Federal System

          Federal System

Political scientists have classified governments into unitary

and federal on the basis of the nature of relations between

the national government and the regional governments.

 By definition, a unitary government is one in which all the powers are

vested in the national government and the regional governments, if

at all exist, derive their authority from the national government. Britain, France, Japan,

China, Italy, Belgium, Norway, Sweden, Spain and so on have the

unitary model of government

 A federal government, on the other hand, is one in which powers are

divided between the national government and the regional

governments by the Constitution itself and both operate in their

respective jurisdictions independently.   the US, Switzerland, Australia,

Canada, Russia, Brazil, Argentina and so on have the federal

model of government.

 In a federal model, the national government

is known as the Federal government or the Central government or

the Union government and the regional government is known as the

state government or the provincial government.

The specific features of the federal and unitary governments are

mentioned below in a comparative manner:

The term ‘federation’ is drived from a Latin word foedus which

means ‘treaty’ or ‘agreement’. Thus, a federation is a new state

(political system) which is formed through a treaty or an agreement

between the various units. The units of a federation are known by

various names like states (as in US) or cantons (as in Switzerland)

or provinces (as in Canada) or republics (as in Russia).

Table 13.1 Comparing Features of Federal and Unitary

Governments

Federal Government Unitary Government

Federal Government Unitary Government

1. Dual Government (that

is, national

government and

regional government)

1. Single government, that is,

the national government

which may create regional

governments

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2. Written Constitution 2. Constitution may be written

(France) or unwritten (Britain)

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3. Division of powers

between the national

and regional

government

3. No division of powers. All

powers are vested in the

national government

___________________________________________________________________________________

4. Supremacy of the

Constitution

4. Constitution may be supreme

(Japan) or may not be

supreme (Britain)

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5. Rigid Constitution 5. Constitution may be rigid

(France) or flexible (Britain)

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6. Independent judiciary 6. Judiciary may be independent

or may not be independent

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7. Bicameral legislature 7. Legislature may be bicameral

(Britain) or unicameral

(China)

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A federation can be formed in two ways, that is,

 by way of integration or by way of disintegration. In the first case, a number of

militarily weak or economically backward states (independent)

come together to form a big and a strong union, as for example, the

US. In the second case, a big unitary state is converted into a

federation by granting autonomy to the provinces to promote

regional interest (for example, Canada). 

The US is the first and the

oldest federation in the world. It was formed in 1787 following the

American Revolution (1775–83). It comprises 50 states (originally

13 states) and is taken as the model of federation. The Canadian

Federation, comprising 10 provinces (originally 4 provinces) is also

quite old–formed in 1867.

The Constitution of India provides for a federal system of

government in the country. The framers adopted the federal system

due to two main reasons–the large size of the country and its socio-

cultural diversity. They realised that the federal system not only

ensures the efficient governance of the country but also reconciles

national unity with regional autonomy.

However, the term ‘federation’ has no where been used in the

Constitution. Instead, Article 1 of the Constitution describes India

asa ‘Union of States’. 

According to Dr. B.R. Ambedkar, the phrase

‘Union of States’ has been preferred to ‘Federation of States’ to

indicate two things: (i) the Indian federation is not the result of an

agreement among the states like the American federation; and (ii)

the states have no right to secede from the federation. The

federation is union because it is indestructible.1

The Indian federal system is based on the ‘Canadian model’ and

not on the ‘American model’. The ‘Canadian model’ differs

fundamentally from the ‘American model’ in so far as it establishes

a very strong centre. 

The Indian federation resembles the Candian

federation (i) in its formation (i.e., by way of disintegration); (ii) in its

preference to the term ‘Union’ (the Canadian federation is also

called a ‘Union’); and (iii) in its centralising tendency (i.e., vesting

more powers in the centre vis-a-vis the states).

FEDERAL FEATURES OF THE CONSTITUTION

The federal features of the Constitution of India are explained

below:

1. Dual Polity

The Constitution establishes a dual polity consisting the Union at

the Centre and the states at the periphery. Each is endowed with

sovereign powers to be exercised in the field assigned to them

respectively by the Constitution. The Union government deals with

the matters of national importance like defence, foreign affairs,

currency, communication and so on. The state governments, on the

other hand, look after the matters of regional and local importance

like public order, agriculture, health, local government and so on.

2. Written Constitution

The Constitution is not only a written document but also the

lengthiest Constitution of the world. Originally, it contained a

Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules.2 At

present (2019), it consists of a Preamble, about 470 Articles

(divided into 25 Parts) and 12 Schedules.3

It specifies the structure,

organisation, powers and functions of both the Central and state

governments and prescribes the limits within which they must

operate. Thus, it avoids the misunderstandings and disagreements

between the two.

