Legislative Relations
Legislative Relation (Article 245-255, Part XI)
The constitution of India makes a two-fold distribution of legislative power:
• With respect to territorial jurisdiction.
• Subject matter of legislation.
With respect to territorial jurisdiction:
• Article 245 (1) provides: "Subject to the provisions of this Constitution, Parliament may
make laws for the whole part of the territory of India, and the Legislature of a State may
make the whole or any part of the State."
Analysis
Article 245 (1) provides that the Legislature of a State may make laws for the whole or any
part of the State.
It implies that the State law would if it is given extra-territorial operation, i.e., it is applied to
subjects whole dets located outside the territory of that State.
However, many times State laws having extra-territorial operation have been held valid. It is
the application of the "Doctrine of Territorial Nexus".
Doctrine of Territorial Nexus
The doctrine can be invoked in the following circumstances:
• If extra-territorial operations in a state exists.
• If there is legitimate and adequate nexus between the state and the object,
• If the object is located outside the territorial limits of the state, then it must have some
territorial connection with the state.
Salient Features of the Doctrine of Territorial Nexus:
The parliament is empowered to make and enact laws within India’s jurisdiction i.e within
the whole of territory of India and to the extra-territorial issues which have appropriate
“nexus” with the Indian Territory as well.
The doctrine is also applicable to the states. In statutes of taxing, the sale or purchase of
goods is not necessary to be taken place within the territory of the state.
To legitimately apply for territorial nexus, the object doesn’t need to be physically located
within the territory of the state; however, territorial nexus with the state must be sufficient.
The tax can be levied by the state on a property, person or object not only within its
territorial limits but also having sufficient territorial connection with it.
The doctrine governs the taxation of non-residents in India.
Parliamentary Law having Extra Territorial Legislation:
• Clause (2) of Article 245 declares that Union Parliament may make a law having extra-
territorial operation and such a law would not be the ground of having extra-territorial
operation.
In Sondur Gopal vs. Sondur Rajini, the question before the Division Reach of the Apex Court
related to application of The Hindu Marriage Act, to Hindus, residing out of India but having
domicile in India. Court held though the parties, having domicile of origin in India, they
would continue to be governed by the H.M. Act, 1955.
Distribution of subject matter of legislation (Article 246):
• Provides that the Union Parliament may make laws with respect to the matters
contained in Union List and a State Legislature may make laws with respect to the
matters contained in the State List.
• As regards to matters contained in the Concurrent List, both Union Parliament and State
Legislatures are vested with concurrent powers of legislation.
• In case of conflict between central and State law on the 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. But it would still be competent for
the Parliament to override such a law by subsequently making a law on the same matter.
• Entries in the Lists, are themselves, not powers of the legislation, but fields legislation.
While the legislative power in driven from Article 245, the entries in the Seventh
Schedule only demarcate the legislative fields of the respective legislatures and do not
confer legislative power as such.
Conflict between Centre and State
The distribution of subject-matter cannot be claimed to be scientifically perfect and there
happens to be overlapping between the subjects enumerated in the three lists. In such
cases, question arises with regard to the constitutionality of the enactment which lies within
the domain of judiciary.
• Presumption of Constitutionality: A cardinal rule of interpretation is that there shall
always be a presumption of constitutionality in favour of a Statute. The Court should try
to sustain its validity to the extent possible. It would strike down the enactment only
when it is not possible to sustain it. Further that the burden of proof is upon the
shoulders of petitioners who challenges the law.
• Doctrine of Pith and Substance: The Doctrine of Pith and Substance states that if the
substance of legislation falls within a legislature’s lawful power, the legislation does not
become unconstitutional just because it impacts an issue beyond its area of authority.
The Court uses it to determine whether the claimed intrusion is just incidental or
significant. Thus, the ‘pith and substance’ concept holds that the challenged statute is
fundamentally within the legislative competence of the legislature that enacted it but
only incidentally encroaches on the legislative field of another legislature.
o Objective behind the Doctrine: The objective behind the creation of this doctrine was to
prevent absolute intrusion of legislative powers by evaluating the ‘content’ of enactment
and then determining which list the specific subject matter fell within. As a result, this
doctrine is applied to establish the legislative competency of a given law by examining
the ‘content’ of that statute. Examining an enactment’s ‘substance’ might lead to one of
two outcomes:
▪ The enactment’s substance corresponds to the subject matter given to the legislature for
the purpose of enacting laws: This will constitute the enactment totally lawful.
