February 24, 2020
Introduction
The topic of legislative competence is vast and contentious. The Constitution of India, 1950 has defined the territorial jurisdiction under Article 245 and its relevant subjects within Article 246. The present status of law has combined the two distinct concepts of competence with repugnance. The Indian judiciary despite its clearly demarcated boundaries is often faced with the conflict of legislative competence. Ergo, the bone of contention lies in whether the judiciary protects the constitutionally defined boundaries of power delegated to the Union and State governments.
History and its significance
Sandipto Dasgupta, in his article ‘A language which is foreign to us’ gives a very interesting perspective that the Constitution of India is just an extension of the Government of India Act, 1935. Hence, when we talk about legislative competence it becomes important to read Section 100 of the Government of India Act with the Article 246 of the Indian Constitution. Both Section 100 and article 246 of the Indian Constitution divide legislative fields into three lists. The Government of India Act, 1935 was one of its kinds as it tried to define legislative fields as exhaustively as possible. The attempt to exhaustively define the legislative fields could be because the federal government was directly under the control of the British crown whereas the provincial government comprised of elected Indian members. This clearly suggests that there was an attempt to keep the federal government higher pedestal.
This raises an important question as to why the same structure was adopted by the Indian Constitution. The answer lies in the political scenario of India during independence. There was political instability in the country. Some princely states such as Junagadh, Travancore, Hyderabad demanded independence and there was political instability in the North east. This became one of the reasons to have a strong centre to control the political instability of the country.
The politics or the language of Part XI of the Indian Constitution cannot be seen in isolation. Legislative competence is nothing but demarcation of powers between the Union and the State. The bare reading of part XI suggests that Union has more power over the States.
Different Doctrines invoked by the Judiciary
Article 245 confers power to the parliament to enact laws for whole or a part of the Indian territory. However, the power is not absolute as it is subject to other provisions of the constitution. Article 246 deals with the jurisdiction of Union or Stare legislatures subjects or topics for legislation. Under 246 more items are enlisted in List I, Union list. Also, under 248 the entry 97 of the List I confer the residuary powers to the Union. The ambit of the Union power is greater than that of the state. Even though according to the constitution India is federal structure. It appears that India is a “Qausi-Federal” or “Semi-Federal”.
Indian judiciary has used different interpretations in the cases while dealing with the legislative competence of the Union and State legislatures. For instance, in the case of Subramanyam Chettiar v Muttuswami Goundan[1], the Court held the term ‘with respect to’ signifies the pith and substance of the legislation. The pith and substance is nothing but the essence and substance of a legislation. This concept has been reiterated in Prafulla Kumar Mukherjee[2] where the court held after looking into the pith and substance, the Court should ascertain in which list does the legislation falls
In another case, In the In Calcutta Gas Co. (Propriety) Ltd. V. State of West Bengal,[3] the court invoked harmonious interpretation because of the overlapping of powers between the Union and State List. It was aimed at preventing any subjects listed in either of the list from becoming redundant. In addition to that the Union legislature was preferred in case the interpretation fails due to the non- obstante clause. In another case of the K.C. Gajapati Narayan Deo v. State of Orissa, [4]the court used “colourable legislation”. The “purpose, effect and operation” was considered was preferred rather than the “language of the statute”. This interpretation is like “pith and substance”. However, in the colourable legislation the legislature in its form is within the limits of the legislature but in the substance it transgresses the constitutionally defined limits.
The interpretations used by the supreme court are broadly aimed at the restricting the legislatures within their constitutionally defined boundaries. The transgressions of constitutional power of legislature may be direct or indirect. The courts have also considered the fact that the constitutional drafters have aimed at minimal dispute between the Union and the State government for enactment of statutes. All the interpretations are aimed at limiting the scope of the legislature within the constitutionally defined limits.
The Doctrine of Repugnancy
Under the topic of ‘conflicting intra vires legislation’, the main question which comes up is what happens when a law passed by one legislature incidentally encroaches the law passed by the other legislature. The answer is defined in Article 254 of the Constitution which entrenches the doctrine of repugnancy in India. However, across the years, the courts have found it difficult to define when can a state law be invalidated and whether this doctrine of repugnancy applies to all three lists, i.e. the Union, State and Concurrent Lists.
