This article is written by Paridhi Dave, a student at the Institute of Law, Nirma University. This is an exhaustive article which deals with the administrative relations between the Union and the States, along with important case laws.
Table of Contents
Introduction
The Constitution of India, 1950 is the grundnorm of the country. It primarily lays down the framework which defines the political principles, procedures, powers and duties of various governmental institutions and lays down the fundamental rights and duties of the citizens, etc.
The Constitution follows a parliamentary system of government. Further, it follows the doctrine of the division of powers. The Constitution is neither purely federal nor purely unitary. Scholars have often defined it as ‘quasi-federal.’ India has moved from competitive federalism to cooperative federalism over a period of time.
This article examines the relations between the Centre and the States in the sphere of administration.
Administrative Relations between Centre and States
The administrative relations between the Centre and the States are stated under Article 256 to Article 263 of the Constitution of India. The Government of India has also constituted the Punchhi Commission in 2007, to determine the Centre-State Relations.
Article 246 of the Constitution deals with the subject matter of laws which are to be made by the Parliament and the State Legislatures. The Constitution, under Schedule VII, lays down three lists. These lists divide the subjects between the Centre and the States. The List I is the Union List, List II is the State List and List III is the Concurrent List.
As a set rule, the Central Government has administrative authority over the matters on which the Parliament is empowered to make the laws. The State Governments exercises administrative authority over the matters specified in the State List.
The obligation of States and the Union
Article 256 of the Constitution of India can be divided into two parts.
Firstly, it lays down that the executive powers of the State are to be exercised in such a manner that it complies with the laws made by the Parliament or any other existing laws which are applicable in the State. Secondly, it states that the executive power of the Union includes in its ambit such directions that are given to the State by the Central Government, which it deems necessary for the purpose.
It appears from reading the provision that if the States duly comply with the first part, then the second part does not seem necessary. Whereas, if the second part indeed serves its purpose sometimes, then it is evident that the States are guilty of violating the first part of the provision.
The Constitution lays down this provision with the assumption that the States will be, at some juncture, guilty of either wilful defiance or negligence of its duties.
Article 256 is the successor of Section 122 of the Government of India Act, 1935. Although this provision is particularly silent about the consequences in case of non-compliance, the drastic sanction is laid down in Article 365 of the Constitution. To explain, if a State fails to comply with the directions issued by the Centre, then it is lawful for the President to hold that a situation has arisen wherein the State government cannot be carried on according to the provisions of the Constitution. Consequently, a state emergency can be imposed. The primary theme of this provision is that there should be a proper execution of the central laws in all the states.
Precedents
In the case of Rameshwar Oraon vs. State of Bihar and Ors. (1995), it was observed that it is mandatory for the State Government to act according to the directions issued by the Central Government.
In the case of State of Karnataka vs. Union of India (1977), it was held that the Centre can issue directions to a State under Article 256 as a legal entity, not as a geographical or territorial unit. Further, in State of Rajasthan vs. Union of India (1977), the Apex Court held that the issuance of directions to the State government by the Centre under Article 256 is justified if the Union Government is of the opinion that the manner in which the executive power of the State is exercised may be in contravention to the enforcement of Central Laws.
In Swaraj Abhiyan vs. Union of India (2017), the Apex Court drew attention to this provision, calling it a ‘forgotten provision’. This is because of the seldom usage of this provision since the Constitution came into force.
Control of the Union over States in certain cases
Article 257 of the Constitution of India, 1950 deals with this subject.
Article 257(1) provides that the exercise of the executive powers of the State should be done in such a manner that it does not hamper or prejudice the exercise of the executive powers of the Centre. Further, the second part of this clause is similar to that of Article 256. It lays down that the Centre can issue directions to the State Governments for purposes deemed necessary.
Article 257(2) provides that the executive power of the Union to issue directions to the States shall also extend to the matters of construction and maintenance of means of communication declared to be of national or military importance. Although communications is a State subject under Entry 13, List II, Schedule VII of the Constitution – the Union has been empowered to issue directions.
The proviso states that nothing in this particular provision will be considered as restricting the power of the Parliament to:
- Declare certain highways or waterways as national highways or waterways;
- Construct and maintain means of communication as a part of its functions with reference to naval, military and air force purposes.
Article 257(3) provides that the executive power of the Union to issue directions to the States shall also extend to the measures required to be taken for the protection of the railways within a particular State.
Article 257(4) provides that for the purpose of compliance to the directions under clause (2) or clause (3), the States incur excess costs, which would not have occurred in the discharge of the normal duties of the State in the absence of such directions, then these costs shall be paid by the Government of India such sum as may be agreed. If there is a default of agreement, the sum of the extra costs so incurred by the State will be determined by an arbitrator appointed by the Chief Justice of India.
Power of the Union to confer powers, etc. on States in certain cases
Article 258 of the Constitution of India, 1950 lays down the contents of this subject.
Article 258(1) begins with a non-obstante clause. It states that the President, with the permission of the Governor of the State, can entrust conditionally or unconditionally the State Government or its officers to perform functions which are related to any matter which is included in the ambit of the executive power of the Union.
Article 258(2) provides that a Parliament-made law which is applicable in any State may confer certain powers and impose duties, or authorise such conferring of powers and imposition of duties upon the State or its officers and the authorities thereof. The clause has a non-obstante clause within it. It states that even if the Legislature of the State has no power to make laws on that matter, the Parliament made law is applicable.
Article 258(3) states that the extra costs of administration which the States incur, in connection with the exercise of such conferred powers and imposed duties, shall be paid by the Government of India – such sum as may be agreed. If there is a default of agreement, the sum of the extra costs so incurred by the State will be determined by an arbitrator appointed by the Chief Justice of India.
