Legislative relations

The Constitution is an organic living document. Its outlook and expressions as perceived and
expressed by the interpreters of the Constitution must be dynamic and keep pace with the
changing times. This Chapter has been classified as under-

1. Legislative Relations (Chapter I)

2. Administrative Relations (Chapter II)

3. Financial Relations (Part XII)

1. LEGISLATIVE RELATIONS (Articles 245 to 255)

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

(a) With respect to territorial jurisdiction, and

(b) With respect to subject-matter of legislation.

While Article 245, inter alia, indicates the extent of laws made by the Parliament and the
State Legislatures, Article 246 deals with subject-matter of laws made by the respective
Legislatures.8

A. TERRITORIAL JURISDICTION (Article 245)

As regards the territorial jurisdiction, Article 245 (1) provides: "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."

Doctrine of Territorial Nexus

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 be void if it is given extra-territorial
operation, i.e., it is applied to subjects or objects located outside the territory of that State.
However, many times the State laws having extra-territorial operation have been held valid.
It is done by the application of the "Doctrine of Territorial Nexus".

The doctrine was evolved by the Privy Council in Wallace Bros. and Co. Ltd. v. Income Tax
Commissioner, Bombay.¹ In this case, a company which was registered in England
appointed an agent in Bombay. Through that agent the company carried on its business
within the territory of India. In a year, the company out of its total profit of Rs. 2.4 million,
earned Rs. 1.7 million by carrying its business within the territory of India. The Indian Income
Tax Authorities sought to tax the entire income of the company. The company contended
that the Indian Income Tax Act, 1939 could not be applied to it as it was subject of the
English laws. The Privy Council however upheld the levy of tax by applying the "doctrine of
territorial nexus".
The doctrine explains that it is not essential that the object to which the law is applied should
be physically located within the boundaries of the State making the law. It is enough if there
is a sufficient territorial nexus between the object and the State making the law.2

The Supreme Court of India applied the doctrine in State of Bombay v. R.M.D.C.3 In this
case, the State of Bombay enacted the Bombay Lotteries and Prize Competitions (Control
and Tax) Act, 1948. The Act levied a tax on lotteries and prize competitions. The Act
amended in 1952 sought to tax prize competitions contained in newspapers. Tax was
imposed under this Act on the income of the respondent company, conducting a prize
competition (Crossword Puzzle) through a paper named "Sporting Star" printed and
published in Bangalore. The paper had wide circulation in the territory of Bombay. A large
number of people from the territory of Bombay subscribed to the Crossword Puzzle. Keeping
in view the number of subscribers, the respondent company opened its collecting booths
within the territory of Bombay, from where the forms for appearing in the crossword puzzle
were to be issued, fees collected and the results declared. The whole of the activity relating
to the Crossword Puzzle was thus completed within the territory of Bombay. Taking into
consideration these facts, the Supreme Court upheld the tax imposed on the company. The
Court held that there existed a sufficient territorial nexus to enable the Bombay State to tax
the respondent. For the application of the doctrine there must be-

(a) a sufficient nexus between the State making the law and 857

the object of law. The nexus must be real and not illusory; and

(b) the liability sought to be imposed must be pertinent to that connection.

The doctrine of territorial nexus is not confined to taxing statutes alone. It is equally
applicable to all kinds of legislations and the shallenge to the constitutionality of a legislation
must be tested by a reference to this principle. For instance, in State of Bihar v. Charusila
Das, the theory of territorial nexus was applied in respect of a public religious endowment.

Validation of Invalid Statute-Retrospectivity

It has been held that a State Legislature is competent to make a law, retrospectively or
prospectively, after coming into existence. Again, the Legislature is competent to pass an
amending or a validating Act, if deemed fit, w.r.t., removing the basis of the judgment. But,
rights accrued under it, can't be deprived.3

The primary object of retrospective application of a law is to alter an undesirable past

circumstance and it is meant to apply to things which have already happened. In general,
"the Courts regard as retrospective any State which operates on cases/facts coming into
existence before its commencement, in the sense that, it affects, even if for the future only,
the character or consequences of transactions previously entered into or of other past
conduct. "5 The underlying purpose is to cure, including, validate certain transactions of the
past by making a law in the present and not to compete with the laws existing in the past at
that point of time.

Parliamentary Law Having Extra-Territorial Operation Article 245 (2)]

Clause (2) of Article 245 declares that Union Parliament may make a law having extra-
territorial operation and such a law would not be void on the ground of having extra-territorial
operation.

The general principle underlying the Sovereignty of States is that laws made by one State
cannot have operation in another State. So said, the Apex Court held that a law, which had,
extra-territorial operation could not directly be enforced in another State, but such a law
would not be invalid and be Saved by

Article 245(2). In A.H. Wadia v. Income Tax Commissioner, it was held that in case of a
sovereign Legislature, the question of extra-territoriality of any enactment could never be
raised in the Municipal Courts as a ground for challenging its validity. The legislation might
offend the rules of International law, it might not be recognised by foreign courts or there
might be practical difficulties in enforcing them. These have been held to be questions of
policy

with which the domestic tribunals are not concerned. However, law having extra-territorial
operation must have nexus with India.¹

In Sondur Gopal v. Sondur Rajini, the question before the Division

Bench of the Apex Court related to application of The Hindu Marriage Act,

1955 to Hindus, residing out of India but having domicile in India. Holding that the parties,
being having domicile of origin in India, the Court said that they would continue to be
governed by the H.M. Act, 1955.

Explaining the scope of Clause (2) of Article 245, the Apex Court in ECIL case, observed :

...unless such nexus exists Parliament will have no competence to make the law... The
provocation for the law must be found within India itself. Such a law may have extra-
territorial operation in order to subserve the object, and that object must be related to
something in India.

The Court said that it would be inconceivable that a law should be made by Parliament in
India which had no relationship with anything in India.

The legislative competence of Parliament or of the State Legislatures, it is said, can only be
circumscribed by express provisions, contained in the Constitution itself and unless and until
there is any provision... expressly prohibiting legislation on the subject, either absolutely or
conditionally, there is no fetter on the plenary powers which the Legislative is endowed with,
for legislating on the topics enumerated in the relevant List.

DISTRIBUTION OF SUBJECT-MATTER OF LEGISLATION (Article 246)

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 the matters contained in the Concurrent List, both
Union Parliament and the State Legislatures are vested with concurrent powers of
legislation.

Entries in the Lists, are themselves, not powers of the legislation, but fields of 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,¹

The Union Parliament and every State Legislature have power to make laws with respect to
any of the matters which fall within their fieldake legislation under Article 246 read with
Seventh Schedule of the Constitution It extends to enacting legislation, both with prospective
and retrospection effect. There is a well defined distribution of legislative powers contained
in Part XI of the Constitution.3

In H.S. Yadav v. Shakuntala Devi Parakh, Section 13(2) of the Chhattisgarh Rent Control
Act, 2012, which provided appeal against orders of the Rent Control Tribunal directly to the
Supreme Court, was struck down as ultra vires the Constitution and beyond the legislative
competence of the State Legislature. The Court read out Entry 77 of List 1,5 Entry 65 of List
II Entry 46 of List III of the Seventh Schedule of the Constitution as also the law laid down in
L. Chandra v. Union of India, and held the impugned provision as entrenching upon the
jurisdiction and legislative competence of the Union Parliament.

