Distribution of Legislative Powers

BY V. P. KRISHNAN NAMBIAR, M.A., B.L.
(Advocate, Madras)

THE distribution of Legislative Powers between the Union and the States in the Draft Constitution of India is dealt with in Chapter I of IX and is covered by Articles 216–232.

Under Article 216, Parliament may make laws for the whole or any part of the territory of India, and the Legislature may make laws for the whole or any part of the State. No law of Parliament shall be invalid because of its extra-territorial operation. Under Article 217, Parliament has the exclusive power to make laws regarding the Union List, and for any part of the territory of India not included for the time being in Part I of III of the First Schedule. Both Parliament and State Legislatures can make laws on subjects in the Concurrent List. The State Legislature alone can make laws affecting matters in the State List, subject to the limitations in Article 217 (1) and (2). The control and Powers over the legislation affecting the constitution and organisation of the Supreme Court is vested in Parliament, and the Legislature of the State has the exclusive power to deal with matters affecting the High Court, as also its jurisdiction, and the procedure to be followed in Criminal and Civil matters. In any of the matters affecting the High Courts in Parts II First Schedule (Delhi, Ajmer-Merwara, and Coorg), Parliament and also the State Legislatures have the power to legislate. Under Article 223, matters not enumerated in the Concurrent or State List are strictly within the legislative ambit of Parliament and it shall extend to imposing a tax not mentioned in either the Concurrent or State List.

Article 224 restricts the power of Parliament to make laws with respect to certain matters regarding (a) Posts and Telegraphs in any State or group of States which has not yet entered into an agreement with the Government of India, (b) Telephones, Wireless and Broadcasting in the Indian States in Part III – (First Schedule), except for their regulation and control, (c) the incorporation, winding up and regulation of corporations in the States. Under Article 225, the power of Parliament to legislate for the Indian States in Part III (A) is subject to the limitation of the agreement between them and the Government of India.

Article 226 gives power to Parliament to legislate with respect to any matter in the State List on a resolution to that effect by two-thirds of the members present, that it is expedient in the national interest to do so. During a Proclamation of Emergency, Parliament has the power to legislate for the whole of India in regard to any matter in the State List. In the event of any repugnancy between the State Legislation and that of Parliament, the latter shall prevail. Under Article 229, Parliament can legislate for one or more States by consent on matters on which it has no power to make laws for the States, and such an Act can be amended or repealed by the State Legislature. Parliament can make laws for any State to implement any treaty, engagement, or convention with another country. Under Article 231, in case of inconsistency between the laws enacted by Parliament and those of the State Legislature, the law made by Parliament shall prevail, except in regard to matters in the Concurrent List, in which case the State legislation shall prevail, if the same had been reserved for the consideration of the Governor and received his assent. Article 232 removes any defect in legislation due to technical flaws, as in the case of a want of recommendation by the Governor, if he has subsequently given his assent, or that of the President, if he gives his assent later.

The division of Legislative Powers between the Centre and the Provinces has always been a vexed question in all Constitutions. Its satisfactory solution has for long been evading leading students of constitutional law. Dicey in his Law of the Constitution suggested four tests to discover the distribution of powers between the Center and the States Governments in a Federal State: (1) Whether it is the National Government (Central Government) or the States to which belong only ‘definite powers’ i.e., the powers definitely assigned to it under the Constitution. (2) Whether the enactment’s of the Federal Legislature can be nullified by any other authority or tribunal, or treated as void. (3) To what extent the Federal Government can control the legislation of separate States. (4) What is the nature of the body (if such there be) to amend the Constitution.

In the Constitution of the U.S.A., the powers conferred on the Central Government are strictly ‘definite’; those left to the States are undefined and indefinite, with the result that the Central Government cannot claim any power which is not expressly conferred by statute, while the federating States could claim to exercise all powers of independent States, which have not been expressly removed under the Constitution. So much so, the Federal Legislation is subject to the Constitution and could be challenged in Courts, as in the case of the State Legislation, if it were to transgress the Constitution. No power is vested in the Federal Government to disallow or annul the States Legislation. Amendment of the Constitution can be effected only with the sanction of three-fourths of the States.

