The idea or the principle of federalism acts as a backbone for the Constitution of India. Federalism means a system of government which outlines the distribution of power between the central government and other units.The Indian Constitution's idea of federalism divides law-making powers between two levels of government.
One based on territory and the other based on the subject matter. Under the Indian Constitution, the division of legislative power among the union and the state is explained under Article 245 to article 254.
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Categories of Legislative Power under the Constitution of India
- Territorial
- Subject matter
The Constitution structures the legislative power in terms of subject matter under Article 246 of constitution, through a three-list system, which differentiates the subjects under three distinct lists: the Union List, the State List, and the Concurrent List. This structure clearly defines the areas that come under the central government or state governments' legislation or both, thus defining their responsibilities and powers.
Territorial Basis
Article 245 defines the distribution of legislative powers on a territorial basis. The power of a State Legislature to enact laws for its own state is provided for under Article 245(1) of the Indian Constitution. However, the state cannot enact laws that will be applicable outside territorial boundaries (extra-territorial) unless there is an evident relationship or nexus with the subject-matter of the law, though the subject-matter may lie outside the territorial boundaries of the state.
The Supreme Court applied the territorial nexus doctrine in State of Bombay v. R.M.D.C. Bombay State had imposed a tax on lotteries and prize competitions. This tax was levied on a newspaper printed and published in Bangalore with a large readership in Bombay. The respondent ran the prize competitions through this newspaper. The Court held that there was enough contact between the state and the newspaper, so that Bombay could impose the tax. According to the Court, a taxing statute would qualify if:
- There must be a bonafide connection between the state and the subject of the law.
A tax or liability to be levied must be relevant to that relationship.
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- Whether such a relationship exists or not is purely a matter of fact and would depend on courts' discretion to decide each case.
This piece tries to explain and look into the subject matter based distribution under Article 246 of the Indian Constitution
Distribution of legislative powers based on subject matter
The nature of distribution of legislative power has been different and varies according to local and political background of the country .The sovereign states in America disagreed with the idea of excessive control in the hands of the centre so they decided to distribute only matters of common interest to the centre. Of course, the Canadians had known about the problems in the United States which later resulted in the Civil War of 1891.
Well aware of the problems created by a weak central government, they opted for a strong central authority. The drafters of the Indian Constitution tried to adopt Canada’s system by opting for a strong centre but in order to ensure the balance of powers, they brought in a new list, Concurrent list.
With respect to subject matter of legislative bodies, the Constitution follows the Government of India Act, 1935, and divides the powers between the Union and the States into three lists: (i) the Union List, (ii) the State List, and (iii) the Concurrent List.
The Indian Constitution tried to create 3 different channels for proper functioning of legislative bodies.
- An exclusive area for centre
- Separate area for state
- And where legislation of both Centre and State is needed, a shared concurrent area (which will however be influenced by Centre’s supremacy).
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EXPLAINING ARTICLE 246
Article 246 should be read along with the seventh Schedule of the Constitution . While the Article tries to elaborate on which body is responsible, the schedule provides additional details with the help of three lists on what subjects different bodies have authority to make law on different matters.
- Under Article 246(1), the field of making laws with respect to matters falling under the Union List (List I of the Seventh Schedule) lies only in the hands of Parliament. It includes such matters as uniformity all over the country, to which the legislation of states cannot be applied. All subjects falling under the Union List are beyond the power of states.
- Similarly, Article 246(3) provides exclusive right of legislation to the states for subjects in the State List or List II of the Seventh Schedule. Subjects which vary from state to state will be taken care by the respective state government. The Centre cannot enact a law for the subject that falls within the State List.
- Under provision 246(2), the constitution further states that with regards to state's legislative powers, the state can also make law on subjects which are mentioned in List III of the seventh schedule but whenever there is conflict of laws made by the Central and the State government, the Central Government law will prevail over the State Government.
