CO-OPERATIVE FEDERALISM IN ADMINISTRATIVE MATTERS IN INDIA

IRJMSH Vol 5 Issue 7 [Year 2014] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 389

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CO-OPERATIVE FEDERALISM IN ADMINISTRATIVE MATTERS IN INDIA

Krishan LLM , MDU

“We want to promote co-operative federalism in the country. At the same time, we

want a competitive element among the states. I call this new form of federalism

Co-operative and Competitive Federalism”

Prime Minister Narendra Modi

Meaning of Cooperative Federalism

Traditionally the federalism was more or less a dualistic polity "in which the federal and State

governments. Pursued virtually independent courses of action during a period when government

activity was in any case minimal". Federalism then consisted of "two separate federal and State

stream flowing in distinct but closely parallel channels." This traditional dualistic approach to

federalism has since been expounded by scholars like Dicey, freeman, Garran and has in more

recent years been refined and justified by where.

Federal Constitution involves the sovereignty of the units within their respective territorial limits

it is not possible for them to remain in complete isolation from each other and the very exercise

of internal sovereignty by the units require in recognition by and co-ordination of other units of

the federation. Federal Constitution generally provides certain rule for co-operation which the

units are expected to take into consideration which dealing with each other. This co-ordination

b/w the States of the Centre is called co-operative federalism.

Definitions

1. Cooperative federalism is a concept of federalism in which national, State and local

governments interact cooperatively and collectively to solve common problem rather than

making policies.

2. According to Repetzer, "cooperative federalism is a concept of federalism in which

national, State and local government, interact cooperatively and collectively to solve common

problems, rather than making policies separately but more or less equally (such as the nineteenth

century's dual federalism) or clashing over a policy in a system dominated by the national

government.

Origin of Cooperative Federalism

The idea of cooperative federalism is not new nor is this a twentieth century development. It is

as old as the modern federal movements itself. Elements of cooperative federalism are found in

the federation of the United States which is chronologically the first of modern federations. As

some recent studies show, the traditional picture of the nineteenth century American federalism



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is unreal and federalism in the United States, in practice if not in theory, has traditionally been

cooperative.

The theory of dual federalism was not viable when applied to concrete problems in specific

situations even in the early days of the American Republic, says Elazzr and adds federalism

when interpreted to mean demarcation of responsibilities and functions has never worked in

practice While the amount of governmental activities in all spheres in relation to total activities

of the American society has increased, the governmental activities that existed in the nineteenth

century was shared in much the same manner as governmental activity in the twentieth century.

Indeed, the roots of cooperative federalism are entwined with the roots of federalism itself.

These elements of cooperative federalism were further elaborated in the Constitutions of

federations subsequently formed – the federations of Switzerland, Canada, Australia, the German

Republic and Republic of India. It is even possible to speak of a continuous process of evolution

of federalism as a system of government during the last two hundred years and to point out that

the basic feature of this process is the incorporation of a larger and larger number of cooperative

techniques and devices into federal Constitutions. Viewed from this standpoint the Constitution

of India may be said to be superior to that of any other federal Constitution.

Introduction of Administrative Aspect

Industrialization and emergence of the welfare State ideal have altered the environment of

Federalism. They have created the problems which transcend local boundaries and assume

national importance. Their solution, therefore, demands some amount of Central control in State

administration and increasing cooperation between the two administrative layers – Centre and

State. The rigidity of the old federation has come to be mellowed in practice and there are

perceptible trends towards administrative centralization, while new federal constitutions have

introduced techniques for securing uniformity and cooperation in administration.

A federal scheme involves and setting up of dual government and division of administrative

powers. But the success of federal polity depends upon the maximum of cooperation and

coordination between the governments in their administrative relations. However, the

adjustment of administrative relation between the Union and the States is one of the knottish of

the problems in a federal government. The framers of the Indian Constitution, therefore, decided

to include detailed provisions to avoid clashes between the Centre and the States in the

administrative domain. Therefore, cooperation and coordination between the Central and the

State administrative authorities was thought indispensable. The Indian Constitution enshrines

provisions for the division of executive power between the Centre and the States.

Union Agencies in the States

The object of Union agencies operating in the States is to ensure greater inter State and Centre –

State cooperation and implementation of the policies of the Central Government through these

agencies. These also enable the Central Government to exercise a control over the States in

matters of execution of Central laws. In exceptional cases, however, Parliament may prescribe



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that the execution of a Central law shall be with the Centre alone, or with both the Centre and the

States. In this field, even after the Centre assumes executive power under its law, the residuary

executive power under the entry may still rest with the States. In this field, even after the Centre

assumes executive power under its law the residuary execution power under the entry may still

rest with the States.

