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Legislative Relations Between Union And States

Article 245 to 255 deal with legislative relations with the Union and States. Parliament can legislate for whole of territory of India or any part thereof while a State Legislature can legislate for whole of territory of State or a part thereof. The legislative powers are divided in three lists i.e. Union List, State List and Concurrent List. But a centralizing tendency is discernable in scheme of legislative relations. Even on the subjects   belonging to State List the Parliament can make law in National Interest.  In case of matters belonging to concurrent lists laws made by Parliament have primacy over laws made by State Legislature.  Further during proclamation of emergency under Article 352 or President Rule under Article 356, Parliament can legislate on matters belonging to State List.

What are extent of powers of Parliament and State Legislature to make laws ?

Article 245 empowers Parliament to make law for the whole or any part of the territory of India and State Legislature to make laws for whole or any part of the state. No law made by the Parliament is deemed to be invalid on the ground that it would have extra territorial operations.

What is extra territorial legislation ?

Power of extra – territorial legislation has been given conferred on the Parliament only. Extra territorial legislation enacted by the State will also be valid if the legislation has sufficient territorial nexus. Sufficiency of territorial connection involves two elements. Firstly there connection must be real and not illusory and Secondly liability sought to be imposed must be pertinent to that connection.

What is delegated legislation ?

To legislate is a function of legislature. But due to myriad of reasons i.e. time constraints, technical nature etc  Legislature delegates its power to executive to make rules, regulations, orders etc. But there is a limit beyond which delegation cannot be done. In  Delhi Laws Act, 1912  Re (AIR 1951SC 332) it has been held that essential legislative power cannot be delegated.

How legislative powers are distributed between Union and States ?

Article 246 provides for respective powers of Parliament and State Legislature to make laws.

Parliament has exclusive power to make laws for matters enumerated in the Union List of Seventh Schedule. Parliament and State Legislature both have powers to make laws in matters enumerated in concurrent list of the Seventh Schedule. State Legislature has exclusive power to make laws for matters enumerated in State List of  Seventh Schedule. Parliament has power to make laws for any matter for territories not included in state although such matter may be included in state list.

Although there are separate State List and Union list there are overlapping of laws made by Union and State. The Courts have developed following principles of interpretation.

Doctrine of Pith and Substance

Doctrine of pith and substance is used to test the competence of legislature to make laws. Sometimes law enacted by a legislature on a matter falling in one list  overlaps with another falling in another list, in such circumstances doctrine  of pith and substance is applied to test what is true character and nature of legislation. If it is found that the matter is in substance under competence of a legislature, it is upheld in entirety even if it touches upon matters beyond its competence.

Plenary Power

The power of a legislature to enact legislation within its legislative competence is plenary. The Legislature is fully competent to make laws on the subject assigned to it.

Prospective or Retrospective Legislation

The power to make law includes power to make laws prospectively or retrospectively. There certain limits on making retrospective laws.  Article 20 (1) prohibits creation of offences and enhancement of penalty for offences retrospectively.

Harmonious Interpretation

Entries in the different lists may overlap as such the harmonious interpretation has to be done

Ancillary Legislation

Power to legislate in an entry carries with it power to legislate on an ancillary manner which can be said to be reasonably included in the power given.

Colorable Legislation

Constitution distributes the legislative powers between Union and State. Transgression of legislative powers can be patent, manifest and direct or it may be disguised, covert and indirect. When transgression is disguised, covert and indirect it is called colorable exercise of power. If a legislation is outcome of colorable exercise of power, such legislation can be invalidated.

What is Goods and Services Tax ? (Article 246 A)

246 A  has been introduced vide 101st Amendment. Article 246 A provides concurrent powers to Union and State Legislature over goods and services tax. Parliament has exclusive power to make laws over goods and services tax in respect of interstate supply of goods or services or both.

What are residuary powers ? (Article 248)

Residuary powers of legislation lies with the Parliament. Article 248 provides that Parliament has exclusive power to make laws with respect to any matter not enumerated in the Concurrent List or State List.

When can Parliament legislate on State List in National Interest ? (Article 249)

Power to legislate on state list lies exclusively with the State Legislature. But Parliament can make laws in national interest on matters belonging to state list in certain circumstances.

The Rajya Sabha has to pass a resolution with two thirds of members present and voting that it is necessary or expedient in national interest that Parliament should make laws in respect of goods and services tax or any matters falling under State List. After passing of such Resolution, Parliament can make laws for the whole or any part of the territory of India.  

Such resolution will remain in force as specified but will not exceed one year. But if Rajay Sabha approves for continuance of resolution it will continue for a further period of one year.

Any such law will cease to have effect on expiration of six months after the resolution has ceased to have effect.

What are powers of the Parliament to legislate during emergency ? (Article 250)

During operation of Proclamation of Emergency, Parliament has power to make laws for whole or any part of territory of India in respect of goods and services tax or any matter belonging to State List.  Such law will cease to have effect on expiration of period of six months after proclamation has ceased to operate.

What will happen in case of inconsistency between laws made by Parliament under Article 249 and 250 and laws made by State Legislature on the same subject ? (Article 251)

Article 249 and Article 250 empowers the Parliament to make laws in certain circumstances but it does not restrict power of State Legislature to make laws. But if there is any inconsistency between laws made by State Legislature and laws made by Parliament whether made after or before laws made by State Legislature, the laws made by Parliament will prevail. Laws made by State Legislature to the extent of repugnancy will be inoperative so long as laws made by Parliament are in force.

When can Parliament legislate for two or more states ? (Article 252)

Two or more State Legislatures by passing resolutions can empower Parliament to make laws on matters for which Parliament is not otherwise  competent to make laws. Other states can also adopt such laws by passing resolution. Any such act can be amended or repealed by Parliament but can not be amended or repealed by State Legislature.

What are powers of Parliament to legislate to give effect to international agreements ? (Article 253)

Parliament has exclusive power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

What will happen in case of inconsistency of laws enacted by Parliament and State Legislature on matters enumerated in concurrent list ? (Article 254)

If any provision of law made by State Legislature is repugnant to any provision made by Parliament where parliament is competent to enact or to any provision of an existing law with respect to matters enumerated in concurrent list, laws made by Parliament will prevail and laws made by State Legislature will be void to the extent of repugnancy.

Where any law made on matter enumerated in concurrent list  by State Legislature is repugnant with existing law made by Parliament and such laws made by State Legislature has been reserved by Governor for assent of President and received assent of the President, law made by State Legislature will prevail.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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