April 17, 2012

Centre State Legislative Relations - APPSC Group 1 Mains - Paper 2

The framing fathers of the Indian Constitution had, keeping in view the histori­cal, administrative, economic and regional need of the country adopted a federal polity for its gov­ernance. It fulfilled almost all the conditions required for the system. One of the essential features of a federal polity is the distribution of powers between the Centre and the States through the Constitution and not by any other means. The Con­stitution of India provides the scheme of the Central-State rela­tions quite in detail in two parts -Part XI, Chapter I explains legisla­tive relations and Chapter II ad­ministrative relations but financial relations are contained in the Part XII of the Constitution. In the scheme of distribution of legisla­tive powers, it has largely adopted i the method followed by the Gov- : erhment of India Act 1935 which : was on the pattern of the Cana- dian system, and divides the pow- j ers between the Union and the states in three lists - the Union List, the State List and the Concurrent List: The Union List: It consists of 97 subjects of national importance i.e. Defence, Foreign Affairs, Rail­ways, Airways etc. It is the longest of the three and under Art 246 Par­liament has exclusive power to make laws with respect to any of the matters enumerated in this list. In the course of the working of this scheme some amendments have been incorpo­rated in it in the form of addition or deletion that are as follows:

       Entry 2A was inserted by the Constitution (Forty-second Amendment) Act, 1976. It re­lates to the deployment of any armed force in any state in aid of the civil power.

       Entry 92A inserted concerning taxes on the sale or purchase of goods other than newspa­pers in the course of inter-state trade or commerce. It was in­ serted by the Constitution (Sixth Amendment) Act, 1956.

       Entry 92B inserted taxes on the consignment of goods. It was inserted by the Constitution (46th Amendment) Act, 1982.

       Entry 33 concerning property. It was deleted by the Constitu­tion (7th Amendment) Act 1956.

Thus to be brief 3 new entries were added and one was deleted making it a total of 99 instead of 97. Since serial numbers are not affected by amendment, it is still 97. Over and above some entries in this list are amended. For ex­ample, Entry No 63 concerning Uni­versity of Delhi declaring it to be an institution of national impor­tance was amended by 32nd Amendment Act 1973, Entry 67 concerning historical monument by 7th Amendment Act 1956, Entry 78    concerning High Courts by 15th Amendment Act 1963, and Entry 79    again concerning High Courts
by 7th Amendment Act, 1956.

The State List: It consists of 66 entries on which the state leg­islature has been given the exclu­sive powers to make laws under Art 246 (3) These entries are of local importance, such as public 

order and police, local government public health and sanitation, ag­riculture etc. Like Union list this has also been amended as per detail given below:

Deleted Entries: Entry No 11 concerning education, Entry No 19       concerning forests, Entry No 20   concerning wild animals, En­try No 29 concerning weights and measures and Entry No 36 con­cerning property through Amend­ments of the Constitution. Entries 11,19,20 and 29 by 42nd Amend­ment Act 1976 and Entry No 36
by 7th Amendment Act 1956.

Amended Entries: —  Entry 1. (Public order) by (42ndAmendment) Act 1976.

  Entry 2.  (Public) by (42ndAmendment) Act 1976.

  Entry 3. (High Court) by (42nd Amendment) Act 1976.

  Entry 12 (Libraries) by (7thAmendment) Act 1956.

  Entry 24 (Industries) by (7thAmendment) Act 1956.

  Entry 54 (Taxes) by (Sixth Amendment) Act 1956.

  Entry 55 (Taxes) by (42ndAmendment) Act 1976.

This we find that in the State list 5 entries have been deleted and 7 entries amended/modified but no new item was added to it.

The Concurrent List : It con­sists of 47 subjects such as crimi­nal law, transfer of property, mar­riage divorce, etc. Since the sub­jects are of common interest for both the Union and State Gov­ernment, both of them can make laws on any subject mentioned in this list. But in case of conflict 

between the Union and the State Law the Union law will prevail as 'per Art 254. 

This list has also been amended ; several times as per detail given below:

Addition of Entries: -

1.                 Entry 11A - Administration of justice.

2.                 Entry 17A - Forests

3.                 Entry 17B - Protection of wild animals.

4.                 Entry 20A -Population         

5.                 Entry 33A - Weights and measures                                      
These entries were inserted by  (42nd Amendment) Act 1976 at­
one stroke and the following en­tries were amended as per the detail:

1.  Entry 25 (Educate) by (42nd Amendment) Act 1976

2.                Entry 33 (Trade and Commerce) (3rd Amendment) Act 1954

3.                Entry 40 (Archaeological Sites) by (7th Amendment) Act 1956

4.                Entry 42 (Property) by (7th Amendment) Act 1956
Thus we find that in this list 5 new items were added and 4 were amended or modified, but  no entry was not deleted.             

Residuary Powers : As in Canada, the residuary powers of legislation are vested in the Union ; under Art 248. It implies the power of making laws and imposition  of any tax not mentioned in ei ther of the state or concurrent lists (Entry No 97th of the Union List). There is one exception in this case. The State of Jammu and Kash­mir enjoys special status and in case of residuary powers it has an exclusive jurisdiction.