However, the legislative function consists in "making" law and not in "declaring law", i.e.,
what the law shall be, which function is vested with the Supreme Court under Article 141.
The Legislature may make laws retrospectively, so as to alter the law, as it stood when a
decision was arrived at, but, it is not at liberty to annual judgments of Courts.

The Supreme Court in S.T. Sadiq v. State of Kerala, 10 ruled :

It is settled by a catena of decision of this Court, that the Legislature cannot directly annul a
judgment of a Court... If the Legislature were at liberty to annual judgments of Courts, the
ghost of bills of attainder, will re-visit us to enable Legislatures, to pass legislative judgments
on matters which are inter-parties....a Legislature may alter the very basis of a decision.. and
if an appeal or other proceeding be pending, enable the Court to apply the law
retrospectively... so made, which would then the very basis of the earlier decision, so that it
would no longer hold good.

In Keshavlal Khemchand & Sons v. Union of India,¹ the validity of Sec. 2(1)(o) of the
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002, which delegated power, to prescribe norms, for classifying borrower's account, as
non-performing asset to an expert body, in the field occupied by the Statute. Holding that the
Act did not delegate essential legislative function, the Apex Court ruled that defining every
expression in the Statute did not constitute "essential legislative function". The Court, further,
said that expounding meaning of undefined expressions in a Statute, was the duty of the
Courts.
The Constitution gives autonomy to the Centre and the States within their respective fields.
Therefore, a legislation by one of the States cannot be held to be discriminatory or suffering
from the vice of hostile discrimination as against its citizens simply because the Parliament
or the Legislatures of other States have not chosen to enact similar laws.3

It has, however been held that no infringement of the Basic Structure would be acceptable. It
has been ruled by a Constitution Bench of the Supreme Court in Madras Bar Association v.
Union of India, that "the Basic Structure of the Constitution is inviolable and it would apply to
all other legislations (other than amendments to the Constitution) as well, even though the
legislation had been enacted by following the prescribed procedure, and was within the
domain of the enacting Legislature."

A Constitutional Bench of the Apex Court in State of M.P. v. G.C. Mandawar,5 held that two
laws enacted by two different Governments and by two different Legislatures could be read
neither in conjunction nor by comparison for the purpose of finding out if they were
discriminatory. It was further said that Article 14 did not authorize the striking down of a law
of one State on the ground that in contrast with a law of another State on the same subject,
its provisions were discriminatory. Thus, when the sources of authority for the two Statutes
are different, Article 14 can have no application.6

Establishment of Additional Courts (Article 247)

Article 247 empowers Union Parliament to make laws for the establishment of additional
Courts, for the better administration of laws/existing laws, with respect to matters
enumerated in the Union List. Article 247 is reproduced below-

247. Power of Parliament to provide for the establishment of certain additional Courts.
Notwithstanding anything in this chapter, Parliament may by law provide for the
establishment of any Cadditional Courts for the better administration of laws made by
Parliament or of any existing laws with respect to a matter enumerated in the Union List.

Special Provisions with Respect to Goods and Services Tax (Article 246-A)

Article 246-A inserted by the Constitution (One Hundred and First Amendment) Act, 2016,¹
empowers both the Union Parliament and the State Legislatures, to make laws with respect
to the Goods and Services Tax. However, Parliament is vested with exclusive power to such
tax, where both or either the supply of goods or of services, takes place, in the course of
inter-State trade or commerce. Article 246-A is reproduced below-

"246A. Special provision with respect to goods and services tax. (1) Notwithstanding
anything contained in Articles 246 and 254, Parliament and, subject to clause (2), the
Legislature of every State, have power to make laws with respect to goods and services tax
imposed by the Union or by such State.

(2) Parliament has exclusive power to make laws with respect to goods and services tax
where the supply of goods, or of services, or both takes place in the course of inter-State
trade or commerce.
Explanation. The provisions of this article shall in respect of goods and services tax referred
to in clause (5) of Article 279A, take effect from the date recommended by the Goods and
Services Tax Council.

Principles of Interpretation

The distribution of subject-matter cannot be claimed to be scientifically perfect and there

happens to be overlappings 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. For that, the Courts apply various principles of interpretation. Some
of these are discussed below-

(1) Presumption of Constitutionality

Judicial system, in our body polity, has an important role to play and has a solemn obligation
to fulfil. In such circumstance, it is held that, while examining the challenge to the
constitutionality of an enactment, it is imperative upon the Courts to be conscious to start
with the presumption regarding the constitutional validity of the legislation. 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 should strike
down the enactment only when it is not possible to sustain it. Further, that the burden of
proof is upon the shoulders of the incumbent who challenges it.2

Referring to Article 246, the Apex Court in Binoy Viswam v. Union of India, held that it was
the prerogative of the Parliament, to make a particular provision, directory in one Statute and
mandatory in other. For instance, while Section 139-AA of the Income Tax Act, 1961 makes
Aadhar mandatory and the Aadhar (Targeted Benefits and Services) Act, 2016 makes it
directory.

(2) Each Entry to be Interpreted Broadly

The various Entries in the three Lists are legislative heads defining the fields of legislation
and should be liberally and widely interpreted. The rule requires that each "Entry" in any of
the Lists in the Seventh Schedule, should be given widest possible and most liberal
interpretation.5

The express words employed in an "Entry" would necessarily include incidental and ancillary
matters so as to make the legislation effective. It has been held to be a fundamental principle
of Constitutional Law that

everything necessary to the exercise of power is included in the grant of power. In Jitubhai
Nanbhai Khachar v. State of Gujarat, the Supreme Court held:

It is settled law of interpretation that entries in the Seventh Schedule are not powers, but
fields of legislation. The Legislature derives its power from Article 246 and other related
Articles of the Constitution. Therefore, the power to make the Amendment Act is derived not
from the respective entries but under Article 246....
The language of the respective entries should be given widest scope of their meaning, fairly
capable to meet the machinery of the

Government settled by the Constitution.... When the vires of an enactment is impugned,

there is an initial presumption of its constitutionality....

It must be remembered that we are interpreting the Constitution and when the Court is called
upon to interpret the Constitution, it must not be construed in any narrow or pedantic sense
and adopt such construction, which must be beneficial to the amplitude of legislature power.

The broad and liberal spirit should inspire those, whose duty is to interpret the Constitution,
to find whether the impugned Act is relatable to any entry in the relevant List.

A five-Judge Constitution Bench of the Supreme Court in State of W.B. v. Committee for
Protection of Democratic Rights, West Bengal, sald that the Constitution "is a living and
organic document". It cannot remaid static and must grow with the Nation. The Constitutional
provisions, the Court said, have to be construed broadly and liberally having regard to the
changed circumstances and the needs of time and polity.?

