Legislation provides the framework for policy formation and arms the government with the powers to implement the policy. Our constitution provides that every state shall have at least one house, viz., the legislative assembly comprising 66 to 500 members chosen by direct election on the basis of adult suffrage from territorial constituencies. Any state can create a second house, viz. legislative council if it so desires.
This can be done by a resolution of the assembly passed by a special majority (i.e. a majority of total membership of the assembly not being less than two-thirds of the members actually present and voting) followed by an Act of Parliament. By the same process, the existing legislative council can be abolished also. At present, only Bihar, Maharashtra, Karnataka, U.P. and J&K have two houses.
The Constitution, based on the principle of federalism with a strong and indestructible union, has a scheme of distribution of legislative powers designed to blend the imperatives of diversity with the drive of a common national endeavour.
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 Union List contains subjects of national relevance such as Defence, Atomic Energy, Foreign Affairs, War and Peace, Citizenship, Railways, Income-tax, Excise etc., over which the Parliament has an exclusive authority to formulate laws.
The State List includes subjects of importance to the States such as Public order, Police, Local Government, Public health, Agriculture etc., over which the State legislature has an exclusive authority.
The Concurrent List containing subjects of mutual relevance over which both Parliament and State legislatures can legislate but in case of conflict the Union law will prevail.
These include Criminal law and procedure, Family laws, Inter-State trade and Commerce and Communication, Electricity, Newspapers and Books, Education, Stamp duties and so on. Residual powers, like in Canada, but unlike the USA, Australia and Switzerland, are vested in the Parliament.
However, the Union government can legislate on any subject included in the State list, under some specific circumstances:
(i) If the Rajya Sabha recommends by a two-third majority that such legislation is in national interest;
(ii) If two or more States mutually agree that such a legislation should be made for them;
(iii) In order to implement treaties or international agreements or connections; and
(iv) During the proclamation of emergency made by the President of India, on account of internal disturbance or external aggression, the Parliament acquires the authority to make laws on all the subjects mentioned in the State List. However, all such laws made by the Parliament become ineffective six months after the Proclamation of Emergency ceases to operate.
(v) In case of emergency due to the failure of the constitutional machinery in State, the President of India can authorise Parliament to exercise the powers of the State Legislature. All such laws also cease to operate within six months after the Proclamation of Emergency comes to an end.
Article 200 of the Constitution empowers the Governor to reserve a bill passed by the State legislature for consideration by the President of India. This provision has led to a considerable degree of resentment among the State governments, especially due to inordinate delays in communicating the Centre’s decision to the State on the bills so reserved.
Article 245 and 246 demarcate the legislative domain, subject to the controlling principle of the supremacy of the Union, which is the basis of the entire system.
Distribution of legislative powers described in the VII Schedule of Indian Constitution
(a) Union List:
Only Union Parliament is empowered to make laws on the subjects given in the Union List. 98 subjects (after 42nd Constitution Amendment Act, 1976) (few important subjects listed below) Defense, Foreign Relations, Post and Telegraph, International War and Peace, International Trade, Commerce, Citizenship, Coinage, Railway, Reserve Bank, International Debt, Atomic Energy, etc..
(b) State List:
Only State Legislature is empowered to make laws on the subjects given in the State List.62 subjects (after 42nd Constitutional Amendment Act, 1976) (few important subjects listed below) Public Health, Roads, Agriculture, Irrigation, Prisons, Local Administration, Distribution of Water, Police, etc..
Exception: In the case of Emergency, Union Parliament automatically acquires the power of legislation on the subjects given in the State List
(c) Concurrent List:
Both, Union Parliament as well as State Legislatures, have the power of legislation on subjects given in the Concurrent List. 52 subjects (After the 42nd Constitutional Amendment Act, 1942) (few important subjects listed below)
Marriage, Divorce, News Papers, Trade Unions, Books, Press, Eatable Items, etc
In case of disagreement, the legislation passed by Union Parliament shall prevail over the law passed by State Legislatures.
Residuary Powers: Article 248, Union Parliament shall make laws over the subjects not included in the above given lists. The Indian Constitution gives residuary powers not to the states, but to the Central Government.
Union Parliament’s Power to legislate on the Subjects given in the State List
(i) On the basis of the resolution passed by the Council of State -Article 249, 2/3 majority, Issues of National Interest
(ii) On the request of two or more state legislatures -Article 252, Law passed by Union Parliament shall be applicable only to the states which demanded such legislation.
(iii) Article 253: For the enforcement of International Treaties and Agreements.
(iv) Article 304: Prior approval of President of India on certain Bills.
(v) Article 352: Supremacy of Union Parliament during National Emergency,
(vi)Article 356: During Constitutional Emergency. Supremacy of Union Parliament over Concurrent List
(vii) Article 248: Residuary Powers are under the control of Union Parliament.
(viii) Article 169: Power of Union Parliament to abolish State Legislative Council.
The Concurrent List gives power to two legislatures, Union as well as State, to legislate on the same subject. In case of conflict or inconsistency, the rule of repugnancy, as contained in Article 254 comes into play to uphold the principle of Union Power. Under this rule, if there is any discrepancy between the State and the Centre over a subject in the Concurrent List, the Union law takes precedence over the state’s law.
