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CONCURRENT POWERS OF LEGISLATION UNDER LIST III OF THE CONSTITUTION BY: VAISHNAVI PRASHANT YADAV
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“CONCURRENT POWERS OF LEGISLATION
UNDER LIST III OF THE CONSTITUTION”
AUTHORED
BY: VAISHNAVI PRASHANT YADAV
CLASS: L.L.M
1st YEAR, SEMESTER: 2 ROLL NO: 47
Progressive
Education Society’s Modern Law College, Pune
(Law Making
In Indian Polity)
Savitribai
Phule Pune Universtiy, Pune 41007 2022-23
INTRODUCTION
1 Scope of the
Study
The term ‘legislation’
has been derived from the Latin words Legis
meaning ‘law’ and Laum meaning to
‘make’. Therefore, etymologically, legislation means to make the law. Legislation is considered one of the
most important sources of law. It is
very crucial in a democratic society,
especially where there is a federal type of government or a very highly complicated form of government.
Legislation when used as a source of law is denoted
to be a law made by defined persons or bodies and not by any type of customary or conventional laws or judicial
decisions, it is rather termed as an enacted law. There is a difference
of opinion regarding the importance of legislation as a source of law.
Analytical jurists emphasize the importance of legislation on the other
hand historical jurists
attach no importance to legislation. Legislative
lists are of three types: State List, Union List, and Concurrent List, as mentioned under of the Indian constitution.
The main purpose for the distribution of powers is to create
federalism; the object
for which a federal state is formed
involves a division of authority between the national government and the
separate states, therefore there is a
division of power at the central and at the state level. A federal constitution tries to establish a dual
polity with the union at the centre and the states at the peripheries and thereby each of them is granted
sovereign powers to exercise in their fields
assigned to them by the Constitution. This study deals with an important aspect of Indian
federalism, namely, the concurrent powers of legislation under the Constitution. The subject of federalism in any country covers a vast area,
embracing legislative, executive and
judicial powers, as distributed between the federal union and its units. Distribution
of legislative power is only one
branch of the subject; and in that branch, the topic of concurrent legislative power is only a sub-branch (so to
say).
2
Importance of the subject
(A)
Nevertheless, the subject has its own theoretical and practical importance. Theoretically, the subject carries an appeal, because
(i)
it represents the vesting of power in two parallel legislatures, operating
at the same time and
(ii)
also because such a scheme is to be found in most federations of the world, though the details vary.
(B)
The practical importance of the Concurrent list, (when
adopted in any federation) lies in the
fact, that the vesting of the same type of power in two parallel agencies
carries, within it, the seeds of a
possible conflict. This implies, that the Constitution (of the country
concerned) should provide, in
advance, a mechanism for resolving such conflict. In India, article 254 of the Constitution
primarily seeks to incorporate such
a mechanism.
The point of concurrent powers is that there
are many actions necessary to governmental operation
at both the state and federal level. These include such services as maintenance
and operation of the government itself, maintaining public facilities and roads, and maintaining fire departments and law enforcement. These things cost money, and this is the reason
for taxation. While
some people feel it is unfair or unconstitutional to essentially be taxed twice, concurrent powers afforded by the Constitution
enables each governmental body providing such services to collect taxes from the citizens within the jurisdiction. Another
way of providing services to a
large and growing nation, when taxes collected are not enough, is for the
government to borrow money.
Borrowing money affects
taxpaying citizens, as this money must eventually be repaid to the
lenders, and this is often accomplished by charging higher taxes. Borrowing money is
another power afforded by concurrent powers.
DISTRIBUTION OF LEGISLATIVE POWERS UNDER THE INDIAN CONSTITUTION :
2.1
Legislative powers in the federation The essence of federalism lies in
the sharing of legal sovereignty by
the Union and the federating units. And, in general, the most precise way of demarcating the respective areas of the
federation and federating units is to demarcate their respective areas in regard to legislation. There are many
reasons for this; but the two most important, are the
following:
(a)
Demarcation of legislative power helps in defining
boundaries the of the executive power also, as usually the former controls the latter.
(b)
It is easier to verbally formulate, with reasonable
precision, the various topics on which the legislative power can be exercised, as the legal system of a country
would usually have had occasion to deal with the topic in some
form or other – say, by or through proposals for legislation, actual legislation, academic or (occasionally), in
political debates or academic discussions. In other words,
the topics would (in many cases) have a ring of familiarity for the practising or academic lawyer.
The scheme
of distribution in India
(articles 245-246)
(a)
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. Article 245 provides,
inter alia, that (subject to the provisions of the Constitution).