Governor as Agent of the President

The office of the Governor, as conceived by the Constitution makers, was endowed with

potentialities to develop as an instrument for forgoing a live and dynamic link between the

Centre and the States. The Governor is appointed by the President and holds office during his

pleasure, and he thus represents the Centre in the States. The importance of the Governor's duties

as a representative of the Centre invests him "with a significance for national standards in public

administration that has not received enough recognition so far".

If the Governor appoints a person to a constitutional office who is not qualified for the purpose,

the discretion of the Governor may not be challengeable because of Art. 361. But the authority of

the appointee to hold the office can be challenged through quo warranto. The fact that the

Governor has made the appointment, does not give the appointee any higher right to hold the

appointment. If the appointment is contrary to any constitutional provision, it will be struck

down.

The Supreme Court of India is State of Punjab v. Satya Pal has clearly lain down that the

Governor can use his constitutional power to restore parliamentary government where other State

agency is cutting at the root of the democratic and parliamentary process. The facts of the case

are interesting. The Punjab Assembly was in session but it was put in a State of inaction for two

months account of its adjournment by the Speaker under rule 105 which the Governor had no

power to rescind and the time was running out as the Budget Session of the Assembly had to

conclude its business before March 31, as after that date no money could be drawn from the

Consolidated Fund.

Causes of President's Rule under Article 356

President's Rule has not always been imposed to cope with situations of political inabilities in the

States but also to sub serve other ends and that too, on a liberal scale. Thus, the one check that

could but a curb on the exercise of arbitrary power under Article 356 could be the review by the

Courts. But the High Court’s on several occasions refused to interfere when their powers were

invoked. Recently, the Supreme Court also has declined to entertain political questions and most

of the issues relating to the exercise of the power under Article 356 would be undoubtedly

political.

All India Services

Article 312 introduces an important feature into the Constitution, namely, that besides separate

services for the Union and the States, the Centre can create certain services common to both. If

the Rajya Sabha declares by resolution supposed by not less than two-thirds of the members

present and voting that it is necessary or expedient in the national interest so to do, Parliament

may by law provide for the creation of one or more. All India Services (including an all – India



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Service) and regulate recruitment and conditions of service for it. The all – India judicial service

is not to include any past inferior to that of a district judge.

No known federal system works on the basis of pure model. All pure features of federation have

been diluted. 'Owing to varity of possible origins, every federalism is likely to be different from

every other. The farmer of Indian Constitution provided all – India services. Which existed

during the British regime in India. The concept of an All – India Service was attempted to be

reconciled with the idea of federalism. An integrated, well-knit, All India Service to manage

important and crucial sectors of administration throughout the country was legacy of the past and

the framers of the Constitution accepted it.

Amendments have been made by the forty – second Amendment to carry out the ignition to

create an All – India Judicial Service. Although, no concrete legislative of executive steps have

yet been taken to create an all – India Judicial Service, the Supreme Court has issued directions

to the Union of India to set up an all-India Judicial service and to ensure uniform standards

throughout the country in matters of judicial service such as hierarchy and designations, age of

superannuation, pay scales, allowances, residential accommodation, provision for conveyance,

library allowance, and in service training.

The State Governments had also agreed to the creation of two more All – India Services, viz., the

Indian Educational Service and the Indian Agricultural Service. The necessary resolution under

Art. 312 (1) was also adopted by the Rajya Sabha. After the fourth general elections, a few State

Governments modified their stand and refused to participate in these two services and

consequently, the matter was deferred.

Institution of Joint Public Service Commission for two or more States

The institution of Joint Public Service commission manifests the cooperation between two or

more States or between the Centre and the States. The Joint professionalization of Central and

State Public Service or of two more States Public Service facilitate inter-governmental

cooperation because the attitudes, procedures, especially in the case of programme specialists

such as forests, social workers or civil engineers, provide common standards and objectives

which are accepted professionally by specialists in both the Central and State public services.

Two or more States may, however by resolution to that effect in their respective legislatures,

agree to have one such commission for that group of States. If they so resolve, the Parliament

may, by law, provide for a joint Commission. The Union Public Service Commission also may,

on the request of the Governor of a State or States and with the approval of the President, agree

to serve the need or needs of one or more States.

A Commission constituted in terms of Art. 315 of the Constitution are bound to conduct

examinations for appointment to the services of the State in terms of the Rules framed by the

State. It is; however, free to evolve the procedure for conduct of examination. While conducting

the examination in a fair and transparent manner as also following known principles of fair play,

it cannot completely shut its eyes to the constitutional requirements of Article 335 of the

Constitution of India.

