State Government & Administration - 1 - UPSC PDF Download

Introduction

• The first article of the Indian Constitution states, "India, that is 'Bharat', shall be a Union of states." Unlike the US Constitution, which uses the term "federation," the Indian Constitution establishes a unique structure that combines federal and unitary features. This results in a quasi-federal polity, also referred to as "cooperative federalism" by Granville Austin, due to the need for close cooperation between the Union government and the state governments.
• In this system, there are two tiers of governance: one at the central or Union level and the other at the state level. The powers and functions of the Union and state governments are specified in the Constitution, and each operates independently within their respective spheres. However, there is an area of overlapping responsibility, and certain powers of superintendence exist.
• The Indian Constitution incorporates elements of a federation, such as dual government, distribution of powers between federal and state governments, supremacy of the Constitution, and the final authority of courts to interpret the Constitution. However, it also includes unitary features like a unified judicial system, integrated machinery for election, accounts and audit, the power of the Union government to oversee state governments during emergencies and to some extent in normal times, and single citizenship.
• The purpose of this discussion is not to delve deeply into the nature of the Indian Federation but to provide context for the study of state administration. It is important to recognize that the Constitution outlines a two-tier structure of governance with distinct functions assigned to both the Union and state governments, and the state administration is organized to perform these functions accordingly.

Powers of the State Governments

• The powers of the Union government and state governments in India are derived directly from the Constitution, which establishes a three-fold distribution of legislative powers between the Union and the states, as outlined in Article 246. This division of powers is detailed in Schedule VII of the Constitution, which consists of three lists: the Union List, the State List, and the Concurrent List.
• The Union List (List I) includes subjects over which the Union government has exclusive powers of legislation, meaning that only the Union government can make laws on these matters. Conversely, the State List (List II) includes subjects on which the state governments have exclusive powers of legislation, allowing them to make laws on these issues without intervention from the Union government.
• Additionally, there is a third list, known as the Concurrent List (List III), which contains subjects on which both the Union and state governments have the authority to legislate. This means that both levels of government can create laws on these matters, allowing for cooperation and shared responsibility between the Union and state governments.
• Finally, any powers not explicitly mentioned in the Constitution are considered residual powers, which are vested in the Union government. This further emphasizes the importance of the Constitution in determining the distribution of legislative powers between the Union and state governments in India.

State List

The State List comprises 61 items over which states have exclusive jurisdiction. Some of the important ones are - Public Order and Police, Agriculture, Forests, Fisheries, Public Health, Local Government, etc. These are subjects of maximum concern to the people which can be better dealt with at the state level. Thesp subjects are generally under the exclusive jurisdiction of the states, but under the following circumstances, the Parliament can legislate on these matters.

• In national interest, Council of States by a resolution of 2/3rd of its members present and voting may authorise the Parliament to legislate on a state subject. Such authorisation may be for one year at a time, but can be renewed by a fresh resolution;
• Under a proclamation of emergency, the Parliament may legislate on a state subject;
• With the consent of two or more states, the Parliament may legislate on a state subject with respect to the consenting states;
• Parliament has powers to legislate with reference to any subject (including a state subject) for the purpose of implementing treaties or international agreements and conventions; and
• When a proclamation is issued by the President on the failure of Constitutional machinery in any state, he may declare that the powers of the state legislature shall be exercised by or under the authority of Parliament.

Concurrent List

The Concurrent List comprises 47 items over which the Union and state legislatures have concurrent jurisdiction. The important ones are: Criminal Law and Procedure, Marriage, Trusts, Civil Procedure, Insurance, Social and Economic Planning, etc.

While the Union and states can legislate on any of the subjects in the Concurrent List, predominance is given to the Union Legislature. It means that in case of repugnancy between the Union and a state law relating to the same subject, the former prevails. If, however, the state law was reserved for the assent of the President and has received such assent, the state law may prevail notwithstanding such repugnancy, but it would still be competent for the Parliament to override such state law by subsequent legislation.

Any dispute about the interpretation of the entries in the three lists is to be decided by the Courts. Following principles have been followed in such interpretation:

(i) In case of overlapping of a subject between the three lists, predominance is- to be given to the Union Legislature; .

