Constitutional Law of India Volume 3

269 Pages·1989·48.045 MB·English

CONS'l11'01'10NAL LAW
OF INl>IA
Vola1ne 3
Edill,r-in-0,wf
M. Hidayatallala
.
.
Tbe·llar Co•••wil ot ln«lla T•·•••t
In ••odadon with
Arnold P.,blimen
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UNIVERSITY OF MICHIGAN
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1750
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.© The Bar Council of India Tl'Ult, 1986
·1:irst Publuihed, i-989
.
.
ISBN 81-7031-007-7
Publilhed by Guiab V azisani for Arnold Publilhen (India) J>\rt.
Lui., AB/9,JSalitaljar.r F.nclavc, New Delhi-l lOO'l9 and printed at
Gopom Paper'• P\rt. Ltd., Naida
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UNIVERSITY OF MICHIGAN
OON'l'R•8U'DON8
I. Mr. ,...._P&.
O■aPeml,
V and VI Sc:hed11les (Ana. 2+t, 2+t A and 275).
P••Jaa.
2. • lfr. I.
Ja■dee
C
VII Schedule (Entries 52, 24 and 23 of l.ittt I, II and ID
iCspectively).
3. Otzpaa, Mr.-o.P.
VII Schedule {FPtties 82 and 85. Lilt J. and entiy 46, List II)
4. I! 'fr.
C 5♦-nJ■m, jll■en·G.
VII Schedule (Entries 83, M, 86 IO 91, Li• I and entries 47 to53
and 55 to 67, Li• II);
Ja
S, 11'.p,ifp Mr. p:tk,e N,Ae ·
j
VII Schedule (Entries !rl, 9'ZA, I J• I; Entry 54, Litt II and
entry 34, Li• DI).
CON'l'RIJI\J'IORI
nz-..a-o.P.
Did his post-graduation in Political Science and LLB deg.cc 6ooa
the Punjab Univenity. Joined Punjab Civil Service Oudicial) in
1950 and was aelccted to the Indian Revenue Service in 1951. He
rctimi O>mmusioncr of Income-tax in 1983. He earlier
81 WU
Member, Income-tax Appellate Tribunal and allo Faculty Member
of the National Acadcany ofD irect Tax.et. He istheauthoroflCYCl'al
boob on Estate Duty, Taxation of Gift.a, Wealth and Expenditure.
His book on Income-tax Law is a widely acclauaacd work.
Mr. J1:e•lce PdL
C.■wamt.
Had legal practice for over 29 yean pior to his appointment •
Judge, Anam and Nagaland High Court in 1967. Worked u Chief
Justice, Amm High Court fron11970. Appointed Judge, SI.pane
Court of India in 1973; ~hau11aa,., Praa Commusion, Member,
World ,"'ociation ofJ udges.
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llr.,...._
MeB-
K■s11,
F.dlr.ated at the FeUowship School, the St. Xavier', High School,
the FJpbinltoae College and the ,unent Law Colkge,
Gow:■
Boa1bay. Enrolkd u an Adwcate in 1949 in the Boe1abay High
Coi•rt. Waned u a Fellow at the Government Law O>lkge 19t9-
50. Prar.tiltd mainly in civil naiu and wma;-ercial matt.en in the
. Bo.11bay High Court and Bombay City Civil Court. Allw•at
Government Pleader for the State of Maharuhtra in the Bond.Jay
City Clvil Coun and Government Pleader in the 1z::ne Court.
Appointed Additional Judgie oC the Bo.nbey High Court 6ow
November, 1969. Appointed a peanw,-entjud,e 1971.
~
Ja ta
"•IL~■::a, at.,. I.
B.A., M.L Called to the Bar in Im&. Did Malter oC Law in
Comtitutional Law and Intemational Law. Appointed Diltrictand
Saaiorll Judge in the campo1ite State oC Madru in 1952.
Functiontd u Director oCLc:gal Studiel, Madru &ow 1962 to (966.
Jmlge of the Delhi High Coun frmn 1969. appointed JudF,
W■1
Alam High Coun from 1966 67. Chairman, M.onopoliel and
Ratrictive Trade Pnctia:1 Commillion 1ince 1978. In 1964 be
WIii
appointed a Member of the Kerala Law Commizlion on Rebm .4'f ·
Legal Education. rmtributed nan•iieroua anicJel on thea,ia
Ha■
pe11aining to legal rally the combined area ofLaw and &oia11ict.
c.onraaa
W■1 Leader of the Indian Delegation to the UNCTA D
on Restrictive Buainell in 1979.
