THE UNION AND THE STATES

By C. V. HANUMANTHA RAO, M. A.

(Editor, Indian Republic)

When the esteemed Editor of Triveni asked me to contribute an article on the relations between the Union Centre and the State Units under our new Constitution, I agreed to do so, though I realised that there may not be much to say on the subject which had not already been said by many others. Our Constitution is, an elaborate and complicated document, and education of the public on its salient provisions cannot be said to be complete when only a theoretical exposition of the bases of those relations has been attempted. The progress of any country under a Constitution, even under a Constitution which is a written and rigid one, cannot in actual practice be hamstringed by constitutional provisions, however elaborately worded. Its practical working is bound to be influenced by various developments, which arise from time to time in the course of that working and which would help to clarify the wording of its provisions or impart some special significance to them. The interpretation of disputed points by the Supreme Court and the High Courts when references are made to them would help further to extend their meaning and import. A national emergency or an economic crisis may give a new complexion to the Centre-State relations and give them a new shape. These possibilities need not be ruled out; even a ready-made, rigid Constitution grows, or should grow, if it is to be an instrument for national progress, as the American Constitution has been growing. No constitution will be worth the paper on which it is written unless it contains within itself the seeds for self-growth or self-liberalisation, and after all any Constitution is made for the people and to subserve their needs and not vice versa.

Our Constitution can, on the whole, be described as being a Federal one, because its predominant characteristic is the division of powers between the Union and the States, though the separation of powers between the Legislature, the Executive and the Judiciary is not clear-cut as it is in some other Federal Constitutions. It has further been noted that our Constitution is a cross between the British and the American Constitutions. While we have a President, who is the Head of the State and in whom all authority in the State is theoretically concentrated, it does not provide for his direct election by the people, as under the American Constitution, nor can he function as the undisputed Executive Head. It provides on the other hand for the Cabinet system of Government of the British type. The President is elected by an indirect process, the members of the Union Parliament and the members of the Legislative Assemblies in the States sitting together, in accordance with the method of proportional representation by single transferable vote, and holds office for five years. He is not, like the American President, the sole authority to select his Cabinet nor does he directly govern the country. In the discharge of his day-to-day functions, he is merely the constitutional Head of the State, acting on the advice of a Council of Ministers, of which the leader and head is Prime Minister, who is the person commanding the largest measure of support in Parliament. But at the same time, there are vested in him certain emergency powers which he exercises in his discretion. Those powers are theoretically so wide that he can apparently transform himself into a virtual autocrat. But then the Constitution provides that the period for which any proclamation of an emergency made by him shall be in force will not be more than two months. During the pendency of the Proclamation, Parliament can enact legislation even in respect of subjects in the States List, and he can issue directions to any State in regard to the manner in which the Executive power is to be exercised. As a measure of the principle inherent in it, it may also be mentioned that in the discharge of its obligation for national Defence the Union is charged with the duty of protecting the States against external aggression and internal disturbances and the Executive authority of the Union extends over all the Union territory in this respect. Despite all this, for any deliberate misuse of his power involving a violation of the Constitution, the President can be impeached by Parliament in the same way as the U.S. President can be. Since in his election, members of the State legislatures have a direct part, his position vis-a-vis the Union Ministry is one of peculiar importance. But that does not affect the constitutional position of the Union Ministry of the day, as the repository of Executive authority.

Based as it is on the Federal principle, the legislative powers under the new Constitution are divided between the Union and the State Legislatures. The Union List consisting of 97 items, among which are Defence, Foreign Affairs, Communications, Currency and Exchange, Citizenship, Atomic Energy and others which are generally of common concern to the whole country. Parliament’s legislative authority is supreme and unquestionable in respect of the items in the Union List. The Constitution also contains a State List of 66 items, among which are included many of the subjects which have traditionally been classed under the term “nation-building” subjects, in respect of which the State Legislatures are the legislative authority. Besides these two lists, there is also a Concurrent List of 47 subjects, in regard to which both Parliament and the State Legislature have jurisdiction to make laws.

