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The distribution of legislative powers

With Regards,

Submitted By:

Assist. Prof. Priya Mohod

DivyanshSharma

MATS Law School

B.B.A.L.L.B(sem-2)

MATS University
Arang, Gullu, Raipur

ACKNOWLEDGEMENT

The success & final outcome of this project required a lot of guidance & assistance
from many people & we are extremely fortunate to have got this all along the
completion of my project work.
I respect & thank Assist. Prof. Priya Mohod for giving me an
opportunity to do the project work on The distribution of legislative powers&
providing me all support & guidance which made me complete the project.
I am extremely grateful to you for providing such a nice support & guidance though
you had busy schedule.
I am thankful to you & fortunate enough to get constant
encouragement, support & guidance from all Teaching staff of different Department
which helped us in successfully completing my project work.
Also, I could like to extend my sincere regards to all the nonteaching staff of department of library for their timely support.

Divyansh Sharma

The Distribution of legislative powers between the Centre and the


States in India
The distribution of legislative powers between the Centre and the States is an essential
feature of a federal Constitution. The object is formed to involve a division of
authority between the Centre and the States. The Constitution of India has made two
fold distributions of legislative powers between the Union and States, viz.
(1) With respect to territory;
(2) With respect to subject-matter.
(1) Territorial jurisdiction:
Article 245 (1) provides that subject to the provision of this Constitution, Parliament
may make laws for the whole or any part of India and the Legislature of a State may
make laws for the whole or any part of the State. Article 245 (2) provides that a law
made by Parliament shall not be deemed to be invalid on the ground that it has extraterritorial operation, Le., takes effect outside the territory of India.
The legislative powers of the Parliament or the State Legislatures is subject to the
provisions of the Constitution, viz.:
(1) The Scheme of distribution of legislative powers;
(2) Fundamental rights;
(3) Other provisions of the Constitution.
Theory of Territorial nexus:
Article 245 (1) provides that subject to the provisions of this Constitution, the State
may make laws for the whole or any part of the territory of India, and the Legislature
of a State may make laws for the whole or any part of the State.
It means that State laws would be void if it has extra-territorial operation, Le. it takes
effect outside the State. However, there is one exception to this general rule. A State
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law of extra-territorial operation will be valid if there is sufficient nexus to the object
and the State.
In State of Bombay v. R.M.D.C., AIR 1957 S.C. 699, the Bombay State levied a tax
on lotteries and prize competitions. The tax was extended to a newspaper printed and
published in Bangalore but it had wide circulation in Bombay. The respondent
conducted the prize competitions through this paper. The Court held that there existed
a sufficient territorial nexus to enable the Bombay State to tax the newspaper.

(2) Distribution of legislative powers:


The crux of a federal Constitution is the division of powers and functions between the
Union and the States. Usually, certain powers are allotted to the Centre, certain
powers are allotted to the States and some areas may be common for both to operate.
A basic test which is applied to decide upon what subjects should be allotted to the
one or the other level of government is that functions of national importance should
go to the Centre and those of local interest should go to the States. This test is very
general, rather rough; an ad hoc formula does not lead to any uniform pattern of
allocation of powers and functions between the two tier governments.
The Indian Constitution seeks to create three functional areas; an exclusive area for
the Centre to operate; an exclusive area for the States to operate, and a common or
concurrent area in which both the Centre and the States may operate simultaneously,
subject to the overall supremacy of the Centre.
Article 246 (1) confers on Parliament an exclusive power of legislature in respect of
matters in the Union List. Thus, so far as this list is concerned, the States are not
entitled to make any law on the matters mentioned in this list.
Article 246 (2) confers a concurrent power of legislation on both the Centre and the
States with respect to any of the matters enumerated in Concurrent List. In this area,
therefore, both the levels of government can function simultaneously.