(i)
Parliament may
make laws for the whole or any part of the territory of India and
(ii) the legislature of a State may make laws for the whole or any
part of the State.
(b)
Thus, article 245 sets out the limits of the
legislative powers of the Union and the States
from the geographical (or territorial) angle. From the point of view of
the subject matter of legislation, it is article 246 which is important.
(1) If any
provision of a law made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing
law with respect
to one of the matters
enumerated in the Concurrent List,
then, subject to the provisions of clause (2), the law made by Parliament, whether
passed before or after the law made by the Legislature of such State, 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.
(2) Where a law
made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains
any provision is repugnant to the provisions of an earlier law made by Parliament or an existing law with respect
to that matter, then, the law so made
by the Legislature of such State shall, if it has been reserved for the
consideration of the President and
has received his assent, prevail in the State: Provided that nothing in this
clause shall prevent Parliament
from enacting at any time any law with respect to the same matter, including a law adding to, amending,
varying or repealing the law so made by the Legislature of the State.”
Judicial decisions (repugnancy)
Repugnancy has been explained in
many judicial decisions. Important amongst these, are the following:
(i)
Zaverbhai Vs. State of Bombay, AIR 1954 SC 752 (Implied repeal – Essential
Supplies Act)
(ii)
Tika Ramji Vs. State of UP, (1956) SCR 393; AIR 1956 SC 676. (U.P. Sugar Cane Act, etc.).
(iii)
Ahmedabad Mill Owners’ Association Vs. I.G., AIR 1967 SC 1091.
(iv)
Karunanidhi Vs. Union of India,
AIR 1979 SC 898; (1979) Cri LJ 773: Karunanidhi Vs. Union of India,
(1979) Cri LJ 1876 (Mad) (FB).
(v)
Raghubir Vs. State of Haryana, AIR 1981 SC 2037. (vi) Western Coalfields Vs. Special Area Development, AIR 1982 SC 697.
Union and State legislation
(a)
The co-existence of Central and State laws in a
particular area can give rise to litigation.
Such problems arise, either because the Union or a State may illegally
encroach upon the province of the
other (parallel) legislature, or they may arise because (though there is no encroachment, as such, on each other’s
sphere), the two laws clash with each other.
(b)
The two situations are, strictly speaking,
different from each other; and they must be judged
by two different tests. Where
the subject-matter of the legislation in question falls within either
the Union List or the State list only, then the question is to be
decided with reference to legislative
competence. One of the two laws must necessarily be void, because (leaving
aside matters in the Concurrent
List), the Indian Constitution confers exclusive jurisdiction upon Parliament for matters in the Union List
and upon a State Legislature for matters in the State List.[2] The correct
doctrine applicable in such cases is that of ultra
vires. Since one of the two laws must be void, the question of inconsistency
between the two has no relevance. Only one law will survive; and the
other law will not survive, because
ex hypothesi, it has no
life.
(c)
In contrast, where the legislation passed by the Union
and the State is on a subject matter included
in the Concurrent List, then the matter cannot be determined by applying the
test of ultra vires because the hypothesis is, that both the laws are (apart from repugnancy), constitutionally valid. In such a case, the test to be adopted
will be that of repugnancy, under article 254(2), of the Constitution.
(d)
It follows, that it is only where the legislation is
on a matter in the Concurrent List, that it would be relevant
to apply the test of repugnancy. Notwithstanding the contrary view expressed in some quarters, this appears to be the
correct position. Such a view was expressed by Dr. D. Basu in his Commentary on the Constitution of India (1950)
1st edition, page 564, and it is this view, that seems to have been upheld
(impliedly) by the Supreme Court in the under
- mentioned decisions:
(i) Deep Chand Vs.
State of U.
P.,
AIR 1959 SC 648; (1959)
Suppl. 2 SCR 8.
(ii) Premnath Vs. State of
J&K, AIR 1959 SC 749 (1959) Suppl 2 SCR 270.
(iii) Ukha Vs. State of Maharashtra, AIR 1963 SC 1531, paragraph
20.
(iv) Bar Council, U.P. Vs. State of U.P., AIR 1973 SC 231, 238; (1973) 1 SCC 261. Barani Vs. Henry,
AIR 1983 SC 150, paragraph
15.
(v) Hoechst Pharmaceuticals Vs. State of Bihar, AIR 1983 SC 1020, paragraphs 68, 69 and 76 (Full
decisoon of the position).
