Residuary Power Art.

248

TITLE A shift from traditional parliamentary legislation to judicial legislation with reference to
Residuary Power

INTRODUCTION The topic for research is, A shift from traditional parliamentary legislation
to judicial legislation with reference to Residuary Power To which the statement of object and
reasons are as follows: U. S. A is regarded as the example of true federation, whereas India has
followed the Canadian model of federation and is regarded as the example of loose federation. In
the words of D. D. Basu, the Constitution of India is neither purely federal nor unitary, but is a
combination of both.

It is a union or a composite of a novel type. It is often defined to be quasi-federal in nature.

Under Indian Constitution seventh schedule has important place in regards with the distribution
of power. Distribution of power is one of the important features of Federalism. The legislative
power under Indian Constitution has been distributed amongst the union and the states in three
different lists. As law has to adapt according to changing nature of society therefore Indian
Constitution has envisaged the provision of the residuary power under Art. 48. The scope of
residuary power is very wide and differs in various federations. Constitution vested the power to
legislate on residuary matters with the parliament. Even the judiciary has also played vital role in
interpreting the provision of Constitution as to residuary power. Judiciary has given wide
meaning to Art. 248 in various cases. Judiciary with changing needs of the society has laid down
guidelines on subjects not enumerated in any lists of seventh schedule as well as on those
subjects where parliament has never touched Same has been done by judiciary in the light of
judicial activism for bringing complete justice. This indicates that there has been judicial
legislation as residuary matters, which has become one of the challenges with respect to the
Constitution. JUSTIFICATION Article 248 deals with the concept of residuary power.
According to which, Parliament can legislate laws as to residue, which indicates the strong centre
with federal feature. The concept of residuary power differs from country to country, it means
differently in India and U. S. A respectively. The residuary power as laid down under Article.
248 of Indian Constitution has been widely interpreted by the Indian judiciary. In order to bring
complete justice honorable Supreme Court, through various judgments laid down the laws on
subject being the residue. Judiciary with changing needs of the society has laid down guidelines
on subjects not enumerated in any lists of seventh schedule as well as on those subjects where
parliament has never touched. This indicates that there has been judicial legislation as residuary
matters.

Therefore, researcher herein is keen to research on residuary power by comparing it with India &
U. S. A, further analyzing the concept of residuary power through judicial interpretation and
justifying the shift from parliamentary legislation to judicial legislation in respect with residuary
power.
 IMPORTANCE AND SIGNIFICANCE Distribution of power is one of the main features of
federal Constitution. Under Indian Constitution there has been distribution of power as: * Union
List * State List * Concurrent List

The above three lists are exhaustive, as it covers all possible items. Union List consists of 97
items, State List consists of 66 items and Concurrent List consists of 47 items. Item 97 of Union
List deals with residuary power. Article. 248 along with item 97 vests the exclusive power to
make laws on residuary matter with Parliament. As law has to adapt according to changing
nature of society therefore Indian Constitution has vested the power to the same with parliament.
The judiciary has also played vital role in interpreting the provision of Constitution as to
residuary power.

Judiciary has given wide meaning to Art. 248 in various cases. Along with Art. 248, Art. 32 and
142 plays significant role in bringing complete justice through laying down the guidelines in
various judgments by honorable Supreme Court on those subject on which parliament has not yet
legislated any kind of law or the on those subject is not enumerated in any kind of the lists in
seventh schedule. Indian Constitution only lay down the provision as to residuary power of the
parliament and not of the judiciary.

But through various landmark judgments it can be analyzed that judiciary also has important role
in law making process in residuary matters through giving guidelines in various judgment.
RESEARCHABLE QUESTION * Whether vesting of residuary power with parliament is
justifies the federal character of Indian Constitution?

* How the concept of residuary power differs in countries like India, U. S. A, Australia and
Canada?

* Whether there has been shift from parliamentary legislation to judicial legislation with respect
to residuary power?

SCOPE

Distribution of power is one of the important features of Federalism. Under Indian Constitution
powers are distributed amongst the union and the state as per the seventh schedule as in: * Union
List * State List * Concurrent List The three different lists in seventh schedule are exhaustive in
nature. Entry 97 of list I along with Article 248 deals with the concept of residuary power.
According to which power to makes laws on the subjects not enumerated in any of the three lists
mentioned in seventh schedule vest with the parliament.

The scope of residuary power is very wide and differs in various federations. Therefore,
researcher herein restricts the scope of the research to the extent of focusing on comparative
study residuary power in India, U. S. A, Canada and Australia. Researcher also limits the scope
of the research by further focusing on a shift from traditional parliamentary legislation to judicial
legislation with reference to Residuary Power. RESEARCH METHODOLOGY There are two
kinds of Research method: A] Doctrinal research method B] Empirical research method

Doctrinal method deals with research based on books, judgment, internet etc. It is also called as
Arm chaired research. Empirical method deals with research based on survey, interviews etc. It
is expensive time consuming method. In this research, researcher uses Doctrinal Research
Method to analyze the data. Doctrinal research helps to understand what the law is on a
particular issue. It is concerned with analysis of the legal doctrine and how it has been developed
and applied. This type of research is also known as pure theoretical research.

It consists of either a simple research directed at finding a specific statement of the law or a more
complex and in depth analysis of legal reasoning. The sources of data collection may be
categorized into primary source and secondary source of data collection for the purpose of
Doctrinal Research. Primary sources in legal research includes, original data like Constitution,
National Gazette which passed by Legislature, Rules, Regulations, Statutory Orders, Case
Reports that publish in Judicial Pronouncements. Secondary sources of data collection furnish
the information derived from primary sources.

These sources organize the information in a systematic manner. These secondary sources include
textbooks, treatises, commentaries on statutes, abstracts, dictionaries, encyclopedias, indexes,
journals, reviews. Textbooks and legal treatises offer a researcher proper idea of the subject and
enable him to find several other useful sources of information on the topic of his research.
CHAPTER 1 CONCEPT OF FEDERALISM CHAPTER 1: A. WHETHER THE
CONSTITUTION IS FEDERAL? There is no universally agreed definition of federation.
Scholars tended to regard the oldest federal constitution, the constitution of the U.

S. , as the paradigm example or model. But now there is rethinking. The scholars are adopting
the view that question whether a state is federal or unitary is one of degrees and the answer will
depend upon the number of federal features possessed by it. It has also stated that federation is
more functional than institutional concept. Any theory that asserts that there are certain inflexible
features without which a political system cannot be federal ignores the fact that institutions are
not the same in different social and cultural environments. Dr. D. D.

Basu took a very pragmatic yet forward looking view when he remarked that the constitution is
neither purely federal not purely unitary but is a combination of both. It is a union or composite
state of noval type. B. TEST OF FEDERATION: Prof. K. C. Wheare called the constitution as
having created a unitary state with subsidiary federal features rather than a federal state with
subsidiary unitary features. But subsequently he revised his opinion and though it proper to label
our constitution as quasi-federal. It seems that Indians have taken a practical non-dogmatic view.

Dr. Ambedkar in his speech in the constituent Assembly had stated that the constitution is both
unitary as well as federal according to the requirements of time and circumstances. The Supreme
Court has in Automobile Transports Case characterized our polity as federal. In Kesavanand
Bharatis Case some of the judges considered federation is a basic feature of our constitution. A
larger nine judges bench in Bommais Case has clearly enunciated that our constitution is
federal though only some of the judges considered federalism as a basic feature. C.

CHARACTERISTICS OF A FEDERATION: A federal constitution generally possesses the

following 5 characteristics- i. Dual government and distribution of powers: dual or two sets of
governments. In a unitary state as the name indicates there is only one government. That national
government. In a federation two sets of governments co-exist. The national also called central or
federal government and government of each constituent state. These two governments derives
there power from the same source the constitution and not controlled by the other but by the
constitution.

But it would be erroneous to assume that they work in watertight compartment. They govern the
same people and their object is to serve the same populace so naturally their functions many at
times touch and affect each other. They must necessarily work not in isolation but in active co
operation with the other. Importance of the word union: a) the constitution in Art. 1(1) states
India, that is Bharat, shall be union of states. Dr. Ambedkar had stated in the constituent
assembly that the word union has been used advisedly because it has certain advantages.

It indicates that (i) the Indian federation is not the result of an agreement among the states and
(ii) the state has no right to secede. It may be noted that the word union was employed by
Stafford Cripps in his proposals and was also used in the cabinet mission plan. The word union is
not decisive of any characteristics. The U. S. Constitution which is a model of federation uses the
word. The Union of South Africa Act, 1909 which created a unitary constitution employed the
same word. Even the earlier constitution of Soviet Russia called it Union of Soviet socialist
Republic.

So labels given by the draftsman are not conclusive evidence. ii. Written Constitution: in order to
make the distribution clear and permanent it must be reduced to writing and must be made
amenable to amendments and changes by observing the procedure laid down in the constitution
itself. Left to unwritten conventions or understanding it would create fluidity which in turn
would generates uncertainty leading to dissatisfaction among the constituent units. iii.
Supremacy of the Constitution: constitution as regarded as a higher law which is there for the
union and states to obey and honour.

None of the units has the authority to override or disregard the constitution. In some cases the
union may have overriding powers but not in relation to the divisions of power. Federal
constitutions guard attentively the distribution of powers and do not tolerate encroachments. Just
as public corporations derive their powers from the act creating them the two sets of government
owe their power to the constitution and are in a way controlled by it and function within the
limits marked by it. iv. Rigidity: rigidity does not mean that the constitution is not subject to any
change and must remain in the same static condition.
But as a corollary of the necessity of having a written constitution it is required that the
provisions containing and regulating the distribution of powers must not be left to the discretion
of the centre or states. The amending process should lay down as a precondition the concurrence
of both. Our constitution provides amendment by special majority at the centre followed by
ratification by at least half of the states. In the U. S. A. it is ? of the states. v. Authority of courts:
in a federation there is possibility of a state encroaching upon the field of another state.

There is also the possibility of the union trespassing on the rights of one or more state as also the
state purporting to exercise the functions of the union. To take care of such contingencies a
federation contemplates an independent judicial body which will decide the rights of the units
and keep them confined within their limits. The courts have the last word in regard to questions
involving interpretation of the constitution. Our constitution confer original jurisdiction on the
Supreme Court in regard to federal matters Art. 131.

