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Presentation on Distribution of Powers between Centre, States and Local Governments

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Title: Presentation on Distribution of Powers between Centre, States and Local Governments


1
Presentation on Distribution of Powers between
Centre, States and Local Governments
  • Government of India
  • Ministry of Home affairs

2
Structure of the Indian Constitution
  • India is a Union of States.
  • There are
  • 28 States and
  • 7 Union Territories.
  • Neither federal in the classical sense.
  • Nor Unitary in character.
  • Some call it quasi federal

3
Structure of the Indian Constitution
  • Constitution of India follows a sui generis
    system of two-tier polity - the predominant
    strength of the Union is blended with the essence
    of cooperative federalism.
  • Several features have been designed to
    institutionalize the concept of cooperation.
  • The wide range of Concurrent jurisdiction and
    intertwining of certain items in the State List
    with several entries in the Union List are
    examples.

4
Structure of the Indian Constitution
  • Parliamentary / Cabinet form of Government at
    both levels i.e.-
  • Union and
  • State
  • President is de jure head of Union Government who
    acts on aid and advice of Council of Ministers,
    which comprise de facto executive.
  • Governor is de jure head of State Government who
    acts on aid and advice of Council of Ministers,
    which comprise de facto executive.

5
Structure of the Indian Constitution
  • Parliament for the Union consists of the
    President and two Houses known respectively as
    the Council of the States and the House of the
    People.
  • The Legislature of a State consists of the
    Governor and two Houses in case of the States of
    Bihar, Maharashtra, Karnataka and Uttar Pradesh
    and one House in case of all other States.

6
Structure of the Indian Constitution
  • The executive power of the Union extends to the
    matters with respect to which Parliament has
    power to make laws
  • Executive power of the Union does not,
    ordinarily, extend in any State to matters with
    respect to which the Legislature of the State has
    also power to make laws.
  • In other words, normally, the executive powers of
    the Union and the States are co-extensive with
    their legislative powers. However, with respect
    to matters in the Concurrent List, the executive
    power remains with the States unless the
    Constitution or Parliament by law expressly
    provided otherwise.

7
Legislative Relations between the Union and the
States
  • Extent of Laws made by Parliament and by the
    Legislatures of State
  • Parliament may make laws for the whole or any
    part of the territory of India.
  • Legislature of a State may make laws for the
    whole or any part of the State.

8
Division of Legislative Jurisdiction
  • There are three lists in the Seventh Schedule
  • List I (Union List)
  • List II (State List)
  • List III (Concurrent List)
  • Parliament has exclusive power to make laws with
    respect to any matter contained in List-I (Union
    List). Article 246(1)

9
Division of Legislative Jurisdiction
  • Parliament as also Legislature of any State have
    power to make laws with respect to any matter
    contained in List-III (Concurrent List).
  • Legislature of any State has exclusive power to
    make laws with respect to any matter contained in
    List-II (State List).
  • Parliament can make laws with respect to any
    matter contained in the State List for any part
    of the territory of India not included in a
    State. Article 246(4)

10
Division of Legislative Jurisdiction
  • Union List
  • The Union List includes matters, such as,
    Defence, Foreign Affairs, Foreign Jurisdictions,
    Citizenship, Railways, Posts Telegraphs,
    Telephones, Wireless, Broadcasting and other like
    forms of communication, Airways, Banking,
    Coinage, Currency, Union Duties and Taxes, etc.

11
Division of Legislative Jurisdiction
  • State List
  • The State List includes items, such as, Public
    Order, Police, Public Health, Local Government,
    Agriculture, Land, Rights in or over Land, land
    Tenures, Land Improvement, Alienation of
    Agricultural Land, Colonisation, Fisheries,
    Markets and Fairs, Money Lending and Money
    Lenders, Relief of Agricultural Indebtedness,
    etc. and certain duties and taxes.

