The Peter Pan syndrome: The problem of flood and the plight of Mithila

“The present-day Mithila is changing fast. Now we see a rampant craze to imitate the West. The impact of the present phase of the Economic Globalization is evident everywhere. Never in the past had our society faced a challenge of the sort that bedevils its cultural existence in our days. The young boys and girls are getting enticed to the neoliberal market culture of consumerism. The social segments, which are now emerging on economic affluence bred by marketization, are fast becoming monochromatic: all after money; and their gaudy life-style pampers and promotes limitless needs and boundless desires, and is flat to the point of obnoxious tedium. The society, which the present circumstances are evolving, is narcissistic. What is happening in Mithila is no different from what is seen elsewhere in our country. To this aspect of the matter I would come again in the Book III of this Memoir.The plate on which the Mithila region exists is hyperactive and is constantly drifting north causing frequent earthquakes. A whimsical friend once told me

with reference to Mithila : while the subjacent earth of the region is hyperactive the superjacent biomass (he meant human beings) is almost inert! He made a veiled reference to seismic activity under the Earth crust, and the indolence which had overtaken the people of Mithila. But the most devastating calamity that visits this land annually is Flood. We are told that the over-flooding is a punishment for playing imprudently with the ways of nature through rapacious deforestation, and our ‘foolish’ meddling with the courses of the rivers descending from the Himalayas in Nepal. Massive destruction of forest in Nepal has led to massive over-flooding in Bihar causing criminal soil degeneration, inundation, erosion and heavy siltation of the rivers raising every year the levels of the river-beds. It is high time to enter into an understanding with the Government of Nepal that the growing deforestation of the Himalayas and their foothills must end. The problem of annual devastating floods cannot be tackled unless there is a close cooperation between the two Governments as most of the rivers flow from the   Nepal Himalayas. It is hoped that Nepal would behave as a good neighbour obedient to the ‘Standard of Economic Good Neighbourlines’, now considered a norm of public policy under international law.”

  

        [Quoted from Shiva Kant Jha’s  autobiographical memoir, ON THE LOOM OF TIME, Portrait of My Life and Times pp. 29-30  at http://www.shivakantjha.org/pdfdocs/on_the_loom_of_time_2nd_edition/15_loom_01.pdf ]

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Right Perspective on the role performance of the IRS and the IAS (by Shiva Kant Jha)

This is an old controversy that has acquired timely relevance because of the recent controversy caused by the sharp difference in the perception of the roles of the IRS and IAS. It is worrisome that after 18 years of my retirement from the IRS, I  am witnessing same combative wrath that had shocked us in 1965. I had written about it in my autobiographical memoir, On the Loom of Time,  [ published by the Taxmann, Delhi, in 2011].  An extrctat from its Chapter 17 (pp. 228-229) is quoted hereunder for general information. The second edition of the text of the said book can be read on my website: shivakantjha.org [http://www.shivakantjha.org/pdfdocs/on_the_loom_of_time_2nd_edition/31_loom_17.pdf].  The unwholesome controversy proves what Burke had said long back:  To tax and to please, no more than to love and be wise, is not given to men.” I  had quoted this in the said Chapter.

“(i) I joined the statutory Civil Service

At the IRS (Staff) Training College, Nagpur, Shri V. V. Badami, who later became the Chairman of the CBDT, told us, whilst delivering his first lecture that the Indian Revenue Service was not a general civil service: it was a statutory civil service for which the governing norms were prescribed in the Income-tax Act itself. He told us to keep in view certain constitutional principles of fundamental importance. The Executive Government exercises powers over taxation in accordance with the provisions of our Constitution. In our country, the Executive is a creature of our Constitution with prescribed duties and conferred powers. The executive power is exercised in terms of Articles 53 and 73 of the Constitution. The Article 265 states, with wonderful precision, the norm of Parliamentary control on ‘taxation’. An exclusive power over taxation had been acquired by Parliament in England after the Glorious Revolution 1668. The Executive had, thus, lost all powers on ‘taxation’; and it could exercise these only in conformity with the law. Our Constitution’s provisions are the same as under the British constitution.

We learnt that CBDT was established by the Central Board of Revenue Act, 1963. The Act established separate Central Boards: one for Direct Taxes, and the other for Excise and Customs. The section 3 of the said Act prescribes: “each such Board shall, subject to the control of the Central Government, exercise such powers and perform such duties, as may be entrusted to that Board by the Central Government or by or under any law.” Section 4 authorizes the Central Government to “make rules for the purpose of regulating the transaction of business by each Board”. The following two important propositions emerge:

  • (i) the CBDT “shall, subject to the control of the Central Government, exercise such powers and perform such duties, as may be entrusted to that Board by the Central Government”; and/or

(ii)        the CBDT shall exercise such powers and perform such duties, as may be entrusted to that Board by the Central Government by or under any law.

It follows that in exercise of the functions entrusted to the CBDT by the statutes, the CBDT is not “subject to the control of the Central Government”. It discharges the Parliamentary commission, and for the propriety of its acts, it is accountable only to the Courts on the points of legality. The tax authorities can be mandated to discharge their public duty, and their orders can be quashed on standard grounds for which remedy for Judicial Review is granted by our superior courts (on the counts of illegality, irrationality, procedural impropriety and also breach of proportionality). The Central Government is, thus, interdicted by law from trespassing on the Board’s spheres of statutory functions which are controlled and guided only by the terms of the statutes. But functions, which are analytically administrative, are under the control of the Central Government to be exercised through the CBDT. These provisions reflect certain constitutional principles of fundamental importance. Without going into details, I would state them thus diagrammatically:

 Explanatory comments:

(A) Governed by the Business Rules.

(B) Governed by the Rules of Business.

(C) Powers to be exercised in accordance with the statute ONLY.

The Revenue Department of the Government would be a clear trespasser if it interferes in (C). The Executive Government’s power is derived simply from Art. 53 of the Constitution: and it would be acting ultra vires if it interferes in the exercise of the legal duties prescribed by the law framed under the discipline of Art. 265 of our Constitution. The Income-tax Act is framed in exercise of power under Article 265 of our Constitution”.