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Inter – State Relations | Indian Constitution Download PDF

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Inter – State Relations | Indian Constitution Download PDF

Inter-State Comity

Though a federal Constitution involves the sovereignty of the Units within their respective territorial limits, it is not possible for them to remain complete isolation from each other and the very exercise of internal sovereignty by a Unit would require its recognition by, and co-operation of, the other Units of the federation. All federal Constitutions, therefore, lay down certain rules of comity which the Units are required to observe, in their treatment of each other. These rules and agencies relate to such matters as—

(a) Recognition of the public acts, records and judicial proceedings of each other.
(b) Extra-judicial settlement of disputes.
(c) Co-ordination between States.
(d) Freedom of inter-State trade, commerce and intercourse.

Full Faith and Credit

(A) Recognition of Public Acts, etc. Since the jurisdiction of each State is confined to its own territory [Arts. 162, 245(1)], the Credit. acts and records of one State might have been refused to be recognized in another State, without a provision to compel such recognition. The Constitution, therefore, 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” [Art. 261(1)].
This means that duly authenticated copies of statutes or statutory instruments, judgments or orders of one State shall be given recognition in another State in the same manner as the statutes, etc., of the latter State itself. Parliament has the power to legislate as to the mode of proof of such acts and records or the effects thereof [Art. 261(2)].
(B) Extra-judicial Settlement of Disputes. Since the States, in every federation, normally act as independent units in the exercise of their internal sovereignty, conflicts of interest between the units are sure to arise. Hence, in order to maintain the strength of the Union, it is essential that there should be adequate provision for judicial determination of disputes between the units and for settlement of disputes by extra-judicial bodies as well as their prevention by consultation and joint action. While Art. 131 provides for the judicial determination of disputes between States by vesting the Supreme Court with exclusive jurisdiction in the matter, Art. 262 provides for the adjudication of one class of such disputes by an extra-judicial tribunal, while Art. 263 provides for the prevention of inter¬state disputes by investigation and recommendation by an administrative body. Thus—
(i) 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 also provide for the exclusion of the jurisdiction of all Courts, including the Supreme Court, to entertain such disputes [Art. 262].
In exercise of this power, Parliament has enacted the Inter-State Water Disputes Act, 1956, providing for the constitution of an Tribunal for the adjudication of any dispute arising between two or more States with regard to the waters of any inter-State river or river valley.
(ii) The President can establish an inter-State Council for enquiring into and advising upon inter-State disputes, if at any time it appears to him that the public interests would be served by the establishment of such Council [Art. 263(a)],
(C) Co-ordination between States. 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 have a common interest. In 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,1 Central Council of Homeopathy.
In this connection, it should be mentioned that advisory bodies to advise on inter-State matters have also been established under statutory authority:

Zonal Councils

(a) Zonal Councils have been established by the States Reorganisation Act, 1956 to advise on matters of common interest to each of the five zones into which the territory of India has been divided—Northern, Southern, Eastern, Western and Central.
It should be remembered that these Zonal Councils do not owe their origin to the Constitution but to an Act of Parliament, having been introduced by the States Reorganisation Act, as a part of the scheme of reorganisation of the States with a view to securing co-operation and co¬ordination as between the States, the Union Territories and the Union, particularly in respect of economic and social development. The creation of the Zonal Councils was a logical outcome of the reorganisation of the States on a linguistic basis. For, if the cultural and economic affinity of linguistic States with their contiguous States was to be maintained and their common interests were to be served by co-operative action, a common meeting ground of some sort was indispensable. The object of these Councils, as Pandit Nehru envisaged it, is to “develop the habit of co-operative working”.
The presence of a Union Minister, nominated by the Union Government, in each of these Councils (and the Chief Ministers of the States concerned) also furthers co-ordination and national integration through an extra¬constitutional advisory organisation, without undermining the autonomy of the States. If properly worked, these Councils would thus foster the ‘federal sentiment’ by resisting the separatist tendencies of linguism and provincialism.

