The issue of legislative competence comes up at times when a Bill is sought to be introduced in either House of Parliament or even at times a Statutory Resolution is brought forward to oppose promulgation of an Ordinance. This article seeks to cover the main aspects of the very term ‘legislative competence’ and matters related thereto.
Relevant articles of Constitution of India
Article 246: Subject matter of laws made by Parliament and by the Legislatures of States [Provides for three lists in Union list, State list and Concurrent lists as provided for Seventh Schedule to the Constitution]
Article 248(1): Residing powers of legislation (Parliament has exclusive power to made any law with respect to any matter not enumerated in the concurrent list or State List [Seventh Schedule: Union list: Entry 97 “Any other matter not enumerated in List II or List III including any tax not mentioned in either of those list]
Article 254(i): Inconsistency between laws made by Parliament and laws made by the Legislature of States.
The Constitution provides for a three-fold distribution of legislative power between the Union and the State, the Union List Article 246(1) enumerates topics of legislation with respect to which Parliament has exclusive power to make laws; the State List enumerates topics of legislation with respect to which the Legislature of a State has exclusive power to make laws and the Concurrent List Article 246(3) enumerates topics with respect to which both Parliament and the Legislature of a State have the power to make laws [Article 246(2)]. The residuary power of legislation, i.e the power to make law with respect to any matter not enumerated in the Concurrent List or the State List is vested in Parliament, and this power includes the power of making a law imposing any tax not mentioned in either of those Lists.
[Article 248 (1) and entry 970 the Union list]
In the hierarchy of legislation, a higher place is accorded to laws passed by Parliament. Inconsistency between laws made by Parliament and those made by a State Legislature, both acting under the Concurrent List, is resolved by making the law made by Parliament to prevail over the law made by the Legislature of the State which, to the extent to repugnancy, will be void. [Article 254(1)]
However, if the law made by the State Legislature has been reserved for the consideration of the President and received his assent, it shall prevail in that State notwithstanding the inconsistency. [Article 254(2)]
The entries in the three Lists are only legislative heads or fields of legislation: they demarcate the area over which the appropriate Legislatures can operate. The widest amplitude is given by the Courts to the language of the entries, the reason being that the allocation of subjects is not by way of scientific or logical definition but is a mere enumeration of broad and comprehensive categories. Where entries in the different Lists or in the same List overlap or appear to be in direct conflict with each other, the Courts reconcile the entries and bring about a harmonious construction, by reading the two entries together and by interpreting and, where necessary, modifying the language of the one by that of the other
[Harakchand Ramachand Banthia v. Union of India, A.I.R.. 1970 S.C. 1453; See also Calcutta Gas Co. ltd v State of West Bengal, A.I.R. 1962. S.C. 1044. State of Bombay v. Narottamdas Jethabhai A.I.R. 1951 S.C. 69.]
The legislative power includes the subsidiary or auxiliary power to validate laws found to be invalid for one infirmity or another. It is competent to the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provision of the said earlier law effective from the date when it was passed. [Rai Ramkrishna v State of Bihar, A.I.R 1963, SC 1667]. Likewise, the power to legislative for validating actions taken under a statute which were not sufficiently comprehensive is ancilliary or subsidiary to the power to legislate on any subject within the competence of Parliament or a State Legislature. [Metal Corporation of India ltd v Union of India, A.I.R 1970 Calcutta 193]
Arising from the classification or matters into the three lists, points of order have been raised, time and again, regarding the competence of the Lok Sabha to legislate on a particular matter before the House.
The question of ‘vires’ was raised for the first time in the Central Legislative Assembly in 1937 [Legislative Assembly Debates 01.04.1937 PP 2546-48, the question of Legislative competence again arose in October, 1937, 6.10.1937 PP 4145-52, 7.10.1937 PP 3197-202] with the coming into force of Part III of the Government of India Act, 1935, relating to Provincial Autonomy. Earlier such a question could not be raised because the power to decide whether a matter related to a Central or Provincial subject, transferred subject or reserved subject, was vested in the Governor-General in Council, or the Governor, or the case might be, and the jurisdiction of the courts over these matters was barred.
It is the accepted practice in Lok Sabha that the Speaker does not give any ruling on a point of order raised whether a Bill is constitutionally within the legislative competence of the House or not. The House also does not take a decision on the specific question of vires of a Bill.
It is open to members express their views in the matter and to address arguments for or against the vires for the consideration of the House. The House takes this aspect into account in voting on the motion for leave to introduce the Bill or on the subsequent motions on the Bill.
