SEPARATION OF EXECUTIVE AND LEGISLATURE- FULL OR PARTIAL
INTRODUCTION:-
The Constitution of India is the supreme law of India. It was passed by the Constituent Assembly on November 26, 1949 and came into existence on January 26, 1950. It declared the Union Of India to be a sovereign, democratic, republic, assuring its citizens of justice, equality and liberty and to promote among them all fraternity; the words “socialist”, “secular” and “integrity” and to promote among them all “fraternity” ; were added to the definition in 1976 of Constitutional amendment. After coming into effect, the Constitution replaced the Government of India Act, 1935 as the governing document of India. Being supreme law of the country, every law enacted by the government must conform to the constitution. Dr. Bhimrao Ambedkar, as Chairman of the Constitution Drafting Committee, was the Chief Architect of Indian Constitution. The first president of the Constituent Assembly was Sachidanand Sinha later, Rajendra Prasad was elected president of the Constituent Assembly. The member of the Constituent Assembly met for the first time in the year 1946 on December 9.
AN OVERVIEW
The Constitution of India states that the Indian Executive is a major branch of the Parliamentary form of Government. The President, Vice-President, Council of Ministers, governor and Attorney General of India are some of the prominent heads who plays successful roles in executive branch.
The parliament of India is the federal and supreme legislative body of India. It consists of the office of President of India and two houses, the lower house, known as the Lok Sabha and the upper house, known as the Rajya Sabha. Any bill can become an act only after it is passed by both the houses of the parliament and assented by the President. Lok Sabha is also known as the “House of People”. It is more powerful of the two houses and can precede or overrule the Rajya Sabha in certain matters.
The Separation of Powers, also known as trias politica, is a model for a governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estate, each with separate and independent powers and areas of responsibility. In Indian Constitution there is express mention that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by Art. 53(1) and 154(1). Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. India democratic system also offers a clear separation of power under LOk Sabha, Rajya Sabha, and the President of India, who overlooks independent governing branches such as the Election Commission and the Judiciary.
This article is wriiten by Mr. Chaitanya M. Kulkarni. The author is a Law Student pursuing from Dr. Babasaheb Ambedkar College of Law (M.B), Nagpur. He ca ne reached at +91-9028493260.
In the Indian system it is found that the civil servants who are part of the administration i.e., the executive organ of the state carry forward the ministerial orders which are generally formulated as a result of the lengthy legislative discussions. In such cases we find a nexus of executive and legislative powers and this is a very key feature at the central and as the federal state levels.
It has been well said by Lord Action: -
“Power corrupts and absolute Powers tends to corrupt absolutely”.
Conferment of power in a single body leads to absolutism. But, event after distinguishing the functions, when an authority wields public power, then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power. Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to follow it absolutely.
The status of modern state is a lot more different than what is used to be. It has evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein, it has multifarious roles to play, like that of a protector, controller and provider. This omnipresence of the state has rendered its function becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers. According to this differentiation one organ can’t claim the powers essentially belonging to other organ because that would be a violation of the principle of separation of powers. It has just happened that the other two organs, namely, judiciary and legislature, became unsuitable for undertaking the functions of this welfare state and as a consequence the functions of the executive increased. As controller and provider, the judicial processes were very time consuming and the legislature was overburden with work. Therefore, it was in natural scheme of things which made the administrators end up performing a variety of roles in the modern state including those of legislature and judiciary too, to an extent.
CONCLUSION:-
In a democratic country goals are enshrined in the constitution and the state machinery is then setup accordingly. And here it can be seen that constitutional provisions are made as such to support a parliamentary form of government where the principle can’t be followed rigidly. Constitutionalism, the philosophical concept of the constitution also insists on limitations being placed upon governmental power to secure basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there is no strict separation of powers but the functions of the different branches of the government have been sufficiently differentiated. There should be cooperation and not unnecessary interference between the organs.
SUPREME COURT VERSES THE STATE?
Given below is an interesting article I found while reading the daily “Indian Express” on Saturday 09-July-2011. The article reveals the astonishing fact that the Middle Class (working class) is a source of “Black Money”.
In the Supreme Court’s recent black-money order, the case against the state is made as follows. First, by following “neo-liberal” policies, the state has destroyed governance. “The paradigm of governance that has emerged, over the past three decades, prioritises the market, and its natural course, over any degree of control of it by the state.”
Second, that this lack of governance has encouraged both the generation of black money and its transfer to tax havens abroad. “The issue of unaccounted monies held by nationals, and other legal entities, in foreign banks, is of primordial importance to the welfare of the citizens. The quantum of such monies may be rough indicators of the weakness of the state, in terms of both crime prevention, and also of tax collection. Depending on the volume of such monies, and the number of incidents through which such monies are generated and secreted away, it may very well reveal the degree of ‘softness of the state’.”
