This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article is an insight into the division of powers in India, its background, and the scheme of legislative powers under the Indian Constitution. It further deals with the scheme of Article 246 of the Indian Constitution.
It has been published by Rachit Garg.
Table of Contents
The basic principle of federation is that legislative and executive authority is divided between the centre and the states by the Constitution itself, not by any law made by the centre. As Dr B.R. Amedkar correctly stated that in the Constitutional Assembly debates, the states are not dependent on the centre for legislative or executive authority. The states and the centre are on an equal footing in this regard.
The aforementioned statement makes it clear that the Indian Constitution established a federal system as the main framework for the country’s governance. The Constitution grants the union and the states their authority by dividing all of the available powers among them, including the legislative, executive, and financial spheres. As a result, rather than serving as the union’s representatives, the states operate independently within the constraints outlined in the Constitution. This article deals in detail with Article 246 of the Indian Constitution.
Conceptual background of the division of powers
The history of the modern nation-state and its administrative elements is conceptually linked with the division of power. It was fundamentally based on the concept of separation of powers. Jean Bodin was the first modern author to advocate for the separation of powers. Later, Montesquieu enunciated and described his theory of separation of powers in his work ‘The Spirit of the Laws’ in 1748.
- The people’s freedom is threatened if the legislative and executive branches are merged into one organ as it results in the tyrannical exercise of these two powers.
- The interpretation of laws is rendered worthless if the judicial and legislative branches of government are integrated into one body as the lawmaker also acts as the law’s interpreter and never confesses when his laws are wrong.
- The administration of justice becomes meaningless and flawed if the judicial and executive powers are merged and assigned to one individual or one institution since the police (executive) then function as the judiciary.
Finally, when all three organs of government, i.e., legislative, executive, and judicial, are united and entrusted to a single person or body, there is such a large concentration of power that liberty is all but eliminated. It indicates the entity’s or component’s despotism. As a result, the three functions should not be integrated and should not be designated to a single or two organs. These three functions should be carried out individually by three different government bodies.
Later, the British jurist Blackstone and the founding authors of the American Constitution, particularly Madison, Hamilton, and Jefferson, fully supported the notion of separation of powers. They believed that the separation of powers was essential to the preservation of the people’s liberty.
In fact, the federating states reach an agreement, form a national state, and create the laws that govern their relations. The division of powers of each federation was influenced by the specific political conditions surrounding its formation. The division of power within each federation reflects the strategy taken by the individuals in charge of drafting the Constitution. Despite disparities existing in the specifics of legislative power distribution, there is one reality that applies to all federations: the allocation of legislative power dictates the distribution of executive authority.
Naturally, rules governing Centre-State interactions should, of course, be incorporated into any federal Constitution. Given the country’s vastness and socioeconomic diversity, the framers of the Indian Constitution desired a federal structure. The Indian federal system was not founded by a treaty or agreement amongst its member states. The allocation of certain powers and functions to the states under the Constitution transformed India’s unitary administrative structure into a federal one.
The Government of India Act, 1935 envisaged the federal scheme and, for the first time, introduced the federal concept in India and made legal use of the word ‘Federation,’ even though the process of decentralisation and devolution of power had begun since the earlier Government of India Act, 1919. Although the Constitution does not exactly follow the envisaged division of legislative power between the Union and the States in the Government of India Act of 1935, the fundamental principles remain the same.
Division of powers under the Indian Constitution
The essential principles guiding the division of powers between the Central and state governments are outlined in Part XI of Article 246 of the Indian Constitution. This part consists of two chapters: legislative relations and administrative relations. The Indian Constitution has two lists of legislative authority, one for the Centre and one for the states. The residue is left in the Centre. This approach is similar to the one outlined in the Canadian Constitution. Following in the footsteps of the Australian Constitution, the Concurrent List has also been incorporated into the Indian Constitution.
Scheme of distribution of legislative powers
Under the present Constitution, legislative powers are divided into two categories:
- Territorial and,
- Subject matter
In terms of subject matter, the Constitution adopts a three-tiered division of legislative powers by placing them in one of three lists: the Union List, State List, or Concurrent List. In India, the Constitutional provisions governing the division of legislative powers between the Union and the states are divided among numerous Articles (Articles 245-254). However, the most essential and fundamental of these provisions are found in Articles 245-246. Article 246 is significant from the viewpoint of the subject matter of legislation.
