CENTRE FOR POST GRADUATE LEGAL STUDIES AND SOCIO

LEGAL RESEARCH, SCHOOL OF LAW, ITM UNIVERSITY

GWALIOR, MP-INDIA

2023-2024

MASTERS OF LAW
In
CONSTITUTION AND ADMINISTRATIVE LAW

PROJECT SUBMISSION
Of
CENTRE AND STATE RELATIONS

On

LEGISLATIVE RELATIONS BETWEEN CENTRE AND STATE

SUBMITTED TO SUBMITTED BY
Dr. Hradyesh Chaturvedi Tulika Gupta
LLMN1SL23007

1
 ACKNOWLEDGEMENT

“Words can never convey what deeds have done.”

Writing a project is never a single man’s job. I am overwhelmed in all humbleness and
grateful to acknowledge my depth to all those who have helped me to put ideas, well above
the level of simplicity and into something concrete.

I am very thankful to my constitutional law professor Dr. Hradyesh Chaturvedi for his
valuable help. He was always there to show the right track when I needed his help. With the
help of his valuable suggestions, guidance and encouragement, I was able to complete this
project. I would also like to thank my friends, who often helped and gave me support at
critical junctures during the making of this project.

I hope you will appreciate the hard work that I have put in this project.

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 TABLE OF CONTENTS

RESEARCH METHODOLOGY...............................................................................................5

AIMS AND OBJECTIVES....................................................................................................5

LIMITATIONS......................................................................................................................5

RESEARCH METHODOLOGY...........................................................................................5

SOURCES OF DATA............................................................................................................5

INTRODUCTION......................................................................................................................6

LEGISLATIVE RELATIONS...................................................................................................8

Territorial Jurisdiction............................................................................................................8

Distribution of Legislative Powers (subject matter)..............................................................9

THREE FOLD DISTRIBUTION OF LEGISLATIVE POWER-.........................................9

(i) Union List:.....................................................................................................................9

(ii) State List:....................................................................................................................10

(iii) Concurrent List:........................................................................................................11

Problems and prospects of centre state legislative relations................................................12

SUBJECT MATTER...............................................................................................................12

THE RESIDUARY POWERS.............................................................................................13

PRINCIPLES OF INTERPRETATION OF LISTS............................................................13

Pith and substance............................................................................................................14

Colourable Legislation.....................................................................................................15

PREDOMINANCE OF PARLIAMENT.................................................................................17

Power of Parliament to legislate in the National Interest.....................................................17

During Proclamation of Emergency.....................................................................................17

Agreement between States...................................................................................................18

For giving effect to International agreements......................................................................18

Avoiding inconsistency........................................................................................................18

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 Accession of new States.......................................................................................................18

In case of failure of Constitutional machinery in the States................................................18

CONTROL OVER THE ORDINANCE MAKING POWER OF THE GOVERNOR...........20

Sarkaria commission recommendations on centre-state legislative relations......................21

CONCLUSION........................................................................................................................22

REFERENCES.........................................................................................................................23

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 RESEARCH METHODOLOGY

AIMS AND OBJECTIVES

The researcher intends to find out the following during the course of research:
i.) What is the legislative relation of centre and state?
ii.) What are the three lists?
iii.) What is doctrine of repugnancy?
iv.) What is doctrine of pith and substance?
v.) What is doctrine of colourable legislation?
vi.) What is residuary power?
vii.) What is territorial jurisdiction?
LIMITATIONS

The researcher lacks monetary and other resources. The research will be confined to a time-
limit of three month. The research will be only doctrinal. For this the researcher will be
confined to library of BHU and internet sources.

RESEARCH METHODOLOGY

The researcher will use only doctrinal method of research

SOURCES OF DATA

PRIMARY SOURCES – The Constitution of India, 1950

SECONDARY SOURCES - Books, magazines, journals and websites.

5
 INTRODUCTION

The distribution of powers is an essential feature of federalism. The object for which a federal
state is formed involves a division of authority between the National Government and
separate states. The tendency of federalism to limit on every side the action of the
government and to split up the strength of the state among co-ordinate and independent
authorities is especially noticeable, because it forms the essential distinction between a
federal system. And a unitary system of Government.

“A Federal Constitution establishes the dual polity with the union at the centre and the states
at a periphery, each endowed with sovereign powers to be exercised in the field assigned to
them respectively by the constitution.” “The one is not subordinate to the other in its own
field, the authority of one is co-ordinate with that of other”.

In fact, the basic principle of federation is that the legislative, executive and financial
authority is divided between the centre and state not by any law passed by the centre but by
constitution itself. This is what Indian constitution does. 1 Legislation provides the framework
for policy formation and arms the government with the powers to implement the policy.

