Division of Legislative powers between Centre and State
The Division of power between Centre and State, under the Indian Constitution is generally divided by referencing to major two doctrines which are – the doctrine of separation of powers and the doctrine of distribution of powers. The famous political philosopher Montesquieu laid down the doctrine of separation of power based on the English legal system. His view in this theory was concentrating on the separation of the legislative, executive, and judicial powers. All the power to one person or body of persons will lead to tyranny in the state. So, he believed that these powers must be vested in three different organs namely legislature, executive, and the judiciary.
The doctrine of distribution of power is a typical feature of federalism. In Federalism, the power is divided between multiple vertical levels of government like national, state, district, local which allows multiple access levels for citizens to approach. Federalism makes sure the independence and coordination go hand in hand between both centre and state governments.
The Constitution of India has a two-fold distribution of legislative powers, i.e. with respect to territory and with respect to the subject matter. The distribution of power with respect to territory is between Union and the States, whereas with respect to the subject matter, there is a unique system adopted by the Constitution of assigning specifically enumerated power among Union (List I), to State (List II) and Concurrent to both Union and states (List III).
Article 245 of Indian Constitution states that Extent of laws made by Parliament and by the Legislature 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.
The clause (1) clearly states that Laws of Parliament may apply or extend to the whole or any part of the territory of India while the laws of State Legislature may apply or extend to whole part of that State. And the Clause (2) clears that a Law passed by Parliament shall not be deemed to be invalid on the ground that it has extra-territorial jurisdiction.
A.H. Wadiya v. Commissioner of Income Tax:-“In the case of Sovereign legislature, the question of extra-territoriality of any enactment can never be raised in the municipal courts as a ground for challenging its validity. The legislation may offend the rules of International law, may not be recognized by foreign courts, or there may be practical difficulties in enforcing them but these are questions of policy with which the domestic tribunals are not concerned.”
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 of India Act, 1935 (for the purpose of territorial jurisdiction), first recognized that the laws of Union and States are enforceable in the territory of India and of State respectively although this simple generalization is subject to the exception of doctrine of territorial nexus.
The power to make a law having extra-territorial operation is conferred only on Parliament and not on the State Legislature, Hence an Act of the State legislature, if it gives extra territorial operation to its provision can successfully be challenged in the court, unless extraterritorial operation can be sustained on ground of Territorial nexus. There were two elements to be proved for Territorial nexus (1) The connection must be real and not illusory and (2) The liability sought to be imposed must be pertinent to that connection.
State of Bombay v. RMDC the state of Bombay levied a tax on lotteries and prize competitions which was extended to the newspapers published outside the state but having lump sum circulation of newspaper in the state. The respondent organized a prize competition through a newspaper printed and published in Bangalore but had wide circulation in Bombay.
The court held that there is sufficient territorial nexus between the person charged and the state seeking tax. Therefore the taxing statue could not be struck down on the ground of extra-territoriality. The question of whether there is sufficient territorial nexus will be determined according to the facts and circumstances of each case by courts.
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 the List I (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 the List III in seventh schedule (in this constitution referred to as the 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 II (State 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. 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 State legislature, both, for the Concurrent List. However, as it will be seen later, there is predominance of the Union Parliament in matters of legislative law making.
The constitution, in making the distribution of legislative powers between the Union and State, follows the Government of India Act, 1935. It enumerates various item of legislation in three lists; List I- Union list (97 items); List II- State list (66 items); List III- Concurrent list (47 items).
The distribution of subject-matters cannot be claimed to be scientifically perfect and there happens to be overlapping between the subjects enumerated in the three lists. Whether a particular subject falls in the sphere of one or other government (i.e. Union or State), the Supreme Court has evolved following principles to determine respective powers of Union and State Legislatures.
Plenary Power of legislature-
It is an absolute power to enact laws (even if it is contrary to any understanding or guarantee given by the State), subject only to its legislative competence and other constitutional limitations.
The Parliamentary power of legislation to acquire property, for example, is unrestricted, as held in State of W. B. v. Union of India
Liberal and Harmonious Construction-
In the federal Constitution of India, there is no clear-cut division of power among Union and state which may lead to conflict. In such cases, Judiciary has to make reconciliation attempts between conflicting entries. It is said by Supreme Court that the language of conflicting entries should be given widest scope and amplitude. But there are some entries in different lists that overlap and appear to have a direct conflict with each other. It is then the doctrine of harmonious construction is to be applied. Reading both entries of two lists together and interprets or construe as a whole to remove the inconsistency.
Rule of Pith and Substance-
This doctrine is applied when there is a conflict between a law dealing with the subject matter in one list touching on a subject matter in another list. In other words, when there is some clash between-subject of List I and List II. In such a case, Pith and Substance that is “true nature and character” of enactment should be ascertained.
Kerala SEB v. Indian Aluminium Co. Ltd – The doctrine of Pith and substance applied and it was held that “For deciding under which entry a particular legislation falls, the theory of ‘pith and substance’ has been evolved by Courts. If in pith and substance a legislation falls within one list or the other, but some portion of the subject matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching.”
The Doctrine of Colourable Legislation-
The colourable legislation simply means a legislation which, while transgressing constitutional limitation, is made to appear as if it were quite constitutional. If the law enacted by the legislature is found in substance and in reality beyond the competence of the legislature enacting it, it will be ultra vires and void, even though it apparently purports to be within the competence of the legislature enacting it. It is the substance of the Act that is material and not merely the form or outward appearance.
The doctrine is based on the legal maxim that “what cannot be done directly, cannot also be done indirectly”. Therefore, the doctrine is applied when a legislature is not empowered to make certain laws upon certain subjects but makes indirectly which is characterized as a fraud on constitution.
