Residuary Power

In one line

Every federation must say who may legislate on a subject the constitution does not mention, and the six on this syllabus give two different answers.

In the wording a student can write in an exam: the residuary power is the competence to legislate on subjects not allocated by the constitution to either level; in a coming-together federation it rests with the units, and in a holding-together federation with the centre.

The provisions

United States, Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Switzerland, article 3. The Cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution; they exercise all rights that are not vested in the Confederation.

Germany, articles 30 and 70. Except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the Lander; and the Lander shall have the right to legislate in so far as this Basic Law does not confer legislative power on the Federation.

Canada, section 91 opening words. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

India, article 248 and Entry 97 of List I. 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; and Entry 97 of List I is that residue expressed as an entry.

Why India chose the centre

The Constituent Assembly had the Government of India Act 1935 before it, which had given the residue to the Governor-General to allocate, and the Canadian and Australian models. It chose the Canadian.

The reason was integration. A country absorbing five hundred and fifty odd princely States, facing partition, and intending a planned economy could not leave unanticipated subjects with the units. Dr Ambedkar's answer in the Assembly was that the residue would rarely matter and that leaving it with the centre avoided a gap.

Whether it matters

The honest answer is that it matters less than the debate suggests, and matters absolutely when it matters.

Less, because the enumerated powers reach almost everything. Congress's commerce power has covered subjects the framers never imagined; India's List I has ninety seven entries and Entry 97 is rarely reached.

Absolutely, when a genuinely new subject arrives. Cyberspace, data protection, climate policy and biotechnology were on no list anywhere. In India they are Union subjects by article 248. In the United States they belong to the States unless brought within an enumerated power. In Canada the peace, order and good government power supplied the answer for greenhouse gas pricing in Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, decided on 25 March 2021.