Doctrine of Residuary Powers in Constitution of India

The doctrine of residuary powers in constitution of India

Matters of national concern were included in the Union List, while those of essentially state or local significance were placed in the State List by the Constitution’s framers. In order to preserve uniformity in legislation while taking into account the country’s diversity, matters of common importance to the States and the Union were placed on the Concurrent List.

The Union List and the State List have exclusive legislative authority in Parliament and the state legislatures, respectively. Both have the authority to legislate on topics on the Concurrent List. However, the Founding Fathers created residuary provisions in Article 248 of the Constitution and Entry 97 of the Union List, anticipating a situation in which legislation would be required on issues not mentioned in any of the three Lists. The legislative residuary powers are vested in Parliament.

According to Article 248(2) of the Indian Constitution, the Parliament has sole authority to enact legislation on any subject not covered by Lists II and III. This power includes the ability to enact any law imposing a tax that is not included in either of those lists.

The entry 97 of the Union List also states that parliament has sole authority to create legislation in any topic not covered by list II or III.

As a result, Article 248 and Entry 97 of the Union List of the Indian Constitution give the Union sole legislative powers. By virtue of Art. 248, if no entry in any of the three lists covers a piece of legislation, it must be treated as a matter not mentioned in any of the three lists and pertaining exclusively to parliament under entry 97, list I. In other words, the scope and extent of Article 248 are linked to the scope and extent of list I of entry 97.

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However, the residuary powers have a limited extent. This is due to the fact that the three lists, namely Union, State, and Concurrent, cover all potential topics. The court can then consider whether or not a subject area is covered by the residuary power. The purpose of the residual authority is to allow the parliament to legislate on any subject that has eluded the examination of the house and is not currently recognised. However, the founders of the Constitution intended that residuary powers be used only as a last resort, not as the first step.

The separation of powers is a key aspect of federalism. The goal of forming a federal state is to create a divide of authority between the federal government and individual states. The Indian Constitution divides the subjects of legislative power between the Parliament and state legislatures into three lists: Union List, State List, and Concurrent List. With the advancement of society, expanding horizons of scientific and technical language, and exploration of the mystery of creation, it is possible that every conceivable head of legislation with human comprehension and within the foreseeable future could not have been considered by the Constitution-makers and thus was not specifically enumerated in one of the three lists.

A subject of legislation may not clearly fall under any specific entry in the tree Lists due to the complexity of modern governmental administration in a federal system that provides for the allocation of legislative authorities along with the ability of judicial scrutiny. In such a case, Parliament would be able to legislate on the matter using its residuary powers under Article 248 and Article 246(1), read with List I Entry 97.

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The residuary powers are vested in the parliament under Article 248. It states that parliament has sole authority to enact legislation on any subject not covered by the Concurrent List or the State List. Entry 97 of the Union List also states that Parliament has sole authority to enact legislation on any subject not included by the State List or the Concurrent List, including any tax not covered by either of these lists. As a result, the Indian Constitution differs from the practise in the United States, Switzerland, and Australia, where states have residuary powers.

The judiciary (as the interpreter of the constitution) plays a critical role in determining residuary powers. It has been left up to the courts to decide whether or not a particular topic fits under the residuary power. However, as the three lists attempt a complete enumeration of all potential legislative subjects, courts have traditionally interpreted the realm of the powers to be listed in a liberal manner.

In the realm of taxing powers, the residuary powers have been fully utilised. Because taxing powers are clearly listed in the Lists, they cannot be interpreted as supplementary or incidental to any other legislative entry. Again, taxing rights have been granted solely in exclusive fields; no taxing powers have been granted in concurrent fields. These circumstances appear to have prompted the use of residuary power to defend the legality of taxing measures.

The residuary powers, which were meant to have a fairly limited extent due to the Constitution’s detailed enumeration of legislative themes in the three Legislative Lists, have turned out to be far more expansive. The use of residuary powers to justify wealth, gift, expenditure, and other taxes, in particular, demonstrates that it has given the Union’s power a new dimension. Since the Supreme Court’s landmark ruling in UOI v. H. S. Dhillon, a new era in constitutional interpretation of legislative entry has emerged.

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It is no longer necessary to justify the exercise of Union authority on the basis of one or more Union List entries; all that is required is to demonstrate that the power in issue does not belong to the State. The detailed enumeration of powers in List I has been rendered superfluous by this logical approach to the entries, though it may still serve some purpose in illustrating the scope of the Union’s residuary powers and determining the scope of the specifically enumerated powers in the state and concurrent fields.

Author: Ankita Sharma,
Sharda University

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