This article is written by Ranojoy Middya of Lloyd Law College. The article discusses the 7th Schedule of the Indian Constitution.

Whenever we talk about the constitution of a federal nation, the major characteristics comes into our mind is the distribution of power between the Union and the State. But as far as the Indian Constitution is the concern, it is a bit divergent in nature because the concept of federalism our constitution follows conceivably ensues from the peculiar needs of our countrymen which subsequently framed a sui generis kind of federalism in India. In the context of dissemination of legislative powers, the framer of our constitution did maintain a similarity along with the pattern laid down by the Government of India Act, 1935 which allowed the predominance to be given to the union parliament over the state legislature or assemblies. The legislative powers revolve around the scheme of distribution of powers between the union and state legislature which is provided in the three lists under the 7th schedule of the constitution which entails.

Here is the detailed information about those lists under the constitution.

Union List (List I) (Parliament Legislation)

This list contains 97 items and comprises of the subjects which are of national importance and admit of uniform laws for the whole of the country. And the legislative powers to legislate these matters are solely vested in the union parliament. The integral subjects which falls within the ambit of Union List are: Defense, Foreign Affairs, Currency and Coinage, War and Peace, Atomic Energy, National Resources, Railways, Post and Telegraph, Citizenship, Navigation and Shipping, Foreign Trade, Inter-State Trade and Commerce, Banking, Insurance, National Highways, Census, Election, Institutions of higher education and others.

SEVENTH SCHEDULE

(Article 246)

List I—Union List

(Parliament Legislation)

1. Defense of India and every part thereof including preparation for defense and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilization.
2. Naval, military and air forces; any other armed forces of the Union.

2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges, and liabilities of the members of such forces while on such deployment.

3. Delimitation of cantonment areas, local self-government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas.
4. Naval, military and air force works.
5. Arms, firearms, ammunition, and explosives.
6. Atomic energy and mineral resources necessary for its production.
7. Industries declared by Parliament by law to be necessary for the purpose of defense or for the prosecution of the war.
8. Central Bureau of Intelligence and Investigation.
9. Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.
10. Foreign affairs; all matters which bring the Union into relation with any foreign country.
11. Diplomatic, consular and trade representation.
12. United Nations Organisation.
13. Participation in international conferences, associations and other bodies and implementing of decisions made thereat.
14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements, and conventions with foreign countries.
15. War and peace.
16. Foreign jurisdiction.
17. Citizenship, naturalization, and aliens.
18. Extradition.
19. Admission into, and emigration and expulsion from, India; passports and visas.
20. Pilgrimages to places outside India.
21. Piracies and crimes committed on the high seas or in the air; offenses against the law of nations committed on land or the high seas or in the air.
22. Railways.
23. Highways declared by or under law made by Parliament to be national highways.
24. Shipping and navigation on inland waterways, declared by Parliament by law to be national waterways, as regards mechanically propelled vessels; the rule of the road on such waterways.
25. Maritime shipping and navigation, including shipping and navigation on tidal waters; provision of education and training for the mercantile marine and regulation of such education and training provided by States and other agencies.
26. Lighthouses, including lightships, beacons and other provision for the safety of shipping and aircraft.
27. Ports declared by or under law made by Parliament or existing law to be major ports, including their delimitation, and the constitution and powers of port authorities therein.
28. Port quarantine, including hospitals connected therewith; seamen’s and marine hospitals.
29. Airways; aircraft and air navigation; provision of aerodromes; regulation and organization of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies.
30. Carriage of passengers and goods by railway, sea or air, or by national waterways in mechanically propelled vessels.
31. Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication.
32. Property of the Union and the revenue therefrom, but as regards property situated in a State subject to legislation by the State, save in so far as Parliament by law otherwise provides.
33. Courts of wards for the estates of Rulers of Indian States.
34. The public debt of the Union.
35. Currency, coinage and legal tender; foreign exchange.
36. Foreign loans.
37. Reserve Bank of India.
38. Post Office Savings Bank.
39. Lotteries organized by the Government of India or the Government of a State.
40. Trade and commerce with foreign countries; import and export across customs frontiers; definition of customs frontiers.
41. Inter-State trade and commerce.
42. Incorporation, regulation and winding up of trading corporations, including banking, insurance, and financial corporations, but not including co-operative societies.
43. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.
44. Banking.
45. Bills of exchange, cheques, promissory notes and other like instruments.
46. Insurance.
47. Stock exchanges and futures markets.
48. Patents, inventions, and designs; copyright; trade-marks and merchandise marks.
49. Establishment of standards of weight and measure.
50. Establishment of standards of quality for goods to be exported out of India or transported from one State to another.
51. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
52. Regulation and development of oilfields and mineral oil resources; petroleum and petroleum products; other liquids and substances declared by Parliament by law to be dangerously inflammable.
53. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union are declared by Parliament by law to be expedient in the public interest.
54. Regulation of labor and safety in mines and oilfields.
55. Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union are declared by Parliament by law to be expedient in the public interest.
56. Fishing and fisheries beyond territorial waters.
57. Manufacture, supply, and distribution of salt by Union agencies; regulation and control of the manufacture, supply and distribution of salt by other agencies.
58. Cultivation, manufacture, and sale for export, of opium.
59. Sanctioning of cinematograph films for exhibition.
60. Industrial disputes concerning Union employees.
61. The institutions known at the commencement of this Constitution as the National Library, the Indian Museum, the Imperial War Museum, the Victoria Memorial and the Indian War Memorial, and any other like institution financed by the Government of India wholly or in part and declared by Parliament by law to be an institution of national importance.
62. The institutions are known at the commencement of this Constitution as the Banaras Hindu University, the Aligarh Muslim University, and the Delhi University; the University established in pursuance of article 371E; any other institution declared by Parliament by law to be an institution of national importance.
63. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance.
64. Union agencies and institutions for—

