DISTRIBUTION OF LEGISLATIVE AND EXECUTIVE POWERS
Division of legislative powers proceeds on two lines:-
A). Territorial Extent of Union and State Legislation
It is not possible for state legislature to enlarge its territorial jurisdiction under any circumstances except when the boundaries of the state itself are widened by an Act of Parliament.
Parliament, on the other hand has the power to legislate for the whole or any part pf the Indian Territory [Article 245(4)]. It also possess the power of extraterritorial legislation which means that law made by Parliament will govern not only person and territory within the territory of India but also Indian subjects residents and their property situated anywhere in world.
Limitation to territorial jurisdiction of parliament :-
Subject to some special provision of the constitution:-
B).distribution of subjects
(1) DISTRIBUTION OF LEGISLATIVE SUBJECTS [Art. 246]
There are 3 lists in Schedule 7th of the constitution-
LIST I or UNION LIST- 99 subjects over which the Union shall have exclusive
power of legislation: These includes defence, foreign affairs, banking insurance,
currency and coinage, Union duties and taxes.
LIST II or STATE LIST-
61 items or entries over which the State legislature shall have exclusive power of legislation: These include public Order and police, local government, public health and sanitation, agriculture, forests, fisheries, state taxes and duties.
LIST III or CONCURRENT LIST –
52 items over which both has power of legislation such as criminal law and procedure, civil procedure marriage, contracts, torts, trusts, welfare of labour, economic and social planning and education.
In case of overlapping of a matter as between the three lists, predominance has been given to the Union legislature.
The power to legislate any matter not enumerated in the three lists- in the union legislature [Article 248] and the final power as to determine whether a particular matter falls under the residuary power or not is that of the Supreme Court.
EXPANSION OF UNION’S LEGISLATIVE POWER UNDER DIFFERENT CONDITION
1). Parliament shall have the power to make law with respect to any matter in State lists for temporary period if Rajya Sabha declares by a 2/3rd majority resolution, that it is necessary in national interest[ Article 249].
2). During Emergency Parliament shall have similar power to legislate on State subjects, which cease to have effect on the expiration of a period of 6 months after emergency cease to operate.
3). By agreement between states.
4) To enact legislation for carrying out its international obligation [Article 253]
eg. Governor Convention Act 1960, Anti Hijacking Act, 1982.
(2). DISTRIBUTION OF EXECUTIVE POWERS
Conversely, with the consent of union government, it is competent for state government to entrust any of its executive functions to the former [article 258A].
(3). DISTRIBUTION OF FINANCIAL POWERS
(i). DISTRIBUTION OF LEGISLATIVE POWER TO LEVY TAXES
Given under State and Union Legislative lists in Schedule VII.Thus, while the state has the power to levy estate duty on agricultural land, the power to levy estate duty in respect of non agricultural land belongs to union legislature.
The residuary powers as regards to taxation belong to parliament and gift tax and Expenditure tax have been held to derive their authority from this residuary power. There is no concurrent sphere in matter of taxation .In certain matters the state power is subject to certain restrictions. Thus-
(ii). DISTRIBUTION OF PROCEEDS OF TAXES
(a). TAXES BELONGING TO THE UNION EXCLUSIVELY
(b). TAXES BELONGING TO STATES EXCLUESIVELY
1). Land revenue
2). Stamp duty except in document included in union list.
3). Succession duty, state duty and income tax on agriculture land.
4). Taxes on passengers and goods carried on inland welfares.
5). Taxes on land, buildings, mineral rights.
6). Taxes on animals and boats or road vehicle, advertisement, consumption of electricity on luxuries and amusement etc.
7). Taxes on entry of goods into local area.
8). Sales tax
10). Fees on matters in list 2.
11). Taxes on Profession, trade etc, not exceeding rupees 2500 per annum.
(c). DUTIES LEVIED BY UNION BUT COLLECTED AND APPROPRIATED BY STATES [ARTICLE 268].
Stamp duties on bill of exchange etc. and excise duties on medicinal and toilet preparations containing alcohol through though are included in the union list and levied by the union.
(d). TAXES LEVIED AND COLLECTED BY UNION BUT ASSIGNED TO STATE [ARTICLE 269].
(e). TAXES LEVIED AND COLLECTED BY THE UNION AND DISTRIBUTION BETWEEN UNION AND THE STATES.
