 DIVYA FEDERALISM

CENTRE STATE RELATIONSHIP

INTRODUCTION

The Constitution of India establishes a dual polity, the dual polity consists of Union at the Centre and
States at the periphery, each endowed with sovereign powers to be exercised in the field assigned to
them respectively by the Constitution. The distribution of legislative powers between the Union and
States is fundamental principle of a federal Constitution. There are many reasons for distribution of
power; but the two most important, are the following:

A. Demarcation of legislative power helps in defining boundaries of the each Legislature.

(Parliament and state legislature)
B. It is easier to verbally formulate, with reasonable precision, the various topics on which the
legislative power can be exercised by the centre and state respectively.

Federal scheme under the Constitution is adopted from the Government of India Act, 1935.
Constitution added the distribution of legislative powers between the Union and States in Part XI of
the Indian Constitution commencing from the Article 245 to 256 and VII Schedule.

[The perennial problem under a federal polity is the problem of the utilization of distributed powers
within constitutional limits and the judicial branch is frequently charged with the task of reviewing
exercise of legislative power by Federal and States, in light of whether that legislation impairs a
balance between economic freedom of competition, the protection of local State autonomy and a
measure of national uniformity]

BASIS OF DIVISON OF POWER

The general principle guiding the division of powers has been very aptly pointed out by Professor
Dicey when he said ‘whatever concerns the nation as a whole should be placed under the control of
the national government. All matters which are not primarily of common interest should remain in
the hands of the several States’. Therefore, matters involving national significance are allotted to
national government, whereas matters of local importance are allocated to federating States.
Besides the matters involving the national or local importance, all modern federations possess a
concurrent jurisdiction where both National and State governments are empowered to enact laws.

SCHEME OF DISTRIBUTION OF LEGISLATIVE POWERS UNDER THE CONSTITUTION OF INDIA

The Constitution of India possesses a very elaborate and comprehensive scheme of the distribution
of powers between the Union and States. It makes its own mode of division of powers, combination
of the Canadian and the Australian method of distribution of powers is evident under the Indian
Constitution.

The federal scheme in the Constitution of India is adopted from the Government of India Act, 1935..
The said Act made an innovation upon several precedents to make a treble enumeration of powers,
in order to make it as exhaustive as possible and also to minimize judicial intervention and litigation.
The Three Legislative Lists (I, II and III) respectively enumerated the powers vested in the Federal
Legislature, the Provincial Legislature and to both of them concurrently. If however, a matter was
not covered by any of the three Lists that would be treated as a residuary power of the Federal
Parliament and predominance of federal law in case of inconsistency with a Provincial Law, in the
concurrent sphere.
There are two-fold distribution of legislative powers have been made under the Constitution
between the Union and States.

1. With respect to the territory

2. With respect to subject matter

WITH RESPECT TO TERRITORY- Parliament has power to make laws throughout the territory of India,
States can make law to whole territory of State is concerned. (Article 245(1)). According to Clause (2)
of Article 245 a law made by Parliament shall not be deemed to be invalid on the ground that it has
extra-territorial operation, i.e. takes effect outside the territory of India. In A.H. Wadia v. Income tax
Commissioner Bombay40, the Supreme Court held that “In the case of a sovereign Legislature,
question of extra territoriality of an enactment can never be raised in the municipal court as a
ground for challenging its validity.

WITH RESPECT TO SUBJECT MATTER- Article 246 of Indian Constitution provides for the distribution
of legislative powers between the Union and State with respect to the subject matter. In India the
legislative powers of the Parliament and State Legislatures have been divided into three lists in the
Seventh Schedule of the Constitution. List I called the Union List deals with all the subjects within the
exclusive competence of Parliament. List II sets forth all the subjects which are in the exclusive
competence of the State Legislatures. List III known as the Concurrent List contain matters in respect
of which both the Union and the States can legislate. The Union List contains Ninety Eight items of
which the more important are foreign affairs, defence, banking, coinage, currency, union taxes and
duties. There are also certain matters which are included in the Union List with a view to avoid
tensions and disputes among the States. Such areas include interstate trade and commerce,
regulation and development of interstate rivers and river valleys, interstate migration and
quarantine. Certain heads of legislation which in the first instance belong exclusively to the States
may become the subject of exclusive concern of the Parliament, if an appropriate declaration is
made by the Parliament.

