By Kalyani Mahesh
The Constitution of India 1950 is the underlying law of the country. It is of ample weightage that it contains not only rules and regulations but also lays down the primary framework for the Fundamental Rights and Duties to the Citizens, political principles and powers to be followed by various governmental institutions etc.
The Constitution is neither purely federal nor purely unitary .Many Scholars have often defined it as “Quasi-Federal” in nature. So, in the Unitary Constitution powers are centralized into one government i.e., the Central Government and Provinces are subordinate to it.
Whereas, in a federal Constitution there existed a division of the powers between Federal and state Government and within their own boundaries, they were considered to be independent. American Constitutionis an example of a federal Constitution because it has duality that is being followed namely, Federal and State Government. But when their own spheres are taken into account, they remain independent of their own powers in their own spheres.
“ In practice, the Constitution of India is Quasi-Federal in Nature and not strictly federal.”
“The Constitution of India is neither purely federal nor purely unitary but is a combination of both. It is a union or a composite of a novel type.”
The soul architect of the Constitution of India Dr. B.R Ambedkar, observed that though the Drafting Committee wanted to implement the idea of Federation, the federation was not a result of an agreement by the States to join in the federation and that federation not being the result of an agreement, no State has the right to separate itself from the same. For the convenience of the proper implementation of the administration, the Country and the people may be divided into different States, but the whole Country is one Integral whole.
The Constitution of India was framed up in 1950.The framework defines the political principles, procedures ;powers and duties of various governmental institutions and lays down the fundamental rights and duties of the citizens.
A parliamentary system as well as the Doctrine of Division of Powers is followed by the government .It is neither purely federal nor purely unitary and hence scholars and erudite call it “quasi-federal”. Thus, it becomes observable that India has moved from competitive federalism to cooperative federalism as times have passed.
This is an article that verifies the relationship in administration between the Center and the State.
ADMINISTRATIVE RELATIONSHIP BETWEEN THE CENTER AND THE STATE
It is under Article 256 -263 where the aspects of administration relation between the center and the state are stated explicitly for our understanding. Another Commission by the name Punchhi Commission was also framed up in the year 2007, to give details on the Center and State relations.
The subject matter of laws which are to be made by the parliament and State Legislatures are explained in Article 246 exclusively. UnderSchedule VIII of the Constitution lays down 3 lists and these divide the subjects between the center and the states ;list I being the Union List , second – the State List , and the third is the Concurrent List.
As it is, the Central government has the Administrative authority over the matters on which the parliament is empowered to make laws. The State government’s exercises Administrative Authority over the matters included in the State List as specified.
THE OBLIGATION OF STATES AND THE UNION
There are 2 parts for the Article 256, that gives a better understanding of the same.
Primarily, it stipulates that the powers of the State are to be exercised in such a way that it complies and goes in accord with the Parliamentary or any other laws in vogue that are applicable to the States. The important second aspect is that, the executive power of the Union includes in its purview ,the directions that are given to the states by the Central Government ,which it deems necessary for the proper conduct of administration.
Apparently, it shows that if the States duly agree with the first part, then the second part does not seem necessary .Sometimes it is absolutely inevitable to agree with the second part and if the States fails to do so, it becomes obvious that the States are guilty of violation and negligence, of the first part.
The above said fact goes with the underlying presumption that the States at the sometime or the other turn out guilty of willful defiance or negligence of its duties.
The successor, Article 256 of Section 22 of the Government of India Act, 1935 keeps itself silent about the nonchalant and non-compliant nature, drastic sanction is laid down in Article 365 of the Constitution. If a State fails to comply with the directions issued by the Centre, it is justifiable for the President to suggest that as the situation has sprung up, where in the State Government cannot go on with the provisions of the Constitution. A consequent effect is the imposing of State emergency. It gives us the implied theme that the proper execution of Central Laws in all the states are necessary.
