The Indian Constitution establishes a dual political structure with a clear separation of powers between States and the Center, on the other hand each one is supreme within its own area. The Union of India is just not the outcome of a negotiation between the federation’s units & independent units and are unable to give it up. As a result, our Constitution includes detailed regulations to govern the many aspects of the Union-State relationship. They are (1) Legislative Relations, (2) Administrative Relations and (3) Financial relations. Utilizing auxiliary examination of hypothetical texts, this article seeks to understand the extent of laws passed by Parliament and State Legislature, power distribution between Union and States, power of the Center to Legislate on List-II and control of Center over State Legislature.
Introduction
“The States are as sovereign in the field which is left to them by the Constitution as the Centre in the field which is assigned to it.”
– Dr. B. R. Ambedkar
Power
distribution is an important feature of a federation, as said by Dicey. The
goal of forming a federal state is to create an authoritative separation
between the Union and State Governments. The federal tendency restricts all
aspects of government action, and the split of the State’s power between
parallel and independent entities is what distinguishes a federal system from
an unitary government. India i.e. Bharat is a federation of states as described
by the Indian Constitution and it divides executive and legislative power in
between Centre and State under three lists in the Seventh Schedule. The
legislative powers are subordinate to the constitutional arrangement for
distributing legislative power as outlined in the three lists, in between the
Union and State legislatures, as well as fundamental rights and also other
provisions of the constitution. Under International Law, a country has no
excuse that it can’t enforce International Law norms within its own boundary.
Extent of Laws passed by Parliament and State Legislature
The
Indian Parliament has the power to enact laws that apply to all or part of the
country’s territory. The states, union territories, and any other area
currently included in India’s territory are referred to as the
“territories of India.” The state legislature, on the other hand, has
the power to enact laws that affect the entire state or any section of it. The
Parliament is the only body that may enact “extra territorial
legislation,” which means that the laws apply to Indian residents and
their property anywhere on the globe.
The Union List (List-I) includes 100 items (Original 97 + Inserted 4 + Deleted 1 + Replaced 1) including residuary powers. Almost all of them are exclusively related to matters within the Union’s jurisdiction. For requiring uniform legislation of the nation as a whole, a subject of national importance is inserted in the Union List. (Examples – Citizenship, Defence, Arms & Ammunition, Banking, Foreign Affairs, War & Peace, Railways, Atomic Energy, Insurance etc.). However, some subjects, such as inter-state trade & business, inter-state rivers & river basins, and inter-state immigration, deal with inter-state issues.
2.State List –
The State List (List-II) includes 59 items or entries (Original 66 + Deleted 7) over which the exclusive power of legislation is under the State Legislature. The subject of local importance has been inserted in this list, where variations in law in response to local situations may be necessary. (Examples – Public Health, Local self-government, Agriculture, Police, State taxes & duties, Minerals, Forests, Administration of Justice etc.)
3.Concurrent List –
The
Concurrent List (List-III) includes 52 items (Original 47 + Addition 5 +
Substitution 3). The dispersion of legislative power in India’s federal
arrangement is given special weight in our Constitution. (Examples – Marriage
& Divorce, Criminal Law & Procedures, Civil Law & Procedures,
Welfare of labour, Contracts, Social planning, Trusts, Ports etc.) This list is
a twilight zone.
In
the 42nd Amendment Act, some changes were made in the 7th Schedule. By this,
five items were transferred from List-II to List-III. They are namely –
Administration of Justice, Education, Protection of Wild Animals and Birds,
Forests and Weights & Measures.
Residuary Power of Legislation
The
Parliament of India also has residuary powers (those not covered by either of
the three Lists) under the Indian Constitution. In contrast to the norm in all
other federations around the Universe, which grants residuary powers to
respective States, the Union was given residuary powers. In the event of a
controversy, the court will rule whether a particular subject lies under the
residuary powers or not.
Power of the Center to Legislate on List-II
Although
the Union Government of our country does not have the authority to enact laws
on issues listed in the List-II (State List) despite normal situations, our
Parliament could do so under certain specific situations. The five conditions
are discussed below –
Issues of National Interest (Article – 249)
“If the Rajya Sabha announces, by a resolution approved by not less than two-thirds of its members voting and present, that it is essential or expedient in the national interest for the Parliament to make laws concerning any item listed in the State List, the Parliament may do so (Article-249[2]).” Parliament has authority to enact legal provisions for the entire or any portion of India’s territory when such type of decision is approved. A resolution of this type is in operation for one year and it can be continued by one year by passing another resolution.