Thus the Supreme Court has been constituted arbiter in all disputes involving the units. D.
CONSTITUTION HAS ALL THE FIVE CHARACTERISTICS: The five characteristic features
recounted above are found in our constitution. Our constitution is written documents which
establish a dual polity with, One Central and 28 State Governments respectively, each deriving
its powers from the supreme law of our land, the Constitution. The powers of the union and the
states are plenary within the boundaries defined by the constitution. The constitution is endowed
with supremacy.

The centre alone cannot mould or change it. Federal features may be amended with the
concurrence of both sets of government as required by Art. 368 of the constitution. To guard the
division of legislative and administrative powers between the two sets of government the
constitution has set up the Supreme Court. The Supreme Court may invalidate and stop any act
which transgresses the division. It may be an administrative act or a legislative measure. The
Supreme Court may be moved by any person aggrieved by violation of the distribution of powers
or by any state or the union.

It is the existence above features in our constitution that led the Supreme Court to describe our
constitution as federal. E. FEATURES OF CONSTITUTION INCONSISTENT WITH
FEDERAL PRINCIPLE: There are certain provisions contained in the constitution which are
departure from the federal principle or to put it in another way it may be called Indian
modification of the federal principle. a) One constitution for the states. b) Single citizenship. c)
States not indestructible. d) More legislative powers conferred on the union. e) States field of
legislation can be invaded by the centre. ) Unions power to give directions to the states. g)
Appointment of Governor. h) During financial emergency. i) Control by bureaucracy. j)
Appointment of High Court judges. k) No equality of state representation. F. EVIDANCE OF
FERERAL SPIRIT: Any perusal of the political events would reveal that the states are not the
agent or instrumentalities of the centre. In the spite of the strong centre tendency the states have
been able to assert their rights. There have been territorial disputes between Karnataka and
Maharashtra; and Punjab and Haryana. Disputes over sharing of the water took place between
Karnataka and Tamil Nadu.

Nagaland, Tripura and Manipur have laid claims to each others territory. A more stark fact
supporting the existence of federalism is the spectacles of different parties in power in different
states. In which Bengal and Kerala the left front has formed the government a number of times.
It is the success of federalism in giving effect to the aspiration of the people that there is a never
ending demand for creation of new states. In the constitution of 1950 there were 9 part A and 5
Part B states. As of today after abolition of Part B states the total number of states is 28.

Another piece of evidence is the loud clamour for obtaining more grants from the centre and
assertion of autonomy in matters pertaining to law and order especially in West Bengal and
Bihar. The central government has been paying more to the state government then recommended
by the Finance Commissions appointed under Art. 280. Whatever have been the doubts of some
foreign writers, our own scholars have proved right and the federal principle can be felt and seen
in India in vigorous operation in the polity. From the above discussion it is seen that the
constitution of India neither is the complete federation nor it is completely unitary.

It has the features of both. Sir Ivor Jennings was of the view that India has a federation with a
strong centralizing policy. In the words of D. D. Basu, the Constitution of India is neither purely
federal nor unitary, but is a combination of both. It is a union or a composite of a novel type. It is
often defined to be quasi-federal in nature. Thus we can safely say that, it is primarily Federal
having some unitary features. Distribution of power plays vital role in federal polity. Therefore,
Researcher herein has elaborated the distribution of power, which is one of the important
features of federal constitution, in following chapter.

CHAPTER 2 DISTRIBUTION OF LEGISLATIVE POWER IN FEDERAL POLITY

CHAPTER 2: A. NATURE OF THE UNION: Though there is a strong admixture of unitary bias
and the exceptions from the traditional federal scheme are many, the constitution introduces a
federal system as the basic structure of government of the country. The union is composed of 28
states and both the union and the states derived their authority from the constitution which
divides all powers, - legislative, executive and financial, as between them.

The judicial powers are not divided and there is a common judiciary for the union and the states.
The result is that the states are not delegates of the union and that, through there are agencies and
devices for Union control over the states in many matters,- subject to such exceptions, the states
are autonomous within their own spheres as allotted by the constitution, and both the union and
the states are equally subject to the limitations imposed by the constitution, say, for instance, the
exercise of legislative powers being limited by Fundamental Rights.

Thus, neither the union legislature(parliament) nor a State Legislature can be said to be
sovereign in the legalistic sense,- each being limited by the provision of the constitution
effecting the distribution of legislative powers as between them, apart from the Fundamental
Rights and other specific provisions restraining their powers in certain matters. B. The scheme of
distribution of legislative powers:

As has been pointed out at the outset, a federal system postulates a distribution of powers
between the federation and the units. Though the nature of distribution varies according to the
local and political background in each country, the division, obviously, proceeds on two lines- i.
The territory over which the Federation and Units shall, respectively, have their jurisdiction. ii.
The subject to which their respective jurisdiction shall extended.

The distribution of legislative powers in our constitution under both heads is as follows: I)
Territorial Extent of union and state Legislation:- as regards the territory with respect to which
the legislature may legislate, the state Legislature naturally suffers from a limitation to which
Parliament is not subject, namely, that the territory of the union being divided amongst the states,
the jurisdiction of each state must be confined to its own territory.

When, therefore, a state legislature makes a law relating to a subject within its competence, it
must be read as referring to persons or objects situated within the territory of the state concerned.
A State Legislature can make laws for the whole or any part of the State Legislature to enlarge its
territorial jurisdiction under any circumstances except when the boundaries of the state itself are
widened by an Act of Parliament.

Parliament has, on the other hand, the power to legislate for the whole or any part of the
territory of India, which includes not only the states but also the Union Territories or any other
area, for the time being, included in the territory of India Art. 246(4). It also possesses the power
of extra territorial legislation Art. 245 (2), which no States Legislature possesses.

This means that laws made by Parliament will govern not only persons and property within the
territory of India but also Indian subjects resident and their property situated anywhere in the
world. No such a power to affect persons or property outside the borders of its own states can be
claimed by a State Legislature in India. II) Distribution of Legislative Subjects: - as regards the
subject of legislation, the constitution adopt from the Governments of India Act, 1935, a
threefold distribution of legislative powers between the union and the states Art. 246.

While in the United States and Australia, there is only a single enumeration of powers,- only the
powers of the Federal Legislature being enumerated, - in Canada there is a double enumeration,
and the government of India Act, 1935, introduced a scheme of threefold enumeration, namely,
federal, provincial and Concurrent. The constitution adopts this scheme from the Act of 1935 by
enumerating possible subjects of legislation under three Legislative Lists in Schedule VII of the
constitution. List I or the Union List includes 97 subjects over which the union shall have
exclusive power of legislation.

These include defense, foreign affairs, banking, insurance, currency and coinage, Union duties
and taxes. List II or the State List comprises 66 items or entries over which the State Legislature
shall have exclusive power of legislation, such as public order and police, local government,
public health and sanitation, agriculture, forests, fisheries, State taxes and duties. List III gives
concurrent powers to the Union and the State Legislatures over 47 items, such as Criminal law
and procedure, civil procedure, marriage, contract, torts, trust, welfare of labour, economic and
social planning and education.

In case of overlapping of a matter as between the three Lists, predominance has been given to the
Union Legislature, as under the Government of India Act, 1935. Thus, the power of the State
Legislature to legislate with respect to matters enumerated in the State List has been made
subject to the power of Parliament to legislate in respect of matters enumerated in the Union and
Concurrent Lists, and the entries in the State List have to be interpreted accordingly. In the
concurrent sphere, in case of repugnancy between a Union and a State law relating to the same
subject, the former prevails.

If however, the State law was reserved for the assent of the President and has received such
assent, the state law may prevail notwithstanding such repugnancy, but it would still be
competent for Parliament to override such state law by subsequent legislation Art. 254(2). C.
EXPANSION OF THE LEGISLATIVE POWERS OF THE UNION UNDER DIFFERENT
CIRCUMSTANCES: While the forgoing may be said to be an account of the normal distribution
of the legislative powers, there are certain exceptional circumstances under which the above
system of distribution is either suspended or the powers of the Union Parliament are extended
over state subjects.

These exceptional or extraordinary circumstances are a) In the National Interest. Parliament

shall have the power to make laws with respect to any matter included in the State List, for a
temporary period, if the council of States declares by a resolution of 2/3 of its members present
and voting that it is necessary in the national interest that Parliament shall have power to legislate
over such matters. Each such resolution will give a lease of one year to the law in question.

A law made by Parliament, which Parliament would not but for the passing of such resolution
have been competent to make, shall, to the extent in the incompetency, cease to have effect on
the expiration of a period of six months after the resolution has ceased to be in force, except as
respects things done or omitted to be done before the expiration of the said period Art. 249. The
resolution of the council of state may be renewed for a period of one year at a time. b) Under a
Proclamation of Emergency.

While a Proclamation of Emergency made by the President is in operation, Parliament shall

have similar power to legislate with respect to State subjects. A law made by Parliament, which
Parliament would not but for the issue of such proclamation have been competent to make, shall,
to the extent of incompetency, cease to have effect on the expiration of a period 6 months after
the proclamation has ceased to operate, except as respects things done or omitted to be done
before the expiration of the said period (Art. 250). c) By agreement between states.
If the Legislatures of two or more States resolve that it shall be lawful for Parliament to make
laws with respect to any matters included in the State List relating to those States, Parliament
shall have such power as regards such states. It shall also be open to any other State to adopt
such Union legislation in relation of itself by a resolution passed in that behalf in the Legislature
of the State. In sort, this is an extension of the jurisdiction of Parliament by consent of the State
Legislatures Art. 252. d) To implement treaties.

Parliament shall have the power to legislate with respect to any subject for the purpose of
implementing treaties or international agreements and conventions. In other words, the normal
distribution of powers will not stand in the way of Parliament to enact legislation for carrying out
its international obligations, even though such legislation may be necessary in relation to a state
subject Art. 253. Examples of such legislation are: Geneva Convention Act, 1960; Anti
Hijacking Act, 1982; United Nations Privileges and Immunities Act, 1947. e) Under a
proclamation of a failure of constitutional machinery in the states.

