Brain Booster Articles
Author: Aryan Sinha, IV year of B.B.A.,LL.B.(Hons.) from Galgotias University
Indian Constitution provides a new kind of federalism called as quasi-federalism to cover the Indian situation. India is declared as “Union of States”[i]. A federal system divides Indian polity into two parts; Union and State. When government organizes Union of States under Central government rather than separate individual State, such kind of organization is called as quasi-federalism[ii].
The legislative relation between Union and State are mentioned into “Article 245 to Article 255 under Part XI of the Constitution of India”[iii]. In fact, Legislative relation between Union and States are subject to distribution of power between three lists as provided under schedule 7 mentioned in Indian Constitution.
The Constitution of India divides the legislative powersinto two parts-
Territorial Legislative Jurisdiction
Legislative Subject Matter
Territorial Legislative Jurisdiction
“Extent of laws made by Parliament and by the Legislature of States”[iv].
Article 245 provides the territorial extent of legislative power of Union and State. Clause 1 provides wider power to Parliament than the State Legislature. It says Parliament may make law for the any part or whole of India subject to the Constitutional provisions. Clause 2 provides extra-territorial legislation. It gives one general rule that Parliament may make law extra-territorial but State may not make law extra-territorial. There is one exception to the above mentioned general rule where State Legislature has also power to legislate beyond the territorial limit of its State only in the condition where Constitutional provisions permits to legislature and there is direct relation between the legislative State and subject matter. Union Parliamentary laws may extend its enforceability outside India. .
Legislative Subject Matter
Subject Matter of Laws Made by Parliament and by the Legislature of States Under Article 246
There are three lists for distribution of power-
Union List: It contains subject matter of national interest. For example; Defense, CBI, Investigation, Atomic energy, War, Space, banking , foreign affairs, Airways, RBI, Taxes, Currency etc.
State List: It contains subject matter of State or local interest. For example; State public order, State police and State officers and State High courts, health etc.
The Concurrent List: It contains with respect to legislation power of both.
The subject matter of Concurrent list makes legislation procedure flexible in nature and made this procedure quasi-federal in nature. It contains general and social welfare subject matter. State or Union Parliament can take any initiative accordingly.
Article 246 Deals With Subject-Matter of Laws Made by Parliament and by The Legislatures of States
Doctrine of Interpretation of Subject Matter under Article 246
1. Doctrine of Harmonious Construction
The aim and objective of this doctrine are to avoid overriding effects of legislative provisions in one particular subject to make all effective. It is a balancing interpretation of the specific so that none of the legislation becomes ineffective as well as the conflict between two legislative provisions within the same Legislation does not arise.[v]
2. Doctrine of Pith and Substance
As the name suggests, the meaning of this doctrine is to check the essential and true nature of the subject matter. The literal meaning of the word “pith” is true nature and “Substance” is essential. This doctrine is applicable in such situations where there is a conflict between provisions of Legislation. In that case, the interpretation of the Legislation will be done according to the law as a whole, not on its separate or independent provisions. Any kind of legislation which is in general within the competence of legislator would be considered as Constitutional even though it may in some situations appears beyond the competency of legislature due to the interpretation of that legislation according to the doctrine of pith and substance.There is one case of Prafulla Kumar Mukherjee v. Bank of Commerce[vi] in whichthe judgment provides the wider meaning of the doctrine.
Aspect theory originates its roots from Canada. In Lefroy's Canada’s Federal System[vii], the learned Author referred to the "aspects of legislation". When legislature subject falls within another legislative power", the learned Author says:"... that by 'aspect' must be understood the aspect or point of view of the legislator in legislating the object, purpose, and scope of the legislation that the word is used subjectively of the legislator, rather than objectively of the matter legislated upon."
In India, general meaning of aspect theory –
There is a division of power in the Indian Constitution and there may be a situation where one subject is common between two lists. Such kind overlapping of subject matter is considered as valid law according to aspect theory.
Role of Judiciary and Aspect theory
Indian judiciary plays an important role in the growth of aspect theory. In case of Tata sky Ltd. V. State of Punjab[viii], there were many judicial decisions discussed in this case in relation to aspect theory. Reference was made to following observation in Federation of hotel & restaurant assn. of India v. Union of India[ix], the Supreme Court observed that: “The subject matter of case was contended as conflict issue. It was expenditure tax under central tax under list I & simultaneously as substance tax under central tax under entry 62 of list II. A legislation like Finance Act can be supported on the basis of a number of entries. In the present case, we are concerned with the Constitutional status of the levy, namely, service tax. The nomenclature of a levy is not conclusive for deciding its true nature & particular levy with reference to the legislative competence, the court has to look into the pith and substance of the legislation, the powers of Parliament & State legislatures are subject to Constitutional limitations. Tax laws are governed by part XII & XIII. “Article 265”[x] takes in A. 245 when it says that the tax shall be levied by the authority of law.After referring to judgments in “Gujrat Ambuja Cements Ltd. V. UOI”[xi], “T.N Kalyana Mandapam Assn. v. UOI”[xii], “International Tourists Corpn. V. State of Haryana”[xiii], with the above-mentioned observations, the theory of aspect is concluded.
