there is a strong admixture of unitary bias and the exceptions from the
traditional federal scheme are many, the Constitution introduces a federal
system as the basic structure of government of the country.
The Union is
composed of 28 States' and both the Union and the States derive their
authority from the Constitution which divides all powers,-legtslative,
executive and financial, as between them.
The judicial powers as already
pointed out, are, not divided and there is a common judiciary for
the Union and the States.
The result is that the States are not delegates of
the Union and that, though there are agencies and devices for Union control
over the States in many matters subject to such exceptions.
The States are
autonomous within their own spheres as allotted by the Constitution and
both the Union and the States are equally subject to the limitations imposed
by the Constitution
For instance, the exercise of legislative powers being
limited by Fundamental Rights.
Thus. neither the Union Legislature (parliament) nor a State Legislature
can be said to be 'sovereign' in the legalistic sense
Each being limited by
the provisions of the Constitution effecting the distribution of legislative
powers as between them, apart from the Fundamental Rights and other
specific provisions restraining their powers in certain matters, e.g., Art. 276(2)
[limiting the power of a State Legislature to impose a tax on professions];
Art. 303 [limiting the powers of both Parliament and a State Legislature with
regard to legislation relating to trade and commerce). If any of these
constitutional limilations is violated, the law of the Legislature concerned is
liable to be declared invalid by the Courts.
As regards the territory with respect to which the Legislature may
legislate, the State Legislature naturally suffers from a limitation to which
Parliament is not subject, namely, that the territory of
the Union being divided amongst the States, the
Legislation jurisdiction of each State must be confined to its own
When, therefore, a State Legislature makes a
law relating to a subject within its competence, it must be read as referring to
persons or objects situated within the territory of the State concerned.
State Legislature can make laws for the whole or any part of the State to
which it belongs
It is not possible for a State Legislature to
enlarge its territorial jurisdiction under any circumstances except when the
boundaries of the State itself are widened by an Act of Parliament.
Parliament has, on the other hand. the power to legislate for 'the whole
or any part of the territory of India', which includes not only the States but
also the Union Territories or any other area, for the time being included in
the territory of India
It also possesses the power of 'extra territorial legislation'
, which no State Legislature possesses.
means that laws made by Parliament will govern not only persons and
property within the territory of India but also Indian subjects resident and
their property situated anywhere in the world.
No such power to affect
persons or property outside the borders of its own State can be claimed by a
State Legislature In India.
The plenary territorial jurisdiction of Parliament
Is, however. subject to some special provisions of the Parliament.
(i) As regards some of the Union Territories, such as the Andaman and
Laksadweep group of Islands, Regulations may be made by the President to
have the same force as Acts of Parliament and such Regulations may repeal
or amend a law made by Parliament in relation to such Territory
(ii) The application of Acts of Parliament to any Scheduled Area
be barred or modified by notifications made by the Governor
(iii) Besides, the Governor of Assam may, by public notification, direct
that any other Act of Parliament shall not apply to an autonomous district or
an autonomous region In the State of Assam or shall apply to such district or
region or part thereof subject to such exceptions or modifications as he may
specify in the notification
A Similar power has
been vested in the President as regards the autonomous district or region in
Meghalaya, Tripura and Mizoram by Paras 12A, 12AA and 12B of the 6th
It is obvious that the foregoing special provisions have been inserted in
view of the backwardness of the specified areas to which the indiscriminate
application of the general laws might cause hardship or other injurious
As regards the subjects of legislation, the Constitution adopts from
the Government of India Act, 1935, a threefold
distribution of legislative powers between the Union
and the States
While in the United States
and Australia, there is only a single enumeration of
powers, only the powers of the Federal Legislature being enumerated,-in
Canada there is a double enumeration, and the Government of India Act,
1935, introduced a scheme of threefold enumeration, namely. Federal,
Provincial and Concurrent
The Constitution adopts this scheme from the
Act of 1935 by enumerating possible subjects of legislation under three
List 1 or the Union List includes (in 2008) 100 subjects over which the
Union shall have exclusive power of legislation. These include defence,
foreign affairs, banking, insurance, currency and coinage. Union duties and
List II or the State list comprises 61 items or entries over which the
State Legislature shall have exclusive power of legislation, such as public
order and police, local government, public health and sanitation, agriculture,
forests, fisheries. State taxes and duties.
List III gives concurrent powers to the Union and the State Legislatures
over 52 items. such as Criminal law and procedure, Civil procedure,
marriage, contracts, torts, trusts, welfare of labour, economic and social
planning and education.
In case of overlapping of a matter as between the three Lists,
predominance has been given to the Union Legislature, as under the
Government of India Act, 1935.
Thus, the power of the State Legislature to
legislare with respect to matters enumerated in the State List has been made
subject to the power of Parliament to legislate in respect of matters
enumerated In the Union and Concurrent Lists, and the entries in the State
List have to be interpreted accordingly.
In the concurrent sphere, in case of repugnancy between a Union and a
State law relating to the same subject, the former prevails.
If, however, the
State law was reserved for the assent of the President and has received such
assent, the State law may prevail notwithstanding such repugnancy
would still be competent for Parliament to override such State law by
The vesting of residual power under the Constitution follows the
Residuary Powers precedent of Canada, for, it is given to the Union
instead of the States (as in the U.S.A. and Australia).
In this respect, the Constitution differs from the Government of India Act,
1935, for under that Act, the residual powers were vested neither in the
Federal nor In the State Legislature.
But were placed in the hands of the
Governor-General; the Constitution vests the residuary power, i.e., the power
to legislate with respect to any matter not enumerated In anyone of the
In the Union legislature and the final determination
as to whether a particular matter Calls under the residuary power or not Is
that of the Courts.
It should be noted, however, that since the three Lists attempt at an
exhaustive enumeration of all possible subjects of legislation, and the Courts
interpret the ambit of the enumerated powers liberally, the scope for the
application of the residuary power will be very narrow.
The interpretation of over 200 Entries in the three Legislative Lists is no easy task for the Courts and the Courts have to apply
the Legislative various judicial principles to reconcile the different
Entries, a discussion of which would be beyond the
scope of the present work Suffice it to say that -
(a) Each Entry is given the widest form that its words are capable of,
without rendering another Entry
(b) In order to determine whether a particular enactment falls under
one Entry or the other, it is the 'pith and substance' of such enactment and
not Its legislative label that is taken account of.
If the enactment
substantially falls under an Entry over which the Legislature has jurisdiction,
an incidental encroachment upon another Entry over which it had no
competence will not invalidate the law.
(c) On the other hand, where a Legislature has no power to legislate
with respect to a matter, the Courts will not permit such Legislature to
transgress its own powers or to encroach upon those of another Legislature
by resorting to any device or 'colourable legislation.'
(d) The motives of the Legislature are, otherwise, irrelevant for
determining whether it has transgressed the constitutional limits of its