3. Division of Powers

The Constitution divided the powers between the Centre and the

states in terms of the Union List, State List and Concurrent List in

the Seventh Schedule. The Union List consists of 98 subjects

(originally 97), the State List 59 subjects (originally 66) and the

Concurrent List 52 subjects (originally 47). Both the Centre and the

states can make laws on the subjects of the concurrent list, but in

case of a conflict, the Central law prevails. The residuary subjects

(ie, which are not mentioned in any of the three lists) are given to

the Centre.

4. Supremacy of the Constitution

The Constitution is the supreme (or the highest) law of the land.

The laws enacted by the Centre and the states must conform to its

provisions. Otherwise, they can be declared invalid by the Supreme

Court or the high courts through their power of judicial review. Thus,

the organs of the government (legislative, executive and judicial) at

both the levels must operate within the jurisdiction prescribed by the

Constitution.

5. Rigid Constitution

The division of powers established by the Constitution as well as

the supremacy of the Constitution can be maintained only if the

method of its amendment is rigid. Hence, the Constitution is rigid to

the extent that those provisions which are concerned with the

federal structure (i.e., Centre-state relations and judicial

organisation) can be amended only by the joint action of the Central

and state governments. Such provisions require for their

amendment a special majority4 of the Parliament and also an

approval of half of the state legislatures.

6. Independent Judiciary

The Constitution establishes an independent judiciary headed by

the Supreme Court for two purposes: one, to protect the supremacy

of the Constitution by exercising the power of judicial review; and

two, to settle the disputes between the Centre and the states or

between the states. The Constitution contains various measures

like security of tenure to judges, fixed service conditions and so on

to make the judiciary independent of the government.

7. Bicameralism

The Constitution provides for a bicameral legislature consisting of

an Upper House (Rajya Sabha) and a Lower House (Lok Sabha).

The Rajya Sabha represents the states of Indian Federation, while

the Lok Sabha represents the people of India as a whole. The

Rajya Sabha (even though a less powerful chamber) is required to

maintain the federal equilibrium by protecting the interests of the

states against the undue interference of the Centre.

UNITARY FEATURES OF THE CONSTITUTION

Besides the above federal features, the Indian Constitution also

possesses the following unitary or non-federal features:

1. Strong Centre

The division of powers is in favour of the Centre and highly

inequitable from the federal angle. Firstly, the Union List contains

more subjects than the State List. Secondly, the more important

subjects have been included in the Union List. Thirdly, the Centre

has overriding authority over the Concurrent List. Finally, the

residuary powers have also been left with the Centre, while in the

US, they are vested in the states. Thus, the Constitution has made

the Centre very strong.

2. States Not Indestructible

Unlike in other federations, the states in India have no right to

territorial integrity. The Parliament can by unilateral action change

the area, boundaries or name of any state. Moreover, it requires

only a simple majority and not a special majority. Hence, the Indian

Federation is “an indestructible Union of destructible states”. The

American Federation, on the other hand, is described as “an

indestructible Union of indestructible states”.

3. Single Constitution

Usually, in a federation, the states have the right to frame their own

Constitution separate from that of the Centre. In India, on the

contrary, no such power is given to the states. The Constitution of

India embodies not only the Constitution of the Centre but also

those of the states. Both the Centre and the states must operate

within this single-frame. The only exception in this regard was the

case of Jammu and Kashmir which had its own (state)

Constitution.5

4. Flexibility of the Constitution

The process of constitutional amendment is less rigid than what is

found in other federations. The bulk of the Constitution can be

amended by the unilateral action of the Parliament, either by simple

majority or by special majority. Further, the power to initiate an

amendment to the Constitution lies only with the Centre. In US, the

states can also propose an amendment to the Constitution.

5. No Equality of State Representation

The states are given representation in the Rajya Sabha on the

basis of population. Hence, the membership varies from 1 to 31. In

US, on the other hand, the principle of equality of representation of

states in the Upper House is fully recognised. Thus, the American

Senate has 100 members, two from each state. This principle is

regarded as a safeguard for smaller states.

6. Emergency Provisions

The Constitution stipulates three types of emergencies–national,

state and financial. During an emergency, the Central government

becomes all powerful and the states go into the total control of the

Centre. It converts the federal structure into a unitary one without a

formal amendment of the Constitution. This kind of transformation is

not found in any other federation.

7. Single Citizenship

In spite of a dual polity, the Constitution of India, like that of

Canada, adopted the system of single citizenship. There is only

Indian Citizenship and no separate state citizenship. All citizens

irrespective of the state in which they are born or reside enjoy the

same rights all over the country. The other federal states like US,

Switzerland and Australia have dual citizenship, that is, national

citizenship as well as state citizenship.

