The Finance Minister of India, Arun Jaitley went over to the seat of the former Prime Minister of India in the Rajya Sabha (Upper House of the Parliament of India) and shook his hands when the Goods and Services Tax (GST) Bill finally passed on April 6, 2017 after a long-drawn battle between the two major political parties of India – the Indian National Congress (INC) and the Bhartiya Janta Party (BJP). Interestingly, over the past seventeen years, both parties had supported and opposed the promulgation of the uniform nationwide single indirect value added tax in form of GST to replace multiple indirect cascading taxes levied at different rates by the central and state governments. After years of opposition and stalling between the two major political parties in India, on July 1, 2017 the GST was introduced as The Constitution (One Hundred and First Amendment) Act 2017.

At its inception, aimed to be the panacea for the morass of indirect taxes collected by the centre and state governments, the eventual bill turned out to be more complicated than it was envisioned to be. The case highlights the interplay between the Centre (Federal) and the state governments, changing stances of political parties, and the dispute between the Upper House (Rajya Sabha) and the Lower House (Lok Sabha) of the Parliament of India.

John Kingdon’s multiple streams analysis is a relevant framework to understand this case. Kingdon (2013) rejects the idea of a linear process whereby a problem is identified, then policymakers suggest alternatives to address the issue and then are driven by a motive to resolve it. Instead, he postulates that the formation of a policy needs to be viewed as the coming together of multiple streams – the problem stream (identification of a public policy problem), the policy stream (evaluation and selection of alternatives to address the problem) and the politics stream (the coming together of interests of various groups to push the selected set of alternatives up the priority agenda). According to Kingdon, policy change takes place when these streams come together, but it happens in a non-linear and often convoluted fashion. Therefore, a policy may not end up as originally envisioned due to the modifications made by different interests, motivations, and alternatives. Further, according to Kingdon, policy change takes time and only happens when a “window of opportunity” opens and sufficient attention is given to the policy problem as well as a critical mass of interest is aligned to push for the change. It can take a long time for a policy issue to come up the priority ladder of legislative agenda again if the window of opportunity is missed.

First Steps

In February 1986, Vishwanath Pratap Singh (INC), Finance Minister in the then Prime Minister, Rajiv Gandhi’s government, proposed in the budget a major overhaul of the excise taxation structure with the aim to reduce the cascading effect of multipoint excise levies, and eventually help reduce costs — and in turn, the prices that consumers paid on manufactured goods (“Looking Back at GST’s Journey: How an Idea Is Now near Reality” 2017). He introduced a Modified Value Added Tax or MODVAT which would “allow manufacturers to obtain instant and complete reimbursement of excise duty paid on components and raw materials, along with the promise of transparency — disclosure of the full taxation on the product”[2]. This was the first step in modifying the country’s indirect tax regime.

Subsequently, Manmohan Singh who was appointed as the Finance Minister in the government of P.V. Narasimha Rao (INC) from 1991 to 1993 initiated discussions on a Value Added Tax at the state level. However, Singh’s recommendations did not see fruition as he resigned from the post of Finance Minister after a parliamentary investigation report criticized his ministry for not being able to anticipate a US$1.8 billion securities scandal (Aggarwal and Agrawal 1997). It is interesting to observe here as to how factors outside of the immediate context of an agenda can impact it. The progress of a common indirect tax regime was stalled at this stage for a few years because of the aforementioned scandal and the resignation of the Finance Minister – an opportunity window was missed. A decade later in 2004, Manmohan Singh was elected as the Prime Minister of India and with his background in economics as well as his credentials of steering India out of the 1991 financial crisis, he re-initiated the task of streamlining the indirect tax regime.

Change of Hands and Inter-State Tax Wars

In 1998, after decades of rule by the INC, a new government formed under the leadership of Prime Minister Atal Bihari Vajpayee (BJP). This was a period of “sales tax war”[3] among the states as the manufacturing dominated states would compete with the non-manufacturing states on floor rates for sales taxes that impacted the price of goods, the octroi and other taxes that state governments would levy on inter-state trade. This gave the first real impetus to commit to a common indirect tax regime in India and it can be said that the interstate tax-war led to the identification of a “problem stream” in terms of Kingdon’s multiple streams framework.

