POLITY
2. Functioning and responsibilities of the union and
state , issue and challenge pertaining to the federal
structure , devolution of power and finanance upto
local levels and challenge therein
FUNCTION AND RESPONSIBILITY OF UNION AND STATE
2. Has the division of subjects into Centre, state and concurrent lists served its objective? Are there any challenges
pertaining to the division of subjects? Critically examine.The 7th schedule of the Indian Constitution having 3 lists is
formulated to ensure the federal character of Indian polity. The division has been helpful in demarcation of subjects and
fixing responsibility for lapses in administration.
Serving its purpose:
Accountability: the lists have demarcated the functions and thus help in holding the state/Centre government
answerable. E.g. imposition of president rule in UP after Babri masjid incident.
International relations and communications: UNO, foreign affairs etc., are subjects in Centre list and hence
decisions are taken with uniformity and certainty. E.g. Ex-UN secretary Kofi annan noted Indian foreign policy as
stable and credible.
External security: central government being responsible has been fairly successful in taking timely decisions with
necessary force whenever required. E.g. any delays during war time causes set back. E.g - Quick decision taken
during Kargil was possible only because the defence was entirely with the Center
Uniformity in Administration: subjects like trade and commerce, Banking, regulation of mines, labor etc., ensure
uniformity. E.g. uniform interest rate in banks, labour costs etc., ensure that every state is competent in the sphere of
economic attraction.
Principle of subsidiarity: subjects like public order, police are best administered at states and are present in state
list.
Contextual relevance: subjects in concurrent list like Agriculture, criminal law, forests, wildlife protection etc.,
needs uniformity but with contextual flexibility and hence being in concurrent list, states can decide on features
based on ground reality.
However, there are various instances where it has not served its purpose and faces several challenges.
Challenges to division of subjects:
States complain that Centre has more and important subjects and there is asymmetry in division. Thus, it results in
unitary bias. E.g. Raising loans from international market, Banking regulations etc.,
Centre uses certain subjects and responsibility as excuse and encroach upon state jurisdiction at times. E.g.
imposition of president rule, deployment of Central armed forces etc.,giving the reason of function of maintaining
internal security.
Special provisions available to Centre to legislate on state subjects:
, Article 249 – if the Rajyasabha passes resolution to give Centre power to legislate on state subjects. Centre can
confer itself power if it has majority in Rajyasabha. E.g. passing of POTA, TADA etc., in spite of several state’s
opposition.
Article 253 allowing the Centre to legislate on subjects affecting international relations. E.g. Centre passing
environmental laws.
Composition variation: States allege that the union and concurrent list has grown over the years at the cost of state
list. A majority government at the Centre helps in this. E.g. 42nd constitutional amendment transferring 5 subjects
from state to concurrent list.
Emergency provisions and president rule under article 356: results in dilution of the separation of subjects and
gives the Centre over-riding powers.
Colorable legislation:allegations on Centre to encroach upon the state jurisdiction finding the loopholes. E.g. the
recent Jammu Kashmir reorganization bill was passed under president rule.
Lack of Centre’s consultation on legislating on the concurrent list subjects. Punchhi commission recommended that
the Centre to consult states on the same.
Residuary power of parliament: under article 248 gives the Centre to legislate on subjects not mentioned in the
list. The difficulty in bringing constitutional amendment to update the 7th schedule (as it requires
constitutional amendment - special majority with 50% state approval), the new dynamicsare not reflected. E.g.
digital laws are made unilaterally by the Centre.
Dual responsibility: especially in subjects of concurrent list or subjects of overlapping jurisdiction results in conflict
of duty by both Centre and state.E.g. inter-state river flow, environment protection (declaration of economic
sensitive zone in western ghats) etc.,
Reservation of state bills to president who enjoy absolute veto. E.g. the returning of 3 bills passed by Manipur state
legislative assembly by president.
Conclusion
Alleging the bias in subject distribution, recently Telangana chief minister called for abolition of concurrent list which was
even recommended by Rajammanar committee. Though, the list served has fairly served its purpose, some of the
grievances of states are genuine. The centre has to implement recommendations of Puncchi commission om centre-state
relations like flexibility on concurrent subjects, updating the list periodically etc., to address the issue.
3. Does the decision of the union government to convert Jammu & Kashmir into a union territory and carve out
Ladakh as a separate union territory augur well with the constitutional principles? Examine.
Introduction
Recently, the government of India has repealed Article 370 of the Constitution which used to give autonomous status to the
,state of Jammu and Kashmir under Part XXI of the Constitution. After revocation of Article 370 Jammu & Kashmir is
divided into two Union Territories, one of Jammu and Kashmir with legislative assembly and another of Ladakh without
legislative assembly.
