Bifurcation of powers between centre and state (state list, union list and concurrent list)
The main characteristic of a federal constitution is the distribution of powers between the union and the states. The Indian constitution provides for a new kind of federalism to meet India’s peculiar needs. In the matter of distribution of powers, the framers followed the pattern of the Government of India Act, 1935. Thus, predominance has been given to the union parliament over the state legislatures or assemblies regarding the distribution of legislative powers.
The legislative powers are subject to the scheme of distribution of powers between the union and state legislatures (as provided in three lists under the constitution), fundamental rights (i.e. legislative powers cannot contravene the fundamental rights) and other provisions of the constitution (articles 245-254).
There are three lists which provide for distribution of legislative powers under 7th Schedule to the constitution:
It contains 97 items and comprises of the subjects which are of national importance and admit of uniform laws for the whole of the country. Only the union parliament can legislate with respect to these matters. For example, Defence, foreign affairs, banking, currency, union taxes, etc.
It contains 66 items and comprises of subjects of local or state interest and thus lie within the legislative competence of the state legislatures, viz. public order and police, health, agriculture, forests, etc.
It contains 47 items, with respect to which; both union parliament and the state legislature have a concurrent power of legislation. The concurrent list (not found in any federal constitution) was to serve as a device to avoid excessive rigidity to a two-fold distribution. It is a ‘twilight zone’, as for not so important matters, the states can take initiative, while for the important matters, the parliament can do so. Besides, the states can make supplementary laws in order to amplify the laws made by union parliament. The subjects include general laws and social welfare – civil and criminal procedure, marriage, contract, planning education, etc.
Centre vs State: Legislative powers
Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations between the Centre and the State. Extent of laws made by Parliament and by the Legislatures of States The Parliament can make laws for the whole or any part of the territory of India. Territory of India includes the states, UTs and any other area for the time being included in the territory of India. Whereas, the state legislature can make laws for whole or any part of state.
The Parliament can alone make ‘extra territorial legislation’ thus the laws of the Parliament are applicable to the Indian citizens and their property in any part of the world. Subject-matter of laws made by Parliament and by the Legislation of States The Constitution divides legislative authority between the Union and the States in three lists- the Union List, the State List and the Concurrent List. The Union list consists of 99 items. The Union Parliament has exclusive authority to frame laws on subjects enumerated in the list. These include foreign affairs, defence, armed forces, communications, posts and telegraph, foreign trade etc.
The State list consists of 61 subjects on which ordinarily the States alone can make laws. These include public order, police, administration of justice, prison, local governments, agriculture etc. The Concurrent list comprises of 52 items including criminal and civil procedure, marriage and divorce, economic and special planning trade unions, electricity, newspapers, books, education, population control and family planning etc. Both the Parliament and the State legislatures can make laws on subjects given in the Concurrent list, but the Centre has a prior and supreme claim to legislate on current subjects. In case of conflict between the law of the State and Union law on a subject in the Concurrent list, the law of the Parliament prevails.
The constitution also vests the residuary powers (subjects not enumerated in any of the three Lists) with the Union Parliament. The residuary powers have been granted to the Union contrary to the convention in other federations of the world, where the residuary powers are given to the States. However, in case of any conflict, whether a particular matter falls under the residuary power or not is to be decided by the court.
Centre State Financial Relations
Indian Constitution has made elaborate provisions, relating to the distribution of the taxes as well as non-tax revenues and the power of borrowing, supplemented by provisions for grants-in-aid by the Union to the States. Article 268 to 293 deals with the provisions of financial relations between Centre and States. The Constitution divides the taxing powers between the Centre and the states as follows: The Parliament has exclusive power to levy taxes on subjects enumerated in the Union List, the state legislature has exclusive power to levy taxes on subjects enumerated in the State List, both can levy taxes on the subjects enumerated in Concurrent List whereas residuary power of taxation lies with Parliament only.
Centre State Administrative Relations
The administrative jurisdiction of the Union and the State Governments extends to the subjects in the Union list and State list respectively. The Constitution thus defines the clauses that deal with the administrative relations between Centre and States.
Centre State Relations During Emergencies
- Under President’s Rule: The State Governments cannot ignore the directions of the Union Government, otherwise the President can take the action against the Government of the State stating that the administration cannot be carried on the accordance with the provisions of the Constitution and thus can impose President’s rule on the State. In such an eventuality the President shall assume to himself all or any of the functions of the state Government.
- Under Proclamation of National Emergency: During a Proclamation of National Emergency, the power of the Union to give directions extends to the giving of directions as to the manner in with the executive power of the State is to be exercised relating to any matter.
- Under Proclamation of Financial Emergency: During a Proclamation of Financial Emergency, Union can direct the State Governments to observe certain canons of financial propriety and to reduce the salaries and allowances of all or any class of person serving in connection with the affairs of the Union including the Judges of the Supreme Court and High Courts. Union also requires all Money Bills or Financial Bills to be reserved for the consideration of the President after they are passed by the Legislature of the State.
It is thus, evident that in the administrative sphere the States cannot act in complete isolation and have to work under the directions and in cooperation with the Center.