“The Knowledge Library”

Knowledge for All, without Barriers…

An Initiative by: Kausik Chakraborty.
02/02/2023 11:14 PM

“The Knowledge Library”

Knowledge for All, without Barriers……….
An Initiative by: Kausik Chakraborty.

The Knowledge Library

CENTER STATE RELATIONS

Legislative relations:

Parliament can make laws for the whole or any part of the territory of India.

Only Parliament can make the law applicable to Indians and their property in any part of the world [extra-territorial jurisdiction]. States can make laws for the whole or part of the state only.

President can make regulations for the peace, progress and good government of UT’s  A&N, Lakshadweep, Dadra Nagar Haveli and Daman Diu. Such regulation can amend or repeal the law of parliament for these territories.

Parliament can make laws on any matter in all three lists for UTs. Even though Delhi and Puducherry have CM + CoM the supreme control of the president and parliament it isn’t affected. However legislative assembly of both UT’s can make laws on the state list [Delhi can’t make on public order, police and land] and concurrent list.

Provision for the administration of acquired territories also is the same as UT’s.

Governors are empowered to direct that an act of parliament doesn’t apply to the scheduled area of the state or apply with amends. The Governor of Assam can do the same for tribal autonomous districts and the president for the tribal autonomous districts in Meghalaya, Tripura and Mizoram.

Union list has precedence over concurrent list [and state list] and concurrent over state list. Only parliament can make laws on residuary subjects [not on any lists]. However, if a state bill has been given assent by the president then it prevails for that state. But parliament can override this by making an act on the same matter.

Under extraordinary circumstances, the parliament can make laws on matters on the state list too if:

  1. Rajya Sabha passes a resolution with a two-thirds majority. Such a resolution has a life of one year and can be extended at any time. All such acts lapse after 6 months of the resolution lapsing. The state can still make a law on this matter when the resolution is in force but union law prevails.
  2. During national emergencies, the union can make laws on matters in the state list but such laws expire within 6 months of the emergency expiring. States can make laws on the matter too but union laws prevail.
  3. Parliament can make laws on any matter of state list to implement international conventions, agreements and treaties.
  4. If two or more states pass a resolution requesting parliament to make laws on a matter in the state list then parliament can legislate for that matter only. Such law shall apply only to those states but other states can join by passing similar resolutions. Henceforth only parliament can make laws or amend/repeal them on that matter for those states. The states shall have lost that power with respect to that subject.
  5. During presidents’ rule in the state, parliament can make laws for any matter in the state list but for that state only. After the rule is over these laws don’t lapse. But states can amend/repeal/re-enact them.

Parliament can exercise control on state legislations by:

  1. President can direct states to reserve money and other financial bills for his assent during a financial emergency.
  2. Bills on certain matters on the state lists can be introduced in state legislatures only after presidential sanction.
  3. Governor can reserve bills passed by state legislatures for presidential assent. President enjoys an absolute veto over them.

Division of executive powers:

The Centre has executive powers on matters on which it can make legislation. This is for the entire territory of India. Similarly, states have executive powers throughout their entire territory for all matters on which they can legislate.

For matters in the concurrent list, executive power rests with the state unless the constitution or the said law confers it to the centre.

The executive power of the state should be used in a manner to ensure compliance with central laws and to ensure that no impedance is caused to the exercise of executive powers of the centre in the state.

The centre can give directions to the state for the above purposes and non-compliance with such directions can be a valid reason for declaring the president’s rule in that state.

President can assign an executive function of the centre to the state government if it consents. Governor too can entrust the executive function of the state to the centre if it agrees.

However, only parliament can confer executive duties to a state government without the consent of the state by passing a law.

