One of the most difficult problems under a federal system is the adjustment of administrative relations between the Union and the States. In the absence of clear provisions in the Constitution, considerable difficulty is often experienced by the Union and the States in the discharge of these responsibilities.
The framers of the Indian Constitution therefore decided to include detailed provisions so as to avoid clashes between the Union and States in the administrative field. Here again the pattern that is adopted is based mainly on that which was established under the Government of India Act of 1935.
According to Article 256, the executive power of every State is to be exercised in such a way as to ensure compliance with the laws made by Parliament. Further, the Union Executive is empowered to give such directions to a State as may appear to the Government of India be necessary for the purpose.
The idea of the Union giving directions to the States is foreign to most federations. It is looked upon with suspicion and distrust in the United States. In Australia too, the position is more or less the same. Yet it is difficult to see how this can altogether be avoided in practice.
Explaining the object of Article 256, Ambedkar said that it envisaged two propositions:
“The first proposition is that generally the authority to execute laws which related to what is called the Concurrent field, whether the law is passed by the Central Legislature or is passed by the State Legislature shall ordinarily apply to the State.
The second proposition it lays down is that if in any particular case Parliament thinks that in passing a law which relates to the Concurrent field, the execution ought to be retained by the Central Government, Parliament shall have the power to do so.”
Ambedkar also said that if the Centre did not have such power, it would become impossible to secure the proper execution of the laws which Parliament was obliged to enact. Take, for instance, laws such as the untouchability abolition law, factory legislation, and child marriage abolition law.
“Is it desirable that these legislations of the Central Government be mere paper legislations with no effect given to them?
Is it logical, is it fair that the Centre on which responsibility has been cast by the Constitution in the matter of untouchability should merely pass a law and sit with folded hands waiting and watching as to what the State Governments are doing in the matter of executing all these particular laws?”
Not satisfied with the general power of the Union to give directions to the States, the Constitution goes a step further and calls upon every State (under Article 257) not to impede or prejudice the executive power of the Union in the State.
If any Union agency finds it difficult to function within a State, the Union Executive is empowered to issue appropriate directions to the State Government to remove all obstacles. The Union’s power of giving directions in this regard includes certain specific matters such as:
(1) The construction and maintenance of means of communication which are of national or military importance; and
(2) The protection of railways within the States.
This power of giving directions does not in any way affect the power of Parliament to declare highways or waterways or the power of the Union to construct and maintain means of communication as part of its functions with respect to naval, military or air force works.
It is possible that by reason of the special directions given by the Centre some extra cost above normal may be incurred by the States in the performance of the service.
The Constitution provides for compensating the States for the extra expenditure they incur on account of undertaking such tasks. Under this provision, the Union is obliged to come to an agreement with the States as to the amount that is to be paid.
If, however, the parties fail to reach an agreement, the matter will be referred to an arbitrator appointed by the Chief Justice of India. Such an arbitrator will decide the extra costs incurred which the Union should make good to the State concerned.
The Constitution also empowers the Union Executive, with the consent of the Government of a State, to entrust to that Government or its officers functions which fall within the scope of the Union’s executive functions.
Parliament is also empowered, in a similar manner, to confer powers to impose duties on State officers through any of its laws which have application in a State. The Union Government will pay to the State the cost involved in the discharge of functions by the States or its officers.
Under Article 260 the Government of India may undertake any executive, legislative or judicial functions in a foreign territory on the basis of an agreement with the Government of that territory.
The provisions of such agreement are governed by laws relating to the exercise of foreign jurisdiction and, as such, they will not come within the scope of the provisions dealing with the normal administrative relationship between the Union and the States.
The necessity of this provision is obvious in the context of territories belonging to foreign powers within the geographical boundaries of the Indian Union. It is possible, as in the case of Pondicherry, that the de facto control over any of these territories may be vested in the Government of India pending the transfer of sovereignty. During such periods, these territories will be governed in accordance with the provisions of this article.
