To prepare for INDIAN POLITY for any competitive exam, aspirants have to know about Centre-State Relations. It gives an idea of all the important topics for the IAS Exam and the polity syllabus (GS-II.). This is an essential portion of the polity. As IAS aspirants, you should be thorough with Centre-State Relations. In this article, you can read all about the Distribution of Legislative Subjects (Article 246).
|DISTRIBUTION OF LEGISLATIVE SUBJECTS (ART. 246)|
- Indian Constitution provides for a division of the subjects between the Centre and the states through three lists – List-I (Union), List-II (State) and List-III (Concurrent) in the Seventh Schedule:
- The PARLIAMENT has exclusive powers to make laws with respect to the matters enumerated in the Union List. Presently, 100 Subjects (originally 97 subjects) like defence, banking, foreign affairs, currency, atomic energy, insurance, communication, inter-state trade and commerce, census, audit and so on. The matters of national importance and the matters which requires uniformity of legislation nationwide are included in the Union List.
- The State Legislature has, in normal circumstances exclusive powers to make laws with respect to any of the matters enumerated in the State List. This has at present 61 Subjects (originally 66 subjects) like public order, police, public health and sanitation, agriculture, prisons, local government, fisheries, markets, theatres, gambling and so on. The matters of regional and local importance and the matters which permits diversity of interest are specified in the State List.
- Both, the Parliament and State Legislature can make laws with respect to any of the matters enumerated in the Concurrent List. This list has at present 52 subjects (originally 47subjects) like criminal law and procedure, civil procedure, marriage and divorce, population control and family planning, electricity, labour welfare, economic and social planning, drugs, newspapers, books and printing press, and others. The matters on which uniformity of legislation throughout the country is desirable but not essential are enumerated in the concurrent list.
- The power to make laws with respect to Residuary Subjects is vested in the Parliament (Art. 248). This residuary power of legislation includes the power to levy residuary taxes.
- The 101st Amendment Act of 2016 (Goods and Services Tax) – Parliament and the state legislature have power to make laws with respect to GST imposed by the Union or by the State. Further, the Parliament has exclusive power to make laws with respect to GST where the supply of goods or services or both takes place in the course of inter-state trade or commerce.
|Q. The 42nd Amendment Act of 1976 transferred five subjects to Concurrent List from State List –
c) Weights and Measures,
d) Protection Of Wild Animals and Birds,
e) Administration Of Justice; constitution and organization of all courts except the Supreme Court and the high courts.
US – Only the powers of the Federal Government are enumerated in the Constitution and the residuary powers are left to the states. The Australian Constitution followed the same pattern. In Canada à there is a double enumeration of Federal and Provincial subjects, the residuary powers are vested in the Centre. India follows the Canadian precedent.
- The GoI Act of 1935 provided for a three-fold enumeration of the subjects – federal, provincial and concurrent. The Indian Constitution follows the scheme of this act but with one difference, that is, under GoI Act of 1935, the residuary powers were given neither to the federal legislature nor to the provincial legislature but to the Governor- General of India.
- The Constitution expressly secures the predominance of the Union List over the State List and the Concurrent List and that of the Concurrent List over the State List.
- In case of overlapping between the Union List and the State List, the former should prevail. In case of overlapping between the Union List and the Concurrent List, it is again the former which should prevail. Where there is a conflict between the Concurrent List and the State List, it is the former that should prevail.
- In case of a conflict between the Central law and the state law on a subject enumerated in the Concurrent List, the Central law prevails over the state law. But, there is an exception – If the state law has been reserved for the consideration of the President and has received his assent, then the state law prevails in that state. However, it would still be competent for the Parliament to override such a law by subsequently making a law on the same matter.
|PARLIAMENTARY LEGISLATION IN THE STATE FIELD (ART. 249)|
- The below scheme of distribution of legislative powers between the Centre and the states is to be maintained in normal times.
