School of Legal Studies

Internal Assignment 2

Constitutional Law - II

Submitted by: -
Name: Shashank S Katagar
SRN: R20BL031
Class: BBA LLB 4thSem
Topic: Union & State List and the Conflict between them
Introduction
The Chief characteristic features of Federal system of government is, the distribution of powers
between the Centre and States. In other words, the basic principle of federation is that the
legislative. executive and financial authority is divided between the Centre and the States.
Therefore, the Centre-State Relations for the purpose of research may be explained with
reference to the following heads:

1. Legislative Relations (Article 245-255)

2. Administrative Relations (Article 256-263)
3. Financial Relations (Article 264-293)

The research is done on the Legislative Relation mainly on the Union and State List provided
under the 7th Schedule of Indian Constitution.

1. Union List or List I- Union list or List-I is a list of 97 numbered items (after 101st
Constitutional amendment act 2016, entry 92 and 92c removed) (the last item is
numbered 97) given in 7th Schedule in the Constitution of India on which Parliament has
exclusive power to legislate. The legislative section is divided into three lists: the Union
List, State list and Concurrent List. Unlike the federal government of the United States,
Switzerland or Australia, residual powers remain with the union Government, as with the
Canadian federal government.
2. State List or List II- There are 66 items on this list wherein the Legislature of any State
has exclusive power to make laws for such State or any part of the State with respect to
any matters enumerated in List II.
3. Concurrent List or List III –It has 52 subjects enumerated under it. The concept of
‘Concurrent List’ in the Indian Constitution has been borrowed from the Constitution of
Australia. While both Central and State Government can legislate on subjects mentioned
under Concurrent List, however, in case of any conflict, the law made by the Central
Government prevails.

There are situations where conflict has been raised in matter of who has the power to make rules
related to that particular subject. The conflict mainly arises between union List and State List
because for Concurrent List if conflict arises the power of Union prevails. To solve this conflict
the ‘Doctrine of Pith & Substance’. The word 'Pith' means "true nature" or "essence" and the
word 'substance' means "the essential nature underlying a phenomenon". Thus, the expression
"pith and substance" collectively relates to find out the true nature of a particular statute. The
purpose of this doctrine is to decide, whether a State, while making a statute upon a subject
under the Union List, has acted within its rights/limits. In other words, the doctrine aims to
decide the legislative competence of the legislature (Central and State) which passed the law in
question. In order to ascertain the true character of the legislation, one must have regard to the
enactment as a whole, to its object and to the scope and effect of its provision.

Research Questions

1. What is the reason for distinction made in the Union and State List?

The distribution of powers is an essential feature of federalism. The object for which a
federal State is formed involves a division of authority between the National Government
and the separate States. The tendency of federalism to limit on every side the action of the
Government and to split up the strength of the State among co-ordinate and independent
authorities is especially noticeable, because it forms the essential distinction between a
federal system. and a unitary system of Government." A Federal Constitution establishes the
dual polity with the Union at the Centre and the States at a periphery, each endowed with
sovereign powers to be exercised in the field assigned to them respectively by the
Constitution ""The one is not subordinate to the other in its own field, the authority of one is
co-ordinate with that of the other". In fact, the basic principle of federation is that the
legislative, executive and financial authority is divided between the Centre and State not by
any law passed by the Centre but by Constitution itself. This is what Indian Constitution
does.

The Constitution of India makes two-fold distribution of legislative powers –

• With respect to territory

• With respect to subject-matter
The territory way of legislation is quite straight forward wherein the State and Central are
able to make laws with respect to their territory. This is given in Art 245(1) Extent of laws
made by Parliament and by the Legislatures of States

(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or
any part of the territory of India, and the Legislature of a State may make laws for the whole
or any part of the State.

The subject matter jurisdiction in making laws is given in 7th Schedule and Art 246 of the
Constitution which states “Subject matter of laws made by Parliament and by the
Legislatures of States

(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the Union List)

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the
Legislature of any State also, have power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this Constitution referred to as the
Concurrent List)”

The Union List: It originally had 97 subjects. Now, it has 100 subjects

Centre has exclusive powers to makes laws on the subjects mentioned under the Union List
of Indian Constitution. The Union List signifies the strong center as it has more subjects than
state list. It contains more important subjects than included in any of the other two lists.

The State List: It has 61 subjects. Earlier, it had 66 items. The laws can be made on the
subjects enumerated under the State List of the Indian Constitution exclusively by the State
legislatures. However, all these can be done only under ‘Normal Circumstances.’ In case of
Emergency, Request by 2 or more States, Resolution passed by Rajya Sabha and while
enforcing international agreements.