Another provision that facilitates the smooth transaction of administrative business is embodied in Article 261. According to this, full faith and credit shall be given to public acts, records and judicial proceedings of the Union and the States in all parts of Indian Territory.
The manner in which these acts and records will be proved and their effect determined will be provided by Parliamentary enactments. Provision is also made for the execution of final judgements for orders delivered or passed by Civil Courts in any part of India.
The Constitution has an important provision embodied in Article 262 dealing with the waters of inter-State rivers and river valleys. Aware of the unending inter State disputes over this subject in other federations, particularly the United States, the Constitution-makers decided that the power to deal with this subject should be vested exclusively in Parliament.
Thus, Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of any inter-State rivers or river valley. Parliament may also provide that neither the Supreme Court nor any other Court shall exercise any jurisdiction in respect of any such dispute or complaint.
The importance of this provision is evident in the context of the many inter-State multi-purpose, river valley projects like the Damodar Valley Corporation, which are being undertaken in different parts of the country.
Finally, to facilitate the smooth working of the administrative machinery of the country as a whole as well as to ensure the better co-ordination of policy and action between the Union and the States or between the States themselves, the Constitution empowers the President to appoint an inter- State Council whenever the necessity is felt. The Council is charged with the following three specific duties:
(1) To enquire into and advise upon disputes which may have arisen between States;
(2) To investigate and discuss subjects in which the States and the Union have a common interest,
(3) To make recommendations upon these subjects and, in particular, recommendations for the better co-ordination of policy and action with respect to these subjects.
The President is empowered not only to establish such a Council but also to determine its organisation and procedure and to define the nature of its duties. In accordance with this provision an I Inter-State Council was established by Parliament in 1990.
An analysis of the legislative and administrative relations between the Union and the States shows that the federal system established under the Constitution, like other similar systems, aimed to achieve the fundamental objective of unity in diversity.
A federation being a dual polity based on the division of authority in all the principal departments of the governments is bound to produce diversities in laws, administration and judicial protection.
Up to a certain point, the diversity is to be welcomed as an attempt to accommodate the powers of government to local needs and circumstances. But when it goes beyond a point, it is capable of creating chaos and has indeed produced chaos in many federal States.
The framers of the Indian Constitution were aware of the inherent dangers of a federal system which as Professor Dicey pointed out provides for the predominance of legalism and produces a weak government.
Conditions in India at the time of the transfer of power and immediately thereafter were such that those in authority feared that a federal set-up without adequate special safeguards to preserve unity would dissipate the century-old effort at national unity.
At the same time, it would have been politically unwise and impossible in practice to abandon altogether the idea of establishing a federal system. Moreover, when vast areas are brought under a j single national government, perhaps no constitutional form except federalism can weld them together as willing partners of an integrated system.
The urge for conserving power to rule over oneself and to be independent is as old as humanity. Dependence on others in any form is to be compensated by considerations of relative advantage. As independence without security would be short-lived, the predominant consideration in devising a Federal Union was the urge for the preservation of independence.
But for this paramount consideration and the existence of a vague, underlying cultural unity, India presents a picture of perplexing diversity. It has an area almost as large as Europe minus Russia and a larger population than that of the whole of Europe.
The number of well-developed languages in India is more than in the whole of Western and Central Europe and the racial and cultural differences more pronounced than in continental Europe.
In these circumstances it was not easy to frame a federal Constitution that could satisfy at once the urge for independence and the paramount need for security. The framers of the Constitution, in their attempt to satisfy both these objectives, designed a federal system embodying several special features not generally found in other federations.
We have dealt with most of these special features in different places. It may be appropriate here to collect them together so as to obtain a clear perspective of these distinctive features which place the Indian federation almost in a class by itself.
(1) The division of powers between the Union and the States is the most elaborate ever attempted by any federal Constitution. Although the idea of a Concurrent List of powers is not new, no other Constitution has enumerated the items in such detail and included in it a variety of subjects with a view to eliminating as far as possible, litigation between the Union and the States, and also the diversity of law courts and procedures. The residuary powers are vested in the Union.
