UPSC Indian Polity and Civics The State Judiciary Notes - State Government

 

STATE GOVERNMENT

 

Introduction

 The Constitution provides for a Federal Government having separate administrative systems for the states. Provisions for the governance of both are contained in the Constitution. Articles 153 to 167 is Part VI of the Constitution deal with the state executive. The pattern of Government at the State level is the same as that at the Union level is a parliamentary system, in which the executive head is a constitutional ruler who is to act according to the advice of council of Ministers responsible to the State Legislature.

 

 

STATE EXECUTIVE

 

Governor

 

Article 153 states that there shall be a Governor for each state. Same person can be appointed as Governor for 2 or more states was added by 7th amendment act 1956. Article 154 states that the executive power of the state is vested in him and is exercised by him either directly or through officers subordinate to him.

 

Appointment & Tenure (Article 155 & 156)

• Governor is the executive Head/Nominal Head of the State.
• Governor of a State is appointed by the President.
• Hold office during the pleasure of the President.
• May resign by submitting his resignation to the President.
• Otherwise the normal term of his office is 5 years.
• Grounds for removal of the Governor are not mentioned in the Constitution; however he must be involved in the gross deliquency like bribery, treason or violation of the Constitution for such an action.
• A President may transfer a Governor appointed to one State to another State for rest of the term.
• A Governor whose term has expired may be reappointed in the same State or any other State.

 

Qualifications & Conditions for office (article 157 & 158) of Governor

• He must be -
• A citizen of India.
• Has attained 35 years of age.
• Not a Member of Parliament or state legislature.
• Not hold any office of profit under the government.
• His emoluments, allowances and privileges are determined by parliament by law.
• The emoluments are charged on the Consolidated Fund of India and cannot be diminished during his term of office.
• If the same person acts as Governor of 2 or more states, the Constitution provides that President may decide about the allocation of emoluments of Governor among states proportion wise (Article 158(3A)).

 

Oath

Article 159 says that the Governor and every person discharging the functions of the Governor is to take an oath or affirmation before the Chief Justice of the High Court of that state, or in his absence, the senior-most judge of that court available.

Article 160 gives the president the power to make such provision as he thinks fit for the discharge of the functions of the Governor in any contingency not provided for in the

Constitution.

 

Executive Powers of Governor

• Article 166: All executive actions of the state are to be taken in the name of the Governor. He acts as a representative of President in the state. He has power to recommend President that the government of the state cannot be carried on in accordance with the provisions of the Constitution. This leads to the imposition of President rule in the State under Article 356.
• All major appointments in the state are made by the Governor - those of CM, Ministers, and Advocate-General (and decide his remuneration). Chairman & members of State Public Service Commission (PSC), State Election Commissioner and Finance Commission. Members and Chairman of State PSC are however removed by President.
• He is the Chancellor of various universities in the state and appoints their Vice-Chancellors.

 

Legislative Powers of Governor

• He is an integral part of the state legislature, though not a member of it, he discharges some important legislative functions.
• He summons the house(s) of the legislature of state to meet at such a time and place as he thinks fit. However 6 months must not lapse between the last sitting in one session and the first in the next session.
• He may prorogue the house(s) and dissolve the legislative assembly.
• He has right to reserve certain bills for the assent of the
• President [Article 200].
• He nominates l/6th of the members of Legislative council having special knowledge in literature, science, arts, cooperative movement and social service.
• Decides on the question of disqualification of a member State Legislature in consultation with Election Commission.
• His most important power is the ordinance making power
• [Article213].
• But the Governor cannot issue an ordinance without the previous instructions from the President in cases in which-(a) Bill would have required his previous sanction.
• (b) Required to be reserved under the Constitution for the assent of the President.
• The ordinances have to be approved by the state legislature, in the same way as the Parliament does in case of Presidential ordinances.
• The scope of the ordinance making power of the Governor
• is co-extensive with the legislative powers of the State Legislature and is confined to the subjects mentioned in state List and Concurrent List.
• Submission of reports from Auditor General, State Public Service Commission, State Finance Commission, etc. before the Legislature.

 

Discretionary Powers of Governor

• Discretion of the Governor is wider than that of the President. Article 163 (2) provides that as to the question of matter of discretion, it is the Governor himself who decides which matter falls in his discretion. And his action based on such discretion shall not be called in question.
• Though in most of the matters he has to act on the advice of Council of Ministers, but there are some matters in which he can act according to his discretion.
• He selects the CM if no party has clear-cut majority.
• Dismissal of Ministry if he is convinced that it has lost majority support. But SC in S.R. Bommai Vs UOI (1994) case directed that his opinion must not be subjective and compulsory floor-testing must be done.
• Dissolving the Legislative Assembly.
• Submission of report to the President regarding failure of constitutional machinery in the State.
• Reservation of certain bills for the consideration of the President (Article 200). He must reserve the bill that endangers the position of high court. In addition, he can also reserve the bills that are against the provisions of Constitution, are against larger national interest or DPSP and those which deal with compulsory acquisition of property under Article 31 A.

 

Financial Powers of Governor

• A money bill cannot be introduced in the Legislative Assembly of the State without the recommendation of the Governor.
• No demand of grants can be made except on the recommendation of the Governor.
• The Governor is required to cause to be laid before the house or houses of the legislature “annual financial statements”, that is “Budget” [Article 202].
• He constitutes a finance commission after every five years to review the financial position of the panchyats and the municipalities.

 

Judicial powers of governor

• Governor appoints judges of the courts below HC
• He is consulted by the President before appointing judges of the HC.
• Under Article 161 he can grant pardons, reprieves, remission of punishment to the persons convicted under state laws. However he has no power to pardon a sentence of death or remit sentence by the court martial (military court).

 

Other Powers

The Governor receives the report of the Auditor General and places it before the State Legislature. He places the report of the state Public Service Commission along with the observations of the Council of Ministers before the State Legislature. As chancellor of various universities within the jurisdiction of the state, he appoints the vice-chancellors of the universities.