8. Integrated Judiciary

The Indian Constitution has established an integrated judicial

system with the Supreme Court at the top and the state high courts

below it. This single system of courts enforces both the Central laws

as well as the state laws. In US, on the other hand, there is a

double system of courts whereby the federal laws are enforced by

the federal judiciary and the state laws by the state judiciary.

9. All-India Services

In US, the Federal government and the state governments have

their separate public services. In India also, the Centre and the

states have their separate public services. But, in addition, there are

all-India services (IAS, IPS, and IFS) which are common to both the

Centre and the states. The members of these services are recruited

and trained by the Centre which also possess ultimate control over

them. Thus, these services violate the principle of federalism under

the Constitution.

10. Integrated Audit Machinery

The Comptroller and Auditor-General of India audits the accounts of

not only the Central government but also those of the states. But,

his appointment and removal is done by the president without

consulting the states. Hence, this office restricts the financial

autonomy of the states. The American Comptroller-General, on the

contrary, has no role with respect to the accounts of the states.

11. Parliament’s Authority Over State List

Even in the limited sphere of authority allotted to them, the states

do not have exclusive control. The Parliament is empowered to

legislate on any subject of the State List if Rajya Sabha passes a

resolution to that effect in the national interest. This means that the

legislative competence of the Parliament can be extended without

amending the Constitution. Notably, this can be done when there is

no emergency of any kind.

12. Appointment of Governor

The governor, who is the head of the state, is appointed by the

President. He holds office during the pleasure of the President. He

also acts as an agent of the Centre. Through him, the Centre

exercises control over the states. The American Constitution, on the

contrary, provided for an elected head in the states. In this respect,

India adopted the Canadian system.

13. Integrated Election Machinery

The Election Commission conducts elections not only to the Central

legislature but also to the state legislatures. But, this body is

constituted by the President and the states have no say in this

matter. The position is same with regard to the removal of its

members as well. On the other hand, US has separate machineries

for the conduct of elections at the federal and state levels.

14. Veto Over State Bills

The governor is empowered to reserve certain types of bills passed

by the state legislature for the consideration of the President. The

President can withhold his assent to such bills not only in the first

instance but also in the second instance. Thus, the President

enjoys absolute veto (and not suspensive veto) over state bills. But

in US and Australia, the states are autonomous within their fields

and there is no provision for any such reservation.

CRITICAL EVALUATION OF THE FEDERAL SYSTEM

From the above, it is clear that the Constitution of India has

deviated from the traditional federal systems like US, Switzerland

and Australia and incorporated a large number of unitary or non-

federal features, tilting the balance of power in favour of the Centre.

This has prompted the Constitutional experts to challenge the

federal character of the Indian Constitution. Thus, KC Wheare

described the Constitution of India as “quasi-federal”. He remarked

that “Indian Union is a unitary state with subsidiary federal features

rather than a federal state with subsidiary unitary features.”6

According to K Santhanam, the two factors have been

responsible for increasing the unitary bias (tendency of

centralisation) of the Constitution. These are: (i) the dominance of

the Centre in the financial sphere and the dependence of the states

upon the Central grants; and (ii) the emergence of a powerful

erstwhile planning commission which controlled the developmental

process in the states6a

. He observed: “India has practically

functioned as a unitary state though the Union and the states have

tried to function formally and legally as a federation.”7

However, there are other political scientists who do not agree

with the above descriptions. Thus, Paul Appleby8 characterises the

Indian system as “extremely federal”. Morris Jones9

termed it as a

“bargaining federalism”. Ivor Jennings10 has described it as a

“federation with a strong centralising tendency”. He observed that

“the Indian Constitution is mainly federal with unique safeguards for

enforcing national unity and growth”. Alexandrowicz11 stated that

“India is a case sui generis (i.e., unique in character). Granville

Austin12 called the Indian federalism as a “cooperative federalism”.

He said that though the Constitution of India has created a strong

Central government, it has not made the state governments weak

and has not reduced them to the level of administrative agencies for

the execution of policies of the Central government. He described

the Indian federation as “a new kind of federation to meet India’s

peculiar needs”.

