Legislative Competence

What is Legislative Competence

Legislative competence refers to authority limited by the constitution, in respect to whether the Union or State can make laws on specific subject matters. This authority is derived and limited from the Indian Constitution, particularly through Articles 245, 246 and 256 and the Seventh Schedule which divides the subject matters into three categories, like List I also known as. the Union List which deals with the pan-Indian subjects, List II also known as the State List which deals with local matters and List III also known as the Concurrent List which deals with shared subjects.

Key Provisions

The distribution of legislative powers are schematic in nature and are laid down in the constitutional provisions between Articles 245-254. All subject matters related to the legislative powers have been listed in the seventh schedule of the Indian Consitution. The lists are known as the Union list, the state list and the concurrent list. Articles 245, 246 and 246-A define legislative competence Union, State and Concurrent subject matters and GST. Article 247 supports Union law by allowing the Parliament to set up additional courts. Article 248, 249 and 250 grants the Parliament special powers over residuary matters state subjects during national interest or emergency. Articles 251, 252, 253 and 254 handle conflict resolution between central and state laws, cooperative legislation among states and treaty obligations.

Union's Overriding Powers and Judicial Affirmation of its Supremacy

The Constitution has set up a mechanism that prioritises the Union's authority in legislative matters . Articles 249,250, and 252 specifically cater to this by outlining special situations where parliament is granted the power to legislate on matters within the state list.

- Article 249 grants power to the parliament on legislating state subjects, and this can be done if it fulfils the criteria of the Rajya Sabha passes a resolution with a two-thirds majority , declaring the matter to be of national interest.

- Article 250 allows parliament to legislate on any state subject in case of national emergency.

- Article 253 permits the parliament to enact laws for the implementation of international treaties , agreements , conventions or decisions , even on state matters .

- Furthermore , Article 252 is an important , yet overlooked mechanism that allows the Parliament to legislate matters of the state list if two or more states pass resolutions to allow enacting such a law. Post enactment, this law is applicable only to those states that passed the resolutions and consented to it , but it allows other states to adopt it later. The states consenting cannot amend or repeal the enactment and the power to do so is vested by the parliament only. This is often considered imbalanced and centralised since a state-initiated matter ultimately is controlled by the central body , the parliament , making it inflexible, imposing strict rigidity.

Indian courts have upheld Parliamentary supremacy in legislative matters. This can be seen in the case of State of West Bengal v. Union of India (1962) where the court held in favour of legitimising a strong centre with overriding legislative authority and stated that the indian union is not a compact body of sovereign states , unlike the USA's. Similarly, in Hoechst Pharmaceuticals v. State of Bihar (1983) , it was ruled by the Supreme Court that the central body's law on price control under the Union List overrides the state laws on trade , which were in conflict. These judgements play a major role in understanding the limitation of authority/autonomy of the states in cases where the union interprets its powers for its intervention, even though it is said to maintain constitutional balance .

Lists under Seventh Schedule

Union list

The Union list contains 97 subjects, these subject matters are regarding defence, foreign affairs, communications, coinage and currency, banking, foreign and inter-state trade and commerce, income tax, census etc. Any subject matter in the interest of the Union and in respect to uniformity of legislation is a part of the Union List. In relation to the matters enlisted within this list, the power to exercise against these matters will be in the hands of the Parliament.

State list

The State list contains 66 subjects, these subject matters are regarding public order, police, public health and sanitation, local government, education and any other subject matter related to local interests. Part A and Part B of the Indian Consitution containted within the First Schedule, the items within these lists will be taken care by the legislature of any state.

Concurrent List

The Concurrent list contains 47 subjects, these subject matters are regarding criminal law, criminal law procedure marriage and divorce, contracts, welfare of labour, trade unions economic and social planning etc. Both the parliament and the legislature of any state can exercise exclusive powers against these subject matters.

Assessing and reforming the Seventh Schedule

Issues and Reforms of the Seventh Schedule

While the Constitution has a three-list structure to maintain clarity on the distribution of powers , the overlaps between them have become more common in practice. An example for this includes the term "education" being added to the concurrent list due to the 42nd amendment, but it was originally designated as a state subject only. Similarly , environment protection , though not listed anywhere particularly, comes under the purview of Public health (under state list ) , Forests ( under concurrent list) and international duties ( under union list), and this creates jurisdictional conflict between the subjects and interrupts the state's ability to autonomously address their local needs.

The Seventh Schedule is considered outdated in several contexts, especially under the state list for entries such as "markets and fairs" or "veterinary training." These are considered less relevant owing to the digital and interconnected economy we have today. Emerging issues such as cybersecurity and digital taxation, along with other matters related to the digital world (AI, data, etc.,) have not been specifically placed under any of the three lists. Therefore, this creates a significant gap that needs to be filled by the Union list through its broad interpretations, lacking a definitive structure.

