Administrative relationship between State and Centre | UPSC Law Optional Mains Notes





A. DISTRIBUTION OF EXECUTIVE POWER:


ROLE OF ADMINISTATION : Enforcing the law and promoting social-economic welfare of the people. The modern era has been characterized as the administrative age in which much depends on an effective administration.


HOW THE POWER IS DISTRIBUTED ?

1. Constitution allocates most of administration to the states ; only few agencies of national importance directly administered by the Centre.

Example : .defence, foreign affairs, railways, collection of taxes, regulation of foreign trade, foreign exchange and currency, centrally controlled industries, etc

HOW >   Many functions in the Central List are delegated to the States under Art. 258(1), or under legislation, and in some areas co-operation of State agencies is sought informally.


RESPONSIBILITY OF THE STATES :  

1. On the other hand, the States have responsibility to administer all the functions falling in List II.

2.  In addition, the administration of functions in the Concurrent List also belongs to them unless Parliament by passing a law confers power of administration in a particular matter on the Centre.

3. Further, the States also administer such functions in List I as are delegated to them.


REALITY:

1. EVEN CENTRAL LAW IS ENFORCED BY THE STATES : The law enforcement machinery, like the police, etc., wholly belongs to the States and, therefore, even if a Central law makes an activity penal, the efficacy of the law, by and large, depends almost wholly on the zeal with which the States seek to enforce it. It is not uncommon to see that many Central laws are diluted and remain mere paper legislation because of weak and indifferent administration by the States.


2. WEAK LINK OF CENTRE-STATES IS INDIAN FEDERALISM : Opinions have been expressed from time to time that too much dependence by the Centre on the States for purposes of administration is the weak link of the present-day Indian Federalism.


3. SUPERVISION IS REQUIRED  : It is also necessary to develop a Central mechanism for a close and effective Central supervision and inspection over an effective aided State activities.

· The performance of the States ought to be audited and watched closely by federal officers before releasing further grants to the States.  

· In the U.S.A., this mechanism is extensively adopted. At the same time, in view of the known inadequacies and deficiencies in the State administration, it is also necessary to strengthen the same so as to make it more efficient.


· WHY STATES SHOULD BE RESPONSIBLE  ? The States have to play a meaningful role as administrative entities because they are the nearest to the people, and much of the well-being of the people depends on effective State administration.


OTHERWISE TENSION WOULD ARISE : Tensions are bound to arise if there is a lack of balance between the responsibilities of the States and their administrative capacity.

· It is, therefore, necessary, even crucial, to devise ways and means to improve the effectiveness of administration at the State level. It is extremely necessary for the future well-being of the Nation that the States be in a position to discharge their role as robust administrative units.


COMPARATIVELY DETAILED THAN OTHER CONSTITUTIONS: The Indian Constitution contains more elaborate provisions regarding administrative relations between the Centre and the States than are to be found in any of the three Federations of the U.S.A., Canada and Australia.


1. HOW IS IT? Administrative responsibilities between the Centre and the States:

· is flexible and permissive, and not a rigid, scheme of allocation

· is so designed as to permit all kinds of co-operative administrative arrangements between the two levels of government.


LEGISLATIVE POWER = EXECUTIVE POWER : The general principle followed in this connection is that the executive power is coextensive with legislative power.


2. WHAT IS AN EXECUTIVE POWER ? Art. 73 or 162 does not contain any definition as to what the executive function is, or gives an exhaustive enumeration of the activities which could legitimately come within its scope.

· A government in exercise of its executive powers is charged with the duty and the responsibility of framing policies and carrying on the general administration. So long as it does not go against any constitutional provision or any law, the width and amplitude of its executive power cannot be circumscribed.


WHAT IF, THERE IS NO LAW/CONSTITUTIONAL PROVISION TO DELINEATE THE SCOPE : If there is no enactment covering a particular aspect, the government can carry on the administration by issuing administrative instructions until the legislature chooses to make a law in that behalf.  

EXAMPLE : Thus, a State Government can establish a bureau of investigation for investigation of cases of tax evasion, or create a new district, or prescribe syllabus or text books for schools, in the exercise of its executive power.

However, a government cannot in exercise of its executive power infringe the rights of the people. If any governmental action is to operate to the prejudice of any person, it must be supported by law


A. EXECUTIVE POWER OF THE CENTRE :

The scope and extent of the executive power of the Centre extends—

1) to the exercise of rights, authority and jurisdiction available to the Government of India under a treaty or agreement; and

2) to the matters with respect to which Parliament has power to make laws, subject to this exception, however, that it does not extend in a State with respect to matters regarding which the State Legislature also has power to make laws save when expressly provided in the Constitution or a law made by Parliament [Art. 73].

This means that the executive power with respect to the matters in the Concurrent List ordinarily remains with the States unless the Constitution or Parliament by law expressly provides otherwise.


A. EXECUTIVE POWER OF THE STATE :

1) A State’s executive power extends to its territory in respect of matters in List II.

2) In respect of matters in which both the Centre and the States have legislative powers (which means List III and List II in cases falling under Arts. 249, 250, 252, 353 and 356), ordinarily, the executive power rests with the States except when either the Constitution, or a law of Parliament, expressly confers it on the Centre.


ALTERNATIVES : If the Centre makes no law, the executive power rests with the States. When the Centre makes a law, it can adopt any of the following alternatives regarding executive power under that law

a) it can leave it with the States, or

b) it may take over the entire administrative power itself by making an express provision in the law to this effect; or

c)  it may create a concurrent area by taking a part of the executive power itself and leaving the rest to the States.

1. CENTRAL LAW – EXECUTION BY STATES:  In the Concurrent field, therefore, ordinarily the authority to execute laws rests with the States even when the law is passed by the Centre.


EXAMPLE :  Under the Electricity (Supply) Act, 1956, enacted by Parliament under entry 38, List III, administrative powers have been left wholly with the State Governments.


2. CENTRAL LAW WITH CENTRE ALONE (OR) SHARED WITH STATES : In exceptional cases, however, Parliament may prescribe that the execution of a Central law shall be with the Centre alone, or with both the Centre and the States.


EXAMPLE: Under the Forest (Conservation) Act, 1980, the Centre has assumed the entire responsibility for administration of the Act.


3. ALTHOUGH POWER VESTED WITH CENTRE, IMPLEMENTED BY STATES :In this field, even after the Centre assumes executive power under its law, the residuary executive power under the entry may still rest with the States.


EXAMPLE : Under the Essential Commodities Act, enacted by Parliament under entry 33, List III, the whole of the power is vested in the Central Government which, however, delegate power to the States to any extent it deems desirable. In actual practice, Centre has delegated a good deal of power under this Act to the States.


BUT WHY ?

· While there may be centralization in the sphere of legislation, there is lot of decentralisation in the area of administration. This is because the Centre has not established a separate machinery of its own to execute most of its laws.

Administration of a number of matters in the Union list and most of the matters relating to them, is secured through the machinery of the States.


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