LEGISLATIVE RELATIONSHIP Federal Features

The federal features of the Constitution include:

(1) A written constitution which defines the structure, organization and powers of the central as well as state governments(2) A rigid constitution which can be amended only with the consent of the states(3) An independent judiciary which acts as the guardian of the constitution.(4) A clear division of powers between the Center and the States through three lists- Union list, State list and Concurrent list(5) The creation of an Upper House (Rajya Sabha) which gives representation to the states, etc.

NON – FEDERAL FEATURESTHE CONSTITUTION ALSO CONTAINS A NUMBER OF UNITARY FEATURES:

• The creation of a very strong centre.

• The absence of separate constitutions for the states.

• The right of Parliament to amend major portions of the constitution by itself.

• A single citizenshito the states in the Rajya Sabha.

• The right of Parliament to change the name, territory or boundary of states without their consent.

• The presence of All- India Services which hold key positions in the Centre as well as the States appointment of the Governor by the Presidentp for all.

• Unequal representation .

NON – FEDERAL FEATURES• The granting of extensive powers to the President to

deal with various kinds of emergencies.• The right of Parliament to legislate on state subjects on

the recommendation of the Rajya Sabha.• The presence of a single judiciary with the Supreme

Court of India at the apex.• The residuary powers under the Indian Constitution are

assigned to the Union and not to the States.• The exclusive right of Parliament to propose

amendments to the Constitution.• On account of the presence of a large number of non-

federal features in the Indian Constitution India is often described as a ‘quasi-federal ‘country.

Territorial Extent of Legislative Power: 245 The Parliament has wide legislative powers to

make laws for whole territory of India which includes UTs, States and any other area for time being included in the territory of India.

Law made by parliament shall not deemed to be invalid on the ground of extra territorial operation

The State Legislature has legislative powers to make laws only for whole or any part of state but can’t exceed its jurisdiction beyond the boundaries of state.

Only Parliament is empowered to make laws for extra territorial operation. It means legislation or legal protection for any Indian resident and their property anywhere in the world. Limitations to Parliament Territorial Jurisdiction – The extensive legislative power of Parliament is subjected to following special provisions of the constitution:-

Union Territory – The President can make regulations in relation to four UTs (Andaman, Lakshadweep, Dadra and Daman) which have same force as law of Parliament but such regulations can be amended or repeal by Parliament (Article 240(2)).

Scheduled Area – Notwithstanding anything in the Constitution, governor may direct that any particular act of Parliament or state legislature shall not apply to Scheduled Area or shall apply with such exceptions or modifications as may be notified (5th Para of Fifth Schedule).

Tribal Area – The Governor of Assam may direct that any act of Parliament or State legislature shall not apply to an autonomous district/region in Assam or shall apply with such exception or modifications as may be notified. The Same power is vested with President in relation to autonomous regions of Meghalaya, Tripura and Mizoram (Sixth Schedule).

DOCTRINE OF TERRITORIAL NEXUS

It signifies that object to which the law applies need not be physically located within territorial boundaries of the state.

If there is a territorial nexus between the state law and the subject matter of the law ,then the statute in question is not regarded as having extra territorial operation .

Doctrine of territorial nexus :- to decide whether or not a state law has an extra- territorial operation the doctrine of territorial nexus is invoked. State of Bombay V. RMDC. 1957. A sufficient nexus between the state making law

and the object of the law . The nexus must be real and not illusory. It is not essential that the object to which law is

applied should be physically located within the boundaries of the state making law.

The constitution of India very clearly distributes the legislative powers, between the centre and states. Both the sets of Governments can frame laws independently in their respective spheres. There are three lists of powers given in the constitution.

Union ListIn the union list there are 97 subjects. The laws on all these subjects can be framed by the Federal Government, i.e. the Parliament of India. The list contains subjects of national importance. These subjects concern all the citizens of India equally.

State List -In the state list there are 66 subjects. These subjects can be legislated upon by the states, subjects mentioned in the list are like the law and order, police, jails, public health, education, agriculture, local-self government, hospitals, justice, organization of judiciary except Supreme Court and High Courts, forests, revenue and unemployment etc.

Concurrent List -There are 47subjects in the concurrent list. The subjects mentioned in the concurrent list are-like the marriage, divorce, criminal law, civil procedure, newspapers, books and printing press.

Residuary Powers -Residuary powers have been allotted to the central government by the constitution. But in U.S.A. and Switzerland the residuary powers have been given to the states. It seems that the framers of the constitution have followed the Canadian examples with a view to keep the centre in a very strong position.

PRINCIPLES OF INTERPRETATION OF LIST Each entries to be interpreted broadly :- The entries in 3 list are not always set

out with scientific precision or logical definition .

The entries in the list give outline of the subject matter of legislation and should therefore be given widest amplitude.

Each entry must be described by words of broad and general import.

Local govt., education, water ,agriculture and land the entries open with general import.

In Elel Hotel and investment ltd.v. union of India 1990, the cardinal rule of interpretation is that the entries in the list are not to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.

HARMONIOUS INTERPRETATION OF THE ENTRIES.