12
Division of Legislative Jurisdiction
  • Concurrent list
  • The Concurrent List includes items of concurrent
    legislative jurisdiction of the Union and the
    States, such as, Criminal Law, Criminal
    Procedure, Administration of Justice,
    Constitution and Organisation of all Courts,
    except the Supreme Court and the High Courts,
    Marriage and Divorce, Adoption, Wills, Forests,
    Economic and Social Planning, Population control
    and Family Planning, Social Insurance, Welfare of
    Labour, etc.

13
Division of Legislative Jurisdiction
  • Residuary Powers of Legislation
  • Parliament has exclusive power to make any law
    with respect to any matter not enumerated in the
    Concurrent List or State List.
  • Such power includes the power of making any law
    imposing a tax not mentioned in either of the
    above Lists.

14
Division of Legislative Jurisdiction
  • Power of Parliament to legislate on a matter
    contained in the State List
  • Parliament can make laws with respect to any
    matter enumerated in the State List if it becomes
    necessary or expedient in national interest.
  • The Council of States must pass a resolution
    supported by not less than two-thirds of the
    members present and voting.
  • The resolution remains in force for specified
    period but not exceeding one year. It may be
    extended for a further period of one year if and
    so often the Council of States so resolves.
  • Such a law remains in force for a period of six
    months after the resolution ceases to be in
    force.

15
Division of Legislative Jurisdiction
  • Parliament may legislate on State subject while
    Proclamation of Emergency is in operation
  • While a proclamation of emergency is in
    operation, Parliament has power to make laws for
    the whole or any part of India with respect to
    any matter contained in the State List.
  • Such a law would cease to have effect after six
    months from the date proclamation of emergency
    ceases to operate.

16
Division of Legislative Jurisdiction
  • Inconsistency between laws made between the
    Parliament and laws made by the States
  • When Parliament exercises abovementioned
    overriding power to make any law in the national
    interest or while emergency is in operation, its
    law prevails over the law made by the Legislature
    of a State, whether passed before or after.

17
Division of Legislative Jurisdiction
  • Parliament may legislate on a State subject if
    two or more States consent
  • If Legislatures of two or more States resolve and
    request Parliament to make law on a subject on
    which Parliament has no power, Parliament may
    pass an Act for regulating that matter and any
    Act so passed applies to requesting States and to
    any other State which may adopt it subsequently.
  • Any Act passed in the above manner by Parliament
    may be amended or appealed by Parliament in like
    manner, but, it cannot be amended or repealed by
    an Act of Legislature of the State to which it
    applies.

18
Division of Legislative Jurisdiction
  • Inconsistency between laws made by the
    Parliament and laws made by Legislatures of the
    States
  • In the event of an inconsistency between a law
    made by the Legislature of a State and by
    Parliament, the law made by Parliament shall
    prevail. Article 254 (1)
  • Where a law of a State on any matter in the
    Concurrent List contains any provision repugnant
    to the provisions of an earlier law made by
    Parliament or an existing law with respect to
    that matter, then, the law so made by the
    Legislature of such State shall, if it has been
    reserved for the consideration of the President
    and has received his assent, prevail in that
    State. Article 254 (2)
  • Provided that nothing shall prevent Parliament
    from making at any time any law with respect to
    the same matter including a law adding to,
    amending, varying or repealing the law so made by
    the Legislature of the State.

19
Administrative Relationsbetween Centre and States
  • Obligation of the States and the Union
  • Normally, the executive powers of the Union and
    the States are co-extensive with their
    legislative powers. However, with respect to
    matters in the Concurrent List, the executive
    power remains with the States unless the
    Constitution or Parliament by law expressly
    provided otherwise.
  • Every State, in exercise of its executive power,
    has to ensure compliance with the laws made by
    Parliament and any existing laws applicable in
    the State.
  • Union Government can give directions to a State
    for this purpose.

20
Administrative Relationsbetween Centre and States
  • Control of the Union over States
  • No State can exercise its executive power so as
    to impede or prejudice the executive power of the
    Union.
  • Union can give directions to a State to ensure
    the above.
  • Union can give directions to a State as to the
    construction and maintenance of means of
    communication of national or military importance.