▪ Enactment includes subject matter that is outside the jurisdiction of the federal or state
legislatures: This may result in a partial or accidental incursion of legislative powers,
which may or may not render the entire statute invalid and void. Certain subject topics
enumerated in the three lists indicated in the Seventh Schedule might overlap at times,
therefore incidental encroachments are permitted to some extent when evaluating
legislative competency.
• Doctrine of Colourable Legislation:
o Doctrine of Colourable Legislation means that if a legislature lacks the jurisdiction to
enact laws on a specific subject directly, it cannot make laws on it indirectly. In simple
words, the doctrine checks if a law has been enacted on a subject indirectly when it is
barred to legislate on that topic directly
o Article 246 of the Indian Constitution deals with subject matter legislation, which refers
to who has the authority to create laws in relation to particular subject matter.
o However, the legislative body occasionally passes laws that are outside of its purview.
This signifies it has overstepped its bounds and done something indirectly that could not
have been done directly.
o This is known as a colourable legislation of legislative power or establishing laws
indirectly while doing so directly is illegal.
o As a result, the theory of colourable legislation was created to prevent legislative
authorities from abusing their powers.
o For example, the constitution provides reservation to only social and educationally
backward communities.
o So any attempt to declare the socially forward communities as backward communities
and extend the reservation becomes coloured legislation.
• Doctrine of Harmonious Construction: The doctrine of harmonious construction is
followed when there arises an inconsistency between two or more statutes or sections
of a particular statute. The fundamental principle behind this doctrine is, a statute has a
legal purpose and should be read in its totality and after that, the interpretation that is
consistent with all the provisions of that statute should be used.
In Commissioner of Income Tax vs Hindustan Bulk carriers, Court laid down the guidelines
as follows:
• The courts should try and avoid a conflict of seemingly disputing provisions and effort
must be made to construe the disputing provisions so as to harmonize them.
• The provision of one section cannot be used to overthrow the provision covered in
another section unless the court is unable to find a way to settle their differences despite
all its effort.
• In the situation when the court finds it impossible to entirely reconcile the differences in
inconsistent provisions, the courts must interpret them such that effect is given to both
the provisions as far as possible.
• Courts must also take into account that the interpretation that makes one provision
redundant and useless is against the essence of harmonious construction.
• Harmonizing two contradicting provisions means not to destroy any statutory provision
or to render it ineffective.
Residuary Power of Legislation (Article 248)
Article 248 of the Indian Constitution deals with the residuary powers of legislation. It
further states that:
• Parliament has exclusive power to make any law with respect to any matter not
enumerated in the Concurrent List or State List.
• Such power shall include the power of making any law imposing a tax not mentioned in
either of those Lists.
In Naga People's Movement of Human Rights vs. Union of India the Supreme Court ruled
that Parliament was competent to enact the Armed Forces (Special Powers) Act, 1958 in the
exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read
with Entry of list 1.
Parliament Power to legislate with respect to matter contained in State List
1. In National Interest (Article 249): Article 249 provides that if the Rajya Sabha has passed
a resolution by majority of not less than two-thirds of the members present and voting
declaring that it is necessary or expedient in the national interest that Parliament should
make laws with respect to any matter enumerated in the List specified in the resolution,
it shall be lawful for Parliament to make for the whole or any part of the territory of
India.
o Parliament may make laws under Article 249 (1) only with respect to the State matters as are
specified in the resolution passed by the Council of States.
o Such a resolution passed under Clause (1) normally lasts for one year, may be renewed as
many times as deemed necessary. Every time a resolution is passed, it shall remain in force
for one year only.
o Laws passed by Parliament under a resolution passed under Clause (1) Article 249, would
cease to have effect on the expiration of a period of six months after the resolution has
ceased to operate.
o The Rajya Sabha is authorised to pass the resolution under Article 249 because of it is said to
be a representative House, containing representatives of the States who are elected by the
members of the State legislative Assemblies.
o Article 249 has been used a few times. Ex: The Supply and Prices of Goods act 1952.
