Federalism: Legislative Relations between Centre and States

By | February 13, 2019
Realism

Introduction

One of the salient features of Indian Constitution is that it is the lengthiest written constitution. Constitution now contains 465 Articles, (divided into 25 Parts) and 12 Schedules. Out of those twenty-five Parts, Part XI is titled as “Relations between the Union and the States” and contains two Chapters. This essay specifically deals with 1st Chapter which is titled as “Legislative Relations” and runs from Article 245 to 255; Sch.7 and five doctrines.

It is important, in order to achieve non-extinction of any nation and avoid anarchy, to maintain harmony amongst the various organs of the Government. The idea behind the inception of this Part under our constitution is the allocation of power and the concept to afford an essential safeguard against tyranny. Even one of the versions of the supporters of the theory of Separation of Powers is that, the idea of separation emphasis more on not to promote efficiency but to preclude the exercise of arbitrary power.

Hypothesis followed by our Founding Fathers

Our Founding Fathers heavily relied on the hypothesis that for the protection of the individual liberty from the arbitrariness and the smooth functioning of a democratic government need separation of powers in order to create a check and maintain balance but not in a rigid form, it should be dynamic, in accordance with changing nature of the society.

Constitutional Provisions: Mutatis Mutandis Or Not?

It is evident from the Constitutional Assembly Debates [1] that, while framing Part-XI framers of the Indian constitution had considered four model constitutions of different countries. And they were – U.S. Constitution, 1789 (USC”); British North America Act, 1867 (“BNAA”); Commonwealth of Australia Act (“CAA”); and Government of India Act, 1935 (“GoI, 35”).

These four enactments tendered two symmetrically opposite visions to our Founding Fathers. On one hand, the USC and CAA formed the first vision and on the other hand BNAA and GoI, 35 formed the second vision.

Vision – I

(I) U.S. Constitution: Apart from federal-constitution, each state has its own constitution and they are independent and sovereign. Art.1, S.8 of enumerates only 19 subjects on which Congress can legislate. Except where the seat of Federal-Government is to be established. 10th Amendment to the U.S.C. provides that, the State to continue with the lawmaking powers on the Subjects otherwise not mentioned. Thus, provides no exclusivity to the Congress. It is pertinent here to note that, there is no concurrent-list.

(II) Australian Law: like the U.S., each state in Australia has its own Constitution. S.51 provides that, federal-legislature can legislate only upon enumerated subjects. S.106 when r.w. 109 submits, States can continue with their lawmaking powers. It is this document which provided, if the conflict arises between State and Federal law, it is the State law which should wind up. Here also no concurrent-list exists.

Vision – II

Exclusive powers were given to both, under BNAA and GoI, 35, Central and Provincial legislature.

(I) BNAA: The concept of lists, with which Centre can make laws, was started with S.91 of BNAA. BNAA provides a small list of 16 subjects over which federal-legislature can enact. S.92 provides for Provincial legislative power. There is no concurrent list. However, S.95 provides for concurrent powers only in respect with two subjects – (a) Agriculture and (b) immigration.

(II) GoI, 35: Ss.99 and 100 r.w. Sch. 7 provides three lists, List-1 is Central List, List-2 is State List and List-3 is Concurrent List.

Our Founding Fathers accepted the 2nd vision and not the 1st vision. The wisdom being, the new India was an amalgamation of various Princely States and provinces. Some Princely States through Instrument of Accession (IoA) agreed to give up its power. But some straightaway refused to sign IoA. So India acquired those territories by indulging itself in a war-like situation.

So, the mere object was to establish a strong Center, which was the demand of time. If 1st vision had been accepted, then States was supposed to have its own Constitution bringing its superiority and sovereignty at par with that of the Center. Thus, in order to avoid the vesting of material power with States once the Constitution comes into force, the 2nd vision was accepted.

Article 245 And 246

The Scheme for the distribution of legislative power between the Union and the States has been taken from ‘GoI, 35’, and Articles 245 and 246 substantially reproduces Ss.99 and 100 of the ‘GoI, 35’. Consequently, the principles laid down for the interpretation of these Sections have been applied to the interpretation of current provisions.[2]

Article 245

Wordings of Article-245 are important because, BNAA provides that, Federal-Legislature can make laws on the subjects which are of national importance as against those of Provincial-List which empowers enactment on matters of local importance. Our Constitution does not have such a distinction. As long as the subject is within its legislative competence the Parliament can enact on matters which purely are of local importance.