When such a Proclamation is made by the President, the President may declare that the powers
of the Legislature of the state shall be exercisable by or under the authority of Parliament Art.
356 (1) (b. ) Thus, it can be said that union enjoys vast legislative power under Indian
Constitution. Parliament is empowered to make laws on subjects enumerated in List I, List III of
Seventh Schedule. According to Art. 248 Parliament is also empowered to make laws on
residuary matters with the changing scenario in the society which has been examined by
researcher herein in next chapter.

The next chapter deals with the detail analysis of residuary power as laid down under Indian
Constitution and in Constitution of other countries. CHAPTER 3 CONCEPT OF RESIDUARY
POWER CHAPTER 3: As discussed in earlier chapter, there has been distribution of power
between the Union and the States. The three Lists enumerated in seventh schedule of Indian
Constitution are drawn very elaborately and presumably all subject-matters -identifiable at the
time of the constitution-making, and regarding which a government could conceivably be called
upon to make laws in modern times, have been assigned to one of the Lists.

But it is humanly not possible to foresee every possible activity and assign it to one List or the
other. Hence the necessity of residuary power is felt. The concept of residuary power differs
from country to country. The concept of residuary power in India and of U. S. A differs to much
extent. India has adopted the Canadian model for the concept of residuary power. The position of
residuary power in various countries has been enumerated herein below: 1) U. S. A: The
Federation under the American Constitution has got only enumerated powers, while the residue
is vested in the States.

The Tenth Amendment provides "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the State respectively... " As
Tocqueville observed "Government by the Centre was the exception while Government by the
States was the rule. " But judicial interpretation has reversed this plan and Federal power has
been expanded at the cost of what weald have boon regarded by the framers of the Constitution
as residual State power. 2) Australia:

Australia adopted the American plan of vesting the residuary power in the State Legislatures, s.
107 of the Australian Constitution Act provides "Every power of the Parliament of a Colony
which has become or becomes a State; shall unless it is by this constitution exclusively vested in
the Parliament of the Commonwealth or withdrawn from the Parliament of the State; continue as
at the establishment of the Commonwealth, or as at the admission or establishment of the State
as the case may be. So, the Commonwealth has only enumerated powers like the American
Congress. Among the residual powers of a State in Australia have been mentioned education,
local Government, police, criminal law, company law, railways, irrigation, price control; general
control over the liberty of the subject. But as in the U. S. A. , there has been intrusion of Federal
legislation into the State sphere, by virtue of liberal interpretation by the Court' of the
enumerated Federal powers, such as defence, posts and telegraphs, fiscal powers, industrial
disputes. 3) Canada:

The framers of the Canadian Constitution supposed that the American system of vesting
residuary powers in the State resulted in weakness of the Federal Government; so they reversed
the process, by leaving the residue to the Dominion Parliament, conferring on the Provincial
Legislature only such powers as might be required for local purposes 4) Government of India
Act, 1935: The provision in this Act as regards the Vesting of the residual power was novel. That
power was given neither to the Federation nor to the Provinces. It was vested in the Governor-
General, acting in his discretion as laid down in s. 04 of act. 5) Indian Constitution, 1950: The
framers of the Constitution were conscious of the fact that human knowledge is limited and
human perception imperfect and no one could foresee what contingency may arise in future
needing legislation. Therefore, the residuary power is intended to take care of such matters as
could not be identified at the time of the constitution-making. Further, the framers of the
Constitution were designedly devising for a strong Centre, Moreover, the present is an era of fast
technological advancement, and no one can visualize future developments and exigencies of
government.

Something unforeseen may happen and some new matter may arise calling for governmental
action. A question may then arise as to which government, Central or State, is entitled to
legislate with respect to that matter. To meet this difficulty, the Constitution provides that the
residue will belong exclusively to the Centre. This is provided for in Art. 248 read with entry 97,
List I. These provisions take care of any unforeseen eventuality. Art. 248 reads as- (1) Parliament
has exclusive power to make law with respect to any matter not enumerated in Concurrent List or
State List. 2) Such power shall include the power of making any law imposing a tax not
mentioned in either of those Lists. Therefore, it can be summarized that, residuary power under
U. S. Constitution vests with the states and not with the centre. In Canada, the residuary power
vests with the centre and not with the states, the same model has been followed by the India as
reflected in Art. 248 of Indian Constitution. Judiciary has given wide interpretation to the
provisions of residuary power in India as well in U. S. A which has changed the scope of
residuary power in respective countries.

The same has been emphasized by the researcher in the next chapter.

CHAPTER 4 JUDICIAL PRONOUNCMENT ON RESIDUARY POWER: COMPARISON

BETWEEN INDIA & U. S. A. CHAPTER 4: Judiciary has played vital role in expanding the
horizons as to provisions of residuary power. The concept of residuary power differs in India as
well as U. S. A. This chapter deals with the landmark cases from both the countries as to
residuary power and same has been analyzed by the researcher in this chapter. A) U. S. A: In,
Goldfarb v. Virginia State Bar The Court extended the application of S. E. Underwriters.

Assn. , case to Sherman Act to prohibit price setting by the State bars. The Court observed that
bar enforcement of a schedule of minimum fees that lawyers could charge operated as a restraint
of trade. At the same time, a more widespread similarity of local conditions cannot confer upon
Congress a power which is reserved to the States by the Constitutions and the Court would not
sustain a Federal law which plainly seeks to exercise a power which cannot be said to be
included within any of the 'enumerated powers' of Congress as enlarged by the doctrine of
implied Powers'.

The bar raised in the way of such expansion of Federal powers by the Tenth Amendment has
been avoided, in many recent decisions, by holding that the Tenth Amendment does not
constitute any limitation upon the otherwise legitimate powers of the Federal Legislature, but
only expresses a truism that all that has not been surrendered to the former has been retained
by the State. In, NLRB v. Jones & Laughlin Steel Corpn. , The Court upheld the National Labour
Relations Act against commerce clause Challenge and in the process, departed from the
distinction between "direct and "indirect" effects on inter-State commerce.

It was held that the question of the scope of Congress' power is necessarily one of degree. It was
observed that infra-State activities that "have such a close and substantial relation to inter-State
commerce that their control is essential or appropriate to protect that commerce from burdens
and obstructions" are within Congress' power to regulate it. In, Wickard v. Filburn, The Court
upheld regulations controlling the production and consumption of home grown wheat. Even if
the (farmer Filburn's) activity be local and though it may not be regarded as commerce, it may
still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on
inter-State commerce and this irrespective of whether such effect is what might at some earlier
time have been defined or indirect. According to craig R. ducat, "the Court appears to have
developed such disclaim for the dualist approach that it was no longer willing even to consider to
direct indirect effect framework of previous cases.

It only mattered that the local activity could have a potential effect as inter-State commerce. The
metamorphosis was now complete". The vitality of State's rights as an independent bar to the
exercise of the Federal Governments' enumerated powers vanished with a wave of the courts'
hand. The Tenth Amendment was reduced to stating a mere tautology. But in, United States v.
Lopez, After taking into consideration the earlier decisions, held that the expansive interpretation
is subject to outer limits. (1) The Congress may regulate the use of the channels of inter-State
commerce. 2) Congress is empowered to regulate and protect the instrumentalities of inter-State
commerce or persons or things in infer-State commerce, even though, the threat may come only
from intra-State activities. (3) Congress' authority includes the power to regulate those activities
having a substantial relation to inter-State commerce, i. e. , those activities that substantially
affect inter-State commerce. It was observed that a determination whether infra-State activity is
commercial or non-commercial may in some cases result in legal uncertainty.

But, so long as Congress' authority is "limited" to those "enumerated" in the Constitution, and so
long as those 'enumerated powers' are interpreted as having judicially enforceable outer limits,
congressional legislation under the commerce clause always will engender "legal uncertainty".
The Constitution mandates this uncertainty by withholding from Congress a plenary police
power that would authorize enactment of every type of legislation. Congress has operated within
this framework of legal uncertainty ever since this Court determined that it was judiciary's duty
"to say what law is".

Any possible benefit from eliminating this "legal uncertainty" would be at the expense of the
Constitutional system of enumerated powers. The above decision was followed in, U. S. v.
Morrisson, Wherein it was held that "Constitution requires a distinction between what is truly
national and what is truly local". It was observed that Congress may not "use the Commerce
clause to completely obliterate the distinction between national and local authority". In, Garcia v.
San Antonia Metropolitan Transit Authority, The Court overruled the decision in National
League of Cities v.

Usery. It was held: "We doubt that courts ultimately can identify constitutional limitations on the
scope of Congress' Commerce clause powers over the States merely by relying on a. priori
definition of 'fundamental" elements of State's sovereignty. Also, the sovereignty of States is
limited by the Congress itself. But in, New York v. U. S. , The decision in Tuta v. Katt, was
distinguished and it was held: "States are not mere political sub-divisions of United States; State
Governments are neither regional offices nor administrative agencies of the Federal Government.

The positions occupied by State officials appear nowhere on the Federal Govt's most detailed
organisational chart. The Constitution instead "leaves to the several States a residuary and
inviolable sovereignty. The Federalist 39 reserved explicitly to the States by the Tenth
Amendment. Whatever the outer limits of that sovereignty may be, one thing is clear. The
Federal Government may not compel to enact or administer a Federal regulatory programme". In
that case, the question was, "whether the Congress may direct or otherwise motivate the States to
regulate in a particular field or a particular way? It was held that the Federal Government may
neither issue directives requiring the States to address particular problems, nor command the
States' officers or those of their political sub-divisions, to administer or enforce a Federal
regulatory system. It matters not whether policy-making is involved and no case by case
weighing of the burden of benefits is necessary, and such commands are fundamentally
incompatible with our Constitutional system of dual sovereignty. B) INDIA: In, Kesavananda
Bharati v. State of Kerala,

It was observed: "It is obvious that these Lists have been carefully prepared. They are by and
large exhaustive. Entry 97 of List I was included to meet some unexpected and unforeseen
contingencies. It is difficult to believe that our Constitution makers, who were keenly conscious
of the importance of the provisions relating to the amendment of the Constitution and debated
that question for several days, would have left the important power hidden in Entry 97 of List I
leaving it to the off chance of the courts locating that power in that entry.

