Articles 245 to 255 - Legislative relations
- Legal Journey
- Nov 1
- 18 min read
Relations between the Union and the States
Part XI
(Articles 245 to 263)
Legislative Relations
Chapter I
(Articles 245 to 255)
Table of Contents 💻
- India has been well described as having a Federal Constitution with some Unitary Features.
- Which we also term as having a Quasi-Federal Constitution.
- But, primarily we are a Federal State, and one of the most essential features of federalism is the Distribution of Powers.
- A Federal Constitution establishes a form of Government where neither the Centre nor the State is subordinate to the other in its own fields.
- The Authority of one is co-ordinate with that of the other.
- The basic principle of federation is that the legislative, executive and financial authority is divided between the Centre and State NOT by any law passed by the Centre but by the Constitution itself.
- This is exactly what the Constitution of India does.
- In this part we will discuss the legislative distribution between Centre and the State.
We have already discussed the Executive distribution between Centre and the State under which Articles?
- Article 73 for the Union and Article 162 for the State.
- We will discuss more about the distribution of executive power of Centre and State under Chapter II of Part XI.
Legislative Relations under the Indian Constitution has been divided into two categories:-
Territorial Jurisdiction (Article 245); and
Subject-matter Jurisdiction (Article 246).
Article 245. Extent of laws made by Parliament and by the Legislatures of States
Clause (1) - It provides that:-
Parliament may make laws for | Whole or any part of the Territory of India |
State Legislature may make laws for | Whole or any part of the State. |
- But, this is Subject to the Provisions of the Constitution of India.
- For example - Fundamental Rights can curtail the Legislative Powers of any Legislature.
Clause (2) - Any law made by Parliament which might have extra-territorial operation shall NOT be deemed to be invalid ONLY on this ground.
- Extra-territorial operation means that it takes effect outside the territory of India.
Doctrine of Territorial Nexus
- As per Article 245(1), the State Legislature may make laws for the whole or any part of the State.
- And unlike the Parliament, which has been granted power to even make laws which can have extra-territorial operation under Article 245(2).
- The State has NOT been granted such power, this means that State Laws would be VOID if it has extra-territorial operation, i.e., it takes effect outside the State.
- However, there is one exception to this General rule.
- A State law of extra-territorial operation will be valid if there is sufficient nexus between the object and the State.
- This is the Doctrine of Territorial Nexus.
State of Bombay V. R. M. D. C. (1957 SC)
- In this case the Bombay State had levied a tax on lotteries and prize competitions.
- The tax was extended to a newspaper printed and published in Bangalore but had wide circulation in Bombay.
- The Court held that there existed a sufficient territorial nexus to enable the Bombay State to tax the newspaper.
- If there is sufficient nexus between the person sought to be charged and the State seeking to tax him, the taxing statute would be upheld.
- But, the connection between the State and the subject-matter of law must be real and NOT illusory and the liability sought to be imposed must be pertinent to that connection.
- Whether there is sufficient connection is a question of fact and will be determined by Courts in each case accordingly.
State of Andhra Pradesh V. Hindustan Machine Tools (1975 SC)
- The power of the Legislature to pass a law postulates the power to pass it prospectively as well as retrospectively, the one no less than the other.
- Within the scope of its legislative competence and subject to other constitutional limitations, the power of the Legislature to enact laws is plenary.
- Plenary means it is absolute and the only restrictions exist in the Constitution itself.
- The Legislature has power to alter the existing laws retrospectively.
- The power to validate a law, retrospectively is, subject to other Constitutional limitations, an ancillary power to legislate on the particular subject.
State of M. P. V. Rakesh Kohli (2012 SC)
- Any Statute enacted by the Parliament or State Legislature cannot be declared unconstitutional lightly.
- The Court must be able to hold beyond any iota of doubt that the violation of the Constitutional provision was so glaring that legislative provisions under challenge cannot stand.
State of Haryana V. Karnal Co-operative Farmer’s Society (1993 SC)
- The Court held that a Legislature has the power to render ineffective the earlier judicial decisions by removing or altering or neutralising the legal basis in the unamended law on which such decisions were founded, even retrospectively.
- But, the Legislature does NOT have the power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid or NOT binding.
- For such power, if exercised, would NOT be a legislative power but a Judicial power which cannot be encroached upon by a Legislature under our Constitution.
