SYNOPTICAL OUTLINE

SYNOPSIS .......................................................................................................... 2
INTRODUCTION .................................................................................................. 2
“KRISHNA KUMAR SINGH V. STATE OF BIHAR” .................................................. 3
FACTUAL MATRIX............................................................................................ 3
CASE HIGHLIGHTS ........................................................................................... 3
EFFECTIVE DIFFERENCES B/W TEMPORARY ENACTMENTS &
ORDINANCES ..................................................................................................... 4
ENDURING RIGHTS ............................................................................................ 5
DEFINITION ....................................................................................................... 5
CONSTITUTIONAL PROVISIONS ........................................................................... 6
RIGHTS AS ENDURED AFTER CESSATION OF ENACTMENT .................................... 7
CONCLUSION ..................................................................................................... 9

ANSWER 2 ...................................................................................................... 10
SYNOPSIS ........................................................................................................ 10
INTRODUCTION ................................................................................................ 10
LEGISLATIVE LISTS ........................................................................................ 10
PRIOR DEVELOPMENTS UPTO CURRENT DAY .................................................... 10
THE FORMULATING DEBATES .......................................................................... 11
A. MOTION: STRONG CENTRE BACKED FEDERAL SETUP ............................ 12
B. MOTION: POWERFUL STATE GOVERNMENT WITH SIGNIFICANT
AUTONOMY 13
CRITICAL ANALYSIS AND COMMENTS .............................................................. 14
STRONG CENTRAL GOVERNMENT – ............................................................... 14
STRONG STATE GOVERNMENT – .................................................................... 15
CONSTITUTIONAL PROVISIONS ......................................................................... 16
JUDICIAL UNDERSTANDINGS ............................................................................ 16
CONCLUSION ................................................................................................... 18
ANSWER 1.

I. SYNOPSIS

Ordinances are a very unique legislative authority. It empowers the executive branch of State to
enact interim legislation when Parliament/ State Legislature do not / cannot hold session. The
Constitution vests them with the authority to act quickly in crisis instances. These powers are not
equivalent to the legislative authority of the legislature, such as Temporary Enactment or a full
blow statute; as they cannot be re-promulgated without being approved by the legislature, once
lapsed. Thus, with the lapse of an ordinance, the rights ensured under-in do not subsist,
apart from exceptional cases. Irrespective of the same, ordinances in terms of legal instruments
have frequently been deemed comparable with laws established by the legislature in terms of
the enduring rights effect and re-promulgation. This questions Parliamentary supremacy in
enactment of laws, violating doctrine of "Separation of Powers". This came to be answered in
our case in issue i.e., in the case of Krishna Kumar Singh v. State of Bihar1by the majority bench
and Justice D.Y. Chandrachud. Herein, a clear distinction was set between a temporary
enactment and ordinance. It was adjudged that the rights, privileges, duties, and liabilities
created by an ordinance shall not survive, persist, or retain their status quo, if the ordinance has
not been passed by the legislature and has lapsed.

II. INTRODUCTION

Ordinances are legal instruments which can be issued by the executive in place of legislation to
tackle emergency situations wherein legislature cannot convene at short notice. The constitutional
heads of the states of the nations, i.e., the President or the Governors possess the power to issue
ordinances if they consider it prudent with respect to the state of affairs of a place: While the article
123 gives the President the authority to issue an ordinance, in case both houses of Parliament do
not hold session, very similarly; with respect to the state, the Article 213, gives State Governors
the power to issue similar ordinances with reference to the territory within the State government's
control, i.e., the state to which the governor belongs to.2

The catch here is that an ordinance is capped to a duration of six weeks from the first
Parliamentary sitting, after which it shall lose its legitimacy and enforceability, if not passed
by the houses.

1
Krishna Kumar Singh v. State of Bihar, 2017 SCC OnLine SC 10.
2
The Constitution of India, 1950.
2
 “I I III. KRISHNA KUMAR SINGH V. STATE OF BIHAR ”

A. FACTUAL MATRIX

 We learn that the Governor of Bihar enacted a number of ordinances beginning in 1989 that
authorized for the takeover of 429 out of 651 State Sanskrit schools. Professors and other
government employees' services had been taken over by the government. As a result, they
sought payment from the authorities. None of the ordinances were presented to the
Legislature, and there was no enactment of a legislation thereby. When a previous ordinance
expired, a new one was enacted during the Legislature's recess. As a result, a writ suit was
brought at the Patna HC to address whether all ordinances (from the second one) were
unlawful or not.

