Federal Relations

Project Topic:
“LEGISLATIVE RELATIONS BETWEEN THE UNION AND
THE STATE”

FACULTY OF LAW
BANARAS HINDU UNIVERSITY
VARANASI

Submitted by
Adarsh Tripathi
Roll No. – 20425LLM002

Submitted to
Mr. Ali Mehdi
Professor of Law
Contents
ACKNOWLEDGMENT...................................................................................................................................3
RESEARCH METHODOLOGY.........................................................................................................................5
AIMS AND OBJECTIVES............................................................................................................................5
LIMITATIONS:..........................................................................................................................................5
RESEARCH METHODOLOGY.....................................................................................................................5
SOURCES OF DATA:..................................................................................................................................5
Primary Sources –................................................................................................................................5
Secondary Sources...................................................................................................................................5
SURVEY OF DATA:......................................................................................Error! Bookmark not defined.
INTRODUCTION...........................................................................................................................................6
CHAPTER-1 LEGISLATIVE RELATION.............................................................................................................8
1.2 Territorial Jurisdiction........................................................................................................................8
1.2 Distribution of Legislative Powers (subject matter)..........................................................................9
1.3 THREE FOLD DISTRIBUTION OF LEGISLATIVE POWER-.....................................................................10
.CHAPTER 2. SUBJECT MATTER..................................................................................................................14
2.1 THE RESIDUARY POWERS-...............................................................................................................14
2.2 PRINCIPLES OF INTERPRETATION OF LISTS......................................................................................15
2.2.1 Pith and substance-..................................................................................................................16
2.2.2 Colorable Legislation.................................................................................................................17
CHAPTER-3 PREDOMINANCE OF PARLIAMENT..........................................................................................18
3.1 . Power of Parliament to legislate in the National Interest..............................................................18
3. 2. During Proclamation of Emergency...............................................................................................19
3.3. Agreement between States............................................................................................................19
3.4. For giving effect to International agreements................................................................................19
3.5. Avoiding inconsistency...................................................................................................................19
3.6. Accession of new States.................................................................................................................20
3.7. In case of failure of Constitutional machinery in the States...........................................................20
CHAPTER 4. REPUGNANCY BETWEEN A CENTRAL LAW AND A STATE LAW...............................................21

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 4.1 How the Repugnancy of Central and State Law is removed-...........................................................23
CHAPTER- 5 CONTROL OVER THE ORDINANCE MAKING POWER OF THE GOVERNOR..............................25
5.1 Sarkaria commission recommendations on centre-state legislative relations.................................26
CONCLUSION.............................................................................................................................................28
BIBLIOGRAPHY...........................................................................................................................................31

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ACKNOWLEDGMENT

I take this opportunity to express our humble gratitude and personal regards to faculty of
FEDERAL RELATIONS for inspiring us and guiding us during the course of this project
work and also for his cooperation and guidance from time to time during the course of
this project work on the topic

The Present Project Report is attempted to explain for the benefit of the general readers.
Dealing with this topic in a material form has naturally involved a great deal of
compression and omission of many matters of interest. I hope that my selection of
material will give a fair outline of the general picture.

“LEGISLATIVE RELATIONS BETWEEN THE UNION AND THE STATES”

“I EXPRESS OUR GRATITUDE TO THE FACULTY OF, ‘FEDERAL RELATIONS’’ FOR THE
CONCEPTS GIVEN BY HIM IN THE SUBJECT WHICH HAS BEEN THE BASE FOR THIS SMALL

PIECE OF WORK.”

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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.

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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 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

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 March,2018.

6|Page
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

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CHAPTER-1 LEGISLATIVE RELATION

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

1.2 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).

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 7th
April,2018

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(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 of
the specified areas to which the indiscriminate application of the general laws might cause
hardship or other injurious consequences.5

1.2 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 includes 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.

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_DCsU
QFggzMAE&url=http%3A%2F%2Fwww.grkarelawlibrary.yolasite.com%2Fresources%2FFM-Jul14-CL-2-
Subhash.pdf&usg=AOvVaw2nRdVzs5cG0p2fzaihEVrF> last visited on 8th April,2018

9|Page
1.3 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 defence, 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 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

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 8th April, 2018

10 | P a g e
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

(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

7
Ibid

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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.

(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

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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

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 9th April,2018.

13 | P a g e
characterised by single party dominance at the centre and the States and it was more of
centralisation in the relations.

CHAPTER 2. 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
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 ther 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.

2.1 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

14 | P a g e
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

2.2 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
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.

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=0ahUKEwib17b1ls3aAhULpo8KHSntAKAQ
Fgg3MAE&url=http%3A%2F%2Fwww.grkarelawlibrary.yolasite.com%2Fresources%2FFM-Jul14-CL-2-
Aleesha.pdf&usg=AOvVaw2bS7JkbnuuAhtHKDLe_hO8> last visited on 15th April,2018

15 | P a g e
In Union of india v H.S. Dhillon 10, 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.

2.2.1 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 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
10
AIR 1953 SC 375
11
AIR 1947 PC 60
12
AIR 1951 SC 318; State of Rajasthan v. G. Chawla, AIR 1959 SC 544

16 | P a g e
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.

