Forms of Government and Legislative Relations in India

Jul 2, 2024

Forms of Government and Legislative Relations in India

Forms of Government

  • Unitary Government

    • Maximum power lies with the state.
    • Examples include: (examples were not provided).

  • Federal Government

    • Power is divided between the Centre and States.
    • India primarily follows this form; during emergencies, India adopts a Unitary form.

Characteristics of Federal Government

  • Division of power between Centre and States under three heads:
    • Legislative relations
    • Administrative relations
    • Financial relations

Legislative Relations

  • Discussed in Articles 245 to 255.
  • Divided into two aspects:
    • Territorial Jurisdiction: Who can make law applicable over a specific territory.
    • Subject Matter Jurisdiction: Who can make laws related to specific subject matters (e.g., agriculture, electricity).

Territorial Jurisdiction (Article 245)

  • Parliament (Centre) can make laws for entire India or parts of it.
  • State Legislature can make laws for the entire state or parts of it.
  • Extra-Territorial Operation
    • Parliament can make laws affecting persons or properties outside India.
    • State Legislature does not have this power.
    • Determined by the Territorial Nexus Test (e.g., case involving an English company in India).

Exceptions to Parliament's Power (Article 245)

  • Article 240: President can make regulations for four Union Territories (e.g., amending or repealing parliamentary laws).
  • Fifth Schedule: Governors of states can declare that parliamentary laws don't apply in scheduled areas.
  • Sixth Schedule: Governors can modify parliamentary laws in tribal areas of specific states.

Subject Matter Legislation

  • Categorized by the 7th Schedule into three lists:
    • Union List (List I): 100 items of national importance (e.g., defense, atomic energy). Parliament has exclusive right.
    • State List (List II): 61 items of local importance (e.g., agriculture, police). States have exclusive power.
    • Concurrent List (List III): 52 items where both Centre and State can make laws.

Article 246

  • Parliament can legislate on any matter in the Union and Concurrent Lists.

Article 248 (Residuary Powers)

  • Union can legislate on any new subject matter not covered in any of the three lists.

  • Conflict Resolution

    • Union List prevails over State List in case of conflict.
    • Concurrent List prevails over State List in case of conflict.

Extraordinary Circumstances for Center to Make Laws on State Matters

  1. During National Emergency/President's Rule.
  2. Rajya Sabha's resolution for national importance.
  3. Request by two or more state legislatures.
  4. To implement international agreements.

Doctrine of Pith and Substance

  • Used by courts to determine the true nature of legislation.
  • Key Cases
    • Bengal Money Lenders Act, 1946: Validity upheld based on main nature (money lending) despite encroachment on promissory notes.
    • Bombay Prohibition Act: Validity upheld despite encroachment on import/export.

Article 254 (Repugnancy Clause)

  • In case of conflicting laws on the same subject matter, laws made by Parliament prevail over state laws.

Conclusion

  • Federal form ensures division of power between Centre and States.
  • Legislative relations and subject matter jurisdiction are crucial aspects.
  • Doctrines and articles help maintain balance and resolve conflicts in law-making.