Our constitution provides that every state shall have at least one house, viz., the legislative
assembly comprising 66 to 500 members chosen by direct election on the basis of adult
suffrage from territorial constituencies. Any state can create a second house, viz. legislative
council if it so desires. This can be done by a resolution of the assembly passed by a special
majority (i.e. a majority of total membership of the assembly not being less than two-thirds of
the members actually present and voting) followed by an Act of Parliament. By the same
process, the existing legislative council can be abolished also. At present, only Bihar,
Maharashtra, Karnataka, U.P. and J&K have two houses.

The Constitution, based on the principle of federalism with a strong and indestructible union,
has a scheme of distribution of legislative powers designed to blend the imperatives of
diversity with the drive of a common national endeavour. The Constitution adopts a three-
fold distribution of legislative powers by placing them in any of the three lists, namely, Union
1
Dnyanesh Kumar “Essay on the Legislative Relations between Union and States of India” retrieved from<
http://www.preservearticles.com/2011092814254/essay-on-the-legislative-relations-between-union-and-states-
of-india.html> last visited on 30th November, 2023.

6
List, State List and Concurrent List. The Union List contains subjects of national relevance
such as Defence, Atomic Energy, Foreign Affairs, War and Peace, Citizenship, Railways,
Income-tax, Excise etc., over which the Parliament has an exclusive authority to formulate
laws. The State List includes subjects of importance to the States such as Public order, Police,
Local Government, Public health, Agriculture etc., over which the State legislature has an
exclusive authority. The Concurrent List containing subjects of mutual relevance over which
both Parliament and State legislatures can legislate but in case of conflict the Union law will
prevail. These include Criminal law and procedure, Family laws, Inter-State trade and
Commerce and Communication, Electricity, Newspapers and Books, Education, Stamp duties
and so on. Residual powers, like in Canada, but unlike the USA, Australia and Switzerland,
are vested in the Parliament.2

However, the Union government can legislate on any subject included in the State list, under
some specific circumstances:

(i) If the Rajya Sabha recommends by a two-third majority that such legislation is in national
interest.

(ii) If two or more States mutually agree that such a legislation should be made for them;

(iii) In order to implement treaties or international agreements or connections; and

(iv) During the proclamation of emergency made by the President of India, on account of
internal disturbance or external aggression, the Parliament acquires the authority to make
laws on all the subjects mentioned in the State List. However, all such laws made by the
Parliament become ineffective six months after the Proclamation of Emergency ceases to
operate.3

(v) In case of emergency due to the failure of the constitutional machinery in State, the
President of India can authorise Parliament to exercise the powers of the State Legislature.
All such laws also cease to operate within six months after the Proclamation of Emergency
comes to an end.

2
Ibid.
3
Ibid.

7
 LEGISLATIVE RELATIONS

Chapter I of Part XI (Article 245-254) of the Indian Constitution specified two-fold division
of Legislative powers between the Union and the States.4
(1) with respect of territory
(2) with respect of subject matter
TERRITORIAL JURISDICTION

As regards territory, Article 245 (1) provides that subject to the provisions of this
constitution, a State Legislature may make laws for the whole or any part of the state to
which it belongs. It is not possible for a State Legislature to enlarge its territorial jurisdiction
under any circumstances except when the boundaries of the state itself are widened by an act
of Parliament. Parliament has, on the other hand, the power to legislate for ‘the whole or any
part of the territory of India, which includes not only the states the states but also the union
territory of India [Art. 246 (1). It also possess the power of ‘extra-territorial legislation [Art.
245 (2), which no state legislature possesses. This means that laws made by parliament will
govern not only persons and property within the territory of India but also Indian subjects
resident and this property situated anywhere in the world. Limitations to the territorial
jurisdiction of Parliament The plenary territorial jurisdiction of Parliament is, however,
subject to some special provisions of the constitution. They are,
(a) As regards some of the Union Territories, such as the Andaman and Lakshadweep group
of Islands, regulations may be made by the President to have the same force as Acts of
Parliament and such regulations may repeal or amend a law made by Parliament in relation to
such territory (Art. 240).
(b) The application of Acts of Parliament to any scheduled area may be barred or modified by
notifications made by the Governor (Para 5 of the V Schedule (3) of the Indian Constitution).
(c) Para 12 (1) (6) of the VI Schedule says that the Governor of Assam may, by public
notification, direct that any other act of Parliament shall not apply to an autonomous district
or an autonomous region in the state of Assam or shall apply to such district or region or part
thereof subject to such exceptions or modifications as he may specify in the notification. It is
obvious that the foregoing special provisions have been inserted in view of the backwardness

4
Negi Mohita “The Relation between Centre and State in India” retrieved from <
http://www.yourarticlelibrary.com/essay/the-relation-between-centre-and-state-in-india/24925> last visited on
30th November, 2023.

