The Distribution of Legislative Power

In one line

There are five ways of dividing legislative power, and India's three Lists are only one of them.

In the wording a student can write in an exam: the distribution of legislative power may be effected by enumerating the general government's powers and leaving the rest, by enumerating both levels' powers, by enumerating three lists including a concurrent one, by leaving the units a general competence subject to enumerated federal fields, or by combining these with rules on when the federation may occupy a shared field.

The five techniques

One: enumerate the centre, leave the rest. The United States. Article I section 8 gives Congress eighteen classes of power; the Tenth Amendment reserves the rest. One list.

Two: enumerate both. Canada. Section 91 gives Parliament the general power and enumerates twenty nine classes for greater certainty; section 92 enumerates sixteen exclusive provincial classes; section 92A deals with non-renewable natural resources; section 93 education; section 95 makes agriculture and immigration concurrent with federal paramountcy. Two lists and a small concurrent field.

Three: three Lists. India. Article 246 read with the Seventh Schedule: List I, the Union List, ninety seven entries as originally enacted; List II, the State List, sixty six; List III, the Concurrent List, forty seven. Article 246A, inserted by the Hundred and First Amendment in 2016, gives both Parliament and the State legislatures power to make laws with respect to goods and services tax, with Parliament exclusive on inter-State supply.

Four: units competent unless the constitution says otherwise. Switzerland and Germany. Article 3 of the Swiss Constitution leaves the cantons everything not vested in the Confederation, and articles 54 to 135 then vest a great deal. Article 70 of the Basic Law gives the Lander the right to legislate in so far as the Basic Law does not confer legislative power on the Federation, and articles 71 to 74 then confer it.

Five: concurrency with a test. Germany again. Article 72(1) gives the Lander power in the concurrent field so long as and to the extent that the Federation has not exercised its power. Article 72(2) permits federal legislation on certain listed matters only if and to the extent that the establishment of equivalent living conditions throughout the federal territory, or the maintenance of legal or economic unity, renders it necessary in the national interest. Article 72(3) permits the Lander to deviate from federal law on listed subjects.

The Indian scheme in detail

Article 245 gives Parliament power to make laws for the whole or any part of India and a State legislature for the whole or any part of the State, and provides that no law of Parliament is invalid on the ground of extra-territorial operation.