2. During Proclamation of National Emergency (Article 250): Article 250 (1) provides that
"Parliament shall, while a proclamation Emergency is in operation, have power to make
laws for the whole or any part of the territory of India with respect to any of the matters
enumerated in the State List" The Proclamation of Emergency referred to in this Article
must be proclamation which may be made under Article 352. When a proclamation of
Emergency is in operation, Parliament enact laws with respect to all the three Legislative
Lists in Schedule VII.
o It can make laws conferring powers and imposing duties on the Union and Officers in respect
of all the Lists."
o Laws made under Article 250 (1), however, would cease to have effect on the expiration of a
period of six months after the Proclamation has ceased to operate.
o Article 251 clarifies that Articles 249 and 250 do not restrict the of the Legislature of a State
to make laws with respect to matters with respect to which Parliament is empowered to
legislate under these Article Thus, the State Legislatures may legislate with respect to such
matter However, in case the two laws, i.e., Parliamentary law and State law, a repugnant to
each other, then, it is the law made by Parliament which will prevail and the State law shall
be void to the extent of the repugnancy.
3. Legislate with consent of State (Article 252): Article 252 (1) provides that when Houses
of Legislatures of two or more States have passed resolutions to the effect that it shall be
desirable that any of the matters in the State List should be regulated in such States by
Parliament by law, it shall be lawful for Parliament to pass an Act for regulating that
matter.
o The resolution must be passed by the Houses of at least two State Legislatures before
Parliament gets empowered to legislate under Article 252(1).
o The resolution may be passed by the simple majority of members present and voting in a
House.
o An Act so passed by Parliament shall have operation within the territories of only such
States, the Legislatures of which have passed the resolution.
o The Estate Duty Act, 1952, the Prize Competitions Act, 1955, the Urban Ceiling & Regulation)
Act, 1976, and the Transplantation of Human organs Act, 1994, are some of the laws passed
by Parliament under Article 252 (1).
4. Legislate with respect to giving effect to International agreement (Article
253): Parliament has power to make any law for the any part of the territory of India for
implementing any treaty, agreement or convention with any other country or countries
or any decision that any International Conference, Association or other body".
o Article 253 exhibits that in implementing a treaty, agreement or convention with another
country, the limitations imposed by Articles 245 and 246 lifted and the entire field of
legislation, in that respect, is open to Union Parliament.
5. Parliament's Power to Legislate Under Article 356: Article 356 provides that after the
President has declared that the Government in a State cannot be carried on in
accordance with the provision of the Constitution, he may by Proclamation further
declare that the power of the Legislature of that State shall be exercisable by or under
the authority of Parliament. Having been so authorised, Parliament may make laws with
respect any or all the matters contained in the State List.
o Laws so made by Parliament would be operative in that State only.
o Such laws would continue in force until amended or repealed by appropriate Legislature,
i.e., either by Parliament during the operation of Proclamation made under Article 356
or by the State Legislature after such Proclamation ceases to operate
Centre's control over state legislation In addition to the power of Parliament to legislate
directly with respect to matters in State List discussed under the foregoing Articles, the
Constitution provides for control by the Centre over legislation enacted by the States. These
provisions are discussed below-
• Article 31A provides immunity to laws made for acquisition of Zamindaries or the
abolition of the Permanent Settlement. The immunity of this Article will not be available
to a State Law unless it having been reserved for the consideration of the President, has
received his assent. The object is to ensure uniformity in laws providing for agrarian
reforms.
• Article 200 empowers the Governor of the State to reserve any Bill passed by the
Legislature of the State, for the consideration of the President. The Bill reserved for the
consideration of the President would become law only if assented to by the President
under Article 201.
• Article 288 (2) authorises a State to tax in respect of water or electricity stored,
generated, consumed, distributed or sold by any authority established by law made by
Parliament. A Bill for the purpose, having been passed by the State Legislature is
required to be reserved for the consideration of the President and would become law
only if assented to by him.
