Srinagar: Terming the presidential order on Goods and Services Tax (GST) as “constitutional deceit”, legal experts in Kashmir say that the extending of the GST regime to the state is a step towards surrendering the powers to the federal government, eroding whatever powers are left with the state under Article 370.
“The government claim that the presidential order is a constitutional victory is a lie and eyewash. They have totally surrendered their tax powers with regards to goods and services to the Parliament,” prominent High Court lawyer Zaffar Shah said.
“It is a Constitutional deceit. This order amounts to defiling the state Constitution,” he added.
Explaining further, Shah said that Section 5 of the JK Constitution says that the state legislature has the power to make laws except those laws over which Parliament has power. “So, when you donate the power to Parliament of making law on goods and services, you are taking away the power of the state legislature. The power of the state is shrinking. It means sovereignty is shrinking, autonomy is shrinking,” he said.
“Now the question is, how have we protected the Section 5? When you say it is intact, how is it so after you have surrendered your power over goods and services to the Parliament? It is a cosmetic statement to mislead people,” he said.
The government on Friday approved the GST Bill. Finance minister Haseeb Drabu said that the presidential order that followed it clearly states that Section 5 of the Constitution of Jammu and Kashmir “shall remain intact.”
“Among other serious misleading claims are that the government will retain powers of concurrence in the GST council related to services and taxes,” Shah mentioned. “Let me put it in this way: What is written in the presidential order? The concurrence with respect to goods and services in GST council has to be given by the representative who can be a finance minister or any other official. It is not the government or the cabinet, which used to be that. It will now be at one person’s discretion to decide Constitutional changes.”
The lawyer warned that the decision vested with one representative to decide on GST matters was a serious inroad into the very mechanism of adoption.
“The representative in the GST council will decide matters of State. And, the concurrence of the representative in the council to any such decision which will impinge upon Constitutional arrangements is enough to change things,” he said.
This will violate the procedure prescribed in Article 370, Shah said.
“By virtue of Article 370, it was the state that gave concurrence on any Constitutional issue. The concurrence would go to the central cabinet and then to the president. Now, the representative can give concurrence and it will do. It is a serious erosion of state powers under Article 370. The presidential order has empowered a member to have a say on issues which earlier were a matter of state-centre relations,” he said.
Contrary to this, finance minister Drabu quoting the presidential order had said that “legislature of the state of Jammu and Kashmir shall have exclusive powers to make laws in respect of imposition of any taxes enabled by Section 5 of the Constitution of Jammu and Kashmir.”
Law professor Dr Sheikh Showket Hussein had said that the main Constitutional amendments from the federal government were brought till 1975.
“However, after 1975, the state government resisted the Constitutional amendments from Parliament,” Hussein said. “There were amendments, but they were few.”
He said that the state faced tremendous pressure from the federal government to implement the Panchayati Raj Act. “Despite the 73rd and 74th amendments of the Indian constitution in relation with Panchayati Raj, the state did not implement it,” Hussein said. “They enacted their own law in relation to those amendments. Similarly, the government could have done with the GST.”
He said that the implementation of GST in Jammu and Kashmir was a win-win situation for the BJP government in Delhi.“The repercussions of GST in the state will be negative. If today the GST is implemented, tomorrow the BJP can use the same path to implement Uniform Civil Code. Article 370 would be reduced to husk. The GST has set the ball rolling for future tampering with the special status,” the lawyer said.
Soon after the passage of the GST bill in the state, BJP top functionaries including Ram Madhav and finance minister Arun Jaitley termed the decision as historic and a “defeat for the separatists”. According to the Economic Times, Jaitley said that the country, which was politically integrated, had now integrated economically.