ARTICLE 246 OF THE INDIAN CONSTITUION

INTRODUCTION 

Subject matter of laws made by parliament and by the legislatures of states – 

1. Notwithstanding anything in clauses 2 and 3, parliament has exclusive power to make laws  with respect to any of the matters enumerated in list 1 in the 7th schedule (in this  constitution referred to as the “Union List”) 

2. Notwithstanding anything in clause 3, parliament and subject to clause 1, the legislature  of any state also have power to make laws with respect to any matters enumerated in list 3  of the 7 schedule i.e. the “concurrent list”. 

3. Subject to clauses 1 and 2, the legislature of any state has exclusive power to make laws  for such state or any part thereof with respect to any of the matters enumerated in list 2 in  the 7th schedule i.e. the “state list”. 

4. Parliament has power to make laws with respect to any matter for any part of the territory  of India not included in a state notwithstanding that such matter is a matter enumerated in  the state list.”  

∙ List 1 contain 97 items 

∙ List 2 contain 66 items 

∙ List 3 contain 47 items 

It is to be noted that topics of taxation are included separately and independently of other subjects  both in list 1 and list 2 and not at all in list 3. 

SOURCES OF LEGISLATIVE POWER 

Article 245 not the source of legislature power. Apart from the Parliament and State Legislatures,  there are other law making bodies also. The sources of legislative power have to be seen in two  stages accordingly.

1. Legislative Powers of Parliament and State Legislatures: Article 246 including three  lists in the 7th Schedule form the main though not exhaustive sources.  

2. Article 249 – This Article authorizes parliament to make laws on matters within the  competence of state legislature if two or more state’s consent and request for such  legislation and the rest of the provisions (Articles 247, 250, 251, 253) empowers parliament  to make laws for the specific purpose and in the manner provided in them, the exclusive  powers of state legislatures under Article 246(3). 

PROVISIONS OUTSIDE CHAPTER 1 OF PART 11 CONFERRING LEGISLATIVE POWERS ON THE PARLIAMENT 

∙ The provisions which confer constituent or amending powers as a law under them can make  incidental changes in the constitution without invoking Article 368. These are Articles 2,  3, 4, 169, 239A, 244 A, and paras 7 and 21 of the 5th and 6th Schedules respectively. 

∙ Provisions that confer power notwithstanding anything in the constitution are Articles  16(3), 17, 23, 32(3), 33, 34, 35, 262(2) and 369. A law under these provisions will be valid  even though it conflicts with the distribution of the legislative powers as laid down in  Article 246 or elsewhere. 

∙ Instances of specific grant of power to parliament for specified purpose though they could also be covered by Article 248 are Articles 22(7), 70, 100(3), 119, 171, 172, 258(2), 261,  262, 267(1). 275, 280(2), 283(1), 285, 286(2), 292, 293, 307, 327, 341(2), 342(2), 343(3),  and 353(b). The justification for these provisions is that though none of the matters  specified in them is covered by any of the entries in the 7th Schedule, yet if any of these  matters incidentally falls in the state or concurrent list, it will be presumed to be excluded  from those lists and will be treated within the exclusive domain of parliament. 

∙ Provisions which state that parliament may by law do the things mentioned in them are  Articles 11, 71, 80(5), 84(c), 101(1), 102(2), 104, 173(c), 191(e), 193, 231, 241, 321. ∙ Articles 356(1) (b) and 357 are of the view that Parliament can make laws with respect to  any matter for a state whose legislature has been suspended or dissolved.

STATE LEGISLATURES 

∙ Chapter 1 of Part XI – Articles 246 (2) and (3). 

∙ Articles 321 and 328 (State Public Service Commission and election to state legislature  respectively). The subject matter is covered respectively by entries 41 and 37 of the state  list Article 328 also begins with the words, “subject to the provisions of this constitution  and in so far as provisions on that behalf are not made by parliament.” So, there is no  difficulty in construing these two provisions in relation to the other related provisions of  the constitution. 

∙ But there is one apparent difficulty in reconciling the rest of them with Article 248 which  confers exclusive power on parliament to make laws with respect to any matter not  enumerated in the concurrent or the state list. 

