GST Presidential Order – A Sham



Goods & services tax Act has finally been applied on the State of Jammu & Kahmir . After receiving concurrence from the State Govt., the president of India  has issued an order under section 370(1)   – The constitutional(Application to J&K) Amendment  order 2017—which paves way for application of GST to State

The application of GST Act was preceded by introduction of a resolution in the legislature  by ruling coalition Govt. Strictly speaking, it was not required under the laid down procedure  as Concurrence to presidential order has to be accorded by the State Govt. which for all purposes means ‘State Cabinet’ of the day. The ruling coalition, reeling under intense dislike & distrust for using unbridled force & oppressive tactics  against people, wanted to  showcase her, otherwise missing, democratic & cooperative character by inviting discussions with the opposition on the proposed law. This drama continued for few hours without in any way contributing meaningfully  to the issue on hand. And since the outcome & conclusion was pre-scripted, the concurrence to the presidential ordinance was accorded in undue haste.  A comparable instance of such undue haste comes to mind  when  On July 30, 1986, the President made an order under Article 370, extending Article 249 of the Constitution to state in order  to empower Parliament to legislate even on a matter in the State List on the strength of a Rajya Sabha resolution. “Concurrence” to this was given by the Centre’s own appointee, Governor Jagmohan in a single day. G.A. Lone, a former Secretary, Law and Parliamentary Affairs, to the State Government described how the “manipulation” was done  by the then  evil & devil Governor, against the Law Secretary’s advice and “in the absence of a Council of Ministers.” ( Kashmir Times April 20 , 1995).

The concurrence was also accorded despite massive protests by Civil Society, trade bodies etc. which wanted the State Govt. to enact its own law on the subject with inbuilt  safeguards to protect political as well as fiscal autonomy of the state. In an unprecedented move, the State Govt. launched a massive crackdown on them  and put leading businessmen & civil society members behind bars. Three such persons are still under house arrest with all communications cut-off, till the time of writing this article. Pity a Govt. for muzzling  people’s voices  &  chop the hands that feed it by collecting & paying taxes on her behalf.

The State Govt. has now published the  presidential order in all leading dailies of the State. Few sections & provisos of the order have been red-marked to portray these as extra-ordinary achievements of the Govt to safeguard political & fiscal autonomy. Let us   discuss these one by one to evaluate their worth.

The first red-marked achievement is section 3 of the ordinance which says ‘Notwithstanding anything contained in this order, the powers of the State of Jammu & Kashmir as per section 5 of the constitution of  Jammu & Kashmir shall remain intact.’ It is a general  reiteration of an already existing position which doesn’t carry much sense. But as a wise friend tells me-‘Presume doubt, if a partner has to swear by his/her loyalty even after seventy years of  live-in relationship’ without, of-course being a doubting Thomas.

The next flagged section says ‘The legislature of state of J&K shall have exclusive powers to make laws in respect of imposition of any taxes as enabled by section 5 of the constitution of  State’. Well this provison must invite a mordant laugh. unless the State Govt. decides to take a queue from the Sikh & Dogra rule, when Kashmiris were taxed even for visiting a loo, this  provison has no utility  for the State. GST has brought within its net every conceivable item of good & service & nothing more remains for the State to tax under section 5.Even if agricultural income is to taxed at any future stage, that will be applicable to State through Income Tax Act. Hence this provision is redundant and only an attempt to raise a Teflon coating around a scratchy surface..

The next in line of so-called achievements is section 12 according to which the concurrence of our state representative in GST council  is necessary, if the said council takes a decision which impinges on the constitutional provisions relating to State of  J&K. Briefly speaking, GST Council is a creation of Indian constitution entrusted with all aspects of administration of GST Act. It will have Union Finance Minster, his deputy  and  finance or revenue Ministers (or their nominated representatives) of all states as members. The total voting power of the Council will be apportioned as one-third to Union & two-third to states. Coming to above J&K specific provision, one fails to understand that his mandatory  concurrence is limited to only those provisions which impinges on matters relating to J&K Constitution. In any case, such occasions will be rare or almost nil. There will, however, be no role of our representative, if Council takes a decision having major effect on our economy. For example, if the Council decides to impose highest rate of tax on Kashmir shawls or apples, our representative will have no role in the matter as the said decision doesn’t impinge on our constitution  but only our economy.

Lastly a reiteration of a known position once again that no  amendment in Indian constitution under article 368 shall have effect on our State unless applied through a presidential order in terms of article 370(1). We and the whole world  knows that it is this process which has been grossly abused & misused in collaboration with State quislings to subjugate us since that fateful day of October 1947.

(The author is a practicing chartered Accountant. Feed back at [email protected])


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