This article is written by Arkadyuti Sarkar, a student of Shyambazar Law College under the University of Calcutta. This article discusses the administrative relation existing among the Union, the States, and the local authorities or bodies.

Introduction

The Union of India has a unique fusion of unitary and federalism. Under the Indian Constitution, there has been a distribution of powers between the Central and the States.

There are certain subject matters lying to be dealt with by the Union Government, i.e under the Union List. Again, there are certain subject matters required to be dealt with by the States, i.e. the State List. Then there is a concurrent list where there is the presence of subject matters which are capable of being dealt both by the Union and the State. If any sort of dispute arises regarding dealing with the subjects under the concurrent list between the Union and the State, then the decision of the center shall prevail over that of the State.

Moreover, there is a delegation of legislative and executive powers by the Union upon the States who in turn sub-delegates those powers upon the local authorities.

However, in this article, our focus shall be on the existence of the administrative relations among the Union, the States and the local bodies (Municipality, Panchayat, etc).

Administrative relationship between the Union and the States

Chapter II, Article 256 to Article 263 of the Constitution of India, 1949 deals with the administrative relationship existing between the Union and the States, and also with the Central’s methods of controlling the States. The following are the ways through which the Center exercises control over the States:

A) Direction to the State Governments by the Union Government

According to Constitutional expert DD Basu; the Union’s idea of directing the States is foreign and repugnant to the federal rule. However, this idea was adopted by our Constitution framers from the Government of India Act, 1935, viewing the peculiar scenario of India and special circumstances resulting in the emergence of the federation.

The obligation of the Union and the States

According to Article 256; the State’s executive power shall be exercised in compliance with the Parliamentary legislation, and the executive powers of the Union shall be extended up to directing a State which as it may find necessary for the purpose.

Control of the Union over the States in certain matters

According to Article 257; the exercise of the executive powers of the States must not impede or prejudice the exercising of the executive power of the Union, and the executive power of the Union shall extend up to directing a State which as it may find necessary for the purpose.

Such directions by the Union Government may also extend to a State in 2 specific matters- a) The construction and maintenance of the communication mean possessing national and military significance, b) Measures to be adopted by the States in protecting the railroads situated within the perimeter of the States.

This directive power by no means encroaches on the Parliamentary powers to declare highways or waterways as National Highways and waterways, and construct communication modes as a part of functions relating to the military forces of the Union.

If any extra cost is incurred by the State Government, while carrying out the directions of the Union Government; relating to construction and maintenance of the national and military communication, or relating to the protection of the railroads within the States, then the Union Government shall pay such sum as agreed under this provision. If the Center and the States fail to agree regarding the payment of such compensation, then an arbitrator appointed by the Chief Justice of India shall decide on the matter.

B) Delegation of Union’s function upon the States

I. Power of the Union to confer powers, etc on the State in certain matters

According to Article 258;

1. The Parliament may, with the consent of the State Government, either conditionally or unconditionally, entrust the state or its officers with functions relating to the executive power of the Union.
2. The Parliament is also empowered to use the State machinery for enforcing the Central laws and may confer and impose duties upon the State or its officers in this regard. It is notable that the delegation of power mentioned under clause 1 is delegated with the State’s consent, whereas the delegation under clause 2 can be done by the Parliament without the consent.
3. If a law conferring delegated powers and duties is passed, it would be the duty of the officers of the State to implement it. Thus, the Parliament is capable of interfering in the State’s administrative affairs even without the State’s consent.

 II. Powers of the States to entrust functions on the Union

According to Article 258 A; the Governor of a state with the consent of the Union Government, may entrust it or its officers with functions, relating to any matter which is under the domain of the Union’s executive power.

C) Full faith and credit clause

According to Article 261; full faith and credit shall be provided throughout the Indian territory to the following:

1. Public acts,
2. Records, and
3. Judicial Proceedings of the Union and each State.

Also, final judgment or orders passed by Civil Courts in any part of the territory can be executed anywhere in the country.

D) Disputes relating to Water

According to Article 262;

The Parliament has authorization to legally provide adjudication of any dispute or complaints with respect to-

1. The uses;
2. Control or distribution over the waters of any interstate river or river valley.

The Parliament may legislate to withhold the Supreme Court or any other Court to have jurisdiction over disputes relating to the water of the inter-state rivers and river valleys. 

E) Grants in aid

The economic resources of the State are very limited although they have to perform many social upliftment tasks under the requirement of the Directive Principles. In order to cope with their ever-expanding needs, the Central Government grants aid to the States.

These aid grants serve a twofold purpose-

• The Central Government exercises strict control over the States because these grants are subject to two certain conditions and it is withdrawable if any State disagrees with these conditions. It forms a center-state coordination & cooperation.

