Conservation, Environmental pollution and degradation, environmental impact assessment
Government Budgeting – issues
Subsuming of environment related cesses under GST
The Goods and Services Tax subsumed a variety of existing Central and State levies. Among them were three environment-related cesses: the high-profile Swachh Bharat Cess and Clean Energy Cess levied on all taxable services since 2015 and on coal since 2010, and the historical Water Cess chargeable since 1977 on water consumption by industry and local authorities.
What are the subsumed cesses?
GST subsumed several central & state cesses levies under it. Environment cesses subsumed- Water Cess, Clean Energy Cess and Swachh Bharat Cess.
Water Cess was levied on water consumption by industry and local authorities. It was used to augment the resources of the Central and State pollution control boards to address water pollution.
Clean Energy Cess, a kind of carbon tax was levied on coal produced in India or imported coal at the rate of Rs. 400/tonne in 2016, to finance clean environment initiatives.
Swachh Bharat Cess was levied on all taxable services, to be used for financing Swachh Bharat initiative.
Difference between tax and cess:
Unlike a tax, a cess is levied to raise funds for a specific purpose.
The proceeds are first credited to the Consolidated Fund of India, and the Centre may, after due appropriation by Parliament, utilise such sums of money for purposes designated under the cess.
While in principle a cess is to be levied till the time the Government gets enough money for the specified purpose, several cesses, by virtue of their broad-based objectives, have continued for years and have become an important source of revenue.
Loss to state pollution control boards:
The water cess was introduced under the Water (Prevention and Control of Pollution) Cess Act 1977 to augment resources of the Central and State pollution control boards for the prevention and control of water pollution. The water cess is the second most important source of revenue for State pollution control boards after consent fees. The loss of this revenue will be a huge setback for boards which already suffer from poor technical capacity and autonomy. Even if the loss is made good through budgetary allocation, its routing will play a critical role. The channelling of money through State budgets will make the boards even more vulnerable to the discretion of State governments, which have a dismal track record of empowering the pollution watchdogs.
Abolition of Swachh Bharat Cess:
The Centre collected Rs. 12,500 crore in 2016-17 through the Swachh Bharat Cess for the Swachh Bharat Abhiyaan (SBA) which aims to make India open-defecation free by 2019 and improve the appalling state of waste management in the country. Though the SBA was included as a CSR activity in 2014 under Schedule VII of the Companies Act 2013, it is clear the programme will require significant public expenditure to meet its 2019 target. It will be interesting to see whether its budgetary allocations are maintained after the abolition of the cess.
Abolition of cess levied on coal:
The clean energy cess levied on coal at the rate of Rs. 400/tonne in 2016 (progressively increased from Rs. 50/tonnes in 2010) amounted to a staggering Rs. 28,500 crore in 2016-17. Touted as a tax on carbon, it met almost 50 per cent of the budget of the ministry of new and renewable energy for 2016-17. This, despite the fact that less than half of the cess collected since 2010-11 was credited to the National Clean Energy and Environment Fund, created to disburse the cess revenue. And, despite the fact that MNRE is only one of the beneficiaries (along with the ministries of water resources, river development and Ganga rejuvenation; environment, forests and climate change; and drinking water and sanitation) of the fund. The abolition of the cess when the Government is projecting itself as a global leader in clean energy seems both symbolically and financially ill-timed. The coal cess will continue at the same rate under the Goods and Services Tax (Compensation to States) Act 2017, but will now contribute to the GST compensation fund, a corpus meant for compensating States for revenue losses arising from the shift to the new indirect tax regime.
The Budget 2018-19 should adequately compensate ministries for the loss of revenue.
But the the fact that these cesses were summarily and unceremoniously abolished in the wake of a new tax regime shows that environmental issues are still not part of the mainstream policy discourse. The Government should have used this opportunity to reflect on the changes required to encourage efficiency in resource use, prevention of pollution and management of waste. After all, the Water Cess, while an important source of revenue for the pollution control boards, was effective neither as resource-tax that incentivised judicious use of the scarce resource, nor as a pollution tax despite higher rates for more polluting uses and rebates for installation of pollution control equipment.
It is time for a Green Tax Council, at par with the GST Council, to design and implement environmental fiscal reform in India.
Connecting the dots:
The Goods and Services Tax subsumed a variety of existing Central and State levies. Among them were three environment-related cesses. What would be the implication of such step on environmental rgeultion. Discuss.
General Studies 2
Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Welfare schemes for vulnerable sections of the population by the Centre and States
General Studies 1
Salient features of Indian Society, Diversity of India.