State Legislatures have power to make laws on these subject matters enshrined in the List II of the
VII Schedule. State List covers only Fifty Nine items it is comparatively small field than Union List
even though State Legislation is curtailed by making a number of entries in the State List, subject to
entries in the Union List43 or Concurrent List44 or any other law made by Parliament45. Some items
in Concurrent List are made subject to Union List46 or to any law made by the Parliament47 .

Concurrent List includes Fifty Two entries which fall into two groups. The first group is made up of
‘general law and procedure’ subjects under this group are civil procedure, evidence, marriage,
divorce, property law, contracts etc. The other group includes subjects related to ‘economic and
social planning’ it includes social welfare, trade unions, social security, vocational and technical
training of labour, legal, medical and other professions, price control, acquisition and requisition of
property. The general principle behind the items in the Concurrent List seems to be that Parliament
can initiate legislation on matters when nationwide uniformity is required in respect of general laws
and legal procedure. In the absence of Parliamentary Legislation, the States can legislate in the
concurrent matters. Even when Parliament has enacted laws on any particular topic in the
Concurrent List, the States can pass laws supplementary to the Parliamentary Legislation.

In Keshavlal Khemchand & Sons v. Union of India, the Apex Court ruled that The Constitution gives
autonomy to the Centre and the States with their respective fields. Therefore, a Legislation by one
State cannot be held to be discriminatory or suffering from the vice of hostile discrimination as
against its citizens simply because the Parliament or the Legislatures of other States have not chosen
to enact similar laws.

It has been ruled by a Constitution Bench of the Supreme Court in Madras Bar Association v. Union
of India51 that the Basic Structure of the Constitution is inviolable and it would apply to the other
legislations as well, even though the legislation had been enacted by following the prescribed
procedure and was within the domain of the enacting Legislature.

The Constitutional Bench of the Apex Court in State of M. P. v. G.C. Mandawar52, held that two laws
enacted by two different Governments and by two different Legislatures could be read neither in
conjunction nor be comparison for the purpose of finding out if they were discriminatory.

UNION LIST/ STATE LIST/ CONCURRENT LIST- READ FROM PDF PAGE 76-96
RESIDUARY POWERS IMPORTANTTTTT- 96-98, 117-118 Have to do

ARTICLE 254

3.11 Concurrent Sphere

The position in this sphere has been complicated owing to the checks and
counter checks introduced by the elaborate provisions in the relevant Article 254,
which have no counterpart in the foreign Constitutions so far noticed. Since the
Article 246 (2) gives power to two Legislatures, a conflict can arise between laws
passed on the same subject by the two Legislatures. To deal with this situation, the
complicated provisions of Article 254 may be analyzed into the following
propositions. 1. Clause (1) says that if a State law relating to a Concurrent Subject is repugnant
to a Union law relating to that subject, then whether the Union law is prior or
later in time, the Union law will prevail and the State law shall to the extent of
such repugnancy be void89
.
2. The State law however does not become void as soon as the Union Parliament
legislates with respect to the same subject. There is nothing to prevent the
State Legislature to legislate with respect to a concurrent subject merely
because there is a Union law relating to the same subject. Art 254 (2)90 is
attracted only if the State law is repugnant to the Union Act91, which means
that the two cannot stand together92
.
3. To the general rule laid down in Clause (1), Clause (2) engrafts an exception,
viz., that if the President assents to a State law which has been reserved for his
consideration (Article 200), it will prevail notwithstanding its repugnancy to
an earlier law of the Union93 both laws dealing with a concurrent subject94
.
But in such a case
a) The Union Act will give way to the State Act only to the extent of
inconsistency between the two and no more
b) The predominance of the State law may be taken away if Parliament
legislates under the proviso to Clause (2).
4. The proviso to clause (2)95 says that notwithstanding the President’s assent to
the State Act, the Union Act or amendment will prevail if it is later in point of
time than the enactment of the State law96
In short, the result of obtaining the assent of the President to a State Act
which is inconsistent with a previous Union law relating a concurrent subject would
be that the State Act will prevail in that State and overrule the provisions of the
Central Act in their applicability to that State only. This State of affairs will exist
only until Parliament may, at any time, make a law adding to or amending or
varying or repealing that State Act. Parliament may repeal or amend the repugnant
State law, either directly or by itself enacting a law repugnant to the State law, with
respect to the same matter.