F) All-India Services

According to Article 312; if the Rajya Sabha passes a resolution of national interest supported by a ⅔rd majority, the Parliament may legislate to create one or multiple All-India Services having conditions for persons appointed to any service.

This provision is objected towards ensuring greater inter-state coordination and implementation of the policies of the Central Government. Also, this helps the Central Government to implement the Union laws through the State Government.

Cooperative Federalism

According to Article 263; if at any time the President opines that the public interests would be served by the establishment of a Council charged with the duty of-

1. Inquiring into and advising on disputes between the States;
2. Investigating and discussing on subject matters of common interest between the States, or the Union and one or multiple States;
3. To recommend upon any subject, particularly for the better coordination of policy and action, then the President shall by order establish such council, and define-

• The nature of the duties performed by it,
• Its organization and procedure.

Constitution of the Council

The Council shall be constituted by the following members-

1. The Prime Minister;
2. Chief Ministers from all the States;
3. Chief Ministers of the Union Territories having a legislative assembly and the Administrators form the Union Territories lacking a legislative Assembly;
4. 6 Cabinet Ministers in the Union Ministerial Council nominated by the Prime Minister.

The Prime Minister shall be the Chairman of this Council and preside over its meeting. In his absence, he may nominate any Union Cabinet Minister for the purpose.

The Procedure of the Council

1. The Council shall adopt guidelines to identify and select issues which are to be brought before it;
2. The Council may meet 3 times every year;
3. The meeting of the Council shall be recorded by Camera;
4. The members shall form a question for the Council meeting;
5. All such framed questions shall be decided through consensus;
6. The Council may while conducting its business observe such other procedures as it may lay down from time to time.

Administrative relationship between the State and the Local bodies

1) The Panchayats

The 73rd Constitutional amendment envisaged Gram Sabha as the plinth of the Panchayati Raj System for performing functions and powers entrusted upon it by the State Legislatures. The amendment provides for the establishment of a three-tier system at the village, intermediate, and district levels for a duration of 5 years, after which there shall be elections.

Gram Sabha

According to Article 243-A; the Gram Sabha may exercise such powers and perform such functions as the State Legislature may legally vest upon it. This Gram Sabha is the plinth of the Panchayati Raj System, constituted by persons registered in the electoral rolls of a village comprising the Panchayat area at the village level.

Constitution of Panchayat

Article 243-B; in every state, there shall be Panchayats at the village, intermediate, and district levels. The small States having a population up to 20 lakhs have been given the option of not forming a Panchayat at the intermediate level.

1. Composition of Panchayat

According to Article 243-C;

1. the State Legislature may make legal provisions pertaining to the formation of Panchayats. Provided that the ratio between the population of the Panchayat’s territorial area at any level and the number of electoral seats in such Panchayat shall, as far as practicable, be uniform throughout the State;
2. All the Panchayat seats shall be filled by persons chosen through direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be categorized into territorial constituencies in a way that the ratio between the population of each constituency and the number of allotted seats, as much as practicable, has uniformity;
3. The State Legislature may legally provide the following persons for representing in Panchayats-

• The Chairpersons at the village and intermediate level. In case of a State lacking Panchayats at the intermediate level, in the district level Panchayats;
• The Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level;
• The members of the Lok Sabha and the Vidhan Sabha representing constituencies which comprise totally or partly a Panchayat area at the level other than the village level;
• The members of the Rajya Sabha and the Legislative Council of the State where they are registered as electors. The Chairperson of a Panchayat and other Panchayat members irrespective of being directly elected or not from territorial constituencies in the Panchayat area shall have the voting right in the Panchayat meetings; The Chairman at the village level shall be elected in a manner specified by the State Legislature, and that for a Panchayat at the intermediate level or district level, shall be elected by and from amongst, the elected members.

D) Panchayat Elections

According to Article 243-K;

• The superintendence,
• direction, and
• controlling the preparation of the electoral roll,

for conducting all Panchayat elections shall be vested in the State Election Commission;

1. Subject to the legal provisions made by the State Legislature, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may ascertain by rule;
2. The State Governor shall, on request of the State Election Commission, provide it with necessary staff for discharging the functions conferred on the State Election Commission under clause 1;
3. Subject to the provisions of this Constitution, the State Legislature may legally provide with respect to all matters relating to, or in connection with, elections to the Panchayats.

E) Continuation of existing laws & Panchayats

According to Article 243 N; notwithstanding anything mentioned here, any existing legal provision relating to Panchayats in a State immediately before the commencement of the Constitution (73rd Amendment) 1992, having inconsistency with the provisions of this part, shall continue to operate until amended or repealed by a competent Legislature or other authority or until the expiration of 1 year from such commencement. However, the Panchayats existing immediately preceding such commencement shall continue until the expiration of their duration-

• Unless dissolved earlier by a resolution passed by the State Legislative Assembly; or
• In case of a State having a Legislative Council, by each house of the State Legislature.