As was only natural in the context, in regard to the last mentioned list, a law passed by Parliament will have precedence over the law by the State Legislature, for, if there is a State and also a Federal law on the same subject, the latter will prevail and the former will become repugnant to the extent that it is opposed to the Federal law. At the same time the Federal ideal is also enshrined, and preserved in the provision which lays down that if two States together request the Union Government to legislate on any particular subject included in the States List, Parliament can pass a law on that subject, which would become applicable not only to those States but to any other State also if the Government of the latter so desire. A contrary process is also envisaged by which a State law on a concurrent subject will take precedence over a subsequent Federal law on the same subject, if the State Government have reserved it for the signification of the President’s assent and if the latter signified his assent to it. The conclusion which these provisions point to are: (1) that Parliament’s legislative authority extends throughout the Union in respect of the list of Union subjects; (2) that in regard to any subject in the concurrent List, laws passed by the Union Parliament have invariably priority over laws passed by the State Legislatures except in prescribed exceptions; and that (3) even in regard to the subjects in the State List. Parliament has the right to legislate, if a request is made to that effect by two States. The general tendency of the Constitution to bring into existence a strong Central authority which could override State rights in some emergencies is reflected in their legislative as much as in the Executive sphere.

Further evidence of this proneness to establish a strong Centre is contained in the provision that in respect of any matters not specifically incorporated in any of the three lists of legislative subjects, the right of legislation, vests in the Union. In other words the residuary power under our Constitution rests, as in the Canadian Constitution in the Centre. In actual practice, when the State and the Union Lists are fairly exhaustive and comprehensive, it is of little consequence where technically the residuary power rests. The fact that the Constitution-framers had displayed a predilection to make the Union Parliament the residuary in respect of legislative authority, is an indication that they were determined deliberately to reverse the decentralisation process and the principle of provincial autonomy, which was the cardinal characteristic of the Montagu-Chelmsford Act of 1919 and more so of the Government of India Act of 1935. This reversal is not a fortuitous circumstance, it is a deliberate matter of policy, intended to circumvent the danger of centrifugal forces that were dominating our political life prior to Angust 1947, asserting themselves. It is also of interest to note here that the Union of India is intended to be an indissoluble union, and the States have no right of secession.

While Parliament’s legislative supremacy is undisputed in respect of those items which are included in the Union List, the President shares with it its functions, in that he is vested with authority to promulgate Ordinances which have the effect of law. This power is exercisable only when Parliament is not in session and when an emergency calls for urgent action. An Ordinance issued by the President will have to be placed before Parliament, as soon as possible, for approval. In any case it ceases to operate at the end of six weeks from the date of meeting of Parliament, or earlier if the two Houses so determine. The Ordinance-making powers of the President do not hamstring to any real extent the principle of Parliamentary supremacy; they are intended solely to cover an admittedly extraordinary situation.

The division between the spheres of the Union and State legislatures in respect of legislation does not in practice mean a complete and clear-cut division of legislative functions between the State and the Federal Governments, as in the American Constitution. We have already seen that a connecting bridge between them is provided by the Concurrent List in regard to which both the Union and State legislatures can make laws. Thus we have Central measures of legislation, such as the Preventive Detention Act, the Industrial Finance Corporation Bill, the Road Transport legislation, the proposed measure to abolish and penalise untouchability and so on, though some of these subjects are included in the States List.

What has been said on the division of legislative power is significant as a revelation of the tendency in our Constitution to combine the Federal and Unitary principles. The fact that the State Units’ autonomy is subject to the basic consideration that national interests will be paramount, is underlined by the powers vesting in the President pertaining to the proclamation of an emergency and preventing a breakdown of the Constitution. These emergency powers, which apparently give the President unlimited control over the administration of the States, need not, however, be regarded as either normal or as intended to justify wanton encroachment into the States’ sphere. An emergency is not something intangible, and a Proclamation about its existence or of a breakdown of the Constitution in any State cannot be made unless certain conditions and elements are present. Thus no President would be inclined to make use of them unless there is a clear, prima facie justification for it, such as a grave, nationwide economic crisis, or the imminent outbreak of war, or danger of widespread famine. Once a proclamation of an emergency is issued it cannot be in operation for more than six months, though at the end of that period it can be extended by an Act of Parliament for a further period.

The “breakdown” provisions on the other hand can be set in motion only on the recommendation of the Governor of the State concerned. This involves an even more serious responsibility than the proclamation of an emergency, because it results in a complete suspension of the constitutional channels of legislation and enables the President to carry on the administration on his own responsibility, as the abolition of the Legislature is inter-related to and means the abolition of the Ministry also. As a proclamation, of a breakdown is a serious matter, it imposes a correspondingly greater responsibility on the President to act cautiously and with the utmost circumspection before taking a decision. It is only a President who is autocratic-minded that can throw all caution to the winds. The spirit of the Constitution would have to be accorded the greatest possible consideration in this respect, and it is the essence of that spirit that these provisions can be resorted to only when there is a clear threat that the administrative machinery of the State is collapsing completely. The fundamental point to remember is that what is constitutionally valid may not always be legally sound or politically expedient. The President, who attempts to resort to any of his emergency powers without the backing of his own Ministry or the legislature in the state will be committing a constitutional and political blunder. He will lay himself open to impeachment.

