In a Federal or Quasi-federal Constitution Legislative and administrative
powers are divided between the centre and the state. The division between the
centre and the states are in respect of the territory, topics of legislation.
This article deals with the legislative relations between the Union and the
The distribution of legislative powers are divided into two folds:
- With the respect of territory
- With the respect of subject matters.
Article 245 talks about the ambit of territorial limits of the legislative
powers vested with the parliament and the state legislature. Clause (1) says
that constitution provides the power to parliament to make laws which may not
apply or extend to the whole or any part of the Indian territory. Where as state
legislature can make laws which may extend to the whole state or a part of it.
Provided, application of laws in certain state legislatures is subject to the
provisions of 6th schedule to the constitution.
Clause (2) clearly describes that a law passed by parliament shall not invalid
on the grounds that it held effective outside the territory of India. To
understand this provision lets take an example, suppose an Indian guy marries a
foreign women while her first wife is still alive, the guy will be booked under
bigamy in the foreign nation. He cannot challenge the act on the grounds of
extra territorial operation.
Only the parliament has the power to make laws on extra territorial operation
and not the state legislature. If the act of the state legislature is extra
territorial it can be held invalid. The only exception to this rule is when
there is a sufficient nexus or connection between the state and the subject
matter of the law.
In the state of A.P vs NTPC Ltd
(2002) 5 SCC203; AIR 2002 SC 1895, "The most
important consideration for invoking the doctrine of nexus is that the
connection between the state and the subject matter of the law must be real and
In the recent time we have seen the enormous increase in the delegated
legislation. It has been used in two manners. one, which means the exercise of
power of rule making delegated to executive by the legislature. And the other
sense exercise of rules, regulation, order, by laws etc.
Though it gives power to delegate but it also comes with the limitation. This
was setteled by a Judgement in Delhi laws Act,1912 re AIR 1951 SC 332:1951 SCR
747. that there is a limit beyond which delegation may not go.
Distribution of legislative powers ( subject matter): Article 246 is related to
subject matter of law making power of parliament and state legislatures. In our
Constitution there are three list i.e the union list; the state list and the
concurrent list. The parliament has exclusive powers over 97 items mentioned in
the union list. The state has exclusive power over 66 items mentioned in the
State list. And 47 subjects mentioned in the concurrent list , both the
parliament and the state have control over it.
But Art246A makes an exception by
conferring concurrent power on Parliament and the state legislatures to impose
goods and services tax. However, three list don't exhuast all the legislative
subject. But the Supreme Court has evolved the following principles of
interpretation in order to determine the power of the Union and the State.
- Plenary power of the legislature:
The power of legislation within the
legislative competency is complete in every respect. The legislature is
competent enough to make laws on the subject matter assigned.
Legislature has both the power to make law prospectively as
well as respectively. If the court had held any law invalid it is the work of
legislature to cure the void part or the invalid part and pass a valid law which
is consistent and effective. But legislature has no right to entact a provision
which affects the right and liabilities of an individual or a party.
- Predominance of the Union power:
If the matter is mentioned in both the list
i.e. the State and the Union, according to Art.246(1) Union legislature will be
given the power to legislate on that subject. Similarly if there is overlapping
in Union list and Concurrent list, Union shall prevail. And in the case of
concurrent and state list union power shall prevail.
- Avoidance of Conflict
- Harmonious Construction: There might be a situation
where some entries in the different list may overlap and sometimes may have
direct conflict with each other. In such a situation it is the duty of court to
solve the dispute, come on a conclusion and reconcile on the disputed entries.
- Pith and Substance:
This doctrine is applied when a particular enactment is
challenged with the reference to the entries in different list. In Prafulla
Kumar Mukherjee vs Bank of Commerce Ltd(1946-47) 74 IA 23:AIR 1947 PC 60 " what
in pith and substance is the effect of the enactment of which complaint is made
and in what list is its true nature and character to be found."
- Ancillary legislation:
The legislature has a power over the ancillary matter
which can be said to be reasonably included in the power given.
Article 249,250,252,253 and 255 gives parliament power to legislate on state
subjects. These are:
Power of parliament to legislate in the national interest.; During emergency
parliament have power to make laws for the whole or any part of territory of
India.; Parliament's power to legislate with the consent of respective states.;
Parliaments also holds power to form any law which effects the international
treaties and agreements.
These were the legislative relations between the states and the Union. Article
256 to 263 deals with the administrative relations between the Union and the