Third, that not collecting “the large quanta of monies stashed abroad would also indicate a substantial weakness in the capacity of the state in collection of taxes on incomes generated by individuals and other legal entities within the country.”
Fourth, that this black money prevents the government from serving the aam admi: “In addition, such large amounts of unaccounted monies would also lead to a natural suspicion that they have been transferred out of the country in order to evade payment of taxes, thereby depleting the capacity of the nation to undertake many tasks that are in public interest.”
Fifth, that this generation of black money is not only anti-national, but threatens the security of the state. “The worries of this court are also with regard to the nature of activities that such monies may engender, both in terms of the concentration of economic power, and also the fact that such monies may be transferred to groups and individuals who may use them for unlawful activities that are extremely dangerous to the nation, including actions against the state.”
Sixth, and finally, that given these circumstances and tragic reality, the court has to step into a domain not necessarily its own. By doing so, the court is rendering an important service to the nation — stopping the flow of black money, recovering it, and thereby engendering a new order: “The resources of this court are scarce, and it is over-burdened with the task of rendering justice in well over a lakh of cases every year. Nevertheless, this court is bound to uphold the Constitution, and its own burdens, excessive as they already are, cannot become an excuse for it to not perform that task. In a country where most of its people are uneducated and illiterate, suffering from hunger and squalor, the retraction of the monitoring of these matters by this court would be unconscionable.” (All quotes are from the order.)
Black money comes via tax evasion; while tax evasion is illegal, sometimes it can be in response to bad laws. When Indira Gandhi instituted a 97 per cent marginal tax rate, practically every bureaucrat who implemented the law was creating black money. That was then; as also was the sad reality when the Supreme Court, in effect, rubber-stamped the imposition of the Emergency.
How valid is the Supreme Court’s black-money case against the government? Not very. First, the size of income-tax evasion is relatively small, and much smaller than the Supreme Court’s contention of astronomical sums. In 2010-11, total income tax payment, if every individual was fully compliant, and paid all the taxes owed, would have been close to Rs 332,000 crore. Actual tax collected was around Rs 150,000 crore and so black income was around Rs 184,000 crore, or about 2.5 per cent of India’s GDP. Not a small amount, $40 billion, but not astronomical.
Most interesting is the distribution of this black money — who generates it? Not surprisingly, the group with the largest aggregate income: the aam admi. The poorest income tax group, Rs 2-5 lakh, accounts for close to 80 per cent of all taxpayers, and close to 63 per cent of all taxable income. It is also the group with a large proportion of self-employed individuals. And also the group with the lowest tax compliance rate — around 36 per cent, or slightly more than one-third of those eligible to pay taxes in this group, actually pay taxes. This group does not come under the TDS automatic-payment system; it comprises of lawyers, doctors, and shopkeepers.
The richest group, the one I infer that the Supreme Court thinks is not paying taxes and sending this money overseas, actually has the highest compliance rate: around 60 per cent. Black income generated in this group? About Rs 37,000 crore in 2010, or only $8 billion annually. Astronomical? By no stretch of the imagination. Even the total amount of income-tax evasion black money generated each year in neo-liberal India is not astronomical.
Well-meaning people often confuse the low level of the population paying taxes with black money. The reason for the former is that India is not a rich country; one has to be in the top 20 per cent of the working non-agriculture economy to be eligible to pay direct taxes. And about 40 per cent of Indians pay taxes, and most of the non-compliant are the not-so-rich middle-income people. The aam admi is the number-one culprit in generating black income, but it is a bit unseemly to make a federal case of this reality.
Case dismissed.
(The writer is chairman of Oxus Investments, an emerging market advisory and fund management firm)
NO NEED TO FILE INCOME TAX RETURN IF…..
The Central Board of Direct Taxes has notified the scheme exempting salaried taxpayers with total income up to Rs.5 lakh from filing income tax return for assessment year 2011-12, which will be due on July 31, 2011. [Circular No.402/92/2006-MC (14 of 2011)]
Individuals having total income up to Rs.5,00,000 for FY 2010-11, after allowable
deductions, consisting of salary from a single employer and interest income from deposits in a saving bank account up to Rs.10,000 are not required to file their income tax return. Such individuals must report their Permanent Account Number (PAN) and the entire income from bank interest to their employer, pay the entire tax by way of deduction of tax at source, and obtain a certificate of tax deduction in Form No.16.
Persons receiving salary from more than one employer, having income from sources other than salary and interest income from a savings bank account, or having refund claims shall not be covered under the scheme.
The scheme shall also not be applicable in cases wherein notices are issued for filing the income tax return under section 142(1) or section 148 or section 153A or section 153C of the Income Tax Act 1961.
THE MONEY LINE
Black Money issue has taken the hot seat in all the countries & the same is in India. I found a this wonderful article on newspaper daily “The Indian Express” on 05 Feb.2011 which gives you the Insight about how much the money have been parked in Tax heavens and how the estimates vary from one organization to other.
