but by constitution itself. The nature of distribution of power varies according to the local and political background of each country.

Our Constitution makers followed the Canadian scheme opting for strong center. The Government of India Act, 1935 introduced a scheme of three fold distribution viz., Federal, Provincial and Concurrent.

The present Constitution, based on the principle of federalism with a strong and indestructible union, adopts the method followed by the Government of India Act, 1935 and has a scheme of two fold distribution of legislative powers- with respect to territory; and with respect to subject matter. With respect to subject matter, The Constitution adopts a three-fold distribution of legislative powers by placing them in any of the three lists, namely, Union List, State List and Concurrent List.

Scheme of Distribution of Legislative Powers: According to Article 1 of the Constitution of India³, India is a Union of States, which means a Federation of states. There is in a federation, a division of functions between the centre and the states.

Under the present Constitution, there is scheme of two fold distribution of legislative powers-

· With respect to territory; and

· With respect to subject matter.

With respect to subject matter, The Constitution adopts a three-fold distribution of legislative powers by placing them in any of the three lists, namely, Union List, State List and Concurrent List.

The constitutional provisions in India on the subject of distribution of legislative powers between the Union and the States are spread out over several articles (articles 245-254). However, the most important of those provisions – i.e., the basic one – is that contained in articles 245-246. From the point of view of the subject matter of legislation, it is article 246 which is important.⁴

Distribution of Legislative Powers With Respect To Territory

The legislative powers of Parliament and the state Legislatures are subject to the provisions of the Constitution viz. (1) the Schemes of the distribution of powers. (2) Fundamental Rights.⁵ (3) Other provisions of the constitution. Article 245 talks about distribution of legislative power between Union and State with respect to territory.

Article 245 (1) provides that “subject to the provisions of the constitution, Parliament may make laws for the whole or any part of the territory of India.”According to clause (2) 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.”

Theory of Territorial Nexus:

According to this Doctrine, The Legislature of a State may make laws for the whole or any part of the State. ⁷This means that State Laws would be void if it has extra-territorial operation i.e. it is applied to subjects or objects located outside the territory of the state.⁷ However, there, is one exception of the general rule. A State law of extra-territorial operation will be valid if there is sufficient nexus between the object and the State.⁸ It is done by the application of “doctrine of territorial nexus”.

This doctrine was first evolved by the Privy Council in Wallace v/s Income-tax Commissioner, Bombay⁹. In this case, a company which was registered in England was a partner in the 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 of tax valid. it said that derivation from British India of major part of its income for a year gave to 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.

The doctrine explains that it is not necessary that the object to which the law is applied should be physically located within the boundaries of the state making the law. It is enough if there is sufficient territorial nexus between the object and the state making the law.

The Supreme applied the doctrine in State of Bombay v. R. M. D. C.s¹⁰ In this case; the Bombay State levied a tax on lotteries and prize competitions. The tax was extended to a newspaper printed and published in Bangalore 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. For the application of the doctrine, there must be:

· Connection between the State and the subject matter of law which must be real and not 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.

· Parliamentary law having extra territorial Operation

Union Parliament may make laws having extra territorial operation and such a law would not be void on the ground of having extra territorial operation.

In A. H. Wadia vs income-tax Commissioner Bombay¹¹, In this case, the Gwalior Government had loaned at Gwalior large sums of money to a company in British India on the mortgage of debentures over property in British India. The interest on loan was payable at Gwalior. It was taxed under the Indian Income tax Act. Upholding the levy, the Supreme Court held :

"In the case of a sovereign Legislature question of extra-territoriality 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 recognized by foreign courts, or there may be practical difficulties in enforcing them but these are quest of policy with which the domestic tribunals are concerned."

Distribution of Legislative Powers With Respect To Subject Matter

In terms of Article 246 of the Indian constitution, there is a threefold distribution of legislative powers between Union and the State Governments. The VII^th Schedule of the constitution contains 3 lists.