(a) professional, vocational or technical training, including the training of police officers; or

(b) the promotion of special studies or research; or

(c) scientific or technical assistance in the investigation or detection of crime.

66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
67. Ancient and historical monuments and records, and archaeological sites and remains, [declared by or under law made by Parliament] to be of national importance.
68. The Survey of India, the Geological, Botanical, Zoological and Anthropological Surveys of India; Meteorological organizations.
69. Census.
70. Union Public Service; All-India Services; Union Public Service Commission.
71. Union pensions, that is to say, pensions payable by the Government of India or out of the Consolidated Fund of India.
72. Elections to Parliament, to the Legislatures of States and to the offices of President and Vice-President; the Election Commission.
73. Salaries and allowances of members of Parliament, the Chairman and Deputy Chairman of the Council of States and the Speaker and Deputy Speaker of the House of the People.
74. Powers, privileges, and immunities of each House of Parliament and of the members and the Committees of each House; enforcement of attendance of persons for giving evidence or producing documents before committees of Parliament or commissions appointed by Parliament.
75. Emoluments, allowances, privileges, and rights in respect of leave of absence, of the President and Governors; salaries and allowances of the Ministers for the Union; the salaries, allowances, and rights in respect of leave of absence and other conditions of service of the Comptroller and Auditor-General.
76. Audit of the accounts of the Union and of the States.
77. Constitution, organization, jurisdiction, and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practice before the Supreme Court.
78. Constitution and organization 1[(including vacations)] of the High Courts except for provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.
79. Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union territory.
80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.
81. Inter-State migration; inter-State quarantine.
82. Taxes on income other than agricultural income.
83. Duties of customs including export duties.
84. Duties of excise on tobacco and other goods manufactured or produced in India except—

(a) alcoholic liquors for human consumption;

(b) opium, Indian hemp and other narcotic drugs and narcotics,

but including medicinal and toilet preparations containing alcohol or any

a substance included in sub-paragraph (b) of this entry.

85. Corporation tax.
86. Taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies; taxes on the capital of companies.
87. Estate duty in respect of property other than agricultural land.
88. Duties in respect of succession to property other than agricultural land.
89. Terminal taxes on goods or passengers, carried by railway, sea or air; taxes on railway fares and freights.
90. Taxes other than stamp duties on transactions in stock exchanges and futures markets.
91. Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies, and receipts.
92. Taxes on the sale or purchase of newspapers and on advertisements published therein.

92A. Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce.

92B. Taxes on the consignments of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.

92C. Taxes on services.