Body
Abrogation of Article 370 augur well with the Constitutional Principles
Equality Article 35A which stems from Article 370 empowers the Jammu and Kashmir legislature to define
the permanent resident of the state, and their special rights and privileges. Now the Presidential order, The
Constitution (Application to Jammu and Kashmir) Order , 2019, has scrapped Article 370 and treated the
people of erstwhile Jammu and Kashmir state equally with the other states by extending all provisions of the
Constitution of India to Jammu and Kashmir including single citizenship and Fundamental Rights.
Integration With the removal of the 1954 order, which had included a proviso to Article 3, namely that “no
Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or
boundary of that State shall be introduced in the parliament without the consent of the Legislature of that State”
the power of the Legislature ceases to exist and Parliamentary Laws, including that of reservation and
Emergency would apply to Jammu and Kashmir and Ladakh as it does in other parts of the country. Hence the
end of ‘Positive discrimination’.
Federalism - Now the Legislative Assembly of Jammu and Kashmir has a federal relation with the Centre like
the federal relation between other states and the centre. Eg. In case of inconsistencies between laws made by
Parliament and laws made by the Legislative Assembly of Jammu and Kashmir, earlier law shall prevail and
law made by the Legislative Assembly shall be void.
Sovereignty - With the introduction of Jammu and Kashmir Reorganization Bill 2019 ending special status to
the state of Jammu and Kashmir, now the Union Territories will be administered by the President, through an
administrator appointed as Lieutenant Governor. And the High court of Jammu and Kashmir will be the
common High court for both Jammu and Kashmir and Ladakh.
Abrogation of Article 370 doesn’t augur well with the Constitutional Principles
0. 1. The reduction of the state to union territory will give a fillip to the concept of Constitution being more unitary.
1. 2. The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive
excess. Since Article 370 has been used to amend Article 367(which deals with the interpretation) in respect of
Jammu and Kashmir , and this amendment has been used to amend Article 370 itself. This whole has been done
through a Presidential Order when Governor rule was going on in the valley.
2. 3. The passing of legislation as far-reaching as dismembering a State without prior consultation has set a new law.
3. 4. A purported process to change the Constitutional status of a sensitive border State has been achieved without any
legislative input or representative contribution from its people.
, Conclusion
The special status of Jammu and Kashmir was meant to end, but only with the concurrence of its people. The significant
move, in theory, opens up potential opportunities for the development led economic growth in the Union Territories of
Jammu and Kashmir and Ladakh. Thus the move is bound to have a significant impact on demography, culture, and politics
of Jammu and Kashmir.
DEVOLUTION OF FINANCE
Fiscal federalism in India has to satisfy the competing demands to deliver a number of essential and basic socio-economic
services.
Existing mechanism of devolution of finances between the Centre and the States.
Articles 268 to 293 in Part XII of the Constitution deal with Centre–state financial relations. Besides these, there are other
provisions dealing with the same subject.
Allocation of Taxing Powers: centre has exclusive union list ,state has state list and both have concurrent list to
legislate.Residuary powers are with centre
Distribution of Tax Revenues: 41% of the total share of tax of Union will go to states as per recommendation of
FC.And FC is required to recommend the distribution of the net proceeds of taxes in vertical devolution and
horizontal devolution. GST Proceedings are distributed according to CGST, Act and SGST, Act. The Constitution
also draws a distinction between the power to levy and collect a tax and the power to appropriate the proceeds of the
tax so levied and collected. For example, the income-tax is levied and collected by the Centre but its proceeds are
distributed between the Centre and the states.
Distribution of Non-tax Revenues: The Centre The receipts from the following form the major sources of non-tax
revenues of the Centre: (i) posts and telegraphs; (ii) railways; (iii) banking; (iv) broadcasting (v) coinage and
currency; (vi) central public sector enterprises; and (vii) escheat and lapse. The States The receipts from the
following form the major sources of non-tax revenues of the states: (i) irrigation; (ii) forests; (iii) fisheries; (iv) state
public sector enterprise; and (v) escheat and lapse.
Grants-in-Aid to the States: Besides sharing of taxes between the Centre and the states, the Constitution provides
for grants-in-aid to the states from the Central resources.
Statutory Grants: Article 275 empowers the Parliament to make grants as per recommendation of
FC to the states which are in need of financial assistance and not to every state.Which charged on the
Consolidated Fund of India every year. Apart from this general provision, the Constitution also
provides for specific grants for promoting the welfare of the scheduled tribes in a state or for raising
the level of administration of the scheduled areas in a state including the State of Assam.
