Aim:- This article gives the brief idea about the Union and State relations,that they maintain in dealing with the affairs of the country. As India is a federal country the powers are divided among the Central and State government.
Introduction
India being a Federal State all the powers are distributed between the Centre and the States. Due to the distribution of powers various relations are witnessed among them. Such relations are:
Legislative Relations
The Legislative Relations of the Centre and the State have been mentioned under Article 245-255 of the Constitution. There is a two-fold distribution of legislative power:
Territorial Jurisdiction
Article 245(1) empowers the Parliament to make laws for the whole or any part of the territory of India, subject to the provisions of the Constitution. Article 245(2) says that a law made by the Parliament shall not be considered invalid on the ground that it has extra-territorial operation. The legislative powers of the Parliament and the State Legislature are dependent on the scheme of distribution of powers, Fundamental Rights and other provisions of the Constitution.
In the case of Wallace vs. Income-tax Commissioner, Bombay[i] a company was registered in England and was also a partner in a firm in India. The Income-tax Authorities of India sought to tax the entire income made by the Company. The rule of territorial nexus was applied by the Privy Council and the levy of tax valid.
Delegated Legislation
Delegated Legislation may be explained as the making of rules of law under the authority of the Act of the Parliament. Various factors are responsible for the growth of delegated legislation. They are:
- Pressure on the Parliament – There is a lot of pressure on the Parliament. It does not have sufficient time to make all legislations.
- Technicality of the subject matter – Modern legislations require special knowledge and the Legislature do not possess such knowledge as it is full of Politicians.
- Experimentation – Delegated Legislation provides scope for experimentation as it is easily amendable.
- Unforeseen Contingencies – Delegated Legislation enables the Government to see unforeseen contingencies and to act quickly during emergency situations.
- Emergency Powers – The Legislature is not able to make quick decisions during emergencies. Delegated Legislation serves this purpose.
Subject Matter
Article 246 deals with the subject matter of law making power of the Parliament and the State Legislature.
The first clause says that the Parliament has exclusive power to make laws regarding matters mentioned in List I in the Seventh Schedule (Union list), notwithstanding anything mentioned in the second and third clause. The second clause says that the State Legislatures have power to make laws regarding the matters mentioned in List III in the Seventh Schedule (Concurrent List), notwithstanding anything in the third and first clause.
The Legislature of any State has exclusive power to make laws in respect of such State or any part of the State regarding matters present in List II in the Seventh Schedule (State List). The Parliament has been empowered to make laws regarding any matter for any part of the Indian Territory even if such matter is enumerated in the State List.
The Union List
This List has 97 subjects which are of national importance. Such subjects are defence, foreign affairs, banking currency and coinage, union duties and taxes. The Parliament has the power to make laws on these subjects.
The State List
This List has 66 subjects which are of local importance. Such subjects are public order and police, local Government, public health and sanitation, agriculture, forest, fisheries, education, State taxes and duties. The States have power to make laws on these subjects.
The Concurrent List
This List consists of 47 subjects; both the States and the Centre can make laws on the subjects mentioned in this list. However, when there is a conflict between the Centre and the State, the law made by the Centre shall prevail.
Residuary Powers
The residuary powers are vested in the Parliament[ii]. It has power to make laws regarding any matter not mentioned in the State List or Concurrent List.
Parliament’s Power to legislate on State Subjects
During the following circumstances, the power of the Union extends and it gets the power to make laws on the subjects mentioned in the State List:
Power of Parliament to legislate in the national interest:
If the Rajya Sabha passes a resolution by 2/3rd majority of the members present and voting that it is necessary in the national interest that the Parliament should makes laws regarding a subject mentioned in the State List, the Parliament is empowered to make laws with respect to such matter for whole or any part of the territory of India[iii]. Such laws do not have effect after the expiration of 6 months after the resolution has ceased to operate.
Proclamation of Emergency
During proclamation of an emergency, the Parliament has the power to make laws on the subjects mentioned in the State List for the whole or any part of the territory of India[iv]. Such laws do not have effect after the expiration of 6 months after the emergency has ceased to operate.
Power to legislate with the consent of the State
If a resolution is passed by 2 or more States that it is desirable to have a law that is passed by the Parliament on any matter mentioned in the State List, the Parliament has the power to make laws[v].
Power of Parliament to make laws for giving effect to treaties and international agreements
The Constitution has empowered the Parliament to create laws for the entire or any part of territory of India for the implementation of treaties, international agreements and conventions[vi].
Failure of Constitutional Machinery in a State
The Parliament can make laws for the matters in the State List when it is declared by the Parliament that the administration of a State is being done according to the provisions of the Constitution[vii].
