Legislative Relations

Legislative Relation (Article 245-255, Part XI)

The constitution of India makes a two-fold distribution of legislative power:

• With respect to territorial jurisdiction.
• Subject matter of legislation.

With respect to territorial jurisdiction:

• Article 245 (1) provides: “Subject to the provisions of this Constitution, Parliament may make laws for the whole part of the territory of India, and the Legislature of a State may make the whole or any part of the State.”

Analysis

Article 245 (1) provides that the Legislature of a State may make laws for the whole or any part of the State. It implies that the State law would if it is given extra-territorial operation, i.e., it is applied to subjects whole dets located outside the territory of that State. However, many times State laws having extra-territorial operation have been held valid. It is the application of the “Doctrine of Territorial Nexus”.

Parliamentary Law having Extra Territorial Legislation:

• Clause (2) of Article 245 declares that Union Parliament may make a law having extra-territorial operation and such a law would not be the ground of having extra-territorial operation.

In Sondur Gopal vs. Sondur Rajini, the question before the Division Reach of the Apex Court related to application of The Hindu Marriage Act, to Hindus, residing out of India but having domicile in India. Court held though the parties, having domicile of origin in India, they would continue to be governed by the H.M. Act, 1955.

Distribution of subject matter of legislation (Article 246):

• Provides that the Union Parliament may make laws with respect to the matters contained in Union List and a State Legislature may make laws with respect to the matters contained in the State List. 
• As regards to matters contained in the Concurrent List, both Union Parliament and State Legislatures are vested with concurrent powers of legislation.
• In case of conflict between central and State law on the subject enumerated in the Concurrent List, the Central law prevails over the state law. But there is an exception. If the state law has been reserved for the consideration of the president and has received his assent, then the state law prevails in that state. But it would still be competent for the Parliament to override such a law by subsequently making a law on the same matter.
• Entries in the Lists, are themselves, not powers of the legislation, but fields legislation. While the legislative power in driven from Article 245, the entries in the Seventh Schedule only demarcate the legislative fields of the respective legislatures and do not confer legislative power as such.

Conflict between Centre and State

The distribution of subject-matter cannot be claimed to be scientifically perfect and there happens to be overlapping between the subjects enumerated in the three lists. In such cases, question arises with regard to the constitutionality of the enactment which lies within the domain of judiciary.

• Presumption of Constitutionality: A cardinal rule of interpretation is that there shall always be a presumption of constitutionality in favour of a Statute. The Court should try to sustain its validity to the extent possible. It would strike down the enactment only when it is not possible to sustain it. Further that the burden of proof is upon the shoulders of petitioners who challenges the law.
• Doctrine of Pith and Substance: The Doctrine of Pith and Substance states that if the substance of legislation falls within a legislature’s lawful power, the legislation does not become unconstitutional just because it impacts an issue beyond its area of authority. The Court uses it to determine whether the claimed intrusion is just incidental or significant. Thus, the ‘pith and substance’ concept holds that the challenged statute is fundamentally within the legislative competence of the legislature that enacted it but only incidentally encroaches on the legislative field of another legislature.
  • Objective behind the Doctrine: The objective behind the creation of this doctrine was to prevent absolute intrusion of legislative powers by evaluating the ‘content’ of enactment and then determining which list the specific subject matter fell within. As a result, this doctrine is applied to establish the legislative competency of a given law by examining the ‘content’ of that statute. Examining an enactment’s ‘substance’ might lead to one of two outcomes:
    • The enactment’s substance corresponds to the subject matter given to the legislature for the purpose of enacting laws: This will constitute the enactment totally lawful.
    • Enactment includes subject matter that is outside the jurisdiction of the federal or state legislatures: This may result in a partial or accidental incursion of legislative powers, which may or may not render the entire statute invalid and void. Certain subject topics enumerated in the three lists indicated in the Seventh Schedule might overlap at times, therefore incidental encroachments are permitted to some extent when evaluating legislative competency.
• Doctrine of Colourable Legislation: 
  • Doctrine of Colourable Legislation means that if a legislature lacks the jurisdiction to enact laws on a specific subject directly, it cannot make laws on it indirectly. In simple words, the doctrine checks if a law has been enacted on a subject indirectly when it is barred to legislate on that topic directly
  • Article 246 of the Indian Constitution deals with subject matter legislation, which refers to who has the authority to create laws in relation to particular subject matter.
  • However, the legislative body occasionally passes laws that are outside of its purview. This signifies it has overstepped its bounds and done something indirectly that could not have been done directly.
  • This is known as a colourable legislation of legislative power or establishing laws indirectly while doing so directly is illegal.
  • As a result, the theory of colourable legislation was created to prevent legislative authorities from abusing their powers.
  • For example, the constitution provides reservation to only social and educationally backward communities.
  • So any attempt to declare the socially forward communities as backward communities and extend the reservation becomes coloured legislation.
• Doctrine of Harmonious Construction: The doctrine of harmonious construction is followed when there arises an inconsistency between two or more statutes or sections of a particular statute. The fundamental principle behind this doctrine is, a statute has a legal purpose and should be read in its totality and after that, the interpretation that is consistent with all the provisions of that statute should be used. 