Yashwant Sinha, then Finance Minister took a decision to end the tax war by having uniform floor rates for sales tax of various commodities. In this direction, he formed an Empowered Committee of State Finance Ministers headed by MIT professor-turned Marxist leader, Finance Minister of the state of West Bengal – Asim Dasgupta. The Empowered Committee noted that:

“there was also no harmony in the rates of sales tax on different commodities among the States. Not only were the rates of sales tax numerous (often more than ten in several States), and different from one another for the same commodity in different States, but there was also an unhealthy competition among the States in terms of sales tax rates – so called “rate war” – often resulting in, revenue-wise, a counter-productive situation.”

The committee was also tasked with putting in place the backend technology and logistics for rolling out a uniform taxation regime in the country. Once the background work was laid by Dasgupta, the Vajpayee government appointed a task force under Vijay Kelkar – a technocrat and a PhD in economics from University of California Berkeley – to recommend the modalities of the tax reforms.

A delay due to political exigencies

The plan was to kick off a uniform Value Added Tax (VAT) from April 1, 2003 — however, Kelkar could not have his way as political exigencies reigned supreme. The force field surrounding the tax reform was such that political necessities were taken into consideration to further delay the reform. 2004 was an election year and the Vajpayee government put off the VAT regime either in the hope of using it as a viable election agenda item to sway the middle-class votes in BJP’s favor or due to the lack of confidence that such a bill would pass in a divided parliament. In any case, the BJP lost the 2004 elections and United Progressive Alliance (UPA) led by INC formed the government with Dr. Manmohan Singh as the Prime Minister.

Pushback from State Governments against a Central Tax

Michael Mintrom’s has rightly observed that “Intergovernmental conflicts are commonly observed in federal systems of government” and these can take the form of conflicts between governments at the national and subnational levels (Mintrom, 2009). According to Mintrom, such conflicts arise over the funding of governmental actions or aspects of both economic and social regulation.

Under Singh, Finance Minister, P. Chidambaram, picked up the threads campaigned for the introduction of VAT. However, this time the major pushback came from the state governments. India has a multi-party system and often regional parties that win the state elections are also able to secure some seats in the national polls and form a considerable portion of the parliament. During the UPA regime, from 2004 to 2009, the regional parties formed nearly 40% of the parliamentary seats. The first report on GST[6] suggested a single low rate: 7% for states and 5% for the Centre, and which detailed a plan for a grand bargain with states to get the proposed new taxation structure off the ground. However, many states remained recalcitrant as they felt that they deserved a higher share of revenues than offered by the centre.

Eventually, what the UPA government could achieve was to release the first discussion paper on GST in 2009[8] that promised a substantial grant to the Empowered Committee of State Finance Ministers to help reduce dependence on the central government to carry out further research on tax rates and proportion of revenue split between the centre and the state governments.

In the next election cycle, the INC formed the government again, this time with a strong majority in the parliament (262/543 seats as compared to 218/543 seats in the previous government) with Dr. Manmohan Singh assuming office as the Prime Minister in his second tenure (2009-14). In 2011, Finance Minister Pranab Mukherjee introduced a Bill to provide the enabling framework for GST. During that period, resistance to the proposed GST was led by BJP-ruled Madhya Pradesh and Gujarat. Moreover, within the parliament, the Committee on Finance was led by Yashwant Sinha (who had been the Finance Minister in the earlier BJP government). Even though Sinha in his earlier tenure as Finance Minister in the BJP government, had supported GST, given the opposition coming from BJP led state governments, decided to stall the bill and as a result the Parliamentary Committee suggested numerous changes to the proposed GST Bill.

This is where, in Kingdon’s terminology, the politics stream started to play a major role in deciding the fate of the GST. Those who were earlier motivated to implement the GST were now interested in opposing it (i.e., the BJP).

