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Union And State Legislature: Distribution Of Legislative Powers

The main characteristic of a federal Constitution is the distribution of powers between the Centre and the States. The Indian Constitution provides for a new kind of federalism to meet India's peculiar needs. In the matter of distribution of powers, the Framers followed the pattern of the Government of India Act, 1935.

Thus, predominance has been given to the Union Parliament over the State Legislatures or Assemblies regarding the distribution of legislative powers. The legislative powers are subject to the scheme of distribution of powers between the Union and State Legislatures (as provided in three lists under the Constitution), fundamental rights (i.e. legislative powers cannot contravene the fundamental rights) and other provisions of the Constitution (Arts. 245-254).

There are three Lists which provide for distribution of legislative powers (under 7th Schedule to the Constitution):

  1. Union List (List I) - It contains 97 items and comprises of the subjects which are of national importance and admit of uniform laws for the whole of the country. Only the Union Parliament can legislate with respect to these matters e.g. Defence, Foreign Affairs, Banking, Currency, Union Taxes, etc.

  2. State List (List II) - It contains 66 items and comprises of subjects of local or State interest and thus lie within the legislative competence of the State Legislatures, viz. Public Order and Police, Health, Agriculture, Forests, etc.

  3. Concurrent List (List III) - It contains 47 items, with respect to which; both Union Parliament and the State Legislature have concurrent power of legislation. The Concurrent List (not found in any federal Constitution) was to serve as a device to avoid excessive rigidity to a two-fold distribution. It is a twilight zone', as for not so important matters, the States can take initiative, while for the important matters, the Parliament can do so.
Besides, the States can make supplementary laws in order to amplify the laws made by Union Parliament. The subjects include general laws and social welfare - civil and criminal procedure, marriage, contract, planning education, etc. However, in spite of the distribution of legislative powers under the three Lists, the predominance has been given to the Union Parliament over the State Legislatures.

The Constitution makes a two-fold distribution of legislative powers:

  1. With respect to territory.
  2. With respect to subject matter of legislation, (i.e. three Lists).

[I] Territorial Legislative Jurisdiction [Art. 245]
Article 245 defines the ambit or territorial limits of legislative powers: Subject to the Constitutional provisions, Parliament may make laws for whole or any part of territory of India, and a State Legislature for the territory of that State. Cl. (2): No law made by the Parliament would be invalid on the ground that it would have extra-territorial operation i.e. takes effect outside the territory of India.

Theory of Territorial Nexus

The doctrine of territorial nexus is deeply rooted in laws of India even before the commencement of Constitution of India in 1950. The Government of India Act, 1935 (for the purpose of territorial jurisdiction), first recognized that the laws of Union and States are enforceable in the territory of India and of State respectively although this simple generalization is subject to the exception of doctrine of territorial nexus.

In the post-Constitution era, Art. 245 have made doctrine of territorial nexus a part of scheme of distribution of legislative powers under the Constitution. Art. 245(1) provides that a State legislature may make laws for the territory of that State.

The State legislature cannot make extra territorial laws, except when there is sufficient connection or nexus between the State and the object i.e. subject matter of legislation (object may not be physically located within the territorial limits of State) (A.H. Wadia v. CIT AIR 1947 FC 18).

Thus, in Wallace Bros, v. CIT, Bombay (AIR 1948 PC 118), a company which was registered in England was a partner in a firm in India. Indian income tax authorities sought to tax entire income of the company. The Court upheld it on the ground that derivation from British India of major part of its income for a year gave to a company sufficient territorial connection to justify it being treated as at home in India for all purposes of tax on its income.

In State of Bombay v. R.M.D.C. (AIR 1957 SC 699), the Bombay State levied a tax on lotteries and prize competitions in the State. The tax was extended to a newspaper printed and published in Bangalore, but had wide circulation in Bombay. The respondent conducted the prize competition through this paper... for which entries were received from Bombay through agents and depots established in the State to collect entry forms and fees.

Thus, all activities which the competitor is to undertake took place mostly in Bombay (viz. the standing invitations, filling up of the forms and the payment of money). The Court held that a sufficient territorial nexus exist for the State of Bombay to tax the newspapers.

If there is a sufficient nexus between the person sought to be charged and the State seeking to tax him, the taxing statute would be upheld. But, the connection must be real and not illusory (i.e. it should be on the basis of a valid law) and the liability sought to be imposed must be pertinent to that connection (i.e. law selects some fact which provide some connection with the State). Whether there is a sufficient connection, is a question of fact and will be determined by the courts in each case.

Extra-territorial Operation of Parliamentary Law

According to Prof. Wheare, Extra-territorial legislation simply means legislation which attaches significance for courts within the jurisdiction to facts and events occurring outside the jurisdiction.

Art. 245(2) provides that no law made by the Parliament would be invalid on the ground that it would have extra-territorial operation i.e. takes effect outside the territory of India. In other words, Parliamentary law will cover persons and their property anywhere in world, and the legislation may offend the rules of international law or may not be recognized by the foreign courts. Thus, if a citizen of India goes to France and marries a French girl while his first wife is alive, he can be prosecuted in India for bigamy.

In A.H. Wadia v. I.T. Commr., Bombay (AIR 1949 FC 18), the Supreme Court held:
In the case of a sovereign Legislature question of extraterritoriality of any enactment can never be raised in the municipal court as a ground for challenging its validity. The legislation may offend the rules of international law, may not be recognised by foreign courts, or there may be practical difficulties in enforcing them but these are questions of policy with which the domestic tribunals are concerned.

This was recognised in Ashbury v. Ellis (1893 AC 339) and Croft v. Dunphy (1933 AC 156). In Electronics Corpn., India v. C.I.T. (AIR 1989 SC 1707), the Supreme Court has held that law having extra-territorial operation can be banned by Parliament, but such law must have nexus with something in India. The Court has observed that it is inconceivable that a law should be made by Parliament in India which has no relationship with anything in India.

Thus, the sovereign power of Parliament to make laws with extra-territorial operation must respect the sovereignty of other States also and therefore provocation for the law must be found within India itself.