2.In the Pronouncement of National Emergency (Article – 250[3])
Whenever
the pronouncement of National Emergency is in effect, Parliament can pass
legislation on the issues included in the List-II. Nonetheless, the laws
enacted by Parliament under this article will expire six months just after
Pronouncement has stopped to exist, save in the case of things performed or
omitted to be conducted prior to the expiration of the stated period.
The Central Government could pass a proclamation of emergency in this COVID-19 pandemic which is affecting Kashmir to Kanyakumari. The Parliament can create a new law or policy of health and education in this situation for the country, even if the Health and Education is under the State List. States are bound to follow this.
3.In the Matter of Agreement between the State (Article -252)
The
Parliament of India can legislate on a provincial issue also, if either the legislatures
of two or more states agree that it is legal for the Parliament to enact laws
corresponding to any subject listed in the List-II. Following that, any
legislation created by Parliament applicable to these states, as well as every
other state that makes a similar resolution. Therefore, any such act is also
subject to amendment or repeal by the Parliament.
Sanitation
is covered under State List entry six, which includes public health and
sanitation hospitals and dispensaries. Prohibition of Manual Scavenging was
passed a new law by Parliament of India under Article-252[4],
and it was accepted by numerous States and was effective to all Union
Territories. But, when it became clear that the Act needed to be given more
authority to combat manual scavenging, Parliament passed a new law as a Union
Subject. Rather than considering manual scavenging to be a State topic, and its
eradication to be a matter of Human Dignity, Parliament constructed a new Act
as a core subject instead of relying on Article 252.
The Sarkaria Commission of 1987 flatly refused to diminish the central government’s power, claiming that a strong central government was required to ensure national unity and integrity. But at the other perspective, over-centralization was noted as a preventable issue.
4. For Implementation of Treaties (Article – 253[5])
“The Parliament has the authority to enact legislation for the entire or a portion of India’s territory in order to carry out any treaty, international agreement, or convention with any other country or nations, or any decision reached at any international conference, association, or other body.” Any of the laws enacted by our Parliament for this objective can’t be declared unlawful because it pertains to a subject on the State list.
5.At the time of Declaration of President Rule
During
the Declaration of President’s Rule, the President can also empower the
Parliament to execute the functions of the State legislature because of a
breakdown in the state’s constitutional structure. However, six months after
the declaration of Rule of the President ends, all such laws enacted by
Parliament become ineffective.
Control
of Center over State Legislature
The
Constitution gives the federal government the authority to exert control on
state legislatures in the following manner –
●
The governor has the authority to preserve some kinds of bills approved by the
legislature of the State for Presidential consideration. The President has
complete control over them.
●
Bills on some subjects inserted in the List-II that impose limits on freedom of
commerce & trade can only really be initiated in the legislature of State
well with the President’s prior consent.
●
At the time of financial emergency, the President has the authority to direct
states to set aside money bills & other bills on finance enacted by state
legislatures for his consideration.
Recently
in the case of “The Project
Director, Project Implementation Unit vs P.V. Krishnamoorthy & Ors.
(2020)” [6]the two
judge bench of A.M. Khanwilkar, (Author) and B.R. Gavai of the apex court held
that, “It is a well-established position that if the law made by the Parliament
is in respect of subjects falling under Union List, then the incidental
encroachment by the law under the State list, per se, would not render it
invalid and the doctrine of pith and substance is well-established in India.
The doctrine is invoked upon ascertaining the true character of the
legislation.” “If the law made by the Parliament or the legislature of any
State has a substantial and not merely a remote connection with the Entry under
which it is made, there is nothing to preclude the concerned legislature to
make law on all matters concerning the topic covered under the Union List or the
State List, as the case may be.”
Conclusion As a result of the aforementioned understanding, we can observe that the Indian Union’s States are dominated by the central government. India, despite being a union of states, can’t be considered really federal. In both emergency and non-emergency circumstances, the Union Parliament has the authority to override any State Law in favour of its own. As a result, India may well be considered a quasi-federal state that resembles Canada more than the fully federal United States of America. Despite the fact that the country and its inhabitants are categorized into 28 states for administrative convenience, the country is one indivisible unit, and its people are one individual residing under a common empire emanating from a specific source. We need a strong center, but it doesn’t mean the rest of the structure should be fragile. Without strong branches, we can’t have a powerful center.
*The Author is a Student of LL.M at KIIT School of Law, Bhubaneswar
Disclaimer:
The views, thoughts, and opinions expressed in the text belong solely to the
author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript.
