CHANAKYA NATIONAL LAW UNIVERSITY

POLITICAL SCIENCE

LEGISLATIVE RELATION BETWEEN

UNION AND STATE

SUBMITTED TO: S P SINGH SUBMITTED BY: PAWAS

ROLL NO : 1544

BA LLB (HONS): SEMESTER I

ACKNOWLEDGEMENT

I would like to take this opportunity to thank Prof. S P

SINGH, for his invaluable support, guidance and advice. I
would also like to thank my parents who have always been
there to support me. I would also like to thank the library
staff for working long hours to facilitate us with required
material going a long way in quenching our thirst for
education.
CHAPTERISATION

 INTRODUCTION

 LEGISLATIVE RELATIONS

 SUBJECT MATTER

 RESIDUARY POWER
 INTERPRETATION OF LIST

 REPUGNANCY BETWEEN A CENTRAL LAW AND STATE LAW

 CONTROL OVER THE ORDINANCE-MAKING

POWER OF THE GOVERNOR

 SARKARIA COMMISSION RECOMMENDATIONS

ON CENTRE-STATE LRGISLATIVE RELATIONS

 CONCLUSION

 BIBLIOGRAPHY
INTRODUCTION

The distribution of powers is an essential feature of

federalism. The object for which a federal state is formed
involves a division of authority between the National
Government and separate states. The tendency of
federalism to limit on every side the action of the
government and to split up the strength of the state among
co-ordinate and independent authorities is especially
noticeable, because it forms the essential distinction
between a federal system. And a unitary system of
Government. ” A Federal Constitution establishes the dual
polity with the union at the centre and the states at a
periphery, each endowed with sovereign powers to be
exercised in the field assigned to them respectively by the
constitution.” “The one is not subordinate to the other in its
own field, the authority of one is co-ordinate with that of
other”. In fact, the basic principle of federation is that the
legislative, executive and financial authority is divided
between the centre and state not by any law passed by the
centre but by constitution itself. This is what Indian
constitution does.
LEGISLATIVE RELATIONS

The constitution of India makes two fold distribution of

legislative powers-

A] With respect to territory

B] With respect to subject matter

TERRITORIAL JURISDICTION

As regards territory Article 245(1) provides that subject to

the provisions of this constitution, parliament may make
laws for the whole or any part of the territory of India.
According to clause (20 of Article 245 a law made by
parliament shall not be deemed to be invalid on the ground
that it has extra-territorial operation, i.e. takes effect
outside the territory of India. In A.H. Wadia v. Income tax
1
Commissioner, Bombay , the Supreme Court Held : “In the
case of a sovereign Legislature question of extra-
territoriality of an 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 recognized 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.”

THEORY OF TERRITORIAL NEXUS

The Legislature of a state may make laws for the whole or

any part of has extra-territorial operation i.e. takes effect
outside the [Link], there is one exception to this
general rule. A state law of extra-territorial operation will
be valid if there is sufficient nexus between the object and
state.
In Wallace v. Income tax Commissioner, Bombay a
company which was registered in England was a partner
in a firm in India. The Indian Income tax Authorities
sought to tax the entire income made by the company. The
privy council applied the doctrine of territorial nexus and
held the levy tax valid. It is said that the derivation from
British India of a major part of its income for a year gave
to a company for that year sufficient territorial connection
to justify its being treated as at home in India for all
purposes of tax on its income for that year from whatever
source income may be derived.
In State of Bombay v. R. M. D. C. the Bombay state levied a
tax on lotteries and prize competitions. The tax was
extended to a newspaper printed and published in Banglore
but had wide circulation in Bombay. The respondent
conducted the prize competitions through this paper. The
court held that there existed a sufficient territorial nexus to
enable the Bombay state to tax the newspaper. If there is
sufficient nexus between the person sought to be charged
and the state seeking to tax him, the taxing statute would
be upheld. But illusory and the liability sought to be
imposed must be pertinent to that connection. Whether
there is sufficient connection is a question of fact and will
be determined by courts in each accordingly.

DELEGATED LEGISLATION

Delegated or subordinate Legislation may be defined as

rules of law made under the authority of an Act of
parliament. Although laws are to be made by the
Legislatures, but the Legislature may by statute delegate its
power to other persons or bodies. Such a statute is
commonly known as “the enabling Act” and lays down the
broad principles and leaves the detailed rules to be
provided by regulations made by a minister or other
persons. Delegated legislation exists in the form of rules,
regulations, orders and bye-laws.