TRANSFERS FROM STATE LIST TO CONCURRENT LIST

It will be seen from the above Chart, that on a quite great number of occasions in the past, it
became necessary to amend the Constitution, by transferring, to the Concurrent List, certain matters
from the State List. Obviously, it was thought that the matters in question were not being
adequately dealt with or could not be adequately dealt with by the Sates97 . If any new subject to be
included or added to any List in the Seventh Schedule due to change of political, social or economic
conditions. It may necessitate the insertion of new entries in a legislative list. When such a situation
arises, the concrete question that may fall to be considered is, whether the addition should be made
in the Union List or in the State List or in the Concurrent List. Precisely such a question seems to have
arisen, after it became apparent, that the problem of population explosion might need specific
legislative sanction, for enacting into law the policy to be adopted on the subject. The relevant
amendment was made in 1976, by introducing, in the Concurrent List, a new Entry 20A relating to
“population” and family planning. Presumably, it was considered that instead of the Union
undertaking the exclusive responsibility of promoting legislation on the subject, it would be better to
give the power to the Centre as well as to the States. As a result, Entry 20A was inserted in the
Concurrent List. There seems also to have been a thinking that though the subject was of national
importance, yet there might be occasions for State wise variations in legislative policy.

In any case, the insertion of any new entry in a legislative List whether Concurrent List or any other
List illustrates the validity of the proposition, that no draftsman can visualize all possible future
contingencies and fully encapsulate them in a supposedly exhaustive linguistic formula. Incidentally,
reverting to the specific topic of “population and family planning”, long before Entry 20A was
inserted in the Concurrent List, Parliament had already enacted the Medical Termination of
Pregnancy Act, 1971, apparently by recourse to Concurrent List, Entry 1, “Criminal law”

UNION SUPREMACY

In addition to the long arms of Union and Concurrent Lists leaning balance of legislative powers in
favor of the Parliament, there are several ways in which the plenary powers of the Union Legislature
are ensured by Constitution. The scheme under the Constitution tilting balance of legislative powers
in favour of the Union may be conveniently divided in to three heads,
 1. Legislative methods of the Union to control over States.
2. Provisions under the Constitution ensuring national supremacy in legislative fields and
3. The allocation of the subject matters of legislation in three Lists.

Legislative Methods of the Union to Control over States

In spite of clear demarcation of Union and State subjects under the Constitution, Union Legislature
exercises control over the power of State Legislature to make laws. Those circumstances are
explained hereunder.

1. Previous sanction to introduce legislation in the State Legislature (Article 304).

2. Bills which must be reserved for President's consideration
3. Instruction of President required for the Governor to make Ordinance relating to specified
matters [Article 213(1)].
4. Veto power in respect of other State Bills reserved by the Governor (Article 200)

ALL THIS IN DETAIL FROM PAGE 104-106

3.13.1.1 Previous Sanction to Introduce Bill in the State Legislature is Mandatory

State Legislature having power to make laws on any of the subjects in the State List. But,
this power is not an absolute it is subject to certain limitations. One of such limitation is obtaining
previous sanction from the President before introduce any Bill in the State Legislature. According to
proviso of Article 304 (b) no Bill which seeks to impose restrictions on the freedom of trade and
commerce or intercourse within or outside the State can be introduced without previous sanction of
the President of India1.

