MODULE 4

INTRODUCTION:
 Indian Constitution provides for three lists for distribution of
legislative and executive power between the Center and the
States; i.e.
 The Union (Central) List
 The State List
 The Concurrent List
 According to Dicey, power distribution is an essential feature of a
federation.
 The object behind the formation of a federal State involves an
authoritative division between the National Government and the
Government of the separate States.
 It forms a significant distinction between a federal system and
unitary system of Government.

DISTRIBUTION OF LEGISLATIVE POWERS BETWEEN THE

UNION AND THE STATES:
UNION LIST:
The Union list contains 97 items which comprise of the subjects having
national significance. This list admits uniform laws that are applicable
over the entire Indian Territory, and only the Indian Parliament is
capable of legislating upon them.

Some of the items in this LIST-I are as follows:

 Defense;
 Central Bureau of investigation;
  Foreign Affairs;
 Banking;
 Intellectual Properties;
 Census;
 Corporation Tax;
 Atomic energy and necessary mineral resources;
 Preventive Detention;
 Diplomatic, consular, and trade relations;
 War & peace;
 Citizenship;
 Highways and Railways, etc.

State of West Bengal v. Union of India

The Supreme Court held that the Union government could legislate on
matters in the Union List and exercise powers to acquire property for
purposes under the Union List, including in state territories.

STATE LIST:
The State list contains 61 items that comprise subjects relating to local
interest or the interest of the State. The State legislature is thus
competent in legislating over these subjects.

Some of the subjects in this LIST-II are as follows:

 Public Order;
 Local Government;
 Public health & Sanitation;
 Agriculture;
 Fisheries;
 Libraries, museums, and other resembling institutions;
  Markets & fairs;
 Gas & allied works.

State of Rajasthan v. G. Chawla

The Supreme Court held that the state law was valid because it dealt
with public safety and convenience, matters within the State List, and
did not directly interfere with telecommunications as understood under
the Union List.

Calcutta Gas Co. v. State of West Bengal

The Supreme Court held that the state law was valid because it dealt
with gas distribution (State List), not the extraction or mining of
minerals (Union List).

CONCURRENT LIST:
This list enshrines 52 items, with respect to which; both the Union
Parliament and the State legislature hold a concurrent legislative
power. This list was meant to serve as a device for avoiding excessive
rigidity in a two-fold distribution. Besides, the states can additionally
legislate purporting to amplify the Parliamentary legislation. However,
in case a dispute arises in relation to any subject contained in this list,
the Union legislation shall prevail over that of the State.

Some of the subjects contained in this LIST-III are as follows:

 Criminal law & procedure;

 Archaeological sites;
 Marriage & divorce;
 Transfer of property, excepting agricultural land;
 Contempt of Court, excluding that of the Supreme Court;
  Civil law & procedure;
 Prevention of animal cruelty;
 Electricity;
 Economic & social planning;
 Legal, medical, and other professions.

LEGISLATIVE POWERS:
ARTICLE 245 states that
 The Parliament may make laws for the whole or any part of the
Indian Territory and a State legislature may make laws for the
whole or any part of the State.
 No parliamentary legislation shall be invalid because of having
extra-territorial operability, i.e. takes effect outside the Indian
Territory.

DOCTRINE OF TERRITORIAL NEXUS:

The Doctrine of Territorial Nexus is a legal principle that states that laws
made by a state legislature are only applicable within that state, unless
there is a sufficient connection between the state and the object of the
law.

This doctrine is derived from Article 245 of the Constitution.

This article states that

 Parliament may legislate for the whole or any part of India.

 State legislatures may legislate only for their respective states.

The State Legislatur cannot make extra territorial laws, except when
there is sufficient connection between the State and object. It means
that the State laws would be void if it is given extra-territorial
operation.

State of Bombay v. RMDC

This was first case that applied this doctrine. The Supreme Court held
that a sufficient territorial nexus must exist between the state and the
object of legislation for the law to be valid.

FEATURES:
 The State’s legislature may make laws for the entire state or for
any part of it.
 The state legislature cannot adopt extraterritorial legislation
unless there is a significant connection or nexus between the
state and the object.
 This doctrine governs the taxation of non-residents in India.

Tata Iron & Steel Co. Ltd. v. State of Bihar

The Court upheld a state law taxing goods manufactured within the
state, even if the goods were transported and sold outside, due to the
territorial nexus.