In the Dominion of Canada, the authority of the Dominion Government is indefinite; that of the Provinces is circumscribed within the narrowest limits. The legislative field of the Dominion Parliament extends to all matters not exclusively assigned to the federating Units, while the powers of the States Legislatures are restricted to subjects specifically allotted to them. Both the Dominion and Provincial Legislation could be nullified by a competent court in the event of their infringing the Constitution. Acts passed by the States could be disallowed by the Dominion Government. Before the Statute of West-minister, 1931, a modification of the Constitution was possible only by an amendment of the British North America Act of 1867, by an Act of the Imperial Parliament of the United Kingdom.

In Australia, the authority of the Federal Government is limited; that of the component States, unlimited. The Legislation of both is subject to the Constitution of the Commonwealth of Australia. The Commonwealth Government is powerless to annul the State Legislation. Amendment of the Constitution is permitted by a Bill to be passed to that effect by the Commonwealth Parliament and approved by a majority of voting electors and of the federating States. As in the case of Canada before 1931, the British Parliament alone was competent to amend the Constitution. But the position has changed after the Statute of Wesbn1nster.

In the Union of South Africa, under the Act of 1909 which constituted the Provinces into the Union, the Union Parliament possesses un-limited powers of Legislation for the peace and good government of the Union. The Legislative Powers of the Provinces are limited to (1) making ordinances, (2) subjects specified in the Act and as subsequently amended, (3) matters which the Union Parliament may delegate to them, and (4) all subjects which in the opinion of the Union Government are purely local or of a private character.

The Authors of the Draft Constitution of India did not accept any one of the above Constitutions in its entirety. From the analysis of the provisions enumerated above, it will be apparent that their effort has been to build up a strong Centre in which should vest the Residuary Powers, and the Provinces should have only such powers as are expressly assigned to them in the Constitution Act. This is a departure from the principle of decentralization, which culminated in the Provincial Autonomy of 1937. During the Round Table Conference (1930-33) the British India delegates from predominantly Muslim areas like the North-West Frontier, the Punjab, Sind, and Bengal pleaded that the Residuary Powers in the Indian Federation, envisaged at the time, should vest in the Provinces and not with the Centre; on the other hand, the delegates from Provinces like Madras, Bombay, U.P., Bihar etc., where the Hindus are in a majority, pressed for the retention of those powers with the Centre. The Joint Select Committee of Parliament on Indian Constitutional Reforms tried to meet the demand of both, half-way; but in effect the distribution of Legislative Powers was defective in many particulars. The plan adopted in the White Paper of 1933, and subsequently approved, was that the allocation of residuary legislative power should be left to the discretion of the Governor-General and settled by him ad hoc on each occasion when the need for legislation arose. Dealing with the inherent difficulty of a clear scheme of allocation of powers, the Joint Select Committee in their Report (Vol. I Part I) said: -

“……It will be observed that, for the purpose of reducing the Residuary Powers to the smallest possible compass, the lists of subjects dealt with in all the three Lists are necessarily of great length and complexity: whereas, apart from the question of Concurrent List, if it had been possible to allocate residuary legislative powers to, e.g., the Provinces, only a List of Central Powers would have been required, with a provision to the effect that the legislative powers of the Provinces extended to all power, not expressly allocated to the Centre; and, conversely, if the residue had been allocated to the Centre. This, broadly, is the plan which has been adopted in Canada and Australia, the Residuary Powers being vested, in the case of Canada, in the Dominion Legislature, and in the case of Australia, in the Legislatures of the States. Even so, experience has unhappily shown that it has been impossible to avoid much litigation on the question whether legislation on a particular subject falls within the competence of one legislature or the other…..On the point of constitutional substance it seems to us that, if a choice were to be made between the two alternative principles to which we have just drawn attention, the logical conclusion in the White Paper would be the allocation of all Residuary Powers to the Provincial Legislatures; but this solution would, we think, require to be accompanied by the insertion in List of some general overriding power of Central legislation in matters of all-India concern, since any new subject cannot be said to fall automatically into the Provincial field, irrespective of its natural implications….