UNDERSTANDING THE THREE LISTS
UNION LIST
The Union List has 97 items- all of which are of national importance. Only the Union Parliament can make law on these subjects. These include defence, the armed forces, arms and ammunition, atomic energy, foreign affairs, war and peace, citizenship, extradition, railways, shipping and navigation, air travel, posts and telegraphs, telephones, broadcasting, currency, foreign trade, inter-state trade and commerce, banking, insurance, industry control, the regulation and development of mines, minerals, and oil resources, elections, auditing government accounts, and the structure of the Supreme Court, High Courts, and the Union Public Service Commission.
The taxation issues range from income tax, customs duties, excise duties, corporation tax and taxes on asset values to estate duty and terminal taxes, fall within the jurisdiction of the Union Parliament
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STATE LIST
The State List deals with the exclusive authority of the states to make laws about 65 subjects —These are mainly of local interest: maintenance of law and order, management of police, public health, transportation, policies with land, electricity within the state, and village administration—all these matters, only the state legislatures can pass laws.
CONCURRENT LIST
The Concurrent List empowers both the Union and the state governments to make laws on 47 subjects. Some of these areas are marriage and divorce, transfer of properties other than agricultural lands, education, contracts, bankruptcy, civil procedure, contempt of court, food adulteration, drugs and poisons, economic planning, labour welfare, electricity, and newspapers and printing presses.
In case of a conflict between central and state laws on the same subject in the Concurrent List, the central law prevails. With the President's approval, a state law on the same subject can override the central law.
RESIDUARY SUBJECT
Article 248 gives Parliament the authority over all remaining or "residuary" powers. This means that Parliament has the exclusive right to make laws on any topic not listed in the State or Concurrent Lists. Entry 97 of the Union List also supports this by stating that Parliament can make laws on any matter, including taxes, not covered in the other two lists. This approach shows that the Constitution's creators favoured a strong central government.
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DOCTRINES AND JUDICIAL INTERPRETATIONS
The system of distribution of powers given by the Constitution of India makes a clear list of powers between the centre and the state, However, it is impossible to determine and clearly make boundaries regarding subjects to be dealt by centre and state separately.
It is practically not possible to limit each item in a List to make sure that it does not overlap with other items. This usually raises the question whether a particular subject falls under the authority of the central or state government. In India's federal system, it is the duty of the Supreme Court to decide such matters. The Court has provided some certain principles to interpret the powers of the Union and States under the three lists in order to address such issues.
UNION LIST OVER STATE LIST AND CONCURRENT LIST
Article 246 (1) begins with the words "notwithstanding anything in clauses (2) and (3)”, which puts it under the category of non-obstante clause. On reading the article further, clause (3) starts with the words "subject to clauses (1) and (2)", which very clearly portrays that Union List is above both State List as well as Concurrent List and the Concurrent List is above the State List. But if there exists any overlap between Union List and Concurrent Lists, then the Union List will prevail. The same has remained applicable in case of any kind of conflict happening between Concurrent List and State List, then the Concurrent List will prevail.
DOCTRINE OF HARMONIOUS CONSTRUCTION
Harmonious construction is a legal doctrine that helps in resolving conflicts between different laws or provisions.It ensures laws are interpreted correctly so they can exist without conflicting. It makes sure both Union and State powers are respected by giving room for either of them to operate in their particular areas.
Under this principle of harmonious construction the Supreme Court, in case K. S. Puttaswamy v. Union of India (2017), observed that The Union List (Entries 77 and 78) gives Parliament the power to make laws about how the Supreme Court and High Courts are set up, organised, and what powers they have. The Concurrent List (Entry 26) allows both Parliament and state legislatures to make laws about these courts as well.. On the other hand, Entry 26 of the Concurrent List has only included regulation of professions and district or subordinate courts.
This is perfectly in harmony as two sets of legislation, which coexist. Under Entry 26 states are allowed to legislate concerning district courts but are barred from legislating regarding higher judiciary because that falls under the purview of the Union. The court ensured that the Parliament has the main authority over laws related to the higher courts, like the Supreme Court and High Courts, while states can manage the lower courts. This avoids confusion by making sure both can work together smoothly.
