What are the most important doctrine responsible for determining distribution of power between Centre and State? Richa Shukla BASICS OF LAW Mon, Feb 08, 2021, at ,01:34 PM The relationship between the Union and States is governed under Article 245 to 293 of Indian Constitution. The distribution of powers is an essential feature of federalism. A federal Constitution establishes the dual polity, with the Union in the Centre and the States at a periphery, each equipped with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.The basic principle of federalism is that the legislative, executive and financial authority is divided between the Centre and State not by any law passed by the Centre but by Constitution itself.Article 246 of Indian Constitution – Subject matter of laws made by Parliament and by the legislature of the states- (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 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 power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.In Indian Constitution, Ø Union list – 97 subject matter on which Centre shall legislate. The subjects mentioned in the union list are of national importance i.e.defence, foreign affairs, bankingcurrency.Ø State list – 66 subject matter on which state shall legislate.The subjects mentioned in the state list are of local importance such as public order and police, local government, public health and sanitation, agriculture, forest, education, state taxes and duties.Ø Concurrent list – 47 subject matter on which both Centre and state can legislate as per process laid in Constitution of India. The concurrent list is not found in any federal constitution. The three list, however do not exhaust all the legislative subjects. Apart from the residuary subjects covered in article 248 ,Entry 97 of List I, Legislative subjects and power can be found in other provision of the constitution also such as article 119,209,246-A and 262.In case of conflicts and overlapping between Centre and state law on the concurrent lists, the central law will prevail.Entry 97 of list 1 schedule VII to the Constitution read with Article 264(1) also lays down that Parliament has an exclusive power to make laws concerning any matter not enumerated in List II or List III, including any tax not mentioned in either of those lists.Article 248 of Indian constitution – Residuary Power Ø Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State ListØ Such power shall include the power of making any law imposing a tax not mentioned in either of those ListsArticle 248 vests the residuary powers in the Parliament; it provides that subject to Article 246-A, Parliament has exclusive power to make any law concerning any matter not enumerated in the Concurrent List or the State List. Entry 97 in the Union List also lays down that Parliament has exclusive power to make laws concerning 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 departs 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. Ø Doctrines are applied in order to formulate and analyses rules and principles required for dynamic interpretation of central/state relationship.There are expressed powers given to both Centre and state governments through the three list specified in schedule seventh. Different Doctrine Responsible In Interpreting The Centre State Relationship- Ø Doctrine of harmonious construction This doctrine was brought up to bring harmony between the different list mentioned in schedule seven of Constitution of India.The doctrine comes into picture, when an entry of a list overlaps with that of another list. It is the duty of the Courts to avoid conflict between two provisions, and whenever it is possible to construe provisions which appear to conflict in a way to make them harmonious to each-other. It can be assumed that if the legislature has intended to give something by one, it would not intend to take it away with the other hand as both the provisions have been framed by the legislature and absorbed the equal force of law. One provision of the same act cannot make the other provision useless. Thus, in no circumstances, the legislature can be expected to contradict itself. This rule of harmonious construction applies not only to different provisions in one Act but also to different cognate Acts such as the Court Fees Act and the Code of Civil Procedure. Where, however, the words of the statute are not reasonably capable of the construction canvassed, then it would be unreasonable and illegitimate for the Court to limit the scope of those words - arbitrarily solely for the purpose of establishing harmony between the assumed object and the scheme of the Act.In the landmark case of CIT Vs. Hindustan Bulk Carriers - In this case, the Supreme Court laid down five principles of rule of harmonious construction:-· The courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them.· The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort is unable to find a way to reconcile their differences.· When it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such a way so that effect is given both the provisions as much as possible.· Courts must also keep in mind that an interpretation that reduces one provision to a useless number or dead is not harmonious construction.