21
Administrative Relationsbetween Centre and States
  • In short
  • Administration of several matters in the
    concurrent sphere and enforcement of Union laws
    relating to them is secured through the machinery
    of States.
  • Three modes for enforcement of Union laws in
    concurrent field
  • Administration entrusted entirely to States
  • Administration entrusted partly to States
  • Whole responsibility reserved by Union

22
Financial Relations between the Union and the
States
  • Financial arrangements have two main aspects
  • Distribution of taxation heads (Articles 246, 248
    and 265, read with the Legislative Lists I and
    II) and
  • Distribution of revenues and sharing of resources
    between the Union and the States (Chapters I and
    II of Part XII of the Constitution).

23
Financial Relations between the Union and the
States
  • Distribution of taxation powers
  • Separate heads of taxation for the Union and the
    States are provided in Lists I and II.
  • No tax can be levied unless it is related to a
    specific head of taxation in List I or List II.
  • There is no head of taxation in the Concurrent
    List (Union and the States have no concurrent
    power of taxation).

24
Financial Relations between the Union and the
States
  • Distribution of taxation powers
  • Residuary power of taxation vests in the Union.
  • There are thirteen taxation heads comprised in
    Entries 82 to 92B in the Union List and
  • Nineteen taxation items comprised in Entries 45
    to 63 of the State List.

25
Financial Relations between the Union and the
States
  • Broad Principle of Allocation of Heads
  • Taxes which are location-specific and relate to
    subjects of local consumption have been assigned
    to the States.
  • Those taxes which are of inter-State significance
    and where the tax-payer can gain or evade tax by
    shifting his habitat, or where the place of
    residence is not a correct guide to the true
    incidence of tax, have been vested in the Union.

26
Financial Relations between the Union and the
States
  • Distribution of Revenues
  • The taxation powers allocated to the Union and
    the States are mutually exclusive.
  • But the scheme of accrual of revenues envisages
    total assignment to the States of the net
    proceeds of specified taxes and of some others,
    sharing by them.

27
Financial Relations between the Union and the
States
  • Distribution of Revenues
  • This scheme of distribution contemplates
  • Certain stamp duties and duties of excise in the
    Union List are to be levied by the Union but
    collected by the States and the proceeds
    assigned to the States in which collected.
    (Article 268).
  • Taxes mentioned in Article 269(1) shall be levied
    and collected by the Union but assigned to the
    States, within which they are levied, as laid
    down in Article 269(2).
  • Taxes levied and collected by the Union but
    shared with the States, viz., tax on
    on-agricultural income. (Article 270).

28
Financial Relations between the Union and the
States
  • Distribution of Revenues
  • Taxes which are levied and collected by the Union
    but may be shared with the States, if Parliament
    by law so provides, viz., Union Excise Duties.
    (Article 272).
  • Taxes in the Union List levied, collected and
    retained by the Union subject to the exceptions
    mentioned above.
  • Taxes in the State List, levied, collected and
    retained by the States.

29
Financial Relations between the Union and the
States
  • Grants
  • Union may pay such sums as Parliament may by law
    provide each year as grants-in-aid of the
    revenues of such States as Parliament may
    determine to be in need of assistance.
  • Union Government is required to give
    grants-in-aid to the States for the welfare of
    the Schedule Tribes and for raising the level of
    administration in the Scheduled Areas and
    separately for Assam. (Article 275).

30
Financial Relations between the Union and the
States
  • Finance Commission
  • Determination of shares of the States in the
    aforesaid taxes and duties and their inter se
    allocation as also of grants-in-aid of revenues,
    is done on the recommendations of the Finance
    Commission, constituted every after five years.
  • Every recommendation made by the Finance
    Commission together with an explanatory
    memorandum as to the action taken thereon has to
    be laid before each House of Parliament.