2.2.2 Colorable Legislation- in K.C.G. Narayan Dev v. State of Orissa13 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
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 14 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

13
AIR 1953 SC 375
14
AIR 952 SC 252

17 | P a g e
compensation yet in reality it did not lay down any such principle and thus indirectly sought to
deprive the petitioner of any compensation.

CHAPTER-3 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

3.1 . 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
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 16th April,2018

18 | P a g e
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.

3. 2. 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).

3.3. 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.

3.4. 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 otherwords, the normal
distribution of powers will not stand in the way of Parliament to enact legislation for carrying out
its International obligations, even through such legislation may be necessary in relation to a state
subject (Art. 253).

3.5. 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.

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3.6. Accession of new States
Parliament by law can accede new States into the Indian Union. It can also make laws to this
effect.16

3.7. 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 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

16
Ibid
17
Ibid

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CHAPTER 4. REPUGNANCY BETWEEN A CENTRAL LAW
AND A STATE LAW

ARTICLE 254- 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. But the question is how the repugnancy is
to be determined? In M. Karunanidhi v. union of India18. 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:

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.

18
AIR 1952 SC 252

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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 t 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 t 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.19

In Zaverbhai v. State of Bombay20 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 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.

In Deep Chand Vs. Slate of U.P.,A.I.R. 1959 the validity Transport Service (Development) Act
was involved. By this Act the state Government was authorised to make the Scheme for
nationalisation of for the Motor Transport in the State. The law was necessitated because Motor
Vehicles Act, 1939, did not contain any provision nationalisation of Motor Transport Services.
Later on, in 1956 the Parliament with a view to introduce a uniform law amended the motor

19
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_DCsU
QFggzMAE&url=http%3A%2F%2Fwww.grkarelawlibrary.yolasite.com%2Fresources%2FFM-Jul14-CL-2-
Subhash.pdf&usg=AOvVaw2nRdVzs5cG0p2fzaihEVrF> last visited on 12th April,2018
20
AIR 1954 SC 752

22 | P a g e
Vehicles Act, 1939, and added a new provision enabling the Government to frame rules of
nationalisation of Motor Transport. Court held that since both the Union Law and the State
occupied the same field, the State Law was void to the extent of repugnancy to the Union Law.

4.1 How the Repugnancy of Central and State Law is removed-

Although the Centre and States cannot make laws outside their allotted subjects yet no scientific
division is possible and very frequently a question arises as to whether a particular subject falls
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 —

1. Predominance of the Union List —The opening words ofArt. 246 (i) “notwithstanding
anything contained in Cl. (2) and (3)” and the opening words ofCl (3) “subject to Cl. (1) & (2)”
expressly secure the predominance of the Union List over the State List and the Concurrent List
and that of flue Concurrent List over the State List. Thus, in the case of overlapping between the
Union and the State List it is the Union List which is to prevail over the State List. 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.21

2. 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. Vs. State
of West Bengal, A.I.R. 1962 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 contrued 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, fo reconcile

21
Arun Chauhan, “legislative relations between the Union and the States in India” retrieved from <
http://www.infipark.com/articles/discuss-briefly-legislative-relations-union-states-india/> last visited on 14th
April,2018

23 | P a g e
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 Vs. H. S. Dhillon,A.I.R. 1972 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 whether the mailer fell in List II (State List) or List III (Concurrent List). Once it is found
that the matter does not fall under List II, Parliamenl 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 1 — 96 of List I or not.

In International Tourism Corporation Vs. State of Haryana, A.I.R. 1981, the appellants
challenged the validity of S. 3 of the Haryana Passenger and Goods Taxation Act, 1952, which
permitted the levy of tax on passenger and goods carried on by carriages plying on the National
High Ways. It was, contended thai the State Legislature wa,s incompetent to levy such a tax on
motor vehicles plying on National Highways. It was said thai the Parliament alone had power
under Entry 23 read with Entry 97 of List Ito legislate in respect of National High Ways. Entry
56 of List empowers the State to levy such taxes which are regulatory and compensatory, i.e.,
roads maintained by the State Government. The Court held that the State Legislature is
competent to levy taxes on passengers and goods carried in the National High Ways under Entry
56 of List II which empowers the State Legislature to impose taxes on goods and passengers
carried on by road or on inland waterways. The Court held that before exclusive legislative
competence can be claimed for Parliament by resorting to the residuary power, the legislative
incompetence of the State Legislature must be clearly established.22

22
Ibid

24 | P a g e
CHAPTER- 5 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.23

(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

23
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 9th
April,2018

25 | P a g e
revealed that in some cases the Centre took as many as 6-12 years in assenting or withholding its
assent to them. The Commission therefore recommended that as a matter of salutary convention
the President should dispose off 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.24

5.1 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 Administrative 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
24
Ibid

26 | P a g e
Administrative Reforms Commission in 1970. If, 'we closely scrutinise its recommendations, the
Commission makes 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.25

25
SUPRA NOTE at 1

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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 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.

28 | P a g e
29 | P a g e
BIBLIOGRAPHY

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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