CKyi<PPE^rI: im'(R0(DVOT[O^

A. The Nature of the Indian constitution.

B. Relation between the Union & the states

C. Purpose, Object and method adopted in this

dissertation
 INTRODUCTION

A. THE NATURE OF THE INDIAN CONSTITUTION

According to the traditional classification followed by the political scientists.
Constitutions are either unitary or federal. In a unitary constitution the powers of the
Government are centralised in one government viz., the central government. The provinces
are subordinate to the centre. In a federal constitution, on the other hand, there is a division of
powers between the Federal and the State Governments and both are independent in their
own spheres.
There is a difference of opinion amongst the constitutional jurists about the nature of
the Indian constitution. One view is that it is a quasi-federal constitution and contains more
unitary features than federal. The other view is that it is a federal constitution with a novel
features adopting itself to national emergencies. The view of the farmers of the constitution is
that the Indian constitution is a Federal constitution. Dr. Ambedkar, the Chairman of the
Drafting committee, observed thus, "I think it is agreed that our constitution notwithstanding
the many provision which are contained in it whereby the centre has been given powers to
override the provinces (state) nonetheless, is a Federal Constitution"}
But some constitutional jurists hesitate to characterize the Indian constitution is and
what are its essential characteristics, and secondly, to examine whether our constitution
possesses those characteristics.
"By the Federal Principles", Prof whears^ observes, "is meant the method of dividing
powers, so that the general and regional Governments are each with in a sphere co-ordinate
and independent. Both the federal and the Regional Governments are co-ordinate and
independent in their spheres and not subordinate to one another".
The American constitution is universally regarded as an example of federal
constitution. It establishes dual polity or dual from the Government, i.e. the Federal and the
State Governments. The powers of both the Central and the State Governments, are divided
and both are independent in their own spheres. The existence of co-ordinate authorities
independent of each other is the gist of the federal principle.
Prof wheare, after giving the above definition as to what the federal principle is,
himself proceeds to examine whether the American constitution satisfies the above test. He

