute, whether by way of fine or forfeiture.

Article 265 of Constitution of India

Article 265 of the Constitution lays down that no tax shall be levied or collected except by the authority of law. Schedule VII divides this subject into three categories:

1)     Union list (Article 246(1) of the Constitution specifies that Parliament has exclusive powers to make laws with respect of any of the matters enumerated in List I in the Seventh Schedule to Constitution)
2)     State list (As per Article 246(3) State Government has exclusive powers to make laws with respect to matters enumerated in List II)
3)     Concurrent list (both Parliament and State Government can pass legislation with respect to items specified in this list).

Constitutional Limitations

Apart from the limitation by the division of the taxing power between the Union and State Legislature by the relevant Entries in the legislative Lists, the taxing power of either Legislature is particularly subject to the following limitations imposed by particular provisions of our Constitution:

1)     It must not contravene Art.13.
2)     It must not deny equal protection of the laws, must not be discriminatory or arbitrary. (Art.14)
3)     It must not constitute an unreasonable restriction upon the right to business.(19(1)(g))
4)     No tax shall be levied on the proceeds of which are specially appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination (Art.27).
5)     A State Legislature or any authority within the State cannot tax the property of the Union.(Art.285)
6)     The Union cannot tax the property and income of a State (Art.289).
7)     The power of a State to levy tax on sale or purchase of goods is subject to Art.286.
8)     Save in so far as Parliament may, by law, otherwise provide, a State shall not tax the consumption or sale of electricity in the cases specified in Art.287.

------------------------------------------------------------------------------------------------------------[Published in Corporate Secretary of ICSI , October, 2010]