CH4PTBB IY

DIVISION OF LEGISLATIVE POWERS BETWEEN THE UMIOH ASP THE

SPATES IN IHPIA i ORDINABT PROVISIONS.

I
i

In the previous chapter, we have seen how the division of

Legislative powers was made in the Government of India Aots of 1919 end
1939* la this chapter, we.shall take up the subj sot of legislative
relations in the present constitution* Though Artiole I of the preset
constitution desoxibes India as a * Uni on of States* it is really federal
in form, and all the formal features of a federation are present in the
constitution* A written constitution, a somewhat rigid prooess of
amendment, constitutional division of powers and an independent and
impartial judiciary to protect the constitution and to maintain the
constitutional halanoe of power between the general government and the
regional ones - all these features of a federal constitution have found
place in the Indian Constitution* This led Anbadkar to observe, "The
constitution establishes a dual polity with the Union at the oentre and
the states at the periphery, each endowed with sovereign powers to be
exercised in the fields assigned to them respectively in the consti-
tution." (l)*
The Cabinet Mission had recommended that the proposed union
govemmait would deal with three specific subjects viz* foreign affairs,
defence and communications and should have the powers neoessary to raise
finance required for the subjects (2)* As Pundit Hehru said, "According to
the Cabinet Mission proposals, there were three or four basio subjects in
it i.e* defence, foreign affairs and oommpni cations and the power to raise
finance for them*" (3)* Accordingly, on the 25th of January, 1947, the
Constituent Assembly had appointed the Union Powers Committee to draw up
a list of matters *inoluded in and inter-oonneoted with' the subjeots
assigned to the centre* (4)* That Committee had presented its report
on 28/4/1947* But because of the changes, arising out of the c|±oiaion of
partition, in the political situation of the country, the Assembly had
bhen thought that rigid conformity with the Cabinet Mission's Plan might
not be possible and had, therefore, postponed the deal si on on that report .(5)
The Assembly had also permitted that Gommitteeto submit a supplementary
report. That supplementary report was presented to the Constituent Assembly
• *
 66

on 20/8/47* The Committee had been in favour of a strong central authority. ( 6 )■<»
In opinion a weak central authority would he 'incapable of acting
efficiently* It had-recommended the establishment, of a federation with a
strong centre but at the same time had suggested that a fairly wide range
of subjects should be left to the provinoes-,in whioh they should have
utmost freedom* The residuary powers should) however) remain with the
oentre* The Committed thought that the 'most satisfactory arrangement would
be* to draw up three exhaustive lists oh the lines followed in the Govern­
ment of India lot of 1935* (7)a The Committee accordingly had prepared three
such lists whioh had been , shown in the appendix to the report* To quote the
observation of the Committee s "How that partition is a settled faot, we are
unanimously of the view that it would be injurious to the interest of the
country to provide for a weak central authority^whioh would be inoapable
of ensuring peace, of co-ordinating vital matters of common oonoern and
of speaking effectively for the whole country in the international sphere* .
At the same time we are quite clear in our minds that there are many matters
in whioh authority must be solely with the units and that to frame a
oentre in the basis of a unitary state, would he a retrograde step, both
politically and administratively* We have accordingly oome to the conclu­
sion - whioh was also reaohed by Union Constitution Committee^hat the
standard framework for our constitution is a federation with a strong
centre* In the matter of distributing powers between the oentre and the
units, we think that the most satisfactory arrangement is to draw up
three exhaustive lists in the line followed in the Government of India
Aot of 1932, viz, the federal, the provinoial and the concurrent*"******
....."We think that residuary power should remain with the oentre.
In view, however, of the exhaustive nature of the three lists drawn up
by us, the residuary power oould only relate to matters whioh, while they
may olaim recognition in the future, are not at present identifiable and
oannot, therefore, he inoluded now in the lists*" (8)* It may he noted
here that the Union Constitution Committee had also recommended that the
constitution of India should he *a federal structure with a strong
centre' and that there should he 'three exhaustive lists, viz, federal,
provinoial and oonourrent with residuary powers to the centre** (9)*
The report of the Union Constitution Committee presented only brief
preliminary suggestions concerning the federal structure and the distri­
bution of power* The Drafting Committee recommended that there should he

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 - 67 -

three exhaustive lists - namely, the Union List, the State List and the
Concurrent List* Generally speaking, it had not made any change in the
legislative lists as recommended hy the Union Powers Committee* (10}*
The Recommendations of..the Drafting Committee with regard to the distri­
bution of legislative powers between the Union and the States were
incorporated in Articles 216-232 of the Draft oonstituion*

Articles 245 ~ 255» as laid down in the Part XI of the

oonstitution^deal^’with the relations between the Union and the States*
But onl$ this part can seldom furnish us with a full picture of the
relationship* In fact, there are some provisions in certain parts of the
constitution which considerably affect this relationship* The oontent
and character of the emergency provision is one such point* Similarly,
Articles 369 and 371 give the Union the power to control trade in oertain
vital commodities within a province and to control, if it so desires^
the governments of the former princely states* Again, the theoretical or
constitutional relationship has suffered serious jolts and complications
as a result of some concrete and praotioal problems - suoh as the emergence
of some non-oongfesa rule in some states, polemical role of the state
Governors eto* All these forces and faotors make the whole matter important
and interesting* However, the legislative power was made subjeot to the
provisions of this constitution* The Assembly deoided that^*State' should
not make any law which would take away or abridge the rights conferred by-
part III of the constitution and that any law made in oontravention he
void*
The State Reorganisation Commission reoommended the maintenance
cf two types of 'units' in the Indian Unions (a) states having a consti­
tutional relatipnship with the centre on a federal basis and (b) centrally
administered areas which for strategic or other considerations oould not
be joined to any of the States<»(ll)* Units of the seoond oategory - the
union territories^are governed according to the provisions of part VIII
of the constitution* Except as otherwise provided by Parliament, the
Union territories are to be governed by the President, noting through an
administrator appointed by him* Thus in their oase the question of
federal relationship does not arise* Article 246(4) provides that as
regards the union territories*. the’ legislative powers in its entirety
vest in Parliament* ’ *

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 68

In the Constituent Assembly of India there was no sharp

differenoe of opinion between 'the centralists* and the 'provinoialiste*.,
as in the United States* The model of the division of power in the pre­
sent constitution bears the unmistakable marks of the plan envisaged
under the Government of India Aot, 1935> which incidentally served as
the guiding tor oh to the founding fathers of the new constitution* "The
first loyalty of the Indian constitution is to the Government of India
Aot of 1935^which provides not oily most of the flesh and Hood of the
new constitution, but also a good part of its spirit* Indeed, the
Constitution even copies textually tot idea verbis some of the provisions
of the Government of India Aot of 1935•” (12) • As Jennings rightly said,
"It is not possible to start afresh when provinces became states* AL1
constitutions are the heirs of the past and the testators of the
future*" (13) • hike its predeoessor, the present constitution contains
three lists of subjeots, though the size of the Union list is muoh longer
than that under the Aot of 1935* The reasons for such enlargement are
obvious* Firstly, the powers of the Union Government have increased}
particularly in the eoonomio fieldyLn order to provide for centralised
oontrol and administration in oertain oases* Seoondly, new subjeots like
Atomic Ihergy and U*D*0. have lengthened the Union hist* Thirdly, there
was pronounced tendency in the Constituent Assembly towards an exhaustive
enumeration of subjects, and inmany cases one subjeot was broken into
two or more items - suoh as item 3 of the Union hist in the Government
of India dot of 193$& boon split up into if. 13, 14 and 18 of list
I under the present oonstltution*(l4)» A prominent member of the
Drafting Committee, Alladi Kriahnaswami Aiyar, put forward a somewhat
different plan for the distribution of powers, which contained two lists,
the state and the oonourrent, with central supremacy in the canourrent
field in oase of a conflict, and with the residuary powers vested in
the centre* This scheme, though not different from the plan embodied in
the final constitution, appears to be more simple and logical* Dr* A*K.
Ghosal also observes, "It is true that the scheme might have been made
more simple by omitting oonourrent list altogether as in the United States
or making it muoh smaller as in Canada or by specifioally enumerating the
State List and vesting the residuary powers in the centre or at least by
avoiding suoh exhaustive and comprehensive enumeration opening up
opportunities of judicial interpretation and consequent litigation."(15)*
Wheare did not like the existence of three lists* He wanted to enumerate
 69

