Legislative Powers of the Union and the States – Study

Notes( cs )

Two Sets of Government/Explain the federal structure of the Indian

Constitution and the concept of dual polity.

India has a federal Constitution, meaning power is divided between co-ordinate

and independent governments, each deriving authority from the Constitution. As
per Dicey, “Federation means the distribution of the force of the State among a
number of co-ordinate bodies, each originating in and controlled by the Constitution.”
The country operates under a dual polity: the Union Government with jurisdiction
over the entire country and State Governments, each exercising jurisdiction within
its own state. Citizens are subject to both levels. There are also Union Territories,
which are administered directly by the Union, and do not have the autonomy of
states. Both Union and States are limited by the Constitution, including compliance
with Fundamental Rights, and share the totality of governmental functions and
powers.

Chapter I of Part XI (Articles 245 to 255) of the Indian Constitution, along with the
Seventh Schedule, deals with the legislative relationship between the Union and the
States. An analysis of these provisions shows that the entire legislative domain is
divided based on
(a) the area or territory where the law will apply, and
(b) the topics or subjects on which the law can be made.

Territorial Distribution of Legislative Powers, Explain the territorial

distribution of legislative powers between the Union and the States.

The Union Legislature, or Parliament, has the authority to make laws for the whole of
India or any part of it. In contrast, State Legislatures can make laws only for their
respective states or parts thereof. This means Union laws are enforceable
throughout India, while State laws generally cannot operate beyond the territorial
limits of the state. For example, a law passed by the Punjab State Legislature cannot
be applied in Uttar Pradesh or any other state. However, this general principle of
territorial division has certain clarifications when it comes to extra-territorial
application of laws.

Parliament, being the supreme legislative body, can enact laws that apply even
beyond India. A law made by Parliament is not invalid merely because it has
extra-territorial operation. As stated by Chief Justice Kania in A.H. Wadia v.
Income-tax Commissioner (AIR 1949 FC 18), questions of extra-territoriality cannot
be raised in domestic courts to challenge a law’s validity; while such laws may
conflict with international law or be unenforceable abroad, these are policy matters
outside the purview of domestic tribunals
Union Territories (UTs) are areas that are directly run by the Central Government,
not a state government. The President of India manages UTs through an
Administrator he appoints. Parliament can create local governments in UTs (like a
small Legislature or Council of Ministers) and decide what powers they have.​
Parliament can make laws on any subject for UTs, even matters normally reserved
for states (State List).

State Legislatures can generally make laws only for their own territory, but such laws
may apply outside the state if there is a sufficient “territorial nexus” with the subject
matter. According to the Supreme Court in State of Bombay v. R.M.D.C. (AIR 1957
SC 699), two conditions must be met for a law to be valid outside the state: the
connection must be real and not illusory, and the law’s obligations must relate to that
connection.

. Distribution of Legislative Subjects What are the three

legislative lists provided under the Seventh Schedule of the Indian
Constitution?
The Government of India Act,The Constitution distributes legislative subjects through
the Seventh Schedule, divided into three lists: Union List (97 entries), State List
(66 entries), and Concurrent List (47 entries).residuary subjects are assigned to
the [Link] Union List includes subjects of national interest requiring uniformity,
such as defence, atomic energy, foreign affairs, railways, currency, inter-state trade,
banking, and coordination of higher education standards. The State List covers
subjects of local or regional importance, such as public order, police, prisons, local
government, public health, and intra-state trade. The Concurrent List includes
subjects that are of local interest but need some degree of national uniformity, such
as criminal law, marriage and divorce, transfer of property, contracts, economic
planning, social security, professions, price control, electricity, and acquisition of
property.

Tax-related subjects are listed separately at the end of the Union and State Lists,
and there are no tax subjects in the Concurrent List. Each list also includes a
mention of “fees” connected to the subjects in that list (excluding court fees). Lists I
(Union) and II (State) include entries about “offences against laws” related to the
subjects, while criminal law is included as a general subject in the Concurrent List.
The Constitution also clearly decides who can make laws on which
subjects—either Parliament or the State Legislatures. This is mainly explained in
Article 246, with additional details in Articles 247 to 254, to make sure powers are
clearly divided and there is no conflict between the Centre and the States.

Legislative Powers of the Union and the States with

Respect to Legislative Subjects. Explain the distribution of
legislative powers between the Union and the States with respect to legislative
subjects.
General Scheme of Distribution

The Constitution of India provides a well-defined scheme for the distribution of

legislative powers between the Union and the States with respect to different
subjects of legislation. This distribution is contained in the Seventh Schedule, which
divides subjects into three lists: the Union List (List I), the State List (List II), and
the Concurrent List (List III).

