INTRODUCTION:-

[1]“To what extent we have been successful in achieving the constitutional ideals is a question with a wide spectrum which needs an elaborate debate. Harking back to the question involved in this case, the Framers of the Constitution met and were engaged for months together with the formidable task of drafting the Constitution on the subject of Centre State relationship that would solve all the problems pertaining thereto and frame a system which would ensure for a long time to come. During the debates and deliberations, the issues that seemed to crop up at every point was the States’ rights vis-a-vis the Central rights. Some of tile members seem to have expressed their conflicting opinions and different reasoning and sentiments on every issue influenced and inspired by the political ideology to which they were wedded. The two spinal issues before the Constituent Assembly were (1) what powers were to be taken away from the States; and (2) how could a national supreme Government be formed without completely eviscerating the power of the State. Those favoring the formation of a strong Central Government insisted that the said Government should enjoy supreme power while others supporting States’ rights expostulated that view. The two sides took turns making their representations but finally realising that all might be lost, they reached a compromise that resolved the deadlock on the key issue and consequently the present form of Government, more federal in structure, came into being instead of a unitary Government. Established by the people of India for themselves for their own governance and not for the governance of individual States. Resultantly, the Constitution acts directly on the people by means of power communicated directly from the people.”

In regard to the Centre State relationship there are various reports suggesting certain recommendations for the smooth relationship of both the Governments without frequently coming into conflicts thereby creating constitutional crisis. The reports suggesting recommendations are that of (1) Administrative Reforms Commission 1969; (2) Rajmannar Committee 1969; and (3) Sarkaria Commission 1987.

It is the matter of record that all the sections of the Government of India Act 1935 have been adopted as the Articles of the Constitution of India and the said sections are live as the Articles of the Constitution of India in other words it can be said that the Articles of Our constitution are more or less modelled on the pattern of similar provisions contained in the Government of India Act, 1935. The Government of India Act 1935 during his existence has provided some important schemes to distribute the powers to make the laws between the Centre and the State.

The Government of India (GOI) Act of 1935 provided for a three-fold enumeration, viz,

1:-Federal: – Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the member-States may share in formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution of powers between them. Federalism, therefore, essentially implies demarcation of powers in a federal compact.

2:-Provincial and

3:-Concurrent.

The present Constitution of our country follows the scheme of the aforesaid act with a slight difference as in the aforesaid act “the residuary powers were given neither to the “Federal legislature” nor to the “Provincial legislature” but to the Governor-general of India. In this respect, India follows the Canadian precedent.

Our Constitution provides for a three-fold distribution of legislative subjects between the Union and the states, in the Seventh Schedule and the same are underlined herein under:-

List-I (which is known as the Union List),

List-II (recognised as the State List) and

List-III (established as the Concurrent List)

(i) The Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the Union List. This list has at present 98 subjects (originally 97 subjects as by 101st constitutional amendment Act 2016 92 and 92C are removed) like Defence, Banking, Foreign affairs, Currency, Atomic energy, Insurance, Communication, Inter-state Trade and Commerce, Census, Audit and so on.

(ii) The State legislature has “in normal circumstances” exclusive powers to make laws with respect to any of the matters enumerated in the State List. This has at present 59 subjects (originally 66 subjects as due to 101st constitution  amendment Act, 2016 52 and 55 have been removed) like Public order, Police, Public health and sanitation, Agriculture, Prisons, Local government, Fisheries, Markets, Theatres, Gambling and so on.

(iii) Both, the Parliament and state legislature can make laws with respect to any of the matters enumerated in the Concurrent List. This list has at present 52 subjects (originally 47 subjects) like Criminal law and procedure, Civil procedure, Marriage and Divorce, Population Control and Family planning, Electricity, Labour wel-fare, Economic and Social planning, Drugs, Newspapers, Books and Printing press, and others.

It is noteworthy to mention here that “The 42nd Amendment Act of 1976” transferred five subjects to Concurrent List from State List, that is, (a) Education, (b) Forests, (c) Weights and Measures, (d) Protection of wild animals and birds, and (e) Administration of justice i.e. constitution and organisation of all courts except the Supreme Court and the high courts.