(ii) Each entry is given the widest importance that its words are capable of,

(iii) In order to determine whether a particular enactment falls under one entry or another, its 'pith and substance' is considered.

Distribution of Executive Power

In general, the distribution of executive powers follows the distribution of the legislative powers. It means that the state government has executive powers in respect of subjects in the State List.

However, the executive power in respect of subjects in the Concurrent List ordinarily remains with the state governments except in the following cases:

(i) Where a law of Parliament relating to such subjects vests some executive

functions in the Union, e.g., in Industrial Disputes Act, 1947.

(ii) Where provisions of Constitution itself vest some executive functions upon

the Union, e.g., implementation of an international treaty or obligation.

Moreover, the Union has the power to give directions to the state governments in the exercise of their executive powers in the following cases:

(i) In Normal Times, the State Governments have to ensure:

• Compliance with Union laws
• Exercise of executive power of the state does not interfere with the exercise of the executive power of the Union
• Construction and maintenance of the means of communication of national or military importance by the state
• Protection of railways in thb state
• Implementation of schemes for the welfare of Scheduled Castes and Scheduled Tribes
• The administration of a state is carried on in accordance with the provisions of the Constitution.

(ii) In Emergencies

• The state government functions under the complete control of the Union Government
• The President may assume to himself all or any executive powers of the state on proclamation of failure of Constitutional machinery in a state.

(iii) During a Financial Emergency

• The President can give directions to the state government to observe canons of financial propriety
• The President may reduce salaries and allowances of employees
• Money bills and other financial bills could to be reserved for consideration of the President.

Role of the Governor

• The Governor is the Constitutional head of a state in India, acting on the advice of the Council of Ministers led by the Chief Minister. Appointed by the President for a five-year term, the Governor can be reappointed and holds office at the President's pleasure. The Governor has various executive, legislative, judicial, and emergency powers, such as appointing the Chief Minister and Council of Ministers, making other appointments like members of the State Public Service Commission, Advocate General, and Senior Civil Servant. The entire executive work of the state is carried out in the Governor's name.
• As part of the State Legislature, the Governor has the right to address and send messages to the State Legislature, summoning and proroguing it, and dissolving the Lower House. The Governor has to give assent to bills passed by the Legislature before they become law. The Governor can also issue ordinances when the legislature is not in session and has the power to grant pardons or commute sentences related to offenses under state law.
• In cases of emergency, the Governor can report to the President if the administration of the state cannot be carried out in accordance with the Constitution. The President may then assume the powers of the state government and reserve the powers of the State Legislature for Parliament (Article 356).
• The Governor usually exercises their powers based on the advice of the Council of Ministers. However, there have been instances where the Governor has had to exercise discretion, leading to controversies. Some of the major controversies have arisen around the appointment of Chief Ministers, dismissal of a Ministry, dissolution of the Assembly, and the use of emergency powers.
• Critics argue that the mode of appointment and termination of the Governor has made them a tool of the ruling party at the Centre, rather than an impartial head of the state. On the other hand, supporters believe that these provisions were deliberately adopted by the framers of the Constitution to guard against the fissiparous tendencies present in India's polity. Nevertheless, there have been instances where Governors have been removed due to a change of guard at the Centre, and political parties have found it easy to remove Governors belonging to opposition parties in the states.

State Legislature

The State Legislature is responsible for providing the necessary legislative framework at the state level, which allows the government to implement policies. According to the Constitution, every state must have at least one house, known as the Legislative Assembly, which consists of 60 to 500 members elected directly through adult suffrage from territorial constituencies. Additionally, states can create a second house, called the Legislative Council, if they choose to do so. This can be achieved through a resolution passed by the Assembly with a special majority, followed by an Act of Parliament. The same process can be used to abolish an existing Legislative Council. Currently, only Bihar, Maharashtra, Karnataka, U.P., and J&K have two houses.

