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This article is written by Jaya Vats from Vivekananda Institute of Professional Studies, Delhi. In this article, the author discusses the relation between Centre and State with legislations. 

Introduction

Dr. B.R. Ambedkar once said that the basic principle of the federations is that the legislative and executive authority is divided between the centre and the states not by any law to be established by the centre, but by the constitution itself. In no way does the member states rely on the centre for their legislative or executive authority. The states and the centre are the same in this matter. The above statement makes it very clear that the Constitution of India establishes a federal framework as the basic structure of the government of the country. It is from the Constitution, which separates all competences-legislative, executive and financial-that union and states derive their power. As a result, the states do not delegate to the Union but are autonomous within their spheres as provided for in the Constitution. 

Centre-State legislative relations

The Constitution of India establishes a dual constitutional authority with a simple separation of powers, each of which is sovereign within its domain. The Indian federation is not the result, and Indian units cannot leave the union, as a consequence of an arrangement between independent units. There are also extensive provisions in the constitution to govern the various dimensions of relations between the centre and the states. Central-state relations are separated by the following:

  1. The Legislative relations;
  2. The Administrative relations;
  3. Financial relations.

But under this article, we will cover the relationship between legislature and centre-state. 

The legislative ties between the centre and state are governed by Articles 245 to 255 of Part XI of the Constitution. It sets out a double division between the Union and the states with legislative powers i.e, in territorial recognition and relation to the subject.

  • Territory jurisdiction: 

Concerning the territory, Article 245(1) requires a State Legislature to make law for the entire or any part of the State to which it belongs, subject to the dispositions of this constitution. Unless the boundaries of the state itself are broadened by an act of the Parliament, a State legislature can not broaden territorial jurisdiction in any circumstance. On the other hand, Parliament has the right to legislate “on all or part of India’s territory, which does not only include the States but also Indian Union territory.” It also has the strength of extra-territorial laws that no state legislature has. This means that the laws made by Parliament would apply not only to individuals and territory but also to Indian subjects living anywhere in the world. However, there are other limitations on Parliament’s territorial competence. However, certain unique clauses of the constitution are subject to the plenary territorial competence of Parliament. These are the following:

  1. The President can make regulations that are equivalent to the laws of Parliament, some territories of the Union, such as the Andaman and Lakshadweep Region, and these regulations may revoke or amend a law adopted by Parliament on the said territories (Article 240).
  2. Notifications can be issued by the governor (Para 5 of Schedule 5(3) of the Indian Constitution) that prevent or change the application of the Acts of Parliament to any programmed area of government.
  3. Para 12(1)(6) of schedule VI says that, by public notification, the Governor of Assam may, subject to such exceptions or adjustments as may be stated in the notification, direct that any other act of Parliament shall not apply to the autonomous region or district of the state of Assam or apply to that region or section.

In the case of A.H. Wadia v. CIT, the court held that if there is an appropriate relation or link between the State and the object, i.e. subject matter of legislation, the State legislature cannot make extraterritorial law (objects can not be located physically within territorial limits of the State). In the case of Wallace Bros, v. CIT, a licensed business in England was a partner in an Indian venture. Indian revenue tax authorities were aiming to tax the company’s entire income. The Court affirmed that the derivation for a year of the substantial part of its revenue from British India has given a corporation sufficiently territorial relation to justify that it is regarded domestically in India for all purposes of income taxation. 

Hence, the above particular requirements have been adopted since the areas mentioned in the question are outdated and may cause difficulties or other injurious effects if they are implemented indiscriminately.

  • Subject matter:

A federal structure demands that the centre and States share their forces. The nature of the distribution is different in every region, depending on the local and political context. For instance, in America, sovereign states did not like the absolute central government subordination. Therefore, although maintaining the remainder, they believed in confiding subjects of popular interest to the central government. Australia was pursuing just one set of forces in the United States. There are double listings in Canada, leaving the residue in the centre by the federal and provincial governments. The Canadians were mindful of the tragic circumstances that resulted in the Civil War of 1891 in the United States of America. We knew the vulnerabilities of the centre. And it was a good core that they wanted. The Canadian regime chose a strong centre as a result of the Indian Constitution-Makers. However, they have added one more list-a a concurrent list. 