We are unable to agree with these learned Judges when they sought to rely on Arts. 245, 246 and
248 and Entry 97 List I for the purpose of locating the power of amendment in the residuary
power conferred on the Union". In that case, Court overruled the earlier decision in I. C.
Golaknath v. State of Punjab, which held that Parliament can exercise the power of amendment
of the Constitution under the residuary powers under Art. 248 read with Entry 97 of List. Taking
clue from the above observation in Kesavananda Bharati's case, learned author H.

M. SEERVAI has stated: "It is submitted that the law laid down in Kesavananda Bharati's case,
is that if a subject of legislation was prominently present to the minds of the framers of our
Constitution, they would not have left it to be found by courts in the residuary power. It is
submitted that a fortiorari, if a subject of legislative power was not only present to the minds of
the framers, but was expressly denied to Parliament, it cannot be located in residuary power of
Parliament. In, State of West Bengal v. Kesoram Industries Ltd,

In the majority judgment, it was held that in case the State lacks legislative competence, the
Court must proceed on the basis that Parliament alone has me legislative competence and it
would not be permissible to uphold the State Act by leaning in favour of the State or by giving a
broader meaning to the entry in List II relating to the subject matter of legislation. It was further
observed that recourse to residuary power must be taken as a last resort, i. e. , only when all the
Entries in the three Lists are absolutely exhausted and when two interpretations are possible,
resort to the residuary power may not be taken recourse to.

In Union of India v. H. S. Dhillon , Court held: "If a Central Act is challenged as being beyond
the legislative competence of Parliament, it is enough to enquire if it is a law with respect to
matters or taxes enumerated in List II. If it is not, no further question arises". In that case, it was
contended that the words "any other matter" in Entry 97 of List I means other than those
specifically excluded in Entries 1 to 96 such as agricultural land I Entry 86. Rejecting the
argument, the Court held: "It seems to us that the function of Art. 46(1) read with Entries 1 to 96
in List I is to give positive power to Parliament, to legislate in respect of these Entries. Object is
not to debar Parliament from legislating on a matter, even if other provisions of the Constitution
enable it to do so. Accordingly, we do not interpret the words "any other matter" occurring in
Entry 97 of List I to mean a topic mentioned by way of exclusion. These words really refer to the
matters contained in each of the Entries 1 to 96. The words "any other matter" have to be used
because Entry 97 of List I follows Entries 1 to 96 of List I.

It is true that the field of legislation is demarcated by Entries 1 to 96 of List I, but demarcation
does not mean that if Entry 97 of List I confers additional powers, we should refuse to give effect
to it. At any rate, whatever doubt there may be on the interpretation of Entry 97 of List I is
removed by the wide term of Art. 248. It is framed in the widest possible terms. On its terms, the
only question to be asked is: "Is the matter sought to be legislated included in List II or List III or
is the tax sought to be levied mentioned in List II or in List III?

No question has to be asked about List I. If the answer is in the negative, then it follows that
Parliament has power to make laws in respect to that matter or tax'. In, State of Karnataka v.
Union of India, Wherein the Court observed: "Item 97 of the Union List corresponds to the
residuary legislative powers of Parliament under Art. 248 of the Constitution. It gives effect to
Art. 248. The Constitution makers cannot always mention and exhaust every conceivable topic.
It is in order to meet precisely such a situation that Art. 48 read with Entry 97 was inserted". The
power of making any law, imposing a tax, is not mentioned in List II or III and hence the said
power vests in Parliament under its residuary power. If any power to tax is clearly mentioned in
List II, the same would not be available to be exercised by the Parliament on the assumption of
residuary power. It was held that under our Constitutional scheme, the power to legislate in
respect of a matter does not carry with it the power to tax.

It was held therein that taxation is not intended to be comprised in the main subject in which it
might on an extended construction be regarded as included, but is treated as a distinct matter for
the purpose of legislative competence, which is evident from the language of Art. 248(1) and (2)
and of Entry 97 of List I. In, Naga People's Movement of Human Rights v. Union of India, The
Supreme Court ruled That Parliament was competent to enact the Armed Forces (Special
Powers) Act, 1958 in the exercise of the legislative power conferred on it under Entry 2 of List I
and Article 248 read with Entry 97 of list I.

After the insertion of Entry 2A in List I by the 42nd Amendment to the Constitution, the
legislative power of Parliament to enact the Central Act would flow from Entry 2A of List I. The
Court further explained that a law providing for "deployment of the Armed Forces of Union in
aid of the civil power of a State", would not be a law in respect of maintenance of public order
falling under Entry I of List II. But, such a Central Law would not enable the armed forces of the
Union to supplant or act as a substitute for the civil power in the State.

The armed forces of the Union, the Court said, would operate in the State concerned, in co-
operation with the civil administration. In, International Tourism Corporation v. State of
Haryana, The Court held that residuary power could not be so expansively interpreted as to
whittle down the power of the State Legislature. This might affect and jeopardize the federal
principle. The resort to the residuary power should be the last refuge Therefore, it can be
summarized that, judiciary has given wide interpretation to the provisions of residuary power in
India and U. S. A respectively.

As Tocqueville observed "Government by the Centre was the exception while Government by
the States was the rule. " But judicial interpretation has reversed this plan and Federal power has
been expanded at the cost of what weald have boon regarded by the framers of the Constitution
as residual State power. The judgment in New York v. U. S. , has given new interpretation to the
tenth constitutional amendment by increasing the significance of the centre. Indian judiciary has
also played the role of interpreting widely the provisions of Art. 248 in series of case; some of
hem have been illustrated above. As a matter of challenge before the Constitution of India, the
judiciary has played significant role by legislating in terms of guidelines on those subjects which
are not enumerated in any of the three lists of the seventh schedule and on those subjects to
which parliament has not legislated any laws. Therefore, researcher herein has developed the
keen interest in analyzing the challenge before the Constitution as to legislating in terms of
guidelines by the judiciary on the residuary matters and given background to the same in next
chapter. CHAPTER 5:

THE CONSTITUTION OF INDIA- NEW CHALLENGES IN THE FIELD OF RESIDUARY

POWER VIS-A-VIS JUDICIAL RESPONSE CHAPTER 5 A. ROLE OF JUDICIARY IN
INDIA: The Constitution of any Country is the Supreme Law of the land. By nature, the law
relating to the Constitution is dynamic and it should be developed-in consonance with the
changing times and needs, the Indian Constitution is not an exception to the above cardinal rule.
After the Constitution has come into force on 26th January, 1950, there has been a phenomenal
growth in the development of Constitutional concepts, principles, and dynamics.

The constitutional development results through a variety of processes. The most direct one is the
constitutional amendment by the Parliament. The Judiciary has also contributed immensely to
this constitutional development through judicial interpretation. In this process as Justice Black
and Justice Frankfurter of the USA had rightly stated "while the language of the Constitution
does not change, the changing circumstances of a progressive society for which it has designed
yield new and fuller import of its meaning. " The task of interpreting the Constitution is a highly
creative judicial function.

A democratic society lives and swears by certain values like individual liberty, human dignity,
rule of law, socio, economic justice and limited government. It is the task of judiciary to interpret
the Constitution to constantly inculcate these values on which democracy sustains and develops.
Since the commencement of the Constitution the Supreme Court has rendered many decisions
giving creative, purposeful, liberal and dynamic interpretation expanding various provisions of
the Constitution thus a distinct constitutional jurisprudence has emerged.
For example, new and expansive dimensions given to Arts. 12, 13, 15, 16, 21, 30, 124, 142, 246,
356 and 368. B. JUDICIAL ACTIVISM: What is meant by judicial activism? It is a philosophy
of administering justice whereby judges allow their personal views about public policy, ignoring
precedents. It is innovative, dynamic and law making role of the court with a forward looking
attitude discarding reliance on old cases and also mechanical, conservative and static view.

It is a progressive judicial thinking, developing the law for handling constructively the
contemporary problems of society. It is creative thought process through which the court
displays vigour, enterprise, initiative, pulsating with the urge of creating new and refined
principles of law. It is a sort of judicial creativity. Unusual fact situation poses issue for
resolution is an opportunity for innovation. Law, as administered by courts, transforms into
justice. The law does not remain static.

It does not operate in vaccum. As social norms and values changes, law too has to be interpreted
and recast. Law is really dynamic instrument fashioned by society for the purpose of achieving
harmonious adjustment, human relations by elimination of social tensions and conflicts. Lord
Denning once said: Law does not stand still; it moves continuously. Once this is recognized,
then the task of the judge is to put on the higher plane. He must consciously seek to mould law
so as to serve the need of the time. C.

ARTICLE 32 AND 142: Wide powers are given to the Supreme Court under Art. 32 which itself
is a fundamental right imposes a constitutional obligation on the court to forge such new tools,
which may be necessary for doing complete justice and enforcing the fundamental rights
guaranteed in the Constitution. LORD DENNING, in his lecture under the title "FREEDOM
UNDER THE LAW" in 1949 said: "No one can suppose that the executive will never be guilty
of the sins that are common to all of us. You may be sure that they will ometime do things which
they ought not to do: and will not do things that they ought to do. But if and when wrongs are
thereby suffered by any of us, what is the remedy? Our procedure for securing our personal
freedom is efficient, our procedure for preventing the abuse of power is not. Courts have an
obligation to satisfy the social aspirations of the citizens because the courts and the law are for
the people, and are expected to respond to their aspirations. Under Art. 142 apex court can pass
any kind of decree, order etc for bringing complete justice.