Validation Act
- A validation act, also known as a validating statute, is a law that retroactively validates something that was previously considered invalid or unlawful.
- It essentially cures a legal defect by making something valid that was previously not, often due to a retrospective change in the law.
Amarendra Kumar Mohapatra V. State of Orissa (2014 SC)
- It is the exclusive power of the legislature to validate an invalid law or to legalise an illegal action.
- It is NOT an encroachment on the judicial power of the Court.
- But, when the validity of any such Validation Act is called in question, the Court would have to carefully examine the law and determine whether :-
(a) The vice of invalidity that rendered the act, rule, proceedings or action invalid has been cured by the validating legislation;
(b) Whether the legislature was competent to validate the Act, action, proceedings or rule declared invalid in the previous judgments; and
(c) Whether such validation is consistent with the rights guaranteed by Part III of the Constitution.
- ONLY when all these 3 questions are answered in affirmative, the Validation Act can be held to be effective and the consequence flowing from adverse pronouncement of the Court held to be neutralised.
Delegated Legislation
- Delegated Legislation also known as Subordinate Legislation may be defined as rules of law made under the authority of an Act of Parliament.
- The Authority to make laws is vested in the Legislature, but the Legislature may by Statute delegate its power to other persons or bodies.
- Statutes providing for delegated legislation are commonly known as “the enabling Act” and they lay down the broader principles and leave the detailed rules to be provided by regulations made by the delegated body.
- Delegated legislation exists in the form of rules, regulations, orders and bye-laws.
- Under Article 13(3), law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usages.
- The Constitution of India permits subordinate legislation.
- Hence, both the Parliament of India as well as State Legislatures can delegate to any subordinate body.
- But, this power is NOT absolute.
- Limitations have been imposed on the Legislature through various Judgments of the Courts.
- The most important limitation being that the Legislature CANNOT delegate its essential legislative functions.
There are 2 types of control over delegated legislation:-
Judicial Control
Legislative Control
Judicial Control
- Just as the Courts are empowered to conduct Judicial Review over legislation of the Legislature.
- The same power extends to delegated Legislation as well.
- The Courts have the power to consider whether the delegated or subordinate legislation is consistent with the provisions of the “enabling Act”.
- Their validity can be challenged on the ground that it is beyond the competence of the Legislature.
- The Courts can even declare the enabling Act as unconstitutional on the grounds of :-
Excessive delegation; OR
Violation of Fundamental Rights; OR
Against the scheme of Distribution of Legislative Powers under Article 246.
- The Delegated legislation can be held unconstitutional even if the enabling Act is Constitutional.
Legislative Control
- The Primary duty to supervise and control the exercise of delegated power is on the Legislature.
- The Legislature is bound to strictly scrutinise the legislation at all stages of its presentation and discussion to ensure that there’s no scope of excessive delegation.
Harla V. State of Rajasthan (1951 SC)
- The Supreme Court held that unless the delegated legislation is published, it CANNOT be enforced.
Article 246. Subject-matter of laws made by Parliament and by the Legislatures of States
Clause (1) - Parliament has exclusive power to make laws with respect to the List I (Union List) of the 7th Schedule.
Clause (2) - Parliament has power to make laws with respect to the List III (Concurrent List) of the 7th Schedule.
- And, subject to clause (1), the State Legislature shall also have the power to make laws with respect to the List III (Concurrent List) of the 7th Schedule.
- Hence, Both the Union and State Legislatures have the power to make laws with respect to the Concurrent List of the 7th Schedule.
Clause (3) - Subject to Clauses (1) and (2), the State Legislature shall have exclusive power to make laws with respect to the List II (State List) of the 7th Schedule.
Clause (4) - If any territory is NOT included in a State, then Parliament shall have power to make laws for such territory even if such matter is included in the List II (State List) of the 7th Schedule.
Under Article 246(2), both the Union and State Legislature are empowered to make laws on common subjects. What happens if there is inconsistency?
- Article 254 provides for such a scenario.
Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States
Clause (1) - Where a law is made by both the Parliament and the State Legislature on a matter enumerated in the Concurrent List, and
- One law is repugnant/contradictory to the other.
- The law made by Parliament shall prevail, and
- Law made by Legislature to the extent of repugnancy shall be VOID.
- It does NOT matter which law was passed first.
Clause (2) - If a law made by Parliament exists for a matter enumerated in the Concurrent List, and
- The State Legislature also passes a law which is repugnant to such previous law made by Parliament.
