The distribution of legislative powers between the Centre and therefore the States in India
Article shared by the distribution of legislative powers between the Centre and therefore the States is an important feature of a federal Constitution. The object is made to involve a division of authority between the Centre and therefore the States. The Constitution of India has made two fold distributions of legislative powers between the Union and States,
- (1) With respect to territory;
- (2) With respect to subject-matter.
(1) Territorial jurisdiction:
Article 245 (1) provides that subject to the supply of this Constitution, Parliament may make laws for the entire or any a part of India and therefore the Legislature of a State may make laws for the entire or any a part of the State. Article 245 (2) provides that a law made by Parliament shall not be deemed to be invalid on the bottom that it’s extra-territorial operation, Le., takes effect outside the territory of India.
The legislative powers of the Parliament or the State Legislatures is subject to the provisions of the Constitution,
- (1) The Scheme of distribution of legislative powers;
- (2) Fundamental rights;
- (3) Other provisions of the Constitution.
Theory of Territorial nexus:
Article 245 (1) provides that subject to the provisions of this Constitution, the State may make laws for the entire or any an area of the territory of India, and the Legislature of a State may make laws for the entire or any a part of the State.
It means State laws would be void if it’s extra-territorial operation, Le. it takes effect outside the State. However, there is one exception to this general rule. A State law of extra-territorial operation are going to be valid if there’s sufficient nexus to the thing and therefore the State.
In State of Bombay v. R.M.D.C., AIR 1957 S.C. 699, the Bombay State levied a tax on lotteries and prize competitions. The tax was extended to a newspaper printed and published in Bangalore but it had wide circulation in Bombay. The respondent conducted the prize competitions through this paper. The Court held that there existed a sufficient territorial nexus to enable the Bombay State to tax the newspaper.
(2) Distribution of legislative powers:
The crux of a federal Constitution is that the division of powers and functions between the Union and therefore the States. Usually, certain powers are allotted to the Centre, certain powers are allotted to the States and a few areas could also be common for both to work .
A basic test which is applied to make a decision upon what subjects should be allotted to the one or the opposite level of state is that functions of national importance should go to the Centre and people of local interest should attend the States. This test is extremely general, rather rough; a billboard hoc formula doesn’t cause any uniform pattern of allocation of powers and functions between the 2 tier governments.
The Indian Constitution seeks to make three functional areas; an exclusive area for the Centre to work ; an exclusive area for the States to operate, and a standard or concurrent area in which both the Centre and the States may operate simultaneously, subject to the overall supremacy of the Centre.
Article 246 (1) confers on Parliament an exclusive power of legislature in respect of matters within the “Union List”. Thus, thus far as this list cares , the States aren’t entitled to form any law on the matters mentioned during this list.
Article 246 (2) confers a concurrent power of legislation on both the Centre and therefore the States with reference to any of the matters enumerated in “Concurrent List”. In this area, therefore, both the levels of government can function simultaneously.
Article 246 (3) confers an exclusive power on the State Legislatures to form laws for his or her respective States with reference to matters enumerated in “State List”. In this area therefore, the Centre cannot legislate and therefore the matter falls within the exclusive domain of the State.
There are certain matters which couldn’t be allocated exclusively either to the Centre or the States, though States might legislate with reference to them, but it had been necessary that the Centre should also have legislative jurisdiction in order to secure uniformity in the main principles of law throughout the country to guide and encourage State effort, and to provide remedies for mischief’s in the State sphere, but extending or liable to extend beyond the boundaries of single State.
Concurrent List has made it possible to eliminate all diversity of laws which are at the idea of civil and company lifetime of the country. The great Codes of Civil Procedure and Criminal Procedure, Evidence Act, and Transfer of Property Act, are a number of the examples.
Concurrent List consists of 47 subjects. New entries 11-A, 17-A, 17-B, 20-A and 33-A have been added by constitutional amendments. Both Centre and therefore the States can make laws on the themes mentioned within the Concurrent List. But just in case of conflict between the Central and therefore the State law on concurrent subjects, the Central law will prevail.
The above three lists are very exhaustive and elaborately drawn and it’s going to be assumed that practically all subjects identifiable today, are assigned to the governments in these lists. But the present era is of fast technological growth and advancement.
In the atomic and hydrogen age, nobody can visualize today the longer term developments and exigencies of the govt . To meet this difficulty, the Constitution has laid down the formula by which the residue, the themes not mentioned in any of the lists belongs to the Centre exclusively. Article 248 lays down during this context, “Parliament has exclusive power to form any law with reference to any matter not enumerated within the Concurrent List or State List”.
To effect all these provisions in the Constitution is to invest exclusively in the Centre any residuary power of legislation.
Parliament’s power to legislate on State Subjects:
Though in normal times, the distribution of powers must be strictly maintained and neither the State nor the Centre can encroach upon the sphere allotted to the other by the Constitution, yet in exceptional situations, the above system of distribution may be suspended. These exceptional situations are:
(1) Power of Parliament to legislate in national interest:
According to Article 249, if the Rajya Sabha passes a resolution supported by two-thirds majority that it is expedient or necessary in the national interest that Parliament should make laws with respect to any matter enumerated within State List, then it will be lawful for the Parliament to make laws for the whole or any part of the territory of India.
(2) During a proclamation of Emergency:
According to Article 250, while the proclamation of Emergency is in operation, the Parliament shall have power to make laws for the whole or any part of the territory of India with respect to matters on State List. Such a law will expire after six months on expiration of the proclamation of emergency.
(3) Parliament’s power to legislate with the consent of States:
According to Article 252, if the legislature of two or more States pass resolution to the effect that it is desirable to have a law passed by Parliament on any matter in State List, it shall be lawful for Parliament to make laws regulating that matter. Any other State may adopt such a law by passing a resolution to that effect.
(4) Parliament’s Power to legislate for having effect to treaties and international agreements:
Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions. In other words, the normal distribution of powers will not stand in the way of Parliament to pass a law to give effect to any international agreement even though such law relates to any of the subjects in the State List.
(5) In case of failure of constitutional machinery in the State:
Under Article 356 Parliament is empowered to make laws with respect to all matters in the State List when the Parliament declares that the government of the State cannot be carried on in accordance with the Constitution.
It is submitted that these provisions enable the Centre to legislate in exceptional circumstances on the State subjects without amending the Constitution and thus introducing a certain amount of flexibility in the scheme of distribution of legislative powers.
Author: Pragya Sinha,
Symbiosis law college,nagpur . 1st year