 

Comparison between Powers and Position of the president and the Governor

President	Governor
The President is not only the Head of the State internal and the Government, he is also the Commander-in-Chief of the Armed the Forces.	Each state has its own laws and the Governor, who looks after governance of every state. He is the person, who finalises the budget of the state and also has power to appoint judges in the courts.
The President cannot function without the aid and advice of the Council of Ministers.	Governor can exist without the aid and advice of the Council of Ministers.
The President can grant pardon, reprieve, respite, suspension, remission of Commutation in respect to punishment or sentence by a Court Martial.	Governor can suspend, remit or commute a death sentence. The Governor does not enjoy power of pardoning a death sentence.
Every Ordinary Bill, after it is passed by both the houses of the Parliament either single or at a joint sitting is presented to the President for his assent.	Every Ordinary bill after it is passed by the Legislative Assembly in case of a Unicameral Legislature or both the Houses in case a Bicameral Legislature either in the first instance or in the second instance is presented to the Governor for his assent.
I Every Money Bill after it is passed by both House of the Parliament is  presented  to  the President for his assent.	Every Money Bill after it is the passed by the State Legislature is presented to the Governor for his assent.
A President needs no instructions for making an ordinance	Governor can make an ordinance without the instructions from the President only in three cases i.e. if a bill containing the same provisions would have required the previous sanction of the President for its introduction into the State Legislature or if he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President or it an act of the State Legislature containing the same provisions would have been invalid without receiving the President's assent.

 

Chief Minister

 

The Governor is assisted in the discharge of his functions by a Council of Ministers headed by the Chief Minister. He is the Real Executive Authority (de facto executive). The Chief Minister is appointed by the Governor. Generally, the leader of the majority party in the State Assembly is appointed Chief Minister, who holds position identical to that of the Prime Minister at the Centre. He enjoys a term that runs parallel to that of the State Legislature i.e., five years. However, if the term of the State Legislature is extended, the tenure of the Chief Minister is also extended.  The Chief Minister recommends to the Governor the names of persons to be appointed as members of the Council of Ministers, and allocates portfolios among them. He can ask any minister to resign from the Council or drop him from the Council by reshuffling it. He coordinates the working of various ministers and ensures that the Council works as a team.

The Chief Minister is the chief link between the Governor and the Council of Ministers and keeps the former informed of all decisions of the Council. The Chief Minister takes active part in the deliberations of the State Legislature. He makes all important policy announcements on the floor of the legislature and defends the policies of his government in the house. He can recommend dissolution of the Legislative Assembly to the

Governor even before the expiry of its term. Generally this advise is accepted by the Governor.

 

 

Council of Ministers (COM)

 

• Article 163 (1) provides that there should be COM with Chief Minister as the head to aid and advise the Governor in exercise of his functions.
• The real executive authority of the state is vested in the COM, the Governor, however is not bound to act by the advice of COM in all cases, as he can exercise his discretionary powers.
• Any person may be appointed as a minister, but he ceases to be a minister if he doesn't become a member of the state legislature within 6 months (Article 164).
• Salaries and allowances of ministers are governed by laws made by the state legislature.
• Ministry which loses the confidence of the legislative assembly should resign. The Governor may choose to dismiss the ministry if it does not resign and ask the leader of opposition to constitute an alternative ministry, or if he feels that no stable ministry can be formed, recommend President's rule in the State.
• Like at the Centre, in the states too, the Council of Ministers consists of three categories-cabinet ministers, Ministers of State, & Deputy Minister.
• Article 164 states that the COM is collectively responsible to Legislative Assembly of state.
• The Ministers hold office till the pleasure of the Governor but, the Ministers can be removed only on the advice of CM. Thus the CM can hold Ministers individually responsible by removing them in case of non-performance.

 

Functions

The Constitution does not assign any formal powers to the Council of Ministers. However, in practice it has a wide range of functions. It formulates the policy of the Government and implements it. It assists the Governor in making all the important appointments. Most of the important bills are introduced the legislature by members of the Council of Ministers. Formulates the State budget and submits it to the Legislate for its approval. It can present supplementary demands for grants whenever necessary. It also plays an important role preparing and implementing State Plans.

 

Advocate General (Article 165)

 

• He is an official of State, corresponding to the Attorney- General of India (Art 76).
• Provides advice to the government of state upon legal matters.
• Appointed by the Governor, and holds office during his pleasure.
• A person qualified to be a judge of a HC can be appointed as an Advocate General.
• His remuneration is determined by the Governor.
• He can speak and take part in the proceedings of the Legislature of the State but he has no right to vote in it.

          

STATE LEGISLATIVE (PART VI, ART, 168-212)

 

 

• Legislature of every State consists of Governor and House (state legislative assembly) or Houses (state Legislative assembly and council).
• At present, only six states - Maharashtra, Karnataka, Bihar, U.P, Andhra Pradesh, J&K have a bicameral (Consisting of 2 houses) Legislature. In the other states it is unicameral (consisting of one house).
• But this list is subject to change as the Constitution provides a simple procedure without constitutional amendment for the abolition of the second chamber, i.e. the Legislative Council, in a state where it exists as well as for the creation if such a chamber in States where there is none. The procedure involves a resolution at the Legislative Assembly of the state concerned passed by a majority of die total membership of the Assembly not being less than two-thirds of the members actually present and voting, followed by an Act of Parliament (Article 169).

 

 

 

It is the lower and popular house of the State. Members are chosen by direct election on the basis of adult suffrage from territorial constituencies (Article 170).

Their number of members varies between 60 and 500. However certain States like Sikkim, Goa, Mizoram and Arunachal Pradesh have less than 60 members.

The Governor may nominate one Anglo-Indian to it.

The reservation of seats has been provided for SCs and STs on the basis of their population.

According to Article 172, duration of assembly is normally 5 years. But it may be dissolved earlier by the Governor.

Its term may also be extended by one year at a time by parliament during national emergency, though this can in no case be extended beyond 6 months after the proclamation has ceased to operate.

 

Legislative Coundl (Vidhan Parishad) (Article 169)

It is the upper house.

Parliament may by law create or abolish Legislative Council.