- If such law has been :-
Reserved for consideration of President, and
Received his assent
- Then, the Law made by the State Legislature shall prevail, notwithstanding that repugnancy.
- Provided, This clause does NOT restrict the power of Parliament to subsequently pass a law on the same matter, which overrides any such law made by the State Legislature.
- If Parliament makes such a law the State law would be VOID to the extent of repugnancy with the Union law.
M. Karunanidhi V. Union of India (1979 SC)
- A test of repugnancy was provided.
- A repugnancy would arise between the two statutes in the following situations :-
It must be shown that there is clear and direct inconsistency between the two enactments which is irreconcilable, so that they cannot stand together or operate in the same field.
There can be NO repeal by implication unless the inconsistency appears on the face of the two statutes.
Where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collusion with each other, no repugnancy results.
Where there is no inconsistency but a statute occupying the same same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
State of Kerala V. M/s Mar Apparem Kuri Co. Ltd. (2012 SC)
- The question of repugnancy between the Parliamentary Legislation and State Legislation arises in two ways.
- First, where the Legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict.
- Second, where the two Legislations are with respect to matters in the Concurrent List and there is a conflict.
- In both the situations, the Parliamentary Legislation will predominate.
- In the first, by virtue of non-obstante clause in Article 246(1); and
- In the second, by reason of Article 254(1).
- Article 254(2) deals with a situation where the State Legislation having been reserved and having obtained President’s assent, prevails in that State.
- This again is subject to the proviso that Parliament can again bring a legislation to override even such State Legislation.
Krishi Upaj Mandi Samiti, Narsinghpur V. M/s Shiv Shakti Khansari Udyog (2012 SC)
- The assent of the President is NOT an empty formality and the President has to be apprised of the reason why his assent is being sought.
- If the assent is sought for a specific purpose, it would be limited to that purpose and can NOT be extended beyond it.
Article 248. Residuary powers of legislation
Clause (1) - If any matter is not mentioned in any of the lists under the 7th Schedule.
- The Parliament shall have exclusive power to make laws over such matters.
- But, this is subject to Article 246-A.
Clause (2) - The power mentioned in clause (1) shall include the power of making any law imposing a tax NOT mentioned in either list of the 7th Schedule.
Note - This Article can be read with Entry 97 of List I of the 7th Schedule which basically provides for the same thing.
International Tourism Corporation V. State of Haryana (1981 SC)
- The Court held that the residuary power cannot be so expansively interpreted as to whittle down the power of the State Legislature.
- That might affect and jeopardise the federal principle.
- The resort to the residuary power should be the last refuge.
- It is ONLY when all the categories in the three lists are absolutely exhausted then the residuary power should be used.
- The Court held that before exclusive legislative competence can be claimed for Parliament by resorting to residuary power, the legislative incompetence of the State Legislature must be clearly established.
Article 246-A. Special provision with respect to goods and services tax
Clause (1) - Overriding Articles 246 and 254.
- Both the Parliament and the State Legislature has the power to make laws with respect to goods and services tax imposed by the Union or by such State.
- But, the power of the State Legislature is subject to Clause (2).
Clause (2) - Parliament has exclusive power to make laws with respect to goods and services tax where the supply of:-
Good; OR
Services; OR
Both
- Takes place in the course of Inter-State Trade or commerce.
Article 247. Power of Parliament to provide for the establishment of certain additional Courts
- Notwithstanding anything in This Chapter (Legislative Relations)
- Parliament may by law provide for the establishment of any additional Courts.
- This can be done ONLY for better administration of :-
Laws made by Parliament; OR
Any existing law on a matter enumerated in the Union List.
Principles of Interpretation of Lists
Predominance of Union List
- Article 246(1) expressly lays out the predominance of Union List.
- Thus in the case of overlapping between the Union and the State List or Concurrent List, it is the Union List which is to prevail over the State List or the Concurrent List.
- In the case of conflict between the Concurrent List and State List, it is the Concurrent List that shall prevail.
Note - Article 246 does NOT provide for the competence of the Parliament or the State Legislature.
- It merely provides for their respective fields.
Each Entry to be interpreted broadly
Calcutta Gas Ltd. V. State of West Bengal (1962 SC)
- The Supreme Court held that the “widest possible” and “most liberal” interpretation should be given to the language of each Entry.