Article 246 (3) confers an exclusive power on the State Legislatures to make laws for
their respective States with respect to matters enumerated in State List. In this area
therefore, the Centre cannot legislate and the matter falls within the exclusive domain
of the State.
There are certain matters which could not be allocated exclusively either to the Centre
or the States, though States might legislate with respect to them, but it was necessary
that the Centre should also have legislative jurisdiction in order to secure uniformity
in the main principles of law throughout the country to guide and encourage State
effort, and to provide remedies for mischiefs in the State sphere, but extending or
liable to extend beyond the boundaries of single State.
Concurrent List has made it possible to eliminate all diversity of laws which are at the
basis of civil and corporate life of the country. The great Codes of Civil Procedure and
Criminal Procedure, Evidence Act, and Transfer of Property Act, are some of the
examples.
Concurrent List consists of 47 subjects. New entries 11-A, 17-A, 17-B, 20-A and 33A have been added by constitutional amendments. Both Centre and the States can
make laws on the subjects mentioned in the Concurrent List. But in case of conflict
between the Central and the State law on concurrent subjects, the Central law will
prevail.
The above three lists are very exhaustive and elaborately drawn and it may be
assumed that practically all subjects identifiable today, have been assigned to the
governments in these lists. But the present era is of fast technological growth and
advancement.
In the atomic and hydrogen age, no one can visualize today the future developments
and exigencies of the government. To meet this difficulty, the Constitution has laid
down the formula by which the residue, the subjects not mentioned in any of the lists
belongs to the Centre exclusively. Article 248 lays down in this context, Parliament
has exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or State List.

To effect all these provisions in the Constitution is to invest exclusively in the Centre
any residuary power of legislation.
Parliaments power to legislate on State Subjects:
Though in normal times, the distribution of powers must be strictly maintained and
neither the State nor the Centre can encroach upon the sphere allotted to the other by
the Constitution, yet in exceptional situations, the above system of distribution may be
suspended. These exceptional situations are:
(1) Power of Parliament to legislate in national interest:
According to Article 249, if the Rajya Sabha passes a resolution supported by twothirds majority that it is expedient or necessary in the national interest that Parliament
should make laws with respect to any matter enumerated within State List, then it will
be lawful for the Parliament to make laws for the whole or any part of the territory of
India.
(2) During a proclamation of Emergency:
According to Article 250, while the proclamation of Emergency is in operation, the
Parliament shall have power to make laws for the whole or any part of the territory of
India with respect to matters on State List. Such a law will expire after six months on
expiration of the proclamation of emergency.
(3) Parliaments power to legislate with the consent of States:
According to Article 252, if the legislature of two or more States pass resolution to the
effect that it is desirable to have a law passed by Parliament on any matter in State
List, it shall be lawful for Parliament to make laws regulating that matter. Any other
State may adopt such a law by passing a resolution to that effect.
(4) Parliaments Power to legislate for having effect to treaties and international
agreements:
Article 253 empowers the Parliament to make any law for the whole or any part of the
territory of India for implementing treaties and international agreements and
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conventions. In other words, the normal distribution of powers will not stand in the
way of Parliament to pass a law to give effect to any international agreement even
though such law relates to any of the subjects in the State List.
(5) In case of failure of constitutional machinery in the State:
Under Article 356 Parliament is empowered to make laws with respect to all matters
in the State List when the Parliament declares that the government of the State cannot
be carried on in accordance with the Constitution.
It is submitted that these provisions enable the Centre to legislate in exceptional
circumstances on the State subjects without amending the Constitution and thus
introducing a certain amount of flexibility in the scheme of distribution of legislative
powers
Union Legislature
The Parliament of India consists of the President and the two houses the Lower
House or Lok Sabha and the Upper House or Rajya Sabha.
RAJYA SABHA
It is the Upper House of the Parliament. It consists of representatives of the states.
The maximum strength of the Rajya Sabha is 250. Of these 238 represent the States
and Union territories and the rest 12 are nominated by the President from amongst
persons who have distinguished themselves in the field of literature, art, science,
social service, etc. Representatives of the states are elected by members of State
Legislative Assemblies on the basis of proportional representation through a single
transferable vote. The Rajya Sabha represents the federal character of the Constitution
in the Parliament. The membership of a State is based on the population of that state.
Term: The Rajya Sabha is a permanent body, and not subject to dissolution. One third
of its members retire every 2- year. The members are elected by the elected members
of the State Legislative Assemblies for a six year term.. There are no seats reserved
for Scheduled Castes & Tribes in the Rajya Sabha.

Qualifications for membership


In order to be qualified to become a member of the Rajya Sabha, a person must be:
(1) be a citizen of India;
(2) not be less than 30 years of age; and
(3) have registered as a voter in any parliamentary constituency.
Chairman and Deputy Chairman of Rajya Sabha
The Vice President of India is ex-officio chairman of the Rajya Sabha . He presides
over the proceedings of the Rajya Sabha. In his absence the Deputy Chairman of the
Rajya Sabha presides over. The Deputy Chairman is elected by the members of the
Rajya Sabha amongst themselves.
Special powers of the Rajya Sabha
The special powers of the Rajya Sabha are in the form of initiating certain resolutions.

