iNDEX

1. INTRODUCTION… ................................................................................... 4
2. TERRITORIAL JURISDICTION… ............................................................. 5-8
3. SUBJECT MATTER .................................................................................. 8-9
4. RESIDUARY POWERS.............................................................................9-11
5. PRINCIPLES OF INTERPRETATION OF LISTS ...........................................11-28

6. PREDOMINANCE OF UNION POWER… ..................................................... 28-30

7. PARLIAMENT‟S POWER TO LEGISLATE ON STATE LIST .................... 30-32

8. CONCLUSION .............................................................................................33

9. BIBLIOGRAPHY… ....................................................................................... 34

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 INTRODUCTION
The basic principle of federations is that the legislative and executive authority is
partitioned between the centre and the states not by any law to be made by the
centre, but by the constitution itself ....The states are in no way dependent upon the
centre for their legislature or executive authority. The states and the centre are co-
equal in this matter 1.
- Dr. B.R. Ambedkar

The above statement clearly states that the Indian Constitution establishes a
federal system as the country's primary governance structure. The constitution
gives the union and the states their authority by dividing all powers - legislative,
executive, and financial - among them. As a result, states are no longer delegates of
the union, but rather autonomous within their own realms as defined by the
constitution. The union and the states are both bound by the constitution's 2limits,
such as the exercise of legislative powers being constrained by fundamental rights.
If any of these constitutional restrictions are broken, the law of the legislature in
question may be declared unconstitutional by the courts.

As previously stated, neither the Union Legislature nor a State Legislature

can be considered sovereign in the legalistic sense, as both are constrained by the
constitution's provisions, the power allocation plan, and fundamental rights.

1
1. Constitutional Assembly Debates, Vol.5, P.37, 1949.
2
2. Basu, D.D., Introductionto the Constitutionof India, Wadhwa and Company Law Publishers, New Delhi, 2005,
P.317.

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 LEGISLATIVE RELATIONS
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.
(1) With respect of territory
(2) With respect of subject matter

(1) 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 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.

Doctrine of Territorial Nexus

A nexus between the object and the state must be proved in order to give effect to
laws made by a state for extraterritorial purposes. Within its territorial jurisdiction,
the state legislature has the authority to enact legislation. The territorial nexus
exemption allows the state to enact laws governing extraterritorial operations
provided it can demonstrate a link between the object and the state.

CASE LAW:- Wallace Bros. And Co. Ltd. vs The Commissioner Of Income
In this case, a company registered in England appointed an agent in Bombay.
Through that agent the company carried on its business within the territory of
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India. In a year, the company out of its total profit of Rs. 2.4 million, earned Rs.
1.7 million by carrying its business within the territory of India. The Indian Income
Tax Authorities sought to tax the entire income of the company. The company
contended that the Indian Income Tax Act, 1939 could not be applied to it as it was
subject of the English laws. The Privy Council however upheld the levy of tax by
applying the "doctrine of territorial nexus".

The doctrine explains that it is not essential 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 a sufficient territorial nexus between the object and the
State making the law.3

The role of territorial nexus in Indian Legislation

Article 245 of the Indian constitution states the extent to which the legislative
powers are conferred in parliament and the state legislature in order to make laws
with respect to the territory. Parliament has the authority to enact laws in the areas
over which it has jurisdiction. Parliament has jurisdiction over the entire country or
any part of it. They can also be enacted by parliament for extraterritorial operations
if the law has a strong enough link to India. These laws cannot be called into
question or declared unconstitutional. All laws, however, must adhere to the Indian
constitution's stipulations.

The authority granted by parliament is not absolute. It is subject to following

exceptions:-

(a) As regards some of the Union Territories, such as the Andaman and Nicobar
Islands, Lakshadweep group of Islands, Daman and Diu, Dadar and Nagar Haveli
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. 4

3
See also Governor-General v. Raleigh Investment Co., AIR 1944 FC 51; A.H. Wadia V. C.I.T., AIR 1949 FC 18. In
these cases the Federal Court appliedthe doctrine of territorialnexus.
4
(Para 5 of the V Schedule (3) of the Indian Constitution).

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(c) The Governors of Assam, Mizoram, Meghalaya, Tripura 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. 5

The preceding particular rules have clearly been introduced in light of the
backwardness of the defined locations, where indiscriminate implementation of the
ordinary laws could result in hardship or other harmful repercussions.

Extraterritorial laws are enacted by the parliament for the aim of conducting
operations outside of India's borders. The state legislature lacks the authority to
enact legislation governing extraterritorial activity.

However, there is one exception to the state legislature's limitation, and that is
territorial nexus. If it is determined that there is a sufficient relationship between
the object and the legislation issued by the state legislature will have an impact
beyond the state's borders.

The following circumstances are required in order to invoke the jurisdiction of

territorial nexus-

1. If there exist extraterritorial operations in a state

2. If there is legitimate nexus between the object and the state. It should be clear
that the object shall be situated outside the territorial limits of the state but it must
have a territorial connection with the state.
CASE LAW:- State of Bombay vs R.M.D. Chamarbaugwala

In the instant case, the respondent who was not a resident of Bombay conducted a
prize competition of a crossword puzzle through a newspaper which was printed
and published in the Bangalore. This paper was widely published in Bombay to.
For this competition depots were established so that the forms and fees can be
collected. It attracted a lot of buyers for the ticket of that competition.