31
Judiciary
  • Judiciary comprises of Supreme Court at the Apex
    level and High Courts in the States as well as
    Subordinate Courts at the District and below
    level.
  • There is hierarchy in respect of jurisdiction
    with the Supreme Court and High Courts who also
    enjoy exclusive powers to enforce fundamental
    rights and adjudicate on any manner relating to
    interpretation of law and Constitutional
    provisions.

32
Judiciary
  • Supreme Court does not have any administrative or
    supervisory control over High Courts.
  • All the District Courts and other Courts in the
    State are under the administrative control of the
    High Court of that State.

33
Judiciary
  • The appointment of Judges in the Supreme Court as
    well as High Courts is made by the President of
    India in consultation with the Chief Justice of
    India.
  • In case of appointment of Judges in the High
    Court, the Chief Justice of that High Court as
    well as Governor and Chief Minister of the
    State/province are also consulted.

34
Judiciary
  • The Judges of Supreme Court and High Court enjoy
    full security of tenure and are absolutely free
    from any control of Executive or Legislature.
  • They can be removed by President only on grounds
    of proved misbehavior or incapacity if the
    Parliament through Motion as prescribed in the
    Constitution makes such recommendation to the
    President.
  • The retirement age for the Judges of the Supreme
    Court and High Courts is 65 and 62 years,
    respectively.

35
Judiciary
  • The Union Judiciary
  • Supreme Court consists of a Chief Justice of
    India and not more than 25 other judges. Art.
    124
  • Supreme Court, and no other Court, has original
    jurisdiction in any dispute
  • between the Government of India and one or more
    States or
  • between the Govt. of India and any State or
    States on one side and one or more other States
    on the other or
  • between two or more states, if and in so far as
    the dispute involves any question (whether of law
    or fact), on which the existence or extent of
    legal right depends. Art. 131
  • The Supreme Court acts as an Appellate Court in
    appeals from High Court. Article 132

36
Judiciary
  • High Courts in the States
  • There is a High Court for each State. Article
    214
  • High Court is a court of record and has all the
    powers of such a court including the power to
    punish for contempt of itself. Article 215

37
Judiciary
  • Subordinate Courts
  • Appointments of persons to be, and the posting
    and promotion of, district judges in any State
    are made by the Governor of the State in
    consultation with the High Court exercising
    jurisdiction in relation to such State. Article
    233
  • The control over district courts and courts
    subordinate thereto including the posting and
    promotion of, and the grant of leave to, persons
    belonging to the judicial service of a State and
    holding any post inferior to the post of district
    judge is vested in the High Court. Article 235

38
Local Government
39
Salient features of the 73rd Constitution
Amendment Act, 1993
  • Constitutional status for Gram Sabha (assembly of
    the community),
  • Three tier Panchayat system at the village,
    intermediate and district levels except in State
    with populations of less than 20 lakhs, where
    intermediate Panchayats may not be constituted,
  • Reservation of seats and leadership positions for
    SCs/STs and women,
  • Regular elections every 5 years,
  • Establishment of independent State Election
    Commission,
  • State Finance Commissions to be set up once in 5
    years,
  • Powers to be so devolved upon Panchayats as to
    enable them to functions as institutions of self
    government (Article 243 G read with Schedule XI).

40
Article 243 G reads as under,
  • Powers, authority and responsibilities of
    Panchayats.-
  • Subject to the provisions of this Constitution,
    the Legislature of a State may, by law, endow
    the Panchayats with such powers and authority as
    may be necessary to enable them to function
    as institutions of self-government and such law
    may contain provisions for the devolution of
    powers and responsibilities upon Panchayats at
    the appropriate level, subject to such
    conditions as may be specified therein, with
    respect to- 
  • (a) the preparation of plans for economic
    development and social justice 
  • (b) the implementation of schemes for economic
    development and social justice as may be
    entrusted to them including those in relation to
    the matters listed in the Eleventh Schedule.