Distribution of legislative powers with respect to the territory
The territorial distribution of the Union’s and the states’ legislative powers is covered in Article 245 of the Constitution. It states that the state legislature may make laws for the entire state or any part of it and that Parliament may enact laws for the whole or a portion of the territorial area.
Theory of territorial nexus
Article 245 (1) of the Indian Constitution states that a State Legislature may make laws for the state’s territory. However, the state legislature cannot adopt extraterritorial legislation unless there is a significant connection or nexus between the state and the object, i.e., the subject matter of the legislation (the object may not be physically located within the territorial limits of the state).
According to this doctrine, a state’s legislature may make laws for the entire state or for any part of it. This indicates that state laws are null and void if they have extraterritorial application, i.e., if they apply to subjects or objects located outside the state’s territory. There is, however, one exception to the general norm. If there is a sufficient relationship between the item and the state, state legislation of extraterritoriality will be valid. It is accomplished by the use of the “doctrine of territorial nexus.”
So, to determine whether certain state law has extraterritorial application, the doctrine of territorial nexus is applied. It means that the subject of the legislation need not be physically situated inside the state’s boundaries, but rather must have a close enough territorial relationship with the state. If there is a territorial connection between the subject matter of the Act and the state making the law, the statute is not considered to have extra-territorial application.
Extra-Territorial operation of Parliamentary Law
Article 245 (2) of the Indian Constitution states that no law passed by Parliament is invalid because it has extraterritorial application. From a territorial standpoint, Parliament may enact laws that apply to all or part of India. Legislation enacted by Parliament is not void just because it has extraterritorial application.
Distribution of legislative powers with respect to the subject matter
The Indian Constitution is unambiguously in favour of centralisation within a federal framework. The purpose of the Constitution is to grant a constitutionally powerful Centre with sufficient powers, both in terms of scope and nature, to protect and uphold the nation’s unity and integrity.
The Indian Constitution aims to create three distinct functional areas:
- an exclusive area for the Centre;
- an exclusive area for the States; and
- a shared or concurrent area in which the Centre and the States may coexist, subject to the Centre’s ultimate supremacy.
The scheme of Article 246 is as follows
According to Article 246(1), Parliament has the “exclusive power” to enact laws regarding any item on the Union List (List I in the Seventh Schedule). This List includes entries such as the necessity for a uniform law for the entire country. The states have no authority to enact legislation in this area. This means that any topic under the Centre’s exclusive competence, i.e., List I, becomes a prohibited field for the States.
The availability of a broad contemporaneous field for the Centre and the states is a distinctive aspect of the Indian concept of division of powers. Concurrent legislative power over the matters on the Concurrent List, i.e., List III in the Seventh Schedule, is granted to the Centre and the states under Article 246 (2).
Article 246 (3) gives the states the exclusive power to make laws concerning the items included in the State List (List II in the Seventh Schedule). These are issues that allow for local variances and are best handled at the state level from an administrative standpoint; hence, the Centre is barred from legislating on these issues. As a result, if a certain topic comes under the exclusive competence of the states, i.e., List II, that is the prohibited field for the Centre.
Under Article 246(4), Parliament has the power to enact legislation for any area of India’s territory not covered by a state, even if that area is covered by one of the items on the State List.
The Union List
It has 97 items and covers subjects that are significant to the country. Defence, armed forces, arms and ammunition, atomic energy, foreign affairs, war and peace, citizenship, extradition, railways, shipping and navigation, airways, posts and telegraphs, telephones, wireless and broadcasting, currency, foreign trade, inter-state trade and commerce, banking, insurance, control of industries, regulation and development of mines, mineral and oil resources, elections, audit of government accounts, Constitution and organisation of the Supreme Court, High Courts, and union public service commission, income tax, customs duties and export duties, duties of excise, corporation tax, taxes on the capital value of assets, estate duty, and terminal taxes are examples of the matters that can only be regulated by the Union Parliament.
The State list
It consists of 66 items that are of local or state importance and, as such, fall under the purview of state legislatures’ legislative power. These subjects include maintaining law and order, police forces, healthcare, transportation, land policies, electricity in the state, village administration, and other important local interests. On these issues, only the state legislature has the authority to make laws.