the powers of the states and the concurrent powers and then to leave
the residue to the centre* And he posed the question, "Would not two
lists suffice?" The problem of interpreting the three lists will surely
present difficulties as experienced in Canada due to over-enumeration*
It is unfortunate, however, that the Assembly oould.not have adopted a
much simpler and shorter method of dividing the powers?", wfcote Prof®
Wheare* (16)* The question raised by Wheare is really interesting* It
would really suffioe to enumerate the State List and the Concurrent List
only and not to draw up the Union List* However, in the Constituent
Assembly debate held on 13*6*49* the scheme under Section 100 of the
Government of India Act of 1935 was aooepted on grounds of ' expedi enoyf *
It was contended that this practice had already-gained acquiescence
popular • Moreover, the principles of interpretation whioh emerged
through judicial decisions on the scope of differ mat-items in the legis­
lative lists of the Govemmant of India Act of 1935 provide plenty of .
guidance in interpreting the scope of the items in the new constitution*
It may be argued that if there had been no list I, the scope of some
items in list II or III would have to be interpreted ty the courts who
might be inclined to expand their scope in a manner detrimental to the
interest of the Uhion* But now, when we have a Onion List, the soope of
every subject in the State List or the Con ourr mat List shall be limited
by the soope of the items in the Union List*

Again, the method of division of legislative powers in the

Indian Constitution closely resembles the methods of division of powers in
the Canadian and the Australian Constitutions* Like Seotions 91 and 92 of
the B*N*A* Act of 1867* provisions 1 and 3 of Article 246 of the Indian
constitution provide for the legislative competence of the Uhion Parliament
and the state legislatures with regard to the items in the Uhion List aid
the State List in the Seventh Schedule to the constitution respectively*
Further, like the Canadian practive, the residuary power has been vested
in the Uhion by Artiole 248 in the centre* But unlike the Canadian type
where the Concurrent List is extremely narrow and limited in containing
only three subjects, the Indian constitution^like the Australian
tradition ^provides a broad and sp&oious concurrent field^whioh. has the
effect of minimising the undesirable rigidity and arid legalism of a
federal constitution* This led Ur* Anbedkar to*remark, "The constitution
ensures the greatest possible elasticity in its*federalism(17)« In
fact, the framers of our constitution were never hesitant to incorporate
in the constitution the best elements of some of the existing successful
 70

constitutions of the world* "Many of the Articles of the constitution

either in wording or in content have their origin in foreign oonstituions
...........yet although the Assembly borrowed freely, it fashioned from
this mass of precedents a dooument to suit India's need." (18). This
statement is particularly significant in the context of Indian federalism

In the first chapter, we have seen that division of legist

lative power in a federation generally follows two principles - principle
of co-ordination and subordination* On an analysis, Fart XI of our
constitution shall be foutid to follow this* The provisions relating to
the legislative relations in India should be viewed as falling under two
heads - ordinary and extra-ordinary*

II

In the first chapter, we found that the division of legislative

powers in a federation follows two lines - territorial jurisdiction and the
subjeots of legislation* Article 245 deals $ith the question of territorial
Jurisdiction while Article 246 along with the Seventh Schedule of the
constitution relates to the subjects and power of liegislation* Article 245
defines the area of operation of the legislative powers of Parliament and
~the state legislatures* This Article is virtually a reproduction of the
Section 99 of the Government of India Act of 1935, and corresponds to
Article 216 of the Draft constitution* Article 245 provides t (l) subject
to the provisions of the constitution Parliament may make laws for the
whole or any part of the territory of India and the legislature of a state
make for the whole or any part of the state*

(2) no law made by Parliament shall be deemed to be invalid on

~he ground that it would have extra-territorial operation*

On an analysis, this Article implies four things* First, Sub-

Art i ole (l) indicates that laws must be territorial* Secondly, Sub-irtide(2)
mentions an exception by providing that no law of Parliament shall be
treated as invalid only on ground of extra-territorial operation* Thirdly,
though normally a state law would be void if it has extra-territorial
cp oration, &^mere faot that a law operates on persons or things outside

a state does not invalidate it, if there is sufficient territorial nexus*

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Fourthly* another important feature ie that clause (2) is more general

than Sub-Section (2) of Seotion 99 of the Government of India Act of
1935» which limited suoh powers of the legislatures to some specified
oases* But under the present constitution there is no such specific
mention and the reason is obvious* While under the Government of India
Act of 1935> the legislature was a subordinate one* present Parliament
is fully independent*

Thus, from the territorial point of view our Parliament iB

competent to legislate over the whole of India or any part thereof as
defined in Article I* (3) and a law enacted by Parliament is neb invalid
merely because it takes effect outside Indian territory* To illustrate*
item 57 of the list I empowers Parliament to make laws on *fishing and
fisheries beyong territorial waters* - a subject whiob is of extra­
territorial operation© Chief Justice Kania observed in the oase of
A.H. Wadi a Vs. Inoometax Commissioner. Bombay * (1949) (19)» that
“In the oase of a sovereign legislature, question of extra-territoriality
of an enactment can never be raised in the municipal courts as a ground
for challenging its validity" (20)* However* a little reflection reveals
the fact that clause (2) never confers on Parliament the power to make
laws of extra-territorial jurisdiction* This clause is negative in nature
and its chief merit lies in dispelling all doubts or objections on the
ground of extra-territorial operation of a parliamentary legislation.

This plenary jurisdiction of Parliament is* however* subjeot

to some special provisions of the constitutions t- (i) as regards union
territories* of the Andaman and Lacoadive group of Islands* presidential
regulations may have the same value and validity as those of the lots cf
Parliament* and such regulations may repeal or amend a law made by
Parliament in relation to such territory./"Article 240 ( 2)mJ (ii) The
application of the aots of Parliament to any scheduled area may bt banned
or modified by notification issued by the Governor^ (Para 5» Schedule VII)♦
(iil) The Governor of Assam has been specially empowered to issue
notifications directing the non-applicability or restricted applicability
of any Parliamentary Act to any autonomous region* included in the state
of Assam. How* a question may arise} why have these restrictions been
imposed on the powers of Parliament? The ahswor is that the areas and

#
their people are backward, and handicapped culturally and intellectually*
Naturally an indiscriminate and unqualified application of all general
rules and laws might cause hardship or give rise to other serious cons*-
quenoes. Aay way, these limitations are essentially restrictive in
character and do not, by themselves alone, cast much shadow on the power
of Parliament* Such provision should always be welcome*