8
of the specified areas to which the indiscriminate application of the general laws might cause
hardship or other injurious consequences.5
DISTRIBUTION OF LEGISLATIVE POWERS (SUBJECT MATTER)

As has been pointed out at outset, a federal system postulates a distribution of powers
between the centre and the states. The nature of distribution varies according to the local and
political background in each country. In America, the sovereign states did not like complete
subordination to the central government. Hence, they believed in entrusting subjects of
common interest to the central government, while retaining the rest with them. Australia
followed the American pattern of only one enumeration of powers. In Canada, there is double
enumeration, federal and provincial leaving the residue for the centre. The Canadians were
conscious of the unfortunate happenings in the United States of America, culminating Civil
War of 1891. They were aware of the shortcomings of the weak centre. Hence they opted a
strong centre. Indian Constitution-Makers followed the Canadian scheme obviously opting
for a strong centre.4 However, they added one more list - concurrent list. As regards the
subjects of legislation, the constitution adopts from the Government of India Act, 1935 and
divides the powers between the Union and the States under three lists. They are as follows:
List I include all those subjects which are in the exclusive jurisdiction of Parliament.
List II consist of all the subjects which are under exclusive jurisdiction of the State
Legislature
List III which is called the Concurrent List, consists of subjects on which both Parliament and
the State legislatures can pass laws.
THREE FOLD DISTRIBUTION OF LEGISLATIVE POWER-

(I) UNION LIST:

List I, or the Union List, includes 99 items, including residuary powers, most of them related
to matters which are exclusively within the jurisdiction of the Union. Subjects of national
importance requiring uniform legislation for the country as a whole are inducted in the Union
List. The more important examples are defense, armed forces, arms and ammunition, atomic
energy, foreign affairs, coinage, banking and insurance. Most of them are matters in which
the State legislatures But, there are also items dealing with inter-state matters like inter-state
trade and commerce regulation and development of inter-state rivers and river valleys, and
5
Subas H. Mahto, “Legislative Relation Between Union And States” retrieved from <
https://www.google.com/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwirxNCols3aAhUZSo8KHX_DC
sUQFggzMAE&url=http%3A%2F%2Fwww.grkarelawlibrary.yolasite.com%2Fresources%2FFM-Jul14-CL-2-
Subhash.pdf&usg=AOvVaw2nRdVzs5cG0p2fzaihEVrF> last visited on 29th November, 2023.

9
inter-state migration, which have been placed under the jurisdiction of the Union Parliament.
Certain items in the Union List are of such a nature that they enable Parliament to assume a
role in certain spheres in regard to subjects which are normally intended to be within the
jurisdiction of the States; one such example is that of industries. While assigned primarily to
the State List; industries, the control of which by the Union is declared by a law of
Parliament, to be expedient in the public interest’ are to be dealt with by parliamentary
legislation alone. Parliament, by a mere declaration, can take over as many industries as it
thinks fit.6 It is under this provision that most of the big industries, like iron, steel and coal,
have been taken over by Parliament under its jurisdiction. Similarly, while museums, public
health, agriculture etc. come under State subject, certain institutions like the National Library
and National Museum at New Delhi and the Victoria Memorial in Calcutta have been placed
under the jurisdiction of Parliament on the basis of a plea that they are financed by the
Government of India wholly or in part and declared by a law of Parliament to be institutions
of national importance. The university is a State subject but a number of universities have
been declared as Central Universities and placed under the exclusive jurisdiction of
Parliament. Elections and Audit, even at the State level, were considered matters of national
importance. The Extensive nature of the Union List thus places enormous powers of
legislation even over affairs exclusively under the control of the States in the hands of
Parliament.
(II) STATE LIST:
List II or the State List, comprises 61 items or entries over which the State Legislature has
exclusive power of legislation. The subject of local importance, where variations in law in
response to local situations may be necessary, has been included in the State List.
Some subjects of vital importance in the list are State taxes and duties, police, administration
of justice, local self-government, public health, agriculture, forests, fisheries, industries and
minerals. But, in spite of the exclusive legislative jurisdiction over these items having been
given to the States, the Constitution, through certain reservations made in the Union List has
given power to Parliament to take some of these items under its control. Subject to these
restrictions, one might say, the States have full jurisdiction over items included in the State
list.7

6
“What is the Legislative relation between the Union and the States in India” retrieved from <
http://www.publishyourarticles.net/knowledge-hub/political-science/what-is-the-legislative-relation-between-
the-union-and-the-states-in-india/4612/> last visited on 1st December, 2023.
7
Ibid.