IMPORTANCE:
The Doctrine of Territorial Nexus ensures a balance between state
autonomy in legislative matters and national unity, as it prevents
states from enacting laws that might interfere unduly with matters
beyond their legitimate jurisdiction.

ARTICLE 246 states that

  The Union Parliament is exclusively empowered to legislate in
respect of any matters enshrined in the Union List (List-I).
 The Union Parliament and the State Legislature is empowered to
legislate on any matters contained in the Concurrent List (List-III).
 The State Legislature is exclusively empowered to legislate for
such state and its any part with respect to any of the matter
contained in the State List (List-II).
 The Union Parliament is empowered to legislate with respect to
any matter for any part of the Indian territory not included (in a
State) notwithstanding such matter is enumerated in the State
List.

ARTICLE 247 states that the Parliament may legally provide for the
establishment of any number of additional courts for improving the
administration of Parliamentary laws or of any existing laws with
respect to any matter in the State List (List-II).

ARTICLE 248 states that the Parliament has the power to make laws in
relation to any matter which is not present in either the concurrent list
or the State List, including the power to make laws on tax imposition.

ARTICLE 249 states that if the Rajya Sabha passes a resolution relating
to a matter of national interest with a two-third majority. Such
resolution empowers the Parliament to legislate with respect to any
matter in the State List, and then it shall be lawful for the Parliament to
legislate. Such legislation can extend to the whole or any part of the
Indian Territory. However, such a resolution can last for a year and can
be extended for a period at a maximum of one year.
ARTICLE 250 states that during Emergency, the Parliament has the
power to make any law which shall be applicable over the entire or any
part of India, and such law shall be applicable for only a year after the
emergency is withdrawn.

ARTICLE 251 deals with inconsistencies between laws made by

Parliament and state legislatures. It ensures that the legal framework in
the country is harmonious construction. The article states that:

 If a law made by Parliament is inconsistent with a law made by a

state legislature, the law made by Parliament will prevail.
 The law made by the state legislature will be inoperative to the
extent of the inconsistency, but only while the law made by
Parliament is in effect.
 Once the overriding legislation expires, the inconsistent law will
become effective again.

ARTICLE 252 gives Parliament the power to make laws for two or more
states with their consent:

Parliament can only make laws for states on subjects that it normally
can't if the following conditions are met:

 The legislatures of two or more states pass a resolution to that

effect.
 All the houses of the legislatures of those states pass resolutions
to that effect.
 Parliament passes an act to regulate the matter.

ARTICLE 253 states that the Parliament has legislative power for the
whole or any part of the Indian Territory for-
  Implementation of any treaty, agreement, or other convention
with another country.
 Implementing any decision made at any international conference,
or international association, or international body.

ARTICLE 254 addresses conflicts between laws made by Parliament

and laws made by state legislatures:

 Article 254(1) states if a state law conflicts with a law made by

Parliament, the law made by Parliament prevails. The state law is
void to the extent of the conflict.
 Article 254(2) states that there is an exception to Article 254(1) if
a state law is reserved for the President's consideration and
receives his assent. In this case, the state law prevails, but
Parliament can still enact a law on the same matter

ARTICLE 255 states that recommendations and previous sanctions are

procedural matters and do not affect the validity of a law. This means
that even if a law doesn't meet all the procedural requirements, it can
still be valid if the President or Governor has given their assent to it.

This Article 255 ensures that the legislative process is efficient and
transparent. It also helps to maintain the integrity of the law-making
process.

DISTRIBUTION OF ADMINISTRATIVE POWERS:

A. DIRECTONS TO THE STATE GOVERNMENTS BY THE UNION
GOVERNMENT:
ARTICLE 256 states that the State’s executive power shall be exercised
in compliance with laws and any existing laws made by Parliament, and
the executive powers of the Union extends to giving directions to a
State which as it may find necessary for the purpose.

ARTICLE 257 gives the Union government the power to issue directions
to states in certain situations:

 Construction and maintenance of communication:

The Union can issue directions to states on the construction and
maintenance of communication that are considered to be of
national or military importance.
 Protection of railways:
The Union can issue directions to states on the measures to be
taken to protect railways within the state.
 Compensation for extra costs:
If a state incurs extra costs in carrying out directions issued by the
Union, the Government of India will pay the state the agreed-
upon sum or an amount determined by an arbitrator.

