2.2. Administrative Relations (Arts. 256 to263)

The executive power of the centre extends primarily to matters with respect to which Parliament has exclusive authority to make laws. Similarly the executive powers of the states extend to all those matters which are within their legislative domain. But with regard to the matters which are in the concurrent list there are three courses of action with the parliament in reference to the enforcement of legislation. It can leave it entirely to the states or may take over the task of 'enforcing it or it may take upon the enforcement of a part of the law, leaving the rest of it to the states for enforcement.

The framers of Indian Constitution made detailed provisions in the Constitution in regard to administrative relations between the Centre and State to ensure minimization of conflict between the two. They have been elaborated below:

a) Directives by the Union to the State governments: Article 256 mentions that the executive power of every state shall be so exercised as to ensure compliance with laws made by Parliament and any existing laws, which apply in that state, and the executive power of the Union shall extend to the giving of such directions to a state as may appear to the Government of India to be necessary for that purpose.

This power of the Union extends to the limit of directing a State in a manner it feels essential for the purpose. For instance, the Union can give directives to the State pertaining to

o the construction and maintenance of means of communication declared to be of national or military importance;

o protection of railways within the State;

o the provisions of adequate facilities for instructions in mother tongue at the primary stage of education to children belonging to linguistic minority groups in the State;

o drawing up and execution of the specified schemes for the welfare of the Schedule Tribe in the State.

This is essential to ensure the implementation of Parliamentary laws throughout the

country. Non-compliance of the directives might lead to a situation mentioned under Art.365 and it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus, the Union can invoke Article 356, for imposition of President’s rule in the State and take over the administration of the State.

b) Delegation of Union functions to the States: Usually executive powers are divided on the basis of subjects in the lists, but under the constitutional provision of Article 258(1) the President may, with the consent of the State government, entrust (either conditionally or unconditionally) to that government any of the executive functions of the Centre. Under Art 258(2), the Parliament is also entitled to use the state machinery for enforcement of the Union laws, and confer powers and entrust duties to the State. Under Art 258A, the State can also, with the consent of the Union government, confer administrative functions to the Union. In respect of matters in the Concurrent list, executive powers rest with the State, except when a constitutional provision or a Parliamentary law specifically confers it to the Centre.

c) All India Services: Besides the Central and State services, the Constitution under Article 312 provides for the creation of an additional "All-India Services", common to both the Union and States. The State has the authority to suspend the officials of All India Services, but the power of appointment and taking disciplinary action against them vests only with the President of India. The idea of having an integrated well-knit All India Services to manage important and crucial sectors of administration in the country was incorporated in our Constitution. Their recruitment, training, promotion, disciplinary matters are determined by the Central government. A member of the Indian Administrative Service (IAS), on entry into the service is allotted a State, where he/she serves under a State government. Though, it can be argued that the All India Services violate the principle of federalism, but such an arrangement, wherein a person belonging to the All India Service being responsible for administration of affairs, both at the Centre and States, brings cooperation in administration and helps to ensure uniformity of the administrative system throughout the country. Currently, there are three All India Services, namely IAS, IPS and IFoS (the Indian Forest Service was created as the third All India Service in 1966 by Art.312).

d) Constitution of Joint Public Service Commission for two or more States: When two or more states, through a resolution to that effect, in their respective legislatures agree to have one such Commission, the Parliament may by law, provide for a Joint Commission. There is also a provision in the Constitution, wherein on request by two or more States, the UPSC can assist those states in framing and operating schemes of joint recruitment to any service for which candidates with special qualifications are required.

e) Inter-State Council: India is a Union of States, wherein the Centre plays a prominent role, but at the same time is dependent on the States for the execution of its policies. The Constitution has provided for devices to bring about inter-governmental cooperation, effective consultations between the Centre and States so that all important national policies are arrived at through dialogue, discussion and consensus. One such device is the setting up of the Inter-State Council. The President is given powers under Article 263 of the Constitution to define the nature of duties of the Council. The Council is to inquire into and advise upon disputes, which may have arisen between the States. In addition, it may investigate and discuss subjects of common interest between the Union and the States or between two or more States, in order to facilitate co-ordination of policy and action. The inter-state council was set up under Article 263 of the Constitution in 1990. The ISC has held 10 meetings so far and has taken several important decisions. Some of them are:

i. Time bound clearance of bills referred for the President’s consideration

ii. Approved the Alternative Scheme of Devolution of Share in Central Taxes to States

iii. Indiscrete use of Article 356 in the country

f) Inter-State river water dispute: Art.262 states that the 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, or in, any inter-state river or river valley and it may by law provide that neither the Supreme Court, nor any other court shall exercise jurisdiction in respect of any such dispute.

Inter-State River Water Disputes (Amendment) Bill, 2019 Brief background

Under Article 262, two acts were enacted – (i) River Boards Act 1956 which states that centre should take control of regulation and development of Inter-state rivers and river valleys in public interest. However, not a single river board has been constituted so far. (ii) The Interstate River Water Disputes Act, 1956 (IRWD Act) which confers a power upon union government to constitute tribunals to resolve such disputes. It also excludes jurisdiction of Supreme Court over such disputes.

Under the Interstate River Water Disputes Act, a state government may request the central government to refer an inter-state river dispute to a Tribunal for adjudication. If the central government is of the opinion that the dispute cannot be settled through negotiations, it is required to set up a Water Disputes Tribunal for adjudication of the dispute, within a year of receiving such a complaint. Over the years, there have been many Water Dispute Tribunals hearing the cases between states on river water sharing. But they have not been able to effectively resolve the disputes.

There are various issues with the Act. A separate Tribunal has to be established for each Inter State River Water Dispute. There is inordinate delay in constituting the tribunal and also securing settlement of such disputes owing to no time limit for adjudication. Tribunals like Cauvery and Ravi Beas have been in existence for over 26 and 30 years respectively without any award. Further, there is no provision for an adequate machinery to enforce the award of the Tribunal. Also the losing Party is quick to seek redressal in the Supreme Court. Only three out of eight Tribunals have given awards accepted by the States.

About the bill

Recently, the Lok Sabha cleared the Inter-State River Water Disputes (Amendment) Bill, 2019, which seeks to amend the IRWD Act 1956. Some key provisions of the bill are:

♤ Dispute Resolution Committee needs to be established by the Central Government before referring dispute to the tribunal, to resolve the dispute amicably by negotiations within one year (extendable by six months), and submit its report to the central government.

♤ Establishment of a Single Inter-State River Water Disputes Tribunal by the Central Government, which can have multiple benches. It must give its decision on the dispute within two years, which may be extended by another year.

♤ Composition of Tribunal will include a Chairperson, Vice-Chairperson, three judicial members, and three expert members.

♤ The decision of the Tribunal shall be final and binding. The bill also removes the requirement of publication of decision in the official gazette in the original Act.

♤ It also makes mandatory for the Central Government to make a scheme to give effect to the decision of the Tribunal.

♤ Data Collection and maintenance of a databank at national level would be done for each river basin by an agency to be appointed and authorized by central government.

Apart from these, Art.355 imposes duties on the Centre to protect every State against external aggression and internal disturbances and to ensure that the Government of every State is carried on, in accordance with the provisions of the Constitution.

In case of National Emergency (Art. 352), the Centre becomes entitled to give executive directions to a State on any matter. Similarly, during President Rule (Art.356), the President can assume to himself the functions of State government and the power vested in Governor or any other executive authority in the State. During operation of Financial Emergency (Art.360), the Centre can direct the States over certain financial matters and the President can give other

necessary directions, including reduction in salary of persons serving in the State and the Judges of the High Court.