For all its political uses, the estimate of India’s black money is wildly overblown The BJP estimate of fresh black money flows in India, amounting to 7.5 per cent of GDP, are evocative but sadly out of touch with reality and involve an overstatement of at least five times the actual amount.
BLACK money -how much is it? Over the last few months, starting with the Global Financial Integrity (GFI) report on India, rumours have been rife that black economy in India is close to 50 per cent of the economy. And that threefourths of this money has flown out of India -capital flight -and found a safehaven in tax shelters abroad.
The final draft of this seemingly authoritative report came out in November 2010 and was timed perfectly with the scam storm prevailing in India at that time. Recall that the story of the CAG report, and the Radia tapes, also broke in midNovember 2010. The cumulative effect of these events was to set the Indian government, politicians and civil society on fire. And not to be left behind, in response to a PIL, the Supreme Court has asked the government to release the names of the tax evaders with stashes abroad.
The BJP had first introduced the draft conclusions of GFI at the time of the Lok Sabha elections in May 2009.
Led by the octogenarian Advani, the BJP thought this was an issue guaranteed to win over votes. It set up an inhouse cell to study the draft GFI report and make recommendations. Bring back the black money, the BJP thundered. There were few listeners as the BJP suffered a large defeat. But now with the CAG’s wild-eyed and wild estimate of Rs. 1.76 lakh crore as the cost of the 2G scam, the claims in the GFI report have taken on a new meaning and urgency.
“Bring back the black money to help the poor of India,” the BJP thunders now.
And this in the name of the poor call has been applauded and duplicated by Rahul Gandhi as he thunders the same. For once, the right, Left and centre, all agree that about 50 per cent of India’s GDP (around $500 billion) is stashed abroad and needs to be brought back. Think how much poverty all that will eradicat -and the government will be able to spend all this money on schools, hospitals, nutrition, and the poor. All wrongs will be made right.
The Ministry of Finance has also joined in. The dosomething-do-good euphoria has seized Pranab Mukerjee and he has promised to address the issue in the forthcoming budget. He has called for research “bids” to study this important subject.
The article have been authored by Surjit S Bhalla. The writer is chairman of Oxus Investments, an emerging market advisory and fund management firm.
Clearly, the study of black money is an important issue.
And tax evaders have to be punished. My estimate of black money in India is based on private income tax collections and details about the calculation are contained in `Tax Compliance and Tax Rates’ (in the book, India on the Growth Turnpike, Essays in Honour of Vijay Kelkar).
And how much might total black money be in India in 2009? Only about Rs 1 lakh crore, and given our GDP is Rs 60 lakh crore, that is about 1.5 per cent of GDP. These numbers are shockingly small and especially small compared to the GFI estimate which seems to be universally accepted. The GFI numbers imply a black money flow of 7.5 per cent of GDP every year, that is, each year black money equal to five times my estimate flows into the Indian economy. Both numbers cannot be right. Which of these two numbers are closer to the truth?
The definition of black money is money that has some tax on it and is not declared.
Besides personal tax, there are other forms of tax evasion -property tax, over and 
underinvoicing of trade, and non-declaration of corporate income.
No doubt these forms of tax evasion are present but their magnitudes pale in comparison with the magnitude of income tax evasion. For example, corporate income tax collected in 2009 was Rs 2.6 lakh crore, an amount suggest ing very little tax evasion.
Some back-of-the-envelope calculations yield an insight into the likely magnitude of black money from income tax evasion. In 2009, India’s GDP was close to Rs 60 lakh crore; and income subject to income tax close to Rs 50 lakh crore.
But this income accrues to the entire population, and even the poor. Only the top 20 per cent of the Indian population has incomes that make them eligible to pay tax. And this 20 per cent has 45 per cent of total income. Thus, those paying tax receive Rs 23 lakh crore as income. It is inconceivable and outright wrong to think that a third of the income received as taxable income is evasion of taxes. The average personal income tax rate in India in 2009 was about 10 per cent, that is, the government should have collected Rs 2.3 lakh crore as tax. In 2009, it collected Rs 1.3 lakh crore.
Thus, the black money generated in 2009 was approximately Rs 1 lakh crore.
If the luminaries mentioned above are serious about their concern, then they should get ready to catch the aam aadmi taxpayer in this country -the one that earns less than Rs10 lakh a year, and especially the ones earning less than Rs 5 lakh a year (and more than Rs 2 lakh to be eligible for tax payment). This is the “missing middle” amongst Indian tax payers. It accounts for more than two-thirds of the black money in India. And the aam aadmi pockets this amount of around Rs 0.6 lakh crore or about 1 per cent of GDP.
Screaming about non-existent money accruing to the rich will not make this money come alive.Whatwilldosoisalowering of tax rates -something the UPA government had promised before it chickened out for lack of thought and clarity and guts to face those who live by fictitious numbers.