3. The Doctrine of Colorable Legislation
The rule interpretation of legislation is entirely opposite to the doctrine of pith and substance. Under this doctrine, the legislator enacts law out of its competence but forcefully gives different-different colors to show or prove it within its competence, in such situation, the law would be considered as invalid and different colors will not be able to protect its validity.
Residuary Powers of Legislation
These powers are generally called as last resort. When there is any subject matter which is directly or indirectly does not fall into any of the three lists, then such powers are exercised by Parliament. “Article 248”[xiv], Union list 1 entry 97 says that for any other matter not enumerated in List II and List III including any tax or not mentioned in either of those lists,
Parliament Power to Legislate on State Subject
“These powers of parliament to legislate are discussed below in details as follow
Legislation for National interest( Article 249)
Legislation during an emergency ( Article 250)
Legislation with consent of States ( Article 252)
Legislation for giving effect to an international agreement (Article 253)
Legislation after failure of Constitutional machinery in State”[xv]
The aim or objective of federal system for division or distribution of power or authority between federal government & the State is mentioned in schedule 7, list 3. There is division of legislative & administrative powers between the Union & State government and the Supreme Court stands at the head of our judiciary to jealously guard this distribution of powers & to invalidate any action which violates the limitation imposed by the Constitution.
There are some provisions given by Indian Constitution, where Centre has supremacy
Quasi Federal would mean a unitary state with subsidiary federal features. Another scholar CH Alexandrowicz has raised the question of whether India should at all be called a federal state?[xvi]
Pre-World War-II, federalism was regarded as a model in which several autonomous units came together. But this conception is getting outdated. Indian model of federalism is based on modern understanding, according to which only a strong Union can keep the Country together and is necessary for the conditions in which the Constitution is operating.[xvii]
[i] Constitution of India 1950, Art. 1 “Name and Territory of the Union”, IndianKanoon https://indiankanoon.org/doc/1406924/ (Visited on 11 Sept 01:40 PM). [ii] Observed by K.C. WHEARE “ Indian constitution as a system of government which is quasi-federal…a unitary State with subsidiary federal features rather than a federal State with subsidiary unitary system”, Pg. 58 D.D BASU Indian Constitution. [iii]Constitution of India 1950, Part XI “Relations between Union & States”. [iv]Extent of laws made by Parliament and by the Legislatures of States, Constitution of India 1950, IndianKanoon https://indiankanoon.org/doc/574894/ (Visited on 12 Sept 02:28 PM). [v] Dr. Ashok k. Jain, Constitutional law (4th edition Ascent publication 2010) Pg. 126. [vi]Prafulla Kumar Mukherjee v. Bank of Commerce AIR 1947 PC 60 (India). [vii] Dr Sanjeev Aggarwal, ASPECT THEORY & INTERPRETATION OF TAX. [viii] Tata sky Ltd. V. State of Punjab CWP NO 100992 of 2010 (India). [ix] Federation of hotel & restaurant assn. of India v. Union of India (1989) 3 SCC 634 (India). [x]Taxes not to be imposed save by authority of law, Constitution of India 1950, IndianKanoon https://indiankanoon.org/doc/1405898/ (Visited on 13 Sept 04:15 PM). [xi] Gujrat Ambuja Cements Ltd. V. UOI (2005) 4 SCC 214 (India). [xii] T.N Kalyana Mandapam Assn. v. UOI (2004) 5 SCC 632 (India). [xiii] International Tourists Corpn. V. State of Haryana (1981) 2 SCC 318 (India). [xiv]Residuary powers of legislation, Constitution of India 1950, IndianKanoonhttps://indiankanoon.org/doc/1270258/ (Visited on 14 Sept 05:11 PM). [xv] Constitution of India, Art. 249 250 252 253 356. [xvi] CH Alexandrowicz, “Is India a Federation?”, 3 International and Comparative Law Quarterly 1954, Pg. 393. [xvii] MP Singh, “Federal Scheme in Sujit Choudhry Madhav Khosla and Pratap Mehta (eds)”, The Oxford Handbook of Indian Constitution 2016, Pg. 451-465.