1. The Union List gives exclusive legislative powers to union to legislate on 97 items of all India character including: defense, armed forces, arms and ammunition, atomic energy, foreign affairs, war and peace, citizenship, extradition, railways, shipping and navigation, airways, posts and telegraphs, telephones, wireless and broadcasting, currency, foreign trade, inter-state trade and commerce, banking, insurance, control of industries, regulation and development of mines, mineral and oil resources, elections, audit of Government accounts, constitution and organization of the Supreme Court, High Courts and union public service commission, income tax, custom duties and export duties, duties of excise, corporation tax, taxes on capital value of assets, estate duty, terminal taxes.¹²

2. The State list similarly gives exclusive legislative powers to the states on 66 items, now expanded to 65 items. Such subjects are essentially subjects of local interest such as maintaining law and order, police forces, healthcare, transport, land policies, electricity in state, village administration, etc. The state legislature has exclusive power to make laws on these subjects.

3. The concurrent list empowers both the union and the states to legislate on 47 items. The subjects in this list are such that both national government and the governments of the states are interested in them. Marriage and divorce, transfer of property other than agricultural land, education, contracts, bankruptcy and insolvency, trustees and trusts, civil procedure, contempt of court, adulteration of foodstuffs, drugs and poisons, economic and social planning, trade unions, labor welfare, electricity, newspapers, books and printing press, stamp duties etc.

Both the union and the state governments are competent to legislate on subjects in the concurrent list. In case of conflict between a central law and a state law on a subject in this list; normally, the union law should prevail. If however a state law reserved for the Presidents assent receives, his assent, it will prevail over the union law. The power to legislate on a matter not enumerated in any of the 3 lists is vested in the union Parliament by Art. 248.¹³ Thus in India residuary powers belong to the union government.

Residuary Power:

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 lays down that the 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. This reflects the leaning of the constitution makers towards a strong centre.

In Union of India v H.S. Dhillon¹⁴, 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.

Thus the distribution of legislative powers by the constitution is heavily tilted towards the centre.

Principles of Interpretation of Lists

The power of the Centre and states are divided. They cannot make laws outside their allotted subjects. The distribution of subject matter cannot be claimed scientifically perfect and there happens to be overlapping between the subjects enumerated in the three lists. In such cases, questions constantly arise whether a particular subject fails in the sphere of one or the other government and also with regard to constitutionality of the enactment. 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:

Article 246 provides the non-obstante clause. Article 246, not only talks about distribution of powers, but also explains the supremacy of powers. The opening words of Art. 246 (1) “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 Calcutta Gas Ltd. V. state of Bengal¹⁵, 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.¹⁶

Doctrine of Pith and substance:

Many a times, a law passed by a legislature with respect to a matter, within its legislative competence, encroaches upon another matter outside its competence. In such cases, question with regard to constitutionality of law is to be determined by applying the doctrine of pith and substance. The doctrine flows from the words ‘with respect to’ under Article 246.

Thus, 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 Profulla Kumar v. bank of Khulna¹⁷. 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. Balsara¹⁸, 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:

Many times, a legislature makes a law with respect to a matter outside its legislative competence by giving to the legislation a different color so as to bring it within its competence. In such cases the courts apply the doctrine of colorable legislation to determine the true nature, character, or the real pith and substance of the law. If after such investigation, it found that the pith and substance of the law pertains to a matter outside the legislative competence of the legislature enacting the law, then the law would be held invalid and the different color given to the law would not protect it.

In K.C.G. Narayan Dev v. State of Orissa¹⁹, 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.”

In State of Bihar v. Kameshwar Singh²⁰, 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. The court held that such a law was invalid and unconstitutional.

Doctrine of Incidental and Ancillary Powers:

The doctrine explains that when a Legislature is given plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power. Expression ‘incidental’ and 'ancillary' powers mean the powers which are required to be exercised for the proper and effective exercise of legislative powers expressly conferred.

Rule of Harmonious Construction:

It is the duty of the Courts to harmoniously construe different provisions of any Statute, Rule or Regulation, if possible, and to sustain the same rather than striking down the provision outright. The rule of harmonious construction is invoked in cases where there is found to be some ambiguity in provisions of a statute or where the provisions of a Statute seem to be inconsistent or repugnant with each other. In such a case, the rule requires the Court, interpreting the provisions of the Statute, to so interpret these provisions that all the provisions survive in harmony with each other. 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 prevail.”²¹

Repugnancy Between A Central Law And A State Law

In case of any repugnancy between law made by the union and state relating to subject matter of concurrent list, Article 254(1) says that “if any provision of law made by the legislature of the state is repugnant to any provision of a law made by parliament which is competent to enact or to any provision of the existing law with respect to one of the matters enumerated in the Concurrent List, then the law made by the parliament, whether passed before or after the law made by the legislature of such stage or, as the case may be, the existing law shall prevail and the law made by the legislature of the state shall, to the extent of the repugnancy be void.”