5
Para 12 (1) (6) of the VI Schedule

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The state government then levy take over the respondents company for contesting
a prize competition in the state. The respondent challenged the supreme court and
a question was raised whether the tax can be levied upon a person who resides
outside the territorial limits of the state. It was held by the supreme court that there
was a sufficient territorial nexus and the legislature has the authority to tax the
respondent for the revenue earned by his company through the prize competition.

(2) SUBJECT MATTER

The centre and the states must share their forces in a federal organisation.
Depending on the geographical and political circumstances, the nature of the
distribution varies each region. In America, for example, autonomous states
objected to absolute central government subjugation. As a result, while keeping the
rest, they believed in entrusting topics of public concern to the central government.
In the United States, Australia was chasing only one group of forces. The federal
and provincial governments in Canada have double listings, leaving the residue in
the centre. The Canadians were aware of the sad events that led to the United
States of America's Civil War in 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. 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:
(i) The Union list

(ii) The State List and

(iii) The Concurrent List.

A. The Union List:

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At present the Union List consists of 97 Subjects over which the Union shall have
exclusive power of legislation. The Subjects mentioned in the Union List are of
national importance, for example, defence and foreign affairs etc.

B. The State List:

The State List comprises of 66 Subjects over which the states have exclusive
power to make laws. The Subjects mentioned in the State List are of local or
regional importance, such as public order, police and public health etc.

C. The Concurrent List:

The Concurrent List contains 47 subjects like criminal and civil cases, marriage
and divorce, economic and special planning unions, money, media, magazines,
employment, management of the population and preparation of the families, etc.
and both the Union and States can enact laws on this list but the federal rule
prevails over state law in the case of a dispute between the law of the Central and
the State law. The purpose of the constitutional inclusion of the list was to ensure
continuity in key legal principles across the country. Legislatures both in the
parliament and in the State may make laws on matters mentioned above, but a
preliminary and ultimate right of the centre is to legislate on established matters. In
the event of a conflict between the law of the State and the law of the Union on a
subject in the Concurrent List, the law of the Parliament shall prevail.

RESIDUARY POWERS OF LEGISLATION

The Union Parliament also has residual powers under the Constitution (subjects not
mentioned on any of the three lists). Article 248 states that the Parliament has sole
legislative jurisdiction over anything that is not included in one of the three
categories. It is a strong representation of constitutionalist inclinations. Another
distinguishing element of the residual powers is that the court makes the final
decision on whether or not a particular topic fits under its residual powers. In
contrast to the conventions of other federations around the world, the Union has
been granted residual powers, whilst the States have been assigned residual
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powers. In the event of a disagreement, the court must decide whether or not a
certain matter belongs under the residual power. As a result, the Parliament is free
to pass laws on any subject not covered by Lists II or III. This authority shall
include the capacity to legislate, but not the right to tax either of them (the
Governor-General, and not a federal legislature which exercised these powers,
must be observed until independence).

List I entry 97 also grants Parliament exclusive legislative authority over all issues
not included by Lists II or III. Article 248 and Entry 97 List I transfer the
remaining legislative functions exclusively to the Union Parliament. The scope
of residual powers, on the other hand, is limited because all of the topics covered
by all three lists and residual powers are subject to the Court's judgement in
each case. This power is justified by the fact that it empowers the House to
legislate on any matter that has escaped the House's supervision and on a subject
that is currently unrecognised. As a result, it is necessary for Parliament to pass
legislation on matters that have advanced civilization. However, the constitutional
framers intended that the employment of residual powers be the last resort, not the
first.
Case Law: Naga People's Movement of Human Rights v. Union of India6

The Supreme Court ruled that Parliament was competent to enact the Armed
Forces (Special Powers) Act, 1958 in the exercise of the legislative power
conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of list I.
After the insertion of Entry 2A in List I by the 42nd Amendment to the
Constitution, the legislative power of Parliament to enact the Central Act would
flow from Entry 2A of List I.

The Court further explained that a law providing for "deployment of the Armed
Forces of Union in aid of the civil power of a State", would not be a law in respect
of maintenance of public order falling under Entry 1 of List II. But, such a Central
Law would not enable the armed forces of the Union to supplant or act as a
substitute for the civil power in the State . The armed forces of the Union, the

6
AIR 1998 SC 431. Also see Common Cause, A Registered Society v. Union of India, AIR 2002 SC 179, whereinthe
Apex Court upheld the provisionof Section 8-A of the Salaries, Allowances and Pensionof Members of Parliament
Act, 1954, as amended by Act of 1976, which was introduced for giving pensionto the Members of Parliament.

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Court said, would operate in the State concerned, in co-operation with the civil
administration.