On the nature of Indian Constitution, Dr. B.R. Ambedkar made

the following observation in the Constituent Assembly: “The

Constitution is a Federal Constitution in as much as it establishes a

dual polity. The Union is not a league of states, united in a loose

relationship, nor are the states the agencies of the Union, deriving

powers from it. Both the Union and the states are created by the

Constitution, both derive their respective authority from the

Constitution.”13 He further observed: “Yet the Constitution avoids

the tight mould of federalism and could be both unitary as well as

federal according to the requirements of time and circum-

stances”.14 While replying to the criticism of over-centralisation in

the Constitution, he stated: “A serious complaint is made on the

ground that there is too much centralisation and the states have

been reduced to municipalities. It is clear that this view is not only

an exaggeration but is also founded on a misunderstanding of what

exactly the Constitution contrives to do. As to the relations between

the Centre and the states, it is necessary to bear in mind the

fundamental principle on which it rests. The basic principle of

federalism is that the legislative and executive authority is

partitioned between the Centre and the states not by any law to be

made by the Centre but by the Constitution itself. This is what the

Constitution does. The states are in no way dependent upon the

Centre for their legislative or executive authority. The states and the

Centre are coequal in this matter. It is difficult to see how such a

Constitution can be called centralism. It is, therefore, wrong to say

that the states have been placed under the Centre. The Centre

cannot by its own will alter the boundary of this partition. Nor can

the judiciary”.15

In Bommai case16 (1994), the Supreme Court laid down that the

Constitution is federal and characterised federalism as its ‘basic

feature’. It observed: “The fact that under the scheme of our

Constitution, greater power is conferred upon the Centre vis-a-vis

the states does not mean that the states are mere appendages of

the Centre. The states have an independent constitutional

existence. They are not satellites or agents of the Centre. Within the

sphere allotted to them, the states are supreme. The fact that

during emergency and in certain other eventualities their powers

are overridden or invaded by the Centre is not destructive of the

essential federal feature of the Constitution. They are exceptions

and the exceptions are not a rule. Let it be said that the federalism

in the Indian Constitution is not a matter of administrative

convenience, but one of principle–the outcome of our own process

and a recognition of the ground realities”.

In fact, the federalism in India represents a compromise between

the following two conflicting considerations17 :

(i) normal division of powers under which states enjoy autonomy

within their own spheres; and

(ii) need for national integrity and a strong Union government under

exceptional circumstances.

The following trends in the working of Indian political system

reflects its federal spirit: (i) Territorial disputes between states, for

example, between Maharashtra and Karnataka over Belgaum; (ii)

Disputes between states over sharing of river water, for example,

between Karnataka and Tamil Nadu over Cauvery Water; (iii) The

emergence of regional parties and their coming to power in states

like Andhra Pradesh, Tamil Nadu, etc.; (iv) The creation of new

states to fulfil the regional aspirations, for example, Mizoram or

Jharkhand; (v) Demand of the states for more financial grants from

the Centre to meet their developmental needs; (vi) Assertion of

autonomy by the states and their resistance to the interference from

the Centre; (vii) Supreme Court’s imposition of several procedural

limitations on the use of Article 356 (President’s Rule in the States)

by the Centre.18

can we justify the view that despite unitary features in India constitution Indian polity has more federal tendencies?

Yes, we can justify the view that despite unitary features in the Indian Constitution, Indian politics has more federal tendencies. Some of the reasons for this include:

• The growing power of the states: The states of India have become increasingly powerful in recent years. This is due to a number of factors, including the rise of regional parties and the growing economic power of the states. As a result, the central government has been more willing to consult with the states and to share power with them.
• The role of regional parties: Regional parties have played a major role in Indian politics in recent decades. These parties are based on regional identity and culture, and they often have a strong federalist agenda. Regional parties have often been able to form coalitions at the national level, which has given them greater bargaining power with the central government.
• The role of the judiciary: The Supreme Court of India has played a key role in protecting the federal principles of the Constitution. The Court has struck down a number of laws that it has found to be violative of the federal structure.
• The increasing demands of diversity: India is a diverse country with a wide range of languages, cultures, and religions. This diversity has led to increasing demands for autonomy and self-determination from different regions and groups. The central government has been more responsive to these demands in recent years.

Some specific examples of federal tendencies in Indian politics include:

• The central government has been more willing to share tax revenue with the states.
• The central government has given the states more autonomy in areas such as education and healthcare.
• The central government has been more willing to consult with the states on issues of national importance.
• The regional parties have played a major role in forming and running the central government.
• The Supreme Court has struck down a number of laws that it has found to be violative of the federal structure.

While the Indian Constitution has unitary features, the political system has become more federal in recent years. This is due to a number of factors, including the growing power of the states, the role of regional parties, the role of the judiciary, and the increasing demands of diversity.

It is important to note that federalism is a dynamic concept, and it is constantly evolving. The balance of power between the central government and the state governments can change over time, depending on a variety of factors.

                                       Centre-State Relations 

The Constitution of India, being federal in structure, divides all powers (legislative, executive and financial) between the Centre and the states.

 However, there is no division of judicial power as the Constitution has established an integrated judicial system to enforce both the Central laws as well as state laws. 

Though the Centre and the states are supreme in their respective fields, the maximum harmony and coordination between them is essential for the effective operation of the federal system. Hence, the Constitution contains elaborate provisions to regulate the various dimensions of the relations between the Centre and the states. 