Discretionary Grants: Article 282 empowers both the Centre and the states to make any grants for
any public purpose, even if it is not within their respective legislative competence. Under this
2. Functioning and responsibilities of the union and
state , issue and challenge pertaining to the federal
structure , devolution of power and finanance upto
local levels and challenge therein
FUNCTION AND RESPONSIBILITY OF UNION AND STATE
2. Has the division of subjects into Centre, state and concurrent lists served its objective? Are there any challenges
pertaining to the division of subjects? Critically examine.The 7th schedule of the Indian Constitution having 3 lists is
formulated to ensure the federal character of Indian polity. The division has been helpful in demarcation of subjects and
fixing responsibility for lapses in administration.
Serving its purpose:
Accountability: the lists have demarcated the functions and thus help in holding the state/Centre government
answerable. E.g. imposition of president rule in UP after Babri masjid incident.
International relations and communications: UNO, foreign affairs etc., are subjects in Centre list and hence
decisions are taken with uniformity and certainty. E.g. Ex-UN secretary Kofi annan noted Indian foreign policy as
stable and credible.
External security: central government being responsible has been fairly successful in taking timely decisions with
necessary force whenever required. E.g. any delays during war time causes set back. E.g - Quick decision taken
during Kargil was possible only because the defence was entirely with the Center
Uniformity in Administration: subjects like trade and commerce, Banking, regulation of mines, labor etc., ensure
uniformity. E.g. uniform interest rate in banks, labour costs etc., ensure that every state is competent in the sphere of
economic attraction.
Principle of subsidiarity: subjects like public order, police are best administered at states and are present in state
list.
Contextual relevance: subjects in concurrent list like Agriculture, criminal law, forests, wildlife protection etc.,
needs uniformity but with contextual flexibility and hence being in concurrent list, states can decide on features
based on ground reality.
However, there are various instances where it has not served its purpose and faces several challenges.
Challenges to division of subjects:
States complain that Centre has more and important subjects and there is asymmetry in division. Thus, it results in
unitary bias. E.g. Raising loans from international market, Banking regulations etc.,
Centre uses certain subjects and responsibility as excuse and encroach upon state jurisdiction at times. E.g.
imposition of president rule, deployment of Central armed forces etc.,giving the reason of function of maintaining
internal security.
Special provisions available to Centre to legislate on state subjects:
, Article 249 – if the Rajyasabha passes resolution to give Centre power to legislate on state subjects. Centre can
confer itself power if it has majority in Rajyasabha. E.g. passing of POTA, TADA etc., in spite of several state’s
opposition.
Article 253 allowing the Centre to legislate on subjects affecting international relations. E.g. Centre passing
environmental laws.
Composition variation: States allege that the union and concurrent list has grown over the years at the cost of state
list. A majority government at the Centre helps in this. E.g. 42nd constitutional amendment transferring 5 subjects
from state to concurrent list.
Emergency provisions and president rule under article 356: results in dilution of the separation of subjects and
gives the Centre over-riding powers.
Colorable legislation:allegations on Centre to encroach upon the state jurisdiction finding the loopholes. E.g. the
recent Jammu Kashmir reorganization bill was passed under president rule.
Lack of Centre’s consultation on legislating on the concurrent list subjects. Punchhi commission recommended that
the Centre to consult states on the same.
Residuary power of parliament: under article 248 gives the Centre to legislate on subjects not mentioned in the
list. The difficulty in bringing constitutional amendment to update the 7th schedule (as it requires
constitutional amendment - special majority with 50% state approval), the new dynamicsare not reflected. E.g.
digital laws are made unilaterally by the Centre.
Dual responsibility: especially in subjects of concurrent list or subjects of overlapping jurisdiction results in conflict
of duty by both Centre and state.E.g. inter-state river flow, environment protection (declaration of economic
sensitive zone in western ghats) etc.,
Reservation of state bills to president who enjoy absolute veto. E.g. the returning of 3 bills passed by Manipur state
legislative assembly by president.
Conclusion
Alleging the bias in subject distribution, recently Telangana chief minister called for abolition of concurrent list which was
even recommended by Rajammanar committee. Though, the list served has fairly served its purpose, some of the
grievances of states are genuine. The centre has to implement recommendations of Puncchi commission om centre-state
relations like flexibility on concurrent subjects, updating the list periodically etc., to address the issue.
3. Does the decision of the union government to convert Jammu & Kashmir into a union territory and carve out
Ladakh as a separate union territory augur well with the constitutional principles? Examine.
Introduction
Recently, the government of India has repealed Article 370 of the Constitution which used to give autonomous status to the
,state of Jammu and Kashmir under Part XXI of the Constitution. After revocation of Article 370 Jammu & Kashmir is
divided into two Union Territories, one of Jammu and Kashmir with legislative assembly and another of Ladakh without
legislative assembly.