Ironically, the strongest opposition came from Narendra Modi, who was then Chief Minister of the state of Gujarat (and under whose Prime Ministerial term GST would finally an Act, later in 2017). Patel, then Gujarat state Finance Minister in Narendra Modi’s government stated: “If the Union government through an ordinance enacts the GST regime, Gujarat will have to bear Rs. 14,000 crore loss per annum due to the destination based taxation principle.”[9] Patel added, “The adequate groundwork would thus be essential before setting upon to operationalize the proposed GST regime. Keeping in view the apprehensions expressed by states, a credible study would also be required to evaluate the impact of GST regime on the revenues of the states. All these key issues are between the centre and the state governments and not among the ruling parties in different states and the Centre.”

The 2011 Bill proposed the formation of a GST Council with representatives from the centre and state governments and it was decided that the council will make decisions based on “consensus”. However, the objection raised by the opposition was whether “consensus” may be interpreted as majority or unanimity. Further, it was proposed that the GST Council will recommend harmonized tax rates, and disputes regarding these rates will be adjudicated by the Dispute Settlement Authority (with appeal to the Supreme Court)[13]. However, an opposition to this came from various parliamentarians and the academia that this structure, in which “executive and judicial bodies determine tax rates, may impinge on the rights of legislatures”[14]. Further, the Bill constitutionally required a Union Finance Minister and Union Minister of State in charge of Revenue and this could undermine the flexibility of the Prime Minister in forming a Council of Ministers[15].

Soon, the INC government at the centre brought back P. Chidambaram, who had also served as the Finance Minister in the previous INC led UPA government, in the same role. Chidambaram this time around took a more accommodating stance. He approved most of the recommendations made by the Parliamentary Committee on Finance and provided for a higher compensation against potential revenue losses to states with the implementation of GST. Yet, with the next election cycle approaching and the mounting opposition against the INC government in the face of multiple charges of corruption and scandal (Commonwealth Games scam, 2010[16]; 2G Spectrum Scam[17]; Indian Coal Allocation Scam, 2012[18]; Abhishek Verma Arms Deal Scandal, 2012[19], Chopper Scam 2013[20]) the GST Bill could not be passed.

Tables Turn: Supporters become Detractors – Fall of the UPA Government

The INC led UPA government lost the 2014 elections after a 10-year rule and a new majority government took office with Narendra Modi (BJP) as the Prime Minister.

After the Narendra Modi government came to power, efforts towards making GST a reality were renewed under Finance Minister Arun Jaitley, and the legislation was approved in the Lok Sabha (the Lower House of the Parliament) in 2015. However, this time around it was INC that was interested in opposing the policy alternatives proposed by the BJP. In Kingdon’s terminology, this was the stage of turmoil in the policy and politics streams.

The following were the key features of The Constitution (122nd Amendment) Bill, 2014 (GST)[21]:

• Both, Parliament and state legislatures will have the power to make laws on the taxation of goods and services. A law made by Parliament in relation to GST will not override a state law on GST.
• The central government will have the exclusive power to levy and collect GST in the course of interstate trade or commerce, or imports. This will be known as Integrated GST (IGST).
• A central law will prescribe the manner in which the IGST will be shared between the centre and states, based on the recommendations of the GST Council.
• The GST Council will recommend rates of tax, period of levy of additional tax, principles of supply, special provisions to certain states etc.
• The GST Council will consist of the Union Finance Minister, Union Minister of State for Revenue, and state Finance Ministers.
• The GST Council is also tasked with making recommendations on taxes that would be subsumed by the central and state GST laws.
• GST Council would decide upon the modalities to resolve disputes between states
• The Bill empowers the centre to impose an additional tax of up to 1%, on the inter-state supply of goods for two years or more. This tax will accrue to states from where the supply originates.
• Parliament may, by law, provide compensation to states for any loss of revenue from the introduction of GST, upto a five-year period.