There is, however, an indication of a qualification in the Court's subsequent observations to the

effect that it is not necessary that principles of audialteram pattern rigorously followed in domain



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of service law need to be applied with same degree of rig our in proceedings involving removal

and suspension of members of State Public Service Commission.

In Sayalee Sanjeev Joshi, the court has propounded the approach to its exercise of jurisdiction on

a reference. Its task is to find out as a fact whether materials disclosed conduct on the part of a

member which would constitute 'misbehavior' within Art. 317 (1) of the Constitution. It has to

consider admissibility and relevance of evidence adduced and cannot proceed on the basis of

suspicion instead of proof. The Union Public Service Commission, if requested for the purposes

by two or more States, has to assist those States in framing and operating schemes of joint

recruitment for any service which candidates possessing special qualification are required.

High Court as an Agency for Administration of Justice and Union Laws

Generally speaking, the Constitution of India provides for 'cooperative federalism' with dual

Government and dual powers regarding the Union and the States; but there is no dual system as

regards the administration of justice. The practice prevailing prior to the commencement of the

Constitution involving only one set of courts for administration of justice is continued even

under the constitution. The Article 162 as read with entry 3 of the State List, empowers the State

Government to undertake the administration of justice and the constitute and utilize the courts for

the purpose. The expression administration of justice is very wide and covers and whole

machinery of the administration of justice including the jurisdiction and powers of courts and the

appointment of all the judges and officers required for the proper administration of justice. It is

proposed to deal here with the High Courts which are required to administer both Union and

State laws.

In relation to the recommendation made by the chief justice of a High Court for appointment of a

person to an office created by a statute, the powers of judicial review is 'very restricted' e.g. when

a relevant aspect is not considered.

Direction of the Centre to the State Governments

The direction by the Centre to the States plays a very important role in the day to day working of

federalism. There is no exclusive Union agency in the States for administration and execution of

Union laws. It is done through State agencies. Hence it was thought necessary to impose on the

States a constitutional responsibility to enforce the Central laws and to empower the Central

Government to issue directions to the States. In addition to the emergencies, the Central

Government has power to give directions to the State to enforce Central laws in respect of

construction and maintenance of Communication of national and military importance, railways,

the welfare of scheduled Tribe, Education of linguistic minorities, etc.

A controversy, due to the grave situation of law and order, had arisen in the past in two cases in

two different States. The first case, Jay Engineering Works v. State of West Bengal is known as

the "Gherao" case of West Bengal. The second case, Dy. Acct. General v. State of Kerala is of

the State of Kerala. In these two cases, the Calcutta and Kerala High Courts appear to have

intervened to prevent the exercise of executive power by the States in contravention of the laws

made by the Parliament.

"The authority and the jurisdiction of the State Government to issue administrative directives are

limited, first by the Constitution and secondly by the laws of the land. There is no law which



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authorizes the State Government to issue directive and order not to enforce the law of the

land…"

In reference to Article 256 and 257, it has also been said that there is no precedent for the two

Articles in the American, Canadian, Swiss and Australian Constitutions. This power conferred

on the Centre to give directions to the States is repugnant to a federal Constitution like that of

United States of America and it is also contrary to the federal principle.

"The idea of Union giving direction to the States is foreign and repugnant to a rule of federal

system. But this idea was taken by the framers of our Constitution from the Government of India

Act, 1935, in view of the peculiar conditions of this country and particular circumstances out of

which the federation emerged."

Under S. 10 (1) of the Industrial Disputes Act, the Central Government has jurisdiction to refer a

labour dispute to a tribunal in respect of certain industries, e.g., mines, major ports, etc., but it

can delegate this power to a State Government under Art. 258 (1). The minimum wages Act

enacted by Parliament under entries 22, 23 and 24 of the Concurrent List, provides for fixation of

minimum wages in industries. Certain industries are reserved for the Centre while others fall

within the State sphere. Under the Act, the Centre can issue directions to the States as to the

execution of the Act in the States. If thought necessary, the Central Government can confer its

power on a State Government with respect to any specific industry under Art. 258 (1). Similarly,

power to acquire Land under the land Acquisition Act for the purpose of the Union can be

entrusted by the Central Government to a State Government under this constitutional provision.

Delegation of Union Functions to the States and Vice Versa

The Constitution of India provides for a framework of voluntary cooperation at administrative

level through the provisions for intergovernmental delegation of administrative power. This may

happen either under an agreement between the Union and the State Governments, or by a

legislation. While the Centre can use both the methods to delegate administrative power to the

centre.

