The mutual delegation of administrative power
Co-Operative Federalism And The Mutual Delegation Of Administrative Power Between The Centre And The States
The framers of the Constitution of India envisaged a federal system of governance for India. Though, a controversy still persists regarding whether the nation is a ‘federal government' in the true sense of the term. A federal Constitution involves a division of legislative powers between the Union and the states, each being absolute and autonomous in its own sphere. This distribution is made on the principle of granting powers to the Union in matters of national importance, or in matters where uniformity of laws throughout the Union is considered desirable, and of granting powers to the states in matters which concern the states, or may described as principally of local interest. This distribution of powers is one of the primary, and possibly the most important, feature of a typical federal Constitution.
In the Indian Constitution the three lists that exist are comprehensive in their scope, and provide for the spheres of influence of the states and the Centre. Despite the fact that the areas of competence of the Union and the states have been earmarked, these divisions are not water-tight compartments. As these governments work parallel to each other in the same nation territory, it is natural that many types of relationships arise amongst them and several instrumentalities to promote intergovernmental co-operation come into existence. In the three older federations, namely U.S.A., Canada and Australia, the dominant concept in the formative stages was that of ‘competitive federalism' which believes in competition between the Centre and the states as the means of optimising efficacy and development. With the passage of time, however, the concept of ‘competitive federalism' slowly gave way to ‘co-operative federalism'. The theory of co-operative federalism suggests that the connection between the Centre and the states is one in which governmental activities are undertaken jointly by the federal and the states, including local agencies, rather than exclusively by one or the other.
It has come to be realised that as the various units of governance in a federation such as India are dependent on each other, they should not act at cross-purposes but in co-ordination so as to promote and maximise the public welfare.
This discussion so far helps us establish that, though our Constitution was based on the principle of separation of powers, it was recognised by the framers of the Constitution that there was no rigid separation of powers and also that there exists a need for co-ordination between the units of governance for optimal development and welfare. This being the theoretical basis and rationale, the framers of the Constitution provided several provisions wherein there is delegation of powers between the centre and the state.
This project aims at understanding the theory of co-operative federalism and how it exists in the Indian federal system. It will then analyse mutual delegation of administrative powers between the Centre and the states and aim to understand whether these provisions fall within the ambit of a co-operative federal structure or are inimical to India's claim of being a federal state.
Co-Operative Federalism In India
There has been a practical and ideological shift from ‘competitive federalism' to ‘co-operative federalism', as discussed earlier. This shift has been primarily caused by the recognition of the Centre's and states' mutual dependence. In situations such as external aggression or war, where concerns of national security take precedence, it is felt that co-operation between Union and state governments is the only way to tackle the problem expeditiously and efficiently. Also, the emergence of the concept of a social welfare state in response to public demand for various social services, involving huge outlays which could not be met by the states by their own resources, created the need for co-operative federalism for maximum mutual benefit. The concept of ‘co-operative federalism' helps the federal system, with its divided jurisdiction, to act in unison. It minimises friction and promotes co-operation among various constituent governments of the federal union so that they can pool their resources to achieve certain desired national goals.
Illustrations to the fact that the Indian Constitution envisions a certain co-operative federal structure can be found in the Constitution itself. The scheme of financial relations between the Centre and the states, the provisions for the Centre to legislate on matters of the states on the request of two or more states, grant-in-aid under Art. 282, the set-up of Centre-state administrative relationships, the establishment of the all-India services etc. are indicative of the fact that these provisions have been provided to create co-operation in an otherwise rigid federal system.
A prominent example of Centre-state co-operation is the case of Jaora Sugar Mills v Madhya Pradesh. In this case, the respondents enacted the Madhya Pradesh Sugarcane Act, 1958 which made a sugarcane cess payable as prescribed under it. The act was later found to be invalid as the legislative competence for the same rests with the Centre under the Union list. The Parliament, however, realized that this along with several other state acts suffered from the same Constitutional inconsistency following which they were passed and received Presidential consent. The appellants challenged the constitutional validity of such an act arguing that it was a piece of ‘colourable legislation'. The Supreme Court, though, held that though the intention behind the act may be questioned, yet, it was a constitutionally valid measure.
Besides constitutional provisions for co-operation between Centre and states there may also exist informal co-operation or consultation between the two Governments or their public officials by way of exchange of views or advice, which may or may not result in any formal agreement or the setting up of any joint agency.Informal co-operation takes place through a number of extra-constitutional bodies, such as the Planning Commission, the National Development Council, the Zonal Councils etc.