(2) Usually, under a federal system, the States have their own Constitutions separate from that of the Union. This is the case in the United States.
The Indian Constitution, on the contrary, embodies not only the Constitution of the Union but also those of the States. Further, the States of the Indian Union have a uniform Constitution. The amending process both for the Constitution of the Union and the States, is the same.
(3) Under the Indian federation, the territorial jurisdiction of each of the States can be changed, States themselves abolished and new States created, without resorting to the procedure prescribed for amending the Constitution (Art. 3).
That is, the territorial pattern of the federal system as it exists today can be reorganised with suitable adjustments without resorting to the comparatively difficult process of a constitutional amendment.
(4) Dual citizenship is a usual feature that goes with the dual form of government established under a federation. As a result, each member-State has the right to grant its citizens or residents certain rights which it may deny, or grant on more difficult terms, to non-residents.
This was a striking feature of the American federation in its early days. As time passed by, the rigours of ‘dual citizenship’ have become less. Still the idea continues to be associated with the federal system of government. In India, however, it has no place. The Constitution has established a single citizenship. Indians, no matter where they reside, are all equal in the eyes of the law.
(5) Dual polity involves in certain federations a double system of judiciary. For example, in the United States, the States have their own judicial systems unrelated to, and uncoordinated with the federal judiciary.
Australia too follows more or less the same pattern. But in India the Supreme Court and the High Courts form a single integrated judicial system.
They have jurisdiction over cases arising under the same laws, constitutional, civil and criminal. The Civil and the Criminal laws are codified and are applicable to the entire country. To ensure their uniformity, they are placed in the Concurrent List.
(6) A unique feature of the Indian federal system is its ability to adapt itself to changing circumstances. This is in contrast with the general characteristic of rigidity associated with federal Constitutions.
Normally, the Indian Constitution is meant to be federal. But under an emergency it can assume a unitary character. The process of change-over does not involve any complicated constitutional process.
(7) The Constitution vests certain extraordinary powers in the Union Government even during normal times. Thus, a resolution supported by a two-third majority of the Council of States can temporarily transfer any item from the State List to the Union List, enabling Parliament to pass laws on such items in the national interest. It also provides for Parliament to pass laws on items in the State List if two or more States ask for it.
(8) The Heads of the States the Governors are appointed by the President. They hold office during his pleasure.
(9) The Constitution has certain special provisions to ensure the uniformity of the administrative system and to maintain minimum common administrative standards without impairing the federal principle. These include the creation of All-India Services such as the Indian Administrative and Police Services and placing the members of these Services in key administrative positions in the States.
(10) Appointments to High Courts are made by the President and the Judges of the High Courts can be transferred by the President from one High Court to another.
(11) The Comptroller and Auditor-General of India have an organisation managed by the officers of the Indian Audit and Accounts Service a Central Service, who are concerned not only with the accounts and auditing of the Union Government but also those of the States.
(12) The Election Commission, a body appointed by the President, is in charge of conducting elections not only to Parliament and to other elective offices in the Union, but also those to the State Legislatures.
(13) Although every Bill passed by the State Legislatures normally becomes law with the assent of the Governor, certain Bills have to be reserved for the assent of the President. Only with the assent of the President can such Bills become law.
(14) The provision for giving grants-in-aid and loans from the Union to the States and the consequent capacity which the Union has to influence the States is again a special feature of the Constitution.
(15) The Constitution vests powers in the Union and its agencies to resolve conflicts that arise between the Union and the States. The Finance Commission, the Inter-State Council, etc., are examples of such agencies.
(16) Finally, constitutional amendment too is a comparatively simple process in India. This again, emphasises the flexibility of the federal Constitution. Ultimately, the test of a Constitution is in its working. If it is found to be defective in any respect in its actual working, it should be amended. For this, the amending process should be reasonably simple and easy.
The list is indeed formidable. Almost every one of these emphasises the supremacy of the Union and its compulsive power to discipline the States. Where the Union has such predominant powers, can the system be called federal?