- But, in abnormal times, the scheme of distribution is either modified or suspended.
|Art. 246A||Parliament and state legislature has the power to make law for union or state GST respectively.|
|Art. 249||Parliament (Rajya Sabha ) can legislate on state list in the national interest.|
|Art. 250||Parliament can legislate if there is Emergency.|
|Art. 252||Parliament can legislate for 2 or more states by their consent.|
|Art. 253||Parliament can make law to give effect to International Agreements.|
|Art. 256||State executive should comply to all laws made by Parliament.|
|Art. 200||Assent to bills and reservation of money/finance bills for President’s consideration.|
|Art. 356||State emergency (President’s rule)|
|Art. 360||Financial emergency|
- The Constitution empowers the Parliament to make laws on any matter enumerated in the State List under the following five extraordinary circumstances:
1. When Rajya Sabha Passes a Resolution
- If the Rajya Sabha states that it is necessary in the national interest that Parliament should make laws on a matter in the State List, then the Parliament becomes competent to make laws on that matter.
- Such a resolution must be supported by two-thirds of the members present and voting.
- The resolution remains in force for one year; it can be renewed any number of times but not exceeding one year at a time.
- The laws cease to have effect on the expiration of six months after the resolution has ceased to be in force.
- This provision does not restrict the power of a state legislature to make laws on the same matter.
- But, in case of inconsistency between a State Law and a Parliamentary Law, the latter is to prevail.
2. During a National Emergency (Art. 352)
- The Parliament acquires the power to legislate with respect to matters in the State List, while a proclamation of national emergency is in operation.
- The laws become inoperative on the expiration of six months after the emergency has ceased to operate.
- In above case, the power of a State Legislature to make laws on the same matter is not restricted.
- In case of repugnancy between a state law and a parliamentary law, the latter is to prevail.
- The laws cease to have effect on the expiration of six months after the resolution has ceased to be in force.
3. When States Make a Request
- When the legislatures of two or more states pass resolutions requesting the Parliament to enact laws on a matter in the State List, then the Parliament can make laws for regulating that matter.
- A law so enacted applies only to those states which have passed the resolutions.
- Any other state may adopt it afterwards by passing a resolution to that effect in its legislature.
- Such a law can be amended or repealed only by the Parliament and not by the legislatures of the concerned states.
- In case of request by states, the State Legislature ceases to have the power to make a law with respect to that matter.
- Some examples of laws passed under the above provision are Wild Life (Protection) Act, 1972; Water (Prevention and Control of Pollution) Act, 1974; Urban Land (Ceiling and Regulation) Act, 1976; and Transplantation of Human Organs Act, 1994.
- Clinical Establishments Registrations and regulations Act, 2010 has been made for 4 states (Sikkim, Mizoram, Arunachal Pradesh and Himachal Pradesh)
4. During President’s Rule (Art. 356)
- When the President‘s rule is imposed in a state, the Parliament becomes empowered to make laws with respect to any matter in the State List in relation to that state.
- A law made so by the Parliament continues to be operative even after the President‘s rule and not co- terminus with the duration of the President‘s rule.
- Such a law can be repealed or altered or re-enacted by the state legislature.
5. To Implement International Agreements
- The Parliament can make laws on any matter in the State List for implementing the international treaties, agreements or conventions.
- This provision enables the Central government to fulfill its international obligations and commitments.
- Punchhi Commission has said that treaties which impinge on state list must be negotiated with increasing involvement of states
- Examples – United Nations (Privileges and Immunities) Act, 1947; Geneva Convention Act, 1960; Anti-Hijacking Act, 1982 and legislations relating to environment and TRIPS.
|CENTRE’S CONTROL OVER STATE LEGISLATION|
- Besides the Parliament’s power to legislate directly on the state subjects under the exceptional situations, the Constitution empowers the Centre to exercise control over the state’s legislative matters in the following ways:
- The governor can reserve certain types of bills passed by the state legislature for the consideration of the President. The President enjoys absolute veto over state bills.