In Commissioner of Income Tax vs Hindustan Bulk carriers, Court laid down the guidelines as follows:

• The courts should try and avoid a conflict of seemingly disputing provisions and effort must be made to construe the disputing provisions so as to harmonize them.
• The provision of one section cannot be used to overthrow the provision covered in another section unless the court is unable to find a way to settle their differences despite all its effort. 
• In the situation when the court finds it impossible to entirely reconcile the differences in inconsistent provisions, the courts must interpret them such that effect is given to both the provisions as far as possible.
• Courts must also take into account that the interpretation that makes one provision redundant and useless is against the essence of harmonious construction.
• Harmonizing two contradicting provisions means not to destroy any statutory provision or to render it ineffective.

Residuary Power of Legislation (Article 248)

Article 248 of the Indian Constitution deals with the residuary powers of legislation. It further states that:

• Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.
• Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.

In Naga People’s Movement of Human Rights vs. Union of India the Supreme Court ruled that Parliament was competent to enact the Armed Forces (Special Powers) Act, 1958 in the exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read with Entry of list 1.

Parliament Power to legislate with respect to matter contained in State List

1. In National Interest (Article 249): Article 249 provides that if the Rajya Sabha has passed a resolution by majority of not less than two-thirds of the members present and voting declaring that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the List specified in the resolution, it shall be lawful for Parliament to make for the whole or any part of the territory of India. 
   • Parliament may make laws under Article 249 (1) only with respect to the State matters as are specified in the resolution passed by the Council of States.
   • Such a resolution passed under Clause (1) normally lasts for one year, may be renewed as many times as deemed necessary. Every time a resolution is passed, it shall remain in force for one year only. 
   • Laws passed by Parliament under a resolution passed under Clause (1) Article 249, would cease to have effect on the expiration of a period of six months after the resolution has ceased to operate.
   • The Rajya Sabha is authorised to pass the resolution under Article 249 because of it is said to be a representative House, containing representatives of the States who are elected by the members of the State legislative Assemblies.
   • Article 249 has been used a few times. Ex: The Supply and Prices of Goods act 1952.

2. During Proclamation of National Emergency (Article 250): Article 250 (1) provides that “Parliament shall, while a proclamation Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List” The Proclamation of Emergency referred to in this Article must be proclamation which may be made under Article 352. When a proclamation of Emergency is in operation, Parliament enact laws with respect to all the three Legislative Lists in Schedule VII.
   • It can make laws conferring powers and imposing duties on the Union and Officers in respect of all the Lists.” 
   • Laws made under Article 250 (1), however, would cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate.
   • Article 251 clarifies that Articles 249 and 250 do not restrict the of the Legislature of a State to make laws with respect to matters with respect to which Parliament is empowered to legislate under these Article Thus, the State Legislatures may legislate with respect to such matter However, in case the two laws, i.e., Parliamentary law and State law, a repugnant to each other, then, it is the law made by Parliament which will prevail and the State law shall be void to the extent of the repugnancy.

3. Legislate with consent of State (Article 252): Article 252 (1) provides that when Houses of Legislatures of two or more States have passed resolutions to the effect that it shall be desirable that any of the matters in the State List should be regulated in such States by Parliament by law, it shall be lawful for Parliament to pass an Act for regulating that matter.
   • The resolution must be passed by the Houses of at least two State Legislatures before Parliament gets empowered to legislate under Article 252(1).
   • The resolution may be passed by the simple majority of members present and voting in a House.
   • An Act so passed by Parliament shall have operation within the territories of only such States, the Legislatures of which have passed the resolution.
   • The Estate Duty Act, 1952, the Prize Competitions Act, 1955, the Urban Ceiling & Regulation) Act, 1976, and the Transplantation of Human organs Act, 1994, are some of the laws passed by Parliament under Article 252 (1).

4. Legislate with respect to giving effect to International agreement (Article 253): Parliament has power to make any law for the any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision that any International Conference, Association or other body”.
   • Article 253 exhibits that in implementing a treaty, agreement or convention with another country, the limitations imposed by Articles 245 and 246 lifted and the entire field of legislation, in that respect, is open to Union Parliament.

