Division of powers between Union and States

With reference to Indian Federation, the administration is primarily furnished by the state agencies.

Unlike other federations where both the federal and state government create their own agencies for the administration of their laws and the subjects allocated to them in the constitution, even the laws of the union are left to be administered by the state authorities in order to avoid duplication of administrative machinery.

In every federal constitution, the central and state governments are firmly enclosed and the jurisdiction of the one excludes the other.

The centre is concerned with problems of the Union List. The states are with matters on the State List.

There is also provision for the allocation of the powers by the union to the states and vice versa. The forte and success of such scheme require cooperation and coordination between Centre and States.

In India, the central government or the union is responsible for the governance of the whole country. There should be effective administrative norms between the Union and States.

The Supreme Court has demarcated that the Executive power of the union is coexistent with Power of the Parliament, with this limitation that the executive cannot act against the provisions of the constitution or of any law made by the parliament.

The Union Government is dependent on the States to give effect to its programmes. The scheme of distribution of administrative powers has some major objectives. It arms, the union government with powers to have effective control over administration of the state and espouses several advices for intergovernmental cooperation and coordination.

The executive powers in relation to any treaty or agreement has been discussed on the union by the Constitution, Parliament has also vested executive functions in the union over Concurrent List matters under several acts.

The Concurrent List gives power to the two legislatures, Union as well as State, to legislate on the same subject. In case of conflict or inconsistency, the rule of repugnancy, as contained in Article 254 comes into play to uphold the principle of Union’s supremacy.

Under this rule, if there is any discrepancy between the State and the Centre over a subject in the Concurrent List, the Union law takes precedence over the State’s law, and the State’s law to the extent of such repugnancy, be void.

But, as an exception, if the State law has been reserved for the consideration of the President and has received his assent, then the State law prevails in that State. But, the Parliament remains competent to override such a law by subsequently making a law on the same matter.

Executive Powers of the Union

They are assigned by the President who can exercise it directly or through officers subordinate to him in accordance with Constitution.

  • The President has the power to appoint and remove certain dignitaries in the states.
  • He appoints the Governor of a State who holds his office during the rule of the President (Article 155 and Article 156).
  • He also appoints judges of the High Courts (Article 217) and plays a significant role in the removal of High Court Judges as also members of State Public Service Commission (Article 317).

Legislative Relations

  • The Union-State relations in the legislative domain have been dealt by Articles 245 to 254.
  • The Constitution evidently provides that the Parliament shall have special authority to make law for the whole or any part of the terrain of India with regard to subjects mentioned in the Union List.
  • This list contains topics like defence, foreign affairs, currency, union duties, and communication.
  • On the other hand, the State has exclusive power over the 66 items enumerated in the State List.
  • This List comprises of topics like public order, health, sanitation, agriculture etc.
  • Additionally, there is a Concurrent list containing 47 subjects like criminal law and procedure, marriage, contracts, trust, social insurance etc. over which both the Union and the State Governments can legislate.

The Union Government has an upper hand

  • If the law of the Union Government and the State Government clash with each other, the former succeeds.
  • However, a State law on the simultaneous list shall prevail over the Central law if the same had been reserved for the consideration of the President and his consent had been received before the representation of the Central law on the same subject. This clearly gives some flexibility to the States.
  • The constitution also vests the residuary powers (viz., the enumerated in any of the three Lists) with the Central Government.
  • It is established that in this distribution of powers, the Union Government has positively been given a preferred treatment. It has not only been granted more extensive powers than the States, even the residuary powers have been granted to it contrary to the convention in other federations of the world, where the residuary powers are given to the States.

The Union government can legislate on any subject included in the State List, under some specific circumstances, which are as follows:

(i) If the Council of States (Rajya Sabha) declares that it is necessary for the Centre to legislate upon a subject in the State list, in national interest, and passes a resolution to this effect, with a majority of at least 2/3rd of members present and voting (Article 249). This resolution remains in force for a year and can be renewed any number of times, but for not more than one year at a time. The laws so made do not have any effect six months after the resolution has ceased to be in force. At the same time, the State can also legislate upon the same subject, but in case of any inconsistency, laws of the Centre prevail. This particular feature makes the entire legislative process federal in nature.

(ii) When two or more State Legislatures pass a resolution, requesting the Parliament to legislate upon a subject in the State List (Article 252). The law passed by Union Parliament shall be applicable only to the States, which demanded such legislation. Any other State may later adopt it by passing a resolution to that effect. In this case, States cease to have power to legislate upon that subject and only the Parliament can amend or repeal such a law. In past, laws have been made using this provision, some of them are: Wildlife (Protection) Act 1972, Urban Land (Ceiling and Regulation) Act.

(iii) For the enforcement of International Treaties and Agreements. This provision enables the central government to fulfill its international obligations (Art. 253). The Lokpal and the Lokayuktas Bill, 2011 was introduced in the Parliament through the provisions of this particular article.

(iv) During national emergency, the Parliament can legislate upon any subject in the State List. Such a law becomes inoperative on expiration of six months after the emergency has ceased to operate (Article 352) However, at the same time the State can also legislate upon the same subject, but in case of any inconsistency, laws of the Centre prevail.

(v) During President’s rule in a State, the Parliament can make laws with respect to any subject in the State list, in relation to that state. Such a law continues to be operative even after the President’s rule. But it can be repealed, altered or re-enacted later by the State Legislature (Article 356).

Functions of Union

  • Formulation, execution, evaluation and revision of public policy in various spheres which the party in power seeks to progress and practice.
  • Coordination among various ministries and other organs of the government which might indulge in conflicts, wastefulness, duplication of functions and empire building.
  • Preparation and monitoring of the legislative agenda which translated the policies of the government in action through statutory enactments.
  • Executive control over administration through appointments, rule-making powers and handling of crises and disasters, natural as well as political.
  • Financial management through fiscal control and operation of funds like Consolidated Fund and Contingency Funds of India.
  • Review the work of planning and Planning Commission.

Functions of State

  • State governments have separate departments for efficient functioning of the state. States have jurisdiction over education, agriculture, public health, sanitation, hospitals and dispensaries and many other departments.
  • Internal security: The state governments have to maintain the internal security, law and order in the state. Internal security is managed through state police.
  • Public order: States have jurisdiction over police and public order.
  • Education: Providing a public education system, maintaining school buildings and colleges, employment of teachers, providing help to under privileged students all come under the education department of the state.
  • Agriculture: The state governments have to provide support for farmers, funds for best farming practices, disease prevention and aid during disasters such as floods or droughts.
  • Finances: State legislature handles the financial powers of the state, which include authorisation of all expenditure, taxation and borrowing by the state government. It has the power to originate money bills. It has control over taxes on entertainment and wealth, and sales tax.
  • Reservation of bills: The state governor may reserve any bill for the consideration of the President.
  • Transport: State government runs the trains, trams, bus and ferry services and other public transportation in the cities and towns of the States.
  • Water supply: Water supply to cities and towns for drinking, including irrigation for farmers, is the responsibility of the State governments.
  • Budget: State governments make budget for state.
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