 Within the seminal judgment of D.C. Wadhwa v. State of Bihar3, the division bench of SC,
re-promulgation of ordinances was considered to be illegal. Although, there was a discussion
regarding the “enduring effects” of the ordinance which has been ceased to operate. The case
travelled up from a division bench up to finally, a seven-judge bench in the SC.

B. CASE HIGHLIGHTS

 Ordinances cannot underpass the scope of judicial review by any means whatsoever,
specifically after the omission of clause 4 under both Articles by the 44 th Amendment Act.
This resulted in freedom to question presidential satisfaction by judicial review. The Justices
relied upon S.R. Bommai v. UOI4, to assess the extent of judicial review of ordinances. The
purpose of the evaluation is to determine if satisfaction has been established on relevant data
material or not. The judiciary would not consider legitimacy or sufficiency of the material for
judicial review. The court shall consider whether the satisfaction was motivated by a mala-
fide motive. In other terms, the review will determine if there was some satisfaction at all or
not.

 Re-promulgation of ordinances was rendered with the epithet of a Constitutional fraud, as set
out in D.C. Wadhwa, and subjugation of democratic legislative procedures. "Re-
promulgation of ordinances is constitutionally impermissible" 5 because it symbolizes an
attempt to circumvent the state legislature, the principal source of legislative power in
parliamentary democracy. Re-promulgation undermines values enshrined in

3
D.C. Wadhwa v. State of Bihar, 1987 SCR (1) 798.
4
S.R. Bommai v. UOI, 1994 SCC (3) 1.
5
Author, Re-promulgation of Ordinances, SUPREMECOURTOBSERVER, (May 9, 2021, 5:23 PM),
https://mub.me/QDyk.
3
 constitution, vesting the legislature with a limited authority to enact ordinances. The
ordinance must be brought before Parliament or State Assembly.

 Non-existent ordinance has no "lasting effect" or otherwise confers the authority to enact
ordinances derogating from parliamentary regulation and dominance on the executive branch.
The judgments as laid out in T. Venkata Reddy vs State of Andhra Pradesh6 and State of
Orissa vs Bhupendra Kumar Bose 7 were effectively overruled regarding the "enduring
rights" created by an ordinance which has ceased to exist. A test of public interest and
procedural necessity shall be applied to determine enduring effect of privileges and
liabilities.8

IV. EFFECTIVE DIFFERENCES B/W TEMPORARY ENACTMENTS & ORDINANCES

 The opinion penned by Chandrachud J., stands correct since there is a clear discernible
difference between an ordinance of executive and temporary act of legislature. The Bench's
view of enduring rights is on the analogy of a temporary enactment, hence, regarded as no
longer good in law.

 When considering a Temporary Enactment, operations taken during the Act but not
completed before termination, i.e., "pipeline transactions" will cease to exist after the act
expires, as those stand in conflict with existing law. However, a Temporary Enactment is
capable of providing a continuation of actions taken thereunder. The reason behind it is that
the Legislature enacts a Temporary Act, which unquestionably has authority to address such
occurrences. Thus, if a permissible clause exists, a "pipeline transaction" may outlast
duration of a “Temporary Enactment”.

WHEREAS;

 When considering an Ordinance, the same "force and effect" as a law adopted by legislature
exists only when it has been brought to the legislature's attention; and will stop operations
six weeks after the legislature convened, sooner if a resolution opposing it is enacted. An
ordinance may be enacted only in times of emergency when legislature does not exist in
session.

 Upon the expiry of an ordinance, there is no question that any acts pending on the expiration
date will be terminated, since once the Ordinance "ceases to operate", it loses "same force

6
T. Venkata Reddy v. State of Andhra Pradesh, 1985 SCR (3) 509.
7
State of Orissa v. Bhupendra Kumar Bose, 1962 SCR Supl. (2) 380.
8
Suhrith Parthasarathy, “Rolling Back Ordinance Raj”, THE HINDU (May 10, 2021, 1:30 PM), https://mub.me/p6N.
4
 and effect" as an Act, and so pipeline actions cannot endure without a legal basis. As an
Ordinance is constitutionally temporary, it cannot contain any savings clause or contingency,
in contrast to a Temporary Act. Even in case of such an inclusion in an Ordinance,
theoretically, State Legislature has the authority to not accept it, as it is completely up to the
Legislature to decide what the contents of the Act shall be. Thus, there is a discernible
distinction between a Temporary Act that can provide for the permanence of actions taken
pursuant to a legislative action and an Ordinance that does not hold the power to make such
a provision constitutionally owing to its executive origins.

