Discuss briefly the legislative relations between the Union and the States in India. Or When can parliament legislate upon matters enumerated in the State List (List H of Seventh Schedule) ?

Ans. Legislative Relations between Union and States—According to the scheme of the division of Legislative powers the Constitution of India divides them in two kinds —

(i) with respect to territory; and

(ii) with respect to subject-matter.

1. Territorial Jurisdiction —According to Art. 245 (2) parliament may make laws for the whole of the territory of India. It has power also to make laws having extra-territorial operation and a law so made is not to be deemed to be unconstitutional merely on the ground of extra-territorial operation. According to Art, 245 ( I ) A state can legislate only “for the whole or any part of the State.” Hence state law would be invalid if it has extra-territorial operation i.e., takes effect outside the State. But there is one exception to this general rule. A state law of extra-territorial operation will be valid if there is sufficient nexus between the object and the State.

2. Jurisdiction with respect to subject-matter—Indian Constitution. divides the Legislative powers between the Union and the States in threes lists- I

1. Union List—The Union List consists of 97 subjects. The subjects mentioned in the Union List are of national importance, i.e., defence, foreign affairs, banking currency and coinage, union duties and taxes, But Entry 33 was deleted by the Constitution (7th Amendment) Act, 1956 and Entries 2-A, 92-A and 92-B were added by amendments.

2. State List-It consists of 66 subjects. But Entries 19, 20, 29 and 36 have been deleted by constitutional amendments. These are of a local importance such as, public order and police, local Government, public health and sanitation, agriculture, forest, fisheries, education, State taxes and duties. The States have exclusive power to make laws on subjects mentioned in the State List.

3. Concurrent List—It consists of 47 subjects. New entries 11-A, 17-A, 17-B, 20-A, and 33-A have been added by constitutional amendments. Both Centre and the States can make laws on the subjects mentioned in the Concurrent List. But in case of conflict between the Central and the State law on Concurrent subjects, the Central law will prevail. The Concurrent List is not found in any federal Constitutions. The framers added this list to the Constitution with a view to secure uniformity in the main principles of law throughout the country. The Concurrent List was to serve as a device to avoid excessive rigidity to two-list distribution. The Concurrent List thus, in the words of Pyle, is “a twilight zone, as it were, for both the Union and the States are competent to legislate in this field, without coming into conflict.

The Residuary Powers —Art. 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 Concurrent List or the State List. Entry 97 the Union List also lays down that 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. Thus, the Indian Constitution makes a departure from the practice prevalent in U. S. A., Switzerlands and Australia wheie residuary powers are vested in the States. This reflects the leanings of the Constitution-makers towards a strong Centre.

How the Repugnancy of Central and State Law is removed-Although the Centre and States cannot make laws outside their allotted subjects yet no scientific division is possible and very frequently a question arises as to whether a particular subject falls in the sphere of one or the other government. This duty in a federal constitution is vested in the Supreme Court of India. The Supreme Court has evolved the following principles of interpretation in order to determine the respective power of the Union and the States under the three Lists —

1. Predominance of the Union List —The opening words ofArt. 246 (i) “notwithstanding anything contained in Cl. (2) and (3)” and the opening words ofCl (3) “subject to Cl. (1) & (2)” expressly secure the predominance of the Union List over the State List and the Concurrent List and that of flue Concurrent List over the State List. Thus, in the case of overlapping between the Union and the State List it is the Union List which is to prevail over the State List. In case of overlapping between the Union and the Concurrent List, it is again the Union List which will prevail. In case of conflict between the Concurrent List and State List, it is the Concurrent List that shall prevail.

2. Each Entry to be interpreted broadly—Subject to the overriding predominance of the Union List, entry in the various lists should be interpreted broadly. In Calcutta Gas Ltd. Vs. State of West Bengal, A.I.R. 1962 the Supreme Court said that the “widest possible” and “most liberal” interpretation should be given to the language of each Entry, A general word used in an Entry must be contrued to the extent to all ancillary or subsidiary matters which can fairly and reasonably be held to be included in it. The Court should try, as far as possible, fo reconcile entries and to bring harmony between them. When this is not possible only then the overriding power of the Union Legislature— the non-obstante clause applies and the federal power prevails.