These are:
(1) A resolution seeking the removal of the Vice-President can originate only in the
Rajya Sabha where the resolution must be passed by a majority of all the then
members of the Rajya Sabha, and agreed to by the Lok Sabha.
(2) If the Rajya Sabha passes a resolution by a majority of not less than two- thirds of
the members present and voting that it is necessary or expedient in the national
interest that Parliament should make laws with respect to any matter enumerated in
the State List, it shall be lawful for Parliament to make law for the whole or any part
of the territory of India on that matter for a period of not exceeding more than one
year.
(3) If the Rajya Sabha passes a resolution by a majority of not less than two- third of
the members present and voting that it is necessary or expedient in the national
interest, to create one or more all- India services, Parliament by law may provide for
such services.
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LOK SABHA
The Lok Sabha is the Popular house of the Indian Parliament. It consists of
representatives elected by the people on the basis of universal adult franchise through
secret ballot. The constitution prescribes a membership of not more than 530
representatives of the states, not more than 20 representatives of the Union Territories
and not more than 2 members of the Anglo- Indian Community nominated by the
President., if in the opinion of the President that the Anglo- Indian community is not
adequately represented in the Lok Sabha. The Constitution empowers the Parliament
to readjust the seats in the Lok Sabha on the basis of population after every census.
Term -The normal term of the Lok Sabha is five years, but it may be dissolved
earlier by the President. The 42nd Amendment Act 1976 extended the normal life of
the Lok Sabha to six years, but the 44th amendment Act 1978 has set it at five years
as the original Constitution envisaged. The life of the Lok Sabha can be extended by
the Parliament beyond the five year term when a proclamation of emergency under
Article 352 is in force. But the Parliament cannot extend the normal life of the Lok
Sabha for more than one year at a time, but in any case such extension cannot
continue beyond a period of six months after the proclimation comes to an end.
Qualifications for membership of Lok Sabha
In order to be a member of the Lok Sabha, a person must:
(1) be a citizen of India
(2) not be less than 25 years of age and
(3) has registered as a voter in any Parliamentary constituency.
Disqualifications for membership.
A person shall be disqualified for being a chosen as, and for continuing as, a member
of either House of the Parliament if he:
(a) holds any office of profit
(b) is of unsound mind;
(c) voluntarily acquires the citizenship of a foreign country;
(d) is an undischarged insolvent; or
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(e) is disqualified under any law made by the Parliament


A member who incurs any of the disqualification after election is deemed to have
vacated his seat. A member can resign at any time. His resignation has to be accepted
by the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha as the case may
be. If a member of either House remains absent for 60 days without seeking the
permission of the House, the House may declare his seat vacant. Matters of
disqualifications of a member are decided by the President in consultation with the
Election Commission, which is binding on him.
Speaker and Deputy Speaker of the Lok Sabha
The Speaker is the Chief Presiding Officer of the Lok Sabha. The Speaker and the
Deputy Speaker of the Lok Sabha are elected by the members of the Lok Sabha
amongst themselves. When the office of the Speaker falls vacant or when the Speaker
is absent from any sitting of the house, the Deputy Speaker performs the duties of the
Speaker. The Speaker and the Deputy Speaker remain in office so long as they are
members of the house. The Speaker continues in his office, even after the Lok Sabha
is dissolved till the newly elected Lok Sabha is constituted. The Speaker and the
Deputy Speaker may be removed from their office by a resolution of the House after
serving a 14 day notice on them. The Speaker does not vote in the first instance, but
exercises his casting vote in the case of a tie i.e. in the case of equality of votes.
The Speaker possesses certain powers that do not belong to the Chairman of the Rajya
Sabha. They are as follows:
(1) It is the Speaker who presides over a joint sitting of the Houses of the Parliament;
(2) When a Money Bill is transmitted from the Lok Sabha to the Rajya Sabha the
power to certify it as a money bill is given to the Speaker,
(3) The decision of the Speaker as to whether a bill is money bill is final
Special powers of the Lok Sabha- The Lok Sabha enjoys the following powers
which are not available to the Rajya sabha
(1) A confidence or no confidence motion can be initiated and passed only in the
Lok Sabha.

