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This article is written by Arkadyuti Sarkar, a student of B.A. LL.B from Shyambazar Law College under the University of Calcutta. This article discusses extensively the distribution of legislative powers between the Union and the States.

Introduction

India, in the Constitution, has been described as a federation of States. Indian Constitution provides for three lists for distribution of legislative and executive power between the Center and the States; i.e.

  1. the Union (Central) List,
  2. the State List, and
  3. the Concurrent List (subjects within the ambit of the Union Government & the State Governments).

According to Dicey, power distribution is an essential feature of a federation. The object behind the formation of a federal State involves an authoritative division between the National Government and the Government of the separate States. The federal tendency is restricting every side of the Governmental action, and separation of the strength of the State among parallel and independent authorities is particularly noticeable as it forms a significant distinction between a federal system and unitary system of Government.

The legislative powers are subject to the scheme of the distribution of legislative power existing between the Union and State legislatures (as provided in the 3 lists under the constitution), fundamental rights, and other Constitutional provisions.

Distribution of Legislative Powers between the Union and the States

Let us now go through the three lists enshrined under the 7th Schedule of the Constitution.

Union List

The Union list contains 97 items which comprise of the subjects having national significance. This list admits uniform laws that are applicable over the entire Indian territory, and only the Indian Parliament is capable of legislating upon them.

Some of the items in this List-I are as follows:

  • Defence;
  • Central Bureau of investigation;
  • Foreign Affairs;
  • Banking;
  • Intellectual Properties;
  • Census;
  • Corporation Tax;
  • Atomic energy and necessary mineral resources;
  • Preventive Detention;
  • Diplomatic, consular, and trade relations;
  • War & peace;
  • Citizenship;
  •  Highways and Railways, etc.

State List

The State list contains 66 items that comprise subjects relating to local interest or the interest of the State. The State legislature is thus competent in legislating over these subjects. Some of the subjects in this List-II are as follows:

  • Public Order;
  • Local Government;
  • Public health & Sanitation;
  • Agriculture;
  • Fisheries;
  • Libraries, museums, and other resembling institutions;
  • Markets & fairs;
  • Gas & allied works.

Concurrent List

This list enshrines 47 items, with respect to which; both the Union Parliament and the State legislature hold a concurrent legislative power. This list was meant to serve as a device for avoiding excessive rigidity in a two-fold distribution. Besides, the states can additionally legislate purporting to amplify the Parliamentary legislation. However, in case a dispute arises in relation to any subject contained in this list, the Union legislation shall prevail over that of the State.

Some of the subjects contained in this List-III are as follows:

  • Criminal law & procedure;
  • Archaeological sites;
  • Marriage & divorce;
  • Transfer of property, excepting agricultural land;
  • Contempt of Court, excluding that of the Supreme Court;
  • Civil law & procedure;
  • Prevention of animal cruelty;
  • Electricity;
  • Economic & social planning;
  • Legal, medical, and other professions.
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The extent of the Parliamentary laws and the laws by the State Legislatures

According to Article 245; subject to the constitutional provisions, Parliament may legislate for the whole or any part of the Indian territory, a State legislature for the State territory, and no parliamentary legislation shall be invalid because of having extra-territorial operability, i.e. takes effect outside the Indian territory.

In A.H Wadia vs. Income Tax Commissioner; the Supreme Court held that in case of a sovereign legislature, the question on the extraterritoriality of any enactment cannot be raised before a Municipal Court for the purpose of challenging its validity. The legislation may be contrary to the rules of the International Law, may be unrecognizable in the foreign Courts, or may have practical difficulties in relation to their enforceability, but the domestic tribunals are concerned solely with the questions of policy.   

Subject-matter of the Parliamentary laws and laws made by the State Legislature

According to Article 246;

  1. The Union Parliament, notwithstanding anything under clause 2 and clause 3, is exclusively empowered to legislate in respect of any matters enshrined in the Union List  (List-I).
  2. The Union Parliament and the State Legislature, notwithstanding anything under clause 3 and also clause 1, is empowered to legislate on any matters contained in the Concurrent List (List-III).
  3. The State Legislature, excluding anything under clause 1 and clause 2, is exclusively empowered to legislate for such state and its any part with respect to any of the matter contained in the State List (List-II).
  4. The Union Parliament is empowered to legislate with respect to any matter for any part of the Indian territory not included (in a State) notwithstanding such matter is enumerated in the State List.

Parliamentary power to provide for the establishment of certain additional courts

According to Section 247; notwithstanding anything under this chapter, the Parliament may legally provide for the establishment of any number of additional courts for improving the administration of Parliamentary laws or of any existing laws with respect to any matter in the State List (List-II).

Thus, the Parliament is empowered by the provision of this Article to establish Courts or judicial bodies for better administering the laws passed by the Parliament or relating to any laws under the State List.

Residuary legislative powers

According to Article 248; Parliament is exclusively empowered to legislate with respect to any matter absent in the Concurrent List or State List. Also, such power shall include the legislative power for imposing a tax not mentioned in either of those Lists.