10
(III) CONCURRENT LIST:
The inclusion of List III or the Concurrent List, in the Constitution gives a particular
significance to the distribution of legislative power in the Indian federal scheme. The
Concurrent List consists of 52 items, such as criminal law and procedure, civil procedure,
marriage, contracts, port trusts, welfare of labour, economic and social planning. These
subjects are obviously such as may at some time require legislations by Parliament and at
other by a State Legislature. The provision of a Concurrent List has two distinct advantages.
In certain matters in which Parliament may not find it necessary or expedient to make laws, a
Sate can take the initiative, and if other States follow and the matter assumes national
importance, Parliament can intervene and bring about a uniform piece of legislation to cover
the entire Union Territory. Similarly, if a State finds it necessary to amplify a law enacted by
Parliament on an item included in the Concurrent List in order to make it of a greater use of
its own people, it can do so by making supplementary laws. The items included in the
Concurrent List can be broadly divided into two groups-those dealing with general laws and
legal procedure, like criminal law, criminal procedure, marriage, divorce, property law,
contracts etc, and those dealing with social welfare such as trade unions, social security,
vocational and technical training of labour, legal, medical and other professions etc.; while
the items coming under the first group are of primary importance to the Union Government,
they have been left, by convention, to Parliament. In matters of social welfare, it is open to
the State legislatures either to take the initiative in making laws or to enact laws which are
supplementary to the Parliamentary laws.
Union Parliament's Power to legislate on the Subjects given in the State List-

(i) On the basis of the resolution passed by the Council of State -Article 249, 2/3
majority, Issues of National Interest
(ii) On the request of two or more state legislatures -Article 252, Law passed by
Union Parliament shall be applicable only to the states which demanded such
legislation.
(iii) Article 253: For the enforcement of International Treaties and Agreements.
(iv) Article 304: Prior approval of President of India on certain Bills.
(v) Article 352: Supremacy of Union Parliament during National Emergency,
(vi) Article 356: During Constitutional Emergency. Supremacy of Union Parliament
over Concurrent List
(vii) Article 248: Residuary Powers are under the control of Union Parliament.

11
 (viii) Article 169: Power of Union Parliament to abolish State Legislative Council.

The Concurrent List gives power to two legislatures, Union as well as State, to legislate on
the same subject. In case of conflict or inconsistency, the rule of repugnancy, as contained in
Article 254 comes into play to uphold the principle of Union Power. Under this rule, if there
is any discrepancy between the State and the Centre over a subject in the Concurrent List, the
Union law takes precedence over the state's law.8

PROBLEMS AND PROSPECTS OF CENTRE STATE LEGISLATIVE RELATIONS

The problems that have attracted attention in the field of Union-State relations have less to do
with the need to re-evaluate centre - state relations (state perspective)

1. More powers to the state

2. Residuary powers to the state
3. Reform in the office of Governor
4. Not to hold the Bills passed by the State Legislature
5. Delete Articles 356 & 249
6. Equal representation of states in council of states (Rajya Sabha)
7. Financial Autonomy to States
8. Reforms in All India Services
9. Participation of states in planning

Structure or the rationale of the Concurrent List than with the manner in which the Union has
exercised its powers the Union-State should be studied in the context of the political regime
that prevailed in the country over the last half century. The first four decades of the Republic
was characterised by single party dominance at the centre and the States and it was more of
centralisation in the relations.

SUBJECT MATTER

As we pointed out at the outset, a federal system postulates a distribution of powers between
the Centre and states. The nature of distribution varies according to the local and political

8
Shubhangi R, “Legislative Relations between the Centre and State India” retrieved from <
http://www.politicalsciencenotes.com/india/legislative-relations-between-the-centre-and-state-india/922> last
visited on 30th November, 2023.

12
background in each country. In America, the sovereign states which were keen to federate,
did not like complete subordination to the central government hence they believed in
entrusting subjects of common interest to the central government, while retaining the rest
with them. Thus, American constitution only enumerates the powers of the central
government and leaving the residuary power to the states. Australia followed the American
pattern of only one enumeration powers i.e., of Central Government leaving the residuary
power to the states because their problems were similar to the Americans. In Canada there is
double enumeration, Federal and Provincial leaving the residue to the Centre. The Canadians
were conscious of the unfortunate happenings in U.S.A culminating in Civil War of 892.
They were of the shortcomings of the weak Centre. Hence, they opted for a strong Centre.
Our constitution makers followed the Canadian scheme obviously opting for a strong Centre.
However, they added one more list-the Concurrent List. The Government of India Act, 1935,
introduced a scheme of three-fold enumeration, viz., Federal, Provincial and Concurrent. The
present constitution adopts the method followed by the Government of India Act. 1935, and
divides the powers between the Union and states in three Lists- the Union List, the state list
and the Concurrent List.

THE RESIDUARY POWERS

Article 248 vests the residuary powers in the parliament. It says that parliament has exclusive
power to make any law with respect to any matter not enumerated in the Concurrent List or
the State List. Entry 97 in the Union List also lay down that Parliament has exclusive power
to make laws with respect to any matter not mentioned in the State List or the Concurrent List
including any tax not mentioned in either of these Lists. Thus, the Indian Constitution makes
a departure from the practice prevalent in U.S.A., Switzerland and Australia where residuary
powers are vested in the states. This reflects the leanings of the Constitution-makes towards a
strong Centre.9

PRINCIPLES OF INTERPRETATION OF LISTS

The power of Centre and states are divided. They cannot make laws outside their allotted
subjects. It is that a scientific division is not possible and questions constantly arise whether a
particular subject fails in the sphere of one or the other government. This duty in a federal
9
Anu Mishra, “Distribution of Legislative Powers between the Centre and States” retrieved from <
https://www.google.com/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwib17b1ls3aAhULpo8KHSntAK
AQFgg3MAE&url=http%3A%2F%2Fwww.grkarelawlibrary.yolasite.com%2Fresources%2FFM-Jul14-CL-2-
Aleesha.pdf&usg=AOvVaw2bS7JkbnuuAhtHKDLe_hO8> last visited on 30th November, 2023

13
constitution is vested in the Supreme Court of India. The Supreme Court has evolved the
following principles of interpretation in order to determine the respective power of the Union
and the States under the three lists.