A declaration as to disturbed area under Section 3 of the Act, could be made by the
Central Government suo motu without consulting the concerned State
Government, the Court, however, said that, it would be desirable that the State
Government should be consulted, while making the declaration.7

Principles of Interpretation of Lists

The powers of Centre and States are divided. They cannot make laws outside their
allotted subjects. It is true that a scientific division is not possible and questions
constantly arise 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 of Art. 246 (1)
"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 the Concurrent List over
the State List. Thus in 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.8

The principle of federal supremacy in Article 246 (1) cannot be resorted unless
there is an irreconcilable conflict between the entries in Union and State list.9

Article 246 does not provide for the competence of the Parliament or the State
Legislatures as commonly perceived but merely provides for their respective fields.

7
International Tourism Corporationv. State of Haryana, AIR 1981 SC 774. Alsosee of Parliament. Subramaniyam v.
Muttuswami, AIR 1941 FC 47.
8
Profulla Kumar Mukerjee v. Bank of Commerce, Khulna, AIR 1947 PC 60 ; see also Union of India
v. H. S. Dhillon, AIR 1972 SC 1061.
9
State of Kerala v. M/s Mar Appraem Kuri Co. Ltd., AIR 2012 SC 2375.

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Article 246 only empowers the Parliament to legislate on the entries mentioned in
List I and List III of the Seventh Schedule and that in case of a conflict between a
State law and Parliamentary law under the entries mentioned in List III, the
Parliamentary law will prevail. It does not follow that the Parliament has a blanket
power to legislate on entries mentioned in list II as well. 10

(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. V. State of West Bengal, 11the 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.

Case Law: International Tourism Corporation v State of Haryana (1981)

The Supreme Court held that there were certain competing entries in the list. List
two and entry 97 of list 1 when having certain conflicts. It was then decided that a
State List should be given a broad and plentiful interpretation and should not be
interpreted in favour of the centre by resorting to the residuary power. Residuary
power cannot be interpreted so widely that it curbs down the power of state
legislature, thereby affecting and jeopardizing the federal principle. For any subject
residuary power should be the last option, it should be only held when all the
categories in the three lists are exhausted.

(3) The doctrine of pith and substance

10
AIR 1962 SC 1044.
11
AIR 1962 SC 1044.

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1) The word ‘Pith’ means ‘true nature’ or ‘essence’ and the word ‘substance’
means ‘the essential nature underlying a phenomenon’. Thus the expression „pith
and substance‟ collectively relates to find out the true nature of a particular statute.

2) This is essentially a Canadian Doctrine now firmly entrenched in the Indian

Constitutional Jurisprudence. This doctrine found its place first in the case of
Cushing v/s Dupey . In this case the Privy Council evolved the doctrine that for
deciding whether an impugned legislation was intra vires, regard must be had to its
pith and substance.

3) The Union and States are vested with the legislative power in specified subjects.
However, the Centre or State may encroach upon the other‟s subject, while passing
a legislation. In such a situation, the Court, in order to determine the competence,
applies the „Doctrine of Pith and Substance‟.
4) The purpose of this doctrine is to decide, whether a State, while making a statute
upon a subject under the Union List, has acted within its rights/limits. In other
words, the doctrine aims to decide the legislative competence of the legislature
(Centre and State), which passed the law in question.

5) 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.

6) 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 be intra vires even though it might incidentally trench on matters not
within competence of legislature.

The doctrine flows from the words "with respect to" in Article 246. It
requires that in such a case of encroachment, the law should be read as a whole
and not as a collection of sections or clauses, for determining the true after such
an enquiry, it is found that the pith and substance of the law, nature and character
of the law, i.e., the pith and substance of the law. If pertains to the matter within
the competence of the Legislature making the law, then the law would be
constitutional even though it incidentally trenches on matters not within the
competence of the 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

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the scope and effect of its provisions. For this purpose, the language of the Entries
should be given the widest scope of which the meaning is fairly capable.

The doctrine explains that if an enactment substantially falls within the powers
expressly conferred by the Constitution upon the Legislature which enacted it, it
cannot be held to be invalid, merely because it incidentally encroaches on matters
assigned to another Legislature. Incidental touching is therefore permissible if in
pith and substance, legislation is within competence. The say differently, incidental
encroachment, is not altogether forbidden.

The doctrine of Pith and substance is an age-old legal doctrine firmly ingrained in
the jurisprudence of the Indian constitution. The concept was first acknowledged in
the Canadian Constitution and it has been subsequently borrowed by the framers of
the Indian Constitution. First and foremost, beginning with the literal meaning of
the terms “Pith” and “Substance”:

Pith: “True character” or “essence of something”.

Substance: “sine qua non elements of something” or “indispensable part of

something”.
Therefore, the doctrine, can be considered as sine qua non, part of something in
which its genuine essence lies.

The rationale behind the coining of this doctrine was to eliminate absolute
encroachment of legislative powers by scrutinizing the “substance” of enactment
and subsequently examining under which list the particular subject matters falls in.
This doctrine is, therefore, used to determine the legislative competency with
regard to a particular enactment by looking into the “substance” of that enactment.
Two possible outcomes of scrutinizing the “substance” of an enactment may be:

The substance of the enactment is in tandem with the subject matter delegated to
the legislature to enact laws: This will render the enactment completely valid.

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Enactment incorporates subject matter which is beyond the competence of union or
state legislature: This may result in the partial or incidental encroachment of
legislative powers which is considered to an extent and hence, may not render the
entire enactment null and void. Incidental encroachments, to an extent, are
permissible while determining legislative competency as certain subject matters
enlisted in the three lists mentioned in Seventh Schedule are ought to overlap at
times.

