Legislative Relations

Arts.245 to 255 with the Seventh Schedule distribute legislative power. Parliament may enter the State List under Arts.249, 250, 252 and 253, residuary power lies with it under Art.248, and conflicts are resolved by Art.254 and the doctrines of pith and substance, colourable legislation, repugnancy and territorial nexus.

Legislative relations between the Union and the States rest on two axes: the territorial extent of legislative power (Art.245) and its subject matter (Art.246 with the Seventh Schedule). Where these overlap, the Constitution supplies rules of priority in Arts.251 and 254, and the courts have developed a body of interpretive doctrines to reconcile competing entries.

Legal Framework

Provision	Subject	Key Rule
Art.245(1)	Territorial extent	Parliament may legislate for the whole or any part of India; a State Legislature for the whole or any part of the State
Art.245(2)	Extra-territorial operation	No law of Parliament is invalid merely because it would have extra-territorial operation
Art.246	Distribution of subject matter	Parliament has exclusive power over List I, State Legislatures over List II, and both over List III, with the Union prevailing
Art.246A	Goods and Services Tax	Special provision inserted by the 101st Amendment, 2016, conferring simultaneous power on the Union and the States
Art.248	Residuary powers	Vested in Parliament, read with Entry 97 of the Union List
Art.249	Legislation in the national interest	Parliament may legislate on a State List matter if the Council of States so resolves by not less than two thirds of members present and voting
Art.250	Legislation during an Emergency	Parliament may legislate on any State List matter while a Proclamation of Emergency is in operation
Art.251	Effect of Arts.249 and 250 laws	The State's power is not restricted, but the Union law prevails; the State law is in abeyance, not void, and revives when the Union law lapses
Art.252	Legislation by consent	Parliament may legislate for two or more States whose Legislatures so resolve, and the law may be amended or repealed only by Parliament
Art.253	International agreements	Parliament may legislate to implement any treaty, agreement or convention, or any decision of an international body, notwithstanding the distribution of powers
Art.254(1)	Repugnancy	A State law repugnant to a Union law which Parliament is competent to enact is void to the extent of the repugnancy
Art.254(2)	Saving with assent	A State law on a Concurrent List matter repugnant to an earlier Union law prevails in that State if it has received the President's assent, subject to Parliament's power to add to, amend, vary or repeal it
Art.255	Recommendations and sanctions	Failure to obtain a required recommendation or previous sanction is a matter of procedure only, curable by subsequent assent

The Seventh Schedule

List	Nature	Illustrative entries
List I, Union List	Exclusive to Parliament	Defence, foreign affairs, railways, banking, currency, income tax other than agricultural income, customs, atomic energy, and Entry 97, residuary
List II, State List	Exclusive to the States, subject to clauses (1) and (2) of Art.246	Public order, police, public health and sanitation, agriculture, land, local government, State excise, betting and gambling, and taxes on land and buildings
List III, Concurrent List	Both, with Union priority	Criminal law and criminal procedure, marriage and divorce, transfer of property other than agricultural land, contracts, bankruptcy, trusts, education, forests, and administration of justice

**Entry counts, and why they are quoted inconsistently.** As originally enacted the Lists carried **97, 66 and 47** entries respectively. Amendments have since added, omitted and transposed entries, so the Lists now run to roughly **97 in the Union List, 59 in the State List and 52 in the Concurrent List**. The figures are quoted differently by different textbooks because entries have been **omitted without renumbering**: the highest numbered entry in the Concurrent List is still 47 although there are 52 subjects, and the State List is variously given as 59 or 61 depending on whether omitted entries are counted. Safer practice in an examination is to describe the position rather than to lead with a figure, and to name the transfers instead. The **42nd Amendment, 1976** moved **education**, **forests**, **weights and measures**, the **protection of wild animals and birds**, and the **administration of justice and constitution of courts other than the Supreme Court and High Courts** from the State List to the Concurrent List. The **101st Amendment, 2016** omitted entries on the introduction of goods and services tax.

