Administrative Relation (Article 256-263, Part XI)
The Scheme of allocating the administrative responsibilities is drawn for the purpose of:
- The administration of law
- Achieving co-ordination, the Centre, and the States.
- The settlement of disputes between Centre and States and between the States
- For the Purposes of Article 355
The Constitution has adopted the following techniques of coordination between the Centre and the States-
Centre-State:
- Inter-governmental delegation of administrative powers
- Centre's directions to the States
- All-India Services
- Inter-State Council.
Inter-governmental delegation of administrative powers
Delegation of powers may be done either by agreement or by legislation. While the Centre may adopt both methods, a state can delegate administrative powers on the Centre only under an agreement with Centre.
Delegation by the Centre [Article 258 (1)]:
- By Agreement: Article 258 (1) provides that the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally, that Government or to its Officers, functions in relation to any matter which the executive power of the Union extends.
- The Centre may impose conditions and what conditions are to be imposed, is for the Centre to decide.
- Delegation under Clause (1) of Article 258 may be specific, i.e., to One or more States named therein, or it may be general, i.e., to all the States general.
- Only an executive function can be delegated, not a quasi-Judicial function.
- By Legislation: Clause (2) of Article 258 empowers the Parliament to make laws authorising the delegation by the Central Government of its powers and States or officers and authorities in the States. Such a law may relate to a matter with respect to which the Legislature of the State has no power to make laws. Such matters may be those enumerated in List I and List III of the Seventh Schedule to the Constitution.
- A law made by Parliament under Clause (2) of Article 258 may either confer powers or impose duties on the States; or it may authorise the Government to delegate its powers to the States or officers or authorities.
Entrustment of State power to the centre (Article 258A)
The Governor of a State may, with the consent of the Governor of India, entrust either conditionally or unconditionally to that Government or to its officers’ functions in relation to any matter to which the executive power of the State extends.
Centre's directions to the States (Article 256 & 257)
Obligation of State: Article 256 can be divided in two parts: Firstly, it lays down that the executive powers of the State are to be exercised in such a manner that it complies with the laws made by the Parliament or any other existing laws which are applicable in the State. Secondly, it states that the executive power of the Union includes in its ambit such directions that are given to the State by the Central Government, which it deems necessary for the purpose.
- State of Rajasthan vs UOI: The Apex Court held that the issuance of directions to the State government by the Centre under Article 256 is justified if the Union Government is of the opinion that the manner in which the executive power of the State is exercised may be in contravention to the enforcement of Central Laws.
- Swaraj Abhiyan vs UOI: The Apex Court drew attention to this provision, calling it a ‘forgotten provision’. This is because of the seldom usage of this provision since the Constitution came into force.
Control of the Union over States in certain cases:
- Article 257(1) provides that the exercise of the executive powers of the State should be done in such a manner that it does not hamper or prejudice the exercise of the executive powers of the Centre. Further, the second part of this clause is like that of Article 256. It lays down that the Centre can issue directions to the State Governments for purposes deemed necessary.
- Article 257(2) provides that the executive power of the Union to issue directions to the States shall also extend to the matters of construction and maintenance of means of communication declared to be of national or military importance. Although communication are a State subject under Entry 13, List II, Schedule VII of the Constitution – the Union has been empowered to issue directions.
The provision states that nothing in this particular provision will be considered as restricting the power of the Parliament to:
- Declare certain highways or waterways as national highways or waterways.
- Construct and maintain means of communication as a part of its functions with reference to naval, military and air force purposes.
- Article 257(3) provides that the executive power of the Union to issue directions to the States shall also extend to the measures required to be taken for the protection of the railways within a particular State.
- Article 257(4) provides that for the purpose of compliance to the directions under clause (2) or clause (3), the States incur excess costs, which would not have occurred in the discharge of the normal duties of the State in the absence of such directions, then these costs shall be paid by the Government of India such sum as may be agreed. If there is a default of agreement, the sum of the extra costs so incurred by the State will be determined by an arbitrator appointed by the Chief Justice of India.
All-India Services (Article 312)
Article 312 provides that an All-India Service can be created only if the Council of State declares by a resolution supported by not less than a two-thirds majority that it is necessary in the national interest to create one or more such All-India Services.
Such a resolution should be considered as tantamount to an authority given by the States. When once such a resolution is passed, Parliament is competent to constitute such an All-India Service and lay down details connected with it.
- All India Services, by their very nature, are instruments of national integration and national unity. They ensure the maintenance of common standards all over the country in certain vital fields of administration.
- They facilitate the existence of a hard core of officials in every State who, because of their membership in a service which falls, within the jurisdiction of the Centre, feel freer and more independent to act with a national outlook and keeping in view the national interests.