The scope and extent of Art. 142 is very wide and has positively used by Supreme Court in series
of cases. D. NEW CHALLENGE IN RESIDUARY POWER VIS A VIS JUDICIAL
RESPONSE: Parliament is empowered to makes laws on residuary matter under Art. 248. That is
the subjects not enumerated in any of the three lists of the seventh schedule, the parliament has
exclusive power to legislate on such subject (residuary matters). Under Indian Constitution the
residuary power is vested only with the parliament. But, judiciary through Art. 2, 142 plays
significant role in legislating law in terms of guidelines on the subjects not enumerated in any of
the three lists of seventh schedule and also on those topic to which parliament has not legislated
any kind of law. There are several instances where apex court has giving guidelines on residuary
matter. Some of the instances has been enlisted below: In, Vishaka v. State of Rajasthan,
Supreme Court has given guidelines as to sexual harassment of women at workplace. There is no
legislation to this effect, so such guidelines shall have force till law is made by the parliament as
to sexual harassment of women at work place.

In, Lakshmikant Pandey v. Union of India, Guidelines for inter-country adoption of children are
laid down by honorable Supreme Court as there is no law dealing with the inter-country
adoption. In, Indra Sawhney v. Union of India, Court laid down the guidelines as to reservation
for people belonging to socially and educationally backward classes. In, P. A. Inamdar v. State of
Maharashtra, It was held that judicial wing of the State is called upon to act when the other two
wings, i. e. , the legislature and the executive, do not act. In, All India Judges' Association v.
Union of India,

Supreme Court gave certain directions to the Union and the States that it should take appropriate
steps for setting up an All India Judicial Service, that retirement age of subordinate judicial
officers be raised to sixty years, to provide a working library at the residence of every judicial
officer, to provide residential accommodation to every such officer, to provide vehicles or to
provide suitable loan to acquire automobiles, etc. The direction issued is a striking example
where the Supreme Court was "legislating like a legislature"'. In Advocates-on-Record
Association v. Union of India,

Supreme Court held that under the Indian Constitution, no appointment of any Judge to the
Supreme Court or the High Court could be made unless it was in conformity with the opinion of
the Chief Justice of India. It was held that the opinion of Chief Justice was entitled to primacy.
Therefore, it can be summarized that, under Art. 248 residuary power vests with the parliament.
But, there has been series of instances where judiciary has played vital role in legislating the law
in terms of guidelines on those subjects with does not forms the part of any of the three lists of
the seventh schedule.

Under Art. 32 and 142 the apex court has showed the way to new concept of legislating on the
residuary matter. Researcher herein based on his research emphasizes that though there is no
expressed provision as to power of judiciary to legislate on residuary matter, it is not only the
parliament which legislates on the residuary matters but even the judiciary can legislate in terms
of guidelines on the residuary matters. CONCLUSION CONCLUSION There is no universally
agreed definition of federation. Scholars tended to regard the oldest federal constitution, the
constitution of the U.

S. , as the paradigm example or model. Prof. K. C. Wheare called the Indian Constitution as
having created a unitary state with subsidiary federal features rather than a federal state with
subsidiary unitary features. But subsequently he revised his opinion and though it proper to label
our constitution as quasi-federal. Distribution of power is one of the main features of federal
Constitution. Under Indian Constitution there has been distribution of power as: * Union List *
State List * Concurrent List The lists are exhaustive, as it covers all possible items.

The three Lists enumerated in seventh schedule of Indian Constitution are drawn very
elaborately and presumably all subject-matters -identifiable at the time of the constitution-
making, and regarding which a government could conceivably be called upon to make laws in
modern times, have been assigned to one of the Lists. But it is humanly not possible to foresee
every possible activity and assign it to one List or the other. Hence the necessity of residuary
power is felt. The concept of residuary power differs from country to country.

The concept of residuary power in India and of U. S. A differs to the much extent. India has
adopted the Canadian model for the concept of residuary power. The law does not remain static.
As social norms and values changes, law too has to be interpreted and recast. Therefore, Art. 248
deals with the residuary power which vests exclusively with the parliament. Judiciary has played
vital role in expanding the horizons as to provisions of residuary power. The task of interpreting
the Constitution is a highly creative judicial function.

Since the commencement of the Constitution the Supreme Court has rendered many decisions
giving creative, purposeful, liberal and dynamic interpretation expanding various provisions of
the Constitution thus a distinct constitutional jurisprudence has emerged. Though there is no
expressed provision as to power of judiciary to legislate on residuary matter, it is not only the
parliament which legislates on the residuary matters but even the judiciary can legislate in terms
of guidelines on the residuary matters. BIBLIOGRAPHY BOOKS REFERRED: * D. D. Basu,
Commentary on the Indian Constitution, (8th edition) (Vol. ), Nagpur: Lexis Nexis Butterworths,
2012. * H. M. Seervai, Constitutional Law of India, (4th edition. ), New Delhi: Wadhwa Book
Company, 2010. * M. P. Jain, Indian Constitutional Law, (6th edition. ), reprint (economy
paperback edition), Nagpur: LexisNexis Butterworth, 2011. * T. K. Tope, Constitutional Law of
India, Lucknow: Eastern book Company, 1982. * Dr. Subhash Kashyap, Constitution of
India, (2006 edition. ) (Reprint), New Delhi: Universal Law Publishing co.. pvt. ltd, 2010.
WEBSITES ACCESSED: * www. manpatra. com * www. scconline. com * www.
parliamentofindia. nic. in -------------------------------------------- [ 2 ].

B. K. Sharma, Introduction to Constitution of India, (3rd edition), New Delhi: PHI Pvt. Ltd. , p-
33. [ 3 ]. Ibid, p-34 [ 4 ]. B. K. Sharma, Introduction to Constitution of India, (3rd edition), New
Delhi: PHI Pvt. Ltd. , p-33 [ 5 ]. Supra at page no. [ 6 ]. D. D. Basu, Introduction to the Indian
Constitution, (19th edition) Nagpur: Lexis Nexis Butterworths, 2001, P-317 [ 7 ]. Supra [ 8 ]. D.
D. Basu, Commentary on the Indian Constitution, (8th edition) (Vol. 5), Nagpur: Lexis Nexis
Butterworths, 2012, P-8979 [ 9 ]. (1975) 421 US 773 [ 10 ]. (1937) 301 US 1 [ 11 ]. (1942) 317
US 111 [ 12 ]. (1995) 514 US 549 [ 13 ]. (2000) 529 US 598 14 ]. (1985) 469 US 528 [ 15 ].
(1992) 505 US 144 [ 16 ]. (1947) 330 US 386 [ 17 ]. AIR 1973 SC 1461 [ 18 ]. AIR 1967 SC
1643 [ 19 ]. (2004)10 SCC 201 [ 20 ]. AIR 1972 SC 1061 [ 21 ]. AIR 1978 SC 68 [ 22 ]. AIR
1988 SC 431 [ 23 ]. AIR 1981 SC774 [ 24 ]. G. Manoher Rao(Ed. ) Constitutional Development
through judicial process, Hydrabad: Asia Law House,2006, p-i [ 25 ]. D. D. Basu, Commentary
on the Indian Constitution, (8th edition) (Vol. 5), Nagpur: Lexis Nexis Butterworths, 2012, P-
3823 [ 26 ]. AIR 1997 SC 3011 [ 27 ]. AIR1984 SC 469 [ 28 ]. AIR 1993 SC 477 [ 29 ]. AIR
2005 SC 3226 [ 30 ]. AIR 1992 SC 161 [ 31 ]. AIR1994 SC 268
he distribution of powers is an essential feature of federalism. Though we have a strong centre,
federal equation in India is a variable and fluctuating phenomenon which takes its colour from a
multitude of factors and situations. It is to be noted that Union and state relations have passed
through several distinct phases of development since the coming into force of the constitution in
the year 1950.

The distribution of legislative powers between Centre and Units is an essential condition of
federal type of government. It is to be noted that the scheme of division powers under the
federal system of embodied in the Constitution of India. The outstanding characteristic of
modern federalism is that it helps to preserve unity while allowing diversity, oneness while
providing the division. The distribution of legislative powers between the Centre and the
regions is the most important characteristics of a federal Constitution.

Delegation Legislation :

It is means legislation by authorities other than a legislature acting under powers delegated by
the legislature. It is very difficult to give the precise definition of the word Delegated
Legislation. It is an expression which covers a multitude of confusion. It is said to be as an
excuse for the legislators, a shield for administrators, a provocation to the Constitutional jurists.
All legislation cannot possibly be made by the legislature itself and delegation becomes essential
for the following reasons such as lack of time, local needs, secrecy, future contingencies, to
strengthen administration, etc., Delegated legislation is a legislation made by a body or person
other than the Sovereign in Parliament by virtue of powers conferred by such sovereign under
the Statute.

There are number of reasons have contributed for the development of development of the
delegated legislation. Even the role of the State have undergone a change over time. The
Laissez-faire State of the Nineteenth Century has given a place to the welfare State, and the vast
technological developments have taken, and it has enormously increased the work of
government necessitating a mass of legislation. Consequently, legislatures are faced with a great
load of work as they have on the anvil many more bills than what they can conveniently dispose
of. In India, the Constitution permits subordinate legislation by delegation. The Parliament and
also the Legislature of a State can delegate both administrative as well as legislative powers to
any subordinate body or individual. The power to make law has been conferred by the people of
India through the constitution under Articles 245 and 246 upon Parliament and the State
Legislatures.

There is a distinction between the delegated legislation and conditional legislation. By delegated
legislation, the delegate completes the legislation by supplying the details within the limits
prescribed by statute, whereas in the case of conditional legislation, the power of legislation is
exercised by the legislature conditionally levying to the discretion of external authority, the time
and manner of carrying its legislation into effect, as also the determination of the area to which
it is to extend.

The famous case held in this regard is Hamdard Dawakhana v. Union of India AIR 1960 SC 554,
the Supreme Court of India observed that in case of conditional legislation, the delegates
power is that of determining when a legislative declared rule of conduct shall become effective,
and whereas in the delegated legislation involves the delegation of rule making power which
constitutionally may be exercised by the administrative agent. This means that the legislature
having laid down broad principles of its policy in the legislation can then leave the details to be
supplied by the administrative authority.

It should be noted that in United States of America, there are two theories to justify the
delegation of legislative power. One is that the Congress may be by a general provisions
delegate power to a department which is to act under such general provision to fill up the details,
whereas the other theory is that the Legislature lays down policy and standard leaving the details
to be filled by selected instrumentalities, which is otherwise known as Standards Theory.