Scholars and policymakers have stressed the need for urgent reforms of the Seventh Schedule to address 21st-century legislative challenges. Some of the recommendations include:

1. Amend or remove outdated entries.
2. Allocating new age, modern topics to their respective relevant lists
3. Narrowing the scope of the Concurrent list to reduce overlapping of subjects and their entries and minimise conflicts.
4. Establish a separate Inter-State list / Body to address the overlapping legislative issues and work collaboratively on conflicts instead of depending solely on the concurrent list's powers.

These reforms may help restore governing legislative balance and help address modern era issues while upholding indian federalist principles in a democratic and inclusive manner.

Principle-based framework: reforming legislative competence under Seventh Schedule

An analytical model inclined to being principle based has been proposed to reassess and reform the Seventh Schedule to make it in a more structured and constitutionally grounded manner. This model has been designed to determine the suitable allocation of legislative subjects between the Union and the States specifically there is a certain difficulty arising due to overlaps, outdated entries and governance issues. Thsi model is designed under the pillar of four foundational princples, two of which are grounded within the Constituent Assembly's original constitutional vision and two that have evolved in India's administrative and constitutional federal evolution.

One of the core constitutional values that was missing during the backdrop of partition, secessionist anxieties and lack of national integration was the ideology of the unity and integrity among the citizens of India. This is exactly what the first principles implements so as to stabilize the country not only in political means but also in social and cultural aspects. Threats that affect and subjected to national security, international diplomacy and maintenance of essential value consenses are essentialy governed der centralised law making authority. This is so as to maintain an integrated national identity by managing external threats and conducting foreign relations.

The core goal of the second principle is to create a balanced economic development, by means of centralization which focuses on the public sector economy and national development programs. These improvements are often directed in developing infrastructure, fulfilling the constituional promise of a welfare country and regulation of markets. The third principle on the other hand, focuses on cultural autonomy and diversification. India being a secular country, has plethora of regional identities, so rather than having to suppress these religions and make one religion prominent, the constitution accommodated these religions and encouraged diversification. This principle enables the country to being close to linguistic, ethnic and cultural context through recognizing lack of uniformity within states and establishing specific protections and governance regulation for different groups of religions.

The fourth principle establishes responsive governance, based on the decentralization inorder to promote policymaking, accountability and service delivery effectively. While the earlier principles focus more on assigning power and authority to the union, this principle allows such authority to be navigated to the States and local governments. Since States and local governments are much more aware about the community-specific needs and preferences , they might be able to formulate policies that understand and work for these populations. This model takes works of Tiebout and Hayek, whichstates that decentralized policies by the government fosters more benefits due to local information that is easily available, higher responsiveness to citizens and lesser possibility of the efficiency of the policy failing.

Thus, these four principles provides unity and integrity of the country, balanced development of the economy, cultural autonomy and diversification and citizen-centric governance, guiding considerations for subject matters within the Seventh Schedule to be placed in emerging domains such as digital governance, artificial intelligence and data protection. Based on which principle a subject matter is consistent with either, union list, state list or concurrent list and it can placed in such list accordingly. This principle-based framewrok provides an alternative to ad hoc legislative overlaps, regarding a balance is both aligned with constitutional values and policy-focused.

Doctrine of repugnancy

The Concurrent List holds a special position as it allows both Parliament and State Legislatures to legislate on the same subject matters. While this shared competence allows for a cooperative federal structure, it also raises important questions of conflict and supremacy. Article 254 plays a crucial role in resolving legislative conflicts. It provides that if any provision of a law made by a State Legislature is repugnant to any provision of a law made by Parliament on a matter in the Concurrent List, then the law made by Parliament shall prevail, and the state law shall, to the extent of the repugnancy, be void.

However, clause (2) of Article 254 introduces a safeguard for state laws. If a state law, which is inconsistent with a central law, has received the President’s assent, then it will prevail in that state. This balance attempts to maintain the federal character of the Constitution while also upholding the supremacy of Parliament in matters of national interest.

The Doctrine of Repugnancy has been clarified in a series of landmark cases. In M. Karunanidhi v. Union of India (AIR 1979 SC 898), the Supreme Court laid down a four-pronged test to determine repugnancy. The Court held that repugnancy arises only when both laws are in conflict and cannot coexist. Similarly, in Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR 1983 SC 1019), the Court held that even where the state law is enacted for a local concern, if it is inconsistent with a central law made under the Concurrent List, the central law will prevail unless the state law has received presidential assent.

Distinction between Legislative competence and Repugnancy

The significant difference between legislative competence sand doctrine of repugnancy is that they are two separate but sequential tests for the validity and application of legislation. Legislative competence is specifically governed by Articles 245 to 246 and revolves around the concern of whether the legislature has the constitutional authority to enact a law pertaining to a particular subject matter. Repugnancy however originates under Article 254 and arises only after competence has been established dealing with conflict resolution when both parliament and a state legislature legislate on the same matter in the concurrent list. There are certain judicial matters that have examined and shaped this, by laying down the conditions for invoking reougnancy.

