FEDERAL

STRUCTURE
Sit Dolor Amet
What is the Federal Structure
◦ A Federal Constitution establishes the dual polity with the Union at the Centre and the States at the Periphery, each endowed
with Sovereign Powers to be exercised in the field assigned to them respectively by the Constitution.
Relations between the States and the Union –
Distribution of Powers
◦ According to Art. 1(1) India is a union of states which means a federation of States, - may be, with peculiarities of its own.
◦ Every Federation requires a division of powers between the federal government and the States. In In the Indian Constitution,
this is effected by Part XI. While Arts. 245 to 255 deal with the distribution of legislative powers, the distribution of
administrative powers is dealt with in Articles 256.
Extent of laws made by Parliament and by the
Legislatures of States - Art. 245
◦ (1)Subject to the provisions of this Constitution, Parliament may make laws for the whole or
any part of the territory of India, and the Legislature of a State may make laws for the whole
or any part of the State.
◦ (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have
extraterritorial operation.
Legislative Powers - Distribution
◦ The Legislative powers have been distributed in a two-fold manner:
◦ (a) with respect to territory – as denoted by Art. 245
◦ (b) with respect to subject matter – a three fold distribution here – the 3 lists
Extent of Union’s Legislation
◦ Limitations on the ability of the Parliament to make laws
◦ Lists
◦ Fundamental Rights
◦ Art. 240 (2) - UT and Powers of the President
◦ Para 5(1) of 5th Schedule – Governor can amend/bar applicability of parliamentary laws to any scheduled area
Extra-Territorial Juridiction
◦ Meaning
◦ Local courts are not concerned with the rules of international law, that the local court judgments may not be recognised by foreign courts, or
there may be practical difficulties in enforcing them – these are questions of policy with which the domestic tribunals are concerned. A.H.
Wadia v. Income-Tax Commissioner, Bombay.
Territorial Nexus

◦ (Doctrine territorial nexus says that laws made by a state legislature are not applicable outside the state, except when there is a sufficient nexus
between the state and the object.)
◦ Case: Wallace v. Income-tax Commissioner, Bombay,
◦ Facts: A company which was registered in England was a partner in a firm in India, The Indian Income-tax Authorities sought to tax the entire
income made by the company. The Privy Council applied the doctrine of territorial nexus and held the levy of tax valid.
Plenary Power
◦ - Meaning – Absolute Power
◦ - Only limitations – Legislative Competence and other constitutional limitations.
◦ - Can pass acts that are prospective and retrospective.
◦ - It cannot be declared unconstitutional easily
◦ - However, judicial decisions cannot be retrospectively invalidated.
◦ - Also, Arbitrariness in law making will also fall out of the ambit of the plenary powers of the legislature.
Delegated/Subordinate Legislation
◦ Rules of law made under the authority of an Act of Parliament. Although, laws are to be made by the Legilature, but the
Legislature may by statute delegate its power to other persons or bodies. Such a statute is commonly known as “the enabling
Act” and lays down the broad principles and leaves the detailed rules to be provided by regulations made by a Minister or
other persons. Delegated Legislation exists in the form of rules, regulations, orders and Bye-laws.
◦ Delegated Legislation is growing because:
◦ There is pressure on Parliamentary Time
◦ Technicality of the Subject Matter
◦ Opportunity for Experimentation
◦ Unforeseen Contingencies
◦ Emergency Powers
List 1 -Union List
◦ Includes subjects which the Union shall have exclusive powers of legislation, including 99 items or subjects. These include
defence, foreign affairs, banks, currency and coinage, Union Duties and taxes etc.
List 2 – State List
It comprises of 61 items or entries over which the State Legislature shall have exclusive power of legislation, such as public
order and police, local government, public health and sanitation, agriculture, forests and fisheries, education, State taxes and
duties and the like.
List 3 – Concurrent List
◦ Gives concurrent powers to the Union and State legislatures over 52 items, such as Criminal Law and procedure, Civil
Procedure, marriage, contracts, torts, trusts, welfare of labour, social insurance, economic and social planning.
Union Only Power
◦ The below articles of the Constitution response certain specific powers only in the Union, i.e. the parliament.
◦ Article 2 – Admission or Establishment of New States
◦ Article 3 – Formation of new states, alteration of areas, boundaries or names of existing states
◦ Article 11 – Regulating Right of Citizenship by Law
◦ Article 247 – Power of Parliament to provide for establishment of certain additional courts
◦ Article 262 – Adjudication of Disputes relating to waters of inter-state rivers or river valleys
◦ Article 343 – Official Language of the Union
◦ Article 348 – Language to be used in Supreme Court, High Courts and for Acts, Bills Etc.
Powers – Residual, Overlapping and Clashing
◦ Residual: Subjects and areas not specifically mentioned in any of the three lists rest with the Union. (Art. 248)
◦ Overlapping: In case of overlapping Govt. Of India Act, 1935 gives prominence to the Union made laws. The State has the
right to make laws on the State list because the Union has the right to make laws regarding the Union and the Concurrent List.