[II] Distribution Of Legislative Subjects [Art. 246]

Art. 246 provides:
  1. Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in the List I (Union List).
  2. Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the State legislature also, have power to make laws with respect to any of the matters enumerated in the List

    III (Concurrent List).
  3. Subject to clauses (1) and (2), the State legislature has exclusive power to make laws for such State with respect to any of the matters enumerated in List II (State List).
  4. Parliament has power to make laws with respect to 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. Thus Article 246 provides that the Parliament has exclusive power to make laws with respect to Union List; the State legislature for the State List; and, the Parliament and State legislature, both, for the Concurrent List. However, as it will be seen later, there is predominance of the Union Parliament in matters of legislative law making.

Autonomy to Centre and States (Legislative Powers)

In Javed v. State of Haryana (JT 2003 (6) SC 283), the apex court upheld the constitutional validity of certain provisions of Haryana Panchayati Raj Act, 1994, which disqualified a person for holding office of Sarpanch or a Panch of a Gram Panchayat, etc. if he had more than two living children, though a similar provision was not found to have been enacted by the Parliament or other State Legislatures.

Rejecting the submission that people aspiring to participate in Panchayati Raj governance in the State of Haryana had been singled out and meted out hostile discrimination, the apex court observed: The Union Parliament and every State Legislature have power to make laws with respect to any of the matters which fall within their field of legislation under Art. 246 read with Seventh Schedule of the Constitution.

The Constitution gives autonomy to the Centre and the States within their respective fields. Thus, a legislation by one of the States cannot be held to be discriminatory or suffering from the vice of hostile discrimination as against its citizens simply because the Parliament or the Legislatures of other States have not chosen to enact similar laws.

The court ruled that it was not permissible to compare a piece of legislation enacted by a State in exercise of its own legislative power with the provisions of another law, though pari materia it may be, but enacted by Parliament or by another State Legislature, within its own power to legislate.

In State of M.P. v. G.C. Mandawar (AIR 1954 SC 493), it was held that two laws enacted by two different governments and by two different Legislatures could be read neither in conjunction nor by comparison for the purpose of finding out if they were discriminatory.

[A] Principles of Interpretation of Lists

The distribution of subject-matters cannot be claimed to be scientifically perfect and there happens to be overlapping between the subjects enumerated in the three lists. Whether a particular subject falls in the sphere of one or other government (i.e. Union or State), the Supreme Court has evolved following principles to determine respective powers of Union and State Legislatures.
  1. Plenary Power of Legislature

    It is an absolute power to enact laws (even if it is contrary to any understanding or guarantee given by the State), subject only to its legislative competence and other constitutional limitations. The Parliamentary power of legislation to acquire property, for example, is unrestricted, as held in State of W. B. v. Union of India (AIR 1963 SC 1241); R. v. Burah (1878) 3 AC 889.

    No limitation can be read on the ground of legislative practice or legitimate expectations (Sri Srinivasa Theatre v. Govt. Of T.N. AIR 1992 SC 999). The principle to interpret the entries (in Lists) so as to make the legislative power of Parliament and State legislatures plenary' is that the entries should not be read in narrow or restricted sense. Each general word in an entry should be construed to include all ancillary or subsidiary matters which can fairly and reasonably be said to comprehend in it (State of W. B. v. Union of India).

    The following points are important to understand the nature of plenary power:

    1. The power to make a law includes the power to give effect to it prospectively (i.e. for future acts - law to take effect from a future date) as well as retrospectively (i.e. for past acts - law to take effect from a back date) (Rai Ramkrishna v. State of Bihar AIR 1963 SC 1667).

    2. The meaning of a Validation Act is to remove the causes for ineffectiveness or invalidity of actions or proceedings which are validated by a legislative measure. A validating law is uphold first by finding out whether legislature possesses competence over the subject matter/and, whether by validation the legislature has removed the defects which the courts have found in the previous law (Shri Prithvi Cotton Mills v. Broach Borough Municipality AIR 1970 SC 192).

      In the aforesaid case, it was held: The Legislature may levy a tax either prospectively or retrospectively. Ordinarily, a court hold a tax to be invalidly imposed because the power to tax is wanting or the statute or rules are invalid or do not sufficiently create jurisdiction. Validation of a tax so declared illegal may be done only if grounds of invalidity are capable of being removed and in fact removed and tax thus made legal, but the legislature must have power and competence to do so.

    3. Where an impugned Act (i.e. an Act whose validity is questioned) passed by a State legislature is invalid on the ground that State legislature did not have legislative competence to deal with the topic covered by it, then even Parliament cannot validate such Act, because such validation would give the State legislature power over subjects outside its jurisdiction.

    4. When the legislature cure the said infirmity and pass a validating law, it can make the said provisions of earlier law effective from the date when it was passed. The retrospective application of law thereby removing the basis of earlier judicial decision (i.e. a decision based on earlier law) is not an encroachment on the judicial power.

      However, the legislature cannot by bare declaration, without anything more, reverse or override a judicial decision (State of T.N. v. K. Shyam Sunder AIR 2011 SC 3470). But, the legislature cannot enact a legislation which overrules the decision of court and not to change the existing law retrospectively. Thus, the legislature has no power to enact a provision, the effect of which is to overrule an individual decision and affect the rights and liabilities of the parties to that decision. Such legislative act amounts to an encroachment on the power of judiciary (J.V. Saxena v. State of MrP. AIR 1976 SC 2250)

  2. Liberal and Harmonious Construction

    The position in the Indian Constitution is different from other federal Constitutions in respect of distribution of legislative powers. There is no clear-cut division of powers between the Union and States. Thus, in case of conflict, the judiciary has to make reconciliation attempts between the conflicting entries (In Re C.R & Berar Sales of Motor Spirits & Lubricants Taxation Act, 1938).

    Subject to the predominance of the Union list, the Entries in the various lists should be interpreted broadly. It is an attribute of plenary power of legislature. The language of the Entries should be given the widest scope and amplitude. But it is the duty of the courts to ascertain whether the authority to deal with matters falling within the jurisdiction of each legislature exists, and to define in the particular case before them the limits of their respective powers. The Entries are mere legislative heads and are of an enabling character.

