CHA^FM^TIII: Adkinistrative delations

(Between the
Vnion andStates.

A. Control of the Union Over States in Certain Cases.

B. Jurisdiction of the Union in Relation to Territories Outside

India.

C. Public Acts, Records and Judicial Proceedings.

D. Dispute Relating to Waters.

E. Co-Ordination between States.

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CHAPTER III

ADMINISTRATIVE RELATIONS BETWEEN THE UNION

AND STATES
The preceding chapter describes the legislative relations between the States and the
Union. This chapter deals with the administrative relations between the union and the
constituent units.
Although the Union has its own area of power, the territories in which it functions are
under the control of States which in turn have their own areas of power independently of the
Union. To ensure that a State Government by its actions or inactions does not interfere with
the legislative and administrative policies of the Union and thereby undermine the unity of
the nation, certain powers of administrative control over the States have been given to the
Central Government.
This article lays down that it shall be the duty of the States so to exercise its executive
power as to secure that due effect is given within the State to every Act of Parliament which
applies in the State. This is a statement of constitutional duty of every stage. The government
of India is entitled to give directions to the State Government regarding the duty which is
imposed upon it by this article.
The term 'cannot be held to apply merely to a geographical entity or territory. A
direction can only be given to a legal entity and not a geographical or territorial entity. Hence
"directions" to the "state" must necessarily mean directions to Stages as legal entities which
must have legal representatives.'
A. Control of the Union over States in certain cases-
(i) The executive power of every State shall be so exercised as not to
impede or prejudice the exercise of the executive power of the Union,
and the executive power of the Union shall extend to the giving of such
direction to a State as may appear to the Government of India to be
necessary for the purpose,
(ii) The executive power of the Union shall also extend to the giving of
directions to a state as to the construction and maintenance of means of
communication declare in the direction to be of national of military
importance.
1. State of Kamataka V. Union of India, (1977) 4 SCC 608, 657 per Beg C.J.
 62
Provided that nothing in this clauses shall be taken as restricting the power of
Parliament to declare highway or waterways to be national highways or national waterways
or the power of the Union with respect to the highway or waterways so declared or the power
of the Union to construct and maintain means of communication as part of its functions with
respect to naval, military and air force works.
(iii) the executive power of the Union shall also extend the giving of
directions to a State as to the measure to be taken for the protections of
the railways within the State.
(iv) Where in carrying out any direction given to a State under clause (2) as
to the construction or maintenance of any means of communication or
under clause (3) as to the measures to be taken for the protection of any
railway, costs have been incurred in excess of those which would have
been incurred in the discharge of the normal duties of the State if such
direction had not been given, there shall be paid by the Government of
India to the State such sum as may be agreed, or, in default of
agreement, as may be determined by an arbitrator appointed by the
chief Justice of India, in respect of the extra costs so incurred by the
State.
The preceding article empowers the Central government to issue directions to the
State Governments for the purpose of ensuring that due respect for the Central laws is given
in the States. This article gives authority to the Union to issue directions to the States in
certain other matters. These are follows:
(i) The manner in which the executive power of the State shall be exercised so
as not to impede or abridge the executive power of the Union;
(ii) The construction of means of communication, declare to be of national or
military importance; and
(iii) Measure to be taken for the protection of railways within the State
Distinction between Article 256 and clause (1) of this article should be noted. The
former lays down a general obligation upon the States. The latter imposes a specific
obligation on the States not to do anything which would impede or hamper the executive
power of the Union. Under the Government of India Act, 1935, the obligation of the nature
laid down in Article 256 was treated as a constitutional or moral duty of the States. Under the
present constitution, the Centre is entitled to give directions to the States under Article 256
also.
 63