1. C.A.D. Vol. 4p. 133, see also C.A.D., Vol. 5pp. 33-36
2. K.C. Wheare: Federal Government, p.27; Jennings- Some characteristics of the Indian
constitution, p. 1.
 2
observes: "Are we to confine the forms to cases where the federal principle has been applied
completely and without exception? It would not be sensible to do this. After all, the
constitution of the United State itself, as originally drawn up contained at least one exception
to the federal principle in that the senate was composed of representatives selected by the
Legislatures of the State. Thus a part of the general Government of the United Sates was
dependent to some extent upon a part of the regional Government. This exception to the
federal principle was maintained in law until 1913. Yet the American constitution from 1787-
1913 was and must be called a "federal constitution" for the federal principle was
predominant in it. Thus the criterion is "Is the federal principle predominant in the
constitution? If so, that constitution may be called a "federal principle predominant in the
constitution? If so, that constitution may be called a "federal constitution". If, on the other
hand there are so many modifications, in the application of the federal principle that it ceases
to be of any significance, then the constitution can not be termed as federal, This appears to
be the most instructive and responsible way in which to use the term 'federal constitution'. It
seems essential to define federal principle rigidly, but to apply the term 'federal constitution'
more widely. Thus Dr. Wheare accepts that exceptions are permissible provided federal
principle is predominantly retained in the constitution.
A federal constitution usually has the following essential characteristics:-
The distribution of powers is an essential feature of federalism. Federalism means the
distribution of the powers of the state among a number of co-ordinate bodies each originating
in and controlled by the Constitution.'* The basis of such distribution of powers is that in
matters of national importance, in which a uniforms policy is desirable in the interest of the
units, authority is entrusted to the Union, and matters of local concern remain with the states.
A federal state derives its existence from the constitution, just as a corporation derives
its existence from the grant by which it is created. Hence, every power, executive, legislative
or judicial whether it belongs to the nation or to the individual state is subordinate to and
controlled by the constitution.^ The constitution are then, essential institutions to a federal
Government. The supreme constitution is essential if Government is to be federal; the written
constitution is essential if federal Government is to work well."^
A federal constitution must almost necessarily be a written constitution. The
foundations of a federal state are complicated contract. It will be practically impossible to
maintain the supremacy of the constitution, unless the terms of the constitution have been
3. K.C.wheare-" Federal government", p.l5 (4* Ed., 1963)
4. A.V.Dicey- The law of the constitution p.l57 (10* ed.)
5. Ibid, at p. 144
6. K.C. wheare-Federal Government, p.56
 3
reduced into writing. To base an arrangement of this kind upon understandings or
conventions would be certain to generate misunderstanding and disagreements.
A natural corollary of a written constitution is its rigidity. A constitution which is the
supreme law of the land must also be rigid. In a rigid constitution the procedure of
amendment is very complicated and difficult.
This does not mean that the constitution should not remain exclusively with either the
central or state governments. A constitution of a country is considered to be a permanent
document. It is supreme law of the land. This supremacy of the constitution can only be
maintained if the method of amendment is rigid.
In a federal state the legal supremacy of the constitution is essential for the existence
of the federal system. The very nature of a federal state involves a division of powers
between the central and state governments under the framework of the constitution. It is,
therefore, essential to maintain this division of powers between the two levels of
Goverrmients. This must be done by some independent and impartial authority above and
beyond the ordinary bodies whether federal or state legislatures existing under the
constitution. The judiciary has, in a federal polity, the final power to interpret the constitution
and guard the entrenched provisions of the constitution.
The Indian constitution possesses all the essential characteristic of a federal
constitution mentioned above. The constitution establishes a dual polity, a system of double
Government with the central Government at one level and the state government at the other.
There is a division of powers between the central and the state governments. Each level of
Government is supreme in its own sphere. The constitution of India is written and is supreme.
The provision of the constitution which are concerned with federal principles can not be
altered without the consent of the majority of the states. The constitution establishes as a
supreme court to decide disputes between the union and the states, or the states inter se
interpret finally the provision of the constitution.
But as said earlier, some scholars hesitate to characterise the Indian constitution as
truly federal because according to them in certain circumstances the constitution empowers
the centre to interfere in the state matters and thus places the states in a subordinate position
which violates the federal principle.^ They, therefore, use such expression for it as 'quasi-
7. "It can be said that a written constitution is not logically required by the federal principle.
The truth seems to be that while it is essential for a Federal Government that its
constitution is supreme to the extent defined above, it is also essential for a good federal
government that the supreme constitution be written"-K.C. where- Federal Government
8. In State of west Bengal V. Union of India, AIR 1963 SC 1241, the Supreme court has held
by majority that it is not truly federal. However, Subba Rao, J in his dissent treats it
basically federal.
 4
federal", unitary with federal features or 'federal with unitary features'. In the opinion of prof,
wheare: 'The constitution establishes a system of Government which is almost quasi-
federal.... a unitary state with subsidiary federal features rather than a federal state with
subsidiary unitary features'.^ Jennings has characterised it as 'a federation with a strong
centralising tendency'.*" Let us now examine what are those provisions of the constitution
which are produced in support of the above argument and how they modify the strict
application of the federal principle. In the following matters, it is pointed out, the Indian
constitution contains the modifications of the federal principle:-
The Governors of the states are appointed by the president (Articles 155 and 156) and
answerable to him this is however, not a matter of much significance, for, the Governor is
only the constitutional head of the state who shall normally act on the advice of his Ministers.
There are provisions in the constitution under which the Governor is required to send certain
state laws for the assent of the president. The president has power to veto those state laws e.g.
Arts 200, 288 (2). But whatever by the letter of the constitution, in practice there are not
many examples where the president has vetoed the states laws. The only example has been
the Kerala Education Bill ".But here also the centre obtained the advisory opinion of the
supreme court before sending it back to the state legislature for suitable amendments in the
light of the court's opinion.
Under Art. 249 Parliament is empowered to make laws with respect to every matter
enumerated in the state list if the Rajya sabha passes a resolution by 2/3 majority that it is
necessary in the national inertest. There can not be any objection to this provision: First, no
one will deny that if a subject in the state list assumes national character. Parliament should
make a law on it. In normal course this can not be done unless the constitution is amended.
But in this provision we have devised an expedient way by which without formally amending
the constitution we can achieve the desired effect, namely the acquitistion by the centre of the
power to administer and legislate upon a subject which has assumed national importance.
Secondly, it should also be noted that this power is given to Parliament by the council of
states itself by passing a resolution supported by 2/3 majority of the members present. Thus,
in effect by this device the constitution is amended by the agreement of majority of the states.
We, therefore, fail to understand how Article 249 places the state in subordinate position. The
parliament of India may from new states; it may increase or diminsh the area of any state and
it may alter the boundaries or name of any state (art.3). The very existence of the state thus