It can be created, if the Legislative Assembly of the state. passes a resolution to the effect by special majority.

It is not an amendment to the Constitution and therefore it can be passed like an ordinary piece of legislation.

Article 171 contains various categories of members.

According to this:

1/3^rd of its members are elected by legislative assembly.

1/3^rd by local bodies.

1/6^th nominated by the Governor.

1/12^th are elected by teachers.

1/5^th by university graduates.

The maximum strength of Legislative Council can be 1/3rd of the total membership of Legislative Assembly, but in no case less than 40.

Parliament has the final power to decide about its composition.

It is not subject to dissolution. But 113rd of its members retire on the expiry of every 2nd year.

 

Qualifications

Article 173 mentions the qualifications of members as:-

A citizen of India.

Not less than 25 years of age for legislative assembly and not less than 30 years of age for Legislative Council.

Possesses such other qualifications as may be prescribed by the Parliament.

Not hold any office under the Union or state government.

Article 190: No person shall be a member of both houses of State Legislature and if anyone gets elected to both Houses, he has to vacate one seat.

No person can become a member of legislature of 2 or more states.

 

Presiding Officers of State Legislature

 

The Speaker

The Speaker is elected by the assembly itself from amongst its members and remains in office during the life of the assembly. However, he may vacate his office by writing to the Deputy Speaker or be removed by a resolution passed by a majority of all the then members of the assembly or he ceases to be a member of the assembly. Such a resolution can be moved only after giving 14 days prior notice.

Powers and Duties of Speaker

His functions are similar to those of the Speaker of the Lok Sabha. He adjourns the assembly or suspends the meeting in the absence of a quorum and maintains order and decorum in the assembly for conducting its business and regulating its proceedings.

He can allow a secret sitting of the house at the request of the leader of the house. He decides the questions of disqualification of a member of the assembly, arising on the ground of defection under the provisions of the Tenth

Schedule of the Constitution. However, he also vacates his office earlier in any of the following three cases:

1. If he ceases to be a member of the assembly.
2. If he resigns by writing to the deputy speaker.
3. If he is removed by a resolution passed by a majority of all the members of the assembly. Such resolution can be moved only after giving 14 days advance notice.

He appoints the Chairman of all the committees of the assembly and supervises their functioning. He himself is the Chairman of the Business Advisory Committee, the Rules Committee and the General Purpose Committee. The speaker decides whether a bill is a Money Bill or not.

 

Deputy Speaker

Like the speaker, the Deputy Speaker is also elected by the assembly itself from amongst its members. He is elected after the election of the Speaker has taken place. The Deputy Speaker performs the duties of the speaker's office when it is vacant. He also acts as the speaker when the latter is absent from the sitting of assembly. In both the cases, he has all the powers of the speaker.

 

Chairman of the Legislative Council

The Chairman is elected by the Council itself from amongst its members. He may vacate his office by resigning by writing to the Deputy Chairman or if he ceases to be a member of the Council. His powers and functions are comparable to the Speaker of the Assembly with few exceptions. Such as the speaker has one special power which is not enjoyed by the Chairman. The speaker decides whether a bill is a Money Bill or not and his decision on this question is final.

 

Deputy Chairman of Legislative Council

Like die Chairman, the Deputy Chairman also elected by the Council itself from amongst its members. The Deputy Chairman performs the duties of the Chairman's office when it is vacant. He also acts as the Chairman, when the latter is absent from the sitting of the Council. In both the cases, he has all the powers of the Chairman.

 

Comparison of Legislative Council and Legislative Assembly

In the passage of an Ordinary Bill, both the houses enjoy equal status but in case of disagreement the will of the Assembly prevails over that of the Council and there is no provision of joint sitting in this regard.

A Money Bill can be introduced only in Assembly not in Council.

The Council has no participation in the election of the President.

It also has no effective say in the ratification of the Constitutional Amendment Bill. Also, the existence of the Council depends on the will of the assembly.

 

Legislative Procedure

 

The legislative procedure in a State Legislature having two houses is broadly similar to that in Parliament except for some aspects.

 

Money Bill

The position is the same at Union and State Levels: the Bill can be introduced only in the Assembly; the will of the Assembly prevails; and the Assembly is not bound to accept any recommendation by the Council which may at the most withhold the bill for 14 days from the date of its receipt.

 

Ordinary Bill

The only power of the Council is to interpose some delay in the passage of the Bill for a period of three months at the most ultimately the will of the assembly prevails and when the bill comes to the Council a second time the Council can delay it for not more than a month.

 

Governor’s Assent

When a bill is presented to the Governor after its passage by the houses of the legislature the Governor may (i) declare his assent to the bill, in which case, it would become a law at once; (ii) declare that he withholds his assent in which case the bill fails to become a law; (iii) return the bill, if it is not a money bill with a message; (iv) reserve the bill for me consideration of the President.

 

 

 