Practice■
m, lfr. .......
■••: I ... ,0.
M.A. B.L Umenity). Aho did Diploma in Slatiltict.
(M■dru
Enrolkd u Adwcate oC the Madru High Court in l!H8. Did
s,,itt
Appellate work, both civil and aiminal and Original and
Writ■ in the High Coun of Madru. upl Adviler, Madru Rcwse
Electricity Board,. Centnal Government Standing Cbumel •nd
Government Pleader, Madru. ~inted pea1•wricntJ1ad,e oCthe
Madru High Coun in 1969. He ii a,.;,,,wa, Baud oCStudicl in
Law (Under Graduate) oCthe Umenity ofMadruand Manber4-I
the Board of Studiel in Law of Bharathidenn Uniw:nity at
TtnlChirapalli. He ii the a,.;,,,wn oC ~aal Advilory Boudl
coautituted by the Govawnenll .oC Tamil and Pondichc, •
N■du 7
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,c•r
.
I . 1'lle nt11 •Pd Ilse• 1-
■
General, I; Distinction beNeen the two Schedules, I;
Definition, 2; History of the Sched'-les, 2; The Fd'th Schedule,
3; Fifth Schedule and other parts of the Constitution, +, Smth
Sdled~Jc. 8; The Sixth Schedule and Oumge of Law, 9;
Autonomous Mqhalaya, 9; Role of Governor and Para I, 11;
Mimram Union Toaitory, 12; Role of Governor and Pan 2
(6A}, 13; Administration of Justice, 16; Oiltrict Council in
Allam and in Meghalaya and Mizoram, 22; lntcr•Relation of
Para 12A and Para 3, 23; Role of Go\oemor and Paru 15 and
16, 2+, ~mor under Para 20A of 1969 Act, 30.
2. TIie len■e• fcft 1lda
Introduction, 34; lndmbial PolicyoftbeOove11u1.entoflndia,
40; Planning and the Changing ecc..ou.ic acene, 57;
Praa:■
The lnteJ"l>l'Clation Pmcea, 67 .
• ,. Is 9'l
Entries 82 and 85, 9'l; Growth of Inoo.1.e Tax in U.K., 9'l;
Growth ofI ncome Tax in India, 96; Parlia11.ent1 Competence
1
., imp0IC Tax on incon.e, 10.,; Power to impoae tax, lo+, Power
to impme income tax, 105; Sun:harge, 108: Excea Profit Tax,
109; InterprecatiYe 110; Funda11-.enlal Rights viH-vil
Proce■•
Tax leplation, 112; Articles 265, 31 and 32, 115; Power of.
Parliament to apply lnco.1.e Tax law to Part B States and to
amcflld IUCh law, 117; Power of Parliament to apply lncoane
Tax law ·to Union To.itoria, 117; Parlia11leilt'1 Power to
legislate in at.pxt of Jammu & Kuhmir, 118; Power of
Parliament-to Tax Rulen ofNatiYe States, 120; Enforeeability
of granted by entwbile Rulen of Native States,
conce■iona
121; Extra To1itorialily, 122; ·stata.oflndia arc o.e,npt from
inoo11.e lax; 124.
..
.
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Allocatioo of _;fax out of Divisible Pool, 126;
lncoi11e
Parliament'• Power to 1et up additional courts, 128; Power to
·act up Tribunals, 139; Entry 83, 159; Entry 84, 159; Entry 86,
164;·Entry 87, 167; Entry 88, 169; Entry 89,171; Entry 90, 174;
Entry 91, 174; Entry !rl, 179; Entry9'lAofLiat I and Entry 5 of
List II: Sales Tax legislation, 181;
.,. Us 220
Entry 47, 222; Entry 48, 222; Entry 49, 223; F.ntry 50, 228;
Entry 51, 228; Ent_ry 52, 231; Te1i11,nal Tax and octroi, 233;
Excise duty and octroi tax, 233; Cbnsumption, use and sale,
234; Entry 53, 235; Entry 55; 236; Entry 56, 236; Entry 56, 240,
Entry 58, 241; Entry 59, 241; Entry 60, 244; Entry 62, 247;
Entry 63, 250, Entry 64, 251; Entry 65, 251; Entry 66, 254;
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TIIE FIFl'H SCHEDULE
AND
'l'HE SIXTH SCHEDULE
Ge■11al
The Fifth and the Sixth Schedules to the Constitution of India
may be dcscribed as iu sanctuaries. They owe their origin to Article
244 oft he Constitution. Article 244( I) provides that the provisions of
the Fifth Schedule shall apply to the administration and control of
the Scheduled Areas and Scheduled Tribes in any State other than
the States of Assam and Mcghalaya. Article 244(2) provides that the·
provisions of the Sixth Schedule shall apply to the administration of
the Tribal An·as in the State of Assam and Mcghalaya and the
Union Territory of Mizoram.
