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Who is more powerful Center or State
Article 245 – 255(division of power between the Centre and State)
The Federal structure of the Government is one of the essential and important features of the Indian Constitution. In the Indian Constitution, this division of power between the Centre and State is provided under Part XI and Part XII.
This division of power is given Artice
Important examples of this form of government are while in Federal form of government, the powers are divided between both centre and state. Classic examples of this form are See, in India only during period of emergency we follow the unitary form of government Meaning, at the time of Emergency, more power rests with the Center and states are left with very less power otherwise, during normal times India has a federal form of government as I have told you already the main feature/ characteristic of federal form of government it division of power between Center & the States
The power between Center and States is divided under 3 heads
Territorial jurisdiction means who can make law applicable over a over certain and specific territory while subject matter jurisdiction refers to subject matter of laws be it agriculture, electricity, water projects etc. who can makes laws related to such specific subject matters
Territorial jurisdiction we will understand it from here that how is territorial jurisdiction is decided for that, the most important article is article 245, there are two clauses to this article for purpose of understanding,
3rd part talks about extra territorial operation, it means that the power that parliament possesses to make laws it does not mean that parliament can make laws only for people residing in India or their property
No, Parliament also possesses extra territorial jurisdiction meaning those persons or those properties situated outside India Parliament can govern them as well This extra territorial power is only possessed by the parliament, and not by the state but in case where Parliament makes extra territorial laws for persons residing outside India and their property How will it be determined if the law is right or wrong?
So for that, we have territorial nexus test famous case for this test is you might have came across this in Company law as well what happened in this case was that there was a company registered in England Now this company was a partner of an Indian firm Indian Tax authority wanted to tax the entire income of this company it was said that since the major income of this company comes from India Indian tax authority has the power to tax that income so the territorial nexus test says that if the parliament wishes to make an etra territorial law and the subject matter which such a law is to govern there must be a reasonable connection between both so what have we learn untill now
That through article 245 that parliament has the power to make law for whole of India or some of its part similarly, state has the power to make law for whole of the state or some part of it but parliament also has power to make extra territorial laws state does not have this power from here, we question arises, which is asked in many exams that under Article 245, the law making power that parliament possess is that absolute? Answer to this would be NO.
Parliament does not enjoys absolute power under article 245 and these are 3 exceptions to it 1st exception is Article 240 which says that the 4 union territories for these 4 union territories, President has power that for their Peace, Progress & Good Governance and he can make regulations The extent of power of president to make regulations is so much that for these 4 territories he can amend, modify or repeal the laws of Parliament
2nd exception is 5th schedule, where scheduled areas are covered. this exception says that the governors of these respective state have powers that that at any point of time they can declare that in these tribal areas laws of parliament shall not apply
3rd exception is that of 6th schedule see these states the tribal areas of these states 6th schedule says that the governors of these states can at any point of time say that the specific laws of parliament will not be applied in these areas, or they should be modified or amended so these 3 are exceptions to parliament's law making powers
After territorial legislation, 2nd aspect is subject matter legislation referring to who has power with regards to which subject matter to make laws
lets understand that the power that centre and state have been categorized by 7th schedule in 3 lists first in Union List, also known as List I 2nd, State list, known as List II and concurrent list, known as List III Union list include all those things which are of national importance like defence, atomic energy etc.
so there are a total hundred of items here parliament has exclusive right to make laws related to these items similarly, those items are covered in state lists, which are of local importance/ regional importance e.g. agriculture, police, prisons, all these things. so there are total 61 such items here state has exclusive power to make laws related to these items and 3rd is List III known as the Concurrent List it contains such 52 items, in relation to which state and the Union both can make laws at this point,
Let's discuss two articles 1st we have article 246, which says that whatever articles are there in List I and parliament can make laws on any of them Before understanding about the
2nd article, if a new item/ subject matter comes up, who will make laws on that? this question has been answered in article 248 it is also known as residuary power article 248 says that if a new subject matter/item comes up, which has not been covered in any of these 3 lists and it is required to make a law on that so that residuary power (to make law on such matter) lies with the Union so this was article 246 and 248 so normally, a law is made upon the subject matter but in case of conflict, keep this in mind so if there is a conflict in Union list or State list then Union list will prevail if there is a conflict between concurrent list & state list, the concurrent list will prevail so keep that in mind normally, only this subject matter arrangement is followed but his arrangement may be changed in some extra ordinary circumstance. so what such extraordinary circumstances are possible?