    In Calcutta Gas Co. v. State of West Bengal (AIR 1962 SC 1044), the question was whether the gas works' fall under the word industry'. Interpreting entries 24 and 25 of list II harmoniously, the Supreme Court held that gas works' being a specific entry would not fall under the general entry 24. If the word industry' in entry 24 were to include gas and gas works', then entry 25 (which includes gas works) would become redundant i.e. useless.

    On that interpretation, gas industry' would not fall under entry 52 of list I either, for the term industry' in entries 52 and 24 should have a uniform interpretation. The Supreme Court said that widest amplitude' should be given to the language of entries, but some of entries in different lists may overlap and may appear to be in direct conflict with each other.

    It is then court's duty to reconcile entries and to bring harmony between them. Entries of two lists must be read together and the language of one interpreted and when necessary modified by that of the other. And this might mean to construe one entry in a restricted' sense (i.e. meaning though less wide, but can properly be given to it), as a widest' meaning (i.e. a meaning it can theoretically possess) may result in the overlapping.

  3. Ancillary or Incidental Powers

    It is well-settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given. Thus, the power to legislate w.r.t. land includes the power w.r.t. mortgages of land as a subsidiary subject.

    The power to make laws on a subject includes the power to pass a valid law retrospectively..... The power to levy tax would include the power to enact provisions to check tax evasion/tax remission. The power to make laws for labour welfare will justify the State to take over and utilize for the benefit of workers as a class, the unpaid accumulation belonging to the employees, but which were not claimed by them.

    In R.D. Joshi v. Ajit Mills (AIR 1977 SC 2279), the Court held that the punitive measures for enforcing social legislation are part of the ancillary powers. The Entries in lists must be given wide meaning implying all ancillary and incidental powers.

    The question was whether it was permissible for State legislature to enact that sums collected by dealers by way of sales tax which was prohibited by State law, would be forfeited to the State punitively under Entry 54 read with Entry 64 of List II. The Court held that it was a punitive measure to enforce the Act; penal sanction for enforcing fiscal legislation for protecting public interest is part of ancillary powers.

    Limits on Ancillary Power Expressions incidental' and ancillary' powers mean the powers which are required to be exercised for the proper and effective exercise of legislative powers expressly conferred.

    However, the doctrine can be invoked only in aid of the main topic of legislation. While the heads of legislation in the various lists of the Seventh Schedule are to be interpreted widely so as to take in all matters which are of incidental character to the topic mentioned therein, but there must be a head or entry to cover legislation.

    There is a limit to ancillary powers flowing from the legislative entries. Therefore, the provision of the Hyderabad General Sales Tax Act that even if the moneys were collected by the seller otherwise than as a tax they should be handed over to the Government, was void in as much as there was no warrant for collection as tax of that which was not a tax.

    Its recovery by State from the dealer is in no way fairly and reasonably connected to the topic of tax on sale of goods', nor can the doctrine of ancillary power be used as a cloak for extending the power of a legislature so as to include a matter which is specifically provided in a separate entry (Abdul Qader v. S.T.O., Hyderabad AIR 1964 SC 922; Kanti Lai v. H.C. Patel AIR 1968 SC 445).

    Thus, the power w.r.t. betting and gambling in Entry 34 of List II can not include the power to impose taxes on betting and gambling specifically provided in Entry 62 of list II. Similarly, it is doubtful if power to levy tax would include power to confiscate goods as ancillary thereto.

  4. Pith and Substance Rule

    This doctrine is applied when the legislative competence of a legislature with regard to a particular enactment is challenged ....when a law dealing with a subject in one list touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of enactment i.e. true object of legislation (and its scope and effects). In Kerala SEB v. Indian Aluminium Co. Ltd. (1976) 1 SCC 466, it was held:
    For deciding under which entry a particular legislation falls the theory of pith and substance' has been evolved by the courts. If in pith and substance a legislation falls within one list or the other but some portion of the subject matter of that legislation incidentally trenches upon and might come to fall under another list, the Act as a whole would be valid notwithstanding such incidental trenching.

    Constitutionality of a law is to be judged by its real subject matter and not by its incidental effect on another's field. If, on examination, it is found that legislation is in substance one on a matter assigned to the legislature (within its competence), then it must be held valid in its entirety even though it may touch upon matters beyond its competence.

    An incidental encroachment is not prohibited. The doctrine requires that in such a case of encroachment, the law should be read as a whole and not as a collection of sections or clauses for determining the true nature and character of the law i.e. pith and substance of the law. The justification of this rule is that in a federal Constitution, clear-cut distinction between powers of Union and State legislatures is not possible, there is bound to be overlapping. In all such cases it is but reasonable to ask what in whole is the object or purpose of law.

    The different provisions of enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid, because legislature enacting them may appear to have legislated in a forbidden sphere (i.e. in an area not within its competence) (A.S. Krishna v. State of Madras AIR 1957 SC 297). After the dictum of Lord Selbome in Queen v. Burah (1878) 3 App Cas 889, oft-quoted and applied, it must be held as settled that the legislatures in our Country possess plenary powers of legislation.

    This is so even after the division of legislative powers, subject to this that the supremacy of the legislatures is confined to the topics mentioned as Entries in the lists conferring respectively powers on them. These Entries, it has been ruled on many an occasion, though meant to be mutually exclusive are sometimes not really so. They occasionally overlap, and are to be regarded as enumeratio simplex of broad categories.

    Where in an organic instrument such enumerated powers of legislation exist and there is a conflict between rival lists, it is necessary to examine the impugned legislation in its pith and substance, and only if that pith and substance falls substantially within an entry or entries conferring legislative power, is the legislation valid, a slight transgression upon a rival list, notwithstanding.

    Entries to the legislative lists are not sources of the legislative power but are merely topic or fields of legislation and must receive a liberal construction inspired by a broad and general spirit and not in a narrow pedantic sense (Ujagar Prints v. UOI AIR 1989 SC 516).

