Thursday, February 27, 2014

Legislative Relations | CENTRE-STATE RELATIONS

The framers of the Indian Constitution perceived the need for a strong Central Government in order to keep the disintegrating forces in check and safeguard the integrity of the country. This aspect has made the Indian federation a unique one among the federal structures of the world. It is characterised by a high degree of centralization. The Indian Constitution can be both unitary as well as federal according to the requirements of time and circumstances. The Constitution of India is federal in form but unitary in spirit. The Centre-State relations in the Indian federation can be summed up as follows:

Legislative Relations

The Constitution divides legislative authority between the Union and the States in three lists - the Union List, the State List and the Concurrent List. The distribution is remarkably elaborate and detailed. The Union List consists of 100 items. It demonstrates the vast extent as well as the great importance of the powers vested in the Union Government. The Union Parliament has exclusive authority to frame laws on subjects enumerated in the list. These include foreign affairs, defence, armed forces, communications, posts and telegraphs, foreign trade, inter-state trade, commerce, etc. A number of items included in the list have an important bearing on Union-State relations and some of them can enable the Union to expand its area of operation and thereby extend its control over the sphere which falls under State jurisdiction. For example, item number 52 which refers to industry places a powerful lever in the hands of the Union to take any industry under its own control.

Both Parliament and the State Legislatures can make laws on subjects given in the Concurrent List, but the Centre has a prior and superior claim to legislate on concurrent subjects. The list comprises of 52 items including criminal and civil procedure, marriage and divorce, economic and special planning, trade unions, labour welfare, electricity, newspapers, books and printing presses, population control and family planning etc.

Legislative RelationsThe State List consisting of 61 items contains subjects on which ordinarily the States alone can make laws. These include public order, police, administration of justice, prisons, local Government, agriculture etc. However, what makes the state autonomy less real than it appears at first, is the fact that under certain conditions the Constitution authorises the Union Government to extend its jurisdiction over matters formally included in the State List. In fact, when a proclamation of emergency is in operation, Parliament can legislate on matters enumerated in all the three lists. Under Art. 356, relating to the breakdown of constitutional machinery in the State, Parliament can take over the legislative authority of the State. Art. 249 empower the Rajya Sabha to transfer any matter in the State List to the legislative jurisdiction of Parliament by a resolution passed by a two-thirds majority. According to Art. 252, if the Legislatures of two or more States pass resolution to the effect that it is desirable to have a law passed by Parliament on any matter in the State List, Parliament can make laws regulating the matter. Any other State may also adopt such a law by passing a resolution to that effect. Such laws can be amended or repealed only by the Parliament. Art. 253 empowers Parliament to make laws for the whole or any part of the territory of India for implementing international agreements and conventions to which India is a party, even if the subjects covered by such treaties and agreements fall within the State List.
Finally, the residuary powers have been placed under the Legislative jurisdiction of the Parliament. This is a departure from the normal pattern of federalism. In the USA,
Switzerland and Australia, the residuary powers vest in the component units. The Indian Constitution makers preferred to follow the example of Canada in the assignment of residuary powers.

Central Control over State Legislation

In addition to the Parliament's power to legislate directly on the State subjects as mentioned above, the Constitution also provides for the Centre’s consent before a Bill passed by a State legislature can become a law. A State law providing for compulsory acquisition of private property, shall have no effect unless it has received the consent of the President. Art. 31-A grants immunity to laws providing for agrarian reforms from Arts. 14 and 19. The immunity of Art. 31-A will not be available to a State law unless it has received the consent of the President. The object of these provisions is to ensure uniformity in laws providing for agrarian reforms.

Art. 200 directs the Governor of a State to reserve a Bill passed by a State Legislature for the consideration of the President if in his opinion, if passed into law, would derogate the powers of the High Court.

Art. 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. But no such law shall be valid unless it has been reserved for the consideration of the President and has received his assent.

Art. 304(b) authorises a State Legislature to impose reasonable restrictions on the freedom of trade, commerce and intercourse within the State in the public interest. But such laws cannot be introduced in the State Legislature without the previous sanction of the President.

In short, the States do not possess exclusive or inviolable legislative jurisdiction even in matters formally recognised by the Constitution as falling within the sphere of State autonomy. In the United States of America, federal legislation on any subject which falls within the sphere reserved to the States is impossible without a constitutional amendment.

In the context of legislative relations between the Centre and the States, the Supreme Court of India has propounded the Doctrine of Pith and Substance and Doctrine of Colourable Legislation which are to be kept in mind.

Doctrine of Pith and Substance

Under the Constitution of India, there is a division of legislative spheres between the Union and the States. Within their respective areas of authority, the union and the state legislatures are supreme and they are not supposed to encroach upon the sphere reserved for the other. If a law passed by one encroaches upon the field assigned to the other, the court will apply the doctrine of pith and substance. If it is found that the law in substance is within the subjects assigned to that legislature and the intention of the law is genuine, the law shall be valid in its entirety, even though there is some overlapping. The justification given for this is that since there cannot be water-tight division of powers between the centre and the states, a strict verbal interpretation of any provision would result in invalidation of many laws on the simple ground of overlapping. The Supreme Court propounded this doctrine in the case of State of Rajasthan vs. G Chawla in 1959. In the opinion of the Court, such encroachment is only incidental and hence the extent of invasion is immaterial.

Doctrine of Colourable Legislation

It is very much applicable under a federal Constitution. In a federal government, the transgression of its limits of power by a legislature may be either overt and direct or covert and indirect. When the legislation is indirect and covert, it is called ‘colourable legislation'. In this case, although the subject on which the legislature makes laws falls within its legislative competence in exterior appearance but its real motive is to transgress the power of other Legislature covertly. In this case, applying the doctrine of colourable legislation, the court can invalidate the entire law. The essence of this doctrine is that what the legislature cannot do directly, it cannot do the same indirectly also. This doctrine was upheld by the Supreme Court in the case of Moopil Nair vs. State of Kerala.

Reference : Enableall


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