Any power granted by the Constitution for a specific purpose, it is ruled, should be construed
liberally, so that the object for which the power is granted, is effectively achieved.3

2 In Union of India v. H.S. Dhillon, a Constitution Bench of the

Supreme Court held that in case of Central legislation, the proper test was to enquire
whether the matter fell in the State List or Concurrent List. Once it was found that the matter
did not fall under the State List, then the Court held that Parliament would be competent to
legislate on it under its residuary powers under Entry 97 of Union List. In such a case, it
would be immaterial whether it fell under Entries 1 to 96 of List I or not.

The Apex Court ruled that the judicial opinion was for giving a large and liberal interpretation
to the scope of the Entries.6

However, the Court must not interpret an Entry in favour of the Centre by resorting to its
residuary power as a general rule."

Again, once the impugned State enactment is within the four corners of an Entry in List II, no
Central law whether made with reference to an entry in List I or with reference to an entry in
List III, can affect the validity of such State enactment. It has been held that the argument of
occupied field is totally out of place in such a context. The concept of occupied field has
been held to be relevant in the case of laws made with reference to entries in List III.8

(3) Doctrine of Pith and Substance

Many times, a law passed by a Legislature with respect to a matter, within its legislative
competence, encroaches upon another matter, outside its competence. In such a case, the
question with regard to the constitutionality of the law is to be determined by applying the
doctrine of pith and substance. The doctrine is applied when the legislative competence of a
Legislature with regard to a particular enactment is challenged with reference to the Entries
in various Lists.

The doctrine flows from the words "with respect to" in Article 246. It requires that "in such a
case of encroachment, the law should be read as a whole and not as a collection of sections
or clauses, for determining the true nature and character of the law, i.e., the pith and
substance of the law. If after such an enquiry, it is found that the pith and substance of the
law, pertains to the matter within the competence of the Legislature making the law, then the
law would be constitutional, even though it incidentally trenches on matters not within the
competence of the Legislature."

The doctrine explains that if an enactment substantially falls within the powers expressly
conferred by the Constitution upon the Legislature which enacted it, it cannot be held to be
invalid, merely because it incidentally encroaches on matters assigned to another
Legislature. Incidental touching is therefore permissible if in pith and substance, legislation is
within competence. To say differently, incidental encroachment, is not altogether forbidden.

The doctrine was applied by the Privy Council in Profulla Kumar Mukerjee v. Bank of
Commerce, Khulna." In this case, the Bengal Money Lender Act, 1946 fixed the maximum
rate of interest and the maximum amount of interest, which could be recovered by a money-
lender from his debtor. The Privy Council applied the doctrine of pith and substance and held
that the Act was, in pith and substance, a law in respect of "money lending" and "money-
lenders"-a State subject, and was valid, even though it incidentally trenched on "promissory
notes", a Central subject.

In State of Bombay v. F.N. Balsara, the Bombay Prohibition Act, 1950 imposed a ban on the
manufacture, production, carriage, consumption or use of intoxicating liquors within the
territory territory of Bombay. The Act was enacted by the Bombay Legislature with respect to
Entry 8 of List II, which provided "intoxicating liquors, their manufacture, production,
possession, purchase, transport or sale, etc." The Act was challenged on the ground, inter
alia, that it encroached upon "import and export of liquors", a matter contained in Entry 41 of
List I, and, therefore, was beyond the competence of the State Legislature. The Supreme
Court, however, held the Act valid.

Applying the doctrine of pith and substance, the Court held that the real purpose and object
of the impugned law pertained to the State Entry, even though the Act incidentally
encroached upon the matter within the competence of Parliament.¹

(4) Doctrine of Colourable Legislation

Many times, a Legislature makes a law with respect to a matter outside its legislative
competence by giving to the legislation a different colour so as to bring it within its
competence. In such cases, the Courts apply the doctrine of "pith and substance" in order to
determine the true nature, character or the real pith and substance of the law. If after such
investigation, it is found that the pith and substance of the law pertains to a matter outside
the legislative competence of the Legislature enacting the law, then the law would be held
invalid and the different colour given to that law would not protect it.2
The doctrine of colourable legislation is based upon the maxim "you cannot do indirectly
what you cannot do directly". "Colourable legislation" simply means a legislation which, while
transgressing constitutional limitation, is made to appear as if it were quite constitutional.
The transgression being veiled by what appears on proper examination to be a mere
pretence or disguise. It is a law which is pretended to be in exercise of undoubted powers,
but which is, in fact, a law on a prohibited field.

When a Court says that a particular legislation is a colourable one, it means that the
Legislature has transgressed its legislative powers in a covert or indirect manner, that it
adopts a device to overstep the limits of its powers. The Legislature cannot violate the
constitutional prohibition by employing an indirect method.

v. Drexel Furniture Co., an American case, is the most appropriate example to explain the
application of the doctrine of colourable legislation. Under American Constitution, the
Congress is vested with broad powers of taxation while the regulation of labour is exclusively
a State function. With the object to prohibit the employment of children below the age of 14,
the Congress enacted the Child Labour Tax Law, 1919, imposing a tax of 10% on the net
profit of the year, upon an employer who knowingly, during any operation of the taxable
period, employed children within that age limit. The tax was to be paid by the employer in full
measure whether he employed 500 children for a year or employed only one for a day. The
Supreme Court of America struck down the Law and held that it was not a valid exercise by
Congress of the power of taxation. The case was one in which the Congress exercised the
power of regulation of labour by imposing a tax by way of penalty in order to prevent the
employment of children and thus by exercising the powers which it possessed, i.e., of
taxation, the congree tried to regulate a subject over which it had no jurisdiction.

The Supreme Court in K.C. Gajapati Narayan Deo v. State of Orissa,¹ explained the
meaning and the scope of the "doctrine of colourable legislation". The Court said that while
conferring powers on the Legislatures, the Constitution imposed certain restrictions and
prohibitions. The Constitution prohibits any transgression by a Legislature of the limits of its
constitutional powers. The Court explained further : Such a transgression may be patent,
manifest, or direct, but it may also be disguised, covert, or indirect and it is to this latter class
of cases that the expression colourable legislation has been applied in judicial
pronouncements. In S.S. Bola v. B.D. Sardana, the Supreme Court said that colourable
legislation had reference only to the legislative competence and not to the power as such.
Learned Justice K. Ramaswamy further distinguished between the doctrines of "fraud on
power" and "fraud on Constitution". While the former meant that the Legislature had the
power but it did not exercise it, the latter meant that when the Legislature had no power and
in spite of the constitutional limitation or prohibition, it made enactment in pretence of its
power. In K.T. Moopil Nair v. State of Kerala, the Travancore Cochin Land Tax Act, 1955,
was challenged as a colourable piece of legislation. The Act imposed land tax at uniform rate
of Rs. 2 per acre on all lands irrespective of the quality of the land. A land owner was to pay
the tax at the prescribed rate whether his land was fertile or banjar or whether he had huge
income from the land or no income. The non-payment of the tax was made punishable and
for that the land of the person could be confiscated. The appellant who was having an
income of Rs. 3100/- in an year was held liable to pay Rs. 54000/- under the operative
provisions. The Supreme Court struck down the Act and held that it was confiscatory in
character and that the Legislature had merely adopted a device and a cloak to confiscate the
property of the citizens taxed, without paying compensation.4 The doctrine does not involve
any question of bona fide or mala fide, on the part of the Legislature. The whole doctrine
revolves itself, the question of competency of a particular Legislature to enact a particular
law. If the Legislature is competent to pass a particular law, the motives which impelled it to
act, are really inconsequential, unless they, in the amended incarnation invite the frown of
any Article of the Constitution.5 The motive for making an Act is not justiceable before a
Court.

