Essay on the Legislative Relations between the Unionand the States of India

A common feature of many federal Constitutions which follow the American federal model is to enumerate a list of legislative powers and assign them to the union and leave the residue to the States.

The Canadian Constitution, on the other hand, follows a different system according to which there are two lists of legislative powers, one for the Centre and the other for the Provinces and the residue is vested in the Centre.

The Constitution of India follows a system similar to the Canadian, but with more elaborate lists which include an additional one called the Concurrent List. In drawing up an elaborate Concurrent List, the framers followed the Australian pattern of federal division of powers.

Under the Australian Constitution concurrent subjects are 39. Under the Draft Constitution, they were 37. (In the final form of the Constitution the number increased to 47.) The scheme is almost the same as in the Government of India Act of 1935. The three lists are embodied in the Seventh Schedule of the Constitution.

The Union List which consists of ninety-nine items is the longest of the three. It includes items such as defense, armed forces, arms and ammunition, atomic energy, foreign affairs, diplomatic representation, United Nations, treaties, war and peace, citizenship, extradition, railways, shipping and navigation, airways, posts and telegraphs, telephones, wireless and broadcasting, currency, coinage and legal tender, foreign loans, the Reserve Bank of India, foreign trade, inter-State trade and commerce, incorporation.

It regulation, banking, bills of exchange, insurance, stock exchanges, patents, establishment of standards in weights and measures, control of industries, regulation, and development of mines, minerals and oil-resources, maintenance of national museums, libraries and such other institutions, historical monuments, the Survey of India, Census, Union Public Services, elections, Parliamentary privileges, audit of Government accounts, Constitution and organisation of the Supreme Court, High Courts and the Union Public Service Commission, income-tax, customs duties and export duties, duties of excise, corporation tax, taxes on capital value of assets, estate duty, terminal taxes, taxes on the sale or purchase of newspapers, etc.

Which are of common interest to the Union and with respect to which uniformity of legislation throughout the Union is essential? As such, Parliament has exclusive powers of legislation with regard to the items mentioned in this List.

The State List consists of sixty-one items. The selection of these items is made on the basis of local interest and it envisages the possibility of diversity of treatment with respect to different items in the different States of the Union.

The scope of the application of the federal principle in India is to be determined by the scope of State legislation arising out of items included in this List.

Some of the more important of these items are as follows: public order, police, administration of the justice, prisons and reformatories, local government, public health and sanitation, intoxicating liquors, burials and burial grounds, libraries and museums controlled by the State, intra-State communications, agriculture, animal husbandry, water-supplies and irrigation, land rights, fisheries, trade and commerce within the State, gas and gas-works, markets and fairs, money-lending, theaters, betting and gambling, local elections, legislative privileges, salaries and allowances of all State officers, State public services and the State Public Service Commission, treasure trove, land revenue, taxes on agricultural income, taxes on lands and buildings, estate duty, and succession duty on agricultural land, duties on excise on alcoholic liquors, opium, etc. produced within the State, taxes on the entry of goods into a local area, taxes on electricity (its sale and consumption), taxes on the sale and purchase of goods other than newspapers, taxes on goods and passengers carried by road or inland waterways, taxes on vehicles, taxes on animals and boats, tolls, taxes on professions, trades and callings, capitation taxes, taxes on luxuries, etc.

The State Legislature has the exclusive power of legislation with regard to everyone of the items included in the State List.

The Concurrent List consists of fifty-one items. These are items with respect to which uniformity of legislation throughout the Union is desirable but not essential. As such, they are placed under the jurisdiction of both the Union and the States.

The List includes items such as: detention for reasons connected with the security of the State, marriage and divorce, transfer of property other than agricultural land, contracts, bankruptcy and insolvency, trust and trustees, civil procedure, contempt of court, vagrancy, lunacy and mental deficiency, adulteration of foodstuffs, drugs and poisons, economic and social planning, commercial and industrial monopolies, trade unions, social security, labour welfare, education, forests, legal, medical and other professions, vital statistics, trade and commerce in a number of items, price control, factories, electricity, newspapers, books and printing presses, stamp duties etc.

The Parliament of India and State Legislatures have concurrent power of legislation over the items included in this List. So long as Parliament does not pass a law on any of these items, the States may pass any law they like on the same. But once Parliament does enact a law on such items, Parliamentary law shall prevail over any State law in this regard. There is, however, one exception to this general rule.

According to this, a later law of the State Legislature on any item in the Concurrent List shall prevail over an earlier law of Parliament of the same subject, if the State law was reserved for the consideration of the President and received his assent.

This is a novel and original feature which enables States to pass a more advanced piece of legislation than an existing Parliamentary law, or to provide through a new law with the consent of the Union, for any special conditions and circumstances which prevail in the State.

As in Canada, the residuary powers of legislation are vested in the Union. This power includes the power of making laws imposing any taxes not mentioned in either of the State or Concurrent Lists.

Parliament is also empowered to establish additional courts for the better administration of laws made by it on any matter included in the Union List. Besides, Parliament has the exclusive power of legislation to give effect to any treaty, agreement or convention with any other country or international body.

Although the States have the exclusive power of legislation over every item in the State list, there are two exceptions to this general rule.

(1) Under Article 249:

If the Council of States declares by a resolution supported by two-thirds 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 in the State List, then Parliament is competent to make laws on that matter for the whole or any part of India. Such a resolution remains valid for a year.

If, however, the situation under which the resolution was passed continues to exist even at the end of the one-year period, another resolution to the same effect may be passed. In the absence of such a resolution, the Parliamentary law passed in this connection will automatically case to be in force within six months after the end of the year.

(2) Under Article 250:

Parliament is empowered to make laws on any item included in the State List for the whole or any part of India while a Proclamation of Emergency is in operation. The maximum period for which such a law can be in force is the period for which Emergency lasts and six months beyond that period.