V. ENDURING RIGHTS

DEFINITION

 The twin cases overruled by Krishna Kumar stating that the court has incorrectly
conflated temporary acts with ordinances, while regarding the establishment of
permanent benefits from ordinances. The judgment held that “permanent rights
doctrine”, which had been extended to provisional laws in 3 English cases, i.e., Wicks v.
Director of Public Prosecutions9, Warran v. Windle10 and Steavonson v. Oliver11, was
invoked in trying to redefine the effects of a defunct Ordinance.

State of Orissa v. Bhupendra Kumar Bose12

 Facts of the case surrounded a procedural issue raised regarding elections for a central
municipal authority. The government passed an ordinance avoiding the ramifications of
HC's decision to uphold and declare the polls unconstitutional. The order was not renewed
on the resumption of the parliamentary session, resulting in its expiration. The Court held
“If a statute vests an individual with an enduring right, that right cannot be revoked just
because the statute that established it has expired.” The court concluded that the duration
of the impact of a temporary enactment must be decided by the character and nature of
the right created by the enactment, as well as whether those rights or obligations are of a
permanent nature. Although, it can be clearly seen that the court has incorrectly made
ordinances synonymous to temporary statutes.

 Primary contentionable aspect therefore is whether endurable or permanent rights can be

formed for those impacted by executive ordinances as per Article 123 and 213.

9
Wicks v. Director of Public Prosecutions, (1947) A.C. 362.
10
Warran v. Windle, 102 E.R. (K.B.) 578.
11
Steavonson v. Oliver, 151 E.R. 1024.
12
State of Orissa v. Bhupendra Kumar Bose ,1962 SCR Supl. (2) 380.
5
 T. VENKATA REDDY V. STATE OF ANDHRA PRADESH13

 Under this, the State Government approved an act abolishing part-time village
offices. Afterwards, the ordinance expired without being restored by legislative action.
The issue was whether the eliminated offices would be reinstated following the
Ordinance's expiration. SC rejected the contention that an ordinance is void ab initio
if not substituted by a legislative act. In accordance with Article 123(2) (a) or 213(2) the
ordinance "ceases to operate". If the legislature wishes to retain pre-eminence or reverse
the changes made under the ordinance, a statute has to be adopted retroactively. As a
result, the ordinance had a permanent effect.

 The court therefore has adjudged that the authority to impose regulations in favor of
individuals affected does not provide permanent privileges. The notion of enduring rights,
recognized in Bhupendra Kumar Case, has been derived from the implications of
expiration of a temporary act. This does not apply to authority to enact ordinances. The
approval of the notion of "enduring rights" via an ordinance will result in a situation in
which the Governor's authority would persist in terms of the construction of rights, duties
and liabilities based on the premise that they stand as subsisting. The legislature may be
deprived from an opportunity to examine or debate the ordinance. The enduring rights
thesis in case of a ceased to exist ordinance "is a denigration of parliamentary power and
supremacy."14 Any such presumption regarding the conferral of power would be
inconsistent with the principles established in S.R. Bommai Case.

VI. CONSTITUTIONAL PROVISIONS

It has been concluded that an ordinance has the "same force and effect" equivalent to a legislative
law as per Article 213, but it shall be interpreted in conjunction with the remainder of the clause
stating "an ordinance promulgated pursuant to this article." Thus, an ordinance enacted
pursuant to the article may have the same effect as a law if the article's other prerequisites are
met. However, Article 213 (2) (a) and (b) impose further limitations. Thus, if certain
requirements are met, an ordinance may be regarded to constitute a law. However, it cannot be
compared to a temporary law because its effects cease to exist when the statute expires. 15

With respect to Article 213 and with specific reference to article 213 (2) (a)16, an ordinance may

13
T. VENKATA REDDY V. STATE OF ANDHRA PRADESH, (1985) 3 SCC 198.
14
Author, “Re-Promulgation Of Ordinance Is A Fraud On The Constitution – Analysis In Light Of Krishna Kumar
Singh V. State Of Bihar”, MONDAQ (May 9, 2021, 11:23 AM), https://mub.me/HRnP
15
Singh & Associates, “Re-Promulgation of Ordinance Is a Fraud on The Constitution – Analysis in Light of Krishna
Kumar Singh V. State of Bihar”, 11 (9) INDIAN LEGAL IMPETUS, (2018).
16
Article 213 (2) (a), Constitution of India.
6
"cease to operate" 6 weeks after legislature is convened. The term "cease" means "to halt,
relinquish, discontinue, desist, or bring to an end. 17" In this instance, it was decided that if an
Ordinance "ceased to operate" due to its failure to be placed in front of the legislature upon
reconvening, then any acts carried out during the Ordinance's existence will cease to exist.