While the Union Parliament may make laws for the whole or any
part of the territory of India, a state legislature can make law for the
state or any part thereof* Thus, normally the subjects in the State Lis;
and in the Concurrent List (relating to state) must relate to persons or
objects within the territory of the state* But it does not mean that a.
state legislature oannot make laws affecting persons outside its juris­
diction, under any circumstances* For example, a state may levy a tax on
a person, property or other transactions situated or taking plaoe beyonp
the territory.of the state, if there exists sufficient, territorial
connection between the state and the object of such taxation* In fact,
sufficient territorial connection between the object and the state is the
condition, the existence of which makes such laws valid and possible*
The question then arises when does it become sufficient? It requires twc
considerations, namely (a) connection must be real and not illusory and
(b) the liability sought to be imposed must be relevant to that connec­
tion* However, there is no mathematical formula to calculate such
sufficiency. It is upon the court to consider this* In the leading oase
of Wallace Vs* In comet ax Commissioner, Bombay (20), it was decided that
the question to be answered was whether the territorial connection set
forth in the legislation was sufficient for the purpose for which it was
used* This principle of territorial nexus was accepted and applied as
yardstick by our Supreme Court in Bombay Vs* United Motofrs (21)* The
Court observed t ”The expression 'to make laws for suoh state or any part
thereof'would not mean allowing taxation onl)c on an objeot or transaction
existing or taking plaoe within the territory of that state*1* The same
expression is eohoed in the oase of Poppetlal Vs* State of Madras* (22)*
igain, in the oase of state of Bihar Vs* Charusila (1959)> it was held
-that under Ehtry 23 of List III, the power to legislate with respect to
religious and charitable trusts situated within its territory was
definitely in the hands of the state legislature even though suoh trusts
 73

may have some property situated in another state*

Before we leave the discussion on Artiole 245, it is interest­

ing to see whether and, if at all, how far is delegated legislation
possible in India* In a country with a written oonoittuion, the consti­
tution defines and delimits the powers of the respective legislatures*
in the United States, for example, the Congress which functions under
a written constitution, has a defined and controlled sphere of action*
Further, the principle of Separation of Powers which operates there does
not permit mixing up of legislative and executive powers in the same
organ beyond a point* fhe American Supreme Court observed in the case
of Panama Beflning Co* Vs* Byon (23) that the Congress might delegate
legislative, powers to the executive subject to the condition that it
ladi down the policies and drew up standards while leaving to the
administrative authorities, the making of subordinate rule within the
presoribed limits*” In the words of justice Cardoso, in the above oase
"to uphold the delegation there is need to disoover in terms of the.Act
a standard reasonably clear wherety the discretion must be governed*"(24)*

Under Article 245 our constitution, Parliament oan make laws

for the whole or any part of India, and the legislature of a state for the
whole or any part of the state* Further, the Seventh Schedule of the
constitution enumerates the respeotive subjects on which Parliament and
the State legislature have exclusive powers as well as those subjects on
which they have concurrent jurisdiction. In India, a legislature iB a
oreature of the constitution and as suoh its jurisdiction is limited to
the sphere allotted to it hy the Constitution* It shall axeroise by
itself its power of law-making and oan neither surrender jjjor transfer
it to any other authority* In Be Delhi laws Act of 1912 (1951) the
Supreme Court considered by a majority opinion that the Indian consti­
tution does not permit legislatures to delegate their respective
legislative functions*

Generally speaking, delegated legislation is not permitted

on the following grounds i- First, there is the principle of separation
of psrers* But obviously in the parliamentary system in India, the
theory does not apply and it was actually rejeoted by the Supreme Court*
Secondly, there is the principle that a pwwes which is itself delegated,
cannot be delegated again* This principle was*also considered inapplicable

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to the Indian oontext because in the opinion of the Supreme Court the
legislatures here are not delegates of any other authorities, hut
autonomous authorities themselves* Thirdly, there is the principle
of constitutional trusts and implied prohibition* The Court analysed
different .Articles of the constitution in the light of this principle
and reached the conclusion that "though the constitution did not
exclusively vest legislative power in the legislature, it had made
elaborate provision as to how and by whom the legislative powers was
to be exercised, and the very fact that in some oases, for example,
in emergency it expressly granted for a delegation of the legislative
power showed that the spirit of the constitution was that the legis­
lative funotion must be exeroised by the legislature itself and that,
outside the express provisions contained in the constitution itself,
there oould.be no delegation of .legislative.power* ?The doctrine,-
however, waaconfined to the. essential function of the legislature
beoause. delegation as to matters of -detail is in faot a matter of
necessity in the modern age* The question, then, is \nhat are the
essential functions? - They include
(i) determination of legislative policy i.e. what the law
shall be and its formulation as a rule of oonduot, or
to make a change in the policy*
(ii) altering the essential character of an Act, or to
change it in material particulars,
(iii) power to modify an Aot without any limitation)
(iv) power to make exemptions from operation of the Aot without
laying down policy for guidanoe)
(v) power to repeal the Aot;
(vi) power to impose and assess tax*

■Among the items regarded as non-essential matters, the following

may he mentioned s-
(i) Seleotion for time, subject and area for application of
the laws)
(ii) oiroumstanoes of its application)
(iii) making of by-laws in matter of detail in administration)
(iv) inserting in the Aot, of a removal of a diffioulty olause
provided essential principles of legislation are pres­
cribed and made binding, eto* • '

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In faot, in determining the constitutional or unconsti­

tutional delegation of legislatire powers, the court will look into
two thingsi whether the Article has laid down olearly and adequately
the purpose for which the law is enaoted, and whether in oonferring
the power upon the delegate, there has ho on a case of unreasonable,
Illogical and arbitrary aotion* (25)*

Whilb Article 245 deals with the question of territorial

jurisdiction, Article 246 refers to the jurisdiction of Parliament and
the state legislatures over the subjects of legislation* Article 246
provides * (l) Notwithstanding anything in clause (2) and (3), Parlia­
ment has eocolusive power to make laws with respect to any of the matters
enumerated in List I of the Seventh Sohedule (in this constitution
referred to as the Union List)* The Union List contains 97 items over
which the Union Parliament- has exclusive legislative jurisdiction*
(20 Notwithstanding anything in olause (3), parliament and subjeot
to olause (l), the legislature of any 3tate also has power to make laws
with respect to any of the matters enumerated in List III of the
Seventh Sohedule of the constitution (in the Constitution referred to
as the oonourrent list)* The oonourrent list contains 47 items.
(3) Subjeot to clauses (l) and (2), the legislature of any state ha3
exclusive power to make laws for suoh state or any part thereof with
respect to any of the matters enumerated in list II in the Seventh
Schedule (in this constitution referred to as the State List)* The state
list contains 66 items* (4) Parliament has power to make laws with
regard to any matter for any part of the territory of India not inoluded
in a.state, notwithstandingihat suoh matter is a matter in the state
list* It may be noted here that clauses (2) and (3) were modified by
the Seventh An andm ant so as to omit reference to the Part A or Part B
states*
&
Prof* Shiban Lai Saxena moved an amendment in the Constituent
Assembly suggesting a different soheme of distribution of subjeot*

The amendment of Prof* Saxena was word for word what 3ir
Erishnaswami ALyar had suggested ih the appendix to the Draft consti­
tution • ( ALyar*s approach has already been disous^ed )• Bis argument
was that this amendment would make the division of powers more simple,
logical and expedient* With the residuary power in the hands of the

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 76 «s»

oentre, this kind of division} according to him, would he more welcome*

Hs further Observed i "The form suggested by Sir Alladi is superior in
form as well as in content•" (26)• However} the amendment was negatived*
in analysis of the present irtiole reveals some important facts*
First} the Union Parliament has full and exclusive.power to legislate with
respect tb matters in the Union List and has also concurrent powers with
reapeot to matters in the don current list. Secondly, the state legislature
has exclusive legislative powers with respect to matters in List 1Z
excluding matters falling in List I and List ZIX} and has concurrent powers
in matters included in List III. The tern 'exclusive power* as used in
this irtiole is not the same as absolute power as this power is subject
to the provisions of the constitution. (27)9 Thirdly, though the three-fold
division.of subjects closely follows Seotion 100 of the Government of India
Aot of 1935* there is a point of difference* Many of the subjects which
were a antral subjects under the Government of India Act of 1935, have now
become state subjects with the result that henceforth, state legislatures
are entitled to legislate on these subjeots* But it bas nothing to do with
the laws made by the oentral legislature prior to the commencement of the
constitution* Such laws will be valid unless they oontravenoe the provi­
sions of the constitution suoh as the Fundamental Right a? Fourthly, it
should be noted that the entries in the lists are nothing but heads of
legidations while the actual power to legislate on them is conferred by
irtiole 246 and other Articles (2d)* Moreover, there are some Articles
in the constitution which confer legislative power though there are no
corresponding entries in the legislative lists. Thus irtiole 3l(l)
empowers the state to deprive a person of his property by legislation
in the exercise of its police power and without acquiring it though
these is no corresponding entry in the lists*
Clause (2) provides for a concurrent jurisdiction* In the first
ohapter, we have seen that the objeot of a concurrent list is two-fold.
"There may be a field in whioh Parliament does not find necessary or
expedient to initiate any legislation beoause the matter has not covered
national importanoe* It should not, therefore, prevent any state from
going forward with any legislation on its own account* Then, if other
states follow and it lseeomes a matter of national importanoe, the Union
can step in and bring in a law which is uniform and which can be'worked

