Module I – Notes

Preamble of Constitution of India

The Preamble serves as an introduction to a statue or enactment. It is a statement

which sets out the purpose and object for which statute is enacted. The Preamble of

the Indian Constitution sets the ideals and goals which the makers of the Constitution

intended to achieve. It is a summary of the Constitution because it was created later.

It sets out the aims and aspirations of people, and these have been translated into

various provisions of the Constitution. It can be referred to as the preface which

highlights the essence of the entire Constitution.

The Preamble is borrowed from the U.S. Constitution. It is based on the Objective

Resolution which was drafted and moved in the Constituent Assembly by Jawaharlal

Nehru on 13th December, 1946. It is ordained by the people of India through their

representatives assembled in a sovereign Constituent Assembly. It reads as under –

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute

India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC

REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and

integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of

November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO

OURSELVES THIS CONSTITUTION.

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 The Constitution (42nd Amendment) Act, 1976, has inserted three new words in the

Preamble, i.e., Socialist, Secular and Integrity. These concepts were already implicit in

the Constitution, the amendment merely spells out these concepts clearly in the

Preamble.

Preamble serves the following purposes –

1. It indicates the source from which the Constitution comes, viz., the people of India.

2. It lays down the date of commencement of Constitution, viz., 26th November 1949.

3. It sets out the rights and freedoms which the people of India wished to secure for

themselves.

4. It declares the nature of the government which it wishes to establish in the country.

In A.K. Gopalan v. State of Madras, AIR 1950 SC 27, it was held that the Preamble to

our Constitution should be the guiding star in its interpretation.

In the case of Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, it was held that the

Preamble was not of common run such as is to be found in an Act of Legislature. It

had the stamp of ‘deep deliberation’, was ‘marked by precision’ and the ‘framers of

the Constitution attached special significance to it’. The Preamble was ‘an epitome’ of

the broad features of the Constitution which were an amplification of concretization

of the concepts set out in the Preamble.

In I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, it was held that the Preamble

to an Act sets out the main objectives which the legislation is intended to achieve. The

Preamble contains in a nutshell the ideals and aspirations of the Constitution.

Preamble of the Constitution declares India to be –

The people of India have mandated to provide India a Sovereign, Socialist, Secular,

Democratic, Republic.

● Sovereign – Sovereign power is that which is absolute and uncontrolled. The word

‘sovereign’ emphasizes that India is no more dependent upon any outside

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 authority. It means that both internally and externally India is supreme. India is

sovereign because the Constitution does not recognize the supremacy of any other

country over India. Sovereignty lies with the people of India and not the

Parliament. [Synthetics and Chemicals Ltd. v. State of U.P., AIR 1990 SC 1927]

● Socialist – A state which implies economic equality and equal distribution of

income is a socialist state. The term ‘socialist’ has been inserted in the Preamble by

the Constitution (42nd Amendment) Act, 1976, on the recommendation of the

Swaran Singh Committee. Even before the addition of the term, the socialist

essence could be found in Directive Principles of State Policy contained in Article

39 (b) and (c) of the Constitution. The term ‘socialist’ implies social and economic

equality among the people, viz.,-

Social equality means the absence of discrimination on the grounds only of caste,

creed, religion, sex, language, etc. Thus, everyone has equal status and

opportunities.

Economic equality means that the government will endeavour to make an equal

distribution of wealth and provide a decent standard of living for all.

In Excel Wear v. Union of India, AIR 1979 SC 25, it was held that the effect of

adding the word ‘socialist’ is that the court should give more effect to

nationalization and state ownership. Our socialism is a unique combination of

Marxism and Gandhianism with the Gandhian bias. Its practical aspect is mixed

economy, economic equality and equal distribution of income.

In D.S. Nakara v. Union of India, AIR 1983 SC 130, Supreme Court has held that

the basic framework of socialism is to provide a decent standard of life to the

working people and especially provide security from cradle to grave.

● Secular – The word ‘Secular’ was also added by the Constitution (42nd

Amendment) Act, 1976, to emphasize the secular nature of the nation. The

provisions contained in Articles 25 to 30 further aim at making India a truly secular

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 state, i.e., a state which treats all religions equally. It does not recognize any religion

as state religion. The idea of ‘Sarva Dharma Sambhava’ i.e., equality of all religions

instead of ‘Dharma Nirpeksha’ i.e., State neutrality in matters of religion can be seen

as a better idea. Thus, a ‘secular state’ is not an irreligious state, rather it is a non-

religious state. It is a state where no religion is endorsed as a state religion.

