Consentia on Multidisciplinary Research

Legislative Conflicts in India: A Federal Perspective

Introduction

The primary distribution of power in all Constitutions, related to the three branches of government, – Legislative, executive and judicial. In this project, we shall confine ourselves to the distribution of legislative powers, as between Union Legislature on the one hand and the State Legislatures on the other, which is necessary in a federal system.

Legislative powers in a federal or quasi-federal constitution, are divided between the Centre and the States. Article 245 of Constitution of India defines the ambit or territorial limits of the legislative powers vested in Parliament and the Legislatures of the States.[1] Distribution of power is the most important feature of a federal Constitution, our Constitution has bodily adopted the scheme of Government of India Act 1935. Before the Government of India Act 1935 was enacted, British Parliament had enacted a Federal Constitution for Canada in the B.N.A. Act, 1867 (“The Canadian Constitution”) and a Federal Constitution for Australia in the Commonwealth of Australian Constitution Act, 1900. The Canadian Constitution conferred enumerated powers on the Provinces and residuary powers on the Centre; but this was done by reference to two Legislative lists contained in ss. 91 and ss. 92 of the Act, concurrent legislative list in respect of agriculture and immigration being provided for in S. 95 of the Act. The Australian Constitution, following the American model, conferred enumerated powers on the Centre (s.51) and conferred residuary powers on the State. However, in the Government of India Act 1935, the British Parliament had to solve problem posed by the demand of the Muslim minority that residuary power of legislation should be conferred on the provinces, and the demand of the Hindu Majority that the residuary power should be conferred on the federation.[2] The Constituent Assembly took a decision that India should be a federation with a strong Centre. It is so structured as to establish the supremacy of the Union, while assuring the autonomy of the States limited to certain subjects. The scheme of distribution of legislative power under the Seventh Schedule has been done in such a way as to confer more powers on the Centre than the States. Also the residuary powers are vested with the Centre not the States.[3]

Distribution of Legislative Power

Distribution of Legislative power is necessary for federal system, but the pattern of distribution of legislative function is not the same under different Constitution. But generally the distribution is broadly based on the subject matters, matters of National interest must be handed over to the Union, while the units should have Jurisdiction over matters of regional concern.

Distribution of Legislative Power under U.S. Constitution

Constitution of United State simple enumerates the powers specifically assigned to the Federal Legislature [Art. I, S. 8], and then leaves all the enumerated residue to the State Legislatures [10th Amendment][4]. The Constitution of U.S.A. makes the divisions of powers between the Federal and the States by provisions of 4 classes-

  • Provisions enumerating the powers of the Union [Art. I S. 8]
  • Provisions prohibiting the Union from doing certain things [Art I S. 9]
  • Provisions prohibiting the States from doing certain things [Art. I S. 10]
  • Leaving the residue [10th Amendment][5]

In the case of Gibbons v Ogden[6] analysing the power of the National Government, Marshall, C.J. said-

“The genius and character of the whole government seem to be, that its action is to be applied to all external concerns of nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the National Government.”

Distribution of Legislative Power under Constitution of Canada

The Constitution Act of Canada divides the field of legislations between the Dominion Parliament and the Legislatures of the provinces ss.91 and 92 (British North America Act, 1867), the provincial legislatures have exclusive jurisdiction to legislate on the 16 subjects enumerated in s.92 while the Dominions Parliament has exclusive jurisdiction to legislate on the 30 subjects enumerated in s. 91.

The Constitution of Canada departs from American precedent in vesting the residuary power in the Dominion Parliament, by providing in S.91, that the Dominion Parliament can legislate, for the “Peace, order and Good Government of Canada”, in relation to all matters not coming within subject enumerated in s.92.

Distribution of Legislative Power under Indian Constitution

Article 245 of the Constitution of India defines the ambit or territorial limits of the legislative powers vested in Parliament and the legislatures of the State; Article 246 defines the respective jurisdictions of the Union and the State legislatures as regards subjects or topics of legislation. Article 245 is concerned only with territorial jurisdiction of Parliament and State Legislatures. Its clause (1) states an obvious proposition that the laws of Parliament may apply or extend to the whole or any part of that State. By virtue of the opening words of clause (1) the application or extent of the laws of Parliament, as the case may be, is subject to the provisions of the Constitution in this regard. Clause (2) makes it clear that a law passed by Parliament shall not be deemed to be invalid on the ground that it has extra-territorial operation.[7] In the case of A.H. Wadia v CIT[8] , “questions of extra-territoriality of any enactment can never be raised in the municipal courts as a ground for challenging its validity. Article 246 creates an exclusive field of legislation for the Union Parliament and an exclusive field for the legislatures of each State. Fields are created by enumeration of topics or head of legislation. The Union List contains 97 entries belonging to the exclusive Union field. The exclusive field of State Legislature is comprised of 66 entries mentioned in List II of Seventh Schedule. In addition, there are 47 entries in the Concurrent list in respect of both Union & State Legislatures are competent to legislate.

