Distribution of Power between Union and State

By | January 1, 2017
distribution of power

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Distribution of Power: Legislative Relations between Centre and State | Overview

The doctrine of distribution of power is a typical feature of federalism. In Federalism, the power is divided between multiple vertical levels of government like national, state, district, local which allows multiple access levels for citizens to approach.

Introduction: Distribution of Power

The Division of power under the Indian Constitution is generally divided by referencing to major two doctrines which are – the doctrine of separation of powers and the doctrine of distribution of powers. The famous political philosopher Montesquieu laid down the doctrine of separation of power based on the English legal system. His view in this theory was concentrating on the separation of the legislative, executive, and judicial powers. All the power to one person or body of persons will lead to tyranny in the state. So, he believed that these powers must be vested in three different organs namely legislature, executive, and the judiciary.

The doctrine of distribution of power is a typical feature of federalism. In Federalism, the power is divided between multiple vertical levels of government like national, state, district, local which allows multiple access levels for citizens to approach. Federalism makes sure the independence and coordination go hand in hand between both centre and state governments.

Every federal constitution has implemented its own scheme of powers. The Constitution of India has introduced its own structure having a two-fold distribution of legislative powers, i.e. with respect to territory and with respect to the subject matter.

The distribution of power with respect to territory is between Union and the States, whereas with respect to the subject matter, there is a unique system adopted by the Constitution of assigning specifically enumerated power among Union (List I), to State (List II) and Concurrent to both Union and states (List III).

Territorial Jurisdiction

Article 254 (1) of the Constitution says that Parliament may make laws for the whole or any part of the territory of India.  Article 254 (2) provides that a law made by Parliament shall not be invalid merely on the ground that it would have extra-territorial operation.

In the case of A.H. Wadia v. Income-tax Commissioner[1]  as explained by Chief Justice Kania that:

“In the case of Sovereign legislature, the question of extra-territoriality of any enactment can never be raised in the municipal courts 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 questions of policy with which the domestic tribunals are not concerned.”

The Hindu Marriage Act is applicable to all Hindus who are domiciled in India plus those who may be outside India for the time being, for example, in the situation when a Hindu returns to India after solemnizing his second marriage in a foreign country. He can be held liable under the Hindu Marriage Act.

Article 245(1) states that the State Legislature may make laws for the whole or any part of the State. In other words, the State legislature is not empowered to make such laws having extra-territorial operation i.e. a state law would be void if it has operated outside the concerned state.

In State of Bombay v. RMDC[2]   the state of Bombay levied a tax on lotteries and prize competitions which was extended to the newspapers published outside the state but having lump sum circulation of newspaper in the state. The respondent organized a prize competition through a newspaper printed and published in Bangalore but had wide circulation in Bombay.

The court held that there is sufficient territorial nexus between the person charged and the state seeking tax. Therefore the taxing statue could not be struck down on the ground of extra-territoriality. The question of whether there is sufficient territorial nexus will be determined according to the facts and circumstances of each case by courts.[3]

Jurisdiction with respect to the subject-matter

There exists a three-fold distribution of power under the Constitution of India when it comes to subject-matter. These are the three lists in the Seventh Schedule of the Constitution.

  1. Union List (List I): Union list having 97 items which are subjects of national importance such as foreign affairs, defense, banking, union duties, taxes, communication, and currency, etc.
  2. State List (List I): State list having 66 items which are subjects of state and local importance such as public order, police, trade, commerce, public health and sanitation, agriculture, fisheries, irrigation, education, state taxes, and duties.
  3. Concurrent List (List I): Concurrent list having 47 items which are subjects of common interest to both Parliament and the State Legislature. The laws on subjects such as education, forest, trade unions, marriage, adoption, and succession. It is pertinent to mention that this concurrent list is not found in any other federal Constitution. The purpose of adding this list to the Constitution of India was to secure coordination and uniformity throughout the country and to avoid undue rigidity between two-list distributions.

Principles of Interpretation of the Lists

  1. Each Entry must be Interpreted Broadly

Entries must be interpreted in the ‘widest possible’ and ‘most liberal’ way, none of them should be read in isolation with narrow pedantic sense.

The principle has been enunciated by the Supreme Court in the case of The Elel Hotels and Investment Ltd v. Union of India.[4] :

“The cardinal rule of interpretation is that the entries in the legislative lists are not 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. The widest possible construction, according to the ordinary meaning of the words in the entry, must be put upon them…..In construing the words in a constitutional document conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.”

  1. Harmonious Interpretation of Entries

In the federal Constitution of India, there is no clear-cut division of power among Union and state which may lead to conflict. In such cases, Judiciary has to make reconciliation attempts between conflicting entries.[5] It is said by Supreme Court that the language of conflicting entries should be given widest scope and amplitude. But there are some entries in different lists that overlap and appear to have a direct conflict with each other. It is then the doctrine of harmonious construction is to be applied. Reading both entries of two lists together and interprets or construe as a whole to remove the inconsistency.