Secularism, thus, has two aspects –

1. Negative aspect – State not to interfere in any religion, i.e., there shall be freedom

of religion and no discrimination on ground of religion.

2. Positive aspect – State to take necessary steps for ensuring equality of religions.

In St. Xaviers’ College v. State of Gujarat, AIR 1974 SC 1389, the Supreme Court

stated that although the words ‘secular state’ is not expressly mentioned in the

Constitution but there can be no doubt that Constitution-makers wanted to

establish such a state and accordingly Articles 25 to 28 have been included in the

Constitution.

In S. R. Bommai v. Union of India, AIR 1994 SC 1918, Supreme Court held that

‘Secularism is the basic feature of the Constitution’.

In Aruna Roy v. Union of India, (2002) 7 SCC 368, it was held that Secularism has

a positive meaning that is developing, understanding and respect towards

different religions.

● Democratic – ‘Democratic’ means a state where the governance is by the people,

of the people and for the people. The rulers are elected by the people and are

responsible to them. The enacting words, “We, the people of India…”, signify the

democratic principle that power is ultimately rested in the hands of the people.

In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, the Supreme Court held

that Democracy is a basic feature of the Constitution.

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● Republic – The word ‘Republic’ means the head of the state is an elected person,

and not a hereditary monarch. In a ‘republic’ the political sovereignty resides in

the people and the Head of the State i.e., President of India is only an elected person

for a fixed term.

The Preamble lays down rights which people of India are entitled to. These are

given in the form of objectives and commitments in the Preamble. To secure the

principles of Sovereign, Socialist, Secular, Democratic and Republic, all the citizens of

India have –

● Justice – ‘Justice’ means a harmonization of interests between the individuals and

the society. In Preamble, justice is not merely an administration of legal justice by

courts, but has three facets, viz., social, economic and political justice.

Social justice denotes the equal treatment of all citizens without any social

distinction based on caste, colour, creed, religion, sex, etc. It means absence of

privileges being extended to any section of the society and improvement in the

conditions of backward social classes.

Economic justice denotes the non-discrimination between people on the basis of

economic factors. It involves inequalities in wealth, income and property.

Political justice implies that all citizens should have equal political rights, equal

access to all political offices and equal voice in the government.

In K.K Bhaskaran v. State (2011) 3 SCC 793, the Supreme Court held that the

Constitution should be interpreted in such a manner so as to secure the goal of

social, economic and political justice.

● Liberty – ‘Liberty’ means the absence of restraints on the activities of individuals,

and at the same time, providing opportunities for the development of individual

personalities. The Constitution regards liberty of thought, expression, belief, faith

and worship to be essential to the development of the individual and the nation,

and therefore the Preamble promises to secure the same to its citizens. However,

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 liberty does not mean freedom to do anything, and it must be exercised within the

constitutional limits, thus, reasonable restrictions have been provided in the

Constitution. The liberty conceived by the Preamble is not absolute but qualified.

● Equality – Equality of status and of opportunity is also one of the objects of our

Constitution. This object is secured in the body of the Constitution by guaranteeing

equality before the law and equal protection of the laws [Article 14] as justiciable

right; by making illegal all discriminations by the State between citizens, merely

on the ground of religion, race, caste, sex and place of birth [Article 15]; by

throwing open public places to all citizens [Article 15(2)]; by abolishing

untouchability [Article 17], etc.

● Fraternity – Fraternity requires sharing of a feeling of commonness, brotherhood,

care and concern for one another. The ultimate purpose of the Constitution is to

assure the dignity of the individual and the unity and integrity of the nation. It can

be assured by promoting fraternity. Fraternity can be promoted by guaranteeing

justice, liberty and equality to all and by providing these five characteristics, viz.,

sovereign, socialist, secular, democratic, republic to the Indian society.

Thus, the Constitution aims at constituting an egalitarian society, i.e., a society

based upon equality in which everyone is happy and contented. That will happen only

when the three elements, i.e., justice, liberty and equality are into a perfect harmony

with each other and for those discrepancies of the society are to be eliminated.

