This article is written by Smaranika Sen from Kolkata Police Law Institute. This article exhaustively deals with the analysis of the interpretation of the legislative lists of India.
It has been published by Rachit Garg.
The term ‘legislation’ has been derived from the Latin words ‘legis’ meaning ‘law’ and ‘latum’ meaning to ‘make’. Therefore, etymologically, legislation means to make the law. Legislation is considered one of the most important sources of law. It is very crucial in a democratic society, especially where there is a federal type of government or a very highly complicated form of government. Legislation when used as a source of law is denoted to be a law made by defined persons or bodies and not by any type of customary or conventional laws or judicial decisions, it is rather termed as an enacted law. There is a difference of opinion regarding the importance of legislation as a source of law. Analytical jurists emphasize the importance of legislation on the other hand historical jurists attach no importance to legislation.
There are three types of legislative lists: Union, State and Concurrent List. These three lists form an important part of the functioning of a federal government. It also enhances legal sovereignty among the government.
In this article, I will try to interpret the three legislative lists: powers, functions, principles, etc.
Legislative lists are of three types: State List, Union List, and Concurrent List, as mentioned under Schedule VII of the Indian Constitution. The main purpose for the distribution of powers is to create federalism; the object for which a federal state is formed involves a division of authority between the national government and the separate states, therefore there is a division of power at the central and at the state level. A federal constitution tries to establish a dual polity with the union at the centre and the states at the peripheries and thereby each of them is granted sovereign powers to exercise in their fields assigned to them by the Constitution.
Let us now take a glance at the lists of legislation.
The Seventh Schedule of the Indian Constitution talks about the lists. List I of Article 246 states the Union List. The Union List consists of various subjects like a defence of India, naval, military, air, armed forces, CBI, industries declared by Parliament necessary for defence, foreign affairs, diplomatic, consular, trade relations, UNO, war, peace, extradition, railways, citizenships, currency, RBI, etc. The List contains 97 numbered items. Entry 33 was deleted and Entry 2-A, 92-A, 92-B, and 92-C have been added by amendments. In a simpler language, it can be stated that the List contains all those subjects which are of utter national importance. In this List, the Central Government enjoys supreme power.
The State List is also contained in the Seventh Schedule of the Constitution. List II of Article 246 states the State List. The State List consists of various subjects like public order excluding naval military or air forces, High Courts, revenue courts, district courts, prisons, reformatories, borstal institutions, local governments, public health sanitation, hospital, burial grounds, pilgrimage, disabled and unemployed peoples, agriculture, water, roads, highways, etc. The List contains approximately 66 items. Entries 19, 20, 29 and 36 have been deleted by amendments. The State List contains all those subjects which are solely dedicated to the state level. The State Government has jurisdiction over this List.
The Concurrent List is also contained in the Seventh Schedule. List III of Article 246 states the Concurrent List. The Concurrent List contains subjects like criminal law, a criminal procedure including Codes for Criminal Procedure, marriage, divorce, adoptions, wills, successions, moving prisoners from one reform to another, contracts, partnerships, bankruptcy, insolvency, trust & trustees, contempt of court, migratory tribes, prevention of cruelty to animals, protection of wildlife and forests, population control, etc. The List contains approximately 47 items. New Entries 11-A, 17-A, 17-B. 20-A and 33-A have been added by amendment. Concurrent List mostly comprises those subjects which are of equal importance to both Centre and the State, therefore in such cases both the Union and the State have jurisdiction. The main purpose of this list was to avoid excessive rigidity to two list distribution.
Article 248 vests residuary powers in the Parliament. It is to be noted that certain subjects are neither mentioned in the State List nor the Concurrent List. These subjects are also not exclusively mentioned in the Union List. However, during the time of need regarding those subjects, the Union will have sole jurisdiction over those subjects.
