Concept
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.
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