Mirror of Justice

Moral Law, Justice, and Evolution

July 17th, 2009 at 08:57pm Under Criminal Law

We already mentioned intelligence. Remember in the article: How Do We Account for Instinct? we divided it up into two broad categories, one of which we call instinct and the other a type of decision-making ability? We grouped the lower forms of animals into the first category and humans into the second. Other creatures, we allowed, appear to operate using a combination of instinct and “thinking.”

But, of course, it is really more complicated than that. People have instincts too. The sexual drive, a mother’s love for her offspring, and a basic desire to survive are undeniable human instincts. Each of these traits are shared to one degree or another with animals. However, we seem to have something more than mere instinct.

Somehow or another we find ourselves with a moral sense of right and wrong. We feel as though we know somethings are right and others are wrong. But then again, is what we consider right and wrong merely a subjective whim? Or is it possible that there might be a real, honest-to-goodness, objective standard for good behavior?

Some people claim there’s no fixed standard for decent behavior. It varies over time and from one culture to another. Different civilizations and different ages have had very different ideas on morality, they say. And they seem to have a point.

Manners and Styles

Certainly manners, styles, and dress codes change over time. The past half century has seen considerable change in the United States. In 1960, most women worked in their homes raising children. They usually wore dresses, and those dresses were of a certain conventional length.

Men were expected to be the breadwinners. They wore their hair short and rarely had facial hair. Children addressed grownups as “Sir” or Ma’am” and in general were taught to be deferential to adults. Unless you were well acquainted, it was Mr., Mrs, or Miss whatever their last-name-was. Times have changed!

Much of what passes as normal behavior nowadays would have been socially unacceptable just thirty years ago. And it works both ways. Many of the things our ancestors did in the past would not be tolerated today. A few hundred years ago, capital punishment was the approved punishment for crimes ranging from petty theft to treason. Witches were hung or burned. And slavery was by and large considered an acceptable practice.

Moral Principles

Obviously some of the things our forefathers believed are social taboos today and vice versa. However, that’s not the whole story. While some values can and do vary, others evidently do not. In his book, Mere Christianity, C.S. Lewis points out that if you take the trouble to compare the moral teachings of ancient Egyptians, Hebrews, Babylonians, Hindus, Chinese, Greeks, and Romans, you will be struck with how much they have in common with each other and with us today.

Fair play, unselfishness, courage, faithfulness, honesty, and truthfulness have always been admired, whereas treachery, murder, robbery, theft, and rape have always been condemned. Men have disagreed over whom you should be unselfish to – just your family, your country, or to everyone.

But none have advocated putting yourself first. Some cultures have allowed more than one wife, but none allow you to have just any woman you want.

Golden Rule

The most universal concept of all is also the most basic. We call it the Golden Rule. Most moral teachings state it in a negative form such as “Never do to others what you would not have them do to you.” This fundamental rule of conduct turns up in rabbinical Judaism, Hinduism, Buddhism, and Confucianism.

We also see it in Greek and Roman ethical teachings and even in Old Norse proverbs. Jesus Christ turned it around and put it in its positive form two thousand years ago. “Do to others what you would have them do to you.”

Is any other type of morality possible? Lewis challenges us, “. . . think what a totally different morality would mean. Think of a country where people were admired for running away in battles, or where a man felt proud of double-crossing all the people who had been kindest to him. You might as well try to imagine a country where two and two make five.”

The Moral Law

It sounds like the rule of right and wrong, the moral law, or whatever you want to call it, exists on two separate levels. One is arbitrary. Fashion, convention, or taste sets the tone for acceptable behavior on this level.

Then we see another moral level beyond the trends of society. Here we find a permanent core of values. These fundamental guides for human behavior seem to be deeply ingrained in mankind and are not swayed by time and place circumstances.

Everyday conversation suggests that most of us at heart believe in a real right and wrong. Take arguments for example. People young and old, educated and uneducated, often say such things as: “Come on, you promised.” “Hey, you broke in line ahead of us. That’s not fair.” “Why don’t you help me? I helped you when you needed it.”

C.S. Lewis tells us that remarks of that sort don’t just mean that the other fellow’s attitude doesn’t happen to please the speaker. There is something else involved. The one who makes the complaint is appealing to a certain standard of behavior which he expects the other person to know about.

