August 15, 2009

ADMINISTRATIVE RELATIONS; Chapter - 2 Group 1 & Group 2

The Constitution has clearly delimited the scope of legislative and executive authority of the union and the states. It is at the same time expressly provided under Article 256 of the Constitution that the executive power of the states shall be so exercised as to ensure compliance with the laws of Parliament. Also the union executive power extends to the giving of such directions to the states as may appear to the Government of India to be necessary for the purpose. It is further stipulated under Article 257 of the Constitution that if the state government fails to endorse the laws passed by the Parliament within its jurisdiction, the union government can issue directions to the states to ensure their compliance. Adequate provisions have been made in the Constitution for the division of executive powers between the centre and the states.

The executive power of the centre extends primarily to matters with respect to which Parliament has exclusive authority to make laws. Similarly the executive powers of the states extend to all those matters which are within their legislative domain. But with regard to the matters which are in the concurrent list there are three courses of action with the parliament in reference to the enforcement of legislation. It can leave it entirely to the states or may take over the task of enforcing it or it may take upon the enforcement of a part of the law, leaving the rest of it to the states for enforcement.

The executive power of the union also extends to giving of directions to the states as to the construction and maintenance of means of communication declared to be of national or military importance. The union government can give directions to the states for the protection of railways within the states. There is a constitutional provision under which the President may, with the consent of a state government, entrust either conditionally or unconditionally to a state or to its officers, functions in relation to any matter falling within the ambit of union executive power.

A state can also, with the consent of union government confer administrative functions on the union. India, being a federation, the Constitution establishes dual polity with the union at the centre and the states at the periphery. The dual government system-and the division of powers are key features of the federal system. Since cooperation and coordination between the central and state governments are necessary for smooth running of the federation, the Constitution provides for a detailed division of executive, legislative and financial powers.

The administrative relations between the union and states can be discussed under two parts (a) powers exercised by union over the states as granted by the Constitution and (b) powers exercised by extra constitutional agencies.

Division of Administrative powers between the centre and the states as per Centre-State Administrative constitutional provisions:

a) Directives by the union to the state governments: The executive power of the union also extends to giving of direction to the state under Article 256 for their compliance. This power of the Union extends to the limit of directing a state in a manner it feels essential for the purpose. For instance, the union can give directives to the state pertaining to the construction and maintenance of means of communication declared to be of national or military importance or protection of railways within the state. This is essential to ensure the implementation of parliamentary laws throughout the country. Non-compliance of the directives might lead to a situation where the union can invoke Article 356, for imposition of President's rule in the state and take over the administration of state.

b) Delegation of union functions to the states: Under the constitutional provision of Article 258 the President may, with the consent of the state government entrust either conditionally or unconditionally to the government, functions relating to any matter falling within the ambit of union executive power. Under clause (2), Parliament is also entitled to use the state machinery for the enforcement of the union laws, and confer powers and entrust duties to the state. A state can also, with the consent of union government confer administrative functions on the union.

c) All India Services: Besides central and state services, the Constitution under Article 312 provides for the creation of additional "All-India services" common to both the union and states. The state has the authority to suspend the officials of All India Services.

The power of appointment and taking disciplinary action against them vests only with the President of India. The idea of having an integrated well knit All India Services to manage important and crucial sectors of administration in the country which was the legacy of the past was incorporated in our Constitution. Their recruitment, training, promotion disciplinary matters are determined by the central government. A member of the Indian Administrative Service (IAS) on entry into the service is allotted to a state where he/she serves under a state government. This arrangement wherein a person belonging to the All India Service being responsible for administration of affairs both at the centre and states, brings co-operation in administration.

d) Deployment of Military and Para-military Forces: These can be deployed in a state by the union, if situation warrants, even against the wishes of the state government.

e) Constitution of Joint Public Service Commission for Two or more States: When two or more states through a resolution to that effect, in their respective legislatures agree to have one such Commission, the Parliament may by law, provide for a joint commission. The constitution of the Commission facilitates inter-governmental co-operation. There is also a provision in the Constitution wherein, on request by two or more states the UPSC can assist those states in framing and operating schemes of joint recruitment to any service for which candidates with special qualifications are required.

f) Judicial System: A distinctive feature of our federal system is the presence of integrated judicial system. Though we have federal form of government with two sets of government and dual powers, there is no dual system of administration of justice. This is clear by the presence of single integrated chain of courts to administer both union and state laws with the Supreme Court at the apex of hierarchy of courts. The practice of having one set of courts which was present in our country under the Government of India Act 1935 continued thereafter under our Constitution.