Sub-Article (1) lays down the rule of private international law, that all laws are territorial. To the contrary, Sub-Article (2) enacts an exception and provides that no law made by Parliament is to be deemed invalid because it has extra-territorial operation. This means that a municipal court cannot refuse to give effect to a law made by Parliament because it has extra-territorial operation.[3]

It follows from Article-245(2) that the State laws would be void if they had extra-territorial operation. Interestingly State’s own territory is liable to change under our Constitution even without their consent; intimation for States is enough.[4] The mere fact that law operates on the person or things outside a state does not make the law extra-territorial if there exists territorial-nexus.

1st Doctrine: Territorial Nexus

Primarily, all laws are territorial in their operation. Doctrine suggests that laws made by a competent state legislative authority cannot be made applicable outside of the state, except when there is a sufficient nexus between State and the object.

It is evident from a unanimous judgment of the Supreme Court[5] that, there was no reason why the principle of territorial-nexus should not be applied to the legislation in respect of public religious endowments if the requirements of such nexus are complied with.[6]

2nd Doctrine: Pith and Substance

This doctrine is essential of Canadian origin, now firmly entrenched in the Indian Constitutional Jurisprudence. However, both the words “Pith” and “Substance” mean “core of something”. The doctrine provides to look at the law as a whole.

The doctrine was laid down by Privy Council in interpreting the BNAA, was first applied to Indian case[7]. Though, a duty of excise under Entry 45, List-I, Schedule 7 of GoI, 35, was by itself capable of including a tax on the sale of goods, since that very tax had been assigned to the Provincial-legislature under the entry. Justice Gwyer had to decide what does the term excise meant. He expressed that way back to England, the term excise includes the sale of goods. However, here in India, the term excise is in 1st list and tax on the sale of goods in the 2nd list. Thus the term excise here means a tax on the manufacturing of goods and not on sale.

In one of the important judgments[8] that took recourse to this doctrine, Supreme Court held that it is important to ascertain the true nature and character of the legislation for the purpose of determining the List under which it falls.

The Supreme Court brought more clarity to the doctrine and suggested that[9] the Court should not look at an Act by dissenting it, rather look at it as a whole; when you look at it as a whole does it fall in this entry or that. If it falls within this entry the entire Act is good in the eyes of law despite the fact that some or large part of it fall or trench upon what called forbidden field, in List-II or vice versa.

3rd Doctrine: Aspect

The Aspect doctrine is nothing but the different version of pith and substance. However, the court reviews the impugned subject matter from a different point of view or to say from a different angle.

It became clear from Khulna[10] judgment, The Bengal Money Lender Act (Beng. Act X of 1940) was brought in question and C.J. Patrick Spins was leading the bench. He said, when viewed in its true aspect from the legislator’s point of view, it would only fall within money lending and thus the fact that it incidentally trenches upon promissory-notes which fall within Federal List (Entry 27) is valid.

Article 246

The phrase “Notwithstanding anything in Cls. (2) & (3)” highlights federal supremacy. That, in case of inevitable-conflict between Union and State powers it is prior which shall prevail. In Case of overlapping between List-III and List-II, it is the former which shall prevail.

By virtue of Cl. (4) it is the legislative and thereby consequently executive power of the Union, in relation to the Union Territory extends to all Legislative-Lists.

Article 248

Article 248 r.w. Entry 97, List-I talks about residuary power. All matters not expressly enumerated either in List-II or List-III can be dealt with by Parliament. This was one of the major departures from S.104 of 1935 Act. Because under S.104 residuary power lay with Governor-General in Council and he used to decide as to whether a particular subject is to be assigned to the State or Centre. But now the residuary power altogether vests in Parliament.

To bring the residuary power in the picture, it should be the matter of last resort i.e. only when all the Entries in three Lists are absolutely exhausted,[11] i.e. only if the subject-matter cannot be comprehended in any Entry of every List.[12] In case two constructions are possible, one of which will avoid the resort to residuary power shall be preferred.[13]

Article 249, 250 and 251: Supplementary to each other

Article 249 is unique in its character and can be observed only in the Indian Constitution. When Rajya Sabha passes the resolution as provided in this Article and also there exists any previous State enactment on the same subject matter, the conflict is unavoidable.

Article 250 provides that if an emergency is declared, the nation may face a similar conflict between two sets of law. First set enacted by State legislative authority on certain subject enumerated in List-II and Second set enacted by the Parliament on the same subject matter, being during emergency Parliament is competent to enact on any subject in List-II.

However, our founding fathers very smartly took care of such a probable situation. And they have provided, under Article 251, for resolving the conflict of powers between two legislative authorities. The duration for which the Parliamentary piece of legislation continues to remain in force, the state law stands suppressed. Here, the mere reading of Article 251 will suffice to convince any legally prudent person that it does not provide that the state law becomes void by the reason of the operation of central enactment. Which means, it automatically enters into the shoes of the enactment which is supposed to receive the back-foot, if the doctrine of eclipse is operative. In simple words, the state law will come into force, with the same applicability and sanction, once the Parliamentary law goes.