2. Residuary Power :

Article 248 of the Constitution of India vests the residuary powers in the Parliament.
Whereas the Federations of USA and Australia vested residuary powers in the States. Under the
above article, the Parliament has exclusive power to make any law with respect to any mater not
enumerated in the Concurrent List or State list. It is to be noted that the Article 248 is to be read
with Item No.97 of the List I i.e. the Union List of the Seventh schedule, which empowers
Parliament to legislate with respect to any matter not enumerated in List II or III including any
tax not mentioned in either of those Lists.

The residuary powers have been vested in the Centre so as to make the Centre strong. It is well
versed to note that in Constituent Assembly, the Chairman of the Union Powers Committee
Jawahar Lal Nehru stated that we think that residuary powers should remain with the Centre.
In view however of the exhaustive nature of the three lists drawn up by us, the residuary
subjects could only relate to matters which, while they claim recognition in the future, are not at
present identifiable and cannot therefore be included now in the lists. In the Constituent
Assembly, an intriguing question was raised that where the residuary power is vested by the
Constitution in the federal Legislature, what was the justification in again enumerating the
powers of federal legislature by a separate list, apart from the residue ?

Dr. B.R. Ambedkar repelled this question by referring to the Constitution of Canada, where
though the residuary power was vested in Dominion Parliament, yet that very Section
91specifically enumerates a number of powers in the Dominion Parliament, without prejudice to
the residuary power. The object was to impart certainty to the division of powers between the
federal and Provincial Legislatures, and this precedent was followed by the Government of India
Act, 1935. The famous case held by the Supreme Court of India in relation to residuary power
is Union of India v. Dhillon AIR 1972 S.C. at page 1061, in relation to liability of agricultural
land liable to Wealth Tax. The important challenge came before the Court was as to the vires
of Parliament to enact the Finance Act, 1969, by which the Wealth Tax Act, 1957, was
amended so as to make the agricultural land liable to Wealth Tax. The questions that were
raised before the Court that

i) Was the power relatable to Entry 49 of List II i.e. Tax on lands and buildings

ii) Was the power relatable to Entry 86 of List I i.e. Taxes on the capital value of the assets,
exclusive of agricultural land, of individuals and companies, and

iii) Was it covered by the residuary power of Parliament under Entry 97 of List I read with
Article 248.
Justice Mitter holds that acceptance of the last question and said that the wealth tax was not
covered by Entry 86 of List I, but fell under the residuary power under Entry 97 of List I and at
the same time, he adhered that Article 248(1) of the Constitution of India makes it clear beyond
doubt that such matters are those which have not covered by Entries in List II or List III.

At the time of the making of the Constitution, the residuary power is intended to take care of
such matters as could not be identified. The framers of the Constitution were designedly
devising for a strong Centre. It is to be noted that no one can visualize future developments and
exigencies of government and more so we observe as an era of technological developments,
something unforeseen may happen and some new matter may arise calling for governmental
action.

Then a question may arise as to which government, the constitution provides that the residue will
belong exclusively to the Centre. If the law does not fall in the state list, the parliament has
legislative competence to enact the law by virtue of its residuary power and it would not be
necessary to go into the question whether it falls under any entry in the Union List or Concurrent
List.

It is relevant to note that the scope of the residuary power is very wide in nature. For instance,
Entry 3 in List III, Parliament can legislate with respect to preventive detention. Further,
Parliament can legislate with respect to preventive detention under Entry9 List I on the grounds
mentioned therein. It is to be noted that these two entries do not exhaust the entire field of
preventive detention.

Parliament can legislate under its residuary power with respect to preventive detention on any
ground not mentioned in these two entries. On certain grounds, the preventive detention is
covered by these entries, but on the other grounds, Parliament can act under its residuary power.
Therefore, Parliament has enacted the Conservation of Foreign Exchange and Prevention of
Smuggling Act (COFEPOSA) providing for preventive detention in connection with smuggling
and foreign exchange racketeering. This Act can find support from entry 36 List I (foreign
exchange) and Parliaments residuary power.

It is impossible to enumerate all powers exhaustively because no human foresight can conceive
of all matters on which legislation might be necessary in future. For example during 18th
century, nobody could conceive of aero planes, atomic energy or outer space. The residuary
provision is intended for such unforeseen subject-maters. Whenever a law is to be made on a
matter not included in any of the three Lists or a new tax is to be levied which is not included in
those lists such law can be made and such tax can be imposed by Parliament under Article 248
read with entry 97 of the Union List.

In the case of Surya Narain v. Union of India AIR 1982 Rajasthan at page 1, the Rajasthan High
Court held that Parliament has power to make rules and regulations for appointment and removal
of Governors under Entry 97 of the List I of the Seventh schedule read with Article 248 because
it is not enumerated in any list. Another important case held in the elucidation of residuary
powers held by the Supreme Court of India that in Naga Peoples Movement of Human Rights
v. Union of India AIR 199 SC 431, Armed Forces (Special Powers) Act, 1958, as originally
enacted by Parliament was held to be within the powers of Parliament under Entry 2 of List I and
Article 248 read with Entry 97 of List I. After the enactment of Entry 2-A of List I by the
Constitution (Forty Second Amendment) Act, 1976, power of Parliament to enact such Act flows
from Entry 2-A.

It may be noted that in Vishwabharathi House Building Co-operative Society Limited v. Union
of India AIR 1999 Knt. 210., held that the Consumer Protection Act, 1986, creates quasi-
judicial bodies to render inexpensive and speedy remedies to consumers. The Act provides an
additional forum providing inexpensive and speedy resolute of disputes arising between
consumers and suppliers of goods and services. These bodies are not supposed to supplant but
supplement the existing judicial system.

The agencies created by the Act are in no way parallel hierarchy to the judicial courts. The Act
would fall under the Parliaments residuary power and not under Entry 11A of List III. Whereas
in another case in Attorney General for India v. Amratlal Prajivandas AIR 1994 SC 2179, the
Supreme Court has observed that the test to determine the legislative competence of Parliament ,
that whoever the competence of Parliament to enact a specific statue is questioned one must look
to the entries in List II. If the said statute is not relatable to any of the entries in List II, no
further inquiry is necessary Parliament will be competent to enact the said statute either by virtue
of the entries in List I and List III, or by virtue of the residuary power contained in Article 248
read with entry 97 List I.
As far as validation of invalid State laws are concerned, when States lack legislative competence
with respect to a subject-matter, Parliament will have such competence. At times, when a state
law is declared invalid because of the States legislative incompetence, Parliament may come to
the rescue of the State by way of validating the law in question. It is to be noted that the
Parliament cannot merely pass an Act saying that such and such State Act is hereby declared as
valid, which amounts to delegation of legislative power on the State Legislature on a topic
which the Constitution has kept outside the Sate jurisdiction and this Parliament is not competent
to do . It is for the Constitution and not Parliament to confer competence on State Legislatures.

Parliament cannot arrogate to itself any omnipotence to redraw legislative lists so as to confer
competence on the state to legislate on a topic which is outside its purview. Instead, since
Parliament can legislate on a topic within its power, it can re-enact the invalid State law. As a
convenient legislative device, Parliament can, instead of repeating the whole of the State Act,
legislate referentially. For instance, When a State Act is held invalid, Parliament may enact a
law putting the State Act in a schedule and saying that the Act shall be deemed always to have
been as valid as if the provisions contained therein had been enacted by parliament.
Article 248: "Parliament has exclusive power to make any law with respect to any matter not
enumerated in List II or III. Such power shall include the power of making any law imposing a
tax not mentioned in either of those lists" (It is to be noted that before independence, Governor
General, and not the federal legislature, which had such powers). Entry 97 of List I also lays
down that Parliament has exclusive power to make laws with respect to any matter not
enumerated in List II or III.
Article 248 and Entry 97, List I, assign residuary powers of legislation exclusively to the Union
Parliament. If no entry in any of the three lists covers a piece of legislation, it must be regarded
as a matter not enumerated in any of the three lists, and belonging exclusively to Parliament
under Entry 97, List I. By virtue of Art. 248, Parliament has exclusive power to make any law
with respect to any matter not enumerated in List II or List III, and for this purpose, and to avoid
any doubts, Entry 97 has also been included in List I. In other words, the scope and extent of Art.
248 is identified with that of Entry 97, List I (Hari Krishna Bhargava vs UOI)

However, scope of residuary powers is restricted, as the three lists covers all possible subjects
and because of the court's interpretation as to a matter falls under residuary powers or not. The
rationale behind such powers is that it enables Parliament to legislate on any subject which has
escaped the scrutiny of the House, and the subject which is not recognizable at present. Thus, it
enables the Parliament to make laws on subject matter which have come up with advancement of
society. However, the framers of Constitution intended that recourse to residuary powers should
be the last resort, and not the first step. Residuary power is a well-known convention in federal
Constitutions. In USA, and Australia, such powers are vested in States, while in Canada, in the
Centre. Nevertheless, residuary powers are criticized, as they promote a 'strong' Centre and curb
the autonomy of States.