The Concurrent list
It contains 47 subjects over which the state Legislature and the Union Parliament both have concurrent legislative power. Both the national government and the governments of the states are concerned about the topics on this list. Marriage and divorce, transfers of property other than agricultural land, contracts, bankruptcy and insolvency, trustees and trusts, civil procedure, contempt of court, adulteration of food, drugs and poisons, economic and social planning, trade unions, labour welfare, electricity, newspapers, books, and printing presses, stamp duties, and so on.
Both the Central and state governments have the power to legislate on issues in the concurrent list. If state law and a central law on a subject on this list contradict, union law should normally take precedence. On the other hand, state law will take precedence if a piece of state legislation that was intended for the President’s assent receives his approval. Article 248 gives the Union Parliament the authority to act on matters not covered by any of the three lists. Thus, in India, the union government has residuary powers.
According to Article 248 of the Constitution, Parliament has the exclusive authority to enact any legislation on any subject that is not included by the Concurrent List or the State List. This authority extends to laws that impose taxes on subjects that are not covered by either of those lists. The Union Parliament obtained exclusive legislative authority as a result of this Article. Parliament has the exclusive jurisdiction to enact laws on any topic not covered by Lists II or III, according to Entry 97 of the Union List. The purpose of the residual power is to give the parliament the ability to pass laws on any matter that has slipped the house’s scrutiny and is still unrecognised.
The residuary authority is specifically recognised as the ultimate head of power in the Union by Entry 97 of List I of the Seventh Schedule and Article 248 of the Indian Constitution. The Supreme Court determined in the well-known I. C. Golaknath v. the State of Punjab (1967) case that Article 248 read with Entry 97 of List I granted Parliament the authority to amend the Constitution, but Article 368 only addressed the method. Although there is no justification for using a residual power to amend the Constitution, in light of the 24th Amendment to the Constitution and the Supreme Court’s decision in Kesavananda Bharati v. the State of Kerala (1973), Article 368 should be interpreted to include both the power and the procedure for doing so.
In Union of India v. H.S. Dhillon (1971), the issue in question was whether or not Parliament had the authority to enact the Wealth-tax Act, which levied a wealth tax on a person’s holdings in agricultural land. The Court determined that the proper standard for central legislation was to establish whether the item was under List-II (State List) or List III (Concurrent List). If it is ruled that the subject does not fall within List II, List I Entry 97 will allow Parliament to use its residual power to enact legislation on the matter. Whether or not it falls under Entries 1-96 of the List, in this case, is irrelevant.
Following Dhillon’s case, the Supreme Court stated in Attorney General for India v. Amratlal Prajivandas, (1994) that the criteria for determining the legislative authority of Parliament are as follows:
- If the authority of Parliament to pass a particular piece of legislation is questioned, one must look to the items in List II.
- If the said statute is not related to any of the entries in List II, no further investigation is required because Parliament will be competent to enact the said statute either through the entries in List I and List III or through the residuary power contained in Article 248 read with entry 97, List I.
As a result, the division of legislative powers under the Constitution is heavily tilted towards the centre.
Principles of interpretation
The principle that responsibilities of national relevance should be given to the Centre and those of local interest should be assigned to the state is a fundamental test used to determine which subjects should be allocated to which level of government. In all federal nations, this test does not provide a regular pattern of power and function allocation between the two levels of government since it is fairly generic and functions as a kind of ad hoc formula. This disparity results from the inability to categorically separate what is of general or national significance from what is of local significance.
Defence, foreign policy, and financial issues are all seen to be of national importance and are so assigned to the Centre. What other disciplines should be included in the Centre, however, is determined by the demands of the nation’s situation, people’s attitudes, and the philosophy prevalent at the time the Constitution was established, as well as the role the Centre is expected to play in the future.
The predominance of Union Law and limitations of State Legislatures
- When three lists overlap regarding a particular subject, the Union Law is given precedence.
- In the concurrent sphere, Union Law takes precedence over State Law in cases of repugnance or discrepancy regarding the same issue.
- The Union List includes several issues that would ordinarily fall under the competence of the states, such as industries, elections and audits, interstate trade, and so on.
- The Union is given the power to legislate with respect to any topic not specified in any of the three categories. One example of this is taxation.
- In some circumstances, the Union Legislature’s authority is increased. In the following situations, Parliament may pass laws pertaining to State List issues:
- When a two-thirds majority vote of the Rajya Sabha, the Council of States, deems it necessary in the interest of the country.