Article 254(1) only applies where there is inconsistency between a Central Law and a State Law relating to a subject mentioned in the Concurrent List.

Test of Repugnancy:

The Supreme Court in Deep Chand v. State of Uttar Pradesh²², laid down the following tests for determining the repugnancy between the Union Law and a State Law—(a) There may be inconsistency in the actual terms of the two Statutes, i.e., when one says "do" and the other says "do not".(b) When both the State and the Union Laws seek to exercise their powers over the same subject-matter.(c) Though, there may be no direct conflict, a State Law will be inoperative because the Union Law is intended to be a complete, exhaustive code.

In Baijnath v. State of Bihar²³, Parliament passed the Mines and Minerals (Regulation & Development) Act, 1957 under Entry 54 of the Union List, declaring to take under Union's control, the regulation of mines and the 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.

In M. Karunanidhi v. union of India²⁴, the court summarized the test of repugnancy. According to him a repugnancy would arise between the two statutes in the following situation: 1. It must be shown that there is clear and direct inconsistency between the two enactments (Central Act and State Act) which is irreconcilable, so that they cannot stand together or operate in the same field. 2. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes. 3. Where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collusion with each other, no repugnancy results. 4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.

Exception (Article 254(2)):

The above rule of repugnancy is however, subject to the exception provided in clause (2) of this Article.²⁵ But it would still be possible for the parliament under the provision of clause (2) to override such a law by subsequently making a law on the same matter. If it makes such a law the State Law would be void to the extent of repugnancy with the Union Law.

In Zaverbhai v. State of Bombay,²⁶ parliament enacted the Essential Supplies Act, 1946, for regulating production and distribution of essential commodities. A contravention of any provision of the above Act was punishable with imprisonment upto 3 years or fine or both. In 1947, considering the punishment inadequate, the Bombay Legislature passed an Act enhancing the punishment provided under the Central Law. The Bombay Act received the assent of the president and thus prevailed over the Central Law and become operative in Bombay. However, in 1950 parliament amended its Act of 1946 and enhanced the punishment. It was held that as both occupied the same field (enhanced punishment) the state law became void as being repugnant to the Central law.

Over and above this, the constitution visualizes five extraordinary situations, when the Union Parliament will be competent to legislate on matters in the state list.

Parliament’s Power To Legislate On State Subjects:

Though in normal times the distribution of powers must be strictly maintained and neither the State nor the Centre can encroach upon the sphere allotted to the other by the Constitution, yet in certain exceptional circumstances the above system of distribution is either suspended or the powers of the Union Parliament are extended over the subjects mentioned in the Slate List. The exceptional circumstances are,

(1) Power of Parliament to legislate in the national interests:

Parliament may make laws under Article 249(1) in matters of National Interest. According to Article 249, if the Rajya Sabha passes a resolution supported by, 2/3 of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated within State Law, then it shall be lawful for the Parliament to make laws for the whole or any part of the territory of India with respect to that matter so long as the resolution remains in force. These laws of Parliament will, however, cease to have effect on the expiration of the period of six months after resolution has ceased to operate.

Article 249 has been used few a times. The Supply and Prices of goods Act, 1952 and the Evacuee Interest (Separation Act), 1951 are the instances.

(2) During a Proclamation of Emergency:

According to Article 250 while the Proclamation of Emergency is in operation the Parliament shall have power to make laws for the whole or any part of the territory of India with respect to all matters in the State List. Such a law, however, shall cease to have effect on the expiration of six months after the proclamation of emergency has ceased to operate. The proclamation of emergency must be such as made under Article 352.²⁷

(3) Parliament power to legislate with the consent of the State:

According to Article 252, if the legislature of two or more states pass resolution to the effect that it is desirable to have a law passed by parliament on any matter in the state list, it shall be lawful for parliament to make laws regulating that matter. Any other state may adopt such a law by passing a resolution to that effect; such law can only be amended or repealed by the act of the parliament.