The general law was that if the State legislature incidentally encroaches Central jurisdiction and the Central legislature has not enacted a law covering that subject, the question of repugnancy cannot arise as there is no actual conflict. The case Tika Ramji vs. State of UP[5] reinforced this understanding and stated repugnancy must exist in fact and cannot depend on a mere possibility. However, in State of Kerala vs. Mar Appraem Kuri[6], the court said that repugnancy arises on the making of the Act and not the commencement of the law.
The legislative history makes it clear that Article 254 was intended to apply across the lists as S.107 of the Govt. of India Act did not contain the Concurrent List qualification. The Supreme Court via its judgements narrowed down the scope of the Article 254 by limiting it only to the Concurrent List. This can be seen in the case of the Bar Council of UP v State of UP (1973)[7] where the court held that Article 254 was inapplicable as the respective Act was under List I and not List 3. The Supreme Court further narrowed it down via the VK Sharma[8] case and said that Article 254 would not apply unless both legislations are enacted under the same entry in the Concurrent List.
This narrowing down of the scope of Article 254 only to the Concurrent List appears to be justified as this gives more autonomy to the State Legislature to make its own laws within its jurisdiction. With the other interpretation, the Centre would have too much power to apply the repugnancy clause and strike down whichever law the State formulates. Even if the state makes a law under the State List, the Centre could bring out another law on the same issue and thus trump the state made law.
Administrative Relations between the Union and the States
In addition to this, the makers of the Constitution were cognizant to the threat of administrative disputes that might have arisen between the Union and the State and drafted the relevant provisions in accordance, although preserving the notion of a ‘dual polity’ but, with a distinct leaning in favour of the Union. This is evident from the pith and substance of Articles 256, 257 and 258 which, deliberate upon how the States are obliged to carry out certain executive functions of the Union. This power of the Union extends to the limit of directing a State in a manner it feels essential for any purpose. However, the newly inserted Article 258A provides a much-needed respite to States by imposing certain limitations upon this colossal scope of power and bestowed upon them similar rights wherein they themselves could entrust functions to the Union as was observed in the Jayantilal Amritlal[9] case which restrained such obligations to only those vested in the Union and not to those authorised by the President. Furthermore, the officers recruited by a central body – the UPSC are assigned to the States, all of whom hold higher administrative posts in the state administration. Their conduct is ultimately controlled by the Union Home Ministry.
Conclusion
The constitutional framework governing legislative competence in India reveals a discernible bias toward the Centre. This bias, rooted in the historical precedent set by the Government of India Act, 1935, was further reinforced by the political exigencies of post-independence India. The constitutional provisions, including Articles 245 and 246, allocate more legislative authority to the Union, while doctrines such as pith and substance, harmonious construction, and colourable legislation serve to restrict legislative transgressions by the States. Additionally, the doctrine of repugnancy, as interpreted by the judiciary, has been narrowed to the Concurrent List, offering a degree of protection to State legislatures. However, administrative provisions like Articles 256, 257, and 258 continue to strengthen the Union’s oversight over State functions.
While India is constitutionally defined as a federal polity, the practical application of legislative competence reflects a quasi-federal structure, where the Centre wields greater legislative and administrative power. This asymmetry, though arguably necessary for national unity and political stability, raises concerns about the erosion of State autonomy. The judiciary has played a crucial role in balancing these competing interests, yet the overarching trend remains one of central dominance. Thus, while the Constitution delineates boundaries for both Union and State legislatures, the inherent structural and interpretative mechanisms often tilt in favour of the Centre, reaffirming the notion that the constitutional scheme of legislative competence is not entirely neutral but inherently designed to prioritize national integrity over regional autonomy.
[1] 1940 [FCR] 188.
[2] AIR 1947 PC 60.
[3] 1962 AIR 1044.
[4] AIR 1953 Ori 185.
[5] Tika Ramji vs. State of UP 1956 AIR 676.
[6] State of Kerala vs. Mar Appraem Kuri 2012 7 SCC 106
[7] Bar Council of UP v State of UP (1973) AIR 231
[8] V.K. Sharma vs State of Karnataka (1990) AIR 2072
[9] Jayantilal Amratlal Shodhan v. F.N. Rana AIR 1964 SC 648.
Bhrigu A. Pamidighantam 
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