93. Offenses against laws with respect to any of the matters in this List.
94. Inquiries, surveys, and statistics for the purpose of any of the matters in this List.
95. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction.
96. Fees in respect of any of the matters in this List, but not including fees taken in any court.
97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.

State List (List II)(State Legislation)

This list contains 66 items and speaks about the subject matters those are related to local or state interest hence it directly falls within the legislative competence of state legislature. The major ones of the State List are: state court fees, prisons, local government, public order, police, public health and sanitation, hospitals and dispensaries, pilgrimages within India, intoxicating liquors, relief of disabled and unemployable, libraries, communications, agriculture, animal husbandry, water supply, irrigation and canals, fisheries, road passenger tax and goods tax, capitation tax and others.

SEVENTH SCHEDULE

(Article 246)

List II—State List

(State Legislation)

1. Public order (but not including [the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof] in aid of the civil power).
2. Police (including railway and village police) subject to the provisions of entry 2A of List I.
3. Officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.
4. Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other States for the use of prisons and other institutions.
5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
6. Public health and sanitation; hospitals and dispensaries.
7. Pilgrimages, other than pilgrimages to places outside India.
8. Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase, and sale of intoxicating liquors.
9. Relief for the disabled and unemployable.
10. Burials and burial grounds; cremations and cremation grounds.
11. Libraries, museums, and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament] to be of national importance.
12. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.
13. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases.
14. Preservation, protection, and improvement of stock and prevention of animal diseases; veterinary training and practice.
15. Pounds and the prevention of cattle trespass.
16. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.
17. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.
18. Fisheries.
19. Courts of wards subject to the provisions of entry 34 of List I; encumbered and attached estates.
20. Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union.
21. Industries subject to the provisions of 2[entries 7 and 52] of List I.
22. Gas and gas-works.
23. Trade and commerce within the State subject to the provisions of entry 33 of List III.
24. Production, supply, and distribution of goods subject to the provisions of entry 33 of List III.
25. Markets and fairs.
26. Money-lending and money-lenders; relief of agricultural indebtedness.
27. Inns and innkeepers.
28. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.
29. Theatres and dramatic performances; cinemas subject to the provisions of entry 60 of List I; sports, entertainments, and amusements.
30. Betting and gambling.
31. Works, lands, and buildings vested in or in the possession of the State.
32. Elections to the Legislature of the State subject to the provisions of any law made by Parliament.
33. Salaries and allowances of members of the Legislature of the State, of the Speaker and Deputy Speaker of the Legislative Assembly and, if there is a Legislative Council, of the Chairman and Deputy Chairman thereof.
34. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State.
35. Salaries and allowances of Ministers for the State.
36. State public services; State Public Service Commission.
37. State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State.
38. The public debt of the State.
39. Treasure trove.
40. Land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenues.
41. Taxes on agricultural income.
42. Duties in respect of succession to agricultural land.
43. Estate duty in respect of agricultural land.
44. Taxes on lands and buildings.
45. Taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development.
46. Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India:—

(a) alcoholic liquors for human consumption;

(b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry.

52. Taxes on the entry of goods into a local area for consumption, use or sale therein.
53. Taxes on the consumption or sale of electricity.
54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I.
55. Taxes on advertisements other than advertisements published in the newspapers and advertisements broadcast by radio or television.
56. Taxes on goods and passengers carried by road or on inland waterways.
57. Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III.
58. Taxes on animals and boats.
59. Tolls.
60. Taxes on professions, trades, callings, and employment.
61. Capitation taxes.
62. Taxes on luxuries, including taxes on entertainments, amusements, betting, and gambling.
63. Rates of stamp duty in respect of documents other than those specified in the provisions of List I with regard to rates of stamp duty.
64. Offenses against laws with respect to any of the matters in this List.
65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
66. Fees in respect of any of the matters in this List, but not including fees taken in any court.