In Union of India Vs. H. S. Dhillon,A.I.R. 1972 the question involved was 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 whether the mailer fell in List II (State List) or List III (Concurrent List). Once it is found that the matter does not fall under List II, Parliamenl will be competent to Legislate on it under its residuary power in Entry 97 of List I, In such a case it becomes immaterial whether it falls under Entries 1 — 96 of List I or not.

In International Tourism Corporation Vs. State of Haryana, A.I.R. 1981, the appellants challenged the validity of S. 3 of the Haryana Passenger and Goods Taxation Act, 1952, which permitted the levy of tax on passenger and goods carried on by carriages plying on the National High Ways. It was, contended thai the State Legislature wa,s incompetent to levy such a tax on motor vehicles plying on National Highways. It was said thai the Parliament alone had power under Entry 23 read with Entry 97 of List Ito legislate in respect of National High Ways. Entry 56 of List empowers the State to levy such taxes which are regulatory and compensatory, i.e., roads maintained by the State Government. The Court held that the State Legislature is competent to levy taxes on passengers and goods carried in the National High Ways under Entry 56 of List II which empowers the State Legislature to impose taxes on goods and passengers carried on by road or on inland waterways. The Court held that before exclusive legislative competence can be claimed for Parliament by resorting to the residuary power, the legislative incompetence of the State Legislature must be clearly established.

2. Pith and Substance —Since within their respective spheres’ the Union and the State legislatures are made supreme hence they should not encroach into the sphere reserved to the other. If a law passed by one encroaches upon the field assigned to the other Court will apply the doctrine of pith and substance to determine whether the legislature concerned was competent to make it. If the ‘pith and substance’ of law i.e., the true object of the legislation or a Statute, relates to a matter with the competence of Legislature which enacted it, it should be held to be intra vires even though it might incidently trench on matters not within the competence of Legislature, In order to ascertain the true character of the legislation one must have regard to the enactment as a whole, to its object and to the scope and effect of its provisions.

The Privy Council applied this doctrine in Profulla Kumar Mukerjee Vs. Bank of Khulna, A.I.R. 1947 P.C. 60. In this case the validity of the Bengal Money Lenders Act, 1946, which limited the amount and the rate of interest recoverable by a money lender on any loan was challenged on the ground that it was ultra vires of the Bengal Legislature in so far as it related to ‘Promissory Notes’, a Central subject. The Privy Council held that the Bengal Money-leaders Act was in pith and substance a law in respect of money-lending and money-lenders —a State subject, and was valid even though it trenched incidently on “Promissory note” —a Central subject.

In State of Bombay Vs. F. N. Balsara, A.I.R. 1951, the Bombay, Prohibition Act. which prohibited sale and possession of liquors in the Stale, was challenged on the ground that it incidently encroached upon import and export of liquors across custom frontier —a Central subject. It was contended that the prohibition, purchase, use, possession and sale of liquor will effect its import. The Court held that Act valid because the pith and substance of the Act fell under the State List and not under Union List even though the Act incidently encroached upon the Union Powers of Legislation.

4. Colourable Legislation — In. K. C. G Narayan Dev Vs. State of Orissa, A.I.R. 1953, the Supreme Court explained the meaning and scope of the doctrine of Colourable Legislation i.e., “If the,Constitution distributes the legislative power amongst different Legislative 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, question arises 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.” Such transgression may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements. The idea conveyed by the expression is that altIptiO apparently a legislature in passing a statute purported to acl, within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise, ”

Thus, the whole doctrine of colourable legislation is based upon the maxim that “you cannot do indirectly what you cannot do directly”. In these cases the Court will look in the true nature and character of the legislation and for that its object, purpose or design to make law on a subject is relevant and not its modve. If the Legislature has power to make law, motive in making the law is “irrelevant”.