The segregation is made because of the introduction of delegated legislation and the
following reasons are effect for its growth:
1. Pressure on Parliamentary time. -Parliament being a busy body has insufficient time to
deal adequately with the increasing mass of legislation necessary to regulate affairs of a
complex modern State.

2. Technicality of subject-matter. -Technicalities of modern legislation require expertise

knowledge of problems which is not expected of the legislators in the Legislature which are
composed of politicians.

3. Opportunity for experimentation. -Delegated legislation is more flexible, easily amendable

and revokable than ordinary legislation. There is enough scope for experimentation.

4. Unforeseen contingencies. -Subordinate legislation enables a government to deal with

problems which could not be foreseen when the 'enabling Act was passed and to act quickly
in an emergency.

5. Emergency powers. -During the emergency quick and decisive action is necessary and at
the same time it is to be kept confidential. The Legislature is not fit to serve this end and
therefore the executive is delegated the power to make rules to deal with such situations.

These are some of the reasons due which the Union and State List are made in order to
distribute law making power between Centre and the State.

2. Whether the use of ‘Doctrine of Pith & Substance’ to resolve conflict between Union
& State is valid or not?

Although there are positive reasons for making the Union and State List but there are
situations wherein there is a clash between the Centre and State in order to make regarding
the subject matter specified in their respective lists. To solve this conflict the judiciary has
come with a doctrine called ‘Doctrine of Pith & Substance’.

The word 'Pith' means "true nature" or "essence" and the word 'substance' means "the
essential nature underlying a phenomenon". Thus, the expression "pith and substance"
collectively relates to find out the true nature of a particular statute. The purpose of this
doctrine is to decide, whether a State, while making a statute upon a subject under the Union
List, has acted within its rights/limits. In other words, the doctrine aims to decide the
 legislative competence of the legislature (Central and State) which passed the law in
question. In order to ascertain the true character of the legislation, one must have regard to
the enactment as a whole, to its object and to the scope and effect of its provision.

This doctrine has been used in many cases like

The Privy Council applied this doctrine in Profulla Kumar Mukherjee v Bank of Khulna1.

• In this case, the Bengal Money Lenders Act of 1946 enacted by the State Legislature was
challenged with the contention that parts of the legislation dealt with promissory notes; a
central subject.

• The Privy Council while upholding the validity of the impugned legislation stated that the
Bengal Money Lenders Act was in pith and substance a law relating to money lenders
and money lending – a state subject even though it incidentally trenches upon Promissory
note – a central subject.

In Kartar Singh v. the State of Punjab 2the Supreme Court’s Constitutional Bench explained
how the doctrine of pith and substance should be applied. It was discovered that when the
idea of pith and substance is applied, legislation relating to a topic in one of the lists may also
be connected, if indirectly, to a subject in another list. The essence and substance of the
legislation must be determined in such a case. If a comprehensive examination of the law
reveals that it is on a topic listed in a list pertaining to the legislature, the act in its whole is to
be deemed legal, regardless of any accidental encroachments that may exist.

When there is a question of legislative power, the courts must apply the theory of pith and
substance. The court analyses the statute’s subject matter to the subjects covered by the three
Lists, namely, the Union, the State, and the Concurrent List, and determines which of the
three lists would cover the law. If the statute is covered by the List that pertains to the
legislature in question, it is intra vires and hence lawful. However, if the enactment is
unconstitutional, it will be declared null and invalid.

Therefore, if there is no solution for the clash arising between Centre and State regarding the
legislative matters then there would many conflicts without any solid solution for them. Due

1
AIR 1947 PC 60
2
1961 AIR 1787
to which the Doctrine of Pith & Substance is important and has been effective which can be
inferred from many cases.

Conclusion

The conclusion that has been came through the research is that it is quite important to
demarcate the lawmaking responsibility between the Centre and State because it will ensure a
proper governance in the area and the Centre cannot always be held responsible to make laws
that are applicable in State. This is also important because the conditions of different States
are different and the Centre cannot take into consideration all the matters. The conflicts that
arise between Centre and State regarding the lawmaking power in India is solved by using
the ‘Doctrine of Pith & Substance’ and the use this doctrine has been quite useful which is
evident from several cases referred and this has effective enough to resolve the conflict.

Bibliography

Books

Dr. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA (58TH Ed, CENTRAL LAW

AGENCY, 2021)

Cases

• Profulla Kumar Mukherjee v Bank of Khulna AIR 1947 PC 60

• Kartar Singh v. the State of Punjab 1961 AIR 1787

Statutes

Constitution of India, 1950

Websites

https://www.manupatrafast.com (last visited 30 Apr)