Concurrent List (List III) (Parliament & State Legislation)

This list is the most distinctive feature of Indian Constitution as it cannot be found in any other federal constitutions. Among the 47 items enumerated in the list, all can be legislated by both union parliament and the state legislature as both of them possess the concurrent power of legislation. This particular list mostly serves as a device to loosen the excessive rigidity of the two-fold distribution. It is mostly reckoned as the twilight zone of the constitution as it allows the legislative power to vary from state legislature to parliament based on the importance of the matters. Like in case of not so important matters, state legislature takes the charge and in case of important ones, Parliament does the same. Also in terms of amplification of laws passed by union parliament state legislatures do have the rights to introduce supplementary laws for the same. Few of the major listed  subjects are as follows; criminal law, criminal procedure, preventive detention for reasons concerned with the security of state, marriage and divorce, transfer of property other than agricultural land, contract, actionable wrongs, bankruptcy and insolvency, trust and trustees, administration of justice, evidence and oaths, civil procedure, contempt of court, lunacy, prevention of cruelty to animals, forests, protection of wild animals and birds, population control and family planning, trade unions, education, labour welfare, inland shipping and navigation, foodstuffs, price control, stamp duties, and others. Initially, the strength of the said list revolves around 52 but following the 42nd Constitutional Amendment, five more entries were inserted.

SEVENTH SCHEDULE

(Article 246)

List III—Concurrent List

(Parliament & State Legislation)

1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.
2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.
3. Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.
4. Removal from one State to another State of prisoners, accused persons and persons subjected to preventive detention for reasons specified in entry 3 of this List.
5. Marriage and divorce; infants and minors; adoption; wills, intestacy, and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.
6. Transfer of property other than agricultural land; registration of deeds and documents.
7. Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.
8. Actionable wrongs.
9. Bankruptcy and insolvency.
10. Trust and Trustees.
11. Administrators-general and official trustees.

11A. Administration of Justice; constitution and organization of all courts, except the Supreme Court and the High Courts.

12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings.
13. Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation, and arbitration.
14. Contempt of court, but not including contempt of the Supreme Court.
15. Vagrancy; nomadic and migratory tribes.
16. Lunacy and mental deficiency, including places for the reception or treatment of lunatics and mentally deficient.
17. Prevention of cruelty to animals.

17A. Forests.

17B. Protection of wild animals and birds.

18. Adulteration of foodstuffs and other goods.
19. Drugs and poisons, subject to the provisions of entry 59 of List I with respect to opium.
20. Economic and social planning.

20A. Population control and family planning.

21. Commercial and industrial monopolies, combines and trusts.
22. Trade unions; industrial and labour disputes.
23. Social security and social insurance; employment and unemployment.
24. The welfare of labor including conditions of work, provident funds, employers’ liability, workmen’s compensation, invalidity and old age pensions and maternity benefits.
25. Education, including technical education, medical education, and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labor.
26. Legal, medical and other professions.
27. Relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan.
28. Charities and charitable institutions, charitable and religious endowments and religious institutions.
29. Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.
30. Vital statistics including registration of births and deaths.
31. Ports other than those declared by or under law made by Parliament or existing law to be major ports.
32. Shipping and navigation on inland waterways as regards mechanically propelled vessels, and the rule of the road on such waterways, and the carriage of passengers and goods on inland waterways subject to the provisions of List I with respect to national waterways.
33. Trade and commerce in, and the production, supply, and distribution of,—

(a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;

(b) foodstuffs, including edible oilseeds and oils;

(c) cattle fodder, including oil cakes and other concentrates;

(d) raw cotton, whether ginned or unginned and cottonseed; and

(e) raw jute.

33A. Weights and measures except for the establishment of standards.

34. Price control.
35. Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.
36. Factories.
37. Boilers.
38. Electricity.
39. Newspapers, books, and printing presses.
40. Archaeological sites and remains other than those [declared by or under law made by Parliament] to be of national importance.
41. Custody, management, and disposal of property (including agricultural land) declared by law to be evacuee property.
42. Acquisition and requisitioning of property.
43. Recovery in a State of claims in respect of taxes and other public demands, including arrears of land-revenue and sums recoverable as such arrears, arising outside that State.
44. Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duty.
45. Inquiries and statistics for the purposes of any of the matters specified in List II or List III.
46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
47. Fees in respect of any of the matters in this List, but not including fees taken in any court.

