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TMI Blog2010 (8) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... (Salaries and Allowances of Members) Act, 1942 (in short "the Act"), providing for payment by the State of income-tax payable by the Members of Legislative Assembly on salary and allowances payable to them. 2. The case of the petitioner is that he retired from service of the Railways and was doing social work. He came to know that an amendment has been made to the provisions of the Act by adding section 3AA to the effect that salaries and allowances to be paid to the Members of Legislative Assembly are made exclusive of income-tax which will be paid by the State Government. The petitioner wrote a letter to the Chief Minister objecting to such a measure being adopted. Learned counsel submitted that there have been instances of multicrore scams by the elected representatives and in such a situation, the State exchequer could not be further burdened. On the other hand various farmers have committed suicide on account of financial hard-ships. There are various categories of people who need financial help as against the Members of Legislative Assembly. 3. In the reply filed by the Under Secretary, Government of Punjab which has also been adopted by the Secretary, Vidhan Sabha, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessees ? 8. The impugned provision is as under : "3AA. The salaries and allowance ; payable to the members under this Act, shall be exclusive of the income-tax, payable in respect thereof under any law relating to income-tax for the time being in force, and such tax shall be paid by the State Government." 9. A perusal of the above shows that the subject-matter of the legislation is salary and allowances paid to the Members of Legislative Assembly. There is no provision in the Central legislation debarring payment of tax levied thereunder by persons other than the assessees. In fact section 195A of the Income-tax Act, 1961, specifically provides as to how the tax at source is to be deducted by the employer where tax is payable by the employer. Even if it is accepted that the State Government is not the employer of the Members of Legislative Assembly, there is no bar to tax being paid by persons other than the assessees. The judgment of the hon'ble Supreme Court relied upon by learned counsel for the petitioner in Justice Deoki Nandan Agarwala v. Union of India [1999] 237 ITR 872 (SC) ; AIR 1999 SC 1951 does not help him. It was held therein that even if the relationship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e V. Ramaswami J. the allocation of the subjects to the lists is not by way of scientific or logical definition but by way of a mere simplex enumeratio of broad categories. A power to legislate as to the principal matter specifically mentioned in the entry shall also include within its expanse the legislations touching incidental and ancillary matters. (5) Where the legislative competence of a Legislature of any State is questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to ask is whether the legislation relates to any of the entries in Lists I or III. If it does, no further question need be asked and Parliament's legislative competence must be upheld. Where there are three Lists containing a large number of entries, there is bound to be some over-lapping among them. In such a situation the doctrine of pith and sub-stance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other Legislature is of no con-sequence. The court has to look at the substance of the matter. The doctrine of pith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination or favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all per-sons under like circumstances. 2. The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. 3. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between them. In short, while article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned. 9. If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective inducted in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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