Article 246

• Article 246-Subject-matter of laws made by parliament and by the legislatures of states.

• Union List( list 1)-Parliament has exclusive power to legislate with respect to any of the matters enumerated in list 1 notwithstanding anything contained in clauses (2) and (3).
• State list( list II)-The state legislature has exclusive power to make laws with respect to any of the matter enumerated in list II.( subject to clause 1 and II).
• Concurrent list (list III)-Both parliament and the state legislature have concurrent powers of legislation with respect to any of the matters enumerated in this list.

It is obvious that art.246 imposes limitations on the legislative powers of the union and state legislatures and its ultimate analysis would reveal the following essentials:
• Parliament has exclusive power to legislate with respect to any of the matters enumerated in list1 notwithstanding anything contained in clauses 2 and 3.
• Notwithstanding anything contained…. ( the non obstante clause in art.246(1) provides for predominance or supremacy of Union Legislature.This power is not encumbered by anything contained in clauses 2 and 3 for these clauses themselves are expressly limited and made subject to the non obstante clause in art.246(1)
• The combined effect of the different clauses contained in article 246 is no more and no less than this that in respect of any matter falling within list 1, parliament has exclusive power of legislation.
• The exclusive power of the state legislature to legislate with respect to any of the matter enumerated in list II has to be exercised subject to clause 1 i.e. the exclusive power of parliament to legislate with respect to matters enumerated in List 1.
• If there is a conflict between an entry in list 1 and an entry in list II which is not capable of reconciliation, the power of parliament to legislate with respect to a matter enumerated in list 11 must supersede the exercise of power of the state legislature.
• The words “notwithstanding anything contained in clauses 2 and 3, in article 246(1) and the words “subject to cls 1 and 2 in article 246(3) lay down the principle of federal supremacy viz.that in case of inevitable conflict between Union and state powers, The Union Power as enumerated in list I shall prevail over the State power as enumerated in lists II and III.And in case of overlapping between lists II and III ,the former shall prevail.
• But the principle of federal supremacy laid down in article 246 of the constitution cannot be resorted to unless there is an “irreconcilable” conflict between the entries in the Union and State lists.
• In the case of a seeming conflict between the entries in the two lists,the entries should be read together without giving a narrow and restricted sense to either of them.
• An attempt should be made to see whether the two entries can be reconciled so as to avoid a conflict of jurisdiction.It should be considered whether a fair reconciliation can be achieved by giving to the language of the Union Legislative list a meaning a less wide a meaning and equally giving to the language of the state legislative list a meaning which it can properly bear.
• The non obstane clause in article 246(1) must operate only if such reconciliation should prove impossible.
• No question of conflict between the two lists will arise if the impugned legislation, by the application of the doctrine of pith and substance appears to fall exclusively under one list, and the encroachment upon another list is only incidental.
• State legislature has exclusive power to legislate with respect to list II ,minus matters falling in list I or III;has concurrent power to legislate with respect to matters in list III, minus matters falling in List I.
• The dominant position of the central legislature with regard to matters in list I and II is established.But the rigour of this literal interpretation is relaxed by the use of the words ‘with respect to’ which signify pith and substance rule and do not forbid a mere incidental encroachment .
• The supremacy of the union legislature would not prevent the state legislature from dealing with any matter within list II though it may incidentally affect any item in list 1.
• It would therefore appear that the constitutionality of the law is to be judged by its real subject matter and not by its incidental effect on any topic of legislation in another field.
Principles Of Interpretation of the Lists
The courts have developed several norms to interpret the entries in these lists.
• Each entry to be interpreted broadly.
The Supreme Court: “The cardinal rule of interpretation is that the entries in the legislative lists are not to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.The widest possible construction,according to the ordinary meaning of the words in the entry,must be put upon them.In construing the words in a constitutional document conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude”.
• Harmonious interpretation of entries.
Some of the entries in the different lists may overlap or may appear to be in direct conflict with each other.
To harmonise and reconcile conflicting entries in the lists,it may be necessary to read and interpret the relevant entries together,and,where necessary,restrict the ambit of the broader entry in favour of the narrower entry so that it is not eaten up by the former.

• Rule of pith and Substance.
This rule envisages that the legislation as a whole be examined to ascertain its its ‘true nature and character’in order to determine to what entry of the list it relates.In determining whether the impugned Act is a law with respect to a given power,the court has to consider whether the Act, in its Pith and Substance,is a law on the subject in question.Incidental encroachment is not altogether forbidden.

• Doctrine of colourable legislation.
It is based on the maxim that what cannot be done directly cannot also be done indirectly.It is only when a legislature having no power to legislate frames a legislation so camouflaging the same as to make it appear to fall within its competence, the legislation enacted may be regarded as colourable legislation.