[Article 270] –Taxes on income other than on agricultural income.
Duties of excise, excepting medicinal and toilet preparation.[Article 272].
(f). NON –TAX REVENUE OF UNION
Receipts from Railways, post and Telegraph, Broadcasting, opium, currency and mint, PSU (IA, AI, SAIL)
(g). NON TAX REVENUE OF STATES
Forests, irrigation, commercial enterprises, industrial undertaking
GRANT IN AID
Constitution provides that grant in aid shall be made in each year by union to states in need of assistance, particularly for the promotion of welfare of tribal areas [Article 275].
SAFEGUARDING THE INTEREST OF THE STATE IN THE SHARED TAXES
Article 274 provides that no Bill or amendment, which shall be introduced in parliament except on the recommendation of the President which –
FINANCIAL CONTROL BY THE UNIION IN EMERGENCIES
BORROWING POWER OR THE UNION [Art.292] & THE STATES[Art 293]
The union shall have unlimited power of borrowing upon the security of CFI either within India or outside.
The borrowing power of a state is, however, subject to a number of constitutional limitations:-
INTER - STATE REALATIONS
In a federal state a unit would require its recognition by and cooperation of the units of federation. Therefore the units are required to observe in their treatment of each other. These rules and agencies relates to such matters as-
A). RECOGNITION OF PUBLIC ACTS, ETC:-
Since the jurisdiction of each state is confined to its own territory the acts and records of one state might have been refused to be recognized in another state. Therefore, Constitution provides that statutory instruments or judgements of order of one state shall be given recognition in another state in the same manner as the statute, etc,of the latter state itself.
B). EXTRAJUDICIAL SETTLEMENTS OF DISPUTES:-
In order to maintain the strength of the union it is essential that there should be adequate provision for judicial determination of disputes by extra – judicial bodies. Article 131 provides for the judicial determination of disputes between states by vesting the Supreme Court with exclusive jurisdiction in the matter, Article 262 provides for the adjudication of one class of such disputes by an extrajudicial tribunal, like in water disputes or any inter – state river dispute, parliament by law can exclude the jurisdiction of all courts including Supreme Court. Article 263 provides for the prevention of inter-state disputes by navigation and recommendation by an administrative body. Under it, the President can establish an inter-state councilfor enquiring into and advising upon inter-state disputes.
C). COORDINATION BETWEEN STATES:-
The power of President to set up interstate council may also be exercised for the purpose of investigation and discussing subjects in which some or all of the states or union and one or more states have a common interest. President has constituted e.g. Central Council for Health, Local self- Government.
ZONAL COUNCILS: - set up by an act of Parliament, five in number-
Central Zone:- comprising Uttaranchal, U.P, M,P, Chhattisgarh.
Eastern Zone:- comprising Bihar, Jharkhand,Orrisa,West Bengal.
Western Zone:- comprising Gujarat, Maharashtra,Goa,Daman and Diu, Dadra & Nagar Haveli.
North Zone:- comprising J&K ,H.P,Punjab, Haryana, Rajasthan, Delhi, Chandigarh.
South Zone: - comprising Andhra Pradesh, Tamilnadu, Karnatka, Derala, and Pondicherry.
Each council consists of CM and two other ministers of each States in the zone and administrator in case of UT. The union home minister has been nominated to be the common chairman of all the zonal councils. Zonal councils discuss matter of common concerns of the states and union territories of each zone such as of the economic and social planning, border disputes, interstate transport, matters arising out of the organization of states and to give advice to the government of states concerned as well as government of India.
RIVER BOARD:- the River board Act 1956 provides for the establishment of river boards for the purpose of advising the government interested in relation to the regulation or development of an interstate river.
WATER DISPUTES TRIBUNAL:- for an inter-state river dispute , where award would be final, according to Article 262(2).
D). FREEDOM OF INTER-STATE TRADE AND COMMERCE:- This freedom is sought to be secured b the provision Article 301 to Article 307 in part XIII of our Constitution. Subject to exceptions laid down in this part, no restriction can be imposed on the flow of trade, commerce and intercourse, not only points within the territory of India.
The limitations upon above freedom are:
Non- discriminatory taxes may be imposed by state on goods imposed from states or UTs, similarly as on interstate goods.