Case laws on 7th Schedule of Indian Constitution

• In order to decide the very relationship of state and central legislation, Supreme Court in the case of State of A.P. and Ors. v. Mcdowell & Co. and Ors. observed as follows;

“In view of our finding that the impugned enactment is perfectly within the legislative competence of the State Legislature and is fully covered by Entry 8 read with Entry 6 of List II, it is not necessary for us to deal with the arguments based upon Clause (3) of Article 246 of the Constitution except to say the following: once the impugned enactment is within the four corners of Entry 8 read with Entry 6, no Central law whether made with reference to an entry in List I or with reference to an entry in List III can affect the validity of such State enactment. The argument of the occupied field is totally out of place in such a context. If a particular matter is within the exclusive competence of the State Legislature, i.e., in List II that represents the prohibited field for the Union. Similarly, if any matter is within the exclusive competence of the Union, it becomes a prohibited field for the States. The concept of occupied field is really relevant in the case of laws made with reference to entries in List III. In other words, whenever a piece of legislation is said to be beyond the legislative competence of a State Legislature, what one must do is to find out, by applying the rule of pith and substance, whether that legislation falls within any of the entries in List II. If it does, no further question arises; the attack on the ground of legislative competence shall fail. It cannot be that even in such a case, Article 246(3) can be employed to invalidate the legislation on the ground of legislative incompetence of State Legislature. If, on the other hand, the State legislation in question is relatable to an entry in List III applying the rule of pith and substance, then also the legislation would be valid, subject to a Parliamentary enactment inconsistent with it, a situation dealt with by Article 254. Any incidental trenching, as already pointed out, does not amount to encroaching upon the field reserved for Parliament, though as pointed out by T.L. Venkatarama Iyer, J. in A.S. Krishna v. State of Madras : 1957 SCR 399, the extent of trenching beyond the competence of the legislating body may be an element in determining whether the legislation is colourable. No such question arises here.”

• Here in the case of State of West Bengal and Ors. v. Purvi Communication (P) Ltd. and Ors. the Supreme Court laid down his observation on the validation of State Legislation over the central and was of the view that;

“It is thus clear that the cable operator, respondent 1 is the exhibitor in this case and also the provider of the entertainment to the customer. Hence, he alone can be asked to pay the tax on the entertainment that has resulted from this exhibition. This provision, therefore, does not cross the bounds of Entry 62 of List II of the Seventh Schedule to the Constitution and is intra vires. Providing a cable link up to the viewers’ end is the only role of sub-cable operator. It is, therefore, inconceivable that despite putting forth the ready entertainment in the form of a signal on the cable line, the cable operator cannot be said to be providing the entertainment within the meaning of Entry 62 of List II of the Seventh Schedule of the Constitution. So long as the State Act remains within the ambit of Entry 62 of List II and is not offending the provisions of Article 286 of the Constitution or the laws made thereunder, the State Act’s validity is beyond question. Thus, respondent 1 who is engaged in receiving and providing TV signals to individual cable operators is liable to pay tax under Clause (ii) of Sub-section (4-a) of Section 4-A of the Act.”

• In the case of G.V. Ramanaiah v. The Superintendent of Central Jail Rajahmundry and others the appellant was convicted of offenses punishable under Section 489A to 489D of IPC and sentenced to imprisonment for 10 years. On a question whether the State Government would be competent to remit the sentence of the appellant, this Court observed as under:

“The question is to be considered in the light of the above criterion. Thus considered, it will resolve itself into the issue: Are the provisions of Sections 489A to 489D of the Penal Code, under which the petitioner was convicted, a law relating to a matter to which the legislative power of the State or the Union extends?

These four Sections were added to the Penal Code under the caption, “Of Currency Notes and Bank Notes”, by Currency Notes Forgery Act, 1899, in order to make better provisions for the protection of Currency and Bank Notes against forgery. It is not disputed; as was done before the High Court in the application under Section 491(1), Criminal Procedure Code, that this bunch of Sections is a law by itself. “Currency, coinage and legal tender” are matters, which are expressly included in Entry No. 36 of the Union List in the Seventh Schedule of the Constitution. Entry No. 93 of the Union List in the same Schedule specifically confers on the Parliament the power to legislate with regard to “offenses against laws with respect to any of the matters in the Union List”. Read together, these entries put it beyond doubt that Currency Notes and Bank Notes, to which the offenses under Sections 489A to 489D relate, are matters which are exclusively within the legislative competence of the Union Legislature. It follows therefrom that the offenses for which the petitioner has been convicted, are offenses relating to a matter to which the executive power of the Union extends, and the “appropriate Government” competent to remit the sentence of the petitioner, would be the Central Government and not the State Government.” This Court went on to observe that the Indian Penal Code is a compilation of penal laws, providing for offences relating to a variety of matters, preferable to the various entries in the different lists of the 7th Schedule to the Constitution and that many of the offences in the Penal Code related to matters which are specifically covered by entries in the Union list. Since the offenses in question pertained to subject matter in the Union list, this Court concluded that the Central Government was the appropriate Government competent to remit the sentence of the appellant. The decision in G.V. Ramanaiah thus clearly lays down that it is the offense, the sentence in respect of which is sought to be commuted or remitted, which determines the question as to which Government is the appropriate Government.

