Legislative relations between union and state - Durga Naik

A common feature of many federal constitutions follow the U.S federal model is to enumerate a list of legislative powers and assign them to the union and leave the residue to the states. The Canadian constitution, on the other hand, follows a different system according to which there are two lists of legislative powers, and one for centre and the other for the provinces and the residue is vested in the centre. The constitution of India follows a system similar to the Canadian, but with more elaborate lists which include the additional one called the concurrent list. In drawing up an elaborate concurrent list, the framers followed the Australian pattern of federal division of powers. Under the Australian constitution, concurrent subjects are 39. Under the draft constitution they were 37. The scheme is almost the same as government of India

                  In place of existing system, Alladi krishnaswami Aiyar had proposed a simpler and more logical scheme of division of powers beween the union and states. According to this, there would be only two lists, an exclusive state list and a concurrent list with federal supremacy. The rest of the powers would be vested exclusively in the union. Further, there was to be a provision for the supremacy of union law over state law if there was a conflict between the two even with respect to items included in the state list. Alladi contended that such a scheme of division was more logical in the context of and in keeping with the change in the pattern of federalism. Federalism, according to him, had already become a centre – dominated system. The residuary power being with the centre, three lists were unnecessary. The simpler scheme he suggested would eliminate almost completely the possibility for litigation under the current pattern of division of powers.

              Distribution of legislative powers described in the VII Schedule of Indian Constitution. The scheme established by the constitution, as pointed out earlier, consists of three lists, union list, the state list and the concurrent list.

(a) Union List:

Only Union Parliament is empowered to make laws on the subjects given in the Union List. 98 subjects (after 42nd Constitution Amendment Act, 1976) (few important subjects listed below) Defense, Foreign Relations, Post and Telegraph, International War and Peace, International Trade, Commerce, Citizenship, Coinage, Railway, Reserve Bank, International Debt, Atomic Energy, union public services, elections, income tax, customs duties and export duties, duties of excise, corporation tax, taxes on sale and purchase 0oof newspaper, etc., which are of common interest to the Union and with respect to which uniformity of legislation throughout the union is essential. As such, parliament has exclusive power of legislation with regard to the items mentioned in this list.

(b) State List:

Only State Legislature is empowered to make laws on the subjects given in the State List 66subjects. The selection of these items made on the basis of local interest and it envisages the possibility of diversity of treatment with respect to different items in the different states of the union. Some of the important items are Public Health, Roads, Agriculture, Irrigation, Prisons, Local Administration, Distribution of Water, Police, water supplies and irrigation, land rights, fisheries, trade and commerce within the state. The state legislature has the exclusive power of legislation with regard to everyone of the items included in the state list

Exception: In the case of Emergency, Union Parliament automatically acquires the power of legislation on the subjects given in the State List.

(c) Concurrent List:

There are items with respect o which uniformity of legislation throughout the union is desirable but not essential. As such, they are placed under the jurisdiction of both ‘the union and the states’. This list includes items such as detention for reasons connected with the security of the state, marriage and divorce, education, transfer of property other than agricultural land, trade unions, social security, legal, electricity, factories, books and printing presses, stamp duties, etc

Residuary Powers: Article 248, Union Parliament shall make laws over the subjects not included in the above given lists. The Indian Constitution gives residuary powers not to the states, but to the Central Government.

Union Parliament's Power to legislate on the Subjects given in the State List

        I.            On the basis of the resolution passed by the Council of State -Article 249, 2/3 majority, Issues of National Interest

     II.             Article 352: Supremacy of Union Parliament during National Emergency,

   III.            Article 356: During Constitutional Emergency. Supremacy of Union Parliament over Concurrent List

  IV.            Article 248: Residuary Powers are under the control of Union Parliament.

     V.            Article 169: Power of Union Parliament to abolish State Legislative Council.

The Concurrent List gives power to two legislatures, Union as well as State, to legislate on the same subject. In case of conflict or inconsistency, the rule of repugnancy, as contained in Article 254 comes into play to uphold the principle of Union Power. Under this rule, if there is any discrepancy between the State and the Centre over a subject in the Concurrent List, the Union law takes precedence over the state's law. The idea of a concurrent list was borrowed from the government of India act of 1935.

Problems and prospects of centre state legislative relations:

The problems that have attracted attention in the field of Union-State relations have less to do with the need to re-evaluate centre - state relations (state perspective)

(i) More powers to the state

(ii) Residuary powers to the state

(iii) Reform in the office of Governor

(iv) Not to hold the Bills passed by the State Leg­islatures

(v) Delete Articles 356 & 249

(vi) Equal representation of states in council of states (Rajya Sabha)

(vii) Financial Autonomy to States

(viii) Reforms in All India Services

(ix) Participation of states in planning

Structure or the rationale of the Concurrent List than with the manner in which the Union has exercised its powers the Union-State should be studied in the context of the political regime that prevailed in the country over the last half century.

The first four decades of the Republic was characterized by single party dominance at the centre and the States and it was more of centralization in the relations.

Control over the ordinance-making power of the governor

Under the Constitution, the Governor of a State is authorized to issue ordinances, when the State Legislature is not in session. Though, it is expected that the Governor will issue such ordinances only with the approval of the State Council of Ministers, but under certain circumstances, he can issue these ordinances only with the prior approval of the President of India.

(1) If the ordinance deals with the subject regarding which laws can be introduced in the state legislative only with the prior approval of the President.

(2) If a bill has been reserved for the opinion of the President, an ordinance on the same subject can be issued only with prior approval of the President.

(3) Ordinance on a subject on which a law passed by the state legislature is not valid without the approval of the President.

A major anomaly according to K.N. Kabra, is that the term 'concurrent' is a misnomer if one takes into account the overriding powers of the Union, particularly in view of the concentration of fiscal and economic powers at the Union level and States' virtual dependence on the Union in discharging only such functions which are left-over by and are permitted and tolerated by the latter.

This makes for excessive and dysfunctional centralization, which is not conducive to socio-economic change and materialization of democratic aspirations, which can be articulated, in our kind of uneven society in a decentralized framework.

He says the list of subjects over which lately the Panchayati Raj institutions are enabled to have jurisdiction cannot become operationally relevant unless the States are adequately empowered to make their choices in a relatively autonomous manner with matching relative financial autonomy and are in a position to make resources available to the PRIs in a coordinated manner.

It is clear that though the Centre and the Sates have been assigned independent legislative spheres the Centre reserves the right to interfere in the sphere reserved for the Sates.

The Commission therefore recommended that as a matter of salutary convention the President should dispose off a reference within a period of four month from the date on which the reference is received by the Union government. If any clarification is required from the concerned State government, this should be done within two months. Moreover, seeking piecemeal clarification time and again should be avoided.

But towards the end of the fourth decade, the one party dominance ended paving way for the coalition Governments at the centre. For survival, the Government at the Centre is using co-operative federalism to fulfill the wishes of the State Governments.

 Conclusion:

The appointment of the sarkaria commission by the union government in 1893 to make a comprehensive review of the relationship between the union and states was a step in the right direction. Although the commission has made many recommendations of far-reaching significance hardly anyone of them has been implemented so far (2000).