Pushpita Das, Intestate Border Disputes in the Northeast, IDSA, 12th June 2008.

https://idsa.in/idsastrategiccomments/InterstateBorderDisputesintheNortheast_PDas_120608

Kartik Nijhawan, 2 States and More: Inter State Disputes in India, Newslaundry.com, 30th
September 2014. https://www.newslaundry.com/2014/09/30/2-states-and-more-inter-state-
disputes-in-india

Government of Assam Border Protection and Development, Border Disputes.

https://bpdd.assam.gov.in/portlets/border-dispute

T. Anand, Dispute Resolution between Union and State, The HansIndia, 27th January 2017.
http://www.thehansindia.com/posts/index/Civil-Services/2017-01-27/Dispute-resolution-
between-Union-States/276367

Durga Das Basu, Introduction to the Constitution of India, LexisNexis, 22nd Edition, 2015.

M.P. Jain, Indian Constitutional Law, LexisNexis, 8th edition, 2018.

Prof (Dr.) Mahendra Pal Singh & V.N. Shukla, Constitution of India, Eastern Book Company,
12th Edition, 2017.

DISTRIBUTION OF LEGISLATIVE POWERS IN INDIA: AN ANALYSIS

Title of the Paper: - 5.2 Constitutional Law II

Submitted by: -

Aparajita jha
 (SF0116009)

B.A., LL.B. (Hons.), (Third Year)

Faculty In-Charge: - Mr. Himangshu Ranjan Nath

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

Date: - 02 November, 2018

TABLE OF CONTENTS
1. INTRODUCTION..................................................................................................................1

1.1. Research Questions.........................................................................................................2

1.2. Literature Review...........................................................................................................2

1.3. Scope and Objectives......................................................................................................2

1.4. Research Methodology...................................................................................................2

2. LEGISLATIVE RELATIONS IN INDIA............................................................................4

 2.1. With respect to territory.....................................................................................................4

2.1.1. Theory of Territorial Nexus....................................................................................5

2.2. With respect to Subject Matter......................................................................................6

2.3. Delegated Legislations....................................................................................................7

3. DOCTRINES REGARDING DISTRIBUTION OF LEGISLATIVE POWERS............9

3.1. Doctrine of Colorable Legislations................................................................................9

3.2. Doctrine of Pith and Substance....................................................................................10

3.3. Doctrine of Incidental and Ancillary Powers.............................................................11

3.4. Doctrine of Occupied Field...........................................................................................11

4. RESIDUARY POWERS......................................................................................................13

5. REPUGNANCY BETWEEN CENTRAL AND STATE LAWS.....................................15

6. CONCLUSION.....................................................................................................................20

BIBLIOGRAPHY

TABLE OF CASES
1. A.H. Wadia v. Income tax Commissioner, Bombay, AIR 1949 FC 18.
2. Ajay Kumar Banerjee v. Union of India, (1984) 5 SCC 127.
3. Baijnath v. State of Bihar, 1970 AIR 1436, 1970 SCR (2) 100.
4. Calcutta Gas Ltd. v. State of Bengal, AIR 1962 SC 1044.
5. Deep Chand v. State of Uttar Pradesh, 1959 AIR 648, 1959 SCR Supl. (2) 8.
6. K.C.G. Narayan Dev v. State of Orissa, AIR 1987 SC 2213.
7. Kavalapparakottarathilkochuni v. States of Madras & Kerala, AIR 1960 SC 1080.
8. Kochuni v. State of Madras, AIR 1960 SC 1080.
9. M. Karunanidhi v. Union of India, AIR 1952 SC 252.
10. Prem Chand Jain v. R.K. Chabra, (1984) 2 SCC 302.
11. Profulla  Kumar v. bank of Khulna, AIR 1946 SC 375.
12. R M D Charbaugwala v. State of Mysore, AIR 1962.
13. State of Bihar v. Kameshwar Singh, 1952 1 SCR 889
14. State of Bombay v. F.N. Balsara, AIR 1951 SC 318, 322.
15. State of Bombay v. R. M. D. C, AIR 1957 SC 699.
16. State of Kerala &Ors v. M/S. Mar AppraemKuriCo.Ltd. &Anr., CIVIL APPEAL NO.
6660 OF 2005
17. State of Rajasthan v. G. Chawla, AIR 1959.
18. Union of India v. H.S. Dhillon, AIR 1972 SC 1061.
19. Wallace v. Income-tax Commissioner, Bombay, AIR 1948 SC 118.
20. Zaverbhai v. State of Bombay, AIR 1954 SC 752.
 1. 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 Central Government and separate
states. A Federal Constitution establishes the dual polity with the union at the center 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. 2” In fact, the basic principle of federation is
that the legislative, executive and financial authority is divided between the center and state not
by any law passed by the center but by constitution itself. The nature of distribution of power
varies according to the local and political background of each country. 