9. K.C. Wheare-India's New Constitution Analysed, 1950 ALJ 22

10. Jennings -Some characteristics of the India constitution, p.l.
11. Inre, Kerala Education Bill, AIR 1958 SC 956.
 5
depends upon the sweetwill of the union government. The power confen^ed on Parliament to
make territorial adjustment is better explained the historical basis. It deliberately created the
constituent units of the federation although they had no orangic roots in the past. The framers
of the Constituton were well aware of the peculiar conditions under which and the reasons for
which the states were formed and their boundaries were defined and so they deliberately
accepted the provisions in Article 3 with a view to meeting the possibility of the
redistribution of the state territory after the intergration of Indian states. The provision in Art
3 take into account the fact that the constitution contemplated readjustment of the territories
of constitutent states which might arise in future.
The constitution envisages three types of emergencies: (1) emergency caused by war
or external aggression or armed rebellion (Art. 352); (2) emergency caused by failure of
constitutional machinery in Sates (Art. 356); and (3) financial emergency (Art 360). When
the proclamation of emergency is made under Art. 352, the normal distribution of powers
between the centre and the States undergo a vital change. Parliament is empowered to make
laws with respect to any matter enumerated in the State List. The Centre is empowered to
give directions to any State as to manner in which the State's executive power is to be
exercised. Further, the President may be order direct that all or any of the provisions of Arts.
278 to 279 relating to distribution of revenue between the Centre and the State shall take
effect with such exception or modifications, as he thinks fit. Under Art 356, if the President
with such exception or modifications, as he thinks fit. Under Art. 356, if the President is
satisfied that Government of a State can not be carried on in accordance with the provisions
of the Constitution he can dismiss the State ministry and dissolve the Legislature and assume
all the functions of the State. Thus the normal distribution of powers between the centre and
the states, which is the basic element of a federal constitution, is completely suspended. It is
alleged that these provisions enable the union Parliament to convert the Union into a unitary
State which vitally affects the federal character of the Indian Constitution.
Do these provisions modify the federal character of the Indian Constitution ? " The
correct view", observes Dr. V.N. Shukla, "Is that emergency provisions which come into
operation only on the happening of the specific contingencies, do not modify or destroy the
federal system. It is rather a merit of the Constitution that it visualises the contingencies
which our Constitution is built. The Constitution by adopting itself to a changed
circumstances strengthens the Government in its endeavour to overcome the crisis. In an
emergency the behaviour of Federal Government was given so extended an interpretation by
the Courts that these countries behaved more likely unitary than federal State. For the above
 6
reason we maintain that the Indian Constitution is federal in nature.'"^ Prof. Wheare: has
coined a phrase 'quasi-federation' as applicable to India but he has nowere defined what a
'quasi-federation' is. "It is not necessary to use such a vague term 'qualsi-federal' to
characterise it". The term 'quasi-federal' is extremely vague as it does not denote how
powerful the Centre is, how much deviation there is form the pure 'federal model' or what
kind of special position a particular quasi-federation occupies between a unitary state and a
federation proper. The fundamental pricniple of federation is that the powers are distributed
between the Centre and the States and that is done by the Constitution. That is what the
Constitution does. The States do not depend upon by the Constitution. That is what the
Constitution does. The States do not depend upon the Centre, for, in normal times the Centre
cannot intrude. It may be that the Centre has been assigned a larger role than the States but
that by itself does not detract from the federal nature of the constitution for it is not the
essence of federalism to say that only so much, and more power, is to be given to the
Centre.'^
Prof. Whereas appears to feel that the American Constitution is truly of federal type.
He says 'among examples of federal constitutions there may be mentioned those of the
United States, Switzerland and Australia'. It may, however, be clearly understood that the
nature of federalism is more of historical growth based on a nation's necessity. To accept the
same pattern of federalism in all countries is well nigh impossible. With all respect to Prof.
Wheare, we may tell him that federalism varies from place to place, and from time during on
so many factors-historical, geographical, economical and political. So what is goof for
American is not necessarily goof for India. The people of a country can take in only the
required dosages, otherwise they may stunt or destroy their growth. Federalism is not like the
set pattern of coats to wear. It is a clock of varying organised pattern befitting each wearer
and helping him to the next and superior stages of federalism. India's federalism is unique
and good for itself America's federalism in not perfect as it is stated to be. It has got its own
drawback. Indian Constitution is sufficiently federal. It is not less federal than American
federalism which on paper is of higher degree but in the actual practice the leaning it towards
centralisation of national interest. The term 'quasi' is a misnomer. India is federal and
America is more federal in the outline of the Constitution. In practice there is not much
difference between the two.^'*
li may be that we deviated in respect of certain matters from the strict federalism as
12. V.N. Shukla-Constitution of India, p.40 (1969)
13. M.P. Jain-Indian Constitutional Law P. 347 at p. 357 (3'" ed., 1978)
14. V.G.Ramchandran-1958 (SCJ) p.79
 7
operating in the U.S.A. or Switzerland, but the reasons are obvious. The Indian Constitution
makers defined the Indian federal structure not with en eye on theoretical but on practical
consideration in designing federalism. Under the impact of world wars, international crisis,
scientific and technological progress and developments and emergence of the ideal of social
welfare state, the whole concept of federalism had been undergoing a change for sometime
throughout the world. There are centralising tendencies in evidence in every federation and
whether it is in U.S.A. or in Australia, strong and powerful national governments have
emerged in every federation. The framers of the Indian constitution took note of these
tendencies and kept in view the practical needs of the country designed on federal structure
not on the footing that it should conform to some theoretical, definite or standard pattern, but
on the basis that it should be able to subserve the need of the vast and diverse country like
India. The Indian constitution, therefore, constitutes a new bold experiment in the area of
federalism.
In short, it may be concluded that the constitution of India is neither purely federal nor
purely unitary but is combination of both. It is a union of composite state of a novel type. It
enshrines the principle that inspite of federalism, the national interest ought to be paramount.
Thus, the Indian Constitution is mainly federal with unique safeguards for enforcing national
unity and growth.*^

