INSTITUTE OF LAW, NIRMA UNIVERSITY

………………………………………………………………………………………………

SUBJECT

 NAME: Legislative Power Under the Constitution of India

 CODE: 2COL945

SUBMITTED TO: DR. MUKTI JAISWAL

SUBMITTED BY: AAYUSH SHIVAM

ROLL NO.: 18BBL062

SEMESTER: IX

RESEARCH PAPER

TOPIC: Federalism & Distribution Of Legislative Power

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 Federalism And Distribution Of Legislative Power

ABSTRACT:
Relying on the federalist idea, the Indian Constitution features a system with a dual division
of legislative powers: according to territory and according to nature of the content. The
constitution's articles are dispersed among Articles 245-254. Article 245 discusses the
division of territorial legislative power there between the the Union and the State. According
to Article 246 of the Constitution, the Union List, State List, and Concurrent List are three
lists in the VIIth Schedule. Therefore, if there is a dispute here between federal law and a
state law on a topic covered by both, the federal law should take precedence. Additionally,
Article 248 of the Indian Constitution and Entry 97 of the Union List grant residual powers to
the Union government. Separation of power, in Dicey's opinion, is a crucial component of a
federation. The goal of creating a federal state is to establish an appropriate separation
between the federal government and the governments of the individual states. Every aspect of
governmental action is being constrained by the federal inclination, but the division of state
power among parallel and independent bodies stands out in particular because it distinguishes
a federal system from a unitary system of government. This research paper basically
concentrates on federalism and its theory and also focuses on distribution of legislative
powers within the government. The Constitution of India has distributed legislative powers
between the Union and the states to facilitate governing processes. It aids in organising and
protecting the people in an orderly manner.

LITERATURE REVIEW:
This review of literature sets the context of this study. It situates this research paper in several
relevant bodies of literature: (a) Prof. D.N. Banerji was right in his observation that “India is
a federation in peace times and a unitary state in time of emergency.” (b) The 101st
Amendment Act of 2016 (Goods and Services Tax) grants both state and federal governments
the authority to enact legislation governing GST, which may be enforced by the Union or the
State. Furthermore, whether the provision of goods or services, or both, occurs during
interstate trade or commerce, the Parliament solely has the authority to enact laws pertaining
to the GST. (c) US - The Constitution merely lists the federal government's powers; the states
are given the remaining authority. The Australian Constitution adopted a similar structure. In

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Canada, if there is a dual list of both federal and provincial topics, the centre is given the
remaining powers. India adopts the Canadian model.
The Indian constitution bases its equilibrium here between judiciary and the legislative on the
following initiatives:
The British Constitution has been altered to form the basis of the theory of parliamentary
sovereignty.
The American Constitution has been used as a model for the theory of judicial supremacy.
Compared to the Supreme Court of the USA, the Supreme Court of India has a more limited
range of judicial review authority.
In place of the American Constitution's provision of "due process of law," Article 21 of the
Indian Constitution provides for "established procedure by law."

INTRODUCTION:
Federalism is indeed the key function of the legislative power of the legislation. 1 The purpose
of creating a federal state is to allocate authority here between federal government and the
several states. A federal constitution establishes its dual polity wherein each state would be
granted sovereign governments to be employed in the territories that are explicitly allotted to
them, with the union at its centre and the states at its perimeter. One's and another's
jurisdictions are coordinated; none is servile to the other inside its own sector. The
distribution of legislative, executive, and administrative power between both the federal
government and that each state is really determined by the constitution, and not any
legislation passed by the federal government, contrary to this essential concept of the
federation. Depending on the local politics and history of each country, power is distributed
in a variety of ways.
The framers of our Constitution adopted the Canadian approach and opted for a strong centre.
The Government of India Act, 1935 was the legislation that initially established federal,
regional, and simultaneous distribution.
Scheme of Distribution of Legislative Powers:
According to Article 1 of the Constitution of India 2, India is a Union of states, which means a
federation of states. There is in a federation, a division of functions between the centre and