Thus the Constitution of India makes possible a two – fold delegation of Union powers to the

States. First, the President may, with the consent of a State Government, entrust to it, the Union's

executive powers on specific subjects, conditionally or unconditionally. By virtue of this Article

it would be possible for a State to exercise administrative or executive power over a Union

subject and for the Centre to delegate its function with respect there to, by mutual consent.

Secondly, the Parliament may, while enacting a law on a Union subject, confers powers and

impose duties or authorize the conferring of the powers and imposition of duties on a State or

officers and authorities there of for administrating the laws so made. It may be noticed from the

above discussion that exists a marked difference between the two types of delegation. In the

former, the Union can delegate only with the consent of the State Government; whereas in the

latter case, the Union can unilaterally by virtue of the authority given by a parliamentary

legislation. Moreover, while in former case the granting of authority is the Union executive, in

the later case it is the Union Parliament which delegates.

Any extra cost incurred by the State Government for discharging such delegated functions

would, however, be borne by the Union Government, and the amount thereof would be mutually



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agreed upon, or in default, would be determined by an arbitrator appointed by the chief justice of

India.

An example of such delegation can be found in the case noted below. Under S. 5, Essential

Commodities Act, the Central Government conferred power under S. 3 (1) of the Act on State

Government under the following conditions:

1. The State Government shall exercise the power subject to any directions issued by the

Central Government.

2. Before issuing any order, the State Government shall obtain prior concurrence of the

Central Government.

3. Another device adopted by the EC Act for delegating power is that an order made by the

Central Government under S. 3 may confer powers and impose duties upon the State

Government, or any of its officers or authorities. The order may also contain directions as to how

the powers are to be exercised and the duties to be discharged (S. 4).

4. The third pattern of delegation of power under the Act is that certain sections of the Act

straightway empower either a State Government or an officer under it to exercise/perform

certain/powers/ functions.

5. In other cases, the Central Government delegates power on the State Governments which

can further delegate them on their officers and authority.

In a number of cases, rule made by the States adversely affecting service conditions of the civil

servants coming to them after re-organization have been held to be inoperative in the absence of

approval of the Central Government. A State acting ignoring the Central directive issued under

S. 117 has also been held to be invalid.

Originally, the Constitution did not contain any provision empowering the State Governments to

delegate their executive functions to the union. Due to the absence of such power on the part of

the States, some practical difficulties were felt in connection with the execution of certain

developmental works in the States. For example, the Central Government undertook the

construction of Hirakud dam in Orissa. The comptroller and Auditor General objected to this

arrangement as ultra vires the Constitution. To remove this difficulty, the Constitution was

amended and Article 258 A was added by the Constitution (Seventh Amendment) Act, 1956,

empowering the States to delegate functions which makes operation of Indian Federalism

adequately flexible and cooperative.

Full Faith and Credit Clause

There may arise a great. Confusion and inconvenience in the working of a federation, if a

particular State refuse to recognize the records and acts of another State. To eliminate such

ominous possibility the Constitution of India provides the 'full faith and credit clause".

According to Article 261 (1), "full faith and credit" is to be given throughout the territory of

India to 'public acts' records and judicial proceeding of the Union and the States. The term

'public acts' in this clause refers not only to status but to all other executive and legislative acts of

the Union a States.



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The clause, however, does not require that a greater effect be given to the public act of one State

in another State than it is entitled to in the enacting State itself. Hence, a Statute which is ultra

vires or unconstitutional need not be given recognition in any other State. The Article 261 (1)

does not prohibit an inquiry into the jurisdiction of the court by which a judgment was rendered.

Under the Constitution the financial resources of the State are very limited though they have to

do many works of social uplift under directive principles. In order to cope with their ever-

expanding needs. He Central Government makes grants in aid to the States. Grant-in-aid to

States thus serves two purposes:

1. Through it Central Government exercise a strict control over the States because grants are

granted subject to certain conditions. If any State does not agree to the condition the Central

Government may withdraw the grant, and

2. It generates a Centre-State co-ordination and co-operation if a State wants to develop its

welfare schemes for the people of the State it may ask for financial help from the centre.

Article 261 is prospective and not retrospective. The provision does not apply to decrees passed

before the coming into force of the Constitution. The term 'public acts' in this Article refers not

only to statute but to all other executive and legislative acts. The clause, however, refers not only

to statute but to cell other executive and legislative acts. The clause, however, does not envisage

that a greater effect to given to the public act of one State in another State than it is entitled to in

the 'home' State itself. Article 261 (1) does not bar an inquiry into the jurisdiction of the court by

which a judgment was rendered or passed.