There is no field of legislation which has not been allotted either to Parliament or to the State
Legislature and therefore, if a law made by Parliament is challenged on the ground that it is
beyond its legislative competence, it is enough to inquire, if it is with respect to any matters
enumerated in the State List and if it is 12not so, no further question arises (i.e. it would be
unnecessary to go into the question whether it falls under any entry in the Union or Concurrent
List). Parliament can combine its power under an Entry in the Union List or Concurrent List and
the residuary power under Art. 248 [UOI verses H.S. Dhillon's case; Kartar Singh verses State of
Punjab].
Several Acts have been enacted by Parliament under its residuary power. For example, the
Wealth Tax Act (UOI verses Dhillon 's case), Gift Tax Act, Commissions of Inquiry Act, etc.
which have been held valid under the residuary power of Parliament.
THIS ARTICLE WAS WRITTEN BY PRABHU N.
SAVANUR A STUDENT OF KSLUS LAW SCHOOL.
Parliaments residuary power is not to be interpreted so expansively as to whittle down the
power of the State Legislatures.[1]

1. Introduction

The distribution of powers is an essential feature of federalism. The object for which a federal state
is formed involves a division of authority between the National Government and separate states. The
Constitution of India adopts a threefold distribution of the subjects of legislative power between the
Parliament and State legislature by placing them in any one of the three Lists, namely, Union List,
State List and Concurrent List. With the advancement of society, expanding horizons of scientific
and technical language and probe into the mystery of creation, it is possible that every imaginable
head of legislation with human comprehension and within foreseeable future could not be within the
contemplation of the Constitution-makers and was therefore, not specifically enumerated in one or
the other of the three lists. Complex modern governmental administration in a federal setup
providing for distribution of legislative powers coupled with the power of judicial review may rise such
a situation that a subject of legislation may not squarely fall in any specific entry in the tree Lists. In
such a situation Parliament would have the power to legislate on the subject in the exercise of
residuary powers under Article 248 and under Article 246(1) read with Entry 97 of List I.
Article 248 vests the residuary powers in the parliament. It says that parliament has exclusive power
to make any law with respect to any matter not enumerated in the Concurrent List or the State List.
Entry 97 in the Union List also lay down that Parliament has exclusive power to make laws with
respect to any matter not mentioned in the State List or the Concurrent List including any tax not
mentioned in either of these Lists. Thus the Indian Constitution makes a departure from the practice
prevalent in U.S.A., Switzerland and Australia where residuary powers are vested in the states. This
reflects the leanings of the Constitution-makes towards a strong Centre.

Judiciary (being the interpreter of constitution) has a very important role to play in deciding the
residuary powers. It has been left to the courts to determine finally as to whether a particular matter
falls under the residuary, power or not. It may be noted, however, that since the three lists attempt
an exhaustive enumeration of all possible subjects of legislation, and courts generally have
interpreted the sphere of the powers to be enumerated in a liberal way.

2. Residuary Powers of Legislation

Residuary powers have been vested in the Centre so as to make the Centre strong. As was stated in
the Constituent Assembly by Jawaharlal Nehru, Chairman of the Union Powers Committee:
We think that residuary powers should remain with the Centre. In view however of the exhaustive
nature of the three lists draw up by us, the residuary subjects could only relate to matters which,
while they may claim recognition in the future, are not at present identifiable and cannot therefore be
included now in the lists.[2]

History of Article 248

THE GRANT of the residuary powers in the Indian federation is like a magma reservoir of a
somnolent volcano which erupts occasionally to generate more heat in the academic circles than in
the political ring. The Government of India Act, 1935 provided for division of powers between the
central legislature and the provincial legislatures by enumerating them into three elaborate lists the
Central, Provincial and Concurrent Lists. The federal legislature and provincial legislatures were
empowered to pass laws on subjects given in their respective lists while both of them could pass
laws on any subject in the Concurrent list. However, if the federal legislature passed a law on any
matter given in the Concurrent list, a provincial legislature could not make a law on the same subject
afterwards. The residuary power, however, were not allocated either to the Federation or to the
Provinces but was under Section 105 of the Government of India, 1935, reserved to be allocated by
the Governor-General in his discretion to the Federation or to the Provinces.[3]
In the Constituent Assembly, though the initial proposal was to have federal centre of enumerated
powers with residuary powers to the Provinces and States, after the decision for partition of India, it
was decided to have a strong centre and as one of the steps for that purpose to allocate residuary
powers to the Centre. This decision would have meant that there was no need to have the Union
subjects enumerated in detail in List I. It would have been sufficient if the exclusive state powers and
the concurrent powers were mentioned. The attempts to revise the drafts on this basis seems to
have been given up at the insistence of Dr. Ambedkar, who maintained that the States, which were
about to join the Federation, wanted to know more about the Federal powers than a vague
description that the Federation would have a residuary power.[4]

So we have in the Constitution a distribution of powers similar to the one in the Government of India
Act with the difference that the residuary powers are now given to the Centre.

Article 248 r/w Entry 97 of Union List

Constitution of India has specifically vested the residuary power as an exclusive head of
power in the Union by entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution.
The ad hoc allocation of residuary power by the Governor General as in the case of the
Government of India Act, 1935 has therefore been discarded. The residuary power has been
increasingly pressed into service in connection with the resolution of conflicts of power between the
Union and the States. Since the commencement of the Constitution residuary powers of Parliament
have been exercised several times.

The scope of residuary powers is very wide. For example, under entry 3 in List III, Parliament can
legislate with respect to preventive detention in grounds mentioned therein. Further, Parliament can
legislate with respect to preventive detention under entry 9, List I, on ground mentioned therein. But
these two entries do not exhaust the entire field of preventive detention. Parliament can legislate
under its residuary power with respect to preventive detention on any ground not mentioned in these
two entries. Thus, Parliament has enacted the Conservation of Foreign Exchange and Prevention of
Smuggling Act, 1974 [COFEPOSA] providing for preventive detention in connection with smuggling
and foreign exchange racketeering. This Act can find support from entry 36, List I (foreign exchange)
and Parliaments residuary power.[5]

In the famous I. C. Golaknath v. State of Punjab,[6] the Supreme Court had held that the power of
the Parliament to amend the Constitution was derived from Article 248 read with entry 97 of List I
and that Article 368 dealt only with the procedure for amendment. However, in view of the
24thAmendment of the Constitution and the Supreme Courts pronouncement in Keshavanand
Bhartiv. State of Kerala,[7] Article 368 should be held to include both the power and procedure for
amendment and there is no case for invoking a residuary power for constitutional amendment.
Parliaments residuary power is not to be interpreted so expansively as to whittle down the power of
the State Legislatures. Residuary should not be so interpreted as to destroy or belittle State
autonomy. It has been emphasized that in a Constitution like ours where there is a division of
legislative subjects but the residuary power is vested in Parliament, such residuary power cannot be
so expansively interpreted as to whittle down the power of the State Legislatures. To do so would
be to affect the federal principle adversely. If there is competition between an entry in List II and the
residuary power of the Centre, the former may be given a broad and plentiful interpretation.

Prior to Dhillon[8], the judicial view was that recourse to entry 97, Lit I, ought to be had only when the
impugned legislation did not fall in any of the three Lists. The argument was that if the impugned
legislation fell under any entry in List II, residuary power could not be invoked. Further, if the
impugned legislation fell under an entry in List I or List III, there recourse to the residuary would be
unnecessary.
It was said that entry 97, List I, was not the first step in the discussion of such problems, but the last
resort.[9] But Dhillon[10] seems to have changed this position. The Supreme Court has ruled in this
case by majority that once it is found that the subject-matter of the impugned legislation does not fall
under any entry in List II or III then Parliament can take recourse to the residuary power, or it can be
combined with any entry in List I.

In Amratlal Prajivandas,[11] following Dhillon[12], the Supreme Court has observed that the test to
determine the legislative competence of Parliament is this: whenever the competence of Parliament
to enact a specific statue is questioned one must look to the entries in List II. If the said statue is not
relatable to any of entries in List II, no further inquiry is necessary as Parliament will be competent to
enact the said statue either by virtue of the entries in List I and List III, or by virtue of the residuary
power contained in Article 248 read with entry 97, List I.

Residuary Taxing Power

The maximum use of the residuary powers has been made in the field of taxing powers.
Since taxing powers have been specifically mentioned in the Lists such a power cannot be inferred
as ancillary or incidental to any other entry relating to legislation. Again, taxing powers have been
given only in the exclusive fields and there is no taxing power in the concurrent field. These factors
seem to have made the resort to the residuary power for sustaining the validity of taxing measures.
The chief use of residuary power used by Parliament in taxing fields is discussed below.

1. Gift Tax

The competence of the Parliament to enact the Gift Tax Act, 1958 (18 of 1958) for levying a tax on
gifts of agricultural land was sustained by the Kerala[13] and Madras[14] High Courts, on the basis
of the residuary powers. Both these High Courts held that the power to impose a tax on gift of
agricultural land could not be held to be incidental to the power to legislate with respect to land under
entry 18 of List II. Nor could that power be comprehended within entry 47 of List II relating to duties
in respect of succession to agricultural land. In Shyam Sunder v. Gift Tax Officer[15] on a similar
reasoning, the Allahabad High Court held that a tax on land and buildings was distinctly different
from a tax on gift of land, and that legislation in respect of a tax on gift of land and buildings would
not fall under entry 49 of List II, namely, tax on land and buildings. The Gift Tax Act was validly
passed by Parliament under article 248 read with entry 97 of List I.
These decisions of the High Courts were approved by the Supreme Court in Second Gift Tax Officer,
Mangalore v. D. H. Nazareth[16]. The Supreme Court had held that the Gift Tax Act was enacted by
Parliament and no Entry in the Union List and State List mentions such a tax. Therefore, Parliament
purported to use its powers derived from Entry 97 of the Union List read with Article 248 of the
Constitution. There being no other entry which covers the gift tax, the residuary powers of
Parliament were exercised to enact the law.

1. Sugarcane Cess

The residuary powers have been pressed into service even for sustaining, though indirectly, the
irregular exercise of taxing power by the States. In Diamond Sugar Mills Limited v. State of U.P.[17],
the Supreme Court held that the premise of a factory was not a local area within the meaning of
entry 52 of List II. The Uttar Pradesh Sugarcane Cess Act, 1956 which had levied cess on the entry
of cane into the premises of a factory for use, consumption or sale therein on the basis that the
premises of a factory was a local area was therefore struck down. On the basis of this decision, the
Madhya Pradesh High Court struck down the Madhya Pradesh Sugarcane Regulation of Supply and
Purchase Act, 1958 (No.1 of 1959) which had levied a similar cess. The Central Act, the Sugarcane
Cess (Validation Act) 1961 (No.38 of 1961) was passed which by section 3 validated levy of a cess
on sugarcane under 10 Acts in 7 States including the one under the Madhya Pradesh Act.
In Jaora Sugar Mills v. State of M.P.[18], the validity of the central legislation was questioned.
Gajendragadker C. J., delivering the judgment of the Supreme Court held that section 3 of the
Central Act did not merely validate the invalid State Acts, because it would not have been competent
for Parliament to confer jurisdiction on State Legislatures in that way, but had included all the States
and Notifications in the Central Act at all material times by virtue of section 3. Parliament had the
power to levy the cess as had been levied in the invalid State Acts, under Article 248 read with entry
97 of the List I.