The membership of the Legislative Council cannot exceed one-third of the Assembly's membership and must not be less than 40 members. The composition of the Council's membership is as follows:

• One-third elected by members of local bodies
• One-twelfth elected by an electorate of graduates with at least three years of standing
• One-twelfth elected by teachers with at least three years of experience in secondary schools or above
• One-third elected by MLAs (Members of the Legislative Assembly) from individuals who are not members of the Assembly
• One-sixth nominated by the Governor

Elections are conducted in accordance with the principle of proportional representation through the single transferable vote system. The Legislative Assembly has a duration of five years, unless it is dissolved earlier by the Governor. During an Emergency, Parliament can extend the Assembly's term for up to six months beyond the expiry of the Presidential proclamation of Emergency. The Legislative Council, on the other hand, is a permanent body, with one-third of its members retiring every two years.

Legislative Procedure in a Bicameral Legislature

Regarding a Money Bill

• A Money Bill can originate only in the Legislative Assembly and not in the Council
• The Council cannot reject or modify this Bill passed by the Assembly. It can only make recommendations, which may or may not be accepted by the Assembly. The Bill as passed by the Assembly with or without modification, is presented to the Governor for assent. If the Council does not return the Bill within 14 days, it can straightaway be presented to the Governor for his assent

Thus, the will of the Assembly ultimately prevails. The Council can at best delay its

passage.

Regarding any Bill other than a Money Bill

• Such a Bill can originate in either House
• If a Bill is passed by the Assembly, the Council may reject the Bill, modify it; or may not pass it for three months. If the Bill is again passed by the Assembly with or without modification, the Council, on its second journey, may only delay it by one month
• If a Bill originates in the Council and is rejected by the Assembly, the matter ends.

Thus, in every way, the supremacy of the Assembly is established; more so, in case of Money Bills. The dispute between two houses is always resolved according to the will of the Assembly. This is in contrast to the Union Legislature where a dispute between the two Houses is resolved by a joint sitting. This is probably in recognition of the fact that the Upper House in Union Legislature is representative of the states.

Governor’s Veto

When a Bill, passed by State Legislature, is presented to the Governor for his assent:

(i) The Governor may assent to the Bill, in which case it would become law

(ii) He may withhold assent, in which case it does not become law

(iii) He may, in case of a Bill other than a Money Bill, return the Bill with a message

(iv) The Governor may reserve a Bill for the consideration of the President.

• Options (i) and (ii) do not involve use of discretion by the Governor. He may not withhold assent without the advice of the Council of Ministers. However, in case of options (iii) and (iv), the Governor may act as per his discretion. When a Bill is returned with a message, the legislature may again pass the Bill with or without modifications. The Governor then has no option but to signify his assent.
• Option (iv), however, gives the Governor and the President a real veto on a Bill passed by the State Legislature. When a Bill is reserved for the assent of the President, he may either declare his assent; withhold his assent or return the Bill to the State Legislature with a message. The State Legislature has to reconsider the Bill within six months. Even if the Bill is passed again with or without modifications, it is not obligatory on the part of the President to signify his assent.
• The opposition parties have criticised that this provision of veto substantially detracts from the autonomy of the state governments. The Governor, as an agent of the President may interfere with the legislative powers of the state.

Governor’s Power to Issue Ordinances

When the Legislature is not in session, the Governor can issue Ordinances, which have the force of law. Any Ordinance so issued by the Governor has to be placed before the Legislature whenever it is convened and ceases to have an effect at the expiration of six weeks from the date of reassembly unless disapproved earlier. The Governor’s Ordinance - making power is co-extensive with the legislative powers of the State Legislature and is subject to the same limitations pertaining to obtaining previous sanction from the President.

Legislative Control Over Administration

In a parliamentary democracy, the legislature plays a crucial role in providing the necessary legislative support to the executive branch while also serving as a mechanism for public control over the administration. The following methods allow the legislature to exercise this control:

