(1) With respect to territory;
(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;
(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.
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.
Article 246 (2) confers a concurrent power of legislation on both the Centre and the States with respect to any of the matters enumerated in “Concurrent List”. In this area, therefore, both the levels of government can function simultaneously.
Article 246 (3) confers an exclusive power on the State Legislatures to make laws for their respective States with respect to matters enumerated in “State List”. In this area therefore, the Centre cannot legislate and the matter falls within the exclusive domain of the State.
There are certain matters which could not be allocated exclusively either to the Centre or the States, though States might legislate with respect to them, but it was necessary that the Centre should also have legislative jurisdiction in order to secure uniformity in the main principles of law throughout the country to guide and encourage State effort, and to provide remedies for mischief’s in the State sphere, but extending or liable to extend beyond the boundaries of single State.
Concurrent List has made it possible to eliminate all diversity of laws which are at the basis of civil and corporate life of the country. The great Codes of Civil Procedure and Criminal Procedure, Evidence Act, and Transfer of Property Act, are some of the examples.
Concurrent List consists of 47 subjects. New entries 11-A, 17-A, 17-B, 20-A and 33-A have been added by constitutional amendments. Both Centre and the States can make laws on the subjects mentioned in the Concurrent List. But in case of conflict between the Central and the State law on concurrent subjects, the Central law will prevail.
The above three lists are very exhaustive and elaborately drawn and it may be assumed that practically all subjects identifiable today, have been assigned to the governments in these lists. But the present era is of fast technological growth and advancement.
In the atomic and hydrogen age, no one can visualize today the future developments and exigencies of the government. To meet this difficulty, the Constitution has laid down the formula by which the residue, the subjects not mentioned in any of the lists belongs to the Centre exclusively. Article 248 lays down in this context, “Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List”.
To effect all these provisions in the Constitution is to invest exclusively in the Centre any residuary power of legislation.
Parliament’s power to legislate on State Subjects:
Though in normal times, the distribution of powers must be strictly maintained and neither the State nor the Centre can encroach upon the sphere allotted to the other by the Constitution, yet in exceptional situations, the above system of distribution may be suspended. These exceptional situations are:
(1) Power of Parliament to legislate in national interest:
According to Article 249, if the Rajya Sabha passes a resolution supported by two-thirds majority that it is expedient or necessary in the national interest that Parliament should make laws with respect to any matter enumerated within State List, then it will be lawful for the Parliament to make laws for the whole or any part of the territory of India.
(2) During a proclamation of Emergency:
According to Article 250, while the proclamation of Emergency is in operation, the Parliament shall have power to make laws for the whole or any part of the territory of India with respect to matters on State List. Such a law will expire after six months on expiration of the proclamation of emergency.
(3) Parliament’s power to legislate with the consent of States:
According to Article 252, if the legislature of two or more States pass resolution to the effect that it is desirable to have a law passed by Parliament on any matter in State List, it shall be lawful for Parliament to make laws regulating that matter. Any other State may adopt such a law by passing a resolution to that effect.
(4) Parliament’s Power to legislate for having effect to treaties and international agreements:
Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions. In other words, the normal distribution of powers will not stand in the way of Parliament to pass a law to give effect to any international agreement even though such law relates to any of the subjects in the State List.
(5) In case of failure of constitutional machinery in the State:
Under Article 356 Parliament is empowered to make laws with respect to all matters in the State List when the Parliament declares that the government of the State cannot be carried on in accordance with the Constitution.
It is submitted that these provisions enable the Centre to legislate in exceptional circumstances on the State subjects without amending the Constitution and thus introducing a certain amount of flexibility in the scheme of distribution of legislative powers.