3.5 Distribution of Legislative Powers, the Seventh Schedule & Federal Doctrines (Articles 245-255)
Key Takeaways
- Article 246 read with the Seventh Schedule divides legislative competence into List I (Union), List II (State) and List III (Concurrent), with a fixed order of predominance: List I overrides List III, and List III overrides List II.
- Residuary legislative power, including the power to impose a residuary tax, vests exclusively in Parliament under Article 248 read with Entry 97 of List I.
- The doctrine of pith and substance saves a law whose true nature falls within the enacting legislature's list even if it incidentally trenches on a forbidden list (State of Bombay v. F.N. Balsara).
- Article 254(1) makes a Union law prevail over a repugnant State law on a Concurrent List subject, but Article 254(2) allows a State law reserved for and receiving the President's assent to prevail within that State, subject to Parliament later overriding it.
- Articles 249, 250, 252 and 253 are the four routes by which Parliament may legislate on a State List entry: a Rajya Sabha resolution, a Proclamation of Emergency, resolutions of two or more State Legislatures, or the implementation of an international treaty.
3.5 Distribution of Legislative Powers, the Seventh Schedule & Federal Doctrines (Articles 245-255)
A judicial officer in Maharashtra applies State statutes every working day: the Bombay Civil Courts Act, 1869 for jurisdiction, the Maharashtra Rent Control Act, 1999 for landlord-tenant disputes, the Maharashtra Land Revenue Code, 1966 for record-of-rights questions. Each of these rests on a specific entry in the Seventh Schedule, and every so often a litigant will argue that the legislature had no competence to enact the provision being invoked. Part XI, Chapter I of the Constitution supplies the answer, and MPSC tests it heavily because it is short, precise and rule-bound.
Territorial Extent of Legislative Power (Article 245)
- Article 245(1): Parliament may make laws for the whole or any part of the territory of India; a State Legislature may make laws for the whole or any part of the State. A State law with no connection to the State is ultra vires.
- Article 245(2): No law made by Parliament shall be deemed invalid on the ground that it would have extra-territorial operation. This immunity is available to Parliament alone, never to a State Legislature.
- Doctrine of Territorial Nexus: A State law that touches persons or objects outside the State is valid if (i) the connection is real and not illusory, and (ii) the liability imposed is pertinent to that connection. The leading authority is State of Bombay v. R.M.D. Chamarbaugwala (AIR 1957 SC 699), where a Bombay tax on prize competitions was upheld against a newspaper printed in Bangalore because the competitions were organised, advertised and collected upon within Bombay.
The Three-List Scheme (Article 246 & the Seventh Schedule)
| List | Who Legislates | Original Entries | Representative Entries a Civil Judge Meets |
|---|---|---|---|
| List I — Union | Parliament, exclusively | 97 | Defence (1), Banking (45), Negotiable instruments (46), Cheque dishonour, Corporation tax (85), Residuary (97) |
| List II — State | State Legislature, exclusively | 66 | Public order (1), Police (2), Administration of justice and constitution of all courts except the Supreme Court and High Courts (11A was moved to List III; Entry 3 covers officers of subordinate courts), Land and land tenures (18), Money-lending (30), Rents (Entry 18 read with Entry 6) |
| List III — Concurrent | Both, with Union predominance | 47 | Criminal law (1), Criminal procedure (2), Preventive detention (3), Civil procedure (13), Evidence and oaths (12), Contracts (7), Transfer of property other than agricultural land (6), Actionable wrongs (8) |
- Order of predominance (Article 246): List I prevails over List III, and List III prevails over List II. The non-obstante clauses in Article 246(1) and (2) create this hierarchy expressly.
- Why it matters for your subjects: the CPC, the BNSS, the BSA and the Contract Act sit in the Concurrent List, which is exactly why a State such as Maharashtra can amend the CPC or the BNSS locally — provided the amendment obtains the President's assent under Article 254(2). The Maharashtra Rent Control Act, by contrast, rests on the State List entries relating to land, buildings and rents.
- Article 246A (inserted by the Constitution (One Hundred and First Amendment) Act, 2016) carves goods and services tax out of the ordinary scheme and confers simultaneous power on Parliament and the State Legislatures.
Residuary Power (Article 248)
Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent or State List, including the power to impose a tax not mentioned in either list. Entry 97 of List I is the textual anchor. The Supreme Court reads the residuary entry narrowly: a matter is residuary only if it cannot be brought within any entry of any of the three Lists.