Saurabh Kumar
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Author- Shashwata Sahu*
Abstract
The Indian Constitution establishes a dual political structure with a clear separation of powers between States and the Center, on the other hand each one is supreme within its own area. The Union of India is just not the outcome of a negotiation between the federation’s units & independent units and are unable to give it up. As a result, our Constitution includes detailed regulations to govern the many aspects of the Union-State relationship. They are (1) Legislative Relations, (2) Administrative Relations and (3) Financial relations. Utilizing auxiliary examination of hypothetical texts, this article seeks to understand the extent of laws passed by Parliament and State Legislature, power distribution between Union and States, power of the Center to Legislate on List-II and control of Center over State Legislature.
Introduction
“The States are as sovereign in the field which is left to them by the Constitution as the Centre in the field which is assigned to it.”
– Dr. B. R. Ambedkar
Power distribution is an important feature of a federation, as said by Dicey. The goal of forming a federal state is to create an authoritative separation between the Union and State Governments. The federal tendency restricts all aspects of government action, and the split of the State’s power between parallel and independent entities is what distinguishes a federal system from an unitary government. India i.e. Bharat is a federation of states as described by the Indian Constitution and it divides executive and legislative power in between Centre and State under three lists in the Seventh Schedule. The legislative powers are subordinate to the constitutional arrangement for distributing legislative power as outlined in the three lists, in between the Union and State legislatures, as well as fundamental rights and also other provisions of the constitution. Under International Law, a country has no excuse that it can’t enforce International Law norms within its own boundary.
Extent of Laws passed by Parliament and State Legislature
The Indian Parliament has the power to enact laws that apply to all or part of the country’s territory. The states, union territories, and any other area currently included in India’s territory are referred to as the “territories of India.” The state legislature, on the other hand, has the power to enact laws that affect the entire state or any section of it. The Parliament is the only body that may enact “extra territorial legislation,” which means that the laws apply to Indian residents and their property anywhere on the globe.
Power Distribution between Union and States[1]
The Union List (List-I) includes 100 items (Original 97 + Inserted 4 + Deleted 1 + Replaced 1) including residuary powers. Almost all of them are exclusively related to matters within the Union’s jurisdiction. For requiring uniform legislation of the nation as a whole, a subject of national importance is inserted in the Union List. (Examples – Citizenship, Defence, Arms & Ammunition, Banking, Foreign Affairs, War & Peace, Railways, Atomic Energy, Insurance etc.). However, some subjects, such as inter-state trade & business, inter-state rivers & river basins, and inter-state immigration, deal with inter-state issues.
2. State List –
The State List (List-II) includes 59 items or entries (Original 66 + Deleted 7) over which the exclusive power of legislation is under the State Legislature. The subject of local importance has been inserted in this list, where variations in law in response to local situations may be necessary. (Examples – Public Health, Local self-government, Agriculture, Police, State taxes & duties, Minerals, Forests, Administration of Justice etc.)
3. Concurrent List –
The Concurrent List (List-III) includes 52 items (Original 47 + Addition 5 + Substitution 3). The dispersion of legislative power in India’s federal arrangement is given special weight in our Constitution. (Examples – Marriage & Divorce, Criminal Law & Procedures, Civil Law & Procedures, Welfare of labour, Contracts, Social planning, Trusts, Ports etc.) This list is a twilight zone.
In the 42nd Amendment Act, some changes were made in the 7th Schedule. By this, five items were transferred from List-II to List-III. They are namely – Administration of Justice, Education, Protection of Wild Animals and Birds, Forests and Weights & Measures.
Residuary Power of Legislation
The Parliament of India also has residuary powers (those not covered by either of the three Lists) under the Indian Constitution. In contrast to the norm in all other federations around the Universe, which grants residuary powers to respective States, the Union was given residuary powers. In the event of a controversy, the court will rule whether a particular subject lies under the residuary powers or not.
Power of the Center to Legislate on List-II
Although the Union Government of our country does not have the authority to enact laws on issues listed in the List-II (State List) despite normal situations, our Parliament could do so under certain specific situations. The five conditions are discussed below –
“If the Rajya Sabha announces, by a resolution approved by not less than two-thirds of its members voting and present, that it is essential or expedient in the national interest for the Parliament to make laws concerning any item listed in the State List, the Parliament may do so (Article-249[2]).” Parliament has authority to enact legal provisions for the entire or any portion of India’s territory when such type of decision is approved. A resolution of this type is in operation for one year and it can be continued by one year by passing another resolution.
