When Parliament May Legislate on a State Subject

This is the widest of the five and needs no resolution, no consent and no specification of subjects. It converts the Constitution into a unitary one for the duration, which is the standard description and is accurate. A law so made ceases to have effect six months after the Proclamation ceases, except as to things done before.

Again, article 251 applies: the State's own power continues, and a repugnant State law is inoperative rather than void.

The wider consequences of an emergency for the federal balance are in [Emergency and the Federal Balance].

Article 252: legislation by consent

How it works. If the legislatures of two or more States pass resolutions that a State List matter should be regulated by Parliament, Parliament may pass an Act for those States. Any other State may afterwards adopt the Act by a resolution of its own legislature, and the Act then applies there too.

What is distinctive about it. This is the one route that is genuinely consensual, and it is the one that produces a law which the States cannot then unmake: once Parliament has legislated under article 252, the Act may be amended or repealed only by Parliament, not by the State legislatures that asked for it.

That is the trap in the provision and it is examinable. A State surrenders the subject permanently, or at least until Parliament chooses to give it back.

What it is used for. Subjects on which uniformity is desirable but which the Constitution left with the States: estate duty, prize competitions, urban land ceiling, transplantation of human organs, and water pollution control have all been legislated in this way.

Article 253: the treaty power

The widest of the five, and the one that matters most today.

The text. Notwithstanding anything in the two preceding articles, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries, or any decision made at any international conference, association or other body.

What that means. The non obstante clause displaces the distribution of powers entirely. If the law implements an international obligation, it may deal with a State List subject, and no resolution, consent, emergency or time limit is required. The law is permanent.

Why it matters more each year. India is party to a very large number of treaties and conventions, and many of them touch subjects that the Seventh Schedule gives to the States: environment, forests, wildlife, labour, health, human rights, agriculture and intellectual property among them. Environmental legislation in India is largely traceable to this power, enacted to give effect to the Stockholm Declaration of 1972 and the Rio Declaration of 1992, and the preambles of those Acts say so.

The obvious objection. If the Union executive negotiates the treaty and the Union Parliament implements it, the States can be legislated out of their own List by a process in which they take no part at all. The counter-argument is that the alternative, a country that cannot honour an international obligation because a State declines to legislate, would make India an unreliable party to every agreement it signs.

Note the limit that does exist. Article 253 authorises a law for implementing the treaty. A law that goes beyond what the international obligation requires cannot be justified under it, and must find competence elsewhere. In practice courts have read the implementing requirement generously, but the limit is there and should be stated.

Article 356: the legislature displaced

Where a Proclamation under article 356 is in force, the President may declare that the powers of the State legislature shall be exercisable by or under the authority of Parliament. Parliament may then legislate for the State on any subject, and may confer the power on the President or on another authority.

This is different in kind from the other four. Under articles 249, 250, 252 and 253 the State legislature continues to exist and to hold its own power. Under article 356 it has been dissolved or suspended and Parliament is acting in its place. See [President's Rule].

Reading the five together

Put in order of how much the State is consulted:

Article 252, the State asks. Article 249, the chamber representing the States agrees, by a special majority. Article 250, an emergency is in force and the States are not asked. Article 356, the State government is gone and the States are not asked. Article 253, the Union has made a treaty and the States are not asked, with no time limit and no expiry.

An answer that arranges them this way, rather than listing them in numerical order, is making a federalism argument rather than reciting provisions. The argument is that the Constitution's protections for the State List are graduated, that four of the five have a time limit or a consent requirement, and that the fifth, which has neither, is the one whose use has grown most.

A worked example

India ratifies an international convention requiring parties to regulate the disposal of a class of industrial waste. Waste disposal, sanitation and public health are State subjects. Parliament enacts a central Act implementing the convention, which occupies the field completely and displaces existing State legislation. Three States object that Parliament has legislated on a State subject without their consent and without any emergency.

Which route is being used? Article 253: Parliament may make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country, or any decision made at any international conference or other body.

Does it need consent? No. Article 253 opens "Notwithstanding anything in the two preceding articles", which displaces the distribution of powers. Unlike article 249 it needs no resolution of the Council of States, unlike article 250 it needs no emergency, and unlike article 252 it needs no request from the States.

Does it expire? No. A law under article 249 lapses six months after the resolution, and one under article 250 six months after the Proclamation. A law under article 253 is permanent.

Is there any limit? Yes, and it is the one to state. Article 253 authorises a law FOR IMPLEMENTING the treaty. A provision going beyond what the obligation requires cannot be justified under it and must find competence elsewhere. In practice the implementing requirement has been read generously, but the limit exists.

The federalism point. The Union executive negotiates the treaty and the Union Parliament implements it, so the States can be legislated out of their own List by a process in which they take no part. The answer given for that is that a country which cannot honour an obligation because a State declines to legislate would be an unreliable party to every agreement it signs.

Quick revision

• Five routes: articles 249, 250, 252, 253 and 356.
• Article 249 needs a two-thirds resolution of the Council of States, lasts a year, and is renewable without limit.
• Article 250 operates during a Proclamation of Emergency and covers any State subject.
• Article 252 needs two or more States to ask, and the resulting Act can then be amended or repealed only by Parliament.
• Article 253 implements treaties, displaces the distribution of powers entirely, needs no consent and never expires.
• Under articles 249 to 252 the State's own power survives and article 251 makes a conflicting State law inoperative, not void.

Test yourself

1. List the five routes by which Parliament may legislate on a State subject, with the article for each.

2. What majority does article 249 require, in which House, and for how long does the resolution last?

3. Why is a law made under article 252 unusual, and what can a State that asked for it no longer do?

4. Arrange the five routes in order of how far the States are consulted, and say what that ordering shows about the Constitution's protections for the State List.

5. What is the limit on article 253?