Preamble as an integral part of the Constitution

The Preamble was introduced in the Constituent Assembly in the form of Objective

Resolution initially, to be discusses and decided as guide for its subsequent

deliberations in the making of the Constitution. However, it was finalized as the last

item in the Constitution making process to ensure its consistency with the rest of the

Constitution because the Preamble forms the part of the Constitution. A statute must

be read as a whole, and a Preamble is as much a part of the statute as its enacting part.

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 In Re Berubari Union and Exchange of Enclaves Case, AIR 1960 SC 845, it was held that

the Preamble is the key to open the minds of the Constitution makers which may show

the general purposes for which they made the several provisions in the Constitution.

Thus, where the words were found to be vague or their meaning was unclear, help of

the Preamble could be taken to understand the intention of the framers and find out

whether a particular word was used in a wide or narrow context. It does not form part

of the Constitution and therefore it could never be regarded as a source of any

substantive power conferred on the Government or any of its departments. Such

powers have to be expressly granted in the body of the Constitution or implied from

those so granted.

Later, when the history of the drafting and the ultimate adoption of the Preamble

was brought to the notice of the Supreme Court in Keshavananda Bharati v. State of

Kerala, AIR 1973 SC 1461, it was held that the Preamble forms part of the Constitution

and all importance is to be attached to it in interpreting the Constitution. It should be

read and interpreted in the light of the grand and noble vision expressed in the

Preamble.

In Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, it was held that the

recognition of a Preamble as an integral part of the Constitution makes the Preamble

a valuable aid in the construction of the provision of the Constitution because unlike

the Preambles to an Act, the Preamble of Constitution occupies the same position as

other enacting words or provisions of the Constitution.

Amendment of Preamble

The Preamble of the Indian Constitution is capable of being amended as per Article

368 of the Constitution. The Preamble is considered the heart and soul of the Indian

Constitution. Although it can be amended as per the provisions of the Constitution,

its basic features cannot be altered. So far, only one Amendment has been made to the

Constitution.

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 By the Constitution (42nd Amendment) Act, 1976 [w.e.f. 03-01-1997], the Parliament

amended the Preamble and added the words “Socialist, Secular” before Democratic

and “and integrity” before ‘the nation’. Since the spirit of these additions only expressly

stated what was already present in the Constitution impliedly, the amendment did

not impair the basic features.

In Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (13 Judges Bench) the

question whether the Preamble of the Constitution of India can be amended under

Article 368 of the Constitution of India was raised for the first time. The Supreme

Court held that the words and expressions used in the Preamble are not ambiguous

and amending powers of the Parliament cannot be interpreted to confer the power to

take away basic and fundamental policy of the Preamble. Since, Preamble is the part

of the Constitution and therefore, it can be amended. However, Parliament shall not

exercise its amending power so as to destroy the basic features in the Preamble. The

Court stated that the edifice of our Constitution is based upon the basic element in the

Preamble and if any of these elements are removed, the structure will not survive, it

will no longer have the same constitution, and it will lose its identity.

The 42nd Amendment Act, 1976, added the words, ‘Socialist’, ‘Secular’ and

‘Integrity’ to the Preamble of the Indian Constitution, thus, making it explicit what

was implicit in the Constitution, i.e., positive amendment.

In Minerva Mills v. Union of India, AIR 1980 SC 1789, it was held that the Preamble

can be amended in order to make it more manifest and expressive. The limited

amending power of Parliament is itself an essential feature of the Constitution, a part

of its basic structure, for if the limited power of amendment was enlarged into an

unlimited power, the entire character of the Constitution would be changed.

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Meaning, scope and extent of term ‘citizen’

The provisions regarding citizenship are contained under Part II (Articles 5 to 11) of

the Constitution of India. As regards persons who were born after January 26, 1950,

provisions regarding citizenship are made in the Citizenship Act, 1955.

Meaning of the term ‘citizen’

A citizen of a state is a person who enjoys full civil and political rights, unlike aliens

who do not enjoy all these rights. Citizenship carries with it certain advantages

conferred by the Constitution. Aliens do not enjoy these advantages.