The Centre-state relations can be studied under three heads: •

 Legislative relations 

 Administrative relations. 

 Financial relations.

 LEGISLATIVE RELATIONS Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations between the Centre and the states. Besides these, there are some other articles dealing with the same subject. 

Like any other Federal Constitution, the Indian Constitution also divides the legislative powers between the Centre and the states with respect to both the territory and the subjects of legislation. 

Further, the Constitution provides for the parliamentary legislation in the state field under five extraordinary situations as well as the centre’s control over state legislation in certain cases. 

Thus, there are four aspects in the Centre-states legislative relations, viz., • Territorial extent of Central and state legislation; •

 Distribution of legislative subjects; • 

Parliamentary legislation in the state field; and •

 Centre’s control over state legislation. 

1. Territorial Extent of Central and State Legislation The Constitution defines the territorial limits of the legislative powers vested in the Centre and the states in the following way: 

(i) The Parliament can make laws for the whole or any part of the territory of India. The territory of India includes the states, the union territories, and any other area for the time being included in the territory of India. 

(ii) A state legislature can make laws for the whole or any part of the state. The laws made by a state legislature are not applicable outside the state, except when there is a sufficient nexus between the state and the object. 

(iii) The Parliament alone can make ‘extraterritorial legislation’. Thus, the laws of the Parliament are also applicable to the Indian citizens and their property in any part of the world.

However, the Constitution places certain restrictions on the plenary territorial jurisdiction of the Parliament. In other words, the laws of Parliament are not applicable in the following areas: (i) The President can make regulations for the peace, progress and good government of the five Union Territories– the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and Ladakh. A regulation so made has the same force and effect as an act of Parliament. It may also repeal or amend any act of Parliament in relation to these union territories. (ii) The governor is empowered to direct that an act of Parliament does not apply to a scheduled area in the state or apply with specified modifications and exceptions. (iii) The Governor of Assam may likewise direct that an act of Parliament does not apply to a tribal area (autonomous district) in the state or apply with specified modifications and exceptions. The President enjoys the same power with respect to tribal areas (autonomous districts) in Meghalaya, Tripura and Mizoram. 

2. Distribution of Legislative Subjects The Constitution provides for a three-fold distribution of legislative subjects between the Centre and the states, viz., List-I (the Union List), List-II (the State List) and List-III (the Concurrent List) in the Seventh Schedule: 

(i) The Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the Union List. This list has at present 98 subjects (originally 971 subjects) like defence, banking, foreign affairs, currency, atomic energy, insurance, communication, inter-state trade and commerce, census, audit and so on. 

(ii) The state legislature has “in normal circumstances” exclusive powers to make laws with respect to any of the matters enumerated in the State List. This has at present 59 subjects (originally 662 subjects) like public order, police, public health and sanitation, agriculture, prisons, local government, fisheries, markets, theaters, gambling and so on. 

(iii) Both, the Parliament and state legislature can make laws with respect to any of the matters enumerated in the Concurrent List. This list has at present 52 subjects (originally 473 subjects) like criminal law and procedure, civil procedure, marriage and divorce, population control and family planning, electricity, labour welfare, economic and social planning, drugs, newspapers, books and printing press, and others. 

The 42nd Amendment Act of 1976 transferred five subjects to Concurrent List from State List, that is, (a) education, (b) forests, (c) weights and measures, (d) protection of wild animals and birds, and (e) administration of justice; constitution and organisation of all courts except the Supreme Court and the high courts. 

(iv) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a state even though that matter is one which is enumerated in the State List. 

                                                     This provision has reference to the Union Territories or the Acquired Territories (if any). 

(v) The 101st Amendment Act of 2016 has made a special provision with respect to goods and services tax. Accordingly, the Parliament and the state legislature have power to make laws with respect to goods and services tax imposed by the Union or by the State. Further, the parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods or services or both takes place in the course of inter-state trade or commerce. 

