Center – States Relations – Legislative Relations

(Article 245 -255 of Indian Constitution)

Center State Legislative Relations

• The Indian Constitution envisages Federal Polity with a Union government and several state governments.
• The federal system not only ensures the efficient governance of the country but also reconciles national unity with regional autonomy.
• The term ‘federation’ has nowhere been mentioned in the Constitution. Instead, Article 1 of the Constitution describes India as a ‘Union of States’.
• Dr B.R. Ambedkar preferred the phrase ‘Union of States’ rather than ‘Federation of States’ to indicate two things:
  • The Indian federation is not the result of an agreement among the states (like the American federation)
  • The states have no right to secede from the federation.
• Center state legislative relations have been discussed in Part 11 of the Constitution from Articles 245 to 255. The Center-state relations can be studied under three head –
  • Legislative relations (Article 245-255)
  • Administrative relations (Article 256-263)
  • Financial relations (Article 268-293)
• The Constitution of India is a federal system based on the principle of division of powers.
• The Constitution of India, given its federal structure, divides all powers (legislative, executive and financial) between the Centre and the states.
• Though the Centre and the states are supreme in their respective fields, the maximum harmony and coordination between them is essential for the effective operation of the federal system.

Historical Background

• Montagu-Chelmsford Reforms (1919) and Government of India Act, 1935 prepared the ground for 3 Lists and has paved the way of federal polity.
• The distribution of powers (legislative, administrative and financial) between the Center and the states in the Indian Constitution is based on the scheme provided in the Government of India Act 1935.
• The distribution of power adopted in the Act of 1935 continues till the present.

Legislative Relations

• Article 245 to 255 in Part XI of the Constitution deal with the legislative relations between the Centre and the states.
• Given federal nature of the Indian Constitution, it divides the legislative powers between the Centre and the states with respect to both the territory and the subjects of legislation.
• There are four following aspects in the Centre-states legislative relations –
  • Territorial extent of Central and state legislation;
  • Distribution of legislative subjects;
  • Parliamentary legislation in the state field; and
  • Centre’s control over state legislation.

Territorial Extent of Central and State Legislation

• • The Constitution defines the territorial limits of the legislative powers vested in the Centre and the states in the following way –
    • • The parliament can make laws for the whole or any part of the territory of India. (The states, the UTs, and any other area included in the territory of India).
      • A state legislature can make laws for the whole or any part of the state territory. The laws made by a state legislature are not applicable outside the state, except when there is a sufficient nexus between the state and the object.
      • The Parliament alone can make ‘extra-territorial legislation’ – Laws of the Parliament are applicable to the Indian citizens and their property in any part of the world.
  • However, the constitution imposes certain restrictions on the plenary territorial jurisdiction of the Parliament. The laws of Parliament are not applicable in the following areas:
    • • The president can make regulations for the peace, progress and good government of the four Union territories- Andaman and Nicobar, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu and Ladakh. A regulation so made has the same force and effect as an act of Parliament. It may also repeal or amend any act of Parliament in relation to these union territories.
      • The Governor is empowered to direct that an act of Parliament does not apply to a Scheduled Area in the state or apply with specified modifications and exceptions.
      • The Governor and the President have the power to enforce any law of the Parliament in the tribal districts having a special status in Schedule 6 states such as Mizoram, Assam, Manipur and Tripura.

