Law and You > Constitutional Law > Distribution of Legislative Powers Between Centre and State
India is a Union of States. It is a federation. In the federal form of government, political power is divided between the Centre or Union government and states. Both the Centre and States derive their powers from the Constitution and function in their respective jurisdiction independently. The supremacy of the Constitution is one of the essential features of a federation. Allocation of power between the Centre and the States is known as the division of power. Division of power is different from the separation of powers. The former is about the distribution of powers between the Union and the states, and the latter is about the separation of powers among three organs of the State – legislature, judiciary and executive. In India, the division of powers is allocated in the Constitution of the country. The arrangement of distribution power in different aspects is legislative, administrative and financial. Indian Constitution has laid down a clear and detailed division of powers between the Union government and the State governments. The Constitution contains various provisions to regulate the legislative, executive, and financial relations between the Union government and the State governments. In this article we shall discuss the distribution of legislative powers between the Centre and States.
Legislative Relations
Legislative Distribution:
Articles 245 to 255 in Part XI of India’s Constitution spell out distribution of legislative powers between the Centre and States..
According to Article 245(1) of the Constitution, the Parliament of India is authorized to make the laws that will be implemented on the entire territory or some parts of the territory of India. This territory of India includes all the states, union territories, and the areas included in the territory of India tentatively. The state can make and impose the laws within the boundaries of a state. The implied law can be applied to either the whole of the state or the part of it.
According to Article 245(2) of the Constitution, the parliament is authorized to make extraterritorial laws that can apply to Indian citizens and their property in any part of the world. This means that laws made by parliament will govern not only persons and property within the territory of India but also Indian citizens resident and their property situated anywhere in the world.
Article 246 provides for subject matter of laws made by parliament and by the legislatures of states. The Seventh Schedule of India’s Constitution contains the allocation of powers and functions between the Centre and States. It has three lists 1) Union List, 2) State List, and 3) Concurrent List.
- Union List: The Union Parliament has exclusive powers to make legislation on the matters included in the Union List. The Union list has 100 subjects at present. The major subjects include External affairs, Defence, Communications, Civil aviation, Railways, Inter-state trade and commerce, Banking, Currency, Insurance, etc.
- State List: The State Legislatures have exclusive powers to make legislation on the matters incorporated in the State List. The State list has 61 subjects at present. The laws made by a particular state legislature on the subjects in state list apply to only that particular State. The major subjects include Law and order, Police, Prison, Agriculture, Land revenue, Local government, Public health, Land liquor, State public services, Fisheries, etc.
- Concurrent List: Both the Center and States can make laws on the subjects included in the Concurrent List. The Concurrent list has 52 subjects at present. The major subjects include Education, Forests, Electricity, Weights and measures, Adulteration, Adoption and succession, Trade unions, etc. In case of conflict between Union Law and State Law on a subject incorporated in the Concurrent List, Union law prevails over State law. However, there is an exception to this rule under Article 254 (2). The law of the State legislature on any item in the Concurrent List shall prevail over Parliament’s law on the same subject if the State law was reserved for the President’s consideration and received President of India assent.
- Residuary Power: Article 248 of the Indian Constitution deals with the Residuary Powers of legislation. The Residuary powers legislation is given to the Center, and Parliament of India alone can make legislation on the subjects not included in any of the above three lists. This residuary power consists of the power to levy any residuary taxes also.
In JK Jute mills vs. State of UP, AIR 1961 SC 1534 case, the Supreme Court held that the power of the Legislature to enact laws with reference to the matters interested to it is unqualified and it is only subject to the limitations imposed by the constitution.
In State of West Bengal versus Union of India AIR 1963 SC 1241 case, where the state challenged the constitutionality of the Coal Bearing Areas (Acquisition and Development) Act (1957) enacted by the Parliament because the ownership of the land was vested in the state government. The Supreme Court ruled that the state right in the matter was subject to the Union right and national interest under the Constitution.