(B) Relation between the union and the states-

As has been pointed out at the outset, a federal system postulates a distributions of powers
between the centre and states. The nature of distribution varies according to the local and
political background in each country. In America, the Sovereign States which were keen to
federate, did not like complete subordination to the central government hence they believed
in entrusting subjects of common interest to the Central Government, while retaining the rest
with them. Thus American Constitution only enumerates the powers of the Central
Government and leaving the residuary power to the States Australia followed the American
pattern only one enumeration powers, i.e. of Central Government leaving the residuary
powers to the States because their problems were similar to the Americans. In Canada there is
double enumeration, Federal and Provincial leaving the residue for the Centre. The
Canadians were conscious of the in fortunate happenings in U.S.A. culminating in Civil War
of 1891. They were aware of the shortcoming of the weak centre, hence, they-opted for a
strong centre. Our constitution-makers followed the Canadian scheme obviously opting for a
strong Centre. However, they added one more List- the Concurrent List. The Government of
India Act. 1935, introduced a scheme of three- fold enumeration, viz., Federal, Provincial and
Concurrent.
15. Jennings -some characteristics of Indian constitution, p.55
 8
The present Constitution adopts the method followed by the Government of India Act
1935, and divides the powers between the Union and the States in three Lists- the Union List,
the State List and Concurrent List.
The Union List consists of 97 subject. The subjects mentioned in the Union List are of
national importance, i.e., defence, foreign affairs, banking currency and coinage, union duties
and taxes. But Entry 33 was deleted by Constitution (7* Amendment) Act, 1956 and Entries
2-A and 92-B were added by amendments.
The State List consists of 66 subjects. But Entries 19,20,29 and 36 have been deleted
by constitutional amendments. There are of a local importance, such as, public order and
police, local Government, public health and sanitation, agriculture, forest, fisheries,
education. State taxes and duties. The States have exclusive power to make laws on subjects
mentioned in the State List.
The concurrent List consists of 47 subjects. New entries aa-A, 17-A, 17-B, 20-A, and
33-A have been added by constitutional amendments. Both Centre and the States can make
laws on the subjects mentioned in the Concurrent List. But in case of conflict between the
Central and the State law on Concurrent subjects, the Central law will prevail. The concurrent
List is not found in any federal constitutions. The framers added this List to the constitution
with a view to secure uniformity in the main principles of law throughout the country. The
Concurrent List was to serve as a device to avoid excessive rigidity to two-list distribution.
The Concurrent List thus, in the words of Pyle, is "a twilight Zone, as it were, for both the
Union and the States are competent to legislate in this field, without coming into conflict."
Article 248 vests the residuary powers in the Parliament. It says that Parliament has
exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or the State List. Entry 97 in the Union List also lay down that Parliament
has exclusive power to make laws with respect to any matter not mentioned in the State List
or the Concurrent List including any tax not mentioned in either of these Lists. Thus the
Indian constitution makes a departure from the practice prevalent in U.S.A., Switzerland and
Australia where residuary powers and vested in the States. This reflects the leanings of the
Constitution- makes towards a strong Centre.
Article 254 (1) says that if any provision of law made by the Legislature of the State is
repugnant to any provision of a law made by Parliament which is competent to enact or to
any provision of the existing law with respect to one of the matters enumerated in the
Concurrent List, then the law made by Parliament, Whether passed before or after the law
made by the Legislature of such Stages or, as the case may be, the existing law shall Prevail
 9
and the law made by the Legislature of the State shall, to the extent of the repugnancy be
void.
Article 254 (1) Only applies where there is inconsistency between a Central Law and
a State Law relating to a subject mentioned in the Concurrent List^^ But the question is how
to repugnancy is to be determined? In M.Karunanidhi V. Union of India.'^ Fazal Ali, J.,
reviewed all its earlier decision and summarise the test of repugnancy'^ According to him a
repugnancy would arise between the two statues in the following situations:
1. It must be shown that there is clear and direct inconsistency between the two
enactments (Central Act and State Act) which is irreconcilable, so that they can not
stand together or operate in the same field.
2. There can be no repeal by implication unless the inconsistency appears on the face of
the two statues.
3. Where the two statues occupy a particular field, but there is room or possibility of
both the statutes operating in the same field without coming into collusion with each
other, no repugnancy results.
The above rule of repugnancy is, however, subject to the exception provided in
clauses (2) of this Article, According to clause (2) if a State Law with respect to any of the
matters enumerated in the Concurrent List contains any provision repugnant to the provisions
of an earlier law made by Parliament, or an existing law with respect of that matter, then the
State law if it has been reserved for the assent of the President and has received his assent,
hall prevail notwithstanding such repugnancy. But it would still be possible for the
parliament under the provision to clause (2) to override such a law by subsequently making a
law on the same matter. If it makes such a law the State Law would be void to the extent of
repugnancy with the Union Law. In M. Karunanidhi's cases the applellant challenged the
validity of the Tamil Nadu Public Men (Criminal Misconduct) Act, 1947, as amended by the
Act of 1947 on the ground that is was inconsistent with the Central Act and Prevention of
Corruption act 1947 and hence void. ACBI. inquiry was instituted against again the
appellants who were alleged to have abused their official position in the matter of purchase of
wheat from Punjab. As a result of the inquiry a prosecution was launched against the
appellant under the IPC and the Prevention of Corruption Act. The State Act was passed after
obtaining the assent of the President. The state Act repealed and the question arose whether