• In the case of Union Of India vs V. Sriharan @, Murugan & Ors on 2 December 2015 the apex court on deciding the primacy of the Union or the State over the subject matter enlisted in List III of 7th Schedule of Indian Constitution came up with the following observations;

“Our Answer to Question posed in Para 52.4. Is:-

Question 52.4. Whether the Union or the State has primacy over the subject- matter enlisted in List III of the 7th Schedule to the Constitution of India for the exercise of the power of remission?

Answer: In respect of matters in List III of the 7th Schedule to the Constitution, ordinarily the executive power of the State alone must extend. To this general principle, there are two exceptions as stated in Proviso to Articles 73(1) of the Constitution. In the absence of any express provision in the Constitution itself or in any law made by Parliament, it is the executive power of the State which alone must extend.”

Residuary power of Parliament

The framers of the constitution made the division of matters into three parts as described above. Matters those of national importance have been framed in Union List, those of purely State or local significance must be dealt by the State List, and the matters that are of common interest to the States and the Union were placed in the very Concurrent List. By this way, the framers did ensure the uniformity in legislation with due regard to the country’s diversity. Both Parliament and State legislature possess the exclusive powers to legislate on items in Union as well as State list respectively. However, sensing the occurrence of a situation in which the legislation might be required on matters which are not present in any of the three Lists, the Founding Fathers came up with the residuary provisions in Article 248 of the Constitution and Entry 97 of the Union List according to which the residuary powers had been vested in Parliament.

Section 248 Residuary powers of legislation

(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List

(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.

Entry 97 of Union List

Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.

Hence in consonance with these both, Article 248 and Entry 97 of the Union list of Constitution of India, the legislation of residuary powers had been bestowed to the Union. In case no entry in any of the three lists covers a piece of legislation, it must be regarded as a matter not enumerated in any of the three lists and as a result of such it would be belonging exclusively to the Parliament under Entry 97, list I by virtue of Art. 248. In actual the exact scope and extent of Article 248 are acknowledged with that of entry 97, list I.

But there have been restrictions within the scope of residuary powers. This is because the three list including Union, State, and Concurrent almost cover every possible subject under the Sun. hence the onus lies on the Court to decide whether a subject matter falls under the residuary power or not. The rationality of introducing the residuary power is to enable the Parliament to register on any subjects whether be it the subjects which have escaped the scrutiny of the house, and those which are not at all recognizable at present. Therefore, the framers of the constitution clearly intended that recourse under the residuary powers would be the last resort.

Case Brief on the Residuary power of Indian Constitution

• Stressing upon the issue whether the residuary power derived from Article 248 read with entry 97, the list I, can certainly take in the power to amend the Constitution, the Supreme Court in the case of I. C. Golaknath & Ors vs State Of Punjab & Anrs. (With … on 27 February 1967 is of the view that;

“(ii) While there is a whole part devoted to the amendment of the Constitution there is no specific mention of the amendment of the Constitution in Art. 248 or in any entry of List 1. It would in the circumstances ‘be more appropriate to read the power in Art. 368 than in Art. 248 read with item 97 of List I. [826 H-827 A] The original intention of the Constitution makers was to give residuary power to the States. The mere fact that during the passage of the Constitution by the Constituent Assembly residuary power was finally vested in the Union would not, therefore, mean that it includes the power to amend the Constitution. Moreover, residuary power cannot be used to change the fundamental law of the Constitution because all legislation is under Art. 245 “subject to the provisions of this Constitution”. [827 B, H] Mere accident of similarity of the procedure provided in Art. 368 to that provided for ordinary legislation cannot obliterate the basic difference ‘between constitutional law and ordinary law. It is the quality and nature of what is done under Art. 368 and not its similarity to other procedure that should be stressed. What emerges after the procedure in Art. 368 has been followed is not ordinary law but the fundamental law. [829 D; 830 C-D].”