Clash between the Upper and Lower Houses of the Parliament

The BJP government’s lack of numbers in the Upper House led to a long standoff with the INC led opposition in 2016. Though Jaitley had decided for a deadline of April 1, 2016 to implement GST, it failed to obtain clearance from the Rajya Sabha, the Upper House of the Parliament. Parallelly, INC under the leadership of Dr. Manmohan Singh, the former Prime Minister, submitted a dissent note to the Upper House signed by 21 parliamentarians. It read:

“We are in favour of a Goods and Services Tax that is simple and comprehensive. The Constitution (122nd) Amendment Bill, 2015 is neither. It is pitted with compromises, exclusions and exceptions that make it impossible for us to extend our support to the Bill in the absence of the amendments we have proposed being incorporated in the Bill, as drafted at present.”

Issues of Inter-Governmental Relations

The BJP government had been for a long time employing the narrative of “cooperative federalism”[23] against the INC’s alleged confrontational approach towards the states. It was the time to put this narrative to test. The Upper House appointed a Select Committee on GST which made certain important comments on the Bill in the context of intergovernmental relations. These when analyzed with the dissent note submitted by the INC, provide a rich context and fresh perspectives on the primacy of inter-governmental relations with respect to the GST tax regime. Primarily, it unveils the fact that in reality, federalism does not match the metaphor of a “layer cake” wherein all layers of government – the federal, state, and local – are neatly organized in a hierarchical chain of command, but instead federalism more closely resembles a “marble cake” wherein the levels of government interact in an overlapping manner with blurred lines of authorities and competing interests.

1. Involvement of all levels of government – dealing with the “marble cake”

The Committee recommended that in the drafting of state GST laws, revenue sources of Panchayats (local bodies), Municipalities etc. must be protected. State governments must also take measures to ensure adequate revenue flow to local bodies[24]. Until now, the question of the third tier of government, i.e. the local governments had not surfaced in the GST debate. Further, the INC note of dissent had raised the question of including considerations for Union Territories which have a special status as per the constitution. This was again a perspective that had hitherto not been explored by the Bill. However, despite the discussions pointing towards an arrangement whereby urban local bodies could continue to collect octroi on a revenue sharing basis with the state governments, the final GST Bill had nothing to accommodate the interests of the local bodies[25]. The fundamental conflict between INC and BJP, besides political opportunism was, that INC was employing a more “jurisdiction-based” mental model whereby “the goals of the subnational jurisdiction” are superior to other actors (Agranoff and McGuire, 2001). On the other hand, BJP was coming from a “top-down” intergovernmental management mindset whereby they envisioned “the federal government somehow “managing” its programs through state and local governments’ managers” (Agranoff and McGuire, 2001).

Further, a key challenge was to be the incorporation of the state of Jammu and Kashmir (J&K) under the Tax regime. Article 370 of the Indian constitution[26] has given autonomous status to the state of Jammu and Kashmir due to historical factors[27], i.e. the laws passed by the Central government may not apply to J&K until passed by the state assembly. Therefore, J&K was the only state till the end that had not adopted GST even while the rest of the nation had. However, the BJP was successful in forming a coalition government in J&K with Chief Minister Mehbooba Mufti of the Peoples Democratic Party (PDP). Despite the alliance, the state assembly was weary of the possibility that a centralized tax regime may impact the special status of the state and its exclusive taxation powers. To deal with this, a Presidential Order was issued to be considered by the J&K assembly which read:

“Notwithstanding anything contained in this Order, the powers of the state of Jammu and Kashmir as per Section 5 of the Constitution of Jammu and Kashmir, shall remain intact[28]” and that “The legislature of the state of Jammu and Kashmir shall have the powers to make laws with respect to goods and services tax levied by the state.”[29]

This was the first time in the history of the Jammu and Kashmir assembly that a resolution, seeking a presidential order on a constitutional amendment, was discussed and passed. The Finance Minister of the state of J&K, Haseem Drabu said:

“Although there is no tradition of tabling a presidential order in the assembly, we are starting a new tradition in the democracy of the state by tabling this presidential order in the House.”[30]