• Predominance of the Union List- the opening words of Art. 246 (I) “notwithstanding
anything in clauses (2) and (3)” and the opening words of clause (3) “subject to clauses (1)
and (2)” expressly secure the predominance of the Union List over the State List and the
Concurrent List And that of concurrent List over the State list. Thus, in case of overlapping
between the union and the Concurrent List, it is again the Union List Which will prevail. In
case of conflict between the concurrent List and state List, it is the Concurrent List that shall
prevail.

• Each Entry to be interpreted broadly- Subject to the overriding predominance of the Union
List, entry in the various lists should be interpreted broadly. In Calcutta Gas Ltd. V. state of

Bengal. the supreme Court said that the “widest possible” and ‘most liberal” interpretation
should be given to the language of each entry. A general word used in an entry…… must be
construed to the extent to all ancillary or subsidiary matters which can fairly and reasonably

be held to be included in it. The Court should try, as far as possible, to reconcile entries and
to bring harmony between them. When this is not possible only then the overriding power of
the Union Legislature- the non obstante clause applies and the federal power prevails.

In Union of India v H.S. Dhillon10, the question involved was whether parliament had
legislative competence to pass Wealth-tax Act imposing wealth tax on the assets of a person
in agricultural land. The Court held that in case of a central Legislation the proper test was to
inquire the matter fell in List II (State List) or List III (Concurrent List). Once it is found that
matter does not fall under List II, Parliament will be competent to legislate on it under its
residuary power in Entry 97 of List I. in such a case it becomes immaterial whether it falls
under Entries I-96 of List or not.

PITH AND SUBSTANCE

Within their respective spheres, the Union and the State legislature are made supreme and
they should not encroach into the sphere reserved to other. If a law passed by one Encroaches
upon the field assigned to the other the court will apply the doctrine of pith and substance to
determine whether the legislature concerned was competent to make it. If the pith and

10
AIR 1953 SC 375.

14
substance of law, i.e., the true object of the legislation or a statute, relates to a matter with the
competence of Legislature which enacted it, it should be held to intra vires even though it
might incidentally trench on matters not within the competence of Legislature. In order to
ascertain the true character of the legislation one must have regard to the enactment as a
whole, to its object and to the scope and effect of its provision.

The Privy Council applied this doctrine in Profulla Kumar v. Bank of Khulna 11 in this case
the validity of the Bengal Money Lenders’ Act, 1946 which limited the amount and the rate
of interest recoverable by a money lender on any loan was challenged on the ground that it
was ultra vires of the Bengal Legislature in so far as it related to ‘promissory notes’, a central
subject. The Privy Council held that the Bengal Money-Lenders Act was in Pith and
substance a law in respect of Money-Lending and Money-lenders a state subject, and was
valid even though it trenched incidentally on “Promissory note”- a central subject.

In State of Bombay v. F.N. Balsara 12 the Bombay, Prohibition Act, which prohibited sale
and possession of liquors in the state, was challenged on the ground that it incidentally
encroached upon import and export of liquors across custom frontier- a central subject. It was
contended that the prohibition, purchase, use, possession and sale of liquor will affect its
import. The court held that Act valid because the pith and substance of the Act fell under the
State List and not under the Union List even though the Act incidentally encroached upon the
Union Powers of Legislation.

COLOURABLE LEGISLATION
In K.C.G. Narayan Dev v. State of Orissa13 the Supreme Court explained the meaning and
scope of the doctrine of colourable legislation in the following terms:-

“If the Constitution distributes the legislative power amongst different Legislative bodies,
which have to act within their respective spheres marked out by specific legislative Entries,
or if there are limitations on the legislative authority in the shape of fundamental rights,
question arises as to whether the Legislature in a particular case has or has not, in respect to
the subject-matter of the statute or in the method of enacting it, transgressed the limits of its
constitutional powers. Such transgression may be patent, manifest or direct, but it may also
be disguised, covert or indirect, or and it is to this latter class of cases that the expression
colorable legislation has been applied in judicial pronouncements. The idea conveyed by the

11
AIR 1947 PC 60.
12
AIR 1951 SC 318; State of Rajasthan v. G. Chawla, AIR 1959 SC 544.
13
AIR 1953 SC 375.

15
expression is that although apparently a legislature in passing a statute purported to act within
the limits of its powers, yet in substance and in reality, it transgressed these powers, the
transgression being veiled by what appears, on proper examination, to be a mere pretense or
disguise. In other words, it is the substance of the Act that is material and not merely the form
or outward appearance, and if the subject matter is substance which is beyond. The whole
doctrine of colorable legislation is based upon the maxim that you cannot do indirectly what
you cannot do directly. In these cases, the Court will look in the true nature and. character of
the legislation and for that its object, purpose or design to make law on a subject is relevant
and not its motive. If the legislature has power to make law, motive in making the law is
irrelevant.