Body
Abrogation of Article 370 augur well with the Constitutional Principles
Equality Article 35A which stems from Article 370 empowers the Jammu and Kashmir legislature to define
the permanent resident of the state, and their special rights and privileges. Now the Presidential order, The
Constitution (Application to Jammu and Kashmir) Order , 2019, has scrapped Article 370 and treated the
people of erstwhile Jammu and Kashmir state equally with the other states by extending all provisions of the
Constitution of India to Jammu and Kashmir including single citizenship and Fundamental Rights.
Integration With the removal of the 1954 order, which had included a proviso to Article 3, namely that “no
Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or
boundary of that State shall be introduced in the parliament without the consent of the Legislature of that State”
the power of the Legislature ceases to exist and Parliamentary Laws, including that of reservation and
Emergency would apply to Jammu and Kashmir and Ladakh as it does in other parts of the country. Hence the
end of ‘Positive discrimination’.
Federalism - Now the Legislative Assembly of Jammu and Kashmir has a federal relation with the Centre like
the federal relation between other states and the centre. Eg. In case of inconsistencies between laws made by
Parliament and laws made by the Legislative Assembly of Jammu and Kashmir, earlier law shall prevail and
law made by the Legislative Assembly shall be void.
Sovereignty - With the introduction of Jammu and Kashmir Reorganization Bill 2019 ending special status to
the state of Jammu and Kashmir, now the Union Territories will be administered by the President, through an
administrator appointed as Lieutenant Governor. And the High court of Jammu and Kashmir will be the
common High court for both Jammu and Kashmir and Ladakh.
Abrogation of Article 370 doesn’t augur well with the Constitutional Principles
0. 1. The reduction of the state to union territory will give a fillip to the concept of Constitution being more unitary.
1. 2. The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive
excess. Since Article 370 has been used to amend Article 367(which deals with the interpretation) in respect of
Jammu and Kashmir , and this amendment has been used to amend Article 370 itself. This whole has been done
through a Presidential Order when Governor rule was going on in the valley.
2. 3. The passing of legislation as far-reaching as dismembering a State without prior consultation has set a new law.
3. 4. A purported process to change the Constitutional status of a sensitive border State has been achieved without any
legislative input or representative contribution from its people.
, Conclusion
The special status of Jammu and Kashmir was meant to end, but only with the concurrence of its people. The significant
move, in theory, opens up potential opportunities for the development led economic growth in the Union Territories of
Jammu and Kashmir and Ladakh. Thus the move is bound to have a significant impact on demography, culture, and politics
of Jammu and Kashmir.
DEVOLUTION OF FINANCE
Fiscal federalism in India has to satisfy the competing demands to deliver a number of essential and basic socio-economic
services.
Existing mechanism of devolution of finances between the Centre and the States.
Articles 268 to 293 in Part XII of the Constitution deal with Centre–state financial relations. Besides these, there are other
provisions dealing with the same subject.
Allocation of Taxing Powers: centre has exclusive union list ,state has state list and both have concurrent list to
legislate.Residuary powers are with centre
Distribution of Tax Revenues: 41% of the total share of tax of Union will go to states as per recommendation of
FC.And FC is required to recommend the distribution of the net proceeds of taxes in vertical devolution and
horizontal devolution. GST Proceedings are distributed according to CGST, Act and SGST, Act. The Constitution
also draws a distinction between the power to levy and collect a tax and the power to appropriate the proceeds of the
tax so levied and collected. For example, the income-tax is levied and collected by the Centre but its proceeds are
distributed between the Centre and the states.
Distribution of Non-tax Revenues: The Centre The receipts from the following form the major sources of non-tax
revenues of the Centre: (i) posts and telegraphs; (ii) railways; (iii) banking; (iv) broadcasting (v) coinage and
currency; (vi) central public sector enterprises; and (vii) escheat and lapse. The States The receipts from the
following form the major sources of non-tax revenues of the states: (i) irrigation; (ii) forests; (iii) fisheries; (iv) state
public sector enterprise; and (v) escheat and lapse.
Grants-in-Aid to the States: Besides sharing of taxes between the Centre and the states, the Constitution provides
for grants-in-aid to the states from the Central resources.
Statutory Grants: Article 275 empowers the Parliament to make grants as per recommendation of
FC to the states which are in need of financial assistance and not to every state.Which charged on the
Consolidated Fund of India every year. Apart from this general provision, the Constitution also
provides for specific grants for promoting the welfare of the scheduled tribes in a state or for raising
the level of administration of the scheduled areas in a state including the State of Assam.
Discretionary Grants: Article 282 empowers both the Centre and the states to make any grants for
any public purpose, even if it is not within their respective legislative competence. Under this