Article 245- Doctrine of Territorial Nexus

Cases- State of Bombay vs. R.M.D.C( AIR 1957 SC 699)
Tata Iron and Steel Company vs. Bihar State( AIR 1958 SC 482)
State of Bihar Vs. Sm. Charusila Dasi,( AIR 1959 SC 1002)


Article 245-Extent of laws made by parliament and by the legislatures of states-

1) Subject to the provisions of this constitution, Parliament 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.
2) No law made by parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

Subject to the provisions of this constitution,this phrase means that the power enjoyed by the parliament to make laws for the whole or any part of the territory of India will be read in subject to other provisions of the constitution.In other words, this power is not absolute.Other provisions like the distribution of powers,fundamental rights and other provisions of the constitution as interpreted by the courts.

“Extra- territorial operation” – Law made to operate outside territorial limits of India.

State laws would be void if it has extra- territorial operation i.e., 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 between the object and the state. This is clarified by the case State of Bombay vs. R.M.D.C.

The Doctrine of Territorial nexus can be invoked under the following circumstances-
• Whether a particular state has extra-territorial operation.
• If there is a territorial nexus between the subject- matter of the Act and the state making the law.

It signifies that the object to which the law applies need not be physically located within the territorial boundaries of the state,but must have a sufficient territorial connection with the state.
A state may levy a tax on a person, property ,object or transaction not only when it is situated within its territorial limits,but also when it has a sufficient and real territorial connection with it.

State of Bombay vs RMDC- The Respondent was not residing in Bombay but he conducted Competitions with prize money through a newspaper printed and published from Banglore having a wide circulation in Bombay. All the essential activities like filling up of the forms,entry fees etc for the competition took place in Bombay.The state govt. sought to levy tax the respondent for carrying on business in the state.
The question for decision before the Supreme Court was if the respondent,the organiser of the competition,who was outside the state of Bombay, could be validly taxed under the Act.
Decision-It was held that there existed a sufficient territorial nexus to enable the Bombay Legislature to tax the respondent as all the activities which the competitor is ordinarily expected to undertake took place mostly within Bombay.


Tata Iron And Steel Company vs. Bihar State- The state of Bihar passed a Sales
Tax Act for levy of sales tax whether the sale was concluded within the state or outside if the goods were produced,found and manufactured in the state .The court held there was sufficient territorial nexus and upheld the Act as valid.Whether there is sufficient nexus between the law and the object sought to be taxed will depend upon the facts and circumstances of a particular case.
It was pointed out that sufficiency of the territorial connection involved a consideration of two elements- a) the connection must be real and not illusory b) the liability sought to be imposed must be pertinent to that connection.

State of Bihar vs Charusila Dasi-
- Bihar legislature enacted the Bihar Hindu Religious Trusts Act,1950, for the protection and preservation of properties appertaining to the Hindu religious trusts.
- The Act applied to all trusts any part of which was situated in the state of Bihar.
- The Respondent created a trust deed of her properties of several houses and land in Bihar and Calcutta.The trust being situated in Bihar.
- The main question for decision was whether the Act apply to trust properties which are situated outside the state of Bihar.
- The court had to decide whether the trust thus created was a private trust or public trust.
- Can the legislature of Bihar make a law with respect to such a trust situated in bihar and other properties appertaining to such trust which are situated outside Bihar?
Decision- Applying the doctrine of territorial nexus ,the Supreme court held that the Act could affect the trust property situated outside Bihar, but appertaining to a trust situated in Bihar where the trustees functioned.The Act aims to provide for the better administration of Hindu religious trusts in the state of Bihar.The trust being situated in Bihar the state has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust.
What is necessary is that the connection between the trust and the property appertaining thereto is real and not illusory and that the religious institution and the property appertaining thereto form one integrated whole as one cannot be dissociated from the other.



The court has applied the docrine of territorial connection or nexus to income-tax legislation, sales tax legislation and also to legislation imposing a tax on gambling.

Federalism

1. Student should define federal and unitary constitution.

2. Meaning of Quasi-federal constitution.Eg., Canada

3. Bring out the essential characteristics of a federal constitution and unitary. Imp.points are: Supremacy and rigidity of constitution vis a vis federalism.

4. Highlight the working of constitution in theory and practice.You will find that the distinction between unitary and federal is not followed strictly., eg being Canada Australia,New Zealand,Irish Republic.

5. Examine whether supremacy and rigidity of constitution an essential feature of all federal state or contrary in reality.

