CONSTITUTION LAW- INTERNAL ASSESSMENT

1. Explain the Legislative relation between the union and the state
Solution:
The Union State relations in the legislative sphere have been dealt with by Articles 245 to 254. The
Constitution clearly provides that the Parliament shall have exclusive jurisdiction to make law for the
whole or any part of the territory of India with regard to subjects mentioned in the Union List. This
list contains subjects like defence, foreign affairs, currency, union duties, communication, etc. On the
other hand, the State enjoys exclusive power over the 66 items enumerated in the State List. This List
contains subjects like public order, health, sanitation, agriculture, etc. In addition, there is a
Concurrent list containing 47 subjects like criminal law and procedure, marriage, contracts, trust,
social insurance etc. over which both the Union and the State Governments can legislate.
There is a separation of power between unions and states. The constitution of India makes the two-
fold distribution of Legislative powers:
1. With respect to territory
2. With respect to the subject matter
1.Territorial jurisdiction: Article 245 of the Indian Constitution states that ‘Parliament may make
laws for the whole or any part of the territory of India, and the Legislature of a State may make laws
for the whole or any part of the State. The Constitution clearly defines the territorial jurisdiction of
both the centre and the state. Accordingly, the Parliament has the power to make laws for the whole or
any part of the territory in India. This doesn’t mean that Parliament does not have extra-territorial
jurisdiction.
Article 245(2) clarifies that no law enacted by Parliament shall be considered invalid on the basis of
having extra-territorial operation.’ However, the State government has no such power or extra-
territorial jurisdiction. They are restricted to make laws within the territory of the state. However,
there is an exception to this general rule by means of ‘The Doctrine of Territorial Nexus.’
The doctrine of territorial nexus: This Doctrine is applicable to scrutinize whether states have
extra-territorial jurisdiction. this doctrine essentially identifies whether the object or the subject
matter of the act has sufficient connection with the territorial boundary of the state. To provide further
clarity, if there exists a territorial connection between the subject matter of the act and the state that
enacts it, the concerned statute is not considered to have an extra-territorial application.
Case laws:
Wallace v. income- tax commissioner
A company was established and registered in England. One of the partners started an office in India.
The profit that the business accrued was majorly from India. Thus, the honourable court held that the
tax levied on this company was within the territorial jurisdiction, since there was sufficient nexus
between the subject matter and India.
State of Bombay v. RMD Chamarbaugwala
the Bombay State levied a tax on lotteries and prize competitions. The tax was extended to a
newspaper printed and published in Bangalore but had wide circulation in Bombay. The respondent
conducted the prize competitions through this paper. The Court held that there existed a sufficient
territorial nexus to enable the Bombay State to tax the newspaper. If there is sufficient nexus between
the person sought to be charged and the State seeking to tax him, the taxing statute would be upheld
2. Subject matter: the government of India act, of 1935, introduced a scheme of three-fold
enumeration i.e., 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 namely:

• Central list: This list contains subjects over which only the Union Government has the power
to legislate. Some of the important subjects in this list are defence, foreign affairs, currency,
banking, communication, and interstate trade and commerce. It consists of 99 entries.
• State list: This list contains subjects over which only the State Governments have the power
to legislate. Some of the important subjects in this list are law and order, health, agriculture,
irrigation, local government, and state-level taxes. It consists of 61 entries.
• Concurrent list: This list contains subjects over which both the Union and the State
Governments have the power to legislate. Some of the important subjects in this list are
education, forests, criminal law, marriage, divorce, and adoption. It consists of 47 entries.
Thus, the Indian constitution clearly lays down the jurisdictional boundary between the centre and the
state. This is done in order to ensure a balance of power and efficient legislative relations.
Principles of interpretation of lists
The powers of the 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 about whether
a particular subject falls in the sphere of one or the other government the supreme court has evolved
the following principles of interpretation in order to determine the respective power of the union and
the states under three lists:

• Predominance of the union lists: the opening words of Article 246 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.
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

• Each entry to be interpreted broadly: Subject to the overriding predominance of the union
list, entry in the various lists should be interpreted broadly

Union of India v. H. S. Dhillon, 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 matter fell in List II (State List) or List III (Concurrent List). Once it is
found that the 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.