Inter relation between the entries 52 of list I24 and 27 of list II 33 of list III deals with the various aspects of industries.

Doctrine of pith and substance : is a legal doctrine in Canadian constitutional

interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government.

Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute.

In Balsare case a state law enforcing prohibition is valid because it prohibits purchase ,use ,possession ,transport and sale of liquor (entry 8,list II) and it only incidentally encroaches on the central power on imports (entry 41 list I )

Profulla kumar mukerjee v. bank of khulna AIR 1947. pc60 the validity of the Bengal money lenders Act 1946,which limited the amount and the rate of interest recoverable by the money lender on any loan was challenged on he ground that it is related to the promissory notes a central subject.

The PC held that the Act was in pith and substance a law in respect of money lending and money lenders a state subject.

The industrial dispute Act enacted by parliament even though it applies to employees of municipalities is valid as in substance it deals with industrial and labour dispute (entry 22list III) and not with local govt. (entry 5,list II)

A state law banning use of amplifiers after 10P.M. is valid as it seeks to control use of amplifiers in the interests of health(entry 6 list II) and it incidentally touches upon (entry 31 list I)

Doctrine of colourable legislation :-

“ you cannot do indirectly what you cannot do directly.” It simply means a legislation which ,while transgressing

constitutional limitation is made to appear as if it were quite constitutional .

Bailey v. Drexel furniture Co. 1922 (259) US 20. The congress enacted the child labour tax law 1919,imposing a tax of 10% on net profit of the year. the court struck down the law and held that it was not valid exercise by congress of the power of taxation. Congress tried to regulate a subject over which it had a no jurisdiction.

S.S Bola v. B.D Sardana AIR 1997,court held that when the legislature travelled beyond its power or competence or in transgression of the limitation imposed by the constitution itself that the enactment would be called a colourable legislation.

Doctrine of fraud on power :- legislature had the power but it did not exercise it.

Fraud on constitution :- the legislature has no power and in spite of constitutional limitation or prohibition ,it made enactment in pretence of the power.

K.T. Moopil Nair v. state of kerala AIR 1961,the Travancore cochin Tax Act 1955.

State of Bihar v. Kameshwar singh .1952,the Bihar land reform Act 1950.

Doctrine of occupied field :-The general concept of Occupied Field refers to the situation where two legislative authorities have jurisdiction (or legislative competence) to legislate over one particular subject or field. When the superior legislative authority has already enacted legislation on the subject or field, regardless of the fact whether it is exhaustive or otherwise, it precludes the remaining legislative body from enacting any law thereon, as the field is already "occupied".

Doctrine of occupied field thoroughly refers to those legislative entries of state list which are expressly made subject to a corresponding entry in either the union list or the concurrent list.

It is merely concerned with the existence of legislative power. Repugnance is concerned with the exercise of legislative power that is shown to exist.

Under art. 254 as soon as a union receives the assent of the president, it is said to be a law made by the parliament. Actual commencement of the law is not important for the purpose of attracting Doctrine of occupied field.

Repugnancy Between Centre and State Law, Art.254 :-

It arises when there is a direct conflict i.e., these laws are fully inconsistent and have absolutely irreconcilable provisions.

Both the laws occupy the same field.

Deep chand v. state of UP. AIR 1959.

Kanaka gruha nirmana sahakara sangha v.narayanamma. 2003 SC.

There must be repugnancy between state and the law made by parliament .

If there is a repugnancy ,the state legislation would be void only to the extent of repugnancy.

If there is no repugnancy between the two laws ,there is no question of application 254.

Srinivasa raghavachar v. state of karnataka AIR 1987, the advocates Act 1961 ,has been enacted by parliament under entries 77 and 78 of list I. A state law prohibited legal practitioners from appearing before land tribunal. the state law was held invalid as it was repugnant to central law .

Vijay kumar sharma v. state of Karnataka 1990, The state of Karnataka enacted karnataka

contract carriages Act.1976.under entry 42 list III ,providing for acquisition of contract carriage.

Parliament enacted the motor vehicles Act 1988 under entry 35 list III providing the grant of contract carriage permits.

The court held that art.254 (1) would not apply in such situation where the subject matter of both the statutes and the object of two sets provisions being different “ both statutes can stand together.

Art. 254 (2) is an exception to the general rule laid down in Art.254(1) this art. Has been conceived with a view to save state laws falling in the concurrent list from being superseded by central law because of the operation of the rule of repugnancy

Delegated legislation:-• It is made when competent legislature permits for

making such legislation.• Delegated legislation is mostly made by the executive.

In re : Delhi laws Act AIR 1951,SC 332,the court has concretised the limits of delegated legislation.

a) Legislature cannot delegate unlimited power.b) It can delegate such ancillary and subsidiary power.c) The legislature cannot abdicate its law making

power.d) Power of repealing law is essential legislative power

and as such cannot be delegated.

Delegated legislation must be consistent with the constitution and the parent Act .

Delegated legislation must be transparent and accountable.

Example :-• essential Commodities Act 1955.• Environment protection Act.1986.