JUSTICE CHANDRACHUD EXAMINED THE TOPIC OF ENDURING EFFECT ON AN INDEPENDENT

BASIS AS WELL:

• Numerous articles, such as 352, 359(1A), 249(3), 357(2), and 250(2), have provisions
allowing for the preservation of acts taken after the legislative act has ceased to exist.
However, Art.213 and 123 lack such provisions. 18

• The General Clauses Act as under the Section 6 provides that legal rights be preserved and
continued in the event that a statute or regulation is revoked. However, this would not apply
to expired ordinance, as opposed to temporary enactments, that may be withdrawn or
cancelled.

• In the case of S.R. Bommai, a disapproval by the Parliament against a presidential

proclamation (as per Article 356) will result in restoration of status quo ante and any other
interpretation shall undermine the Parliament's sovereignty. While the expired ordinance was
not ruled null and void ab initio, Parliamentary supremacy was maintained when the term
"cease to operate" was read in that manner. 19

The court also went on to hold that such an interpretation shall be adopted which establishes
the constitutional premise of legislative sovereignty over ordinances; to preserve parliamentary
democracy, the rule of law, and the executive and legislative branches' collective accountability.
Hence, vesting the executive with ultimate authority to issue compulsory ordinances will be
detrimental to parliamentary democracy.

VII. RIGHTS AS ENDURED AFTER CESSATION OF ENACTMENT

For the matter under consideration, we shall need to evaluate if the rights, obligations, and
liabilities will survive an ordinance that has “ceased to exist”. The court determined that the
appropriate test to apply is the "public interest" and "constitutional necessity" test. This will
entail analyzing if the Ordinance's ramifications are permanent. When the reversibility to status

17
The Oxford English Dictionary 1014 (2nd Ed., 1989).
18
Gautam Bhatia, The SC’s Ordinance Judgment – I: Key Conceptual Issues, INDCONLAWPHIL, (May 9, 2021,
3:23 PM), https://mub.me/fwjJ.
19
Gautam Bhatia, The SC’s Ordinance Judgment – II: 2 Debates, INDCONLAWPHIL, (May 9, 2021, 3:23 PM),
https://mub.me/g1s.
7
quo ante is not possible, such as in case of a permanent structure or a flood-control dyke, a three-
fold test is given by Justice Chandrachud to establish situations where enduring rights shall
subsist, where:

i. Irreversible effects of act.

i. Impractical results on reversal.

ii. Public interest contravening undoing. 20

Even so, when looking at the aspect of irreversibility or impracticality, the same shall not be an
independent cause of enduring rights since it is quite simple for executive to portray complexities
in case of undoing an ordinance. Since the argument centres on preserving legislative
sovereignty, such exceptions can be granted only in extreme cases affecting the public interest or
constitutional necessities. Thus, a two-pronged test was established, with the second limb, public
interest, to be assessed on an individual basis. In this case, because none of the prerequisites were
met, relief was denied; apart from salary relief which was irreversible. This being the clarificatory
aspects on the issue.

20
Supra, note 2.
8
 CONCLUSION

The conclusion can be summed up in the terms that the doctrine of "enduring rights"
as established as under Bhupendra Kumar Bose case which was later expanded in the T. Reddy
case does not settle well uponthe constitutional principles. This opinion was laid down Krishna
Kumar Case by majority. Justice Chandrachud held that ordinances are not equivalent
to temporary enactments. Re-promulgation and doctrine of enduring rights in ordinances calls
into doubt legislative power and supremacy.

Firstly, a law established by the Parliament cannot be compared to an executive order issued by
the President in an emergency circumstance. Furthermore, Articles 123 and 213 impose pre and
post-conditions on the adoption of an ordinance. The drafters of the constitution had the intention
to attribute the authority of such continuation to the Legislature only.

Secondly, the "enduring rights" hypothesis cannot simply be extended to ordinances. The
concept of an ordinance is designed for emergency situations and cannot be used as a general
legislation. Recognition of such a theory in its entirety will place the Executive in a higher
position as compared to the legislature and cause the breach of the separation of powers.
Additionally, deriving the legislature of the ability to conduct debate or discussion on an
ordinance. The doctrine assumes that ordinances would have a lasting effect, which is a clear
violation of parliamentary democracy. It will be in violation of the principles established in the
S. R. Bommai case. Therefore, no enduring effect in case of rights, liabilities and privileges
subsist once an ordinance by which they were originally created ceases to exist.