Comparing Legislative Procedure in the Parliament and State Legislature

A. With Regard to Ordinary Bills
1. It can be introduced in either house of the Parliament.	1. It can be introduced in either House of the state             legislature.
2. It can be introduced either by a minister or by a private member.	2. It can be introduced either by a minister or by a          private member.
3. It passes through first reading, second reading and third reading in the originating house.	3. It passes through first reading, second reading and reading in the orginating house.
4. It is deemed to have been passed by the Parliament only when both the houses have agreed to it. Either with or without amendments.	4. It is deemed to have been passed by the state Legislature only when both the houses have agreed to it, either with or without amendments.
5. A deadlock between the two houses takes place when the when second house, after receiving a bill passed by the first House, rejects the bill or proposes amendments that are not acceptable to the first House or does not pass the bill within six months.	5. A deadlock between the two houses takes place the Legislative Council, after receiving a bill passed by the Legislative Assembly, rejects the bill or proposes amendments that are not acceptable to the Legislative Assembly or does not pass the bill within three months.
6. The Constitution provides for the mechanism of joint sitting mechanism of joint houses of the Parliament to resolve a deadlock resolve between them over the passage of a bill.	6. The Constitution does not provide for the joint sitting of two houses of the state legislature to a deadlock between them over the passage of a bill.
7. Lok Sabha cannot override the Rajya Sabha by passing the bill for the second time and vice versa. A joint sitting is the only way to resolve a deadlock between the two houses.	7. The Legislative Assembly can override the  Council by passing the bill for the second time and When a bill is passed by the Assembly for the second time and transmitted to the Legislative Council, if the Legislative Council rejects the bill again or proposes amendments that are not acceptable to the Legislative Assembly, or does not pass the bill within one month, then the bill is deemed to have been passed by both the houses in the form in  which it was passed by the Legislative Assembly for the second time.
8. The mechanism of joint sitting for resolving a deadlock applies to a bill whether originating in the Lok Sabha or the Rajya Sabha. If a joint sitting is not summoned by the President, the bill ends and becomes dead.	8. The mechanism of passing the bill for the second time to resolve a deadlock applies to a bill originating in the Legislative Assembly only. When a bill, which has originated in the Legislative Council and sent to the Legislative Assembly, is rejected by the latter, the bill ends and becomes dead.
B. With Regard to Money Bills
1. It can be introduced only in the Lok Sabha and not in the Rajya Sabha.	1. It can be introduced only in the Legislative assembly and not in the Legislative Council.
2. It can be introduced only on the recommendation of the President.	2. It can be introduced only on the recommendation of the governor.
3. It can be introduced only by a minister and not by a private members.	3. It can be introduced only by a minister and not by member.
4. It cannot be rejected or amended by the Rajya Sabha. It should be returned to the Lok Sabha within 14 days, either with or without recommendations.	4. It cannot be rejected or amended by the Legislative It should be returned to the legislative Assembly days, either with or without amendments.
5. The Lok Sabha can either accept or reject all or any of the reject all or recommendations of the Rajya Sabha.	5. The Legislative Assembly can either accept or any of the recommendations of the legislative council.
6. If the Lok Sabha accepts any recommendation, the bill is then deemed to have been passed by both the houses in the modified form.	6. If the legislative assembly accepts any recommendation, the bill is then deemed to have been passed by both the houses in the modified form.
7. If the Lok Sabha does not accept any recommendation, the bill is then deemed to have been passed by both the houses in the form originally passed by the Lok Sabha without any change.	7. If the Legislative Assembly does not accept any recommendation, the bill is then deemed to have passed by both the houses in the form originally the legislative Assembly without any change.
8. If the Rajya Sabha does not return the bill to the Lok Sabha Within 14 days, the bill is deemed to have been passed by both the houses at the expiration of the said period in the form originally passed by the Lock Sabha.	8. If the Legislative Council does not return the bill to Legislative Assembly within 14 days, the bill is  have been passed by both the houses at the expiration of the said period in the form originally passed by the Legislative Assembly.
9. The Constitution does not provide for the resolution of any deadlock between the two houses. This is because, the will of the Lok Sabha is made to prevail over that of the Rajya Sabha, if the latter does not agree to the bill passed by the former.	9. The Constitution does not provide for the resolution of any deadlock between two houses. This is because, the will or the Legislative Assembly is made to prevail over that or Legislative Council, if the latter does not agree to the bill passed by the former.

 

The State of Jammu and Kashmir

 

The State of Jammu and Kashmir holds a special position under the Constitution of India. Though it is one of the states specified in the First Schedule and forms a part of the territory of India as defined in Article 1, all the provisions of the Constitution of India relating to the States do not apply to Jammu and Kashmir. The state alone of all the states of the Indian Union has its own Constitution.

The Article 370 in Part XXI of the Constitution grants a special status to state of Jammu and Kashmir. Accordingly, all the provisions of the Constitution of India do not apply to it. It is also the only state in the Indian Union which has its own separate state Constitution the Constitution, i.e. of Jammu and Kashmir.

According the 'Instrument of Accession of Jammu and Kashmir to India' was signed by Pandit Jawaharlal Nehru and Maharaja Hari Singh on 26 October 1947. Under this, the state surrendered only three subjects (defence, external affairs and communications) to the Dominion of India. (At that time, the Government of India made a commitment that 'the people of this state, through their own Constituent Assembly, would determine the internal Constitution of this state and the nature and extent of the jurisdiction of the Union of India over the state, and until the decision of the Constitution of India could only provide an interim arrangement regarding the state. In pursuance of this commitment, Article 370 was incorporated in the Constitution of India. It clearly states that the provisions with respect to the state of J & K are only temporary and not permanent. It became operative on 17 November 1952, with the following provisions:

In pursuance of the provisions of Article 370, an order issued by the President the constitutional position of the state and its relationship with the Union. At present, is as follows:

1. Jammu and Kashmir is a constituent state of the Indian

Union and has its place in Part I and Schedule I of the Constitution of India (dealing with the Union and its Territory). But its name, area or boundary cannot be changed by the Union without the consent of its legislature.

2. The state of J & K has its own Constitution. Hence, Part VI of the Constitution of India (dealing with state government) is not applicable to this state. The very definition of 'state' under this part does not include the state of J & K.
3. Parliament can make laws in relation to the state on most of the subjects enumerated in the Union List and on a good number of subjects enumerated in the Concurrent List. But, the residuary power belongs to the state legislature except in few matters like prevention of activities involving terrorist acts, questioning or disrupting the sovereignty and territorial integrity of India. Further, the power to make laws of preventive detention in the state belongs to the state legislature. This means that the preventive detention laws made by the Parliament are not applicable to the state.
4. Part III (dealing with Fundamental Rights) is applicable to the state with some exceptions and conditions. The fundamental right to property is still guaranteed in the state.
5. Part IV (dealing with Directive Principles of State Policy) and Part IV A (dealing with Fundamental Duties) are not applicable to the state.
6. A National Emergency declared on the ground of internal disturbance will not have effect in the state except with the concurrence of the state government.
7. The President has no power to declare a financial emergency in relation to the state.

 

Constitution of Jammu and Kashmir

The Constitution of Jammu and Kashmir was adopted on November 17, 1957 and given effect from January 26, 1957.

Some of its important provisions are considered here.

