Constitutional Law II

Centre and State Legislature: Functions

Submitted By

Prabhnoor Guliani

Division: E Roll no.: 18010223095 Batch: 2018-23

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

In

January, 2020

Under the guidance of,

Dr. Shashi Bhushan Ojha

And

Mr. Ahmed Ali

Assistant Professors
 CERTIFICATE
The project entitled “Centre and State Legislature: Functions”, submitted to the Symbiosis Law School, NOIDA
for Law of Constitution Law II as a part of Internal Assessment is based on my original work carried out under
the guidance of Dr. Shashi Bhushan Ojha and Mr. Ahmed Ali from December, 2019 to April, 2020. The Research
work has not been submitted elsewhere for award of any degree

The material borrowed from other sources and incorporated in the research paper has been duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the Candidate

Date:
 Acknowledgements
I would like to express my special thanks of gratitude to Mr. Shashi Bhushan Ojha and Mr. Ahmed Ali for their
explicable support and encouragement throughout this endeavor. I would also like to thank our Director, Dr
Chandrashekhar J. Rawandale who has given me this opportunity to do this important research on “Centre and
State Legislatures: Functions”. It has indubitively helped me in my research and attain immense knowledge and
enhanced my legal knowledge even further. I am really thankful to both of them. Secondly, I would also like to
thank my friends who have helped me completing this project in a limited time frame.
INDEX
 Introduction

The Indian Constitution, there is a dual polity system with a clear distinction of power between the Centre and the
State and each focusing and functioning according to the powers allocated to each of their own spheres. The states
in India function not according to the Central government but draw their authority from the state legislature. The
Union government draw their authority directly from the constitution and can freely operate in the field allotted
to them. The Indian Constitution has made several provisions to consolidate the relation between the centre and
state legislature so as to reduce the possibility of conflicts between them, nevertheless the operations carried
forward by both centre and the state have raised certain disagreements especially about the understanding of
arrangements made in the Constitution. The Constitution of India makes distribution of power in two respects:

1. Territory
2. Subject-matter

If we talk about territorial jurisdiction, Article 245(1) provides that subject to the provision of this Constitution,
Parliament shall make laws for the whole or any part of the territory of India and not outside of India as it was
held by the Supreme Court that such a decision passed by the Parliament may violate the rules of International
law and violate the sovereignty of that nation and also won’t be recognized by the foreign courts and also give
rise to the difficulty in practical applications in implementation of the law and the policy might come into question
where there is no concern for the domestic tribunals1. The legislature of a state may make laws for whole or any
part of India but would be considered void if it takes place in an extra-territorial jurisdiction2.

Talking about subject matter the Union List consists of 97 subjects which are of national importance like defense,
foreign affairs, banking currency, coinage etc. The state list contains 66 subjects which include subjects of local
importance like public health and sanitation, police, fisheries, education etc. where the state has exclusive powers
to make laws. Then lastly, we have Concurrent list consisting of 47 subjects. Both Union and State government
can formulate laws on the matters mentioned in the list but in case there is a conflict between the two branches
then the decision made by the central law shall prevail. The administrative relation between centre and the state
is defined in such a manner that the executive power of a state exercises in powers in compliance with the laws
made by the Parliament. In the administrative functions the Union Executive gives directions to the state on

1
AH Wadia vs Income Tax Commissioner, Bombay AIR 1949 FC 18
2
Kochuni vs State of Madras AIR 1960 SC 1080
necessary matters like construction and maintenance of means of communication etc. especially matters pertaining
the maintenance of railways and those declared as national and military importance. The parliament can arbitrate
on inter-state river disputes, although there is a provision for the State Council to advise the President on inter-
state matters. Another essential Subject that is shared as a matter is Financial Relations between the Centre and
the State. The parliament can levy taxes based on the subjects mentioned in the Union List, similarly the states
can take decisions regarding subjects mentioned in State list. It is important to mention that here also the centre
plays a dominant role in decision making s the Centre exercises more power on state finances. States have to carry
out the centrally sponsored scheme, also the Planning Commission has an over-centralized planning system where
the states cannot take much initiative and are bound to follow the schemes formulated by the Central Government.

