Residuary Power, and Parliament's Power Over the State List

Why it matters is that this reverses the burden. For a State law the question is "which State entry does it fall in?"; for a Union law the question is "does it fall in List II or III?", and if not, the law stands.

The five doors into the State List

Article 249: the national interest, on the States' own chamber's resolution. If the Council of States declares by a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws on a matter in the State List specified in the resolution, Parliament may do so for the whole or any part of India while the resolution is in force. The resolution lasts one year and may be renewed for one year at a time; a law so made ceases to have effect six months after the resolution expires.

Note who the gatekeeper is. The Council of States is the chamber that represents the States, so the route into the State List is guarded by the States' own representatives, which is a genuinely federal safeguard.

Article 250: during an emergency. While a Proclamation of Emergency is in operation, Parliament has power to make laws for the whole or any part of India with respect to any matter in the State List. Such a law ceases to have effect six months after the Proclamation ceases.

Article 251 keeps the State's power alive. Nothing in articles 249 and 250 restricts the power of a State Legislature to make any law which it has power to make, but if a State law is repugnant to a law made by Parliament under either article, the Parliamentary law prevails, and the State law is inoperative only so long as the Parliamentary law continues.

Article 252: at the request of the States. If the Legislatures of two or more States resolve that a matter in the State List should be regulated by Parliament, Parliament may pass an Act for those States; and it then applies to any other State whose Legislature adopts it by resolution. Such an Act may be amended or repealed only by Parliament. The Urban Land (Ceiling and Regulation) Act 1976 and the Transplantation of Human Organs Act 1994 were passed this way.

Article 253: to implement a treaty. Notwithstanding anything in the foregoing provisions, Parliament has power to 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, association or other body. This is the widest of the five and it has no condition attached at all beyond the existence of the treaty, which is why it is examined again in the chapter on how international law enters Indian law in Module IV.

And article 356: when the State Legislature's powers pass to Parliament. Clause (1)(b) provides that the President may declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. This is not a door into the State List so much as the temporary abolition of the State Legislature, and it is worked in [President's Rule: Article 356 and S.R. Bommai].

Two further provisions in the same family

Article 247: Parliament may establish additional courts for the better administration of laws made by it or of any existing law with respect to a matter in the Union List.

Article 255: a want of recommendation or previous sanction does not invalidate. Where a Bill required the previous sanction or recommendation of the President or a Governor and it was not given, the Act is not invalid for that reason alone if assent was afterwards given by the appropriate authority. This is a saving provision and it disposes of a common technical objection.

A worked example

A serious outbreak of a communicable disease crosses several States. The Union wishes to impose a uniform quarantine, uniform hospital standards and a uniform price cap on medicines. Which route does it use for each?

Quarantine between States. Entry 81 of List I is inter-State quarantine. No door is needed; this is the Union's own field.

Hospital standards. Public health and hospitals is Entry 6 of List II. The Union has three choices. It may seek a resolution of the Council of States under article 249, which requires two-thirds of those present and voting and lasts a year. It may wait for a Proclamation of Emergency under article 250, which is not available for a disease outbreak since the grounds are war, external aggression and armed rebellion. Or it may act under article 252 if two or more States resolve to ask it to.

Price control of medicines. Entry 34 of List III is price control, and drugs are Entry 19 of List III. So the Union may legislate directly, subject to article 254 where a State law conflicts.

And a fourth possibility worth naming. If India is party to the International Health Regulations, article 253 permits Parliament to legislate on any of these matters to implement them, regardless of the Lists.

The exercise shows why article 253 is the widest door, and why the treaty power is a standing federal question rather than an international law footnote.

Distinctions

What it does NOT mean

It does not mean Parliament may enter the State List at will. Each route has a condition, and the two most useful ones are guarded by the States themselves, through the Council of States under article 249 and through the States' own resolutions under article 252.

It does not mean a law under article 249 or 250 destroys the State law. Article 251 preserves the State's power and makes the State law merely inoperative while the Parliamentary law lasts.

It does not mean article 253 has no limits. It is confined to implementing a treaty or an international decision, so a law that goes beyond what the instrument requires cannot be supported by it, and the treaty must be a real one.

And it does not mean the residuary power swallows the State List. H.S. Dhillon asks first whether the law falls within List II or III, and only if it does not does Entry 97 come into play.

Quick revision

Article 248 and Entry 97: the residue, including taxes, is with Parliament, following Canada rather than the United States and Australia. H.S. Dhillon: for a Union law, ask only whether it falls in List II or III; if not, competence is established without finding a Union entry. Five doors into the State List. Article 249: Council of States resolution by two-thirds present and voting in the national interest, one year at a time, the law lapsing six months after. Article 250: during a Proclamation of Emergency, lapsing six months after. Article 251: the State's power survives and its law is only inoperative meanwhile. Article 252: at the request of two or more States, and adoptable by others; amendable only by Parliament. Article 253: to implement a treaty, agreement, convention or international decision, with no other condition. Article 356(1)(b): the State Legislature's powers exercisable by Parliament. Article 247: additional courts. Article 255: a missing recommendation or sanction does not invalidate if assent was afterwards given.

Test yourself

1. Where does the residuary power lie in India, and how does that compare with the United States and Australia? With Parliament, by article 248 and Entry 97 of List I. In the United States the Tenth Amendment reserves the residue to the States, and in Australia section 107 does the same; India followed the Canadian model deliberately.

2. State the method laid down in H.S. Dhillon for testing a Union law. Ask whether the law falls within List II or List III. If it does not, Parliament's competence is established by article 248 with Entry 97, and no specific Union entry need be identified.

3. Name the five routes into the State List with their conditions. Article 249, a Council of States resolution by two-thirds present and voting in the national interest; article 250, during a Proclamation of Emergency; article 252, at the request of two or more State Legislatures; article 253, to implement a treaty or international decision; and article 356(1)(b), when the State Legislature's powers become exercisable by Parliament.

4. Which of the five is guarded by the States themselves, and how? Article 249, because the resolution must be passed by the Council of States, the chamber representing the States; and article 252, because it operates only at the request of the State Legislatures concerned.

5. What does article 251 preserve? The State Legislature's power to make the law it could otherwise make. A State law repugnant to a Parliamentary law under article 249 or 250 is inoperative only so long as that Parliamentary law continues.

6. Why is article 253 the widest door? Because it operates notwithstanding the distribution of powers and carries no condition other than the existence of a treaty, agreement, convention or international decision to be implemented, so Parliament may legislate on any State subject that an instrument requires.