16. Viiai Kumar Sharma V. State of Karnataka, (1990) 2 Sec 562: AIR 1990 SC
2072.
17. AIR 1979 SC 898. See also Viiai Kumar Sharma V. State of Karnataka, (1990)
2 s e c 562.
18. Ibid at P. 910
 10
action could be taken under the Central Laws i.e., the IPC, the corruption Act and Criminal
Law Amendment. The appellant contended that even though the State Act was repealed it
was repugnant to the Central Laws, i.e., the IPC. and the corruption Act. It was argued that
by Virtue of Art. 254(2) the provision of the Central Act stood repealed and could not be
revived after the State Act was repealed. He argued that even though the State Act was
repealed the provision of the Central Acts having themselves been pro tanto repealed by the
State Act when it was passed could not be applied for the purpose of prosecuting the
appellant unless they were re-enacted by the Legislature. Thus the question before the court
was whether there was any inconsistency between the State Act and the Central Act that the
Provisions of the Central Act stood repealed and unless re-enacted could not be invoked even
after the State Act was itself repealed. The supreme court held that the state act was not
repugnant to the central acts and therefore it did not repeal the central act which continued to
be in operating even after the repeal of the state act and can be invoked for the purpose of
prosecuting the appellant. The state act creates distinct and separate offences with different
ingredients and different punishments and does not in any way collide with the central acts.
The state act is rather a complimentary act to the central act. The state act itself permits the
central acts to come to its aid after an investigation is completed and a report is submitted.
The state act provide that the 'public man' will have to be prosecuted under the central acts.
In Deep Chand V. State of U.P'^-the validity of U.P Transport Service
(Development) Act was involved. By this Act the State Government was authorised to make
the Scheme for nationalisation of Motor Transport in the State. The law was necessitated
because the Motor Transport Services. Later on, in 1956 the Parliament with a view to
introduce a uniform law amended the Motor Vehicles Act, 1939, and added a new provision
enabling the State Government to frame rules of nationalization of Motor transport. The
Court held that since both the Union Law and the State Law occupied the same field, the
State law was void to the extent of repugnancy to the Union Law.
In Zaverbhai V. State of Bombay ^^, Parliament enacted the Essential Supplies Act,
1946, for regulating production, supply and distribution of essential comedies. A
contravention of any provision of the above. Act was punishable with imprisonment upto 3
years or fine or both. In 1947, considering the punishment inadequate, the Bombay
Legislature passed an Act enchaining the punishment provided under the Central Law. The
Bombay Act received the assent of the President and thus prevailed over the Central Law and
19. AIR 1959 SC 648; Zaverbhai V.State of Bombay. AIR 1954 SC 752; Tika
RamiiV. State of U.P.. AIR 1956 SC 676.
20. AIR 1954 SC 752.
 11
become operative in Bombay. However, in 1950 Parliament amended its Act of 1946 and
enhanced the punishment. It was held that the both occupied the same field (enhanced
punishment) the State law became void as being repugnant to the Central law.
Though in normal times the distribution of powers must be strictly maintained and
neither the State nor the Centre can encroach upon the sphere allotted to the other by the
Constitution, yet in certain exceptional circumstances the above system of distributions is
either suspended or the powers of the Union Parliament are extended over the subjects
mentioned in the State List. The exceptional circumstances are:
(1) Power of Parliament to legislate in the national interests:- According to article 249, if
the Rajya Sabha passes a resolution supported by 2/3 of the members present and
voting that it is necessary or expedient in the national interest that Parliament should
makes laws with respect to any matter enumerated within State Law, then it shall be
lawful for the Parliament to make laws for the whole or any part of the territory of
India with respect to that matter so long as the resolution remains in force. Such a
resolution normally lasts for a year; it may be renewed as many times necessary but
not exceeding a year at a time. These laws of Parliament will, however, cease to have
effect on the expiration of the period of six months after resolution has ceased to
operate.
(2) During a Proclamation of Emergency:- According to Article 250 while the
Proclamation of Emergency is in operation the Parliament shall have power to make
laws for the whole or any part of the territory of India with respect to all matters in the
State List. Such a Law, however, shall cease to have effect on the expiration of Six
months after the proclamation of emergency has ceased to operate.
(3) Parliament's power to legislate with the consent of the States:- According to Article
52 if the Legislature of two or more State pass resolution to the effect that it is
desirable to have a law by passing a resolution to the effect. Such law can only be
amended or repealed by the Act of Parliament.
(4) Parliament's power to legislate for giving effect to treaties and international
agreements:- Article 253 empowers the Parliament to make and law for the whole or
any part of the territory of India for implementing treaties and international
agreements and conventions. In other words, the normal distribution of powers will
not stand in the way of Parliament to pass a law for giving effect to an international
obligation even though such law relates to any of the subject in the State List Art. 253
enables the Government of India to implement all international obligations and
commitments. Treaties are not required to be ratified Parliament. They are, however.
 12
not self- operative. Parliamentary legislation will be necessary for implementing the
provisions of treaty. But laws enacted for the enforcement of treaties will be subject
to the constitutional limits, that is, such a law can not infringe fundamental right.
(5) In case of failure of constitutional machinery in a State:- Under Article 256
Parliament is empowered to make laws with respect to all matters in the State List
when the Parliament declares that the Government of the States can not be carried on
in accordance with the provision of the Constitution.
Thus from the scheme of distribution of legislative powers between the Union and the
States it is quite evident that the farmers have given more powers to the Union Parliament as
against the States. The States are not vested with exclusive jurisdiction even over the subjects
assigned to the States by the Constitution and thus it makes the States to some extent
subordinate to the Centre. Indeed this is a clear departure from the strict application of the
federal character of the Indian constitution, if not disappeared, has been greatly modified.
It is submitted that these provisions are merits rather then demerits of the Indian
constitution. They enable the centre to legislate in exceptional circumstances on the State
subjects without amending the constitution and thus introducing a certain amount of
flexibility in the scheme of distribution of powers, Moreover, they are invoked only where
there are exceptional circumstances and that too for a limited period. Thus the framers have
incorporated the federal principle in our Constitution in a modified from in the light of the
experience in another federations and in view of the peculiar requirement of our country. The
plant of the distribution to legislative powers thus clearly indicates a strong tendency towards
a high degree of centralization which is deemed as a product of realism and in the line with a
general tendency towards centralization in all federations. This centralising tendency is no
doubt inconsistent with the federal principal but the farmers of the constitution were more
concerned with the unity of the nation rather than following the traditional requirements of a
federal constitution. Besides, the central control was considered necessary for the purpose of
achieving rapid economic and industrial progress.^^

