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CASIRJ

Volume 5 Issue 2 [Year - 2014]

ISSN 2319 – 9202

ADMINISTRATIVE RELATIONS BETWEEN CENTER AND STATE
Ramesh kumar
Ph.d scholar in public administration, kurukshetra university

Narender joon
LL.M, Kurukshetra university kurukshetra INTRODUCTION:
The most operational irritants to Centre State Relations springs in administrative sphere
& they have led to most slanderous accusation against executive functionaries and decision makers. It is an area in which seemingly detailed provisions of the Constitution have not helped much. In the modern administrative age, administration plays a very significant role by way of enforcing the law of promoting socio-economic welfare of the people. The pattern of administrative relationship between the Centre and the State, therefore, assumes a great significance in developing country like India. The Indian Constitution contains more elaborate provisions regarding the administrative relation between the Centre and the States than are to be found in any of the three federation of the U.S.A., Canada and Australia. The Constitution lays down a flexible and permissive and not a rigid scheme of allocation of administrative responsibilities between the Centre and State. The scheme is so designed as to permit all kind of co-operative administrative arrangement between the two levels of Government.
It is notable, however, that though legislative and judicial power is defined by the
Constitution, this is not the case with the executive in our Constitution. Some Constitutional experts like Wade & Philips, try to define executive functions by including in it "not only the direction of national policy, but also the execution of effectuation that policy by administrative acts." The executive functions so understood include the initiation of legislation, the maintenance of order and the promotion of social and economic welfare and indeed all administration1.
The Supreme Court of India has tried to define executive functions as follows2
"Ordinarily the executive power connotes the residue of Governmental functions that remains after legislative and judicial functions are taken away subject, of course, to the provisions of the
Constitution or of any law. The executive function comprises both the determination of policy as
1

2

Wade & Philips, Constitutional Law, 7th ed., pp 17-18
Ram Javaya Kapoor Vs. State of Punjab (1955) 2 SCR 225

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well as carrying it into execution, the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of welfare policy, in fact, the carrying on or supervision of the general administration of the State."
DISTRIBUTION OF ADMINISTRATIVE POWERS:In modern times a State has become a welfare State and as a consequence, execution has gained importance even at the cost of legislation and judicial functions. Along with the distribution of legislative power, the executive power has also been divided between the Centre and the States. Subject to few exceptions, the general principle followed in this connection is that executive power is co-terminus with legislative power. The scope and extent of the executive power of Center extent to:(a)

the exercise of rights, authority and jurisdiction available to the Government of
India under a treaty or agreement, and

(b)

the matter with respect to which parliament has power to make laws, subject to the exception that it does not extend in a State with respect to matters regarding which the State Legislature has power to make laws, provided that in a matter with respect to which Parliament and State Legislature have power to make laws, the executive power of a State is subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or its authorities3.

From the above Constitutional provisions, the following propositions emerge:
(a)

the executive power of the Centre extends to the whole of India in respect of matters in List I.

(b)

However, the Centre is not obligated to administer by itself all matters in its executive domain. In case, if it so desires, entrust administrative responsibility in any matter to the States.

(c) a State's executive power extends to its territory in respect of
List II.
(d)

In respect of matters in which both the Centre and the States have legislative powers (which means List III and List II in cases falling under Article 249, 250,
252, 353 and 356), ordinarily, the executive power rests with the States except when either the Constitution, or a Law of Parliament, expressly confers it on the
Centre. In this area, therefore, there are several alternatives available. If the
Centre makes no law, the executive power rests with the States, when the Centre makes a law, it can adopt any of the following alternatives regarding power under that law:
(i)

3

matters in

it can leave it with the States, or

Article 162

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(ii)

may take over administrative power itself by making and express opinion in the law to this effect; or

(iii)

may create a concurrent area by taking a part of executive power itself and leaving the rest to the States.

