Question

Explain the three fold distribution of legislative power between the central and state government

Answer 1

The distribution of legislative powers between the Centre and the States is an essential feature of a federal Constitution. The object is formed to involve a division of authority between the Centre and the States. The Constitution of India has made two fold distributions of legislative powers between the Union and States, viz.


(1) With respect to territory;

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(2) With respect to subject-matter.

(1) Territorial jurisdiction:
Article 245 (1) provides that subject to the provision of this Constitution, Parliament may make laws for the whole or any part of India and the Legislature of a State may make laws for the whole or any part of the State. Article 245 (2) provides that a law made by Parliament shall not be deemed to be invalid on the ground that it has extra-territorial operation, Le., takes effect outside the territory of India.

The legislative powers of the Parliament or the State Legislatures is subject to the provisions of the Constitution, viz.:

(1) The Scheme of distribution of legislative powers;

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(2) Fundamental rights;

(3) Other provisions of the Constitution.

Theory of Territorial nexus:
Article 245 (1) provides that subject to the provisions of this Constitution, the State 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.

It means that State laws would be void if it has extra-territorial operation, Le. it takes effect outside the State. However, there is one exception to this general rule. A State law of extra-territorial operation will be valid if there is sufficient nexus to the object and the State.

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In State of Bombay v. R.M.D.C., AIR 1957 S.C. 699, the Bombay State levied a tax on lotteries and prize competitions. The tax was extended to a newspaper printed and published in Bangalore but it had wide circulation in Bombay. The respondent conducted the prize competitions through this paper. The Court held that there existed a sufficient territorial nexus to enable the Bombay State to tax the newspaper.

(2) Distribution of legislative powers:
The crux of a federal Constitution is the division of powers and functions between the Union and the States. Usually, certain powers are allotted to the Centre, certain powers are allotted to the States and some areas may be common for both to operate.

A basic test which is applied to decide upon what subjects should be allotted to the one or the other level of government is that functions of national importance should go to the Centre and those of local interest should go to the States. This test is very general, rather rough; an ad hoc formula does not lead to any uniform pattern of allocation of powers and functions between the two tier governments.

The Indian Constitution seeks to create three functional areas; an exclusive area for the Centre to operate; an exclusive area for the States to operate, and a common or concurrent area in which both the Centre and the States may operate simultaneously, subject to the overall supremacy of the Centre.

Article 246 (1) confers on Parliament an exclusive power of legislature in respect of matters in the “Union List”. Thus, so far as this list is concerned, the States are not entitled to make any law on the matters mentioned in this list.