The main characteristic of a federal constitution is the distribution of powers between the union and the states.
The Indian constitution provides for a new kind of federalism to meet India’s peculiar needs.
In the matter of distribution of powers, the framers followed the pattern of the Government of India Act, 1935. Thus, predominance has been given to the union parliament over the state legislatures or assemblies regarding the distribution of legislative powers.
The legislative powers are subject to the scheme of distribution of powers between the union and state legislatures (as provided in three lists under the constitution), fundamental rights (i.e. legislative powers cannot contravene the fundamental rights) and other provisions of the constitution (articles 245-254).
There are three lists which provide for distribution of legislative powers under 7th Schedule to the constitution:-
1) Union List (List 1) – It contains 97 items and comprises of the subjects which are of national importance and admit of uniform laws for the whole of the country. Only the union parliament can legislate with respect to these matters. For example, Defence, foreign affairs, banking, currency, union taxes, etc.
(2) State List (List 2) – It contains 66 items and comprises of subjects of local or state interest and thus lie within the legislative competence of the state legislatures, viz. public order and police, health, agriculture, forests, etc.
(3) Concurrent List (list 3) – It contains 47 items, with respect to which; both union parliament and the state legislature have a concurrent power of legislation. The concurrent list (not found in any federal constitution) was to serve as a device to avoid excessive rigidity to a two-fold distribution.
It is a ‘twilight zone’, as for not so important matters, the states can take initiative, while for the important matters, the parliament can do so. Besides, the states can make supplementary laws in order to amplify the laws made by union parliament.
The subjects include general laws and social welfare – civil and criminal procedure, marriage, contract, planning education, etc.
However, in spite of the distribution of legislative powers under the three lists, the predominance has been given to the union parliament over the state legislatures. The constitution makes a two-fold distribution of legislative powers: –
(1) With respect to territory.
(2) With respect to subject matter of legislation, (i.e. three lists).
Territorial Legislative Jurisdiction [Article 245]
Article 245 defines the ambit or territorial limits of legislative powers. Subject to the constitutional provisions, Parliament may make laws for whole or any part of the territory of India, and a state legislature for the territory of that state and no law made by the parliament would be invalid on the ground that it would have extra-territorial operation i.e. takes effect outside the territory of India.”
Theory of Territorial Nexus
The doctrine of territorial nexus is deeply rooted in laws of India even before the commencement of Constitution of India in 1950 the government.
Distribution of Legislative Subjects [Article 246]
Article 246 provides:-
(1) notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in the list 1 (union list).
(2) not with standing anything in clause (3), parliament, and, subject to clause (1), the state legislature also, have the power to make laws with respect to any of the matters enumerated in the list 3 (concurrent list).
(3) subject to clauses (1) and (2), the state legislature has exclusive power to make laws for such state with respect to any of the matters enumerated in list 2 (state list).
(4) Parliament has the 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.
Thus, article 246 provides that the parliament has exclusive power to make laws with respect to union list; the state legislature for the state list; and, the parliament and the state legislature, both, for the concurrent list.
However, as it will be seen later, there is a predominance of the union parliament in matters of legislative lawmaking.
Autonomy to Centre and States (legislative powers)
In Javed versus State of Haryana, the apex court upheld the constitutional validity of certain provisions of Haryana Panchayati Raj Act, 1994, which disqualified a person for holding office of sarpanch or a panch of a gram panchayat, etc. if he had more than two living children, though a similar provision was not found to have been enacted by the parliament or other state legislatures.
In State of MP versus GC Mandawar, it was held that two laws enacted by two different governments and by two different legislatures could be read neither in conjunction nor by comparison for the purpose of finding out if they were discriminatory.
Plenary power of legislature
It is an absolute power to enact laws (even if it is contrary to any understanding or guarantee is given by the state), subject only to its legislative competence and other constitutional limitations.
No limitation can be read on the ground of legislative practice or legitimate expectations.
The principle to interpret the entries (in lists) so as to make the legislative power of parliament and state legislatures ‘plenary’ is that the entries should not be read in a narrow or restricted sense.
Each general word in an entry should be construed to include all ancillary or subsidiary matters which can fairly and reasonably be said to comprehend it.
The following points are important to understand the nature of plenary power:-
The power to make a law includes the power to give effect to it prospectively (i.e. for future acts – law to take effect from a future date) as well as retrospectively (i.e. for past acts – law to take effect from a backdate).
The meaning of a validation act is to remove the causes of ineffectiveness or invalidity of actions or proceedings which are validated by a legislative measure.
Doctrine of Colorable Legislation
The doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. The doctrine becomes applicable when a legislature seeks to do something in an indirect manner what it cannot do directly.