And usually he is right. The other man rarely replies, “I don’t give a hoot about fairness.” No. He makes out that what he’s doing isn’t really unfair after all. He claims to have some special excuse which lets him off the hook for not living up to his promise this time, or for breaking in line, or for not helping you on this occasion.

It looks as though both sides really agree there is a law or rule of fair play. Quarreling means trying to show the other person is wrong. What’s the sense in trying to do that unless both sides agree as to what is right and wrong. Just as in basketball, to paraphrase Lewis’ example, there’s no sense in saying a player committed a foul unless there is an agreement on the rules of basketball.

Ignorance of the law is no excuse. Thieves cannot excuse themselves saying they didn’t know stealing was a crime. Murderers can’t get away with murder, claiming they didn’t know murder was wrong. The underlying idea is that all citizens are expected to understand that stealing and murder are wrong.

Can you imagine an attorney in a request that the case be dismissed against his client, saying, “No judge, I don’t think my client should be held responsible for murdering his wife and six children. After all, the defendant doesn’t have a law degree. Why should we expect him to know all the finer points of the law?”

On the other hand, lawyers do try to excuse their clients by pleading “temporary insanity.” Doesn’t that let the cat out of the bag? What they are saying is that for one reason or another, the accused was momentarily mentally unbalanced and didn’t understand he was committing an act which all of us know to be wrong. Had the defendant been sane at the moment, he would have recognized and upheld the same Rules for Right Conduct that all the rest of us sane people do.

They seem to be affirming that criminal codes are based on certain moral truths. In fact, federal and state criminal laws wouldn’t make sense unless there were a real standard of decent behavior which the “sane” criminal knows as well as we do and ought to have practiced.

Sometimes right and wrong are so obvious, no one seriously questions it. After World War II, Germany was widely denounced for their war crimes. But as Lewis observes: “What was the sense in saying the enemy were in the wrong unless Right is a real thing which the Nazis at bottom knew as well as we did and ought to have practiced?”

Earlier we asked, is our idea of right and wrong a subjective whim or a real objective standard for good behavior. Evidently it is both. Manners, styles, clothing, and opinions on any number of subjects vary over time and location.

Then again virtues such as courage, faithfulness, and honesty have always been praised. Likewise, vices such as treachery, murder, and theft have been universally condemned.

Civilizations throughout history have reflected these eternal values. And they are still with us today. Much of what we think, much of what we say, and much of what we do would be utter nonsense if there were not a true moral standard of right and wrong.

Now if we can agree that there really is an objective standard of right and wrong, we can go on to our next question. Namely where does this standard come from? Some say mankind invented the moral code because civilization couldn’t function without basic rules for getting along. Through education, they passed these rules for right living on down from one generation to the next.

Others say the same Outside Source which designed the human body also produced the moral code as a guide for our behavior. The moral law was imprinted in humans much the same as instinct. Who’s right?

Before we take up that question, let’s first consider an entirely different subject – mathematics. Math, as we know, is based upon certain objective truths. Algebra, calculus, and trigonometry are all derived from solid mathematical principles which have been around long before mankind discovered them.

And if we somehow lose knowledge of them again, those principles would still be there awaiting future generations to rediscover them. Therefore, we can say that mathematical truths exist separate from any human knowledge of them.

Notice we say such things as: Pythagoras discovered the principles governing the right-angled triangle. Or Descartes discovered the principles behind analytical geometry. We don’t say they “invented” the principles. They were already there. In the same way we speak of people discovering other scientific facts.

In 1781, William Hershel discovered the planet Uranus, and in 1930. C. Tombaugh discovered Pluto. Uranus and Pluto have probably been around as long as our own planet. They would still be there even if we had never learned of their existence.

Bearing that in mind, let’s return to the moral law. The most reasonable assumption is that individuals down through the centuries discovered and rediscovered certain fundamental truths of right and wrong. They didn’t invent them any more than Pythagoras invented the principles governing the right-angled triangle or William Hershel invented Uranus.