Devika Biswas v. union of India, the Supreme Court in a PIL held the population control and
family planning a national campaign over the last so many decades. The population control
and family planning being a national scheme in view of List 3, Entry 20-A of Schedule 7 rests
squarely on shoulders of Union of India. It cannot be treated in view of List 2, Entry 6 and 20-
A of Schedule 7, as Public Health issue and making it concern of the State Government.
• Pith and substance: In their own individual spheres or jurisdictions, both the centre and the
state are complete sovereigns. However, if a law enacted by one transgresses or encroaches
upon the jurisdiction of the others, the court will decide on the validity of the law.
Accordingly, the court applied the doctrine of pith and substance and attempted to identify
whether the legislature was competent to enact the law. To adjudge whether any particular
enactment is within the purview of one legislature or the other, it is the pith and substance of
the legislation in question that has to be looked into. This rule envisions that if the ‘true nature
and intent’ or the ‘object’ of the law was within the jurisdiction of the legislature, then the
court can hold that there has been no transgression of jurisdiction.

Prafulla Kumar v. Bank of commerce: The Bengal Moneylender Act of 1940’, which set a
ceiling beyond which moneylenders could not collect any money, was passed for the benefit
of the general populace. Even the interest rate was limited to what the money lenders could
charge. Due to the Act’s low loan rate, lenders questioned its legality. The act was questioned
on the basis that it only applied to promissory notes, which was a subject matter of the union
list and hence, the state legislature has encroached upon the powers of the parliament.
However, the court held that the true intent of the legislature was to deal with money lending
and was within the sphere of state list.

• Colourable legislation: 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 a making the law is "irrelevant".

