The Division of Legislative Power and the Three Lists

List II, the State List, sixty-one entries. Public order (1), police (2), officers of the State courts (3), prisons (4), local government (5), public health and sanitation and hospitals (6), pilgrimages within India (7), intoxicating liquors (8), relief of the disabled (9), libraries and museums (12), communications other than those in List I (13), agriculture (14), preservation of livestock (15), water (17), land (18), fisheries (21), gas (25), trade and commerce within the State (26), markets and fairs (28), money-lending (30), betting and gambling (34), works and land of the State (35), industries subject to Entries 7 and 52 of List I (24), State public services (41), State courts fees (3), and taxing entries 45 to 63 including land revenue, agricultural income, duties on liquor, stamp duty, taxes on vehicles and on trades.

List III, the Concurrent List, forty-seven entries. Criminal law (1), criminal procedure (2), preventive detention for reasons connected with State security (3), civil procedure (13), contempt of court (14), marriage and divorce (5), infants and minors, adoption, wills, intestacy and succession, joint family and partition (5), transfer of property other than agricultural land (6), contracts (7), actionable wrongs (8), bankruptcy (9), trusts (10), evidence and oaths (12), forests (17A), protection of wild animals and birds (17B), education (25), legal, medical and other professions (26), trade unions and industrial disputes (22), social security and social insurance (23), labour welfare (24), price control (34), electricity (38), newspapers, books and printing presses (39), and economic and social planning (20).

Entry 5 of List III is the one Module III turns on, since it names marriage and divorce, infants and minors, adoption, wills, intestacy and succession, joint family and partition, and all matters in respect of which parties in judicial proceedings were immediately before the commencement of the Constitution subject to their personal law.

The residuary power

Article 248 provides that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List, including a tax not mentioned in either. Entry 97 of List I says the same thing from the other end.

In India the residue is with the Union, unlike the United States and Australia where it is with the States, and that follows Canada's example.

A worked example

Take a real problem. A State enacts a law prohibiting the sale and consumption of liquor in the State, and provides that any person found intoxicated in a public place shall be punished with imprisonment. A distiller challenges it, saying the law is really about trade and industry, which are Union subjects.

Start by identifying the candidate entries, and be exhaustive about it. Entry 8 of List II: intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors. Entry 6 of List II: public health. Entry 1 of List III: criminal law. Entry 33 of List III: trade and commerce in, and the production, supply and distribution of, the products of certain industries. Entry 52 of List I: industries declared by Parliament to be in the public interest.

Then read the entries. Entry 8 of List II names the very subject in terms and covers production, manufacture, possession, transport, purchase and sale. It is not a general trade entry; it is a specific entry for this commodity.

Then apply the rule about general and specific entries. A general entry yields to a specific one. Trade and commerce generally cannot be used to defeat an entry that names liquor expressly.

Then deal with the criminal provision. Creating an offence to enforce a valid law is ancillary to the field, and criminal law is in any event Entry 1 of List III.

And note the one thing that would change the answer. If Parliament had declared the distillery industry to be an industry the control of which is expedient in the public interest under Entry 52 of List I, that industry would be carved out of Entry 24 of List II, and the State's power over that aspect would be displaced. That is how Entry 52 works and it is worth knowing.

The cases

A Union law's competence is established by elimination. In Union of India v. H.S. Dhillon, AIR 1972 SC 1061. Facts. A challenge to the Wealth-tax Act 1957 as amended in 1969 to include the capital value of agricultural land in net wealth, the argument being that taxes on agricultural land are Entry 49 of List II. Held, by four to three. The amendment was valid, and laid down the method: where a law made by Parliament is challenged, the court asks whether it falls within List II or List III; if it does not, no further question arises, because Parliament's competence is established by article 248 with Entry 97 of List I without any need to identify a specific Union entry. Why it matters here is that it reverses the burden for Union legislation, and it is the single most useful proposition for answering a competence problem.