Doctrine of Incidental and Ancillary Powers The doctrine explains that when a Legislature is
given plenary power 867 to legislate on a particular subject there must also be an implied
popower make laws incidental to the exercise of such power. Expressions power to mnd
'ancillary' powers mean the powers which are required to be exercised for the proper and
effective exercise of legislative powers expressly correcised It has been held that in
interpreting the scope of legislative poweferred. widest meaning must be given to the words
used. The doctrine can be invoked only in aid of the main topic of legislation. Therefore, the
provision of the Hyderabad General Sales Tax Act, that even if the moneys were collected
by the seller "otherwise than as a tax" they should be handed over to the Government, was
void inasmuch as there was no warrant for collection as tax of that which was not a tax.3 In
S.S. Bola v. B.D. Sardana, it was said that the Court had founded the principle to relieve a
Statute from its invalidity or unconstitutionality. Explaining the rule, Justice K. Ramaswamy
observed: "The doctrine of incidental or ancillary power is founded upon the principle that on
the face of the Constitution, the legislative subject falls both in the Union as well as the State
lists, but on a careful scrutiny of the subject of enactment, it becomes clear that it falls
merely incidentally in one list, but substantially in another list." The doctrine would be applied
when there has been merely incidental encroachment on the Federal/State power of the
respective Legislature in the respective lists, but such incidental encroachment does not
affect the main scheme of the distribution of the powers in the Seventh Schedule. A five-
Judge Constitution Bench of the Supreme Court in Association of Natural Gas v. Union of
India, explained: Although Parliament cannot legislate on any of the Entries in the State List,
it may do so incidentally while essentially dealing with the subject coming within the purview
of the Union List. Conversely, State Legislature also while making legislation may
incidentally trench upon the subject covered in the Union List. Such incidental encroachment
in either event need not make the legislation ultra vires of the Constitution.... (6) Rule of
Harmonious Construction It has been held to be the duty of the Courts to harmoniously
construe different provisions of any Statute, Rule or Regulation, if possible, and to sustain
the same rather than striking down the provision outright. The rule of harmonious
construction is invoked in cases where there is found to be some ambiguity in provisions of a
Statute, or that of the Constitution. Or, where the provisions of a Statute seem to be
inconsistent or repugnant with each other. In such a case, the rule requires the Court,
interpreting the provisions of the Statute, to so interpret these provisions that all the
provisions survive in harmony with each other. In M.S.M. Sharma v. Sri Krishna Sinha,
Article 19(1)(a) which guarantees the fundamental right to expression and publication was
found to be inconsistent with Article 194(3), which secures a Legislature to prohibit the
publication of its proceedings, or papers, etc. Applying the rule of harmonious construction,
the Court ruled that the House of the Legislature had power to expunge a portion of its
proceedings or speech of its members and the right under Article 19(1)(a) did not extend to
publish that portion of the proceedings/speech that was ordered to be expunged. The Court
said that the effect in law of the order of the Speaker to expunge a portion of the speech of
the member might be as if that portion had not been spoken. Repugnancy Between a Union
Law and a State Law (Article 254) Article 254 (1) provides: "If any provision of a Law made
by the Legislature of a State is repugnant to any provision of a law made by Parliament
which Parliament is competent to enact, or to any provision of an existing law with respect to
one of the matters enumerated in the Concurrent List, then, subject to the provisions of
Clause (2), the law made by Parliament, whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the extent of repugnancy, be void". Article 254
(1) enumerates the rule that in the event of a conflict between a Union and State law, the
former prevails. The Union law may have been enacted prior to the State law or subsequent
to the State Law, It thus maintains Parliamentary supremacy in matters falling under List I or
III.4 Article 254(1), which bestows primacy to the Central Law over the State Law, on a
demonstrable conflict between them, enacts the doctrine of occupied field.5 The expression
"existing law" means a law made before the commencement of the Constitution by any
Legislature, authority, or person having power to make such law. Repugnancy Between
State and Central Law-When Arises The question of repugnancy between the Parliamentary
legislation and State legislation, the Apex Court said, arises in two ways-

First, where the two legislations, though enacted with respect to matters in their allotted
spheres, overlap and conflict. Second, where the two legislations are with respect to matters
in the Concurrent List and there is a conflict. In both the situations, the Apex Court ruled,¹ the
Parliamentary legislation will predominate, in the first, by virtue of non-obstante clause in
Article 246 (1); in the second, by reason of Article 254(1). It is ruled in Kalyani Mathivanan v.
K.V. Jeyaraj, that State legislation, if in conflict with subordinate legislation, made by the
Central legislation, would be held to be repugnant and thus inoperative, within the meaning
of Article 254. The concept of repugnancy is meant to prevent the operation of, two
conflicting laws, on the same field, so as to result into uncertainty and inconsistency. The
Constitution provides for univocal and unambiguous solution, in the form of Article 254,
which makes it clear that in such circumstances, the law made by the Parliament, ought to
prevail and the subjects would be governed by it.3 Test of Repugnancy It is well settled that
repugnancy under Article 254 arises when both laws pertain to a matter in List III.4 The
Supreme Court in Deep Chand v. State of Uttar Pradesh,5 laid down the following tests for
determining the repugnancy between the Union Law and a State Law- (a) There may be
inconsistency in the actual terms of the two Statutes, i.e., when one says "do" and the other
says "do not". (b) When both the State and the Union Laws seek to exercise their powers
over the same subject-matter, and not where they deal with separate and distinct matter,
though of a cognate and allied character." (c) Though, there may be no direct conflict, a
State Law will be inoperative because the Union Law is intended to be a complete,
exhaustive code.s In the instant case, the validity of the U.P. Transport Services
Development Act, 1955 was challenged as void under Article 254 (1). The Act was enacted
by the State Legislature authorising the Government to make a scheme for nationalisation of
Motor Transport business in the State. The law was necessitated because the Motor
Vehicles Act, 1939, did not contain any provision for the nationalisation of Motor Transport
services. Subsequent to the State law, in 1956, with a view to introduce a uniform law,
Parliament enacted the Motor Vehicles (Amendment) Act, 1956, amending the Act of 1939,
enabling the State Governments to frame rules for nationalisation of Motor Transport
business. The Supreme Court held that since both the Union Law and the State Law
occupied the same field, the State law was void to the extent of repugnancy to the Union
law.¹ Repugnancy arises when two enactments, both within the competence of the two
Legislatures, collide and when the Constitution, expressly or by necessary implication,
provides that the enactment of one Legislature has superiority over the other, than to the
extent of the repugnancy, the one supersedes the other.2 Where the Central law and the
State law have been enacted with the same object but the Central Law is not extended to a
particular subject, there would be no repugnancy between the two Laws as regards the
subject of Law regulated under the State Law.3 There would also be no repugnancy if both
the provisions can co-exist without any conflict. For instance, in Bharat Hydro Power Corpn.
Ltd. v. State of Assam, the Bharat Hydro Power Corporation Limited (Acquisition and
Transfer of Undertaking) Act, 1997, the State Act, provided for acquisition of the undertaking
while Electricity Act, 1910 and the Electricity (Supply) Act, 1948, the Central Acts, made
provisions for supply and use of electricity. Since, the Acts did not occupy the same field,
there being not even a semblance of conflict what to talk of direct conflict between the
impugned State Act and the Central Acts, there was held to be no repugnancy, as the Acts
operated in two different fields, could operate simultaneously, without encroaching upon
each other's field. In Colin Howard's Australian Federal Constitutional Law, 2nd Edn, the
author while describing the nature of inconsistency between the two enactments, observed":
An obvious inconsistency arises when the two enactments produce different legal results
when applied to the same facts. Where the objects, purpose and provisions of the two
enactments are entirely different, there would be no repugnancy.