4th Doctrine: Eclipse

Unlike U.S. Constitution, we’ve express provision pertaining to Judicial Review (under Article 13). The doctrine comes into picture only when there is a conflict between pre-independence and post-independence law which are offending Fundamental Rights (Part-III).

Article-13(1) exclusively deals with laws which were enacted prior to independence and provides that, if such law clashes Fundamental Rights as provided in Part-III they are void.

Article-13(2) also provides, in a very similar manner, for laws enacted in post-independence era particularly after the commencement of the Constitution, and thereby supplies that, the State shall not make any law which clashes with Fundamental Rights and if so made, such law will be void.

It is pertinent to note here that, the terminology used in Article-13 is void and does not suggest inoperativeness of one or the other law as under Article-251. Despite the term void, we treat and gives effect to provisions of Article-13 as suggested by this doctrine.

The Majority view of suggested that[14] this doctrine would apply to pre-constitutional laws and not to post-constitutional law. The literal logic behind such vision lies in the fact that the large numbers of Fundamental Rights were themselves under the scope of consideration for amendment. If the previously clashing law is no longer a conflicting law with Fundamental Rights after an amendment to Fundamental Rights it will spring out in the force.

Illustration  Suppose a law was validly made in 1945, but after the commencement of our constitution in 1950 it shares the conflict with any of the provision of Part-III it becomes void.

We can observe disagreement of Justice Fazal Ali with that of the majority opinion as he opined that, framers of our constitution used different expressions under different provisions with a purpose to give a different effect. Which to simplify means two provisions might look similar de hors, but will certainly have different applications in the eyes of law. Expression void means no effect whatsoever and the same expression is used in Article-13(1) & (2). Thus, there arises no question of an Act, being clashing with Fundamental Rights, holding back till Fundamental Right is amended and jumping back to the stream of effectiveness. How appealable this vision may sound, was not accepted by our courts.

It was another case[15], Justice S.R. Das held that, when Fundamental Rights guaranteed only to citizens are in conflict with any other law made, the later is void partially and not ab initio. The later law continues with its effectiveness against any non-citizen or artificial person. However, this view was also not accepted, either by the majority or by any other bench to date.

It is apparent from the reading of abovementioned judgments that nowhere the reference was made to Article 249 or 251. In case, if it was made, it could have cleared the exact spirit behind these Articles, and suggest that the term suggests temporary nature. As to explain this, it should have been considered when due to some reason or the other the power to enact is submitted to superior authority for the time being. And it is only when that time is over, the pre-enacted laws reassociates which is not the case in the matter of Article 13.

Article 252

Article 252 has its nexus to 104 & 106 of GoI, 35. This Article provides that State can itself give up its legislative power enlisted in List-II to the Centre for National-welfare. One of such example is the Water (Prevention and control of Pollution) Act, 1974 where 12 States passed the resolution.

Once the State submits the power to Center, such submission is supposed to be in totality. Unless and until Parliament makes law, giving the powers back to concerned State it is parted away with the State.

Article 253

This very Article provides that, the distribution of legislative powers between States and Union shall not restrict the power of Parliament to enact a law for effecting any international agreement. In other words, Parliament shall be competent to legislate on matters in List-II, in so far as the same may be necessary for the implementation of treaties or agreement.[16]

Article 254

This Article, while dealing with Concurrent-List, reproduces what GoI, 35 has provided. It provides, if there exists any Parliamentary law which is repugnant to State law, both on the subject matter enumerated in List-III, it is the State law which must return to the pavilion in every sense. However, this general rule is subject to an exception. Where even after such Parliamentary law if the State enacts inconsistent law and the President gives his assent to such State law, it the State law which should prevail within its territorial limits.

It is important for us to note here that, assent in this regard means the assent where he has applied his mind, and after considering all such situations he is satisfied on the point that, the law contrary to the central law must prevail in concerned state.

5th Doctrine: Repugnance

Interestingly, it is evident from Supreme Court judgment that[17], we have borrowed the concept of repugnancy from Art.109 of Australian-Constitution, where neither Concurrent-List nor State-List exists.