In B. Vishwanathiah vs. State of Karnataka, 1991 SCR (1) 305 case, the Supreme Court ruled that the legislative power of the State regarding industries other than those falling under the Union List is exclusive. However, in the case of mines that figure in union as well as the State List in their different aspects, if their regulation and development by the union is declared by the Parliament to be of “public interest”, the field is abstracted from legislative competence of the state legislature.
Doctrine of Pith and Substance:
Doctrine of Pith and Substance is also known as the Doctrine of Predominant Purpose of true nature and character of law. If the law passed by one legislature encroaches upon the field assigned to other, then the court will apply the doctrine of pith and substance to determine whether the legislature was competent to make the law or not. Pith and substance of Legislature means true object and scope of legislation. If substance of law relates to matters within the competence of Legislature then the enactment will be held to be intra virus (valid).
In Ujagar Prints (II) vs. Union of India, 1989 AIR 516 case, laying down a broad principle of constitutional interpretation, the Supreme Court observed: “Entries in legislative lists, it may be recalled, are not sources of legislative power, but are merely topics or fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The expression with respect of article 246 brings in the doctrine of pith and substance in the understanding of the exertion of the legislative power and wherever the question of legislative competence is raised, the test is whether the legislation looked at as a whole is substantially with respect to the particular topic of legislation. If the legislation has a substantial and not merely a remote connection with the entry, the matter may well be taken to be legislation on the topic”.
In R.D Joshi v. Ajit Mills AIR 1977 SC 2279 case, the Supreme Court held that entries in the list must be given wide meaning in performing all ancillary and incidental powers. The court held that punitive measures for enforcing social legislation are ancillary measures.
In Prafulla Kumar Mukherjee vs The Bank Of Commerce, (1947) 49 BOMLR 568 case, the validity of the Bengal Money Lenders Act,1946 was challenged on the ground that it was ultra-vires the Bengal Legislature in so far as it related to promissory notes” which was a central subject. The Privy Council held that the Act was, in pith and substance, a law in respect of “money lending” and “money lenders”, a state subject and hence, was valid even though it incidentally encroached on “promissory notes”. The court held that clear cut distinction is not possible between the legislation if Power of Union and State legislatures because they are bound to overlap. In ascertaining the pith and substance of the court must consider:- a) The object of the Act b) The scope of the Act and c) The effect as the whole.
In the State of Bombay v. F N Balsara, AIR 1951 SC 318 case, the Supreme Court held that Bombay prohibition act as valid because the pith and substance of the act fell in the state list even though it incidentally encroaches upon the union list.
Doctrine of Colorable Legislation:
It is based upon the doctrine of power separation. Separation of power mandates to strike power of balance between different state organs. It means that though apparently the legislature passing the statue purported to act within the limits of the power. The transgression is covert or indirect. This doctrine of colorable legislation is applied when a Legislature does not have the right to make law upon a particular subject but indirectly makes one. It is based on the Maxim ‘ what cannot be done directly, cannot be also done indirectly’ Colourability is bound up in competency and not with bad fate or evil motive.
In K.C. Gajapati Narayana Deo and Other v. The State Of Orissa, AIR 1953 ORI 185 case, the Court observed -“If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers”
In State of Bihar vs. Kameshwar Singh, AIR 1952 SC 252 case, where the law has been declared invalid on the ground of colorable legislation. The Bihar Land Reforms Act, 1950 was held unconstitutional on the ground that although it ostensibly purported to lay down the principle of compensation, it did not lay down any such principle and therefore implicitly attempted to deprive the petitioner of any compensation.
Supremacy of Parliament:
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. 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.
The distribution of powers between the Center and states is to be followed in normal circumstances. However, the Central Government has supremacy over states under certain exceptional situations. Constitution empowers the Union Parliament to make laws on the subjects incorporated in the State List in an emergency.
- As per Article 246(4) of the Indian Constitution Parliament has power to make laws with respect to any matter for any such part of the territory of India as had not been included in a State, notwithstanding that such matter was a matter enumerated in the State List.
- As per Article 249 of Indian Constitution, if the Rajya Sabha, because of the nation’s interest, passes a resolution by a majority of two-thirds of its members requesting Parliament make legislation on a State List subject, Parliament makes such law. Such legislation made by Parliament shall continue in operation for one year. However, it can be extended for one more year if required.