(vi)
Pochanna Lingappa Vs. State of Maharashtra, AIR 1985 SC 389, paragraph 26; (1985) 1 SCC 425.
(vii)
Vijay Kumar Sharma Vs. State of Karnataka, AIR 1990 SC
2072 [For decisions in section 107,
Government of India Act, 1935 see Lakhi Narayan Das vs. Province of Bihar, AIR
1950 FC 59.
Article 255 Notice
should also be taken of article 255 of the Constitution, quoted below: “255.
Requirements as to recommendations and previous sanctions to be regarded
as matters of procedure only
No Act of Parliament or of the Legislature of a State, and no provision
in any such Act, shall be invalid by
reason only that some recommendation or previous sanction required by this Constitution was not given, if
assent to that Act was given –
(a) where the recommendation was that of the Governor, either by the
Governor or by the President; (b)
where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President;
(c) where the recommendation or previous sanction required was that of
the President, by the President. “
[See Jawaharmal Vs. State of Rajasthan, AIR 1966 SC 764, 769, 790: (1966) 1 SCR 890].
3 INTERPRETATION OF LEGISLATIVE ENTRIES :
3.1 Determination of nature of legislation
It is obvious,
that where either the Union or the State legislature proposes to enact a law,
it must, in the first place, decide
whether it has legislative competence with reference to the subject matter of the law. For this
purpose, the draftsman will necessarily have to examine whether the subject matter falls within the relevant
list, that is to say:
(a)
the Union List or the Concurrent list (for the draftsman in the Union) or
(b)
the State List (for the draftsman in the State).
3.2 Doctrine of pith and substance
For this purpose, the test of “pith and substance” is usually applied.
In no field of constitutional law is the comparative approach more useful, than in regard to
the doctrine of “pith and substance”.
This is a doctrine which has come to be accepted in India and derives its
genesis from the approach adopted by the courts (including the Privy
Council), in dealing with controversies
arising in other federations. Briefly stated, what the doctrine means, is this. Where the question
arises of determining whether a particular law relates to a particular subject (mentioned
in one List or another), the court looks to the substance of the matter. Thus,
if the substance falls within Union List, then the incidental encroachment by the law on the State List does not make it
invalid.
3.3
Decisions
The principle
of “pith and substance” had come to be established by the Privy Council, when it determined appeals
from Canada or Australia involving
the question of legislative competence of the federation or the States
in those countries. In India, the doctrine of pith and substance came to be adopted in the pre-independence period,
under the Government of India Act,
1935. The classical example is the Privy Council decision in Prafulla Vs. Bank
of Commerce, AIR 1946 PC 60, holding
that a State law, dealing with money lending (a State subject), is not invalid, merely
because it incidentally affects promissory notes
(See now Union List,
entry 46). The doctrine is sometimes expressed in terms of ascertaining the
“nature and true character of legislation”; and it is also emphasized, that the name given by the Legislature (to the legislation) in the short title, is immaterial. Again,
for applying the “pith and substance” doctrine, regard is to be had (i) to the enactment
as a whole, (ii) to its main objects, and (iii) to the scope
and effect of its provisions
The under
mentioned decisions illustrate
the above proposition:-
(i)
State of Rajasthan
Vs. G. Chawla, AIR 1959 SC
544, 547 (Ancillary matters)
(ii)
Southern Pharmaceuticals Vs. State of Kerala, AIR 1981 1865, paragraph
15 (incidental encroachment, to be disregarded).
(iii)
(iii) Prem Vs. Chhabra, (1984) 2 SCC 302,
paragraph 8.
4.
RATIONALE OF THE SCHEME
OF DISTRIBUTION OF POWERS :
4.1
Four salient
features Four salient
features mark the scheme of distribution of legislative powers
under the Indian Constitution.
(1)
There is a three-fold distribution of legislative
power-represented by three lists – Union, State and Concurrent.
(2) The
supremacy of federal laws is maintained in two situations (which are the
principal situations of practical importance):
(a)
in determining the extent of legislative power of the
federation and the units, (if a doubt arises
as to the list in which a particular subject of legislation falls, the non
obstante clause in article 246 achieves federal supremacy);
(b)
in determining the question whether a federal law will
prevail or a State law will prevail; (if both have an impact on a particular human activity, and are in conflict with each other,
then the federal law prevails).
(3) If a
particular topic does not find an express mention in the three legislative
lists, then the power to legislate thereon
(i.e., the residuary law-making power) is vested
in the federation.
(4) In certain
situations (even apart from emergencies), the federation may come to be vested with legislative power, even on state subjects.