1. Assembly Questions: Members of the assembly have the right to ask questions and seek clarification from the government. By posing questions and follow-up inquiries, the government is held accountable for its actions, and any identified shortcomings must be addressed.
2. Debates: Members can request discussions on significant issues and introduce Call Attention Motions and Adjournment Motions on vital public matters. While these motions may not always be approved, they necessitate the provision of information by the government and foster debate, keeping the government accountable to the people's representatives.
3. Financial Control through Budget: The legislature controls the government's financial activities by voting on revenue collection and expenditure. Although the government may ultimately secure the necessary funds due to its majority in the legislature, the discussions during the budget process ensure that the government remains in touch with the people's needs and addresses any administrative shortcomings.
4. Post-expenditure Control: The legislature scrutinizes the government's spending through audits. The Comptroller and Auditor General of India (CAG) audits the state government's accounts and submits a report to the assembly via the Governor. The Public Accounts Committee of the state legislature reviews this report, and any unauthorized or imprudent expenditure is discussed and brought to the legislature's attention.
5. Oversight through Legislative Committees: In addition to the Public Accounts Committee, several other committees, such as the Estimates Committee, Committee on Public Undertakings, and Committee on Assurances, examine various aspects of government operations. These committees provide recommendations, criticize the government for failures, and bring such issues to the legislature and the public's attention.
6. Ministerial Responsibility: The most powerful function of the legislature is enforcing ministerial responsibility. In a parliamentary system, the political executive is part of the legislature and is accountable to it at all times. The government can be removed from office through a vote of no-confidence or rejection of its budget or significant legislative measures. This constant accountability ensures that administrators, through their ministers, are indirectly responsible to the legislature.

Despite these controls, there is often a perception that the administration is not responsive enough. Conversely, some argue that legislative control, particularly through audits, is overly restrictive and stifles administrators' initiative.

Role of the Chief Minister

• The Chief Minister serves a crucial role in the state government, similar to the Prime Minister's role in the Union Government. Although the executive power of the state government lies with the Council of Ministers, the Chief Minister has evolved into a central figure in exercising this power. The Chief Minister is not merely the first among equals but is the driving force behind the state's executive government.
• Appointed by the Governor, the Chief Minister's tenure depends on the Governor's pleasure. However, when a single political party holds a majority in the Assembly, the Governor's role becomes more ceremonial. In such cases, the Governor must invite the majority party leader to form the government and cannot remove the Chief Minister as long as they have the Assembly's confidence. The only likely exception is when the majority party elects a new leader in the Assembly. The Governor does possess some discretionary power during periods of instability when no single party has a majority in the Assembly.

The Chief Minister holds significant powers in relation to the Council of Ministers, the Governor, the Legislature, and the Executive.

• In relation to the Council of Ministers, the Chief Minister is responsible for assigning portfolios, coordination of various departments, and defending the Council in the State Assembly. The Chief Minister also has the power to dismiss ministers and change their portfolios. However, the extent of the Chief Minister's power depends on the political conditions within the state, such as the majority of the party and the presence of a coalition government or faction-ridden party.
• Regarding the relationship with the Governor, the Constitution does not explicitly mention the powers of the Chief Minister. However, conventionally, the Chief Minister may be consulted on the appointment of the Governor in their state. The Chief Minister also exercises executive power in the name of the Governor, ensuring that the Governor's public appearances and speeches align with the policies set by the Council of Ministers.
• As the leader of the House in the Legislature, the Chief Minister plays an essential role in setting the legislative agenda. This includes bringing legislative measures before the Assembly with the approval of the Council of Ministers, answering questions, making statements, and intervening in debates. The Chief Minister is also responsible for keeping the Assembly informed about the government's activities.
• In relation to the Executive, the Chief Minister, as the head of the political executive, controls the state's bureaucracy. This includes approving senior appointments, controlling service conditions and disciplinary matters, and providing leadership to ensure good performance and morale. The Chief Minister also monitors the performance of the bureaucracy through administrative channels, party workers, complaints from aggrieved persons, and personal observation during tours.