Union List (List I)

Subjects enumerated in the Union List fall under the exclusive legislative power
of Parliament. The State Legislatures have no authority to make laws on these
subjects, irrespective of whether Parliament has exercised its power or not.​
Parliament’s power over Union List subjects is supreme, even over matters in the
State List or Concurrent List. If due to any error the same subject appears in more
than one list, it shall be treated as belonging only to the Union List, thereby
recognizing the superiority of List I.

State List (List II)

Subjects included in the State List are within the exclusive jurisdiction of the
State Legislatures. Parliament cannot make laws on these subjects, whether or not
the State has enacted legislation on them. This ensures autonomy of States in
matters of regional and local importance.

Concurrent List (List III)

Both Parliament and State Legislatures have the power to make laws on subjects
included in the Concurrent List. Laws made by both are valid as long as there is no
inconsistency between them.​
In case of repugnancy or conflict, the law made by Parliament prevails, and the
State law remains valid only to the extent it is not inconsistent with the Parliamentary
law.

4. Exception to the Rule of Repugnancy

The Constitution recognizes an important exception to the general rule that
Parliamentary law prevails in matters listed in the Concurrent List. If a State
Legislature enacts a law on a Concurrent List subject and the law is reserved for the
consideration of the President and receives his assent, such State law will prevail
within that State even if it is inconsistent with an existing law made by Parliament.
However, Parliament continues to have the authority to override the State law at any
time by passing a new law or by amending or repealing the State legislation.

5. Residuary Legislative Powers

Subjects that are not mentioned in any of the three lists fall under the residuary
legislative powers of Parliament. Only Parliament has the authority to legislate on
such matters.​
The Supreme Court in Union of India v. H.S. Dhillon (1972) held that the power to
impose wealth tax on total wealth, including agricultural land, belongs to
Parliament under its residuary jurisdiction.

Power of Parliament to make Laws on State List , (Explain the

circumstances under which Parliament can make laws on subjects enumerated in
the State List.)

●​ In the National Interest (Article 249)

●​ During a proclamation of emergency (Article 250)
●​ Breakdown of Constitutional Machinery in a State (Article 356 and 357)
●​ On the request of two or more States (Article 252
●​ Legislation for enforcing international agreements (Article 253)

Law Making in National Interest

Parliament can make a law on a State List subject if the Rajya Sabha passes a
resolution stating that it is necessary or useful in the national interest.

●​ The resolution must be passed by a two-thirds majority of members present

and voting in the Rajya Sabha.​

●​ After this resolution, Parliament can make laws on that subject for the whole
or any part of India.​

●​ The resolution is valid for one year only.​

Duration of the Law

●​ The resolution can be renewed every year by passing a fresh resolution.​

●​ As long as the resolution continues, Parliament’s law also continues to

operate.

End of the Law

●​ The law made by Parliament stops working six months after the resolution
expires.​

●​ However, anything already done under that law remains valid.

During a Proclamation of Emergency

 ●​ when a National Emergency is in force, Parliament can make laws on all
subjects in the State List. These laws can apply to the whole of India or any
part of it.
●​ The laws made by Parliament under Article 250 do not continue
[Link] cease to operate six months after the Emergency
ends.
●​ Even after such laws stop working, actions already taken under them
remain valid. Only future actions cannot be taken once the law becomes
inoperative.

Under Article 352, the President may proclaim an Emergency if he is satisfied that
the security of India or any part of it is threatened by:

●​ war, or​

●​ external aggression, or​

●​ armed rebellion​

An actual war or rebellion is not necessary; even an imminent danger is sufficient.

●​ The Emergency can be proclaimed only after the written advice of the
Union Cabinet is given to the President.​

●​ The proclamation must be placed before both Houses of Parliament.

●​ The proclamation must be approved by both Houses within 30 days.​

●​ Approval must be by a two-thirds majority of members present and

voting.​

●​ If Lok Sabha is dissolved, approval by Rajya Sabha is sufficient temporarily,

but Lok Sabha must approve it within 30 days of its reconstitution.​

●​ Once approved, the Emergency remains in force for six months.​

●​ It can be extended for further periods of six months each, if both Houses
approve its continuation.​

●​ After the 44th Constitutional Amendment Act, Emergency cannot continue

indefinitely without Parliamentary approval.

Breakdown of Constitutional Machinery (Article 356 & 357)

When the President is satisfied, based on the Governor’s report or otherwise, that a
State government cannot be run according to the Constitution, he may impose
President’s Rule under Article 356. Under this, the President can take over the
executive powers of the State and transfer the legislative powers of the State
Legislature to Parliament. Parliament can then make laws on State List subjects
for that particular State. Usually, the State Legislative Assembly is suspended or
dissolved, though dissolution is not compulsory.