The moral law for decent behavior was already there. Men and women merely looked into their own hearts, their own conscience, and there they found a bundle of “oughts.” “Oughts” such as: I ought to keep my promises, even if I would rather not. I ought to tell the truth, even if it makes me look like a fool. I ought to finish my assigned duty, even though I would rather do something else. I ought to remain true to my spouse, even if I am attracted to another. I ought to be honest, even if it would be easy to cheat. I ought to treat the other fellow the same way I would like to be treated, even if I think he is a jerk.

Apparently, none of us made up this moral code of “oughts.” Sometimes it would be rather convenient if they would just go away. But they don’t. They continue to press in on us whether we like it or not.

One thing more, if man created the moral law himself, we would expect to find each society and each civilization developing their own set of basic principles. Our clue is that they did not. While they came up with widely different customs, conventions, and manners, every civilization, past and present, discovered the same bundle of inconvenient “oughts” to direct their lives. Isn’t that curious?

It looks very much like the Outside Source is behind all of it. What does the moral law tell us about this Outsider? Obviously, he’s not a create-’em-and-let-’em-run-amuck sort of being. He’s not a neutral, hands off, passive creator. Instead we find a Moral Agent who has loaded the dice trying to influence our thinking.

Freedom of Choice

He implanted basic instincts in us much as he did the animals. But he gave us something other creatures apparently didn’t receive. This Moral Agent programmed a series of “oughts’ into us to guide our behavior. Clearly, he wants us to keep our promises, tell the truth, do our duty, remain faithful, be honest, and to do to others the same way we would have them do to us.

Notice though, however much the Moral Agent wants us to act in a certain way, he does not force us. He allows us free choice. We can chose to obey the moral law, or we can reject it.

Justice

Before we leave the moral law, I would like to draw your attention to an enigma. Our natural desires in life seem to be satisfied by one means or another. We thirst; water quenches our thirst. We hunger; food quenches our hunger. We want sex; our mate quenches our desire. Our human nature appears to be in close harmony with what life has to offer; so much so, it looks like someone planned it that way.

Give them a desire, then give them a way to satisfy it, seems to be the idea. It keeps us busy doing the things that Whoever-made-us wants us to do. And it all works well, up to a point. Then we run into something that doesn’t quite pan out.

Deeply embedded in our conscience we find a penchant for justice or fair play. We are not neutral observers; we are moral creatures. We want the good guys to win. We like happy endings. And we cheer when good triumphs over evil.

About the only place that happens, however, is at the movies, old movies at that. Real life isn’t nearly as accommodating. In fact, life often seems inherently unfair.

Consider the following: One baby is born to wealth, another to poverty. One is born to a family that loves him, another to a family that abuses him. One is aborted, the other is not. I don’t need to tell you, there is nothing fair about any of that.

Fortune seems to smile on some and frown on others. We see geniuses, and we see idiots; women with great beauty, and women who are downright ugly; people with many talents, and people with no talents at all; and those who are healthy, and those who are sickly or physically deformed. What’s fair about that?

Let’s take it a step further. Some people are endowed with good looks, sound nerves, wit, charm, and a pleasing personality. Popularity and admiration come fairly easy for them. They fit in naturally wherever they go. They don’t need to work at it. It’s a gift. They are the blessed. They are life’s winners.

At the other end of the totem pole, it’s an entirely different story. There we find the homely, dull, slow-witted, timid, warped, lonely people or the passionate, sensual, unbalanced people. By no choice of their own, many are born into homes filled with hatred, petty jealousies, and constant bickering. Others are tormented by sexual perversions or nagged by an inferiority complex. No matter how hard they try, they don’t fit in anywhere. They are life’s losers – unappealing, unloved, and often the object of ridicule and jokes. These folks will be quick to tell you, “life is unfair.” And they are right.

Notice, what we have mentioned so far are traits and circumstances over which we have little or no control. What about those things over with we do have control? Do we find fairness there?

Some people work long and hard, day in and day out, sunup to sundown. Others do nothing they are not forced to do. Both live out their seventy or so years and die. Memory of both soon fades away. All they had, whether plenty or little, is left to someone who did not work for it. Somehow that doesn’t strike us as fair either.

And what of the honest, the faithful, the kind, and the generous? Do they not meet the same fate as the hypocrite, the unfaithful, the cruel, and the greedy? Death overtakes them all, good or bad. And soon they are forgotten. Certainly, that’s not fair. Where are the scales of justice?

