Original Text of Article 246 of Indian Constitution:
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State 1*** also have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State 1*** has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).
(4) Parliament has the power to make laws with respect to any matter for any part of the territory of India not included 2 [in a State] notwithstanding that such matter is a matter enumerated in the State List.
Explanation of Article 246 of Indian Constitution:
The Parliament can legislate for the whole or any part of the territory of India. The territory of India includes states, union territory and any other territory that may be acquired in the future.
The Parliament also possess the power of extrajudicial legislation, which will cover Indian resident and their property outside India. States, on the other hand, can make laws for the whole or any part of the State.
As per Article 246(1), the Parliament holds the exclusive power to make laws pertaining to any subject mentioned on the union list (List I in the seventh schedule), which includes matters that require a uniform law across the country. The states do not have the authority to legislate in this area. This implies that any subject under the exclusive jurisdiction of the Centre, i.e., List I, becomes a prohibited field for the states.
Under Article 246(2), both the Centre and the states are granted the power to legislate concurrently on matters listed in the concurrent List.
Article 246(3) grants the states the exclusive authority to legislate on matters included in the State List, i.e., List II in the seventh schedule. The Centre is prohibited from making laws on these subjects if the subject falls under the exclusive jurisdiction of the State.
According to Article 246(4), the Parliament holds the authority to make laws for any part of the territory of India that is not covered by a state; it can also make law even if that area is covered by one of the items on the State List.
Distribution of Legislative powers (Subjects)
Article 246 divides the power between the Union Government and the States. The Constitution uses a similar classification of power as was used in the Government of India Act 1935.
As per Article 246, the power is divided into the following three lists, which we find in the 7th Schedule of the Constitution:
- Union List
- Currently, the Union List contains 99 (Originally 97) subjects over which the Parliament has exclusive powers.
- These subjects are of national importance and demand uniformity all over India, such as defence, foreign affairs, communication, currency, atomic energy, etc.
- State List
- The state list comprises 61 (Originally 66) subjects over which states have exclusive powers to make laws.
- These subjects are of local and regional importance, such as police, public order, public health, etc.
- Concurrent List
- The Concurrent List consists of 52 (Originally 47) subjects over which both Parliament and the State can make laws.
- However, in case of conflict between central law and state law, the central law will prevail.
- Subjects in the concurrent List include Criminal and civil law and procedure, marriage and divorce, labour welfare, electricity, etc.
- The 42nd Amendment Act of 1942 transferred 5 state subjects to concurrent subjects:
- Conservation of forest and wild animals
- Weights and measures
- Constitution of all courts except high courts and Supreme Court.
List of Amendments in Article 246 of Indian Constitution:
|42nd Amendment Act of 1942
|The Act transferred 5 state subjects to concurrent subjects i.e., Education, Forest, Conservation of forest and wild animals, weights and measures and Constitution of all courts except high courts and supreme court.
|101st Constitutional Amendment Act, 2016
This Act made provisions regarding the Goods and Services Act. It provides that Parliament and the state legislature both have the authority to enact laws regarding goods and services tax levied by the Union or by the State.
Further, the Parliament alone has the authority to enact laws regarding the goods and services tax where the supply of goods or services occurs during inter-state trade or commerce.
Residuary Powers: Residuary subjects are those matters which are not mentioned in the above 3 lists. These powers are vested with the Parliament.
International Practices: The Canadian model closely resembles the Indian model; here, both the union list and state list are mentioned in the Constitution. However, it doesn’t have a concurrent list.
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