Where under the Union Law the Central Government could only fix a minimum price of
sugarcane and under the State Law, the State Government had fixed higher price of
sugarcane, it was ruled that there would be no occasion for any inconsistency or repugnance
as it was possible for both the provisions to operate simultaneously and to comply with both
of them.¹ Likewise, levy of additional tax on vehicles under the State law, would not result in
repugnancy with the Central law and the field remaining unoccupied, there is no need to
seek assent of the President under Article 254(2).2 871 As regards the concurrent matters, a
law enacted by the State Legislature shall stand impliedly repealed if repugnant to a law
enacted by Parliament. Further, Executive Power of the State extends to matters with
respect to which the Legislature of the State has power to make laws. Proviso to Article 162
further provides that with respect to concurrent matters, the Executive Power of the State
shall be subject to and limited by the Executive Power expressly conferred by the
Constitution or by any law made by the Parliament, upon the Union or authorities thereof. It,
therefore, follows that if the State Legislature has no power to legislate on any aspect, the
State Government would have no power to issue an executive order in respect of that
aspect. Extra-Territorial Operation-Subordinate Legislation A seven-Judge Bench of the
Supreme Court in Bengal Immunity Co. v. State of Bihar, said that the expression "extra-
territorial operation" was used in two different senses: first, laws regarding acts or events,
which take place inside the State but have operation outside; second, laws with reference to
the nationals of a State, in respect of their acts outside. In the former sense, the laws are
strictly speaking intra-territorial though loosely termed "extra-territorial" 6 In the second
sense laws have reference to laws of the State for their nationals in respect of acts done
outside the State." Beneficial Legislation The Legal Services Authorities Act, 1987 provides
for setting up of Permanent Lok Adalats, vesting these adjudicatory power to ensure speedy,
efficacious and expeditions disposal of the disputes and the exclusion of application of
C.P.C., 1908 and the Evidence Act, 1872, makes the mechanism simplified, which is further
aimed to ensure of providing equitious relief and justice to the aggrieved party and not to
drag the litigant into the arduous Lomplexities of legal technicalities. The putting up of cap to
the extent of Rs. 10,00,000 as pecuniary jurisdiction vested upon the P.L.A., is held
indicative that the award passed by the PLA is beneficial legislation.¹ Repugnancy Arises-
When the Laws are Made In State of Kerala v. M/s. Mar Appraem Kuri Co. Ltd., a
Constitution Bench of the S.C. headed by the then Chief Justice of India Hon'ble Justice
S.H. Kapadia, said that the repugnancy between the Union and the State laws arises on
making of the laws and not on commencement of the law. Distinguishing between "the
making of laws" and the commencement or enforcement of laws, the Court ruled that "a Bill
becomes an Act and comes on the Statute Book, immediately on receiving the assent of the
President or the Governor, as the case may be, which assent has got to be published in the
Official Gazette". That merely because the Legislature had postpond the enforcement of the
Act, it did not mean that the law had not been made, the Court said. Referring to the
definition of the expression "laws in force" in Article 13(3)(b), and Article 372(3), the Court
said the argument that 'a law could not be said to be made for the purposes of Article 254
unless it was enforced', stood demolished. So ruled, the Court held that the Kerala Chitties
Act, 1975, became void on making of Chit Funds Act, 1982 (a Central Law) covering the
entire field with regard to conduct of chits, notwithstanding the fact that the Central Act, 1982
was not enforced in the State of Kerala. In the instant case, the Kerala Chitties Act, 1975 did
not cover the private chitty firms by registering themselves outsides the State but were
operating in the State of Kerala. To bring these chitty firms under regulation of the Kerala
Chitties Act, 1975, the Finance Act 7 of 2002 inserted Sub-section 1(a) in Section 4 of the
Act 1975. The said amendment brought the chitties registered outside Kerala, having 25% or
more of its subscribers normally residing in the State, within the ambit of the Act, 1975.
While on 19-8-1982, the Parliament enacted the Central Act with intention that it was to
occupy the entire field relating to Chits, under Entry of list III. On account of repugnancy as
enshrined in Article 254(1), the Kerala Chitties Act, 1975, was held to have become void and
stood impliedly repealed. The Kerala Legislature, could not have enacted the Act, 2002
inserting Section 4(1a) into the Act, 1975, particularly on the failure of the State in obtaining
Presidential assent under Article 254(2), the Apex Curt ruled. Exception [Article 254 (2)]
Clause (2) of Article 254 contains an exception to the rule of repugnancy contained in Article
254 (1). The Clause (2) provides: "Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the Concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an existing law with
respect to that anatter, then, the law so made by the Legislature of such State shall, if it has
man reserved for the consideration of the President and has received his assent, prevail in
that State". 873 Article 254, undoubtedly, contemplates co-existence of Union and State
laws, even if repugnant, but only, after the repugnancy, is assented to by the President.
Article 254, it is said, is a manifestation of decentralized the making and recognition of the
competency of the State Legislature to modulate dispensation, as may be expedient to that
State, upon seeking Presidential assent for such deviation.¹ Clause (2) of Article 254
provides for curing of repugnancy which would otherwise invalidate a State law which is
inconsistent with a Union law or an existing law. A law so enacted, cannot be challenged on
the plea that it lacks legislative competence. In order that the State law should prevail in that
State, the following conditions must be satisfied² (i) there must be in existence a Union law;
(ii) subsequent to the Union law, the State Legislature enacts a law with respect to a matter
in the Concurrent List; and (iii) the State law having been reserved for the consideration of
the President, has received his assent thereto.3 Once the Bill is reserved by the Governor
for consideration of the President, it is for the President to give or withhold assent to the Bill.
When the President has assented to the Bill, the requirement of Article 201 are fulfilled and
validity of the assent by the President, is non- justiciable. Explaining the nature and scope of
the Presidential assent under Article 254(2), a Constitution Bench of the Supreme Court in
Gram Panchayat of Village Jamalpur v. Malwinder Singh, observed: the assent of the
President is not an empty formality and the President has to be appraised of the reason why
his assent in sought. If the assent is sought, for a specific purpose, the efficacy of assent
would be limited to that purpose and cannot be extended beyond it. The proposition laid
down in the above cited case was further elucidated explained by another Constitution
Bench of the Apex Court in and Kaiser-I-Hind Pvt. Ltd. v. N.T.C. (Maharashtra North) Ltd. In
Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation Ltd., a Constitution Bench of the
Supreme Court explained that the State [ Chap. 26 Government before obtaining the assent
of the President under Article 254(2), had to point out that the State law was in respect to
one of the matters enumerated in the Concurrent List and that it contained provision or
provisions, repugnant to the law made by the Parliament or existing law. The Court further
held that the words "reserved for consideration" in Article 254(2), would definitely indicate
that there should be active application of mind by the President to the repugnancy pointed
out and the necessity of having such a law in facts and circumstances of the matter. The use
of the word "assent" in Article 254(2), further reaffirmed that Clause (2) of Article 254,
implied knowledge of the President to the repugnancy between the State Law and the earlier
Law made by the Parliament on the same subject-matter and the reasons for the grant of
such assent.¹ The word "assent" in Clause (2) of Article 254, the Apex Court said, would, in
context, mean, express agreement of mind to what is proposed by the State. Therefore, the
President has to be apprised of the reasons, at least, as to why his assent is being sought,
the need or necessity and justification or otherwise for claiming predominance for the State
law concerned. This itself would postulate an obligation to enumerate or specify and
illustrate the particular Central law or provision with reference to which the predominance is
desired.3 It has been held that the power exercised by the President under Article 254(2) is
a special constituent power vested with the Head of the Union, as the protector and defender
of the Constitution and the safety valve to safeguard the Fundamental Rights and the
Federal Structure of the country's polity. The power exercised by the President is a part of
legislative procedure. A Subsequent Union Law [Proviso to Article 254 (2)] It is an exception
to Article 254 (2). It provides that "nothing in this clause shall prevent Parliament from
enacting at any time any law with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the Legislature of the State". It lays
down that Parliament may again supersede State Legislation which has been assented to by
the President under Clause (2) of Article 254, by making a law on the same matter. Thus, a
law enacted by the Parliament subsequent to the State law, would prevail over the State law
if the State law is repugnant to the subsequent Union law. The case of Zaverbhai v. State of
Bombay is an illustration a explaining the operation of the Proviso to Article 254 (2). In 1946,
the Central Legislature passed the Essential Supplies (Temporary Powers) Act, 1946.