The Supreme Court in M.Karunanidhi v. Union of India, held that repugnancy can only be invoked when both the union and state law must be validly enacted under their respective entries , the law is enacted on the same subject matter showing a substantial overlapping issues and there must be a a direct and irreconcilable conflict, thus making it impossible to operate simultaneously. In Hoechst Pharmaceuticals Ltd v. State of Bihar, the court clarified that when a state law is enacted in relation to local matters as long at it is consistent with the central law under the concurrent list and has received presidential assent under 254(2), it would not be rendered void. Thus, legislative competence precedes repugnancy, law must first be within the lawmaker's jurisdiction, past this condition whether or not the law muct yield to a conflicting law made by another body would be taken into consideration.

Doctrine of Pith and Substance and Interpretation Techniques

The Doctrine of Pith and Substance plays a crucial role in determining the validity of legislation where there is an apparent overlap between the subjects enumerated in the Union, State, and Concurrent Lists. It is especially relevant in the context of Concurrent Legislative Powers, where conflicts often arise between the legislative competence of Parliament and that of State Legislatures.

This doctrine essentially focuses on the true nature and character of the legislation rather than its incidental effects. If the "pith and substance" of a law falls within the legislative competence of the body enacting it—even if it incidentally encroaches upon a subject in another list—the legislation is considered valid. This principle ensures that legislative powers are interpreted in a practical manner, avoiding unnecessary invalidation due to minor overlaps.

Courts have consistently upheld this doctrine to preserve legislative intent and functionality. For instance, in cases where state laws on education or trade intersect with central legislation, the judiciary has applied the doctrine to determine whether the encroachment is significant or merely incidental.

Doctrine of pith v aspect theory

This doctrine primarily assesses the nature and objective of the legislation when it overlaps between the three lists in the Seventh Schedule. This doctrine derives support form the language of Article 246, which allows legislatures to make any law in respect to the subject matters entailed in their respective lists, this means that while there exists substantial connection there is no absolute exclusivity limiting it to such subject matters within a particular list only. To refine this process of verifying overlapping legislative subjects, Indian courts have used the Aspect theory, which allows different legislatures to look at the same subject matters in different perspectives or aspects, focusing on the object and scope of the law.

The aspect theory, as the legal scholar V.Niranjan has stated "it not essentially a separate doctrine but a different expression of the underlying principle that is captured in pith and substance." The aspect theory allows both Union and State legislatures to legislate on distinct aspects of a shared subject matter which in turn reinforces the flexibility of the constitutional scheme as they fall within the bounds of legislative competence. For example, if we take education as a subject matter, there are multiple aspects to work on like technical education and vocational traning of labour which both falls under concurrent list and religious instruction in institutions falls under the same list.

The right of entitlement to legislate on aspects of subject matters is applicable to each and every legislature. As in, the Parliament can set national standards for technical education and states can look at the governing the religious and moral content within such local institutions. Through this approach, law making is more cooperative and context-sensitive in nature allowing for plurality and flexibility in terms of governance.

International Experience

Federal Model - the United States of America

The U.S. Constitution distributes lawmaking authority between the federal Congress and the states through reservation and enumeration. Section 8 specifies the federal powers, such as taxation, national defence, and regulating commerce among the states. The powers granted under regulating commerce are notably extensive. This was affirmed in the case of Gibbons v. Ogden (1824), where the Supreme Court issued a judgement stating that the commerce power extends to virtually all interstate economic activities. Additionally, the "Necessary and Proper" clause permits Congress to enact laws to establish its enumerated powers, whereas the Tenth Amendment reserves this power to the people. This demonstrates that the framework has a limited central government and helps foster state sovereignty, unlike India, which believes in central sovereignty and allows dramatic centralisation of powers . However, the U.S. Constitution does contain a "Supremacy Clause" that ensures federal law overrides state law; nonetheless, the scope for this is narrower than in the Indian Constitution, which follows broad union interpretation, thus reducing the potential for conflict compared to India.

Unitary Model - the United Kingdom

The United Kingdom follows a unitary parliamentary system and they do not have a written constitution to allocate these powers , unlike India and the US. Their doctrine of Parliamentary sovereignty holds the UK parliament as the supreme lex - the supreme legal authority / law. They have the power to create or remove a law. The parliament can legislate on any matter and they do not follow a structured list of subjects. But it does grant very limited autonomy to Scotland, Wales and Northern Ireland via devolution statutes. These devolved powers allow the aforementioned states' legislatures to pass laws on dissolved matters such as health , education , etc, and they are statutory and not constitutional. The UK Parliament holds the ultimate power to legislate on all matters, making it fully sovereign and holding the authority to even amend or repeal devolution statutes.