K.C. Gajapati Narayana Deo and other v. The state of Orissa– “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”.
Article 248 explains the residuary power of Legislation, Clause (1) states that Subject to Article 246-A, Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent Lists or State lists.
Clause (2) Such power shall include the power of making any law imposing a tax not mentioned in either of those lists.
Parliament has exclusive power to make any law with respect to any matter not enumerated in List II or III. Such power shall include the power of making any law imposing a tax not mentioned in either of those lists (It is to be noted that before independence, Governor General, and not the federal legislature, which had such powers).
Entry 97 of List I also lays down that Parliament has exclusive power to make laws with respect to any matter not enumerated in List II or III. Article 248 and Entry 97, List I, assign residuary powers of legislation exclusively to the Union Parliament.
If no entry in any of the three lists covers a piece of legislation, it must be regarded as a matter not enumerated in any of the three lists, and belonging exclusively to Parliament under Entry 97, List I. By virtue of Article 248, Parliament has exclusive power to make any law with respect to any matter not enumerated in List II or List III, and for this purpose, and to avoid any doubts, Entry 97 has also been included in List I. In other words, the scope and extent of Article 248 is identified with that of Entry 97, List I
However, scope of residuary powers is restricted, as the three lists covers all possible subjects and because of the court’s interpretation as to a matter falls under residuary powers or not. The rationale behind such powers is that it enables Parliament to legislate on any subject who has escaped the scrutiny of the House, and the subject which is not recognizable at present.
Thus, it enables the Parliament to make laws on subject matter which have come up with advancement of society. However, the framers of Constitution intended that recourse to residuary powers should be the last resort, and not the first step.
State of A. P. v. National Thermal Power Corpn. Ltd.– It was held that if an entry dose not spell out an exclusion from the field of legislation discernible on its apparent reading, the absence of exclusion cannot be read as enabling power to legislate in the field not specifically excluded, more so, when there is available a specific provision in the Constitution prohibiting such legislation.
If any provision of a law made by State legislature is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to matters enumerated in Concurrent List, then subject to clause (2) provisions, the Parliamentary law, whether passed before or after State legislature law, or the existing law, shall prevail and State law shall, to the extent of repugnancy, be void.
Art. 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.
Zaverbhai v. State of Bombay– illustrates the application of proviso to Cl. (2), Art. 254. The Parliament enacted an Essential Supplies Act which provided penalties e.g. imprisonment up to 3 years. The Bombay legislature later passed an Act enhancing punishment up to 7 years. The Act received Governor General’s assent and became operative. Subsequent to the Bombay Act, amendments were made in the Central Act by Parliament with changes in punishment.
The Supreme Court held that as both occupied the same field, the Bombay Act was impliedly repealed by Parliamentary Act, because of repugnancy. The Central Act (amended) was comprehensive Code covering the entire field of punishment for offences under the Act graded according to the community and character of the offence.
- Karunanidhi v. Union Of India In this case, the appellant (a former chief minister of the State of T.N.) abused official position, thus a prosecution launched under I.P.C. and Prevention of Corruption Act. The State Act relating to Public Men (Criminal Misconduct) was passed after obtaining President’s assent and later repealed. The question arose whether action could be taken under Central Laws i.e. I.P.C. and the Prevention of Corruption Act.
The appellant contented that even though State Act was repealed, it was repugnant to Central Acts, thus by virtue of Cl. (2) Art. 254, Central Act provisions stood repealed (when State Act was passed) and thus couldn’t be applied for prosecuting, unless, they are re-enacted (even after repeal of State Act). The question was whether there was repugnancy between the State Act and the Central Acts.
The Test of Repugnancy lay down in this case-
- There is clear and direct inconsistency between State and Union law which is irreconcilable, so that they can’t stand or operate together in the same field.
- There can be no repeal by implication unless inconsistency appears on the face of two statutes.
- Where two statutes occupy a particular field, but there is possibility of both operating in same field without colliding then there is no repugnancy.
- No inconsistency, but a statute occupying same field seeks to create distinct and separate offences, then there is no repugnancy. However, a State law is repugnant to Union law if it (i.e. Union law) is intended to be a complete exhaustive code on subject matter. Even if no intention, same subject matter creates repugnancy.
When Rajya Sabha declares by a resolution of 2/3rd majority (members present and voting) that it is necessary in 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 (not exceeding one year and can be further extended by one year by means of a subsequent resolution)
During times of national Emergency, Parliament is empowered to legislate on all subjects mentioned in any list.
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 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.
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 Arts. 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.
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 body.
-Research Paper By
 V.N. Shukla’s, Constitution of India, 13th edition
 Article 245, Constitution of India
 Article 245(1), Constitution of India
 Article 245(2), Constitution of India
 A.H. Wadiya v. Commissioner of Income Tax AIR 1949 FC 18, 25
 V.N. Shukla’s, Constitution of India, 13th edition
 State of Bombay v. RMDC AIR 1957 SC 699
 Article 246, Constitution of India
 State of W. B. v. Union of India AIR 1863 SC 1241
 C.P. & Berar Sales of Motor Spirits & Lubricants Taxation Act, 1938
 Kerala SEB v. Indian Aluminium Co. Ltd (1946) 1 SCC 466
 K.C. Gajapati Narayana Deo and other v. The state of Orissa AIR 1953 SC 375
 State of A. P. v. National Thermal Power Corpn. Ltd. (AIR 2002 SC 1895)
 Zaverbhai v. State of Bombay AIR 1954 SC 752
 M. Karunanidhi v. Union Of India (AIR 1979 SC 898)
 Article 249 Constitution of India
 Article 250 constitution of India
Article 251 constitution of India
 Article 252 Constitution of India
 Article 253 Constitution of India