Our Constitution makers followed the Canadian scheme opting for strong center. The
Government of India Act, 1935 introduced a scheme of three-fold distribution viz., Federal,
Provincial and Concurrent. 

The present Constitution, based on the principle of federalism with a strong and indestructible
union, adopts the method followed by the Government of India Act, 1935 and has a scheme of
two-fold distribution of legislative powers- with respect to territory; and with respect to subject
matter. With respect to subject matter, 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 Indian Constitution, based on the principle of federalism, has a scheme of two-fold
distribution of legislative powers- with respect to territory; and with respect to subject matter.
The constitutional provisions are spread out over Articles 245-254. Article 245 talks about
distribution of legislative power between Union and State with respect to territory. In terms of
Article 246, The VIIth Schedule of the constitution contains 3 lists, The Union List, State List and
Concurrent list.  However, in case of conflict between a central law and a state law on a subject
in concurrent list; the union law should prevail. Also, In India residuary powers belong to the
union government under article 248 and Entry 97 of Union list. This reflects the leaning of the
constitution makers towards a strong center. Though in normal times the distribution of powers

1
must be strictly maintained and neither the State nor the Centre can encroach upon the sphere
allotted to the other by the Constitution, yet in certain exceptional circumstances the powers of
the Union Parliament are extended over the subjects mentioned in the Slate List. For example, in
the national interests, during a Proclamation of Emergency, with the consent of the State, in case
of failure of constitutional machinery in a State etc. 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. Yet, the states are not made
subordinate units of the center. In normal times, they have been granted enough autonomy to act
as independent centers of authority.1
1.1. Research Questions
1. What are the legislative relations in India?
2. What are the different doctrines that govern the distribution of legislative powers in
India?
3. What is the concept of residuary powers?
4. What happens in case of repugnancy between central and state laws?

1.2. Literature Review

1. Durga Das Basu’sCommentary on The Constitution of India contains a classiccommentary of
the Constitution on the distribution of legislative powers in India. It provided the researcher
withimportant points relating to the distribution of legislative powers between state and the
union.These concerns have beenproved to be very essential in evaluating the executive
pronouncement of this issue.However, this book does not contain any analytical or comparative
framework on theConstitutional positional but still it proves to an essential asset in completing
theresearch article.2

2. M.P. Jain’s Indian Constitutional Law in its eight edition, is a thematic presentationof the
complex and multi-dimensional subject of Constitutional law in a lucid,comprehensive and
systematic manner. The book contains in-depth insights of theresearch topic. It entails all the
necessary points with its analysis relating to the distribution of the legislative powers in India. It
bestows the researcher immenseliterature dealing with the topic.3
1
“Legislative powers in India”, available at http://rjhssonline.com/HTMLPaper.aspx?
Journal=Research+Journal+of+Humanities+and+Social+Sciences%3BPID%3D2016-7-1-9.
2
Durga Das Basu, Commentary on The Constitution of India, 8th Ed. 2008, Lexis Nexis, Nagpur.
3
M.P. Jain, Indian Constitutional Law, 7th Ed. 2014, Lexis Nexis, Gurgaon.

2
3. Prof (Dr.) Mahendra Pal Singh, V.N. Shukla’s Constitution of India has proven itself,over
eleven editions, to be the most authoritative and respected academic book onIndian Constitution.
Its outstanding reputation has established it in the foremost rankof classic legal textbooks. It
helped in the research paper by giving a clear overviewof the concepts which are required in the
paper.4

1.3. Scope and Objectives

The scope of this project is to analyse the distribution of legislative powers in India.