    If the legislature is to have the full scope to exercise its powers, it is necessary to assume that the Constitution does not prevent a legislature from dealing with the matter which may incidentally affect any matter in the other list.

    When a regulatory legislative measure is enacted by a legislature on a subject within its competence requiring a person to obtain a licence for doing certain business concerned with the subject and imposes certain restrictions upon such person to make him conduct the business concerned for which he is granted the licence, lawfully, it could be regarded as a legislative provision which is ancillary to the main subject of the regulation, when once the subject of regulation is found within the pith and substance of the concerned legislature's competence (Kartar Singh v. State of Punjab (1994) 3 SCC 569).

    In M. Ismail Faruqui v. UOI (AIR 1995 SC 605), the constitutional validity of the Acquisition of Certain Areas at Ayodhya Act, 1993 was challenged. The Act provided for the acquisition by the Central Government of about 67 acres of land in the Ram Janam Bhoomi-Babri Masjid complex to be made available to the two trusts proposed to be set up for the construction of a Ram Temple and a Mosque and for planned development of the area.

    It was contended that the purpose of acquisition in the case did not bring the Act within the ambit of Entry 42, List III (Acquisition and requisition of property') but was preferable to Entry 1, List II (Public Order-in aid of the civil power) and therefore, the Union Parliament did not have the competence to enact the impugned Act. Held that the pith and substance of the legislation was acquisition of property and not related to public order and therefore, the Act was valid law.

    Prafulla Kumar v. Bank of Commerce, Khulna
    The pith and substance of the impugned Act being money-lending, a State subject, and it was valid even though it trenched incidentally on Promissory Notes', a Central subject.

  5. Doctrine of Colourable Legislation

    The Constitution distributes the legislative powers between the Parliament and the State Legislature, and, they are required to act within their respective spheres. Often the question arises as to whether or not the legislature enacting the law has transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect. The doctrine of colourable legislation is applied when the transgression is disguised, covert and indirect.

The colourable legislation simply means a legislation which, while transgressing constitutional limitation, is made to appear as if it were quite constitutional. If the law enacted by the legislature is found in substance and in reality beyond the competence of the legislature enacting it, it will be ultra vires and void, even though it apparently purports to be within the competence of the legislature enacting it. It is the substance of the Act that is material and not merely the form or outward appearance.

This doctrine is based on the maxim that what one cannot do directly, that cannot be done indirectly.' It is also characterized as a fraud on the Constitution because no legislature can violate the Constitution by employing an indirect method (K.C.G Narayan Deo v. State of Orissa AIR 1953 SC 375). Colourability is thus bound up with incompetency and not tainted with bad faith or evil motive. If the legislature has power to make law, motive in making the law is irrelevant (Nageshwar v. A.P.S.R.T. Corpn. AIR 1959 SC 316).

A thing is colourable which in appearance only and not in reality, what it purports to be. The court will look into 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 motive (Jalan Trading v. Mill Mazdoor Sabha AIR 1967 SC 691).

The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by courts (T. Venkaia Reddy v. State of A.P. AIR 1985 SC 724). It is not too often that a law is declared bad on the ground of colourable legislation.

Further, if a statute is found to be invalid on the ground of legislative incompetence, it does not permanently inhibit the legislature from re-enacting the same if the power to do so is properly traced and established. In such a situation, it cannot be said that subsequent legislation is merely a colourable legislation or a camouflage to re-enact the invalidated previous legislation.

In State of Bihar v. Kameshwar Singh (AIR 1952 SC 252), the court held that the Bihar Land Reforms Act, 1950 apparently purported to lay down rule for determination of compensation but in reality it did not lay down such rule and indirectly sought to deprive the petitioner of his property without any compensation and hence it was a colourable legislation and invalid. In this case, a State law dealing with the abolition of the landlord system, provided for payment of compensation on the basis of income accruing to the landlord by way of rent.

Arrears of the rent due to the landlord prior to the date of acquisition were to vest in the State, and half of these arrears were to be given to the landlord as compensation. The Entry 42, List III, which provided for principles on which compensation for property acquired or requisitioned for the purpose of Union/State or for other public purpose is to be determined,' was modified as the taking of the whole and returning a half meaning nothing more or less than taking half without any return.

It was held that this is naked confiscation, no matter in whatever specious form it may be clothed or disguised. The impugned provision, therefore, in reality does not lay down any principle for determining the compensation to be paid for acquiring the arrears of rent.

Similarly, in K.T. Moopil Nair v. State of Kerala (AIR 1961 SC 252), the Travancore Cochin Land Tax Act was held to be invalid on the ground that the Act apparently purported to be a Taxing Act but in reality it was not so but was confiscatory in character.

However, in the below-discussed case, the legislation was upheld by the court:
Leading Case: K.C. Gajapati Narayan Deo v. State Of Orissa (AIR 1953 SC 375)
The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. If a legislature is competent to do a thing directly, then the mere fact that it attempted to do it in an indirect or disguised manner cannot make the Act invalid.

The doctrine has reference to the competence and not to the motives, bona fides or mala fides of the legislature. It is the pith and substance of the Act that is material and not merely the form or outward appearance. The extent of encroachment in the field reserved for the other legislature is an element for determining whether the impugned Act is a colourable piece of legislation.

In State, of M.P. v. Mahalaxmi Fabric Mills Ltd. (AIR 1995 SC 2213), the Central Government was vested with the power under Sec. 9(3) of the Mines and Minerals (Regulation and Development) Act, 1957 to increase the rates of royalty to any higher amount once during every three years. In 1982, several coals producing States imposed coal development cess and started receiving revenue for effecting development of their mining areas. However, the cess was held to be invalid and beyond the legislative competence of the State Legislatures.

The State concerned approached the Central Government. The Parliament passed the Cess and other Taxes on Minerals Validating Ordinance, 1992 for validating the cess paid by the coal consumers. Subsequently, a notification was issued by the Central Government increasing the royalty rates from 400 per cent to 2000 per cent. It was contended that the Notification was a colourable device and it was issued not for the development of minerals but for a collateral purpose of compensating the State Governments.