• On the interpretation of legislative entries, the law is well- settled by the judgment of this Court in the case of M/s. International Tourist Corporation v. the State of Haryana in the following terms:

“…Before exclusive legislative competence can be claimed for Parliament by resort to the residuary power, the legislative incompetence of the State legislature must be clearly established. Entry 97 itself is specific that a matter can be brought under that entry only if it is not enumerated in List II or List III and in the case of a tax if it is not mentioned in either of those Lists. In a Federal Constitution like ours where there is a division of legislative subjects but the residuary power is vested in Parliament, such residuary power cannot be so expansively interpreted as to whittle down the power of the State Legislature. That might affect and jeopardize the very federal principle. The federal nature of the Constitution demands that an interpretation which would allow the exercise of legislative power by Parliament pursuant to the residuary powers vested in it to trench upon State legislation and which would thereby destroy or belittle State autonomy must be rejected . . .”

• The Supreme Court of India also in the case of Association Of Leasing & … vs Union Of India & Ors on 26 October 2010 laid down their valuable emphasis on the matter of residuary powers of Indian Constitution under Article 248 and Entry 97 of Union List. During the judgment, the apex court was of the view that; 

“Now coming to the main point whether the whole field is covered by Entry 54 and that the levy of service tax is incompetent, it is important to note the language of Entry 97, List I and Article 248 except for the word “other” in Entry 97. This is because when one reads Entry 97 of List I with Article 246(1) it confers exclusive power first, to make laws in respect of matters specified in Entries 1 to 96 in List I and, secondly, it confers the residuary power of making laws by Entry 97. Article 248 does not provide for any express powers of Parliament but only for its residuary power. Article 248 adds nothing to the power conferred by Article 246(1) read with Entry 97, List I. In the context of an exhaustive enumeration of subjects of legislation what does the conferment of residuary power mean? Entry 97, List I which confers residuary powers on Parliament provides “any other matter not enumerated in List II and List III including any tax not mentioned in either of those lists”. The word “other” is important. It means “any subject of legislation other than the subject mentioned in Entries 1-96”. Lastly, we must keep in mind a clear distinction between the subject and measure of tax.”

• Further stressing upon the real essence of the functionality of residuary power under Indian Constitution, Supreme court in the case of Union Of India (Uoi) vs Shri Harbhajan Singh Dhillon on 21 October 1971 was of the view that;

“The expression “any matter not enumerated in the Concurrent List or State List” in Article 248 must mean, in the context of Clause (1) of Article 246, which gives Parliament exclusive power in respect of matters in List I. any matter other than those enumerated in any of the three Lists. Obviously, the residuary power given to Parliament in Article 248 cannot include power which is exclusively given to Parliament on matters in List I already conferred under Clause (1) of Article 246, so that an attempt to distinguish the words “any matter” in Article 248 and “any other matter” in entry 97 in Lift I is a distinction without difference. There had to be the difference in language in the two provisions in the context of the content of entry 97 as that entry speaks about matters other than those enumerated before in List I and those enumerated in the other Lists. Notwithstanding the fact that the residuary power has been vested in the Central Legislature under Article 248 and its consequence translated in entry 97 in List I, there can be no gainsaying that the idea was to assign such residuary power over matters which at the time of framing the three Lists could not be thought of or contemplated. This is clear from the fact, as pointed out by counsel, that the Lists contain as many as 209 matters which are couched in careful and elaborate words with inclusive and excluding language in the case of some, which has made the Constitution, to use the words of Gwyer, C.J., in In re the C.P. & Berar Act No. XIV of 1938, [1939] F.C.R. 18, at 38 “unique among federal Constitutions in the length and detail of its legislative Lists”. In the layout of such elaborate worded matters in the Lists and in the context of Article 246(1), the residuary power contained in Article 248 and entry 97, List I must be construed as a meaning power in respect of matters not enumerated in any of the three Lists. Such a residuary power cannot, therefore, be ordinarily claimed in respect of a matter already dealt with under an Article or an entry in any one of the three Lists. anything not included in List II or List III.”