As an illustration of co-operative federalism in India the planning process, which necessitates co-operation between the Centre and the states, shall be analysed in some detail. Post-Independence, India was plagued with the problems of under-development, poverty, rapidly increasing population etc. In such light, planning became one of the foremost concerns of the Centre as well as the states. On one hand there were limited resources and increasing requirements and on the other hand there was no hierarchy or line of command because of a federal structure. This made it increasingly necessary to have inter-governmental co-operation in the planning process. Besides the practical requirements of such a co-operative structure, the Constitution also implicitly envisioned such a relationship between the Centre and the states. Several areas of jurisdiction such as labour, social security and social insurance relief, rehabilitation of displaced people etc. have been placed in the Concurrent List. “Economic and Social Planning” was placed as entry 20 of the Concurrent List which is clearly indicative of the fact that it was in the jurisdiction and the responsibility of the Centre and the states. The National Development Council, established in 1952, consists of the Prime Minister, the State Chief Ministers, representatives of Union Territories and members of the Planning Commission. To achieve any of the goals set forth by the Commission, it is necessary that there exists co-ordination as well as co-operation between the Centre and the states.
In view of the analysis so far, it can be safely concluded that the Indian federal structure is not based on rigid division of powers but also internalises a need for co-operation between the various units of governance. This co-operative federalist structure can be seen to exist in Constitutional as well as non-Constitutional spheres of administration, governance, distribution of powers, planning etc.
Mutual Delegation Of Administrative Powers
The Indian Constitution distributes between the Union and the states not only legislative power but also the executive power, more or less n the same lines. The result is that it is not competent for the state to exercise administrative power with respect to Union or for the Union to take up administration of any state function, unless the same has been authorised by the Constitution.In administrative matters, a rigid division like this might lead to occasional deadlocks. Keeping this in mind, the framers of the Constitution took a position which was leaning towards co-operative federalism and enabled the Union as well as the state to make a mutual delegation of their respective administrative functions. The Constitution makers did not envision that there should be separate institutions enforcing legislations of the Centre and the states. Especially in matters under the concurrent list, the enforcement of laws enacted by the centre would be extremely problematic in the absence of co-ordination with the state administration.So what would happen if the laws of the Centre and state were to conflict? In the case of Subramanyan Chettiar v Muthuswami Goundan, Gwyer C.J. commented that “an absurd situation would result, if two inconsistent laws, each of equal validity, could exist side by side”. If the only safe-guard in place, in a situation where the law of the state and Centre conflicted, were that the Union would stand supreme then in effect it would be detrimental to federalism and the legislative powers conferred upon the states would be unduly restricted. Hence, the Constitution creates provisions such as those obviating execution of Central laws through state machinery which are not only consistent with the position of ‘co-operative federalism' but are also economical and forward national integration. Inter-governmental delegation may happen either under an agreement between the governments or by legislation. While the Union can use either of the powers, the state can only use the former to delegate administrative powers to the centre.
Centre Delegating Powers To The State
In most practical situations the Centre requires powers vis-a-vis the state when the co-operation of the state administrative process is required to effectuate a passed legislation. The Constitution has provided the Centre with drastic powers to enable compliance of recalcitrant states under Art. 365. This, in substance, empowers the Union Executive to proclaim an emergency arising on the failure of constitutional machinery in such state and bring into play all powers that the Union Executive has under Art.365 on the proclamation of such emergency. Besides this, if a recalcitrant state refuses to perform its obligation in respect of the exercise of State executive power, as required by Art.256 and 257 of the Constitution, the Union Parliament can step-in and compel the State executive to act in the manner required by Art.256 and 257. But keeping in mind that the framers of the Constitution envisioned a federal structure where the states are not wholly subservient and these provisions are meant for drastic situations, the question at hand is that: does the union executive have any less extreme remedy which it can adopt to make the states comply?
One may, in this connection turn to Art258 of the Indian Constitution. It provides that, “notwithstanding anything in the Constitution”, the President may, with the consent of the state government, entrust either conditionally or unconditionally, to the state government, or its officers, any function in relation to matters to which the Centre's powers extend.
The extent of this provision can be understood in the case of Jayantlal Amratlal v F. N. Rana.The Supreme Court highlighted the distinction between the functions vested in the President in his capacity as President on behalf of the Union and the functions vested in President in his capacity as President by the express provisions of the Constitution. The Presidents power of delegation is restricted to the first category of powers alone. Additionally, Art.258(2) also covers those situations where under a law made by Parliament, powers can be conferred and duties imposed on a state government, or its officers even though the state legislature has no power to make a law with respect to the subject-matter of the Union law.
