Law and You > Constitutional Law > Legislative Relations Between Centre and State (Article 245-255)
Indian Constitution is neither purely ‘federal’ nor purely ‘unitary’. The constitution of India follows the federal structure by dividing all of its power between the Centre and the states. Specific subjects have been allocated to the exclusive fields of the centre and the states respectively and certain subjects have been allocated to the ‘concurrent field’ with the stipulation that in the ‘state’ and ‘concurrent’ fields, the states should have the freedom to follow their own policies except to the extent that Parliament itself decides to legislate under the powers given to it under the Constitution. Therefore, the constitution of India has certain provisions that help to regulate Centre-State Relations on various dimensions. However, it should be noted that the Judiciary powers are not decentralised to the states as, according to the constitution of India Judiciary system is an integrated form of power for the entire nation. In this article we shall discuss legislative relations between centre and state.
The relations between the centre and the States have been mentioned in Parts XI and XII of the Constitution under the heads:
- Legislative Relations (Article 245-255 of Part -XI)
- Administrative Relations (Article 256-263 of Part -XI)
- Financial Relations (Article 268-293 of Part –XII)
Legislative Relations Between Centre and State:
Chapter I of Part XI (Article 245-254) of the Indian Constitution deals with legislative relations between the state and the centre. There are four aspects of Legislative relations.
Territorial Extent of Centre and State Legislation:
Article 245:
Extent of laws made by Parliament and by the Legislatures of States:
(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.
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.
Limitations to the Territorial Jurisdiction of Parliament:
The President of India can make the legislation keeping the peace, good governance, and progress in the 5 union territories. These are Daman and Diu, Ladakh, Andaman and Nicobar Islands, Lakshadweep, Dadra, and Nagar Haveli. The legislation made by the president is equal to that of Parliament. The president can repeal or make amendments to any of the acts implemented by the Parliament of India concerning these 5 union territories.
Thus, the plenary territorial jurisdiction of Parliament is, however, subject to some special provisions of the constitution. They are as follows:
(a) As regards some of the Union Territories, such as the Andaman and Lakshadweep group of Islands, regulations may be made by the President to have the same force as Acts of Parliament and such regulations may repeal or amend a law made by Parliament in relation to such territory (Art. 240).
(b) The application of Acts of Parliament to any scheduled area may be barred or modified by notifications made by the Governor (Para 5 of the V Schedule (3) of the Indian Constitution).
(c) Para 12 (1) (6) of the VI Schedule says that the Governor of Assam may, by public notification, direct that any other act of Parliament shall not apply to an autonomous district or an autonomous region in the state of Assam or shall apply to such district or region or part thereof subject to such exceptions or modifications as he may specify in the notification. It is obvious that the foregoing special provisions have been inserted in view of the backwardness of the specified areas to which the indiscriminate applications of the general laws might cause hardship or other injurious consequences.
Distribution of Legislative Powers (Subject Matter):
Article 246 specifies the subject matter of laws made by parliament and by the state legislatures. It empowers parliament to make laws on all the three lists – the Union list, the State list and the Concurrent list.
Article 246:
Subject Matter of Laws Made by Parliament and by the Legislatures of States:
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List)
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List)
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List
Article 248:
Residuary Powers of Legislation:
(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List
(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists
Constitution Arrangement Between the Centre and the State:
There are two Governments one at the central or Union or federal or national level (Federal Government) and the Government of each state. The Constitution clearly provided a threefold distribution of legislative powers between the Union Government and the State Governments. Thus, it contains three lists: Union List, State List and Concurrent List.
- The Union List This list contains 97 subjects. Parliament has exclusive power to make laws with respect to any of these subjects. It includes subjects of national importance such as defence of the country, foreign affairs, banking, communications, and currency.
- The State List contains 66 subjects. The legislative of any State has exclusive power to make laws with respect to any of these subjects. It includes subjects of State and local importance such as police, trade, commerce, agriculture, and irrigation. The State Governments alone can make laws relating to the subjects mentioned in the State List.
- The Concurrent List contains 47 subjects. Parliament and legislature of any State both have the power to make laws with respect to any of these subjects. It includes subjects of common interest to both the Union Government as well as the State Governments, such as education, forest, trade unions, marriage, adoption, and succession. Both the Union as well as the State Governments can make laws on the subjects mentioned in this list. If their laws conflict with each other, the law made by the Union Government will prevail.