A law may incidentally cover ground in another List. In State of Bombay v. F.N. Balsara, AIR 1951 SC 318. Facts. A challenge to the Bombay Prohibition Act 1949, which prohibited the manufacture, sale, possession and consumption of liquor; the challenge included the ground that the Act encroached on the Union's power over import and export across customs frontiers under Entry 19 of List I as it then stood. Held. The Act was in pith and substance a law with respect to intoxicating liquors in the State List, and that an incidental encroachment on a Union entry did not make it invalid; certain provisions were nevertheless struck down as violating fundamental rights, including those affecting medicinal and toilet preparations containing alcohol. Why it matters here is that it shows the two questions being kept apart: competence is one enquiry and fundamental rights are another, and a law may pass the first and fail the second.

And the doctrine came from the Privy Council under the 1935 Act. In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd, Khulna, (1947) 49 Bom LR 568, decided in 1947. Facts. A challenge to the Bengal Money-Lenders Act 1940, which limited the interest and principal recoverable on loans, on the ground that it dealt with promissory notes, a Federal subject under the Government of India Act 1935. Held. The Act was in pith and substance a law about money-lending, a Provincial subject, and that its effect on promissory notes was incidental; a law must be examined as a whole and its true nature and character ascertained, and the extent of the invasion of the other field is a matter of degree. Why it matters here is that the entries were inherited from the 1935 Act along with the doctrine used to read them, and Indian courts have applied that doctrine without interruption.

Distinctions

What it does NOT mean

It does not mean an entry can be read to defeat another. Harmonious construction comes first; the non obstante clauses in article 246 are the last resort.

It does not mean the entry numbers are stable. Entries have been amended: education moved from List II to List III by the Forty-second Amendment in 1976, and forests and the protection of wild animals moved the same way. A candidate who quotes an entry should know which List it is in today.

It does not mean List III is a Union list. A State law on a Concurrent subject is valid and operative unless it is repugnant to a Union law, and even then article 254(2) may save it.

And it does not mean competence is the only question. Balsara is the reminder: a law within an entry may still fail against Part III.

Quick revision

Article 246: List I to Parliament exclusively (97 entries), List II to the States exclusively (61), List III to both (47), with the non obstante clauses giving priority List I, then III, then II, and clause (4) covering territory outside a State. Article 248 with Entry 97: the residue to Parliament. Rules of construction: entries are fields and are read as widely as the words allow; ancillary matters are included; a specific entry beats a general one; taxing power must be traced to a taxing entry and is never implied; harmonise before applying the non obstante clause. Entry 5 of List III carries personal law and is the foundation of Module III. Education, forests and wild animals moved from List II to List III by the Forty-second Amendment 1976. H.S. Dhillon: for a Union law, ask only whether it falls in List II or III; if not, Entry 97 with article 248 suffices. Balsara: pith and substance, incidental encroachment permitted, but Part III is a separate enquiry. Prafulla Kumar Mukherjee: the doctrine, inherited from the 1935 Act, that the extent of invasion is a matter of degree.

Test yourself

1. State the effect of the three non obstante clauses in article 246. List I prevails over both other Lists; List III prevails over List II; and the State List is exclusive but subject to both. So the order of priority is Union, Concurrent, State.

2. Where is the residuary power, and how is it used? In Parliament, by article 248 and Entry 97 of List I. On H.S. Dhillon, a Union law is competent unless it falls within List II or List III, so no specific Union entry need be identified.

3. Give the five rules for reading an entry. Entries are fields and not powers, to be given the widest amplitude; ancillary and incidental matters are included; a specific entry prevails over a general one; a taxing power must be traced to a taxing entry and is not implied in a general entry; and entries are harmonised before the non obstante clauses are applied.

4. Which entry carries personal law, and why does it matter for this paper? Entry 5 of List III, which names marriage and divorce, infants and minors, adoption, wills, intestacy and succession, joint family and partition, and matters in which parties were subject to their personal law before the Constitution. It matters because a uniform civil code would be legislated under it, by Parliament or by a State.

5. Name three entries moved between Lists by amendment. Education, forests, and the protection of wild animals and birds, all moved from List II to List III by the Forty-second Amendment 1976.

6. Why does Balsara upholding a law under Entry 8 of List II not end the case? Because competence and fundamental rights are separate enquiries. The Act was within the State's field, and provisions of it were still struck down for violating Part III.