Decoding the demarcation of Legislative Powers – By Surel S Shah

September 6,2021

Part-XI of the Constitution of India delineates the legislative relations between the Centre and the State.It also throws light on the distribution of legislative powers. Though the distinction and demarcation of legislative powers appear to be subtle but there is a clear demarcation of their respective powers.

Parliament is competent to enact laws in so far as they relate to whole or any part of the territory of India. The State is competent to make laws in so far the law would relate to the whole or any part of the State. Despite, the clear demarcation still there are instances where the Parliament can enact laws for a State or States and that’s precisely the reason why it is provided under Article 252(2) that merely because the law enacted by the Parliament has extra territorial operation it would not render the law so enacted invalid.

Article 246 compartmentalises the competence of legislature to legislate principally in 3 lists. Each such list details the subject and this is also known in legal parlance as ‘Entry’ . In respect of each such entries, laws can be enacted or are made referable to. The lists are detailed and form part of  the VII^th  Schedule of the Constitution. 

The first list is called as the Union List –List I which empowers the Parliament to make laws in respect of those matters/entries/subjects which are mentioned therein.

The State, on the other hand, is empowered to make laws so far as the matters/entries/subjects enumerated in List-II and this is known as the State List.  

The third List which is known as Concurrent list-List III, empowers both the Union and the State to legislate in respect of matters/entries enumerated in the said list. The matters/entries mentioned in this list more often than not are the source of major litigations between the Union and States.

Under Article 246(4) the Parliament has been empowered to make laws in respect of any matter mentioned in the State List in its application to a territory which is not included in the territory of any State. This means that Union can make laws in regards to matter mentioned in the State list for a Union Territory. 

The Parliament under Article 248 is also empowered to make laws including power to make law imposing tax with respect to any matters/entries, which are not enumerated in the Concurrent list or State List which means that any matter which is not prescribed in the concurrent or State List, Parliament has the authority or exclusive power to make laws.

Article 249 is an exception to the legislative competence to enact the laws from their respective lists as it gives power to the Parliament to legislate with respect to matters/entries though included in the State List provided the Parliament thinks it to be fit in the national interest.  However for the said Parliament to legislate in respect of matters/entries in the State List, it is necessary that the Council of States empower the Parliament by a resolution, which has to be supported by not less than 2/3^rd of the members present in such meeting and each such member should under the law be entitled to vote. The resolution empowering the Parliament to legislate has to  be one which the State legislature feels that it is necessary and expedient in the national interest to make such law.

The said resolution passed by the State as required under Article 249  is valid only for a period of one year.  However, the period of one year can be extended for a further period of one year provided such a resolution is again passed by the Council of States which is supported by not less than 2/3^rd members.   It is important to note that Sub-Article (3) of Article 249 permits the resolution passed by the Council of States to be in operation for a further period of 6 months after the expiry of resolution period i.e. one year.  The laws so made or the acts so done during the said extended period of 6 months will have the force of law and will be binding .The Evacuee Interest (Seperation )Act 1951,Supply and Prices of Goods Act ,1950, are some of the instances of legislation under Article 249.

Article 250  empowers the Parliament to legislate in respect of any matter/entry in the State List if there is a proclamation of emergency in operation.  However, the law so made by the Parliament shall cease to have effect on the expiry of period of 6 months after the proclamation has ceased to operate and the things done or omitted to be done before the said period will be held to be valid. 

Article 251 provides that merely because Parliament has the power under Articles 249 & 250 to legislate in an event of contingency mentioned in Articles 249 & 250 occurring, it does not prevent the State Legislature to legislate in respect of the State List.  However the said power of State  is with a caveat that provision of law made by the State Legislature if it is repugnant to any of the provision of law made by the Parliament then the law made by the Parliament whether before or after law is made by the Legislature of State, shall prevail and law made by the Legislature to that extent shall be repugnant.  However the repugnancy will continue only till law made by the Parliament is in operation.

Article 252 is the power bestowed upon Parliament by two or more States which desire that in respect of any matter/entry which otherwise the Parliament has no power to make laws for the State ,the Parliament should make law on that subject/matter. This means that in respect of matters/entries enumerated in the Second List, two or more States could by a resolution passed by all the houses of its Legislature make a request to the Parliament to make a law on the said matters/entries mentioned in the Second List.  