Therefore, the Parliament has the power to make laws in relation to any matter which is not present in either the concurrent list or the State List, including the power to make laws on tax imposition.

Parliamentary legislative power with respect to a matter in the State List

In the national interest

According to Article 249; if the Rajya Sabha passes a resolution relating to a matter of national interest with a  two-third majority. Such resolution empowers the Parliament to legislate with respect to any matter in the State List, then it shall be lawful for the Parliament to legislate. Such legislation can extend to the whole or any part of the Indian territory until the legislation operates.

Such a resolution normally lasts for a year and maybe renewed upon the necessity but such extension cannot exceed a year.

These Parliamentary laws, however, shall cease to operate after the expiration of 6 months, following the cessation of the resolution.

Thus, the Parliament is competent to legislate on any law which is based on a resolution passed by a majority in the Upper House of the Parliament, if such resolution contains any matter of national importance. However, such a resolution can last for a year and can be extended for a period at a maximum of one year.

If a Proclamation of Emergency is in operation

According to Article 250; during the operation of the Proclamation of Emergency, the Parliament shall be empowered to legislate for the entire Indian territory or any of its parts with respect to all the matters enumerated in the State List.

However, such law shall come to cessation on the expiration of 6 months following the cessation of the Proclamation of Emergency.

During Emergency, the Parliament has the power to make any law which shall be applicable over the entire or any part of India, and such law shall be applicable for only a year after the emergency is withdrawn.

Inconsistency between Parliamentary legislation under articles 249 and 250 and laws made by the Legislatures of States

According to Article 251; nothing under the Articles 249 & 250, shall restrict the State Legislature from legislating on any matter for which it has been empowered under the Constitution. However, if any legal provision legislated by the State Legislature is repugnant to any legal provision so legislated by the Parliament, whether legislated prior to or following the State law,  then the law made by the Parliament shall prevail over the one passed by the State and the State legislation shall be inoperative until the operation of the Parliamentary law.

Parliamentary legislative power for two or more States by consent and adoption of such legislation by any other State

According to Article 252; If it appears to the two or more State Legislatures that it is desirable that any of the matters with respect to which Parliament lacks any legislative power for the States except as provided under the Articles 249 and 250 should be regulated so that the States by Parliamentary law, and if resolutions are passed to that effect by all the House of those State Legislatures, it shall be lawful for Parliament to pass an Act in order to regulate that matter accordingly, and any Act so passed shall be applicable to such States and to any other State by which it is adopted later through a resolution passed in that behalf by the House or Houses of the State Legislature, as the case may be.

Any Parliamentary Act can be amended or repealed solely by a Parliamentary Act passed or adopted in resembling manner but not by an act of the State Legislatures.

Legislation for effecting international agreements

According to Article 253; notwithstanding anything in the foregoing provisions of this chapter, the Parliament has legislative power for the whole or any part of the Indian territory for-

  • Implementation of any treaty, agreement, or other convention with another country;
  • Implementing any decision made at any international conference, or international association, or international body.

The Parliament is hereby empowered to pass any law relating to implementing any international treaty, or agreement or convention, as the case may be; and related to any law for any decision taken at any international conference or association, and shall be applicable over the whole or any part of the nation.

Inconsistency between Parliamentary laws and the laws by the State Legislature

According to Article 254; if any legal provision made by the State Legislature is repugnant to any legal provision made by the Parliament over which it has the competency, or to any existing legal provision with respect to any of the matters contained in the Concurrent List, then, subject to the provisions of clause (2), the Parliamentary laws, whether passed prior or following the enactment by the State Legislature, or, as the case may be, the existing law, shall prevail over the law passed by the State Legislature.

Where an enactment by the State Legislature with respect to any matter enumerated in the concurrent List is repugnant with the provisions of the prior Parliamentary law or existing law in respect to that matter, then, the State law, if it has been reserved for the Presidential consideration and has received his assent, prevail in that State.

Provided that nothing in this clause shall prevent the Parliament from legislating any law any time with respect to the same matter including the addition of law, amendment, variation, or repealing of the law enacted by the Legislature of the State.

                   

Requirements as to recommendations and previous sanctions to be regarded solely as procedural matters

According to Article 255; no Parliamentary Act or an act of a State legislature and no provision in any such Act shall be invalid solely for the reason that some recommendation or previous sanction required by this Constitution was not given in case the assent to that Act was given:

  1. In case the required recommendation was of the Governor’s and had to be given by the Governor or the President;
  2. In case the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President;
  3. In case the recommendation or previous sanction required was that of the President, by the President.

Conclusion

From the above comprehension, we can thus see Central domination over the States of the Indian Union. India, although regarded as a federation of States, cannot be regarded as truly federal. In times of emergency as well as during normal situations, the Union Parliament is always competent to supersede any State Law and prevail its own. Therefore, India can be regarded as a quasi-federal State, having a higher resemblance with Canada than the truly federal United States of America.

References

  1. The Constitution of India (101st Amendment) Act, 2016.
  2. Constitutional Law of India (53rd edition) by Dr JN Pandey.
  3. Manorama Yearbook 2020.
  4. https://www.legalbites.in

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