9
ANSWER 2.

I. SYNOPSIS

The plethora of aspects underlying the Indian Constitution also incorporates the aspect of
federalism. The constitution framers have regarded India as a federation with a strong centre. It
is a type of political organization which decides the relationship between Centre and States
regarding the distribution of legislative, administrative, executive and financial powers. 21 The
current assignment seeks to answer, through a details study of the background circumstances,
the essential underpinnings of India’s federal polity.

II. INTRODUCTION

LEGISLATIVE LISTS

The demarcated contours of all legislative powers are divided under three-tiered lists, enshrined
in the Seventh Schedule of the Constitution:

• Union List - 98 items which constitute matters of national interest - under the central
government for enacting legislations – EG. defence, international affairs, etc.
• State List - 60 subjects which are matters of local territorial interest - under the state
governments for enacting legislations – EG. Law and order, health, etc.
• Concurrent List - 45 subjects - Both Central and State government have the power to enact
on these subjects. In conflict, obviously center would prevail.

There has been no dearth of discussion upon these aspects to determine relationship between
centre and states and to find out the true essence of federalism and aligning features in India.
Many leaders stood in opposition to the basic idea of a strong Centre with less powers to the State
amongst the fierce debates in the Constituent Assembly. This work deals with various reasons
behind such debates and jurisprudence surrounding the distribution of power under the three
legislative lists. It is pertinent to understand the reconciliation between Centre and State for the
interest of the nation at large.

III. PRIOR DEVELOPMENTS UPTO CURRENT DAY

 The background history prior to the Constitution, as with regards to a federal structure and
essential division of powers in 3 lists can be examined by multiple debates among Centre and
State leaders:

21
Author, The Constitution of India, LAWMIN.NIC.IN, (May 12, 2021, 6:34 PM), https://mub.me/0NV.
10
 At the first prominent instance, the Montage-Chelmsford Report were the initial documents
wherein a proposal for federalism in India was made. It suggested a federal union of
'British' India with all princely States. The States had the option to be self-governing in their
territorial jurisdiction. In 1919, the GOI Act created a unitary but federal system with assent
to the concept of territorial self-government and delegation of power from Center to States,
on these lines. Under this, 2 lists of subjects based on national priority and local control were
established, i.e., federal and provincial.

 Subsequent to th above was the Simon Commission Report of 1930 as which rejected the
concept of unitary government in India and strictly abided by the federal form. The purpose
behind it was to strengthen provincial relationships and to recognize India as a whole. This
was again adopted by GOI Act of 1935 which established the notion of federalism in India.
22

 Then came up the considerations of our own Constituent Assembly under the “Cabinet
Mission Plan (CMP)” and chairmanship of Jawaharlal Nehru created the "Union Powers
Committee (UPC)" in bolstering federalism into the Indian Constitution. While CMP only
allowed the inclusion of defence, foreign affairs and communication for discussions. The
Committee released an initial report which had predicted a weak central government. The
central government's list of subjects included defence, atomic energy, emergency powers
(Article 352-359), etc. The scope of foreign affairs and communication was evaluated to 17
and 12 items respectively. Furthermore, financial emergency power (Article 360) was
recommended. The Committee's goal was to create a more powerful central government while
breaking the constraints imposed by CMP. For this, certain new subjects such as insurance
and banking, planning, etc. were also to be inculcated in the Union List for ensuring
homogeneity in trade and commerce throughout the Indian jurisdiction. 23

IV. THE FORMULATING DEBATES

During the year of Independence, the reports of the Committee and CMP were rendered invalid,
and a new report by the Union Constitution Committee namely, "Distribution of Legislative
Powers between Federation and Unit" was proposed, which indicated a federalist structure with
a strong centre at its core. As per the second report by the UPC, expansion of central authority in
24
the formation of a federation was suggested, reasoning its need in nationwide coordination.

22
M. P. Jain, Nehru and Indian Federalism, 19 (4) JOURNAL OF THE INDIAN LAW INSTITUTE, 392 – 393 (1977).
23
Id, at 405.
24
IV Constituent Assembly Debates, 727.
11
Three legislative lists were suggested, i.e., federal, provincial and concurrent list. Some of the
important suggestions suggested by the UPC were:25

• Residuary Powers - the residuary powers to be given to the centre, which included any such
issue whose place could not be determined in any list.
• Taxation - the commission suggested taxation powers to the centre in order to ensure a
uniform taxation system under Article 286.
• Planning - the power of "planning" was included in the Union List while "economic and
special planning" was enlisted in the Concurrent List.

