Article 246 of the Indian Constitution: Distribution of Legislative Powers

Article 246 is a cornerstone of the Indian Constitution’s federal structure, outlining the distribution of legislative powers between the Union Parliament and the State Legislatures. It defines the respective domains within which each level of government can enact laws by referencing the lists provided in the Seventh Schedule.

This article establishes a clear demarcation, granting exclusive powers to the Union in certain areas, exclusive powers to the States in others, and concurrent powers to both in a third category. This division is fundamental to the functional autonomy and cooperative relationship between the central and state governments in India.

Original Text

246. 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 I in the Seventh 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 of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as 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 II in the Seventh Schedule (in this Constitution referred to as 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.

Detailed Explanation

Article 246 lays down the framework for the legislative competence of the Union and State governments by correlating their law-making powers with the entries in the Seventh Schedule. The Seventh Schedule contains three lists:

1. List I (Union List): This list contains subjects of national importance, such as defence, foreign affairs, banking, currency, atomic energy, and communication. Clause (1) of Article 246 grants exclusive power to the Parliament to make laws on these subjects. This means State Legislatures cannot make laws on matters enumerated in the Union List. The phrase “Notwithstanding anything in clauses (2) and (3)” emphasizes the supremacy of Parliament’s power regarding the Union List.

2. List II (State List): This list comprises subjects of local and state importance, such as public order, police, public health, agriculture, and local government. Clause (3) of Article 246 grants exclusive power to the Legislature of a State to make laws for that State or any part thereof on these subjects. This power is “Subject to clauses (1) and (2)”, meaning the State’s exclusive power is limited by the Union List and Concurrent List, reinforcing the federal hierarchy where Union power takes precedence in case of conflict or overlap.

3. List III (Concurrent List): This list includes subjects where both the Union Parliament and the State Legislatures can make laws, such as criminal law, marriage and divorce, forests, education, and trade unions. Clause (2) of Article 246 states that both Parliament and the State Legislatures have the power to make laws on these matters. The power of the State Legislature is “subject to clause (1)”, reiterating that if a matter also falls under the Union List (which is rare for Concurrent List subjects, but the principle holds), Parliament’s exclusive power under List I would prevail. In the case of a conflict between a Union law and a State law on a subject in the Concurrent List, the Union law generally prevails (as per Article 254).

Clause (4) of Article 246 deals with the legislative power over Union Territories. It states that Parliament has the power to make laws with respect to any matter for any part of the territory of India not included in a State, even if that matter is enumerated in the State List. This grants Parliament supreme legislative authority over Union Territories, allowing it to legislate on subjects that would typically be within the exclusive domain of State Legislatures if the territory were a State.

The principle of ‘Pith and Substance’ is a judicial doctrine often applied when there appears to be an overlap between entries in the lists. This doctrine allows courts to determine the true nature and character of a law to decide under which list it primarily falls, even if it incidentally touches upon matters in another list.

While Article 246 defines the scope based on the lists, the power to legislate on any matter not enumerated in any of the three lists (residuary power) is vested exclusively in Parliament under Article 248.

Detailed Notes

• Article 246 defines the legislative competence of Parliament and State Legislatures.
• It operates in conjunction with the Seventh Schedule, which contains three lists: Union List, State List, and Concurrent List.
• Clause (1): Grants Parliament exclusive power to make laws on subjects in List I (Union List).
  • Subjects are of national importance (e.g., Defence, External Affairs, Banking).
  • Parliament’s power is supreme regarding these subjects, overriding powers in clauses (2) and (3).
• Clause (2): Grants Parliament and State Legislatures power to make laws on subjects in List III (Concurrent List).
  • Subjects allow for concurrent legislation by both levels of government (e.g., Criminal Law, Education, Forests).
  • State Legislature’s power is subject to Parliament’s power under Clause (1).
  • In case of conflict on a Concurrent List subject, Union law prevails (Article 254).
• Clause (3): Grants State Legislatures exclusive power to make laws for their respective states on subjects in List II (State List).
  • Subjects are of local/state importance (e.g., Public Order, Police, Health, Agriculture).
  • State’s exclusive power is subject to Parliament’s powers under Clauses (1) and (2).
• Clause (4): Grants Parliament power to make laws on any matter for Union Territories.
  • This power extends even to subjects enumerated in the State List (List II).
  • Parliament has supreme legislative authority over Union Territories.
• The scheme establishes a clear distribution of legislative powers but with Parliament having a predominant position, particularly concerning the Union List and Concurrent List, and supreme power over Union Territories.
• Judicial interpretation, like the ‘Pith and Substance’ doctrine, helps resolve issues of overlap between entries in the lists.
• Residuary legislative power (on subjects not in any list) rests with Parliament (Article 248).

Additional Comments

• The detailed distribution of legislative powers is a key feature of Indian federalism, allowing for both national unity and regional autonomy.
• The specific entries within the Seventh Schedule Lists are dynamic and can be amended by Parliament.
• The principle established in Article 246 is further elaborated and sometimes overridden by other articles, such as Articles 249 (Parliament’s power to legislate on a State List subject in national interest), 250 (during emergency), 252 (by consent of States), and 253 (for implementing international treaties).
• The ‘Pith and Substance’ doctrine originated in Canadian constitutional law and is crucial in preventing legislative conflicts arising from incidental overlaps.
• The structure ensures that matters of national concern are handled uniformly by the Union, while regional matters are addressed by the States, and subjects requiring coordinated action by both are placed in the Concurrent List.

Summary

Article 246 defines the scope of legislative powers for the Indian Parliament and State Legislatures by allocating subjects into three lists in the Seventh Schedule. Parliament holds exclusive power over subjects in the Union List, which are of national importance. State Legislatures have exclusive power over subjects in the State List, pertaining to local and state matters, though this power is subject to the Union and Concurrent Lists. Both Parliament and State Legislatures can make laws on subjects in the Concurrent List, but Union law generally prevails in case of conflict. Furthermore, Parliament possesses comprehensive legislative authority over Union Territories, capable of legislating on any subject, including those typically reserved for State Lists. This article forms the backbone of legislative relations and the distribution of powers in India’s federal system.