The Supreme Court upheld the validity of the Notification and held-that it could not be said to be a colourable device. The minerals belonged to the States, and if the Central Government had taken into consideration the feet that State revenues were required to be re-compensated on account of the loss suffered by them in their abortive effort to escalate the royalty, it could not be considered to be an irrelevant consideration.

In S.S. Bola v. B.D. Sardana (AIR 1997 SC 3127), the apex court held: Colourable legislation is one where the legislature has no power to legislate on an item either because of its non-inclusion in the lists in Seventh Schedule, or on account of limits in view of the fundamental rights or any other constitutional power or in violation of principle of basic structure of the Constitution.

If on an examination of the Act, the court finds that the legislature has travelled beyond its power or competence or transgresses the limits imposed by the Constitution itself, such an enactment is called colourable legislation'. In other words, it has a reference to the legislative incompetence and not to the power of the legislature as such.

If the legislature enacts the law in the pretext of the exercise of the legislative power though actually it does not possess such power, the legislation to that extent either is void or becomes voidable on a declaration to that effect by a constitutional court (Supreme Court and High Court). It would, therefore, be said that the legislature enacts the law in purported colourable exercise of its power.

In Naga People's Movement for Human Rights v. Union of India (AIR 1998 SC 431), the Supreme Court rejecting the argument that the Armed Forces (Special Powers) Act, 1958, enacted by Parliament is a colourable piece of legislation, has observed:
Ultimately the issue boils down to the question whether the legislature has the competence to enact the legislation because if the impugned legislation falls within the competence of the legislature the question of doing something indirectly which cannot be done directly does not arise. The real purpose of legislation may be different from what appears on its face, but it would be colourable legislation only if the real object is not attainable by the legislature because it lies beyond its ambit.

The impugned Act has been held to relate to Entry 2, List I as well as the residuary power of Parliament under Art. 248 read with Entry 97, List I.

[B] Residuary Powers (Art. 248) Article 248:

Parliament has exclusive power to make any law with respect to any matter not enumerated in List II or III. Such power shall include the power of making any law imposing a tax not mentioned in either of those lists (It is to be noted that before independence, Governor General, and not the federal legislature, which had such powers).

Entry 97 of List I also lays down that Parliament has exclusive power to make laws with respect to any matter not enumerated in List II or III. Article 248 and Entry 97, List I, assign residuary powers of legislation exclusively to the Union Parliament.

If no entry in any of the three lists covers a piece of legislation, it must be regarded as a matter not enumerated in any of the three lists, and belonging exclusively to Parliament under Entry 97, List I. By virtue of Article 248, Parliament has exclusive power to make any law with respect to any matter not enumerated in List II or List III, and for this purpose, and to avoid any doubts, Entry 97 has also been included in List I. In other words, the scope and extent of Article 248 is identified with that of Entry 97, List I (Hari Krishna Bhargava v. UOI AIR 1966 SC 619).

However, scope of residuary powers is restricted, as the three lists covers all possible subjects and because of the court's interpretation as to a matter falls under residuary powers or not. The rationale behind such powers is that it enables Parliament to legislate on any subject who has escaped the scrutiny of the House, and the subject which is not recognizable at present.

Thus, it enables the Parliament to make laws on subject matter which have come up with advancement of society. However, the framers of Constitution intended that recourse to residuary powers should be the last resort, and not the first step. Residuary power is a well-known convention in federal Constitutions. In USA, and Australia, such powers are vested in States, while in Canada, in the Centre. Nevertheless, residuary powers are criticised, as they promote a strong' Centre and curb the autonomy of States.

There is no field of legislation which has not been allotted either to Parliament or to the State Legislature and therefore, if a law made by Parliament is challenged on the ground that it is beyond its legislative competence, it is enough to inquire, if it is with respect to any matters enumerated in the State List and if it is not so, no further question arises (i.e. it would be unnecessary to go into the question whether it falls under any entry in the Union or Concurrent List).

Parliament can combine its power under an Entry in the Union List or Concurrent List and the residuary power under Article 248 UOI v. H.S. Dhillon's case, Kartar Singh v. State of Punjab (1994) 3 SCC 569). Several Acts have been enacted by Parliament under its residuary power.

For example the Wealth Tax Act (UOI v. Dhillon case, Gift Tax Act, Commissions of Inquiry Act, etc. which have been held valid under the residuary power of Parliament.

Leading Case: Union of India v. H.S. Dhillon (AIR 1972 SC 1061)
The residuary powers are conferred exclusively on Parliament by the Art. 248. There is a difference between entry 97 of List I and the Art. 248, as the entry 97 indicates only the subject-matter while Art. 248 is an enabling provision and enable Parliament to make laws.

Art. 248 should include within its powers only those matters which are not enumerated in any of three lists. And, thus, residuary power cannot include power exclusively given to the Parliament under Art. 246(1) read with List I, in International Tourism Corp. v. State of Haryana (AIR 1981 SC 774), the Supreme Court held that, where the competing entries are an entry in List II and entry 97 of List I, the entry in State list must be given a broad and plentiful interpretation and residuary power can't be so expansively interpreted as to whittle down (or destroy) the power of State legislature.

Before exclusive legislative competence can be claimed for Parliament by resorting to residuary power, the legislative incompetence of State must be clearly established. A matter could be brought under Entry 97 only if it was not to be found in List II or List III.

However, Dhillon's decision ... of the larger Bench is still a binding law. It may be noted that apart from residuary subjects covered in Art. 248 and Entry 97 of List I, legislative subjects and powers can be found in other provisions of the Constitution also such as Article 119 (Regulation by law of procedure in Parliament in relation to financial business), Art. 209 (similarly provides for State Legislature), and Article 262 (Parliament's power to provide for adjudication of water disputes between States by law). In case of conflict/overlapping between such power and an entry in any of the three lists, the former would prevail (In the matter of Cauvery Water Disputes Tribunal AIR 1992 SC 522).

In State of A. P. v. National Thermal Power Corpn. Ltd. (AIR 2002 SC 1895), it was held that if an entry dose not spell out an exclusion from the field of legislation discernible on its apparent reading, the absence of exclusion cannot be read as enabling power to legislate in the field not specifically excluded, more so, when there is available a specific provision in the Constitution prohibiting such legislation.