- When a state of emergency has been declared.
- When the Constitutional machinery of the state has failed.
- By agreement among states, with the approval of state legislatures to implement international accords and conventions.
- Certain sorts of measures cannot be introduced in state legislatures without the President’s prior approval. Furthermore, many laws passed by state legislatures can take effect only after they get the President’s assent and are set aside for review by the state governor.
Entries to be interpreted broadly
The three Lists’ entries don’t always present information in a logical or empirical manner. It is practically impossible to define a list item such that it is exclusive to every other list item. An item in the multiple lists should be thoroughly read, subject to the Union List’s supremacy.
The Supreme Court ruled in Calcutta Gas Ltd. v. State of Bengal (1961) that each entry should be given the “widest possible” and “most liberal” construction, and each general term in an entry should be interpreted to cover any supplementary or subsidiary subjects that may properly and reasonably be stated to be contained by it. This is a key principle for interpreting the entries.
The essential rule for interpreting legislative entries is to read them broadly, which implies that each broad entry should be seen to include any supplemental or subsidiary issues that may legitimately and fairly be claimed to be included by it. The second rule is that contradictory submissions must be read harmoniously, which means that they must be read side by side and that the language of one must be interpreted into the language of the other.
Rule of harmonious interpretation
The three lists are extremely extensive, and the framers of the Constitution attempted to keep each entry independent from those on the others. However, as no drafting is flawless, a conflict or overlap between an entry in one List and an entry in the other List may arise from time to time. As a result, determining how these items are connected to one another becomes a challenge.
To meet such a situation, the scheme of Article 246 is to secure the predominance of the Union List over the other two Lists, and that of the Concurrent List over the State List. Thus, in the case of overlapping between an entry in the Union List and an entry in the State List, the former prevails to the extent of overlapping; the subject matter falls exclusively within the Union jurisdiction and the States cannot legislate on it.
When two items on the Union List and the Concurrent List overlap, the item on the Union List takes precedence over the item on the Concurrent List, and the subject is deemed to be exclusively Central, barring the States from making laws to the extent of the overlap. If there is a conflict between a subject’s entry on the Concurrent List and one on the State List, the Concurrent List entry will take precedence, making the issue a concern for both Parliament and the State Legislatures rather than just the State.
The courts must, wherever possible, interpret a statute, rule, or regulation’s many parts logically and sustain them rather than invalidating the entire provision. The rule of harmonious interpretation is applied when there is uncertainty in the provisions of legislation or when the provisions of a statute appear to be conflicting or opposed to one another.
In such a circumstance, the rule requires the court to interpret the statute’s provisions in such a way that all of the provisions survive in harmony with one another. The court should make every effort to reconcile and harmonise entries as far as is practicable. Only when this is not practicable does the Union Legislature’s overriding power, ‘the non-obstante clause’ come into play, and federal power prevails.
The Doctrine of Pith and Substance
The Doctrine of Pith and Substance is used when legislation approved by one legislature is contested or relied upon by another. According to this principle, the court considers the facts of the case while determining whether a given law applies to a particular issue. If one of the three lists resolves the fundamental problem, involvement with the other lists is viewed as intra vires and is not forbidden.
When applying the concept of “pith and substance,” consideration should be given to
- The statute as a whole,
- Its major objects, and
- The scope and impact of its provisions.
When determining whether a certain statute applies to a specific issue stated in one list or the other, the courts examine the substance of the enactment. As a result, if the legislation’s provisions are inside the Union List, the State List’s inadvertent invasion does not make the law unconstitutional.
One must consider the law at issue as a whole, its objectives as well as the scope and impact of its provisions, in order to determine its actual nature. If according to its ‘true nature and character’, the legislation substantially relates to a topic assigned to the Legislature which has enacted it, then it is not invalid merely because it incidentally trenches or encroaches on matters assigned to another legislature.
In Prafulla Kumar v. Bank of Commerce Ltd. Khulna, (1947), the doctrine was applied to interpret certain clauses of the Government of India Act, 1935’s List of VIII Schedule. List II entry 27 gave the temporary Legislature the authority to create guidelines for the province’s money lending and money lenders. On the other hand, the federal legislature was given control over items like checks, bills of exchange, and promissory notes under Entry 28 of List I.
