Administrative relations follow the legislative distribution but are not identical to it. The executive power of the Union extends to matters on which Parliament may legislate, and that of a State to matters on which its Legislature may legislate (Arts.73 and 162). Because the two administrations operate on the same territory and the same people, the Constitution provides a set of devices for coordination, for direction, and for the mutual entrustment of functions.
Legal Framework
| Provision | Subject | Key Rule |
|---|---|---|
| Art.256 | Compliance with Union laws | A State's executive power must be so exercised as to ensure compliance with laws made by Parliament, and the Union may give such directions as appear necessary for that purpose |
| Art.257(1) | Not impeding the Union | A State's executive power must not impede or prejudice the exercise of the Union's executive power, and the Union may give directions to that end |
| Art.257(2) | Means of communication | Directions as to the construction and maintenance of means of communication declared to be of national or military importance |
| Art.257(3) | Protection of railways | Directions as to measures to be taken for the protection of the railways within the State |
| Art.257(4) | Extra costs | Where a direction under clause (2) or (3) involves extra costs, they are to be paid by the Union |
| Art.258(1) | Entrustment to States | The President may, with the consent of a State Government, entrust to it functions relating to a Union matter |
| Art.258(2) | Conferment by Parliament | Parliament may by law confer powers and impose duties on a State and its officers in relation to a Union matter, without the State's consent |
| Art.258A | Entrustment to the Union | A State Governor may, with the consent of the Union Government, entrust State functions to the Union; inserted by the 7th Amendment, 1956 |
| Art.261 | Full faith and credit | Full faith and credit throughout India to the public acts, records and judicial proceedings of the Union and of every State |
| Art.262 | Water disputes | Parliament may provide for adjudication of inter-State river water disputes and may exclude the jurisdiction of the courts, including the Supreme Court |
| Art.263 | Inter-State Council | The President may by order establish a Council to inquire into and advise upon disputes, and to investigate and discuss subjects of common interest |
| Art.312 | All India Services | Parliament may create an All India Service if the Council of States so resolves by not less than two thirds of the members present and voting |
| Art.355 | Duty of the Union | To protect every State against external aggression and internal disturbance, and to ensure that the government of every State is carried on in accordance with the Constitution |
| Art.365 | Effect of non-compliance | Where a State fails to comply with a direction given in the exercise of the Union's executive power, the President may hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the Constitution |
The chain of enforcement. Articles 256 and 257 create obligations and permit directions, but they contain no sanction of their own. The sanction lies in Art.365, which converts non-compliance with a direction into a ground on which the President may hold that the constitutional machinery has failed, thereby opening the way to a Proclamation under Art.356. The three articles must therefore be read together, and their combined effect is one of the strongest unitary features of the Constitution.
Why the power is nevertheless not unlimited. Article 365 says the President "may hold", not "shall hold". After S R Bommai, the satisfaction so reached is justiciable, and the direction itself must have been lawful, that is, genuinely referable to Art.256 or Art.257. A direction outside those articles imposes no obligation, and its breach cannot found action under Art.365.
The Duty of the Union under Art.355
Article 355 imposes a duty, not a power. It has two limbs: protection of every State against external aggression and internal disturbance, and ensuring that the government of every State is carried on in accordance with the Constitution. The second limb is conventionally read as the justification for Arts.356 and 357, since a duty to ensure constitutional governance would be empty without a power to act.
Facts: The Illegal Migrants (Determination by Tribunals) Act, 1983 applied only to Assam and placed the burden of proving that a person was an illegal migrant on the complainant, through a tribunal procedure that in practice made detection almost impossible. Elsewhere in India the Foreigners Act, 1946 applied, under which the burden of proving that he is not a foreigner lies on the person concerned. It was contended that large scale influx amounted to external aggression and that the Union had failed in its duty.
Issue: Whether the Union's duty under Art.355 is enforceable, and whether a statute that disables the detection of illegal migrants is constitutionally valid.
Held: The Act was struck down. Large scale illegal influx can amount to "external aggression" within Art.355, and the article casts an enforceable duty on the Union to protect a State against it. A law which, by reversing the ordinary burden of proof and prescribing an unworkable procedure, made it practically impossible to identify and deport illegal migrants was a failure to discharge that duty and could not stand. The Foreigners Act would consequently apply to Assam as elsewhere.
Relevance: The leading modern authority on Art.355. Cite it for the propositions that Art.355 imposes a justiciable duty and that "external aggression" is not confined to armed attack.
Facts: The Armed Forces (Special Powers) Act, 1958 and the deployment of the armed forces of the Union in aid of the civil power in disturbed areas were challenged as an encroachment on the State field of public order, and as amounting to the imposition of an undeclared emergency.
Issue: Whether the Union may deploy its armed forces in a State in aid of the civil power, and whether that displaces the State administration.
