Indian Constitution 4
10. Distribution of legislative Powers between Union and states
Distribution of legislative Powers between Union and states
The distribution of legislative powers between the Union and State proceeds on two lines.
1) The territory over which the Union and states have their jurisdiction
2) The subjects to which their respective jurisdiction shall extend
Taking up the territorial aspect, the jurisdiction of the state legislature is limited to the territory of the states but in case of parliament, it has the power to legislate
for ‘whole or any part of the territory of India which includes not only the states but also the union territories. Parliament also posses the power of extra-territorial legislation, which means that laws made by parliament will govern the Indian citizen and their properties situated abroad.
for ‘whole or any part of the territory of India which includes not only the states but also the union territories. Parliament also posses the power of extra-territorial legislation, which means that laws made by parliament will govern the Indian citizen and their properties situated abroad.
As regards the subjects of legislation, the constitution adopts from the Government of India act ,1935, a threefold distribution of legislative powers between the Union and states viz the Union list, State list and the Concurrent list.
List I or the Union list includes 99 subjects over which the union shall have exclusive power of legislation. These include defence, foreign affairs, currency and coinage, Union duties and taxes.
List II or the state List includes 61 subjects over which state legislature shall have exclusive power of legislation such as Public order and police, Local government, Public health and sanitation, agriculture, forests, fisheries, state taxes and duties.
List III or concurrent list gives concurrent powers to union and state legislatures over 52 items such as Criminal law and procedure, Civil Procedure, marriage, contracts, economic and social planning education.
In case of overlapping of a matter as between the three list,predominance has been given to Union legislature. In the concurrent sphere, if, however, the state law was reserved for the assent of the President and has received such assent, the state law may prevail notwithstanding such repugnancy, but it would still be competent for Parliament to override such state law by subsequent legislation. The constitution vest the residuary power i.e. the power to legislate with respect to any matter not mentioned in the above lists with the Union.
Expansion of legislative power of Union
a) In the National Interest. Parliament shall have the power to make laws with respect to any matter included in the state list, if the council of states declares by a resolution of 2/3 of its members present and voting, that is necessary in the National interest. Each resolution will give a lease of one year to the law in question. Art(249).
b) Under a Proclamation of Emergency
c) By agreement between states.
d) To implement treaties
e) Under a proclamation of failure of constitutional machinery (under president’s Rule)
In General, the executive power between the Union and States follow the scheme of distribution of the legislative powers. The executive power of state shall extend only to its own territory and with respect to those subjects over it has legislative competence (Art 162). However in the concurrent sphere, the executive function shall ordinarily remain with the states, but subject to the provisions of the constitution or of any law of parliament conferring such function expressly upon the union.
Distribution of financial powers
Financial relation between the Centre and State are defined in Part XII of the constitution. The states are absolutely entitled to the proceeds of the taxes on the state list and the proceeds of the union list cannot be fully retained by the union but has to be assigned, or may be assigned, wholly or partly to the states because the yield of different taxes coming within the state legislative sphere may not be large enough to serve the purpose of a state. So the constitution provides for the distribution of tax-revenue between the union and state as follows.
Taxes belonging to the union exclusively
1. Customs
2.Corporation tax
3. Taxes on capital value of assets of individuals and companies
4. Surcharge on income tax, etc
5. Fees in respect of matters in the Union List.
Taxes belonging to the states exclusively
1. Land revenue.
2. Stamp duty except in documents included in Union List
3. Succession Duty, Estate duty and income tax on agricultural land
4. Taxes on passengers and goods carried on inland waterways
5. Taxes on lands and buildings, mineral rights
6. Taxes on animals and boats, on road vehicles, on advertisement, on consumption of electricity, on luxuries and amusements etc.
7. Taxes on entry of goods into local areas
8. Sales tax
9 Tolls
10. Fees in respect of matters in the state list
11. Taxes on profession, trade, etc not exceeding Rs 2500 per annum Duties levied by union but collected and appropriated by the states Stamp duties on bills of exchange. Etc and Excise duties on medicinal and toilet preparations containing alcohol.
Taxes levied as well as collected by the union, but assigned to the state within which they are leviable.
1. Duties on succession to property other than agricultural land.
2. Estate duty in respect of property other than agricultural land.
3. Terminal Taxes on goods or passengers carried by Railway, Air or sea.
4. Taxes on railway fares and freights
5. Taxes on stock exchanges other than stamp duties
6. Taxes on sales of and advertisement in newspapers
7. taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-state trade or commerce
8. Taxes on inter-state consignment of goods.
Taxes Levied and collected by union and distributed between union and states.