The Legislative Assembly consists of 100 numbers elected directly from territorial constituencies of the state and two women members nominated by the Governor. Twenty-four seats are to remain vacant till filled by representatives of people in Pakistan occupied Kashmir (PoK). The Legislative Council consists of 36 member, 11 of whom are elected by the Assembly from among the people of Kashmir provided that of the members elected at least one shall be a resident of Tehsil Ladakh and at least one a resident of Tehsil Kargil, and 11 elected by the Assembly from people of Jammu. The remaining 14 members are elected by various electorates, such as municipal councils and such other local bodies. The High Court of the state consists of a Chief Justice and two or more other Judges. Every Judge is to be appointed by the President after consultation with the Chief Justice of India and the Governor,

The official language of the State is Urdu, but English will continue to be used for official purpose unless the State Legislature provides otherwise. And no amendment can be made to change any provision regarding the relationship of the state with the Union of India.

 

Administration of Scheduled Areas

Article 244 in Part X of the Constitution envisages a special system of administration for certain areas designated as 'Scheduled areas' and 'tribal areas',

The Constitution has made special provision for the administration of Scheduled Areas in a state other than Assam, Meghalaya, Tripura and Mizoram. The right to declare any area as a Scheduled Area rests with the President and is subject to legislation by the Parliament. The Constitution contains special provisions regarding the administration of Scheduled Areas, which are contained in the Fifth Schedule. The Union Government can also give directions to the respective State regarding administration of the Scheduled Areas. The Governor of the state, where such areas are located, has to submit reports to the President regarding the administration of such areas annually or whenever required by the President.

To take care of the welfare and advancement of the Scheduled Tribes in the State, a Tribes Advisory Council is constituted.

In addition, the Governor can also take certain steps to protect the interests of the Scheduled Tribes. Thus, he can direct that a particular Act of Parliament or state legislature shall not apply to the Scheduled Area. He can make regulations prohibiting or restricting transfer of land, allotment of land and money lending. However, all these actions of the governor need prior approval of the President.

 

Tribes Advisory Council

The Constitution of India provides for a Tribes Advisory Council (TAC) in each State having Scheduled areas and if the president so directs, also in any State having Scheduled Tribes but not Scheduled areas. TAC shall consists of not more than 20 members of whom three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State.

The Governor makes rules prescribing or regulating as the case may be (i) the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof; (ii) the conduct of its meetings and its procedure in general; and (iii) all other incidental matters.

 

Tribal Areas

These areas are located in the states of Assam, Meghalaya, Mizoram and Tripura and have been specified in the Sixth Schedule of the Constitution. Though these areas fall within the executive authority of the state, provision has been made for the creation of district councils and regional councils for the exercise of certain legislative and judicial powers in these areas. The district and regional councils are empowered to make laws in certain fields such as management of forests, marriage and social customs, inheritance of property, etc. These councils can also impose certain taxes and collect land revenue.

 

 

 

CENTRE - STATE RELATIONS

 

• The distribution of powers is an essential feature of federalism. A federal Constitution establishes the dual polity with the Union at the centre and the States at the periphery, each endowed with the sovereign powers to be exercised in the field assigned to them respectively by the Constitution. The one is not subordinate to the other in its own field; the authority of one is co-ordinate with the other.

 

 

In the Indian federal set-up, the Constitution divides powers between centre and states as:-

Legislative

Administrative

Financial

 

Legislative Relations

 

 

• Article 245 to 255 in part XI of the Constitution deals with the Legislative relation between the Centre & the States. Article 245(1) of the Constitution of India provides that the Parliament has power to make laws for the whole or any part of territory of India. This includes not only the States but also the UTs or any other area, for the time being included in the territory of India. It also possesses the power of 'Extra-Territorial Legislation' which no State Legislature possesses.
• The State Legislature is competent only to make laws for the whole or any part of the state to which it belongs.
• For certain UTs like Andaman & Nicobar and Lakshadweep, regulations made by the President have the same force as the Acts of the Parliament and such regulations may repeal or amend a law made by Parliament in relation to such territory.
• The application of Acts of parliament to any Scheduled Area may be barred or modified by notifications made by the Governor.
• In distributing the subject matters between Centre and states, our Constitution makers followed Canadian scheme. However they added one more list to it, Concurrent list. (GOI Act 1935 had 3 fold enumeration federal, provincial and concurrent)
• Union List - 100 subjects
• State List - 66 subjects
• Concurrent List -52 subjects
• Subjects mentioned in the Union List are of national importance and only Parliament is competent to make laws on these subjects.
• For State List, only the States have exclusive power to make laws.
• Concurrent list is a "Twilight Zone", where both me Union and the states are competent to make law, without any conflict.
• Residuary powers (Article 248): Parliament has exclusive power to make laws on the subjects enumerated in any of the lists (Entry 97 of Union List).
• Wherever the conflict arises as to a subject matter, the Union List predominates over the other lists.
• To determine whether a particular enactment falls under one entry or the other, it is the pith and substance of such enactment and not its legislative level that is taken account of. Pith and substance here means the true object of the legislation or statue, and the competence of legislature which enacts it.
• Colorable Legislation - The motives of the legislature are, otherwise, irrelevant for determining whether it has transgressed the constitutional limits of the legislative power. This principle is based on the maxim that you cannot do indirectly what you cannot do directly.
• Under Art 249, in the national interest. Parliament has the power to make laws w.r.t. any matter included in the State List, for a temporary period, if Rajya Sabha passes a resolution supported by 2/3rd of the members present and voting in that respect.
• Under the proclamation of emergency, Article 250 empowers the Parliament to make laws for the whole or any part of the territory of India w.r.t. all matters in the State List. Such a law however shall cease to effect on the expiration of 6 months after the proclamation of emergency has ceased to operate.
• Under Article 252, if the legislatures of two or more States pass a resolution to the effect that it is desirable to have a law passed by Parliament on any matters in the state list common to these states. Parliament can make laws in that respect.
• Under Article 253, Parliament has power to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions.
• Under Article 256, Parliament is empowered to make laws w.r.t. all matters in the state list when there is failure of constitutional machinery of the State under Article 356.