Citizenship at the commencement of the Constitution, i.e., January 26, 1950

The following persons under Article 5 to 8 of the Constitution of India shall become

citizens of India at the commencement of the Constitution –

1. Citizenship by Domicile (Article 5)

2. Citizenship of migrants to India from Pakistan (Article 6)

3. Citizenship of migrants to Pakistan (Article 7)

4. Citizenship of Indians abroad (Article 8)

1. Citizenship by Domicile (Article 5) – To be entitled to citizenship by domicile,

Article 5 lays down two conditions. First, at the commencement of the

Constitution, a person must have his domicile in the territory of India. Second, such

a person must fulfil any one of the three conditions as laid down in the article,

namely –

(a) He was born in the territory of India; or

(b) Either of his parents was born in the territory of India; or

(c) He has been ordinarily resident in the territory of India for not less than 5 years

immediately preceding such commencement.

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 ‘Domicile’ refers to that place where a person actually resides with an intention

of residing permanently, or indefinitely. Thus, the domicile of a person is in that

country in which he either has or is deemed by law to have his permanent house.

There is a distinction between ‘domicile’ and ‘residence’, as domicile comprises

residence plus a certain state of mind.

In Pradeep Jain v. Union of India, AIR 1984 SC 142, the Supreme Court has held

that in India Article 5 recognises only one domicile, viz., domicile of India. It does

not recognize the notion of state domicile.

2. Citizenship of migrants to India from Pakistan (Article 6) – A person who has

migrated to the territory of India from the territory now included in Pakistan shall

be deemed to be a citizen of India at the commencement of this Constitution if –

(a) He or either of his parents or any of his grandparents was born in India as

defined in the Government of India Act, 1935; and

(b) (i) In case he migrated to India before July 19, 1948 – He has been ordinarily resident

in the territory of India since the date of his migration.

(ii) In case he migrated on or after July 19, 1948 – He has been registered (on an

application made by him) as a citizen of India by an officer appointed by the

Government of India.

A person shall not be so registered unless he has been resident in the territory

of India for at least 6 months immediately preceding the date of his application.

3. Citizenship of migrants to Pakistan (Article 7) – A person who has after March 1,

1947, migrated from India to Pakistan shall not be deemed to be a citizen of India.

However, an exception is made in favour of a person who has returned to India

under a permit for resettlement or permanent return. Such a person is entitled to

become a citizen of India if he fulfils other conditions necessary for immigrants

from Pakistan after July 19, 1948.

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 Article 7 thus overrides Articles 5 and 6 and the citizenship comes to an end

only when there is a migration and not where there was only a temporary visit.

4. Citizenship of Indians abroad (Article 8) – Any person –

- who or either of whose parents or any of whose grandparents was born in India

as defined in the Government of India Act, 1935, and

- who is ordinarily residing in any country outside India,

shall be deemed to be a citizen of India if he has been registered as a citizen of India

by the Diplomatic or Consular representative of India in the country where he is

for the time being residing on an application made by him, whether before or after

the commencement of this Constitution.

Article 9 provides that if a person voluntarily acquires the citizenship of any

foreign State, he shall not be able to claim citizenship of India under Articles 5, 6 or 8.

Article 10 provides that every person who is or is deemed to be a citizen of India

shall continue to be such citizen, subject to the provisions of any law that may be made

by Parliament.

Article 11 of the Constitution of India provides for the power of Parliament to make

any provision with respect to the acquisition and termination of citizenship and all

other matters relating to citizenship.

In exercise of its power, the Parliament has enacted the Indian Citizenship Act,

1955. The Act provides for the acquisition and termination of citizenship subsequent

to the commencement of the Constitution.

Acquisition of Citizenship

There are five distinct modes of acquiring Indian citizenship under the Citizenship

Act, 1955, namely –

1. Citizenship by Birth – A person is the citizen of India by birth, if –

i. He is born in India on or after January 26, 1950 but before July 1, 1987, or

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 ii. He is born in India on or after July 1, 1987 but at the time of the birth either of

his parents was a citizen of India.

However, if at the time of his birth, his father possessed such immunities from

suits and legal process, as are given to an envoy or foreign sovereign or any person

who is accredited to the President of India and he is not a citizen of India, or his

father is an enemy abroad and the birth occurs in a place under occupation by the

enemy, he is not deemed to be a citizen by virtue only of his birth in India at that

time.

2. Citizenship by Descent – A person who is born outside India on or after January

26, 1950, becomes a citizen of India, if his father is a citizen of India at the time of

his birth. But if the father of such person was a citizen of India by descent only,

that person cannot be a citizen of India by birth, unless his birth has been registered

at the Indian Consulate within 1 year or with the permission of the Central

Government after that period, or unless his father is, at the time of his birth, in the

service of the Government of India. Any person born outside India at the

commencement of the Constitution is also to be deemed to be citizen of India by

descent only.