In this case, Entries 53 and 54 of List-II and Entry 92-A, List-I were in question. It was held that the expression sale of electricity in Entry 53 means sale for consumption of electricity. The consumption or sale for consumption in Entry 53, however, refers to consumption within, and not beyond, the territory of the State.

Any other sale of electricity would be subject to the provisions of Entry 92-A, List-I. A tax on the sale or purchase of goods including electricity but excluding newspapers shall fall within Entry 54 and shall be subject to provisions of Entry 92-A, List I.

[C] Inconsistency or Repugnancy between Union and State Laws (Art. 254) Clauses (7):

If any provision of a law made by State legislature is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to matters enumerated in Concurrent List, then subject to clause (2) provisions, the Parliamentary law, whether passed before or after State legislature law, or the existing law, shall prevail and State law shall, to the extent of repugnancy, be void.

Art. 254(1) enumerates the rule that in the event of a conflict between a Union and a State law, the former prevails. The Union law may have been enacted prior to the State law or subsequent to the State law. The principle behind is that when there is legislation covering the same ground both by the Centre and by the State, both of them competent to enact the same, the Central law should prevail over the State law.

Repugnancy' between two pieces of legislation, generally speaking, means that conflicting results are produced when both the laws of State as well as Union Legislature with respect to Concurrent List are applied to the same facts. The expression existing law' refers to laws made before the commencement of Constitution by any legislature, authority, etc. e.g. criminal law, civil procedure, evidence, contract, etc. A law made by Parliament which Parliament is competent to enact' doesn't include a law with respect to a matter in Union list.

As, if there is a repugnancy between.... State list.... and Union list, State legislation will be ultra vires under the Aft. 246. However, a repugnancy may arise .... while legislating within their exclusive jurisdictions and yet dealing with the same subject matter.

For example, in Gujarat University v. Krishna, the court observed that a repugnancy may arise on a matter other than in Concurrent List, and in such cases doctrine of pith and substance resorted to resolve conflict. If Art. 254(1) extended to a Union law with respect to a matter in Union list.... such construction of Art. 254 appear illogical. Clause (2): enacts an exception to the rule of clause (1).

Where law made by State legislature with respect to matters in Concurrent List contains any provision repugnant to an earlier Parliamentary law or an existing law with respect to that matter, then State law shall, if reserved for consideration by President and has received his assent, prevail in that State.

Provided that nothing in the clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding, amending, varying or repealing State law. Art. 254(2) provides for curing of repugnancy which would otherwise invalidate a State law which is inconsistent with a Union law or an existing law11 (GC. Kanungo v. State of Orissa AIR 1995 SC 1655).

In order that the State law should prevail in that State, the following conditions must be satisfied:
  1. There must be in existence a Union Law.
  2. Subsequent to the Union law the State legislature enacts a law with respect to a matter in the Concurrent List.
  3. The State law having been reserved for the President's consideration has received his assent thereto.

However the proviso to Art. 254(2) lays down that Parliament may again supersede State legislation which has been assented to by the President under clause (2) by making a law on the same matter.

It is important that the later (Union) legislation must deal with the same matter (as of earlier State legislation) and not distinct matter, though of cognate and allied character. Further, in the case of repugnancy, not the entire State law becomes void, it becomes void only to the extent it is repugnant to the Central law (Gauri Shankar Gaur v. State of U.P. (1994) 1 SCC 92). The State law may be amended or repealed by Parliament either directly or by enacting a law repugnant to it with respect to the same matter.

Where it does not expressly do so even then State law will be repealed by necessary implication. It is important to note that whether Parliament should enact substantive provisions on the same subject matter... in lieu... when repealing a State law is still an open question. Case Law on Repugnancy

The case of Zaverbhai v. State of Bombay (AIR 1954 SC 752) illustrates the application of proviso to Cl. (2), Art. 254. The Parliament enacted an Essential Supplies Act which provided penalties e.g. imprisonment up to 3 years. The Bombay legislature later passed an Act enhancing punishment up to 7 years.

The Act received Governor General's assent and became operative. Subsequent to the Bombay Act, amendments were made in the Central Act by Parliament with changes in punishment. The Supreme Court held that as both occupied the same field, the Bombay Act was impliedly repealed by Parliamentary Act, because of repugnancy. The Central Act (amended) was comprehensive Code covering the entire field of punishment for offences under the Act graded according to the community and character of the offence.

Leading Case: Deep Chand v. State Of U.P. (AIR 1959 SC 648)

Tests of repugnancy as laid down in this case are as follows:

  1. Direct Conflict - Direct conflict between the two (one say do, other don't) - State and Union law. Thus an inconsistency in the actual terms of the two statutes.

  2. Occupied Field - No apparent conflict, yet repugnancy because both cover the same field. Thus, in Zaverbhai case, it would be no defence to argue that it is possible to obey both the laws. When it appears from the terms, nature or subject matter of a Central law that it was intended as a complete statement of law governing a particular matter then for a State legislature to enact a law with respect to same subject matter is regarded as detraction from the full operation of the Central law and so is inconsistent.

  3. Intended Occupation - Parliament intended to lay down an exhaustive code in respect of subject matter replacing the State Act, or because a law may be in conflict with the intention of the dominant law to cover the whole field. Thus, although there may be no direct conflict, yet a State law will be inoperative.

    In Baijnath v. State of Bihar (AIR 1970 SC 1436), Parliament passed the Mines and Minerals (Regulation and Development) Act, 1957 under Entry 54 of the Union List declaring to take under Union's control the regulation of mines and development of minerals to the extent provided in the Act.

    In 1964, the Bihar Legislature enacted the Bihar Land Reforms (Amendment) Act, 1964 amending the Bihar Land Reforms Act, 1950. The amended Act empowered the State to acquire the land found to be surplus in the hands of the land owners. The Supreme Court held that the State law was void to the extent of surplus area containing mines or minerals.
Leading Case: M. Karunanidhi v. Union Of India (AIR 1979 SC 898)
In this case, the appellant (a former chief minister of the State of T.N.) abused official position, thus a prosecution launched under I.P.C. and Prevention of Corruption Act. The State Act relating to Public Men (Criminal Misconduct) was passed after obtaining President's assent and later repealed. The question arose whether action could be taken under Central Laws i.e. I.P.C. and the Prevention of Corruption Act.