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on a national basis. That is one advantage. There is also another use

of the Concurrent List. Suppose that Parliament has passed a legislation
on one of the matters in the Concurrent List. There may he special
circumstances requiring special provision for a state. Then the state
legislature oan make the supplementary laws." (29)® The Union Powers
Committee observed, HWe also reoommend that by agreement there may be
a list of concurrent subjeota as between the Union and the Units.n(30).
But inepite of these advantages, this provision met strong criticism
in the Constituent Assemble. Saathanam observed, "It tends to blur the
distinction between the centre and the provinces. In the course of time,
it is an inevitable political tendency of all federal constitutions that
the federal list grows and the Concurrent List fades out, beoause when
once the central legislature takes jurisdiction over a particular field-
of legislation, the jurisdiction of the provincial legislature goes out«"(3l).
On the other hand, Sir ALladi Krishnaswami iiyar rightly answered that
the existence of a Concurrent List does not deviate from the federal .
tradition as there was an independent list of subjects for the units.(32).
Concurrent power is not a joint power in the sense that it oan
only be exeroised by the joint action of the central and the state
legislature. So long as Parliament does not pass a law on any of the
items inoluded in the Concurrent List, the state may pass any law on the
same. But onoe Parliament enters the arena, Parliamentary law shall
prevail over the state law. There is one exception to this general rule,
acoordlxig to which a later law of the state Legislature on any item in
the Concurrent List shall prevail over an earlier law of Parliament law
on the same subjeot if the State Law was reserved for consideration of
the President, and received his assent. "This is a novbl and original
feature whioh enables a state to pass an advanced piece of Legislation
than an existing parliamentary law) or to provide a new law with the
consent of the Union for any special condition and circumstances whioh
prevail in the state.1* (33).
In order to avoid anomalous situations, a praotios is usually
followed in the prooess of legislation on a matter in the Concurrent List.
When Parliament legislates on such a matter, the states are generally
kept informed. On the ohter hand, when a state legislates on such an
item, it has become a convention for the stages to consult the union
government before proceeding with’the legislation just to avoid friction
 - 78

and. conflict in the concurrent field* To quote Santharam* “To save all
such troubles* the state government consults the union government and the
matter is examined in the Union law department* (34)* It is oertain that
the Concurrent List has in faot brought about uniformity in laws which
formed the foundation of oivil and corporate life of the country* This
has made it possible to make the great codes civil and criminal such as
the civil and the criminal procedure codes* the penal code* the evidence
aot* the transfer of property aot* laws of marriage* divoroe and
inheritance on a uniform level so as to remove diversity without impairing
the federal system*

Clause (4) removes the limitations imposed upon the power of

the Parliament by clauses (2) and (3) so far as the Union territories are
concerned* Parliament may* in such case legislate-on subjects included .in
the State List for the union territories* However* this, power is appli­
cable not only in the case of union territories enumerated in the First
Sohedule but also in any other territory included in the territory of
India as defined in Article I (3)* but is not inoluded within the
territory of any other states specified in Sohedule I*

Though the framers of the constitution sought to avoid all

possible conflicts of jurisdiction of the respective legislatures by
defining clearly and exhaustively the subjects* yet such conflicts are
bound to arise in course of time* As Chief Justice Gwyer observed in
Subramanyam Vs* Muthuswamy, "However carefully and precisely lists of
legislative subjects are defined* it is practically impossible to
ensure that they never overlap; and an absurd situation would result
if two inconsistent laws* each of equal validity* could exist side by
side within the same territory*" (35)* In bhder to avoid such exigency*
the makers of the constitution provided foa^he solution of a confliot
between the Union and the States over the question of legislative
jurisdiction* In suoh a situation* predominance has been given to the
Union Parliament so that* in case of overlapping between an entyy in
the Union List and an. entry in the State List* the subject* to the
extent of the overlapping* remains out of oontrol of the state legis­
lature* In case of any overlapping between an entry in the Union List
and an entry in the Concurrent List* the mattfer shall be treated as
being exclusively oentral so as to* debar the state legislature from

»
 - 79 -

legislating on it, to the extent of overlapping* If there is an overlapping

between an entry in the Concurrent List and an entry in the State List,
the subject is treated as falling within the Concurrent List, which
enables both the state legislature and Parliament to legislate with
respect to it rather than making it exclusively a state subject* This
is clear from the wordings of .Article 246* Clause (l) oonfers exclusive
power on Parliament to legislate on matters in List I ‘notwithstanding
anything in clause (2) and (3)*' This is known as the non-obstante clause,
the effect of which is to make the Union powerful and prevail over the
state in case of overlapping*

However, the principle of supremacy of the Union List over

the State List as noted above is not a readymade weapon to be applied
carelessly* The point to note ie that the•Non-obstante* clause is the
ultimate rule which is to be used as the last resort, only in case of
an inevitable and irreooncilable conflict between the lists? Before
applying this rule, the first and foremost task of a oourt is to make
a sincere attempt to reconcile the conflict* It is only whm no
reconciliation between the entries appears to be passible, that the
non-obstante rule is to be invoked. Thus, though Union supremacy is main­
tained in case of overlapping of powers mentioned in the different lists,
legislative powers assigned to the states should not be denied to them
on 'extraneous consideration.* (36)* This principle was acdepted both
by the federal constitution of India in the past and by the Supreme Court
at present. To quote the observation of Justice Patanjali Saetri, "It
is now well settled that if an enactment according to its nature, its
pith and substanoe, clearly falls within one of the matters assigned to
the provincial legislature, it is valid, notwithstanding its incidental
encroachment on a federal subjeot*" (37)* la Bombay Vs. Balsara (38),
it was contended that a conflict existed between entry 41 of list I
(the entry rung, import and export across custom frontier)
andentry 8 of list II (the entry running "intoxicating liquors, that is
to say, the production, manufactures, possession, transport and sale of
intoxioating liquors" ) beoause import of intoxicating liquors did not
end with mere 1 adding of the goods on the shore or their arrival in the
customs house, but it also implied that the imported goods must reach
the hands of the importer who should be able «to possess them, and so the
power of the state to prohibit the.possession *and sale of intoxioating
 80

liquors was not different from the power to prohibit their import into
the country as one would be a neoessary consequence of the other* The
Supreme Court gave a limited meaning to the word 'import* in the central
entry in order to give effect to the state entry* The court held that
the State entry had no ref sreno^io import and export but merely dealt
with production manufacture, possession, transport, purchase and sale
of intoxicating liquors? the state legislature could therefor© prohibit
the possession, use and sale of intoxicating liquors absolutely and
that the word 'import* standing by itself could not be held to joelude
either sale or possession imported into the country by a person
residing in the territory in which it was imported*