3. Citizenship by Registration – The appropriate authority may register a person

who is not already a citizen of India by virtue of any other provisions of the

Citizenship Act, as a citizen of India, on an application made by such person,

subject to such restrictions and conditions as may be prescribed, who must fall

under one of the following categories –

i. Persons of Indian origin who are ordinarily resident in India, and have been so

resident for 6 months immediately before making an application for

registration;

ii. Persons of Indian origin who are ordinarily resident in any country or place

outside undivided India;

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 iii. Women who are, or have been, married to citizens of India;

iv. Minor children of persons who are Indian citizens;

v. Persons of full age and capacity who are citizens of the U.S., Canada, Australia,

New Zealand, South Africa, Pakistan, Ceylon, Rhodesia and Ireland. Such

persons are required to take an oath of allegiance before registration.

However, persons who have renounced, or who have been deprived of Indian

citizenship, or whose citizenship has been terminated, cannot be registered

without the order of the Central Government.

4. Citizenship by Naturalization – A person can apply for grant of naturalization if

he is of full age and capacity. He should not belong to certain specified countries.

He must also satisfy the following conditions –

i. He should not be a subject or citizen of a country where citizens of India are

prevented by law or the practice of that country, from becoming subjects or

citizens of that country by naturalization.

ii. He should have renounced his citizenship of his previous country and notified

such renunciation to the Central Government.

iii. He should be residing in India, or should be in the service of the Government

of India, or partly in one or the other, for a full period of 12 months,

immediately preceding the date of the application.

iv. During the period of 7 years immediately preceding the above period of 12

months, he should have resided in India or should have been in the service of

the Government of India, or partly in one or the other, for a period of at least 4

years in the aggregate.

v. He should be of good character.

vi. He should have adequate knowledge of a language specified in the seventh

schedule to the Constitution.

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 vii. He should intend to reside or enter or continue in Government service or serve

an International Organization of which India is a member or under a society,

company or body of persons established in India.

Even if a person does not comply with all or any of the above conditions, he

can still acquire citizenship by naturalization if, in the opinion of the Central

Government, he has rendered distinguished service to the cause of science,

philosophy, art, literature, world peace, or human progress in general.

5. Citizenship by incorporation of Territory – If a territory becomes a part of India,

the Central Government may, by notification, specify as to who will be citizens of

India by reason of such incorporation.

Termination of Citizenship

The Citizenship Act, 1955, provides that the citizenship of India may be lost in the

following ways, viz.,

1. Renunciation of citizenship – An Indian citizen of full age and capacity who is

also a citizen or national of another country can renounce his Indian citizenship by

making a declaration to that effect and having it registered.

2. Voluntary Termination – If a citizen of India voluntarily acquires the citizenship

of another country, he shall cease to be a citizen of India.

3. Deprivation of citizenship – Deprivation is a compulsory termination of the

citizenship of India. A citizen of India by naturalization, registration, domicile and

residence, may be deprived of his citizenship by an order of the Central

Government if it is satisfied that –

a. Registration or naturalization was obtained by means of fraud, false

representation or concealment of any material fact, or

b. He has shown himself by act or speech to be disloyal or disaffectionate towards

the Indian Constitution, or

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 c. During a war in which India may be engaged he has unlawfully traded or

communicated with the enemy, or

d. Within 5 years of his registration or naturalization he has been sentenced to

imprisonment for not less than 2 years, or

e. He has been ordinarily residing out of India for 7 years continuously.

Rule of Law

The concept of Rule of Law as propounded by A.V. Dicey is that every man is subject

to law and ordinary courts and none is above law. The guarantee of equality before

the law is an aspect of what Dicey calls the Rule of law in England. It means that every

person, whatever be his rank or condition, is subject to the jurisdiction of ordinary

courts. Every official from the Prime Minister down to constable is under the same

responsibility for every act done without legal justification as any other citizen. Rule

of law requires that no person shall be subjected to harsh, uncivilized or

discriminatory treatment even when the object is the securing of the paramount

exigencies of law and order.