The abovementioned problem can be solved by considering that Article 248 grants exclusive  power to parliament with respect to any matter not covered in the concurrent or the state list but it  does not say that a specific legislative power conferred on state legislatures by any other provisions  of the constitution shall be inoperative. The power so conferred is different from the general power  conferred by Article 246(2) and (3) read with the concurrent and state lists and therefore Article  248 cannot whittle it down i.e. Article 248 is a general provision and the Articles 209, 267(2),  283(2), 293 and 345 are specific provisions and if an irreconcilable conflict between these articles  and Article 248 exists then latter should give way to the former on the ground that a specific  provision must override the general. However, an irreconcilable conflict should not easily be read  and where there appears a conflict the solution lies in the rule of harmonious construction which  the Supreme Court has applied to a number of cases to resolve conflicts between different  provisions of the constitution. Applying that rule, the scope of Article 248 will have to be restricted  to give effect to the provisions mentioned above. 

In the light of this interpretation of Article 248, the general proposition laid down in Union of  India v. H.S. Dhillon calls for modification. Sikri C.J.; “If a central Act is challenged as being  beyond the legislative competence of parliament, it is enough to enquire if it is law with respect to  matters or taxes enumerated in list 2. If it is not, no further question arises.”

Attention not drawn to the fact that the three lists plus Articles 246 and 248 are not exhaustive  with regards to the legislative powers. It is submitted that when parliament’s competence to enact  a law is challenged, then in addition to the inquiry suggested by the learned Chief Justice, it should  be enquired whether the subject matter of the law is one that has been specifically assigned to state  legislatures under some other provisions of the constitution and if it is so, the law of parliament  shall be invalid to the extent it encroaches upon such matters. 

LEGISLATIVE POWERS OF OTHER AUTHORITIES 

Only those legislative powers which are granted by the court to different authorities in the same  fashion, though for very limited or specific purpose, as those granted to Parliament or state  legislatures cannot be curtailed by anything short of an amendment of the constitution. 

Important conclusions can be drawn from the above conferment of powers on other bodies: 

∙ They explain why there is no provision in the constitution vesting the legislative power of  the union and the States in Parliament and State Legislatures. Since the court vests that  power on other bodies also, such vesting could not be possible. 

∙ ‘Exclusive’ in Articles 246(1) and 248 and Article 246(2) excludes state legislatures and  parliament respectively and not the other bodies also. 

∙ The conferment of legislative power on the executive and other bodies negatives the  incorporation of the theory of separation of powers in the constitution. 

∙ The legislative powers given to the executive in such wide terms as “peace, progress and  good government” also indicate that the constitution makers were not averse to the idea  of permitting the executive to legislate, if that could be the better and more effective  instrument for the purpose. 

From such wide legislative powers given to the executive, it may also be inferred that the  constitution makers were not averse to the idea of delegation of widest law making power by the  legislature and the executive if in the judgment of the legislature such delegation could serve the  purpose of law better and more effectively.

CONCLUSION 

No provisions of constitution can be read to contradict others. Hence, exceptions in specific terms  apart, such as Articles 35 and 369, no grant of legislative powers of parliament or state legislatures  outside Chapters 1 of Part XI of the constitution can be read which contradicts any provisions in  that chapter. A grant under the chapter does not have superiority over others and vice versa.  Therefore, what at first sight may appear as an independent grant of legislative power cannot be  so if it negatives. For example, any grant made by Article 246 read with the three lists in the 7th  Schedule. To illustrate, no independent grant of legislative power can be read in clauses (2) to (6)  of Article 19 or in the opening words of Articles 25 or 26, or in Articles 302 or 304. 

One argument to deny such powers may be that these provisions merely lift the limitation imposed  on the legislative powers by the relevant provisions. But that apart, a law contemplated by these  provisions is covered by one or the other entry in the three lists. If on the basis of these provisions,  parliament or state legislatures are permitted to legislate with respect to a matter which falls within  the exclusive jurisdiction of the other, it will be a clear violation of Article 246. However, by  adhering to Article 246, laws can be made with respect to all matters mentioned in these provisions.  The latter approach gives full effect to all the provisions of the court without violence to any. It is  this approach which has to be borne in mind while making a search for an independent legislative  power outside Chapter 1 of Part XI or within that chapter.