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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Legislative Relations between the Union and the States

Introduction:

According to Article 1[1] of The Constitution of India, “India, that is Bharat, shall be a Union of States.” The term ‘Union of States’ implies the ‘Federation of States’. In a federation, the power of administration is divided between the Centre and the regions in such a way that neither level of government becomes dominant to an extent where it can dictate the decision of others.

K. C. Wheare puts it forward as, “the method of dividing powers so that the general and regional governments are each within a sphere; co-ordinate and independent”.
The division of power can be viewed from the purview of[2]:
a) Territory, and
b) The subject-matter.
The powers are demarcated in such a way that there may be a common or concurrent area for both the Centre and State Government to operate simultaneously.

Territorial Jurisdiction:

According to Article 245(1)[3], the Parliament may make laws for the whole of India or a part thereof and the Legislature of State may make laws for the whole or any part of the State. The established concept underlying the sovereignty of States is that laws made by one State cannot be functional in another State. Nonetheless, the extra-territorial operation of state legislation is sustainable on the ground of territorial nexus. [4]

When it comes to the Parliament having extraterritorial jurisdiction, it is stated in Article 245(2)[5], no law made by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation. However, if such law has no nexus with India, the Parliament shall be incompetent to make law having extra-territorial operation. There is no straight-jacketed formula of defining what ‘nexus’ is sufficient for the application of the law to a particular object.
Given the extent of laws, we can conclude that territorial nexus involves deliberation of two elements[6]:
a. The connection between the state and extraterritorial jurisdiction must be real and not illusory; and
b. The liability imposed must be relevant to such a connection.
One must note that article 245 does not apply when acting under a Centre law. Also, under Article 298, a State can carry on business outside its territory and is not confined within its boundaries.[7]

Subject-Matter of Laws:

The aim of the Constitution in the ambit of legislative relations is to secure a constitutionally strong Centre having adequate powers both in extent and nature so that it can maintain and protect the unity and integrity of the country. Under our Constitution, the legislative powers between the Union and the States entail a three-fold distribution, made by the three lists in the Seventh Schedule of the Constitution.[8]
The Indian Constitution pursues to construct three functional areas[9]:
i. An exclusive area for the Centre;
ii. An exclusive area for the States; and
iii. A concurrent area in which both the Centre and the States may operate simultaneously.

According to Article 246[10],

(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws concerning any of the matters enumerated in List I in the Seventh Schedule(in this constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the legislature of any State also, have the power to make laws concerning matters enumerated in List III in the seventh schedule(in this constitution referred as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the legislature of any state has exclusive power to make laws for such state or any part thereof concerning any of the matters enumerated in List II in the seventh schedule(in this Constitution referred to as the ‘State List’).
(4) Parliament has the power to make laws concerning any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.
The term “notwithstanding” lays down the principle of federal supremacy, in case of an inevitable conflict between the Union and State powers, the Union power as listed in List I shall prevail over the State power as listed in Lists II and III and in case of overlapping between Lists II and III the latter shall prevail. One must note that any amendment to the provisions of the Constitution would not be sustainable if it violates the “basic structure” of the constitution, irrespective of the fact that it has been carried out by established procedure.[11] 

Establishment of Additional Courts:

According to Article 247[12], notwithstanding anything under this chapter, Parliament may regulate the formation of additional courts for finer administration of laws made by Parliament or of any existing laws concerning a matter listed in the Union List.

Residuary Powers of Legislation:

According to Article 248[13], Parliament has an exclusive power to make any law concerning any matter not listed in the Concurrent List or State List. Also, such power entails the authority to make laws imposing a tax not mentioned in either of those lists.
Thus, this article provides the authority to Parliament to make laws for matters not listed in the concurrent list or state list along with the power to make laws on inflicting tax.

Power of Parliament to legislate with respect to:

A matter in the state list in the national interest-

According to Article 249[14], if the Rajya Sabha (Council of States) passes a resolution supported by not less than two-thirds of the majority that it is necessary for national interest that Parliament should legislate with respect to any matter in the state list, then it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter.
Such resolution shall remain in force for such period not exceeding one year.
Also, these parliamentary laws which parliament would not but for the passing of a resolution under clause (1), to the extent of incompetency cease to have an effect on the expiration of a period of six months.