Held: The legislation was upheld. Entry 2A of the Union List, inserted by the 42nd Amendment, expressly covers the deployment of any armed force of the Union in a State in aid of the civil power, and the powers of such forces while so deployed. Deployment does not supplant the State administration: the civil administration continues to function and the armed forces act in aid of it, so there is no imposition of emergency by the back door. The Court nevertheless read in safeguards, requiring a declaration of a disturbed area to be periodically reviewed, insisting on compliance with the Do's and Don'ts issued by the army, and requiring arrested persons to be handed over to the nearest police station with the least possible delay.
Relevance: The authority on Union deployment in a State. Its value in an answer is the distinction between acting in aid of and in supersession of the State administration.
Facts: The Union appointed a Commission of Inquiry to investigate allegations of misconduct against the Chief Minister and Ministers of Karnataka. The State sued under Art.131, contending that the inquiry invaded its exclusive administrative sphere.
Issue: Whether the Union may inquire into the conduct of a State's Ministers, and whether such a suit lies under Art.131.
Held: The suit was maintainable, but the Union's action was upheld by majority. Commissions of inquiry fall within the Concurrent List, and an inquiry into the conduct of Ministers does not by itself take over the administration of the State. The Court took the opportunity to describe the Centre's pre-eminent position in the constitutional scheme, while noting that the States are not mere administrative agencies.
Relevance: Illustrates the reach of Union administrative action into State affairs short of Art.356, and is the standard companion case on Art.131.
Mutual Entrustment of Functions
| Provision | Direction of entrustment | Consent needed | Instrument |
|---|---|---|---|
| Art.258(1) | Union functions to a State | Yes, the State Government's consent | Order of the President |
| Art.258(2) | Union functions to a State and its officers | No | Law made by Parliament |
| Art.258A | State functions to the Union | Yes, the Union Government's consent | Order of the Governor |
Why Art.258(2) dispenses with consent: Under Art.258(1) the President is asking a State to do the Union's work, and asking requires agreement. Under Art.258(2) Parliament is legislating, and legislative power to confer functions on State officers in relation to a Union subject follows from the Union's legislative competence itself. The distinction is between an executive arrangement, which is consensual, and a legislative imposition, which is not. Note the asymmetry: there is no provision by which the Union can be compelled to accept State functions, so Art.258A is consensual in every case.
Coordination Machinery
| Body or device | Source | Function |
|---|---|---|
| Inter-State Council | Art.263 | Inquiry into inter-State disputes, investigation of subjects of common interest, and recommendations for coordination of policy and action |
| Zonal Councils | States Reorganisation Act, 1956 | Statutory advisory bodies grouping States by region; not constitutional |
| Water disputes tribunals | Art.262 and the Inter-State River Water Disputes Act, 1956 | Adjudication of river water disputes, with the jurisdiction of the courts excluded |
| Full faith and credit | Art.261 | Recognition and enforcement across the country of public acts, records and judicial proceedings |
| All India Services | Art.312 | A common cadre serving both levels, with officers appointed and disciplined by the Union but working under the States |
| Comptroller and Auditor-General | Arts.148 to 151 | A single audit authority for both the Union and the States |
| Public Service Commissions | Art.315 | A Union Commission and State Commissions, with provision for a joint Commission |
All India Services as an instrument of administrative integration: An officer of the Indian Administrative Service or the Indian Police Service serves in a State and is answerable to the State Government in the discharge of his duties, but his appointment, cadre allocation and ultimate disciplinary control rest with the Union. This produces a dual loyalty that has been criticised as an inroad on State autonomy and defended as a guarantee of administrative standards and of a national outlook. Art.312 also contemplates an All India Judicial Service, which has not been created.
Illustrations
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Direction to enforce a central law: A State declines to implement a central statute within its territory. The Union may issue a direction under Art.256, and persistent non-compliance may attract Art.365 and hence Art.356.
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Direction not to impede: A State's action obstructs the working of a Union undertaking. The Union may direct the State under Art.257(1) to desist, the State's executive power having to be exercised so as not to prejudice the Union's.
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Costs of a direction: The Union directs a State to construct a road declared to be of military importance. Under Art.257(4) the extra cost is borne by the Union, not the State.
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Unlawful direction: The Union directs a State on a matter falling wholly within the State List and unconnected with any central law. The direction is not referable to Art.256 or Art.257, so non-compliance cannot found action under Art.365.
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Entrustment with consent: The President, with a State's consent, entrusts to it the administration of a Union scheme. This is competent under Art.258(1).
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Conferment without consent: Parliament enacts a law requiring State police officers to perform functions under a central Act. No consent is needed, Art.258(2) permitting conferment by law.
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State functions to the Union: A State asks the Union to take over the administration of a State highway. The Governor may entrust the function under Art.258A with the Union's consent.