State of Bihar v. Kameshwar Singh14 is the only case where a law has been declared invalid
on the ground of colourable legislation. In this case Bihar Land Reforms Act,1950 was held
void on the ground that though apparently it purported to lay down principle for determining
compensation yet in reality it did not lay down any such principle and thus indirectly sought
to deprive the petitioner of any compensation.

14
AIR 1952 SC 252.

16
 PREDOMINANCE OF PARLIAMENT

In spite of a clear demarcation in the law-making power of Parliament and State Legislatures,
Parliament was assigned a predominant position in the general Legislative field. If a matter
happened to be included in the Union list and the State List, and if there was ever a conflict
between them the Union List prevailed. Similarly, if there was an overlapping between the
Union and concurrent lists, the Union list was paramount, and the concurrent list had priority
over the State List. Clause (4) of Article 246 of the Indian Constitution further provided that,
Parliament has power to make laws with respect to any matter for any such part of the
territory of India as had not been included in a State, notwithstanding that such matter was a
matter enumerated in the State List.15
POWER OF PARLIAMENT TO LEGISLATE IN THE NATIONAL INTEREST

The predominance of Parliament in the sphere of lawmaking was established by several

Articles of the Indian Constitution. Article 249, provided that, if Rajya Sabha declared by a
resolution supported by not less than two-thirds of the members present and voting that it was
necessary or expedient, in the national interest that Parliament should make laws with respect
to any matter enumerated in the State List specified in the resolution, it becomes lawful for
Parliament to make laws for the whole or any part of the territory of India with respect with
that matter during the period the resolution remained in force. Such a resolution remained in
force for such period, not exceeding one year, as might be specified therein. The Rajya
Sabha, however, could extend the period of such a resolution for a further period of one year
from the date on which it would otherwise have ceased to operate. A law made by
Parliament, which Parliament would not but for the passing of such resolution by Rajya
Sabha have been competent to make, ceased to have any effect on the expiration of a period
of six months after the resolution had ceased to be in force, except in respect of things done
or omitted to be done before the expiration of that period. This provision enabled the Rajya
Sabha which represented the States, to put in the concurrent list any matter that was of local
concern but had assumed national importance. The Rajya Sabha could do so anytime,
emergency or not emergency.
15
“Union-State Relations: Legislative, Administrative and Financial Relations” retrieved from <
https://www.google.com/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&uact=8&ved=0ahUKEwjX-
ouTh83aAhVFsI8KHT6FDM0QFgh_MAk&url=http%3A%2F%2Fwww.pompeicollege.in%2Fpdf%2Fba-iird-
sem%2FCENTRE%2520%25E2%2580%2593%2520STATE%2520RELATIONS%2520IN
%2520INDIA.pdf&usg=AOvVaw3oe8_9yhc7LFShaPMcqkOY> last visited on 29th November, 2023.

17
 DURING PROCLAMATION OF EMERGENCY

Article 250 says that, the Parliament shall have the power to make a law on any item of the
State List in case, a proclamation of emergency is in operation. Such a law shall apply to the
whole country or any part thereof in the case of National Emergency (under Article 352) and
to any state under President’s Rule (under Art. 356) or Financial Emergency (under Art. 360).
The laws of the state or states shall remain inoperative during this period to the extent of
being repugnant to the law of the centre (Art. 251).
AGREEMENT BETWEEN STATES

Art. 252 makes a provision for legislation by invitation. In case, the Legislatures of two or
more states pass a resolution and request the centre to make a law on a certain item of the
state List, then it shall be lawful for the Parliament to make a law. Firstly, such a law shall
apply to the states which made such a request, though any other State may adopt it by passing
such a resolution subsequently. Secondly, such a law can be amended or repealed only by the
Parliament.
FOR GIVING EFFECT TO INTERNATIONAL AGREEMENTS

Parliament shall have the power to legislate with respect to any subject for the purpose of
implementing treaties or international agreements and conventions. In other words, the
normal distribution of powers will not stand in the way of Parliament to enact legislation for
carrying out its international obligations, even though such legislation may be necessary in
relation to a state subject (Art. 253).
AVOIDING INCONSISTENCY

When a law of the State Legislature is inconsistent with any law of the Parliament, the law of
Parliament prevails over the law of the State.
ACCESSION OF NEW STATES