But it is even worse than that. You and I know that as often as not, it is the bad man who prospers while the good suffers all kinds of afflictions. The bully wins, and the weak pays the price. The cheater gets off scot-free, while the innocent is accused. Crime all too often does pay. The criminal really does get away with murder. His victim suffers the loss. Justice is stood on its head.

We know life is full of injustices. No one denies it. They spring up everywhere. Our sense of fair play tells us something is fundamentally wrong. Something is out of kilter. We long for a world turned right side up. We want those who have been forced to suffer to receive their just compensation.

We want those who have benefited others to receive their just reward. We want those who have abused others to receive their just punishment. Anything less would be a travesty of justice.

Our True Home

Why then, are we given a longing for justice and forced to live in an unjust world? Has the same Agent who provided so generously for all our other needs, created an elaborate hoax just to frustrate our desire for justice? Or could it be that this world is not our final destination?

Perhaps we were made for a better world, a world without death, suffering and injustice. We might find our ingrained sense of fair play to be in complete harmony with the reality of our true home.

Evolutionists have nothing to say about justice or fair play.

Questions to Consider:

1. If we are nothing more than the chance meeting of random atoms of matter, why are we concerned about justice?

2. One more question: If we are nothing more than the chance meeting of random atoms of matter, how did we ever acquire the intelligence to figure out that we are nothing more than the chance meeting of random atoms of matter?

Sources of Hindu Law

July 13th, 2009 at 08:57am Under Criminal Law

SOURCES OF HINDU LAW

    India is a huge country not only in terms of its geography but also its population, which has various religions, customs and practices. However, India has two main personal laws i.e. Hindu law and Muslim Law. Before moving ahead, I would like to define the Law – ‘Law is a large body of rules and regulations based mainly on general principles of justice.’

      Hindu Law is a personal Law (Law of Marriage, Divorce, Adoption, inheritance etc) evolved through long period of time from many sources (mentioned below) by Hindu religious community of India. Therefore, I love to call it ‘Sedimentary Law’ because Laws from various sources Sedimented and consolidated into Hindu Law. The important sources of Hindu Law are:

     1)  Ancient Source

     2)  Modern Source

          Ancient source is the main source of Hindu Law, which further subdivided into viz –

a) Sruti: the literal meaning is – ‘what was heard’, and it is originated from Vedas i.e. Rig, Yajur, Sama, and Atharva Vedas. Basically, it is praise in the forms of hymns of the earliest Hindu tradition which deals – types of marriage, adoption, partition etc.

b) Smriti: literally means – ‘what is remembered.’ It is also known as ‘Dharma Sutras’ and available in the prose from. The important Smritis are ‘Manu Smriti, Yagnavalkya Smriti, Narada Smriti etc and, it deals the civil and criminal law, procedural law, marriage Law etc.

c) Commentaries: the discrepancy between above two gives rise a third one i.e. ‘Commentaries, which later on beget two schools i.e. Mitakshara (Vijyaneshwara school) and Dayabhaga (Jimuthvahana school) associated with particular areas.

d) Customs: it is a set of rules and norms, practice by particular society for a long period of time. However, ‘customs arise whenever a few human beings come together as no association of human beings can exit permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations’ (Vinogradoff, Collected Papers). “Indeed custom is coeval with the very birth of the community itself.” (Jurisprudences).

      Modern Source refers to the rules and regulations established through legislation by educated and intellectual people. These laws almost codified laws such as –

a) Hindu Marriage Act (1955),

b) Hindu Succession Act (1956),

c) Hindu Minority and Guardianship Act (1956) and

d) Hindu Adoptions and Maintenance Act (1956)

After independence (15 August 1947), India constituted its own Constitution, where India defines itself as a secular country, like this given space to flourish all religions with its own customs and laws. Therefore, the Indian Legal System is a Common Law-cum-Civil Law. Apparently, Hindu Law is a personal law and applicable to person and family relations only.