Section 4 of the act provides penalties for contravention of orders made under Section 3 of
the three year State of Bombay considering that the made punishment of three years
imprisonment was not adequate for offences pummitted under ththe puninacted the Bombay
Amendment of the Law in 1947 and enhanced the punishment to imprisonment for a term
whichaw in extend to 7 years but shall not, except for reasons to be recorded in could be
less than six months and would also be liable to fine. The Bombayting, baving been passed
by its Legislature was reserved for the consideratio Act hne Governor General and obtained
his assent thereto. The Bombay Act ca of thto operation in the Province of Bombay as a
result of the provisions Contained in Section 107 of the Government of India Act, 1935.
Subsequent to the Bombay Act, amendments were made to the Central Act of 1946 the
years 1948, 1949 and 1950. The amendment made in 1950 substituted a new Section for
the original Section 7 of the Act. Under the new Secuted 7 offences under the Act were
grouped under three categories and tion punishments to be imposed in these categories
were separately specified. The Supreme Court held the Bombay Law void and laid down that
the Central law as amended in 1950 was a comprehensive code covering the entire field of
punishment for offences under the Act, graded according to the community and character of
the offence. The Court further held that the Bombay Act of 1947 was impliedly repealed by
Section 7 of the Essential Supplies Powers) Act, 1946 as amended in 1950. (Temporary
Powers) Act, State Law complementary to/in Aid of Union Law In M. Karunanidhi v. Union of
India, the appellant, a former Chief Minister of the State of Tamil Nadu, was prosecuted
under the I.P.C. and the Prevention of Corruption Act, 1947 on the charge of having abused
his official position in the matter of purchase of wheat from Punjab. While the prosecution
was pending, the Tamil Nadu Public Men (Criminal Misconduct) Act, 1974 was enacted with
the consent of the President and thus the Act came into force under Article 254 (2).
However, the State Act was repealed with the consent of the President and the prosecution
against the appellant were taken under the I.P.C. and the Prevention of Corruption Act,
1947. The petitioner challenged his prosecution and contended that on the enactment of the
State Act, the I.P.C. and the Prevention of Corruption Act, 1947 being repugnant to the State
Act became void under Article 254 (2) and the repeal of the State Act could not revive the
provisions of the Central Acts, unless re-enacted. The question was whether there was
repugnancy between the State Act and the Central Acts. The Suprme Court held that the
State Act of 1974 was not repugnant to the Central laws. Although the definition of criminal
misconduct was substantially the same in both the laws, the State Act and the Central Act,
the State Act had created distinct and separate offence with different ingredients and
different punishments. Therefore, the State law did not in any way, collide with the Central
Acts. It was rather complementary to the Central Acts. The Court referring to the earlier
judicial pronouncements, laid down the following propositions to determine repugnancy
between the two laws- ( 1) Whether there is a clear and direct inconsistency between the
two enactments which is irreconcilable and that they cannot stand together or operate in the
same field. (2) There can be no repeal by implication unless the inconsistency appears on
the face of the two enactments. (3) When the two Statutes occupy a particular field, but there
is room or possibility of both the Statutes operating in the same field without coming into
collusion with each other, no repugnancy results.¹ (4) When there is no inconsistency but a
Statute occupying the same field seeks to create distinct and separate offences, no question
of repugnancy arises and both the Statutes continue to operate in the same field. As regards
the conflict in legislative competence of the Parliament and the State Legislatures, the Court
referred to their earlier decisions wherein the following observations were made by their
Lordships²- that, the express words employed in an entry would necessarily include
incidental and ancillary matters so as to make the legislation effective; that, the scheme of
the Act under scrutiny, its object and purpose, its true nature and character and the pith and
substance of the legislation are to be focused at; that, everything necessary to the exercise
of a power is included in the grant of power; that, it is imperative upon the Courts while
examining the scope of legislative action to be conscious to start with the presumption
regarding the constitutional validity of the legislation. The burden of proof is upon the
shoulders of the incumbent who challenges it.3 It has however, been ruled that the
Statement of Objects and Reasons: (i ) cannot be used for restricting the plain meaning of a
legislation; (ii) cannot determine whether a provision is valid; and (iii) may not be definitive of
the circumstances in which it was passed.4 Predominance of the Union Power-NON-
OBSTANTE CLAUSE (Article 246) Article 246 provides :