The doctrine thus refers to the question of competence of the legislature concerned to enact a particular law. The Constitution has already distributed legislative powers between the Parliament and State Legislatures and each has power to enact within its legislative spheres, marked out for it by the specific legislative entries.
In respect of the subject-matter of a particular legislation, the question may arise whether the legislature transgresses the limits imposed on it by the Constitution. Such transgression may be patent, manifest or direct or may be disguised, covert or indirect.
To ascertain the true character and substance of the enactment, courts take into consideration its object, purpose or design.
Summing up the doctrine, Subha Rao, J. has stated in Gullapalli Nageshwar Rao vs. State Road Transport Corporation, AIR 1959 S.C. 308, “The legislature can only make laws within its legislative competency. The legislative field is circumscribed by the scheme of distribution of powers.
The legislature cannot overstep the field of competency, directly or indirectly.
State of Bihar v. Kameshwer Singh,is the only case where a law has been declared invalid on the ground of colourable legislation.
Inconsistency or Repugnancy between union and state laws (Article 254)
Article 254(1) enumerates the rule that in the event of a conflict between a union and a state law, the former prevails. The union law may have been enacted prior to the state law or subsequent to the state law.
the principle behind is that when there is legislation covering the same ground both by the Centre and by the state, both of them competent to enact the same, the central law should prevail over the state law.
‘Repugnancy’ between two pieces of legislation, generally speaking, means that conflicting results are produced when both the laws of the state as well as union legislature with respect to a concurrent list are applied to the same facts. the expression ‘existing law’ refers to laws made before the commencement of constitution by any legislature, authority, etc. example criminal law, civil procedure, evidence, contract, etc.
Article 254(2) provides for curing of repugnancy which would otherwise invalidate a state law which is inconsistent with a union law or an existing law in order that the state law should prevail in that state, the following conditions must be satisfied:
There must be in existence a union law;
Subsequent to the union law the state legislature enacts a law with respect to a matter in the concurrent list; and
The state law having been reserved for the president’s consideration has received his assent thereto.
However, the proviso to article 254(2) lays down that parliament may again supersede state legislation which has been assented to by the president under clause (2) by making a law on the same matter.
The state law may be amended or repealed by parliament either directly or by enacting a law repugnant to it with respect to the same matter. Where it does not expressly do so, even then state law will be repealed by necessary implication.
Legislative Powers: Predominance of Union Law and limitations of State Legislatures
(1) In case of an overlapping between the three lists, regarding a matter, the predominance is given to the union (article 246). Thus, entries in state list have to be interpreted according to those in the union and concurrent lists.
(2) In the concurrent sphere, in case of a repugnancy or inconsistency between union and states law relating to the same subject – the union law prevails (article 254).
(3) Extensive nature of Union List — Some subjects normally intended to be in the jurisdiction of states are in the union list example industries, universities, election and audit, inter-state trade and rivers, etc.
(4) Residuary powers (article 248) – Power to legislate with respect to any matter not enumerated in any of the three lists (example imposition of taxes) is given to the union.
(5) Expansion of powers of union legislature under certain circumstances – in the following situations, parliament can legislate with respect to “state list” subjects:
(a) when the Rajya Sabha declares by a resolution of 2/3rd majority (members present and voting) that it is necessary for national interest; 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. (Article 249)
(b) Under a proclamation of emergency; it shall be lawful for parliament to make laws for the whole or any part of the territory of India with respect to matter in the state list (article 250). Thus, during emergency, the parliament can legislate on subjects in all the three lists and the federal constitution gets converted into unitary one.
Nothing in articles 249 and 250 shall restrict the power of state legislature to make any law which under this constitution it has the 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 .
(c) by agreement between the states i.e. with the consent of state legislatures; 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 states’ house. the parliament (not state legislature) also reserves the right to amend or repeal any such act (article. 252).
(d) To implement treaties:- 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 bodies (article 253).
Treaties are not required to be ratified by parliament. They are, however, not self-operative. Parliamentary legislation will be necessary for implementing them. But laws enacted for the enforcement of treaties will be subject to the constitutional limits i.e. such a law cannot infringe fundamental rights.
(e) Failure of constitutional machinery in a state (article 356). The president can authorize the parliament to exercise the powers of the state legislature during the proclamation of emergency due to the breakdown of constitutional machinery in a state.
(6) Distribution of legislative powers does not apply to union territories, in which parliament can legislate with respect to ‘any subject’ including those in the state list. 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. 246(4)].
(7) Notwithstanding anything in this chapter, Parliament may by law provide for the establishment of any additional.