Concluding the introductory part, the doctrine of pith and substances comes into
play whenever there is a conflict between various subject matters of various lists. It
is very obvious that certain subject matter enlisted in one of the three lists tend to
converge with the subject matters enlisted in other lists. The application of doctrine
provides a degree of flexibility by accepting ancillary or incidental encroachments
to an extent while determining legislative authority to deal with a particular subject
matter enlisted in the State, union and Concurrent lists.

Historical Backdrop of the doctrine:Evolutionary Progress

As mentioned above, the doctrine of Pith and substance is borrowed from the
Canadian Constitution. Canada is segregated into two parts: Dominion and the
Provinces. The makers of the Canadian Constitution thereby added two different
lists in the constitution, in order to bifurcate the powers of the dominions and the
provinces. Section 69 of the Canadian Constitution12, initially enacted as the
British North America Act, 1857, segregated the powers designated to dominion
and the provinces. Further, Section 91 and 92 of the Constitution Act, 1867
specifies the exclusive powers entrusted with the dominions and the provinces13.

Section 91: Describes a detailed account of powers exclusively given to the

Dominion
Section 92: Elucidates on powers exclusively given to the Provinces

12
Section 69, Canada> Constitution Act, 1867, available at, https://www.servat.unibe.ch/icl/ca00t .html
13
Sections 91, 92 and 121 of the Constitution Act, 1867 (Canada), available at,
https://exhibits.library.utoronto.ca/items/show/2434

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Utmost prominence was given to the fact that neither dominion nor the province
could encroach upon each other‟s authority to formulate and enact laws. This
implies that the dominion has no authority to interfere with the subject matters on
which only the Provinces have the competence to make laws and vice versa.

Despite the clear segregation of powers between the dominion and the provinces,
descriptions of the legislative fields and matters mentioned in both the sections
tend to converge and overlap with each other. This embarked on the validity of
enactment to be decided on the basis of the extent of encroachment done by one on
the powers of another.

A vital question aroused during the process of scrutinizing the extent of

encroachment, regarding the basis on which legislative competence should be
validated. The Privy Council came to the rescue in 1880 in the case of Cushing v.
Dupey. The doctrine of Pith and Substance was evolved in this case and the Privy
Council held that emphasis must be laid on the “Pith and Substance” of enactment
to decide if it is within or beyond the ambit of legislative powers assigned to either
dominion or the province. Subsequently, in 1889, in the case of Union Colliery
company of British Columbia v. Bryden , Lord Watson, speaking for the Privy
Council, captured the concept of “true nature and character” of legislation and
addressed it as a metaphor “whole pith and substance” of an enactment.

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Steps followed by Indian Courts to validate an enactment:

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Significant Judgements on the Doctrine of Pith and Substance

The most ancient case regarding the doctrine of pith and substance is the case of
Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors14.in which the
court held that in order to find out that the subject matter dealt with in an
enactment falls under which entry, one has to fathom out the true nature and
character of the enactment by applying the doctrine of „pith and substance‟. The
court further said that “it is the result of this investigation, not the form alone
which the statute may have assumed under the 11 hand of the draughtsman, that
will determine within which of the Legislative Lists the legislation falls and for this
purpose, the legislation must be scrutinized in its entirety”.

Profulla Kumar Mukherjee v Bank of Khulna(1947):

FACTS

In Bengal, The Bengal Moneylender Act 1940 was passed for the greater interest
for the public and set a limit, and above which no money be collected by the
money lenders.

Even the rate of interest was limited which was recoverable by the money lenders

The interest of loan was so limited that the moneylenders challenged the validity
of this Act.
ISSUES

Constitutional validity of the Bengal Moneylenders Act was challenged enacted by

the State legislatures

It was challenged on the ground that the Act was made in relation to the
Promissory note
Promissory note falls under the category of the Union List

Hence it was challenged that the State has no right to make laws with respect to a
union subject

14
Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors, AIR 1940 All 272

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The Central List however empowers the Central Government to makes law with
respect to the Trade and Commerce, Money lending and Moneylenders

JUDGEMENT BY HIGH COURT

The HC held that the Centre Prevails over the State and hence judgement favoured
the Appellant.

On the ground that the Federal Structure of the Indian Subcontinent gives
supremacy of Centre over the State under article 248 of the constitution.

The Moneylenders Act was not completely held null and void, but only that part
which comes into the area of list 1 of the Centre.

In their view the jurisdiction of the Provincial Legislature is not ousted by the
inclusive of provisions dealing with promissory notes though that subject matter is
to be found under the Federal Lost.

JUDGEMENT BY SUPREME COURT

The SC held that the Pith and Substance Doctrine would apply. Pith and substance
of this Act is Money lending, and that is under the state legislature, which is very
well laid down, but the other aspect of the Promissory note doesn't fall under state
list, but in the Union list

Now even the promissory note is not the state list but still SC upheld the Act as
they said that the objective of the Act is being achieved and also the Act is laid
down for the greater public interest.