The Tribunalization of Justice: the Constitutional Validity of the National Tax Tribunal

July 11th, 2009 at 12:20pm Under Appeals and Writs

Introduction:

The passing of the Forty Second Amendment to the Constitution of India in 1976, tribunals became key dramatis personae in the justice delivery system. In order to achieve the objectives of the amendment, which was to ensure speedy disposal of cases, an array of tribunals were set up. These included the Administrative Tribunals, the Rent Control Tribunals and also Tax Tribunals. The constitution and functioning of these tribunals have been controversial and intensely debated. The Constitution of the National Tax Tribunals, through the passing of the National Tax Tribunal Act, 2005 in pursuance of Article 323-B (1) (a). The Act provides a machinery for the adjudication by the National Tax Tribunal of disputes with respect to levy, assessment, collection and enforcement of direct taxes and also to provide for the adjudication by that Tribunal of disputes with respect to the determination of the rates of duties of customs and central excise on goods and the valuation of goods for the purposes of assessment of such duties as well as in matters relating to levy of tax on service. The Act is bound to raise constitutional issues of immense significance as to validity of conferral of the power and functions of the Tribunal, the exercise of such powers and functions, and the concept of judicial review under the Constitution.

The Edict Machinery of Tribunals in India:

The concept and the constitution and functioning of the Tribunals established under Administrative Tribunals Act. The exclusive jurisdiction hitherto have the benefit of by the Tribunals in service matter and distinguish the High Courts was put at stop partially by the Supreme Court of India in its landmark judgment in ‘L.Chandra Kumar Vs.Union of India and others. The Supreme Court diversified and re-distributed the jurisdiction of service matters etc in between these Tribunals for which purpose they have been established and High Courts as per the spirit of the Constitutional mandate enunciated by the framers of the Constitution, keeping in

view the ‘Basic Structure Theory’ and the provisions contained under Article 226,227, 32 and Articles 323 A and 323 B of the Constitution of India.

The salient feature of our Constitutional system that whenever new legislations or enactments are passed, either by Parliament or Legislative Assemblies, it is generally found that, they, being tested in courts of law, either on their validity as a whole or certain provisions of such acts if they are offending any provisions of Constitution, any public policy or established legal principles. Therefore, no exception was shown to the ‘Administrative Tribunals Act, 1985, enacted in terms of Article 323 –A of the Constitution of India. Consequent upon the establishment of service Tribunals in the country ‘under the Administrative Tribunals Act, 1985, a string of litigation had erupted before the High Courts of several States and also in Supreme Court, questioning the validity of certain provisions of the Act and also ultra vires of Articles 323-A and 323-B. Firstly, the ‘Apex Court’ by a Five Judge Constitution Bench, headed by the then Hon’ble Chief Justice, Justice P.N. Bhagwati, examined the constitutional validity of Article 323-A and its provisions in S.P. Sampath Kumar Vs. Union of India and others3 said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal. Thereafter, a seven Judge Constitution Bench of the Supreme Court in ‘L. Chandra Kumar case’ while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in ‘S.P. Sampath Kumar’s case’, but also held that, the Tribunals are supplementary in their role and the power of ‘Judicial Review’ vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the

‘Administrative Tribunals Act, 1985′ which excludes the jurisdiction of High Courts. The Supreme Court in the above case further held that: “The Tribunals created under Article 323-A and 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a ‘Division Bench’ of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunal will, nevertheless, continue to act like Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. It will not, therefore, be open or litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.” In the same case, when an argument was advanced for the superintendence over the Tribunals by the concerned High Courts, the Supreme Court categorically held as follows: “To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them”. Therefore, in view of the law laid down by the Supreme Court in ‘Chandra Kumar’s case’(emphasis furnished supra) this Tribunal is now functioning as a ‘Court of first instance’ like any other Tribunal in the country established under Article 323-A of the Constitution of India. It is also to be noted that the ‘Judicial Review’ propounded by the Supreme court in ‘Chandra Kumar’s case cannot be treated/equated with an ‘Appeal’ in as much as the constitutional exercise by way of ‘Judicial Review’ displayed by the High Courts originated from the ‘Basic Structure Theory’ read with Articles 226 and 227 of the Constitution of India.

Appellate provisions under the direct and indirect tax enactments

Aforementioned to National Tax Tribunal, under the direct and indirect tax enactments, appeals on substantial questions of law from the decisions of tribunals such as the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lies to the High Court.