Muslim personal law: The beginning
The August 22 Constitution Bench judgment on instant talaq ( talaq-e-bid’a ) was a historic one. For the first time in Indian history talaq-e-bid’a was specifically debated and set aside by the Supreme Court.
Shamim Ara case, 2002:
In the 2002 Shamim Ara case a two-judge bench of the Apex Court had delegitimised this medieval practice only when it was not properly pronounced and preceded by attempts at reconciliation. But the latest ruling completely and unconditionally invalidates talaq-e-bid’a and renders it bad in law . The Koranic procedure of talaq is the only way by which a Muslim husband will be able to divorce his wife from now on.
The majority judgment:
Justices R.F. Nariman and U.U. Lalit concluded that talaq-e-bid’a cannot be excluded from the definition of “talaq” mentioned in Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.
They declared that as the Shariat Act was a law made by the legislature before the Constitution came in force, it would fall within the expression “laws in force” in Article 13(3)(b), and would be hit by Article 13(1) if found to be inconsistent with Part III of the Constitution, to the extent of the inconsistency. Article 13(2) clearly states that the “State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
They also declared talaq-e-bid’a to be “manifestly arbitrary” and violative of Article 14 because it allows a Muslim man to break the marriage “capriciously and whimsically” without attempting to save it through reconciliation.
On these grounds, Section 2 of the 1937 Act was struck down as being void to the extent that it recognises and enforces instant talaq.
Interestingly, Justice Kurian Joseph, even while fully agreeing with the doctrine of manifest arbitrariness on the pure question of law, disagreed with Justices Nariman and Lalit that the 1937 Act regulates instant talaq and hence can be brought under Article 14. In his view, talaq-e-bid’a can be set aside without testing any part of the 1937 Act against Part III of the Constitution. As the whole purpose of the Shariat Act was to declare Shariah as the “rule of decision”, any practice that goes against the Shariah cannot be legally protected. Talaq-e-bid’afalls outside the Shariah because it goes against its primary source, the Koran. Therefore, what is bad in theology is bad in law as well.
Those who criticised the authors of the majority judgment for grounding the crux of their ruling in the Koran ignore the fact that personal laws of all communities in India enjoy constitutional protection. And as these laws are sourced from religious scriptures in most cases the Apex Court cannot but uphold the right of individuals and groups to profess, practise and propagate everything that forms an essential part of their religious scripture, subject to the provisions of Article 25(1). It may be pointed out here that the Koranic procedure of talaq that was implicitly upheld in this judgment does not in any way violate our constitutional values.
The minority opinion:
In their 272-page ruling former Chief Justice J.S. Khehar and Justice S. Abdul Nazeer, in contradiction to the majority judgment, declared talaq-e-bid’a to be an essential part of the Hanafi faith and gave it protection under Article 25(1).
However, this view does not stand up to scrutiny as it is based on the flawed theological premise that a religious custom which has been in vogue for several centuries automatically becomes integral to the denomination that practises it. Such a stance is not consistent with the teachings of the Koran.
The minority view also failed to appreciate the fact that hadeeses quoted by the AIMPLB were comparatively less authentic than those cited in High Court judgments relied upon by the petitioners which were from the six most authentic Sunni hadees books ( Sihah Sitta ). The AIMPLB cited just one report from Sihah Sitta (Hadees No. 5259 from Sahih Bukhari) in which instant talaq is mentioned. But this hadees does not show any Prophetic support for talaq-e-bid’a . It clearly states that the man who pronounced “triple talaq” did so “without the Prophet’s command.”
Implications of verdict:
The biggest goal attainment for Muslim women is the realisation that talaq-e-bid’a in any of his manifestations will not dissolve the marriage.
This renders redundant not just halala but the incorporation of a platitudinous advisory against instant talaq in the nikahnama .
There is also scope now to amend the 1937 Act, even without designating it as statutory law, to exclude talaq-e-bid’a from the definition of the word “talaq” mentioned in Section 2, and make the Koranic procedure of talaq gender-neutral.
Indeed all provisions of the Shariah mentioned in the 1937 Act can be similarly redefined to bring them in conformity with the humanitarian teachings of the Koran and the Prophet.
This judgment will also encourage legally and theologically informed Muslim intellectuals to establish mediation centres across India under the Alternative Dispute Resolution (ADR) mechanism to help Muslim couples amicably resolve their marital disputes.
This is not the end but the beginning of the process of reforms in the Muslim personal law. The biggest challenge, however, would be to inform the Muslim masses that the abolition of talaq-e-bid’a is not against the Shariah but has, on the contrary, brought it closer to the original principles of Islam.
Connecting the dots:
The abolition of triple talaq by a SC bench is just a beginning of the process of reforms in the Muslim personal law. Discuss.
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