- Bills on certain matters enumerated in the State List can be introduced in the state legislature only with the previous sanction of the President – E.g. bills imposing restrictions on the freedom of trade and commerce
- The Centre can direct the states to reserve money bills and other financial bills passed by the state legislature for the President’s consideration during a financial emergency.
- The Indian Constitution has assigned a position of superiority to the Centre in the legislative sphere.
|ARTICLES PERTAINING TO LEGISLATIVE RELATIONS|
|Art. 245||Extent of laws made by Parliament and by the Legislatures of States|
|Art. 246||Subject-matter of laws made by Parliament and by the Legislatures of States|
|Art. 247||Power of Parliament to provide for the establishment of certain additional courts|
|Art. 248||Residuary powers of legislation|
|Art. 249||Power of Parliament (Rajya Sabha) to legislate with respect to a matter in the State List in the national interest.|
|Art. 250||Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation|
|Art. 251||Inconsistency between laws made by Parliament under Articles 249 and 250 and laws made by the Legislatures of States|
|Art. 252||Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State|
|Art. 253||Legislation for giving effect to international agreements|
|Art. 254||Inconsistency between laws made by Parliament and laws made by the Legislatures of States|
|Art. 255||Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only|
|INTERPRETATION OF THE STATE LIST|
- Supreme Court in Calcutta Gas ltd vs State of West Bengal has held that “widest possible and most liberal” interpretation should be given to the language of each entry of the constitution.
- In International tourism corporation vs State of Haryana, SC has said that “Residuary power given to union should not affect and jeopardies the federal polity”.
- In D. Joshi vs Ajit Mills, the SC has said that “Entries in concurrent lists must be given wide meaning implying all ancillary and incidental powers”.
|DOCTRINE OF PITH AND SUBSTANCE|
- Pith and substance means “true object of the legislation and competence” of the legislature which enacted it.
- General Rule à Union and States are supreme in their respective spheres (Lists) and they should not encroach into other’s sphere.
- In some instances, a law passed by one encroaches upon the field assigned to another, in such case the Court will apply this doctrine.
- Example– A law can be held intra vires even though it incidentally trances on other.
- In S. Krishna v. State of Madras (1957), SC has held that, “In order to ascertain the true character of the legislation, one must have regard to”-
- Whole enactment
- Underlying objective
- Scope and effect of its provision
|DOCTRINE OF COLOURABLE LEGISLATION|
- This doctrine also known as fraud on the constitution.
- Doctrine of Colorable Legislation is built upon the founding stones of the “Doctrine of Separation of Power”.
- Separation of Power mandates that a balance of power is to be struck between the different components of the Statee. between the Legislature, the Executive and the Judiciary.
- The Primary Function of the legislature is to make laws. Whenever, Legislature tries to shift this balance of power towards itself, the Doctrine of Colorable Legislation is invoked to take care of Legislative Accountability.
- In C.G. Narayan Dev vs State of Orissa (1953) judgement, the SC explained the meaning, scope of this doctrine as “when anything is prohibited directly, it is also prohibited indirectly”. In common parlance, it is meant to be understood as “Whatever legislature can’t do directly, it can’t do indirectly”.
- The SC in different judicial pronouncements has laid down the certain tests in order to determine the true nature of the legislation impeached as colourable :-
- The court must look to the substance of the impugned law, as distinguished from its form or the label which the legislature has given it. For the purpose of determining the substance of an enactment, the court will examine two things :- 1. Effect of the legislature and 2. Object and the purpose of the act.
- The doctrine of colourable legislation has nothing to do with the motive of the legislation, it is in the essence a question of vires or power of the legislature to enact the law in question.
- The doctrine is also not applicable to Subordinate Legislation.
|TESTS TO CHECK REPUGNANCY BETWEEN LAWS:|
1.Direct conflict test
- There is direct conflict between state law and the central law.
- Example– Central law says do but the state act says don’t then here there is directly and clearly conflict between two laws.
- Here court will act as per the situation.