The objective of this research project is: -

 To understand the legislative relations in India.

 To study about the different doctrines that govern the distribution of legislative powers
in India.
 To know about the concept of residuary powers.
 To understand the situation when there is repugnancy between the central and state laws.

1.4. Research Methodology

Approach to research

In this project, the researcher has adopted Doctrinal type of research. Doctrinal research is
essentially a library-based study, which means that the materials needed by a researcher may be
available in libraries, archives and other data-bases. The researcher has used computer laboratory
to get important data related to this topic. Help from various websites were also taken.

Sources of data collection

Data has been collected from secondary sources like web sources. No primary sources like
survey data or field data were collected by the researcher.

4
Prof (Dr.) Mahendra Pal Singh, V.N. Shukla’s Constitution of India, 13th Edition, Eastern Book Company,
Lucknow.

3
 2. LEGISLATIVE RELATIONS IN INDIA
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
center 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
center and state not by any law passed by the center but by constitution itself. This is what Indian
constitution does.

The constitution of India makes two-fold distribution of legislative powers5: -

a) With respect to territory;

b) With respect to subject matter.

2.1. With respect to territory

The legislative powers of Parliament and the state Legislatures are subject to the provisions of
the Constitution viz. (1) the Schemes of the distribution of powers. (2) Fundamental Rights. 5 (3)
Other provisions of the constitution. Article 245 talks about distribution of legislative power
between Union and State with respect to territory.

 Article 245 (1) provides that “subject to the provisions of the constitution, Parliament may make
laws for the whole or any part of the territory of India.” 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.”
5
“Legislative Relations between States and Union”, available at
http://www.grkarelawlibrary.yolasite.com/resources/FM-Jul14-CL-2.pdf.

4
As regards territory Article 245(1) provides that subject to the provisions of this constitution,
parliament may make laws for the whole or any part of the territory of India. 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, Bombay6, in this case, the Gwalior Government had loaned at
Gwalior large sums of money to a company in British India on the mortgage of debentures over
property in British India. The interest on loan was payable at Gwalior. It was taxed under the
Indian Income Tax Act. upholding the levy, the Supreme Court held:

“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. The legislation may
offend the rules of international law, may not be recognized by foreign courts, or there may be
practical difficulties in enforcing them but these are questions of policy with which the domestic
tribunals are concerned.”

2.1.1. Theory of Territorial Nexus

According to this Doctrine, The Legislature of a State may make laws for the whole or any part
of the State. This means that State Laws would be void if it has extra-territorial operation i.e. it is
applied to subjects or objects located outside the territory of the state.  7 However, there, is one
exception of the general rule. A State law of extra-territorial operation will be valid if there is
sufficient nexus between the object and the State.8 It is done by the application of “doctrine of
territorial nexus”. 

This doctrine was first evolved by the Privy Council in Wallace v. Income-tax Commissioner,
Bombay9. In this case, a company which was registered in England was a partner in the 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. it said
that derivation from British India of major part of its income for a year gave to company for that
year sufficient territorial connection to justify its being treated as at home in India for all
purposes of tax on its income for that year from whatever source income may be derived.
6
AIR 1949 FC 18.
7
Kochuniv. State of Madras, AIR 1960 SC 1080.
8
Kavalapparakottarathilkochuni v. States of Madras &Kerala, AIR 1960 SC 1080.
9
AIR 1948 SC 118.

5
The doctrine explains that it is not necessary that the object to which the law is applied should be
physically located within the boundaries of the state making the law. It is enough if there is
sufficient territorial nexus between the object and the state making the law. 

The Supreme applied the doctrine in State of Bombay v. R. M. D. C 10 In this case; the Bombay
State levied a tax on lotteries and prize competitions. The tax was extended to a newspaper
printed and published in Bangalore but had wide circulation in Bombay. The respondent
conducted the prize competitions through this paper. The Court held that there existed a
sufficient territorial nexus to enable the Bombay State to tax the newspaper. If there is sufficient
nexus between the person sought to be charged and the State seeking to tax him, the taxing
statute would be upheld. For the application of the doctrine, there must be:

 Connection between the State and the subject matter of law which must be real and not
illusory and;
 The liability sought to be imposed must be pertinent to that connection
 Whether there is sufficient connection is a question of fact and will be determined by
Courts in each accordingly.
  Parliamentary law having extra territorial Operation 

Union Parliament may make laws having extra territorial operation and such a law would not be
void on the ground of having extra territorial operation. 
2.2. With respect to Subject Matter
As already mentioned at the outset, a federal system postulates a distribution of powers between
the center and states. The nature of distribution varies according to the local and political
background in each country.