The extent of laws made by Parliament and by the legislatures of states

So far as the subjects of law are concerned, the Constitution uses the Government of India Act of 1935 as its basis and subdivides authority into three lists between the Union and the States. These are:

(i)The Union list,

(ii) the State list, and 

(iii) the Concurrent list.

There are 98 subjects on the Union List, over which the Union has exclusive authority. The topics on the Union list, for example, security and foreign relations, are of national significance, etc. There are 59 topics in the State List over which countries have exclusive jurisdiction. The concerns listed on a State list, such as public order, police and public safety, are of local or national importance. The Concurrent List contains 52 subjects like criminal and civil cases, marriage and divorce, economic and special planning unions, money, media, magazines, employment, management of the population and preparation of the families, etc. and both the Union and States can enact laws on this list but the federal rule prevails over state law in the case of a dispute between the law of the Central and the State law. The purpose of the constitutional inclusion of the list was to ensure continuity in key legal principles across the country. Legislatures both in the parliament and in the State may make laws on matters mentioned above, but a preliminary and ultimate right of the centre is to legislate on established matters. In the event of a conflict between the law of the State and the law of the Union on a subject in the Concurrent List, the law of the Parliament shall prevail.

Residuary powers of legislation

The Constitution also confers on the Union Parliament residual powers (subjects not mentioned on any of the three lists). Article 248 notes that, concerning anything that is not listed in any of the three lists, the Parliament has the exclusive authority to make legislation. It represents the constitutionalist inclinations to a strong core. Another unique feature of the residual powers is that the final judgment on whether or not a particular matter falls within the residual powers of the court. In comparison to the convention of other federations around the world, residual powers have been granted to the Union, where the residual powers are assigned to the States. In the case of a dispute, however, it is up to the court to determine whether a particular issue falls under the residual power or not. The Parliament is therefore allowed to enact any legislation on any issue not mentioned in List II or III. This authority shall include the authority to legislate, which does not include a tax on either of them (the Governor-General, and not a federal legislature which exercised these powers, must be observed until independence).

Entry 97 of List I also provides for the exclusive powers of Parliament to make laws on all subjects not mentioned in List II or III. The remaining powers of legislation shall be solely delegated to the Union Parliament under Article 248 and Entry 97 List I. The spectrum of residual powers, however, is limited as all the topics included in all three lists and residual powers come under, or not, the Court’s view of a case. The reasoning for this power is that it allows the House to legislate on any issue that has avoided the House’s oversight and on the subject that currently can not be recognized. It requires Parliament, therefore, to enact legislation on topics that have taken society forward. The constitutional framers intended, however, that the use of residual powers should be the final and not the first step. 

In the case of Kartar Singh v. State of Punjab and UOI v. H.S. Dhillon’s case, the court held that parliament may combine its power with the residual power under Article 248 under entry into the Union List or Competition List. Also in the case of UOI v. H.S. Dhillon, it was held that Gift Tax Act, Inquiry Act Commissions, etc. are valid under the parliamentary residuary power. In the case of State of A. P. v. National Thermal Power Corpn. Ltd. the Supreme court held that unless an entry does not state an exclusion from the area of legislation that is evident at the time of obvious reading, the absence of exclusion can not be read, if a particular clause in the Constitution that forbids such legislation is valid, as allowing the legislative power not expressly excluded from it.

Parliament’s power to legislate on State List

Although the Central Government does not have the power in the common circumstances to legislate on matters mentioned in that State, the Parliament of the Union may only make laws on such matters under some special conditions. These special conditions are:

a) In the National Interest (Art.249)

Several Articles of the Indian Constitution defined the parliament’s predominance in the legislative area. Article 249 provided that, where Rajya Sabha has declared, by a resolution approved by not less than two-thirds of the members present and voting, that it is required or reasonable, in the national interest for Parliament to lay down laws in respect of any matter mentioned in the State List referred to in the resolution, it becomes lawful for Parliament to lay down laws for the whole or any part of the proceedings. For the time in question, such a resolution was in place not for more than one year. However, the Rajya Sabha could extend the term of such a resolution for a further duration of one year from the date on which it would otherwise have ceased to operate. The law of Parliament, which Parliament should have been responsible for passing such a resolution by Rajya Sabha, ceased to have any effect on the expiry of a term of six months after the date on which the resolution ceased to be in force, except in the case of things done or omitted to be done before the expiry of that time. This provision allowed the Rajya Sabha, representing the States, to place any matter of local significance but national interest in the concurrent list. The Rajya Sabha can do so at any moment, whether emergency or not.