The President cannot take over the powers of the High Court or suspend
constitutional provisions related to High Courts. The power under Article 356 is not
absolute and must be exercised on relevant material, mainly the Governor’s report.
As held in S.R. Bommai v. Union of India, the Assembly may be suspended first,
but dissolution should take place only after Parliament approves the
proclamation.

The proclamation must be approved by both Houses of Parliament within two

months. Once approved, it remains in force for six months and can be extended
every six months, but not beyond three years in total.

Under Article 357, any law made by Parliament or the President during President’s
Rule on State subjects continues to operate even after President’s Rule ends,
until the State Legislature amends or repeals it.

The President’s action under Article 356 is subject to judicial review. Courts can
strike down the proclamation if it is mala fide or based on irrelevant grounds, and
can restore the dismissed government and revive the Legislative Assembly, as held
in S.R. Bommai’s case.

On Request of Two or More States (Article 252)

Under Article 252, Parliament can make laws on a State List subject if two or
more States request it. This happens when those States feel that a common law is
needed on a particular State List matter.

The request must be made by passing resolutions in the State Legislatures.

Once such resolutions are passed, Parliament gets the power to legislate on that
subject for those States.

The law made by Parliament can later be adopted by other States by passing
similar resolutions in their Legislatures.

Once Parliament makes a law under Article 252, the State Legislatures lose the
power to make laws on that subject. Only Parliament can amend, modify, or
repeal the law. If any State makes a law on the same subject, it will be invalid if it
conflicts with the Parliamentary law.

Legislation for Enforcing International Agreements (Article 253)

Under Article 253, Parliament has the power to make laws on any subject,
including those in the State List, to implement international obligations. This is
because foreign affairs, treaties, and international agreements fall within the
exclusive domain of the Union.

Parliament has the authority to make laws to implement:

 ●​ Treaties, agreements, or conventions entered into with foreign nations, and​

●​ Resolutions or decisions taken by international conferences, associations,

or other international bodies.​

This power exists even if the subject normally belongs to the State List, ensuring that
India can properly fulfill its international commitments.

Significance of Exceptions to State Powers

These exceptions show that States are not completely immune from Central
legislative interference. In certain special situations, Parliament can legislate even on
State List subjects.

However, this does not mean that the distribution of legislative powers is
meaningless. The division of powers between the Union and States is real and
effective. These exceptions are limited, operate only under specific conditions,
and exist to deal with practical necessities.

Interpretation of the Legislative Lists

Interpretation of the Legislative Lists is basically about how courts decide

which subject belongs to which list (Union, State, or Concurrent) when there is
confusion or overlap.

Plenary Powers
Harmonious constructions
Pith and substance
Colour legislation

Harmonious Construction

Entries in different lists should be interpreted in a way that avoids conflict.

The Constitution does not intend one entry to destroy or make another entry
meaningless. Therefore, courts try to harmonise overlapping entries so that
each entry has effect, even if the scope of one has to be slightly restricted.

Doctrine of Pith and Substance

If a law appears to deal with a subject outside the legislature’s power, Courts
examine its real nature and true purpose. If the pith and substance of the
law falls within the legislature’s competence, the law is valid—even if it
incidentally affects another list.

Doctrine of Colourable Legislation

This doctrine prevents legislatures from doing indirectly what they cannot
do directly. A law may appear constitutional in form, but if its real effect goes
beyond legislative competence, it is [Link] motive of the legislature
does not matter. What matters is whether the law is within power in
substance, not whether it looks valid on paper.

Plenary Powers of the Legislature

When the Constitution grants legislative power over a subject without

imposing any restrictions, that power is to be interpreted in the broadest
possible manner. The courts give a liberal and wide meaning to the words
used in legislative entries, provided that such interpretation does not render
any other entry meaningless or ineffective.

Topic 2 .Freedom of Trade, Commerce and Intercourse

(Part XIII)

Part XIII 13 of the Constitution (Articles 301–307) deals with the freedom of
trade, commerce and intercourse in India. Article 301 is the key provision and
guarantees that trade, commerce and intercourse throughout India shall be
free, but not absolute with limitation . It imposes a general limitation on the
legislative powers of the Union and the States and aims to maintain the
economic unity of the country by preventing internal trade barriers.

The scope of trade, commerce and intercourse under Article 301 is very wide.
It includes not only buying and selling of goods but also transport,
communication, broadcasting and even non-commercial movement. The word
“intercourse” covers activities beyond trade and commerce. However, treating
every law affecting these activities as a restriction would make almost all laws
unconstitutional.