Parliament by law can accede new States into the Indian Union. It can also make laws to this
effect.16
IN CASE OF FAILURE OF CONSTITUTIONAL MACHINERY IN THE STATES

The predominance of Parliament was further established by Article 356 and 357 of the Indian
Constitution. Article 356 stipulated that, if the President was satisfied that a situation had
arisen in which the government of a state could not be carried on in accordance with the

16
Ibid.

18
provisions of the Constitution, he might declare that the powers of the Legislature of that
state would be exercisable by or under the authority of Parliament.6 Parliament might, Article
357 provided, delegate the law-making power to the President. The effect of Article 356
would be that the Legislature of the state in question would stand dissolved or suspended and
the law-making power would vest in Parliament during the period the proclamation of
Emergency remained in force. In addition to the Parliament’s power to legislate directly on
the State subjects under the foregoing Articles, the constitution also provides for the centre’s
consent before a bill passed by a state Legislature can become a law. Article 200 of the Indian
Constitution directs the Governor of a state to reserve a bill passed by a state Legislature for
the consideration of the President, if in his opinion, if it is passed into law, would derogate
the power of the High Court so as to endanger the position which the court is required to
fulfill under the constitution. Article 201 says that, the President shall have the power to give
his assent to such a bill or return it to the state for reconsideration on the basis of his
recommendations. Thus, from the scheme of distribution of Legislative powers between the
union and the states, it is quite evident that framers have given more powers to the Parliament
as against states. The states are not vested with exclusive jurisdiction even over the subjects
assigned to the states by the constitution and thus it makes the states to some extent
subordinate to the centre. This centralizing tendency is no doubt inconsistent with the federal
principle, but the framers of the constitution were more concerned with the unity of the nation
rather than following the traditional requirements of a federal constitution. Besides, the
central control was considered necessary for the purpose of achieving rapid economic and
industrial progress”.17

17
Ibid.

19
 CONTROL OVER THE ORDINANCE MAKING POWER OF THE GOVERNOR

Under the Constitution, the Governor of a State is authorised to issue ordinances, when the
State Legislature is not in session. Though, it is expected that the Governor will issue such
ordinances only with the approval of the State Council of Ministers, but under certain
circumstances, he can issue these ordinances only with the prior approval of the President of
India.

(1) If the ordinance deals with the subject regarding which laws can be introduced in the state
legislative only with the prior approval of the President.18

(2) If a bill has been reserved for the opinion of the President, an ordinance on the same
subject can be issued only with prior approval of the President.

(3) Ordinance on a subject on which a law passed by the state legislature is not valid without
the approval of the President.

A major anomaly according to K.N. Kabra, is that the term 'concurrent' is a misnomer if one
takes into account the overriding powers of the Union, particularly in view of the
concentration of fiscal and economic powers at the Union level and States' virtual
dependence on the Union in discharging only such functions which are left-over by and are
permitted and tolerated by the latter. This makes for excessive and dysfunctional
centralization, which is not conducive to socio-economic change and materialization of
democratic aspirations, which can be articulated, in our kind of uneven society in a
decentralized framework. He says the list of subjects over which lately the Panchayati Raj
institutions are enabled to have jurisdiction cannot become operationally relevant unless the
States are adequately empowered to make their choices in a relatively autonomous manner
with matching relative financial autonomy and are in a position to make resources available
to the PRIs in a coordinated manner. It is clear that though the Centre and the Sates have been
assigned independent legislative spheres the Centre reserves the right to interfere in the
sphere reserved for the Sates. The data compiled by the Sarkaria Commission revealed that in
some cases the Centre took as many as 6-12 years in assenting or withholding its assent to
18
Vijay Jaiswal, “Union and State legislature of India legislative power of the union and state government”
retrieved from < https://www.importantindia.com/2049/union-and-state-legislature-of-india/> last visited on 30th
November, 2023.

20
them. The Commission therefore recommended that as a matter of salutary convention the
President should dispose of a reference within a period of four month from the date on which
the reference is received by the Union government. If any clarification is required from the
concerned State government, this should be done within two months. Moreover, seeking
piecemeal clarification time and again should be avoided. But towards the end of the fourth
decade, the one-party dominance ended paving way for the coalition Governments at the
centre. For survival, the Government at the Centre is using co-operative federalism to fulfil
the wishes of the State Governments.19