The power to make laws with respect to residuary subjects (i.e., the matters which are not enumerated in any of the three lists) is vested in the Parliament. This residuary power of legislation includes the power to levy residuary taxes.  [2]The Hon’ble Supreme court observed that the “ power was pointed out, in that, under the Government of India Act, 1935, the residuary power was not given either to the Union Legislature or to the provincial legislatures, but under our Constitution, by virtue of Article 248, read with Entry 97 in List 1 of the Vllth Schedule, the residuary power has been conferred on the Union. This arrangement substantially differs from the scheme of distribution of powers in the United States of America where the residual powers are with the States.”

From the above scheme, it is clear that the matters of national importance and the matters which requires uniformity of legislation nationwide are included in the Union List.

The matters of regional and local importance and the matters which permits diversity of interest are specified in the State List.

The matters on which uniformity of legislation throughout the country is desirable but not essential are enumerated in the concurrent list. Thus, it permits diversity along with uniformity.

The duality of governmental organs on the Central and State levels reflect demarcation of functions in a manner as would ensure the sovereignty and integrity of our country. The experience of partition of the country and its aftermath had taught lessons which were too fresh to be forgotten by our Constitution makers. It was perhaps for that reason that our Founding Fathers thought that a strong Centre was essential to ward off separatist tendencies and consolidate the unity and integrity of the country.

PREDOMINANCE

The Constitution expressly secure the predominance of the Union List over the State List and the Concurrent List and that of the Concurrent List over the State List. Thus, in case of overlapping between the Union List and the State List, the former should prevail. In case of overlapping between the Union List and the Concurrent List, it is again the former which should prevail. Where there is a conflict between the Concurrent List and the State List, it is the former that should prevail.

In case of a conflict between the Central law and the state law on a subject enumerated in the Concurrent List, the Central law prevails over the state law. But, there is an exception. If the state law has been reserved for the consideration of the president and has received his assent, then the state law prevails in that state. But, it would still be competent for the Parliament to override such a law by subsequently making a law on the same matter.

The great statesman-philosopher Dr Radhakrishnan said “When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of Church and State.” (emphasis supplied) (Recovery of Faith, New York, Harper Brothers 1955, p. 202)

What are the provisions prescribed under Article 256 and 257?

The provisions which are mentioned under Article 256 and 257 are underlined herein under:-

Article 256 in the Constitution of India 1949

256. Obligation of States and the Union The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

Article 257 in the Constitution of India 1949

257. Control of the Union over States in certain cases.

(1) 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 directions to a State as may appear to the Government of India to be necessary for that purpose.

(2) 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 declared in the direction to be of national or military importance: Provided that nothing in this clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national 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.

(3) The executive power of the Union shall also extend to the giving of directions to a State as to the measures to be taken for the protection of the railways within the State.

(4) 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 Indian Constitution is both a legal and social document. It provides a machinery for the governance of the country. It also contains the ideals expected by the nation. The political machinery created by the Constitution is a means to the achieving of this ideal.

What are the factors, responsible for the implementation of the provisions prescribed under Article 256 and 257?

[3]If what was assumed to be proposed to be done, under the threat” of a constitutionally prescribed mode of executive action, could, in, no circumstances, be done under Article 356, we may be able to check a misuse or excess of constitutional power provided judicial control over all purported exercise of power of issuing proclamations, under Article 256, is not either impliedly or expressly barred even if a proposed action is plainly ultra vires’ But, if the views of the two Union Ministers state the constitutional position correctly, no question of in “abuse” or “misuse of powers’ for a collateral purpose or a “detournement de Pouvoir” or a fraud upon the Constitution” or “malice in face’ or “malice in law” (terms denoting different shades, of culpability and types of excess, of power), can arise on.

Articles 256 and 257 mention a wide range of subjects on which the Union Government may give executive directions to State Governments. Article 73(1) (a) of the Constitution tells us that the Executive power of the Union extends to all matters on which “parliament has power to make laws. “Article 248 of the Constitution vests exclusively in the Parliament residuary powers of making laws on any matter not enumerated in the Concurrent or State Lists.

