LEGISLATIVE RELATIONS BW STATE AND

1. Legislation provides the framework for policy formation and arms the government with the powers to
implement the policy. Our constitution provides that every state shall have at least one house, viz., the
legislative assembly comprising 66 to 500 members chosen by direct election on the basis of adult
suffrage from territorial constituencies. Any state can create a second house, viz. legislative council if it
so desires.

This can be done by a resolution of the assembly passed by a special majority (i.e. a majority of total
membership of the assembly not being less than two-thirds of the members actually present and voting)
followed by an Act of Parliament. By the same process, the existing legislative council can be abolished
also. At present, only Bihar, Maharashtra, Karnataka, U.P. and J&K have two houses.

The Constitution, based on the principle of federalism with a strong and indestructible union, has a
scheme of distribution of legislative powers designed to blend the imperatives of diversity with the drive
of a common national endeavour.

The Constitution adopts a three-fold distribution of legislative powers by placing them in any of the
three lists, namely, Union List, State List and Concurrent List.

The Union List contains subjects of national relevance such as Defence, Atomic Energy, Foreign Affairs,
War and Peace, Citizenship, Railways, Income-tax, Excise etc., over which the Parliament has an
exclusive authority to formulate laws.

The State List includes subjects of importance to the States such as Public order, Police, Local
Government, Public health, Agriculture etc., over which the State legislature has an exclusive authority.

The Concurrent List containing subjects of mutual relevance over which both Parliament and State
legislatures can legislate but in case of conflict the Union law will prevail.

These include Criminal law and procedure, Family laws, Inter-State trade and Commerce and
Communication, Electricity, Newspapers and Books, Education, Stamp duties and so on. Residual
powers, like in Canada, but unlike the USA, Australia and Switzerland, are vested in the Parliament.

However, the Union government can legislate on any subject included in the State list, under some
specific circumstances:

(i) If the Rajya Sabha recommends by a two-third majority that such legislation is in national interest;

(ii) If two or more 0States mutually agree that such a legislation should be made for them;

(iii) In order to implement treaties or international agreements or connections; and

(iv) During the proclamation of emergency made by the President of India, on account of internal
disturbance or external aggression, the Parliament acquires the authority to make laws on all the
subjects mentioned in the State List. However, all such laws made by the Parliament become ineffective
six months after the Proclamation of Emergency ceases to operate.

(v) In case of emergency due to the failure of the constitutional machinery in State, the President of
India can authorise Parliament to exercise the powers of the State Legislature. All such laws also cease
to operate within six months after the Proclamation of Emergency comes to an end.

Article 200 of the Constitution empowers the Governor to reserve a bill passed by the State legislature
for consideration by the President of India. This provision has led to a considerable degree of
resentment among the State governments, especially due to inordinate delays in communicating the
Centre's decision to the State on the bills so reserved.

Article 245 and 246 demarcate the legislative domain, subject to the controlling principle of the
supremacy of the Union, which is the basis of the entire system.

Legislative relations

Distribution of legislative powers described in the VII Schedule of Indian Constitution

(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, etc..

(b) State List:

Only State Legislature is empowered to make laws on the subjects given in the State List.62 subjects
(after 42nd Constitutional Amendment Act, 1976) (few important subjects listed below) Public Health,
Roads, Agriculture, Irrigation, Prisons, Local Administration, Distribution of Water, Police, etc..

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:

Both, Union Parliament as well as State Legislatures, have the power of legislation on subjects given in
the Concurrent List. 52 subjects (After the 42nd Constitutional Amendment Act, 1942) (few important
subjects listed below)

Marriage, Divorce, News Papers, Trade Unions, Books, Press, Eatable Items, etc

In case of disagreement, the legislation passed by Union Parliament shall prevail over the law passed by
State Legislatures.
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) On the request of two or more state legislatures -Article 252, Law passed by Union Parliament shall
be applicable only to the states which demanded such legislation.

(iii) Article 253: For the enforcement of International Treaties and Agreements.

(iv) Article 304: Prior approval of President of India on certain Bills.