According to Art. 261 (2), the manner in which, and the conditions under which the acts, record

and proceeding referred to in Art. 261 (1) are to be proved, and the effect thereof determined

shall be 'as provided by law made by parliament'. Art. 261 (2) thus empowers Parliament to lay

down by law.

(a) the mood of proof, as well as

(b) the effect of acts and proceeding of one State in another State.

Under Article 261 (3) a final judgment or order delivered or passed by a civil court in any part of

India is capable of execution anywhere within India according to law. This is a constitutional

provision which enjoins that a decree shall be executable in any part of the territory of India

according to law. The words 'final judgment' in this clause includes 'decree' also. The clause

applies to civil and not to criminal courts. A decree passed by a civil court in any other State is

executable in any other State 'according to law' and the word 'law' here means 'procedural' law

relating to execution of the decrees, e.g., the law of limitation. It does not refer to the merits of

decision with cannot be re-opened in another court.

The States in the United States of America, before the creation of the Federation, were sovereign

entities. Thus each was free to ignore obligations created under the laws or by the judicial

proceeding of the other. It was, therefore, necessary to evolve a method by which rights legally

established in one State could be given nation-wide application and which could result in a sense

of cooperation also. This purpose is achieved, to some extent, by the full faith and credit shall be

given to the public acts, records and judicial proceeding of every other State. And the Congress



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may be general laws prescribe the manner in which such acts, records and proceedings shall be

proved, and the effect thereof."

Thus the 'full faith and credit' clause is an important expedient which serves the very useful

purpose of preventing any possible obstruction to the normal transaction of administrative

business in the Indian federation.

Conclusion

Our discussion of the administrative relation between the Union and the State reveals that the

Constitution of India has assigned very wide sweep of administrative powers to the Union.

Articles 256, 257, 356 and 365 provide a system of comprehensive administrative control and

direction of the States by the centre. It would, however, he wrong to get the impression that the

States are completely subservient to the Centre. They have their own powers and status from the

Constitution itself. The emphasis in the Constitution is on demarcation of administrative powers

but, that of practical relations is on cooperative bargaining.

References

1. D.J. Elazar, "Federal State Collaboration in the nineteenth century United States"Political

Science Quarterly, vol. 79, 1964, p. 248-281.

2. J.P. Clark, The Rise of New Federalism, New York, Columbia University Press, 1938, p.

191

3. Dr.J.N. Paney Constitutional Law of India, 44th Edition Htpp://answer.ask.com

4. Wikipedia, the free encyclopedia.

5. See M.J.c. vile, The structure of American Federalism, London, Oxford University Press,

1961; D.L. Elazar, The American partnership in the Nineteenth century United States,

Chicago, Chicago University Press, 1962.

6. The Const. of the U.S.A. Senate Doc., 14 (1953).

7. Akhilesh Prashad v. Union Territory of Mizoram, AIR 1981 SC 806 : (1981) 2 SCC 150.

8. Prithipal Singh v. Union of India, AIR 1982 SC 1413 : (1982) 3 SCC 140.

9. Hans Muller v. Supdt. Presidency Jail, Calcutta, AIR 1955 SC 367 : (1955) 1 SCR 1284.

10. List II, entry 24.

11. The Industries (Development and Regulation) Act, was enacted by the Parliament after

such a declaration.

12. See Symposium on "should we change our constitution?" The illustrated weekly of India,

March 17, 1974, p.25 See, Ram Jawaja Kapur v. State of Punjab, AIR 1955 SC 549.



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13. Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh, AIR 1982 SC 33 : (1982) 1

SCC 39.

14. Article 155.

15. Article 156 (1).

16. Report of the Study Team on Centre – State Relations, Vol. 1, 1968, p. 273.

17. B.R. Kapur v. State of Tamil Nadu, JT 2001 (8) SC 40 at 66 : (2001) 7 SCC 231.

18. A.I.R 1969 S.C. 903

19. K.K. Aboo v. Union of India, AIR 1965 Kerala 229i.

20. See State of Rajasthan & others v. Union of India, AIR 1977 SC 1361.

21. See D.S. Garewal v. State of Punjab, AIR 1959 SC 512 : 1959 Supp. (1) SCR 792

22. See Sec. 118 of the Australian Constitution Act.

23. S. Mohd. Ibrahim Hadher v. Madras, 21 STC (378) (1968).

24. See R. Venkitaraman v. Central Road Traffic Board, AIR 1953 TC 392.

25. Yousoof v. State, AIR 1969 Mys. 203.

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CO-OPERATIVE FEDERALISM IN ADMINISTRATIVE MATTERS IN INDIA