- A general word used in an Entry must be construed to the extent to all ancillary or subsidiary matters which can be fairly and reasonably be held to be included in it.
Doctrine of Pith and Substance
- “Pith and Substance” means the true nature or purpose of the legislation or a statute.
- Since both the Union and the State Legislatures have been given exclusive power to make laws within their respective spheres.
- They should NOT encroach upon each other's spheres.
- If such encroachment occurs by passing any law, then the Court will apply the Doctrine of Pith and Substance.
- This doctrine is used to determine whether the concerned Legislature was even competent to make such a law.
- The true object of the Legislation is assessed by the Court and whether such object relates to a matter with the competence of Legislature which enacted it.
- If the Court is satisfied that the Object of the legislation is related to the matter with the competence of the Legislature, it should be held to be intra vires, i.e., within the powers, even though it might incidentally trench on matter not within the competence of Legislature.
- The law as a whole needs to be regarded, including its object, scope and effect of its provisions to ascertain its true character.
Prafulla Kumar V. Bank of Commerce (1947 PC)
- It was held that it is NOT always possible for the legislature to remain bound in water tight compartments.
- It is therefore necessary that we analyse the true scope, object and effect of any law, so as to check its pith and substance.
Doctrine of Colourable Legislation
- Doctrine of Colourable Legislation is based upon the maxim that “You cannot do indirectly what you cannot do directly”
- The meaning and scope of the doctrine was aptly explained by the Supreme Court in the following case.
K. C. G. Narayan Dev V. State of Orissa (1953 SC)
- The Court explained that the idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers.
- The transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise.
- In other words, it is the substance of the Act that is material and NOT merely the form or outward appearance.
- If the subject-matter in substance is something which is beyond the powers of that Legislature to legislate upon the form in which the law is clothed CANNOT save it from condemnation.
- The Legislature cannot violate the constitutional prohibitions by employing indirect methods.
- “Colourablitiy” is thus bound up with incompetency and NOT tainted with bad faith or evil motive.
- A thing is colourable which in appearance ONLY and NOT in reality, what it purports to be.
Note - If the Legislature has power to make law, the motive in making the law is “irrelevant”.
- The ONLY case where a law has been declared invalid on the ground of colourable legislation is State of Bihar V. Kameshwar Singh (1952 SC).
Parliament’s power to Legislate on State Subjects
- Generally, the Union and State Legislature have separate matters and areas over which each of them can make laws.
- But, in certain exceptional circumstances where the above bifurcation is overridden in favour of the Union.
- These circumstances are:-
In national Interest (Article 249)
In case of emergency (Article 250)
By consent of two or more States (Article 252)
To give effect to international agreements etc. (Article 253)
Failure of Constitutional Machinery of State (Article 356)
Article 249. Power of Parliament to legislate with respect to a matter in the State List in the national interest
Clause (1) - Notwithstanding any of the foregoing provisions of this Chapter.
- If the Council of States (Rajya Sabha) passes a resolution with a majority of 2/3rd members present and voting.
- Stating that it is necessary or expedient in National Interest that Parliament should make laws with respect to matters enumerated in the State List of the 7th Schedule.
- Such matter is to be specified in the resolution.
- Then it will empower the Parliament to make law for the whole or any part of territory of India with respect to the matter specified in the resolution or under Article 246-A, while the resolution remains in force.
Clause (2) - Resolution passed under Clause (1) can remain in force for any duration of up to 1 year.
- Provided, A resolution approving continuation can be passed in the same manner provided under Clause (1).
- But even then, continuation can only be granted for 1 year at a time.
- Otherwise it ceases to have force.
Clause (3) - When the Parliament exercises power granted to it by a resolution passed under Clause (1).
- Any such law made in that duration shall, to the part of such law which the Parliament would have been incompetent to enact had resolution under Clause (1) NOT been passed.
- Shall cease to have effect after 6 months from the day when the resolution ceases to have force.
- But, cease of effect of such law shall NOT apply to any thing already done or omitted to be done before the expiration of the said period.
Article 250. Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation
Clause (1) - Notwithstanding anything in this Chapter.
- While a Proclamation of Emergency is in operation.
- The Parliament shall have power to make laws on any matter enumerated in the State List or under Article 246-A.
- For the Whole or any part of the territory of India.
Clause (2) - Any such law made under Clause (1).
- Which the Parliament would NOT have the competency to enact, except for the power under Clause (1).