(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"). (3) Subject to Clauses (1) and (2),
the Legislature of any State *** has exclusive power to make laws for such State or any part
thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in
this Constitution referred to as the "State List.") (4) Parliament has power to make laws with
respect to any matter for any part of the territory of India not included in a State,
notwithstanding that such matter is a matter enumerated in the State List. Article 246, not
only talks about distribution of powers, but also explains the supremacy of powers.¹ It is thus
clear that power of the Parliament to enact a law which is not covered by an Entry in List II
and List III, is absolute. Article 246 contains the non-obstante clause.3 It must thus be noted
that if the legislative powers of the Union and State Legislatures, which are enumerated in
Lists I and II of the Seventh Schedule, cannot fairly be reconciled, the former will prevail and
the latter must give way to the former. Though, every attempt would be made to reconcile
the conflict but if it is irreconcilable, the Central legislation shall prevail. Thus, if a subject
happens to be included both in List I and List II, it would be the Parliament alone which will
be competent to legislate on that subject. Again, if there is a conflict between List II and List
III, it is Union power with respect to List III, which shall prevail. The opening words
"Notwithstanding anything contained in Clauses (2) and (3) in Clause (1) of Article 246" and
the opening words of Clause (3) of Article 246, i.e., "subject to Clauses (1) and (2)"
expressly secure the predominance of the Union List and Concurrent List over the State List.
These words indicate the principle of federal supremacy namely, in case of inevitable conflict
between the Union and State powers, the Union powers, as enumerated in List I, shall
prevail over the State powers, as enumerated in List II and II, and in case of overlapping
between Lists III, and II, the former shall prevail.¹ It, thus explains that in case of inevitable
conflict between the Union and the State Powers, the Union Power as enumerated in List I
prevails over State power as enumerated in List II and III, in case of an overlapping between
Lists II and III, the latter shall prevail. It, thus, undoubtedly, exhibits supremacy of Parliament
over State Legislature. Thus, Parliament's power to legislate with respect to any matter
contained whether in List I or List III would have predominance over State Legislature's
power to legislate with respect to any matter in the State List. Again, while Parliament's
power to legislate on matters in List III has predominance over State Legislature's power to
legislate on matters in the State List, but State Legislature's power to legislate on matters in
List III is subjected to Parliament's power to legislate on matters in List 1.2 However,
supremacy of Parliament over State Legislature cannot be resorted to unless there is an
irreconcilable direct conflict between the entries in the Union and the State Lists.3 In State of
Karnataka v. Vishwabarathi House Building Co-operative Society, the constitutionality of the
Consumer Protection Act, 1986, was challenged as beyond the power of the Union
Parliament. The Act was enacted keeping in view the long felt necessity of protecting the
common man from wrongs wherefore the ordinary law for all intent and purport had become
illusory. The Act provides for the creation of quasi-judicial authorities at the District, State
and Central levels, so as to enable a consumer to ventilate his grievances before a forum
where justice can be done without any procedural wrangles and hyper-technicalities. It was
to provide momentum to the consumer movement. Upholding the constitutional validity of the
impugned Act, a Bench of three learned Judges of the Supreme Court held that Parliament
had legislative competence to provide for creation of special courts and tribunals, by virtue of
Clause (2) of Article 246 of the Constitution read with Entry 11-A of List III of the Seventh
Schedule, which read as "Administration of justice; constitution and organisation of all Courts
except the Supreme Court and the High Courts". 5 Since the impugned Act "supplements
and not supplants the jurisdiction of the Civil Courts or other statutory authorities", the Apex
Court said that it did not strike at the independence of the judiciary.6 A prior special law
would yield to a later general law if the two are inconsistent with each other or if there is
some express reference in the later law, to the earlier enactment.1 C. RESIDUARY
POWERS OF LEGISLATION (Article 248) Article 248 provides : (1) Subject to Article 246A,
Parliament has exclusive power to make any law with respect to any matter not enumerated
in the Concurrent List or State List. (2) Such power shall include the power of making any
law imposing a tax not mentioned in either of these Lists. Article 248, thus, confers residuary
powers of legislation exclusively on the Union Parliament. Article 248 is to be read with Entry
97 of Union List which reads as: "Any other matter not enumerated in List II or List III
including any tax not mentioned in either of those Lists". The Goa, Daman and Diu (Opinion
Poll) Act, 1966 was enacted by Parliament in the exercise of its residuary powers. In Naga
People's Movement of Human Rights v. Union of India,3 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 97 of list I. After the insertion of Entry 2A in List I by the 42nd Amendment to the
Constitution, the legislative power of Parliament to enact the Central Act would flow from
Entry 2A of List I. The Court further explained that a law providing for "deployment of the
Armed Forces of Union in aid of the civil power of a State", would not be a law in respect of
maintenance of public order falling under Entry 1 of List II. But, such a Central Law would not
enable the armed forces of the Union to supplant or act as a substitute for the civil power in
the State. The armed forces of the Union, the Court said, would operate in the State
concerned, in co-operation with the civil administration. LEGISLATION FOR UNION
TERRITORIES [Article 246(4)] Clauses (1) to (3) of Article 246 apply to the Union vis-a-vis
the State. As regards the Union Territories, Clause (4) of Article 246 confers unqualified
power of legislation on the Union Parliament. The power to extend laws to the U.T. is also
vested in the Central Government. With regard to Union Territories, there is no distribution of
legislative power, since the term "State" in Article 246 means the State mentioned in First
Schedule to the Constitution. It does not include "Union Territory" as the term "State" defined
under Section 3(58) of the General Clauses Act, 1897. The power of Parliament to legislate
for a Union Territory, is thus, plenary and absolute and is untrammelled by the limitations
prescribed in Clauses (2) and (3) of Article 246.2 Parliament can make laws for the Union
Territories respecting all the Entries in all the Lists. It extends also to the residuary matters.
Article 246(4), however, is to be read with Article 240 which confers power on the President
in relation to certain Union Territories. PARLIAMENT'S POWER TO LEGISLATE WITH
RESPECT TO MATTERS CONTAINED IN THE STATE LIST The Indian Constitution has
purported to incorporate the scheme of distribution of powers in a unique way so as to make
the Centre strong enough to meet any emergent or abnormal situations. The scheme
contains provisions, whereby without a formal amendment of the Constitution, the Union
Parliament assumes legislative authority over subjects in the State List. In this respect, the
Constitution of India breaks new ground. The provisions are discussed below- (1) Power of
Parliament to legislate in the National Interest (Article 249) Article 249 provides that if the
Rajya Sabha has passed a resolution by the 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 [goods and services tax provided
under Article 246A]5 any matter enumerated in the State List specified in the resolution, it
shall be lawful for Parliament to make laws for the whole or any part of the territory of India.
Parliament may make laws under Article 249 (1) only with respect to such State matters as
are specified in the resolution passed by the Council of States. Such a resolution passed
under Clause (1) normally lasts for one year, but it may be renewed as many times as
deemed necessary. Every time a resolution is passed, it shall remain in force for one year
only. Laws passed by Parliament under a resolution passed under Clause (1) of Article 249,
would cease to have effect on the expiration of a period of six months after the resolution
has ceased to operate." The Rajya Sabha is authorised to pass the resolution under Article
249 (1), because it is said to be a representative House, containing representatives of the
States who are elected by the members of the State Legislative Assemblies. 1 881 Article
249 has been used a few times. The Supply and Prices of Goods Act, 1952 and the
Evacuee Interest (Separation) Act, Prices of the instances of laws passed under this Article.