6. Confederation or a Confederate constitution. Eg., Swiss constitution:-In such form of govt. the govt. of the whole country is subordinate to the governments of the parts.But K.C wheare prefers to call such arrangement as merely a covenant,an agreement,a treaty.

7. Emphasise on the actual practice of the constitution than the law of the constitution to see if it’s a federal or unitary.

Key Points- Federal state-The govt. of the whole country and the governments of the constituent parts were not subordinate to one another but rather coordinate with each other.

Unitary State- If the governments of the Constituent parts of a country were
subordinate to the government of the whole .

K.C Wheare- termed India as Quasi-federal Constitution.Analyse.

Introduction

Constitution is not to be construed as a mere law, but as the machinery by which laws are made.A constitution is a living and organic thing which, of all instruments has the greatest claim to be construed broadly and liberally.The constitution operates as a fundamental law.The governmental organs owe their origin to the Constitution and derive their authority from,and discharge their responsibilities within the framework of the constitution .The union parliament and the state legislature are not sovereign ,the validity of a law,whether Union or state ,is judged with reference to their respective jurisdictions as as defined in the Constitution.The judiciary has power to declare a law unconstitutional ,if the law is found to have contravened any provision of the constitution.The Indian Constitution, adopted by the Constituent Assembly on November 26,1949 is a comprehensive document containing 395 articles and several schedules.Besides dealing with the structure of govt. the constitution makes detailed provisions for the rights of citizens and other persons in a number of entrenched provisions ,and for the principles to be followed by the state in the governance of the country ,labeled as “directive principles of state policy”.

Course syllabi (Constitutional law)

1.Federalism-General Introduction

2.Article 245-Doctrine of Territorial Nexus

Cases- State of Bombay Vs. R.M.D.C(AIR 1957 SC 699)
Tata Iron and steel company Vs.Bihar State
State of Bihar Vs.Sm.Charusila Dasi,( Air 1959 SC 482)

3. Legislative Relations- Interpretation of legislative Lists:

Cases- 1) In re C.P. and Berar Taxation Act,(AIR 1939 FC 131)
2)The United Provinces Vs. Atiqa Begum( AIR 1941 FC 16)
3)Prafulla kumar Mukherjee Vs. Bank of commerce, Khulna,(AIR1945 PC 60)
4)State of Rajasthan vs. G.Chawla, (AIR 1959 SC 544)
5) K.C. Gajapati Narayan Deb vs. State of Orissa, (AIR 1953 SC 275)
6) Zeverbhai vs The state of Bombay, (AIR 1956 SC752)
7) Ch. Tikaramji and others vs The State of U.P., AIR 1956 SC675.
8)Deep Chand vs.State of U.P, AIR 1959 SC648
9)State of Orissa vs. N.A. Tulloch And Co., AIR 1964 SC 1284.
10) Union Of India vs. H.S. Dhillon, AIR 1972 SC 1961.

4) Emergency- Articles 352 and 356

Cases- K.K. Aboo vs. Union Of India,AIR 1965 Kerela 229.
Rao Birendra Singh Vs. Union of India(AIR 1968 Punjab and Haryana 441.
Bijayananda vs. President of India,AIR 1974 Ori 52.
State of Rajasthan vs. Union of India,AIR 1977 SC 1361.

5) Trade and Commerce

Cases- Atiabari Tea Co. vs. State of Assam, AIR 1961 SC 232
Automobile Transport vs. State of Rajasthan,AIR 1962 SC 1406.
Khyerbari Tea Co. vs. State Of Assam,AIR 1964 SC 925.
State of Mysore vs. H. Sanjeeviah, AIR 1967 SC 1189.

6) The nature of Indian federalism

Cases- Rai Saheb Ram Jawaya Kapoor vs. State of Punjab,AIR 1955 SC 549
Babulal Parate vs. The state of Bombay, AIR 1960 SC51.
State of West Bengal vs. Union Of India, AIR 1963 SC1241.
State of Karnataka vs. Union Of India,AIR 1978 SC 68.

Key Terms

Key Terms

“Constitution”-Structure or composition:make-up.The physical make-up of a person,eg-John has a strong physical constitution.
The system of fundamental laws and principles that prescribes the nature,functions,and limits of an institution,as a government.It is the document on which such a system is recorded.

Constitutional-Of or relating to a constitution,consistent with or authorized by a constitution ,established by or operating under a constitution ,of or proceeding from the basic structure or nature of a person or thing ,eg-a constitutional reluctance to lie,a walk taken usually daily for one’s health.

Constitutionalism-Government in which power is distributed and limited by a system of laws that must be obeyed by the rulers.Advocacy of constitutionalism is called as constitutionalist.