Article 275 maintains a financial nexus of the Areas with the
Union Government through Parliamentary grants. Article 275
Provides for annual grants-in-aid of the revenues of the State
concerned to be charged on the Consolidated Fund of India to 111CCt
the cosu of development ofs chemes for the purpose ofp romoting the
welfare of the Scheduled Tribes or raising the level ofa dministration
of the Scheduled Areas.
Under Article 275 there is also a special provision for payment
out of the Consolidated Fund of India as grants in-aid of the
revenues of the State of Assam to meet the average excess of ·
expenditure over the revenues and to nieet the cosu ofd evelopment
schemes with the approval of the Government of India for the
1
purpose of raising the level of administration of these Arcas.
Dledncdoa Betw11ea die Two 8ar:1daln
There is some distinction in the schem~·of the two Schedules
\\'hile the Fifth Schedule makes provisions as to the administration
and control of the Scheduled Areas and Scheduled TriJ~ the Sixth
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CDN81TIUJ'IONAL LAW OF INDIA VOL.S
Schedule provides for the administration of the Tril>al Areas. 'fhc
word "Control" docs not appear in the title to the_S ixth Schedule.
Again, whereas paragraph 2 of the Fifth Schc<jule provides that the
executive power of a State extends to the Scheduled Areas, therein,
there is nothing to similar effect in the provisions of the Sixth
Schedule. Consistently with the above,.para 3 of the Fifth Schedule
provides that the executive power of the Union Government shall
extend to the giving of directions to the State as to the
administration of the Scheduled Areas. There is no such express
provision in the Sixth Schedule.
However, para 7 of the f'ifth Schedule is identical with para 21
of the Sixth Schedule and provides lor easy amendment of the
Provisions of the Schedule. Such amendment docs not attract
Article 368.
Deftwd~oa
"Scheduled Areas" arc defined in para f> of the Fifth Schc:dule
and the expression means such areas as the president l>y order may
declare to he the Scheduled Areas.
•
. Para 20 of the Sixth Schedule defines "'fril>al Areas" as those
areas specified, prior to the North Eastern (Reorganisation) AL·t
1971,2 Act 81 of 1971, which c·ame into eflect on 21 . 1.1972, a,; Parts
'A' and '8' of the Tahle appended to the paragrct1>h "·ithin the.· State.·
of Assam and thereafter as the areas spec.·ified in Parts, I, II and Ill of
the said ·ral>lc within the State of As~m. the State.· of 1\-fcghalaya
and the llnion ·rerritory of Mizoram n·s1x·c·tively.
• the
Hi■tory Scbeclule■
The history culminating in these Schedules is cml>eddc.·cl in
antiquity. For an exhaustive analysis of thc historic.·al l>a<'kground
sec Hidayatullah'!i 'J'hc Anundoram Baroc>ah l.aw lec.·turc.-s (Scc<>nd
Series).:' Alsc> f:du·in.[tson Harth v .\~alt oj.1JJa111~ and ( · Ou:in,,: ,\'in,,:h
S<.'C
v. Ka .\ osihon
]J'TU.'<.I. :,
Briefly put, prior to indepcndenc.·c.·, thc l,ac.·kward tracts were
exclude-cl frorn thc operation o(rclo1ms whic·h l>c.;ing gradually
\\'C.'J'l'
introduced in ot_her advanced a11c.·as. S~'l'.YI ( I) of the Government of
India AL:t, l93S providc.-cl that c·x1>1't.'s.,;ion ·c.-xch!dcd area,;' and
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CX>Ml'I Ii UTIONAL LAW OF INDIA VOL.3
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'partially excluded areas' 11ieant respectively such areaa u Hit
Majesty by order in Council declared to be 'Excluded Areal' or
'Partially Excluded Areas.'. Again, by Section 92( 1) it wu provided
that not Act of the Federal or Provincial legislation would apply to
such excluded areas or partially excluded areas unlea the Governor
10 directed and the Governor was expowcrcd to duect that the Act
_in its application to such areas shall have effect subject to mch
exceptions or modifacatiom u he thought fit. By Section_92(2) the
. Governor was gaven the power to make Regulations for the peace
. and good c;;ovcmmcnt of the excluded areas or panially excluded
areas and the Regulations made by him could repeal or amend any
· Act or the Federal or Provincial legislature or any existing Indian
Law which would be applicable for the time being to such areas.