SARKARIA COMMISSION RECOMMENDATIONS ON CENTRE-STATE

LEGISLATIVE RELATIONS

Whenever federalism operates, the functioning of two levels of government inevitably

generates problems and tension, which need to be attended to from time to time. The federal
problems experienced under the constitution were first examined by the Central Admin-
istrative Reforms Commission (1966-70). The ARC set up a study team under M.C. Setalvad
to undertake an in-depth examination of Centre-State problems in India. The Report of the
Setalvad study team on Centre-State relations (1967) is a most penetrating analysis of the
dynamics of a federal polity, and its observations have their relevance and freshness even
today. This is not to deny the importance of the Report of the Administrative Reforms
Commission on Centre-State Relations. The Sarkaria Commission on Centre-State Relations
was set up thirty-three years after the commencement of the constitution. Much water has
flowed under the Ganges since 1950 and changes of far-reaching nature have occurred during
this period covering a space of full one generation. The Sarkaria Commission Report on
Centre-State relations is the most comprehensive review of the Indian parliamentary federal
system since the adoption of the Constitution in 1950. Set up in 1983, the Sarkaria
Commission took five years to complete its deliberations and finalise its report. The report
was submitted in 1988 but action on it has been slow, even insignificant and tardy. It would
be more correct to say that the report is gathering dust. Given its wide terms of reference to
examine and review the working of the existing arrangements between the Union and States
in regard to powers, functions, and responsibilities in all spheres', the Commission has
surpassed in its broad sweep the earlier reviews done by the Administrative Reforms
Commission in 1970. If, 'we closely scrutinise its recommendations, the Commission makes

19
Ibid.

21
no major constitutional restructuring. However, it has preferred the continuation of the
existing constitutional arrangements though it has greatly stressed the need for a reorientation
on the part of the Central and State functionaries in working the federal system. The
Commission's recommended remedy for the present malaise in Centre-State relations is a
significant expansion of the areas and practice of consultation between the two levels of
government and an evolution of sound conventions of institutional and political behaviour on
the part of political rulers. For instance, before issuing direction to a state under Article 256
and 257, the Union should explore the possibilities of settling points of conflict by all other
available means. A direction under these provisions and application of sanction under Article
356 in the event of its non-compliance is only a measure of last resort.20

CONCLUSION

Legislation provides the framework for policy formation and arms the government with the
powers to implement the policy. Our constitution provides that every state shall have at least
one house, viz., the legislative assembly comprising 66 to 500 members chosen by direct
election on the basis of adult suffrage from territorial constituencies. Any state can create a
second house, viz. legislative council if it so desires. This can be done by a resolution of the
assembly passed by a special majority (i.e., a majority of total membership of the assembly
not being less than two-thirds of the members actually present and voting) followed by an
Act of Parliament. By the same process, the existing legislative council can be abolished also.
At present, only Bihar, Maharashtra, Karnataka, U.P. and J&K have two houses. The
Constitution, based on the principle of federalism with a strong and indestructible union, has
a scheme of distribution of legislative powers designed to blend the imperatives of diversity
with the drive of a common national endeavour. The Constitution adopts a three-fold
distribution of legislative powers by placing them in any of the three lists, namely, Union
List, State List and Concurrent List. The Union List contains subjects of national relevance
such as Defence, Atomic Energy, Foreign Affairs, War and Peace, Citizenship, Railways,
Income-tax, Excise etc., over which the Parliament has an exclusive authority to formulate
laws. The State List includes subjects of importance to the States such as public order, Police,
Local Government, Public health, Agriculture etc., over which the State legislature has an
exclusive authority. The Concurrent List containing subjects of mutual relevance over which
both Parliament and State legislatures can legislate but in case of conflict the Union law will
20
Supra Note at 1.

22
prevail. These include Criminal law and procedure, Family laws, Inter-State trade and
Commerce and Communication, Electricity, Newspapers and Books, Education, Stamp duties
and so on. Residual powers, like in Canada, but unlike the USA, Australia and Switzerland,
are vested in the Parliament Thus from the scheme of distribution of legislative powers
between the Union and the States it is quite evident that the framers have given more powers
to the Union Parliament as against the States. The States are not vested with exclusive
jurisdiction even over the subjects assigned to the States by the Constitution and thus it
makes the states to some extent subordinate to the Centre. Indeed, this is a clear departure
from the strict application of federal principle followed in America and Australia.

REFERENCES

BOOKS

1. Dr. J.N. Pandey, “Constitutional Law of India”, 44th Edition (2007)

2. T.K. Tope; “constitutional Law of India” P. 523 (1982 Ed)
3. M.P. Jain, “Indian Constitutional Law” 7th Edition 2014, Lexis Nexis.
4. V.N. Shukla’s,” The Constitution of India” (M.P. Singh Ed., 2001).
5. Pal Samaraditya, “India’s Constitution Origins and Evolution”, Volume 1, 2014,
Lexis Nexis.
WEBSITES

1. https://www.importantindia.com/2049/union-and-state-legislature-of-india/.
2. http://www.publishyourarticles.net/knowledge-hub/political-science/what-is-the-
legislative-relation-between-the-union-and-the-states-in-india/4612/.
3. http://www.yourarticlelibrary.com/india-2/legislative-relations-between-the-
center-and-the-states/45908.
4. http://www.infipark.com/articles/discuss-briefly-legislative-relations-union-states-
india/.
5. http://www.preservearticles.com/2011092814254/essay-on-the-legislative-
relations-between-union-and-states-of-india.html.

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