Legislative lists relations
The Constitution of India makes the two-fold distribution of legislative powers:
- With respect to the territory
- With respect to the subject-matter
Article 245(1) of the Indian Constitution states the subjects to the provisions of the Constitution. Parliament can also make any laws for the whole or any part of the territory of India. Even Article 245(2) states that no laws made by the Parliament will be deemed invalid on the ground that it was an extraterritorial operation. In the case of A.H. Wadia v Income-tax Commissioner, Bombay (1949), It was decided that in matters of a sovereign legislature a question of extraterritoriality of any enactment cannot be raised in the Municipal Court, even its validity cannot be challenged as a ground. It was further stated that there might be certain legislation that might contradict or offend the rules of international law or which may not be recognised by foreign courts in such cases there might be difficulty in enforcing them but the questions of policy in such cases will not be raised by the domestic tribunals.
The doctrine of territorial nexus
As we know, the Union has the power to make even extra-territorial laws, but the State does not have the same power. In such cases where the state makes extraterritorial laws, it is important to make those enactments valid, therefore, to make them valid a nexus between the object and the state must be shown. A state legislature can only make laws for its purpose. The doctrine of Territorial Nexus can be only valid if certain conditions are fulfilled. The conditions are:
- Legitimate nexus
- There should be a liability related to the territorial connection.
Therefore it can be stated that a state law of extraterritorial operation will only be valid if there is sufficient nexus between the object and the state.
In the case of Sonudar Gopal v Sonudar Rajni (2013), it was observed that during the process of judicial separation the husband raised the question of the maintainability of the petition on the ground that both of them had acquired Swedish citizenship. The wife contended that she had never changed her domicile. Husbands contended that his wife would follow the domicile of the husband. It was held that both the wife and the husband were domiciled in India. According to Section 1(2) of the Hindu Marriage Act, 1955, This Act extends to the Hindus to the whole of India and also to those who were domiciled in India although they resided outside India or acquired the citizenship of another country. Thus, the Court held that this Act will apply to all those people who are domiciled in the Indian territory and are Hindus. This clearly shows a nexus between the state and the object therefore this provision made by the state legislature is considered valid.
The distribution of powers between the centre and the state is not only distributed based on the provisions of the Constitution, it is also distributed according to the local and political background of each country. For example, in America, the sovereign states did not like complete subordination to the central government therefore they entrusted subjects of common interest to the central government, and the rest were kept under their jurisdiction. The Indian Constitution makers Adopted the same method as Canada, therefore India opted for a strong Centre, however, they added a Concurrent List. The Government of India Act 1935 introduced a scheme threefold that is federal, provincial, and concurrent. The present Constitution adopted a method similar to the Government of India Act 1935 with certain changes. It divides the powers between the Union and the state through three lists- Union, State, and Concurrent. Article 246 is related to the subject matter of laws made by Parliament and by the legislature of States.
Characteristics of Legislative Lists
Legislative power is plenary
Under Article 245, the power of the legislature to enact laws is plenary. However, it is subject to some legislative competence and some constitutional limitations. It is to be noted that when there is a power to make laws, it also includes giving such laws its effect prospectively as well as retrospectively. In the case of Jagannath Baksh Singh v State of U.P. (1962), it was observed that “the cardinal rule of interpreting the words used by the Constitution in conferring legislative power was that they must receive the most liberal construction and if they are words of wide amplitude the construction must accord with it. If a general word was used it must be so construed as to extend to all ancillary or subsidiary matters that can be reasonably included in it.”
A statute cannot be declared unconstitutional
Any statute enacted by either Union or State cannot be declared unconstitutional without any reason. A court needs to showcase beyond any iota of doubt there has been a violation of the constitutional provisions for which the legislative provision has to be deemed invalid,
Legislation declaring earlier decisions invalid
Legislature cannot by a mere declaration not reverse or override a judicial decision. Regarding its plenary powers, it can render a judicial decision ineffective by enacting a valid law; altering or changing the conditions of the basis of such decisions. In the case of S.T. Sadia v State of Kerala (2015), The Supreme Court held that the legislature has no power to directly anal a judgement of the court. It is because the purpose of Legislature is to make law and not to declare as to what the law shall be.
Principles of Legislative Lists
The powers of the Centre and the State are divided but a scientific division between them is never possible and therefore constant questions may arise as to which subjects come under which sphere of the List. The Supreme Court of India must maintain a federal Constitution. The Supreme Court has evolved certain principles of interpretation of the Lists. Let us have a look at them.