In the concurrent field, therefore, ordinarily the authority to execute laws rests with the
States even when the law is passed by the Centre. In the exceptional cases, however, Parliament may prescribe that the execution of Central Law shall be with the Centre alone or with both the
Centre and the States. (In the field, even after the Centre assumes executive power under its law, the residuary executive power under the entry may still rest with the States4) for example under the Industrial Dispute Act, enacted by the Parliament under Entry 22, List III, administrative power rests with both the Centre & the States.
POWER OF UNION TO GIVE DIRECTION TO THE STATES:
The Article which confer power on the Union to give directions to the States in the exercise of their executive power are of vital importance to the proper and smooth day to day working of the Central Government. Article 256, 257, 339 (2), 350A and 365 constitute a remarkable feature of the Indian Constitution. These provisions symbolize the intention of the
Constitution makers to create and atmosphere of cooperation and coordination in the executive area of the Constitution. Article 256 of the Constitution provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by the Parliament and any existing law which apply to that State and the executive power of the Union shall extend to giving of such directions to the State as may appear the Government of India to be necessary for that purpose (Article 256).
Sub clauses (2) and (3) of Article 257 extend the executive power of the Union so as to enable it to give direction to a State as to the construction and maintenance of means of communication declare in the direction to be of National and Military importance and to the giving of directions to a State as to the measures to be taken for the protection of the Railway within the States. Sub Clause (4) of that Article deals with the disbursement to the State by the
Union of the excess costs incurred by the State in respect of matters dealt with in clauses 2 and 3 of that Article. Article 257 is a negative injunction which requires that the executive power of every State shall be so exercised as not to impede or prejudice the executive power of the Union.
Besides Article 256 and 257, the Union has power under Article 339 (2) to give directions to a State for the preparation and execution of schemes for the welfare of the Schedule
Tribes in the State. Similarly, directions may be given to a State for providing instructions in the mother tongue at the primary stage of education, to children belonging to linguistic minorities
(Article 350A).
Further the power of Union under Article 353A to give directions to a State during emergency as to the manner in which executive power of the State is to be exercised is so sweeping that such a direction may have the effect of bringing the State Government under

4

Bishamber Dayal Chandra Mohan Vs. U.P. AIR 1982 SC 33.

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complete control of the Union without suspending it. But the Union Government can not by such directions take over the executive functions of the States.
The Constitutions makers in India were conscious of the provisions with regard to central directives in other countries and were aware of difficulties faced by several federations in the administrative sphere. Explaining the objectives of Article 256, Dr. Ambedkar observed that it envisaged two propositions5:"The first proposition is that generally the authority to execute laws which relates to what is called the concurrent field, whether the law is passed by the Central Legislature or it is passed by the State Legislature, shall ordinarily apply to the State. The second proposition is that if in any particular case Parliament thinks that in passing a law which related to the concurrent field, the execution ought to be retained by the Central Government. Parliament shall have the power to do so....."
Though the necessity of provisions of Article 257 except relating to communications is established in view of the common agencies maintained. In the distribution of jurisdiction between the Union and the States, only such highways and waterways as are declared by the
Parliament to be national, fall in sphere of Union responsibility but despite this distribution the
Union has been empowered to give directions to the State for the construction and maintenance of means of communications considered by it to be of national importance.
As a corollary to the power given to the Union to issue directions to the States, both in an emergency and otherwise, it has been provided in Article 365 that if any States fails to comply with or give effect to any direction issued, the President may hold that a situation has arisen in which the Government of that State can not be carried on in accordance with the provisions of the Constitution. The consequence of such a view taken by President is that the penal provisions of Article 356 of supersession of the State Government and its legislature are attractive.
However in Cases of Jay Engineering Works Vs. State of West Bengal6 and Deputy Accountant
General Vs. State of Kerala7,the Courts have intervene to prevent the exercise by the States of their executive power in contravention of the laws made by Parliament. If the executive action by a State is not in compliance with a law made by Parliament, it would be open to a citizen to challenge the action of the States executive in an appropriate Court and obtain redress. This would be apart from any action which the Union Government may itself choose to take under its power to give a direction to the State Government under Article 256.
Even the Sarkaria Commission has recommended retention of aforesaid Articles 256 and
257 and noted that the objection to the said Article rested mainly on hypothetical rather than empirical basis because the power to give directions under these two Articles had never been invoked. The Commission noted that Articles 256, 257 and 365 are wholesome provisions designed to secure coordination between the Union and the States for effective implementation
5