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 center. 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.
10
AIR 1957 SC 699.

6
The present constitution adopts the method followed by the Government of India Act. 1935. In
terms of Article 246 of the Indian constitution, there is a three-fold distribution of legislative
powers between Union and the State Governments. The VII th Schedule of the constitution
contains 3 lists in which the division of the powers between the Union and states are in three
Lists- the Union List, the state list and the Concurrent List.11

a) The Union List consists of 97 subjects. The subject mentioned in the union List is of
national importance, i.e., defense, foreign affairs, banking currency and coinage, union
duties and taxes.
b) The State List consists of 66 subjects. There are of a local importance, such as, public
order and police, local government, public health and sanitation, agriculture, forest,
fisheries, education, state taxes and duties. The states have exclusive power to make laws
on subjects mentioned in the State list.
c) The Concurrent List consists of 46 subjects. Both center and States can make laws on
the subject mentioned in the Concurrent List. But in case of conflict between the Central
and the State law on concurrent subjects, the Central law will prevail. The Concurrent
List is not found in any federal constitutions. The framers added this List to the
Constitution with a view to secure uniformity in the main principles of law throughout
the country. The Concurrent List was to serve as a device to avoid excessive rigidity to
two-list distribution. The Concurrent List thus, in the words of Pyle, is “a twilight zone,
as it were, for both the Union and the States are component to legislate in this field,
without coming into conflict.”

2.3. Delegated Legislations

Delegated or subordinate Legislation may be defined as rules of law made under the authority of
an Act of parliament. Although laws are to be made by the Legislatures, 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.

11
H.M. Seervai, “Constitutional Law of India” 460 (4th ed., 2009).

7
There are several factors that are responsible for the growth of delegated legislation. The practice
of delegating power to make subordinate legislation has greatly increased in the modern times
due to the following reasons12: -

1] Pressure on parliamentary time- parliament being a busy body has insufficient time to deal
adequately with the increasing mass of legislation necessary to regulate affairs of a complex
modern state.

2] Technicality of subject matter- Technicalities’ of modern legislation require expertise

knowledge of problems which is not expected of the legislators is the legislators in the legislature
which are composed of politicians.

3] Opportunity of subject matter- Delegated legislation is more flexible, easily amendable and
revocable than ordinary legislation. There is enough scope for experimentation.

4] Unforeseen contingencies- Subordinate legislation enables a Government to deal with

problems which could not been foreseen when the ‘enabling Act’ was passed and to act quickly
in an emergency.

5] Emergency powers- During the emergency quick and decisive action is necessary and at the
same time it is to be kept confidential. The legislature is not fit to serve this end and therefore the
executive is delegated the powers to make rules to deal with such situations.

The Indian constitution permits subordinate legislation by delegation. Art. 13 (3) provides that
“law” “includes any ordinance, order, bye-law, rule, regulation, notification, custom or usages
having in the territory of India the force of law. The theory of separation of power which is an
important feature of the American constitution is absent in India as well as England.

The limits of delegated legislation have been set out in the various decisions of the courts after
the new constitution came into force. It has been held that the legislature cannot delegate its
essential functions which consist in declaring the legislative policy and laying down the standard
which is to be enacted in to a rule of law with sufficient clearness, and what can be delegated is
the task of subordinate legislation which by very nature is ancillary to the statute which delegates

12
Supra note 2.

8
the power to make it effective. The courts cannot interfere in the discretion vested in the
legislature in determining the extent of the delegated power in particular case.13

3. DOCTRINES REGARDING DISTRIBUTION OF LEGISLATIVE POWERS

3.1. Doctrine of Colorable Legislations14

Many times, a legislature makes a law with respect to a matter outside its legislative competence
by giving to the legislation a different color so as to bring it within its competence. In such cases
the courts apply the doctrine of colorable legislation to determine the true nature, character, or
the real pith and substance of the law.  If after such investigation, it found that the pith and
substance of the law pertains to a matter outside the legislative competence of the legislature
enacting the law, then the law would be held invalid and the different color given to the law
would not protect it.