Bachan Singh v. State of Punjab

The Court held that Articles 256 and 257 should be used to achieve a
balance, wherein the Union’s directions are not exercised arbitrarily but
only to prevent grave inconsistency with Union laws.

B. DELEGATION OF UNION'S FUNCTION UPON THE STATES:

I. Power of the Union to confer powers, etc on the State in certain
matters:
ARTICLE 258 of the Indian Constitution gives the President the power
to entrust functions to a state government or its officers. The President
can do this in two ways:
With the consent of the state government

The Parliament may, with the consent of the State Government, either
conditionally or unconditionally, entrust the state or its officers with
functions relating to the executive power of the Union.

By law enacted by Parliament

Parliament can enact a law to entrust powers and duties on a state

government or its officers. This does not require the consent of the
state government.

II. Powers of the States to entrust functions on the Union:

ARTICLE 258A states that the Governor of a state with the consent of
the Union Government, may entrust it or its officers with functions;
relating to any matter which is under the domain of the Union’s
executive power.

C. FULL FAITH AND CREDIT CLAUSE:

According to Article 261; full faith and credit shall be provided
throughout the Indian Territory to the following:

 Public acts,
 Records, and
 Judicial Proceedings of the Union and each State.

261(3) states that the final judgment or orders passed by Civil Courts in
any part of the territory can be executed anywhere in the country.

State of West Bengal v. Union of India

The Supreme Court held that in matters where Union laws apply
uniformly across states, states are constitutionally obliged to accept
and implement them as per Article 261. The Court emphasized the
unity and supremacy of Union laws in areas within its competence.

D) DISPUTES RELATING TO WATER:

ARTICLE 262 states that the Parliament has authorization to legally
provide adjudication of any dispute or complaints with respect to-

 The uses;
 Control or distribution over the waters of any interstate river or
river valley.

The Parliament may legislate to withhold the Supreme Court or any

other Court to have jurisdiction over disputes relating to the water of
the inter-state rivers and river valleys.

E) ALL-INDIA SERVICES:
ARTICLE 312 states that if the Rajya Sabha passes a resolution of
national interest supported by a ⅔rd majority, the Parliament may
legislate to create one or multiple All-India Services having conditions
for persons appointed to any service.

This provision is objected towards ensuring greater inter-state

coordination and implementation of the policies of the Central
Government. Also, this helps the Central Government to implement the
Union laws through the State Government.

DOCTRINE OF HARMONIOUS CONSTRUCTION:

  When there’s a conflict between two or more laws or different
parts of the same law, the Rule of Harmonious Construction
applied there.
 The doctrine of harmonious construction is a principle in statutory
interpretation used by courts to resolve conflicts between
different provisions within a statute or between different statutes.
 It aims to interpret seemingly conflicting or contradictory
provisions in a way that allows both provisions to remain in force,
working together harmoniously, rather than rendering one
provision void or meaningless.
 The goal is to give effect to all parts of the statute, recognizing the
intent of the legislature and ensuring a balanced, fair outcome.
 To avoid conflicts, the interpretation of the statute should be
consistent with all its parts.

CIT v. Hindustan Bulk Carriers

There was an apparent conflict between different provisions of the
Income Tax Act, 1961 regarding tax benefits for exporters. The Supreme
Court of India applied the doctrine of harmonious construction, ruling
that the provisions should be read in a way that both can be applied
without overriding each other.

PRINCIPLES THAT GOVERN THE DOCTRINE OF HARMONIOUS

CONSTRUCTION:
In the landmark case of Commissioner of Income Tax v. M/S
Hindustan Bulk Carriers, the Supreme Court established five
fundamental principles governing the rule of harmonious construction:
  Courts should make every effort to avoid conflicts between
seemingly conflicting provisions and should attempt to interpret
these provisions in a way that harmonizes them.
 A provision in one section of the law should not be used to nullify
a provision found in another section unless the court is unable to
find a way to reconcile their differences despite diligent effort.
 It’s impossible to completely reconcile inconsistencies between
provisions; the courts must interpret them in a manner that gives
effect to both provisions to the greatest extent possible.
 Courts must consider that an interpretation rendering one
provision redundant or useless goes against the essence of
harmonious construction and should be avoided.
 Harmonising two contradictory provisions means preserving and
not destroying any statutory provision or rendering it ineffective.

