Question

The residuary powers of legislation underthe constitution resrs with

Answer 1

The framers of the Constitution had placed matters of national concern in the Union List and those of purely State or local significance in the State List.  Matters that are of common interest to the States and the Union were placed in the Concurrent List, in order to ensure uniformity in legislation with due regard to the country’s diversity.

Parliament and the State legislatures have exclusive powers to legislate on items in the Union List and the State List respectively. Both can legislate on items in the Concurrent List. However, foreseeing the possibility of a situation in which legislation might be required on matters that are not mentioned in any of the three Lists, the Founding Fathers made residuary provisions in Article 248 of the Constitution and Entry 97 of the Union List. The residuary powers of legislation are vested in Parliament.

Article 248 (2) of the Constitution of India says that the Parliament has exclusive power to make any law with respect to any matter not enumerated in list II and III. Such power shall include the power of making any law imposing a tax not mentioned in either of those lists.The entry 97 of Union List also lays  down that parliament  has exclusive  power to make laws with respect to any matter not enumerated in list II or III.Thus, Article 248 and Entry 97 of the Union List of Constitution of India assign the residuary powers of legislation exclusively to the union  If no entry in any of the three lists covers a piece of legislation , it must be regarded as a matter not enumerated in any of the three lists, and belonging  exclusively to parliament  under entry 97, list I by virtue  of Art. 248. In other words, the scope and extent of Article 248 is identified with that of entry 97, list I.

But the scope of the residuary powers is restricted. This is because the three lists viz Union, State and Concurrent cover all possible subjects. Then, the court can also decide whether a subject matter falls under the residuary power or not. The rationale behind the residual power is to enable the parliament to legislate on any subject, which has escaped the scrutiny of the house, and the subject which is not recognizable at present. But, the framers of constitution intended that recourse  to residuary powers  should  be the last resort, and not the first step.

Sarkaria Commission

In past, several states have demanded that the residuary powers, including those of taxation, should be vested in the States. In defence of its decision to transfer the residuary powers to the Concurrent List rather than to the States List, the Centre pointed to the strong unitary bias of the country’s federal structure.

The Sarkaria Commission on Centre-State relations, which submitted its report in 1988, had also rejected the suggestion that the residuary powers should be vested in the States, even though it endorsed the Supreme Court’s interpretation that these powers cannot be so expansively interpreted as to whittle down the power of the State legislatures. The Commission, however, backed the suggestion to transfer Entry 97 from the Union List to the Concurrent List.

The Sarkaria Commission recommended that the residuary power of legislation in regard to taxation remain with Parliament because, it said, the Constitution-makers did not include any entry relating to taxation in the Concurrent List so as to avoid Union-State frictions, double taxation and frustrating litigation. The Commission said that the power to tax might be used not only to raise resources but also to regulate economic activity, and warned that there might be situations in which a State, in the garb of introducing a new subject of taxation, may legislate in a manner prejudicial to national interest. But it justified the transfer of other residuary powers to the Concurrent List because, it felt, the exercise of such power by the States would be subject to the rules of Union supremacy that have been built into the scheme of the Constitution, particularly Articles 246 and 254.