Legislative relations between Union and State

 Legislative Relations:

Parliament and State legislatures are the established bodies under the Constitution to make laws for the territories throughout India. Certain questions arise:

1.       For which matters is legislation required,

2.       Where such shall such matters shall be recorded,

3.       Who shall legislate for which matter,

4.       Who shall legislate for matters not so recorded,

5.       Which legislation shall prevail in case of conflict,

6.       What are the provisions to deal in case unforeseen circumstances arise which require delegating power of legislation to other body?

The legislative relations between the two legislating bodies are provided for in Articles 245 to 255. The answers to above questions and other related matters are provided for and dealt with in these Articles.

245 deals with the extent of laws to be made by Parliament or State legislature.

245(1): says that Parliament has power to make laws for whole or any part of territory of India and legislature of a state has power to make laws for whole or any part of that state.

245(2): says that no law made by parliament to be deemed invalid on the ground that it would have extra-territorial operation.

246 deals with the three lists in Schedule 7 which contain the subject matter of legislation.

246(1): says that Parliament has power to make laws for the matters enumerated in List I of 7th schedule, called the Union List.

246(2): says that Parliament and subject to sub clause 1, legislature of a state have powers to legislate in any matter enumerated in List III of 7th Schedule, called the Concurrent List.

246(3): says that subject to provisions of sub clauses 1 and 2, the legislature of a state has power to make laws for that state in any matter enumerated in List II of the 7th schedule, called the State List.

246(4): Parliament has power to make laws for any matter for any such part of territory of India, which is not included in a State.

247: Parliament has power to establish additional courts for better administration of laws made by Parliament or of any existing laws with respect to matter enumerated in Union List.

248: Residuary power of legislation given to Parliament.

248(1): Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

248(2): Such power also includes power of making any law imposing a tax not mentioned in either of those lists.

249: gives power to Parliament to legislate with respect to a matter in the State List in national interest

249(1): Council of State declares by 2/3rd resolution of the members present and voting that it is necessary or expedient in national interest that Parliament should make laws for a matter in State List, then parliament can make law for that matter for whole or any part of territory of India, till such resolution remains in force.

Such resolution will stay in force for one year and may be extended by another one year. Such law made by Parliament by powers under (1) shall cease to be in force after 6 months the resolution has ceased to exist.

250: It gives power to Parliament to make laws with respect to matters in State list when proclamation of Emergency is in force. Such law made shall cease to be in force after 6 months the Proclamation has ceased to exist.

251: There may arise a situation where a law on a matter made by Parliament under either Article 249 or Article 250 clashes with a law that State Legislature has already made or is making. The question arises which law will prevail?

251 deals with such inconsistency. It is to be noted that law made under Article 249 is operative after 6 months till resolution of Council of States as given under 249(1) lasts and law made under Article lasts after 6 months till Proclamation of emergency is operative. Article 249 says that the law made by Parliament (whether made before or after State law) shall prevail, but as long as they are permitted to be operate under Articles 249 and 250.

252: It gives power to Parliament to legislate for two or more states by consent, an adoption such legislation by other state subsequently.

First, legislatures of two or more states have to recognize that it is required that Parliament legislates for any matter (a matter for which Parliament would have power to legislate only under Articles 249 and 250), then a resolution to that effect has to be passed by all the Houses of those states, after that Parliament can pass a law on that matter. Such law will be applicable on those states and to any other states whose legislatures pass a resolution to adopt it.

For its amendment or repeal, Parliament has to act only as per provision above.

253: This Article gives power to Parliament for making any law for the whole or any part of territory of India for implementing any treaty, agreement or convention with any other country or countries or any decisions made at any international conference, association or other body.

254: There may arise a situation where law made by legislature of a state is repugnant to any provision of law made by Parliament which the Parliament is competent to enact under any List I or under List III or under Article 248, then as per:

254(1): Subject to provisions of sub clause (2) the law made by Parliament shall prevail and the law of State legislature shall, to the extent of such repugnancy be void.

254(2): It comes to play when inconsistency arises between a law made by Parliament and State Legislature on a matter in Concurrent List. In such case the law of State Legislature shall prevail, provided that such law has previously received the assent of the President.

Article 255 says that in case some previous procedural sanction or recommendation as required under Constitution was not taken, then such Act of State or Parliament shall not be invalidated in following cases, where assent to that Act was required and given by:

 Governor, required either by Governor or President,

 Rajpramukh, required either by Governor or President,

 President, required by President.

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