The Income Tax Appellate Tribunal Under Section 252 of the Income Tax Act, 1961 an appellate tribunal known as Income Tax Appellate Tribunal has been set up which consists of both judicial members as well as Accountant members. This tribunal hears appeals against orders passed by the Deputy Commissioner of Appeals or the Commissioner of Appeals, as specified in Section 253 of the Act on questions of law as well as questions of fact. Under the direct tax regime, Income Tax Appellate Tribunal is the final authority as regards determination of questions of fact. Under Section 260 A of the same Act, an appeal lies to the High Court, from every order passed by the Income Tax Appellate Tribunal if the High court is satisfied that the case involves a substantial question of law. However, there is also a provision for filing further appeals to the Supreme Court from any judgment of the High Court as specified under Section 261, only if the High Court certifies that the case is fit for appeal to the Supreme Court. In cases where High Court refuses to give such certificate, the aggrieved party has an option to invoke extraordinary jurisdiction of Supreme Court through special leave petition under Article 136 of the Constitution of India. Income Tax Appellate Tribunal, High Courts and the Supreme Court have been given similar powers of hearing appeals in respect of disputes concerning wealth tax under the Wealth Tax Act, 1957. The Customs, Excise and Service Tax Appellate Tribunal Under Section 129 of the Customs Act, 1962 the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been constituted which consists of Judicial as well as Technical Members. The Tribunal hears appeals against orders passed by the authorities mentioned in Section 129 A of the Customs Act. It also hears appeals against orders passed by the excise authorities as specified in Section 35 B of the Central Excise Act, 1944. Earlier, instead of appeal a reference used to lie regarding questions of law. An appeal lies to the High Court on a substantial question of law against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, under Section 130 of the Customs Act, as substituted by the Finance Bill, 2003. Similar provision has been incorporated in respect of appeals to High Courts under the Central Excise Act, 1944. The tribunal also has appellate jurisdiction in anti-dumping matters and the Special Bench headed by the President of the tribunal hears appeals against orders passed by the designated authority in the Ministry of Commerce. The appeals under the Service Tax are also heard by the tribunal. This tribunal is the appellate authority on matters relating to classification and valuation, with the appeals lying to the Supreme Court in these matters.

The Need for Establishment of National Tax Tribunal in India:

The necessity for uniformity and certainty in the administration of tax laws (both direct and indirect tax laws), appeals or references from the orders of the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lie with the High Courts, these Courts get flooded with such cases which need considerable time to dispose them. Due to the heavy workload of the High Courts, there is a huge backlog of tax related cases as a result of which huge revenue is blocked in such litigations. This is adversely affecting the national economy. Hence, urgent measures are required to be taken to speed up taxation matters pending

before the High Courts. It may also be noted that there are at present 21 High Courts. Many a time, decisions of the High Courts vary from each other which create uncertainty, delays and problems in the administration of tax matters. Conflict of decisions amongst various High Courts

on the same point of law have the effect of distorting uniformity and give rise to unnecessary appeals to the Supreme Court which results in further delay.

National Tax Tribunal will help in clearing the backlog and mitigating the burden that lie at the doors of High Courts. The constitution of the National Tax Tribunal would relieve the taxpayers from the burden of pursuing the tax disputes for a long period and substantially reduce the workload of different High Courts which could not concentrate and devote as much focus which the complex tax laws presently demand.