This may be considered as a classic example of “opportunistic federalism” (Conlan, 2006). According to Conlan this means “A system that allows- and often encourages- actors in the system to pursue their immediate interests with little regard for the institutional or collective consequences”. For example, “federal mandates, policy preemptions, and highly prescriptive federal grant programs tend to be driven by opportunistic policy makers who seek to achieve their own policy and political goals regardless of traditional norms of behavior or boundaries of institutional responsibility” (Conlan, 2006). Here it was the PDP government’s need for stability and support from the BJP that led them to accept the GST regime despite questions on the legality of its application in J&K[31], opposition among the masses, amidst popular protests due to the fear that J&K may lose its fiscal autonomy[32]

2. Dispute Resolution between States

The 2011 Bill stated that a separate Dispute Settlement Authority (DSA) shall determine disputes between centre and states and would decide upon the modalities to resolve disputes. The Upper House Select Committee observed that the creation of a separate dispute settlement authority would hamper the functioning of the GST Council in general and the legislatures in particular. However, the INC note of dissent still argued that an independent dispute authority was necessary as “parties to a dispute cannot be judges in their own cause”. As it turned out in the eventual Bill, the BJP was able to keep the independent DSA out of the Act. It is yet to be seen to what extent this will pose a challenge in resolution of disputes between the states.

3. Management of Compensation on Loss of Revenue to States

The new tax regime is likely to cause some loss of revenue to certain states, especially those which have high scales of manufacturing. GST being a destination based consumption tax, the revenue resulting from interstate transactions will accrue to the consuming state. Thus, the manufacturing states will be at a loss. To counter this, GST proposed an additional non-creditable tax of up to 1%, on the inter-state trade of goods for two years or more, which will in turn be reversed to the producing state[33].

This tax would accrue to states from where the supply originates. The Committee stated that the provision of 1% additional tax is likely to lead to cascading of taxes. This effect will be magnified if the production and distribution chain passes through several states, and if the 1% additional tax applies at each state[34]. Hence, the Committee recommended that the term “supply” be explained to mean “all forms of supply made for a consideration”[35]. Yet it will be extremely difficult for the government to collect and capture data to track supply from one state to another and this may lead to further inter-state disputes.

The robustness of the dispute resolution mechanism and its perceived fairness would therefore play a major role in deciding whether GST was a success or a failure in terms of implementation of a public policy. Finally, the Committee recommendation of compensation on any loss of revenue to be provided to states for a period of five years (instead of “upto” five years as mentioned in the 2014 Bill)[36] seems fair in principle, but it is yet to be seen as to how it will play out in the actual implementation.

Final coming together of the GST Bill

Between 2014 to 2017, INC began to lose a series of state election. On the other hand, BJP started forming governments in more states including where regional parties had held governments earlier such as in the largest state of India – Uttar Pradesh[37]. As a result, the representation of INC in the Upper House reduced over time – the new Upper House Members of Parliament were increasingly from BJP and many INC ones saw their term limits end by 2017. Meanwhile, key leaders of the BJP initiated back-channeling with key leaders of the INC and the regional parties.

After a seven-hour discussion in the Parliament the GST Bill was passed The Constitution (One Hundred and First Amendment) Act 2017. In final analysis, the GST regime became a reality because the problem, policy and politics streams came together and BJP was able to exploit the window of opportunity that had opened up. However, the way GST turned out was a different story all together. The local bodies did not get any substantial benefit from the GST regime and the verdict on whether the states benefited or not is still not out.

While working with the Member of Parliament K. Kavitha, I (author of the case) assisted in developing parameters against which successful tax policies need to be evaluated – Clarity, Efficiency, and Seamlessness (Kavitha, 2016). GST does not meet the criterion of clarity as it has turned out to be a complex structure with multiple tax rates for different bands of goods and services. The problem of dispute resolution between states and compensation on losses due to inter-state trade poses a big question mark on whether GST will be able to meet the criteria of seamlessness. Finally, with the requirement to file multiple returns every month and higher than earlier tax rates on certain consumer products, the GST runs the risk of resulting in greater tax incidence[38] and cost in terms of time and effort on part of the public which potentially violates the parameter of “efficiency”.