FACTORS RESPONSIBLE FOR THE

GROWTH OF DELEGATED LEGISLATION

The practice of delegating power to make subordinate

legislation has greatly increased in the modern times due
to the following reasons;

1] Pressure on parliamentary time- parliament being a

busy body has insufficient time to deal adequately with the
increasing mass of legislation necessary to regulate affairs
of a complex modern state.

2] Technicality of subject matter- Technicalities’ of

modern legislation require expertise knowledge of
problems which is not expected of the legislators is the
 legislators in the legislature which are composed of
politicians.

3] Opportunity of subject matter- Delegated legislation is

more flexible, easily amendable and revocable than
ordinary legislation. There is enough scope for
experimentation.

4] Unforeseen contingencies- Subordinate legislation

enables a Government to deal with problems which could
not been foreseen when the ‘enabling Act’ was passed and
to act quickly in an emergency.

5] Emergency powers- During the emergency quick and

decisive action is necessary and at the same time it is to be
kept confidential. The legislature is not fit to serve this end
and therefore the executive is delegated the powers to
make rules to deal with such situations.

The Indian constitution permits subordinate legislation by

delegation. Art. 13 (3) provides that “law” “includes any
ordinance, order, bye-law, rule, regulation, notification,
custom or usages having in the territory of India the force of
law. The theory of separation of power which is an
important feature of the American constitution is absent in
India as well as England. So, there is no constitutional
impropriety in the practice of delegating legislative power
to executive. In the U.S.A. the entire legislative power is
vested in congress.

LIMITS-

The limits of delegated legislation have been set out in the

various decisions of the courts after the new constitution
came into force. It has been held that the legislature cannot
delegate its essential functions which consist in declaring
the legislative policy and laying down the standard which is
to be enacted in to a rule of law with sufficient clearness,
and what can be delegated is the task of subordinate
legislation which by very nature is ancillary to the statute
which delegates the power to make it effective. The courts
cannot interfere in the discretion vested in the legislature in
determining the extent of the delegated power in particular
case.
NEED TO CONTROL EXERCISE OF
DELEGATED LEGISLATION-

In 1929 the Lord Chief Justice, Lord Hewart in his book ‘The
New Despotism’ criticized the growth of delegated
legislation and pointed out the dangers of its abuse. As a
result, the committee on ministers Powers was set up which
in its report accepted the necessity for delegated legislation
but considered but the power delegated might be misused
and recommended the following modes of control over the
delegated legislation namely :

1. Nomenclature of various forms of delegated

legislation should be supplied and better provision be
made for publication.

2. The precise limits of law-making power which

parliament intended to confer on a Minister should
be clearly defined.

3. The use of “Henry VIII clause” authorizing a

minister to amend the enabling Act itself to be an
 exception and be confined to bringing an Act into
[Link] excluding jurisdiction of the courts
should be abandoned in all but the most

4. exceptional cases.

5. Consultation with interested bodies should be

extended.

6. Parliamentary scrutiny and control should be

improved

TWO TYPES OF CONTROL OVER

DELEGATED LEGISLATION-

1. Judicial control.- the courts have power to consider

whether the delegated or subordinate legislation is
consistent with the provisions of the ‘enabling Act’.
Their validity can be challenged on the ground of
ultra vires i.e., beyond the competence of the
legislature. The courts can declare the parent Act
unconstitutional on the ground of excessive delegation
 or violation of fundamental rights or if it is against
the scheme of distribution of legislative powers under
Art. 246 of the constitution. The parent Act may be
constitutional but the delegated emanating from it
may come in conflict with some provisions of the
constitution and hence it can be declared
unconstitutional.

2. Parliamentary control.- it is the primary duty of the

legislature to supervise and control the exercise of
delegated power by the executive authorities.
Parliamentary control over the delegate legislation is
exercised at three stages. The first stage is the stage when
power is delegated to the subordinate authorities by
Parliament. This stage comes when the bill is introduced in
the legislature. The second stage is when the rules made
under the statute are laid before the Houses of Parliament
through the committees on subordinate legislation. The
committee on subordinate legislation scrutinizes the rules
framed by the executive and submits its report to the
legislature if the rules are beyond the permissible limits of
delegation. These rules are laid before the legislature and
debated in the legislature. If they are ultra vires questions
may be put to the minister concerned and if necessary
even a motion of censure on the minister responsible for
the rules and regulations may be moved.

