Administrative Relations and Federal Comity

Notice that this is a power to direct the manner of compliance with a law of Parliament. It is not a general power to direct a State on anything.

Article 257: the State must not impede the Union

Article 257(1) states the converse duty in general terms: the executive power of a State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the Union may give such directions as appear necessary for that purpose.

Clauses (2) and (3) then give two specific powers, which are narrower and more concrete.

Communications of national or military importance. The Union may direct a State as to the construction and maintenance of such means of communication, even though they may be a State subject. Roads are in the State List.

Protection of the railways. The Union may direct a State on measures to be taken for protecting railways within the State.

Article 257(4) provides that where a State incurs extra costs in carrying out such a direction, the Union must pay the State the amount of those costs, as agreed or as determined by an arbitrator appointed by the Chief Justice of India. That is a genuinely federal provision, and it is worth naming.

Articles 258 and 258A: functions moving both ways

Article 258(1) lets the President, with the consent of the State Government, entrust to that Government or its officers functions relating to any matter to which the executive power of the Union extends. This is how central schemes are run through State machinery.

Article 258(2) goes further and does not require consent. A law made by Parliament which applies in a State may confer powers and impose duties upon the State or its officers, even in relation to a matter outside the State's own executive power. The State must comply, and article 258(3) requires the Union to pay any extra administrative cost.

Article 258A, inserted by the Seventh Amendment, allows the traffic in the other direction: the Governor of a State may, with the consent of the Government of India, entrust to that Government or its officers functions relating to any matter to which the executive power of the State extends. It was added because the original Constitution allowed entrustment only downwards, which turned out to be a gap.

Articles 259 and 260 complete the picture. Article 260 permits the Government of India, by agreement with the government of a territory not part of India, to undertake executive, legislative or judicial functions in relation to it.

Article 261: full faith and credit

Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. Parliament may by law provide how such acts and records are to be proved, and final judgments or orders delivered by civil courts in any part of India are capable of execution anywhere in India according to law.

The provision is modelled on article IV of the United States Constitution. In India it matters less than it does there, because the judicial system is integrated and the substantive law is largely uniform, but it is the article that makes a decree of one State's court executable in another.

Article 365: the sanction behind the directions

The direction powers in articles 256 and 257 would be advisory without a sanction, and article 365 supplies one:

Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.

That sentence connects Chapter II to article 356. Non-compliance with a direction is not itself a ground for dismissal; it is a ground on which the President may hold that the article 356 condition is satisfied. The word is permissive, and after S.R. Bommai the holding is reviewable like any other satisfaction under article 356. See [President's Rule].

Federal comity

This is the doctrine MU's phrase about trust and faith points at, and it deserves a name in an answer.

The idea. In a federation the two levels are not adversaries and not strangers. Each holds powers that could, if pressed to their limit, frustrate the other's functioning. The Constitution does not spell out most of the restraints that stop that happening, so the courts have supplied a principle: the Union and the States should each exercise their powers with due regard to the legitimate interests of the other, and neither should use a power it undoubtedly possesses in a manner calculated to obstruct the other's functioning.

Where it shows up. In the construction of a direction under article 256 or 257, in the exercise of the Governor's discretion, in the reservation of Bills for the President's consideration, in the timing of an article 356 Proclamation, and in the way the Union deploys central agencies within a State.

What kind of rule it is. For most of its life federal comity has been a principle of interpretation and of political practice rather than a rule producing a remedy. It tells a court how to read a power; it has rarely told a court to strike something down. That is changing at the margins, and the recent litigation about a Governor's indefinite delay in dealing with Bills is the clearest example, dealt with in [The Governor].

How to use it in the essay. MU's question asks about a "relationship of trust and faith". The honest answer is that the Constitution left a great deal of the federal relationship to good faith because a holding-together federation drafted in 1949 could not anticipate every way the Centre and a State might fall out, and that where the good faith has broken down, the courts have had to convert an expectation into a rule. Bommai did that for article 356. The assent litigation is doing it for article 200. The chapters on both are the evidence for the proposition.

A worked example

State U declines to enforce a central Act within its territory, instructing its police not to register offences under it. The Union issues a direction under article 256 requiring the State to ensure compliance. The State ignores the direction. The Union proposes to act under article 356.

Is the direction lawful? Article 256 obliges every State to exercise its executive power so as to ensure compliance with laws made by Parliament, and empowers the Union to give such directions as appear necessary for that purpose. A direction to enforce a central Act is squarely within it. Note that article 256 is about compliance with a law of Parliament; it is not a general power to direct a State on anything.

What does non-compliance do? Article 365 provides that where a State has failed to comply with a direction, it shall be lawful for the President TO HOLD that a situation has arisen in which the government of the State cannot be carried on in accordance with the Constitution. The word is permissive. Non-compliance does not automatically justify a Proclamation; it makes the holding available.

Is the holding reviewable? Yes. After Bommai the satisfaction under article 356 is a conditioned power resting on relevant material, and the Proclamation may be struck down if mala fide or based on wholly irrelevant or extraneous grounds. The Union must produce the material.

What should the Union do first? Sarkaria recommended a warning and the exhaustion of alternatives, and Bommai says those recommendations merit serious consideration. Article 356 is a last resort, and a Union that reaches for it without first pressing article 256 and article 257 has weakened its own case.

The comity point. A State that refuses to enforce a valid central law, and a Union that dismisses a government at the first opportunity, are each using a power they have in a way that defeats the other's functioning. That is what federal comity forbids.

Quick revision

• The States administer central law, so the Union needs a power to direct them: article 256 for compliance with Union law, article 257 for not impeding the Union.
• Article 257 adds two specific powers, over communications of national or military importance and the protection of railways, with the extra cost payable by the Union under 257(4).
• Articles 258 and 258A move functions down and up; 258(2) can impose duties on a State by a law of Parliament without its consent.
• Article 261 is full faith and credit, making a civil decree executable throughout India.
• Article 365 is the sanction: failure to comply with a direction lets the President hold that the article 356 condition is met, and that holding is reviewable after Bommai.
• Federal comity is the name for the restraint the text does not impose, and it is what MU's phrase "trust and faith" is describing.

Test yourself

1. Why does the Constitution give the Union a power to direct the States on administration, when it does not divide administration the way it divides legislation?

2. Distinguish the direction power in article 256 from that in article 257, and name the two specific powers in article 257 with the cost provision that accompanies them.

3. What do articles 258 and 258A each permit, and which of them does not require consent?

4. Explain article 365 and its relationship with article 356. What is the significance of the word "may"?

5. What is federal comity, and how does it relate to MU's phrase "trust and faith"?