1. Taxes on income other than on agricultural land (Art 270)
2. Duties of excise as are included in the Union list , excepting medicinal and toilet preparations may also be distributed , if Parliament by law so provides (Art 272).
Even after the assignment to the states a share of the central taxes, the resources of all states may not be adequate enough. The constitution, there fore, provides for grants-in-aid shall be made in each year by the union to such states as Parliament may determine to be in need of assistance, particularly, for the promotion of welfare of tribal areas, including special grants to Assam in this respect (Art. 275).
Finance Commission
Articles 270,273,275 and 280 provide for the constitution of afinance commission at 5-year intervals to recommend the president certain measures relating to the distribution of financial resources between the union and the states. The constitution of the Finance commission is laid down in Art. 280., The chairman must be a person having experience in public affairs; and the other four members must be appointed from amongst the following.
1) A high court judge or one qualified to be appointed as Such
2)a person having special knowledge of finances and accounts of the government
3) a person having wide experience in financial matters and administration
4) a person having a special knowledge of economics.
It shall be the duty of the Finance commission to advice the President on matters such as
1) the distribution between the Union and states of the net proceeds of taxes that is required to be shared.
2) The principles which should govern the grants in aid
3) the measures to needed to augment the consolidated fund of a state to supplement the resources of Panchayats and Municipalities in a state
4) Any matter referred to the commission by the president in the interest of the state.
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11. Emergency
An emergency due to war, external aggression or armed rebellion (Art 352) :
The constitution provides for the three different of abnormal situations which call for a deperature from the normal governmental machinery set up by the constitution.
1) An emergency due to war, external aggression or armed rebellion (Art 352).
This may be referred to as national emergency. A proclamation of emergency may be made by the president at any time if he satisfied that the security of India or any part thereof has been threatened by war,external aggression or armed rebellion. It may be made even before the actual occurrence of any such disturbance. But no such emergency can be made by the president unless the union ministers of cabinet rank headed by P.M. recommend to him in writing that such a proclamation should be issued. Every such proclamation should be placed before both houses of the parliament and shall cease to be in operations unless it is approved by resolutions of both houses of parliament within one month from its date of issue by special majority. It will give a life of 6 months from the date of approval. The President can also issue a proclamation of revocation any time that House of the people passes a resolution disapproving of the issue or continuance of the proclamation.
The effects of such proclamation are
a) The power of union extends to give directions to any state on any matter and the manner in which the executive power thereof is to be exercised.
b) Parliament may, by law, extend the normal life of the houses of the people for a period of one year at time and not extending in any case beyond a period of 6 months after the proclamation ceases to be in operation
c) The Parliament shall have the power to legislate as regards State List (list II)
d) The parliament has powers or imposing duties, upon the executive of union in respect of any matter.
e) The president shall have the power to modify the provisions relating to the allocation of the financial resources.
f) The Art 358 provides that the state would be free from the limitations imposed from the limitations imposed by Art 19 and Under Art 359 the right to move to the court cab be suspended by the order of the president.
Proclamation of failure of constitutional machinery under Art 356 :
It is the duty of the union to ensure that the government of every state is carried in accordance with the constitution.(Art 355). So, the president is empowered to make proclamation, when he is satisfied that the government of state cannot be carried in accordance with provisions of the constitution either on the report of the Governor of the state or otherwise (Art 356)
Such proclamation may also be made by the president where any state has failed to comply with, or to give effect to, any directions given by the union, in exercise of its executive power to the state (Art 365). By such proclamation, the president may –
a) assume to himself all or any of the functions of the Executive of the state or of any other authority save the high court and
b) declare that the powers of the legislature of the state shall be exercisable by or under the authority of parliament. The duration of such Proclamation shall be for 2 months.
The duration can be extended by resolutions passed by both houses of parliament for a period of 6 months at a time, subject to the maximum duration of three years. But if the duration is sought to be extended beyond one year, two conditions have to be satisfied.
a) proclamation of emergency is in operation
b) when the election commission certifies that such resolution is necessary on account of difficulties in holding general elections to the states concerned.
As per the 44th amendment the courts may now interfere if the proclamation is mala fide. The Supreme Court held that the proclamation can judicially reviewed to examine
1) whether it was issued on the basis of any material
2) whether the material was relevant
3) whether it was issued mala fide.