The Bengal Money Lenders Act, 1940 which restricted the amount of interest that a lender may charge on loans made, was adopted by the Bengal Legislature in 1946. The Act was claimed to be unconstitutional because it violated promissory note holders’ rights. This argument was dismissed by the Privy Council. Using the Pith and Substance test, it was determined that the Act’s pith and substance constituted money-lending, and so it fell under Entry 27 of List II. It couldn’t be declared invalid just because it happened to harm promissory notes.
In State of Bombay v. F.N. Balsara, (1951), the validity of the Bombay Prohibition Act, 1949 was contested. The state legislature approved the Act in the exercise of the authority granted by Entry 8 of List II, which grants the state legislature the authority to enact laws pertaining to alcoholic beverages, including those governing their creation, manufacture, possession, transportation, purchase, and sale. It was asserted that the limitation would affect imports, which fall under the jurisdiction of the Union Legislature in accordance with Entry 41 of List 1. The court upheld the validity of the Act by using the pith and substance doctrine. Entry 8 of List II was judged to contain the bulk of the Act’s content, with Entry 41 of List I’s infringement on the Union’s power being just incidental.
The Doctrine of Colourable Legislation
This doctrine is a technique for deciding disputes, mostly involving legislative competence. The doctrine emphasises that “what cannot be done directly cannot be done indirectly.” The concept conveyed by the statement is that, while a legislature professes to operate within the bounds of its power in making legislation, in substance and in fact, it transgresses those powers, the violation being disguised by what appears to be a mere pretence or disguise on the proper investigation. As a result, the idea is inextricably linked to the doctrine of ‘pith and substance.’ The theory derives from the phrase, “Quando Aliquid Prohibetur ex Directo, Prohibetur also per Obliquum.”
In the State of Bihar v. Kameshwar Singh (1952), case, the constitutionality of provisions of the Bihar Land Reforms Act, 1950 was challenged. Section 4(b) of the Act provided that all seats, royalties and cess before the vesting of property in the Government will vest in the Government and will be realised by the government. As the government had no money to pay compensation, it was provided that 50 per cent of the due rent would be paid as compensation. Section 23(1)(d) provides that out of total assets, some percentage will be deducted for the benefit of the rayat. The Court held that the legislature made colourable use of power under Entry 42 of List II. Therefore, the Act was held invalid. In fact, zamindars were not paid any compensation, though the provision for compensation was there.
In the State of M.P v. Mahalaxmi Fabric Mills Ltd. (1995) case, the issue was Parliament’s decision to colour-code the Cess and Other Taxes on Minerals Validating Ordinance, 1992, which increased the royalty rates from 400 to 2000 per cent. It was provided to compensate the state government rather than for the exploitation of minerals. The fact that Mines and Minerals (Regulation and Development) Act of 1957 gave the federal government the authority to raise royalty rates. A coal development cess that was established and collected in 1982 by a number of coal-producing states was later declared to be invalid and outside the purview of the state legislature. The Supreme Court upheld the validity of the notification, stating that it could not be considered a convenience device. Minerals belonged to the state, and any damage incurred should be reimbursed.
Limitations on the doctrine of colourable legislation
- Nothing will be subject to the doctrine when the power of the legislature is not limited by the Constitution.
- The doctrine of colourable legislation does not apply to delegated or subordinate legislation. If the legislature’s authority has been delegated and a bill has been approved by the delegated legislation, the concept of colourable legislation does not apply.
- The legislature’s intent when passing a law is irrelevant. The bona fides or limitations of the legislature are insignificant to the doctrine. The only factor taken into consideration will be whether the law goes beyond the legislative authority of the legislature. The Constitutionality of a statute is therefore always a question of power. As a result, this doctrine is unable to address the problem of legislative arbitrariness.
The Doctrine of Repugnancy
The doctrine of repugnancy primarily addresses the conflict between the laws of the Centre and the laws of the state. Article 254 of the Constitution contains the concept of the doctrine of repugnancy. According to this Article, any law passed by the State legislature on a topic specified in List III is only legal if no contradictory law is issued by the Centre government. Article 254 was established as a method to address the conflict between the powers of Parliament and the legislatures of the states.
The doctrine of repugnancy governs the delegation of authority between the Central and state legislatures. This notion reflects the Constitution’s quasi-federal structure. It has defined the powers of Parliament and state legislatures in order to minimise inconsistencies and disputes.