(v) Article 352: Supremacy of Union Parliament during National Emergency,

(vi)Article 356: Durin0g Constitutional Emergency. Supremacy of Union Parliament over Concurrent List

(vii) Article 248: Residuary Powers are under the control of Union Parliament.

(viii) 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.

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 characterised by single party dominance at the centre and the
States and it was more of centralisation in the relations.

Control over the ordinance-making power of the governor

Under the Constitution, the Governor of a State is authorised 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 data compiled by the Sarkaria Commission revealed that in some cases the Centre took as many as
6-12 years in assenting or withholding its assent to them.
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 fulfil the wishes of the State Governments.

2. Obligation of each State towards the Union:

The Constitution lays do that the executive power of every State is to be so exercised as to ensure
compliances with the laws made by the Union Parliament.

3. Control of the Union over States in certain cases:

It has been laid down that the executive power of every State shall be exercised in such a manner as
shall not impede or prejudice the executive power of the Union. The Union can give such directions
to a State as are deemed essential by the Government of India for this purpose.

4. Union's power to give Directions:

The executive power of the Union includes the power to give directions to a State Government for the
construction maintenance of means of communications which are declared to be of national military
importance.

5. Power of the President to vest responsibility in respect of Union Powers in the State:

The President can, with the consent of the government of a State, entrust to that government or to its
officers all such functions as are required for the exercise of executive powers of the Union.

6. A State can entrust some functions to the Union:

Article 258A lays down that with the consent of the government of the State, the Governor can
entrust to the Government of India or its officers any function in relation to any matter which falls
within the sphere of the executive power of the State.

7. Union's Power of adjudication of disputes relating to Inter-state Rivers or River

Valleys:

Under Article 262, the Parliament can by law provide for the adjudication of any dispute over the
use, distribution or control of the waters of any inter-state river or river valley.

8. Protection of Central Property in a State:

It is the responsibility of every State Government to protect Central properties in its territory. The
Union can deploy Central Reserve Police or other paramilitary forces like Central Industrial Sec
Force, in any state.

9. Provisions regarding All India Services:

The officers of the Indian Administrative Service and Indian Police Service are recruited by UPSC but
are assigned to the States. They hold all higher administrative posts in the state administration.
Their conduct is ultimately controlled by the Union Home Ministry.

10. Union's power to create or abolish an All India Service:

Article 312 gives to the Rajya Sabha the power to create a new All India Service or to abolish an
existing All India Service. The Rajya Sabha can do this by passing a resolution supported by 2/3rd
majority of its members present and voting.

11. Constitutional Emergency in a State and provision for President’s Rule:

Under Article 356, the President can declare a constitutional emergency in the State in case of failure
of constitutional machinery. In such a case, the State executive ceases to hold power. The State
comes under President's rule and the Governor of the State starts acting as the real executive. The
State administration comes under the superintendence, direction and control of the Centre.
12. Duty of the Union to protect States against external aggression and internal
disturbances:

It is the duty of the Union to protect every state against external aggression and internal
disturbances. It has also to ensure that the government of every state is carried on in accordance with
the provisions of the Constitution. When the President proclaims a national emergency (Article 352),
the executive power of the Union gets extended to the States. He can give directions to any State as to
the manner in which its executive power is to be exercised.

13. Failure to give effect to the Union's directions by any State can invite a declaration
of Constitutional Emergency in that State:

The Constitution lays down that when any State fails to comply with a union law or to fails to carry
one any direction given in the exercise of the executive power of the Union, it becomes lawful for the
President to hold that a situation has arisen for placing that state under a constitutional emergency
(Article 356). The provision can be used by the Union against any non-cooperating State.

14. Power to appoint Inquiry Commissions against Chief Ministers:

Another provision which enables the Union Government to exercise an overall administrative control
over the State administration happens to be the system of appointment of inquiry commissions
against Chief Ministers of States for investigating alleged wrong act. These points clearly establish
the superior role that the Constitution assigns to die Union in the sphere of administrative relations
between the Union and the States. These features also reflect the Unitarian spirit of the Constitution
of India.