Financial emergency:
If the president is satisfied that a situation has arisen whereby thefinancial stability or the credit of India or of any part of thereof is threatened, he may by a proclamation make a declaration to that effect Art 360(1).
The consequences of such declaration are
a) During the period, the executive authority of the union shall extend to observe such canons of financial propriety as may be specified in the directions.
b) any such direction may also include
1) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the state
2) a provision requiring all money bills or other financial bills to be reserved for the consideration of the President after they are passed by the state legislature
c) It shall be competent for the president during that any such proclamation is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the union including the judges of the Supreme Court and high court.
The duration of such proclamation will be similar to that of Proclamation of emergency.
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12. Procedure for Constitution amendment
Introduction
The provisions of the constitution is not static, it is subjected to change by the process of amendment of the constitution, which is prescribed in the Art. 368. The changes in the constitution can be done in 2 ways.
1) Alteration of certain provisions of the constitution not to be deemed to be amendment of the constitution. This can be done by the union parliament in the ordinary process of legislation by a simple majority.
2) Only the process of amendment, which is prescribed in the Art 386, can change other provisions of the constitution. In all cases of amendment, A bill has to be passed by the union parliament by a special majority. In case of certain provisions which affect the federal structure, ratification by the legislature of at least half of the states, before the bill is presented to the President for his assent.
Either house of the parliament can initiate and bill for the amending the constitution. The bill has to be passed in each house by a majority of the total membership of house and by a majority of two thirds of the members of house present and voting. There is no separate constituent body for amending the constitution. No joint session for constitution for constitution amendment bill can be held. State legislature cannot initiate any bill for constitutional amendment.
In case of certain provisions which affect the federal structure, ratification by the legislature of at least half of the states, before the bill is presented to the President for his assent. Some of the examples are The manner of election of President, the extent of executive power of the union and states, The supreme court and high court, distribution of legislative power between Union and states, and of the list in 7th schedule, representation of states in Parliament, and provisions of Art. 368 itself.
Basic features theory
Until the case of Golak nath, the supreme court held that no part of the constitution was unamendable and the parliament can amend provisions relating to the fundamental rights and the Art 368 itself. It was held that law in art 13(2) referred to ordinary legislation made by parliament as a legislative body and would not include an amendment of the constitution.
In Golak nath case the majority of the judges held that in the above provisions a special constituent assembly must be convened. To remove this bottleneck the Parliament Passed the 24th constitutional amendment act which took away the power of judicial review of the Courts in respect of the validity of the constitutional amendment on the ground that it takes away or affects a fundamental rights.
When the validity of the this amendment came up before the Supreme Court in the Kesavananda’s case the majority of the Judges upheld the validity of the 24th amendment Act but held that there are certain basic features of the constitution , which cannot be altered in exercise of the power to amend it under Art 368. Some of the basic features are sovereignty and territorial integrity of India, the fedral system , judicial review, Parliamentary system of government etc.
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13. The special position of Jammu and Kashmir
Article 370
The state of Jammu and Kashmir is a part of the territory of Indiaas defined in Article 1 of the constitution. However it continued to have a special status both in regard to its internal constitution as well as to its relation with the centre. Article 370 defines the state’s special status. This is due to the peculiar status created by Pakistan aggression and the accession to the state was based on the formal request of Maharaja Hari Singh and was in full conformity with procedure laid down in India Independence act, 1947 and thus became the integral part of India. The presidential order of 1954 & 1958 aimed at integrating the state with rest of India however the state has its own constitution.
Present position
The union does not have jurisdiction in most of the items enumerated in the Concurrent list. The residuary power and legislation with respect to preventive detention belongs to the state legislature. Art 249 has been extended to Jammu and Kashmir so the jurisdiction parliament extends to that in the national interest. Parliament cannot make law with out the consent or concurrence of the state legislature
1) Alteration of the name of the territories of the state 2) International treaty or agreement affecting the disposition of any part of the territory of the state. 3) No proclamation of emergency under art 352 4) No decision affecting the disposition of the state 5) Art 365 & Art 360
The provisions relating to Directive principle of state policy and Art 19(1)(f) and 31(2) shall not apply to J&K. Thus the fundamental right to property is still guaranteed in this state. No amendment of the constitution shall extend to J&K unless it is so extended by an order of the president.
By amendments of the constitution order, the jurisdiction of the comptroller and auditor General , of the election commission and special leave jurisdiction of the Supreme Court have been extended to the state of Jammu & Kashmir.
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