BY V. P. KRISHNAN NAMBIAR, M.A., B.L.
(Advocate, Madras)
THE distribution of Legislative Powers between the
Union and the States in the Draft Constitution of India is dealt with in
Chapter I of IX and is covered by Articles 216–232.
Under Article 216, Parliament may make laws for the
whole or any part of the territory of India, and the Legislature may make laws
for the whole or any part of the State. No law of Parliament shall be invalid
because of its extra-territorial operation. Under Article 217, Parliament has
the exclusive power to make laws regarding the Union List, and for any part of
the territory of India not included for the time being in Part I of III of the
First Schedule. Both Parliament and State Legislatures can make laws on
subjects in the Concurrent List. The State Legislature alone can make laws
affecting matters in the State List, subject to the limitations in Article 217
(1) and (2). The control and Powers over the legislation affecting the constitution
and organisation of the Supreme Court is vested in Parliament, and the
Legislature of the State has the exclusive power to deal with matters affecting
the High Court, as also its jurisdiction, and the procedure to be followed in
Criminal and Civil matters. In any of the matters affecting the High Courts in
Parts II First Schedule (Delhi, Ajmer-Merwara, and Coorg), Parliament and also
the State Legislatures have the power to legislate. Under Article 223, matters
not enumerated in the Concurrent or State List are strictly within the
legislative ambit of Parliament and it shall extend to imposing a tax not
mentioned in either the Concurrent or State List.
Article 224 restricts the power of Parliament to
make laws with respect to certain matters regarding (a) Posts and Telegraphs in
any State or group of States which has not yet entered into an agreement with
the Government of India, (b) Telephones, Wireless and Broadcasting in the
Indian States in Part III – (First Schedule), except for their regulation and control,
(c) the incorporation, winding up and regulation of corporations in the States.
Under Article 225, the power of Parliament to legislate for the Indian States
in Part III (A) is subject to the limitation of the agreement between them and
the Government of India.
Article 226 gives power to Parliament to legislate
with respect to any matter in the State List on a resolution to that effect by
two-thirds of the members present, that it is expedient in the national
interest to do so. During a Proclamation of Emergency, Parliament has the power
to legislate for the whole of India in regard to any matter in the State List.
In the event of any repugnancy between the State Legislation and that of
Parliament, the latter shall prevail. Under Article 229, Parliament can
legislate for one or more States by consent on matters on which it has no power
to make laws for the States, and such an Act can be amended or repealed by the
State Legislature. Parliament can make laws for any State to implement any
treaty, engagement, or convention with another country. Under Article 231, in
case of inconsistency between the laws enacted by Parliament and those of the
State Legislature, the law made by Parliament shall prevail, except in regard
to matters in the Concurrent List, in which case the State legislation shall
prevail, if the same had been reserved for the consideration of the Governor
and received his assent. Article 232 removes any defect in legislation due to
technical flaws, as in the case of a want of recommendation by the Governor, if
he has subsequently given his assent, or that of the President, if he gives his
assent later.
The division of Legislative Powers between the
Centre and the Provinces has always been a vexed question in all Constitutions.
Its satisfactory solution has for long been evading leading students of
constitutional law. Dicey in his Law of the Constitution suggested four
tests to discover the distribution of powers between the Center and the States
Governments in a Federal State: (1) Whether it is the National Government
(Central Government) or the States to which belong only ‘definite powers’ i.e.,
the powers definitely assigned to it under the Constitution. (2) Whether
the enactment’s of the Federal Legislature can be nullified by any other authority
or tribunal, or treated as void. (3) To what extent the Federal Government can
control the legislation of separate States. (4) What is the nature of the body
(if such there be) to amend the Constitution.
In the Constitution of the U.S.A., the powers
conferred on the Central Government are strictly ‘definite’; those left to the
States are undefined and indefinite, with the result that the Central
Government cannot claim any power which is not expressly conferred by statute,
while the federating States could claim to exercise all powers of independent
States, which have not been expressly removed under the Constitution. So much
so, the Federal Legislation is subject to the Constitution and could be
challenged in Courts, as in the case of the State Legislation, if it were to
transgress the Constitution. No power is vested in the Federal Government to
disallow or annul the States Legislation. Amendment of the Constitution can be
effected only with the sanction of three-fourths of the States.