"Communications" is a State subject^. But clause (2) of this article empowers the
Union to direct a State to construct and maintain means of communication which may be
declared to be of national or military importance.
"Railways" is a Union subject. But police, including railway police, is a State subject^
Under clause (3), the Union executive can give directions to a State as to the measures to be
taken for the protection of railways within the State.
The constitution provides for a situation in which a State Government declines to
Gary out the directions it has received from the Union Government. Article 365 lays down
that where a State has failed to comply with or give effect to any directions given in the
exercise of the executive power of the Union, 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 provision of the Constitution. He will then be entitled to assume all or any of the
functions of the Government of the State and all the powers vested in, or exercisable by the
Governor or any body or authority other than the High Court of the State. He may also
declare that the powers of the Legisture of the State shall be exercisable by or under the
authority of Parliament.
Clause (4) of the article lays down that if in carrying out any of the aforesaid direction
additional costs have been incurred by the State, it shall be paid by the Government of India
such sums as may be agreed. In default of agreement the matter shall be determined by an
arbitrator to be appointed by the Chief Justice of India.
''Art. 257 (A) Assistance to States by development of armed forces or other forces of
' the Union.- [Omitted]
Art. 258 Power of the Union to confer powers, etc., on states in certain cases- (1)
Notwithstanding anything in this Constitution, the President may, with the consent of the
Government of a State, entrust either conditionally or unconditionally to the Government or
to its officers functions in relation to any matter to which the executive power of the Union
extends.
(2) A law made by Parliament which applies in any State may, not with standing that
it relates to a matter with respect to which the Legislature of the State has no power to make
laws, confer powers and impose duties, or authorise the conferring of powers and the
imposition of duties. Upon the States or officers and authorities there of
2. Entry 13 of List II.
3. Entry 2 of List II
4. Ins. by the Constitution (Forty-second Amendment) Act, 1976 S. 43 (w.e.f 3-1-1977) and
omitted by the Constitution (Forty-fourth Amendment) Act. 1978 S. 33 (w.e.f 20-6-1979).
This Article read:
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(3) Where by virtue of this article powers and duties have been conferred or imposed
upon a State or officers or authorities thereof, there shall be paid by the Government of India
to the State such sum as may be agreed, or, in default of agreement, as may be determined by
an arbitrator appointed by the Chief Justice of India in respect of extra costs of administration
incurred by the State in connection with the exercise of those powers and duties.
Clause (1) empowers the President to entrust to a State Government functions relating
to any matter falling within the executive power of the Union. ^
Art 257 (A) Assistant to States by deployment of armed forces or other forces of the
Union ^^1) The Government of India may deploy any armed forces of the Union or any other
force subject to the control of the Union for dealing with any grave situation of law and order
in any State.
(2) Any armed force or other force or any contingent or until thereof deployed under
cl. (1) in any State shall act in accordance with such directions as the Government of India
may issued and shall not, save as otherwise provided in such direction, be subject to the
superintendence or control of the State Government or any officer or authority subordinate to
the State Government.
(3) Parliament may, by law, specify the powers, functions privileges and liabilities of
the members of any forces or any contingent or until there of deployed under cl. (1) during
the period of such deployment."
The delegation of functions has to be with the consent of the Government of the state.
A notification by the President under this article entrusting functions to a State Government
is a legislative act.^
Clause (2) empowers Parliament to use the State executive machinery for the
enforcement of Union laws. For the same purpose. Parliament may confer powers and
impose duties upon the States or officers or authorities thereof in respect of matters in the
Union or Concurrent List.
The difference between clause (1) and (2) may be noted. Under clause (1), the
delegation is made by the union executive with the consent of the State executive; but under
clause (2) the delegation is made by Parliament by law while legislating on a matter on the
Union List, and there is no question of the consent of the States to which the powers are