Power of the States to entrust functions to the Union
This power is laid down under Article 258-A of the Constitution of India. The article begins with a non-obstante clause. It states that the Governor of a State, with the consent of the Union Government, may entrust conditionally or unconditionally to that particular State’s government or its officers, functions which are related to any matter that is included in the scope of the executive power of the State.
This provision was inserted into the Constitution by the Constitution (Seventh Amendment) Act, 1956.
Jurisdiction of the Union in relation to territories outside India
Article 260 of the Indian Constitution deals with the jurisdiction in relation to foreign territories. The article states that the Indian Government can enter into an agreement with the Government of any territory which is not a part of the Indian territory. This agreement is entered into to undertake any executive, legislative or judicial functions vested in the Government of that territory. All such agreements are subjected to and governed by any law which pertains to the exercise of foreign jurisdiction for the time being in force.
This is a latent emboldening provision. The Constituent Assembly debated this provision on three different sessions – July 25, 1947; July 28, 1947, and August 25, 1947. Upon a perusal of these debates, it can be understood that the motive behind this provision was to facilitate the administration of states that had not acceded to the Indian Union.
The Apex Court has ruled in GVK Inds. Ltd. & Anr. vs. The Income Tax Officer & Anr. (2011), that this Article is to be invoked only in cases when such laws either have an impact on or consequences for the people of India or the Indian territory. The Parliament has also enacted the Foreign Jurisdiction Act, 1947 in accordance with this Article, to provide for the exercise of foreign jurisdiction of the Union Government.
Public acts, records and judicial proceedings
Article 261 of the Constitution of India deals with public acts, records and judicial proceedings.
Article 261(1) provides that full faith and credit must be given to all the public acts, records and judicial proceedings of the Union and every State, throughout the territory of India.
Article 261(2) provides that the manner in which and conditions under which the aforementioned acts, records and proceedings are to be proved along with the effect thereof, shall be provided by such law as made by the Parliament.
Article 261(3) states that final judgments or orders which are delivered or passed by the civil courts located in any part of the Indian territory are capable of execution anywhere within that territory, according to the law.
Adjudication of disputes relating to waters of inter-State rivers or river valleys
Article 262 of the Constitution of India deals with the adjudication of disputes relating to the above-stated issues.
Article 262(1) states that the Parliament may formulate laws to provide for the adjudication of any dispute or complaint with reference to the use, distribution or control of waters of, or in, any inter-State river or inter-State river valley.
Article 262(2) begins with a non-obstante clause and provides that the Parliament may by law provide that neither the Apex Court nor any other court shall be able to exercise their jurisdiction in respect of any such dispute or complaint as mentioned in clause (1).
The States have a power to legislate on this issue of water under Entry 17, State List, Schedule VII. The Union is empowered to legislate upon the same under Entry 56, Union List, Schedule VII.
In exercise of the powers bestowed by Article 262, the Parliament enacted the Inter-State Water Disputes Act, 1956. If the water disputes cannot be settled by negotiations then the Central Government establishes a Water Disputes Tribunal for the adjudication of such disputes. There are currently five active tribunals – namely, Ravi and Beas Water Tribunal, Krishna Water Disputes Tribunal – II, Vasundhara Water Disputes Tribunal, Mahadayi Water Disputes Tribunal and Mahanadi Water Disputes Tribunal. There are several legal doctrines related to the issue of inter-state waters. These include – Doctrine of Riparian Rights, Prior Appropriation, Territorial Sovereignty, Community of Interest and Equitable Apportionment.
The Supreme Court in the judgment of State of Kerala through the Chief Secretary to Government vs. State of Tamil Nadu through the Chief Secretary to Government (2018), finally settled the age-long Cauvery Water Dispute.
Provisions with respect to an inter-State Council
Under Article 263 of the Constitution of India, if the President believes that the establishment of an inter-state council would help in serving the public interests, then it is lawful for the President to establish such Council by order. He shall also define the nature of duties to be performed by the Council, its organisation and the procedure to be followed.
The President can charge the Council with the following duties:
- To inquire into and advise upon disputes which may have arisen between States;
- To investigate and discuss subjects in which some or all of the States, or the Union and one or more of the States display a common interest;
- To make recommendations upon any subject and in particular, to make recommendations for enhanced coordination of policy and action pertaining to that subject.
The Inter-State Council was established based on the recommendations of the Sarkaria Commission, 1988. The Council was established in 1990 pursuant to a Presidential order. It functions as a permanent independent national forum for consultation. The Council was recently reconstituted in 2019, with the Prime Minister as its chairperson.
In the current crisis due to the enactment of the Citizenship Amendment Act, 2019, there is an increased distrust between the Centre and the States. In such times of constitutional crisis, it is essential that the Council meets to arrive at a harmonious solution.
Conclusion
The aim of the Indian Constitution is to establish either collaborative or cooperative federalism. Through the division of powers between the Centre and the States, a certain autonomy is granted to the States to ensure that the administration at the grass-root level remains efficient. Simultaneously, the Centre exercises its power over the States to maintain a balance.
There are several challenges in the way of maintenance of a federation but the key solution is healthy debate and discussion between the parties involved.
References
- http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=373
- https://nationalinterest.in/indias-hardcoded-grand-strategy-4af0c1044e96
- http://ili.ac.in/pdf/dks.pdf
- http://cwc.gov.in/sites/default/files/legalinstruments1.pdf
- http://cwc.gov.in/water-disputes-resolution
- http://legalaffairs.gov.in/sites/default/files/Article%20262%20and%20Inter-State%20Disputes%20relating%20to%20Water.pdf
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