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(2) Money and financial bills can be introduced only in the Lok Sabha. The Rajya
Sabha cannot reject or amend a Money bill by virtue of its legislative powers.
It possesses only a recommendatory role in the passage of a money bill and
can delay it for a maximum period of 14 days only. The Lok Sabha enjoys full
legislative power in this regard.

(3) Under Art.352 the Lok Sabha in a special sitting can disapprove the
continuance in force of a national emergency proclaimed by the President. In
such a case the President shall revoke the national emergency.

State Legislature
The powers and functions of the State Legislature may be enumerated under the
following heads:(a) Legislative Powers
The Legislature of each State is empowered to frame laws on all matters included in
the State List and the Concurrent List. But laws made by the State Legislature on the
subject in the Concurrent List will be null and void in case they conflict with the laws
of the Union on the same subject provided the relevant laws of the State Legislature
have not obtained the assent of the President. Thus, the Constitution has imposed
certain restrictions on the powers of the State Legislature. Another limitation on the
power of the legislature is that during an emergency, the Parliament of India may
make laws on the State List.
According to Article 249 of the Constitution, even in normal times, if the Council of
States passes a resolution by Two-thirds majority that in the national interest the
Union Parliament should make law on any matters in the State List, the Parliament of
India is competent to make laws.
Further, the Governor at his discretion may reserve certain bills like acquisition of
private property, bills seeking to impose restrictions on freedom of trade and
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commerce, bills affecting powers of High Courts, etc. for presidential assent. Under
such circumstances, the President of India may give assent to such bills or send them
back for the reconsideration of the State Legislature. If such bills are again passed by
the State Legislature, the President is not bound to give his assent. Thus the President
can veto the bills in entirety, if he so desires. Thus the legislative power of the State
legislative Assembly is limited.
(b) Financial Powers:
The Legislature of a State also controls the finances of a State. Without the legislative
sanction, a single paisa cannot be spent. The budget is introduced every year in the
State Legislature. The State Legislature may pass, reduce, or reject the demands for
grants made in the budget. It is its duty to find ways and means to meet the budget
expenditure. Proposal for increase or decrease of taxes are to be approved in the
Assembly.
In a bi-cameral legislature, the position of the Legislative Assembly superior to that of
the Legislative Council in respect of financial matters. Excepting the expenditure
charged on the Consolidated Fund of the State (which is non-votable) all other items
of expenditure must be submitted to the Legislative Assembly in form of demands for
grants. In financial matters, the Legislative Assembly is supreme in the State.
(c) Control over Executive
The Constitution introduced parliamentary type of Government in the Centre as well
as in the States. Consequently, the Council of Ministers is collectively made
responsible to the State Legislature. The Legislature exercises supervision and control
over the Ministers. The common method used to make the Ministers responsible to
the Legislature is through question, censure motion, amendment to Government's
policy, vote of no confidence, etc.
There are also Committees, which exercise control on the Government on behalf of
the State Legislature. In controlling the Executive, the Legislative Assembly is more
powerful than the Legislative Council. A vote of no confidence in the Legislative
Council may not lead to the resignation of the Council of Ministers. However, such a
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vote of no confidence if passed in the Legislative Assembly compels the Ministry to


tender its resignation.
(d) Electoral Functions
The elected members of the Legislative Assembly constitute a part of the Electoral
College provided for the election of the President of India. The Legislative Assembly
also elects the representatives of the State to the Rajya Sabha and 1/3rd of the
members of the Legislative Council of the State concerned. It also elects its Speaker
and Deputy Speaker. Legislative Council also elects a Chairman and Vice-Chairman
from among its members to preside over the meeting of the Council.
(e) Constituent Functions
The State legislatures in India have no power to propose any amendment of the
Constitution. All initiatives for the amendment of the Constitution are vested in the
Union Parliament.
In America, both the Union and the States have equal power with regard to the
amendment of the Constitution. However, there are certain categories of amendments
of the Indian Constitution (such as the election of the Indian President, High Courts,
the representation of States in the Parliament, Article 368 of the Constitution etc.)
which are to be ratified by one half of the Legislatures. In these respects, the State
Legislatures also take part in the amendment of the Constitution. The 15th and 16 th
Amendment Bills were referred to the State Legislatures. Only when they received the
support of half of the State Legislatures, the amendment became valid. Thus unlike
U.S.A., the State legislatures in India has limited voice in the amendment of the
Constitution.

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