· To harmonize is not to destroy any statutory provision or to render it fruitless. Ø Doctrine of pith and substance – This doctrine also comes into picture when there is a conflict between different subjects in different list that is when subject matter of any two list mainly list one and list two are overlapping. Pith and substance means the true nature of law, i.e. when the real subject matter is challenged and not its incidental effect on another list.The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid system scheme of distribution of power. It has been applied in the case of Profulla Kumar Mukerjee V bank of KhulnaIn this case the validity of the Bengal money lenders act 1946 which limited the amount and rate of interest recoverable by a money lender on any loan was challenged on the ground that it was ultra-virus of the Bengal legislature in so far as it related to promissory notes, - a central subjects. The Privy Council held that the Bengal money lenders act was in pith and substance a law in respect of money lending and money lenders- a state subject, was valid even though it trenched incidentally on promissory notes- a central subjects.State of Bombay V F.N.Balsara- The Bombay prohibition act, which prohibited sale and possession of liquors in the state, was challenged on the ground that it incidentally encroached upon import and export of liquors across custom frontier- a subject matter. It was contended that the prohibition, purchase, use, possession, and sale of liquor will affect its import. The court held that act valid because the pith and substance of the act fell under the state list and not under the union list even though the act incidentally encroached upon the union power of the legislation.Ø Doctrine of colourable legislation – This doctrine is also called legislative fraud. When a legislature legislates on a topic reserved for another, the law so made is ultra-virus that is beyond its general jurisdiction. Hence, making the law as per this doctrine is done in a disguised manner. The legislator pretends to be in its fair but actually trespasses into the area of another.In K. C. G. Narayan Dev v. State of Orissa, The Supreme Court explained the meaning and scope of the doctrine of colourable legislation "If the Constitution distributes the legislative power amongst different Legislative bodies, which have to act within their respective spheres marked out by specific legislative Entries, or if there are limitations on the legislative authority in the shape of fundamental rights, the question arises as to whether the Legislature in a particular case has or has not, in respect to the subject matter of the statute or the method of enacting it transgressed the limits of its constitutional powers. Such Transgression may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colourable. Legislation has been applied in judicial pronouncements. The idea conveyed by the expression is that although apparently, a legislature in passing a statute purported to Act within the limits of its powers, yet in substance and reality, it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretense or disguise It was applied in the case of state of Bihar versus Kameshwar Singh. It is the only case where a law has been declared invalid on the ground of colourable legislation. In this case, the Bihar Land Reforms Act, 1950, was held void on the ground that though apparently, it purported to lay down the principle for determining compensation yet, in reality, it did not lay down any such principle and thus indirectly sought to deprive the petitioner of any compensation.Ø Doctrine of Reading down – Where a legislature has used wide terms or vague words, which may extend the operation of an act to a subject outside the relevant list, the court interprets the wide term in a very restricted manner giving them restricted meaning. Hence the act remains valid but a restricted meaning is provided.Ø Doctrine of occupied field – The union law will not allow the state law to coexist if parliament intended to occupy the whole field relating to that subject. The intention to occupy the whole field should be clearly established. Where intention can be interpreted, the union law shall prevail. This doctrine is only applies to concurrent list.Ø Doctrine of Severability – According to it, if a provision is inconsistent with the Fundamental Rights, the whole Statute will not be held void. Only those inconsistent provisions become void and not the whole statute.If any provision of the Statute which is inconsistent to the Fundamental Right is cardinal to the functioning of Statute; i.e. without the presence of such disputed provision, the whole Statute would come to haphazard; then, instead of a particular provision, the whole statute would be deemed void.the separation of way valid portion from invalid portion of a particular legislation so as to ensure that legislation remains useful and reasonable is called doctrine of severability.Ø Doctrine of ancillary powers – Doctrine of ancillary powers is also called incidental powers. This doctrine has been developed in addition to the doctrine of pith and substance.Ancillary or incidental powers mean those powers that support the powers that are expressly conferred by written legislation, in the case of in this case Constitution of India.There are some expressed powers given to both Centre and state government through the three list specified in seventh schedule.The doctrine of ancillary powers state that these express powers to legislate on a matter also consist of the power to legislate on and in incidental or ancillary power.Such a power is essential for the proper exercise of the expressly conferred legislative powers. For example – the power to legislate on a banking work would also include all relating powers to legislate on matters like functions of bank, composition of the board, relationship between workers and customers, relationship with RBI et cetera. Does, this doctrine helps to resolve the conflict of the legislative Powers between the Central and the state government. It may be procedural or substantive. It gets revoked to eat the main legislation in question. Case law: R versus Waterfield (1963) In this case, the question before the court was whether the police constables were acting in the duly execution of their duty within the meaning of section 38 of the offence against the persons act, 1861. When applied to this case, it was clear that even though in general scheme of things, the police constables had the duty to bring the offender to justice but this rite became limited when it interfered with the person/person or property. The test is also known as water field test or ancillary power test.The Waterfield test was adopted in Canadian law and from there it was adopted in Indian constitution as well.