Parliamentary law and the states

Unless judicially annulled, a Central law has binding force on states, says NIRMALENDU BIKASH RAKSHIT

Parliamentary law and the states

Lok Sabha (Photo: iStock)

Recently, our Parliament passed the Citizenship Amendment Act by a thumping majority and the President has duly given his assent. So, it is now a Parliamentary enactment.

As such, it is applicable to the entire country. But some provincial governments have, however, loudly declared that they will vehemently oppose the implementation of CAA and the National Register of Citizens because, in their view, they are unconstitutional, undemocratic, divisive and vindictive. Of course, the Supreme Court and High Courts can see whether or not a law is inconsistent with or inimical to the Constitution and, if necessary, they can even annul a law.

But, instead of waiting for the judicial verdict, some state governments have decided to reject the aforesaid laws for their alleged Constitutional invalidity. This is unthinkable for two grounds. First, as India is a federal state, powers – legislative, executive and financial – have been meticulously divided between the Centre and the states. But, the pattern of such division of powers had really a centralising tendency.


As Dr JC Johari puts it, “The Indian federalism is horizontal with a strong unitary bias.” Particularly, the division of legislative power indicates a strong centralising tendency. There are three lists of such power in the Constitution. Originally, the central list contained 97 items for Parliamentary enactment. The concurrent list included 47 items on which both the Parliament and State Legislatures could make laws. State lists contained 66 items on which the local legislature was empowered to make laws.

But, as pointed out by Dr MV Pylee such demarcation of power indicates “a strong tendency towards a high degree of centralization.” It is significant that an amendment of the Constitution has, thereafter, brought about some changes in the aforesaid lists and it has further accentuated this scheme of centralisation.

The central list covers the all-India matters and the Parliament is the sole authority to make laws on them. Then, though the concurrent list is a common gift, the Centre has given a dominating authority over it, because if there is an inconsistency between the central and local laws on the same subject, the central law prevails. Moreover, the states have been denied exclusive legislative power over state subjects, because, under Art. 249, Art. 256 and Art. 253 the Centre can intervene in this list. Above all, residuary power too has been vested in the centre and it is well-known that it makes the occupant the overriding authority. While in America, the ‘model federation’, such power is vested in the states, our Constitution has given it to the Centre. Thus, it is crystal clear that our Parliament is much more powerful then state legislatures.

It makes laws for the entire country and they are applicable to every nook and corner of the country. So, no province can prevent their implementation inside its territory. Secondly, the distribution of executive power has, as well, a centralising tendency. As DHH Das has observed, “In the administrative system, there is the subordination of the states to the Union authority.”

Art. 256 states that the executive power of every state is be so exercised so as to ensure compliance with the laws made by Parliament. Moreover, Art. 257 (i) has declared that the executive power of every state shall be so exercised as not to impede or prejudice the executive power of the Union.

The Centre can also give directives to them in such matters in case of necessity. Significantly, if the Centre deems that its directives have been grossly defied, it may regard it as the breakdown of the Constitutional machinery of the relevant state and, resultantly, Presidential Rule, under Art.

356, may be imposed upon it. This is why Dr Johari thinks that the Constitution has sought co-operation of both the Centre and the states in several matters. As such, so long as Art. 256 and Art. 257 (i) are there, no state can prevent the implementation of a central law inside its territory. Of course, such arrangements have beefed up the centralising tendency and, this is why, Dr KC Where, the eminent British commentator, has regarded our Constitution as ‘quasifederal’.

Significantly most of our Constitutional writers have followed this line of thinking. But, as a stark realty, it is entirely futile to use such a term.

Centralisation does not turn a federal Constitution into a unitary one, nor does it make it quasi-federal. We have to see whether or not (i) the states derive power from the Constitution, (ii) power has been divided by the Constitution; and (iii) there is a Supreme Court to keep them within their own territory.

If these conditions are fulfilled, the Constitution is federal. In a realistic situation, concentration of power is the only way out. Dr Where himself has admitted that war, defence, unemployment, industrialisation, scientific development etc. have automatically increased the centralising tendency.

America started with a weak Centre but within two centuries, it has become a centralised state, and yet it is regarded as a ‘federal’ state. Other federal states like Canada, Australia, Switzerland etc. too have gradually shown a centralising tendency. So, Dr BR Ambedkar, the Chairman of the Drafting Committee, observed during the making of the Constitution, “Modern Constitutions are such that centralisation of power is inevitable.” Thus, the units of our federation have to co-operate with the Centre in various ways.

A Parliamentary law, unless judicially annulled, must be operative in the country as a whole and no provincial ruler can, legally, prevent it in any way. During the time of Abraham Lincoln, the former American President, the Centre even deployed the army in order to face the defiant southern states. Our Constitution has been framed ‘with a subordinate position to the states…in favour of the supremacy of the Union’, says Dr SC Kashyap.

This is true as far as it goes. As a cardinal truth, neither federal system nor unitary pattern is our goal – they are means to a goal. A small state can be ruled by a unitary system. But it can, by no means, be fitted to a big state with various diversities. This is why a federal system has been widely adopted in India. In such case, the states have to cooperate with the Centre so long as it acts constitutionally. As such, much depends upon the judiciary.

The writer is a Griffith Prizeman and Former Reader, New Alipore College, Kolkata.