provisions in this regard.
62
Among other things, it provides for the constitution of a
Finance Commission to recommend the distribution of taxes between the centre
and states.^63 Based on the recommendation of the Tenth Finance Commission, the
80 th Amendment proposed an alternative scheme of sharing between the centre
and the states the proceeds of certain taxes and duties imposed by the central
government.^64 A new provision was inserted in the Constitution by the 88 th
Amendment to provide for the imposition of service tax by the central government
and its collection and appropriation by both the centre and the states.^65
As noted above, the Constitution expressly authorises the government to take
affirmative action to remedy past socioeconomic inequalities. Article 15 ( 4 ) provides
that the government may make any special provision for the advancement of any
socially and educationally backward classes of citizens, or for the SCs and STs.
Article 16 ( 4 ) enables the government to make reservation in employment for any
backward class of citizens who are not adequately represented in the government
services. InIndra Sawhneyv.Union of India,
66
the Supreme Court – while
upholding the additional reservation of seats in government services for
other backward classes (OBCs) as per the recommendation of the Mandal Com-
mission – ruled that the number of vacancies to be filled up on the basis of
reservations in a year (including carried-forward vacancies) should in no case
exceed the limit of 50 per cent. The 81 st Amendment sought to overcome this
bar by inserting clause 4 B in Article 16. This new provision, in essence, provided
that ‘backlog vacancies’ will not be counted towards the 50 per cent yearly ceiling
imposed by the court.
The affirmative-action provisions of Articles 15 and 16 have been a ground of
constant tussle between the government and the judiciary.^67 While the government
has tried to introduce reservations in employment and/or educational institutions
(often to appease certain sections of society rather than driven by a genuine
empowerment concern), the Supreme Court – on being approached by people
aggrieved by such allegedly unmeritorious policies – has struck them down as
unconstitutional on several occasions. A few constitutional amendments (such as
(^62) The Constitution of India, Arts. 268 – 90. (^63) The Constitution of India, Art. 280.
(^64) Constitution ( 80 th Amendment) Act 2000 , http://indiacode.nic.in/coiweb/amend/
amend 80 .htm.
(^65) The Constitution of India, Art. 268 A.
(^66) AIR 1993 SC 477. For an analysis, see Mahendra P. Singh,Shukla’s Constitution of India,
11 th edn (Lucknow: Eastern Book Co., 2008 ), pp. 91 – 6.
(^67) See Mahendra P. Singh, ‘Ashoka Thakurv.Union of India: a divided verdict on an
undivided social justice measure’ ( 2008 ) 1 NUJS Law Review 193. This battle has also
unfolded in relation to agrarian reforms aimed at redistribution of land versus the protec-
tion of the right to property. Surya Deva, ‘Does the right to property create a constitutional
tension in socialist constitutions: an analysis with reference to India and China’ ( 2008 ) 1
NUJS Law Review 583 at 599 – 601.