2) The Municipalities

I. Constitution of the Municipalities

According to Article 243 Q;

1. The following 3 types of Municipal Corporation for urban areas-

a) a Nagar Panchayat for a transitional area,

b) a Municipal Council for a small area, and

c) a Municipal Corporation for a large area.

1. In this article,

• a transitional area,
• a smaller urban area, or
• a larger urban area,

means such area as the Governor may, after considering the-

• Population and the population density,
• the revenue generated for local administration,
• the percentage of employment in non-agricultural activities,
• the economic importance or other necessary factors, specify through public notice.

II. Composition

According to Article 243 R;

1. all the seats in a Municipality shall be filled by directly elected representatives from the territorial constituencies in the Municipal area, and for this purpose, each Municipal area shall be divided into wards.
2. The State Legislature may legally provide-

1. for representing in a Municipality of-

i) specially acknowledged or experienced persons in the Municipal administration;

ii) the Loksabha members and the Vidhansabha members representing constituencies comprising the whole or part of the Municipal area;

iii) the members from the States Council and the members of the Legislative Council, who are registered elected representatives within tile Municipal area;

1. iv) the Chairpersons of the Committees constituted under article 243S.

Provided that the experienced persons shall not have the voting right in the Municipal meetings;

b. the manner of electing the Chairperson of a Municipality.

III. Constitution and Composition of Ward Committees

According to Article 243 S;

• There shall be the formation of Wards Committees, consisting of one or more Wards, within the municipal territory having a population of 3 lakhs or higher, shall be formed.
• The State legislature may legally provide for-

1. Wards Committee shall be a member of that Committee.
2. The creation and the territorial extension of a Wards Committee;

• A Municipal member representing any municipal ward shall be deemed as a committee member.
• Where a Wards Committee consists of:

1. One ward, the representative member of that ward in the Municipality; or
2. In the case of 2 or more wards, one of the members representing such wards in the Municipality elected by the members shall be Chairperson of that Committee.

Nothing in this article shall prevent the State Legislature from providing for the Constitution of Committees in addition to the Wards Committees.

IV. Power, authority, and responsibility

According to Article 243 W;

The State Legislature may legally endow-

1. Such necessary powers and authority upon the Municipality to enable them to function as self-government institutions and such law may provide for the devolution of powers and responsibilities upon Municipalities, subject to specified conditions, with respect to-

i) preparing plans for economic development and social justice;

ii) performing functions and the implementation of schemes as may be entrusted 

 to them, including the matters listed in the 12th Schedule;

2. the Committees with such necessary powers and authority to enable them in carrying out the responsibilities conferred upon them, including those in relation to the matters listed under the 12th Schedule.

V. Committee for Metropolitan Planning

According to Article 243 ZE:

1. There shall be a Metropolitan Planning Committee in every Metropolitan Area which has to be constituted for preparing a draft development plan for the whole Metropolitan area.

2) The State Legislature may legally provide with respect to-

1. the formation of the Metropolitan Planning Committees;
2. the manner involving the filing of seats in such Committees.
3. the representation, in such Central Committees and the State Committees and of such organizations and institutions, as may be deemed necessary for carrying out the functions assigned to such Committees.
4. assignment to such Committees, the functions which relate to planning and coordination for the Metropolitan area;
5. The selection manner of the Chairpersons for such Committees.

3) Every Metropolitan Planning Committee shall, in preparing the draft of development plan-

a. Consider-

i) the plans prepared by the Municipalities and the Panchayats of such area;

ii) common interest matters between the Municipalities and the Panchayats, including-

• co-ordinated spatial planning of the area,
• water distribution and other physical and natural resources,
• the integrated development of infrastructure and environmental conservation;

iii) the overall objectives and priorities made by the Union and the State Government;

iv) the extent and nature of investments likely to be made in the Metropolitan area by the Central and the State Government agencies and other available resources.

b. consult such institutions and organizations as may be specified in the Governor’s order.

4) The Chairperson of every Metropolitan Planning Committee shall forward the committee recommended development plan, to the State Government.

Conclusion

So, it is apparent from our learnings that the Indian system is sui generis. It is a blend of the unitary system and the federal system with a high centralizing tendency. Even without an emergency, the State Governments act as a subsidiary of the Central Government. The Union Government carries out and extends various legislative and executive functions through the State machinery. Also, there is a council for dealing with disputes between the States, chaired by the Prime Minister.

The State Legislatures in India, further delegate their legislative and administrative power upon:

a) the Panchayats for the village areas and districts, and

b) Municipalities for the transitional and small or large urban areas.

References

1. The Constitution of India
2. Constitutional law of India (53rd edition) by Dr. JN Pandey.

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