The inter-dependence between the Centre and the States is in no other respect more patently and strikingly evident than in that of financial relations. The division of financial resources between the two parts of the Union has been so devised that the Centre would collect most of the direct taxes and distribute their proceeds, either wholly or in part, to the States. The Centre is thus in a position to exercise an effective control over the functioning of the States, which depend to a large extent on the financial allocations from tax proceeds and the other grants-in-aid and loans that the former makes. Direct taxes like the Income-tax, Death Duties, Export Duties and some Excise Duties are among the most important income yielding resources which are leviable by the Centre. Besides, for various other purposes, such as the grow-more-food campaign at present, educational expansion, agricultural and industrial research and construction of irrigational and hydro-electric projects, road development and so on, the States will be indebted to the Centre for assistance rendered. This inter-dependence is a definite advantage in the sense that nation-building, prosperity-promoting activities that are undertaken by the States as an integral part of their constitutional responsibilities would be assured of a continuity and adequacy of financial support. At the same time, by reason of the fact that Central supervision and control over the development works executed by the States is thereby ensured, uniformity in the progress of the Units will be facilitated. The importance of uniform economic progress and development throughout the Union is so patent as to be undeniable; and in a country wherein considerable diversity in conditions exists, due to historical, geographical and other causes, it can be promoted only by the kind of supervisory control that can be exercised by a benevolent Centre. It is also beneficial in the sense that in respect of the levy of a tax like the Sales-tax, for instance, uniformity in the methods of its levy and administration and avoidance of the danger of its proving an impediment to free inter-State commerce, will be practicable only by such Central action under the constitutional provisions. It may be mentioned here that trade, commerce and economic intercourse among the various Units of the Federation are to be free, subject only to such restriction as may be imposed by Parliament and the State legislatures.

The Constitution provides for the appointment by the President of a Finance Commission, which will be representative of both the Central and State Governments, and which will review from time to time the financial relations and the allocation of financial resources between the two sets of Governments. The appointment of a commission of this character is of paramount significance, because of the principle it enshrines of their inter-relationship in a matter in which close partnership between them is essential. In the same way as, for administrative convenience, territorial division is rendered necessary, financial requirements call for as much integration as possible.

The dependence of State Governments on the Union Government for financial allocations and grants may seem a detraction from the autonomy of the former. But circumstanced and conditioned as we are in this country. What the Constitution provides for is the best arrangement and the most beneficial. In any case, there cannot be political and administrative interdependence between the Union Government and the States and financial independence of the one from the other. It is both unthinkable and impracticable, though a warning is admittedly necessary that it would not conduce to administrative efficiency the Central Government were to utilise the financial provisions of the Constitution to convert the States into glorified District Boards, dependent on it for the wherewithal to carry through nation-building activities. This is not by any means the intention of the Constitution framers.

In the judicial sphere, the relations between the Centre and the States are again very close. The Supreme Court is the highest judicial body in the Union, and it is a Court of Appeal from the High Courts in the States as well as a defender of the constitutional rights of either Government and of the Fundamental Rights of the citizens and an interpreter of the Constitution. The judges of the Supreme Court as well as of the High Courts are appointed by the President, the only difference being that, in the appointment of Supreme Court Judges, he should consult the Chief Justices of the Supreme Court, and of the High Courts, as he deems necessary. The Supreme Court, by virtue of its all-India jurisdiction, will naturally have a great say in the preservation, and even extension, through its powers of interpretation, of the constitutional and fundamental rights of the citizens. It can be a powerful deterrent to any state or the Central Government committing an unconstitutional act or acting in contravention of the Constitutional provisions, and as between the Centre and the States and between the States inter se, it can settle constitutional, jurisdictional and other disputes. It can thus cement the solidarity and bring about co-ordination between the two Governments, provided it builds up high traditions as the Supreme Courts in other Federal Unions have done. The Supreme Court has also an advisory function in that the President may refer to it any question of law or fact which he considers to be of sufficient public importance to make it expedient to obtain the opinion of the Supreme Court thereon.