5. For example See Kanchamreddi Chinna Ranga Reddi, Re AIR 1962 A 322 AP 322;
A.H. Magermana v.S.K. Ghosh. 67 Cal WN 926.
6. Javantilal Amritlal v. F.N. Rana. AIR 1964 SC 648: (1964) 5 SCR 294
 65
delegated.^ Moreover, it has been observed that the powers conferred under clauses (2) are
necessarily subject to the administrative control of the Union under Article 256 and 257 (1),
o

where Union can give necessary directions to the States .

Clause (3) makes it clear that where the power is conferred or the duty is imposed by
virtue of a law made by Parliament, the State is entitled to be compensated for the extra cost
which it has to incur on account of the delegation in respect of matters not within its sphere.
The amount is to be determined by agreement, but if the parties can not come to an
agreement, the amount in respect of extra cost shall be determined by an arbitrator appointed
by the Chief Justice of India.
In Anwar v. Sate of J & K^ a foreign challenged the order of deportation by the
State Government on .the ground that under the Foreigners Act of 1946, the Central
Government alone could pass such as order. The Supreme Court held that the Central
Government had validly delegated its administrative powers under the Foreigners Act to the
Government of Jammu & Kashmir under Articles 258 (1) and consequently the order of
deportation passed by the State Government was valid.
Limitation- In Jayantilai Amritlal v. F.N. Rana"^, if was held Article 258 enables
the President only to entrust to the State the functions which are vested in the Union and
which are exercisable by the President on behalf of the Union, but does not authorise the
president to entrust to any other person or body the powers does not authorise the President to
entrust to any other person or body the powers and function with which he is by the express
provisions of the Constitution as President invested, such as, the power to promulgate
ordinances under Article 123; suspend the provisions of Articles 268 to 279; to declare an
emergency under Article 352; make rules regulating the recruitment and to the conditions of
services of persons appointed to posts and services in connection with the affairs of the
Union under Article 309." These powers cannot be delegated because they are not powers of
the Union, but are vested in the President by the Constitution. However, in Samsher Singh v.
State of Puniab^l it was clarified that the distinction made by the Supreme Court in the
Jayantilai Amritlal case between the executive functions of the Union and the executive
7. For an instance of such delegation, see Sahadat v. Supdt. District Jail, AIR 1967
ALL 11
8. Sat Pal V. State of Punjab (1982) 1 SCC 12.17
9. (1971) 3 SCC 104: AIR 1971 SC 335.
10. AIR 1964 SC 648, 655: (1964) 5 SCR 294.
11. There is a vast array of other powers exercisable by the President, e.g. Arts, 125, 217,
345, 340, 358 and 310. These are executive powers of the President and may not be
delegated or entrusted to any other body or officer.
12. (1974) 2 SCC 845, 846 : AIR 1974 SC 2192.
 66
functions of the President does not lead to any conclusion that the President is not the
constitution head of Government. Article 74(1) provides for the Council of Ministers to aid
and advise the President in the exercise of his functions. Therefore, whether the functions
exercised by the President are functions of the Union or of the President, they have equally to
be exercised with the aid and advice of the Council of Ministers .
Art. 258 (A) Power of the State to entrust functions to the Union- Notwithstanding
anything in this Constitution, the Governor of a State may, with the consent of the
Government of India, entrust either conditionally or unconditionally to that Government or to
its officers functions in relation to any matter to which the executive power of the State
extends.
This article was added by the Constitution (Seventh Amendment) Act, 1956. As
noted above, while the President is empowered by Article 258 (1) to entrust Union functions
to a State Government or its officers, there was no provision enabling the Governor of a State
to entrust State functions to the Central Government or its officers. This lacuna was found to
be of practical difficulty in connection with the execution of certain development projects of
a State. It has been removed by Article 258-A.
Art. 259 [Armed Forces in States in Part B of the First Schedule] [Repealed]'''.
B. Jurisdiction of the Union in relation to territories outside India.
The Government of India may be agreement with the Government of any territory not