There are four circumstances, first at the time of National Emergency/President's rule, Parliament gets the power to make law on any subject matter from state list
2nd is when Rajya Sabha feels that there is a subject matter in state list which is of a national importance and parliament should make a law on that then Rajya Sabha can pass a resolution and then parliament can make a law on that
3rd is, on the request of the State if two or more state legislatures request the parliament that on a particular subject matter, parliament should enact the law then parliament can do that
Article 245 – 255(division of power between the Centre and State)
The Federal structure of the Government is one of the essential and important features of the Indian Constitution. In the Indian Constitution, this division of power between the Centre and State is provided under Part XI and Part XII.
This division of power is given Artice
- Legislative Relation between Union and State Article 245-255
- Administrative Relation between the union and State Article 256-263
- Financial Relations between Union and State - 264-293
Important examples of this form of government are while in Federal form of government, the powers are divided between both centre and state. Classic examples of this form are See, in India only during period of emergency we follow the unitary form of government Meaning, at the time of Emergency, more power rests with the Center and states are left with very less power otherwise, during normal times India has a federal form of government as I have told you already the main feature/ characteristic of federal form of government it division of power between Center & the States
The power between Center and States is divided under 3 heads
- Legislative relations,
- Administrative relations &
- Financial relations
Territorial jurisdiction means who can make law applicable over a over certain and specific territory while subject matter jurisdiction refers to subject matter of laws be it agriculture, electricity, water projects etc. who can makes laws related to such specific subject matters
Territorial jurisdiction we will understand it from here that how is territorial jurisdiction is decided for that, the most important article is article 245, there are two clauses to this article for purpose of understanding,
It has divided article 245 in 3 categories foremost,
First, Article 245 says that parliament has the power to make laws for the entire territory of India, or for some part of it 2nd, it says that state legislature has the power to make laws for the entire territory of that state or part of territory of that state so what we have understood until here is that Parliament has power to law for entire of India or for some part of it and legislature has power to make law for an entire state or some part of it.
First, Article 245 says that parliament has the power to make laws for the entire territory of India, or for some part of it 2nd, it says that state legislature has the power to make laws for the entire territory of that state or part of territory of that state so what we have understood until here is that Parliament has power to law for entire of India or for some part of it and legislature has power to make law for an entire state or some part of it.
3rd part talks about extra territorial operation, it means that the power that parliament possesses to make laws it does not mean that parliament can make laws only for people residing in India or their property
No, Parliament also possesses extra territorial jurisdiction meaning those persons or those properties situated outside India Parliament can govern them as well This extra territorial power is only possessed by the parliament, and not by the state but in case where Parliament makes extra territorial laws for persons residing outside India and their property How will it be determined if the law is right or wrong?
So for that, we have territorial nexus test famous case for this test is you might have came across this in Company law as well what happened in this case was that there was a company registered in England Now this company was a partner of an Indian firm Indian Tax authority wanted to tax the entire income of this company it was said that since the major income of this company comes from India Indian tax authority has the power to tax that income so the territorial nexus test says that if the parliament wishes to make an etra territorial law and the subject matter which such a law is to govern there must be a reasonable connection between both so what have we learn untill now
That through article 245 that parliament has the power to make law for whole of India or some of its part similarly, state has the power to make law for whole of the state or some part of it but parliament also has power to make extra territorial laws state does not have this power from here, we question arises, which is asked in many exams that under Article 245, the law making power that parliament possess is that absolute? Answer to this would be NO.
Parliament does not enjoys absolute power under article 245 and these are 3 exceptions to it 1st exception is Article 240 which says that the 4 union territories for these 4 union territories, President has power that for their Peace, Progress & Good Governance and he can make regulations The extent of power of president to make regulations is so much that for these 4 territories he can amend, modify or repeal the laws of Parliament
2nd exception is 5th schedule, where scheduled areas are covered. this exception says that the governors of these respective state have powers that that at any point of time they can declare that in these tribal areas laws of parliament shall not apply
3rd exception is that of 6th schedule see these states the tribal areas of these states 6th schedule says that the governors of these states can at any point of time say that the specific laws of parliament will not be applied in these areas, or they should be modified or amended so these 3 are exceptions to parliament's law making powers
After territorial legislation, 2nd aspect is subject matter legislation referring to who has power with regards to which subject matter to make laws
lets understand that the power that centre and state have been categorized by 7th schedule in 3 lists first in Union List, also known as List I 2nd, State list, known as List II and concurrent list, known as List III Union list include all those things which are of national importance like defence, atomic energy etc.