Emerging Trends

We have previously discussed the Constitutional provisions regarding the functioning of state administration in India. Now, we will analyze how these provisions have been implemented in the context of the country's political developments. One of the fundamental aspects of the Indian Constitution is the division of functions between the Union (Centre) and the states. This division is biased towards the Union, granting it greater financial and administrative powers. Over time, the Union has become stronger, and several emerging trends have contributed to this:

• The Union government has access to more substantial sources of revenue than the states. It can generate money and borrow externally, while states have limited revenues and cannot finance their development programs without assistance from the Centre. This has helped weaker states receive more resources but also provided the Union with a means to control states that do not align with its policies. This trend has undermined state autonomy, and is also observed in federations like the USA.
• The establishment and operation of non-statutory bodies like the Planning Commission have further strengthened the Union's position relative to the states. The Indian Government's discretionary grants are given based on the Planning Commission's recommendations. Many state government schemes require clearance from the Planning Commission, and the states' Five Year Plans and Annual Plans are decided according to the priorities set by the commission. This has significantly weakened state autonomy.
• For a long period, Congress governments held power at both the Union and state levels. In addition to the Constitutional discipline, party discipline also maintained states in a subordinate position. With the emergence of non-Congress governments such as the Bhartiya Janata Party at the Centre and in several states, this trend is now changing as state governments are asserting their autonomy.
• Article 356 of the Constitution has been frequently used to dismiss opposition state governments. This emergency provision has also undermined state autonomy. However, during the recent Inter-State Council Meeting held in Srinagar in August 2003, it was resolved that the Centre should impose President's rule under Article 356 sparingly and only as a last resort. A Constitutional Amendment is expected to be introduced in this regard.
• Many development-related matters concern both the states and the Union. For example, subjects like agriculture, rural development, and forests fall under the state sector but also concern the Union. Therefore, large departments of agriculture, rural development, etc., exist at the Union level as well. Besides providing finance to states, these departments also offer expertise that can be better utilized at the Union level rather than the state level. This has increased the states' dependence on the Union.

Conclusion

In conclusion, the Indian Constitution establishes a quasi-federal system with a dual structure of governance at the Union and state levels. State governments have exclusive jurisdiction over certain subjects, while sharing jurisdiction with the Union government on others. The Governor plays a crucial role as the Constitutional head of the state and representative of the President, which has sometimes led to controversy over the exercise of discretionary powers. State legislatures are responsible for providing the necessary legislative framework and exercising control over the administration. Despite the various checks and balances in place, there are concerns about the responsiveness of the administration and the extent of legislative control. Overall, the Indian Constitution aims to maintain a balance between central and state powers, while promoting cooperation and accountability.

Frequently Asked Questions (FAQs) of State Government & Administration - 1

What is the nature of the Indian Federation and its relationship with state governments?

The Indian Federation is characterized as a quasi-federal polity or a "Cooperative Federalism" due to the need for close cooperation between the Union government and the state governments. The Constitution envisions a two-tier structure of governance, with powers and functions assigned to both the Central or Union government and the state governments, who function independently in their own spheres yet also have areas of overlapping responsibility.

How are powers distributed between the Union government and the state governments in India?

The Constitution has adopted a three-fold distribution of legislative powers between the Union and the states. Schedule VII of the Constitution enumerates subjects into three lists: Union List (exclusive powers for the Union), State List (exclusive powers for the states), and Concurrent List (powers shared between the Union and states). Residual powers are vested in the Union.

What is the role of the Governor in the state administration in India?

The Governor is the Constitutional head of the state and acts on the advice of the Council of Ministers headed by the Chief Minister. He is appointed by the President for a term of five years and holds office during his pleasure. The Governor has many executive, legislative, judicial, and emergency powers, such as appointing the Chief Minister, making other appointments, being a part of the State Legislature, granting pardons, and exercising emergency powers in certain situations.

How does the State Legislature function in India, and what is its role?

The State Legislature provides the necessary legislative framework for policy formulation and arms the government with powers to implement policies. It exercises control over the administration through various means, such as Assembly questions, discussions, financial control through budget and post-expenditure control, control through legislative committees, and enforcing ministerial responsibility.

How does the Governor exercise discretion in matters such as the appointment of Chief Ministers, dismissal of a Ministry, dissolution of the Assembly, and use of emergency powers?

The Governor may exercise discretion in these matters, but this discretion has been criticized for making the Governor's office controversial and prone to political influence. In some cases, such as the appointment of Chief Ministers or dismissal of a Ministry, the Governor's discretion may be influenced by the ruling party at the Centre. Critics argue that the provisions regarding the appointment and termination of the Governor have made him a tool of the ruling party at the Centre and not an impartial head of the state.