Once again, it may seem that there is some validity in the viewpoints of some of the critics of the Constitution referred to earlier. But if we take into account the manner in which the States in India have been functioning during the last five decades and the substantial autonomy they have been enjoying in ordering their affairs within the sphere of power allocated to them, conclusion will be different.
Even when the Centre took over, under the emergency provisions, tin administration of some of the States for short periods, it was done only for re-establishing responsible government in those States where owing to political instability, such governments had become impossible.
The only occasion when the Union availed itself of Article 249 and passed a law on a subject included in the State List was in 1951 when there was acute food scarcity and such a law became essential in the economic interests of the nation.
But the operation of the law fasted only for a short period and the States got back their powers in this regard when the scarcity conditions disappeared.
Nevertheless it should be admitted that there has been increasing criticism of concentration of power in the Centre. Simultaneously, there has been persistent demand from the States for greater autonomy.
An objective study of the Constitution at work cannot miss a basic fact of constitutional government in India, namely, the existence and functioning of full-fledged Parliamentary and Cabinet government in the States of the Indian Union.
As Professor Alexandrowicz points out: “A local executive fully responsible to a local Legislature ensures a good deal of local internal sovereignty and sovereignty means statehood, limited as it may be by the distribution of powers. Local States pursue local policies, sometimes in accordance with the policy of the Centre, sometimes not.
This distinguishes them precise, from the position which prevails in administrative federations in which local units must toe the line and always follow the policy of the Centre. India is undoubtedly a federation in which the attributes of statehood are shared between the Centre and Local States.
Instead of defining her by the vague term of ‘quasi-federation’, it seems more accurate to exclude her from the category of administrative federations and to consider her a federation with virtually divided sovereignty.
Moreover, the position of local States is also strengthened by two significant developments, one connected with the formation of coalition governments in a number of local States, the other with the reorganisation of the Union on linguistic lines.”
About the operation of the federal system from an administrative point of view and the trend it indicates for the future, here are a few significant observations which Paul Appleby made after his study of India’s administrative system:
“It is not too unfair, I think, to say that except for the character of its leadership, the new national government of India is given less basic resource in power than any other large and important nation, while at the same time having rather more sense of need and determination to establish programmes dealing with matters important to the national interest.
The administrative trend is evidently to go still further, to give over to the States same financial resource now in the province of the Centre, to minimise in practice some of the marginal or interpretative zones of power, and to retreat before an opposition State minister’s charge of interference with the States.
“No other large and important national government, I believe, is so dependent as India on theoretically subordinate but actually rather distinct units responsible to a different political control, for so much of the administration of what are recognised as national programmes of great importance to the nation.
“The power that is exercised organically in New Delhi is the uncertain and discontinuous power of prestige. It is influence rather than power. Its method is making plans, issuing pronouncements, holding conferences.
In reference to two different programme fields I have been authoritatively informed at both the Centre and in the States that the Center’s administrative function is performed by annual or semi-annual conferences.
Any real power in most of the development field is the personal power of particular leaders and the informal, extra-constitutional, extra-administrative power of a dominant party coherent and strongly led by the same leaders.
Dependence for achievement, therefore, is in some crucial ways apart from the formal organs of governance, in forces which in the future may like quite different forms.”
Appleby’s criticisms focusing attention on the weakness of the Central power may be countered by pointing out the different instruments of control, with which the Centre may bring the States to its way of thinking.
The role of the Planning Commission, an extra-constitutional body created by me centre and the manner in which it acts as a super cabinet for the whole of India directing and regulating the entire socio-economic activity on a national basis, may be cited as an illustration.
Yet, the basic fact remains that India is not ruled by one government but simultaneously by twenty-eight governments, one National government and twenty-eight State governments sharing between them the totality of governmental powers under the Constitution.
Such sharing of sovereign powers by different governments under the same Constitution is possible only under a federal system and that is what makes India a federal Union and its Constitution a federal Constitution.