Legislative Conflicts in Indian Constitution

The Constitution of India has brought into existence a federal State. The Constitution of India has adopted the scheme of division of powers contained in the Government of India Act 1935, which for the first time introduced a federal pattern of government for India.[9] Under Indian Constitution, there are provisions which creates exclusive fields in favour of the Union.

 

 

            Article 248 of Constitution of India- 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.

Article 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 Houses 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.

(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.

Article 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.

Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.

In this project the conflict related to Residuary power & Repugnancy under Indian Constitution have been dealt.

               Article 248 of Constitution of India- 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

In the Government of India Act, there are two exclusive lists, namely, a list of federal powers, a list of provincial powers and a concurrent list with regard to which both the provinces and the federation had competence. The residuary powers, however, were not allocated either to the federation or to the provinces but was under Section 104 of the Government of India Act, 1935, reserved to be allocated by the Governor-General in his discretion to the federation or to the provinces.[10] During the framing of Indian Constitution framers of the Constitution were conscious of the fact that human knowledge is limited and human perception imperfect and no one could foresee what contingency may arise in future needing legislation. Therefore, residuary power is intended to take care of such matters as could not be identified at the time of the Constitution-making. The Constitution provides that the residue will belong exclusively to the centre. This is provided for in Article 248 read with entry 97, List I.[11]

            Residuary powers have been vested in the Centre so as to make the Centre strong. The function of the residuary power in the matter of resolving conflicts between the federal power and the State power. In Abraham v Assistant Sales Tax Officer[12] the question was whether animals and birds in captivity could be treated as movable property and as “goods” within the meaning of section 2(d) of the Central Sales Tax Act, 1956. P.T. Raman Nair J. held that the animals and birds were ‘goods’ within the section 2(d) of the Central Sales Tax Act, 1956. Even if it were assumed that animals’ things did not come within the definition of Article 366(12) of the Constitution, and the sale in question would fall within entry 54[13] of List II or entry 92-A[14] of List I, it would come within entry 97 of List I, namely the ‘residuary’ entry. To levy a tax on such sale would be within the competence of Parliament. In the case of I.C. Golaknath v State of Punjab[15], Supreme Court had held that the power to amend the Constitution was derived from Article 248 read with entry 97 of Union List and Article 368 dealt only with the procedure, however after 24th Amendment and the case of His Holiness Kesavananda Bharti v State of Kerala[16], Article 368 deals with both procedure and power of amendment.

In Union of India v H.S. Dhillon[17], the competence of parliament to include the capital value of agricultural land for the purpose of computing net wealth for the imposition of the wealth tax was in question, the majority held that

            “In light of the discussing in the Constituent assembly, that after the enactment of Art. 248, the specific entries 1 to 96, List I, had become unnecessary, and that in order to find out the exclusive powers of Parliament, all that was necessary was to inquire whether a subject-matter fell within List II and III and it was not necessary to inquire under which specific entry in List I a particular law fell, Article 248, does not provides express exclusion powers of Parliament, but only for its residuary powers.”

                                    Article 254 – The Constitution of India 1949

“Inconsistency between laws made by Parliament and laws made by the Legislatures of States:

  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 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 that 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”.

Uniformity of law, being the basic characteristics of Indian jurisprudence cannot be termed to be at sufferance by reason of a State legislation which runs counter to the Central legislation. It is not necessary that one legislation should be on the positive side whereas the other one in the negative side.[18] The scheme of distribution of legislative powers under the Indian Constitution, such distribution being a necessary component of a federal political structure. It raises interesting issues where the co-existence of Union and State laws in particular area give rise to litigation. Such problem arises either because the Union or a State may illegally encroach upon the province of parallel legislature or it may arise because though there is no encroachment as such on each other’s sphere, yet, the two laws clash with each other.[19]

The Constitutional provision relevant for solving question for repugnancy between a Central law and a State law is to be found in Article 254.[20] Article 254 (1) deals with a conflict between a law made by parliament and a law made by a State in the exercise of their respective authority. But the law must be one which Parliament is competent to enact.[21] Under Article 254 of the Constitution, the law made by Parliament will prevail in respect of subjects covered under Concurrent list of the seventh schedule to the Constitution.[22] Article 254 of Indian constitution was interpreted by the Hon’ble Supreme Court in the case of-

 

 Hoechst Pharmaceuticals Ltd. V State of Bihar (1983) 4 SCC

“The question of repugnancy under Article 254(1) between a law made by Parliament and a law made by the State legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the concurrent list, and there is direct conflict between the two laws.”