41
Eleventh Schedule lists 29 matters as below
Agriculture, incl. extension
Land improvement, land reforms, consolidation
soil conservation.
Minor irrigation, water management watershed
devpment
Animal husbandry, dairying and poultry
Fisheries 
Social forestry farm forestry
Minor forest produce
Fuel and fodder
Maintenance of community assets
Rural housing
Drinking water
Poverty alleviation programme
Public distribution system
Technical training vocational education
Education, including primary and secondary
schools
Cultural activities
Libraries
Adult and non-formal education
Welfare of the weaker sections, in particular of
SCs and STs
Social Welfare, Welfare lf handicapped and
mentally retarded
Women and Child development
Family welfare
Roads, culverts,bridges, ferries, waterways
other means of communication
Non- conventional energy
Health and sanitation hospitals. Primary health
centres dispensaries
Rural electrification, distribution of
electricity
Markets Fairs
Khadi, village and cottage industries
Small scale industries, food processing
industries
42
The Panchayats (Extension to Scheduled Areas)
Act, 1996
  • Panchayati Raj extended to Tribal areas with
  • State legislation enjoined to give primacy to
    communities to manage their affairs in accordance
    with traditions and customs.
  • Gram Sabhas given extensive powers to
  • safeguard and preserve traditions, customs,
    cultural identity, community resources and
    customary mode of dispute resolution.
  • to approve the plans, programmes and projects for
    social and economic development,
  • Identify beneficiaries under poverty alleviation
    and other programmes,
  • certify utilization of funds by the Gram
    Panchayat,
  • Protect common property resources, including
    minor forest produce,
  • Be consulted prior to land acquisition.

43
Central and State Finance Commissions
  • State Finance Commission to be appointed every 5
    years
  • review the financial position of the Panchayats,
  • recommend principles to govern distribution of
    State taxes, duties, etc between State and
    Panchayats,
  • Allocation between the Panchayats of their
    respective shares of such taxes etc.,  
  • determination of taxes, duties, etc. which may be
    assigned to, or appropriated by, the Panchayats
     
  • Recommend grants-in-aid to Panchayats from State
    Consolidated Fund 
  • Recommend measures needed to improve the
    financial position of the Panchayats

44
Background Article 280 (2) (bb) of the
Constitution
  • The Central Finance Commission shall recommend
  • The measures needed to augment the Consolidated
    fund of a State
  • to supplement the resources of Panchayats in
    the State,
  • on the basis of the recommendations made by
    the Finance Commission of the State

45
Recommendation of Twelfth Finance Commission (TFC)
  • Rs.200 million payable during 2005-10 to State,
    to be transferred to Panchayats.
  • Allocation amongst various Panchayati Raj
    Institutions and also autonomous councils in
    excluded areas to be made by States.

46
Mode of release of funds
  • Two equal instalments in July and January every
    year.
  • States to mandatorily transfer the grants
    released by the Centre to the PRIs within 15 days
    of the same being credited to the States
    account.

47
Special monitoring of releases and utilisation of
grants
  • Central Review Committee headed by Secretary,
    Ministry of Finance, Department of Expenditure.
  • Separate Committee to monitor the release of
    grants to PRIs, headed by Secretary Ministry of
    Panchayati Raj,

48
Urban Local Bodies
49
Constitution (74th Amendment) Act
  • Passed by the Parliament in 1992. Came into force
    on 1st June, 1993.
  • Aims at Constitutional guarantee to safeguard the
    interest of Urban Local Bodies to enable them to
    function as effective, democratic and
    self-governing institutions at grassroots level.
  • Envisages that the Governments of States and
    Union Territories would take action to pass new
    Legislation or amend existing Laws within a
    period of one year, from the date of commencement
    of the Act.

50
Constitution (74th Amendment) Act
  • The Act provides for basic framework for Urban
    Local Bodies in India.
  • The main provisions cover the following-
  • Type and Composition of Municipalities
  • Ward Committees
  • Reservation of seats for SC/ST and Women
  • Term, Powers and Responsibilities
  • Financial Powers
  • State Finance Commission
  • District and Metropolitan Planning Committees
  • List of functions in 12th schedule

51
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