3.13.1.2 Bills which must be Reserved for President's Consideration

After passing any Bill by the each house of the State Legislature and sent to the Governors
for his assent. The Governor shall reserve certain Bills for the consideration of the President. Many
provisions under the Constitution authorize the Governor to reserve the Bills for the consent of the
President. Such provisions are

Instruction of President required for the Governor to make Ordinance Relating to

Specified Matters.
Article 312 empowers the Governor to promulgate Ordinance on urgent matter during
recess of Legislature. To issue an ordinance, the Governor must be satisfied with the circumstances
that make it necessary for him / her to take immediate action. Governor shall not, without
instructions from the President, promulgate any such Ordinance if

• The Ordinance has the provisions which of embodied in a Bill would require
President’s sanction.
• The Ordinance has the provisions which the Governor would reserve as a Bill containing them
for the President’s sanction.

1 Proviso of Article 304 (b), the Constitution of India.

 • An Act of the State Legislature has the same provisions that would be invalid without the
assent of the President.

Provisions under the Constitution Ensuring National Supremacy in Legislative Fields

The Indian Constitution has purported to incorporate the scheme of distribution of legislative
powers in a unique way so as to make the Union supremacy not only during emergency but also in
normal circumstances. The scheme contains provisions, whereby without a formal amendment of
the Constitution, the Union Parliament assumes legislative authority over subjects in the State List.
The following are the few Constitutional provisions ensuring National Supremacy over the States.

1. Power of Parliament to Legislate in the National Interest- 107-108

2. Legislation with the Consent of States- 108-112
3. Legislation for Giving Effect to International Agreements- 112-114
4. Legislation during Proclamation of Emergency- 114-116

The Allocation of the Subject Matters of Legislation in Three Lists

The Constitutional scheme providing for the legislative supremacy of the Union over State laws is
clear from the language of Article 246 which introduces the three lists given in the Seventh Schedule
of the Constitution. The national supremacy over State law in cases of conflict between the Federal
and State laws on the same subject has been established through judicial decisions in the United
States and Canada. Section 109 of the Commonwealth of Australia and Section 100 of the
Government of India Act, 1935 aim to achieve the same purpose. The Constitutional scheme under
Article 246 of the Constitution of India is to demarcate the exclusive legislative areas of the Union
and States and to provide for a concurrent field of legislation over which both the general and
regional governments can operate and to establish the predominance of Union Legislature in List.
The Scheme of Article 246 may be summed up as where the matter is exclusively covered by the
Union List the Union Legislature has exclusive legislative power. The matter covered exclusively by
the State List, the State Legislature has exclusive legislative power. Where the matter is exclusively
covered by the Concurrent List, both the Union and State Legislatures have the power of legislation.
In case of overlapping the following positioned can be imagined.

1. Matter falling within all the three lists- in such a case the Union Parliament has the exclusive
power.
2. Matter falling in Lists I and II – the Union has exclusive power
3. Matter falling in Lists I and III- the Union has exclusive power
4. Matter falling in Lists II and III- both the Union and States have concurrent power

The State List covers only 66 items as against the Union List consisting of 97 items. Even this
comparatively small field of State Legislation is curtailed by making a number of entries in the State
List subject to entries in the Union List or Concurrent List or any law made by the Parliament. Some
items in Concurrent List are made subject to the Union List or to any law made by the Parliament.
Through, several entries in the Union List itself; the State List can be encroached upon by the Union
either in public interest or for reasons of national importance. The legislative arrangements under
the three Lists reveal that certain important legislative heads of the State are subject to the Union’s
exclusive or concurrent spheres. The whole of the legislative distribution between the Union and the
States has a Central bias.

PARLIAMENT AND THE POWER TO OVERRIDE JUDICIAL DECISION- pg 6-8 notes shanky

LEGISLATURE’S POWER TO DELEGATE- 8-10