Constitutional Bench of Hon’ble Supreme Court Interpreted Article 254 in the case of-

Zaverbhai Amaidas V State of Bombay (1955) SCR 799:

In the context of challenging to Bombay Act no. 36/1947 on the ground that the same is repugnant to Section 7(1) of the Essentials Supplies (Temporary Powers) Act, 1946, it was held by the Hon’ble Supreme Court

            “now by the proviso to Article 254(2) the Constitution has enlarged the powers of Parliament, under the proviso, Parliament can do what the Central Legislature could not under Section 107(2) of the Government of India Act and enact a law adding to, amending, varying, repealing a law of the State, when it relates to a matter related in the Concurrent List.

 

In the case of K.Kumaraswami v Premier Electric co. (1959) AIR Rajasthan. 59 it was held that-

 “It is only when the provisions made by the legislature of a State is repugnant to any provision of law made by Parliament that the State law would fall under Art. 254(1); but where a State law merely adds to the law made by Parliament there cannot be any repugnancy unless it was intended that the law made by Parliament should be an exhaustive code.”

Clause (2) of Article 254 of Constitution of India carved out an exception, the law made by the State legislature will prevail if the Presidential assent is received. But before this clause can be invoked there must be a repugnancy between the State act and an earlier Act made by the Parliament.  Article 254(2) gives power to the State Legislature to enact a law with the assent of the President, on any subject covered under List III of the Seventh Schedule to the Constitution, even though the Central Act may be inconsistent operating in that relating to that subject.[23] Ordinarily, the laws could be said to be repugnant when they involve responsibility of obedience to them simultaneously but there may be cases in which enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. The question of “repugnancy” arises only with reference to a legislation falling in the concurrent list but it can be cured by resort to Article 254(2).[24]

In the case of-

M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board, it was observed as under:

“Recourse to that said principles, however, would be resorted to only when there exists direct conflict between two provisions and not otherwise. Once it is held that the law made by Parliament and the State Legislature occupy the same field, the subsequent legislation made by the State which had received the assent of the President of India indisputably would prevail over the Parliamentary act when their exist direct conflict between two enactments. Both the Laws would ordinarily be allowed to have their play in their own respective fields. However, in the event their does not exist any conflict, the Parliamentary Act or the State Act shall prevail over the other depending upon the fact as to whether the assent of the President has been obtained therefor or not.”

Assent of the President-

The Assent by the President under Article 254(2) of the Constitution of India is not a matter idle formality. The President has, at least to be apprised of the reason why his assent is sought for, if there is special reason for doing so. If the assent is sought and given in general terms so as to be effective for all purposes, different considerations may legitimately arise. But the assent of President is sought to the law for a specific purpose, the efficacy of the assent of the President would be limited to that purpose and cannot be extended beyond it.[25]

In S.K. Srivasatava v. State of Uttaranchal AIR 2007 Uttara 52

“So far as the contention of the counsel for the petitioners regarding assent of the President on the ground that entry 57 is subject to the provisions of entry 35 of List III is concerned, no repugnancy of these provisions could be pointed out by the counsel for the petitioner so, as to attract the provision of clause (2) of Article. 254 of the Constitution of India, which requires the assent of the President on a legislation made by the State, where on the same topic the Central Legislation exist.”  

By virtue of the proviso to clause (2) of Article 254 of Constitution of India, Parliament may repeal or amend a repugnant State Law on concurrent subject having the President’s assent, either directly or by itself enacting a law with respect to the ‘same matter’. Parliament can, acting under proviso to Article 254(2), repeal a State Law.  But when it does not expressly do so, even then, the State law will be void under the provision if it conflict with a later ‘law with respect to the same matter’.[26]

Doctrine of Occupied Field-

Where both the Central Act and the State Act operate in the same field, then, unless it is shown that while obtaining the Presidential Assent for the State Act, the conflict between the two acts was specifically brought to the notice of the President, before obtaining the same, the State could not have use the escape route provided by Article 254(2) of the Constitution of India.[27]

Conclusion-

Based upon above discussion, to say that Union legislatures have more powers than State legislatures will be a blunder, because both Union Legislature and State legislatures are subject to Constitution limitation.  The Constitution is supreme over both.[28] A federal Union may be formed in either of two principal ways-

  • It may be formed by a voluntary agreement between a sovereign and independent States. In the case of United States of America or Australia.
  • The provinces of a unitary State may be transformed into a federal union, as happened in the case of India & on Canada.