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Deployment of central forces: The Union deploys armed forces in a State to assist in restoring order. Applying Naga People's Movement of Human Rights (1998), this is within Entry 2A and does not supersede the State administration.
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Influx as external aggression: A State faces large scale illegal migration and a central law makes detection practically impossible. Applying Sarbananda Sonowal (2005), the Union is in breach of its Art.355 duty and the law is liable to be struck down.
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Water dispute: Two States dispute the sharing of a river. A suit in the Supreme Court is barred once Parliament has made a law under Art.262 excluding its jurisdiction; the remedy is the statutory tribunal.
Recall Check
- What obligations do Arts.256 and 257 impose on the States, and what is the sanction for breach?
- Distinguish Art.258(1), Art.258(2) and Art.258A as to the direction of entrustment and the need for consent.
- What are the two limbs of the Union's duty under Art.355?
Key Cases
Sarbananda Sonowal v Union of India (2005) Sarbananda Sonowal v Union of India 2005
Issue: Whether Art.355 imposes an enforceable duty and whether a law disabling detection of illegal migrants is valid.
Rule: Large scale illegal influx can constitute external aggression, and Art.355 casts a justiciable duty on the Union to protect a State against it.
Held: The Illegal Migrants (Determination by Tribunals) Act, 1983 was struck down, and the Foreigners Act, 1946 held applicable.
Naga People's Movement of Human Rights v Union of India (1998) Naga Peoples Movement of Human Rights v Union of India 1998
Issue: Whether deployment of Union armed forces in a State encroaches on the State field of public order.
Rule: Entry 2A of the Union List covers such deployment, and forces so deployed act in aid of, and do not supplant, the civil administration.
Held: The Armed Forces (Special Powers) Act, 1958 was upheld with safeguards read in, including periodic review of disturbed area declarations.
State of Karnataka v Union of India (1977) State of Karnataka v Union of India 1977
Issue: Whether the Union may inquire into the conduct of a State's Ministers.
Rule: Commissions of inquiry fall within the Concurrent List, and such an inquiry does not amount to taking over the State's administration.
Held: The suit under Art.131 was maintainable but the Union's action was upheld.
S R Bommai v Union of India (1994) S R Bommai v Union of India 1994
Issue: Whether the President's satisfaction of a failure of constitutional machinery is justiciable.
Rule: Federalism is a basic feature, and the satisfaction and its underlying material may be examined by the courts.
Held: Certain Proclamations were held unconstitutional, which correspondingly limits the reach of Art.365.
Distinctions
| Basis | Art.256 | Art.257 |
|---|---|---|
| Obligation | To ensure compliance with laws made by Parliament | Not to impede or prejudice the exercise of Union executive power |
| Direction | To secure compliance with central laws | To prevent obstruction, and additionally as to communications and railways |
| Specific subjects | None | Means of communication of national or military importance, and protection of railways |
| Costs | No provision | Extra costs of directions under clauses (2) and (3) borne by the Union |
| Basis | Art.355 | Art.356 |
|---|---|---|
| Nature | A duty imposed on the Union | A power conferred on the President |
| Content | To protect States against external aggression and internal disturbance, and to ensure constitutional governance | To assume the functions of the State Government on a failure of constitutional machinery |
| Justiciability | Enforceable duty (Sarbananda Sonowal, 2005) | Reviewable exercise (S R Bommai, 1994) |
| Relationship | Art.355 is the source of the responsibility that Art.356 implements | Art.356 is the instrument of last resort |
| Basis | Legislative relations | Administrative relations |
|---|---|---|
| Governing provisions | Arts.245 to 255 and the Seventh Schedule | Arts.256 to 263, with Arts.355 and 365 |
| Instrument of Union control | Repugnancy under Art.254 | Directions under Arts.256 and 257 |
| Sanction | The State law is void to the extent of repugnancy | Art.365, leading to Art.356 |
| Consensual devices | Art.252, legislation on State request | Arts.258 and 258A, entrustment of functions |
Flashcards
What does Art.256 require of a State?
That its executive power be so exercised as to ensure compliance with laws made by Parliament, subject to directions from the Union.
What does Art.257(1) require?
That a State's executive power be so exercised as not to impede or prejudice the exercise of the Union's executive power.
Who bears the extra cost of a direction as to railways or means of communication?
The Union (Art.257(4)).
What is the consequence of failing to comply with a Union direction?
Under Art.365 the President may hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the Constitution, opening the way to Art.356.
Does Art.365 oblige the President to so hold?
No. The word is "may", and after S R Bommai the satisfaction is justiciable.
When is a State's consent required for entrustment of functions?
Under Art.258(1), where the President entrusts Union functions to a State by order. Parliament may do so without consent under Art.258(2).
Which article permits a State to entrust functions to the Union?
Art.258A, with the consent of the Union Government.
What are the two limbs of Art.355?