(i) The Central Zone, comprising the States of Uttar Pradesh, Madhya Pradesh, Chhatisgarh and Uttarakhand.
(ii) The Northern Zone, comprising the States of Haryana, Himachal Pradesh, Punjab, Rajasthan, Jammu & Kashmir, and the Union Territories of Delhi & Chandigarh.
(iii) The Eastern Zone, comprising the States of Bihar, West Bengal, Orissa, Sikkim and Jharkhand.
(iv) The Western Zone, comprising the States of Gujarat, Maharashtra and Goa and the Union Territories of Dadra & Nagar Haveli; Daman & Diu.
(v) The Southern Zone, comprising the States of Andhra Pradesh, Karnataka, Tamil Nadu, Kerala, and the Union Territory of Pondicherry.
(vi) The North Eastern Zone, comprising the States of Assam, Meghalaya, Nagaland, Manipur, Tripura, Mizoram, Arunachal Pradesh.

Each Zonal Council consists of the Chief Minister and two other Ministers of each of the Sates in the Zone and the Administrator in the case of a Union Territory. There is also provision for holding joint meetings of two or more Zonal Councils. The Union Home Minister has been nominated to be the common chairman of all the Zonal Councils.
The Zonal Councils, as already stated, discuss matters of common concern to the States and Territories comprised in each Zone, such as, economic and social planning, border disputes, inter-State transport, matters arising out of the reorganisation of States and the like, and give advice to the
Governments of the States concerned as well as the Government of India.

Besides the Zonal Councils, there is a North-Eastern Council, set up under the North-Eastern Council Act, 1971, to deal with the common problems of Assam, Meghalaya, Manipur, Nagaland, Tripura, Arunachal Pradesh and Mizoram.

River Board

(b) The River Boards Act, 1956, provides for the establishment of a River Board for the purpose of advising the Govenments interested in relation to the regulation or development of an inter-State river or river valley.

Water Disputes Tribunal

(c) The inter-State Water Disputes Act, 1956, provides for the reference of an inter state dispute for arbitration by a Tribunal. Tribunal, (excluding jurisdiction of the Supreme Court under section 11) whose award would be final according to Art. 262(2).

II. Freedom of Inter-State Trade and Commerce

The great problem of any federal structure is to minimise inter-State barriers as much as possible, so that the people may feel that they are
members of one nation, though they may, individually, be residents of any of the Units of the Union. One of the means to achieve this object is to guarantee to every citizen the freedom of movement and residence throughout the country. Our Constitution guarantees this right by Art. 19(l)(d) & (e).

Need for the Freedom of Trade of Commerce

No less important is the freedom of movement or passage of commodities and of commercial transactions between one part of the country and for the another- The progress of the country as a whole also requires free flow of commerce and intercourse as and Commerce. between different parts, without any barrier. This is particularly essential in a federal system. This freedom is sought to be secured by the provisions [Arts. 301—307] contained in Part XIII of our Constitution. These provisions, however, are not confined to inter-State freedom but include intraState freedom as well. In other words, subject to the exceptions laid down in this Part, no restrictions can be imposed upon the flow, of trade, commerce and intercourse, not only as between one State and another but as between any two points within the territory of India whether any State border has to be crossed or not.
Article 301 thus declares—

“Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.”

Art. 303(1) declares that neither the Parliament nor the State Legislature shall have power to make any law giving, or authorising the giving of, any preference to one State over another; or making or authorising the making of, any discrimination between one State and another, in the field of trade, commerce or intercourse. Hence, if a State prohibits the sale of lottery tickets of others and promotes that of its own, it would be discriminatory and violative of Art. 303

The limitations imposed upon the above freedom by the other provisions of Part XIII are—