This case shows that the Union can always, if it is so disposed, go to the rescue of the State to
sustain invalid State legislation by invoking the residuary powers. this really adds a new dimension
to co-operative federalism.

1. Expenditure Tax

The Andhra Pradesh High Court upheld the validity of Expenditure Tax Act, 1957 as expenditure tax
which was not specifically provided for in any of the entries in List II or List III, was within the ambit or
scope of entry 97 of List I.[19] So long as it was a tax on expenditure, the mere fact that in
furtherance of the legislative intent and object, the expenditure on which the tax was sought to be
levied was not necessarily confined to the expenditure actually incurred by the assesses himself (in
this case it had included the expenditure of his wife) did not render it other than an expenditure tax.
On appeal, the Supreme Court upheld the validity of the Expenditure Tax Act, 1957 on the ground
that it did not fall within entry 62 List II, but under the residuary powers.[20]

1. Wealth Tax

There was a conflict of decisions in various High Courts regarding the validity of the Wealth Tax Act,
1957. In UOI v. H. S. Dhillon[21], a Bench of seven Judges of the Supreme Court decided questions
of far-reaching importance as to the taxing powers of Parliament and the State Legislatures. The
question for determination was, whether Section 24 of the Finance Act, 1969 which amended the
provisions of the Wealth Tax Act, 1957, so as to include the capital value of agricultural land for
computing the net wealth, was within the legislative competence of Parliament. By a majority of 4 to
3 it was held that Parliament was competent to enact Section 24.
The legislative power conferred by Article 248, read with entry 97 of List I has been relied upon by
the Courts to uphold the validity of following laws made by the Parliament:
 1. A tax on building contracts, even though no sale involved therein,[22]
2. A tax on loan,[23]

Consumer Protection Act, 1986,[24]

1. Emblems and Names (Prevention of Improper Use) Act, 1950,[25]

2. Armed Forces (Special Powers) Act, 1958,[26] etc.
Residuary Power & Colorable Legislation

The presence of residuary power has sometimes refuted arguments based on colorable
legislation. Thus it was held that Parliament had under the residuary powers the power to legislate in
respect of compulsory deposits[27], to order opinion poll in Goa,[28] levy a sugarcane cess and
thereby to validate the irregular levy by the State.[29] An argument that Parliament tried to do
indirectly what it could not do directly was not accepted as the competence of the Parliament was
sustainable under the residuary power.

Residuary Power around the Globe

The distribution of legislative powers between the Union and the States is one of the
fundamental characteristics of a Federal Constitution. The federation under the American
Constitution has got only enumerated powers, while the residue is vested in the States. The Tenth
Amendment provides The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively or to the people. Australia
adopted the American plan of vesting the residuary power in the State legislature under Section 107
of the Australian Constitution.

The genesis of residual provisions in Canada may be traced back to the British North
America Act, 1867, which gave the residuary powers to the Dominion Parliament. Section 91 of that
Act provides that it shall be lawful for the Parliament of Canada to make laws in relation to all
Matters not coming within the Classes of Subjects of this Act assigned exclusively to the
Legislatures of the Provinces.

3. Sarkaria Commission on Residuary Powers

In past, several states have demanded that the residuary powers, including those of taxation, should
be vested in the States. In defence of its decision to transfer the residuary powers to the Concurrent
List rather than to the States List, the Centre pointed to the strong unitary bias of the countrys
federal structure.
The Sarkaria Commission on Centre-State Relations[30], which submitted its report in 1988, had
also rejected the suggestion that the residuary powers should be vested in the States, even though it
endorsed the Supreme Courts interpretation that these powers cannot be so expansively interpreted
as to whittle down the power of the State legislatures. The Commission, however, backed the
suggestion to transfer Entry 97 from the Union List to the Concurrent List.
The Sarkaria Commission recommended that the residuary power of legislation in regard to taxation
remain with Parliament because, it said, the Constitution-makers did not include any entry relating to
taxation in the Concurrent List so as to avoid Union-State frictions, double taxation and frustrating
litigation. The Commission said that the power to tax might be used not only to raise resources but
also to regulate economic activity, and warned that there might be situations in which a State, in the
garb of introducing a new subject of taxation, may legislate in a manner prejudicial to national
interest. But it justified the transfer of other residuary powers to the Concurrent List because, it felt,
the exercise of such power by the States would be subject to the rules of Union supremacy that have
been built into the scheme of the Constitution, particularly Articles 246 and 254.

4. Conclusion

The residuary powers which were supposed to have very limited scope in view of the elaborate
enumeration of the topics of legislation in the three Legislative Lists in the Constitution have turned
out to be not so limited. Particularly, in the field of taxation, the resort to residuary powers to justify
wealth, gift, expenditure, etc. taxes shows that it has added a new dimension to the Union power.
Since the important decision of the Supreme Court in UOI v. H. S. Dhillon, a new approach in the
constitutional interpretation of the legislative entries has been opened.
Hereafter there is no need to justify the exercise of Union power on the basis of one or more entries
in the Union List, all that is enough is to show that the power in question does not belong to the
State. This logical way of approach to the entries has really rendered superfluous the detailed
enumeration of powers in List I though it may still serve some purpose in showing the scope of
Unions residuary powers and for determination of the scope of the specifically enumerated powers
in the state and concurrent fields.

Bibliography
Books Referred

Ali Mehdi, Residuary Legislative Powers in India: Retrospect and Prospects, (New Delhi: Deep
& Deep Publications, 1990)
Basu D. D., Commentary on the Constitution of India, Vol. 8, 8th, (Nagpur: LexisNexis
Butterworths Wadhwa, 2011)
Jain M. P., Indian Constitutional Law, 6th ed., (Nagpur: LexisNexis Butterworths Wadhwa,
2010)
Mahendra P. Singh, N. Shuklas Consitution of India, 11th ed., (Lucknow: Eastern Book
Company, 2008)
Shiva Rao B., The framing of Indias Constitution Select Documents, Vol. 4, (New Delhi:
Universal Law Publishing Co. Pvt. Ltd., 2006)

Website Referred

interstatecouncil.nic.in
manupatra.com
westlaw.com

* Prabhu N. Savanur, 7th Semester B.B.A., LL.B., (Hons.), Karnataka State Law Universitys Law
School, Hubballi.
[1] Justice Dhirajlal Desai in Sat Pal & Co. v. Lt. Governor of Delhi, (1979) 4 SCC 232.

[2] B. Shiva Rao, The framing of Indias Constitution Select Documents, Vol. 4, (New Delhi:
Universal Law Publishing Co. Pvt. Ltd., 2006) p. 777.
[3] Ali Mehdi, Residuary Legislative Powers in India: Retrospect and Prospects, (New Delhi: Deep &
Deep Publications, 1990) p. 02.
[4] Constituent Assembly Debates, Vol. IX, p. 856.
[5] M. P. Jain, Indian Constitutional Law, 6th ed., (Nagpur: LexisNexis Butterworths Wadhwa, 2010)
p. 607.
[6] AIR 1967 SC 1643.

[7] AIR 1973 SC 1461.

[8] UOI v. H. S. Dhillon, AIR 1972 SC 1061.

[9] Hari Krishna Bhargava v. UOI, AIR 1966 SC 619.

[10] UOI v. H. S. Dhillon, AIR 1972 SC 1061.

[11] Attorney General for India v. Amratlal Prajivandas, AIR 1994 SC 2179.
[12] UOI v. H. S. Dhillon, AIR 1972 SC 1061.

[13] M. T. Joseph v. Gift Tax Officer, AIR 1962 Ker 97.

[14] Dandapani v. Additional Gift Tax Officer, AIR 1963 Mad 419.

[15] AIR 1967 All 19.

[16] AIR 1970 SC 999.

[17] AIR 1960 SC 652.

[18] AIR 1966 SC 416.

[19] Azam Jah v. Expenditure Tax Officer, AIR 1970 AP 86.
[20] Azam Jah v. Expenditure Tax Officer, AIR 1972 SC 2319.
[21] AIR 1972 SC 1061.

[22] Mithan v. State of Delhi, AIR 1958 SC 68.

[23] Lakshmana v. Additional I.T.O., AIR 1961 Mad 146.

[24] Viswa Bharti House Building Co-op. Society v. UOI, AIR 1999 Kar 210.

[25] Sable Waghire & Co. v. UOI, AIR 1975 SC 1172.

[26] Naga People Movement of Human Rights v. UOI, AIR 1998 SC 431.
[27] Hari Krishna Bhargava v. UOI, AIR 1966 SC 619.

[28] Pio Fernandes v. UOI, AIR 1967 Goa 79.

[29] Jaora Sugar Mills v. State of M.P., AIR 1966 SC 416.

[30] http://interstatecouncil.nic.in/Sarkaria_Commission.html (Last visited on 20/05/2016 at 13.52)

The Indian Constitution, based on the principle of federalism, has a scheme of two fold
distribution of legislative powers-with respect to territory; and with respect to subject matter. The
constitutional provisions are spread out over Articles 245254. Article 245 talks about
distribution of legislative power between Union and State with respect to territory. In terms of
Article 246, The VIIth Schedule of the constitution contains 3 lists, The Union List, State List
and Concurrent list. However, In case of conflict between a central law and a state law on a
subject in concurrent list; the union law should prevail. Also, In India residuary powers belong to
the union government under article 248 and Entry 97 of Union list. This reflects the leaning of
the constitution makers towards a strong centre. Though in normal times the distribution of
powers must be strictly maintained and neither the State nor the Centre can encroach upon the
sphere allotted to the other by the Constitution, yet in certain exceptional circumstances the
powers of the Union Parliament are extended over the subjects mentioned in the Slate List. For
example, in the national interests, during a Proclamation of Emergency, with the consent of the
State, in case of failure of constitutional machinery in a State etc. Thus from the scheme of
distribution of legislative powers between the Union and the States it is quite evident that the
framers have given more powers to the Union Parliament as against the States. Yet, the states are
not made subordinate units of the centre. In normal times, they have been granted enough
autonomy to act as independent centers of authority