In the Jmerican constitution, the federal government enjoys

enumerated powers while the residue is vested in the states* The
Australian constitution also followed the sane method by vesting
the|re^iduary powers in the state legislature by Section 107 of the
Australian constitution* Turning to the Canadian constitution, we find
a different picture* The framers of the Canadian constitution reserved
the residuary powers for the Dominion Parliament* The provision relating
to theiresiduary powers in the Government of India Aot of 1935 was really
a novel one beoause the power was given neither to the federation nor
to the pro-vinoes* Section 104 vested the residuary powers in the
Governor-General aoting in hie discretion* When the Constituent Assembly
first met, its members were inspired by the Anerican model of leaving
the residue to the states and the historic Objective resolution moved by
Jawharlal Nehru in the Constituent Assembly on 13/12/46 contemplated a
loose federation for India with residuary powers in the hands of the
states* (39)• In the Objective Resolution which was adopted by the
Constituent Assembly of India, we find the following provision t "The
said territories............... .. shall posses the status of autonomous
units, together with residuary powers*"(40)* Thus the original idea
was that the autonomy of the provinces should be preserved. But with the
establishment of Pakistan, there was no more any necessity of a weak
centre* The second report of the Union Power Committee placed in the
Constituent Assembly on 4-6-47 laid major emphasis on having a federation
with a strong centre* It observed "The constitution should be a federal
structure with a strong centre." (41)®

1
%
 81

As Ur* Gopalaswsmy Aiyanger Bald, "When we are trying to

implement the Cabinet Mission Plan, we acoepted the proposal of the
Cabinet Mission that subjects not assigned to the centre would be
deemed to be assigned to the provinces and in the case of the states,
the language used was 'subjects not oeded by the states, t^ihe federation
would be retained by them* Now, in substance it more or less amounted
to the same thing, viz., having listed out federal subjects, what
remained, viz*, the residuary subjects would be with the provinces in
the one case and with the states with the other*
"Now *......When this Committee met after its first report
has been presented, we were relieved of the shackles which we had
imposed upon ourselves on account of the acceptance of the Cabinet
Mission Plan and the Committee oame to the conclusion that we should
m§ke the oentre in this country as strong as possible consistent with
Jjarely a fairly wide range of subjects to the provinces in which they
would havethe utmost freedom to order things as they liked. In accordance
with this view, a decision was taken that we should make three exhaustive
list*, on* of the federal subject/ another of the provincial subjected*
the third of the con curr ait subjects and if there was any residue left at
all, if in future any subject cropped up which could not be accomodated
in one of the three lists, then that subject should be deemed to remain
with the oentre so far as the provinces are oonoezned*" (42)* It was
thought wise to make the oentre strong by giving it more power and also
the residue) Sri T.T. Krishnmachaxi observed in the Constituent Assembly!
I think more than one honourable member mentioned that the fact that
the residuary power is vested in the centre in our constitution makes
it a unitary constitution *........... I would like to tell honourable
members that it is not a very important matter in assessing whether
a particular constitution is based on a federal system from the point
of view whether the residuary power is vested in the state or in the
central government*" (43). The Drafting Committee of the Constituent
Assembly provided in Article 235 the constitution, that Parliament
should have the residuary power* This became Article 248 of the
constitution and provides t-
(l) Parliament has wsclusive poorer to make any law with
respect to any of the matters not .enumerated in the Concurrent List or
the State List, and
 82

(2) suoh power shall include the power of making any law
imposing a tax not mentioned in either of these list* This Article along
with item 97 of list I vests the residuary power in the Union*

Item 97 of list I itself olearly confers the residuary powers

in the centre, and Article 248(1) lays down that the Union Parliament has
the exclusive power to legislate on the items in List I* It is therefore
-ffcu.
crystal olear that ^residuary power belongs to Parlionent* If item 97 is
only a head of legislation, Artiole 246 empowers the union legislature
to legislate upon it* Naturally,Article 248 is somewhat superfluous*
As Justioe P* B* Mookherjee has aptly pointed out t "In a sense this
is a tautological constitutional provision* For, item 97 of the List I
of.the Schedule VII of the constitution under Article 246 had already
given Parliament the power to make laws in respect of matters not
enumerated lists II & III"* The learned Judge proceeds further, "Under
Article 248(2) one finds the provision 'saoh power shall inolude the
power of making anylaw imposing a tax not mentioned in either of these
lists* 'Here again, the express provision of item-97 of List I of the
Seventh Schedule under Article 246 of the Indian constitution has
already granted these powers in these dear words 'any other matter not
enumerated in List I| or List III induding any tax not mentioned in
either of these Lists* * To confer, therefore, the law-making power
to impose any tax under Artiole 248 (2) is an unnecessary constitutional
dumsiness* " (44)«

Though Artiole 248 provides for yesiduary powers, it should

he always used in the last resort* In the case of Manikka Sundaram Vs*
Naidu (45)) It was held that in a case where two constructions are
possible one of which will avoid resort to the residuary power and the
other necessitates such resorts, the former must be preferred* To quote
Krishamaohari again, "We have drafted very carefully with the possibility
of a vacevm in constitutional power". (46)* So the chances of the
residuary power will be limited. Further, this Articleapplies in the case
of the Union and the states only* In the case of the Union territories,
Parliament has unlimited power under Artide 246(4)9

In the present constitution, the .lists are far more elaborate

than they were in the Government of India Aot ,of 1935* The possibility of
gaining strength by application of this Article is not so bright* Neverthe­
less, it must be borne in mind that at present our country ^s passing
 83

through a developing phase and the scene around us is changing very

fast in this age of scientific and technological revolution* Hence
the necessity of such a provision can easily he understood* Judges
should he free from any Mas in this matter* They should always see
that they are not straining too muoh to avoid an application of the
residuary power* Under the Government of India Act of 1935* the
residuary power belonged to the Governor-General and as such it -could
he applied only in the last resort. But under the present constitution
Parliament is an elected body and representative in character. Hence
no speoial complex should grow about this provision*

III
It is the usual.praoiiee -in- all. federations that the laws
enacted by the regional governments must yield to the laws of.the central
legislature® Clause (2) of. Article VI of the constitution of the United
States lays down that the laws of the United States framed in pursuance
of. the constitution shall be the supreme law of the land* Similarly,
Section 109 the Commonwealth of Australia, dot provides that when
a law of a state is inconsistent with a law of the Commonwealth, the
latter shall prevail and the former shall, to the extent of inoonsis-
tneqy, be invalid* In the Swiss constitution also, Article 6 declares
that the law of the federal legislature shall prevail over that of
the Cantons. It has been also held by the federal tribunal that if
there is a conflict between a federal law and a oantonal law, the
federal law abrogates the oantonal law. Article 254 of the Indian
constitution (which was Article 231 of the Braft Constitution) provides
for this. Clause (l) of Article 254 lays down, Hif 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 is competent xfc to enaot,
or to any provision of an existing law with respect to any of the
matters enumerated in the Concurrent List, then subject to the
provision of law made by Parliament, whether passed before or after
the law made by the legislature of such state, or as the ease may be,
the existing law, shall prevail and the law made by the legislature of
the state shall, to the extent of repugnancy be void*11
Clause (2) of Article 254 however reads, "Where a law made
. •
by the legislature of a state specified in the First Schedule with
&
 — 84 *°

respect to a matter enumerated in the Qoncurrent List oontains any

provision repugnant to the provision of an earlier law made hy Parliament
or an existing law with respect to that matter, than the law so made hy
the legislature of such state shall, if it has been reserved for the
consideration of the President and has received his assent, prevail
in that state."

A provision of this olause (2) of Article 254 contains t

v
"Nothing in olause (2) shall prevent Parliament from enacting any
time any law with respect to the same matter in the Concurrent List,
including a law, adding to, amending, varying or repealing the law
made hy the legislature of the state". The position 'specified in the
First Schedule* has been omitted hy the 7th amendment in 1956* Clause
(l) &(2) of the present Artiole reproduce Sub-Sections (l) St (2) of
Section 107 of the Government of India Act of 1933*

Now, olause (l) of the present Artiole has been-explained

in two different ways as regards itfield of operation. D. Basu writes,
"Though the words 'competent to enaot* in clause (l) are rather wide and
might inolude laws made under List I as well, the scope of clause (l) is
mads dear by the words 'subject to the provision of olause (2)'; for
clause (2) contemplates only a state-law relating to the Concurrent List."(47).
And in support of his view, the author refers to the judgement delivered
by the Supreme Court in the case of Premnath Vs. the state of J & £ (1959)
in whioh the judges held t "The essential condition for the application
of Arride 254 (l) is that the existing law must be with respeot to one
of the matters enumerated in the Concurrent List. (4^).