SUBJECT MATTER
As we pointed out at the outset, a federal system postulates a
distribution of powers between the centre and states. The nature of
distribution varies according to the local and political background in
each country. In America, the sovereign states which were keen to
federate, did not like complete subordination to the central
government hence they believed in entrusting subjects of common
interest to the central government, while retaining the rest with
them. Thus American constitution only enumerates the powers of
the central government and leaving the residuary power to the
states. Australia followed the American pattern of only one
enumeration powers i.e., of Central Government leaving the
residuary power to the states because their problems were similar
to the Americans. In Canada ther is double enumeration, Federal
and Provincial leaving the residue to the Centre. The Canadians
were conscious of the unfortunate happenings in U.S.A culminating
in Civil War of 892. They were of the shortcomings of the weak
centre. Hence, they opted for a strong Centre. Our constitution
makers followed the Canadian scheme obviously opting for a strong
Centre. However, they added one more list-the Concurrent List. The
Government of India Act, 1935, introduced a scheme of three fold
enumeration, viz., Federal, Provincial and Concurrent.

The present constitution adopts the method followed by

the Government of India Act. 1935, and divides the powers
between the Union and states in three Lists- the Union
List, the state list and the Concurrent List.
1. The Union List consists of 97 subjects. The subject
mentioned in the union List is of national importance,
i.e., defence, foreign affairs, banking currency and
coinage, union duties and taxes.
2. The State List consists of 66 subjects. There are of a
local importance, such as, public order and police,
local government, public health and sanitation,
agriculture, forest, fisheries, education, state taxes
and duties. The states have exclusive power to make
laws on subjects mentioned in the State list.
3. The Concurrent List consists of 46 subjects. Both
centre and States can make laws on the subject
mentioned in the Concurrent List. But incase of
conflict between the Central and the State law on
concurrent subjects, the Central law will prevail. The
Concurrent List is not found in any federal
constitutions. The framers added this List to the
Constitution with a view to secure uniformity in the
main principles of law throughout the country. The
Concurrent List was to serve as a device to avoid
excessive rigidity to two-list distribution. The
Concurrent List thus, in the words of Pyle, is “a
twilight zone, as it were, for both the Union and the
States are component to legislate in this field, without
coming into conflict.”
THE RESIDUARY POWERS

Article 248 vests the residuary powers in the parliament. It

says that parliament has exclusive power to make any law
with respect to any matter not enumerated in the
Concurrent List or the State List. Entry 97 in the Union
List also lay down that Parliament has exclusive power to
make laws with respect to any matter not mentioned in the
State List or the Concurrent List including any tax not
mentioned in either of these Lists. Thus the Indian
Constitution makes a departure from the practice
prevalent in U.S.A., Switzerland and Australia where
residuary powers are vested in the states. This reflects the
leanings of the Constitution-makes towards a strong
Centre.

PRINCIPLES OF INTERPRETATION OF
LISTS

THE POWER of centre and states are divided. They

cannot make laws outside their allotted subjects. It is that
a scientific division is not possible and questions constantly
arise whether a particular subject fails in the sphere of one
or the other government. This duty in a federal
constitution is vested in the Supreme Court of India. The
Supreme Court has evolved the following principles of
interpretation in order to determine the respective power
of the Union and the States under the three lists.

• Predominance of the Union List- the opening words of

Art. 246 (I) “notwithstanding anything in clauses (2)
and (3)” and the opening words of clause (3) “subject
to clauses (1) and (2)” expressly secure the
predominance of the Union List over the State List
and the Concurrent List And that of concurrent List
over the State list. Thus in case of overlapping
between the union and the Concurrent List, it is again
the Union List Which will prevail. In case of conflict
between the concurrent List and state List, it is the
Concurrent List that shall prevail.