To prevent this, the Supreme Court in Atiabari Tea Co. v. State of Assam held
that Article 301 applies only to laws that directly and immediately restrict the
free flow of trade and commerce. Laws that affect trade only incidentally or
indirectly do not fall within Article 301.

The freedom under Article 301 is not absolute. Regulatory measures such as
traffic rules and licensing are valid as they facilitate trade rather than restrict it.
In Automobile Transport Ltd. v. State of Rajasthan, the Court held that
regulatory laws and compensatory taxes are also outside the scope of Article
301, though the idea of compensatory taxes was later questioned in Khyerbari
Tea Co. v. State of Assam.

Article 301 applies to both inter-State and intra-State trade but does not cover
foreign trade. It protects only lawful trade activities. Gambling and prize
competitions are not regarded as trade or commerce and therefore are not
protected under Article 301, as held in State of Bombay v. RMDC.

Article 301 guarantees freedom of trade, commerce and intercourse

throughout the territory of India. However, this freedom is not absolute and is
subject to exceptions provided under Articles 302 to 305.

Under Article 302, Parliament has the power to impose restrictions on the
freedom of trade, commerce and intercourse, provided such restrictions are
required in the public interest. Article 303 restricts Parliament from giving
preference to one State over another or discriminating between States while
making laws related to trade and commerce . An exception is made where
such preference or discrimination is necessary to deal with scarcity of goods
in any part of India, as expressly stated in the law.

Article 304 empowers the State Legislature to impose taxes on goods

imported from other States or Union Territories, provided similar goods
manufactured or produced within the State are also subjected to the same tax,
ensuring non-discrimination. States may also impose reasonable
restrictions on trade, commerce or intercourse within the State in the public
interest. However, any law under this Article requires the previous sanction
of the President. even subsequent Presidential assent is sufficient.

Article 305 saves laws that were already in force at the commencement of the
Constitution from being affected by Article 301, unless the President directs
otherwise. It also protects laws creating State monopoly in any trade or
business, even if such laws restrict freedom of trade and commerce.

Finally, Article 307 authorises Parliament to appoint an authority to carry out

the purposes of Articles 301 to 304 and to confer on it such powers and duties
as it considers necessary.

CONSTITUTIONAL PROVISIONS RELATING TO STATE MONOPOLY

The creation of monopoly rights affects the freedom of trade and business, but
it can be constitutionally justified in certain cases. After the Constitution
(Amendment) Act, 1951, the State can create a monopoly in its own favour
without having to justify the reasonableness of such action before the courts.

Article 19(6)(ii) clarifies that the right to practise any profession or to carry on
any trade or business does not restrict the State from undertaking, either
directly or through a State-owned or State-controlled corporation, any trade,
business, industry or service, even if such activity completely or partially
excludes citizens. However, the protection under Article 19(6)(ii) applies only
to those provisions of the law that are essential and fundamental to the
establishment of the State monopoly. Provisions that are merely incidental or
ancillary to the monopoly do not enjoy such protection.

Example 1 – Banking
If the State nationalises banks and takes over banking business, private banks
cannot claim that their freedom of trade under Article 19(1)(g) is violated. This
is protected under Article 19(6)(ii).

[Link] JUDICIARY
The courts in the Indian legal system, broadly speaking, consist of three levels:
(i) the Supreme Court,
(ii) the High Courts, and
(iii) the subordinate courts.

Supreme Court of India

Highest court in India for ordinary law and Constitutional matters​

Created by the Constitution​
Before Independence:​

○​ Privy Council → highest appellate court for ordinary law​

○​ Federal Court → handled constitutional matters (under Govt. of India

Act, 1935)​

○​ Appeals from Federal Court → Privy Council​

Jurisdiction inherited from both Privy Council & Federal Court​

Powers now much wider under Constitution
The Supreme Court hears appeals in civil, criminal and other cases from High Courts
and certain tribunals. It also has writ jurisdiction to enforce Fundamental Rights.
Further, it can give advisory opinions to the President on questions of law or fact
referred to it.

High court

The High Courts in India were not created for the first time by the Constitution. Some
High Courts existed before 1950, while others were created after the Constitution
came into force. The first High Courts in British India were established under the
Indian High Courts Act, 1861 passed by the U.K. Parliament. The remaining High
Courts were either continued or established under the Constitution or special Acts.

High Courts have appellate, civil, and criminal jurisdiction over the lower courts
of their respective states. They also have writ jurisdiction to enforce Fundamental
Rights and for certain other purposes. Some High Courts, notably Bombay,
Calcutta, and Delhi, have original civil jurisdiction, which means they can try
regular civil suits in their cities.

High Courts can also hear references from tribunals, such as those made by the
Income Tax Appellate Tribunal under the Income Tax Act. Before the Constitution
came into force, the writ jurisdiction was only vested in the High Courts of Bombay,
Calcutta, and Madras, but now all High Courts in India enjoy this power.