Generally the law making powers for the residuary item are vested in the states in a federal set up such as USA, Switzerland and Australia but India makes a de­parture from this practice. In the initial stages of the framing of

Constitution, it was decided to leave the residuary powers with the states. But after the partition of the coun­try the approach towards federal­ism was changed. Then it was decided to have a strong Centre and this was why the residuary powers were given to the Centre.

All the three lists are detailed in Scheduled VII of the Constitu­tion and addition, deletion or modification in any of the lists can be done by adopting the pro­cedure as provided in the Consti­tution under Article 368. This method has been applied many a time for the purpose of any change in any of the list as we have noted above. Over and above the Con­stitution permits the Parliament to make laws on any matter in the state list without amending the Constitution either by following a particular procedure or under certain circumstances as per de­tail given below: -

(a) In National Interest : Art 249 provides that the Rajya Sabha can pass a resolution supported by not less than two-thirds ma­jority of members present and voting, declaring that in the na­tional interest Parliament should make laws with respect to any matter enumerated in the state list, as speci­fied in the resolution, for the whole or any part of the territory of India for a maximum of one year at a time. However, the Rajya Sabha can repeat this resolution for any number of times but not for all time to come. Basically it is a tem­porary position. However, such a law made by the Parliament shall remain in force for 6 months only after the expiry of the resolution. This Article has been used only once so far. In 1950 the Parlia­ment resolved to take powers with respect to Trade and Commerce (Entries 26   and 27 of State list) B

(b) During a Proclamation of Emergency : Art 250 says that the Parliament shall have the power
to make a law on any item of the State list when a proclamation of Emergency is in operation under
National Emergency (Art 352) or Financial Emergency (Art 360) and to any State under President's Rule
(Art 356). But such a law of the Centre shall cease to have its ef­fect after 6 months of the expiry
of the Proclamation of Emergency, though the Centre may repeal, or revoke it even earlier. Since the
country has remained under Na­tional Emergency between 1962- 68 and again between 1971-77 and
the States under President's Rule for more than 100 times, the Paliament has enhanced its sphere
of law making during this period. There is no such specific provi­sion in countries of federal set up
such as, USA, Canada and Aus­tralia whereby the distribution of powers between the Centres and
the states is completely upset dur­ing Emergency. Framing fathers of Indian Constitution have fol­
lowed this provision from the Government of India Act 1935. (c)  Legislation by Consent of State :   Art 252 provides that if the Legislature of two or more states pass a resolution and request the Centre to make a law on a certain item of the State list then it shall be lawful for the Parlia­ment to make a law regulating that  matter. Such a law shall apply tothe States that made such a request, though any other State may
adopt it by passing such a resolution subsequently.   The law thus enacted can only be amended or
repealed by the Act of Parliament. This provisions of the Constitu­tion was applied for the first time
in 1953 and again in 1955 when some    of   State    legislatures authorized

Parliament to pass the Estate Duty Act and the Prize Competition Act respectively for the concerned states.

(d) Legislation to Implement International Agreement :   Art 253 empowers the Parliament to
make any law for the whole or any part of the country for imple­menting any treaty, and agree­
ment to fulfil an international obligation even though such law relates to any of the subject of
the State list.

(e)  Legislation with PriorSanction of the President: There are certain matters which have
been mentioned in the state list, yet no Bill about them can be moved in the State Legislature
without the prior sanction of the Parliament (Art 304). For example trade and commerce within
the state list belongs to this category. (Entry 26).

(0 Reservation of Bills for the Consideration of the Presi­dent : Art 200 of the Constitu­tion says that the Governor of a state has the power to reserve a Bill passed by the State Legislature for the consideration of the Presi­dent of India which in the opin­ion of the Governor would, if it became law, derogate mainly from the powers of the High Court . The President under Art 201 shall have the power to give his assent to such a bill, return it to the State for reconsideration on the basis of his recommendation. In such a situ­ation the State legislature must re-pass that bill within a period of next six months, if it so desires and then it shall be reserved again by the Governor for the reconsidera­tion of the President who shall have the power to give his assent or withhold it or to keep it in abey­ance for any length of time. It means the President in not bound to give his assent to such a Bill unless the suggestions made by him have been incorporated in the Bill. This was done in the case of the Kerala Edu­cation Bill (1959), M.P. Panchayat Bill (1960), and Industrial Dispute West Bengal Bill (1969).
af ter studying the Legislative Scheme of Centre - State relations one thing does come to the sur­face that the framers of the Con­stitution have dealt with this sub­ject quite in detail. The Constitu­tion provides the framework both for usual and unusual circum­stances. Over and above in case of any need there are provisions to modify it through the proce­dure of the Constitution under Art. 268 or even otherwise by just fulfilling certain conditions. Dur­ing the 50 years of working of the Constitution, several times eye­brows have been raised about its being tilted towards the Centre but by and large the position appears to be satisfactory. The Sarkaria Commission has also endorsed this view when it re­marked that there is no need for drastic changes in the existing provisions of the Constitution. The scheme has done reasonably well and has withstood the stresses and strains of time. Let's hope for the best.


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