being part of the territory of India undertake any executive, legislative or judicial functions
vested in the Government of such territory, but every such agreement shall be subject to, and
governed by, any law relating to the exercise of foreign jurisdiction for the time being in
force.
This article enables the Union to assume jurisdiction in respect of any territory outside
India by agreement with the State. But the agreement shall be subject to and governed by
laws relating to foreign jurisdiction e.g. the Foreign Jurisdiction Act, 1947. This Act
provides for the exercise of jurisdiction by the
Art 259 (1) Notwithstanding anything in this constitution, a State specified in Part B
of the First Schedule having any Armed Forces immediately before the commencement of
this Constitution may, until Parliament by law otherwise provides, continue to maintain the
said forces after such commencement subject to such general or special orders as the
President may form time to time issue in that behalf
13. Ins. by the Constitution (Seventh Amendment) Act, 1956, S 18
14. Repealed by the Constitution (Seventh Amendment) Act, 1956 S.29 and Sch. Prior to
its repeal Art 259 read:
 67
(2) Any such Armed Forces as are referred to in clause (1) shall from part of the Armed
Forces of the Union."
Government of India over territories outside India in respect of which the Government
of India has acquired jurisdiction by treaty, agreement, grant, usages political sufferance or
other lawful means.
C. Public acts, records and judicial proceedings
(1) Full faith credit shall be given throughout the territory of India to public acts,
records and judicial proceedings of the Union and of every State.
(2) The manner in which and the conditions under which the acts, records and
proceedings referred to in clauses (1) shall be proved and the effect thereof
determined shall be as provided by law made by Parliament.
(3) Final judgments or orders delivered or passed civil courts in any part of the
territory of India shall be capable of execution anywhere within that territory
according to law.
The provisions of Article 261 (1) and (2) are collectively called "full faith and credit"
clause. Clause (1) establishes a rule of evidence and does not deal with jurisdiction'^ It
declares that full faith and credit shall be given throughout the territory of India to public acts
and judicial proceedings of the Union and of every State.
The rule applies only to acts which are valid and good and not to those that are void'^.
The expression "public acts" will include both executive and legislative acts of the
Government. The expression "public record" will include any official book, register or record
made by a public servant in the discharge of his official duties or by any person in
performance of duty specially enjoined by the law of the country in which book, register or
record is kept'^. Public records kept in India of private documents are public documents, such
as registered deeds of conveyance of property.
The general rule laid down in clause (1) is subject to the power of Parliament to lay
down by law : (i) the mode of proof, and (ii) the effects of such acts and proceedings in other
States.
Clause (3) provides that final judgments or orders of civil courts in any part of the
territory of India shall be executable anywhere within the territory without the necessity of a
fresh suit upon the judgment. The rule applies only to civil judgment. It does not require the
courts of a State to enforce the penal laws of another state ^ ^
15. Gaubi Lai v. Jugal Kishore. AIR 1959 Punj 265.
16. Venkntaraman v. C.R.T. Board. AIR 1953 TC 392.
17. See S. 35 of the Indian Evidence Act, 1872.
 68
Clauses (3) has no introspective effect and it was held before the Constitution (Seventh
Amendment) Act, 1956 that Article 261 could not be availed of for the purpose of pressing
an application of execution in the territory then forming part of Part B State where the final
judgment of which the execution was sought was given by a court in the territory then
forming part of Part A State prior to January 26, 1950.'* Clause (3) will apply only to those
judgments or orders which were made after January 26, 1950, when the Constitution came
into force.'^ It is, however, no condition of clause (3) that the territory in which the decree
passed after January 26, 1950 by an Indian Court is sought to be executed should also have
been a part of the Indian territory on the date the decree was made.^"
D. Dispute relating to waters