Even though the Act main subject is not about the promissory note but rather
money lending. Therefore, the Act is constitutional.
State of Bombay v/s F. N. Balsara (AIR 1951 SC 318)

In this case, 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.

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The Court held that the 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 Power of Legislation.

Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors. (AIR
2010 SC 2633)

The Supreme Court explained Pith and Substance beautifully in this case:

“This doctrine is applied when the legislative competence of the legislature with
regard to a particular enactment is challenged with reference to the entries in
various lists. If there is a challenge to the legislative competence, the courts will try
to ascertain the pith and substance of such enactment on a scrutiny of the Act in
question. In this process, it is necessary for the courts to go into and examine the
true character of the enactment, its object, its scope and effect to find out whether
the enactment in question is genuinely referable to a field of the legislation allotted
to the respective legislature under the constitutional scheme.

This doctrine is an established principle of law in India recognized not only by this
Court, but also by various High Courts. Where a challenge is made to the
constitutional validity of a particular State Act with reference to a subject
mentioned in any entry in List I, the Court has to look to the substance of the State
Act and on such analysis and examination, if it is found that in the pith and
substance, it falls under an entry in the State List but there is only an incidental
encroachment on any of the matters enumerated in the Union List, the State Act
would not become invalid merely because there is incidental encroachment on any
of the matters in the Union List.”

(4) Doctrine of Colourable Legislation

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

The doctrine of colourable legislation is based upon the maxim "you cannot do
indirectly what you cannot do directly". "Colourable legislation" simply means a
legislation which, while transgressing constitutional limitation, is made to appear
as if it were quite constitutional. The transgression being veiled by what appears on
proper examination to be a mere pretence or disguise. It is a law which is
pretended to be in exercise of undoubted powers, but which is, in fact, a law on a
prohibited field. When a Court says that a particular legislation is a colourable one,
it means that the Legislature has transgressed its legislative powers in a covert or
indirect manner, that it adopts a device to overstep the limits of its powers. The
Legislature cannot violate the constitutional prohibition by employing an indirect
method.

Bailey v. Drexel Furniture Co. 15, an American case, is the most appropriate
example to explain the application of the doctrine of colourable legislation. Under
American Constitution, the Congress is vested with broad powers of taxation while
the regulation of labour is exclusively a State function. With the object to prohibit
the employment of children below the age of 14, the Congress enacted the Child
Labour Tax Law, 1919, imposing a tax of 10% on the net profit of the year, upon
an employer who knowingly, during any operation of the taxable period, employed
children within that age limit. The tax was to be paid by the employer in full
measure whether he employed 500 children for a year or employed only one for a
day. The Supreme Court of America struck down the Law and held that it was not
a valid exercise by Congress of the power of taxation. The case was one in which
the Congress exercised the power of regulation of labour by imposing a tax by way
of penalty in order to prevent the employment of children and thus by exercising
the powers which it possessed, i.e., of taxation, the Congress tried to regulate a
subject over which it had no jurisdiction. Whenever the Legislature oversteps the
field of its competence directly or indirectly, the Court scrutinises the law to
ascertain whether the Legislature by device purports to make a law which though
in form appears to be within its sphere, in effect and substance, reaches beyond it.

(5) Doctrine of Incidental And Ancillary Powers:

15
1922 (259) US 20

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Ancillary or incidental powers mean those powers that support the powers that are
expressly conferred. There are some express powers given to both the Central and
State Governments through the three lists specified in the Seventh Schedule. The
doctrine of ancillary or incidental powers means that these express powers to
legislate on a matter also consist of the power to legislate on an incidental or
ancillary matter.

Such a power is essential for the proper exercise of the expressly conferred
legislative powers. For example, the power to legislate on banking would also
include all the related powers to legislate on matters like functions of banks, the
composition of their boards, relationship with RBI, etc. Similarly, the power to
legislate on an entry dealing with forests would include the power of afforestation,
deforestation, planning and management of forest as ancillary matters.

Evolution Of Doctrine In India

The doctrine of incidental or ancillary powers developed as one of the interpretive
techniques used to help determine the scope of the powers of the different levels of
government. This doctrine has not been specifically developed in India. However,
its traces can be found in various judgments.

In the case of United Provinces v Atiqa Begum & Others, AIR 1941 FC 16, the
principal question was whether the regularization of the Remission Act, 1938, an
Act of the Uttar Pradesh legislature was valid. The Court held that this Act was
covered “within the meaning of entry no. 21 of List II”. Gwyer C. J. observed:
“The subjects dealt with in the three legislative lists are not always set out with a
scientific definition. It would be practically impossible for example to define each
item in the Provincial List in such a way as to make it exclusive of every other item
in that list[…] In the case of some of these categories […] the general word is
amplified and explained… while the inclusion of others might not be so obvious.
[…] I think however that none of the items in the Lists is to be read in a narrow or
restricted sense, and that each general word should be held to extend to all
ancillary or subsidiary matters which can fairly and reasonably be said to be
comprehended in it.”

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This case laid down the way for the doctrine of ancillary or incidental powers in
the Indian legal system. It clarifies that a legislature has the power to make law on
matters which are ancillary or incidental to the main matters of legislation and
thus, are essential to fulfill the object of the law.