Both Australian and Indian Constitutional Jurisprudence provides that, the state law may be repugnant in three different ways and they are –

  • If the direct conflict between two provisions, where one cannot be obeyed without disobeying the other.
  • There may be an implied repugnance. Where Parliament intended its legislation to be Complete and exhaustive and thereby has replaced State legislation relating to the subject.
  • Where Central Act is not exhaustive but it occupies the same field as the State Act then this leads to repugnance.[18]

Article 255

The absence of the previous sanction to a bill required by the proviso to Art.304 does not invalidate an Act, if the bill, as passed, reserved the assent of the president. The invalidity may also be cured by the legislature re-enacting the provisions of the invalid statute and obtaining the assent of the President to the latter Act.[19]

State of J&K: Altogether A Different Story

Indian Constitution canvasses two visions –

(I) for the rest of India

(II) for J&K

J&K was conferred to adopt its own constitution after the Indian Constitution came into force, due to globally well known historical reasons. A Constituent Assembly was separately constituted in the year 1952.  And it was the year 1957 when J&K adopted its own constitution.

Thus, though India is Union of States, one set of law is operative for the rest of India and as far as J&K is concerned it is only what president ultimately allows in terms of our constitutional provisions to apply to the State of J&K.

In one case[20], State filed the suit arguing before the bench of Six-Judges that, Center cannot acquire State property without its consent and the reason being the latter is sovereign in its own sphere. Thus, the doctrine of eminent domain against the sovereign state shall not survive. Justice Sinha spoke for the majority and pointed out that India is quasi-unitary federal and not the quasi-federal. He said each federation must possess all the following features-

  • The State must have its own Constitution. And part of its powers must be submitted to the Centre.
  • If the federal-Constitution us to be amended, the voice should be of the state’s only.
  • States must have a separate list of subjects where it can enact exclusively.
  • There must be an independent judiciary.

Though we have the last two features, the first two are completely missing. And by virtue of its absence, it is difficult to call ourselves real federation.

However, J&K sub-model altogether portrays differently. One can refer to it as a true federation. The J&K has its own constitution and thus Part-VI of our Constitution does not apply to it. There exists no State-list for J&K as it has its own list over which it can legislate exclusively. The residuary powers continue with the State. Moreover, Articles 3 and 4 lacks the power to alter the boundary of J&K. Center cannot change the boundaries of J&K without its consent.

 Conclusion

  1. The provisions of our Constitution are well-interwoven. Every possible situation in which the conflict may arise between the Centre and State is well taken care of.
  2. The principle of separation of powers may purport to “define the very character of the political system,”[21] but giving precise content to this principle has not proved easy. While the Constitution distributes power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a better government.[22]
  3. Thus, the Indian Constitution is of its own kind and canvasses features of the quasi-unitary federation but at the same time within itself, it contains real federal features.

By – Abhishek Nandimath and Priyanka Mane

MMM’s Shankarrao Chavan Law College, Pune


Footnotes

[1] 8 Constituent Assembly Debates 793

[2] 3 H.M.Seervai, Constitutional Law of India 2305, (4th Ed., 2002).

[3] 3 H.M.Seervai, Constitutional Law of India 2305, (4th Ed., 2002).

[4]  Indian Const, art. 3&4.

[5] Bihar v Sm. Chaurasila Dasi, A.I.R. 1959 S.C. 1002 (India).

[6] 3 H.M.Seervai, Constitutional Law of India 2322, (4th Ed., 2002).

[7] Central Provinces Case, (1939) F.C.R. 18 (British India).

[8] The State of Bombay And Another v F.N. Balsara, (1951) S.C.R. 682 (India).

9  A.S. Krishna v State of Madras,  A.I.R. 1957 S.C. 297 (India).

[10] Prafulla Kumar Mukherjee & Ors v Bank of Commerce Limited, Khulna, A.I.R. 1947 P.C. 60 (British India).

[11] Subramaniyan v Muttuswami, A.I.R. 1941 S.C. 1061 (India).

[12] Second G.T.O. v Hazareth, A.I.R. 1970 S.C. 999 (India).

[13] Manikkasundaram v Nayudu, (1946) F.C.R. 67 (British India).

[14]  Keshavan Madhava Menon v The State of Bombay, A.I.R. 1951 S.C. 128 (India).

[15]  Deep Chand v The State of Uttar Pradesh, AIR 1959 S.C. 648 (India).

[16]  DD Basu, Constitutional Law Of India 497 (8th Ed. 2008).

[17] Zaverbhai Amaidas v State of Bombay, A.I.R. 1954 S.C. 752 (India).

[18] DD Basu, Constitutional law of India 499 (8th ed. 2008).

[19] DD Basu, Constitutional law of India 502 (8th ed. 2008).

[20] West Bengal v U.O.I, A.I.R. 1963 S.C. (India).

[21] G. Wood, The Creation Of The American Republic 151 (2nd Ed. 1969).

[22] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952).


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