(a) Non-discriminatory restrictions may be imposed by Parliament, in the public interest [Art. 302],
By virtue of this power, Parliament has enacted the Essential Commodities Act, 1955, which empowers, ‘in the interest of the general public’, the Central Government to control the production, supply and distribution of certain ‘essential commodities’, such as coal, cotton, iron and steel, petroleum.
(b) Even discriminatory or preferential provisions may be made by Parliament, for the purpose of dealing with a scarcity of goods arising in any part of India [Art. 303(2)].
(c) Reasonable restrictions may be imposed by a State “in the public interest” [Art. 304(b)],
(d) Non-discriminatory taxes may be imposed by a State on goods imported from other States or Union Territories, similarly as on intraState goods [Art. 304(a)].
(e) The appropriate Legislature may make a law [under Art. 19(6)(ii)] for the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Before leaving this topic, we should notice the difference in the scope of provisions of Arts. 19(l)(g) and 301 both of which Arts. 19(l)(g) and guarantee the freedom of trade and commerce.
Though this question has not been finally settled, it may be stated broadly that Art. 19(l)(g) looks at the freedom from the standpoint of the individual who seeks to carry on a trade or profession and guarantees such freedom throughout the territory of India subject to reasonable restrictions, as indicated in Art. 19(5). Article 301, on the other hand, looks at the freedom from the standpoint of the movement or passage of commodities or the carrying on of commercial transactions between one place and another, irrespective of the individuals who may be engaged in such trade or commerce. The only restrictions that can be imposed on the freedom declared by Art. 301 are to be found in Arts. 302—305. But if either of these freedoms be restricted, the aggrieved individual or even a State may challenge the constitutionality of the restriction, whether imposed by an executive order or by legislation.4 When there is a violation of Art. 301 or 304, there would ordinarily be an infringement of an individual’s fundamental right guaranteed by Art. 19(l)(g), in which case, he can bring an application under Art. 32, even though Art. 301 or 304 is not included in Part III as a fundamental right.

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National Integration Council | Indian Constitution Download PDF

December 15, 2016 by Sastry Leave a Comment

National Integration Council | Indian Constitution Download PDF

Another non-constitutional body i.e. National Integration Council, originally was a group of senior politicians and public figures in India that looked for ways to address the problems of communalism ,casteism and regionalism. The then ” Prime Minister, Shri Jawaharlal Nehru, convened National Integration Conference in September-October, 1961 to find ways and means to combat the evils of communalism, casteism, regionalism, linguism and narrow-mindedness, and to formulate definite conclusions in order to give a lead to the country. This Conference decided to set up a National Integration Council (NIC) to review all matters pertaining to national integration and to make recommendations thereon. The NIC was constituted accordingly and held its first meeting in 1962. The National Integration Council has held 15 meetings so far in the year 1962, 1968, 1980, 1984, April 1986, September 1986, April 1990, September 1990, November 1991, December 1991, July 1992, November 1992, August 2005, October 2008, and the latest 15th meeting was held in New Delhi on 10 September 2011.
The 15th meeting of the National Integration Council held in New Delhi on 10th September 2011, was Chaired by Prime Minister Manmohan Singh and was attended by its 148 members 128 as on that date. Prime Minister Manmohan Singh reiterated the declaration of objectives adopted by National Integration Council in 1968 which was as under:

“The foundation of our national life is common citizenship, unity in diversity, freedom of religions, secularism, equality, justice—social, economic and political, and fraternity among all communities.”

(B) Co-Operation Between the Union and the States
Apart from the agencies of federal control, there are certain provisions which tend towards a smooth working of both the Union and State Governments, without any unnecessary conflict jurisdiction. These are—
(i) Mutual delegation of functions.
(ii) Immunity from mutual taxation.
(a) 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 [Arts. 73, 162]

Planning Commission | Indian Constitution Download PDF

December 15, 2016 by Sastry Leave a Comment

Planning Commission | Indian Constitution Download PDF

Though the Constitution specifically mentions several Commissions to achieve various purposes, the Planning Commission, as such, is not to be Planning found in the Constitution. ‘Economic and social . planning’ is a concurrent legislative power [Entry 20,List III]. Taking advantage of this Union power, the Union set up a Planning Commission in 1950, but without resorting to legislation. This extra-constitutional and non-statutory body was set up by a resolution (1950) of the Union Cabinet by Prime Minister Nehru with himself as its first Chairman, to formulate an integrated Five Year Plan for economic and social development and to act as an advisory body to the Union Government, in this behalf.
Set up with this definite object, the Commission’s activities have ‘ gradually been extended over the entire sphere of the administration excluding only defence and foreign affairs, so much so, that a critic has described it as “the economic Cabinet of the country as a whole”, consisting of the Prime Minister and encroaching upon the functions of constitutional bodies, such as the Finance Commission and, yet, not being accountable to Parliament. It has built up a heavy bureaucratic organisation which led Pandit Nehru himself to observe—
“The Commission which was a small body of serious thinkers had turned into a government department complete with a crowd of secretaries, directors and of course a big budding.”
According to these critics, the Planning Commission is one of the agencies of encroachment upon the autonomy of the States under the federal system. The extent of the influence of this Commission should, however, be precisely examined before arriving at any conclusion. The function of the Commission is to prepare a plan for the “most effective and f balanced utilisation of the country’s resources”, which would initiate “a process of development which will raise living standards and open out to the [ people new opportunities for a richer and more varied life”. It is obvious that the business of the Commission is only to prepare the plans; the implementation of the plans rests with the States because the development relates to mostly State subjects. There is no doubt that at the Union, the Planning Commission has great weight, having the Prime Minister himself as its Chairman. But so far as the States are concerned, the role of the Commission is only advisory. Whatever influence it exerts is only indirect, insofar as the States vie with each other in having their requirements included in the national plan. After that is done, the Planning Commission . can have no direct means of securing the implementation of the plan. If, that stage, the States are obliged to follow the uniform policy laid down by the Planning Commission, that is because the States cannot do without obtaining financial assistance from the Union. But, strictly speaking, taking ; advantage of financial assistance involves voluntary element, not coercion, and even in the United States the receipt of federal grants-in-aid is not considered to be a subversion of the federal system, even though it operates as an encroachment upon State autonomy, according to many critics.

