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.