Essay on the distribution of power between the Union and States of India



Distribution of federal powers is essentially based on the notion of territoriality and specification of subjects accordingly. Thus, matters of local interests or those subjects which do not have transboundary implications have been put together under the state lists.

The list comprises 62 items or entries over which the state legislature has exclusive competence of legislation and execution. The list includes such subjects like public order and police, local govern­ment, public health and sanitation, agriculture, forests, fisheries, sales tax and other duties.

The union list enumerating 96 items empowers union Parliament to legislate on matters of foreign affairs, defence, currency, citizenship, communication, banking, union duties, taxes, etc.

However, there are subjects like industry, mines and minerals, which find place in both the lists. To find an explainable answer to this, one has to look into the types of competence available in the federal scheme of India. Broadly, there are three types of competence: one, on which the respective sets of government have exclusive and distinct competence.

It is rarely that on item like defence, foreign affair etc., delegation of authority is made by the union government. Two, on items like indus­try, mines and minerals, the state government has exclusive but limited competence. On these sub­jects, its competence is subjected to the regulation by the union government in order to serve the larger public and national interests.

Lastly, there are items of concurrent jurisdiction (List three) on which each unit of the federation enjoys exclusive but concurring competence. In the event of conflict, it is usually the union law that prevails over states' laws. On matters of non-enumerated item, the union government has been vested with residuary powers of legislation.

So far as the distribution of executive authority is concerned, it generally follows the scheme of distribution of the legislative powers. In other words, executive powers of the union and state govern­ments are co-extensive with their respective legislative competence. In the case of state govern­ment, its executive authority over a legislative field has been subjected to the qualificatory restriction of 'doctrine of territorial nexus'.

As regards matters included in the concurrent Legislative List (i.e. List III), the executive function shall ordinarily remain with the states, but subject to the provisions of the constitution or of any law of Parliament conferring such function expressly upon the union".

Thus, under the Land Acquisition Act 1894; and Industrial Disputes Act, 1947 Provision to Article 73], the centre has assigned to itself all the executive functions pertaining to these two acts. However, of importance are some of the exclusive executive powers of the union, defiance or non cognizance of the same by the states may attract plenary action as it amounts to the violation of the constitution.

This includes union's powers to give directions to the state governments; ensuring due compliance with union laws; ensuring exercise of executive power of the state in such a manner as not to interfere with the union's executive power; "to ensure the construction and maintenance of the means of communication of national or military importance by the state; to ensure protection of railways within the state, to ensure drawing and execution of schemes specified in the directions to be essential for the welfare of the Scheduled Tribes in the states, securing adequate provision by the state for in­struction in mother tongue at the primary stage; ensuring development of Hindi language in the state, and above all, "to ensure that the government of a state is carried on in accordance with the provisions of the constitution".

Also, during emergency of any type, the union government may regu­late through its power of issuing directions the manner in which the executive power of the state has to be exercised. In other words, the state has been assigned certain obligatory duties under the federal constitution of India.

The centre-state administrative relationship is based on the principle of division Jurisdictional parti­tioning of control and execution of decisions over a subject matter, coordination and cooperation in policy and planning. In many areas, while centre retains its exclusive legislative competence, it, however, delegates powers of ancillary legislation and exclusive executive competence to take deci­sions independently to the states.

The centre administers directly only on the matters pertaining to defence, foreign affairs including passports, communications (post and telegraphs, telephones), the union list taxes, and industrial regulation. On rest of the enumeration in the union lists, the adminis­trative function is exercised by the states 'under statutory or executive delegation'.

The constitution details the essential features of the union-state administrative relations, and raises no walls of separation between them. There is no rigid pattern of allocation of responsibilities.

The union Parliament may confer powers, and may impose duties under laws pertaining to the union list matters. The President may entrust functions to the state governments "in relation to any matter, to which the executive power of the Union extends.

The state executive functions can, notwithstand­ing anything, be entrusted either conditionally or unconditionally" to the central government. In actual practice the states exercises a large measure of executive authority even within the administrative field of the union government.