There was a very apparent conflict between various leaders regarding the division of power
under the three legislative lists could be observed:

A. MOTION: Strong Centre backed Federal Setup

1. Ambedkar - stated that the federal system and legislative lists inherently establish dual
polity. The Constitution confers authority both on Union and States as well as establishes
a flexible structure which can be unitary or federal, depending on circumstance. The
assertion that 3 legislative lists show excessive centralization is erroneous and overblown.
Federalism is concerned with the distribution of legislative and executive authority
between the federal government and the states. States are not expected to be reliant on the
federal government for executive and legislative functions. The Constitution aspires to
equalize the status of the federal government and the states. Hence, the Constitution
cannot be criticized for neither being excessively centralized nor placing states in a
subordinate role to the Centre.26
2. N. Gopalaswami Ayyangar - stated that one of the fundamental elements of a Federal
Constitution is that it must provide for a system of separating legislative authority so that
the Centre and State can operate within specified spheres, and are coordinated and
autonomous. The basic aim was to integrate localities under British Crown to form a
single federation.27
3. Alladi Krishnaswamy Ayyar - According to him the country's commercial, agriculture
and industrial economy were intertwined and hence needed a uniform taxation system.
He supported plenary taxation powers to the Union to eradicate a non-uniform structure.
In subjects such as the general code of Indian law, he also advocated Concurrent list as a

25
VII Constituent Assembly Debates, 33 – 43.
26
VIII Constituent Assembly Debates, 33.
27
V Constituent Assembly Debates, 45.
12
 means of maintaining legal conformity. 28
4. G. L. Mehta - Mr. Mehta suggested that a comparison between Indian States and Russian
Union is not valid. States cannot be granted the power to secede under this situation. Over-
centralization can be damaging, but we must also prevent disintegration to retain national
unity. He contended that only a strong central government is capable of ensuring
provincial autonomy and decentralization. Furthermore, he advocated that development
of industries shall also be included in the Union List to ensure no province regresses while
the others advance.29
5. D. P. Khaitan - He contended a strong centre stating internal peace, security, as well as
other subjects like development of industries and agriculture can only be achieved with
such a system via accumulation of national riches.

B. MOTION: Powerful State Government with Significant Autonomy

1. Shriyut Omeo Kumar Dar (Assam) - He contended that the Centre cannot be
strengthened at the expense of the provinces. The taxation system in the legislative lists
reflected that most benefits are granted to the Centre, while the units are left famished for
funds.
2. For instance, he cited that even after a huge contribution by Assam of roughly Rs. 8 crores
in excise and export duty on tea and fuel, it was only granted Rs. 30 lakhs to carry out its
obligations. He also stated his objections to the inclusion of the terms, "migration" and
"naturalization" in the Union List instead of Concurrent List as the states shall have this
authority for deciding it on case to case basis. For instance, Assam shall have the power
regarding decision about the individuals of different ethnicities flocking into the state
solely to take their resources and destroy the state's legitimacy.
3. Mahomed Sheriff (Mysore) - He stated that an excessively strong central government
would result in oppression and trampling of the individuals residing in the States. The
centre has attempted to erode major powers like as trade, commerce, as well as the
authority to land requisition for defence. Since the report by UPC desires to relegate
provinces and states to a subordinate status, it is comparable to fascism.
4. Narayan Singh (Bihar) - Mr. Singh said that the Centre shall not be granted with much
authority as it might lead to exploitation of powers and will lead to the battle of
independence in vain. To endure that, citizens are voiced appropriately in the federalist
state, it was urged by him that fundamental units of central government be formed in

28
V Constituent Assembly of India Debates, 59.
29
V Constituent Assembly of India Debates, 58.
13
 villages. He stated that the bestowing Union with all powers shall have the potential to
jeopardize the provincial government's authority. Additionally, he proposed that residuary
powers be included in either State List or the Concurrent List and not in the Union List.
5. A. Ramaswami Mudaliar (Mysore Kingdom) - it was contended by Mr. Mudaliar that
various provinces have varying degrees of issues and only units possess the ability to
deal with such problems on a micro level and make individuals' lives ambitious. They are
responsible for ensuring access to education, medical care, housing, and sanitation, among
other things. In such a situation inequitable taxation between the central government and
the states leads to insufficient funding to perform such responsibilities. 30