Parliament's Power to Enter the State List

Route	Provision	Trigger	Duration
National interest	Art.249	Resolution of the Council of States by not less than two thirds of members present and voting	One year, renewable; the law ceases six months after the resolution ceases
Emergency	Art.250	A Proclamation of Emergency is in operation	The law ceases six months after the Proclamation ceases
Consent of States	Art.252	Resolutions by the Legislatures of two or more States	Indefinite; amendable or repealable only by Parliament
International obligation	Art.253	Implementation of a treaty, agreement, convention or decision of an international body	Indefinite
Failure of constitutional machinery	Art.356 with Art.357	President's Rule	While the Proclamation operates, and thereafter until altered by the State Legislature

Why Art.252 is the odd one out: Under Arts.249 and 250 the Union acts unilaterally, and the resulting law is temporary. Under Art.252 the States themselves invite Parliament to legislate, and the price of that invitation is permanent: the resulting law can be amended or repealed only by Parliament, so a State that consented cannot later resile by its own legislation. A State that did not pass a resolution may adopt the law afterwards by resolution of its own Legislature.

Interpretive Doctrines

Doctrine of pith and substance. Where a law is challenged as trespassing on another legislature's field, the court looks to the true nature and character of the legislation as a whole, its object, scope and effect. If in pith and substance it falls within the enacting legislature's competence, an incidental encroachment on a forbidden field does not invalidate it.

**State of Bombay v F N Balsara (1951)** Supreme Court of India

Facts: The Bombay Prohibition Act, 1949 prohibited the possession, sale and consumption of liquor. It was challenged partly on the ground that in prohibiting the possession of imported liquor it encroached on the Union field of import and export.

Issue: Whether a State law on intoxicating liquors is invalid because it incidentally affects the Union's exclusive field.

Held: Applying the doctrine of pith and substance, the Act in its true nature and character dealt with intoxicating liquors, a State subject. Its incidental effect on imported liquor did not take it outside the State's competence. Certain individual provisions were nevertheless struck down as violating fundamental rights, and the doctrine of severability was applied to save the rest.

Relevance: The standard Indian illustration of pith and substance. Pair it with Prafulla Kumar Mukherjee v Bank of Commerce, Khulna (1947), the Privy Council decision from which the doctrine was taken.

Doctrine of colourable legislation. The maxim is that what cannot be done directly cannot be done indirectly. Where a legislature lacks competence over a subject, it cannot achieve the same end by a law ostensibly on a subject within its competence. The doctrine is concerned with competence, not with motive or bona fides.

**K C Gajapati Narayan Deo v State of Orissa (1953)** Supreme Court of India

Facts: The Orissa Agricultural Income Tax (Amendment) Act, 1950 raised the rates of agricultural income tax steeply. It was alleged that the real object was not to raise revenue but to depress the computation of compensation payable to zamindars under an estates abolition law, and that the Act was therefore a colourable exercise of power.

Issue: What is the true scope of the doctrine of colourable legislation?

Held: The Act was valid. The doctrine of colourable legislation has nothing to do with the bona fides or mala fides of the legislature. The only question is one of competence: whether the legislature, while purporting to act within its power, has in substance transgressed it. If the subject matter is within its competence, the motive for enacting the law is irrelevant. Since agricultural income tax was squarely a State subject, the Act was intra vires whatever the purpose behind it.

Relevance: The leading case. Its principal use in an answer is negative, to show that the doctrine is far narrower than students assume.

Doctrine of repugnancy. Where a Union law and a State law on a Concurrent List subject conflict, Art.254(1) makes the State law void to the extent of the repugnancy, unless it is saved by Art.254(2).

**M Karunanidhi v Union of India (1979)** Supreme Court of India

Facts: A State Act providing for a commission of inquiry into the conduct of public men was said to be repugnant to central laws including the Prevention of Corruption Act and the Indian Penal Code, and the question arose whether a prosecution under the central laws was barred.

Issue: In what circumstances does repugnancy arise between a Union law and a State law?