1
Where, K.C. Federal Government, 157( 1963).
2
Article 1(1) states, India, that is Bharat, shall be a Union of States.

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the states. Under the present Constitution, there is scheme of two fold distribution of
legislative powers-
 With respect to territory; and
 With respect to subject matter.
The Constitution of India proposes a three-fold division of legislative powers with regard to
subject matter by placing them in either of the matters enumerated, namely, the Union List,
State List, and Concurrent List.
The Indian Constitution's regulations on the division of legislative authority between both the
Union and the States exist dispersed among a number of articles (articles 245-254). However,
the core provision, which is the most significant of those provisions, is found in Articles 245-
246. Article 246 is significant in terms of the legislation's intended subject area.3

Distribution of Legislative Powers With Respect To Territory

The legislative powers of Parliament and the state Legislatures are subject to the provisions
of the Constitution viz. (1) the schemes of the distribution of legislative powers. (2)
Fundamental Rights.4 (3). Other provisions of the Constitution. Article 245 talks about
distribution of legislative power between Union & State with respect to territory.
According to Article 245(1), Parliament may pass legislation for all or a portion of the Indian
territory, according to the restrictions of the constitution. A legislation passed by the
Parliament must not be ruled illegal on the basis that it possesses extraterritorial operation, or
has impact outside the territory of India, according to clause (2) of Article 245.
Theory of Territorial Nexus
According to this doctrine, The Legislature of a state may state may make laws for the whole
or any part of the state.5 This implies that state laws that have extraterritorial application—
that is, laws that apply to people or things that are situated outside the state's borders—are

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Article 246 reads as under: 246(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 1 of 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, shall 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). (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
4
Part III of the Constitution
5
Article 245(1), The Constitution of India, 1950.
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invalid. The general rule does include one exception, though. If there is a strong enough
connection between the subject of the law and the state, the legislation's extraterritorial
application will be recognised.6 It is done by the application of doctrine of territorial nexus.
This doctrine was first evolved by the Privy council in Wallace vs. Income-tax
Commissioner, Bombay.7 In this instance, an English-registered corporation was indeed a
partner there in Indian firm. The whole money generated by the corporation was intended to
be taxed by the Indian Income-tax Authorities. The Privy Council used the doctrine of
territorial nexus and upheld the taxation. It is said that the company for that year had a
sufficient territorial connection because a significant portion of its income was derived from
British India, which allowed it to be treated as being at home in India for all purposes of
taxation on its income for that year, regardless of the source of the income.
According to the theory, it is not required for the subject of a law to be physically located
inside the borders of the state that issuing it. If there is a sufficient geographical connection
between the subject and the state enacting the legislation, it is adequate.
The Supreme Court applied the doctrine in State of Bombay Vs. RMDC 8, The Bombay State
levied a tax on lotteries and prize contests during this situation. The levy applied to a
magazine that had a sizable Bombay readership but then was printed as well as published in
Bangalore. The answer held the prize distributions throughout the whole paper. The court
found that the publication's geographical link was sufficiently strong to warrant taxes inside
the state in Bombay. When there is a strong enough connection between the person sought to
be taxed and the State's intention to tax him, the taxation act would be upheld. For the
doctrine to be applied, there must be:
 Relationship between both the state and the law's subject matter, which must be true
and not fictitious,
 The proposed liability must be relevant to that link.
 If there is a sufficient link, it will be decided by the courts in each case as a point of
fact.
 Extraterritorial applications of parliamentary legislation
Union Parliament may make laws having extra territorial operations and such a law would
not be void on the ground of having extra-territorial operations.

6
Kavalappara Kottarathil Kochuni Vs. States of Madras & Kerela, AIR 1960 SC 1080.
7
AIR 1948 SC 118
8
AIR 1957 SC 699
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In A. H. Wadia vs. Commissioner of Income-tax, Bombay 9, In this instance, the Gwalior
Government had lent a British Indian corporation a sizable quantity of money at Gwalior in
exchange for a mortgage on debentures secured by British Indian real estate. At Gwalior, that
loan's interest was due. The Indian Income tax Act was used to tax it. Upholding the levy, the
Supreme Court held:
In the case of a sovereign Legislature question of extra-territoriality of any enactment can
never be raised in the municipal Court as a ground for challenging its validity. The
legislation may offend the rules of International law , may not be recognized by foreign
courts, or there may be practical difficulties in enforcing them but these are quest of policy
with which the domestic tribunals are concerned.