In the sphere of administration, as in others, the tendency to unitariness and integration is perceptibly evident in the Constitution. In respect of important common subjects on which the Union Government can legislate, that Government has its own administrative machinery which functions throughout the Union territory. Thus Income-tax, Central Excise, Posts and Telegraphs, Customs, Railways and Central Public Works, are all administered by the Union Government directly through its own officials. But in a number of other subjects, such as, for instance, the enforcement of economic policies which affect the lives of the people intimately, implementation of labour legislation, and especially in respect of legislation bearing on the Concurrent subjects, the Union Government inevitably has to depend on the administrative machinery in the States. The Central Government can issue necessary directives to the States Governments to produce that result, and the latter have to carry out those directives. In practice, this ensures smoothness in administration and also economy in expenditure of public revenues and further promotes co-ordination between the Centre and the States. This last-mentioned factor is of the utmost significance, since co-ordination between the two Governments in respect of policies on all-India matters and their execution is essential for stable and sustained progress and is in the interests of uniformity.

Additionally, as has been pointed out already, during a period of emergency or in case of a threat of breakdown of the Constitution in any State, leading to the assumption of Executive authority in the State concerned by the Union President, the Union Government’s writ will automatically run throughout the State or the States affected. In such circumstances the Executive officials of the State will function directly under the orders of the President, though this will undoubtedly be limited to the currency of the state of emergency. What it however, serves to emphasise is that the administrative spheres of the Union and the States do overlap and that our Constitution contemplates that in certain circumstances, and in particular when vital national interests are at stake, there should be no irreconcilable conflict of jurisdiction or division of loyalties impeding co-ordinated direction and action. Every Unit is specifically called upon to exercise its Executive power “to ensure compliance with the laws made by Parliament.” So long as this provision and other Central powers are not exploited to the detriment of the Units, they are a sign of healthy centralisation and should be welcomed. It is a world-wide trend and is clearly envisageable in the U.S.A., Australian and other Constitutions, and is, therefore, not peculiar to India. We have only accorded recognition to a tendency which is recognised as inevitable.

The survey of the relations between the Units and the Centre under India’s new Constitution leads irresistibly to the conclusion that there has been a definite reversal of the process of provincial autonomy which was becoming progressively more pronounced between the Minto-Morley Reforms of 1909 and the Government of India Act of 1935. It was a reaction fundamentally against the fissiparous and disintegrating tendencies that the Muslim League agitation had set in motion. It is, however, not a tendency which we need deplore. It represents an imperative need of the hour; it is a concession to historical facts; and it is a reflection of the political experience which the working of other Federal Constitutions in the world teaches us. A cardinal element of that experience is the imparting of increasingly greater strength to the Federal Government’s elbows. The whole arrangement of the relations between the Centre and the Units under the Constitution is based on political convenience and on the geographical, historical and physiographical conditions obtaining in the country; and it will be found on close examination that the whole structure represents an integrated whole, in which each part has a place of its own. The requirements of national Defence, national security, the complicated economic problems of grave national import and the need for uniformity in labour legislation and other factors have given a fillip to this tendency in other countries. If we have accorded recognition to it in the Constitution, it is an indication of the fact that our Constitution-framers have learnt the lessons or history and have successfully circumvented the need for experimenting with the trial and error method. While structurally, India’s Constitution is a Federation, it can be made to function in cases of emergency as a unitary one, all authority emanating from a central source. On the whole this constitutes the strongest point in its favour.

Admittedly too much centralisation of political authority in a Central Government, whose territorial jurisdiction extends over a vast country like India with its diverse local problems and diversities in progress, language, manners and customs, has its own disadvantages. We cannot overlook the fact that such a process can destroy local initiative and impede the speedy implementation of administrative policies which directly benefit the common man, apart from such nationally important activities as Defence, Communications and Foreign Policy. One potent evil that emerges out of this aggravating tendency to centralisation and against which a note of warning must be struck is what is known as delegated legislation, which amounts to vesting the permanent bureaucracy with power to manipulate parliamentary legislation to public detriment under the rule-making powers implicit in such legislation. On the other hand, as a set-off against these disadvantages, must be placed the benefits of centralised executive and administrative responsibilities, about which mention has been made in the above paragraphs. As I pointed out at the outset, time and circumstance will play a large part in bringing about an adjustment and striking a balance between Union and State powers, and constitutional amendments are not debarred in order to promote desirable modifications therein. As things stand at present what our Constitution-makers have achieved is a striking demonstration of their appreciation of the needs of our country in the critical times through which we are passing. Everything in the direction of promoting the kind of desirable and essential changes referred to in response to the time-spirit will depend hereafter on the vigour and energy with which our national democracy will function in the years to come.

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