In K.C.G. Narayan Dev v. State of Orissa15, the Supreme Court explained the meaning and
scope of the doctrine of colorable 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 colourable legislation has
been applied in judicial pronouncements. The idea conveyed by the 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 pretence 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

13
Ajay Kumar Banerjee v. Union of India, (1984) 5 SCC 127, In re the Delhi Laws Act, 1912, AIR 1951 SC 332.
14
M. Laxmikant, “Indian Polity”, McGraw-Hill Education.
15
AIR 1987 SC 2213.

9
subject matter is substance which is beyond the whole doctrine of colourable 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 Singh 16 is the only case where a law has been declared invalid on
the ground of colorable 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.
3.2. Doctrine of Pith and Substance17

Many a times, a law passed by a legislature with respect to a matter, within its legislative
competence, encroaches upon another matter outside its competence. In such cases, question
with regard to constitutionality of law is to be determined by applying the doctrine of pith and
substance. The doctrine flows from the words ‘with respect to’ under Article 246.

Thus, 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 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 Khulna18. 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
16
1952 1 SCR 889.
17
Supra note 11.
18
AIR 1946 SC 375.

10
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 subjectand was valid even though it
trenched incidentally on “Promissory note”- a central subject.

In State of Bombay v. F.N. Balsara19, 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.
3.3. Doctrine of Incidental and Ancillary Powers20
The doctrine explains that when a Legislature is given plenary power to legislate on a particular
subject there must also be an implied power to make laws incidental to the exercise of such
power. Expression ‘incidental’ and 'ancillary' powers mean the powers which are required to be
exercised for the proper and effective exercise of legislative powers expressly conferred.

This principle is an addition to the doctrine of Pith and Substance. What it means is that the
power to legislate on a subject also includes the power to legislate on ancillary matters that are
reasonably connected to that subject. For example, the power to impose tax would include the
power to search and seizure to prevent the evasion of that tax. However, power relating to
banking cannot be extended to include power relating to non-banking entities. However, if a
subject is explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter.
For example, the power to tax is mentioned in specific entries in the lists and so the power to tax
cannot be claimed as ancillary to the power relating to any other entry of the lists. As held in the
case of State of Rajasthan v. G Chawla 21, the power to legislate on a topic includes the power to
legislate on an ancillary matter which can be said to be reasonably included in the topic.

19
AIR 1951 SC 318.
20
Supra note 11.
21
AIR 1959.

11
However, this does not mean that the scope of the power can be extended to any unreasonable
extent. Supreme Court has consistently cautioned against such extended construction. For
example, in R M D Charbaugwala v. State of Mysore 22, SC held that betting and gambling is a
state subject as mentioned in Entry 34 of State list but it does not include power to impose taxes
on betting and gambling because it exists as a separate item as Entry 62 in the same list.
3.4. Doctrine of Occupied Field23

Doctrine of Occupied Field simply refers to those legislative entries of State List, which are
expressly made ‘subject’ to a corresponding Entry in either the Union List or the Concurrent
List. Doctrine of Occupied Field has nothing to do with the conflict of laws between the state and
the centre. It is merely concerned with the ‘existence of legislative power’ whereas repugnance is
concerned with the ‘exercise of legislative power’ that is shown to exist.

Doctrine of Occupied Field comes into picture even before the Union Law or the State Law has
commenced. Under Article 254, as soon as a Union law receives assent of the President, it is said
to be ‘a law made by the Parliament’. Actual commencement of the law is not important for the
purpose of attracting doctrine of Occupied Field.