Administrative Relations
One of the complicated problems under a federal system is the adjustment of administrative relations between the Union and the States. Administration is the direct consequence of legislation and without administrative machineries for implementing laws; the laws are of no importance. So our Constitution provides detailed provisions to avoid clashes between the Union and States in the administrative field. Article 256 to Article 263 deal with the Union control over States in normal times:
Direction by the Centre to the States
According to Article 256 the executive power of the State shall be exercised ensuring compliance with the laws made by the Parliament and the executive power of the Union shall extend to the giving of such directions to the State as it may be essential for the purpose. Article 257 says that the States have to exercise their executive power in a way by which they do not impede the executive power of the Union in the State. The powers of the Central Government extend to giving directions to the State regarding the construction and maintenance of means of communication which are declared to be of national or military importance and measures to be taken for the protection of railway within the States.
Delegation of Union’s function to the States
Article 258 says that the Parliament may entrust either conditionally or unconditionally to the Government or to its offices functions relating to any matter falling within the executive powers of the Union, with the consent of the State Government, with the consent of the State Government. The Parliament under the second clause is empowered to use the State machinery for the enforcement of Union laws and for this purpose may confer power or impose duties upon the State or its officers or authorities in respect of these matters to see that the laws are made applicable to the State.
All-India Services
All-India Services are common to the Union and States. Under Article 312 the Rajya Sabha passes a resolution supported by not less than 2/3rd of the members present and voting that it is essential in the nation’s interest to do so, the Parliament may by law provide for the creation of one or more All-India Services.
Grants in-aid
The Central Government provides Grant in-aid to the States. It is provided because it is a process by which the Central Government exercises strict control over the States and it facilitates Centre-State coordination.
Full faith and Credit
According to Article 261 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.
Disputes relating to water
Article 262 deals with disputes relating to water. It empowers the Parliament to provide by law adjudication of any dispute regarding the uses, distribution or control of waters of any inter-State rivers and river valleys. Under the second clause of this Article, the Parliament may by law provide that neither the Supreme Court nor any other Court shall have any jurisdiction regarding the disputes relating to inter-State rivers and river valleys.
Inter-State Council
Under Article 263 Inter-State Councils are established to facilitate coordination between States. The President of India in exercise of the powers under Article 263 has constituted the Inter-State Council on May28, 1990[viii]. The following are the duties of the body:
- Investigation and discussion of the subjects which are of common interest
- Make suggestions for better co-ordination of policy and actions on such subjects
- Deliberate on matters of general interest to the States referred by the Chairman to the Council.
Financial Relations
Article 264-291 throw light on the financial relations between the Centre and the State. Article 265 provides that no tax can be levied or collected except by authority of law.
Article 268 deals with the distribution of Revenue between the Union and the States. The Centre has exclusive jurisdiction over the taxes mentioned in the Union List and the States have exclusive jurisdiction over the taxes mentioned in the State List and no taxes have been mentioned in the Concurrent List. The following categories of the Union taxes are wholly or partially assigned to the States:
- Article 268 says that stamp duties and duties of excise on medicinal and toilet preparations included in the Union List shall be levied by the Union Government but are collected by the States within which such duties are being levied. The States are assigned with the proceeds of such duties.
- According to Article 268A[ix] the Union has the power to levy service taxes which shall be collected and appropriated by the Union and the State according to the principles formulated by the Parliament by law.
- According to Article 269(1)[x] the taxes on sale or purchase of goods and taxes on the assignment of goods shall be levied and collected by the Government of India. It shall be assigned and shall be considered to be assigned to the States on or after April1, 1996 in the way prescribed by the Parliament by law. According to Article 269(2) says that the net proceeds in any financial year of any such tax except in so far as those proceeds represent proceeds attributable to Union territories, shall not form part of the Consolidated Fund of India; but shall be assigned to the States within which tax is being levied in that year. It shall be distributed among those States according to the principles of distribution as may be prescribed by Parliament by law.
- Article 270 mentions that all taxes and duties referred to in the Union List, except the duties and taxes referred to in Article 271 and any cess levied for specific purpose under any law made by the Parliament shall be levied and collected by the Government of India and be distributed between the Union and the States in the way provided by the Parliament.
- Article 271 says that if the Parliament at any time increases any of the duties or taxes provided under Article 269 and Article 270 by imposing a surcharge, the entire proceeds of such surcharge shall form part of the Consolidated Fund of India.
- The States receive Grants-in aid from the Centre. Under Statutory grants, the grants are given to States which require assistance. The grants are given out of the Consolidated Fund of India. Article 275 provides Specific grants for the welfare of schedule tribes in a State and to improvise their administrative level. Article 282 facilitates providing of certain grants to the States on the recommendations of the Planning Commission at the discretion of the Union Government. Such grants are known as Discretionary Grants.
Restriction on State’s Taxing Power
Section 286 imposes the following restrictions on the power of the State to impose sales tax on goods:
1. According to Article 286 (1) (b) a State cannot impose a tax on the sale or purchase of goods which takes place outside the State.
2. According to Article 286(1) (b) the State cannot impose a tax on the sale or purchase of goods involving import and export of goods.
3. Any tax cannot be imposed on the sale and purchase of goods which takes place in the course of inter-State trade and Commerce.
4. According to Article 286(3) a State cannot impose a tax on the sale and purchase of goods declared by the Parliament by law of ‘special importance’ to inter-State trade or Commerce.