Distribution of Legislative Powers With Respect To Subject Matter

In terms of the Article 246 of the Indian Constitution, there is a threefold distribution of
legislative powers between Union and the state governments. The VII th Schedule of the
Constitution contains 3 lists.
1. Union List: Defense, armed forces, weapons and ammunition, atomic energy, foreign
affairs, war and peace, citizenship, extradition, railways, shipping and navigation,
airways, posts and telegraphs, telephones, wireless and broadcasting, currency,
foreign trade, inter-state trade and commerce, banking, insurance, control of
industries, regulation, and mine development are among the 97 items of all India
character that the Union List grants it exclusive legislative authority over. 10
2. The State List: The State list, which has been increased to include 65 things,
nevertheless grants the states unique legislative authority over 66 items. These topics
are mainly of local interest and include things like policing, healthcare, transportation,
land policy, state electricity, village administration, etc. On these issues, only the state
assembly has the authority to pass legislation.
3. The Concurrent List: The concurrent list gives the union as well as the states the
authority to enact laws on 47 different topics. Both the federal government and indeed
the governments of both the states are concerned about the subjects here on category.
Marriage, divorce, contracts, bankruptcy and insolvency, trustees and trusts, civil
procedure, contempt of court, adulteration of food, drugs and poisons, economic and

9
AIR 1949 FC 18
10
Schedule VII.
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 social planning, trade unions, labour welfare, electricity, newspapers, books and
printing presses, stamp duties, etc.
The concurrent list of issues can be regulated by the both the federal and state governments.
If there is a contradiction here between central law as well as a state law on such a matter on
this list, the union legislation should typically take precedence. Nevertheless, if a state law
that requires the President's approval receives it, it will take precedence so over union law.
The union Parliament is granted the authority to enact laws on subjects not covered by any of
the three lists by Article 248.11 The union government has therefore all remaining powers in
India.

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 state list or
concurrent list. Entry 97 in the Union list also lays down the Parliament has exclusive power
to make laws with respect to any matter not mentioned in the state list or the concurrent list
including any tax not mentioned in either of these lists. This reflects the learning of the
constitution makers towards a strong centre.
In Union of India vs. H.S. Dhillon12, the question involved 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 is I, in such a case it becomes immaterial whether it falls
under Entries 1-96 of List or not.
Thus, the distribution of legislative powers by the Constitution is heavily tilted towards the
centre.

Principle of Interpretation of Lists

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248.Residuary powers of legislation.-(1)Parliament has exclusive power to make any law
with respect to any matter not enumerated in the Concurrent List or State List. (2) Such
power shall include the power of making any law imposing a tax not mentioned in either of
those Lists.
12
AIR 1972 SC 1061

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States and the Center each have varying degrees of influence. Outside of their designated
areas, they are not permitted to pass legislation. There's really crossover here between issues
listed in the three lists, therefore the allocation of nature of the content can indeed be deemed
statistically flawless. In these situations, it is continuously questioned about whether a certain
issue falls into the purview of one government or the other as well as the constitutionality of
the statute. The Supreme Court of India is given this responsibility under a federal
constitution. To establish the respective authority of the Union and the States under the three
lists, the Supreme Court has developed the following criteria of interpreting.

Predominance of the Union List:

The non-obstante provision is included in Article 246. In addition to discussing the division
of powers, Article 246 also describes the predominance of powers. The superiority of the
Union List over the State List and the Concurrent List is explicitly guaranteed by the starting
words of Article 246 (1), even apart from anything else in clauses (2) and (3), and the
opening words of clause (3), subject to clauses (1) and (2). Additionally, there is the
concurrent List over the State List. As a result, the Union List will once again have
precedence in cases where the Union List and the Concurrent List overlapping. The
Concurrent List should take precedence over the State List in the event of a dispute here
between two lists.