Article 256 of the Constitution covers cases where’ the President may want to give directions in exercise of the executive power of the Union to a state Government in relation to a matter covered by an existing law made by  parliament which applies to that state. But, Article 257(1) imposes a wider obligation upon a state to exercise its powers in such a way as not to impede the exercise of executive power of the Union which, as would appear from Article 73 of the constitution r/w Article 248 may cover even a subject on which there is no existing law, but on which some legislation by parliament impossible.

[4] It is observed by the Supreme Court of India that “Articles 73, 256 and 257 are the relevant provisions. Article 73 relates to the extent of executive power of the Union, while Articles 256 and 257deal with obligation of States and the Union and the control of the Union over the States in certain cases respectively. Entry 57 of List II of 7th Schedule deals with taxes on motor vehicles. This is, however, subject to the provisions of Entry 35 of List III. This is not a case where the theory of occupied field can be made applicable. The Taxation Act essentially deals with fares charged from passengers and freight collected from them. On the contrary, the Act deals with levy on vehicles. They are conceptually different. Whatever has been stated above in the background of Article 73 is equally applicable to Articles 256 and 257 of the Constitution. Article 256 provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. This Article has application only when any law has been made by Parliament and the executive power of the State is made subservient to it by requiring it to ensure compliance with such laws. Where it appears to the Government of India that it is so necessary to do, directions can be issued. Article 257 provides that 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. Where the Government of India feels it so necessary to do so, it can issue a direction. At the cost of repetition it may be noted that there is no law specifying the principles of taxation on the subject matter of controversy so as to bring in application of either Article 256 or Article 257 of the Constitution.

[5]That Article 256 is almost a reproduction of Article 122 of the Government of India Act, 1935 only goes to show that the Constituent Assembly visualised a relationship between the Centre and the State to be of more or less at the same level as in pre-independence days. Similarly, we have Article 257 (1) of the Constitution empowering the Union government over States in certain cases. This Article which reads as “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 directions to a State as may appear to the Government of India to be necessary for that purpose” is again almost a direct take off from Article 126A of Government of India Act, 1935.

Central Government’s power of giving directions to the State operates at two levels. Firstly when a State fails to ensure compliance with a central law and at the second level when the State uses its own executive power so as to impede or prejudice the authority of the central government. As may be observed, the focal point of Article 256 is to ensure compliance with a central law, and if obstructed in such compliance, Article 257 (1) empowers the Centre to remove such an obstruction in that State.

FACTORS:-

1:- If the executive power of any State shall be so exercised as to impede or prejudice the exercise of the executive power of the Union;

2:- If the State does not justify the construction and maintenance of means of communication declared in the direction to be of national or military importance;

3:- If the State does not justify as to the measures to be taken for the protection of the railways within the State;

4:- If the state does not implement the law prescribed by the Union Government for the welfare of the country;

5:- If the states deliberately failed to maintain the law and Order.

CONCLUSION:-

The provisions as prescribed under Articles 256 and 257 are the special provisions which protect the federal structure of our country. These provisions provide the opportunities to the concerned State in order to follow the due process of law. There should not be any conflict between the Centre and the State Governments.

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[1] S.R. Bommai vs Union Of India 1994 AIR 1918, 1994 SCC (3) 1

[2] In Union of India v. H.S. Dhillon2 (SCC p. 789, para 15: AIR 1 (1964) 1 SCR 37 1: AIR 1963 SC 1241 2 (1971) 2 SCC 779: AIR 1972 SC 1061: (1972) 2 SCR 33

[3] State Of Rajasthan & Ors. Etc. Etc vs Union Of India 1977 AIR 1361, 1978 SCR (1) 1

[4] M/S Sharma Transport Rep.By Shri ... vs Government Of A.P. & Ors. Appeal (civil) 4998  of  2000

[5] https://www.thestatesman.com/opinion/when-centre-and-states-dont-see-eye-to-eye-1502851510.html