The appellant contented that even though State Act was repealed, it was repugnant to Central Acts, thus by virtue of Cl. (2) Art. 254, Central Act provisions stood repealed (when State Act was passed) and thus couldn't be applied for prosecuting, unless, they are re-enacted (even after repeal of State Act). The question was whether there was repugnancy between the State Act and the Central Acts.

Tests of repugnancy as laid down in this case are as follows:

  1. There is clear and direct inconsistency between State and Union law which is irreconcilable, so that they can't stand or operate together in the same field.
  2. There can be no repeal by implication unless inconsistency appears on the face of two statutes.
  3. Where two statutes occupy a particular field, but there is possibility of both operating in same field without colliding then there is no repugnancy.
  4. No inconsistency, but a statute occupying same field seeks to create distinct and separate offences, then there is no repugnancy. However, a State law is repugnant to Union law if it (i.e. Union law) is intended to be a complete exhaustive code on subject matter. Even if no intention, same subject matter creates repugnancy.

In National Engg. Industries Ltd. v. Shri Kishan (AIR 1988 SC 329), the Supreme Court held that the provisions of the Rajasthan Shops and Commercial Establishments Act, 1958 were not repugnant but supplementary to the provisions of the Industrial Disputes Act, 1947, Insofar as the State law provided safeguards to the workers in addition to those contained in the Central Act. Similarly, held in A.K. Sabhapathy v. State of Kerala AIR 1992 SC 1310; Vijay Kumar Sharma v. State of Karnataka AIR 1990 SC 2072; and, Sukumar Mukherjee v. State of W.B. AIR 1993 SC 2335.

Leading Case: Hoechst Pharmaceuticals LTD. v. State Of Bihar (AIR 1983 SC 1019)
The Court rejected a petition seeking application of Art. 254(1) to cases of repugnancy due to overlapping found between List II on one hand and List I and List III on the other hand. It was held that if such an overlapping exists, the conflict shall be resolved by Article 246 with the help of the doctrine of pith and substance. If Art. 254 to apply, two conditions must be fulfilled, first the provisions of State and Union law must both be in respect of a matter enumerated in Concurrent List i.e. List and second they must be repugnant to each other.

P.K. Tripathi, Article 254-The Text Is Explicit (AIR 1986, J. 17)
Prof. Tripathi says that on a plain reading of Art. 254 (1) it seems that it applies to all cases of repugnancy between a Central law and a State law. This clause nowhere states that State law and Central law should be enacted in respect of Concurrent List only. The words in the Concurrent List qualify only the existing laws.

This will mean that if there is repugnancy between a State law falling in the List II and a Central law falling in List III, the latter should prevail over the former. The object of this paper is to present a critical examination of interpretation put on Article 254 (1) by the Division Bench of the Supreme Court, in Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR 1983 SC 1019), and to suggest grounds on which a Constitution Bench of the Court might, hopefully, review that interpretation.

If the text is explicit, the text is conclusive alike for what it directs and what it forbids. When the text is ambiguous, as for example when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act. (I) The text of Article 254 is explicit, however the Court has made violent departures from the plain meaning of the text:
  1. The Article 254 speaks of law made by the legislature of a State, but the court's interpretation limits the scope of these words only to laws made by a State on matters enumerated in Concurrent List, thereby excluding from the scope of Art. 254 (1) laws made by a State on matters in List II. Similarly, Art. 254 speaks of law made by Parliament which Parliament is competent to enact, but again the interpretation limits scope of these words only to laws made by Parliament on matters in Concurrent List, and thus excludes from the scope of the Article all other laws made by Parliament including those on matters enumerated in List I.

    The Court seems to justify these departures from text ... by referring to clause (2) of Art. 254, as it refers only to laws in respect of Concurrent List and it is an exception to clause (1), this should control the scope of clause (1). However, the court failed to consider that the scope of an exception is inevitably narrower than the main provision. The function and object of an exception is to set aside a part of the subject matter from the operation of the main provision.
  2. Restrictive interpretation put on Article 254 in Hoechst's Case Hoechst opinion is dominated by a blurring of concepts of the overlapping of legislative fields, on the one hand, and repugnancy between the two valid laws by different legislatures on the other.

It is because of the blurring that the court is unable to appreciate the phenomenon of overlapping, as also the way the doctrine of pith and substance has dealt with that phenomenon. The doctrine misunderstood in the sense that it was held by court in that case that the validity of a law must be judged, in case of an overlapping, only on basis of this doctrine.

The doctrine of pith and substance mitigates the rigour of the non-obstante clause and permits a State law on a matter in List II to survive in spite of the fact that it covers an area which can also be covered (due to overlapping of legislative fields) by a Parliamentary law.

But, the doctrine does not prevent Parliament either from legislating on the common overlapping area; and if Parliament also legislates on that area we have two valid laws on the same matter which might be repugnant to each other. If that happens, Art. 254 decide which of the two is to survive.

The doctrine of pith and substance deals with a law, all by itself, to examine whether it is within the competence of the legislature which passed it; the doctrine of repugnancy examines two valid laws to see whether they are capable of co-existing. Thus, validity of a law made by the State must be judged at two stages.

At the first stage it must be examined, under Art. 246 to ascertain whether it is within the competence of State legislature to enact the law. It is here that the doctrine of pith and substance is pressed into service in case of overlapping of the subject matter of different lists. If the law is found to be ultra vires the State legislature, there is no question of proceeding to examine it under Art. 254 for repugnancy.

Article 254 predicates a law made by the State, and if the law is found to be ultra vires under Art. 246, then there is no law made by the State. It is only when the law made by the State is a valid law that the question of application of Art. 254 can arise. The Hoechst opinion, on the contrary, concludes that if the State law on a matter in List II is a valid law, then it is not subject to the scrutiny under Art. 254 not even if subsequently Parliament passes a valid law which is repugnant to such State law. This indeed would, in effect, exclude Parliament from the area where the legislative fields overlap.