Each Entry to be interpreted Broadly:

Entry in the multiple lists should be read liberally, subject to the Union List's overriding
preponderance.
In Calcutta Gas Ltd. Vs. State of Bengal13, The apex Court said that, the wildest possible and
most liberal interpretation should be given to the language of each entry. A general word used
in an entry…. Must be constructed to the extent to all ancillary or subsidiary matters which
can fairly and reasonably be held to be included in it.14

Doctrine of Pith & Substance:

Many times, a legislation that a legislature passes with regard to a subject that falls under its
purview also affects a subject that is not within that purview. The doctrine of pith and

13
AIR 1962 SC 1044
14
Prem Chand Jain vs. R.K. Chabra, (1984) 2 SCC 302.
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substance should be used in these situations to decide any questions regarding the
constitutionality of the statute. The phrase with respect to in Article 246 is where the doctrine
comes from.
The Union and State legislatures are thus made paramount within their own domains, and
they should refrain from encroaching upon the domain designated for others. The court will
use the doctrine of pith and substance to decide whether the legislature in question was
competent to pass the law if it intrudes on the territory designated to the other. Even though a
law may unintentionally touch on subjects outside the purview of the legislature that passed
it, it should be considered intra vires if the core of the law—that is, the real purpose for why
it was passed—relates to a subject within that body's purview.
This principle was used by the Privy Council in Profulla Kumar v. bank of Khulna 15. The
Bengal Money Lenders' Act of 1946, which restricted the sum and the interest rate that could
be recovered by a money lender on any loan, was challenged in this case on the grounds that
it was outside the authority of the Bengal Legislature insofar as it related to promissory notes,
the case's main topic. The Privy Council ruled that the Bengal Money-Lenders Act was
legitimate despite bordering incidentally on Promissory note, a key issue, because it was in
essence and substance a law regarding money lending and money lenders, a state matter.
The Bombay Prohibition Act, which forbade the sale and possession of alcoholic beverages
in the state, was challenged in State of Bombay v. F.N. Balsara 16 on the grounds that it
unintentionally interfered with the import and export of alcoholic beverages over customs
borders, a crucial issue. It was argued that the import of alcohol would be impacted by its
ban, acquisition, use, possession, and sale. Even though the Act unintentionally infringed
against the Union Powers of Legislation, the court upheld its validity because its core
provisions lay under the State List and not the Union List.

Colourable legislation:
Often, a legislature will pass legislation addressing a subject outside the scope of its authority
by assigning it a new shade of colour to bring it into its purview. In these situations, the
courts use the principle of colourable legislation to ascertain the true essence, character, or
core of the law. The law would be deemed illegal and would not be protected by the fact that
it was assigned a different colour if the examination revealed that the statute's essence and
substance relate to a subject outside the legislative purview of the legislature that passed it.
15
AIR 1946 SC 375
16
AIR 1951 SC 318
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In the case of State of Bihar v. Kameshwar Singh 17, the Bihar Land Reforms Act of 1950 was
declared invalid on the grounds that, despite appearing to establish a standard for calculating
compensation, it actually contained no such standard and thus indirectly sought to deny the
petitioner of any compensation. The court ruled that such a statute was unlawful and invalid.

Doctrine of Incidental & Ancillary Powers:

According to the idea, there must be an implied right to pass laws that are ancillary to the
exercising of a Legislature's plenary capacity to act on a certain subject. The terms incidental
and ancillary refer to the powers that must be used in order to properly and effectively
implement the legislative authority that has been expressly granted.

Rule of Harmonious Construction:

If possible, the courts must interpret all of a statute, rule, or regulation's provisions
consistently and uphold them rather than completely invalidating them. If there is any
ambiguity in a statute's provisions or if they appear to be at odds with one another or to be
ambiguous, the rule of harmonious interpretation must be used. In such a situation, the norm
obligates the Court to construe the Statute's provisions in such a way that they all remain in
harmony with one another. The Court should endeavour to harmonise and reconcile entries as
much as is practical. When this is not practicable, only then does the non obstante clause
apply and the Union Legislature's overriding power take precedence.18

Repugnancy Between A Central law and A state Law:

Article 254(1) of the Constitution states that if any provision of a law made by the legislature
of the state is repugnant to any 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
provision of the law made by the legislature of the state that is in conflict shall prevail. Only
when there is a conflict between a Central Law and a State Law regarding a topic listed in the
Concurrent List does Article 254(1) come into play.