V. CRITICAL ANALYSIS AND COMMENTS

A. STRONG CENTRAL GOVERNMENT –

 Initially, the Constituent Assembly sought to enact the framework envisioned by CMP which
enabled a broad federal system, with the Centre responsible for just defense, foreign affairs,
and communication, and State accountable for all other responsibilities. However, after
partition, the tone of talks shifted dramatically. The UPC, chaired by Jawaharlal Nehru,
declared CMP reports invalid stating "limitations on the extent of Union Powers." The
Committee unanimously concluded that both a weak national government and a fully unitary
constitution would be detrimental to the national interests. The States should retain control
over a variety of issues. Concluding that "the soundest structure for our Constitution is that
of a Federation with a strong Central Government."31

 Partition engendered widespread anxiety of separatist tendencies and a corollary emphasis on

maintaining unity and integrity. It was believed that devolving provinces' authority would
result in deeper disintegration. Additionally, there were fears that a federal structure would
be insufficient in times of conflict, given the fragile and precarious nature of national unity.
These circumstances favored the establishment of a strong central government.

 Centralization was also favored by India's precarious financial status. India faced economic
instability at the moment of independence, with its finances were already squeezed by a
variety of extreme conditions. The major concerns were regarding ensuring economic and
social well-being and resolving regional imbalances. A strong central authority endowed with
regulatory and planning abilities was believed required to accomplish this goal. "Provincial
autonomy" was viewed as a barrier to equal economic distribution and development. It shall

30
V Constituent Assembly of India Debates, 59.
31
M. LAXSHIMIKANT, INDIAN POLITY, 13.2 – 13.3 (5TH Ed. 2017).
14
 perpetuate insularity in some states while preserving the advantages of others, so impeding
India's overall progress. Thus, a strong Centre was established which helped in maintaining
optimum growth and development. 32

B. STRONG STATE GOVERNMENT –

 Numerous Assembly members campaigned for increased decentralization, with many

proposing the creation of a third tier of administration. Multiple explanations were advanced
for recognition of the traditional village panchayat as the primary unit of provincial
government, including the facilitation of successful participatory democracy, the promotion
of more accountability, and the provision of more tailored governance that is more suited to
local situations. Politicians like R.K. Sidhwa believed that local councils are the fulcrums
of social and economic activity in India as they were important to educate villagers about
their responsibilities and their role in the country's governance. Therefore, by disregarding
local councils, the Constitution violated the basic concept of democracy. It was important to
provide sufficient and appropriate power to small units for providing an effective cure for the
individual residing in a State.33

 There was a constant demand for redefining provinces' jurisdictional limits based on linguistic
approach. However, after independence and the corollary communal violence during
partition, it was not prudent to further create a discord on the grounds of language. The
Assembly decisively rejected the desire for provinces to be divided linguistically. This move
drew widespread condemnation.

 Leaders like T.J.M. Wilson claimed that the Constitution must have granted States greater
independence and control, and that there shall be division on the grounds of cultural and
linguistics. Pulloli Thomas Chacko criticized the Draft Constitution for being federal in
appearance but unitary in substance, claiming that India deserved a real federation due to its
diverse cultural, religious, ethnic, racial, and linguistic minorities, many of which had diverse
demands.

 Union's revenue mobilization capacity is greater than that of States and therefore there
is an imminent need resource transfer to address this vertical imbalance.
Simultaneously, there exists huge disparities in the level of development amongst states.
In low-income states, the standard of living such as access to education, health care, and work

32
D.D. BASU, INRODUCTION TO CONSTITUTION OF INDIA, (22nd Ed., 2015).
33
Editor, Constituent Assembly Debate on Federalism, BYJUS, (May 10, 2021, 7:23PM) https://byjus.com/free-ias-
prep/constituent-assembly-debate-on-federalism/.
15
 opportunities, is relatively low, and their ability to raise revenue is likewise constrained. The
Union was required to make special purpose transfers for the purpose of maintaining equity
and certain basic levels of public service. It was contended that such investment powers and
funding shall be granted to the State List and Provinces since they deal with such problems
on the grass-root levels. 34

VI. CONSTITUTIONAL PROVISIONS

The division of Legislative Powers are enshrined in Part IX of the Indian Constitution under
Articles 245 to 254:35

a) Article 245 - describes 3 legislative lists under 7th schedule which describes subjects on
which laws can be made by Union (Union list), State (State list) and both (Concurrent list).

b) Article 246 - states the exclusive power of the Union to supersede over State in subjects of
Union and Concurrent list.

c) Article 248 - gives residuary powers to the Union, for any subject not included in the lists.
This includes the authority to create a law for imposition of a tax not included in either list.

d) Article 250 - it enables the Parliament to make any and every law, even regarding the subject
of State List, in the case of an "emergency" in India.

e) Article 254 – states that State can make such laws prevail in their state, with Presidential
assent, which may be repugnant to the existing parliamentary laws in the Concurrent List.