State of Bihar v. Kameshwar Singh is the only case where a law has been declared invalid
on the ground of colourable legislation. In this case the Bihar Land Reforms Act, 1950, was
held void on the ground that though apparently it purported to lay down principle for
determining compensation yet in reality it did not lay down any such principle and thus
indirectly sought to deprive the petitioner of any compensation
2. write a note about cooperative federalism
Solution:
Though there is a division of power between the centre and the state in a federation, and the respective
areas of competence of each is earmarked, yet it would not be correct to assume that the various
government act in water-tight compartments. As these governments act side by side in the same
country, inevitably many types of relations arise amongst them and many instrumentalities to promote
intergovernmental co-operation come into existence.
With the passage of time, however, the concept of competitive federalism slowly gave way to
cooperative federalism. The concept of co-operative federalism helps the federal system with its
divided jurisdiction, to act in unison. It minimises friction and promotes co-operation among the
various constituent governments of the federal union that they can pool their resources to achieve
certain desired national goals.
The framers of the Indian Constitution took due note of the emerging trend of cooperative federalism
in the older federations. They realised that governments in a federation were arranged not
hierarchically or vertically but horizontally, that no line of command runs from the Centre and the
States, and that common policies among the various governments can be promoted not by dictation
but by a process of discussion, agreement and compromise
Co-operative Federalism as the practice of administrative co-operation between general and regional
governments, the practical dependence of the regional governments upon payments from the general
governments and the fact that the general governments by the use of conditional grants, frequently
promote developments in matters which are constitutionally assigned to the regions. Inter-level
cooperation in different fields has been the most significant aspect of Indian federalism. Many of the
state legislatures through formal resolutions agreed to empower the Parliament to legislate in regard to
levy of succession duty on agricultural lands which under the constitution is a state subject.
Administrative cooperation on a large scale is a remarkable development in the operation of Indian
federalism.
• For example, the execution of land reclamation and development schemes under the plans the
central and state sector organizations function in close co-operation.
• The central inspectors help the state inspectors in enforcing the provisions of the Drug Act. The
Indian Federation has also involved conference techniques facilitating smooth union state relation and
inter-level co-operation. Periodic Conference between the representative of the Union and the States
have become a regular feature of the operative machinery of Indian federalism. Conferences of the
state Governors, meetings of the state Chief Ministers, State Ministers conferences and meetings of
union and state officials. The value of these meetings lies in adoption of an integrated an co-operative
approach towards the solution of the numerous problems which arise under India's federal structure
3. write a note on official languages
Solution:
The Official Language of the Union shall be Hindi in Devanagari Script but the form of numerical to
be used for the official purposes of Union shall be the international form of Indian numerals [Art. 343
(1)]. However, for a period of fifteen years from the commencement of the Constitution, the English
language shall continue to be used for all the official purposes of the Union. Even after fifteen years,
the Parliament may by law provide for the use of English Language for specified purposes [Art. 343
(3)]. Even during this period of fifteen years, the President may authorise the use of the Hindi
Language, in addition to the English Language,
The languages which are constitutionally recognized under Article 344 (1) and Article 351 are
Assamese, Bengali, Bodo,' Dogri,' Gujarati, Hindi, Kannada,2 Kashmiri, Konkani, Maithili,
Malayalam, Manipuri, Marathi, Nepali, Odia,' Punjabi, Sanskrit, San thali, Sindhi, Tamil, Telugu and
Urdu.
The Official Language of the Union shall be the official language for communication between one
State and other and between a State and the Union [Art. 346), but two or more States may agree to
have Hindi as the Official Language for communication amongst them.
Article 345 provides that the Legislature of a State may by adopt any one or more of the languages in
use in the State or Hindi as the language or other languages to be used for all or any of the official
purposes of that State.
The Parliament has passed the Official Language Act, 1963, which provides for continued use of
English for official purposes of the Union indefinitely, notwithstanding the expiration of the period
mentioned in Article 345. The change over to Hindi has thus postponed indefinitely by permitting the
use of English as an additional official language for all purposes for which it has been so far used. The
position was to be reviewed only after January 26, 1975. It has not been reviewed so far.
Languages to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc.-The
Parliament may also provide the use of Hindi Language in the proceedings of Supreme Court and
High Courts. Until Parliament by law otherwise provides all proceedings in the Supreme Court and
the High Courts and the authoritative Texts of Bills, Acts, Orders, etc. shall be in English language
(Art. 348 (1)). The Governor of State may, however, with the previous consent of the President,
authorise the use of the Hindi Language or any other language for any official purposes of the State,
in proceedings in the High Court except to any judgment, decree or order passed by the High Court
[Art. 348 (2)], For fifteen years from the commencement of the Constitution no Bill or amendment
making provision for the language to be used for any of those purposes shall be introduced in either
House of Parliament without the previous sanction of the President. The President will give his
sanction after taking into consideration the recommendation of the Language Commission and the
report of the Committee thereof (Art. 349]
4. write a note on Finance Commission
Solution:
Article 280 provides for the establishment of a Finance Commission. The President shall within two
years from the commencement of the Constitution and thereafter at the expiration of every fifth year
or at such earlier time as he considers necessary constitute a Finance Commission. The Finance
Commission shall consist of a Chairman and four ether members appointed by the President
Parliament may by law prescribe qualifications which shall be requisite for appointment as members
of the Commission and the manner in which they shall be selected
In the exercise of the power under Art. 280(1), Parliament has passed the Finance (Miscellaneous
Provision) Act, 1951. It provides that the Chairman of the Commission shall be selected from among
persons who have had experience in public affairs. The other four members shall be selected from
among persons who (1) are, or have been, or are qualified to be appointed as Judges of a High Court;
or (2) have special knowledge of the Finance and accounts of Government, or (3) have had wide
experience in financial matters and in administration, or (4) have special knowledge of economics.
The members of the Commission shall hold office for such period as may be
specified in the Presidential Order and shall be eligible for appointment. The Commission is
empowered to determine its procedure and shall have all the powers of a civil court in respect of
summoning and enforcing the attendance of witnesses, production of any document and requisitioning
any public record from any court or office. Duties of the Finance Commission. -Ist shall be the duty of
the Commission to make recommendations to the President as to-
(a) the distribution between the Union and the States of the net proceeds of taxes which are to be, or
may be, divided between them under this Chapter and the allocation between the States of the
respective shares of such proceeds:
(b) the principle which should govern the grants-in-aid of the revenues of the State out of the Conated
Fund of India;
(c) the measures needed to augment the Consolidated Fund of State to supplement the resources of the
Panchayats in the State on the basis of the recommendations made by the Finance Commission of the
State.
(d) the measure needed to augment the Consolidated Fund of a State to supplement the resources of
the Municipalities in State on the basis of the recommendations made by the Finance Commission of
the State.
(e) any other matter referred to the Commission by the President in the interest of sound finance

The Commission shall determine their procedure and shall have powers in the performance of their
functions as Parliament may by law confer on them