"Just" Social Order, GST Law and the Jurisdiction of the Courts

Abstract

State Policy in India was reformulated on July 1, 2017 when multiple statutes for the levy of “Goods and Services Taxes” (GSTs) commenced. The reformulation was facilitated by the Constitution (101st Amendment) Act, 2016. The amended Constitution provides for the constitution of the Goods and Services Tax Council (GST Council) which is mandated to recommend inter alia, “model” GST statutes to be enacted as law by the Union and every State. An important amendment relates to legislative competences of the Union and the States. Prior to 2016, the matters of the respective legislative competences were either dis-joint or, if concurrent, subject to every State avoiding repugnance with the law made by the Union. Clause (1) of Article 246A enacts a paradigmatic change in providing for repugnance-free overlap of legislative competences of the States and the Union in lawmaking to levy respective GSTs. A less-noticed paradigmatic change enacted in clause (6) of Article 279A in Part XII stipulates the principle of “harmony” as constitutional guidance to regulate the functioning of the GST Council. This is in addition to the fundamental principles regulating governance by rule of law enacted in Part IV, to enforce which the Courts (including the High Courts and the Supreme Court) have no jurisdiction. In the light of legislative history, received wisdom from the social sciences and applicable norms for the interpretation of statutes, this paper examines the nature of jurisdiction of the Courts to enforce the constitutional guidance stipulated outside Part IV, in clause (6) of Article 279A.