 

 

Administrative Relations

• During the time of emergency Indian Constitution works like a unitary government.
• In normal times, there are constitutional provisions which ensure the control of the union over the states. Some of the mechanisms are:
• Power to appoint and dismiss the Governor (articles 155- 156), power to appoint judges of HC, members of state PSC (articles 217, 317)
• Article 256 provides that the executive power of the state shall be so exercised as to ensure compliance with the laws made by the parliament and executive power of the Union shall also extend to the giving of such directions to a state as it may deem essential for the purpose.
• Further article 257 provides that states must exercise their executive power in such a way so as not to impede or prejudice the exercise of the executive power of the Union in the state.
• The powers of the Union Government also extend to giving directions to a state in 2 specific matters:

1. Construction and maintenance of means of communication which are declared to be of national or military importance.
2. Measures to be taken for the protection of the railway within the states.

• The Constitution prescribes and coercive sanction for the enforcement of its directions through article 356.

 

Delegation of Union functions to the States

• Under article 258 (1), Parliament with the consent of the state government can entrust to it any matter falling with in the executive powers of the Union.
• Under article 258(2) Parliament is empowered to use state machinery for the enforcement of Union laws. For such purpose, it can confer powers or impose duties on state functionaries.
• Therefore under clause (1) delegation of power is made with the consent of the state, whereas consent of the state is not necessary under clause (2), and such delegation is done by the parliament by law. This implies that parliament can interfere in the state administration, even without the consent of the State.
• State government has also the power to delegate its functions to the Union and its officers. Article 258 (A) provides that Governor of the state with the consent of GOI, entrust to the government, such functions to which the executive power of State extends.
• All India services are common to both the Union and the states. The officers of these services are appointed and regulated by the Centre and are placed in various states.
• Grants in-aid (Article 275): Parliament has power to make such grants as it may deem necessary to give financial assistance to any state which is in need of such assistance (Article 275).
• Under Article 263, President has power to establish Interstate Councils. These Councils have duty of inquiring In to and advising upon disputes which arises between the states. These councils also investigate and discuss the subjects of common interest between the union and the States or between two or more states.
• The President has so far established Central Council of health, a Central Council of local self-government and a Transport Development Council.
• Parliament has power to constitute an Inter-State Commerce Commission (Article 307) and empower it to execute such functions as it may deem fit.
• Article 261 provides that full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and every state.
• Article 261 (3) declares that final judgments or orders delivered or passed by civil courts in any part of territory of India can be executed anywhere in the country.
• Article 262: Adjudication of disputes relating to waters of inter-state rivers or river valleys. Article 262 (2) provides that parliament may by law provide that neither the SC nor any other court shall exercise jurisdiction in respect of any such dispute.

Financial Relations

• Articles 268 to 293 in part XII deal with the financial relations.
• These relations are related to the distribution of taxes as well as non-tax revenue and the power of borrowing. Grant-in-aid forms an important part of centre-state relations.
• Parliament can levy taxes on the subjects enlisted in the List -1 (Union List) while the states can levy taxes on the subjects mentioned in the State List. (List II).
• There are no taxes on the subjects of the Concurrent List (List III).
• Finance Commission (Article 280) recommends to me I President on the distribution of net proceeds of taxes between the Centre and states.

 

Taxes Belonging to Union Exclusively	Taxes Belonging to States Exclusively
A. Customs B. Corporation C. Taxes on capital values of documents included in the Company.                  D. Surcharge on income Tax. E. Fees in respect of matters in Union List.	1. Land revenue. 2. Stamp duty except in assets of Individuals and    Union List. 3. Succession duty, estate duty and income tax on agricultural land. 4. Taxes on passengers and goods carried on inland waterways. 5. Taxes   on   lands and buildings, mineral rights. 6. Taxes on animals and boats, road vehicles, on advertisements, electricity, luxuries and amusements, etc.
	7. Taxes on the entry of   goods.
	8. Sales tax.
	9.  Tolls.
	10. On matters in the State List.
	11. On profession, trade, etc. (not exceeding Rs. 2,500 per annum (List II).

 

IMPORTANT SUBJECTS IN VARIOUS LISTS

 

Union List (List I)

6. Atomic energy and mineral resources.
7. Extradition.
8. Banking.
9. Insurance.
10. Stock exchanges and futures markets.
11. Parents, inventions and designs; copyright; trade-marks and merchandise marks.
12. Census.
13. Corporation tax.
14. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.

 

State List (List II)

1. Public order.
2. Local government.
3. Public health and sanitation.
4. Libraries, museums and other similar institutions.
5. Agriculture.
6. Fisheries.
7. Gas and gas-works.
8. Markets and fairs.
9. Captivation taxes.

 

Concurrent List (List III)

1. Criminal law.
2. Criminal procedure.
3. Preventive detention.
4. Marriage and divorce.
5. Transfer of property other than agricultural land.
6. Contracts.
7. Civil procedure.
8. Contempt of court, but not including contempt of the

Supreme Court.

17. Prevention of cruelty to animals.
18. Economic and social planning.
19. Legal, medical and other professions.
20. Electricity.
21. Archaeological sites.

 

 

Administration of Union Territories

There is no uniform system of administration in the union territories. Parliament has been vested with the power to prescribe the structure of administration in the various union territories. The administrators of union territories are variously known as Lieutenant Governors, Chief Commissioners or Administrators. In Daman and Diu and Pondicherry, they are designated as Lieutenant Governors. In Andaman and Nicobar Islands and Chandigarh they are known as Chief Commissioners and in Lakshadweep as Administrator.

Similarly, some Union Territories possess Legislative Assemblies and Councils of Ministers such as Daman and

Diu, Pondicherry, and Delhi (National Capital Territory), while others do not. It may be noted that in Union Territories with Legislative Assemblies, the right to legislate on subjects enumerated in the State List and Concurrent List vests with the Assembly. With respect to other union territories, the laws are enacted by the Parliament. The administrators of the union territories enjoy the right to issue ordinance within certain limitations. When the legislatures of the union territories are dissolved or suspended, responsibility for the peace, progress and good government of the territory falls on the President.

