The fathers of the Indian constitutions accepted in the administrative relationship between the union and the states” the general principle laid down by the authors of the Act of 1935 that the executive power is co-extensive with the legislative power.
Indian federation is of a highly integrated nature with a bias towards unitary system. The constitution is so devised as to make the central executive stronger than the state governments. The union Government exerts its influence over the state Governments in the following ways.
(1) Appointment of the Governor:
The state Governor is appointment by the president not with the consent of the state” legislature but on the advice of the Prime Minister. The Governor although a titular head, acts as the agent of the union Government. In certain circumstances he is also empowered to act in his discretion.
(2) Directions to the state Government:
According to Act 256 the executive power of every state is to be exercised in such a way as to ensure compliance with the lanes made by parliament. Further the union executive is empowered to give such direction to a state as may appear to Government of India to be necessary for the purpose.
The centre has given directions to the state on various occasions. When the Internal Emergency was declared then the directions were given to the states by the centre that the workers, and leaders of the non CPI opposition parties should be arrested immediately and put under MISA, if possible.
After the complete rout of The Congress in March 1977 elections, the Janata Party came to power at the centre. It issued instructions to the states to protect Harijans and to implement the programme of prohibition and take steps to check the soaring prices and to ensure effective law and order to the people.
The annual Report of the Home Ministry for 1977-78 stated that is pursuance of Act. 46 of the constitutions special care was being taken to promote the educational and economic interests of the weaker sections.
In the areas prove to offences against the scheduled castes and scheduled tribes, special police guards should be set up to take prompt action against the offenders and to prevent recurrence of such offences.
(3) Executive power of the union no to be hampered by the exercise of the state executive power:
According to Act 257 (i) the executive power of every state shall be so exercised as not to impedes or prejudice the exercise of the executive power of the union shall extend to the giving of such directions to a state as may appear to the Government, of India to be necessary for that purpose.
Act. 257, clause 2, provides that the executive power of the union shall also extend to the giving of directions to a state as to construction and maintenance of means of communication declared in the direction to be of national or military importance.
Clause 3, Act 257 provides that the executive power of the union shall also extend to the giving of directions to a state as to the measures to be taken for the protection of railways within the state.
(4) Power of the Union to confer powers etc. on states in certain cases:
Act. 258 (i) provides that notwithstanding anything in this constitution, the president may with the consent of the Government of a state, entrust either conditionally or unconditionally to that Government or to its officers functions in relations to any matter to which the executive power of the union extends Act. 258
(ii) provides that “A law made by parliament which applies in any state may, notwithstanding that it related to a matter with respect to which the legislature of the state has no power to makes laws, centre powers and impose duties or authorize the conferring of powers and the imposition of duties upon the state or officers and authorities thereof.
(5) Power of the states to entrust function to the union:
Notwithstanding anything in this constitution, the Government of a state may with the consent of the Government of India, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the state extends.
(6) Jurisdiction of the union in relation to territories outside India:
Act. 260 provides, “The Government of India may by agreement with the Government of any territory not being part of the territory of India undertake any executive, legislative or judicial functions vested in the Government of such territory, but every such agreement shall be subjected to, and governed by any law relating to the exercise of foreign jurisdiction for the time being in force.”
(7) Public Acts, records and judicial proceedings:
Act. 261 (i) provides, “Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the union and of every state,” Act. 262 (2) provides that the manner in which and the conditions under which the acts, records and proceedings referred to in clause
(i) shall be proved and the effect there of determine shall be as provides that final judgements or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.
(8) Provision with respect to an inter-state council:
Article 263 of the Indian constitutions provides that if at any time it appears to the president that the public interests would be served by the establishment of a council charged with the duty of:
(a) Inquiring into and advising upon disputes which may have arisen between states.
(b) Investigating and discussing subjects in which some or all of the states of the union and one or more of the states have a common interest or
(c) Making recommendation upon any such subject and in particular, recommendations for the better co-ordination of policy and action with respect to that subject, it shall be lawful for the president by order to establish such a council, and to define the nature of the duties to be performed by its organization and procedure.
(9) The Judges of the state High Courts are appointed transferred or removed by the union Government. The elections in the state are supervised by the Election Commission appointed by the president. The control of the Auditor General India extends to the financial accounts of all the states.
Recommendations of the commission:
In the evidence before the commission most state Govt’s have appreciated the need for the provisions contained in Act 256 and 257. “One state Government has suggested deletion of these Acts including Act 365 and 356.
On the ground that these provisions by precept and practice have the tyrannical potential to cause serious towards into the functioning of the states vested both the executive and legislative powers.”
The drastic amendment of these provisions, mainly nests on theoretical promise that the provision of Act. 256 and 257 are repugnant to the federal principle. It is printed out that there is no precedent for these articles in the constitution of the United States of America and Australia.
For understanding the significance of these provisions, it is important to remember that there is no static, immutable format of a federal constitution. Each country adopts and moulds the federal idea to its peculiar conditions and needs.
The essence of the rule embodied in article 257 (i) it is an, executive fact of the principle of union supremacy.
Application of the rule of executive supremacy of the union resolves such conflicts and ensures harmony in the exercise of their respective powers by the two governments.
The commission recommends that:
(i) In a two tier system of govt, with a single judiciary, where the administration of union law is largely secured through the machinery of the states, differences are bound to arise between “the union and states in regard to the manner of implementation of union laws and the exercise of union executive powers.
Article 256 and 257 are essential to ensure harmonious exercise of the executive power by the union and by the states.
(ii) Before issuing directions to a state under Articles 256 and 257, the union should explore the possibilities of settling points conflicts by all other available means. A direction under these provisions and applications of the sanction under Article 365 in the event of its non compliance, is a measure of last resort.
(iii) According to the Sarkaria commission federation is more a functional arrangement for co-operative action, than a static institutional concept.
Article 258 provides a tool by the liberal use of which, cooperative federalism can be substantially realized in the working of the system the commission, therefore, recommends a more extensive and generous use of this tool, that has hitherto been made, for progressive decentralization of powers to the Governments of the states and their officers and authorities.
The factual position is that the power to give directions under Article 256 and 257 has never been and no proclamation has been made so far under Article 356 by the applications of Article 365.
Normally, as hitherto, differences between the union and the states, in this context, would be sorted out by mutual consultation so as to maintain a healthy and constructive relationship between them without resorting to the issue of formal constitutional directions.