Distribution of Legislative Subjects Between Parliament and State Legislatures

Subject-matter distribution between Parliament and the State Legislatures is governed by Article 246 of the Constitution, which divides legislative competence across three lists set out in the Seventh Schedule. This division tells Parliament and the states not merely where their laws can operate, as Article 245 does, but what subjects each may legislate on at all — and it is this question of subject-matter, more than territory, that has generated most of India's centre-state legislative disputes.

Article 246: The Three Lists

Article 246 gives Parliament exclusive power to make laws on any matter in List I, the Union List, of the Seventh Schedule, notwithstanding anything in clauses (2) and (3) of the article. Parliament, and, subject to Parliament's List I power, the Legislature of a state, both have power to make laws on matters in List III, the Concurrent List. Subject to the Union List and Concurrent List powers, a State Legislature has exclusive power to make laws for its state, or any part of it, on matters in List II, the State List. This structure gives the Union List overriding priority, followed by the Concurrent List (where both levels can legislate, subject to Article 254 on repugnancy), with the State List available exclusively to the states within that hierarchy.

The Seventh Schedule's three lists were framed as a detailed threefold enumeration of subjects — the Union List, the State List, and the Concurrent List — with any subject not falling in any of the three lists treated as a residuary matter. Residuary legislative power over subjects not enumerated in any of the three lists vests in Parliament, under Article 248. Over the decades since 1950, the exact number of entries in each list has shifted somewhat through amendments, but the lists have consistently kept the Union List as the longest, the State List as the next largest, and the Concurrent List as the smallest of the three.

Doctrine of Pith and Substance

Because a single law can touch upon more than one legislative list, courts developed the doctrine of pith and substance to decide which list truly governs a contested enactment. Under this doctrine, a law must be examined as an organic whole — having regard to the entire enactment, its main objects, and its scope — to determine its true nature and character. If the pith and substance of the law falls within a subject assigned to the legislature that enacted it, the law is valid even if it incidentally encroaches upon a subject assigned to another legislature. The doctrine thus prevents an otherwise valid law from being struck down merely because it has some secondary effect on a matter outside the enacting legislature's list.

The doctrine has been applied in several important cases. In M. Ismail Faruqui v. Union of India (1994), the Supreme Court upheld the validity of the Acquisition of Certain Area at Ayodhya Act, 1993, made by Parliament, holding that the pith and substance of the Act was the acquisition of property, not public order, and that it therefore fell within the ambit of the Concurrent List rather than being an encroachment on a subject reserved to the states. In Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra (2010), the Supreme Court upheld the validity of the Maharashtra Control of Organised Crime Act, 1999, against a challenge that it encroached upon a subject enumerated in the Union List.

Doctrine of Colourable Legislation

A related but distinct doctrine addresses legislatures that try to achieve indirectly what they cannot do directly. Under the doctrine of colourable legislation, a legislature cannot use its power over one legislative subject as a disguise to legislate on a subject actually outside its competence. When a law appears, on its face, to fall within the enacting legislature's competence, but in substance and effect lies beyond it, the law is void — what matters is the substance of the law, not its outward form. Colourable legislation typically arises either because the subject was never assigned to the enacting legislature under the Seventh Schedule, or because of a limitation imposed by the Fundamental Rights in Part III or some other constitutional restriction.

Doctrine of Incidental and Ancillary Powers

A third doctrine works in the opposite direction from colourable legislation, protecting rather than restricting the enacting legislature. Every legislative power expressly granted under the Seventh Schedule carries with it the incidental or ancillary powers necessary to give effect to that power. Where, on scrutiny, a legislative subject falls substantially within one list but only incidentally touches another, this incidental encroachment does not amount to a substantial trespass into the other legislature's field; the enacting legislature has not exceeded the field allotted to it. This doctrine, comparable to the "necessary and proper" powers doctrine in the United States, allows legislatures to legislate effectively on their assigned subjects without every incidental effect on another list being treated as unconstitutional.

Amending the Seventh Schedule

Because the Seventh Schedule lists define the very structure of Union-state legislative relations, changing them is not left to Parliament acting alone. Under the proviso to Article 368(2), a constitutional amendment altering the Seventh Schedule lists, along with certain other entrenched matters such as the powers of the Supreme Court and High Courts, the distribution of legislative powers between the Union and the states, and the representation of states in Parliament, requires ratification by the legislatures of not less than half of the states before the President gives assent. This is a more liberal ratification threshold than the three-fourths requirement under the American Constitution, but it still guarantees the states a say before the Union-state legislative balance can be altered.

The balance struck by Article 246 is itself temporarily displaced in one specific situation: while a Proclamation of Emergency is in operation, Parliament gains the power, under Article 250, to legislate on matters in the State List for the whole or any part of India, without needing to amend Article 246 or the Seventh Schedule itself.

UPSC Relevance

Prelims

• Article 246(1): Union List — Parliament's exclusive domain; Article 246(2): Concurrent List — both Parliament and states; Article 246(3): State List — states' exclusive domain (subject to Union List and Concurrent List).
• Residuary powers of legislation vest in Parliament under Article 248.
• Pith and substance test used in M. Ismail Faruqui (1994) and Zameer Ahmed Latifur Rehman Sheikh (2010).
• Article 368(2) proviso requires state ratification (at least half the states) for amendments touching the Seventh Schedule lists.

Mains

• Explain how the doctrines of pith and substance, colourable legislation, and incidental and ancillary powers together manage overlaps between the three legislative lists.
• Discuss why amendments to the Seventh Schedule require state ratification under Article 368(2), and what this reveals about the federal character of the Indian Constitution.

FAQ

What does Article 246 provide for? It distributes legislative competence between Parliament and the State Legislatures across three Seventh Schedule lists: the Union List (Parliament's exclusive domain), the Concurrent List (shared), and the State List (states' exclusive domain, subject to the other two).

Where do residuary powers of legislation rest? Under Article 248, the power to legislate on any subject not enumerated in the Union, State, or Concurrent List vests in Parliament.

What is the doctrine of pith and substance? It is the principle that a law's true character is determined by examining it as a whole, so that a law valid under one list survives even if it incidentally touches a subject in another list.

How is colourable legislation different from pith and substance? Pith and substance validates a law with only an incidental effect on another list, while colourable legislation strikes down a law that, despite its outward form, is in substance an attempt to legislate on a subject outside the enacting legislature's competence.

Why do amendments to the Seventh Schedule need state ratification? Because they affect the core distribution of legislative powers between the Union and the states, the proviso to Article 368(2) requires such amendments to be ratified by the legislatures of at least half the states before presidential assent.

Quick Revision

• Article 246(1): Union List — Parliament exclusive.
• Article 246(2): Concurrent List — Parliament and states.
• Article 246(3): State List — states exclusive (subject to Lists I and III).
• Article 248: residuary legislative power vests in Parliament.
• Pith and substance: law's true character decides validity despite incidental encroachment.
• Colourable legislation: substance, not form, determines constitutionality; indirect route to a barred subject is void.
• Incidental and ancillary powers: an expressly granted power carries powers necessary to execute it.
• Article 368(2) proviso: Seventh Schedule amendments need ratification by at least half the state legislatures.
• Article 250: during a Proclamation of Emergency, Parliament may legislate on State List matters.

Sources

• Constitution of India, Articles 246, 248, 250, 368 and the Seventh Schedule — legislative.gov.in
• M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360 — Supreme Court of India
• Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246 — Supreme Court of India

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.