Indian Union resembles Canadian Federation as there were no pre-existing State with Constitutions of their own to govern such independent prior to their Union in a federal structure. As discussed by H.M. Seervai[29] nature of Indian Constitution,

                  “The allocation of the residuary power of legislation to Parliament is irrelevant for determining the federal nature of the Constitution.”

Indian Constitution may not be pure federal in nature, if we compare it with the pure federal countries in a strict manner, it may be called as Quasi federal Constitution or Co-operative federal Constitution, or, a Constitution which is:

 

                                  Federal in Spirit not in Reality.

[1] V.N. SHUKLA, CONSTITUTION OF INDIA 714, M.P. Singh (11th ed. EBC Publishing (P) Ltd, 2008)

[2] H.M. SEERVAI, CONSTUTITIONAL LAW OF INDIA 287, (4th ed. UNIVERSAL Law Publishing Co. Pvt. Ltd. 2008)

[3] K.H. CHELUVA RAJU, The Indian Journal of Political Science, Vol. 52, No. 2 (April – June 1991), pp. 153-164, available at http://www.jstor.org/stable/41855548 . (last visited on Mar. 2, 2014)

[4] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[5] D.D. BASU, COMPARATIVE FEDERALISM 206, Prof. B.M. Gandhi (2nd ed. Wadhwa & Company Law Publisher, 2008)

[6] (1824) 9 Wh (195)

[7] V.N. SHUKLA, CONSTITUTION OF INDIA 714-715, M.P. Singh (11th ed. EBC Publishing (P) Ltd, 2008)

[8] AIR 1949 FC 18, 25.

[9] V.D. SEBASTIAN, INDIAN FEDERALISM THE LEGISLATIVE CONFLICTS 1-2, (Academy of Legal Publications, Trivandrum, 1980)

[10] V.D. SEBASTIAN, INDIAN FEDERALISM THE LEGISLATIVE CONFLICTS 161, (Academy of Legal Publications, Trivandrum, 1980)

[11] Entry 97 Union List: “Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.”

[12] A.I.R 1960 Ker. 360

[13] 54-Taxes on the sale or purchase of goods other than newspaper subjects to the provisions of entry 92-A of List -I

[14] 92-A  Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-state trade or commerce

[15] A.I.R. 1967 S.C. 1643

[16] A.I.R. 1973 S.C. 1461

[17] A.I.R. 1972 S.C. 1061

[18] DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW, 1082 (Kamal Law House Kolkata, 3rd ed. 2011)

[19][19] P.M. BAKSHI, THE CONSTITUTION OF INDIA, 252 (Universal Law Publishing Co. New Delhi, 11th ed. 2011)

[20]M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 1 ,783, Samaraditya Pal & J. Ruma Pal (Lexis Nexis Butterworths Wadhwa Nagpur., 6th  ed.2010)

[21] H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 3, 2544, (N.M. Tripathi Private Ltd. BOMBAY, 4TH ed. 1996)

[22] JAGDISH SWARUP & DR. L.M. SINGHVI, CONSTITUTION OF INDIA, 3, 3066, J. G.P. Mathur (THOMSON REUTERS, 3RD ed. 2013)

[23] JAGDISH SWARUP & DR. L.M. SINGHVI, CONSTITUTION OF INDIA, 3, 3068, J. G.P. Mathur (THOMSON REUTERS, 3RD ed. 2013) : M.P.A.I.T. Permit owners Association v State of Madhya Pradesh, AIR 2004 SC 981

[24] Hoechst Pharmaceuticals Ltd. V State of Bihar (1983) 4 SCC

[25] JAGDISH SWARUP & DR. L.M. SINGHVI, CONSTITUTION OF INDIA, 3, 3069, J. G.P. Mathur (THOMSON REUTERS, 3RD ed. 2013)

[26] Zaveribhai V State of Bombay AIR 1954 SC 752

[27] Grand Kakatiya Sheraton Hotel etc. v Srinivasa Resorts Ltd. (2009) 5 SCC 342(para 81): DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW, 1088 (Kamal Law House Kolkata, 3rd ed. 2011)

[28] In re Delhi Laws Act, 1912, (1951) SCR 747, AIR 1965 SC 745 (762)

[29] H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 1, 301, (N.M. Tripathi Private Ltd. BOMBAY, 4TH ed. 1996)

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