 In the case of State of Kerala &Ors v. M/S. Mar AppraemKuriCo.Ltd. &Anr. 24, the Centre
enacted the Chit Funds Act (Central Act). For the Law to become operative in any state, the
Central Government would have to issue a notification under Section 3 of the Central Act. In the
meantime, the State of Kerala enacted a separate act on ‘Chit Funds’ called as Kerala Chitties
Act. However, the Central Act did not get notified in Kerala resulting into a situation wherein
there was only one Act in force in the State of Kerala i.e. the Kerala Chitties Act. It was
contended that the Kerala Chitties Act was repugnant to the un-Notified Central Act. The
Supreme Court held that even an un-notified Central law attracts art 254.The reasoning given by
the Supreme Court was that the Central Enactment covered the entire ‘field’ of ‘Chit Funds’
under the Concurrent List. Even though the Central Chit Funds Act was not brought in force in
the State of Kerala, it is still a law ‘made’, which is alive as an existing law.The Court

22
AIR 1962.
23
Supra note 11.
24
CIVIL APPEAL NO. 6660 OF 2005.

12
emphasized that Article 254 uses the verb ‘made’ and the ‘making’. Thus, the ‘making’ of a law
is complete, even before that law is notified. The court also said that:

“The verb ‘make’ or the verb ‘made’ is equivalent to the expression ‘to legislate’. The
importance of this discussion is to show that the Constitution framers have deliberately used the
word ‘made’ or ‘make’ in the above Articles.Our Constitution gives supremacy to the
Parliament in the matter of making of the laws or legislating with respect to matters delineated
in the three Lists. The principle of supremacy of the Parliament, the distribution of legislative
powers, the principle of exhaustive enumeration of matters in the three Lists are all to be seen in
the context of making of laws and not in the context of commencement of the laws.”

Thus, the State Legislature is denuded of Legislative Competence as soon as the Parliament, by
enacting the Central Act, intended to occupy the entire field of ‘Chit Funds’ under the
Concurrent List.

4. 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 lays down that the 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. This reflects the leaning of the
constitution makers towards a strong centre.25

In Union of India v. H.S. Dhillon 26, 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.

25
Chapter 2, “Legislative Relations”.
26
AIR 1972 SC 1061.

13
Thus, the distribution of legislative powers by the constitution is heavily tilted towards the
centre.27

 Principle 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
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.

There is a 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. 28 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
has 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.29 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. 30
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.31 In Union of India v. H.S. Dhillon 32 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

27
Supra note 22.
28
V.N. Shukla, “Constitution of India”, 131 (M.P. Singh, 4th ed., 2008).
29
AIR 1962 SC 1044.
30
Prem Chand Jain V. R.K. Chabra, (1984) 2 SCC 302.
31
State of Bombay v. F.N. Balsara, AIR 1951 SC 318, 322.
32
AIR 1972 SC 1061.

14
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.

5. REPUGNANCY BETWEEN CENTRAL AND STATE LAWS

Article 254(1) says that if any provision of law made by the legislature of the state is repugnant
to ay provision of a law made by parliament which is competent to enact or to any provision of
the existing law with respect to one of the matters enumerated in the Concurrent List, then the
law made by the parliament, whether passed before or after the law made by the legislature of
such stage or, as the case may be, the existing law shall prevail and the law made by the
legislature of the state shall, to the extent of the repugnancy be void. Article 254(1) only applies
where there is inconsistency between a Central Law and a State Law relating to a subject
mentioned in the Concurrent List.33 But the question is how the repugnancy is to be
determined?34 In M. Karunanidhi v. Union of India 35, Fazal Ali, J., reviewed all its earlier
decisions and summarized the test of repugnancy. According to him a repugnancy would arise
between the two statutes in the following situation:

33
Supra note 25.
34
Supra note 1.
35
AIR 1952 SC 252.

15
 1. It must be shown that there is clear and direct inconsistency between the two enactments
(Central Act and State Act) which is irreconcilable, so that they cannot stand together or
operate in the same field.
2. There can be no repeal by implication unless the inconsistency appears on the face of the
two statutes.
3. Where the two statutes occupy a particular field, but there is room or possibility of both
the statutes operating in the same field without coming into collusion with each other, no
repugnancy results.
4. Where there is no inconsistency but a statute occupying the same field seeks to create
distinct and separate offences, no question of repugnancy arises and both the statutes
continue to operate in the same field.

