Article 328 of the Indian Constitution is part of Part XV, which deals with elections. While Article 327 grants the Parliament the power to make laws regarding elections to both Parliament and State Legislatures, Article 328 carves out a supplementary power for the State Legislatures themselves.
This article empowers a State Legislature to legislate on matters concerning elections to its own House or Houses, but this power is not absolute. It is explicitly made subject to the provisions of the Constitution and, crucially, subject to any law already made by Parliament under Article 327.
Original Text
Article 328: Power of Legislature of a State to make provision with respect to elections to such Legislature.
Subject to the provisions of this Constitution and the provisions of any law made in this behalf by Parliament under article 327, the Legislature of a State may from time to time make provision by law with respect to all matters relating to, or in connection with, the elections to the House or each House of the Legislature of the State for the time being, including the preparation of electoral rolls and the delimitation of constituencies in respect of all such elections.
Detailed Explanation
Article 328 grants legislative competence to the State Legislatures concerning elections to their own Houses. This power is, however, significantly constrained by two conditions:
- Subject to the provisions of this Constitution: Any law made by a State Legislature under Article 328 must conform to the fundamental principles and specific provisions of the Constitution. This includes, most importantly, respecting the powers vested in the Election Commission of India under Article 324 regarding superintendence, direction, and control of elections. A State law cannot infringe upon the core constitutional mandate of the Election Commission.
- Subject to the provisions of any law made in this behalf by Parliament under article 327: This is the primary limitation. Article 327 gives Parliament the power to make comprehensive laws regarding elections to State Legislatures. If Parliament has made a law on a particular matter concerning State elections, the State Legislature’s power to make a law on that same matter is superseded. The State Legislature can only legislate on matters not covered by Parliamentary law or to supplement Parliament’s law where permitted.
The article specifies that the State Legislature’s power extends to “all matters relating to, or in connection with, the elections to the House or each House of the Legislature of the State”. This broad scope explicitly includes crucial aspects like “the preparation of electoral rolls and the delimitation of constituencies”. However, as mentioned, this is only permissible to the extent that Parliament has not already legislated on these specific matters under Article 327.
In essence, Article 328 provides a residual or supplementary power to the State Legislature to regulate its own elections, filling in gaps where Parliament has not legislated. However, given that Parliament has enacted comprehensive laws like the Representation of the People Acts covering most aspects of elections, the practical scope for State legislation under Article 328 is relatively limited.
Detailed Notes
- Source of Power: Article 328 grants legislative power to the Legislature of a State.
- Scope of Power: Concerns elections to the House or Houses of the State Legislature.
- Matters Covered: Includes all matters relating to, or in connection with, such elections. Specifically mentions:
- Preparation of electoral rolls.
- Delimitation of constituencies.
- (Impliedly) other matters like conduct of elections, election disputes, corrupt practices, etc., provided they are not covered by Parliamentary law.
- Key Limitations/Conditions:
- Subordination to Constitution: The State law must comply with all provisions of the Constitution, particularly Article 324 concerning the Election Commission’s powers.
- Subordination to Parliamentary Law (Art 327): This is the most significant limitation. If Parliament has made a law under Article 327 on a specific matter related to State elections, the State Legislature cannot make a contradictory law or, in many cases, any law at all on that matter. Parliament’s law prevails.
- Nature of Power: It is a power to legislate on the same subject as Parliament (elections to State Legislatures), making it concurrent in a sense, but with Parliament’s power being supreme. It acts as a residual power for the State when Parliament is silent.
- Relationship with Article 327: Article 327 gives Parliament the primary and overriding power to make laws regarding elections to both Parliament and State Legislatures. Article 328 is complementary, allowing the State to legislate only where Parliament has not.
- Relationship with Article 324: Laws made under Article 328 must not undermine the superintendence, direction, and control powers of the Election Commission of India under Article 324.
- Practical Impact: Due to comprehensive laws made by Parliament (like the Representation of the People Acts, 1950 and 1951) under Article 327, the scope for State Legislatures to enact significant laws under Article 328 is generally limited. Most aspects of State elections are already covered by Parliamentary legislation.
Additional Comments
- Article 328 reflects the federal structure of the Indian Constitution, assigning a specific legislative role to states even on a subject like elections, while ensuring the supremacy of central law and constitutional provisions.
- The existence of Article 328 ensures that if Parliament fails to legislate on a specific aspect of State elections, the State Legislature is empowered to do so, preventing a legislative vacuum.
- However, in practice, Parliament’s extensive legislation under Article 327 means that State laws under Article 328 are relatively rare and often deal with minor, specific local requirements not addressed by central law, provided they don’t contradict central law.
Summary
Article 328 empowers the Legislature of a State to enact laws concerning elections to its own Houses. This power extends to matters like electoral rolls and constituency delimitation. However, this legislative authority is strictly conditional. It must comply with all constitutional provisions, especially the powers of the Election Commission under Article 324. Crucially, it is subordinate to any law made by Parliament under Article 327; the State Legislature can only legislate on matters not covered by parliamentary law. This article provides a supplementary role for State Legislatures in governing their own elections, subject to the overriding authority of Parliament and the Constitution.