- If Rajya Sabha mandates the Parliament to make laws for the state in matters like GSTs, then in such cases, the Parliament of India becomes competent to make any type of law in such related matters. This type of resolution needs to be passed with the majority of two-thirds of the votes of members present in the parliament. This provision enabled the Rajya Sabha which represented the States, to put in the concurrent list any matter that was of local concern but had assumed national importance. The Rajya Sabha could do so anytime, emergency or not emergency. Thus, this provision allows for the Parliament to legislate on matters that are normally within the purview of the state governments, if the Rajya Sabha deems it necessary in the national interest. The resolution passed by the Rajya Sabha remains in force until it is specifically repealed by the Council.
- Article 250 of the Indian Constitution deals with the granting of legislation powers that are accorded to the Parliament to address any matter that is included in the State List, if a Proclamation of Emergency is in effect. Thus, while a Proclamation of Emergency is in effect, Parliament has the power to make laws on a wide range of subjects that are typically within the jurisdiction of the state governments. However, the laws get into operation 6 months after the ceasing of emergency.
- Article 251 explains that the Legislature of a State has been granted certain authority and special powers by the Constitution of our country. Due to the rendering of this power upon it, the Legislature of a State can make laws. However, the provisions mentioned in Article 249 of the Indian Constitution and Article 250 of the Indian Constitution cannot limit the power of the Legislature of a State.
- Article 252 makes a provision for legislation by invitation. When two or more States want to pass a resolution on some common matter, then in that case, they can request the Parliament to enact those laws in the state list for regulating the matter. It should be noted that the law passed will be applied to the states which made such a request, though any other State may adopt it by passing such a resolution subsequently. Such a law can be amended or repealed only by the Parliament.
- The Parliament has got the authority to make and enact laws on matters related to international treaties, conventions, and agreements. Article 253 of the Indian Constitution relates to the power of Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement, or convention with any other country or countries or any decision made at any international conference, association, or other body. This provision enables Parliament to make laws to give effect to international obligations that India may have undertaken. It allows Parliament to override the provisions of any other law, including state laws, to the extent necessary to give effect to the international agreement or treaty in question.
- Besides the provisions mentioned above, the Center exercises control over State legislation. Article 200 of India’s Constitution deals with the Governor’s powers to assent given to the bills passed by the State legislature. The Governor may reserve specific bills passed by the State legislature for the consideration of the President of India. Moreover, the President enjoys full powers over such bills to give or reject assent. The bills on some matters incorporated in the State List need the President of India’s prior permission. The President can direct the States to reserve money bills and other financial bills passed by the State legislature for his consideration during a financial emergency. (Article 200) The Constitution empowers the Governor to reserve a bill for the President’s consideration. This is a significant discretionary power of the Governor to ensure that the State’s laws fall within the Constitution’s larger ambit. Contrary to reality, its procedure misused to water down a bill legitimately passed by the state legislature.
- The predominance of Parliament was further established by Article 356 and 357 of the Indian Constitution. Article 356 stipulated that, if the President was satisfied that a situation had arisen in which the government of a state could not be carried on in accordance with the provisions of the Constitution, he might declare that the powers of the Legislature of that state would be exercisable by or under the authority of Parliament. Article 357 provided, delegate the law-making power to the President. The effect of Article 356 would be that the Legislature of the state in question would stand dissolved or suspended and the law-making power would vest in Parliament during the period the proclamation of Emergency remained in force
Conclusion:
Thus, from the scheme of distribution of Legislative powers between the union and the states, it is quite evident that framers have given more powers to the Parliament as against states. The states are not vested with exclusive jurisdiction even over the subjects assigned to the states by the constitution and thus it makes the states to some extent subordinate to the centre. This centralizing tendency is no doubt inconsistent with the federal principle, but the framers of the constitution were more concerned with the unity of the nation rather than following the traditional requirements of a federal constitution. Besides, the central control was considered necessary for the purpose of achieving rapid economic and industrial progress.