Parliament's Four Routes into the State List
| Article | Trigger | Duration |
|---|---|---|
| 249 | Rajya Sabha resolution supported by two-thirds of members present and voting declaring a State List matter to be of national interest | 1 year, renewable one year at a time; the law lapses 6 months after the resolution expires |
| 250 | A Proclamation of Emergency under Article 352 is in operation | Duration of the Proclamation plus 6 months |
| 252 | Legislatures of two or more States pass resolutions requesting Parliament to legislate | Applies to consenting States and to any State later adopting it; amendable or repealable only by Parliament |
| 253 | Implementation of a treaty, international agreement or convention, or a decision of an international conference | No time limit; the entry-based division is simply displaced |
Article 251 preserves the State's own power during Articles 249 and 250 laws, but any repugnant State provision remains inoperative for as long as the Parliamentary law lasts. Article 255 saves a law from invalidity merely because a required recommendation or previous sanction was not obtained, provided assent was ultimately given — the requirement is treated as procedural, not jurisdictional.
The Interpretive Doctrines
1. Pith and Substance
When a law is attacked for encroaching on another legislature's list, the court asks what the law is in its true nature and character — its pith and substance. If that lies within the enacting legislature's competence, incidental encroachment does not invalidate it.
- Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna (AIR 1947 PC 60): the Bengal Money-Lenders Act was in pith and substance about money-lending (a Provincial subject) even though it incidentally affected promissory notes (a Central subject).
- State of Bombay v. F.N. Balsara (AIR 1951 SC 318): the Bombay Prohibition Act was in pith and substance a law on intoxicating liquors under the Provincial list; its incidental effect on the import of liquor did not make it a law on import and export.
2. Colourable Legislation
Rooted in the maxim quod non potest fieri directe, non debet fieri per obliquum — what cannot be done directly cannot be done indirectly. The doctrine looks past the form of a statute to see whether a legislature has transgressed its competence under a disguise. K.C. Gajapati Narayan Deo v. State of Orissa (AIR 1953 SC 375) is the leading case; the Court stressed that the doctrine has nothing to do with motive or bona fides — it is purely a question of legislative competence.
3. Harmonious Construction and the Occupied Field
Entries in the Lists are to be given the widest possible amplitude and read so that no entry is rendered nugatory. Where an apparent overlap survives, the court harmonises; only if harmonisation is impossible does the non-obstante hierarchy of Article 246 decide the contest. Under the occupied field principle, once Parliament has legislated exhaustively on a Concurrent List subject, the State legislature's competence over that field is displaced to the extent of the Union enactment.
4. Repugnancy (Article 254)
- Article 254(1): If a State law on a Concurrent List matter is repugnant to a Union law or to an existing law, the Union law prevails and the State law is void to the extent of the repugnancy.
- Article 254(2): If the State law has been reserved for the consideration of the President and has received his assent, the State law prevails in that State. The proviso preserves Parliament's power to enact a later law adding to, amending, varying or repealing the State law.
- The three tests of repugnancy (M. Karunanidhi v. Union of India, (1979) 3 SCC 431): there is repugnancy only where (i) there is a direct conflict so that obedience to one means disobedience to the other; (ii) Parliament intended to lay down an exhaustive code occupying the field; or (iii) both laws occupy the same field and cannot stand together.
[!TIP] The Maharashtra angle examiners like. Local amendments to the CPC and to criminal procedure operate in Maharashtra precisely because Concurrent List legislation reserved for and assented to by the President survives under Article 254(2). When a litigant argues that a State amendment to a central procedural code is void, the correct first question is not "is it repugnant?" but "did it receive the President's assent?"
A State Legislature enacts a law on a Concurrent List subject that directly conflicts with an earlier Parliamentary enactment. The Bill was reserved for the consideration of the President and received his assent. What is the legal position?
The Bombay Prohibition Act was challenged on the ground that although liquor was a Provincial subject, the Act incidentally regulated the import of liquor, a Central subject. On which doctrine did the Supreme Court uphold the Act in State of Bombay v. F.N. Balsara?
Under which provision may Parliament legislate on a matter enumerated in the State List for a period of one year at a time, and what majority is required?
Where does the power to impose a tax not mentioned in any of the three Lists of the Seventh Schedule reside?