Subordinate courts

Subordinate courts in India include various civil and criminal courts with original
and appellate jurisdiction functioning under ordinary law. Their names and powers
have changed over time, but the basic structure remains the same. These courts are
not created by the Constitution but by laws made by the competent legislature.
Civil courts are mostly established under the Civil Courts Act of each state, while
criminal courts are created mainly under the Code of Criminal Procedure.

Civil court
In each district, there is a District Court headed by the District Judge, with
several Additional District Judges to assist. Below the District Court are
Courts of Judges (also called Subordinate Judges) and, in some states,
Munsiffs. All these courts are established under State laws.

Criminal Courts in India

Criminal courts mainly consist of Magistrates and Courts of Session.

Magistrates are divided into Judicial and Executive Magistrates. Executive
Magistrates do not try criminal cases; they handle miscellaneous matters
important for public order, issuing orders rather than convictions. In some
states, they can try certain offences.
Judicial Magistrates are of two classes: First Class and Second Class, with
powers varying according to their grade. They are under the control of the
Court of Session, which is itself a court of original jurisdiction. The Court of
Session can try all offences and award any sentence under law, but a death
sentence must be confirmed by the High Court.

In big cities, including the Presidency towns, Ahmedabad, Delhi, and

Hyderabad, Magistrates are called Metropolitan Magistrates, and the
Sessions Court is called the City Sessions Court, with powers similar to
district Courts of Session.

Special Tribunals

Besides regular courts, there are special tribunals for direct taxes, labour,
excise and customs, motor accident claims, copyright, monopolies, and
restrictive trade practices. For corruption cases, Special Judges are
appointed under the Criminal Law Amendment Act, 1952.

WRIT JURISDICTION OF HIGH COURTS AND SUPREME COURT

Prerogative Writs and Writ Jurisdiction

According to A.V. Dicey, prerogative writs are the “bulwark of English liberty”. These
writs originated in English common law and were issued as special remedies
when ordinary legal remedies were not available or were not sufficient. Later, this
power was exercised by the High Courts to ensure justice in exceptional cases.

Under Article 226 of the Constitution, every High Court has the power to issue
writs such as Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and
Certiorari. These writs can be issued not only for the enforcement of Fundamental
Rights but also for any other legal purpose. This power can be exercised within
the territorial jurisdiction of the High Court. However, if an effective alternative
remedy is available under ordinary law, the High Court usually does not entertain a
petition under Article 226.

Under Article 32, a person can directly approach the Supreme Court for the
enforcement of Fundamental Rights. Article 32 itself is a Fundamental Right,
which makes the Supreme Court the protector of Fundamental Rights. The
Supreme Court can issue writs across the entire territory of India, but only in cases
involving Fundamental Rights.

Thus, the High Courts have wider writ powers than the Supreme Court because
they can enforce both Fundamental Rights and other legal rights involving public
duty. The writ jurisdiction of the High Courts and the Supreme Court is concurrent,
and it is not compulsory to approach the High Court before moving the Supreme
Court.

Types of Writs
The Constitution of India provides for five types of writs to protect the rights of
individuals and to ensure proper functioning of authorities.

1. Habeas Corpus

The writ of Habeas Corpus is a safeguard of personal liberty. It is issued when a

person is illegally or wrongfully detained. The words Habeas Corpus mean “to
produce the body”. Through this writ, the court orders the authority detaining the
person to produce him before the court and explain the reason for detention. If
there is no legal justification, the person is released. This writ can be filed by the
detained person or anyone on his behalf, under Articles 32 and 226.
Disobedience of this writ amounts to contempt of court.

Example: If a person is wrongfully detained by the police, his family can file a writ of
Habeas Corpus.

2. Mandamus

The writ of Mandamus means “we command”. It is issued by the court to compel a
public authority to perform a legal or public duty which it has failed to perform.
This writ is used to enforce public duties and ensure lawful action by authorities.
Mandamus is issued only when the applicant has a legal right and the authority has
a duty to act. It cannot be issued against the President or Governor and generally
not against private individuals. It is a discretionary remedy.

Example: Directing a government authority to perform its statutory duty.

3. Prohibition

The writ of Prohibition is issued by a higher court to an inferior court or tribunal to

stop proceedings when it is acting without or beyond its jurisdiction. It is issued
before the final decision is made. While mandamus orders an authority to act,
prohibition orders it not to act. This writ is available only against judicial or
quasi-judicial authorities.

Example: Staying court proceedings where the court has no jurisdiction.