Dicey mentions 3 meanings of Rule of Law –

1. Supremacy of law or absence of arbitrary power – No man is punishable or can

be lawfully made to suffer in body or goods except for a distinct breach of the law

established in the ordinary legal manner before the ordinary way by person in

authority.

2. Equality before the laws – The principle of equality before the law seeks to ensure

that the law is administered and enforced in a just manner. It is not enough to have

a fair law but the law must be applied in a just manner as well. The law cannot

discriminate between people in matters of sex, religion, race, etc. This concept of

the rule of law has been codified in the Indian Constitution under Article 14. No

man is above the law. Every man, irrespective of his rank and condition, is subject

to the ordinary law of the land and amenable to the jurisdiction of ordinary courts.

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3. The Constitution is the outcome of the ordinary law of the land – There is no

written Constitution in England and judicial decisions in particular cases lay down

the rights of individual and general constitutional principles.

The rule of law may be defined as recognition of the supremacy of law, the equal

subjection of all persons to it. The Government as well as the governed are subject to

the law. The third corollary of Dicey’s Rule of Law is not applicable in Indian Context.

The Constitution of India intended for India to be a country governed by the rule

of law. It provides that the Constitution shall be the supreme power in the land and

the legislative and the executive derive their authority from the Constitution. Any law

that is made by the legislature has to be in conformity with the Constitution failing

which it will be declared invalid as provided under Article 13(1). Article 21 provides

a further check against arbitrary executive action by stating that no person shall be

deprived of his life and personal liberty except in accordance with the procedure

established by law.

In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, the Supreme Court declared

that the Rule of Law is one of the basic features of the Indian Constitution.

In A.D.M. Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, the question before the

court was whether there was any rule of law in India apart from Article 21. Justice H.R.

Khanna (in his dissenting opinion) observed that even in absence of Article 21 in the

Constitution, the state has got no power to deprive a person of his life and liberty

without the authority of law. Without such sanctity of life and liberty, the distinction

between a lawless society and one governed by laws would cease to have any

meaning. Rule of law is now the accepted norm of all civilized societies.

In Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461, the Supreme Court held

that our Constitution postulates Rule of Law in the sense of supremacy of the

Constitution and the laws as opposed to arbitrariness. The Rule of law is an essential

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part of the basic structure of the Constitution and as such cannot be amended by any

Act of Parliament.

Legislative power of Union and State

Ans. The main characteristic of a federal Constitution is the distribution of powers

between the Centre and the States. The relations between the Union and the States are

contained in Part XI of the Constitution of India which makes a two-fold distribution

of legislative powers –

1. With respect to Territorial Jurisdiction – Article 245

2. With respect to Subject-matter of Legislation – Article 246 (3 lists)

Territorial Jurisdiction

Article 245 of the Constitution provides that the Parliament may make laws for the

whole or any part of the territory of India, and the Legislature of a State may make

laws for the whole or any part of the State. Law made by Parliament shall not be

deemed to be invalid on the ground that it would have extra-territorial operation.

It implies that the state law would be void if it is given extra-territorial operation,

i.e., it is applied to subjects or objects located outside the territory of that state.

However, many times the state laws having extra-territorial operations have been held

valid. It is done by the application of the Doctrine of Territorial Nexus.

Distribution of Subject-matter of Legislation

Subject matter jurisdiction deals with three lists contained in Schedule 7 of the

Constitution –

(i) Union List (List I) – It contains 97 items and comprises 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.

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(ii) State List (List II) – It contains 66 items and comprises 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.

(iii) Concurrent List (List III) – It contains 47 items, with respect to which both Union

Parliament and State Legislature have concurrent power of legislation. 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 the Union

Parliament. The subjects include general laws and social welfare – civil and

criminal procedure, marriage, contract, planning, education, etc.

In G.V.K. Industries v. Income Tax Officer, (2011) 4 SCC 36, it was held that any laws

enacted by Parliament with respect to ‘extra-territorial aspects or causes’ which have

‘no impact on or nexus with India’ would be ultra vires Article 245 of the Constitution

of India. Extra- territorial provisions having a nexus with Indian interests are intra

vires.

Subject-matter relation

Article 246 provides for subject-matter of laws made by Parliament and by the

Legislatures of States. It states that –

(1) Parliament has exclusive power to make laws with respect to any of the matters

enumerated in List I (Union List).

(2) Parliament and the Legislature of any State have power to make laws with

respect to any of the matters enumerated in List III (Concurrent List).