Judicial Sovereignty and the National Tax Tribunal

In the Landmark Judgments of the Court in L Chandra Kumar and Sampath Kumar that even if the Tribunals have to play a supplemental role, given the powers that they enjoy, including the power to strike down legislation as ultra vires the constitution, the NTT will have to enjoy Judicial Sovereignty as understood in the Indian constitutional context. Judicial Sovereignty in India always has been a very controversial subject. The judicial pronouncements and the scholastic opinion in this regard, point out different stages at which the independence of the judiciary will have to be assessed. Judicial Sovereignty will include the collective independence of the judiciary from the other branches of the State and also the independence of the individual judges. The first aspect relates to appointment, removal etc whereas, the second aspect relates to matters concerned with security of tenure, salaries and allowance etc. Let us take up these issues in relation to the National Tax Tribunal. The Members and the Chairperson of the National Tax Tribunal are appointed by the Central Government in accordance with the recommendation of a selection committee consisting of the Chief Justice of India or his nominee. Though the other two members in the committee are not from the judiciary, it is submitted that this is sufficient safeguard against executive fiat. In terms of the qualification also sufficient safeguards seem to have been provided. The legislation provides that all members including the Chairperson have sufficient legal qualifications and adequate experience to handle complex matters relating to tax as also maters relating to the vires or otherwise of legislations and administrative actions. More importantly, the method of removal of the member and the Chairperson also has been made sufficiently elaborate to minimize executive interference. Section 11 provides that removal and suspension can take place only in consultation with the Chief Justice and on completion of a formal enquiry. The Chairperson also has been given enough discretion to constitute the benches of the National Tax Tribunal. In terms of salaries and other benefits, the members and the Chairperson have been accorded the same status as that of High Court judges. Also of significance is the fact that these Tribunals have been vested with contempt powers under section 12 of the NTTA, 2005 in addition to certain powers of the Civil Court granted to it in section 16. The legislation also protects actions taken in good faith in the course of discharge of duties by any member, Chairperson or other employee, which also helps in maintaining judicial independence. In all it is submitted that the provisions of the enactment do indeed secure judicial sovereignty.

The Differentiation of National Tax Tribunal and High Courts in India

There is a provision in the Act that may cause adversity to tax-payers. The Act stipulates that an appeal before the NTT can be preferred only if the appellant deposits at least 25 per cent of the tax or duty payable on the basis of the order appealed against. The NTT is also given the discretion to condone this requirement. There is no such stipulation in cases that go before the

high court. Yet another distinction is that no interim order can be passed by the NTT without hearing the other party. No Tribunal constituted under 323A or 323B of the Constitution can ever

oust the jurisdiction of the high court under Articles 226/227 of the Constitution. The writ jurisdiction of the high court will continue, despite the provision that appeals from the NTT will go to the Supreme Court. The NTT will, therefore, be one more forum working along with the

High court.

The Government makes it appear that there is huge pendency before the various high courts involving fiscal disputes. The truth seems to be that the overall pendency does not exceed 30,000 cases, the maximum being around 10,000 in Mumbai and an equal number in Delhi. Probably, constitution of permanent tax benches in these two High Courts will solve the problem for revenue. The NTT will not be governed by the Civil Procedure Code, though rules of natural justice will apply.

Conclusion

There cannot be fault with the intention of the Government, to reduce the backlog of cases, in proposing the National Tax Tribunal, but the way in which the NTT has been setup raises a lot of concern. Apart from creating multiple and simultaneous structure for the resolution of tax disputes, which will obviously lead to a lot of turmoil, the NTT also faces challenges in the form of allowing Chartered Accounts to appear before it. The enactment seems to fair well in terms of securing the independence of the judiciary but fails the Constitution on account of abridging the writ jurisdiction of the High Courts in relation to the transfer of cases. This is a grave blemish that will have to be rectified. Efficiency arguments for and against the Tribunal can be analyzed or answered only if a systematic and scientific study happens in that regard. The Law Commission must come out with official statistics in this regard. More importantly, we will have to decide whether Tribunals are the best way to deliver justice in relation to tax matters or whether mere creation of exclusive tax benches in the High courts would solve the problem. Vacancies in the High Courts are not filled regularly nor is there a concerted effort at the national level to streamline procedures relating to dispose off pending disputes. The Government has not been able to come up with any realistic presentation statistics of existing tribunals nor has it explained tribunalize the tax administration for the justice further. At least in future, efforts like this, to create an alternative forum and working substitute for the Court must be backed with methodical study, more debates and comprehensive planning, in order to guarantee that they do not end up as unproductive outlay at the hands of the exchequer.

Bibliography:

1) Durga Das Basu- Shorter Constitution of India- Thirteenth Edition 2001 Wadhwa Nagpur.

2) H.M.Seervai-Constitutional Law of India: A Critical Commentary- Universal Law Publishers

3) Walter W. Brudno- Taxation in India-Harvard Law School International Program in Taxation.

4) The National Tax Tribunal Act, 2005- Bharatgazette Government of India.

5) The National Tax Tribunal (Amendment) Act, 2007- Manupatra Bare Act.