[L.S. Deb. 22.04.1963 cc. 11211-12; 02.08.1965 c 3914; 14.11.1968, cc. 304-05; 21.03.1969, cc 323-24; 19-08-1974; cc 270-72; 23.02.1981 cc. 361-65; 02.03.1981, cc 364-69; 23.04.1981. cc 265-70.]
Position prior to 1942
Before 1942, whenever a question was raised in the Central Legislative Assembly as to whether a Bill, clause or amendment fell outside the competence of the House to enact, the Speaker took upon himself to uphold or rule the point or order after hearing argument on both sides Ruling that a question of legislative competence of the Assembly should not be decided by the House itself ,Speaker Abdur Rahim observed as under:
“A question relating to the legislative competence of the Assembly which may often involve much difficulty and complexity should not be summarily settled by the Chair on a point of order. In fact, the Federal Court has been established for the very. Purpose or dealing with these questions and the Chair has really not the facilities or the time and the material on which to come to a satisfaction conclusion on a point of this character so as to be able to hold finally whether the Assembly should or should not consider the particular legislative proposal.
I, therefore hold that this is not a question which should be settled by a ruling of the Chair on a point of order.”
[Legislative Assembly Debates 17.02.1942 PP 280-83 Elaborate ruling in debate dated 25.03.1942, PP 1533]
Decision where left to House
There have, however been occasions when the Speaker, leaving the ultimate decision on the matter to the House, has expressed his own views on the vires of Bills.
[Instance L.S. Deb 30.9.1955, cc. 15962-75; 28.02.1956, cc 1031, 1048-55; 7-8-1956, cc 2426-31; 18.08.1958, cc 1400-23; 9.8.1961.cc 1016-17 and 1033; 1.9.1976, c.14]
Instance where leave to introduce Bill was opposed on ground of legislative competence.
If the motion for leave to introduce a Bill is opposed on the ground of legislative competence of the House, a full discussion on the point may be permitted
[Rule 72 L.S. Debates 13.04.1963 cc 9463-71; 2.3.1981 cc 314-21]
Where the fulfilment of a constitutional requirement is essential for the passing of a Bill, the Speaker may permit discussion on the Bill for the intervening stages and ask the Government to meet that requirement in the meantime.
On 25 April 1958, when the motion for reference of the Estate Duty (Amendment) bill to a Select Committee was under discussion, a member contended that as the Bill proposed to levy estate duty in respect of agricultural land which was a State subject, Parliament could proceed in the matter only after resolution, as required under the Constitution, had been passed by two or more States. [Article 252]
After hearing argument on both sides, the Speaker upheld the contention However, he felt that the constitutional prohibition referred only to the ‘passing’ of the Act, Since the House was at the time only at the stage of referring the Bill to a Select Committtee, it could proceed with the matter so that in the meanwhile Government could ensure that at least two State Legislature passed resolutions as contemplated by the Constitution whereafter the Bill could be passed by the House in conformity with constitutional provisions
[L.S Deb. 25.04.1958, cc. 11499-529]
During consideration of clause 2 of the Essential Services Maintenance Bill, 1968, a point was raised that transport services for carriage of passengers or goods by land, water or air referred to in sub-clause (1) of clause 2 were mostly State subjects and were not necessarily within the Central field. The Chair upheld the objection and suggested that the clause might be made clear and precise. Consequently, the Minister moved an amendment for insertion in the clause of the words ‘with respect to which Parliament has power to make laws’ alter the word ‘air’, which was adopted by the House L.S. Deb, 16.12.1968; cc. 223-339, 17.12.1968, cc 217-258 and 227-370.
Attorney General’s Opinion
In order to help the Lok Sabha and the Speaker to decide issues with reference to legislative proposals before the House, the Attorney-General has on occasions addressed the House at the suggestion of the Speaker or of the House and given his opinion on the legal and constitutional aspects of the matters before the House.
- [For instance the Attorney-General has addressed the House in connection with the following Bills; the Preventive Detention Bill, 1950 on 25.2.1950:
The Vindhya Pradesh Legislative Assembly (Prevention of Disqualification) Bill, 1953, on 9.5.1953.
The Indian Cattle Preservation Bill, 1952 (a private member’s Bill) on 1.5.1954. The Sales Tax Validation Bill, 1956, on 28.2.1956;
The Compulsory Deposit Scheme Bill, 1963, on 29.4.1963.
The Finance Bill, 1969 (to give clarification on his opinion pertaining to clause 24 thereof) on 1.5.1969.