5. Parliament’s Power to Legislate Under Article 356: Article 356 provides that after the President has declared that the Government in a State cannot be carried on in accordance with the provision of the Constitution, he may by Proclamation further declare that the power of the Legislature of that State shall be exercisable by or under the authority of Parliament. Having been so authorised, Parliament may make laws with respect any or all the matters contained in the State List. 
   • Laws so made by Parliament would be operative in that State only. 
   • Such laws would continue in force until amended or repealed by appropriate Legislature, i.e., either by Parliament during the operation of Proclamation made under Article 356 or by the State Legislature after such Proclamation ceases to operate

Centre’s control over state legislation In addition to the power of Parliament to legislate directly with respect to matters in State List discussed under the foregoing Articles, the Constitution provides for control by the Centre over legislation enacted by the States. These provisions are discussed below-

• Article 31A provides immunity to laws made for acquisition of Zamindaries or the abolition of the Permanent Settlement. The immunity of this Article will not be available to a State Law unless it having been reserved for the consideration of the President, has received his assent. The object is to ensure uniformity in laws providing for agrarian reforms. 
• Article 200 empowers the Governor of the State to reserve any Bill passed by the Legislature of the State, for the consideration of the President. The Bill reserved for the consideration of the President would become law only if assented to by the President under Article 201.
• Article 288 (2) authorises 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. A Bill for the purpose, having been passed by the State Legislature is required to be reserved for the consideration of the President and would become law only if assented to by him.

Current challenges in Legislative Field :

1. Wealth Tax Issue: In Union of India vs H S Dhillon the question involved was whether Parliament had legislative competence to pass the 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 whether the matter fell in the State List or Concurrent List. Once it is found that the matter does not fall under the State List, Parliament will be competent to Legislate on it under its residuary power.
2. Dam safety Act: Dams in India are constructed and maintained by the states. Some dams are also maintained by autonomous bodies. The Centre came up with the Dam Safety act against the backdrop of over 5200 large dams in India.
   • The dam security is an issue of concern because of the lack of legal and institutional architecture. Unsafe dams are a hazard and they may break and also cause disasters. This is the major reason for the Dam Safety Act to be brought about.
   • Entry 17 of the State List provides for the States to make laws with regard to water supplies, drainage and embankments, water storage and water power subject to Entry 56, which is the Union List. According to Entry 56, the Parliament can make laws on regulation of inter-State rivers and valleys. However, it does not have power to regulate intra-State water, rivers and valleys.
   • Entire Act does not provide representation to the owner of the dam in the National Committee or the State Dam Organisation.

3. Use of Residuary power when other options were available during COVID :- Disaster management act has been enacted in exercise of its residuary powers of legislation under Article 248 read with Entry 97 of List I. Instead of resorting to the Epidemic Diseases Act which gives powers to the States, the Centre has applied the Disaster Management Act. Under Epidemic disease act, it is the State governments which have the prerogative to take appropriate measures for arresting the outbreak or spread of a contagious or infectious disease in their respective States.
4. Farm bill: The word “agriculture” finds mention 12 times in the three lists. In List I, it appears in entries 82, 86, 87, and 88; in List II under entries 14, 18, 30, 46, 47 and 48; and under entries 6 and 41 of List III.
   • It would be observed that under List I in entries 82, 86, 87 and 88 (where the word “agriculture” appear), parliament’s law-making power has been circumscribed by the words “other than” agriculture income (entry 82) or “exclusive of” agricultural land (entry 86), or “other than” agricultural land (entries 87 and 88). This means the Union List does not empower the parliament to enact any law on agriculture.
   • Parliament lacks legislative competence under Articles 245 and 246 to enact any law pertaining to “agriculture”, except through the gateway of entry 41 of List III (Concurrent List). This entry, however, relates only to agricultural land that is evacuee property, which is not the case in respect of three farm laws.

5. Electricity amendment bill 2020: 

• State Governments are concerned that certain provisions of the Bill encroach on their rights. Electricity is a subject under the Concurrent List (Item 38, List III (Concurrent) of Seventh Schedule), so the Union Government is well within its rights to enact a law. However, some concerns of the State Government are valid: 
  • Power to CERC to grant license for distribution of electricity in more than one State. SERCs have better understanding of ground conditions.
  • The Union Government will specify the minimum percentage of RPOs which was earlier decided by the SERCs.
  • The Bill makes changes in the composition of the committee for selection of Chairperson/members of the SERCs. The Committee will now have a nominee of the Union Government.