4. Certiorari

The writ of Certiorari is issued to quash an order or decision of an inferior court or

tribunal that has acted without jurisdiction, in excess of jurisdiction, or in
violation of natural justice. Unlike prohibition, certiorari is issued after the
decision has been made. It removes the case to a higher court for review and
cancellation of the illegal order.
Example: Quashing an order passed by an authority without legal power.

5. Quo Warranto

The writ of Quo Warranto means “by what authority”. It is issued to question the
legality of a person’s claim to a public office. The person holding the office must
show under what authority he holds it. If the appointment is illegal, the court can
remove the person from office. This writ protects the public from illegal
appointments to public offices.

Example: Challenging an illegal appointment to a government post.

Delegated Legislation
Due to the growth of the welfare state and the increasing complexity of
administration, legislatures find it difficult to make detailed laws on every subject.
Limited time, lengthy legislative procedures, and the need for flexibility have made
delegated legislation necessary. Therefore, legislatures delegate certain
law-making powers to the executive or other authorities.

The main reasons for delegated legislation are:

1.​ Lack of time of the legislature​

2.​ Inability to handle technical details​

3.​ Need to deal with emergencies​

Delegated legislation ensures flexibility and practical governance.

Classification of Delegated Legislation

Legislation is broadly classified into Supreme Legislation and Subordinate

Legislation based on the authority that makes it.

1. Supreme Legislation

Explanation:​
Supreme legislation is made by the sovereign or supreme law-making authority
of the State, such as Parliament or a State Legislature. It represents the highest
form of law and cannot be questioned, repealed, or controlled by any other
legislative authority, except through constitutional procedures.

Example:
 ●​ The Indian Penal Code, 1860​

●​ The Constitution of India​

●​ An Act passed by Parliament, such as the Environment Protection Act,

1986​

2. Subordinate Legislation

Explanation:​
Subordinate legislation is made by authorities other than the legislature, such as
the Executive, local bodies, courts, or autonomous institutions. These
authorities make laws only because power has been delegated to them by the
legislature. Such legislation derives its validity from the parent Act and can be
amended or cancelled if it exceeds the delegated authority.

Example:

●​ Rules framed by the Central Government under the Environment

Protection Act​

●​ Municipal bye-laws made by a Municipal Corporation​

●​ University regulations framed under a University Act​

Types of Subordinate Legislation

1.​ Executive Legislation – Rules and orders made by the executive under the
authority of an Act.​

2.​ Judicial Legislation – Rules framed by High Courts to regulate court

procedures.​

3.​ Municipal Legislation – Bye-laws made by local bodies for local

administration.​

4.​ Autonomous Legislation – Regulations made by autonomous bodies like

universities.​

5.​ Colonial Legislation – Laws made by colonies under the control of another
country.

Principles Applicable to Delegated Legislation

A delegated authority must act within the powers granted to it. It cannot exceed
those powers, except where necessary under the doctrine of implied powers,
which means powers essential for effective exercise are assumed to be granted.

Subordinate legislation must be published to come into effect.

In conditional legislation, the legislature enacts the law but allows an external
authority to decide when and how it will come into force, while in delegated
legislation, the authority only works out the details within the limits set by the Act

Example of Conditional Legislation

Parliament passes a law saying:

“This Act shall come into force in any State on such date as the Central
Government may notify.”

●​ The law is already complete​

●​ The Central Government only decides:​

○​ when it will start​

○​ where it will apply​

👉 The government does not make rules, it only brings the law into operation.
Example:​
A law banning a harmful substance, but it becomes effective only when the
government declares an emergency or notifies a date.

Example of Delegated Legislation

Parliament passes a law and states:

“The Central Government may make rules to carry out the provisions of
this Act.”

●​ The legislature lays down:​

○​ policy​

○​ objectives​

●​ The executive:​

○​ makes rules, regulations, procedures​

Example:​
Under the Environment Protection Act, the government makes rules about:

●​ emission limits​

●​ waste disposal methods

Limits on Delegation in India

Delegation must be within constitutional limits and is subject to judicial review

Recent Constitutional Amendments

●​ 102nd Amendment (2018): Constitutional status to National Commission for

Backward Classes.​

●​ 103rd Amendment (2019): 10% reservation for Economically Weaker

Sections.​

●​ 104th Amendment (2019): Extended SC/ST reservation in legislatures to 80

years.

Separation of Powers

The doctrine of separation of powers divides government functions into three parts:
Legislative, Executive, and Judicial.

The basic idea is that each organ should perform its own role and not interfere with
the functions of the others. This helps prevent misuse of power and protects
individual liberty.

Separation of Powers

The doctrine of separation of powers divides government functions into three parts:
Legislative, Executive, and Judicial. These functions are carried out by three
separate organs—the Legislature, the Executive, and the Judiciary. The basic
idea is that each organ should perform its own role and not interfere with the
functions of the others. This helps prevent misuse of power and protects individual
liberty.