- According to our constitution, the Union Government has the power to legislate on the ‘residuary’ subjects. Residuary subjects are those subjects which are not covered in the Union list or the State list. Article 248 says that, Parliament has exclusive power to make any law with respect to any matter not enumerated in any one of the three lists. This reflects the leanings of the Constitution-makers towards a strong centre. Another notable thing regarding to residuary powers is that “the final determination as to whether a particular matter falls under the residuary power or not is that of the courts.
Parliamentary Legislation (Predominance of Union):
The Constitution of India gives predominance to the union list over the state and concurrent list. And similarly, to that of the concurrent list over the state list. Thus, if the situation of overlapping occurs between the Union and State, the former would be given preference. The former will prevail again if the overlapping occurs between the concurrent and union lists.
Clause (4) of Article 246 of the Indian Constitution further provided that, 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.
The constitution gives powers to the parliament to make the laws on any matter in the state list under the five extraordinary circumstances.
Article 247 talks about power of parliament to provide for the establishment of certain additional courts for the better administration of laws made by parliament or of any existing laws with respect to a matter enumerated in the Union List.
When Rajya Sabha Passes a Resolution Or Power of Parliament to Legislate in the National Interest:
Article 249:
Power of Parliament to legislate with respect to a matter in the State List in the national interest
(1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force
(2) A resolution passed under clause (1) shall remain in force for such period not exceeding one year as may be specified therein: Provided that, if and so often as a resolution approving the continuance in force of any such resolution is passed in the manner provided in clause (1), such resolution shall continue in force for a further period of one year from the date on which under this clause it would otherwise have ceased to be in force
(3) A law made by Parliament which Parliament would not but for the passing of a resolution under clause (1) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period
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.
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 249 of the Indian Constitution contains the provisions for allotting power to the Parliament of India to make laws in respect of the issues that find a mention in the State List. The provisions of clause (1) of this article states that the Council of States, or the Rajya Sabha may pass a resolution that requires a special majority in approval of the concerned resolution to be turned into a law. This special majority is defined as two-third majority or more than that of the total members present and voting. This resolution can stay in effect for a year. Another resolution passed in the support of the previous resolution can stay in force for a year after the date of expiration of the previous resolution. Lastly, a law introduced through such a resolution has an expiry period of six months after the validity of the resolution expires. The provision remains ineffective for things done or removed before the defined expiry date.
During National Emergency:
Article 250:
Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation
(1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have, power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List
(2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period
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:
Inconsistency between laws made by Parliament under Articles 249 and 250 and laws made by the Legislatures of States:
Nothing in Articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative
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.
Articles 249 and 250 renders power on the Parliament to make laws. A point to be noted here is that if the Legislature of a State introduces any such law that is in disagreement to any provision held by a law that has been made by the Parliament, then in such a case it is the law made by the Parliament that will be held valid as it is more powerful. It does not matter which government body out of the two passed the law first.
However, the law made by the Legislature of a State will not be valid or not functional only till the time the law made by the Parliament is being implemented and having effect. As soon as the law made by the Parliament reaches expiration of its time period, then the law made by the Legislature of a State shall have effect from then.
When State Makes a Request:
Article 252:
Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State
(1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the House of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State
(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State
Art. 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.
To Implement International Agreements:
Article 253:
Legislation for giving effect to international agreements:
Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power 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
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.
During President’s Rule:
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 delegates 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. In addition to the Parliament’s power to legislate directly on the State subjects under the foregoing
Thus, if the president’s rule is imposed in a state, the Parliament still has the powers to make the laws on any matter related to the state. The law made by the parliament will be operative even when the president’s rule is over. Here it should be remembered that such loss can be altered or re-enacted by the state legislature.
Centre’s Control Over State Legislation:
Apart from the parliament, the constitution allows the central government to exercise some control over the state legislation.
- The Governor has the right to reserve the bills which are passed by the state legislature. These bills are presented for the president’s consideration (where the president has an absolute zero veto on them. Article 200 of the Indian Constitution directs the Governor of a state to reserve a bill passed by a state Legislature for the consideration of the President, if in his opinion, if it is passed into law, would derogate the power of the High Court so as to endanger the position which the court is required to fulfill under the constitution.
- The Centre is authorized to instruct or direct the states to reserve the financial bill. The state legislature passed this bill to keep them under the president’s consideration during a financial emergency.
- The bills on some issues enumerated in the state list can be introduced in the state legislature only with the former sanctions of the president. Article 201 says that, the President shall have the power to give his assent to such a bill or return it to the state for reconsideration on the basis of his recommendations.