GST has turned out to be a mixed bag in policy terms while its outcomes and impact are yet to be revealed in entirety over time. Nevertheless, it has been the result of almost two decades of efforts on part of various technocrats, politicians, and policy entrepreneurs. It was made possible after the problem, policy and politics streams came together at a right window of opportunity which was exploited by the Modi government.

Citations

1. http://lawmin.nic.in/ld/The%20Constitution%20(One%20Hundred%20 and%20First %20Amendment)%20Act,%202016.pdf
2. http://indianexpress.com/article/explained/looking-back-at-gsts-journey-how-an-idea-is-now-near-reality-arun-jaitley-4593103/
3. Ibid.
4. http://empcom.gov.in/WriteReadData/UserFiles/file/Annual%20Report/ Annual%20 Report%202010-11.pdf
5. http://indianexpress.com/article/explained/looking-back-at-gsts-journey-how-an-idea-is-now-near-reality-arun-jaitley-4593103/
6. http://www.hindustantimes.com/business-news/a-gst-rate-that-can-unlock-india-s-potential/story-YJTgJBNEJ6WzFI5HjeW3RI.html
7. Ibid.
8. http://www.gstcouncil.gov.in/sites/default/files/First%20Discussion%20 Paper%20on%20GST.pdf
9. https://timesofindia.indiatimes.com/city/ahmedabad/Gujarat-opposes-GST-regime/articleshow/24559119.cms
10. Ibid
11. http://www.thehindu.com/opinion/editorial/Shifting-the-GST-goalpost/article16077096.ece
12. http://www.prsindia.org/billtrack/the-constitution-one-hundred-and-fifteenth-amendment-bill-2011-gst-bill-1591/
13. Ibid
14. Ibid
15. Ibid
16. http://www.businessinsider.in/9-of-the-biggest-corruption-cases-that-rocked-Indiaduring-Congress-rule-right-from-Indira-Gandhis-time/articleshow/55898019.cms
17. ibid
18. ibid
19. ibid
20. ibid
21. http://www.prsindia.org/uploads/media/Constitution%20122nd/Brief–%20GST,%202014.pdf
22. https://scroll.in/article/742671/its-official-the-congress-puts-down-its-objections-to-the-gst-bill-in-writing
23. https://www.ndtv.com/india-news/cooperative-federalism-only-way-to-take-country-forward-pm-modi-1441452
24. Ibid
25. http://www.downtoearth.org.in/news/a-blow-to-autonomy–58119
26. https://indiankanoon.org/doc/666119/
27. http://www.thehindu.com/opinion/lead/Understanding-Article-370/article11640894.ece
28. http://www.ptinews.com/news/8864232_GST-extended-to-Jammu-and-Kashmir.html
29. Ibid.
30. http://www.ptinews.com/news/8864232_GST-extended-to-Jammu-and-Kashmir.html
31. http://indianexpress.com/article/explained/gst-article-35a-and-special-status-a-complex-story-unfolds-in-jammu-kashmir-4765626/
32. https://www.ndtv.com/india-news/jammu-and-kashmir-adopts-gst-resolution-amid-protests-by-opposition-1721015
33. http://www.prsindia.org/uploads/media/Constitution%20122nd/Brief–%20GST,%202014.pdf
34. http://www.business-standard.com/article/economy-policy/1-tax-above-gst-may-hurt-make-in-india-cea-115052700036_1.html
35. http://www.prsindia.org/uploads/media/Constitution%20122nd/Select%20Comm%20 Report%20Summary-%20GST.pdf
36. Ibid.
37. https://www.nytimes.com/2017/03/11/world/asia/narendra-modis-party-wins-big-in-uttar-pradesh-indias-largest-state.html
38. https://economictimes.indiatimes.com/markets/expert-view/tax-incidence-will-increase-under-gst-rakesh-biyani-future-retail/articleshow/59071021.cms

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