"A federal scheme involve the setting up to dual Government and division of powers.
But the success and strength of the federal policy depends upon the maximum of co-
operation and co-ordination between the governments.'^'' In fact, the adjustment of
administrative relations between the Union and the states is one of the knotty problems in a
21. Sri Kiishna Sharma V. State of West Bengal. AIR 1954 SC 591. See also, In re
Indo-Pakistan Agreement, AIR 1960 SC 845 and Maganbhai V. Union of India.
AIR 1969 SC 783 (regarding the position of treaties under the Indian Constitution)
22. T.K. Tope- Constitutional Law of India, p. 523 (1982 Ed).
23. D.D. Basu : Introduction to the Constitution of India p.263
 13
federal Government. The framers of the Indian constitution therefore decided to include
detailed provisions to aboid clashes between the Centre and the States in the administrative
domain and to ensure effective federal executive control of mattes falling within the
Jurisdiction of the Parliament. In order to ensure smooth and proper fiinctioning to the
administrative machinery, they made provision for meeting all types of eventualities resulting
through the working of federalism
"A federal scheme involve the setting up of dual Government and division of powers.
But the success and strength of the federal policy depends upon the maximum of co-
operation and co-ordination between the governments.'^^ In fact, the adjustments of
administrative relations between the Union and the States is one of the knotty problems in a
federal Government. The farmers of the Indian Constitution therefore decided to include
detailed provisions to aboid clashes between the Centre and the State in the administrative
domain and to ensure effective federal executive control of matters falling within the
jurisdiction of the Parliament. In order to ensure smooth and proper functioning to the
administrative machinery, they made provisions for meeting all types of eventualities
resulting through the working of federalism or emergency of new circumstances due to
difference of opinion between the Centre and the Stage Administrative authorities was
thought indispensable, emergency the Government of India exercises complete control over
the State and functions as if it is a unitary Government.
Articles 256 to 263 provide for Union control over State even in normal times through
following ways:
(a) Direction by the Union to the State Governments.
(b) Delegation of Union functions to the States.
(c) All-India services
(d) Grants-in-aid
"The idea of Union giving direction to the States is foreign and repugnant to a rule of
federal system. But this idea was taken by the farmers of our Constitution from the
Government of India Act, 1935, in view of the peculiar conditions of this country and
particular circumstances out of which the federation emerged.^'*
Article 256 provides that the executive power of the State shall be so exercised as to
ensure compliance with the laws made by Parliament and the executive power of the Union
shall also extend to the giving of such directions to a State as it may essential for the purpose.
Thus power to give direction was necessary because, if the Centre was not vested with such
power the proper execution of the laws passed by the Parliament would become impossible.
24. Ibid
 14
Accordingly, Article 257 enacts that the States must exercise their executive power in such a
way so as not to impede or prejudice the exercise of the executive power of the Union in the
State. For this purpose the Central Government can give directions to a State as to in which
way to State should exercise its executive power. The powers of the central Government also
extend to giving directions to a State in two specific matters :- (1) the construction and
maintenance of means of communication which are declare to be of national or military
importance, (2) measures to be taken for the protection of the railway within the States. This
power of giving direction does not in any way affect the power of the Parliament to declare
highways or waterways to be National highways and waterways and to construct and
maintain means of communication as part of its functions with respect to naval, military or
air force works.
If in carrying out the directions of the Union government given under clause (2) the
State incurs additional costs the Union Government under Art. 257 (4) shall pay to the State
government such sum as may be agreed. If the Centre and States can not come to an
agreement regarding the compensation to be paid by the former to the latter, the matter is to
be referred to the arbitrator to be appointed by the Chief Justice of India.
The constitution prescribes a corcive sanction for the enforcement of its directions
through Art. 356. Article 356 provides that if the State has failed to comply with or to give
effect to any directions given by the Central Government then the President is empowered to
declare an emergency to the effect that the State Government can not carried on in
accordance with the provisions of the Constitution and assume himself all functions of the
State.
Under Article 258 the Parliament may, with the consent of the State Government,
entrust either conditionally or unconditionally to that Government or to its offices functions
relating to any matter falling with in the executive powers of the Union. Under clauses (2)
Parliament is also empowered to use 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 there of in respect of these matters to see that the laws are made applicable to the
State. It is to be noted that while under clauses (1) the delegation of power is made with the
consent of the State the consent of the State is not necessary under clause (2) and delegation
can be made by Parliament by law.