2. Doctrine of occupied field
- GENERAL RULE – Even where there is no repugnancy between a Union law and a State law, the Union law will not allow a State law to co-exist if the Parliament intended to occupy the whole field relating to the subject
- g. – An Assam Act provided that a person may be appointed as a member of an Industrial Tribunal only in consultation with the High Court. Later, Parliament made a law which stated only the qualifications and did not mention consultation with High Court. It was held the Central legislation was indeed to be an exhaustive code and no consultation was required.
- In Deep Chand case the SC held that, the intention of Parliament while enacting the Motor Vehicles Amending Act, 1956 was to occupy the whole field of nationalization of motor transport. Hence, the U.P. Act providing for nationalization of transport services could not co-exist.
3. Intended occupation test
- Here test arises with intention of the legislature.
- E.g.- Parliament has given an exhaustive code for a particular matter by replacing the state law then here Parliament has intention to do so.
|DOCTRINE OF READING DOWN|
- When a Legislature has used wide or vague words which may extend the operation of an act to a subject outside the relevant entry, court then interprets the wide terms giving them restricted meaning. This is called reading down.
- The Act with the meaning assigned remains intra vires. The courts avoid striking down an Act.
|LIMITATIONS ON LEGISLATIVE POWERS|
- 245 – Extent of laws made by Parliament and by the Legislatures of States
- Requirements of prior sanctions on specific subjects
- Legislation must not be fraud on the constitution
- Doctrine of colourable legislation
- Legislature cannot delegate matter of policy to the executive, only the powers to fill in the details can be delegated.
|CRITICAL ANALYSIS OF LEGISLATIVE RELATIONS|
- Essential legislative functions cannot be delegated by the legislature.
- The center has practically monopolized the Central list. Several states want reduction in Central Lists and transform them to state list. West Bengal and Punjab center should confine itself to just four subjects- Defense, foreign affairs, communication and currency.
- State fears the abuse of Art. 200 (here only 4-6 months’ time should be given to center) and Art. 249 (National interest)
- Residuary powers should come to Concurrent list.
- Taxation should remain with centre.
- There should be equal representation for states in Rajya Sabha
- Restore domicile qualification in Rajya Sabha.
- There should be broad agreement between center and state before introducing concurrent subjects bills.
- There should be liberal use of Art. 254 (inconsistency between state and parliament law)
- Sometime Parliament can make Skeletal Laws leaving rooms for States to fill up the detail.
|PROBLEMS IN LEGISLATIVE RELATIONS OF CENTRE-STATE|
- States like Punjab and West Bengal demanded that centre should confine itself to only four subjects – Currency, General Communication, External affairs and Defense.
- Abuse of Art. 200 – assent to bills and reservation of money/finance bills for presidents consideration.
- Strong centre is desirable but issue is with over-centralisation.
- Several states sought abolition or reduction of subjects enumerated in concurrent list and transferring some of them to state list.
- Residuary powers must be rest with the state or they should be treated as concurrent items.
- Some states feared of abuse of Art. 249 – Power of Parliament (Rajya Sabha) to legislate with respect to a matter in the State List in the national interest.
|SARKARIA COMMISSION RECOMMENDATIONS|
- Residuary w.r.t. taxation should remain with union.
- Concurrent list should be retained,
- Centre should occupy only those subjects of concurrent list which demands nationwide uniformity.
- Fears of the states w.r.t. Art. 249 are baseless.
- As far as Art. 200 is concerned, the centre should dispose of these bills within four months.
|PUNCHHI COMMISSION RECOMMENDATIONS|
- Equal representation of the states in Rajya Sabha.
- Domicile qualification for the Rajya Sabha should be restored.
- Broad agreement should be reached between the centre and state before introducing a bill on subjects in concurrent list.
- Greater flexibility must be shown to the state w.r.t. five transferred subjects (by 42nd amendment – Education, Forests, Weights and Measures, Protection Of Wild Animals and Birds, and Administration Of Justice)
- Centre should examine whether administration of five subjects under central laws has served its intended purpose and if not, subjects must be restored in state list.