In the Dominion of Canada, the authority of the
Dominion Government is indefinite; that of the Provinces is circumscribed
within the narrowest limits. The legislative field of the Dominion Parliament
extends to all matters not exclusively assigned to the federating Units, while
the powers of the States Legislatures are restricted to subjects specifically
allotted to them. Both the Dominion and Provincial Legislation could be
nullified by a competent court in the event of their infringing the
Constitution. Acts passed by the States could be disallowed by the Dominion
Government. Before the Statute of West-minister, 1931, a modification of the
Constitution was possible only by an amendment of the British North America Act
of 1867, by an Act of the Imperial Parliament of the United Kingdom.
In Australia, the authority of the Federal
Government is limited; that of the component States, unlimited. The Legislation
of both is subject to the Constitution of the Commonwealth of Australia. The
Commonwealth Government is powerless to annul the State Legislation. Amendment
of the Constitution is permitted by a Bill to be passed to that effect by the
Commonwealth Parliament and approved by a majority of voting electors and of
the federating States. As in the case of Canada before 1931, the British
Parliament alone was competent to amend the Constitution. But the position has
changed after the Statute of Wesbn1nster.
In the Union of South Africa, under the Act of 1909
which constituted the Provinces into the Union, the Union Parliament possesses
un-limited powers of Legislation for the peace and good government of the
Union. The Legislative Powers of the Provinces are limited to (1) making
ordinances, (2) subjects specified in the Act and as subsequently amended, (3)
matters which the Union Parliament may delegate to them, and (4) all subjects
which in the opinion of the Union Government are purely local or of a private
character.
The Authors of the Draft Constitution of India did
not accept any one of the above Constitutions in its entirety. From the
analysis of the provisions enumerated above, it will be apparent that their
effort has been to build up a strong Centre in which should vest the Residuary
Powers, and the Provinces should have only such powers as are expressly
assigned to them in the Constitution Act. This is a departure from the
principle of decentralization, which culminated in the Provincial Autonomy of
1937. During the Round Table Conference (1930-33) the British India delegates
from predominantly Muslim areas like the North-West Frontier, the Punjab, Sind,
and Bengal pleaded that the Residuary Powers in the Indian Federation,
envisaged at the time, should vest in the Provinces and not with the Centre; on
the other hand, the delegates from Provinces like Madras, Bombay, U.P., Bihar
etc., where the Hindus are in a majority, pressed for the retention of those
powers with the Centre. The Joint Select Committee of Parliament on Indian
Constitutional Reforms tried to meet the demand of both, half-way; but in
effect the distribution of Legislative Powers was defective in many
particulars. The plan adopted in the White Paper of 1933, and subsequently
approved, was that the allocation of residuary legislative power should be left
to the discretion of the Governor-General and settled by him ad hoc on
each occasion when the need for legislation arose. Dealing with the inherent
difficulty of a clear scheme of allocation of powers, the Joint Select
Committee in their Report (Vol. I Part I) said: -
“……It will be observed that, for the purpose of
reducing the Residuary Powers to the smallest possible compass, the lists of
subjects dealt with in all the three Lists are necessarily of great length and
complexity: whereas, apart from the question of Concurrent List, if it had been
possible to allocate residuary legislative powers to, e.g., the
Provinces, only a List of Central Powers would have been required, with a
provision to the effect that the legislative powers of the Provinces extended
to all power, not expressly allocated to the Centre; and, conversely, if the
residue had been allocated to the Centre. This, broadly, is the plan which has
been adopted in Canada and Australia, the Residuary Powers being vested, in the
case of Canada, in the Dominion Legislature, and in the case of Australia, in
the Legislatures of the States. Even so, experience has unhappily shown that it
has been impossible to avoid much litigation on the question whether
legislation on a particular subject falls within the competence of one
legislature or the other…..On the point of constitutional substance it seems to
us that, if a choice were to be made between the two alternative principles to
which we have just drawn attention, the logical conclusion in the White Paper
would be the allocation of all Residuary Powers to the Provincial Legislatures;
but this solution would, we think, require to be accompanied by the insertion
in List of some general overriding power of Central legislation in matters of
all-India concern, since any new subject cannot be said to fall automatically
into the Provincial field, irrespective of its natural implications….