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DOCTRINE OF PITH AND SUBSTANCE
The Doctrine of Pith and Substance is used when a law is challenged, especially if it seems to cover topics from different legislative lists and touches the subject matters in other lists. It helps determine if the law's main purpose falls within the legislature’s authority. Basically, it helps in finding whether the core purpose of the law falls under the authority of the legislature that made it. If the substance of the law is related to a subject matter upon which the legislature is authorised to enact laws, then the law is valid although it is slightly outside its jurisdiction. Legislative subjects often overlap. However, small overlaps are usually allowed.
In Prafulla Kumar v. Bank of Commerce, the Bengal Money Lenders' Act, 1946, which limited how much interest moneylenders could charge, was challenged because it seemed to involve "promissory notes," a central issue for the central government. However, the Privy Council found that the main focus of the Act was on money lending, which is a state matter, so it was valid.
Another case which highlighted the application of the act was in State of Bombay v. F.N. Balsara. In this case, the Bombay Prohibition Act, 1949, was challenged to determine if the act fell under state powers to regulate "intoxicating liquors" or central powers regarding "import and export of liquors." The argument was that the Act would affect imports by banning the sale and transport of liquor. However, the Court applied the Doctrine of Pith and Substance and concluded that the main focus of the Act was to control liquor within the state, making it valid, even if it slightly impacted a central subject.
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DOCTRINE OF COLORABLE LEGISLATION
The Doctrine of Colorable Legislation is applied when a legislative body attempts to bring a law on a subject matter beyond its authority by making it appear as if it comes under their legislative power. Courts look at the real intent of a law. If the law is about something the legislature has no authority over, it will be declared invalid, no matter how it's disguised.
The Doctrine of colorable legislation and Doctrine of pith and substance act like two sides of the same coin. The Doctrine of Pith and Substance allows looking at the main purpose of a law to justify its authority, while the Doctrine of Colorable Legislation is used to stop legislatures from overstepping their powers.
In State of Bihar v. Kameshwar Singh, the Bihar Land Reforms Act, 1950 was declared to be a case of colorable legislation. On its face, it seemed to enact principles governing the grounds which formed the basis of compensation determination.
But in reality, it gave no workable guidelines about payment. In this case, the real intention behind the law was to deprive the petitioner of compensation. It was, therefore, essentially an indirect attempt at taking away one's property without offering fair compensation. It was the only case in which a law was declared invalid on the grounds of the doctrine of colorable legislation.
This article aimed to cover all aspects with respect to article 246 of the constitution. It started with a brief introduction explaining the reason for article 246 and how it plays an important role in the constitution.
It then covered the provisions analysing the meaning in detail. The article then continued to explore the doctrines which are used in order to understand the different interpretations of the constitutional article 246 with the help of case laws. It’s hard to fully separate powers because the key is for decision-making bodies to work together. They need to focus on efficient administration rather than just having exclusive control.
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FAQ
Question: What is the difference between article 245 and article 246?
Answer : Article 245 deals with the power of Parliament and State legislatures to enact laws for their respective territories. Article 246 specifies the lawmaking authority under Union, State, and Concurrent Lists.
Question: What is Article 246 and 246A?
Answer: Article 246 enumerates and distributes the Parliament's legislation powers to state legislatures. Article 246A allows both Parliament and the states to exclusively make laws in the subject matter of Goods and Service Tax (GST)
Question: What are the doctrines under Article 246?
Answer: The important doctrines are Doctrine of Pith and Substance (emphasise true nature of laws) and Doctrine of Harmonious construction (Laws contradicting each other must be interpreted harmoniously in a way that they can co exist)
Question: What are residuary subjects?
Answer: Article 248 gives Parliament the authority over all remaining or "residuary" powers. This means that it contains any topic not listed in the State or Concurrent Lists and Parliament has the exclusive right to make laws on these subjects.
REFERENCES
- Legislative Relations [Article (245 - 255)]
- Distribution of Legislative Powers under the Indian Constitution
- Union-State relations: legislative, administrative and financial relations
- Constitution of India
- Article 246 of Constitution
- State of Bombay vs. R.M.D.C (1957)
Written by Logita Chandar
Logita is law student at SVKM Narsee Monjee Institute of Management Studies (NMIMS).
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Further Reading
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