Article 50 of the Indian Constitution directs the State to separate the judiciary from
the executive in public services, ensuring judicial independence.

Montesquieu explained that if law-making, law-execution, and law-interpretation are

all controlled by the same person or body, it would lead to arbitrary rule and
tyranny. Separation of powers prevents concentration of power and safeguards
freedom.
In India, strict separation is not followed. The executive is part of the
legislature—for example, the President and Council of Ministers are part of the
executive but are connected to Parliament. However, the Constitution clearly
demarcates the functions of all three organs.

The Supreme Court has held that no organ can take over the functions of another
(Ram Jawaya case, Kesavananda Bharati case). At the same time, each organ
must respect the role of the others. Thus, the Indian Constitution follows a system of
separation of functions with checks and balances, not absolute separation

Ordinary Bill​
An Ordinary Bill is any Bill which is not a Money Bill or a Constitution Amendment
Bill. It can be introduced in either the Lok Sabha or the Rajya Sabha. President’s
recommendation is not required. Rajya Sabha has full power to amend, reject or
delay it. Joint sitting is allowed.

Money Bill (Article 110)​

A Money Bill deals only with taxation, borrowing, Consolidated Fund and
expenditure. It can be introduced only in the Lok Sabha and only with the President’s
recommendation. Rajya Sabha can only make recommendations and cannot amend
or reject it. Joint sitting is not allowed.

Financial Bill – Category A​

A Financial Bill (A) contains Money Bill matters plus other matters. It can be
introduced only in the Lok Sabha with the President’s recommendation. After
introduction, Rajya Sabha has full powers like an Ordinary Bill. Joint sitting is
allowed.

Financial Bill – Category B​

A Financial Bill (B) involves expenditure from the Consolidated Fund. It can be
introduced in either House. President’s recommendation is required before
consideration. Rajya Sabha has full powers. Joint sitting is allowed.

Constitution Amendment Bill (Article 368)​

This Bill amends the Constitution. It can be introduced in either House. It requires a
special majority and in some cases ratification by half of the States. Joint sitting is
not allowed.

Ordinance Replacing Bill​

This Bill replaces an Ordinance issued by the President under Article 123. It must be
passed within six weeks of reassembly of Parliament. It can be introduced in either
House and joint sitting is allowed.

Broad Classification of Bills (Based on who introduces them)

Government Bills​
These are Bills introduced by a Minister.​
Most important laws are Government Bills.
Private Member’s Bills​
These are introduced by any Member of Parliament who is not a Minister.

2. Classification Based on Content (What the Bill is about)

Original Bills​
Introduce a new law, policy or idea.

Amending Bills​
Modify or change an existing Act.

Consolidating Bills​
Combine many laws on one subject into one single Act.

Expiring Laws (Continuance) Bills​

Continue laws which would otherwise expire.

Repealing and Amending Bills​

Remove outdated or unnecessary laws from the statute book.

Validating Bills​
Give legal validity to actions which were earlier invalid.

Bills to Replace Ordinances​

Replace an Ordinance issued by the President.

Money and Financial Bills​

Deal with taxation, expenditure, borrowing, Consolidated Fund etc.

Constitution Amendment Bills​

Amend the Constitution under Article 368.

Constitution Amendment Bills – Types

Simple Majority Bills​

Passed like an ordinary law.

Special Majority Bills (Article 368)​

Majority of total membership + 2/3rd of members present and voting.

Special Majority + State Ratification Bills​

Also require approval of half of the State Legislatures.

Joint Sitting (Article 108)

If a Bill is rejected, delayed or disagreed by the other House,​

the President may call a joint sitting.
Joint sitting is NOT allowed for:​
• Money Bills​
• Constitution Amendment Bills

Constitution of India is basically federal but with certain unitary features.?

The Constitution of India is basically federal in structure but with certain unitary
features. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held
that federalism forms part of the Basic Structure of the Constitution. Therefore,
Parliament cannot destroy the federal character of the Constitution by amendment.

A federal system is characterised by dual government, distribution of powers,

supremacy of the Constitution, independence of judiciary, a written Constitution and
a rigid procedure for amendment. India possesses all these features. There are two
levels of government – the Union and the States – and legislative powers are divided
through the Union, State and Concurrent Lists under the Seventh Schedule.

The Constitution is supreme and the judiciary is independent. The Supreme Court
settles disputes between the Union and the States. Amendments can be made only
by following the special procedure under Article 368.

Thus, India is federal in structure but with a strong Centre, and is best described as a
federal State with a unitary bias.