Distribution of Legislative Subjects

• • Under Article 246, a three-tier arrangement has been made in the Constitution regarding the division of legislative subjects between the Center and the States which is kept in the 7th Schedule.
  • Indian Constitution provides for a division of the subjects between the Centre and the states through three lists in the Seventh Schedule –
    • • • List-I (Union),
        • List-II (State) and
        • List-III (Concurrent)
  • The Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the Union List. This list has at present 100 subjects (originally 97 subjects) like defence, banking, foreign affairs, currency, atomic energy, insurance, communication, inter-state trade and commerce, census, audit and so on. The matters of national importance and the matters which requires uniformity of legislation nationwide are included in the Union List.
  • The State Legislature has in normal circumstances, the power to make laws with respect to any of the matters enumerated in the state list. This has at present 61 subjects Subjects (originally 66 subjects) like public order, police, public health and sanitation, agriculture, prisons, local government, fisheries, markets, theatres, gambling and so on. The matters of regional and local importance and the matters which permits diversity of interest are specified in the State List.
  • Both the Parliament and the State Legislature can make laws regarding the Concurrent List. This list has at present 52 subjects (originally 47subjects) like criminal law and procedure, civil procedure, marriage and divorce, population control and family planning, electricity, labour welfare, economic and social planning, drugs, newspapers, books and printing press, and others. The matters on which uniformity of legislation throughout the country is desirable but not essential are enumerated in the concurrent list.
  • The power to make laws with respect to Residuary Subjects is vested in the Parliament (Article 248). This residuary power of legislation includes the power to levy residuary taxes.
  • The 101st Amendment Act of 2016 (Goods and Services Tax) – Parliament and the state legislature have power to make laws with respect to GST imposed by the Union or by the State. Further, the Parliament has exclusive power to make laws with respect to GST where the supply of goods or services or both takes place in the course of inter-state trade or commerce.
  • The Government of India Act, 1935 provided for a three-fold enumeration of the subjects – federal, provincial and concurrent. The Indian Constitution follows the scheme of this act but with one difference, that is, under Government of India Act, 1935, the residuary powers were given neither to the federal legislature nor to the provincial legislature but to the Governor – General of India.
  • The Constitution expressly secures the predominance of the Union List over the State List and the Concurrent List and that of the Concurrent List over the State List.
  • In case of overlapping between the Union List and the State List, the former should prevail. In case of overlapping between the Union List and the Concurrent List, it is again the former which should prevail. Where there is a conflict between the Concurrent List and the State List, it is the former that should prevail.
  • In case of a conflict between the Central law and the state law on a subject enumerated in the Concurrent List, the Central law prevails over the state law. But, there is an exception – If the state law has been reserved for the consideration of the President and has received his assent, then the state law prevails in that state. However, it would still be competent for the Parliament to override such a law by subsequently making a law on the same matter.

Parliament Legislations in the State field

• • The below scheme of distribution of legislative powers between the Centre and the states is to be maintained in normal times.
  • But, in abnormal times, the scheme of distribution is either modified or suspended.

 

 

• • Under the following five extraordinary circumstances, the Parliament makes laws for the states.
    • 1. When the Rajya Sabha passes a resolution
      2. During a national emergency
      3. When states make a request
      4. To implement international agreement
      5. During president’s rule

a.     When the Rajya Sabha passes a resolution

• • • • If the Rajya Sabha declares that it is necessary in the national interest that Parliament should make laws on a matter in the state list, then the parliament becomes competent to make laws on that matter.
      • Such a resolution must be supported by two-third of the members present and voting.
      • The resolution remains in force for one year; it can be renewed any number of times but not exceeding one year at a time.
      • The laws cease to have effect on the expiration of six months after the resolution has ceased to be in force.
      • This provision does not restrict the power of a state legislature to make laws on the same matter.
      • But, in case of inconsistency between a State Law and a Parliamentary Law, the latter is to prevail.

b.     During a national emergency

• • • • The Parliament acquires the power to legislate with respect to matters in the State List, while a proclamation of national emergency is in operation.
      • The laws become inoperative on the expiration of six months after the emergency has ceased to operate.
      • In above case, the power of a State Legislature to make laws on the same matter is not restricted.
      • In case of dispute between a state law and a parliamentary law, the latter is to prevail.
      • The laws cease to have effect on the expiration of six months after the resolution has ceased to be in force.

c.      When states make a request

• • • • According to Article 252, when two or more states pass a resolution in their respective legislatures that Parliament can make laws on subjects in the state list. So the Parliament gets the power to make laws for the state, on the subjects of the state list. A law so enacted applies only to those states which have passed the resolutions.
      • Any other state may adopt it afterwards by passing a resolution to that effect in its legislature.
      • Such a law can be amended or repealed only by the Parliament and not by the legislatures of the concerned states.
      • In case of request by states, the State Legislature ceases to have the power to make a law with respect to that matter.
      • Some examples of laws passed under the above provision are –
        • • Wild Life (Protection) Act, 1972
          • Water (Prevention and Control of Pollution) Act, 1974
          • Urban Land (Ceiling and Regulation) Act, 1976 and
          • Transplantation of Human Organs Act, 1994.
          • Clinical Establishments Registrations and regulations Act, 2010 has been made for 4 states (Sikkim, Mizoram, Arunachal Pradesh and Himachal Pradesh)

d.     To implement international agreement

• • • • According to Article 253, Parliament can make laws on subjects in the State List for the purpose of giving effect to an international treaty or agreement.
      • This provision enables the Central government to fulfill its international obligations and commitments.
      • Punchhi Commission has said that treaties which impinge on state list must be negotiated with increasing involvement of states
      • Examples – United Nations (Privileges and Immunities) Act, 1947, Geneva Convention Act, 1960, legislations relating to environment and TRIPS.