4.2 Genesis in the 1935 Act:
Joint Select Committee Report
(a)
At this stage, it seems necessary to mention, that the
entire scheme of distribution of legislative
powers under the present Indian Constitution is based on the Government of
India Act 1935.
(b)
Further, so far as the Concurrent List is concerned,
it is desirable to quote what the Joint Committee
on Indian Constitutional Reforms said, with reference to the corresponding
list, as contemplated in the proposals
that led to the Act of 1935 :-
[Joint Committee on Indian Constitutional Reforms (1934) pages 30-31, para 51, quoted in Mr. Justice E. S. Venkataramiah and P. M. Bakshi, Indian Federalism(1992) page 85 para 7.13].
“Experience has shown, both in India and elsewhere, that there are certain matters
which cannot be allocated exclusively either to a
central or to a Provincial legislature and for which, though it is often desirable that provincial
legislation should make provision, it is equally necessary that the central legislature should also
have a legislative jurisdiction enable it, in somes cases to secure uniformity in the main
principles of law throughout the country, in others, to guide and encourage provincial effort and in
others, again, to provide remedies for mischief arising in the provincial sphere, but extending, or liable to extend
beyond the boundaries of a single province”
4.3 Encouraging local effort
The Joint Select Committee also stressed the need to “guide and encourage
provincial effort”. This consideration forms the background and rationale for several legislative measures enacted in India, wherein the Union has laid
down the policy and guidelines, – thereby promoting further efforts by the
States. The following can be
regarded as examples of such approach.
(a)
The Probation of Offenders Act, 1958.
(b)
The Family Courts Act,
1984.
(c)
The Consumer Protection Act,
1986.
(d)
The Environment
(Protection) Act, 1986.
4.5 Problems
extending beyond the State
It argues
against an overvaluation of the ‘problem of the State’ in political debate and
social theory. A number of conceptual
tools are suggested for the analysis of the many and varied alliances between political and other
authorities that seek to govern economic activity, social life and individual conduct. Modern
political rationalities and governmental technologies are shown to be intrinsically linked to
developments in knowledge and to the powers of expertise. The characteristics of liberal problematics of government are investigated, and it is argued that they
are dependent upon technologies for ‘governing at a distance’, seeking to
create locales, entities and persons able to operate
a regulated autonomy.
The analysis is exemplified through
an investigation of welfarism as a mode of ‘social’ government. As
post-war ‘welfare states’ in the West and centralised ‘party
states’ in the East have come under challenge, contemporary political debate has become suffused
by images of the state as malign and potentially monstrous. Only ‘beyond the State’, it appears, can a life
worthy of free human individuals begin.
Criticising the excesses, inefficiencies and injustices of the extended State,
alternatives have been posed in terms of the construction of a ‘free market’
and a ‘civil society’ in which
a plurality of groups, organizations
and individuals interact in liberty. This concern has been paralleled in social theory, where
analysts have challenged liberal pluralist and economic determinist theories of power, and argued that the specific form
of the state is of crucial importance,
not only in understanding geo-political relations, but also in comprehending modern
forms of exercise of power over national territories.2
But the political vocabulary structured by oppositions between state and
civil society, public and private,
government and market,
coercion and consent,
sovereignty and autonomy
and the like, does not adequately characterise the diverse ways in
which rule is exercised in advanced liberal democracies. Political power is exercised today
through a profusion
of shifting alliances between diverse authorities in projects to govern a multitude
of facets of economic activity, social life and individual conduct. Power is not so much a matter of imposing constraints upon citizens as of
‘making up’ citizens capable of bearing a kind of regulated freedom. Personal autonomy is not the antithesis of
political power, but a key term in its exercise, the more so because
most individuals are not merely
the subjects of power but play a part in its operations.
Finally, as envisaged by the Joint
Select Committee[5] on Indian Constitutional reforms, some entries in the Concurrent List take into
account the fact, that (in future), a need may arise to enact legislation providing
for mischief’s arising in the provincial sphere, which extend,
(or are likely) to extend, beyond the boundaries of a single province.
Incidentally, the wisdom of including “Electricity” in the Concurrent List (entry 38) is amply demonstrated by the successive statutory measures enacted on
the subject in India after independence beginning with the Electricity (Supply) Act, 1948, supplemented or
modified by a mass of recent legislation in the subject.
5.
POST CONSTITUTION AMENDMENTS :
5.1 Significance of the amendments
After the commencement of the Constitution, several amendments of the Constitution, relevant to the
Concurrent List, have been passed. In this short Chapter, it is proposed to
discuss a few of them, in order to
explore how far these amendments bring out the function and importance of the Concurrent List.