Besides the powers vested in the Centre through Art.258, the Union may also delegate powers to the state through legislation, as has been made possible under Art. 154(2)(b). The element of state consent as required under Art.258 is absent from this provision. This provision finds larger application as under Art. 258 the Parliament has to act within its own jurisdiction whereas under Art. 154(2)(b) it can additionally delegate quasi-judicial and quasi-legislative powers for effective execution of a union law.
In the case of D. K. Trivedi v State of Biharthe Union had taken control of regulation of mines and development of all minerals. The state was delegated with rule-making powers for the task of regulating minor minerals. The Supreme Court held that as jurisdiction of mines and minerals is under the jurisdiction of the Union and the states under List I and II respectively, the Union legislation would stand. Also, they upheld the delegation of said power to the state as being constitutionally consistent with Art.154(2)(b).
State Conferring Powers To The Centre
The states can delegate administrative powers to the Centre under Art.258A of the Indian Constitution. This article was inserted by the Seventh Amendment Act, 1956 because of the absence of any provision enabling the states to entrust its functions to the Centre. According to the provisions of the article, a state government may with the consent of the Government of India, entrust either conditionally or unconditionally to the Central Government or to its officers, functions in relation to any matter to which the executive power of the state extends.
In the case of N. B. Singh v Duryodhanthe appellant entered into a contract with the Union (President of India) in an independent contract for the construction of the Hirakud Dam where the Centre was entering into the contract on behalf of the State of Orissa as per the powers under Art.258A. The High Court of Orissa observed that the relationship arising by virtue of Art.258A between the centre and the state cannot be said to pertain to the law of agency but is only a constitutional statutory entrustment in relation to the exercise of the executive power which is a sovereign power. And by virtue of this executive power of the Union, the President through an authorised officer entered into a contract with the appellant with regard to the digging of the canal. As such even if the Hirakud Dam Project was held to be undertaken by the Government of Orissa, yet the work regarding which the contract was entered into was one of the works of the construction project undertaken by the Union Government by virtue of the entrustment of the function in relation to the Hirakud Dam Project to the Government of the Union.
In this project, firstly, an attempt was made to understand ‘competitive federalism' and its difference from ‘co-operative federalism' whilst evaluating the benefits accrued through the latter. Next, an analysis was made to understand to what extent the Indian Constitution and other non-constitutional structures are based on such co-operative structure. Subsequently, a detailed understanding of mutual delegation of administrative powers between the Centre and the states, which is considered to be a pillar in the Indian co-operative federalist structure, was put forward.
Lastly, an attempt will be made to view co-operative federalism in India through the lens of mutual delegation of administrative powers between the Centre and the state.
At the starting of this project an academic question was raised regarding whether the Indian Constitution can be characterised as being “federal”. Constitutional provisions such as limited taxation rights of the state or pre-eminence of the Union law in case of conflict between the Union and state law suggest that in fact India is not a federal state in the strict meaning of the word. A similar question may also now be raised regarding the “co-operative federal” structure. If one were to evaluate this keeping in view only the Constitutional provisions for mutual delegation of administrative powers, we would get evidence for the existence of ‘co-operative federalism' in Art.248(1) and 248A. But there also exist clear features of a unitary, hierarchical system in the limited powers of the states and the potentially coercive powers of the Centre.
According to Halsbury's Laws of India,
“The present stage in India may be described as ‘organic federalism'... where the India federalism in its working has moved away from the theoretical framework of co-operative federalism towards an organic federalism, to be placed towards unitary end of the federal spectrum.”
List Of Cases
D. K. Trivedi v State of Bihar, (1986) Supp SCC 20
Jaora Sugar Mills v Madhya Pradesh, AIR 1956 SC 416
Jayantlal Amratlal v F. N. Rana, (1964) 5 S.C.R. 294
N. B. Singh v Duryodhan, AIR 1959 Ori 48
Subramanyan Chettiar v Muthuswami Goundan, (1940) F.C.R
List Of Statutes
The Constitution of India, 1950
Dr D D Basu, Comparitive Federalism, Second ed, 2008
H M Seervai, Constitutional Law of India, vol 1, Fourth ed, 2002
Halsbury's Laws of India, Constitutional Law-I, vol 34
M C Setalvad, Union and State Relations Under the Indian Constitution, 1974
M P Jain, Indian Constitutional Law, vol 1, Fifth ed, 2003
Ekank Mehra, Delegation of Powers and its Limitations, available at http://www.lawyersclubindia.com/articles/Delegation-of-Power-and-its-Limitations-/1569/
Harry N Schieber, Cooperative Federalism, available at http://www.novelguide.com/a/discover/eamc_02/eamc_02_00628.html