Study Notes on Federalism and Constitutional Law
1. Distribution of Legislative Powers between Centre and States
Articles 245, 246 + VII Schedule
Article 245: Extent of Laws Made by Parliament and by the Legislatures of States
- Scope:
- Parliamentary Legislation: Parliament may make laws for the whole of India or any part thereof.
- State Legislature: State legislatures may make laws for the whole or any part of the state.
- Limitations:
- The power of Parliament or State Legislatures is limited to their respective territories.
- Example: Parliament can pass laws affecting the entire country, like the Goods and Services Tax Act, while state legislatures can pass laws affecting only their state, such as local tax laws.
Article 246: Distribution of Legislative Powers
- Three Lists:
- Union List: Contains subjects on which only the Parliament can legislate.
- State List: Contains subjects on which only the State Legislatures can legislate.
- Concurrent List: Contains subjects on which both Parliament and State Legislatures can legislate.
- Example:
- Union List: Defense, Foreign Affairs.
- State List: Police, Public Health.
- Concurrent List: Criminal Law, Marriage and Divorce.
- Article 246(3):
- States can legislate on matters in the Concurrent List as long as it does not conflict with central laws.
VII Schedule:
- Part A: Union List – List of subjects exclusive to the Union.
- Part B: State List – List of subjects exclusive to the States.
- Part C: Concurrent List – List of subjects on which both Union and States can legislate.
- Example: If a central law and a state law on a Concurrent List subject conflict, the central law prevails, unless the state law has received President’s assent.
2. Center-State Relations
Article 298: Power of the Union and the States to Carry on Trade, etc.
- Union Power:
- The Union has the power to carry on trade or business with the States and other countries.
- Example: The central government can operate public sector enterprises like Railways.
- State Power:
- States can also carry on trade or business within their territory.
- Example: A state government can operate state transport services.
- Restrictions:
- Both Union and States must ensure that their trade or business operations do not interfere with the rights of other States or the Union.
3. Freedom of Trade, Commerce, and Intercourse
Articles 301 – 307
Article 301: Freedom of Trade, Commerce, and Intercourse
- Right to Free Trade:
- Trade, commerce, and intercourse throughout India shall be free.
- Example: Goods can move freely from one state to another without any trade barriers.
Article 302: Power to Impose Restrictions on Trade, Commerce, and Intercourse
- Central Government Power:
- The Union can impose restrictions on trade, commerce, and intercourse in the public interest.
- Example: Restrictions for the protection of public health or the regulation of trade.
Article 303: Restrictions on the Power of the Union and States to Make Laws
- Prohibition of Discrimination:
- Laws cannot discriminate between States or have protectionist measures that hinder trade.
- Example: States cannot impose taxes on goods coming from other States that are not imposed on goods within their own state.
Article 304: Restrictions on Trade, Commerce, and Intercourse
- State Government Power:
- States can impose reasonable restrictions on trade and commerce to protect local industries.
- Example: State laws to regulate and promote local industries may be allowed.
Article 305: Saving of Existing Laws
- Existing Laws Validity:
- Existing laws that are inconsistent with Article 301 but have been enacted before the commencement of the Constitution are saved.
- Example: Pre-constitutional laws affecting trade and commerce remain valid.
Article 306: Formation of New States and Union Territories
- Freedom of Trade and Commerce:
- New states or Union territories will have the same freedom of trade and commerce as existing states.
- Example: Newly formed states will be subject to the same constitutional provisions regarding trade and commerce.
Article 307: Appointment of an Authority to Regulate Inter-State Trade and Commerce
- Regulatory Authority:
- The President may appoint an authority to ensure that the freedom of trade, commerce, and intercourse is not obstructed.
- Example: The central government can set up regulatory bodies to oversee compliance with trade laws.
4. The Amendment of the Indian Constitution
Article 368: Amendment of the Constitution
- Procedure for Amendment:
- By Parliament: Amendments can be initiated by Parliament and must be approved by a majority of its members.
- Special Procedure: Some amendments require ratification by at least half of the state legislatures.
- Types of Amendments:
- Simple Majority: Changes to schedules, minor adjustments.
- Special Majority: Requires approval by two-thirds of both houses of Parliament.
- Ratification by States: Amendments affecting federal structure require ratification by at least half of the state legislatures.
- Example: The 73rd and 74th Amendments (Panchayati Raj Institutions and Municipalities) were passed by Parliament and ratified by state legislatures.
5. The Doctrine of Prospective Overruling
Definition:
- Prospective Overruling means that a new ruling by a court does not apply retroactively but only to future cases.
- Purpose: To avoid disturbing settled transactions and legal positions before the court’s decision.
- Example: If the Supreme Court changes its interpretation of a law, the new interpretation will apply only to future cases, not past ones.
Case Example: Keshavananda Bharati v. State of Kerala [1973] 4 SCC 225
- The doctrine was discussed in the context of constitutional amendments and their effects.
6. Limitation on Constitutional Amendment – The Basic Structure Theory
Article 368:
- Basic Structure Doctrine:
- Established by the Supreme Court in Keshavananda Bharati v. State of Kerala [1973] 4 SCC 225.
- Doctrine: Parliament can amend the Constitution but cannot alter its “basic structure.”
- Basic Structure Includes:
- Supremacy of the Constitution: The Constitution is the supreme law.
- Federalism: Division of powers between the Union and the States.
- Secularism: State neutrality in matters of religion.
- Democracy: Government based on the will of the people.
- Rule of Law: Law applies equally to all individuals.
- Judicial Review: The power of the judiciary to review the constitutionality of laws.
- Example: The Supreme Court has invalidated constitutional amendments that were found to undermine the basic structure, such as the 42nd Amendment Act, which was challenged for attempting to alter the federal structure.