The above rule of repugnancy is however, subject the exception provided in clause (2) of this
Article. According to clause (2) if a State law with respect to any of the matters enumerated in
the Concurrent list contains any provision repugnant to the provision of an earlier laws made by
parliament, or an existing law with respect of that matter, then the state law if it has been
reserved for the assent of the president and has received his assent, shall prevail notwithstanding
such repugnancy. But it would still be possible for the parliament under the provision of clause
(2) to override such a law by subsequently making a law on the same matter. If it makes such a
law the State Law would be void to the extent of repugnancy with the Union Law.36

In Zaverbhai v. State of Bombay37 parliament enacted the Essential Supplies Act,1946, for
regulating production and distribution of essential commodities. A contravention of any
provision of the above Act was punishable with imprisonment upto 3 years or fine or both. In
1947, considering the punishment inadequate, the Bombay Legislature passed an Act enhancing
the punishment provided under the Central Law. The Bombay Act received the assent of the
president and thus prevailed over the Central Law and become operative in Bombay. However,
in 1950 parliament amended its Act of 1946 and enhanced the punishment. It was held that as
both occupied the same field (enhanced punishment) the state law became void as being
repugnant to the Central law. Parliaments power to legislate on state subject38: -

36
“Separation of Power and the Indian Constitution”.
37
AIR 1954 SC 752.
38
J.N.Pandey, “Constitutional Law of India”, Central Law Agency, Allahabad, 2007.

16
1. Power of parliament to legislate in the national interest.- According to Article 249, if
Rajya Sabha passes a resolution supported by 2/3 of the members present and voting that
it is necessary or expedient in the national interest and parliament should make laws with
respect any matter enumerated within State Law, then it shall be lawful for the parliament
to make laws for the whole or any part of the territory of India with respect to that matter
so long as the resolution remains in force. Such a resolution normally lasts for a year; it
may be renewed as many times necessary but not exceeding a year at a time. These laws
of parliament will, however, cease to have effect on the expiration of the period of six
months after resolution has ceased to operate.
2. During a proclamation of Emergency: - According to Article 250 while the proclamation
of Emergency is in operation the parliament shall have power to make laws for the whole
or any part of the territory of India with respect to all matters in the state List. Such a law,
however, shall cease to have effect on the expiration of six months after the proclamation
of emergency has ceased to operate.
3. Parliaments power to legislate with the consent of the states: - According to Article 252 if
the legislature of two or more states pass resolution to the effect that it is desirable to
have a law passed by parliament on any matters in the State List, it shall be lawful for
parliament to make laws regulating that matter. Any other state may adopt such a law by
passing a resolution to that effect. Such Law can only be amended or repealed by the Act
of Parliament.
4. Parliaments power to legislate for giving effect to treaties and international agreements: -
Article 253 empowers the parliament to make any law for the whole or any part of the
territory of India for implementing treaties and international agreements and conventions.
In other words, the normal distribution of powers will not stand in the way of parliament
to pass a law for giving effect to an international obligation even though such law relates
to any of the in the State list. Art. 253 enables the Government of India to implement all
international obligations and commitments.
5. In case of failure of constitutional machinery in a state: - Under Article 256 parliament is
empowered to make laws with respect to all matters in the State List when the parliament
declares that the Government of the state cannot be carried on in accordance with the
provision of the constitution.

17
 Test of Repugnancy

The Supreme Court in Deep Chand v. State of Uttar Pradesh39, laid down the following tests for
determining the repugnancy between the Union Law and a State Law—(a) There may be
inconsistency in the actual terms of the two Statutes, i.e., when one says "do" and the other says
"do not".(b) When both the State and the Union Laws seek to exercise their powers over the
same subject-matter.(c) Though, there may be no direct conflict, a State Law will be inoperative
because the Union Law is intended to be a complete, exhaustive code.

In Baijnath v. State of Bihar 40, Parliament passed the Mines and Minerals (Regulation &
Development) Act, 1957 under Entry 54 of the Union List, declaring to take under Union's
control, the regulation of mines and the development of minerals to the extent provided in the
Act. In 1964, the Bihar Legislature enacted the Bihar Land Reforms (Amendment) Act, 1964
amending the Bihar Land Reforms Act, 1950.