Held: No repugnancy was made out. The Court set out the tests. There must be a direct and irreconcilable conflict between the two enactments, such that obedience to one involves disobedience to the other, and the two cannot stand together. Repugnancy also arises where Parliament has evinced an intention to lay down an exhaustive code occupying the whole field, leaving no room for the State law. Where the two operate in different fields, or the State law merely supplements the central law without conflict, both may stand. The onus lies on the party alleging repugnancy.

Relevance: The standard statement of the repugnancy tests. Use it alongside Zaverbhai Amaidas v State of Bombay (1954) on the occupied field and Deep Chand v State of Uttar Pradesh (1959).

Doctrine of territorial nexus. A State law is not invalid for affecting persons or property outside the State if there is a sufficient territorial connection between the State and the subject matter. Two conditions must be satisfied: the connection must be real and not illusory, and the liability sought to be imposed must be pertinent to that connection.

**State of Bombay v R M D Chamarbaugwala (1957)** Supreme Court of India

Facts: A newspaper printed and published outside Bombay conducted a prize competition, circulating widely within Bombay, collecting entries through local depots and collectors and drawing a substantial revenue from the State. Bombay levied a tax on the competition. The organisers contended that as they were resident and operating outside the State, the State could not tax them.

Issue: Whether a State may tax an activity carried on by a person outside its territory, and what connection suffices.

Held: The levy was valid. The doctrine of territorial nexus applied. The connection was real and not illusory, since the competition was conducted through a network of agents in the State, entries and money came from within it, and the whole scheme was directed at persons in the State. The liability imposed was pertinent to that connection.

Relevance: The classical illustration of territorial nexus. Note the two part test, which is what examiners look for.

Harmonious construction and incidental powers. Entries in the Lists are to be read widely and, so far as possible, harmoniously, so that each is given effect and none is rendered nugatory. A power to legislate on a subject carries with it the power to legislate on matters incidental and ancillary to it. Where reconciliation is genuinely impossible, the Union List prevails, because Art.246 gives it priority by the words "notwithstanding anything in clauses (2) and (3)".

Illustrations

Incidental encroachment: A State law on intoxicating liquors incidentally affects imported liquor. Applying F N Balsara (1951), the law is valid because in pith and substance it is on a State subject.
Motive irrelevant: A State raises agricultural income tax rates with the object of reducing compensation payable under another law. Applying K C Gajapati Narayan Deo (1953), the motive is irrelevant since the subject is within State competence.
Direct conflict: A Union law requires a licence for an activity and a State law forbids the activity outright, so that obeying one means disobeying the other. Applying M Karunanidhi (1979), the State law is void to the extent of the repugnancy.
Supplementary State law: A State law adds procedural safeguards to a central law without contradicting it. Both stand, there being no direct conflict and no occupied field.
Occupied field: Parliament enacts an exhaustive code on a Concurrent subject, evincing an intention to cover the whole field. A State law on the same subject is void even without a direct contradiction.
Art.254(2) saving: A State law on a Concurrent subject conflicts with an earlier central law and has received the President's assent. It prevails in that State, but Parliament may afterwards enact a law that overrides it.
Later Union law: A State law saved under Art.254(2) is followed by a fresh Union law on the same subject. The proviso to Art.254(2) allows Parliament to add to, amend, vary or repeal the State law, so the later Union law prevails.
Territorial nexus: A State taxes a lottery conducted from outside the State but sold through agents within it. Applying R M D Chamarbaugwala (1957), the nexus is real and pertinent, so the levy is valid.
Art.249 law: The Council of States resolves that Parliament should legislate on a State subject in the national interest. The resulting law operates for one year unless extended, and the corresponding State law is merely in abeyance under Art.251, reviving when the Union law lapses.
Art.252 law: Two States resolve that Parliament legislate on a State subject. The resulting Act may be amended or repealed only by Parliament, and a third State may adopt it by a resolution of its own Legislature.
Art.253 treaty law: Parliament implements an international convention on a subject in the State List. The law is valid notwithstanding the distribution of powers, and no State resolution is needed.

Recall Check

State the four routes by which Parliament may legislate on a State List subject, and the duration of the law in each case.
What are the two limbs of the repugnancy test in M Karunanidhi?
What are the two conditions of the territorial nexus doctrine?