ADMINISTRATIVE RELATIONS BETWEEN THE UNION AND THE STATES

    • ANY federal scheme involves the setting up of dual governments and division of powers. But the success and strength of the federal polity depend upon the maximum cooperation and coordination between the governments. The topic may be discussed under two beads:
    • Relation between the Union and States;
    • Relation between the States inter Se.
    • TECHNIQUES OF UNION CONTROL OVER STATES
      • It would be convenient to discuss this matter under two heads-(i) in emergencies; (ii) in normal times.
      • It has already been pointed out that in ’emergencies’ the government under the Indian Constitution will work as if it were a unitary government
      • In Normal Times. Even in normal times, the Constitution has devised techniques of control over the States by the Union to ensure that the State governments do not interfere with the legislative and executive policies of the Union and also to ensure the efficiency and strength of each individual unit which is essential for the strength of the Union.
      • Some of these avenues of control arise out of the executive and legislative powers vested in the President, In relation to the States,
        • The power to appoint and dismiss the Governor; the power to appoint other dignitaries in the State, e.g., Judges of the High Court; Members of the State Public Service Commission
        • Legislative powers, e.g., previous sanction to introduce legislation in the State Legislature; assent to specified legislation which must be reserved for his consideration, instruction of President required for the Governor to make Ordinance relating to specified matters; veto power in respect of other State Bills reserved by the Governor
        • It has already been stated that with the consent of the Government of a Delegation of State, President may entrust to that Government executive functions of the Union relating to any matter. While legislating on a Union subject, Parliament may delegate powers to the State Governments and their officers insofar as the statute is applicable in the respective States
        • Conversely. a State Government may, with the consent of the Government of India, confer administrative functions upon the latter, relating to State subjects
        • Thus. where it is Inconvenient for either Government to directly carry out its administrative functions, it may have those functions executed through the other Government.

Grant-in-Aid.

    • As stated earlier, Parliament is given the power to make such grants as Grant-in-Aid.
    • It may deem necessary to give financial assistance to any State which is in need of such assistance [Art. 275]
    • By means of the grants, the Union would be in a position to correct inter-State disparities in financial resources which are not conducive to an all-around development of the country and also to exercise control and coordination over the welfare schemes of the States on a national scale.
    • Besides this general power to make grants to the States for financial assistance. the Constitution provides for specific grants on two matters:
    • (a) For schemes of development, for the welfare of Scheduled Tribes and for raising the level of administration of Scheduled Areas, as. may have been undertaken by a State with the approval of the Government of India.
    • (b) To the State of Assam, for the development of the Tribal Areas in that State

Interstate commerce commission

    • For the purpose of enforcing the provisions. of the Constitution relating to the freedom of trade, commerce and intercourse throughout the territory of India
    • Parliament is empowered to constitute an authority similar to the Interstate Commerce Commission in the US.A
    • And to confer on such authority such powers and duties as it may deem fit. No such Commission has however been set up.

Mutual delegation of functions

    • As explained already Our Constitution distributes between the Union and the States not only the legislative power but also the executive power, more or less on the same lines
    • The result is that it is not competent for a State to exercise administrative power with respect to Union subjects, or for the Union to take up the administration of any State function unless authorised on that behalf by any provision in the Constitution.
    • In administrative matters, a rigid division like this may lead to occasional deadlocks.
    • To avoid such a situation, the Constitution has engrafted provisions enabling the Union as well as a State to make a mutual delegation of their respective administrative functions:
    • (b) As to the delegation of Union functions, there are two methods:
    • With the consent of the State Government, the President may, without any legislative sanction, entrust any executive function to that State
    • Irrespective of any consent of the State concerned, Parliament may, while legislating with respect to Union subject, confer powers upon a State or its officers, relating to such subject. Such delegation has, in short, a statutory basis.
    • Conversely, with the consent of the Government of India, the Governor of a State may entrust to the Union Government or its officers, functions relating to a State subject, so far as that State is concerned

IMMUNITY FROM MUTUAL TAXATION

    • The system of double government set up by a federal Constitution requires, for its smooth working, the immunity of the property of one Government from taxation by another.
    • Though there are some differences between federal Constitutions as to the extent to which this immunity should go, there Is an agreement on the principle that mutual immunity from taxation would save a good deal of fruitless labour in the assessment and calculation and cross-accounting of taxes between the two governments (Union and State).
    • The property of the Union shall save insofar as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a state
    • Similarly, the property of a State is immune from Union taxation
    • The Immunity, however, does not extend to all ‘Union taxes, as held by our Supreme Court, but is confined only to such taxes as are levied on the property.
    • A-State is, therefore, not immune from customs duty, which Is Imposed, not on property, but on the act of import or export of goods.
    • Not only the ‘property’ but also the ‘income’ of a State are exempted from Union taxation. The exemption Is, however, confined to the State Government and does not extend to any local authority situated within a State.
    • The above immunity of the income of a State is, again, subject to an overriding power of Parliament as regards any income derived from commercial activity.
    • Thus(a) Ordinarily, the income derived by a State from commercial activities shall be immune from income tax levied by the Union.
    • (b) Parliament Is, however, competent to tax the income of a State derived from commercial activity.
  • (c) if, however, Parliament declares any apparently trading functions as functions ‘incidental to the ordinary functions of government’, the income from such functions shall be no longer taxable, so long as such declaration stands.

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