There are certain exceptions when the Centre can take over absolute control over the state subjects like
proclamation of Emergency or National interest etc. During normal situations the centre and the state perform the
following functions

1. It is the duty of the State to exercise its powers in compliance with the laws formulated by the Parliament.
Article 256 of the Constitution provides the ability to the Union Government to extend in giving directions
to a state as they may appear to the government of India as necessary.
2. Article 257 of the Constitution says that the Executive Powers shall be practiced in such a manner that it
does not cause any prejudice to the executive power of the Union. Hence the Union government can pass
directions in matters enumerated in the State list as well.
3. The Union Government gives directions to the state in matters of construction and maintenance of the
means of communication declared to be of national and military interest.
4. Protection of Railway Lines according to the directions given by the Central government
5. Welfare of Scheduled Tribes in the country
6. To protect even minority languages and secure instruction in the mother tongue at primary stage of
education
7. The Union can direct state to ensue development of Hindi language.
8. The Union government also has a major say in the appointment of officials like Governor, High Court
judges etc.
9. The member of All India Services are appointed by the Union Government and are allocated to different
states but remain loyal to the Union Government3.

3
Article 312, Indian Constitution, 1947
 10. The Union Government has supreme rights to resolve inter-State River Water disputes as per Article 2624.

Issues

Following are the issues associated with the functions of central and state legislature functions:

 The relation between the centre and the state where state plays a dominating role in decision making for
general welfare and public order is not allowing the state legislature to perform its duties properly and can
lose absolute control over matters of national interest and proclamation of Emergency. Another issue with
the quasi-federal structure of division of power between centre and state is that the centre can misuse its
dominant status as per the provisions provided under Article 356 of the Constitution.
 The State legislature also has to behave in a submissive manner because of the role of the governor in the
administrative function. Anyway the state legislature plays a limited role in appointment of member of All
India Services and other important officials.

Critical Analysis
The distribution of power in India was based on a mixture of unitary and federal structure creating a unique, quasi-
federal structure of power where there is power does not lie only in the hands of the central government and is
distributed among the various state governments but still does play a dominating role in exercising those powers5.
This is called a quasi-federal structure because the idea of the Union government giving directions to the state
government is a repugnant rule in the federal system but due to the special circumstances in India, the Constitution
makers felt it right to give birth to such federation6.

Various techniques are used by the Central government to establish its dominance on the State legislature:

1. The Constitution of India provides residuary powers to the Union government The Centre is also
competent to legislate with respect to any matter for any part of the territory of India not included in the
state notwithstanding that such matter is a matter enumerated in the State List.

4
River Board Act, 1956
5
Government of India Act, 1935
6
DD Basu – Introduction to the Constitution of India, pg 263
 2. According to the provisions in the Constitution, the centre is receives more revenues and high yielding
sources as compared to state.
3. Parliament may determine the states to be in need of assistance and different sums may be fixed for
different states. Moreover these shall be paid out of the Consolidated Fund of India as grants-in-aid to the
revenues of a State. Such capital and recurring sums as may be necessary to enable that State to meet the
costs of such schemes of development as may be undertaken by the State with the approval of the
Government of India for the purpose of promoting welfare of the scheduled tribes or raising the level of
administration of the scheduled areas.
4. The Constitution also states that the proclamation of Emergency provides the Centre to suspend all the
constitutional provisions of articles 268 to 279 which deals with distribution of power to the states which
are now in the hands of the Union and similar directions are imposed on the state during a financial
Emergency