In addition to these two occasions when the Union, on its own initiative, extends its legislative power to embrace that of the States, there could be a third occasion when action on the part of two or more States will enable Parliament to make laws on any item included in the State List. Article 252 deals with this contingency.

According to this, if the Legislatures of two or more States pass resolutions to the effect that it is desirable to have a Parliamentary law regulating any of the matters included in the State List, then it is lawful for Parliament to make laws regulating that matter.

Such laws can be extended to any other State as and when the Legislature of that State passes a resolution to that affected. If any such law is to be amended or repealed, it can be done by Parliament alone but the initiative for it rests with the States.

The merit of this provision is that Parliamentary action is the result of the initiative taken by the States in the matter in which they have a common interest but are unable to act individually because the suggested legislation goes beyond their respective territorial jurisdictions.

Further, the States will retain the same initiative to amend or repeal such Parliamentary law when it no longer serves the purpose for which it was originally passed or its need has ceased to exist.

A comparison with other federal Constitutions will show, first of all, that none of them has attempted such a detailed division of legislative powers between the Union and the States. In the Indian Constitution, the subjects have been precisely formulated so as to lead to a minimum of controversy and litigation.

If the framers, for the sake of brevity, had dealt with this subject in such general terms as in the United States Constitution, it would have led to an immense amount of litigation.

The litigation that centers on the “commerce clause” of the American Constitution is sufficient to indicate the vast scope of judicial interpretation and the dependence on such interpretation whenever the Centre or the States wish to take any particular action that they consider as falling within their own respective fields.

The provision for a Concurrent List consisting of a fairly large number of items has a special merit in this context. The Concurrent List is like a twilight zone as it were, for both the Union and the States are competent to legislate in this field without coming into conflict.

The possibility of mutual encroachment between the Union and the States is reduced to a minimum by including in the Concurrent List all those matters over which conflicts of jurisdiction are most likely to arise.

While the State List is based upon local interests and the Union List on national interests, the Concurrent List includes matters which have varying degrees of local and national interests. If these matters had figured in either the State List or the Union List, conflicts would have arisen.

As it is, the Concurrent List is like a shock-absorber which enables both the Union and the States to go beyond their own exclusive legislative spheres, as necessity arises, so as to meet exigencies without transgressing the boundaries of each other. This has already been demonstrated during the last five decades of the working of the Constitution.

A clear understanding of the federal provisions will show that the makers of the Indian Constitution were eager to avoid the long winding way along which federal power had advanced slowly and painfully in the older federations.

If India, struggling for political unity and economic stability, were to depend on judicial intervention for the enhancement of national powers, no one could say how successful she would have been in realising these objectives.

In all probability, she might have failed in both. The Constitution had to provide for any contingency that might arise in future. In short, the special virtue of the division of powers under the federal system established by the Constitution is its unique combination of rigidity and flexibility, which provides for adaptability to suit the needs of the political and economic situation in the country.

The entire scheme of the distribution of legislative powers undoubtedly displays a strong tendency towards a high degree of centralisation. This has been praised by some as the product of realism and a genuine understanding of the general tendency towards centralisation in all federations.

Whatever is the nature of the division of powers in them as shown by the original, written provisions? At the same time, others have denounced it as deviation from a strictly federal pattern and an attempt to embody unitarism in a federal form.

Here we may recall our earlier discussion on the meaning of federalism and point out that there is no strictly rigid federal system set as a pattern for all to copy, nor any sanctity attached to any particular form of federation.

Federal government is not always and every where good government. It is not an end in itself, but a means for ensuring good government.

Nevertheless, there are critics who point out that in a vast country like India, the danger of excessive centralisation which may lead to “apoplexy at the Centre and anemia at the circumference” cannot altogether be ruled out in practice.

The Union Government, by virtue of its position, is called upon to co-ordinate the activities of the various State Governments in the interests of uniformity without which there is the risk of fissiparous tendencies growing unchecked.

Moreover, the trend towards centralisation is not peculiar to India. War, economic depression, the growth of social services, the mechanical revolution in transport and industry, planning, the receipt by the States of financial assistance from the Union and judicial interpretation, all these have promoted the increase of federal power in the United States, Canada, Australia and Switzerland.

As pointed out by an Indian critic of the Constitution, “What, notwithstanding the fiercely avowed intentions and policies of the founders of the American Constitution, has taken place in the United States, and what local and provincial antagonisms have been unable to prevent in Canada and Australia, has now been statutorily formulated in India.”

Nevertheless, a careful reading of the sixty-one items, over which the States have exclusive jurisdiction along with the power they enjoy in the Concurrent field, should make it clear that the States are not reduced to a position of insignificance in the scheme of division of powers.

On the contrary, they have at their disposal substantial powers covering a large area which enable them to function as effective agencies of the sovereign power which they share with the Union.

Take, for instance, items like public health, agriculture and fisheries which are placed within the jurisdiction of the States. Considering the importance of these items from a national point of view, one could even doubt the wisdom of leaving them in the State List. As a keen observer of the working of the administrative system has pointed out:

“Epidemics respect no State boundaries, and for other reasons too national health is increasingly a national problem. Neither agriculture not fisheries has greater local significance than national if as much. In a nation dedicated to the welfare State ideal, the food supply and the welfare of farm families are inescapably national responsibilities.

Almost all economic activities are carried on in localities but this fact does not make their significance local. The constitutional effort to specify scopes of national and State powers so precisely would appear to raise the most serious barriers before national needs to develop and execute national programmes in the interest of national economy and the national public.”

Yet, these powers are there with the States, making them function as units of a federal system that attempts a balanced division of powers in the context of the complex problems of the present day.