Thus the repugnance contemplated by dause (l) between the

Union and the State law relates to matters in the Concurrent List. It
has no application to oases of repugnancy due to overlapping between
State List on the one hand and the Union or the Concurrent List on the
other. If such an overlapping exists in any particular oase, the state
legislation will be ultra vires because of the non-obstante olause (l)
of Article 246 read with the opening words of olause (2) and (3) of
Artiole 246. "In suoh cases the state legidation will fall not because
of repugnance to Union law but in consequence of being repugnant to the
constitution itself. Thus according to this view, the words in the dause
do not indude a law with respeot to a matter in the Union List. That
 85

falls under Artiole 246* According to this view, clause (l) and (2) must
be read together. In order to fall within the jurisdiction of clause (l)
both the state law and the existing Indian law must be with respect to
the same matter and must be one of the matters enumerated in the
Concurrent Legislative List* Existing law, according to Artiole 366(l)
means a law made before the commencement of the constitution by any
legislature or authority of persons having power to make suoh law* It
was held in the ease of Zabherval Vs* the state of Bombay that clause (l)
speaks of repugnancy between a central law and a state law, relating to the
same matter included in the Concurrent List*1* (49)* But the case actually
fell within the purview of clause (2) of Artiole 254* Again, in
Kisan Vs. Madras, holding the Madras Prohibition Act valid, the court
observed that, "It being a law falling within the exclusive jurisdiction
of the state, the question of. its repugnanoy with Indian Evidence Aot or
the Criminal Code (both falling in the Con ourrent List) did not ariBe«"(50) >

According to the seoond view, the meaning of this clause (l)

of Artiole 254 is wider and includes the oases of repugnanoy between an
item in the State List and one in the Concurrent List* According to this,
clause (l) has two rules* First, it provides that a federal law prevails
over a state law in the event of a confliot between them* Secondly, it
also provides that an existing law shall prevail against a state law, if
there is any repugnanoy between them* but this rule is applicable only
when the existing law is with respeot to one of the matters enumerated
in the Concurrent List* Now, from the wordings of the clause, it would
appear that the first rule is applioable in three differ mat ol asses of
oases* In the first place, the federal law must be a law enacted by the
Uhion Parliament with respeot to a matter in the Union List, and the
state law must be a law in respeot of m a matter in the State List or
the Concurrent List* Secondly, the federal law in question must be a
law with respeot to a matter in the Concurrent List whereas the state
law may deal with a matter in the State or Concurrent List* Thirdly, the
federal law may have been enacted by the federal Parliament by virtue
of its residuary powers under Artiole 248 of the constitution, whereas
the state law relates to a matter in the State or the Concurrent List*
In support of this view, certain arguments are put forward*

1
 - 86 -

first, the wordings of clause (l) of Article 254 Is wide

enough to cover all oases of conflict between a federal law and a state
law. Jennings states, "Some authodties consider that this Article applies
only to subjects in the Concurrent List, but it is not so phrased. It
makes sense if all references to the Concurrent List be deleted, Thus,
•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 is competent
to sax enact, the law made by Parliament shall prevail and the law made
by the legislature of the state shall, to the extent of repugnancy be
void.* Then he writes, "The question is important because, as the
experience of Canada has shown, a law made by a state dealing with a
subject matter in the State List may be repugnant to a law ibade by the
Union delaing with a subject matter in the Union List. For instance, the
law relating to fisheries, may deal inoidentally with navigation of fishing
vessels though navigation is expressly-an union function." (5l)» The words
*in the Concurrent Li at1 have been only to qualify the existing law which
means that an eocisting law in the Concurrent List prevails over a state law
in oase of repugnancy. Thirdly, Clause (2) is only a exception to clause(l)
which is a gemeriL provision and as such it cannot cover the entire field.
It is not necessary that if the exception refers to the Concurrent List
only, the general rule to whioh it is an exception should also be restric­
ted to the Concurrent List. It is no doubt true that the rule in Artiole 254
is invoked most frequently when both laws belong to a matter in the
Concurrent List because there the ohanoes if inconsistency are great.
When two laws belong to different lists, the chances of inconsistency are
reduced very much asm and the matter may be reduced in many oases by
applying the principle of Pith and Substance and reconciliation of the
entries. But even then, there is no reason as to why the wider interpre­
tation of Article 254 (l) "should nob be accepted where it is most
plausible in its plain interpretation.

Finally, the principle embodied in clause (l) of Article 254

forms an essential ingredient of the concept of federalism and should,
therefore, be oonstrued in the widest amplitudes. The narrow interpre­
tation of clause (l) of Artiole 254 is not in acoord with the almost
universally accepted rule of federal constitutions. In Canada, for
example, in the oase of Attorney General for Ontario Vs. Attorney General
for the Dominion (1896) it was held, "The enactment of the Parliament of
1
 - 87 -

Canada, is so far as they are within its competency, must override provincial
legislation*" This decision as laid down by the Judicial Committee is not
confined to oases of confliet in respect of con current powers only but covers
every case of inconsistency between a Dominion law and a provincial law* In
faot, the Dominion law impugned in that oase had been enacted under the
residuary powers of the Dominion Parliament and the provincial law dealt with
a matter which was exclusively within the provincial list. Similarly, the
Ugh Court of Australia deolares that, "Artiole 109 expressly applies 'Not
to any particular oase of Commonwealth Acts, but to every Commonsealth Act,
over not merely state Aots passed under concurrent powers but all state Acts
though passed tinder an exclusive power, if any provision of the two conflict*"
Thus, when this principle is accepted by all the federations, we should also
give a broader meaning to Artiole 254*
Hence we see that opinion is divided on the applicability of this
clause* Prom its plain meaning it seems that it includes all oases and is not
restricted to only one enumerated in the Concurrent List. e»ly* The phrases
1 subject to the provision of clause (2) is only an exception to the general
rules The general rule deals with Union List and Concurrent List and the
exception only relates to a particular case of Concurrent List* Moreover, the
word'with raspect to one enumerated in the Concurrent List' is attributed to
an existing U. only and does not^ualify the law mad. ty Jarliament and this
will be very clear if we refer toA231 of the Draft Constitution, the
language used was the same as in the present constitution with the only
difference i.e. "Existing laws regarding a matter with respeot to which
Parliament has power to make laws ••*•...................... " And in the present
constitution, it is 'existing law with respeot to one enumerated in the
Concurrent List1. It is clear then that this qualifies the existing laws and
not the laws made by Parliament for the words used in the two oases regarding
the laws made by Parliament are the same e.g* 'any provision of a law made
in Parliament which Parliament is competent to enact.*
Thus it is clearly reveled that this does not apply only in the
case of Concurrent List* Had it been so, the Constituent Assembly would
have changed the language here also along with the change they have made with
regard to the existing laws. As Chitaley and Bao observed, "The question is
whether the words 'with respect to one of the matters enumerated in the
Concurrent List* governs also the words 'any provision of a law made by
 - 88 -