6
7

Constitution Assembly Debates, VII, p. 1136.

AIR 1968 Col 407
AIR 1970 Ker 158

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of Union laws and the National Policies indicated therein or nonetheless, a direction under these
Articles and the application of the sanction under Article 365 in the event of its non compliance should be a measure of last resort to cope with situation of irreconcilable differences8.
INTERGOVERNMENTAL DELEGATION OF ADMINISTRATIVE POWER:
Article 258 of the Constitution has, however, made a two fold provision of delegation of
Union Powers to the States. First the Union Government may, with the consent of the State
Government, delegate to it, the Union's executive power on specified subjects, conditionally or unconditionally. Secondly, Parliament may, while legislating on a Union subject, confer power and impose duties or authorized the conferring of powers and imposition of duties upon a State or Officers and Authorities therefore, for administering the law made. The difference between the two provisions is that, in the first case, the Union executive can not act on its own without the consent of the State but in the second case, it can act unilaterally by reasons of the authority given by Parliament.
The Case of Jayanti Lal Amrat Lal Vs. F.N. Rana9 is one of the most important Cases on
Article 258 (1). Under the Land Acquisition Act, 1894, the Central Government is competent to acquire land for the purposes of the Union. The Central Government by the notification under
Article 258 (1) entrusted this power to the Commissioners in the State of Bombay who were to exercise the power subject to the control of the State Government. Thereafter, the State of
Gujarat was carved out the State of Bombay and a Commissioner in Gujarat, acting under the original entrustment of power, took proceedings to acquire certain land for the Union purposes.
Section 87 of the States Reorganization Act kept alive all laws prevailing in the State before reorganization. When the Commissioner's power to acquire land was challenged, the Supreme
Court by a majority upheld the view that the Presidential notification under Article 258 (1) had the force of law and so was kept alive by Section 87 of the State Reorganization Act.
ALL INDIA SERVICES:All India Services is a specific institutional area of tension between the Centre and the
States. Some discordant notes are struck on their role and their existence and functioning are seen as an erosion of the State autonomy.
Article 312 introduces an important feature into the Constitution, namely, that besides separate Services for the Union and the States, the Centre can create certain Services common to both. If the Rajaya Sabha declares by resolution supported by not less than 2/3rd of the members present and voting that it is necessary or expedient in the national interest so to do. Parliament may by law provide for the creation of one or more All India Services (including All Indian
Judicial Services) and regulate recruitment and conditions of service for it.
The two main All India Services are the Indian Administrative Service and the Indian
Police Service. Other All India Services have been created in the field of Engineering, Forestry,
Medicine and Public Health.
8

9

Report of Sarkaria Commission on the Centre-State Relationship, op., cit, Para 2.5.22, p.29.

AIR 1964 SC 648.

