Srinagar: Finance Minister Haseeb Drabu has been repeatedly saying that the J&K government will “modify” the 101st Amendment of the Indian Constitution so that the Goods and Services Tax (GST) does not compromise the special status and fiscal autonomy of the state. But is the J&K government even capable of modifying an amendment of the Indian Constitution?
CPI (M) leader MY Tarigami says the state government is not empowered to amend any amendment of the Indian Constitution. “If somebody says that they will amend the 101st Amendment of the Constitution of India, he is lying,” Tarigami bluntly said. “The 101st Amendment was brought by the Indian Parliament. The state legislature has no power to even touch it, let alone modify it. If you want to modify the 101st Amendment, then the state government has to go to Parliament. Can it happen? I do not think so.”
Tarigami said that is the reason Opposition parties are demanding a separate state law for implementing GST in Jammu and Kashmir. “If you extend the 101st Amendment to the state, the government will lose its jurisdiction and can’t intervene in GST related issues,” Tarigami said. “So, it is better to have our own tax regime. We cannot compromise on fiscal autonomy and let the tax base shift to the centre. Article 370 is already an empty shell now. The imposition of GST and extension of the 101st Amendment will weaken it further,” the CPI (M) legislator said.
In the meeting of the All Party Consultative Group (APCG) held on Thursday, the government had said that it cannot bring a separate law on GST as it would become a “huge political issue in India.”
Tarigami said that the power to spend and collect taxes will go to the GST Council if the new tax regime is imposed in its current form. He reminded that the 73rd and 74th Amendments of the Indian Constitution on Panchyati Raj were not implemented by the J&K government.
“We enacted our own law, by squeezing the gist out of the 73rd and 74th amendments, which we deemed to be in the interests of the state,” Tarigami said.
High Court lawyer Zaffar Shah said that the state government can bring amendments in the 101st Amendment using a Presidential Order, but the problem is that the government has not made clear what amendments it wants in the GST law.
“They have not spelled out the modifications to the GST they want. The government is not forthcoming on the matter. The nature, scope and extent of the required modification of the 101st Amendment has not been put in the public domain. That is why different sections of society are holding different views, resulting in failure of any consensus,” Shah said.
“Any amendment made in the Constitution of India does not apply of its own to the state,” Shah added. “The state government has full powers to request the President of India to apply the amendment with or without modifications. That is the procedure prescribed in Article 370.”
The APCG meeting held on Thursday under the leadership of PDP leader Muzaffar Hussein Beigh miserably failed to reach any consensus on the implementation of GST in the state. The opposition said the government was unable to present any modified form of GST which would safeguard the fiscal autonomy and special status of the state.
The 101st Amendment
Article 246 (A) says that both Union and States in India now have concurrent powers to make law with respect to goods & services tax. The intra-state trade now comes under the jurisdiction of both the centre and the state, while inter-state trade and commerce is “exclusively” under central government jurisdiction.
Article 269 (A) says that in case of inter-state trade, GST will be levied and collected by the government of India and shared between the Union and States as per recommendation of the GST Council. Proceeds such collected will not be credited to the Consolidated Fund of India or of the State but respective shares shall be assigned. Under GST, where centre collects the tax, it assigns the state’s share, while where the state collects tax, it assigns the centre’s share. If the proceeds are deposited in the Consolidated Fund, then every time there will be the need to pass an appropriation tax. Thus, under GST, the apportioning of tax revenue will take place outside the Consolidated Funds.