DOCTRINE OF REPUGNANCY:
Article 245 gives the Parliament the ability to make laws for the entire country or
any part of it, and the State assembly the power to make laws for the entire state or
any part of it. It further provides that a law passed by Parliament cannot be
declared illegal because it applies extraterritorially. Furthermore, Article 246
establishes the subject-matter of laws that can be enacted by the states' legislatures.

 The Parliament has exclusive powers to make laws for all matters given in
the Union List or List I of the Schedule VII of the Indian Constitution.
 The Legislature of the State has powers to make laws for such State for all
matters given in the State List or List II of Schedule VII.
 Both the Parliament and the State Legislature have powers to make laws for
all matters listed in the Concurrent List or List III of the Seventh Schedule.
 The Parliament is empowered to make laws relating to any matter for any
part of the territory of India, not included in a State, notwithstanding if it is
enumerated in the State List.

Repugnancy is defined as a conflict between two laws that give different

conclusions when applied to the same set of facts. When employed in the
concurrent sphere, it is used to describe inconsistency and incompatibility between
centre and state laws. When two laws are so incompatible with one another that
applying one of them would imply the violation of the other, a repugnancy
scenario develops.

According to Article 254, if any part of a State law is repugnant or conflicting with
any part of a Central law that the Parliament is competent to enact, or any part of a
law of the subject matter of List III, the Central law will prevail and the State law
will become void to the extent of the repugnancy. It makes no difference whether
the central law is passed before or after the state law when examining this doctrine.

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As a result, this is a principle to determine when a state statute contradicts the
central law.

Tests for determining repugnancy:

It is well settled repugnancy under Article 254 arises when both laws pertain to
matter in List III.

The Supreme Court in Deep Chand v. State of Uttar Pradesh laid down the
following tests for determining the repugnancy between the Union Law and State
Law16:
(a) There may be inconsistency in the actual terms of the two Statutes, ie, 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.

The legitimacy of the U.P. Transport Services Development Act, 1955, was
challenged in this case as void under Article 254 (1) of the Constitution. The Act
outlines a plan to nationalise the state's motor transportation industry. The law was
necessary because the Motor Vehicles Act of 1939, which was enacted by the State
Legislature in order to authorise the Government to make changes to the State law
in 1956 in order to introduce a uniform law, did not include any provision for the
nationalisation of motor transportation services. Following that, the Motor
Vehicles (Amendment) Act, 1956 was enacted, revising the Act of 1939 and
allowing state governments to set guidelines for the nationalisation of the motor
transportation industry. The Supreme Court held that since both the Union Law
and the State Law occupied the same field, the State law was void to the extent of
repugnancy to the Union law.

Exception [Article 254 (2)]

16
6. The above tests were reiterated and further explained by a Constitution Benchof the Apex Court in M.
Karunanidhi v. Unionof India, AIR 1979 SC 898, one of the mos t authoritative judgments on the question of
repugnancy. See also Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, AIR 2010 SC 2633.

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Clause (2) of Article 254 contains an exception to the rule of repugnancy a law
made contained in Article 254 (1). The Clause (2) provides : "Where by the
Legislature of a State with respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the provisions ofvan earlier
law made by Parliament or an existing law with respect to that matter, then, the
law so made by the Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail in that State".

Clause (2) of Article 254 provides for curing of repugnancy which would
otherwise invalidate a State law which is inconsistent with a Union law or an
existing law. A law so enacted, cannot be challenged on the plea that itvlacks
legislative competence. In order that the State law should prevail in that State, the
following conditions must be satisfied

(i) there must be in existence a Union law;

(ii) subsequent to the Union law, the State Legislature enacts a law with respect to
a matter in the Concurrent List; and

(iii) the State law having been reserved for the consideration of the President, has
received his assent thereto.

In Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation Ltd 17., a

Constitution Bench of the Supreme Court explained that the State Government
before obtaining the assent of the President under Article 254(2), had to point out
that the State law was in respect to one of the matters enumerated in the
Concurrent List and that it contained provision or repugnant to the law made by the
Parliament or existing law.

The Court further found that the wording “reserved for consideration” in Article
254(2) would clearly indicate that the President should apply his attention to the
repugnancy pointed out, as well as the necessity of having such a statute in force
and the circumstances of the case.
The usage of the word "assent" in Article 254(2) confirmed that Clause (2) of
Article 254 suggested that the President was aware of the inconsistency between

17
AIR 2002 SC 3404. See also Rajiv Sarin v. State of Uttarakhand, AIR 2011 SC 3081.

23 | P a g e
the State Law and the earlier Law established by Parliament on the same subject-
matter, as well as the reasons for granting such assent. Therefore the President has
to be appraised of the reasons, at least, as to why his assent is being sought, the
need or necessity and justification or otherwise for claiming predominance for the
state law concerned. This itself would postulate an obligation to enumerate or
specify and illustrate the particular Central law or provision with reference to
which the predominance is desired.

The authority exercised by the President under Article 254(2) has been deemed to
be a specific constituent power bestowed in the Head of the Union as the custodian
and defender of the Constitution and the safety valve to maintain the country's
polity's Fundamental Rights and Federal Structure. The President's power is
exerted as part of the legislative process.