(vi) The power to make laws with respect to residuary subjects (i.e., the matters which are not enumerated in any of the three lists) is vested in the Parliament. This residuary power of legislation includes the power to levy residuary taxes. From the above scheme, it is clear that the matters of national importance and the matters which require uniformity of legislation nationwide are included in the Union List. The matters of regional and local importance and the matters which permit diversity of interest are specified in the State List. The matters on which uniformity of legislation throughout the country is desirable but not essential are enumerated in the concurrent list. Thus, it permits diversity along with uniformity. In US, only the powers of the Federal Government are enumerated in the Constitution and the residuary powers are left to the states. The Australian Constitution followed the American pattern of single enumeration of powers. In Canada, on the other hand, there is a double enumeration– Federal and Provincial, and the residuary powers are vested in the Centre. The Government of India Act of 1935 provided for a three-fold enumeration, viz., federal, provincial and concurrent. The present Constitution follows the scheme of this act but with one difference, that is, under this act, the residuary powers were given neither to the federal legislature nor to the provincial legislature but to the governorgeneral of India. In this respect, India follows the Canadian precedent. The Constitution expressly secures the predominance of the Union List over the State List and the Concurrent List and that of the Concurrent List over the State List. Thus, in case of overlapping between the Union List and the State List, the former should prevail. In case of overlapping between the Union List and the Concurrent List, it is again the former which should prevail. Where there is a conflict between the Concurrent List and the State List, it is the former that should prevail. In case of a conflict between the Central law and the state law on a subject enumerated in the Concurrent List, the Central law prevails over the state law. But, there is an exception. If the state law has been reserved for the consideration of the president and has received his assent, then the state law prevails in that state. But, it would still be competent for the Parliament to override such a law by subsequently making a law on the same matter. 3. Parliamentary Legislation in the State Field The above scheme of distribution of legislative powers between the Centre and the states is to be maintained in normal times. But, in abnormal times, the scheme of distribution is either modified or suspended. In other words, the Constitution empowers the Parliament to make laws on any matter enumerated in the State List under the following five extraordinary circumstances: When Rajya Sabha Passes a Resolution If the Rajya Sabha declares that it is necessary in the national interest that Parliament should make laws with respect to goods and services tax3a or a matter in the State List, then the Parliament becomes competent to make laws on that matter. Such a resolution must be supported by two-thirds of the members present and voting. The resolution remains in force for one year; it can be renewed any number of times but not exceeding one year at a time. The laws cease to have effect on the expiration of six months after the resolution has ceased to be in force. This provision does not restrict the power of a state legislature to make laws on the same matter. But, in case of inconsistency between a state law and a parliamentary law, the latter is to prevail. During a National Emergency The Parliament acquires the power to legislate with respect to goods and services tax3b or matters in the State List, while a proclamation of national emergency is in operation. The laws become inoperative on the expiration of six months after the emergency has ceased to operate. Here also, the power of a state legislature to make laws on the same matter is not restricted. But, in case of repugnancy between a state law and a parliamentary law, the latter is to prevail. When States Make a Request When the legislatures of two or more states pass resolutions requesting the Parliament to enact laws on a matter in the State List, then the Parliament can make laws for regulating that matter. A law so enacted applies only to those states which have passed the resolutions. However, any other state may adopt it afterwards by passing a resolution to that effect in its legislature. Such a law can be amended or repealed only by the Parliament and not by the legislatures of the concerned states. The effect of passing a resolution under the above provision is that the Parliament becomes entitled to legislate with respect to a matter for which it has no power to make a law. On the other hand, the state legislature ceases to have the power to make a law with respect to that matter. The resolution operates as abdication or surrender of the power of the state legislature with respect to that matter and it is placed entirely in the hands of Parliament which alone can then legislate with respect to it. Some examples of laws passed under the above provision are Prize Competition Act, 1955; Wild Life (Protection) Act, 1972; Water (Prevention and Control of Pollution) Act, 1974; Urban Land (Ceiling and Regulation) Act, 1976; and Transplantation of Human Organs Act, 1994. To Implement International Agreements The Parliament can make laws on any matter in the State List for implementing the international treaties, agreements or conventions. This provision enables the Central government to fulfil its international obligations and commitments. Some examples of laws enacted under the above provision are United Nations (Privileges and Immunities) Act, 1947; Geneva Convention Act, 1960; Anti-Hijacking Act, 1982 and legislations relating to environment and TRIPS. During President’s Rule When the President’s rule is imposed in a state, the Parliament becomes empowered to make laws with respect to any matter in the State List in relation to that state. A law made so by the Parliament continues to be operative even after the president’s rule. This means that the period for which such a law remains in force is not coterminous with the duration of the President’s rule. But, such a law can be repealed or altered or re-enacted by the state legislature. 