Any matter in the State List if a proclamation of emergency is in operation-

According to Article 250[15], while a proclamation of emergency is in function, the parliament shall have the power to make laws for whole or any part of the territory of India concerning any of the matters listed in the state list.
Also, parliamentary laws which parliament would not but for the issue of the proclamation of emergency have been competent to make shall, to the extent of the incompetency, ceased to operate.
Such law shall terminate on the expiration of 6 months following the termination of the Proclamation of Emergency.
At the time of emergency, parliament has the authority to make laws for whole or any part of India, and such law shall be pertinent for only a year after the emergency is withdrawn. [16]

Repugnancy:

According to Article 251[17], if any law made by the legislature of a state is repugnant to any provision of a law made by Parliament, whether passed before or after the law made my legislature of a state, shall prevail. The State legislation shall be inoperative until the operation of the Parliamentary law.
For repugnancy under Article 254[18], there is a “repugnancy” between a central act and state act to the matters listed in the concurrent list. The law made by parliament, whether passed before or after the law made by the legislature of such state, shall prevail. The state legislation to the extent of repugnancy, be void.
However, if the legislature of a state makes law with respect to the matters listed in the concurrent list, and contains any provision repugnant to the provisions of earlier law or an existing law made by the parliament if it has been reserved for the Presidential consideration and has received his assent, prevails in that State.
Provided that nothing in this clause shall prevent the Parliament from legislating any law any time concerning the same matter including a law adding to, amending, varying, or repealing the law so made by the legislature of the state.

Agreement between states:

According to Article 252[19], when legislatures of two or more states pass a resolution with respect to the matter they want the centre to make a law on, it shall be lawful for Parliament to pass an act for regulating such matter accordingly, and any act so passed shall apply to such states.
Such an act shall be amended and repealed by Parliament and not by the State legislatures.

International Agreements:

According to Article 253[20], the Parliament has the authority to make any law for the whole or any part of the territory of India for:
a) implementing any treaty, agreement or convention with any other country or countries or,
b) any decision made at any international conference, association, or other body.
Requirements as to recommendations and previous sanctions to be regarded solely as procedural matters:

According to Article 255[21], No Parliamentary Act or an act of a State legislature and no provision in any such Act shall be invalid by reason exclusively that some recommendation or previous sanction required by this Constitution was not given if assent to that Act was given-
a. Where the required recommendation was that of the Governor, either by the Governor or by the President;
b. Where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President;
c. Where the recommendation or previous sanction required was that of the President, by the President.

Conclusion:

Given the distribution of power between the Union and the states, it is quite evident that the Parliament is vested with more power as compared to the state legislatures. This centralizing feature is inconsistent with the idea of federalism, however, the framers of the constitution were concerned with the unity of our nation, thus, differed from the traditional requirements of a federal constitution. Also, “Central control was considered necessary for achieving rapid economic and industrial progress”.[22] 

References

[1] The Constitution of India (103rd Amendment) Act, 2019, s. 1
[2] MP Jain, Indian Constitutional Law, (LexisNexis, Gurugram, 8th edn, 2020)
[3] Universal’s The Constitution of India, (LexisNexis, Gurugram)
[4] Supra Note 2 at 533.
[5] Supra Note 3 at 112.
[6] Supra Note 2 at 534.
[7] Ibid. [8] Ibid. 
[9] Supra Note 2 at 535.
[10] Supra Note 5. [11] Supra Note 3 at 113. 
[12] Ibid. [13] Supra Note 3 at 114.
[14] Ibid. [15] Ibid.
[16] “Distribution of Legislative Powers between the Union and the States”, available at: https://blog.ipleaders.in/distribution-legislative-powers-union-states/ (last visited on 1 October 2020)
[17] Supra Note 13. [18] Supra Note 3 at 115.
[19] Supra Note 17. [20] Supra Note 18. 
[21] Ibid. 
[22] “Union-State Relations: Legislative, Administrative and Financial Relations”, available at: http://www.rmlnlu.ac.in/pdf/8-UNION-AND-STATE-REATIONSHIP_100620.pdf (last visited on 1 October 2020) 

Author: Anushka Rao 

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