- Such law shall to the extent of incompetency ceases to have effect after 6 months from the day when the Proclamation of Emergency ceases to operate.
- But, cease of effect of such law shall NOT apply to any thing already done or omitted to be done before the expiration of the said period.
Article 251. Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the Legislatures of States
- Articles 249 and 250 does NOT restrict the power of the State Legislature to make laws on any matter which it is empowered by the Constitution to make.
- But, if a law is made by the Parliament under Articles 249 or 250 and such a law is repugnant to any law made by the State Legislature, then the law made by Parliament shall prevail.
- It is immaterial which law is passed first, law of the Parliament shall prevail.
- And, the law made by the State Legislature shall to the extent of repugnancy shall be inoperative.
- But, only as long as the law made by Parliament under Articles 249 or 250 continue to stay in operation.
Article 252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State
Clause (1) - If two or more States pass a resolution to the effect that it is desirable to have a law passed by the Parliament on any matters in the State List.
- It shall be lawful for Parliament to make laws regulating that matter.
- Such law shall apply ONLY to such State as have passed the resolution in this behalf.
- However, other States may also afterwards adopt the law passed by Parliament by passing a resolution in that behalf in their State Legislature.
Clause (2) - Any such law passed by Parliament can ONLY be amended or repealed by an Act of Parliament.
- The respective State Legislatures CANNOT amend or repeal any such law.
Article 253. Legislation for giving effect to international agreements
- Notwithstanding any of the foregoing provisions of this Chapter.
- Parliament has power to make any law for:-
Whole or any part of the territory of India
Implementing any treaty, agreement, or convention with any other Country or Countries; OR
Any decision made at any international conference, association or other body.
Article 356. Provisions in case of failure of constitutional machinery
Clause (1) - In case of a constitutional machinery in a State, the President may by proclamation:-
Sub-clause (b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.
Article 255. Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only
- Any Act of Parliament or State Legislature; and
- Any provision in any of such Act,
- Shall NOT be invalid ONLY because some recommendation or previous sanction required by this Constitution was NOT given.
- If, assent to that Act was given:-
Required by Constitution | Assent Given by |
|---|---|
Recommendation of the Governor | Either by the Governor or the President |
Recommendation of the Rajpramukh | Either by the Rajpramukh or the President |
Recommendation or previous sanction of the President | The President |
Frequently Asked Questions
Q) What is the difference between extra-territorial legislation and territorial nexus?
A) Extra-territorial legislation refers to laws that operate beyond the country’s boundaries (allowed only to Parliament). The Doctrine of Territorial Nexus, however, allows State laws to have limited extraterritorial impact if there is a real and substantial connection between the State and the subject of legislation.
Q) What are the main safeguards against excessive delegation of legislative power?
A) The safeguards include judicial review, legislative scrutiny, mandatory publication of delegated rules (as per Harla v. State of Rajasthan, 1951), and the constitutional bar against delegating essential legislative functions, such as the determination of legislative policy.
Q) What happens when Union and State laws conflict under the Concurrent List?
A) Under Article 254, if both Parliament and a State Legislature make laws on the same Concurrent List subject and there is inconsistency, the Union law prevails. However, a State law can prevail in that State if it has received Presidential assent, until Parliament passes a new law overriding it.
Q) How does Article 246A empower both Union and States regarding GST?
A) Article 246A provides concurrent powers to both levels of government to legislate on Goods and Services Tax, ensuring cooperative federalism. However, in inter-state trade or commerce, Parliament has exclusive power to legislate on GST.
Q) Why are residuary powers under Article 248 given exclusively to Parliament?
A) Residuary powers ensure that emerging or unforeseen subjects (like digital privacy or cryptocurrency) not mentioned in the Seventh Schedule fall within Parliament’s jurisdiction, maintaining uniformity and national coherence in legislation.
India’s legislative framework is a fine balance between autonomy and unity.
To dive deeper into how Parliament and States share powers and how doctrines like Pith and Substance or Colourable Legislation preserve this balance,
Explore more only on Legaljourney.in and stay ahead in your legal learning journey.
Let’s make law simple, clear, and accessible - one Article at a time! ⚖️
Join us on Telegram for regular updates!
Follow us on YouTube for detailed video explanation on Articles 245 to 255.
Together, let’s make legal awareness accessible to all.
Download a pdf version of this article here.