The predominance of Union List
The predominance of the Union List over the State List and the Concurrent List is expressly mentioned in the Constitution. The same is the case with the Concurrent List over the State List. does in case of overlapping between the Union and the State List the Union List will prevail over the State List and in a conflict between concurrent and State List the Concurrent List shall prevail.
Simplification of each List broadly
Due to the predominance of the Union List, entries in each list should be simplified. In the case of Calcutta Gas Ltd v State of West Bengal (1962), the Supreme Court held that the widest and the most liberal interpretation should be given to the language of each entry.
In another case of International Tourism Corporation v State of Haryana (1981), the Supreme Court held that there were certain competing entries in the list. List two and entry 97 of list 1 when having certain conflicts. It was then decided that a State List should be given a broad and plentiful interpretation and should not be interpreted in favour of the centre by resorting to the residuary power. Residuary power cannot be interpreted so widely that it curbs down the power of state legislature, thereby affecting and jeopardizing the federal principle. For any subject residuary power should be the last option, it should be only held when all the categories in the three lists are exhausted.
The doctrine of pith and substance
The doctrine of pith and substance states that within respective spheres the union and the state legislature are made supreme and they should not encroach into the sphere reserved to the other. If anyone introduces upon the field assigned to the other the court will apply this doctrine and thereby it will determine whether the legislature concerned was competent to make it or not. If it concludes that pith and substance of law that is the true object of legislation relate to a matter with the competence of the Legislature enacted then it will be held intra vires even though it might incidentally trench on matters outside the capacity of Legislature. This doctrine was applied in the case of Profulla Kumar Mukherjee v Bank of Khulna(1947), it was observed that the Bengal Money Lenders Act of 1946 was enacted by the state legislature but it was challenged that the parts of the legislation dealt with promissory notes which was a subject of Centre. Therefore the Privy Council applied this doctrine and held that the Act was in pith and substance as money lending and money lenders belong to the jurisdiction of State and therefore it was a valid Act, even though the Act incidentally trenched on promissory notes which belong to Centre.
The doctrine of colourable legislation
This doctrine is based upon the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum” which means what is prohibited directly is also prohibited indirectly. Colourable Legislation arises in such cases where the legislature does not have any power to enact laws. As we know, the legislature can only make laws on such subjects which are mentioned in the seventh schedule of the Indian Constitution, therefore when any such subject lies beyond the seventh schedule the legislature does not have any power to enact laws. At certain times the legislature in such cases enacts certain laws which appear to be in its competence but its effect is beyond its jurisdiction. It is said that such law is given a different colour to bring it under the competence of Legislature but it can be declared invalid. Such laws are called colourable legislation. In these cases, the Court looks upon the true nature and character of the legislation and for whether its object purpose or design to make a law on the subject is relevant or not. It does not check its motive. if the legislature has the power to make law, the motive in making the law is irrelevant. In the case of State of Bihar v Kameshwar Singh(1952), the Bihar Land Reforms Act, 1950 was considered void on the basis that it tried to show apparently that it laid down principles for determining compensation but in reality that was not the case. Thus, the Court held the law invalid on the ground of colourable legislation.
The entries in the list should be defined and interpreted in such a way that it does not create a conflict between each other. In cases of conflict, each list should be interpreted separately, the powers, purposes, jurisdiction, etc should be checked thoroughly. After checking, there must be a conclusion where one of the lists is restricted to provide jurisdiction on the subject of conflict and the other list shall prevail. However, the reason for such a decision should be brought through thorough scrutiny and reasonable reasons.
Parliament’s power on State subjects
The state enjoys supreme power over its subjects in the State List. However, there are certain times where even in State subjects the Union enjoys power. These are also termed exceptional circumstances. The exceptional circumstances are:
- If there is any national interest
- During emergency
- With the consent of State
- To give effect to treaties and agreements
- In case of failure of constitutional machinery in a state.
An important characteristic of the federal type of government is its distribution of powers between the centre and the state. The reason for distributing powers between the centre and the state is to create a check and balance on the government and to avoid a tyrannical form of government. The Indian Constitution also distributes power between the centre and the state but through the various provisions of the Constitution, it can be stated that the distribution of power is slightly tilted more towards the centre. This is why it is often stated that India has a quasi-federal Constitution.
- Constitutional Law of India, by Dr J.N. Pandey
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