State of Rajasthan v. Gopi Kishan Sen

The Supreme Court used harmonious construction to resolve the
conflict by interpreting both provisions in a way that respected the
rights of both parties under the Act.

DOCTRINE OF OCCUPIED FIELD:

 The Doctrine of Occupied Field is a legal principle in Constitutional
Law that deals with the distribution of powers to the government
at different levels within a federal system.
 This doctrine comes into play when both central and state
governments have legislative powers over the same subject
matter.
  It essentially means that if a particular subject matter or field is
exclusively occupied by legislation at one level of government,
i.e., either central or state, then the other level of government
cannot legislate on the same subject matter.
 According to this doctrine, if a higher level of government (e.g.,
the central government) enacts legislation on a particular subject,
the legislative "field" or subject becomes "occupied," leaving no
room for the lower level of government (e.g., state government)
to legislate on that subject.
 This doctrine aims to avoid conflicts between laws enacted by
different levels of government by granting supremacy to the
central (or federal) law in the areas it governs.

Tika Ramji v. State of Uttar Pradesh

The Supreme Court held that, in this case, the central law did not
occupy the field completely as the state law addressed a different
aspect of the sugarcane industry (specifically sugarcane procurement
and price). Therefore, both laws could operate harmoniously.

FEATURES:
 Central Legislation Prevails: When both levels of government
are competent to legislate on a subject, the central law prevails if
it occupies the field. This is particularly relevant in concurrent lists
where both levels have overlapping authority.
 No Duplicate Legislation: Once the central legislation occupies a
field, states are prevented from making any new legislation on the
same subject that could potentially conflict with central law.
  Supremacy of Central Law: In case of a conflict, central
legislation will override state legislation. The doctrine applies
primarily where a central law has made comprehensive provisions
on a subject, effectively covering the entire field.
 Applies to Concurrent List Subjects: In India, this doctrine is
applied mainly in cases involving the Concurrent List under the
Constitution, where both Parliament and state legislatures have
jurisdiction.

State of Orissa v. M.A. Tulloch & Co

The Supreme Court held that the central legislation comprehensively
covered the regulation of mines and minerals, thus occupying the field.
The state law was deemed inoperative to the extent of conflict with the
central law.

DOCTRINE OF COLOURABLE LEGISLATION:

 The doctrine of colourable legislation is a legal principle that aims
at the prevention of excessive and unconstitutional use of the
legislative authority of the government.
 This doctrine was adopted by the British government from Canada
and Australia and then India adopted from British constitution.
 This concept stems from the Latin maxim “quando aliquid
prohibetur ex directo, prohibetur et per obliquum,” which
translates to “what cannot be done directly, should not be done
indirectly.”
 The doctrine of colourable legislation is also known as “Fraud on
the Constitution” because the legislature of the government
 authority does not enact laws according to the provisions
mentioned in the Constitution.
 It discourages the misuse of the legislative authority of the
government by judicial intervention to maintain the balance of
power in the country.
 Whenever the centre or any state tries to expand its legislative
sphere unconstitutionally, the doctrine provides the judiciary with
the authority to prevent them from doing so.

R. S. Joshi v. Ajit Mills

The term colourable exercise of power, fraud on legislative power and
fraud on the constitution are similar expressions which mean the
legislature is incompetent to enact a particular law.

ARTICLE 246 OF THE INDIAN CONSTITUTION:

The Indian Constitution does not expressly mention the doctrine of
colourable legislation. However, Article 246 and Article 246A outlines
the legislative authority of the centre and states and judiciary have the
power to declare any legislation unconstitutional if the legislature
exceeds its authority.

M.R. Balaji vs. the State of Mysore

The order by the Mysore Government reserving 62% of seats in state
medical and engineering colleges for socially and educationally
backward classes was challenged as a misuse of the powers conferred
by Article 15(4) of the Constitution. The Supreme Court held that the
reservation as a fraud on the constitutional power, indicating that the
extent of the reservation was excessive and thus unconstitutional.
LIMITATIONS:
 Constitutional Limits Unrestricted: The principle of colorable
legislation does not apply in scenarios where the legislature’s
power is not constitutionally restricted.
 Subordinate Legislation: The doctrine is not applicable to
subordinate legislation, which is typically enacted under the
authority of primary legislation.
 Irrelevance of Motive: The motive behind the legislature’s
actions is generally irrelevant when determining the
constitutionality of legislation. The courts focus on the power of
the legislature to enact a law, not the intentions or motives
behind it.