Rameshwar Oraon vs. State of Bihar and Ors. (1995), it was pronounced that it was mandatory for the State Government to act according to the directions issued by the Central Government.
State of Karnataka vs. Union of India (1977), it was held that the Centre can issue directions to a State as a legal entity, not as a geographical or territorial unit under Article 256.
Further, inState of Rajasthan vs. Union of India (1977), it was held that the issuance of directions to the State government by the Centre under Article 256 is justifiable absolutely ,and the state government may be of the opinion that the executive power is exercised is in contravention to the laws of the central authority.
CONTROL OF UNION OVER STATES IN CERTAIN CASES
Article 257 of the Constitution of India ,1950 deals with subject:
Article 257(1) explains that the exercise of executive powers of the State Government should be done in a manner that it does not hamper or prejudice the exercise of executive powers of the Central Government .The second part of this clause is similar to that mentioned in Article 256, and it states that Central Government can issue directions to the State Government for the purposes that are inevitable.
Article 257(2) also holds that the executive powers of the Union to issue directions to the States can be extended in the matters of construction and maintenance of means of communication ,which are of national or military importance. Though communication is a State subject under Entry 13 List II ,Schedule VII of the Constitution the Union has been empowered to issue directions.
The Covenant states that nothing in this particular provision would be considered as a restraint for the Parliament to :
- Declare certain highways /waterways as National highways or waterways.
- Maintenance of the construction of means of communication as the part of its function with reference to naval, military and air force purpose.
Article 257(3) adds on that the executive power of the Union to issue directions to the State, shall also extend to the measure required to be taken for the protection of the railways in a particular state.
Article 257(4) provides that for the compliance of (2) or (3) , the states incur excess cost, which would not have occurred ,had there been no mandatory direction from the Central Government ,then these costs shall be borne by the Government of India as the Government of India and the State Government happen to reach upon a consensus of the sum. If these happens to be a default on this, the arbitrator appointed by the Chief Justice of India would come forward to resolve the issue.
POWER OF THE UNION TO CONFER POWERS etc. ON STATES IN CERTAIN CASES
Article 258 of the constitution 1950 lays down the contents of this subject.
Art 258(1) starts with known obstante -clause that the President with the permission of the Governor of the state can entrust, conditionally or unconditionally the State Government or its officers to carry out functions related to any matter which comes under the purview of the executive power of the Union.
Art 258 (2) states that the law made by the Parliament is applicable to any State and may entail duties or authorize imposition of duties upon the State or authorities. It has a non obstante clause within it which it states that even if the legislature of the State has no power to make loss on that matter the Parliament made -law is applicable.
The Article 258(3) explains that the cost of administration that goes in excess which the State may incur due to conferred powers and imposed duties shall be paid by the Government of India. This sum may be paid by the Government of India. The Chief Justice of India appoints an arbitrator to see to it that the sum of extra posed incurred by the State will be determined and paid up as per the existing default agreement.
POWER OF THE STATES TO ENTRUST FUNCTIONS OF THE UNION
The above said power is the one laid down under Article 258-A of the Constitution, that begins with a non-obstante clause .The Governor of the state with the consent of the Union may entrust certain officers ,functions which are related to the matter of the executive power of the State.
This provision was invested by the 7th Amendment Act ,1946.
JURISDICTION OF THE UNION IN RELATION TO TERRITORIES OUTSIDE INDIA
It is the Article 260 that deals with the jurisdiction in relation to foreign territories .It states that the Government of India can enter into an agreement with the Government of any territory which is not the part of Indian territory. This agreement is made to undertake any executive, legislative or judicial functions vested upon the Government of that territory. All such agreements are subjected to and governed by law which pertains to the exercise of foreign jurisdiction for the time being in force.
The latent emboldening provision that was debated in the Constitutional Assembly on three different sessions –25th July 1947, 28th July 1947 and August 25th 1947 needs to be acknowledged by us. A cursory view taken upon this brings to light that the motive behind this was to provide or facilitate the administration of States that had not acceded to the Indian Union, and to streamline the same.