4. Centre’s Control Over State Legislation Besides the Parliament’s power to legislate directly on the state subjects under the exceptional situations, the Constitution empowers the Centre to exercise control over the state’s legislative matters in the following ways: (i) The governor can reserve certain types of bills passed by the state legislature for the consideration of the President. The president enjoys absolute veto over them. (ii) Bills on certain matters enumerated in the State List can be introduced in the state legislature only with the previous sanction of the president. (For example, the bills imposing restrictions on the freedom of trade and commerce). (iii) The Centre can direct the states to reserve money bills and other financial bills passed by the state legislature for the President’s consideration during a financial emergency. From the above, it is clear that the Constitution has assigned a position of superiority to the Centre in the legislative sphere. In this context, the Sarkaria Commission on Centre-State Relations (1983– 88) observed: “The rule of federal supremacy is a technique to avoid absurdity, resolve conflict and ensure harmony between the Union and state laws. If this principle of union supremacy is excluded, it is not difficult to imagine its deleterious results. There will be every possibility of our two-tier political system being stultified by interference, strife, legal chaos and confusion caused by a host of conflicting laws, much to the bewilderment of the common citizen. Integrated legislative policy and uniformity on basic issues of common Union-state concern will be stymied. The federal principle of unity in diversity will be very much a casualty. This rule of federal supremacy, therefore, is indispensable for the successful functioning of the federal system”.4 ADMINISTRATIVE RELATIONS Articles 256 to 263 in Part XI of the Constitution deal with the administrative relations between the Centre and the states. In addition, there are various other articles pertaining to the same matter. Distribution of Executive Powers The executive power has been divided between the Centre and the states on the lines of the distribution of legislative powers, except in few cases. Thus, the executive power of the Centre extends to the whole of India: (i) to the matters on which the Parliament has exclusive power of legislation (i.e., the subjects enumerated in the Union List); and (ii) to the exercise of rights, authority and jurisdiction conferred on it by any treaty or agreement. Similarly, the executive power of a state extends to its territory in respect of matters on which the state legislature has exclusive power of legislation (i.e., the subjects enumerated in the State List). In respect of matters on which both the Parliament and the state legislatures have power of legislation (i.e., the subjects enumerated in the Concurrent List), the executive power rests with the states except when a Constitutional provision or a parliamentary law specifically confers it on the Centre. Therefore, a law on a concurrent subject, though enacted by the Parliament, is to be executed by the states except when the Constitution or the Parliament has directed otherwise.5 Obligation of States and the Centre The Constitution has placed two restrictions on the executive power of the states in order to give ample scope to the Centre for exercising its executive power in an unrestricted manner. Thus, the executive power of every state is to be exercised in such a way (a) as to ensure compliance with the laws made by the Parliament and any existing law which apply in the state; and (b) as not to impede or prejudice the exercise of executive power of the Centre in the state. While the former lays down a general obligation upon the state, the latter imposes a specific obligation on the state not to hamper the executive power of the Centre. Table 14.1 Articles Related to Centre-State Legislative Relations at a Glance Article No. Subject Matter 245. Extent of laws made by Parliament and by the legislatures of states 246. Subject-matter of laws made by Parliament and by the legislatures of states 246A. Special provision with respect to goods and services tax 247. Power of Parliament to provide for the establishment of certain additional courts 248. Residuary powers of legislation 249. Power of Parliament to legislate with respect to a matter in the state list in the national interest 250. Power of Parliament to legislate with respect to any matter in the state list if a Proclamation of Emergency is in operation 251. Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the legislatures of states 252. Power of Parliament to legislate for two or more states by consent and adoption of such legislation by any other state 253. Legislation for giving effect to international agreements 254. Inconsistency between laws made by Parliament and laws made by the legislatures of states 255. Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only In both the cases, the executive power of the Centre extends to giving of such directions to the state as are necessary for the purpose. The sanction behind these directions of the Centre is coercive in nature. Thus, Article 365 says that where any state has failed to comply with (or to give effect to) any directions given by the Centre, it will be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution. It means that, in such a situation, the President’s rule can be imposed in the state under Article 356. Centre’s Directions to the States In addition to the above two cases, the Centre is empowered to give directions to the states with regard to the exercise of their executive power in the following matters: (i) the construction and maintenance of means of communication (declared to be of national or military importance) by the state; (ii) the measures to be taken for the protection of the railways within the state; (iii) the provision of adequate facilities for instruction in the mothertongue at the primary stage of education to children belonging to linguistic minority groups in the state; and (iv) the drawing up and execution of the specified schemes for the welfare of the Scheduled Tribes in the state. The coercive sanction behind the Central directions under Article 365 (mentioned above) is also applicable in these cases. Mutual Delegation of Functions The distribution of legislative powers between the Centre and the states is rigid. Consequently, the Centre cannot delegate its legislative powers to the states and a single state cannot request the Parliament to make a law on a state subject. The distribution of executive power in general follows the distribution of legislative powers. But, such a rigid division in the executive sphere may lead to occasional conflicts between the two. Hence, the Constitution provides for intergovernment delegation of executive functions in order to mitigate rigidity and avoid a situation of deadlock. Accordingly, the President may, with the consent of the state government, entrust to that government any of the executive functions of the Centre. Conversely, the governor of a state may, with the consent of the Central government, entrust to that government any of the executive functions of the state.6 This mutual delegation of administrative functions may be conditional or