Problems and prospects of centre state legislative relations
The problems that have attracted attention in the field of Union-State relations have less to do with the need to re-evaluate centre – state relations (state perspective)
(i) More powers to the state
(ii) Residuary powers to the state
(iii) Reform in the office of Governor
(iv) Not to hold the Bills passed by the State Legislatures
(v) Delete Articles 356 & 249
(vi) Equal representation of states in council of states (Rajya Sabha)
(vii) Financial Autonomy to States
(viii) Reforms in All India Services
(ix) Participation of states in planning
Structure or the rationale of the Concurrent List than with the manner in which the Union has exercised its powers the Union-State should be studied in the context of the political regime that prevailed in the country over the last half century.
The first four decades of the Republic was characterised by single party dominance at the centre and the States and it was more of centralisation in the relations.
Control over the ordinance-making power of the governor
Under the Constitution, the Governor of a State is authorised to issue ordinances, when the State Legislature is not in session. Though, it is expected that the Governor will issue such ordinances only with the approval of the State Council of Ministers, but under certain circumstances, he can issue these ordinances only with the prior approval of the President of India.
(1) If the ordinance deals with the subject regarding which laws can be introduced in the state legislative only with the prior approval of the President.
(2) If a bill has been reserved for the opinion of the President, an ordinance on the same subject can be issued only with prior approval of the President.
(3) Ordinance on a subject on which a law passed by the state legislature is not valid without the approval of the President.
A major anomaly according to K.N. Kabra, is that the term ‘concurrent’ is a misnomer if one takes into account the overriding powers of the Union, particularly in view of the concentration of fiscal and economic powers at the Union level and States’ virtual dependence on the Union in discharging only such functions which are left-over by and are permitted and tolerated by the latter.
This makes for excessive and dysfunctional centralization, which is not conducive to socio-economic change and materialization of democratic aspirations, which can be articulated, in our kind of uneven society in a decentralized framework.
He says the list of subjects over which lately the Panchayati Raj institutions are enabled to have jurisdiction cannot become operationally relevant unless the States are adequately empowered to make their choices in a relatively autonomous manner with matching relative financial autonomy and are in a position to make resources available to the PRIs in a coordinated manner.
It is clear that though the Centre and the Sates have been assigned independent legislative spheres the Centre reserves the right to interfere in the sphere reserved for the Sates.
The data compiled by the Sarkaria Commission revealed that in some cases the Centre took as many as 6-12 years in assenting or withholding its assent to them.
The Commission therefore recommended that as a matter of salutary convention the President should dispose off a reference within a period of four month from the date on which the reference is received by the Union government. If any clarification is required from the concerned State government, this should be done within two months. Moreover, seeking piecemeal clarification time and again should be avoided.
But towards the end of the fourth decade, the one party dominance ended paving way for the coalition Governments at the centre. For survival, the Government at the Centre is using co-operative federalism to fulfil the wishes of the State Governments.
Sarkaria commission recommendations on centre-state legislative relations
Whenever federalism operates, the functioning of two levels of government inevitably generates problems and tension, which need to be attended to from time to time.
The federal problems experienced under the constitution were first examined by the Central Administrative Reforms Commission (1966-70). The ARC set up a study team under M.C. Setalvad to undertake an in-depth examination of Centre-State problems in India.
The Report of the Setalvad study team on Centre-State relations (1967) is a most penetrating analysis of the dynamics of a federal polity, and its observations have their relevance and freshness even today. This is not to deny the importance of the Report of the Administrative Reforms Commission on Centre-State Relations.
The Sarkaria Commission on Centre-State Relations was set up thirty-three years after the commencement of the constitution. Much water has flowed under the Ganges since 1950 and changes of far-reaching nature have occurred during this period covering a space of full one generation. The Sarkaria Commission Report on Centre-State relations is the most comprehensive review of the Indian parliamentary federal system since the adoption of the Constitution in 1950.
Set up in 1983, the Sarkaria Commission took five years to complete its deliberations and finalise its report. The report was submitted in 1988 but action on it has been slow, even insignificant and tardy. It would be more correct to say that the report is gathering dust.
Given its wide terms of reference to examine and review the working of the existing arrangements between the Union and States in regard to powers, functions, and responsibilities in all spheres’, the Commission has surpassed in its broad sweep the earlier reviews done by the Administrative Reforms Commission in 1970. If, ‘we closely scrutinise its recommendations, the Commission makes no major constitutional restructuring.
However, it has preferred the continuation of the existing constitutional arrangements though it has greatly stressed the need for a reorientation on the part of the Central and State functionaries in working the federal system.
The Commission’s recommended remedy for the present malaise in Centre-State relations is a significant expansion of the areas and practice of consultation between the two levels of government and an evolution of sound conventions of institutional and political behaviour on the part of political rulers. For instance, before issuing direction to a state under Article 256 and 257, the Union should explore the possibilities of settling points of conflict by all other available means. A direction under these provisions and application of sanction under Article 356 in the event of its non-compliance is only a measure of last resort.