To permit the State to pass money lending legislation directly seeking to regulate borrowings made through promissory notes is one thing (Prafulla Kumar Case AIR 1947 PC 60); it is quite another to say that Parliament cannot, thereafter, effectively annul the effect on promissory notes of such State law by enacting an inconsistent or repugnant legislation on the subject of negotiable instruments.

According to Prof. Tripathi, there is fallacy in understanding the judgment of the Privy Council in Prafulla Kumar's case by the Supreme Court in Hoechst. The Negotiable Instruments Act, 1882, was not a Federal law but an existing law. Although it was an existing law but it was not one with respect to a matter enumerated in the Concurrent List.

Prof. Tripathi said that in absence of appreciation of this true reason behind inference of Privy Council, the Supreme Court has taken the erroneous view in Hoechst case. Prof. Tripathi referred to Meghraj v. Allah Rakha (AIR 1947 PC 72) and A.S. Krishana v. State of Madras (AIR 1957 SC 297), to say that the restrictive interpretation put on Art. 254(1) in the Hoechst case is not without precedent. But at the same time, there are precedents to the contrary of decision of Hoechst case.

In Kannan Devan Hill Produce Co. Ltd. v. State of Kerala (AIR 1972 SC 2301), and, Fateh Chand v. State of Maharashtra (AIR 1977 SC 1825), the Supreme Court applied Art. 254(1) to situations in which the validity of State laws on matters enumerated in List II was challenged under Art. 254(1) on the ground of repugnancy with laws made by Parliament.

Legislative Powers: Predominance of Union Law and Limitations of State Legislatures:

  1. In case of an overlapping between the three lists, regarding a matter, the predominance is given to the Union (Article 246). Thus, entries in State List have to be interpreted according to those in the Union and Concurrent Lists.
  2. In the concurrent sphere, in case of a repugnancy or inconsistency between a Union and State law relating to the same subject - the Union law prevails (Article 254).
  3. Extensive nature of Union List - Some subjects normally intended to be in the jurisdiction of States are in the Union List e.g. Industries, Universities, Election and Audit, Inter-State trade and rivers, etc.
  4. Residuary powers - (Article 248) - Power to legislate with respect to any matter not enumerated in any of the three lists (e.g. imposition of taxes) is given to the Union.
  5. Expansion of powers of Union legislature under certain circumstances - In the following situations, Parliament can legislate with respect to State List subjects:
    1. When Rajya Sabha declares by a resolution of 2/3rd majority (members present and voting) that it is necessary in national interest; 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 while the resolution remains in force (not exceeding one year and can be further extended by one year by means of a subsequent resolution) (Art. 249).
    2. Under a Proclamation of Emergency; it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to matter in the State List (Art. 250). Thus, during emergency, the Parliament can legislate on subjects in all the three lists and the Federal Constitution gets converted into unitary one. Nothing in Articles 249 and 250 shall restrict the power of State Legislature to make any law which under this Constitution it has power to make, but if any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative (Art. 251).
    3. By agreement between the States i.e. with the consent of State Legislatures; if it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States (except as provided in Arts. 249 and 250) should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the House of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the States' House. The Parliament (not State Legislature) also reserves the right to amend or repeal any such Act (Art. 252).
    4. To implement treaties. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body (Art. 253).

      Treaties are not required to be ratified by Parliament. They are, however, not self-operative. Parliamentary legislation will be necessary for implementing them. But laws enacted for the enforcement of treaties will be subject to the constitutional limits i.e. such a law cannot infringe fundamental rights (Sri Krishna Sharma v. State of W.B. AIR 1954 SC 591).
    5. Failure of Constitutional machinery in a State (Art. 356). The President can authorize the Parliament to exercise the powers of the State Legislature during the Proclamation of Emergency due to breakdown of Constitutional machinery in a State.
  6. Distribution of legislative powers does not apply to Union Territories, in which Parliament can legislate with respect to any subject' including those in the State List Parliament has power to make laws with respect to 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 [Art. 246(4)].
  7. Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List (Art. 247).

  8. Certain types of Bill cannot be moved in State legislatures without previous sanction of President. Also, certain Bills passed by State legislatures cannot become operative until receive President's assent, after having been reserved for his consideration by Governor of State. For example, Art. 200.

    Likewise Art. 288(2) authorizes a State to tax in respect of water or electricity stored, generated, consumed, distributed or sold by any authority established by law made by Parliament. But no such law shall be valid unless it has been reserved for the consideration of the President and has received his assent. Art. 304(b) authorizes a State Legislature to impose reasonable restriction on the freedom of trade, commerce and intercourse within the State in the public interest.

    But such laws cannot be introduced in the State Legislature without the previous sanction of the President. This provision is intended to ensure the free flow of trade and commerce which may be hampered by unreasonable restriction imposed by a State law.

Concluding Remarks
The rationale for such distribution of legislative powers between Union and States is that a strong Centre is necessary to coordinate the activities of various States in the interest of uniformity and to check fissiparous or antinational tendencies. Besides, the Central control was considered necessary for the purpose of achieving rapid economic and industrial progress. According to T.K. Tope, these provisions are merits rather than demerits of Indian Constitution.

They enable the Centre to legislate in exceptional circumstances on the State subjects without amending the Constitution and thus introducing a certain amount of flexibility in the scheme of distribution of powers. Moreover, they are invoked only for a limited period.

The Sarkaria Commission has also rejected the demand for curtailing the powers of the Centre saying that a strong Centre is necessary to preserve the unity and integrity of the country. The Commission is also of the view that the supremacy of Parliament envisaged in Arts. 246 and 254 is essential and needs no change.

The only suggestion given in this respect is that residual matters other than taxation should be in the Concurrent List. The various suggestions asking for transfer of subjects to the State or Concurrent List have been rejected. The Commission has, however, suggested that there should be consultation by the Centre on all concurrent subjects before passing any law. 

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