While therefore matters of a purely local nature would fall within the provincial field of legislation, there would be cases where the frontiers of the Provinces extend beyond their geographical boundaries, e.g., (1) legislation affecting the Indian Codes which deal with the main principles of law throughout the country and are of an all-India character, (2) Labour legislation, (3) Legislation to combat epidemic diseases. On such matters the Central Government can legislate concurrently with the Provinces. The Authors of the Draft Constitution have drawn up three Lists, (1) Union List, (2) State List, and (3) Concurrent List. This is at variance with other Constitutions where the method adopted is to allocate exhaustively powers to one Legislature, and to assign the entire unspecified residue to the other. A statutory delimitation of legislative jurisdictions is capable of mischief, because so far as the Concurrent List is concerned, there may be overlappings which will have to be decided by a judicial tribunal. But there is danger the other way too, in the enumeration of powers to the Centre and the allocation of unspecified residue to the Provinces, which might involve a reservation to the Central Government of an overriding power, and the possibility of the Provinces assuming for themselves any unspecified sources of taxation to be devised hereafter, such as provided under Article 223. The broad principle therefore is that while the Centre should have a power of coordinating or unifying regulation in the Concurrent List, if they have a closer semblance to the State list than to the union List, they shall be administered mainly on lines of Provincial policy. In the event of a conflict, the Union legislation shall prevail as provided in Article 228. But an unqualified provision to that effect would cut across the Provincial jurisdiction in the List, so as to throw overboard the Provinces by an aggressive Centre.

Under Article 223, the Residuary Powers are expressly vested in Parliament which is given exclusive power to make any law with respect to any matter not enumerated in the Concurrent or State Lists. Under Article 227, the power of Parliament to legislate for the whole of India on any subject in the State List arises during a Proclamation of Emergency. It shall be lawful for Parliament to make laws for the whole of India in the national interest, under Article 226, on any subject in the State List if agreed to by two-third members of the State Legislature. These are all-embracing powers which the Authors have thought fit to confer on the Centre to make it strong, and to guard against fissiparous tendencies among the States so as to build up a powerful national Government. The attempt is indeed laudable, but it is sought to be achieved at a high cost to the Provinces.

The main argument of the enthusiasts of a strong Centre is that, in the face of the present uncertain state of affairs in India, which is further complicated by the fluid international situation abroad, it is only a Powerful Centre that can cope with the political situation. This would necessarily involve the vesting of Residuary Powers with the Centre, as against the Provinces, and these provisions should stand at least for some years, till things settle down to normal. The contention is sound, especially if viewed against the ground of the defence of India, the protection of Indian Nationals and their rights abroad, the food problem, and other industrial and hydro-electric power projects in which the Government of India’s interests are predominantly linked with those of the Provinces, and wherein the Centre alone can give an effective lead. But even here, there are limits to such special features: they are unusual events of a passing phase though their incidence may be abnormal. To be obsessed with such eventualities as to deprive the Provinces of a liberal field of Legislative Powers, and to arm the Centre with all the powers may not be an ideal solution. Any subsequent amendment of the Constitution to set right the uneven allocation, if an actual working it proves defective, would be a difficult process. One of the main objections against the Indian Federation envisaged under the Government of India Act 1935, was that nearly 75 per cent of the revenues of India was reserved for the Federal Center, and the Provinces were to share the small residue. An amendment of the Constitution after the Act comes into force would be a laborious and thankless task with uncertain results. Such amendments have been equally complicated in other Constitutions. While therefore the anxiety of the Authors for a strong Centre can be appreciated, especially to meet a grave emergency or an abnormal crisis, the Provinces should not be made to depend on the mercy of the Union Centre in regard to their Legislative Powers. It would be against the principles of devolution and decentralisation which reached their acme in the Provincial Autonomy of 1937. It will throw to the winds the healthy notion that the Provinces are to be autonomous Units in a federal India, as visualised earlier. The distribution of Legislative powers in the Draft Constitution requires an equitable revision, so that the Provinces can be met half-way, without the Centre losing its all-India role of an effective coordinating authority.