The main characteristic of a federal constitution is the distribution of powers between the union and the states.
The Indian constitution provides for a new kind of federalism to meet India’s peculiar needs.
In the matter of distribution of powers, the framers followed the pattern of the Government of India Act, 1935. Thus, predominance has been given to the union parliament over the state legislatures or assemblies regarding the distribution of legislative powers.
The legislative powers are subject to the scheme of distribution of powers between the union and state legislatures (as provided in three lists under the constitution), fundamental rights (i.e. legislative powers cannot contravene the fundamental rights) and other provisions of the constitution (articles 245-254).
There are three lists which provide for distribution of legislative powers under 7th Schedule to the constitution:-
1) Union List (List 1) – It contains 97 items and comprises of the subjects which are of national importance and admit of uniform laws for the whole of the country. Only the union parliament can legislate with respect to these matters. For example, Defence, foreign affairs, banking, currency, union taxes, etc.
(2) State List (List 2) – It contains 66 items and comprises of subjects of local or state interest and thus lie within the legislative competence of the state legislatures, viz. public order and police, health, agriculture, forests, etc.
(3) Concurrent List (list 3) – It contains 47 items, with respect to which; both union parliament and the state legislature have a concurrent power of legislation. The concurrent list (not found in any federal constitution) was to serve as a device to avoid excessive rigidity to a two-fold distribution.
It is a ‘twilight zone’, as for not so important matters, the states can take initiative, while for the important matters, the parliament can do so. Besides, the states can make supplementary laws in order to amplify the laws made by union parliament.
The subjects include general laws and social welfare – civil and criminal procedure, marriage, contract, planning education, etc.
However, in spite of the distribution of legislative powers under the three lists, the predominance has been given to the union parliament over the state legislatures. The constitution makes a two-fold distribution of legislative powers: –
(1) With respect to territory.
(2) With respect to subject matter of legislation, (i.e. three lists).
Territorial Legislative Jurisdiction [Article 245]
Article 245 defines the ambit or territorial limits of legislative powers. Subject to the constitutional provisions, Parliament may make laws for whole or any part of the territory of India, and a state legislature for the territory of that state and no law made by the parliament would be invalid on the ground that it would have extra-territorial operation i.e. takes effect outside the territory of India.”
Theory of Territorial Nexus
The doctrine of territorial nexus is deeply rooted in laws of India even before the commencement of Constitution of India in 1950 the government.
Distribution of Legislative Subjects [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 the list 1 (union list).
(2) not with standing anything in clause (3), parliament, and, subject to clause (1), the state legislature also, have the power to make laws with respect to any of the matters enumerated in the list 3 (concurrent list).
(3) subject to clauses (1) and (2), the state legislature has exclusive power to make laws for such state with respect to any of the matters enumerated in list 2 (state list).
(4) Parliament has the 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.
Thus, article 246 provides that the parliament has exclusive power to make laws with respect to union list; the state legislature for the state list; and, the parliament and the state legislature, both, for the concurrent list.
However, as it will be seen later, there is a predominance of the union parliament in matters of legislative lawmaking.
Autonomy to Centre and States (legislative powers)
In Javed versus State of Haryana, the apex court upheld the constitutional validity of certain provisions of Haryana Panchayati Raj Act, 1994, which disqualified a person for holding office of sarpanch or a panch of a gram panchayat, etc. if he had more than two living children, though a similar provision was not found to have been enacted by the parliament or other state legislatures.
In State of MP versus GC Mandawar, it was 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.
Plenary power of legislature
It is an absolute power to enact laws (even if it is contrary to any understanding or guarantee is given by the state), subject only to its legislative competence and other constitutional limitations.
No limitation can be read on the ground of legislative practice or legitimate expectations.
The principle to interpret the entries (in lists) so as to make the legislative power of parliament and state legislatures ‘plenary’ is that the entries should not be read in a narrow or restricted sense.
Each general word in an entry should be construed to include all ancillary or subsidiary matters which can fairly and reasonably be said to comprehend it.
The following points are important to understand the nature of plenary power:-
The power to make a law includes the power to give effect to it prospectively (i.e. for future acts – law to take effect from a future date) as well as retrospectively (i.e. for past acts – law to take effect from a backdate).
The meaning of a validation act is to remove the causes of ineffectiveness or invalidity of actions or proceedings which are validated by a legislative measure.