Any State or States which have not initially consented to passing of such Act or had made a request to the Parliament, can later adopt the Act so made by the Parliament. However the procedure for adoption of such Act is the same i.e. it has to be passed by both the houses of Legislature of the said State.  

Article 252 (2) provides that if the Act/s are promulgated under Article 252 (1) by the Parliament then the Act/s so promulgated  can be amended or repealed only by an Act of Parliament and amendment if any by the Parliament has to be adopted in the same manner which has been aforementioned in Article 252(1). The State Legislature does not have the power to amend or repeal the Act so promulgated under Article 252(1).  

By invoking Article 252, the Parliament has had promulgated the following laws :

All these laws which were /are promulgated  by the Parliament though the subject /entry under which they were enacted fell  within the State List, however by virtue of request by the State  Legislatures, the Parliament has promulgated the aforesaid laws.  Though the aforesaid laws were in existence, the States had by invoking their powers under the same entry in State List had promulgated certain laws such as, the Kerala Agricultural Reforms Act or Karnataka Land Reforms Act,1961,  where the Apex Court has held that though Parliament made the law under Art 252 was in vogue, however certain provisions of the State made Act and nature of the said  State Act did not encroach upon law made by the Parliament under Article 252 and State made law’s validity was upheld[1].

An issue had also cropped up whereby regulations framed under The Indian Veterinary Council Act, (No.52 of 1984) were challenged in the case of Udai Singh Dagar[2]. It was contended that Veterinary Doctors who were registered under the Maharashtra Veterinary Practitioner Act which was in vogue when Indian veterinary council Act was promulgated, had a right to be appointed or practice the faculty of medicine.  The Apex Court after considering the provision of Article 252 and provision of Indian Veterinary Council Act, rejected their contentions in view of necessity of Central Act being passed under Article 252 as also by relying upon Art 19(6).  

Thus, Article 252 is an important provision in our Constitution which empowers the Parliament to legislate in respect of matters/entries which are governed under the State List, however in the larger interest of country, the Parliament is empowered to make uniform law in respect of said matter, but the same is to be passed by both the houses of the State Legislature and adopted accordingly.  

Article 253 empowers the Parliament to make law for the whole or part of the Territory for implementing any treaty, agreement or convention with any other country or countries or any decision made at the International Conference Association or other body.  This means that even if the entry under which the law is made, pertains to the domain of the State Legislature yet to give an effect to implement any treaty, agreement or convention, the Union Legislature is empowered to make law in respect of an entry under the second list.

Article 254 provides that if a State legislature enacts a Law in respect of matter/entry in  the concurrent list and there exists a Law made by Parliament covering the same subject /matter in the concurrent list then ,the law made by the Parliament shall prevail over the State made Law  .If the Parliament enacts a Law in respect of Concurrent list after the Law by the State legislature already holds the field, then the Law made by the Legislature shall be repugnant and void to the extent of the law made by Parliament. This doctrine is more often referred to “Doctrine of Occupied field”. The Apex Court in many cases has also expounded the theory of “pith and substance” to come to conclusion whether there is overlapping or transgression of powers by the legislatures [3]. Incidental transgressions are also upheld by the Apex Court in case of Offshore Holdings Pvt Ltd v/s Banglore Development Authority &ors (supra).

Article 254 (2) however protects the law made by the State legislature, in respect of a matter in concurrent list even though there is already a Law made by the Parliament, provided such Law is reserved for consideration by the President and has received his assent .The moment the President gives his assent then the Law made by the State shall prevail in the State. However the laws which are referred to in Article 254 have to be Law/s which are in respect of matters/entries mentioned in Concurrent List viz,  List-III of the VIIth Schedule[4]. 

Thus, this Chapter of our constitution is an important feature which demarcates the legislative powers of the Union and the State .

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Surel S Shah  is an Advocate practicing in the High Court of Bombay.

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[1] Krishna Bhimrao Deshpande Vs Land Revenue Tribunal,Dharwad 

[2] Udai Singh Dagar Vs Union of India

[3] Offshore Holdings Pvt Ltd v/s Banglore Development Authority &ors; K.K.Baskaran V/s State      

[4]  Pt.Rishikesh & Ors V/s Salma Begum              

Disclaimer: The views or opinions expressed are solely of the author.