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Shri Sardar Patel expressed in the Constituent Assembly the efficacy and utility of the All
India Services and conferred "that in point of patriotism, in point of loyalty, in point of sincerity and in point of ability you can not have a substitute10".
The Sarkaria Commission has recommended for retention of the All India Services and has opined that the same "are as much necessary today as they were when the Constitution was framed and continued to be one of the premier institutions for maintaining the unity of the country11." IRRITANTS OVER DEPLOYMENT OF PARAMILITARY FORCES:
An issue area which has often irritated Centre-State relations has been the deployment of
Paramilitary forces in the States. Time and again the question has cropped up whether the Union is constitutionally authorized to deploy the Armed forces or other Paramilitary forces without the consent of the State Government for the maintenance of law and order situation of a State or of the Centre or should the Centre seek prior consultations of a State before such deployment of forces. Article 355 provides that it is the duty of the Union to protect every State against external or internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. This Article puts explicit and not implicit obligation on the Centre to protect every State against any kind of internal disturbance or domestic violence effecting the normal situation of law and order. Article 355 give to the Central
Government sweeping power and vast scope for interpretation and gives ample opportunities and power to the Centre to use this Article immediately if a State Government is in the grip of domestic violence and internal chaos.
The Centre can, therefore, even act against the wishes of the State Government and deploy forces on its own will or initiative to quell internal disturbance, violence or rebellion and its decision can not be called in question in any Court of Law.
However, the maintenance of public order is primarily the responsibility of the State
Government under Article 162 read with Entry 1 of the State List. The State maintains public order through the agency of the Police which is the Civil Force under its command.
The bitter experience of the irritants over the use of Central Force during 1969-75 were taken into account in the 42nd Amendment Act, 1976 that brought about numerous changes in the arena of Central-State relations which inserted Article 257A to enable the Centre to deploy not only Armed Forces but also any other force subject to the control of the Union for dealing with any grave law and order situation in any State. It also inserted a new Entry 2A in List I for deployment of Armed Forces or other forces subject to the control of the Union in aid of Civil
Powers.
The 44th Amendment omitted Article 257A but the Entry 2A of List I and amendments made in Entries 1 & 2 of List II are still in force. The position that emerges today is that the
10
11

Constitution Assembly Debates
Report of Sarkaria Commission Centre-State Relationship, op. cit, Para 8.19.06, p. 229.

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Paramilitary Forces of the Union can be deployed in a State to control internal disturbance without the prior consent of the State.
The Sarkaria Commission has also held that existing relationship between the Union
Armed Forces and the State Civil Authorities and the manner of their functioning as prescribed in the relevant Union laws and procedures do not need any change. However, before the Union
Government deploys its Armed Forces in a State in aid of the Civil Power otherwise than on a request from the State Government or declares an area within a State as "disturbed", it is desirable that the State Government should be consulted, whenever feasible, and its cooperation sought, even though prior consultation with States is not obligatory12.
INTER STATE COUNCIL:The Constitution also makes provision for the settlement of Inter State disputes, where possible, without recourse to litigation. With this object, Article 263 empowers the President to constitute a Council to inquiry into and advise upon a dispute which may have arisen between the States. The Council is merely and advisory body and its conclusions are not mandatory, nor as the President any power to secure compliance with its recommendations. It is expected, however, that a mere inquiry and determination of the facts of a dispute by an independent
Council will, by itself, pave the way for further discussion between States leading to an amicable settlement. If this did not happen, it would yet give the Union Government opportunity as also material to try and effect Conciliation. If this also fails, it is open to parties to take the dispute to the Supreme Court which alone is competent to deal with. It has been done with respect to the distribution of Cauvery Waters.
The Sarkaria Commission has recommended that Inter State Council called the Inter
Governmental Council under Article 263 should be a permanent body and should be charged with duties set out in Article 263 other than Social Economic Planning and Development13.
IRRITANTS OVER GOVERNOR’S ROLE:One of the major cause of irritants between the Centre and the States has been the office of the Governor of India. The Governor has two fold functions to perform: - he has to sustain a harmonious relationship between the State and the Centre, and the same has to play a role of friend and guide to his Council of Ministers. However, the role of Governor have to come to viewed as a device for an authoritarian Centre to curtail the autonomy of the States. Instead of balancing the pulls and tension of a federal policy, the Governor has come to be identified as an agent of the Centre.
Following the practice of Parliamentary Government, the Governor is expected to act on the advice of the CoM of the Union (this procedure of appointment was adopted after long deliberation in the Constituent Assembly).