In M Karunanidhi v. Union of India (1979), the Supreme Court has determined how the concept of repugnancy may be expressed,
- A clear and direct conflict between the State and Central Acts is required.
- The conflict must be complete and impossible to reconcile.
- The terms and provisions of the two Acts must be incompatible to the point that they are directly in conflict with one another.
- It is impossible to obey one Act without obeying the other.
The brief facts of the case are as follows,
The Tamil Nadu State passed the Tamil Nadu Public Men (Criminal Misconduct) Act in 1973. It was further amended in 1974. The Act was challenged in the Supreme Court on the grounds that it violated Central Government legislation such as the Prevention of Corruption Act of 1947 and the Indian Penal Code, 1860. The Central and State Acts, according to the Court, indirectly contradict one another. These supplemental Acts may be implemented concurrently, or pari passu which means side by side, with the Act approved by Parliament. In this case, the Court determined that repugnancy may only exist when two Acts are incompatible with one another and cannot coexist in the same place. If the Acts can function without cooperation, the repugnancy problem is not an issue.
In the Deep Chand v. the State of Uttar Pradesh (1959) case, the Uttar Pradesh State Government enacted the Uttar Pradesh Transport Service Act, which was included in List III. The Uttar Pradesh Transport Service Act had several sections and clauses that did not exist in the Motor Vehicles Act, of 1988. As a result, the Motor Vehicles Act was amended by Parliament to create consistent laws. The Court decided that both acts were in direct conflict with one another and occupied the same territory. As a result, it was considered to be void to the degree of repugnancy.
In the case of Zaverbhai Amaidas v. the State of Bombay (1954), a convict, in this case, pleaded that he was convicted by a court which lacked jurisdiction over him. According to state law, the offence for transporting food grains without permission would be imprisonment for 7 years. On the other hand, the central law imposed three-year imprisonment for the offence committed by him. A further provision in the Central Law stated that the punishment could be increased to 7 years if the person was found to be in possession of twice the permitted amount of food grains. The convict argued that the Court lacked jurisdiction because the Magistrate who sentenced him could only impose a sentence of up to three years of imprisonment and that he should have been subject to the provisions of the Bombay Act rather than the Central Act. Both laws’ fields of occupation were scrutinised to determine whether they share the same space or not. The Supreme Court ruled that both laws applied to the same subject matter and could not be separated. As a result, the state laws were declared invalid, and the Central law took precedence in accordance with the doctrine of repugnancy.
Reforming of the seventh schedule
The Seventh Schedule has never undergone a thorough review, despite the Indian Constitution has undergone numerous amendments since it was first enacted. As has already been mentioned, the 1935 Act served as the scheme for the system of distribution of powers in the Indian Constitution. The Canadian Constitution, which allowed for dual enumeration, served as the model for the 1935 Act.
The Constituent Assembly, which incorporated this scheme into the current Constitution, expanded this enumeration to cover every perceptible aspect of government functioning. Because the exhaustiveness of enumeration is a fundamental aspect of the lists in the Seventh Schedule, the lists should also remain exhaustive over time. The framers of the Constitution deliberated on the precise placement of entries under the three legislative lists vested in them, including transferring entries to the State List or even a complete restructuring of the Seventh Schedule, while also ensuring comprehensiveness.
Reconsidering the Seventh Schedule is thus justified in light of constitutional intent, taking into account the historical context of the current scheme of power distribution, and also in light of developments in the decades since its adoption.
Demands of various states
To address the imbalance in the constitutional arrangement, several states have demanded that powers be transferred from the Centre to the states.
The requirements for governance are dynamic and will change over time. In 1950, a topic might have been essential for legislative allocation, but it might not be today. To strengthen fiscal federalism, the Chairman of the 15th Finance Commission also demanded that the 7th Schedule of the Indian Constitution be reviewed.
The Rajamannar Committee, also known as the Centre-State Relations Inquiry Committee, was established in 1969 by the Tamil Nadu DMK government. In its 1971 report, the Rajamannar Committee recommended transferring several items from the Union and Concurrent Lists to the State List and giving the States residuary power. The creation of a High Power Commission to re-distribute the three lists was also advised. The Committee also suggested that state governments be consulted before any legislation pertaining to Concurrent List issues is proposed by the Centre. Little attention was given to the Rajamannar Committee Report, which was criticised for its ‘one-sided narrow thinking’ and ‘overstatement of the States’ case. The Union Government strongly disagreed with the State Government’s decision to create the Committee on its own.