A Subsequent Union Law [Proviso to Article 254 (2)]

It is an exception to Article 254 (2). It provides that "nothing in this clause shall
prevent Parliament from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or repealing the law so made
by the Legislature of the State".

It specifies that Parliament may, by passing a law on the same subject, substitute
State Legislation that has received the President's assent under Clause (2) of
Article 254. Thus, if the State law is incompatible with the following Union law, a
bill approved by Parliament after the State law would have precedence.

Zaverbhai v. State of Bombay 18 is an example of how the Proviso to Article 254

works (2). Essential Supplies (Temporary Powers) Act of 1946 was passed by the
Central Legislature in 1946.

The Act's Section 3 The State of Bombay, believing that the maximum penalty
under Section 4 of the Act, which was three years in prison for contravening
orders, was insufficient for offences committed under the Act, enacted the Bombay
Amendment of the Law in 1947, which increased the penalty to a term of

18
AIR 1954 SC 752.

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imprisonment of less than six months, plus a fine. The Bombay Act extend to 7
years but shall not, except for reasons to be recorded in writing, having been
passed by its Legislature was reserved for the consideration of the Governor
General and obtained his assent thereto. The Bombay Act came into operation in
the Province of Bombay as a result of the provisions contained in Section 107 of
the Government of India Act, 1935. Subsequent to the Bombay Act, amendments
were made to the Central Act of 1946 in the years 1948, 1949 and 1950. The
amendment made in 1950 substitute a new Section for the original Section 7 of the
Act. Under the new Section 7 offences under the Act were grouped under three
categories and punishments to be imposed in these categories were separately
specified. The Supreme Court held the Bombay Law void and laid down that the
Central law as amended in 1950 was a comprehensive code covering the entire
field of punishment for offences under the Act, graded according to the community
and character of the offence. The Court further held that the Bombay Act of 1947
was impliedly repealed by Section 7 of the Essential Supplies (Temporary Powers)
Act, 1946 as amended in 1950.

State Law complementary to/in Aid of Union Law

In M. Karunanidhi v. Union of India19, the appellant, a former Chief Minister of
the State of Tamil Nadu, was prosecuted under the I.P.C. and the Prevention of
Corruption Act, 1947 on the charge of having abused his official position in the
matter of purchase of wheat from Punjab. While the prosecution was pending, the
Tamil Nadu Public Men (Criminal Misconduct) Act, 1974 was enacted with the
consent of the President and thus the Act came into force under Article 254 (2).
However, the State Act was repealed with the consent of the President and the
prosecution against the appellant were taken under the I.P.C. and the Prevention of
Corruption Act, 1947. The petitioner challenged his prosecution and contended
that on the enactment of the State Act, the I.P.C. and the Prevention of Corruption
Act, 1947 being repugnant to the State Act became void under Article 254 (2) and
the repeal of the State Act could not revive the provisions of the Central Acts,
unless re-enacted. The question was whether there was repugnancy between the

19
AIR 1979 SC 898

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State Act and the Central Acts. The Supreme Court held that the State Act of 1974
was not repugnant to the Central laws. Although the definition of criminal
misconduct was substantially the same in both the laws, the State Act and the
Central Act, the State Act had created distinct and separate offence with different
ingredients and different punishments. Therefore, the State law did not in any way,
collide with the Central Acts. It was rather complementary to the Central Acts. The
Court referring to the earlier judicial pronouncements, laid down the following
propositions to determine repugnancy between the two laws-

(1) Whether there is a clear and direct inconsistency between the two enactments
which is irreconcilable and 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 enactments.
(3) When 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) When 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.

Predominance of the Union Power-NON-OBSTANTE CLAUSE

(Article 246)
Article 246 provides:

(1) Notwithstanding anything in Clauses (2) and (3). Parliament has exclusive
power to make laws with respect to any of the matters enumerated in List I in the
Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in Clause (3), Parliament, and, subject to clause (1),
the Legislature of any State * also, have power to make laws with respect to any of
the matters enumerated in List III in the Seventh Schedule (in this Constitution
referred to as the "Concurrent List").

26 | P a g e
(3) Subject to Clauses (1) and (2), the Legislature of any State * has exclusive
power to make laws for such State or any part thereof with respect to any of the
matters enumerated in List II in the Seventh Schedule (in this Constitution referred
to as the "State List ")

(4) Parliament has power to make laws with respect to any matter for any part of
the territory of India not included in a State, notwithstanding that such matter is a
matter enumerated in the State List.

Article 246, not only talks about distribution of powers, but also explains the
supremacy of powers.

It is thus clear that power of the Parliament to enact a law which is not covered by
an Entry in List II and List III, is absolute. Article 246 contains the non-obstante
clause.

It is important to note that if the legislative powers of the Union and state
legislatures, as listed in Lists I and II of the Seventh Schedule, cannot be
adequately harmonised, the former will prevail and the latter will have to give way
to the former. Though every effort will be made to resolve the issue, if it cannot be
resolved, the Central legislation will take precedence. As a result, if a subject
appears in both Lists I and II, only the Parliament has the authority to legislate on
it.

Again, if there is a conflict between List II and List III, it is Union power with
respect to List III, which shall prevail.