Parliament which Parliament is competent to enact.* As regards this

question, the structure of the sentence clearly shows that the words ‘with
respect to one......... .............. in the Concurrent ListJ apply only to an existing
law and not to a law made hy Parliament* The word *to* which is used twice
in the sentence, "both "before *any provision of a law made by Parliament* and
‘existing law* are treated distributedly as separate entries, each with its
own qualification and not collectively as having a common qualifications
In the oase of a law made by Parliament, the qualification is that the law
must be one which Parliament is competent to enact* In the oase of an
existing law the qualification is that the law must be one with respeot
to one of the matters enumerated in the Concurrent List, so that the
qualification as to the law being with respeot to a matter in the Concurrent
List is applicable only to an existing law and not to anylaw made by
Parlianent*" (52)«
Coming to clause (2) of Article 254 we see that clause (2)
contains an exoeption to the general rule laid down in clause (1) that if
the President assents to a state law whioh has been reserved for his
consideration (Article 200), it shall prevail notwithstanding its
repugnancy to an earlier law of the Union. This exception is to be read
subject to the proviso* Irom.this it is clear that clause (2) has not
application where the oentral law comes after the state law* In that oase,
it is clause (1) which applies* In giving his assent, the President will
obviously consider the local conditions prevailing in a particular state
and whether in view of those local conditions, provisions differ ait from
those made by Parliament should be allowed to prevail* In the case where
a state Aot is repugnant, but assent of the President is taken thereto,
assent of the President to a subsequent amending Aot will not save the
present Aot* (53)* In the case of an ordinance made by the Governor, the
repugnancy within the meaning of Article 254, (2), would be cured if the
ordinance had been promulgated in pursuance of instruction from the
President. /"Proviso to Article 213 (3J7« Otherwise, the ordinance will
be invalid* ' Thus we see olause (2) makes the President the coordinating
authority in respeot of legislation in the Concurrent List*

It is necessary to point out that the exception embodied in

olause (2) is applicable only when the following conditions are satisfied 1-
(a) both laws must relate to the same
•
matter in* the Concurrent List} (b) the
federal law must be earlier in date or it must be an exiSting law} (0) the
1
 89

state law must have been reserved for the consideration of the President
and must have received his assent.
Now, let us take up the proviso to clause (2) for discussion*
Thanks to the proviso, Parliament may supersede the state legislation which
has been assented to by the President under clause (2) on a subject in the
Concurrent List, by making a law on the same matter* Thus, under the constitu­
tion Parliament is empowered to override the effect of the Presidential
assent. When compared to Section 10? of the Government of India Act of 1935*
we find the proviso th Artiole 254 (3) has enlarged the power of the
Parliament* Under Section 107 (2) proviso, Dominion Parliament was not
empowered to enact a statute by which it could directly repeal any provin­
cial legislation with reference to a subjeot mentioned in the Concurrent
List* However, this proviso.shall not apply if the subsequent parliamentary
legislation deals with a distinotly different matter. Thus the power of
Parliament to repeal a state law has the following limitations t- (a) The
Parliamentary legislation must relate to the same matter as the state law.
As to whether the law of the Parliament.relates to the same matter or not, ,
the Sppreme Court has applied the yardstick to see whether the enactments
can stand together, (b) The sate law must have been made with reference to a
matter in the Concurrent List and must oontain provisions inconsistait with
an earlier law enacted by the Parliament, and which was in operation after
obtaining the consent of the President. "Where the state law had been made
concerning a field not already, occupied by Parliament, no question of
exercising the power of Parliament could arise." (54)* This power of repeal
oontained in the proviso is expressly vested in the Parliament and as such
It oannot be delegated to any other authority.
The working principle has been brought out in the oase of
Zaverhhai Vs. Bombay. The central legislature enacted the Essential Supplies
Act, 1946, conferring power on the oentral government to issue orders to
regulate production, supply and distribution of essential commodities.
A violation of any of the orders was punishable under the Aot-^ith
imprisonment upto three years. But considering the punish-ment inadequate,
-the Bombay legislature, by enacting an Act in 1947 enhanced the punishment
provided under the oentral law. And there was a clear repugnancy between
-the central and the Bombay laws. The latter reoeived the presidential
assent and remained in operation in Bombay. In 1950, Parliament modified
. •
-the Aot of 1946, and enhanced the punishement. The St^rame Court held that
*
the Bombay Aot of 1947 and the central Aot of 1900 dealt with the sane
subject ±x of enhanced punishment and that under the proviso to Article 254(2),
the state law became void because it was repugnant to the central lew. The
Tikaramjji case throws further light on the subject. Zt negatives an earlier
idea that Parliament could speoifioally repeal any state law in the con­
current field even if it was not repugnant to any central law on the matter*
The Supreme Court, by literaly interpreting the proviso to Artiole 254(2)
held that such a view was not correct*
Before we conclude, one more point needs to be explained* We have
seen that both the clauses of Artiole 254 use the expression *repugnant*•
The question naturally arises t What constitutes repugnancy? Nicholas, in
his Australian constitution referred to three tests of repugnancy k- (55)•
(i) There may be inconsistency in the actual terms of the
competing statutes*
(ii) Though there may be no direct Conflict, a state law may be
inoperative beoause the Commonwealth law, on the award of
the Commonwealth Court, is intended to be a complete exhaustive
oode, and
(iii) even in the absence of intention, a conflict may arise when
both the state and the Commonwealth may seek to exercise
their power over the same subjeot matter*
In our country too, Justioe Subba Bao (later Chief Justice)
summarised the tests of repugnancy in the case of Depchand Vs. The State of
U*F* (56)* The tests, according to him are s-
(i) where there is direot conflict between-the two provisions,
(ii ) whether Parliament intended to lay down an exhaustive code
in respect of the subject matter replacing the Aot of the
state legislature, and
(iii) whether the law made by Parliament and the law made by the
state legislature oocupy the same field*
Finally, if we compare Article 254 with Article 246, we shall
see that each of them has a distinct scope of their own. Artiole 246 deals
with the question of competency of Parliament and the state legislatures
-to make laws on various subjeots. This Artiole has nothing to do with the
question of repugnancy* It deals with the question of ultra vires, a case
where a legislature enaots a law in excess of its jurisdiction* Artiole 246,
no doubt, visualises the contingencies of the same matter falling in more
than one list* In such oase of overlapping, according to this .Article the
non-obetante clause is to be applied* But the question of repugnancy is
altogether a different one whioh falls within the purview of Article 254*(57)®

IV
We propose to deal with a feiw more Articles whioh have their
bearing on the legislative relations between the union and the states in
India* In the United States, the constitution itself created the Supreme
Court but left the constitution of all other courts to the oongress
/Article 111 (iJJ • Congress, in its turn, decided to. have a separate set
of federal courts to determine all the powers as enumerated in Article Hl(2)
involving matter of national importance and the subjects in which uniformity
of decisions was neaessary* Section ?1 of the Australian constitution follows
closely the Anerican practice in vesting the judioial power of the
Commonwealth in the High Court and in such other courts as the Parliament
creates* The Canadian constitution, however, does not contain any such
provision®
Though our constitution follows the Canadian practice, by
maintaining a single system of court, Article 247 of the Indian constitution
is an exception to this© (58)* Artiole 247 empowers the Parliament to oreate
additional courts for the administration of laws, enacted by it with
respect to any matter enumerated in List 1* Such additional courts will
thus deal exclusively with the Union Laws* However, this power is to be
exereiaed by Parliament only if, it finds that the state courts are
incompetent to administer any particular union law properly* No such court,
however, has yet been established in India® But this Artiole may give rise
to some difficulty in future® Justice P* B. Mookherjee has observed s "The
constitutional question will arise in future when donflict between such
additional courts and the existing courts will take placej for they will have
common subject of administration, namely, rbetter administration of laws made
by Parliament or any existing laws with respect to a matter enumerated in
the Union Li at *, as stated in Article 247 of the constitution. Federal laws
and laws of the Union List are administered today by the High Court in the
states and other state courts in addition to the Supreme oourt* Hence, with
subjects common for judicial administration, these additional court a anc.
other courts will come into conflict* The expression ‘better administration
of laws* is bound to raise deep oontrovsriBes." (59)©
■Article 232 of the Draft Constitution laid down the principle
that in cases where the constitution required that a Bill oould not be
introduced in the legislature without the previous sanction of the Governor,
Rajpramukh or the President, the subsequent assent of that authority should
save the law from invalidity and this Artiole ultimately became Artiole 255
of the present constitution and provides : "Ho Aot of Parliament and of
the legislature of a state and no provision in any suoh -Aot shall be invalid
by the r eason only that some recommendation or previous sanotion required
by this oonstitution was not given, if assent to that Act was given s
(i) where the recommendation required was that of the Governor,
either.by the Governor or by the President|
(ii) where the recommendation required was that of the Rajpramukh,
either by the Rajpramukh or by the President)
(ill) where the recommendation or the previous sanotion required
was that of the President, by the President*
It may be noted here that the word 'specified in the first
Schedule' an as existed in the original constitution were omitted by the
Seventh Amendment, and also that, though the offioes of the Rajpramukh has
been abolished by the Seventh Amendment, Clause (b) has to be retained in
order to validate past acts of the states in part B which may be lacking
previous reooramandation® Artiole 255 is in faot, a reproduction of Scotian 102
of the Government of IndiaACt of 1935 and this Artiole 'is intended to protect
any omission on the part of the exeoutive to obtain requisite prior authority
to introduoe the Bill in the legislature®* (60)* Ubder the present constitu­
tion, the following provisions require the previous sanotion of the Presidenti-
(i) Proviso to Artiole 3) (ii) Artiole 117 (l) & (3)| (iii) Article 274(l)|
(iv) Proviso to Artiole 304 end the provisions which require the recommenda­
tions of the Governor are Artiole 207 (l) & (3)*
In a study of the relationship between the union and the states
in the legislative sphere we must refer to a few Articles concerning trade,
commerce, etc. Artiole 302 empowers the Parliament to impose restrict!ms
• *