Key Cases

State of Bombay v F N Balsara (1951) State of Bombay v FN Balsara 1951
Issue: Whether a State prohibition law is invalid for incidentally affecting the Union field of import and export.
Rule: The true nature and character of the law governs; incidental encroachment does not invalidate.
Held: The Act was in pith and substance on intoxicating liquors and valid, though some provisions fell for violating fundamental rights.

K C Gajapati Narayan Deo v State of Orissa (1953) KC Gajapati Narayan Deo v State of Orissa 1953
Issue: The scope of the doctrine of colourable legislation.
Rule: The doctrine concerns competence alone, not the bona fides or motive of the legislature.
Held: The Act was valid, agricultural income tax being a State subject whatever the purpose behind the increase.

M Karunanidhi v Union of India (1979) M Karunanidhi v Union of India 1979
Issue: When does repugnancy arise between Union and State laws?
Rule: There must be a direct and irreconcilable conflict, or Parliament must have occupied the whole field by an exhaustive code.
Held: No repugnancy was established, the two laws being capable of standing together.

State of Bombay v R M D Chamarbaugwala (1957) State of Bombay v RMD Chamarbaugwala 1957
Issue: Whether a State may tax a prize competition conducted from outside its territory.
Rule: A sufficient territorial nexus suffices, the connection being real and not illusory and the liability pertinent to it.
Held: The levy was valid, the competition having been conducted through agents and subscribers within the State.

Distinctions

Basis	Art.249	Art.250	Art.252	Art.253
Trigger	Resolution of the Council of States	Proclamation of Emergency	Resolutions of two or more State Legislatures	Implementation of an international obligation
Initiative	Union, through the second chamber	Union	The States themselves	Union
Extent	The whole of India, but operative on the State subject	The whole or any part of India	Only the consenting States, plus those later adopting it	The whole of India
Duration	One year, renewable	Six months beyond the Proclamation	Indefinite	Indefinite
Amendment or repeal	By Parliament, and the law lapses	By Parliament, and the law lapses	Only by Parliament	By Parliament

Basis	Pith and substance	Colourable legislation
Question asked	What is the true nature and character of the law?	Has the legislature in substance transgressed its competence?
Effect of incidental encroachment	Does not invalidate	Not the concern of the doctrine
Relevance of motive	Irrelevant	Irrelevant
Typical outcome	Saves the law	Rarely invalidates, as Gajapati shows
Leading case	F N Balsara (1951)	K C Gajapati Narayan Deo (1953)

Basis	Art.254(1)	Art.254(2)
Application	Any repugnancy between a Union and a State law	Concurrent List only
Order of enactment	Immaterial	The Union law must be earlier
Requirement	None	The State law must have received the President's assent
Outcome	State law void to the extent of repugnancy	State law prevails in that State
Union's residual power	Not applicable	Parliament may afterwards add to, amend, vary or repeal the State law

Flashcards

How does Art.246 allocate legislative power?

Parliament has exclusive power over List I, State Legislatures over List II, and both over List III, with the Union prevailing.

Where do residuary powers lie?

With Parliament, under Art.248 and Entry 97 of the Union List.

What resolution does Art.249 require?

A resolution of the Council of States passed by not less than two thirds of the members present and voting.

For how long does a law made under Art.249 operate?

One year, renewable, and it ceases six months after the resolution ceases to be in force.

Under Art.251, is the State law void while a Union law under Art.249 or 250 operates?

No. It is in abeyance and revives when the Union law lapses.

Who may amend or repeal a law made under Art.252?

Only Parliament.

Does Art.253 require State consent?

No. Parliament may legislate to implement an international obligation notwithstanding the distribution of powers.

State the doctrine of pith and substance.

The court looks to the true nature and character of the law, and an incidental encroachment on another legislature's field does not invalidate it.

Is the motive of the legislature relevant to colourable legislation?

No. K C Gajapati Narayan Deo (1953) held the doctrine concerns competence alone.

What are the two limbs of repugnancy?

A direct and irreconcilable conflict such that obedience to one means disobedience to the other, and Parliament having occupied the whole field by an exhaustive code.