Art 262 Adjudication of disputes relating to waters of inter-State rivers or river

valleys-
(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,
(ii) Notwithstanding in this Constitution, Parliament may by law provide that
neither the Supreme Court nor any other court shall exercise jurisdiction in
respect of any such dispute or complaint as is referred to in clause (1).
This article empowers Parliament to enact laws in order to provide for the
adjudication of disputes relating to waters of inter-State rivers or river valleys.
Clauses (2) empowers Parliament to enact Provisions barring the jurisdiction of the
Supreme Court or other courts in respect of such disputes.
In explaining the need for an extra judicial machinery to settle inter-State disputes
relating to water supplies, the Joint Parliamentary Committee Report observed:
"The effect of this is to give each Province complete powers over water supplies
within the Province without any regard whatever to the interests of neighbouring Provinces,
the Federal Court indeed have jurisdiction to decide any dispute between two Provinces in
connection with water supplies, if legal rights or interests are concerned; but the experience
of most countries has shown that rules of law based upon the analogy of private proprietary
interests in water do not afford a satisfactory basis for setting disputes between Provinces or
States where the interests of the public at large in the proper use of water supplies are
involved. It is unnecessary to emphasize the importance from the public point of view of the
18. Loonaii Narain V. Pushottam Charan. AIR 1953 MB 225.
19. Maloii V. Shanker Saran, AIR 1962 SC 1737: (1963) 2 SCR 577
20. Pannalal v. Narhari, AIR 1968 Goal.
 69
distribution of water in India, upon which not only the prosperity, but the economic existence
of large tracts depends."
The water Disputes Act, 1956, empowers the Central Government to set up, on a
complaint from a State Government that a water dispute with another State in relation to the
waters of an inter-State river or river valley has arisen or is likely to arise, a tribunal for the
adjudication of the dispute. The tribunal shall consist of one person only nominated in this
behalf by the Chief Justice of India from amongst persons who are, or have been, judges of
the Supreme Court or judges of a High Court. The decision given by the tribunal shall be
published in the Official Gazette and the decision shall be final and binding on the parties to
the dispute and shall be given effect to by them. No reference to the tribunal can, however, be
made in respect of a dispute that may arise regarding any matter that may be referred to
arbitration under the River Board Act, 1955. Neither the Supreme Court nor any other court
shall have or exercise jurisdiction in respect of any water dispute which may be referred to a
tribunal under this Act.^^
The Water Disputes Act, 1956 has been enacted by Parliarpent in exercise of the
power conferred by this rarticle. The subject -matter of the Act is not covered by any of the
Entries in the Legislative Lists. Moreover the power conferred by this article overrides the
legislative Entries.^^
E. Coordination between States-
Art. 263. Provisions with respect to an inter-State Council- If at any time it
appears to the President that the Public interests would be served by the establishment of
Council charged with the duty of-
(i) inquiring into and advising upon disputes which may have arisen
between States;
(ii) investigation and discussing subjects in which some or all of the State,
or the Union and one or more of the States, have a common interest; or
(iii) making recommendations upon any such subject and, in particular,
recommendations for the better coordination of policy and action with
respect to the subject, it shall be lawful for the President by order to
establish such a council, and to define the nature of the duties to be
performed by it and its organisation and procedure.
'21. For the weakness of the Act and recommendations for reforms see Commission on
centre-state Relations Report, 487-493 (Govt, of India, 1988).
22. In the matter of Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96: AIR 1992
SC 522.
 70
The Supreme Court has jurisdiction to hear disputes between the States involving the
existence or extent of a legal right. But experience of the working of federations has shown
that inter-State disputes of a non-legal character sometimes arise. It was considered desirable
to provide some constitutional machinery for disposing of such differences. Power, therefore,
is given to the President to set up an Inter-state council charged with the duty of enquiring
into and advising as to inter-State disputes, investigation subjects interesting to one or more
States or the Union or more States, and making recommendations in particular for the better
coordination of policy and action on any subject. On this subject the Joint Parliamentary
Committee in its report observed as below.'^^
"It is obvious that if departments or institutions of coordination and research are to be
maintained at the Centre in such matters as agriculture, forestry, irrigation, education and
public health, and if such institutions are to be able to rely on appropriations of public funds
sufficient to enable them to carry vn their work, the joint interest of the Provincial
Government in them must be expressed in some regular and recognised machinery of inter-
governmental consultation. Moreover, we think that it will be of vital importance to establish
some such machinery at the very outset of the working of the new Constitution, since it is
precisely at the moment that institutions of this kind may be in most danger of falling
between two stools through failing to enlist the active interest either of the Federal or the
Provincial Government, both of whom will have many other more immediate occupations."
The States Reorganisation Act, 1956 has set up five Zonal Councils, namely, the
Northern Zone council, the Council of the Central Zone, the Eastern Zone Council, the
Western Zone Council and the Council of Southern Zone. A sixth Council named as North
Eastern Council was set up under North Eastern Council Act, 1971. Each of these Council
consists of the Home Minister of the Government of India, Chief Ministers of-the member
States and two other ministers nominated by the Governor of the member States and two
other ministers nominated by the Governor of the States concerned. The Union Home
Minister is the ex office Chairman of each of these councils. In each council there are
included advisers from the Planning Commission and Chief Secretaries of the States
Governments concerned. It has a separate staff and a secretariat. Such councils have been
established for the promotion of collective approach and effort to solve common problems of
the member States. They are intended to foster inter-State concord and thereby to strengthen
the Centre and the States. They would work to promote cooperation, successful
implementation and execution of development projects and would also act as advisory bodies
23. Select committee of the House of Lords appointed to join with a committee of the House
of commons to consider the further Government of India, pp: 123, 124
 71
in mattes of common interest, particularly in respect of economic and social planning. They
would also provide a forum for settling border disputers and other problems relating to
linguistic minorities or inter-State transport, etc. By and large these Councils have been non-
functional, inter alia, for lack of initiative, absence of proper secretariat, shyness to discuss
controversial and sensitive issues, and one-party rule at the centre and most of the states. The
commission on center-state relations has recommended revamping of these councils by
removing their weakness and to activise them for the purpose of achieving the objectives in
Articles 263(C). Besides, the commission has also recommended the setting up of an Inter-
Government Council consisting of the Prime Ministers and all Union Cabinet Ministers for
the purpose of achieving the objectives laid down in clauses (a) and (b) of Article 263.^'* The
minority Janata Dal Government of V.P.Singh had implemented this recommendation. But
before any tangible results could be seen the Government itself fell.

24. For details commissions on centre-state relations report, 237-243 (Govt, of India, 1988).
For similar recommendation also see Administration Reforms Commission Report on
Centre Relationships, Ch: V, Para I, (Govt, of India, 1969).