Union Government Control Over States: Peeping Through Constitution

The relationship between state and centre in a federal country like India is quite complicated. This article talks about the binding effect one has over the other and about its extent. Through landmark cases like Golaknath and Kesavananda Bharati the power of parliament to amend the Constitution is also talked about.

Union over the State: Federalism

The Government is termed as a State under the definition provided in Article 12[1] of the Constitution, although, the Government is further divided into two parts i.e., Union government and the State Government. The Central Government comprises of the Parliament and the President, while the state Government comes with the state legislative assemblies and the Governor. The difference is that the State functions under the control of the Union government (Central Government). There are powers that can be exercised by both the Governments to make laws for maintaining the public order or for the rule of law. The Legislative powers are provided in Constitution itself starting from Article 245 to Article 255 of the Constitution. Further, the powers which can be exercised by the Central and State Government are given in different provisions of the Constitution. The laws made by the State can prevail over the new laws made by the Union which is covered under Article 246(2)[2] read with Article 254(1)[3] of the Constitution which provides that the State can make any law according to the entries provided in the List III of Schedule VII, the condition is however that the law must not be repugnant to the law made by the Parliament.

Case laws

If there is a case where the State submits to the law made by the Parliament then, the law of the Union would only be applicable to the extent of law state has accepted of the Union. This means even though, the state has accepted the laws made by Parliament above the state legislature then also the state can enforce part of the state law which is not submitted to the law made by the Parliament. The same view was taken in case of R.M.D Chamarbaghwala v. State of Mysore[4], where the state has submitted to the Act passed by the Parliament not completely and kept the power of regulating tax policies in their hand. It was held by the Apex Court that it is valid and cannot be questioned until it is not repugnant to the Act passed by the Parliament.

Amendment of the Constitution

The Amendment in any act passed by the Parliament can be amended anytime by virtue of Article 368. In this, a bill is to be passed by both the houses of the Parliament and is to be later asserted by the President. At the very beginning, there was only a procedure in the Article 368 of amending a provision of the Constitution and no power of the Parliament was prescribed in this Act. It was first contended in the case of Golaknath[5], where the question was raised that If the Parliament has any power to amend any provision in the Constitution? The result was the 24th Amendment[6], which finally gave the power to the Parliament for amending the Constitution. So, if there is an amendment which changes the Act passed by the Parliament and the act of the state is repugnant to the amendment, that part of the Act bypassed by the State legislature will be void to the extent it is repugnant to the Act passed by the Parliament.

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In any way, the Central has the power over State and if the State is not functioning in accordance with the Constitution then, the Parliament by virtue of Article 356 can dissolve the state assembly and can impose President’s rule in the State and other conditions of which are provided in the Article 355 of the Constitution. In the case of emergency invoked under Article 356, the President’s rule will be applicable as long as there is no re-election and there is no new Government formed. This emergency can only be imposed for a period of 3 years.

The Union government has the power to relinquish a state in favor of any other country. There are two procedures by which this can be done. First, is the amendment through Article 368 of the Constitution where the procedure will involve the state in relinquishing its part by Amending Schedule I of the Constitution i.e., by changing the territory acquired by the particular state which is defined therein. Thus, changing the territorial area acquired by the state would result in an area that can be relinquished.

Second, if the Central does not wants to involve state in the procedure, then, through the enforcement of Article 3[7], which states that Parliament by law has the power to make new states and alteration of areas, boundaries or name of existing states i.e., it can increase or decrease the area of any state within the territory of India and can give that to any other state or country. The question is what the first schedule will remain the same and that will amount to a violation of the Constitution? Article 4 of the Constitution provides the solution for the same, that any law made under Article 2 or 3 will contain the provision to amend Schedule I and Schedule IV of the Constitution [8], thereby taking powers from the State.

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Case Laws

In case of Berubari Union[9], it was held that, “It is urged on behalf of the Union of India that if any legislative action is held to be necessary for the implementation of the Agreement a law of Parliament relatable to Article 3 of the Constitution would be sufficient for the purpose; and if that be so, there would be no occasion to take any action under Article 368 of the Constitution. The decision of this question will inevitably depend upon the construction of Article 3 itself[10]

Thus, it is clear that overall power vests in the Union government and the Union government are having an upper hand over the State. In Shankari Prasad Deov. Union of India[11], it was held that the laws made under Article 2, 3, 4, 169 and 240 should not be called an amendment under Article 368 of the Constitution and thus, the simple majority of Parliament enables the Union Government to make laws. This shows that the amendment made by the Union in the Schedule I and Schedule IV will not be recognized as an amendment. In any case, this can be challenged by the States by filing a petition under Article 131 of the Constitution invoking Original Jurisdiction of the Supreme Court.

Hence, the Central has absolute power over the State and can control the activities of it provided with the restrictions within the Constitution of India.

Also read 103RD Constitution Amendment Act, 2019

[1] Article 12 of the Constitution-Definition: In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India

[2] Article 246(2) of the Constitution: Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have the power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List).

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[3] Article 254(1) of the Constitution: If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

[4] AIR 1962 SC 594.

[5] Golak Nath v. State of Punjab, AIR 1967 SC 1643.

[6] The Constitution (Twenty-fourth Amendment) Act, 1971.

[7] Article 3 of the Constitution- Formation of new States and alteration of areas, boundaries or names of existing States: Parliament may by law
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State;

[8] Article 4 of the Constitution-Laws made under articles 2 and 3 to provide for the amendment  of the  First  and the Fourth Schedules and supplemental, incidental  and consequential  matters: (1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.

[9] Re: Berubari Union AIR 1960 SC 845.

[10] Re: Berubari Union AIR 1960 SC 845, Para. 32.

[11] AIR 1951 SC 458.