Similar to this, the Shiromani Akali Dal in Punjab passed the Anandpur Sahib Resolution in 1973, which demanded that the Centre limit its authority over the State of Punjab to matters of defence, diplomacy, communications, railroads, and currency and that all remaining powers be given to the state.
In 1977, West Bengal approved a memo on centre-state relations that advocated rewriting the lists in the Seventh Schedule, giving states more control over industries and transferring residuary powers. Similar demands came from Orissa, where the then-Chief Minister Biju Patnaik expressed a desire for greater state autonomy and financial decentralisation. However, this subject was avoided by both the Sarkaria Commission in 1983 and the National Commission to Review the Workings of the Constitution in 2002.
How is delivery of services to the public affected
For the sake of better governance, the process of redistribution of entries in the union, state, and concurrent lists should not be avoided.
The state list has had items moved to the concurrent list and then the union list. Rather than moving closer to the decentralisation of power, each public good should be provided at a particular level of government. The delivery becomes suboptimal both above and below that point. Instead of the union or state level, local governments are more effective at delivering the majority of public goods. Citizens are becoming more and more insistent that such public goods be delivered effectively. Local governments, however, are unable to respond without the delegation of funds, functions, and functionaries, which is currently left to the discretion of state governments.
An instance when parliament overstepped into the states’ ambit
Three farm laws passed by the parliament in 2020 sparked unprecedented debate. The word ‘agriculture’ appears 12 times in the three lists. It appears in List I entries 82, 86, 87, and 88; List II entries 14, 18, 30, 46, 47, and 48; and List III entries 6 and 41. It is worth noting that in List I entries 82, 86, 87, and 88 (where the word ‘agriculture’ appears), parliament’s legislative authority is limited by the words ‘other than’ agriculture income (entry 82), ‘exclusive of’ agricultural land (entry 86), or ‘other than’ agricultural land (entries 87 and 88).
This means that the Union List does not give the parliament the authority to pass agricultural legislation. Entry 14 of the State List mentions agriculture. As a result, states have complete authority to enact agricultural legislation. Entry 18 mentions the transfer and alienation of agricultural land, among other things. Entry 30 mentions relief from agricultural indebtedness, among other things.
Entries 46, 47, and 48 mention taxes on ‘agriculture income,’ duties on ‘agricultural land succession,’ and ‘estate duty on agricultural land.’ Notably, these agricultural-related topics are expressly prohibited under List I (Union List), as previously mentioned.
The words ‘other than’ and ‘exclusive of ‘ in the list, I, as previously mentioned, make it clear that they are prohibited. This indicates that states have the authority to pass laws on these issues that parliament is not permitted to pass (taxes, duties, and estate duties on agricultural income and agricultural land). However, the government passed the divisive farm bills, even though the constitution does not give the parliament the authority to enact significant changes in the agriculture sector. But in 2021, these farm bills were repealed.
Recent case laws
Union of India v. Rajendra Shah and others (2021)
Facts of the case
The petitioner in the aforementioned case, among other things, contested the constitutionality of the 97th Amendment because ‘cooperative societies’ are solely a matter for state legislatures to pass laws. In other words, only the State Legislature has the power to pass legislation governing cooperative societies. The petitioner based his argument on Entry 32 in List II of Schedule VII. The learned Division Bench of the Gujarat High Court observed that even though the law governing cooperative societies is still listed in List II of the 7th Schedule, Parliament has controlled this power by requiring ratification by a majority of the State Legislature, in contravention of Article 368(2) of the Constitution, without moving the subject of cooperative societies into List I or List III. As a result, the 97th Amendment Act was ruled unconstitutional because inserting Part IX-B without the necessary ratification was ultra vires. Dissatisfied with the High Court’s decision, the Union of India filed an immediate appeal to the Supreme Court.
Issues involved in the case
Is it ultra-vires to insert Part IX-B without the necessary ratification?
Judgement of the Court
The Gujarat High Court’s decision to invalidate some provisions of the 97th Amendment Act (Part IX B) about the efficient management of cooperative societies was upheld by the Supreme Court in a decision reached by a 2:1 majority, but it was overturned by a provision it had inserted pertaining to the Constitution and the functioning of cooperative societies.