unconditional. The Constitution also makes a provision for the entrustment of the executive functions of the Centre to a state without the consent of that state. But, in this case, the delegation is by the Parliament and not by the president. Thus, a law made by the Parliament on a subject of the Union List can confer powers and impose duties on a state, or authorise the conferring of powers and imposition of duties by the Centre upon a state (irrespective of the consent of the state concerned). Notably, the same thing cannot be done by the state legislature. From the above, it is clear that the mutual delegation of functions between the Centre and the state can take place either under an agreement or by a legislation. While the Centre can use both the methods, a state can use only the first method. Cooperation Between the Centre and States The Constitution contains the following provisions to secure cooperation and coordination between the Centre and the states: (i) The Parliament can provide for the adjudication of any dispute or complaint with respect to the use, distribution and control of waters of any inter-state river and river valley. (ii) The President can establish (under Article 263) an Inter-State Council to investigate and discuss subject of common interest between the Centre and the states. Such a council was set up in 1990.7 (iii) Full faith and credit is to be given throughout the territory of India to public acts, records and judicial proceedings of the Centre and every state. (iv) The Parliament can appoint an appropriate authority to carry out the purposes of the constitutional provisions relating to the interstate freedom of trade, commerce and intercourse. But, no such authority has been appointed so far. All-India Services Like in any other federation, the Centre and the states also have their separate public services called as the Central Services and the State Services respectively. In addition, there are all-India services–IAS, IPS and IFS. The members of these services occupy top positions (or key posts) under both the Centre and the states and serve them by turns. But, they are recruited and trained by the Centre. These services are controlled jointly by the Centre and the states. The ultimate control lies with the Central government while the immediate control vests with the state governments. In 1947, Indian Civil Service (ICS) was replaced by IAS and the Indian Police (IP) was replaced by IPS and were recognised by the Constitution as All-India Services. In 1966, the Indian Forest Service (IFS) was created as the third All-India Service. Article 312 of the Constitution authorises the Parliament to create new All-India Services on the basis of a Rajya Sabha resolution to that effect. Each of these three all-India services, irrespective of their division among different states, form a single service with common rights and status and uniform scales of pay throughout the country. Though the all-India services violate the principle of federalism under the Constitution by restricting the autonomy and patronage of the states, they are supported on the ground that (i) they help in maintaining high standard of administration in the Centre as well as in the states; (ii) they help to ensure uniformity of the administrative system throughout the country; and (iii) they facilitate liaison, cooperation, coordination and joint action on the issues of common interest between the Centre and the states. While justifying the institution of all-India services in the Constituent Assembly, Dr. B.R. Ambedkar observed that: “The dual polity which is inherent in a federal system is followed in all federations by a dual service. In all federations, there is a Federal Civil Service and a State Civil Service. The Indian federation, though a dual polity, will have a dual service, but with one exception. It is recognised that in every country there are certain posts in its administrative set up which might be called strategic from the point of view of maintaining the standard of administration. There can be no doubt that the standard of administration depends upon the calibre of the civil servants who are appointed to the strategic posts. The Constitution provides that without depriving the states of their rights to form their own civil services, there shall be an all-India service, recruited on an allIndia basis with common qualifications, with uniform scale of pay and members of which alone could be appointed to those strategic posts throughout the Union”.8 Public Service Commissions In the field of public service commissions, the Centre-state relations are as follows: (i) The Chairman and members of a state public service commission, though appointed by the governor of the state, can be removed only by the President. (ii) The Parliament can establish a Joint State Public Service Commission (JSPSC) for two or more states on the request of the state legislatures concerned. The chairman and members of the JSPSC are appointed by the president. (iii) The Union Public Service Commission (UPSC) can serve the needs of a state on the request of the state governor and with the approval of the President. (iv) The UPSC assists the states (when requested by two or more states) in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required. Integrated Judicial System Though India has a dual polity, there is no dual system of administration of justice. The Constitution, on the other hand, established an integrated judicial system with the Supreme Court at the top and the state high courts below it. This single system of courts enforces both the Central laws as well as the state laws. This is done to eliminate diversities in the remedial procedure. The judges of a state high court are appointed by the president in consultation with the Chief Justice of India and the governor of the state. They can also be transferred and removed by the president. The Parliament can establish a common high court for two or more states. For example, Maharashtra and Goa or Punjab and Haryana have a common high court. Relations During Emergencies (i) During the operation of a national emergency (under Article 352), the Centre becomes entitled to give executive directions to a state on ‘any’ matter. Thus, the state governments are brought under the complete control of the Centre, though they are not suspended. (ii) When the President’s Rule is imposed in a state (under Article 356), the President can assume to himself the functions of the state government and powers vested in the Governor or any other executive authority in the state. (iii) During the operation of a financial emergency (under Article 360), the Centre can direct the states to observe canons of financial propriety and can give other necessary directions including the reduction of salaries of persons serving in the state

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