In M. Karunanidhi v. Union of India41, the court summarized the test of repugnancy. According
to him a repugnancy would arise between the two statutes in the following situation:

1. It must be shown that there is clear and direct inconsistency between the two enactments
(Central Act and State Act) which is irreconcilable, so that they cannot stand together or operate
in the same field.

2. There can be no repeal by implication unless the inconsistency appears on the face of the two
statutes. 

3. Where the two statutes occupy a particular field, but there is room or possibility of both the
statutes operating in the same field without coming into collusion with each other, no
repugnancy results. 

4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct
and separate offences, no question of repugnancy arises and both the statutes continue to operate
in the same field.
39
1959 AIR 648, 1959 SCR Supl. (2) 8.
40
1970 AIR 1436, 1970 SCR (2) 100.
41
AIR 1979 SC 898.

18
 Exception (Article 254 (2))

The above rule of repugnancy is however, subject to the exception provided in clause (2) of this
Article. 42 But it would still be possible for the parliament under the provision of clause (2) to
override such a law by subsequently making a law on the same matter. If it makes such a law the
State Law would be void to the extent of repugnancy with the Union Law. 

In Zaverbhai v. State of Bombay43, parliament enacted the Essential Supplies Act, 1946, for
regulating production and distribution of essential commodities. A contravention of any
provision of the above Act was punishable with imprisonment upto 3 years or fine or both. In
1947, considering the punishment inadequate, the Bombay Legislature passed an Act enhancing
the punishment provided under the Central Law. The Bombay Act received the assent of the
president and thus prevailed over the Central Law and become operative in Bombay. However,
in 1950 parliament amended its Act of 1946 and enhanced the punishment. It was held that as
both occupied the same field (enhanced punishment) the state law became void as being
repugnant to the Central law.

Over and above this, the constitution visualizes five extraordinary situations, when the Union
Parliament will be competent to legislate on matters in the state list.

42
According to clause (2) “if a State law with respect to any of the matters enumerated in the Concurrent list
contains any provision repugnant to the provision of an earlier laws made by parliament, or an existing law with
respect of that matter, then the state law if it has been reserved for the assent of the president and has received his
assent, shall prevail notwithstanding such repugnancy.”.
43
AIR 1954 SC 752.

19
20
 6. CONCLUSION

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.

India is a quasi-federal state rather than a truly federal state. In this opinion, the Indian
constitution is a unitary constitution with subsidiary federal features, rather than a federal
constitution with subsidiary unitary features.The unitary or the centralizing tendency in India is
very strong. In all federations in the world today, the centralizing tendency is very marked. But
in India, this tendency is so strong, that the state governments constantly live in fear of central
intervention. There is hardly any meaningful area of state autonomy.

There are historic reasons why the founding fathers made India an over centralized union. With
its vast size and manifold diversities, to hold such a diverse polity under one-fold, it was deemed
necessary that the central government should be armed with enough powers to check divisive
tendencies. Yet, the states are not made subordinate units of the center. In normal times, they
have been granted enough autonomy to act as independent centers of authority.
The Sarkaria Commission has also recommended for a strong center which is necessary to
preserve the unity and integrity of the country. The Commission has favored the supremacy of
Parliament under Article 246 and 254. Prof. D.N. Banerji was right in his observation that: -

“India is a federation in peace times and a unitary state in time of emergency.”

21
22
 BIBLIOGRAPHY

BOOKS

H.M. Seervai, “Constitutional Law of India” 460 (4th ed., 2009).

V.N. Shukla, “Constitution of India”, 131 (M.P. Singh, 4th ed., 2008).

P.M Bakshi, “The Constitution of India”, Universal Publications, New Delhi, 2005.

J.N Pandey, “Constitutional Law of India”, Central Law Agency, Allahabad, 2007.

M. Laxmikant, “Indian Polity”, McGraw-Hill Education.

Durga Das Basu, Commentary on The Constitution of India, Lexis Nexis (8th Ed.2008).

M.P. Jain, Indian Constitutional Law, Lexis Nexis (7 th Ed. 2014).

Prof (Dr.) Mahendra Pal Singh, V.N. Shukla’s Constitution of India, Eastern BookCompany
(13thEdition).

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https://www.legalbites.in/distribution-powers-union-state/.

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STATUTES

The Constitution of India, 1950.