2. In the Pronouncement of National Emergency (Article – 250[3])
Whenever the pronouncement of National Emergency is in effect, Parliament can pass legislation on the issues included in the List-II. Nonetheless, the laws enacted by Parliament under this article will expire six months just after Pronouncement has stopped to exist, save in the case of things performed or omitted to be conducted prior to the expiration of the stated period.
The Central Government could pass a proclamation of emergency in this COVID-19 pandemic which is affecting Kashmir to Kanyakumari. The Parliament can create a new law or policy of health and education in this situation for the country, even if the Health and Education is under the State List. States are bound to follow this.
3. In the Matter of Agreement between the State (Article -252)
The Parliament of India can legislate on a provincial issue also, if either the legislatures of two or more states agree that it is legal for the Parliament to enact laws corresponding to any subject listed in the List-II. Following that, any legislation created by Parliament applicable to these states, as well as every other state that makes a similar resolution. Therefore, any such act is also subject to amendment or repeal by the Parliament.
Sanitation is covered under State List entry six, which includes public health and sanitation hospitals and dispensaries. Prohibition of Manual Scavenging was passed a new law by Parliament of India under Article-252[4], and it was accepted by numerous States and was effective to all Union Territories. But, when it became clear that the Act needed to be given more authority to combat manual scavenging, Parliament passed a new law as a Union Subject. Rather than considering manual scavenging to be a State topic, and its eradication to be a matter of Human Dignity, Parliament constructed a new Act as a core subject instead of relying on Article 252.
The Sarkaria Commission of 1987 flatly refused to diminish the central government’s power, claiming that a strong central government was required to ensure national unity and integrity. But at the other perspective, over-centralization was noted as a preventable issue.
4. For Implementation of Treaties (Article – 253[5])
“The Parliament has the authority to enact legislation for the entire or a portion of India’s territory in order to carry out any treaty, international agreement, or convention with any other country or nations, or any decision reached at any international conference, association, or other body.” Any of the laws enacted by our Parliament for this objective can’t be declared unlawful because it pertains to a subject on the State list.
5. At the time of Declaration of President Rule
During the Declaration of President’s Rule, the President can also empower the Parliament to execute the functions of the State legislature because of a breakdown in the state’s constitutional structure. However, six months after the declaration of Rule of the President ends, all such laws enacted by Parliament become ineffective.
Control of Center over State Legislature
The Constitution gives the federal government the authority to exert control on state legislatures in the following manner –
● The governor has the authority to preserve some kinds of bills approved by the legislature of the State for Presidential consideration. The President has complete control over them.
● Bills on some subjects inserted in the List-II that impose limits on freedom of commerce & trade can only really be initiated in the legislature of State well with the President’s prior consent.
● At the time of financial emergency, the President has the authority to direct states to set aside money bills & other bills on finance enacted by state legislatures for his consideration.
Recently in the case of “The Project Director, Project Implementation Unit vs P.V. Krishnamoorthy & Ors. (2020)” [6]the two judge bench of A.M. Khanwilkar, (Author) and B.R. Gavai of the apex court held that, “It is a well-established position that if the law made by the Parliament is in respect of subjects falling under Union List, then the incidental encroachment by the law under the State list, per se, would not render it invalid and the doctrine of pith and substance is well-established in India. The doctrine is invoked upon ascertaining the true character of the legislation.” “If the law made by the Parliament or the legislature of any State has a substantial and not merely a remote connection with the Entry under which it is made, there is nothing to preclude the concerned legislature to make law on all matters concerning the topic covered under the Union List or the State List, as the case may be.”
Conclusion As a result of the aforementioned understanding, we can observe that the Indian Union’s States are dominated by the central government. India, despite being a union of states, can’t be considered really federal. In both emergency and non-emergency circumstances, the Union Parliament has the authority to override any State Law in favour of its own. As a result, India may well be considered a quasi-federal state that resembles Canada more than the fully federal United States of America. Despite the fact that the country and its inhabitants are categorized into 28 states for administrative convenience, the country is one indivisible unit, and its people are one individual residing under a common empire emanating from a specific source. We need a strong center, but it doesn’t mean the rest of the structure should be fragile. Without strong branches, we can’t have a powerful center.
*The Author is a Student of LL.M at KIIT School of Law, Bhubaneswar
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript.
[1] https://legislative.gov.in/constitution-of-india
[2] https://indiankanoon.org/doc/1883579/
[3] https://indiankanoon.org/doc/497125/
[4] https://indiankanoon.org/doc/667558/
[5] https://indiankanoon.org/doc/741672/
[6] https://indiankanoon.org/doc/172903360/
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