But there is justification behind the criticism that there is overlapping of work and responsibility owing to the setting up of two high-powered bodies, viz., the Finance Commission and the Planning Commission and the Administrative Reforms Commission has commented upon it.There is, in fact, no natural division between ‘plan expenditure’ and ‘non-plan expenditure’. The anomaly has been due to die fact that the makers of the Constitution could not, at that time, envisage the creation of a body like the Planning Commission which has subsequently been set up by executive order. Be that as it may be, the need for co-ordination between the two Commissions is patent, and, ultimately, this must be taken over by the Cabinet or a body such as the National Development Council of which we shall speak just now, unless the two Commissions are unified—which would require an amendment of the Constitution because the Finance Commission is mentioned in the Constitution. On 13 August, 2014 the Narendra Modi Government scrapped the Planning Commission and replaced it with NITI Aayog (National Institution for Transforming India).

All-India Services | Indian Constitution Download PDF

December 15, 2016 by Sastry Leave a Comment

All-India Services | Indian Constitution Download PDF

It has been pointed out earlier that besides persons serving under the Union and the States, there will be certain services ‘common to the Union and the States’. These are called ‘All-India Services’, of which the Indian Administrative Service and the Indian Police Service are the existing examples [Art. 312(2)]. But the Constitution gives the power to create additional All-India Services.1 If the Council of States declares by a resolution supported by not less than two- thirds of the members present and voting that it is necessary or expedient in the national interests so to do, Parliament may be law provide for the creation of one or more all-India services common to the Union and the States and regulate the recruitment, and the conditions of service of persons appointed, to any such service [Art. 312(1)].’
As explained by Dr. Ambedkar in the Constituent Assembly, the object behind this provision for All-India Services is to impart a greater cohesion to the federal system and greater efficiency to the administration in both the Union and the States:

“The dual policy which is inherent in a federal system is followed in all federations by a dual service. In all Federations, there is a Federal Civil Service and a State Civil Service. The Indian Federation, though a dual polity, will have a dual service, but with one exception. It is recognised that in every country there are certain parts in its administrative set-up which might be called strategic from the point of view of maintaining the standard of administration… There can be no doubt that the standard of administration depends upon the calibre of the civil servants who are appointed to these strategic posts… The Constitution provides that without depriving the States of their right to form their own civil services there shall be an all-India Service, recruited on an all-India basis with common qualifications, with uniform scale of pay and members of which alone could be appointed to these strategic posts throughout the Union.”

Union and the States Relations | Indian Constitution Download PDF

December 15, 2016 by Sastry Leave a Comment

Union and the States Relations | Indian Constitution Download PDF

Any federal scheme involves the setting up of dual governments and Need for co-ordination division of powers. But the success and strength of the nation between federal polity depends upon the maximum of co- the Units of the operation and co-ordination between the governments. The topic may be discussed under two heads:
(a) Relation between the Union and States;
(b) Relation between the States .
In the present Chapter the former aspect will be discussed and the interstate relations will be dealt with in the next Chapter.