Protection of every State against external aggression and internal disturbance, and ensuring that the government of every State is carried on in accordance with the Constitution.
Can large scale illegal migration amount to external aggression?
Yes. Sarbananda Sonowal v Union of India (2005) so held.
Under which entry may the Union deploy armed forces in a State?
Entry 2A of the Union List, inserted by the 42nd Amendment.
Does such deployment supersede the State administration?
No. Naga People's Movement of Human Rights (1998) held the forces act in aid of the civil power.
What does Art.262 permit Parliament to exclude?
The jurisdiction of the courts, including the Supreme Court, in respect of inter-State river water disputes.
What majority does Art.312 require for creating an All India Service?
A resolution of the Council of States supported by not less than two thirds of the members present and voting.
Which All India Service contemplated by Art.312 has never been created?
An All India Judicial Service.
Exam Scenario
Problem: The Union enacts a central law on food safety and directs State A to establish enforcement machinery for it. State A refuses, asserting that public health is a State subject. The Union separately directs State A to reduce the rate of its own State excise duty, and State A refuses that too. The Union then deploys central armed police in State A to enforce the food safety law, and the President issues a Proclamation under Art.356 citing State A's non-compliance with both directions. Meanwhile State A asks the Union to take over the maintenance of a State highway, and the Union agrees. Advise on the validity of each step.
Step 1: Sort the two directions by their source of power
The food safety direction is lawful and the excise direction is not. Everything turns on whether a power in Art.256 or Art.257 can be found for it.
Under Art.256 a State's executive power must be so exercised as to ensure compliance with laws made by Parliament, and the Union may give such directions as appear necessary for that purpose.
That public health sits in the State List is no answer, because the direction relates to the enforcement of a central law, and the executive power of a State extends to enforcing central laws within it.
| Direction | Source relied on | Analysis | Result |
|---|---|---|---|
| Establish food safety enforcement machinery | Art.256 | Enforcement of a central law, which a State's executive power extends to | Lawful. Refusal is a breach of Art.256 |
| Reduce the State's own excise rate | Neither Art.256 nor Art.257 | No central law is being enforced, and a State's own tax rate does not impede the Union's executive power | Unlawful and imposes no obligation. Refusal is not a breach at all |
State excise is a State subject and its rate is a matter of State fiscal policy, so the second direction is ultra vires whatever form it takes.
Step 2: Test the deployment against Entry 2A and aid to the civil power
Apply Naga People's Movement of Human Rights v Union of India (1998) and Entry 2A of the Union List. The Union may deploy its forces in a State in aid of the civil power, and such deployment does not supplant the State administration.
Deployment to enforce a law against the State Government's wishes is a different thing, and it raises a serious question, for the reason given in the warning below.
Step 3: Attack the Art.356 Proclamation through Art.365
Apply Art.365 with S R Bommai v Union of India (1994). Run the challenge in this order:
- Separate the two grounds. Non-compliance with a lawful direction may found the President's satisfaction, so the food safety refusal is capable of supporting the Proclamation. The excise refusal cannot, the direction being ultra vires.
- Show that the Proclamation rests partly on an irrelevant ground. One of the two stated grounds is no breach at all.
- Assert justiciability. The satisfaction is justiciable and the material must be examined.
- Apply the last resort standard. Ask whether the valid ground alone could reasonably have led to the conclusion that the government of the State cannot be carried on in accordance with the Constitution, Art.356 being a power of last resort.
A single refusal to set up enforcement machinery, without any warning or opportunity to comply, is unlikely to meet that standard.
Step 4: Uphold the highway entrustment under Art.258A
Apply Art.258A. A Governor may, with the consent of the Union Government, entrust State functions to the Union.
Both the request and the consent being present, the arrangement is valid.
The State List is no answer under Art.256. The subject of the central law is beside the point. The direction bites because the State's executive power extends to enforcing central laws within the State.
Deployment is not a substitute for Art.365. Force deployed to enforce a law against the State Government's wishes is not deployment in aid of the civil power. The constitutional route against a defaulting State is Art.365, not the substitution of central force for State machinery.
An invalid direction cannot support Art.365. Refusal to obey an ultra vires direction is no breach, so the excise ground is irrelevant. Add prematurity: the Sarkaria Commission recommended that Art.356 be used sparingly and only as a last resort, and that a warning ordinarily precede it.
Conclusion. The food safety direction is lawful and binding, the excise direction is void, and the deployment is defensible only if genuinely in aid of the civil power. The Proclamation is vulnerable for resting partly on an invalid ground and for prematurity, and the highway entrustment is valid.
See Also
- Legislative Relations : the legislative distribution which the executive distribution follows.
- Financial Relations : the third limb of Centre-State relations, and the practical source of much central leverage.
- President's Rule and Financial Emergency : Art.356, to which Art.365 is the gateway.