Ramalingam v. The Union of India & Another (2022)
Facts of the case
The brief facts of this case are that on January 10, the public interest litigation challenging the legality of the recently enacted Dam Safety Act, 2021, was filed. The contested Dam Safety Act was published in the Gazette on December 14th. The petitioner’s primary argument is that Parliament lacks the legislative authority to enact legislation. The petition describes the challenged Act as ‘non-est in law’ and ‘void ab initio‘ for blatant violations of Articles 14, 19, and 21 of the Indian Constitution.
The petition’s main argument is that Entry 17 of the State List (List-II) under the Constitution’s 7th Schedule conflicts with the challenged Act. “Water, water supplies, irrigation and canals, drainage and embankments, water storage, and water power subject to the provisions of List I Entry 56” are all subject to state legislature authority. Additionally, it was asserted that List II Entries 18 and 35 support the state government in terms of dam operations.
It was argued that if the four entries were read together, it would become clear that the State has the sole authority over dams, embankments, and other types of water storage units, as well as over any works, land, and structures it owns or controls, including the rights to the land. Entry 56 cannot be expanded by Parliament to cover only dams and embankments under state control. The petitioner adds that the majority of the dams in Tamil Nadu are not even constructed on interstate rivers.
The petitioner contends that the provisions of the Act are flawed by legislative incompetence when taken in conjunction with Article 246(3) of the Constitution. The petitioner claims that the Union usurps the powers of the State under the guise of ‘Dam Safety,’ invoking the doctrines of ‘Pith and Substance’ and ‘Lifting the Veil.’
The Central Government has filed a counter-affidavit with the Madras High Court, claiming that the 2021 legislation does not seek to change the states’ existing ownership and water rights. The law’s sole purpose is to establish a mechanism for proper dam surveillance, inspection, operation, and maintenance. As a result, the Counter concluded that the Dam Safety Act does not violate Articles 246(3), 14, 19, or 21 of the Indian Constitution and that the DMK MP’s allegations are false.
Issue involved in the case
Whether the parliament has the authority to enact laws where the state has sole authority to do so?
Judgement of the Court
The matter is still pending before the court.
The scheme for distributing legislative power between the Union and the States makes it apparent that the Union Parliament has been given more jurisdiction than the States. Even over the subjects delegated to the states by the Constitution, the states lack exclusive jurisdiction, rendering them somewhat dependent on the Centre.
There are historical reasons why India’s founding fathers created an overly centralised union. With its enormous size and numerous diversities, it was believed vital for the central authority to be armed with sufficient powers to suppress divisive tendencies in order to keep such a diverse polity under onefold. However, the states are not rendered submissive to the centre. In normal times, they have been given enough autonomy to function as separate centres of authority.
FAQs [ Frequently asked questions ]
Explain the division of power under the Indian Constitution?
The Indian Constitution’s Part XI sets forth a system for the division of power between the Union and the states. Three lists, the Union List, the State List, and the Concurrent List, are used to categorise the subjects that the Union, the States, and the Union and States together may legislate. The subjects on the Union List are those that can only be regulated by the Union government. The State List contains subjects that state governments may pass laws on. The Concurrent List also includes subjects on which the Union and the states collectively make laws.
What are the constitutional provisions governing the division of powers?
In India, the constitutional provisions governing the division of legislative powers between the Union and the States are divided among numerous Articles (Articles 245-254). However, the most essential – and fundamental – of these provisions are found in paragraphs 245-246. Article 246 is significant from the viewpoint of the subject matter of legislation.
What is residuary power?
The Union Parliament gained exclusive legislative authority under Article 248. According to Entry 97 of the Union List, Parliament has the exclusive authority to create legislation on any subject not covered by Lists II or III. The purpose of the residual power is to provide parliament with the opportunity to adopt legislation on any topic that has escaped the examination of the house and remains unrecognised.
How should the entries in each list be interpreted?
The Supreme Court ruled in Calcutta Gas Ltd. v. State of Bengal that each entry should be given the “widest possible” and “most liberal” construction, and each general term in an entry should be interpreted to cover any supplementary or subsidiary subjects that may properly and reasonably be stated to be contained by it. This is a key principle for interpreting the entries.
- Concurrent Power of Legislation under List III of the Indian Constitution.pdf
- Concurrent Power of Legislation under List III of the Indian Constitution.pdf
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