(A) Techniques of Union Control Over States

It would be convenient to discuss this matter under two heads—(i) in emergencies; (ii) in normal times.
I. In Emergencies. It has already been pointed out that in ‘emergencies’ the government under the Indian Constitution will work as if it were a unitary government. This aspect will be more fully discussed in Chap. 28.
II. 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, e.g. :
(i) The power to appoint and dismiss the Governor [Arts. 155-156]; the power to appoint other dignitaries in the State, e.g., Judges of the High Court; Members of the State Public Service Commission [Arts. 217, 317].
(ii) Legislative powers, e.g., previous sanction to introduce legislation in the State Legislature [Art. 304, Proviso]; assent to specified legislation which must be reserved for his consideration [Art. 31A(1), Prov. 1; 31C, Prov. 288(2)]; instruction of President required for the Governor to make
Ordinance relating to specified matters [Art. 213(1), Prov.]; veto power in respect of other State Bills reserved by the Governor [Art. 200, Prov. 1],
These having been explained in the preceding Chapters, in the present chapter we shall discuss other specific agencies for Union control, namely:
(i) Directions to the State Government.
(ii) Delegation of Union functions.
(iii) All-India Services.
(iv) Grant-in-aid.
(v) Inter-State Councils.
(vi) Inter-State Commerce Commission [Art. 307].

Directions by the Union to State Government

The idea of the Union giving directions to the States is foreign and repugnant to a truly federal system. But this idea was Union to State taken by the framers of our Constitution from the Governments. Government of India Act, 1935, in view of the peculiar conditions of this country and, particularly, the circumstances out of which the federation emerged.

The circumstances under which and the matters relating to which it shall be competent for the Union to give directions to a State have already been stated. The sanction prescribed by the Constitution to secure compliance with such directions remains to be discussed.

“Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, 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 this Constitution.”

And as soon as a Proclamation under Art. 356 is made by the President he will be entitled to assume to himself any of the functions of the State Government as are specified in that Article.

Delegation of Functions

It has already been stated that with the consent of the Government of a Delegation of State, President may entrust to that Government Functions. executive functions of the Union relating to any matter [Art. 258(1)]. 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 [Art. 258(2)].
Conversely, a State Government may, with the consent of the Government of India, confer administrative functions upon the latter, relating to State subjects [Art. 258A]

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 power to make such grants as 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-round development of the country and also to exercise control and co¬ordination over die 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 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 [Provisos. 1-2,Art. 275(1)].
The President is empowered to establish an inter-State Council [Art. 263] if at any time it appears to him that the public interests . Though the President is given the power to define the nature of the duties to be performed by the Council, the Constitution outlines the three-fold duties that may be assigned to this body. One of these is—

“the duty of inquiring into and advising upon disputes which may have arisen between States.”

The other functions of such Council would be to investigate and discuss subjects of common interest between the Union and the States or between two or more States inter e.g. research in such matters as agriculture, forestry, public health and to make recommendation for co-ordination of policy and action relating to such subject.

In exercise of this power, the President has so far established a Central Council of Health,2 a Central Council of Local Self-Government,3 and a Transport Development Council,4 for the purpose of co-ordinating the policy of the States relating to these matters. In fact, the primary object of an Inter¬State Council being co-ordination and federal cohesion, this object has been lost sight of, while creating fragmentary bodies to deal with specified matters relying on the statutory interpretation that the singular ‘a’ before the word ‘Council’ includes the plural.
The Sarkaria Commission has recommended the constitution of a permanent inter-State Council, which should be charged with the duties set out in (b) and (c) of Art. 263. Such a Council, consisting of Prime Minister being Chairman of Council, Six Union Cabinet Ministers nominated by Prime Minister, the Chief Ministers of all the States, Chief Ministers of Union Territories having a Legislative Assembly and Administrators of Union Territories not having Legislative Assembly has been created vide Inter-State Council Order, 1990, notified through a Presidential Notification No. IV/11017/3/90 CSR dated 284)5-1990.’.
Further, with a view to ensure more harmonious and healthier relationship between the Centre and the States in future as well as for further strengthening of the third tier of governance, the Government had set up the second Commission on Centre State Relations on 27-04-2007 under the Chairmanship of Justice M.M. Punchhi, a retired Chief Justice of India. The second Commission on Centre -State Relations has submitted its Report on 31-03-2010 and has made 273 recommendations which are still under consideration by the Inter-State Council .Recently the Prime Minister approved re-constitution of InterState Council on 7-12-2012.