DOCTRINE OF PITH AND SUBSTANCE:

 The doctrine of pith and substance is a legal principle that helps
determine the true nature and scope of a law.
 It's used to determine if a law is valid when it falls within the
powers of the legislature that enacted it, even if it incidentally
affects matters assigned to another legislature.
 This doctrine states that within their respective spheres the state
and the union legislatures are made supreme, they should not
encroach upon the sphere demarcated for the other.
 The origin of the doctrine of pith and substance lies in Canada and
then this doctrine later came to India and is firmly supported by
Article 246 of the Constitution and the Seventh Schedule.
 The Seventh Schedule deals about the distribution of legislative
powers between the Centre and the States, comprising three lists:
Union List (List I), State List (List II), and Concurrent List (List III).
 When a law falls within the purview of one of the three lists
mentioned in the Seventh Schedule, courts invoke the Doctrine of
Pith and Substance.
 Courts scrutinize the essence or predominant purpose of the law to
determine its constitutional validity.
 The doctrine was first applied and upheld by the Supreme Court in
the State of Bombay v. F.N. Balsara (1951).

State of Bombay v. F.N. Balsara

The case involved the Bombay Prohibition Act, which prohibited the
sale and possession of alcohol. Some argued that the Act encroached
upon the Union List entry for "import and export." The Supreme Court
applied the doctrine of pith and substance, finding that the main aim of
the Act was to regulate public health and safety, which was within the
State List.

FEATURES OF THIS DOCTRINE:

 Determination of True Nature and Purpose
 Resolves Jurisdictional Conflicts
 Acceptance of Incidental Encroachment
 Flexibility in Legislative Interpretation
 Protection against Overreach or Invalidity

Gujarat University v. Krishna Ranganath Mudholkar

The Court found that the act’s primary focus was education at the state
level and thus valid. Incidental encroachment on the Union List was
accepted.

DOCTRINE OF REPUGNANCY:
  The concept of Doctrine of Repugnancy is contained in Article 254
of the Constitution.
 Repugnancy means a contradiction between two laws that, when
applied to the same set of facts, produce different results.
 It is used to describe inconsistency and incompatibility between
the central and state laws when applied in the concurrent field.
 The situation of repugnancy arises when two laws are so
inconsistent with each other that the application of any one of
them would imply the violation of another.
 The doctrine of repugnancy, in accordance with Article 254, states
that if any part of state law is conflicting with any part of a central
law, then the central law made by the Parliament shall prevail and
the law made by the state legislature shall become void, to the
extent of its repugnancy.
 While considering this doctrine, whether the central law is passed
before or after the state law is immaterial. Hence, this is a
principle to ascertain when a state law becomes repugnant to the
central law.

Deep Chand v. State of Uttar Pradesh

The Supreme Court ruled that the state law was inconsistent with the
central law, and the central law would prevail. The conflicting portions
of the state law were held to be void under Article 254.

ESSENTIAL FEATURES:
 Applicability to Concurrent List Subjects: This doctrine applies
only when both Parliament and a state legislature legislate on the
same subject within the Concurrent List.
  Requirement of Inconsistency: Repugnancy occurs only when
there is a clear inconsistency, contradiction, or direct conflict
between central and state laws. In cases where both laws can
function harmoniously without conflict, the doctrine does not
apply.
 Central Law Prevails: If there is a direct conflict between a
central law and a state law on a Concurrent List subject, the
central law prevails over the state law. The state law is rendered
inoperative to the extent of its inconsistency with the central law.
 Exceptions for State Laws with Presidential Assent: If a state
law on a Concurrent List subject receives the President’s assent, it
will prevail over a central law within that state, even if the two
laws are inconsistent. However, Parliament can later amend or
override this state law by passing a new law on the subject.
 Partial Invalidation: The doctrine does not invalidate the entire
state law; it only invalidates those portions that are in direct
conflict with the central law. The state law remains valid in all
other respects where it does not conflict.

M. Karunanidhi v. Union of India

The Supreme Court ruled that the state law was not entirely repugnant
because it could operate alongside the central law without
contradiction. It explained that repugnancy arises only when there is an
"irreconcilable" conflict between central and state laws.