5. The 46th Amendment Act, 1982 enables the Parliament to impose restrictions relating to taxes on sale or purchase of goods in the inter-State trade or Commerce.
The Finance Commission
Article 280 deals with the establishment of a Finance Commission. It is established by the President within 2 years from the commencement of the Constitution and after that at the expiration of every 5th year or earlier as is considered necessary. The Commission includes a Chairman and 4 other members who are appointed by the President.
Duties – The Commission has to make recommendations to the President regarding:
- The distribution of the net proceeds of taxes between the Union and the States and allocation of respective shares of such proceeds between the States
- Principle governing the grants-in aid of the revenues of the State out of the Consolidated Fund of India
- Measures required for augmenting or increasing the Consolidated Fund of State to supplement the resources of the Panchayats according to the recommendations made by the Finance Commission of the State.
- Any other matter in the interest of proper finance referred to the Commission by the President
Exemption of Union Property from State Taxation
According to Article 285(1) the Union property shall be exempt from all taxes imposed by a State or any authority within a State unless otherwise provided by the Parliament. Article 285(2) saves the power of the State to tax the property of the Union which were taxable by a State under a law passed before the commencement of the Constitution, until it is otherwise provided by the Parliament.
Exemption of State property or income from Union Taxation
Under Article 289 the property and the income of a State is exempted from Union Taxation but the Parliament can impose tax relating to trade or business of any kind which is carried by or on behalf of the Government of a State. Under Clause 3 of Article 289 the Parliament may by law exempt any class of business incidental to ordinary functions of Government from Union taxation. According to Article 285 the Centre’s property is exempted from all State taxes whether it is used for commercial purposes or governmental purpose. However, such exemption is not available to the State property.
Borrowing Power
Under Article 292 the Union has unlimited power to borrow money on the security of the Consolidated Fund of India either within or outside. Under Article 293 a State can borrow money within the territory of India on the security of the Consolidated Fund of the State. However, a State cannot borrow from outside India.
Cases
The following cases explained the relationship between the Centre and the State better and had an impact on both of them.
State of West Bengal vs. Union of India[xi]
In this case, it was held that the Indian Constitution is not truly federal. The States are given the matters of local importance and the other powers specially which deal with the economic, industrial and commercial unity is with the Union.
State of Karnataka vs. Union of India[xii]
The Court held that the Constitution of India is not federal but is quasi-federal in nature. The executive and legislative powers are more in the hands of the Centre.
S.R. Bommai vs. Union of India[xiii]
In this case, Justice Ahmadi held that the Indian Constitution is quasi-federal as the word ‘federal’ is not mentioned anywhere in the Constitution. Justice Sawant and Kuldip Singh held that federalism is an essential feature of the Constitution. According to Justice Ramaswamy the Indian Constitution is an ‘Organic Federation’. According to Justice Jeevan Reddy and Justice Agarwal federalism in the Constitution has a different meaning in accordance with the context.
Proper distribution of powers between the Centre and the States is an important feature of a Federal Constitution. The makers of the Constitution have divided the powers well in order to avoid clashes between the Centre and the States. However, it appears that the framers of the Constitution have allocated more powers to the Centre and made it stronger.
Frequently Asked Questions
1. What is an Inter-State Council?
Article 263 deals with the establishment of an Inter-State Council. It is established basically to ensure co-ordination between States. Its members are the Prime Minister, Chief Ministers of all the States, Chief Ministers of Union Territories which have a Legislative Assembly, Administrators of Union Territories which don’t have a Legislative Assembly and 6 members of Cabinet Rank in the Union Council of Ministers to be nominated by the Prime Minister.
The following are the duties of the body:
- Investigation and discussion of the subjects which are of common interest
- Make suggestions for better co-ordination of policy and actions on such subjects
- Deliberate on matters of general interest to the States referred by the Chairman to the Council.
2. What is the difference between Tax and Fee?
- Tax is a compulsory exaction of money for a public purpose by a Public Authority. Fee is a payment of services rendered or benefit provided.
- Tax cannot be levied without the authority of law. No such prohibition exists for Fee.
Edited byMadonna Jephi
Approved & Published – Sakshi Raje
Reference
[i] Wallace V Income-tax Commissioner, Bombay AIR 1948 PC 118
[ii] Article 248, The Constitution of India, 1950
[iii] Article 249, The Constitution of India, 1950
[iv] Article 250, The Constitution of India, 1950
[v] Article 52, The Constitution of India, 1950
[vi] Article 253, The Constitution of India, 1950
[vii] Article 356, The Constitution of India, 1950
[viii] The Inter-State Order, 1990
[ix] 88th Amendment Act, 2003
[x] 80th Amendment Act, 2000
[xi] State of West Bengal V Union of India, AIR 1963 SC 1241
[xii] State of Karnataka V Union of India, AIR 1978 SC 68
[xiii] S.R. Bommai V Union of India, AIR 1994 SC 1918