The opening words "Notwithstanding anything contained in Clauses (2) and (3) in
Clause (1) of Article 246" and the opening words of Clause (3) of Article 246, i.e.,
"subject to Clauses (1) and (2)" expressly secure the predominance of the Union
List and Concurrent List over the State List,

These words indicate the principle of federal supremacy namely, in case of

inevitable conflict between the Union and State powers, the Union powers, as
enumerated in List I, shall prevail over the State powers, as enumerated in List II
and II, and in case of overlapping between Lists III, and II, the former will prevail.

27 | P a g e
It so states that in the event of an inevitable conflict between Union and State
Powers, the Union Power as specified in List I takes precedence over State Power
as enumerated in Lists II and III, with the latter taking precedence in the event of
an overlapping between Lists II and III. As a result, it clearly demonstrates
Parliament's sovereignty over state legislatures.

Thus, Parliament's power to legislate with respect to any matter contained whether
in List I or List III would have predominance over State Legislature's power to
legislate with respect to any matter in the State List. Again, while Parliament's
power to legislate on matters in List III has predominance over State Legislature's
power to legislate on matters in the State List, but State Legislature's power to
legislate on matters in List III is subjected to Parliament's power to legislate on
matters in List I. However, supremacy of Parliament over State Legislature cannot
be resorted to unless there is an irreconcilable direct conflict between the entries in
the Union and the State Lists.

Parliament’s power to legislate on State List

Although the Central Government does not have the capacity to legislate on topics
stated in that State in ordinary circumstances, the Union Parliament may only do so
under certain circumstances. These circumstances are:

A) In the National Interest (Art.249)

The Indian Constitution specifies the parliament's legislative authority in several
articles. When the Rajya Sabha declares, by a resolution approved by at least two-
thirds of the members present and voting, that it is necessary or reasonable in the
national interest for Parliament to lay down laws in respect of any matter
mentioned in the State List referred to in the resolution, it becomes lawful for
Parliament to lay down laws for the whole or any part of the proceedings. Such a
resolution had only been in existence for a year at the time in question. However,
the Rajya Sabha could extend the term of such a resolution for a further duration of
one year from the date on which it would otherwise have ceased to operate. The
law of Parliament, which Parliament should have been responsible for passing such
a resolution by Rajya Sabha, ceased to have any effect on the expiry of a term of
six months after the date on which the resolution ceased to be in force, except in
the case of things done or omitted to be done before the expiry of that time. This
28 | P a g e
provision allowed the Rajya Sabha, representing the States, to place any matter of
local significance but national interest in the concurrent list. The Rajya Sabha can
do so at any moment, whether emergency or not.

B) Under Proclamation of National Emergency (Art. 250)

In the event of a declaration of emergency, Article 250 states that Parliament has
the authority to adopt laws on any item on the State List. This legislation applies in
the event of a national emergency (Article 352) and every state in accordance with
the President's order (Article 356) or a financial emergency (Article 357). (Article
360). The laws of the state or states will be ineffective at this time if they are in
conflict with the law of the centre (Art. 251). As a result, while the National
Emergency Declaration is in place, the entire Parliament will legislate on the issues
listed in the State List. However, the laws enacted by the Parliament according to
this clause shall cease to affect the expiration of a period of six months after the
termination of the Proclamation, except in the case of items done or omitted to be
done before the expiration of that time.

C) By Agreement between States (Art. 252)

Regulation by invitation is provided for under Article 252. It is legal for the
Parliament to create a law if the legislatures of two or more States adopt a
resolution ordering the centre to make a law on a specific item of the State
Register. First and foremost, such law shall apply to the States that have made such
a request, unless any other State may later follow suit by enacting a resolution to
that effect. Third, only Parliament has the authority to change or repeal such laws.
If two or more state legislatures agree that a parliament has the authority to make
laws on any topic stated in the State List respecting that Matter, the parliament may
make laws on that subject. Subsequently, any act passed by the Parliament shall
extend to those States and to any other State which has passed such a resolution.
Parliament also has the power to amend or revoke any act of this kind.

D) To Implement Treaties (Art. 253)

Parliament will have the right to legislate on any subject in order to implement
treaties or international conventions. To put it another way, even when it comes to
a state matter, the ordinary division of powers does not prevent Parliament from
29 | P a g e
introducing legislation to meet its foreign responsibilities (Article 253). Within the
entire and any part of India's territory, the Parliament may pass any treaty,
international agreement, or convention with any other country or state, or any
decision made during an international conference, association, or other entity. Any
law passed by this Parliament shall not be nullified because it concerns a subject
specified in the list of States.

E) Under Proclamation of President’s Rule (Art. 356)

The supremacy of Parliament was further clarified by Articles 356 and 357 of the
Indian Constitution. Article 356 stated that if the President was satisfied that a
situation existed in which the State's administration could not be enforced
according to the Constitution's provisions, he could declare the powers of the
State's Legislature exercisable by or under the competence of the Parliament.
Article 357 mandates that Parliament transmit legislative authority to the President.
During the Declaration of the President's Rule, if the State's constitutional
machinery fails, the President may enable the Parliament to execute the powers of
the State legislature.

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