Centre-State legislative relations
Constitutional Law II · Unit I · Topic 2 of 21 · 7 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Territorial extent: Article 245
Parliament may make laws for the whole or any part of India; a State legislature for the whole or any part of the State. Under Article 245(2), a law of Parliament is not invalid on the ground that it operates outside India.
A State law can affect persons or things outside the State only if there is a sufficient territorial nexus between the object and the State. In State of Bombay v. R.M.D. Chamarbaugwala, 1957 INSC 34, AIR 1957 SC 699, a Bombay tax on prize competitions run from Mysore was upheld because the newspapers circulated, and the entries were collected, in Bombay.
2. Subject-matter: Article 246 and the Seventh Schedule
- List I, Union List — Parliament has exclusive power. Defence, foreign affairs, railways, banking, atomic energy, citizenship, income tax other than on agricultural income. Originally 97 entries.
- List II, State List — the State legislature has exclusive power. Public order, police, public health, agriculture, land, local government. Originally 66 entries.
- List III, Concurrent List — both may legislate. Criminal law and procedure, marriage and divorce, contracts, transfer of property, labour welfare. Originally 47 entries.
The Forty-second Amendment (1976) moved five subjects from the State List to the Concurrent List: education, forests, protection of wild animals and birds, weights and measures, and administration of justice (other than the constitution of the Supreme Court and High Courts). The order of supremacy under Article 246 is Union List first, then Concurrent, then State: where an entry in List I overlaps an entry in List II, List I prevails. The Hundred and First Amendment (2016) added Article 246A, which gives Parliament and the State legislatures simultaneous power to levy GST, cutting across the lists.
3. Residuary power: Article 248
Any matter not in List II or List III falls to Parliament under Article 248 and Entry 97 of List I, including taxes not mentioned elsewhere. India follows Canada here; in the United States and Australia the residue lies with the States. In Union of India v. H.S. Dhillon, 1971 INSC 289, (1971) 2 SCC 779, the Court upheld wealth tax on the capital value of assets including agricultural land. It held that if a matter is not in List II, Parliament has power under List I or the residuary entry, and the court need not find a specific entry.
4. Doctrines of interpretation
Pith and substance. When a law appears to fall under entries in two lists, the court looks at its true nature and character. If in substance it is on a subject within the enacting legislature's competence, it is valid even though it incidentally touches a subject in another list. The doctrine came from the Privy Council in Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna (1947). In State of Bombay v. F.N. Balsara, 1951 INSC 39, AIR 1951 SC 318, the Bombay Prohibition Act, 1949 was in pith and substance a law on intoxicating liquor (State List), and its incidental effect on imports, a Union subject, did not invalidate it.
Incidental or ancillary powers. Each entry carries with it the power to deal with matters reasonably connected with it. Entries are read widely, not narrowly.
Colourable legislation. “What cannot be done directly cannot be done indirectly.” If a legislature lacks power on a subject, it cannot reach it by dressing the law up as something else. The question is one of competence only, not of motive or good faith. In K.C. Gajapati Narayan Deo v. State of Orissa, 1953 INSC 52, AIR 1953 SC 375, the Court explained the doctrine and held that the Orissa Agricultural Income Tax (Amendment) Act, 1950 was a genuine taxing law and not a disguised attempt to cut down compensation payable under the zamindari abolition law.
5. Repugnancy: Article 254
- Article 254(1) — if a State law on a Concurrent List matter is repugnant to a law of Parliament, the law of Parliament prevails, whether passed before or after, and the State law is void to the extent of the repugnancy.
- Article 254(2) — a State law on a Concurrent List matter that has been reserved for and has received the President's assent prevails in that State despite the repugnancy.
- Proviso — Parliament may later enact a law on the same matter, including one that adds to, amends, varies or repeals the State law.
Repugnancy arises only within the Concurrent List. If the State law is on a State List subject, the question is competence, not repugnancy. The tests, drawn from Australian decisions, were set out in Deep Chand v. State of Uttar Pradesh, 1959 INSC 2, AIR 1959 SC 648: direct conflict between the two provisions; Parliament intending to occupy the whole field; or both laws covering the same subject. In M. Karunanidhi v. Union of India, 1979 INSC 42, (1979) 3 SCC 431, the Court restated that there must be a clear and irreconcilable conflict, and the laws must be capable of being read together if possible.
In Zaverbhai Amaidas v. State of Bombay, 1954 INSC 85, AIR 1954 SC 752, a Bombay law increasing punishment for offences under the Essential Supplies Act had received the President's assent. When Parliament later amended the central Act and dealt with the same subject of punishment, the Bombay law was held to be impliedly repealed under the proviso to Article 254(2).
6. Parliament legislating in the State field
- Article 249 — the Rajya Sabha resolves by two-thirds of members present and voting that it is necessary in the national interest. The resolution lasts one year and may be renewed; the law lapses six months after the resolution ends.
- Article 250 — while a Proclamation of Emergency is in operation, Parliament may legislate on any State List matter; the law lapses six months after the Emergency ends.
- Article 252 — two or more State legislatures resolve that Parliament should legislate; other States may adopt the law later. Examples: the Wild Life (Protection) Act, 1972 and the Water (Prevention and Control of Pollution) Act, 1974.
- Article 253 — Parliament may legislate on any subject to implement a treaty or international agreement.
- Article 356 — during President's Rule, Parliament may exercise the State legislature's powers or delegate them to the President.
Article 251 resolves conflicts under Articles 249 and 250 in favour of the law of Parliament. Article 255 says that a want of the Governor's or President's recommendation or previous sanction is cured by later assent, so it is a matter of procedure only.
7. Problem
A State legislature passes a law on adulteration of food with a punishment higher than the central Act. It is not reserved for the President. Is it valid?
Adulteration of foodstuffs is Entry 18 of the Concurrent List. Both may legislate, but under Article 254(1) the central law prevails where the two are repugnant. A higher punishment for the same offence is a direct conflict under the Deep Chand tests, so the State provision is void to that extent. Had it been reserved and received the President's assent, it would have prevailed in that State under Article 254(2), until Parliament legislated again on the same matter (Zaverbhai).
How this is examined
As an essay on Centre–State legislative relations, or as short notes on pith and substance, colourable legislation, residuary power or repugnancy. Problems usually turn on Article 254, so learn the difference between clause (1), clause (2) and the proviso. The material in section 6 also answers questions on the effects of a national emergency.
Now try the real questions: Constitutional Law II past question papers.