so there are a total hundred of items here parliament has exclusive right to make laws related to these items similarly, those items are covered in state lists, which are of local importance/ regional importance e.g. agriculture, police, prisons, all these things. so there are total 61 such items here state has exclusive power to make laws related to these items and 3rd is List III known as the Concurrent List it contains such 52 items, in relation to which state and the Union both can make laws at this point,
Let's discuss two articles 1st we have article 246, which says that whatever articles are there in List I and parliament can make laws on any of them Before understanding about the
2nd article, if a new item/ subject matter comes up, who will make laws on that? this question has been answered in article 248 it is also known as residuary power article 248 says that if a new subject matter/item comes up, which has not been covered in any of these 3 lists and it is required to make a law on that so that residuary power (to make law on such matter) lies with the Union so this was article 246 and 248 so normally, a law is made upon the subject matter but in case of conflict, keep this in mind so if there is a conflict in Union list or State list then Union list will prevail if there is a conflict between concurrent list & state list, the concurrent list will prevail so keep that in mind normally, only this subject matter arrangement is followed but his arrangement may be changed in some extra ordinary circumstance. so what such extraordinary circumstances are possible?
There are four circumstances, first at the time of National Emergency/President's rule, Parliament gets the power to make law on any subject matter from state list
2nd is when Rajya Sabha feels that there is a subject matter in state list which is of a national importance and parliament should make a law on that then Rajya Sabha can pass a resolution and then parliament can make a law on that
3rd is, on the request of the State if two or more state legislatures request the parliament that on a particular subject matter, parliament should enact the law then parliament can do that
4th is for the purpose of implementing International agreements for fulfilling them, parliment can make law on any subject matter rof the state list
The federal form of government division of power between the centre and state it is an essential feature of our constitution so the centre and state both of their own subject matters to make laws but as we have said there are many such situations where centre on states' subjects or state on centre's subject want to make a law if such law comes into being, how would we determine if the law is valid or not so to determine this, courts apply a doctrine it is known as doctrine of pith and substance to understand this doctrine,
It is leading case what happened, in this case, was that Money lender, who give away loans to recover them, how many amounts can be taken and how much interest can be taken to regulate that state regulation and Bengal Money lenders Act, 1946 was passed
Why did Bengal pass that legislation? Because money lending is a state subject Money lending is listed in List II- Entry 7 but this Act was challenged by Central Govt. and said that this act also govern promissory notes and promissory note is a central subject under List I - Entry 28 to check if the legislation is valid or not the court applied the doctrine of Pith and Substance and said that whenever you want to find out true nature of any legislation you will see the legislation as a whole meaning its object, its scope & its effect
These 3 things are found out applying the test of this doctrine, the court said the main nature of the Bengal Money Lending Act is to govern the money lending activities and it is incidentally encroaching upon the matter of promissory note, the Act was held to be valid on similar lines we have the case of in this case, law was made regarding sale, import & possession of liquor
The Bombay Prohibition Act, this state legislation incidentally governing import and export as well and import and export was a central subject to determine the validity of the act, court used the doctrine of pith & substance the act was held to be valid
let's discuss Article 254 on this point which talks about repugnancy meaning that if even parliament makes law on the same subject matter, and state makes it too, Article 254 says that for this subject matter, the law made by parliament would be valid and the law made by state would be void so article 254 is the Repugnancy clause.
It is leading case what happened, in this case, was that Money lender, who give away loans to recover them, how many amounts can be taken and how much interest can be taken to regulate that state regulation and Bengal Money lenders Act, 1946 was passed
Why did Bengal pass that legislation? Because money lending is a state subject Money lending is listed in List II- Entry 7 but this Act was challenged by Central Govt. and said that this act also govern promissory notes and promissory note is a central subject under List I - Entry 28 to check if the legislation is valid or not the court applied the doctrine of Pith and Substance and said that whenever you want to find out true nature of any legislation you will see the legislation as a whole meaning its object, its scope & its effect
These 3 things are found out applying the test of this doctrine, the court said the main nature of the Bengal Money Lending Act is to govern the money lending activities and it is incidentally encroaching upon the matter of promissory note, the Act was held to be valid on similar lines we have the case of in this case, law was made regarding sale, import & possession of liquor
The Bombay Prohibition Act, this state legislation incidentally governing import and export as well and import and export was a central subject to determine the validity of the act, court used the doctrine of pith & substance the act was held to be valid
let's discuss Article 254 on this point which talks about repugnancy meaning that if even parliament makes law on the same subject matter, and state makes it too, Article 254 says that for this subject matter, the law made by parliament would be valid and the law made by state would be void so article 254 is the Repugnancy clause.
We have a clarified topic like legislative relations, subject matter division.
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