17
1952 1 SCR 889
18
State of Bombay v. F.N. Balsara, AIR 1951 SC 318, 322

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Test of Repugnancy:
The Supreme Court established the following criteria in Deep Chand v. State of Uttar
Pradesh19 for assessing whether a Union Law and a State Law are incompatible: (a) There
may be discrepancy in the actual language of the two Statutes, including when one says do
while the other says do not. (b) When an attempt is made by the State and Union Laws to
exert their authority over the same matter. (c) Even if there isn't a direct confrontation, a State
Law won't apply since the Union Law is meant to be a thorough, all-encompassing code.
In Baijnath v. State of Bihar20, Parliament passed the Mines and Minerals (Regulation &
Development) Act, 1957, under Entry 54 of the Union List, announcing that it would be
under the control of the Union for the purposes of the Act's provisions, including the
regulation of mines and the development of minerals. The Bihar Land Reforms (Amendment)
Act, 1964, which amended the Bihar Land Reforms Act, 1950, was passed by the Bihar
Legislature in 1964.
A summary of the repugnancy test was provided by the court in M. Karunanidhi v. Union of
India21. He said that the following scenario would result in a conflict between the two
statutes: 1. It must be demonstrated that there is an obvious and direct discrepancy between
the two statutes (the Central Act and the State Act) that prevents them from coexisting or
carrying out the same functions. 2. Absent a clear conflict between the two Acts, there is no
repeal by implication. 3. In which the two statutes overlap in a given area yet there is room
for or a chance that both acts could operate there independently of one another, there is no
repugnancy. 4. No issue of repugnancy emerges and both acts continue to function within the
same field where there is no conflict yet a statute inhabiting the same area aims to create
unique and independent offences.

Exception (Article 254(2)):

19
1959 AIR 648, 1959 SCR Supl. (2) 8
20
1970 AIR 1436, 1970 SCR (2) 100
21
AIR 1979 SC 898
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To the exemption set forth in this Article's clause (2), the aforementioned repugnancy norm is
nevertheless subject.22 However, the parliament would still be able to revoke such a law by
passing another law on the same subject in the future under the terms of article (2). If it
passes such a bill, the State Law would indeed be incompatible with the Union Law and
hence null and void.
In addition to this, the constitution outlines five exceptional circumstances in which the
Union Parliament shall have the authority to pass laws regarding items on the state list.

Parliaments Power to legislate on State subjects:

The above scheme of allocation is either interrupted in certain extraordinary cases or the
abilities of the Union Parliament are enlarged over the subjects listed in the Slate List, even
though in normal times it must be strictly retained so that neither the State nor the Centre can
encroach upon the domain assigned to the other through the Constitution. The exceptional
circumstances are,
 Power of parliament to legislate in the national interests:
 During a Proclamation of Emergency:
 Parliament power to legislate with the consent of the state:
 Parliament’s power to legislate for giving effect to treaties and international
agreements:
 In case of failure of constitutional machinery in a state:

CONCLUSION:
The Union Parliament has consequently been granted more jurisdiction than the States, as is
evident from the plan for dividing legislative power between the Union and the States. The
States are partially reliant on the Center since even the matters that the Constitution gives the
States sole authority over do not come under their jurisdiction. This plainly shows how
rigidly the federal concept is applied in America and Australia.
For historical reasons, India's founding fathers crafted an excessively centralised union. To
keep such a diverse polity under one roof, it was important to provide the central government
22
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.

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the strength it needed to stifle polarising tendencies due to the country's huge size and wide
range of diversity. The subdivisions are not viewed as subordinate to the centre, though. They
have been granted enough latitude to act as independent centres of power in regular times.
The Sarkaria Commission has also argued for a strong centre in order to preserve the
country's integrity and unity. The Commission has favoured the supremacy of Parliament in
accordance with Articles 246 and 254. Prof. D.N. Banerji was right when he said that India is
a confederation during times of peace and a unitary state during times of emergency.
As a result of the aforementioned thinking, we may see Central supremacy over the States of
the Indian Union. India cannot be called really federal even if it is a federation of states. The
Union Parliament has the power to override any State Law and implement its own in urgent
situations as well as regular ones. As a result, India may be thought of as a quasi-federal State
that is more like Canada than the completely federal United States of America.

REFERENCE:
1. THE CONSTITUTION OF INDIA, 1947
2. SCC ONLINE
3. MANUPATRA
4. https://www.legalbites.in

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