(2) Power of Parliament to legislate during operation of a Proclamation of Emergency (Article
250) Article 250 (1) provides that "Parliament shall, while a proclamation of Emergency is in
operation, have power to make laws for the whole or any part territory of India with respect to
[goods and services tax provided under of the Article 246A]2 or any of the matters
enumerated in the State List". The Proclamation of Emergency referred to in this Article must
be a proclamation which may be made under Article 352. When a proclamation of
Emergency is in operation, Parliament can enact laws with respect to all the three Legislative
Lists in Schedule VII. It can make laws conferring powers and imposing duties on the Union
and its Officers in respect of all the Lists.3 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.4 Though, the laws would cease to have effect but anything done or
omitted to be done under such laws will not be affected. Thus, where a prosecution has
been launched in respect of an offence under a law made under Article 250 while it was still
in force, the expiry of the Act subsequently will not affect the proceedings. Article 251
clarifies that Articles 249 and 250 do not restrict the power of the Legislature of a State to
make laws with respect to matters with respect to which Parliament is empowered to
legislate under these Articles. Thus, the State Legislatures may legislate with respect to such
matters. However, in case the two laws, i.e., Parliamentary law and State law, are 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) Parliament's Power to legislate with the
Consent of the States (Article 252) Article 252 (1) provides that when all the 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.
The resolution must be passed by the Houses of at least two State Legislatures before
Parliament gets empowered to legislate under Article 252 (1). The resolution may be passed
by the simple majority of members present and voting in a House. An Act so passed by
Parliament shall have operation within the territories of only such States, the Legislatures of
which have passed the resolution referred to in Article 252 (1). However, the Act so enacted
may be adopted by other States by passing resolution in the Houses of their Legislatures for
that purpose.¹ The term "Legislature" used in the first part of Article 252 (1) means only the
Legislative House or Houses, excluding the Governor, though he is an integral part of the
State Legislature. If an Entry in the State List contains several matters which are easily
separable, and the resolution refers only to some of such matters, and not all, then the
surrender by the State Legislature of its power to legislate would be only to the extent of the
matters specified in the resolution.3 The resolution so passed under Article 252 (1) does not
require any publication in the Official Gazette or newspapers for being effective. Clause (2)
of Article 252 provides that such Act as passed by Parliament under Clause (1), may be
amended or repealed by an Act of Parliament passed or adopted in the like manner, i.e., the
procedure provided in Clause (1) for its enactment.5 In case an Act passed by the
Parliament in exercise of its legislative powers under Article 252 pursuant to the resolutions
passed by the Houses of Legislatures of various States, is repealed by the Parliament, the
Repealing Act would not be applicable to the State, unless said State passes another
resolution, approving and adopting the Repealing Act.6 The Estate Duty Act, 1952, the Prize
Competitions Act, 1955, the Urban Land (Ceiling & Regulation) Act, 1976, and the
Transplantation of Human Organs Act, 1994, are some laws passed by Parliament under
Article 252 (1). (4) Legislation for giving effect to International Agreements (Article 253)
Article 253 provides: "Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with any other country
or countries or any decision made at any International Conference, Association or other
body". Article 253 exhibits that in implementing a treaty, agreement or convention with
another country, the limitations imposed by Articles 245 and 246 are lifted and the entire field
of legislation, in that respect, is open to the Union Parliament." The effect of Article 253 is
that if a treaty, agreement or convention with a foreign State deals with a subject within the
competence of the State Legislature, Parliament alone has, notwithstanding Article 246 (3),
the power to make laws to implement it. Though, India becomes a signatory to an
International Convention, it is to be ratified only by making a law under Article 253. However,
the laws enacted for the implementation of the International Treaties will be subject to the
constitutional limits. It follows, that, if Parliament makes any legislation, which is in conflict
with the International Law, then the Indian Courts are bound to give effect to the Indian Law,
rather than the International Law. It is, thus, held that Article 51, which enjoins State to foster
respect for International Law and treaty obligations, has to be read along with Article 253.4
(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 provisions of the Constitution, he may by Proclamation further declare that the
powers 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 to any or all
the matters contained in the State List. Laws so made by Parliament would be operative in
that State only. 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.5
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. Article
304 (b) empowers the State to impose reasonable restrictions on the freedom of trade,
commerce or intercourse, secured under Article 301, if such restrictions are needed in the
public interest. However, the Bill for this purpose would become law only when assented to
by the President. Requirements as to Recommendations and Previous Sanctions of the
President or the Governor (Article 255) There are certain Bills, such as Money Bills or
Financial Bills which can be introduced in the Legislature with the prior recommendations of
the President or the Governor, as the case may be. Article 255 provides that if such
recommendations or sanctions have not been taken, the Acts so enacted or any provision in
such Act, shall not be invalid by reason of non-compliance of this procedural requirement.
But, such an Act would be unenforceable until the infirmity is cured, if the Act enacted is
assented to by the President in cases where the recommendations required were that of the
President. Where the recommendations required were that of the Governor, the infirmity may
be cured if the Act is assented to by the Governor or the President. The procedural infirmity
may also be cured by re-enacting the provisions of the Statute obtaining the assent of the
President to the latter Act.¹ But the President by subsequently assenting to the Statute
cannot give the Act retrospective effect. The reason being that if the acts done under the
invalid Act are validated, that would reduce the procedural requirement to no consequence.2
CURATIVE LEGISLATION Curative Legislation, simply speaking, is a legislation enacted to
amend a law, invalidated by a decision of a Constitutional Court. The legislation so enacted
removes the cause for invalidation. Holding that "curative legislation" is constitutionally
permissible, a Constitution Bench of the Supreme Court in B.K. Pavitra (II) v. Union of India,
observed: A Legislature cannot overrule a decision of the Court on the ground that it is
erroneous or is nullity. But, it is certainly open to the Legislature either to amend an existing
law or to enact a law which removes the basis on which a declaration of invalidity was issued
in the exercise of judicial review.... It is not an encroachment on judicial power. For instance,
in B.K. Pavitra (I) v. Union of India, a two Judge Bench of the Supreme Court held that
Sections 3 and 4 of the Karnataka Determination of Seniority of the Government Servants
Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State)
Act, 2002, of be ultra vires Articles 14 and 16 of the Constitution on the gract, 2002, an
exercise for determining efficiency of representation around that and the impact on overall
efficiency", had, not preceded the enactedness ane law. Subsequent to the decision in B.K.
Pavitra (1) v. Union of Ind of the State Legislature of Karnataka enacted the Karnataka
Extensidia, Consequential Seniority to Government Servants Promoted on the basis of
Reservation (to the Posts in the Civil Services of the State) Act, 2018, after collecting data
showing the existence of the compelling reasons of: (i) backwardness; (ii) inadequacy of
representation; and (iii) overall efficiency, 885 hence, removing the basis of the decision in
B.K. Pavitra (I).3 Upholding the constitutional validity of the Reservation Act, 2018, the Apex
Court observed : The Reservation Act, 2018, has cured the deficiency, which was noticed by
B.K. Pavitra (I), in respect of the Reservation Act, 2002. The Act, 2018 does not amount to a
usurpation of judicial power by the State Legislature... The Act, 2018 is valid exercise of
enabling power conferred by Article 16(4A) of the Constitution.