VII. JUDICIAL UNDERSTANDINGS

 In the landmark judgment of S.R. Bommai v. UOI36, the court had judged that India follows
a federal system and the Indian Constitution has federalism as its "basic feature". Although
Constitution has provided the Centre with more power, the States cannot be termed as being
dependent on the Centre; they can function independently. The concept of federalism is not
just adopted as an "administrative convenience", rather it is a principle adopted by citizens
for the protection of the nation's integrity and security.

 However, in State of West Bengal v. UOI37 the Court ruled that India is not truly federal in

34
M. Asad Malik, Changing Dimensions Of Federalism In India: An Appraisal, 2 ILI LAW REVIEW, 85-114
(2019).
35
The Constitution of India, 1950.
36
S.R. Bommai v. UOI, AIR 1994 SC 1918.
37
State of West Bengal v. UOI, AIR 1963 SC 1241.
16
 character. The distribution of power is such that only those powers are envisaged within the
jurisdiction of the State which comes territorially under its regulation and the residue,
specifically, economic, industrial and commercial interest of the country are under the Union.

 In the landmark judgement of UOI v. H.S. Dhillon38, the court held that if a subject does not
come under the State or Concurrent List then it shall be deemed to come under the Union List
as per the provisions of Entry 97 along with Article 248. Consequentially eliminating the
necessity for analysis of Entry 1-96 prior to invoking residuary powers, which formerly had
their own legislation grounds. As a result, article 248 was envisioned in the "wildest
imaginable terms", establishing an independent base of power. In Satpal Co. V. Lt. Governor
of Delhi39, the court adjudged residuary powers as the Union's plenary power.

 Justice Seervai presented a different and critical interpretation in Kesavananda Bharati v.

State of Kerala40 overruling the majority decision in HS Dhillon and Satpal case. The Court
ruled that a topic which was known to the framers of Constitution but was not included in the
list cannot be introduced via residuary powers. Since in such a case, the framers would not
leave out known-subjects for the courts to identify in the scope of residuary powers.

 The doctrine of pith and substance was established in State of Bombay v. F. N. Balsara41
which held that if the genuine aim of this law is to address a subject falling within the
jurisdiction of the enacting legislature, then it shall be considered intra vires, even though it
inadvertently overreaches on topics outside legislature's competence. In CIT v. Hindustan
Bulk Carriers42, the court developed doctrine of harmonious construction under which a five-
pointer principle was developed for establishing a balance between Centre and State. The
territorial nexus theory permits the State to enact rules governing extraterritorial activity if it
establishes a "nexus" between subject and State. This was held in Tata Iron & Steel Company
v. Bihar State Tax Act43, which declared that this nexus shall be reasonable. 44

38
UOI v. H.S. Dhillon, AIR 1972 SC 1061.
39
Satpal Co. V. Lt. Governor of Delhi, AIR 1979 SC 1550.
40
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
41
State of Bombay v. F. N. Balsara, AIR 1951 SC 318.
42
CIT v. Hindustan Bulk Carriers, AIR 2002 SC 3491.
43
Tata Iron & Steel Company v. Bihar State Tax Act, AIR 1958 SC 452.
44
P. M. Bakshi, “Concurrent Powers of Legislation under List III of the Constitution”, LEGALAFFAIRS, (May 12,
2021, 2:23 PM), HTTPS://MUB.ME/LQCD.
17
 CONCLUSION

The Constitution has enshrined a federalist system which empowers both the Centre and the
States in terms of creation of a law in their respective jurisdictions. However, since the historical
beginning, the Centre has been bestowed upon with more power than the States, instating an
apparent supremacy. There have been multiple debates from the State leaders on the grounds of
language, funding disparity and decentralization to provide States with an equal authority in
Legislative lists as the Union.

The Centre has been given with adequate authority to maintain uniformity and integrity of the
nation. However, coordination between the federal and the state governments is the need of the
hour for maintaining law and order. Throughout the years, the judiciary has helped in maintaining
this balance to resolve conflicts between State and Centre regarding division of powers and
federalism.

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