C R IRANI

Long after the regime of Indira Gandhi reached its inglorious end and after all the work that was done to ensure that there would be no retrospective legislation ever, we have the mindless Ordinance of the Union Government (No.1 of 2005 dated 25th January 2005), to settle scores with the ITC company, over paying Excise Duty on cigarettes, almost twenty years ago, in March 1987. The Left can be reasonably expected to jump for joy; it also serves to satisfy them that their allies in government are firmly with them and not lenient. Apparently, the question is not whether it is fair and reasonable but only whether it is firm enough!

It will be recalled that in 1987, there was an attempt to collect Rs 803.78 crore from ITC as arrears of Excise Duty, on the ground that they had two prices marked on their packages of cigarettes - the lower price at which they paid their dues to the exchequer, but there was a higher price that customers paid and duty should have been at that higher level. For ITC to make such an obviously serious mistake as alleged, would mean that they need to have their collective heads examined! Chairman of ITC was the honest and respected, Jagdish Sapru. I remember that the late Nani Palkhivala had appeared for ITC before the Calcutta High Court. Addressing the single judge one morning, he obtained a stay order restraining government from collecting the dues demanded and for which there was never a good case prepared let alone implemented. Selling cigarettes is a complicated business; it is not as simple as government make it sound. But we do not have to go into this whole question again. Our judiciary have been at it for many years and have considered the entire question at length and in various courts. The Supreme Court's final order was passed towards the end of last year and ITC won. This appears to be the signal to reverse gears and employ all the nasty tricks that Indira and her son Rajiv used for their own ends.

The Ordinance - The Central Excise and Laws (Amendment and Validation) Ordinance, 2005 - merits only perfunctory attention: it is wholly unconstitutional, ultra vires, grossly biased and ripe for being struck down as patently illegal. It does not have a Statement of Objects and Reasons, an indispensable requirement in a case like this. Nevertheless, it provides in Clause 5 that - Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or another authority, (a) all thing done or actions taken by the Central Government under the notifications… shall be deemed to be and to have always been done or taken in accordance with the provisions of the said notification; (b) no suit or other proceedings shall be instituted, maintained, or continued in any court, tribunal or other authority for the refund of any duty levied, under the notification; (c) no court shall enforce any decree, or order directing the refund of any dues…; and (d) no claim or challenge shall be made in or entertained by, any court, tribunal or order, on the ground that the Central Government did not have, at the material times, the power to amend retrospectively the notification issued…..I have not seen such a ham-handed and clumsy attempt to show that government can do no wrong.
That is not all, although it is enough to see the Ordinance to hell and to retain it there! By Clause 2(1) it is sought to arm the Central Government with full power to make rules, including rules conferring the power to issue notifications with retrospective effect… and without any challenge, if the draftsman is to be believed!

Let me turn to the Constitution, to Article 123(1) as declared by the Ordinance itself in support for its actions. Authority to cover such an outrageous Ordinance is said to lie here. Article 123 only gives the government power to issue Ordinances if Parliament is not in session at the material time. But it is hemmed in by a number of conditions and rightly so. Article 123(2), (a) requires the Ordinance to be laid before Parliament, and it is void if within six weeks, it is not passed by both Houses of Parliament, or (b) if Parliament itself did not have the power to pass such an Act [Article 123(5)] or (c) it is out of time in Parliament. Being a money Bill, it will be introduced in the Lok Sabha.
I do not want to speculate why such a draconian measure has been suggested. It is contrary to everything that we have learnt after the Emergency that India Gandhi imposed on us - and she lost! Her son Rajiv did all he knew to abuse power and its manifestations - and he lost the elections also. I thought it was crystal clear that the voter in this country is shrewd; he is well aware of what he should support and why, and what represents a total threat to everything he has stood for and fought for. It may be a long battle but he will win out in the end. He will not allow abuses, no matter who is it that has the vainglorious ambition to play the same game twice over. It remains for Yogi Deveshwar, the Chairman of ITC, to challenge the government in court, a challenge that can be so easily mounted on the ground that such a manoeuvre is unconstitutional and illegal by all the canons of democracy and of the Indian Constitution, even though some people in government do not want to respect it and proceed as though they are innocent of its existence. Over to their Lordships, then!