If a law is passed delegating powers and imposing duties, it would be the duty of the
officers of the State to implement the law. Thus, Parliament can interfere in internal
administration of the States even without the consent of the State. This constitutes a great
 15
encroachment on the autonomy of the State, and reduces the States as mere agents of the
Centre.
Like the Central Government, the State Government can also delegate its power to the
Union and its officers. Article 258- A lays down that the Governor of the State may with the
consent of the Government of India, entrust of the Government or its officers, functions,
relating to any matter to which the executive power of that Government extends. It is thus
clear that where it is not inconvenient for either Government to directly carry out its
administrative functions it may get those functions executed through the other Government.
Beside the separate service for the Union and the States the Constitution provides for
the creation of additional "All-India Service" common to the Union and the States. According
to Article 312 if the Rajya Sabha passes a resolution supported by not less then two-thirds of
the members present and voting that it is necessary or expedient in the nation's interest to do
so. Parliament may be law provide for the creation of one or more All-India Service common
to the conditions of persons appointed to any service.
The Object of this provision is to ensure greater inter-State co-ordination and
implementation of the policies of the Central Government through these officers. This also
enables the Central Government to exercise a control over State in matters of execution of
Union laws.
Under the Constitution the Financial resources of the State are very limited though
they have to do many works of social uplift under directive principles. In order to cope with
their ever-expanding needs, the Central Government makes grants- in-aid to the Services.
Grant-in-aid to States thus serves two purposes: (1) through it Central Government express a
strict control over the States because grants are granted subject to certain conditions. If any
State does not agree to the condition the Central Government may withdraw the grant, and
(2) it generates a Centre- state co-ordination and co-operation if a State wants to develop its
welfare schemes for the people of the State it may ask for financial help from the Centre.
Article 261 declares 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 According
to clause (3) final judgment or orders delivered or passed by Civil courts in any part of the
territory of India can be executed anywhere in the country according to law.
"No system of federation can be successful unless both Union and the States
have at their disposal adequate financial resources to enable them to discharge their
respective responsibilities under the Constitution.^^ It is indeed a hard fact that if the
legislative and administrative authority of the constituent units are to be maintained they
25. Basu, D.D.: Introduction of the Constitution of India, p 141.
 16
must be autonomous financially. However, this principle of federalism has not been fully
implemented in any of the existing federation of the world. In Canada and Australia the
sources of revenue allotted to the units are so meager that they have to be substantially
assisted by Central grants. The Swiss Federation, on the other hand, makes the Centre
subservient to the units as regards financial contribution from the letter to the former. The
American constitution tried its best to ensure complete financial independence for both the
Union and the States, but the passage of time, the increased obligation of the States due to the
advent of the concept of "positive state", have made them rely on grants- in- aid from the
Central Government. This has certainly led to the development of centralization and curbing
of autonomy of the States in U.S.A.
In India, the Scheme of distribution of sources of revenue between the Centre and the
States is base on the scheme laid down in the Government of India Act, 1935.
The farmers of the Indian Constitution desired that the scheme of financial relation be
flexible and adaptable to varying needs and reviewable periodically in the light of experience,
of Central resources, of State's needs, and available data. For this, they recommended for the
appointment of Finance Commission to review the whole position time to time. The
constitution under Article 280, therefore, provides for the appointment of a Finance
Commission with in two year of the commencement of the Constitution and thereafter at the
expiration of every fifth years or at such earlier time as the President considers it necessary. It
consists of a Chairman and four other members to be appointed by the President. The Finance
Commission is to recommend to the President the requisite changes to be made in the
distribution of taxes between the Union and the States; and (2) to define the principle on
which the Union Government was to make grants-in-aid to the States. The constitution of
India thus introduces a unique element of fiexibility while tackling the problems of
distribution of public revenues. "No other federal Constitution makes such elaborate
provisions as the Constitution of India with respect to the relationship between the Union and
the States in the financial field. In fact, by providing for the establishment of Finance
Commission for the purpose of allocating and re-adjusting the receipts from certain sources,
the Constitutions has made an original contribution in his extremely complicated aspect of
Federal relationship.^^.