e.     During president’s rule

• • • • Under Article 356, President’s rule is imposed in a state. When this happens, all the powers of the Legislature come to the Parliament. In other words, the Parliament also has the power to make laws on the subjects of the State List. A law made so by the Parliament continues to be operative even after the President’s rule and not co- terminus with the duration of the President’s rule.
      • Such a law can be repealed or altered or re-enacted by the state legislature.

Centre’s Control over State Legislation

• • Besides the Parliament’s power to legislate directly on the state subjects under exceptional situations, the Constitution empowers the Centre to exercise control over the state’s legislative matters in the following ways –
    • The Governor can reserve certain types of state bills for the recommendation of the President. The President enjoys absolute veto over state bills.
    • Bills on certain subjects in the State List can be brought after getting assent from the President. Such as Bills restricting freedom of trade and commerce etc.
    • In case of a financial emergency, the President can order to preserve money or finance bills passed by the Legislature.
  • The Indian Constitution has assigned a position of superiority to the Centre in the legislative sphere.

Sarkaria Commission on Centre State Legislative Relations

• It suggested the Governor should be eminent in some walk of life and from outside his state, detached from intense political links and not be part of the ruling party.
• The governor of a state should enjoy a term of five years. He should be removed before his tenure only on the grounds as mentioned in the constitution or if aspersions are cast on his morality, dignity, constitutional propriety, etc. In the process of removal, the state government may be informed and consulted.
• This article 356 should be used very sparingly and as a matter of last resort.
• Residuary with respect to taxation should remain with union.
• Concurrent list should be retained and Centre should occupy only those subjects of concurrent list which demands nationwide uniformity.
• As far as Article 200 is concerned, the centre should dispose of these bills within four months.

Punchhi Commission on Centre State Legislative Relations

• Equal representation of the states in Rajya Sabha.
• Domicile qualification for the Rajya Sabha should be restored.
• Broad agreement should be reached between the centre and state before introducing a bill on subjects in concurrent list. Greater flexibility must be shown to the state with respect to five transferred subjects (by 42nd amendment – Education, Forests, Weights and Measures, Protection of Wild Animals and Birds, and Administration of Justice)
• Centre should examine whether administration of five subjects under central laws has served its intended purpose and if not, subjects must be restored in state list.

Critical Analysis of Legislative Relations

• Essential legislative functions cannot be delegated by the legislature.
• The center has practically monopolized the Central list. Several states want reduction in Central Lists and transform them to state list. Center should confine itself to just four subjects- Defense, foreign affairs, communication and currency.
• State fears the abuse of Article 200 (here only 4-6 months’ time should be given to center) and Article 249 (National interest)
• Residuary powers should come to Concurrent list.
• Taxation should remain with center.
• There should be equal representation for states in Rajya Sabha.
• Restore domicile qualification in Rajya Sabha.
• There should be broad agreement between center and state before introducing concurrent subject’s bills.
• There should be liberal use of Article 254 (inconsistency between state and parliament law)
• Sometime Parliament can make Skeletal Laws leaving rooms for States to fill up the detail.

Problems in Legislative Relations of Centre-State

• States like Punjab and West Bengal demanded that centre should confine itself to only four subjects – Currency, General Communication, External affairs and Defense.
• Abuse of Article 200 – assent to bills and reservation of money/finance bills for President’s consideration.
• Strong centre is desirable but issue is with over-centralisation.
• Several states sought abolition or reduction of subjects enumerated in concurrent list and transferring some of them to state list.
• Residuary powers must be rest with the state or they should be treated as concurrent items.
• Some states feared of abuse of Article 249 – Power of Parliament (Rajya Sabha) to legislate with respect to a matter in the State List in the national interest.

 

It can be concluded that the centre has more power and the state has less than that. However, it was necessary because if it was not so and more power had been given to the state, then it would have become a threat to the unity and integrity of the nation.

 

 

So, this is all about the Legislative Relations between Center and States in the topic Centre – State Relations. If you want to read more notes on Indian Polity – Click Here.

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