While therefore matters of a purely local nature
would fall within the provincial field of legislation, there would be cases
where the frontiers of the Provinces extend beyond their geographical
boundaries, e.g., (1) legislation affecting the Indian Codes which deal
with the main principles of law throughout the country and are of an all-India
character, (2) Labour legislation, (3) Legislation to combat epidemic diseases.
On such matters the Central Government can legislate concurrently with the
Provinces. The Authors of the Draft Constitution have drawn up three Lists, (1)
Union List, (2) State List, and (3) Concurrent List. This is at variance with
other Constitutions where the method adopted is to allocate exhaustively powers
to one Legislature, and to assign the entire unspecified residue to the other.
A statutory delimitation of legislative jurisdictions is capable of mischief,
because so far as the Concurrent List is concerned, there may be overlappings
which will have to be decided by a judicial tribunal. But there is danger the
other way too, in the enumeration of powers to the Centre and the allocation of
unspecified residue to the Provinces, which might involve a reservation to the
Central Government of an overriding power, and the possibility of the Provinces
assuming for themselves any unspecified sources of taxation to be devised
hereafter, such as provided under Article 223. The broad principle therefore is
that while the Centre should have a power of coordinating or unifying
regulation in the Concurrent List, if they have a closer semblance to the State
list than to the union List, they shall be administered mainly on lines of
Provincial policy. In the event of a conflict, the Union legislation shall
prevail as provided in Article 228. But an unqualified provision to that effect
would cut across the Provincial jurisdiction in the List, so as to throw
overboard the Provinces by an aggressive Centre.
Under Article 223, the Residuary Powers are
expressly vested in Parliament which is given exclusive power to make any law
with respect to any matter not enumerated in the Concurrent or State Lists.
Under Article 227, the power of Parliament to legislate for the whole of India
on any subject in the State List arises during a Proclamation of Emergency. It
shall be lawful for Parliament to make laws for the whole of India in the
national interest, under Article 226, on any subject in the State List if
agreed to by two-third members of the State Legislature. These are
all-embracing powers which the Authors have thought fit to confer on the Centre
to make it strong, and to guard against fissiparous tendencies among the States
so as to build up a powerful national Government. The attempt is indeed
laudable, but it is sought to be achieved at a high cost to the Provinces.
The main argument of the enthusiasts of a strong
Centre is that, in the face of the present uncertain state of affairs in India,
which is further complicated by the fluid international situation abroad, it is
only a Powerful Centre that can cope with the political situation. This would
necessarily involve the vesting of Residuary Powers with the Centre, as against
the Provinces, and these provisions should stand at least for some years, till
things settle down to normal. The contention is sound, especially if viewed
against the background of the defence of India, the protection of Indian
Nationals and their rights abroad, the food problem, and other industrial and
hydro-electric power projects in which the Government of India’s interests are
predominantly linked with those of the Provinces, and wherein the Centre alone
can give an effective lead. But even here, there are limits to such special
features: they are unusual events of a passing phase though their incidence may
be abnormal. To be obsessed with such eventualities as to deprive the Provinces
of a liberal field of Legislative Powers, and to arm the Centre with all the
powers may not be an ideal solution. Any subsequent amendment of the
Constitution to set right the uneven allocation, if an actual working it proves
defective, would be a difficult process. One of the main objections against the
Indian Federation envisaged under the Government of India Act 1935, was that
nearly 75 per cent of the revenues of India was reserved for the Federal
Center, and the Provinces were to share the small residue. An amendment of the
Constitution after the Act comes into force would be a laborious and thankless
task with uncertain results. Such amendments have been equally complicated in
other Constitutions. While therefore the anxiety of the Authors for a strong
Centre can be appreciated, especially to meet a grave emergency or an abnormal
crisis, the Provinces should not be made to depend on the mercy of the Union
Centre in regard to their Legislative Powers. It would be against the
principles of devolution and decentralisation which reached their acme in the
Provincial Autonomy of 1937. It will throw to the winds the healthy notion that
the Provinces are to be autonomous Units in a federal India, as visualised
earlier. The distribution of Legislative powers in the Draft Constitution
requires an equitable revision, so that the Provinces can be met half-way,
without the Centre losing its all-India role of an effective coordinating
authority.