One of the essential features of a federal state is the distribution of the sovereign power to legislate between the union and the states. The Indian constitution is modified on the federal structure, but there are more unitary powers than federal. This has led to hold the Indian federalism as quasi-federal, or Amphibian (both unitary and federal). This is evident from Keshavananda Bharti’s case, state of West Bengal V/s Union of India and state of Rajasthan v/s union.
Article- 245 to 253 deal with distribution of legislative powers and the special circumstances when the union may make law in the state list.
The parliament may make law for the whole or any part of the territory of India, and has exclusive power to legislative on any matter enumerated in List 1of 7th schedule called the union list: this has 97 items.
Ex– railway, air-ways, defence, foreign exchange, war and peace, diplomatic and consular representatives, citizenship, aliens, reserve bank of India, banking, insurance.etc
Legislature of state may take law in the state list of the 7th schedule and the law made by the state is applicable throughout the territory of that state. This has 66 items.
Ex– agriculture, fisheries, market and fairs, land revenue, public health sanitation, hospitals and dispensaries taxes on agriculture income, entry tax, profession tax etc.
Parliament and state legislature may make law in the concurrent list of the 7th schedule. This has 47 items.
Ex– contract, trusts, trade, unions, charities, price control, factories, etc. but education was added from state list: 42nd Amendment.
After distributing the sovereign power to legislate between the union and the state, according to union list, state list, and concurrent list, the constitution vests the residuary in the union (art-245(4). this is called the residuary.
In the US, Australian and Swiss constitution, the residuary is with the local states.
As prof. where points out, in his federal state the vesting of the residuary tills the balance in favour of federalism.
The leading case on residuary is the union of India v/s Dhillon (1975). it was held that to test the union law, we have to find out whether that law is encroaching any of the items of state list. If it does not, then it is within the power of the union list, hence, wealth tax imposed on agricultural land by the parliament was upheld by the supreme court as this did not encroach state list.
POWER OF THE PARLIAMENT TO LEGISLATE IN STATE LIST
There are four circumstances when the parliament may make law in the state list and in such a case, the federal structure gives way to the unitary states, of course, all the 4 circumstances are specified and are limited.
NATIONAL INTEREST – Article- 249
If the Rajya Sabha declares with a 2/3 majority that the parliament should make in a particular item in the state list, then such a law may be made by the parliament. The life of such a resolution is one year and maybe renewal if not so renewed, such a law operates for 6 months after the resolution cases. Eg; essential commodities act.
EMERGENCY- Article- 250
When a proclamation of emergency is in operation. Parliament shall have the power to make law in the state list, such a law will be in operation during the emergency and 6 months after the emergency is lifted. Eg- defence of India act and rules.
STATES DELEGATION- Article- 252
If two or more states, in their legislatures, pass resolution empowering the parliament to make law in a specified item in the state list, then parliament may make law in that item. That law is applicable to those states only. States have no power to amend such law. Eg-: prize competition act.
TREATIES- Article- 253
Parliament is empowered to make law to implement any treaty, agreement or convention with any other country or with international organizations.