(3) The Legislature of any State has exclusive power to make laws for such State

with respect to any of the matters enumerated in List II (State List).

(4) Parliament has power to make laws with respect to any matter for any part of

the territory of India not included in a State notwithstanding that such matter is

a matter enumerated in the State List.

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 Thus, Article 246 provides that the Parliament has exclusive power to make laws

with respect to Union List; the State Legislature for the State List; and, the Parliament

and State Legislature, both, for the Concurrent List. However, there is predominance

of the Union Parliament in matters of legislative law making.

Article 247 provides that the Parliament may by law provide for the establishment

of any additional courts for the better administration of laws made by Parliament or

of any existing laws with respect to a matter enumerated in the Union List.

In Javed v. State of Haryana, AIR 2003 SC 3057, Supreme Court observed that the

Union Parliament and every State Legislature have power to make laws with respect

to any of the matters which fall within their field of legislation under Article 246 read

with 7th Schedule of the Constitution. The Constitution gives autonomy to the Centre

and the States within their respective fields. Thus, a legislation by the States cannot be

held to be discriminatory or suffering from the vice of hostile discrimination as against

its citizens simply because the Parliament or the Legislatures of other States have not

chosen to enact similar laws.

In Union of India v. H.S. Dhillon, AIR 1972 SC 1061, it was held that in case of a

Central Legislation the proper test was to inquire whether the matter fell in List II

(State List) or List III (Concurrent List). Once it is found that the matter does not fall

under List II, Parliament will be competent to Legislate it under its residuary power

in Entry 97 of List I.

Residuary Power of Legislation

Article 248 of the Constitution provides that Parliament has exclusive power to make

any law with respect to any matter not enumerated in the Concurrent List or State

List. Such power shall include the power of making any law imposing a tax not

mentioned in either of those Lists.

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Circumstances when Union can legislate on matters of State list –

The Union Parliament assumes legislative authority over subjects in the State List, in

following circumstances –

1. National Interest [Article 249] – If the Rajya Sabha has passed a resolution

supported by 2/3rd of the members present and voting that it is expedient in the

national interest that Parliament should make laws with respect to any matter

enumerated in the State List, then it shall be lawful for Parliament to make laws

for the whole or any part of the territory of India with respect to that matter while

the resolution remains in force.

Such resolution shall remain in force for a period of 1 year. It may be renewed

as many times necessary but not exceeding a period of 1 year at a time. The law

made by Parliament shall cease to have effect after expiration of 6 months after

resolution ceases to operate.

2. During proclamation of emergency [Article 250] – Parliament shall have power

to make laws for the whole or any part of the territory of India with respect to any

of the matters enumerated in the State List, while a Proclamation of Emergency is

in operation.

Such law shall cease to have effect on the expiration of 6 months after the

proclamation of emergency has ceased to operate.

3. Consent of States [Article 252] – If the Legislatures of two or more States pass

resolutions to the effect that it is desirable to have a law passed by Parliament on

any matters in the State List, it shall be lawful for Parliament to pass an Act for

regulating that matter. Any other State may adopt such law by passing a resolution

to that effect. Such law can only be amended or repealed by the Act of Parliament.

4. To give effect to international agreements [Article 253] – Parliament has power

to make any law for the whole or any part of the territory of India for implementing

any treaty, agreement or convention with any other country.

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5. Failure of constitutional machinery in State [Article 256] – Parliament is

empowered to make laws with respect to all matters in the State List in case of State

emergency.

Inconsistency between Centre and State

Article 254(1) of the Constitution provides that if any provision of a law made by the

Legislature of a State is repugnant to any provision of a law made by Parliament with

respect to one of the matters of the Concurrent List, then the law made by Parliament

shall prevail.

Article 254(2) provides that if a law made by the Legislature of a State with respect

to one of the matters of the Concurrent List is repugnant to any law made by

Parliament, but the state law has been reserved for consideration of the President and

has received his assent, then the state law will prevail over the law made by the

Parliament. However, Parliament can still override such law by subsequently making

a law on the same matter.

Repugnancy between two pieces of legislation means that the conflicting results are

produced when both the laws are applied to the same set of facts. Repugnancy arises

when the provisions of two laws are fully inconsistent and absolutely irreconcilable.

By Surbhi Wadhwa 21