b) Under Proclamation of National Emergency (Art. 250)

Article 250 notes that in the case of a declaration of emergency, Parliament shall have the power to make law on any item on the State List. This legislation shall extend in the case of a national emergency (Article 352) and every State in compliance with the Order of the President (Article 356) or the event of a financial emergency (Article 360). Under this time, the laws of the State or States shall remain inoperative to the degree that they are contrary to the law of the centre (Art. 251). Thus, the Parliament as a whole will legislate on the subjects specified in the State List while the National Emergency Declaration is in effect. However, the laws enacted by the Parliament according to this clause shall cease to affect the expiration of a period of six months after the termination of the Proclamation, except in the case of items done or omitted to be done before the expiration of that time.

                   

c) By Agreement between States (Art. 252)

Article 252 provides for regulation by invitation. If the Legislatures of two or more States adopt a resolution and order the centre to make a law on a specific item of the State Register, it shall be legal for the Parliament to make a law. In the first place, such law shall apply to the States which have made such a request, unless any other State may subsequently follow it by passing such a resolution. Third, such laws can only be amended or repealed by Parliament. The parliament may also make laws about a State subject if two or more states’ legislatures agree that a parliament is allowed to make laws concerning any issue mentioned in the State List concerning that Matter. Subsequently, any act passed by the Parliament shall extend to those States and to any other State which has passed such a resolution. Parliament also has the power to amend or revoke any act of this kind.

d) To Implement Treaties (Art. 253)

To implement treaties or international conventions, Parliament shall have the power to legislate concerning any subject. In other words, even about a state issue, the usual distribution of powers does not preclude Parliament from passing legislation to satisfy its foreign obligations or through such legislation (Article 253). The Parliament may pass any Treaty, international agreement or convention, with any other country or state, or any decision taken during an international conference, association or other entity, within the whole and any part of the territory of India. Any law enacted by this Parliament shall not, in that it covers the subject listed in the list of States, be invalidated.

e) Under Proclamation of President’s Rule (Art. 356)

By Article 356 and Article 357 of the Indian Constitution, the prevalence of Parliament was further defined. Article 356 stipulated that if the President was satisfied that there existed a situation in which the government of the State can not be enforced according to the provisions of the Constitution, he may declare exercisable by or under the competence of the Parliament the powers of the Legislature of that State. Parliament must delegate the legislative power to the President, as provided for in Article 357. The President may also allow the Parliament to exercise the powers of the State legislature during the Declaration of the Rule of the President as a result of the collapse of constitutional machinery in the State. Nevertheless, all such regulations passed by Parliament cease functioning six months after the declaration of the rule of the President is over.

Conclusion

The Constitution authorizes the centre in the following ways to have control over the state legislature:

  1. The Governor can withhold for President’s consideration those forms of bills approved by the State legislature. The President has an absolute veto on them.
  2. In the State legislature, even with the prior approval of the President as imposing limitations on free trade and commerce can bill are made on such matters enumerated in the State list.
  3. It is necessary for the President for the States to withhold the bills of funds and other budgetary measures approved during national crises by the State legislature.

As a result, it is very clear from the scheme of allocation of legislative powers between the Union and the States that framers have bestowed more authority on the Parliament than against the States. The States do not have sole authority over the topics given to the States by the Constitution and therefore rendering the States, to that degree, subordinate to the Centre. The centralization pattern is contradictory with the fundamental values but, rather than adopting conventional provisions of a federal constitution, the legislative system is more concerned with country unity. All these provisions of the constitution are therefore justified as they offer clarification and eradicate the confusion between the powers of the centre and state. Unless this theory of legislative supremacy were to be removed, there would be a risk of two similarly dominant pieces of government giving rise to a dispute, agitation, confrontation, and confusion as a result of competing legislation. These provisions guarantee that there is an overarching regulatory framework and that there is continuity in the basic laws.

Reference


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