 

Commissions for the Improvement of Centre-State Relations

There have been several efforts for the improvement of Centre-State relations. Central Government have set-up many commissions to review and examine the Federal Relations from time to time, leading among them are Sarkaria Commission

Sarkaria Commission was set-up in June, 1983 by the Central Government of India. The Sarkaria Commission's charter was to examine the relationship and balance of power between State and Central Governments in the country and suggest changes within the framework of Constitution of India. The commission was so named as it was headed by Justice Rajinder Singh Sarkaria, a retired Judge of the Supreme Court of India and other two members of the committee were Shri B Sivaraman and Dr SR Sen.

The Commission made 247 recommendations to improve Centre-state relations. The important recommendations are mentioned below:

1. A permanent Inter-State Council called the Inter- Governmental Council should be set up under Article 263.
2. Article 356 (President's Rule) should be used very sparingly, in extreme cases as a last resort when all the available alternatives fail.
3. The institution of All-India Services should be further strengthened and some more such services should be created.
4. The residuary powers of taxation should continue to remain with the Parliament, while the other residuary powers should be placed in the Concurrent List.
5. The National Development Council (NDC) should be renamed and reconstituted as the National Economic and

Development Council (NEDC).

6. The Centre should consult the states before making a law on a subject of the Concurrent List.
7. The governor's term of five years in a state should not be disturbed except for some extremely compelling reasons.
8. The surcharge on income tax should not be levied by the Centre except for a specific purpose and for a strictly

limited period.

9. When the president withholds his assent to the state bills, the reasons should to communicated to the state government.
10. The Union Government should consult the Government of the States before enacting any law related to a subject included in the Concurrent List.
11. As provided in Article 263, an Inter-State Council should be constituted to resolve differences between the Union and the States. The Chief Ministers of all the states should be Ex-officio Members of the Council.
12. The states should be given right to amend the "subjects included in State List, this requires an amendment to the Article 252 of the Constitution. An Expenditure Commission should be set-up at the Union level. The Corporation Tax should be distributed between Centre and States.

 

MM Punchhi Commission

A Commission on Centre-State Relations was set-up by the Government of India in April, 2007 under the Chairmanship of Madan Mohan Punchhi, Former Chief Justice of India to look into the issues of Centre-State Relations. Some of the recommendations given in its various reports are as below

• It recommended higher central transfers to backward states to enable them to improve their physical and human infrastructure.
• It recommended for the adoption of a multi-pronged strategy in the backward regions of the country comprising public investment in infrastructure development, proactive policies to attract private investment, higher public expenditure on social sectors, such as health and education and area specific strategy for the growth of agricultural production.
• There should be much better coordination between the Finance Commission and the Planning Commission. The synchronisation of the periods covered by the Finance Commission and the Five Year Plan will considerably improve such coordination. It recommended that another attempt be made to synchronise the periods.
• There should be mandatory devolution of functions to local government and it must be done by the year 2015.
• Priority should be given to items pertaining to basic needs. Articles 243 G and 243 W should be amended to mandate that devolution of functions as listed out in the Eleventh and Twelfth Schedules, together with the powers and authority to implement them, should be done by the year 2015.
• The Collector is overburdened and hence, there should be a separate administrative structure for the district Panchayat.
• The Constitution needs to be amended to provide a specific entry in List 1 (Union List) of the Seventh Schedule empowering the Union on matters concerning environment, ecology and climate change.
• The National Water Resources Council needs to play a greater role in integrating policy and programmes on a continuous basis.
• Government should ideally explore the possibilities of setting up a single regulator for tariff regulation of power, coal and gas.

 

Inter-State Water Disputes

Article 262 of the Constitution envisages the adjudication of inter-state water disputes which make two provisions

1. Parliament may by law 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.
2. Parliament may also provide that neither the Supreme Court nor any other court is to exercise jurisdiction in respect of any such dispute or complaint.

• Under this provision, the Parliament has enacted two laws i.e. the River Boards Act of 1956 and the Inter State Water Disputes Act of 1956.
• The River Board Acts, envisions the establishment of rivers boards for the regulation and development of inter-state river and river valleys. The Inter-State Water Disputes Act empowers the federal government (i.e. Central Government) to set-up an adhoc tribunal for the adjudication of a dispute between two or more states in relation to the waters of an inter-state river or river valleys.

Inter-State Water Dispute Tribunals

Krishna Water Disputes Tribunal	1969	Maharashtra, Kamataka and Andhra Pradesh
Godavari  Water Disputes Tribunal	1969	Maharashtra, Kamataka, Andhra Pradesh, Madhya Pradesh and Odisha
Narmada Water Disputes Tribunal	1969	Rajasthan, Gujarat,
Ravi and Beas Water Disputes Tribunal	1986	Punjab and Haryana Madhya Pradesh and Maharashtra
Cauvery Water Disputes Tribunal	1990	Karnataka, Kerala, Tamil Nadu and Puducherry
Second Krishna Water Disputes Tribunal	2004	Maharashtra, Karnataka and Andhra Pradesh
Vansadhara Water Disputes Tribunal	2010	Odisha and Andhra Pradesh
Mahadayi Water Disputes Tribunal	2010	Goa, Kamataka and Maharashtra

 

Inter-State Councils

• The power of the President to set-up Inter-State Councils may be exercised not only for advising upon disputes, but also for the purpose of investigating and discussing subjects, in which some or all of the States or the Union and one or more of the States or the Union have a common interest.
• In the exercise of this power the President has already constituted the Central Council of Health, the Central Council of Local Self-Government, the Central Council of Indian Medicine, the Central Council of Homeopathy the changing role of Inter-State Council.
• The Inter-State Council was set-up under Article 263 of the Constitution of India in May, 1990. The council charged with the duty of
• inquiring into and advising upon disputes, which may have arisen between states;
• investigating and discussing subjects in which some or all of the States or the Union and one or more of the states, have a common interest or
• making recommendations upon any such subject and in particular recommendations for the better coordination 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 it and its organisation and procedure.