12

13

Report of the Sarkaria Commission on Centre-State Relationship, op. cit, Para 7.5.03, p. 199 & Para 7.7.22. p. 202.

Report of the Sarkaria Commission on Centre-State Relationship, op. cit, Para 9.3.05, p. 238 and Para 9.6.02 p. 240.

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Article 154 invests the executive power of the State in the Governor and empowers him to exercise it directly or through officers subordinate to him. Article 163(1) contemplates a CoM with the Chief Minister as its head to aid and advice "the Governor in the exercise of his functions or any of them in his discretion". The Governor is expected to act as a Constitutional
Head and carry out the advice of CoM, because Article 164 explicitly says that the CoM shall be collectively responsible to State Legislative Assembly.
In U.N. Rao Vs. Indira Gandhi14 and in M. Karunanidhis Vs. Union of India15 Cases, the
Supreme Court confirmed the view of various High Courts that the Governor is required to keep the CoM in office (under Article 163) except in the case of President Rule in the State.
However, the real controversy relating to the Office of the Governor has arisen mainly because of the role he plays in imposing President's Rule in the State. The Constitution provides that if the President in respect of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of a State can not be carried on in accordance with the Provisions of the Constitution, he can declare failure of the Constitution Machinery under Article 356. It may be noted that President make take over the Government of a State without a Governor's report if he is independently satisfied that such a cause of action is necessary. The said Article 356 has been abused on numerous occasions and has been involved for political purpose. Article 356 was first time use in Punjab in 1951 to oust Gopi Chand Bhargava on which Dr. B.R. Ambedkar commented:“.... the people have got a very legitimate ground of suspicion that the Government is manipulating the Article in the Constitution for the purpose of maintaining their own party in office in all parts of India... This is a rape of Constitution....16”
The arbitrary dismissal of the State Government, suspension and dissolution of the
Assemblies on 'purely party and partisan' considerations clearly revealed that Article 356 has been thourghly misused by the Central Government.
The Sarkaria Commission has suggested that a person to be appointed as a Governor should satisfied a stipulated criterion and a politician from the ruling party at the Union should not be appointed as a Governor of a State run by some other party or a combination of other parties. While appointing the Governor, the CM, the Vice President of India and Speaker of the
Lok Sabha might be consulted by the PM in a confidential and informal manner and should not be a matter of constitutional obligation17. Further the Commission has suggested that the
Governor's tenure of office of 5 years in a State should not be disturbed except very rarely and that too, for some extremely compelling reasons. Further the Commission recommended that the
14
15
16
17

(1971) 2SCC 63: AIR 1971 SC 1002
AIR 1979 SC 898.
Siwatch, J.R., Politics of President's Rule of India, (Simla: India Institute of Advance Study, 1979), p. 29.
Report of the Sarkaria Commission on Centre-State Relationship, op. cit,Para 4.6.33, p. 125

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Governor should not, on demitting his office, be eligible for any appointment or office of profit under the Union or a State Government except for a second term as Governor or election as Vice
President or President of India and the Governor after quitting or laying down his office should not return to active partisan politics. The report of Governor under Article 356 should be a
"speaking document" and should be made transparent.
CONCLUSION
The above discussion of administrative relation between the Centre and the States reveals that the Constitution of India has assigned very wide sweep of administrative power to the
Union. Articles 256, 257, 356 and 365 of the Constitution provide a system of comprehensive administrative control and direction of the States by the Centre. It would, however, be wrong to get the impression that the States are completely subservient to the Centre since they have their own powers and status from the Constitution itself. Many conventions have also been evolved making the States more autonomous in practice than what they would look to be in theory. For instance, constitutionally speaking, the Centre need not consult the State Government for administering the matters concerning certain subject in the Concurrent List. And yet, the Centre has always been consulting the State Government as a matter of convention before taking any decision on such matters.

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