The state governments are empowered to undertake the administration of justice and to constitute courts for this purpose. Hence, there is a High Court in each-state as the highest court within the territory of state which is required to administer both the union and the state Iaws. Hence, the Constitution stipulates that the Chief Justice of the High Court be appointed by the President in consultation with the Chief Justice of India and the Governor of the State. The Constitution also provides for creation by the Parliament through law, a common High Court for two or more states. For example, the states of Assam and Nagaland have a common High Court, Maharashtra & Goa, and Punjab & Haryana. The administration of justice falls entirely within the sphere of state irrespective of whether a matter pertains to civil or criminal law or whether such a law is enacted by Parliament or state legislature.

g) Inter-State Council: India is a union of states wherein the centre plays a prominent role but at the same time is dependent on the states for the execution of its policies. The Constitution has provided for devices to bring about inter-governmental co-operation, effective consultations between the centre and states so that all important national policies are arrived at through dialogue, discussion and consensus. One such device is the setting up of the Inter-State Council. The President is given the powers under Article 263 of the Constitution to define the nature of the duties of the Council. The Council is to inquire into and advise upon disputes which may have arisen between the states. In addition, it may investigate and discuss subjects of common interest between the union and the states or between two or more states in order to facilitate co-ordination of policy and action.

Three such councils have been set up - (i) Central Council of Health; (ii) Central Council of Local Self-Government; and (iii) Transport Development Council.

Based on the Sarkaria Commission's recommendations, a permanent Inter-State Council has been created on 1 April 1990, consisting of six Union Cabinet Ministers and the Chief Ministers of all the States and those Union Territories with a Legislative Assembly with Prime Minister as the Chairman. The Sarkaria Commission recommended that in order to differentiate the Inter-State Council from other bodies set up under the Article it must be called Inter-Governmental Council.

h) Inter-State Water Disputes: In India there are many inter-state rivers and their regulation and development has been a source of inter-state function. These relate to the use, control and distribution of waters of inter-state rivers for irrigation and power generation. In the Indian Constitution, water-related matters within a state are included in the state list, while the matters related to inter-state river waters are in the union list. Keeping in view this problem of unending river water disputes, the Constitution framers vested the power to deal with it, exclusively in Parliament. The Parliament hence, may by law provide for the adjudication of any dispute or complaint, with regard to use, distribution or control of the waters. The Inter-State Water Disputes Act was enacted by the Parliament in 1956 according to which tribunals are set up for adjudication of water disputes referred to them.

The Union government has so far, set up four Inter State Tribunals for Narmada, Krishna, Godavari and Cauvery. Parliament may constitute an authority like the Inter-State Commerce Commission in the USA to enforce the provisions of the Constitution relating to freedom of trade, commerce and intercourse throughout the territory of India. Such an authority has however not yet been set up.

Federal government involves dual government. It is therefore necessary to provide for the acceptance of public acts of both governments to avoid inter-governmental conflict. In the functioning of federation, a state refusing to recognize acts and records of another state may give rise to confusion and inconvenience. To eliminate such a possibility, the Constitution of India provides the 'full faith and credit clause'. Article 261 (i) of the Constitution stipulates that full credit and faith shall be given throughout India to public acts, records, and judicial proceedings of the union and all the states. The term 'public acts' relates to not only statutes but to all other legislative and executive acts of the union and the states. This clause serves a very important purpose of eliminating any possible hindrance to the normal transaction of administrative activities in the Indian federation.

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