 

Composition of Inter-State Council

The Composition of the Inter-State Council includes the Prime Minister, Chief Ministers of all States, Chief Ministers

of union Territories having Legislative Assemblies and Administrators of Union Territories not having Legislative Assemblies, Governors of states under President Rule, six

Ministers of Cabinet rank in the Union Council of Ministers’ to be nominated by the Prune minister and two Ministers of Cabinet rank in the Union Council of Ministers to be nominated by the Prime Minister permanent invites.

 

Duties of the Council

To investigate and discuss subjects of common interest.

Make recommendations for the better coordination of policy and actions on such subjects; and

Deliberate on such matters of general interest to the states referred by the Chairman to the Council. It shall have its own Secretariat.

 

INTER-STATE TRADE AND COMMERCE

Articles 301 to 307 in Part Xffl of the Constitution deal with the trade, commerce and intercourse within the territory of India.

Article 301 declares that trade, commerce and intercourse throughout the territory of India shall be free. The object of this provision is to break down the border barriers between the states and to create one unit with a view to encourage the free flow of trade, commerce and intercourse in the country. The freedom under this provision is not confined to inter-state trade, commerce and intercourse but also extends to intra-state trade, commerce and intercourse. Thus, Article 301 will be violated whether restrictions are imposed at the frontier of any state or at any prior or subsequent stage.

The freedom guaranteed by Article 301 is a freedom from all restrictions, except those which are provided for in the other provisions (Articles 302 to 305) of Part XIII of the Constitution itself. These are explained below:

(i) Parliament can impose restrictions on the freedom of trade, commerce and intercourse between the states or within a state in public interest. But, the Parliament cannot give preference to one state over another or discriminate between the states except in the case of scarcity of goods in any part of India.

(ii) The legislature of a state can impose reason able restrictions on the freedom of trade, commerce and intercourse with that state or within that state in public interest. But, a bill for this purpose can be introduced in the legislature only with the previous sanction of the president. Further, the state legislature cannot give preference to one state over another or discriminate between the states.

(iii) The legislature of a state can impose on goods imported from other states or the union territories any tax to which similar goods manufactured in that state are subject. This provision prohibits the imposition of discriminatory taxes by the state.

(iv) The freedom (under Article 301) is subject to the nationalisation laws (i.e. laws providing for monopolies in favour of the Centre or the states). Thus, the Parliament or the state legislature can make laws for the carrying on by the respective government of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

The Parliament can appoint an appropriate authority for carrying out the purposes of the above provisions relating to the freedom of trade, commerce and intercourse and restrictions on it. The Parliament can also confer on that authority the necessary powers and duties. But, no such authority has been appointed so far.

ZONAL COUNCILS

The Zonal Councils are the statutory (and not the constitutional) bodies. They are established by an Act of the Parliament, that is, States Reorganisation Act of 1956. The act divided the country into five zones (Northern, Central, Eastern, Western, Southern) and provided a zonal council for each zone.

Each zonal council consists of the follow members:

(a) Home Minister of Central government.

(b) chief ministers of all the States in the zone.

(c) Two other ministers from each state in the zone.

(d) Administrator of each Union Territory in the zone.

The Home Minister of Central Government is the common chairman of the five zonal councils. Each Chief Minister acts as a vice-chairman of the council by rotation, holding office for a period of one year at a time.

The Zonal Councils aim at promoting cooperation and coordination between states, union territories and the Centre.

They discuss and make recommendations regarding matters like economic and social planning, linguistic minorities, border disputes, inter-state transport, and so on. They are only deliberative and advisory bodies.

The objectives (or the functions) of the Zonal Councils, in detail, are as follows:

To achieve an emotional integration of the country.

To help in arresting the growth of acute state consciousness, regionalism, linguism and particularistic trends.

To help in removing the after-effects separation in some cases so that the process of reorganisation, integration and economic advancement may synchronise.

To enable the Centre and states to cooperate with each other in social and economic matters and exchange ideas and experience in order to evolve uniform policies.

To cooperate with each other in the successful and speedy execution of major development projects.

To secure some kind of political equilibrium between different regions of the country.

 

North-Eastern Council

In addition to the above Zonal Councils, a North-Eastern Council was created by a separate Act of Parliament- the North-Eastern Council Act of 1971. Its members include Assam, Manipur, Mizoram, Arunachal Pradesh, Nagaland, Meghalaya, Tripura and Sikkim.

Zonal Councils at a glance

 

Name	Members	Headquarters
1. Northen Zonal Council	Jammu and Kashmir, Himachal Pradesh, Haryana, Punjab, Rajasthan, Delhi, and Chandigarh	New Delhi
2. Central Zonal Council	Uttar Pradesh, Uttarakhand, Chhattisgarh, and Madhya Pradesh	Allahabad
3. eastern Zonal Council	Bihar, Jharkhand. West Bengal and Orissa	Kolkata
4. Western Zonal Council	Gujarat. Maharastra, Goa, Dadra and Nagar Haveli and Daman and Diu	Mumbai
5. Sothern Zonal Council	Andhra Pradesh, Kamataka, Tamil Nadu, Kerala and Puducherry	Chennai

 

Articles Related to Inter-State Relations at a Glance

Article No.	Subject-matter
	Mutual Recognition of Public Acts, etc.
261.	Public acts, records and judicial proceedings
	Disputes Relating to Waters
262.	Adjudication of disputes relating to waters of Inter-State Rivers or river valleys
	Co-ordination between States
263.	Provisions with respect to an inter-state council
	Inter-State Trade and Commerce
301.	Freedom of trade, commerce and intercourse
302.	Power of Parliament to impose restrictions on trade, commerce and intercourse
303.	Restrictions on the legislative powers of the Union and of the states with regard to trade and commerce
304.	Restrictions on trade, commerce and intercourse among states
305.	Saving of existing laws and laws providing for state monopolies
306.	Power of certain states in Part B of the First Schedule to impose restrictions on trade and commerce (Repealed)
307	Appointment of authority for carrying out the purposes of Articles 301 to 304.