In different cases, the Court has observed that India is not a purely federal State like
the USA, nor a purely unitary State like the UK. These observations depend on the
context of each case and the philosophy of the judges.

Peculiar Features of Indian Federalism

The Indian Constitution differs from other federal systems in several important ways.

1. Mode of Formation​
Unlike the USA, where independent States came together to form a federation, India
became federal by transforming a unitary system into a federation. The Government
of India Act, 1935 first introduced federalism by creating autonomous provinces
under a strong Centre, similar to the Canadian model.

2. Position of the States​

Indian States were never sovereign before the Constitution. Therefore, the Centre
has stronger powers, such as residuary powers, which are vested in the Union.
3. Single Citizenship​
Unlike the USA which has dual citizenship, India has only single citizenship, one
judiciary and one system of public services, showing its unitary tilt.

4. Residuary Powers​
All residuary powers are with the Union, not the States.

Fundamental rights
The idea of Fundamental Rights comes from the belief that human beings are born
with certain natural and inalienable rights. Thinkers like Locke, Rousseau,
Montesquieu and Blackstone argued that rights such as life and liberty belong to a
person by birth and the State must respect them. The American Declaration of
Independence, 1776, declared that all men are created equal and are entitled to life,
liberty and the pursuit of happiness. This thinking led many countries to write these
rights into their constitutions.

In England, the main concern was to protect people from misuse of executive power,
so Parliament was made supreme. In the United States, there was fear of both the
executive and the legislature, so the Constitution was made supreme and
Fundamental Rights were placed above Parliament to prevent tyranny.

In India, the Simon Commission rejected the idea of Fundamental Rights, but the
Nehru Committee supported it. The Constituent Assembly finally included
Fundamental Rights in Part III of the Constitution so that individual liberty would be
protected and democracy would be strengthened.
What makes a body State?

A body will be State if:

●​ Created by statute or Constitution​

●​ Financially dependent on government​

●​ Deep & pervasive government control​

●​ Acts as an instrumentality or agency of government

Judiciary & Article 12 (Tricky but important)

Judiciary is:

❌✔️NOT State when performing judicial functions​

State when performing non-judicial / administrative functions

Ajay Hasia Test (MOST IMPORTANT PART)

📌 Ajay Hasia v. Khalid Mujib (1981)
The Supreme Court laid down tests to decide whether a body is “State” under
Article 12.

Justiciability of Fundamental Rights – Article 13

Article 13 ensures the supremacy and enforceability of Fundamental Rights by

declaring laws inconsistent with Part III of the Constitution as void to the extent of
such inconsistency.

Article 13(1) applies to pre-constitutional (existing) laws and provides that such
laws are void to the extent they are inconsistent with Fundamental Rights, subject to
a declaration by the court.

Article 13(2) deals with post-constitutional (future) laws and prohibits the State
from making any law that takes away or abridges Fundamental Rights. Any such law
is void to the extent of contravention, as affirmed in State of Punjab v. Dalbir Singh
(2012).

The term “law” under Article 13 includes ordinances, orders, bye-laws, rules,
regulations, notifications, customs, and usages having the force of law. The scope of
this definition led to judicial debate regarding constitutional amendments.

Doctrine of Severability
Under Article 13, only the part of a law inconsistent with Fundamental Rights is
invalid; the remainder can continue to operate. Courts have clarified that the invalid
portion shall be severed only if it is truly separable—i.e., the valid part, after
severance, can still give effect to the legislature’s intent. If the invalid part cannot be
separated without defeating the purpose of the law, the entire law may be struck
down.

This is known as the doctrine of severability, which ensures that only

unconstitutional provisions are void while preserving the valid parts of an Act
wherever possible. In A.K. Gopalan v. State of Madras

Doctrine of Eclipse

Under Article 13, an existing law that is inconsistent with a Fundamental Right does
not automatically become dead; it becomes inoperative or dormant to the extent of
the inconsistency. Such a law is said to be eclipsed. If the Fundamental Right
causing the inconsistency is later amended or removed, the eclipsed law can regain
its full force and become operative again.

This principle was first applied in Bhikaji Narain Dhakras v. State of M.P. (AIR 1955
SC 781). The case dealt with the C.P. and Berar Motor Vehicles Amendment Act,
1947, which initially allowed the State to regulate motor transport. While valid when
enacted, the law became inconsistent with Article 19(1)(g) after the Constitution
came into force, restricting trade and business. The Constitution (First
Amendment) Act, 1951 later removed this inconsistency, allowing the law to
operate fully again. The Court held that the law had only been temporarily eclipsed,
not obliterated.

There has been some debate over whether the doctrine of eclipse applies only to
pre-Constitution laws or also to post-Constitution laws, but there is no clear
judicial consensus on this issue.