The Estate Duty, 1952, the Prize Competition Act, 1955, the urban land (ceiling & Regulation) Act, 1976 and the Transportation of Human Organs Act, 1994 are some laws passed by the parliament under Article 252(1).²⁸

(4) Parliament's power to legislate for giving effect to treaties and international agreements:

Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions. In other words, the normal distribution of powers will not stand in the way of Parliament to pass a law for giving effect to an international obligation even though such law relates to any of the subject in the State List. Art 253 enables the Government of India to implement all international obligations and commitments.²⁹

(5) In case of failure of constitutional machinery in a State:

Under Article 356, Parliament is empowered to make laws with respect to all matters in the State List when the Parliament declares that the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

Article 356 provides that after the President has declared that the Government in a State cannot be carried on in accordance with the provisions of the Constitution, he may by Proclamation further declare that the powers of the Legislature of that State shall be exercisable by or under the authority of Parliament. Having been so authorized Parliament may make laws with respect to 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.

CONCLUSION:

Thus from the scheme of distribution of legislative powers between the Union and the States it is quite evident that the framers have given more powers to the Union Parliament as against the States. The States are not vested with exclusive jurisdiction even over the subjects assigned to the States by the Constitution and thus it makes the states to some extent subordinate to the Centre. Indeed this is a clear departure from the strict application of federal principle followed in America and Australia.

There are historic reasons why the founding fathers made India an over centralized union. With its vast size and manifold diversities, to hold such a diverse polity under one-fold, it was deemed necessary that the central government should be armed with enough powers to check divisive tendencies. Yet, the states are not made subordinate units of the centre. In normal times, they have been granted enough autonomy to act as independent centers of authority.

The Sarkaria Commission has also recommended for a strong centre which is necessary to preserve the unity and integrity of the country. The Commission has favored the supremacy of Parliament under Article 246 and 254. Prof. D.N. Banerji was right in his observation that “India is a federation in peace times and a unitary state in time of emergency.”

REFRENCES:

1. Where, K.C. Federal Government, 157( 1963).

2. Dicey, A.V., The Law of the Constitution, 151 155(1994).

3. Article 1(1) states, India, that is Bharat, shall be a Union of States.

4. Article 246 reads as under: “246(1) notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 of the Seventh Schedule (in this Constitution, referred to as the “Union List”). (2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the Legislature of any State also, shall have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution, referred to as the “Concurrent List”). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution, referred to as the “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”

5. Part III of the Constitution.

6. Article 245(1).

7. Kochuni Vs. State of Madras, AIR 1960 SC 1080 .

8. Kavalappara kottarathil kochuni v. States of Madras & kerala, AIR 1960 SC 1080.

9. AIR 1948 SC 118

10. AIR 1957 SC 699

11. AIR 1949 FC 18

12. Schedule VII.

13. 248.Residuary powers of legislation.-(1)Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. (2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.

14. AIR 1972 SC 1061

15. AIR 1962 SC 1044

16. Prem Chand Jain V. R.K. Chabra, (1984) 2 SCC 302

17. AIR 1946 SC 375

18. AIR 1951 SC 318

19. AIR 1987 SC 2213

20. 1952 1 SCR 889

21. State of Bombay v. F.N. Balsara, AIR 1951 SC 318, 322

22. 1959 AIR 648, 1959 SCR Supl. (2) 8

23. 1970 AIR 1436, 1970 SCR (2) 100

24. AIR 1979 SC 898

25. According to clause (2) “if a State law with respect to any of the matters enumerated in the Concurrent list contains any provision repugnant to the provision of an earlier laws made by parliament, or an existing law with respect of that matter, then the state law if it has been reserved for the assent of the president and has received his assent, shall prevail notwithstanding such repugnancy.”

26. AIR 1954 SC 752

27. Article 352 talks about Proclamation of Emergency.

28. 252.Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State.- (1) 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 Articles 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 House or, where there are two Houses, by each of the Houses of the Legislature of that State.

29. 253.Legislation for giving effect to international agreements.- 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.

Received on 05.02.2016

Modified on 20.02.2016

Accepted on 06.03.2016

Research J. Humanities and Social Sciences. 7(1): January- March, 2016, 39-46

DOI: 10.5958/2321-5828.2016.00009.7