During Emergency all the provisions which make our constitution its If we look at Article 356, it is often misused
by the Centre to impose their supremacy on the state. This article provides the Presidential Rule on the state used
during Emergency. The Sarkaria Commission notes that this provision has been used by the Central government
over 100 times from the time of Independence in 1947. Perfectly functional state governments have had their
legislature withdrawn from power to assert their own dominance and have the state government fall in line with
their own decisions. To claim legitimacy, Union governments have assumed precisely the role Dr. Ambedkar
feared they would—that of being determinants of quality of governance in the states. Although there is a
significant drop in the usage of Article 356 especially after the proclamation of Emergency during the reign of
Indira Gandhi. Since mid-1990s, the number of states has increased but the ruling over by the central legislature
on the state. This is due to the reasons like rise of regional parties. Earlier there was domination of the national
parties only especially Congress that dominated the functions of the political working of the country the mid-
1990s was marked by the rise of regional parties that lent an increasingly opportunistic and volatile character to
Indian polity. This meant that the national parties were always on the lookout for new regional allies, and hence
were wary of using Article 356 against their governments. Besides having had direct political impact, the rise of
regional parties also rejuvenated other institutional safeguards - the courts and the President - against arbitrary
imposition of Article 356. Supreme Court intervention also played a major role in getting rid of abnormal
dominance of central government where the Court discussed the lengthy provisions of Article 356 and its issues7.

7
SR Bommai Case
In the Bommai case, the apex court cited the strengthening of regional parties to posit that it was no longer the
prerogative of Union government to determine the quality of governance in states, and dismissal of a state
government run by a different party was bound to raise eyebrows. This has helped a lot to the state government
to establish its own authority in their territorial jurisdiction and make laws on the subjects provided under them.

The Governor is designated by the President of India for a long time. Be that as it may, he stays in the workplace
till the whimsy of the President. That is to say, he can be reviewed whenever and his continuation in the workplace
depends at the desire of the Center. The Supreme Court has held that the Governor's office is an autonomous
office and neither it is leveled out nor subordinate to the Government of India. In any case, an investigation of
Governors in the States unmistakably uncovered that the greater part of them have been dynamic legislators before
turning out to be Governor and the rest were officials. They are selected on political premise and along these lines
barely expected to assume a non-factional job. It is the Governor's one-sided job that has been the inside point in
Union-State engagements. The Governors have propelled the political interests of the decision gathering of the
Center in the States. This has been done most surprisingly in the arrangement of Chief Ministers, gathering,
proroguing and dissolving the State Assemblies and in suggesting President's standard. Other than the ordinary
capacities which Governor practices as a protected head, he practices certain optional forces. Some of them have
been especially presented on him while some others stream by important ramifications. These are huge especially
in this issues. One is as to the arrangement of Chief Minister when neither a solitary gathering nor a blend of
gatherings rises up out of the political decision with a reasonable lion's share. In this circumstance, there is an
issue of rejection of Chief Minister on the loss of lion's share support or something else. The subsequent issue is
concerning making a report to President under Article 356 about this fulfillment that a circumstance has ascended
in which the Government of the State can't be conveyed by the arrangements of the Constitution. Consequently
suggesting the inconvenience of President's standard, the issue of revelation of President's standard itself has
gotten a matter of genuine pressure among association and state governments.

Conclusion
In Conclusion, both the centre and the state legislature have functions which are unique to them and the
constitution- makers made full efforts to make sure that the central government only intervenes when it is
necessary and have also described why the central legislature was given a dominant position in the first place.
The state legislature has its own unique significance which is necessary for the Indian population to address their
issues and thus we cannot argue that what is the need of the state legislature if the decision will be overruled by
the Centre. Our quasi-federal structure has a basis that fits perfectly to the Indian political system and through
amendments and constitutional analysis we can dodge the legal loopholes and make the decision making process
better in this country.

Bibliography

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 Constitutional Law of India by Dr. JN Panday
 Constitutional Law by Dr. VN Shukla