Inter-State Council (Article 263)
Article 263 says establishment of an Inter-State council which may be charged with the duty of:
- Inquiring into and advising upon disputes which may have arisen between States.
- Investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest.
- Making recommendations upon any subject and interest, or recommendations for the better co-ordination of policy and action with respect to that subject.
Composition of Inter State council:
The Council consists of:
- Prime Minister – Chairman
- Chief Ministers of all States – Members
- Chief Ministers of Union Territories having a Legislative Assembly and Administrators of UTs not having a Legislative Assembly – Members
- Six Ministers of Cabinet rank in the Union Council of Ministers to be nominated by the Prime Minister – Members
Procedure of the Council: The Presidential Order provides that the Council, in the conde business, shall observe the following procedure -
- The Council shall adopt guidelines for identifying and issues to be brought before it.
- The Council may meet at least thrice in every year, at suitable time and place, as the Chairman decides.
- The meetings of the Council shall be held in camera.
- The members (including the Chairman) shall form the Quora a meeting of the Council.
- All questions at a meeting of the Council shall be decided by consensus.
The Eleventh Meeting of the Inter-State Council held on 16.07.2016 discussed the following agenda items:
- Consideration of the Recommendations of the Punchhi Commission on Centre-State Relations
- Use of Aadhaar as an identifier and use of DBT for providing Subsidies, Benefits and Public Services
- Improving Quality of School Education with focus on improving learning outcomes, incentivising better performance, etc
- Internal Security with focus on intelligence sharing and coordination for combating terrorism / insurgency, police reforms and police modernisation.
Water Dispute
Constitutional Provisions
Entry 17 of State List deals with water i.e., water supply, irrigation, canal, drainage, embankments, water storage and waterpower.
Entry 56 of Union List empowers the Union Government for the regulation and development of inter-state rivers and river valleys to the extent declared by Parliament to be expedient in the public interest.
According to Article 262, in case of disputes relating to waters:
Clause (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State River or river valley.
Two laws have been passed by Parliament:
River Board act 1956: Although the Rivers Act was passed in 1956, no river basin was formed under this Act.
The Central Government may, on a request received in this behalf from a State Government or otherwise, by notification in the Official Gazette, establish a River Board for advising the Governments.
The Board shall consist of a Chairman and such other members as the Central Government thinks fit to appoint.
Inter State Water Dispute Act 1956:
The Tribunal shall consist of a Chairman and two other members nominated in this behalf by the Chief Justice of India from among persons who at the time of such nomination are Judges of the Supreme Court or of a High Court.
Clause (2) Parliament may, by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as mentioned above.
Reason for Water Dispute
We are having more than 80 per cent of Indian rivers are inter-state rivers. According to the Central Water Commission, there are 125 inter-state water agreements in India. Many of these agreements are more than 100 years old and had been executed without seriously considering socio-economic, political, and geographical factors. New issue raised for revision of KWDT Award after Telangana.
The growing nexus between water and politics have transformed the disputes into turfs of vote bank politics. This politicisation has also led to increasing defiance by states, extended litigations and subversion of resolution mechanisms. For example, the Punjab government played truant in the case of the Ravi-Beas tribunal.
The composition of the tribunal is not multidisciplinary, and it consists of persons only from the judiciary.
The absence of authoritative water data that is acceptable to all parties currently makes it difficult to even set up a baseline for adjudication.
Protracted proceedings and extreme delays in dispute resolution. For example, in the case of Godavari water dispute, the request was made in 1962, but the tribunal was constituted in 1968 and the award was given in 1979 which was published in the Gazette in 1980.The Cauvery Water Disputes Tribunal, constituted in 1990, gave its final award in 2007.
Opacity in the institutional framework and guidelines that define these proceedings; and ensuring compliance.
CASE STUDY
Cauvery water Dispute:
In 1970, Tamil Nādu Government asked central Government to constitute Tribunal and in 1990, the tribunal was set up on the directions of Supreme Court. The Cauvery Water Disputes Tribunal passed an Interim order in 1991 directing the State of Karnataka to release Water from its reservoirs. Karnataka government refused to obey the interim award.
After 16 years of hearing and an interim order, the Tribunal announced its final order in 2007 allocating 419 tmcft water to Tamil Nadu and 270 tmcft to Karnataka.
Karnataka has not accepted the order and refused to release the water to Tamil Nadu. In 2013, Contempt of Court was issued against Karnataka.
In 2016, a petition was filed in Supreme Court to seeking the release of water by Karnataka as per the guidelines of the tribunal. When Supreme Court ordered Karnataka to release water, Kannada people protested the decision saying they do not have enough water.
Sutlej Yamuna Link:
After the bifurcation of Haryana, Punjab refused to share waters with Haryana stating it was against the riparian principle which dictates that the water of a river belongs only to the State and country or States and countries through which the river in question flows. However in 1981, Both states mutually agreed for the re-allocation of water. And in 1982, construction of canal was started. But owing to agitation in villages of Punjab, the work was stopped.