• Each Entry to be interpreted broadly- Subject to the

overriding predominance of the Union List, entry in
the various lists should be interpreted broadly. In
5
Calcutta Gas Ltd. V. state of Bengal. the supreme
Court said that the “widest possible” and ‘most
liberal” interpretation should be given to the
language of each entry. A general word used in an
entry…… must be construed to the extent to all
ancillary or subsidiary matters which can fairly and
reasonably be held to be included in it. The Court
should try, as far as possible, to reconcile entries and
to bring harmony between them. When this is not
 possible only then the overriding power of the Union
Legislature- the non obstante clause applies and the
federal power prevails.
In Union of india v H.S. Dhillon, the question involved was
whether parliament had legislative competence to pass
Wealth-tax Act imposing wealth tax on the assets of a
person in agricultural land. The Court held that in case of
a central Legislation the proper test was to inquire the
matter fell in List II (State List) or List III (Concurrent
List). Once it is found that matter does not fall under List
II, Parliament will be competent to legislate on it under its
residuary power in Entry 97 of List I. in such a case it
becomes immaterial whether it falls under Entries I-96 of
List or not .
Pith and substance- Within their respective spheres, the
Union and the State legislature are made supreme and
they should not encroach into the sphere reserved to other.
If a law passed by one Encroaches upon the field assigned
to the other the court will apply the doctrine of pith and
substance to determine whether the legislature concerned
was competent to make it. If the pith and substance of law,
i.e., the true object of the legislation or a statute, relates to
a matter with the competence of Legislature which enacted
it, it should be held to intra vires even though it might
incidentally trench on matters not within the competence
of Legislature. In order to ascertain the true character of
the legislation one must have regard to the enactment as a
whole, to its object and to the scope and effect of its
 provision. The Privy Council applied this doctrine in
9
Profulla Kumar v. bank of Khulna. in this case the
validity of the Bengal Money Lenders’ Act, 1946 which
limited the amount and the rate of interest recoverable by
a money lender on any loan was challenged on the ground
that it was ultra vires of the Bengal Legislature in so far as
it related to ‘promissory notes’, a central subject. The
Privy Council held that the Bengal Money-Lenders Act
was in Pith and substance a law in respect of Money-
Lending and Money-lenders a state subject, and was valid
even though it trenched incidentally on “Promissory
note”- a central subject.
In State of Bombay v. F.N. Balsara the Bombay,
Prohibition Act, which prohibited sale and possession
of liquors in the state, was challenged on the ground
that it incidentally encroached upon import and
export of liquors across custom frontier- a central
subject. It was contended that the prohibition,
purchase, use, possession and sale of liquor will affect
its import. The court held that Act valid because the
pith and substance of the Act fell under the State List
and not under the Union List even though the Act
incidentally encroached upon the Union Powers of
Legislation.
• Colorable Legislation- in K.C.G. Narayan Dev v. State of
11
Orissa the Supreme Court explained the meaning and
scope of the doctrine of colorable legislation in the
following terms:-
“If the Constitution distributes the legislative power
amongst different Legislative bodies, which have to act
within their respective spheres marked out by specific
legislative Entries, or if there are limitations on the
legislative authority in the shape of fundamental rights,
question arises as to whether the Legislature in a
particular case has or has not, in respect to the subject-
matter of the statute or in the method of enacting it,
transgressed the limits of its constitutional powers. Such
transgression may be patent, manifest or direct, but it may
also be disguised, covert or indirect, or and it is to this
latter class of cases that the expression colourable
legislation has been applied in judicial pronouncements.
The idea conveyed by the expression is that although
apparently a legislature in passing a statute purported to
act within the limits of its powers, yet in substance and in
reality it transgressed these powers, the transgression
being veiled by what appears, on proper examination, to
be a mere pretence or disguise. In other words, it is the
substance of the Act that is material and not merely the
form or outward appearance, and if the subject matter is
substance which is beyond The whole doctrine of
colourable legislation is based upon the maxim that you
cannot do indirectly what you cannot do directly. In these
cases the Court will look in the true nature and. character
of the legislation and for that its object, purpose or design
to make law on a subject is relevant and not its motive. If
the legislature has power to make law, motive in making
the law is irrelevant.
State of Bihar v. Kameshwar Singh is the only case where
a law has been declared invalid on the ground of colorable
legislation. In this case Bihar Land Reforms Act,1950 was
held void on the ground that though apparently it
purported to lay down principle for determining
compensation yet in reality it did not lay down any such
principle and thus indirectly sought to deprive the
petitioner of any compensation.
REPUGNANCY BETWEEN A CENTRAL LAW
AND A STATE LAW ART. 254