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 where such loss 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 the Article, to provide for the exercise of foreign jurisdiction of the Union Government .
PUBLIC ACTS, RECORDS AND JUDICIAL PROCEEDINGS
The Constitution of India deals with the public acts ,records and judicial proceedings as mentioned in Article 261.
It demands full faith and credit to be given to all the public acts ,records and judicial proceedings of a Union and all States throughout the territory of India as per Article 261(1).
Article 261(2) states that the manner in which and the 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) mentions that final verdicts or orders which are delivered or passed by the civil courts included in the Indian territory are capable of execution of the same anywhere in the territory as per law.
ADJUDICATION OF DISPUTES RELATING TO WATERS OF INTER STATE RIVERS OR RIVER VALLEYS
Article 262 of the Constitution of India deals with adjudication of disputes of the above stated issues.
Article 262(1) expresses that Parliament may form laws to provide for the adjudication of disputes or complaints in regard to the use , distribution, or control of waters of any inter -State river or any inter -State river valley .
Article 262 (2) the non-obstante clause, provides that the Parliament may provide by law that neither the Apex court nor any other court shall be able to exercise their jurisdiction in respect of any such disputes or complaints as mentioned in clause (1).
Under Entry 17, State list, Schedule 7, the States have the power to legislate on the issue of water. Under Entry 56, the Union is empowered to legislate upon the same issue as written down in Schedule 7 of the Union list.
In the exercise of power bestowed by the Article 262 the parliament enacted the Inter-State Water Disputes Act, 1956. If the water disputes does not reach a consensus, or where it is supposed to reach a settlement that has to be manifested then the center establishes a water disputes tribunal court adjudication.
There are currently five active tribunals namely Ravi and Beas, Krishna water tribunal II, Vasundhara water disputes, Mahadevi, Mahanadi and so on in vogue. Legal doctrines such as Doctrine of Riparian Rights, Prior Appropriation, Territorial Sovereignty, Community of Interest and Equitable Appointment are possibly applicable in these issues.
In the case of State of Kerala through the Chief Secretary to Government vs. State of Tamil Nadu through the Chief Secretary to Government (2018), (2018) the age long Cauvery water disputes was settled by the apex court by its judgement in the year 2018 which went on in the court between the chief secretaries of both the states i.e., Kerala and Tamil Nadu .
PROVISION WITH RESPECT TO INTER -STATE COUNCIL
If the president believes that forming an inter-State Council would help in serving the public interest then it is lawful for the President to form such Council by order as per Article 263 of the Constitution. He shall also delineate the nature of duties to he performed by the council ,its organization and procedure as well.
The president can charge the council with the following duties :-
To enquire and advise upon the disputes that would have cropped up between states ;To investigate and discuss subjects of common interest among the states who are all interested in discussing about the same issue.
To frame recommendations upon any subject and in particular to make the recommendations for augmented coordination of policy and action pertaining to it.
It was Sarkaria commission 1988 that established recommendations of inter -state council pursuing the Presidential order passed in 1990 the council was formed. And its functions are an independent n permanent .The council was reconstituted in 2019 with the Prime Minister as its chairperson.
Recently, the distrust between the Centre and the State grew because of the establishment of the Citizenship Amendment Act, 2019.And it is the need of the hour to reach a peaceful solution to the Constitutional crisis between the Centre and the States.
The one and only target is to achieve either collaboration or coordination in federal structure of the nation. So, in order to ensure the proper working of the division of powers between the center and the state, there is a certain kind of autonomy granted in order to make sure that the administration at the ground level remains productive and useful. Also, concurrently the Centre exerts or utilizes the maintenance of balance of its power over the States.
Even though the maintenance of federation faces several challenges, the key here is to find a healthy and peaceful agreement between the parties involved.