  1. Rule of Pith and Substance

This doctrine is applied when there is a conflict between a law dealing with the subject matter in one list touching on a subject matter in another list. In other words, when there is some clash between-subject of List I and List II.  In such a case, Pith and Substance that is “true nature and character” of enactment should be ascertained.

In the case of Kerala SEB v. Indian Aluminium Co. Ltd,[6] this doctrine was applied and was held that:

 “For deciding under which entry a particular legislation falls, the theory of ‘pith and substance’ has been evolved by Courts. If in pith and substance a legislation falls within one list or the other, but some portion of the subject matter of that legislation  incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching.”

  1. The doctrine of Colourable Legislation

The doctrine is based on the legal maxim that “what cannot be done directly, cannot also be done indirectly”. Therefore, the doctrine is applied when a legislature is not empowered to make certain laws upon certain subjects but makes indirectly which is characterised as a fraud on Constitution.

In the case where the doctrine of colourability is applied,  K.C. Gajapati Narayana Deo And Other v. The State Of Orissa as:

“If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers”.

Residuary Power

It is humanly not possible to foresee every possible circumstance. The framers of the Constitution being conscious enough of the fact that human knowledge is limited designed the Constitution in a way to tackle the contingency which may arise in the future. Therefore, Residuary Power in Article 248 is intended to take care of such matters.

Residuary Power has been vested with Centre to make it strong. The Parliament is assigned to legislate, those powers which are not enumerated in any of the three lists. It was stated in the Constituent Assembly by Rao B. Shiva that:

“We think that the residuary powers should remain with the Centre. In view however of the exhaustive nature of the three Lists drawn up by us, the residuary subjects could only relate to matters which, while they may claim recognition in the future, are not at present identifiable and cannot, therefore, be included now in the Lists”[7]

The Union should not interpret these residuary powers under Article 248 to destroy or put down State autonomy. This would otherwise affect the federal principle of the country adversely.

Repugnancy between Central and State Law

Repugnancy arises when the different provisions of the two laws are inconsistent and absolutely irreconcilable. It is impossible to obey both the laws as one says ‘do’ while another says ‘don’t do’ in the same set of facts.[8]

In a case of ITC Ltd v. Agricultural Produce Market Committee[9]where the Supreme Court found the direct collision of enactments, ruled that the “question of allowing both of them to operate would not arise. In such an event, the Central legislation would prevail”

The fundamental of this principle is to achieve a uniform law by eliminating the inconsistency with two laws on the same subject matter. There would be no repugnancy if the provisions made by law do not exist in another law if the laws of parliament and the state are mutually exclusive and do not impinge on each other.[10] In M.Karunanidhi v. Union of India[11]the state and central laws were occupying the same subject matter but were found to be complementary to one another and not inconsistent. It was possible that such two enactments can co-exist without coming into collision.

Parliamentary Legislation in the State Field

Parliament is empowered under Articles 249 to 253 to encroach on the fields which are meant exclusively for State legislation, though it is subject to certain conditions being satisfied.

Conditions under which parliament can legislate in the state field are:

  1. When Rajya Sabha passes a resolution by the support of a special majority (members present and voting) declaring that the subject is of national interest. (Article 249)
  2. During times of national Emergency, Parliament is empowered to legislate on all subjects mentioned in any list. (Article 250)
  3. Power to legislate can be vested in Parliament if 2 or more state passes a resolution authorising parliament to make law for an item in the State list. (Article 252)
  4. For the implementation of treaties or decisions made in an international conference. (Article 253)
  5. During the president’s rule.

The rationale behind such distribution of powers in India between Union and State is that a strong Centre is essential to coordinate the activities of various states in the interest of uniformity to preserve the national unity and integrity. It is not wrong to believe that Central control is important to achieve rapid industrial and economic progress.

It is also important to maintain the State’s autonomy for smooth functioning. Therefore, the distribution of power creates a balance in the country.


References

[1] AIR 1949 FC 18,25.

[2] AIR 1957 SC 699

[3] Shrikant Bhalchandra Karulkar v. State of Gujarat, (1994) 5 SCC 459.

[4] AIR 1990 SC 1927

[5] In Re C.P. & Berar Sales of Motor Spirits & Lubricants Taxation Act, 1938

[6] (1976) 1 SCC 466

[7] Rao, B. Shiva, The Framing of India’s Constitution, II, 777.

[8] Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648.

[9] AIR 2002 SC 852

[10] Tika Ram Ji v. State of UP, AIR 1956 SC 676.

[11] AIR 1979 SC 898


  1. Federalism: Legislative Relations between Centre and States
  2. Centre and States should imbibe the spirit of Cooperative Federalism: Justice K M Joseph
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.