Haryana moved the Supreme court for completion of canal.
But contrary to the SC Direction, Punjab Assembly passed the Punjab Termination of Agreements Act, terminating its water-sharing agreements and thus jeopardising the construction of SYL in Punjab.
SC started hearings into a presidential reference under Article 143 to decide on the legality of the 2004 Act and declared that Punjab backed out of its promise to share the waters of rivers. Thus, the act was termed constitutionally invalid.
SC in 2020 directed the Chief Ministers of both states to negotiate and settle the SYL canal issue at the highest political level to be mediated by the Centre.
Krishna Water Dispute:
Andhra Pradesh has since asked that Telangana be included as a separate party at the KWDT and that the allocation of Krishna waters be reworked among four states, instead of three. It is relying on Section 89 of The Andhra Pradesh State Reorganisation Act, 2014.
Opposition by Karnataka and Maharashtra: - Maharashtra and Karnataka said: “Telangana was created following bifurcation of Andhra Pradesh. Therefore, allocation of water should be from Andhra Pradesh’s share which was approved by the tribunal.”
Steps Taken to address the Issue:
The Inter-State River Water Disputes (Amendment) Bill, 2019 was introduced in Lok Sabha in 2019.
Disputes Resolution Committee (DRC): Under the Bill, when a state puts in a request regarding any water dispute, the central government will set up a Disputes Resolution Committee (DRC), to resolve the dispute amicably.
The DRC will comprise of a chairperson and experts with at least 15 years of experience in relevant sectors, to be nominated by the central government. It will also comprise one member from each state (at Joint Secretary Level), who are party to the dispute, to be nominated by the concerned state government.
The DRC will seek to resolve the dispute through negotiations, within one year (extendable by six months), and submit its report to the central government. If a dispute cannot be settled by the DRC, the central government will refer it to the Inter-State River Water Disputes Tribunal. Such referral must be made within three months from the receipt of the report from the DRC.
Tribunal: The central government will set up an Inter-State River Water Disputes Tribunal, for the adjudication of water disputes. This Tribunal can have multiple benches. All existing Tribunals will be dissolved, and the water disputes pending adjudication before such existing Tribunals will be transferred to the new Tribunal.
Time frames: Under the Act, the Tribunal must give its decision within three years, which may be extended by two years. Under the Bill, the proposed Tribunal must give its decision on the dispute within two years, which may be extended by another year.
Under the Act, if the matter is again referred to the Tribunal by a state for further consideration, the Tribunal must submit its report to the central government within a period of one year. This period can be extended by the central government. The Bill amends this to specify that such extension may be up to a maximum of six months.
Decision of the Tribunal: Under the Act, the decision of the Tribunal must be published by the central government in the official gazette. This decision has the same force as that of an order of the Supreme Court. The Bill removes the requirement of such publication. It adds that the decision of the Bench of the Tribunal will be final and binding on the parties involved in the dispute. The Act provided that the central government may make a scheme to give effect to the decision of the Tribunal. The Bill is making it mandatory for the central government to make such scheme.
Data bank: Under the Act, the central government maintains a data bank and information system at the national level for each river basin. The Bill provides that the central government will appoint or authorise an agency to maintain such data bank.
River Basin Management Bill:
It proposes optimum development of inter-State rivers by facilitating inter-State coordination ensuring scientific planning of land and water resources taking basin/sub-basin as unit with unified perspectives of water in all its forms (including soil moisture, ground and surface water) and ensuring comprehensive and balanced development of both catchment and command areas.
The draft Bill proposed to establish 13 River Basin Authorities for various river basins of the country.
It is expected that enactment of the proposed legislation would result in optimum integrated development and management of inter-State River waters with basin approach and will result in change of environment from the one of conflicts to that of cooperation.
SUGGESTION
Mihir Shah Panel:
The committee has suggested a restructuring of Central Water Commission and Central Ground Water Board. It has recommended the establishment of National Water Commission to be established as the nation’s apex facilitation organization dealing with water policy, data and governance. It has suggested that industrial water should be brought under its ambit, which is rapidly increasing.
Water is a common Property: Owners of Land is not the owner of the Water.
River Basin as a unit of Planning: It is because of water link between aquifer, ground water and river flows.
To adopt the participatory approach to water management that has been successfully tried all over the world, as also in Madhya Pradesh, Gujarat and Andhra Pradesh.
NCRWC:( National Commission to Review the Working of Constitution)
Recommended a comprehensive central legislation, after consultation with states, to define the constitution and jurisdiction of river boards to regulate, develop and control all interstate rivers. States have a constitutional duty to protect the rights of its people over rivers that pass through them.