These Regulations had to be assented to by the Governor General to
have eflect in law. Section 92(3) of the Government of India Act,
1935 made it clear that with regard toexcludcdarcas, the Governor
shall exercise his functions ' in his discretion'. Scctioh 92(3) was
omitted by the India (Provisional Constitution) Order 1947.
Coming to the Constitution the Fifth and the Sixth Schedules
fRa:Y be described as succcsson to S. 91 and Sec. 92 of the
Government of India Act 1935 with some difference. Unlike in Sec.
92 the executive authority of the State extends to the Scheduled
Areas in the Fifth Schedule but not to the Tribal Areas in the Sixth
Schedule. \Vhereas the scheme under section 92. was for the
Covemor to apply laws, under.Para 5(1 ) of the Fifth Schedule law
were applicable proprio vigore and could be disapplied by the
Governor by notification. But the pr~nciple of appication of laws
underlying Sec. 92 continued in Para 12( l ) of the Sixth Schedule.
~
.T he.Fifth Schedule
The Fifth Schedule applied to the Scheduled Areas and the
Scheduled Tribes in all theStatesoflndiaexcept the States ofA ssam
and Meghalaya. _
8y para 2 of the Fifth Schedule the executive power of a State
extends to the Scheduled Areas and a Tribes Advisory Council isto
l>e constituted under para 4( I) and by sub-para (2) of para 4 duty is
imposed on the Council to advise the Governor on such matters
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4
· 1mpoacd on the O>uncil to advise the Governor on such matters
pertaining to the welfare and advancement of the Scheduled Tribes
in .the State as may be referred to it by him. .
Para 5 ii the core of the Fifth Schedule. Para 5( I) enables the
Governor to direct, by public notifa cation that any particular Act of
Parliament or of the Legislature of the State shall not apply to a
Scheduled Arca or any part thereof or shall apply to a Scheduled
Arca or· any part thereof subject to such exceptions. and
modifications as he mayspcc:ify. Thispowcrcan becxcrciscdcvcn to
give tttrospcctive effect to the laws. By sub para (2) of para 5 the
Governor may ma~ Regulations for the peace and good
government of any area in a State which is for the time being a
Scheduled Arca. U ndcr para 5(2) the Governor could make a
.in
regulation to apply laws already in force the State with
retrospective effect. Power under 5(2) is very. wide and is not
cin:umscribcd or limited by the particu.ar subjcctmattcr ~ioncd
in this sub para. 6 In Kanniyan's7 cue referring to the exprcaion
"Peace and Good Government" in Art. 240, the Suprc111e Court
observed as follows:
"The aforesaid expression gives very wide dilcrction to the
authorities to pass laws and the Courts arc not competent to
enquire whether any particular enactment made in exercise of
these powers would in fact promote these objects."
Under sub para 3 of para 5 the Governor by regulations may
repeal or amend any Act of Parliament or of the Legislature of the
State or any existing law which is for the time being applicable to a
particular Scheduled Arca. These_r egulations have to:besubmated
to the President and until as1ented to by him shall have no cfTr.ct.
By sub para (5) ofp ara 5 an important role is given to the Tribes
Advisory Council since no regulation can be made by the Governor
unless he had consulted such O>uncil. O>nsultation is thus condition
precedent to Governor's Legislation under para 5(2) although he
acts on the aid and advice of the Council of Ministen. Under the
proviso to Art. 164 the State ofBihar, Maqhya Pradcsh and Orissa
shall have a minister in charge of tribal welfare.
Fifth Schedule othef' Parta oltbe C...11J&uel.m
■ncl
Part X oft he Constitution contained a solitary Article 24 prior
to the T 'ct,nty Second Amendment in 1969 by which another
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