on the freedom of trade, oommesoe and intercourse between one state and
another or within any part of the territory of Indi? as may bf required
 93 *

in the publio interest. Similarly, Article 304» clause (b) enables a state
legislature to impose suoh reasonable restriction on the freedom of trade,
commerce and intercourse as may be required in the publio interest. But no
such Mil or amendment for the purpose of clause (b) shall be introduced
or moved in the state legislature without the previous sanction of the
President. Thus, there are three conditions whioh must be satisfied before
passing suoh an Act! (i) the previous sanction of the Presiden^iust be
obtained! (ii) the legislation must be in the public interest and (iii) it
must fern impose restrictions whioh are reasonable. However, the defect of
not obtaining the previous sanction of the President is cured if the
subsequent assent of the President to the Aot can be obtained. The question
naturally arises, why the cons eht of the President is needed in the oase
of Artiole 304 (b), though not in the oase of Article 302? The answer is
that the previous sanction of the President is required in the former oase
in order that economic pressure, whioh may inspire the state legislature
to impose restrictions on frea movement of trade and-commeros may be examined
in the light of the interest of the national economy®
 REFERENCE.

1. Ambedkar *<U.D., Vol VII, page 31.

2. Paragraph. 15 of the statement by the Cabinet Mission and the Viceroy May 16,
1946#
3. Pundit Nehru*s statement, Press Conference, Bombay, 10-7-1946.
4. C.A.D. 25/1/1947, page 330-36.
5. C.A.D., 28/4/1947, page 359*62
6. Reports of the Committees of the C.A.I First series, page 66.
7* Schedule VII to the Government of India Act, 1935*
8* Second Report of the Union Powers Committee, Pt 2, quoted by Shiva Rao in
•Framing of Indian Constitution* Vol II, page 777*
9« Reports of the Committees of Constiturnt Assembly, First series, page 55”56*
10. Report of the Committees of the Constituent Assembly, Third series, Page 176.
11. The State Reorganisation Commission Report, para 285.
12. Justice P. B. Mookherjee * The Critical Problems of the Indian Constitu­
tion, page 129*
13* Jennings * Some characteristics of the Indian Constitution, page 56*
14* Appendix &•
15. Dr. A.K. Ghoaal 1 I.J.P.S.C, Vol. XIV page 326 - Federalism in the Indian
Constitution.
16. Wheare 1 Nature of the Indian Constitution in 'Aspeots of the Indian
Constitution*’ edited by M.G. Gupta,page 80®
17. Ambedkar 1 C.A.D., Vol II, page 35*
18. Granville Austin l The Indian Constitution t The Cornerstone of a Nation,
Page riii.
19. A.H. Wadi a Vs. Income Tax Commissioner, Bombay, A.I.R., 1949
20. Wallace Vs. Income Tax Commissioner, Bombay 1943, F.C.R.
21. Bombay Vs. United Motors A.I.R., 1953, S.C.252.
22. Poppet Lai Vs. Madras A.I.R. 1953, S.C. 274*
230. Panama Refining Co. Vs. Ryan, (1935 ) 293 U.S.421.
24. Panama Refining Co. Vs. Ryan, (1935) 293 U.S. 421.
25. State Vs. Byder Ali, (1955) 214 (*$) (*55) A.Hyd. 128
26. C.A.D., Vol. VIII, page 797*
27« B. Sharma * ’Supreme Court and Legislative Relations in India', I.J.P.S.C.
Vol XXV, page 31.
28* State of Bihar Vs. Kameswar, 1952, S.C. 252 (266).
29* K. Shanthanam * Uni on-St ate Relation^ in India, page 19-20 o
30. Text of the First Report of the U.P.C. April 1947, Note I 5 Quoted by
Shiva Rao t Framing of the Indian Constitution,
Vol II Page 747.
31* K. Santhanam t C.A.D., Vol VII, page 263*
32. C.A.D., 8/11/1948, page-336 Vol VII T5^a - ^
33* Pylee * Constitutional Government in India, page 580*
34* Santhanam t Union State Relation in India, page 22.
33* Gwyer in Subramanyam Vs. Muttuswamy, quoted by Chitaley and. Raot
Constitution of India, Vol III.
36. Hiss Kishori Sethi Vs. The King, A.I.R., 1930, F.C. 69 (71)*
37* Miss Kishori Sethi Vs. The King, A.I.R., I950, F.C. 69 (7l)*
38. Bombay Vs. Balsara, A.I.R. 1951» S.C.3l8e
39* Objective Resolutions as adopted by C.A.I., C.A.B., Vol II, No.3, page 303*
40a Objective Resolution as adopted by C.A.I., C.A.B., Vol.II, No.3, page 303*
41<>C.A.P. -Vol IV, page 728.
42e C.A.B., Vol V, No.3, page 39*
43. T. T. Krishnamachari, C.A.D., Vol XI, page 952®
44* Justice P. B. Mookherjee * The Critical 36tady Problems of the Indian
Constitution, page 47«
43. Manikka Sundaram Vs. Nayyadu, 1946, F.C.R. 67e
46. C.A.B., Vol. XI, page 933*
47» D. Basu t Commentary on the Constitution of India, Vol. IV, page 185®
48. State of Jammu and Kashmir Vs. Premnath, 1959*»»•*S.C.749®
49« Zaberbahai Vs. State of Bombay, A.I.R., 1934«
30. Kisan Lai Vs. State of Madras, A.I.R. 1937*
31. Jennings 1 Some characteristics on the Indian Constitution, page 61-62.
32. Chitaley and Raot Indian Constitution, Vol III, Article 254» Note 12(c),ptl.
33* Bhupendra Vs. State of Orissa, A.I.R. i960®
34* Tikaramji Vs. State of U.P© A.I.R. 1936*
55® Nicholas * Australian Constitution, page 303®
36. Beep Chand Vs. State of U.P. A.I.R. 1959> S.C. 648.
37* Chitaley and Raot Indian Constitution, Vol.III, Article 234» Note 12(z).
38. Chitaley and Raot Indian Constitution, Vol.III, Article 247> Note la
39® Justice P. B. Mookherjee t Critical Problans of the Indian Constitution,
page 48®
60o A.K. Chanda t Federalism in India, page 97*