The scheme of distribution of revenues indicates, like distribution of legislative and

administrative powers, a clear tendency towards centralization. The centre's resources are
many and vast but the state resources are very meager while the responsibilities of the states
are manifold. The State has no implement all the welfare schemes. Consequently, the States
26. Pylee-constitutional Government in India, p. 544
 17
are dependent upon centre for funds. These funds are given to the States by the centre on the
recommendation of the Finance Commission in the form of grants. The States are primarily
responsible for the Well being of the Citizens.
The control of centre over finance appears to be a violation of the principles of
federation which is adopted in the Indian Constitution. But this is to be understood in the
context of the historical background underlying the India constitution, that is, for
consolidating and strengthening the unity of India, It is central Government which is
ultimately responsible for maintaining economic unity and thereby maintaining the welfare of
the country.
This tendency towards centralization is seen in the modem times in all the federations.
The problem of centre-Sate relations is more serious in the sphere of distribution of finances.
Another problem in this respect is the development of an executive body known as the
Planning commission. It has been created by the resolution of the Government of India. It is
not a statutory body like the Finance commission. But the Planning commission distribution
large parts of central grants to the States then the Finance commission. The central grants
recommended by the Planning Commission is a discretionary grant. In fact, out of the total
grants made in a year, only 30 per cent is under the purview of the Finance Commission and
70 percent is discretionary grant, given to the State on the recommendations of the Planning
commission. Planning commission is a political body. It therefore suggested that the Planning
Commission should be made a statutory body and it should be made permanent. It should
also be made a statutory body and it should be made permanent. It should also be more broad
based body. It is hoped that this step would help in reducing the stresses and strains which at
present exists between the Centre and the States.
(C) Purpose, Object and Method Adopted in this thesis-

The purpose of this humble thesis is to study the federal aspect of Indian Constitution.
Centre- State relations have been a critical issue for a long time. From the very beginning
when the Constitution was drafted and came into force this issue came into light for
discussions. Of course, the relations between the Centre and the States have been established
and incorporated under the provisions of the Constitution, but it seems that either the
provisions are not sufficient or the implementation of the same has not been made out
properly. But it is a fact that there is some-thing wrong some where, which has created the
complications between the States and also between Centre and States. Because of these
complications, relations between these two agencies have not been harmonized. It is also true
that to sort out this problem a lot of efforts have already been and a lot are in process and
some achievements have direction.
 18
The source materials of the present thesis are the Valuable works of distinguished
writers, jurists like Mr. Palkhiwala, judges like J. Sarkaria which have been duly cited in foot
notes and appropriate place in present work. The stud is not a mere collection of Judicial
decision but it is a humble try to throw light on the nature of Indian federalism in the context
of central state relation. Selection of cases has been made with almost care, yet difference of
opinion regarding the cases selected is always within the realm of possibility.
Before the enquiry is under taken it will be worth to throw a glimpse on the scheme
which has been adopted in writing this thesis on the subject.
Chapter I : Introduction
Chapter II : Legislative Relations between the Union & the States
Chapter III : Administrative Relations between the Union & the States
Chapter IV : Financial Relations between the Centre & the States
Chapter V : Suggestion & Submission
Chapter I: Ideals with introductory theme and some preliminary stand points on the subject.
Chapter I is divided into three parts. First Parts is prelated with the nature of Indian
Constitution that whether it is federal, Quasis federal or Unitary After this introductory
discussion in the in part second a broad discussion has been made about the relation between
the union & the state and in the last part of the Chapter I purpose object & method which has
adopted in this Dissertation, has been discussed.
Chapter II: deals with the legislative relation between the Union & the States. In this
Chapter relevant Articles of the Indian Constitution are discussed like Art. 245, 246, 249,
250,251,252, 254 & 255.
Chapter III is about administrative relations between the Union & the States. Art 257, 258
& 259, 262 & 263 have also been discussed. One important issue water dispute also raised in
this Chapter.
In Chapter IV Financial Relations between the Union & the States are discussed.
Chapter V is concluding chapter of the thesis which is humble try to give some suggestion &
submission on the issue. Submission of Sarkaria commission are also discussed.