What two conditions must a territorial nexus satisfy?

The connection must be real and not illusory, and the liability imposed must be pertinent to that connection.

What does Art.255 provide?

That a failure to obtain a required recommendation or previous sanction is a matter of procedure only, curable by subsequent assent.

Which entries moved from the State List to the Concurrent List in 1976?

Education, forests, weights and measures, and certain others, by the 42nd Amendment.

Exam Scenario

Problem: State A enacts the State Agricultural Markets Act regulating the sale of produce, which incidentally requires licences for inter-State carriers. Parliament had earlier enacted a Central Warehousing Act on a Concurrent List subject, and the State Act contains provisions inconsistent with it; the State Act received the President's assent. Parliament thereafter enacts a fresh Central Act on the same subject. State A also levies a tax on a company registered in State B which sells produce in State A entirely through commission agents based in State A. Finally, the Council of States resolves by a simple majority of those present that Parliament should legislate on agricultural marketing in the national interest, and Parliament enacts a law accordingly. Advise on the validity of each measure.

Step 1: Characterise the State Act by pith and substance

On the licensing of inter-State carriers, apply the doctrine of pith and substance and State of Bombay v F N Balsara (1951). Examine the Act as a whole.

If its true nature and character is the regulation of agricultural markets, a State subject, then the licensing requirement is an incidental encroachment on the Union field and does not invalidate it. The power to legislate on a subject carries incidental and ancillary powers with it.

Step 2: Work the Art.254 repugnancy sequence in order

The State Act displaces the earlier Central Warehousing Act, but only until Parliament legislates afresh. Take the two central enactments in sequence:

The earlier central Act. Apply Art.254(2). The subject is in the Concurrent List, the central law is earlier, and the State law has received the President's assent. All three conditions being satisfied, the State Act prevails in State A notwithstanding the repugnancy.
The later central Act. Apply the proviso to Art.254(2). Parliament retains power to add to, amend, vary or repeal the State law, so the later central Act prevails over the State Act to the extent of inconsistency.
Fix the extent of the displacement. Apply the repugnancy tests in M Karunanidhi v Union of India (1979): look for a direct and irreconcilable conflict, or an intention on Parliament's part to lay down an exhaustive code occupying the field. Only so much of the State Act as actually conflicts is displaced.

Condition in Art.254(2)	Requirement	On these facts
Subject matter	Must lie in the Concurrent List	Satisfied, the Central Warehousing Act is on a Concurrent List subject
Sequence	The central law must be the earlier law	Satisfied against the Warehousing Act, but not against the fresh central Act
Assent	The State law must have the President's assent	Satisfied

Step 3: Uphold the tax on territorial nexus

Apply the doctrine of territorial nexus and State of Bombay v R M D Chamarbaugwala (1957), and test the two conditions.

The connection is real and not illusory, since the entire selling operation is conducted through agents situated in State A and the revenue arises there. The liability is pertinent to that connection, being a tax on those very sales.

The levy is therefore valid despite the company being registered in State B.

Step 4: Check the Art.249 resolution against the required majority

Art.249 requires a resolution supported by not less than two thirds of the members of the Council of States present and voting. A simple majority does not satisfy the article.

The foundation for parliamentary competence is therefore absent, and the resulting law is void.

Four traps in this problem

Pith and substance cuts both ways. If the licensing provisions are found to be the substance rather than an incident, for example if they operate as a control on inter-State movement, they fall.

The Art.254(2) saving is not permanent. The proviso lets Parliament add to, amend, vary or repeal the protected State law, so the President's assent buys protection only against the earlier central Act.

Count the Art.249 majority correctly. It is two thirds of the members present and voting in the Council of States, not a simple majority. Even a valid Art.249 law would have operated for only one year unless extended.

Art.251 means abeyance, not voidness. Under a valid Union law the State law would have been in abeyance rather than void, reviving on the lapse of the Union law.

Conclusion. The State Act survives on pith and substance and prevails over the earlier central law, but yields to the later one to the extent of conflict. The tax is valid on territorial nexus, and the Art.249 law fails for want of the required majority.