The provision for amendment of the
Indian Constitution carries
multifarious significance as listed below:
·
Adaptability
in Governance: The Constitution lays down fundamental principles of governance. A diverse and constantly evolving
country like India cannot be
governed by a set of fixed rules. The amendment of the constitution enables
to bring changes in governance as per needs and
situations.
·
Accommodating
New Rights: With rising awareness, various sections of
society are becoming assertive of their rights. For example, of late, the LGBT community has been demanding their rights.
The amendment enables providing for such rights.
·
Evolution of New
Rights: New interpretations of the Constitution led to
the evolution
of new rights. For
example, a new interpretation
of the Right to Life and
Personal Liberty gave rise to the Right to Privacy. The amendment enables accommodating such rights.
·
Addressing
Emerging Issues: It enables addressing new emerging trends like bans, vigilantism,
etc.
·
Bringing
Social Reform: It enables the eradication of outdated socio-cultural
practices to usher in
modernity.
Criticism of the Amendment Procedure
The procedure
for amendment of the Indian constitution has been criticized
on the following grounds:
·
There
is no provision for a special body for amending
the Constitution such as the Constitutional Convention or Constitutional Assembly. The constituent power is vested in the Legislative Body
itself i.e. the Parliament and the State Legislatures (in a few cases).
·
There
is no provision for a special process
for amending the Constitution.
Except for the requirement of Special Majority,
the process of amendment is similar to that of a legislative process.
·
The power
to initiate an amendment lies only with the Parliament. The states have no such powers (except for passing a
resolution to create or abolish state legislative councils).
·
A major part of the Constitution can be amended by the Parliament alone. Only in a few cases, the consent of the state legislatures is required, and that too, only half of them.
·
Lack of provision for holding a joint sitting
of both Houses of Parliament for a constitutional amendment bill, sometimes, leads
to the situation of a deadlock.
·
The provisions relating to the amendment
procedure, being too sketchy, leave
a wide scope for creating disputes
and taking the matters
to the judiciary.
5.2
Transfer from State
List It will be seen from the above Chart, [6] that on a fairly large
number of occasions in the past, it
became necessary to amend the Constitution, by transferring, to the Concurrent
List, certain matters from the State List.
Obviously, it was thought that the matters
in question were not
being adequately dealt with (or could not be adequately dealt with) by the
Sates [Entries 11A, 13A, 17B, 25 and 33A].
5.3
New Entries
(a)
Changed conditions – political social or economic –
may necessitate the insertion of new entries
in a legislative list. When such a situation arises, the concrete question that
may fall to be considered is,
whether the addition should be made in the Union List or in the State List or in the Concurrent List.
(b)
Precisely such a question seems to have arisen, after
it became apparent, that the problem of
population explosion might need specific legislative sanction, for enacting
into law the policy to be adopted on the subject.
The relevant amendment
was made in 1976, by introducing, in the Concurrent List, a new entry 20A
– relating to “population” and family planning. Presumably, it was considered that instead of the Union undertaking the exclusive responsibility of promoting legislation on
the subject, it would be better to give the power to the Centre as well as to the States. As a result, entry 20A was
inserted in the Concurrent list. There
seems also to have been a thinking, that though the subject was of national
importance, yet there
might be occasions for State-wise variations in legislative policy.
(c)
In any case, the insertion of any new entry in a
legislative list -whether Concurrent List or
any other list – illustrates the validity of the proposition, that no
draftsman can visualise all possible
future contingencies and fully encapsulate them in a supposedly exhaustive
linguistic formula.
Conclusion
Legislation is therefore regarded as the most
important source of law in the prevalent times. Hence it is considered to be the codified form of law which is commanded by the sovereign to the common
masses, and it becomes a predicament situation to regard legislation as the authoritative source of law.
Legislation is one of the foremost and most important
source of law in today’s world. Most countries
in today’s world regard legislation as an essential source of law and follow
this system of lawmaking. Although
some lacunae and loopholes are there which exists in the present form but then too the difficulties such faced are relatively less than that faced
from the other sources of law viz. custom and precedent as legislation as a source of law tries to bring uniformity by avoiding the ambiguity.
Article Information
CONCURRENT POWERS OF LEGISLATION UNDER LIST III OF THE CONSTITUTION BY: VAISHNAVI PRASHANT YADAV
Authors: VAISHNAVI PRASHANT YADAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
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International Journal for Legal Research and Analysis
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