In State of Bihar Vs. Kameshwar Singh, A.I.R. 1952 S.C. 2S2 the Supreme Court for the first time has declared State Law invalid on the ground of colourable legislation. In this case the Bihar Land Reforms Act, 1950, was held void on the ground that though apparently it purported to lay down principle for determining compensation yet in reality it did not lay down any such principle and thus indirectly sought to deprive the petitioner of any compensation.

Repugnancy between a Central Law and a State Law—Art. 254 (1) says that if any provision of 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 Parliament, whether passed before or after the Law made by the Legislature of such State or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void.

According to Fazal Ali, J, a repugnancy would arise between the two statutes in the following situations —

I . It must be shown that there is clear and direct inconsistency between the two enactments [Central Act and State Act] which is irreconcilable, so that they cannot sland together or operate in the same field.

2. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. Where the two statutes occupy a particular field, but no room or possibility of both the statutes operating in the samefield without coming into collusion with each other, no repugancy results.

4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.

The above rule of repugnancy is, however, subject to the exeption provided in Cl. (2) of Art. 252; According to CI. (2) if a State Law with respect to any of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament, or an existing law with respect of that matter, then still law if it has been reserved for the assent of the President and has received his assent, shall prevail notwithstanding such repugnancy: But it would still be possible for the Parliament under the proviso to [cl.(2)] to override such a law by subsequently making a law on the same matter. If it makes such a law the State Law would be void to the extent of repugnancy with the Union Law.

In Deep Chand Vs. Slate of U.P.,A.I.R. 1959 the validity Transport Service (Development) Act was involved. By this Act the state Government was authorised to make the Scheme for nationalisation of for the Motor Transport in the State. The law was necessitated because Motor Vehicles Act, 1939, did not contain any provision nationalisation of Motor Transport Services. Later on, in 1956 the Parliament with a view to introduce a uniform law amended the motor Vehicles Act, 1939, and added a new provision enabling the Government to frame rules of nationalisation of Motor Transport. Court held that since both the Union Law and the State occupied the same field, the State Law was void to the extent of repugnancy to the Union Law.

Under what circumstances Parliament can Legislate on Subjects ? The Parliament can legislate on state subjects on the following circumstance’s

1. Power of Parliament to legislate in the national interests According to Art 249, if the Rajya Sabha passes a resolution support by 2/3 of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated within State Law, then it shuld be lawful for the Parliament to make laws for the whole or any part of the territory of India with respect to that matter so long as the resolutio remains in force. Such a resolution normally lasts for a year; it may be renewed as many times necessary but not exceeding a year at a time. These laws of Parliament will, however, cease to have effect on tha expiration of the period of six months after resolution has ceased to operate.

2. During a Proclamation of Emergency —According to Art. 250 while the Proclamation of Emergency is in operation the Parliament shall have power to make iaws for the whole or any part of the territory of India with respect to all matters in the State List. Such a law, however, shall cease to have effect on the expiration pf six months after the proclamation of emergency has ceased to operate.

3. Parliament’s power to legislate with the consent of the States—According to Art. 252 ;f the Legislature of two or more States pass resolution to the effect that it is desirable to have a law passed by Parliament on any matters in the State List, it shall be lawful for Parliament to make laws regulating that matter. Any other State may adopt such a law by passing a resolution to that effect. Such law can only be amended or repealed by the Act of Parliament.

4. Parliament’s power to legislate for giving effect to treaties and international agreements—Art, 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions. In other words, the normal distribution of powers will not stand in the way of Parliament to pass a law for giving effect to an international obligation even though such law relates to any of the subject in the State List.

5. In case of failure of constitutional machinery in a State— Under Art 256 Parliament is empowered to make laws with respect to all matters in the State List when the Parliament declares that the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

The above provisions enable the Centre to legislate in exceptional circumstances on the State subjects without amending the Constitution. They set up a certain amount of flexibility in the scheme of distribution of powers. Moreover, they are only resorted to in most cases with the consent of the States. Again, they arc invoked only where there are exceptional circumstances and that too for a limited period. Thus, the framers have incorporated the federal principle in our Constitution in a modified form in the light of the experience in another federations and in view of the peculiar requirement of our country.