1.
Comment upon the distribution of legislative subjects between the Centre and states. Under what
circumstances does the Parliament make laws on matters enumerated in the State list?
Approach:
- Introduce briefly with articles and part of the Constitution dealing with the distribution of legislative
subjects between the Centre and states. - Discuss how the legislative power’s distribution between Centre and State is done in the Indian
constitution. - Bring out the circumstances under which Parliament can make laws on matters enumerated in the
State List.
Answer:
Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations between the Centre
and states. The division of legislative powers is done with respect to both the territory and the subjects
of legislation and is contained in the three-fold distribution of legislative subject i.e. Union list, state list
and concurrent list under Schedule 7 of the Indian Constitution. - The Parliament has exclusive powers to make laws with respect to any of the matters enumerated in
the Union List which generally comprises of the matters of national importance and the matters
which require uniformity of legislation nationwide.
- The state legislature in normal circumstances makes law with respect to any matters enumerated in
the State list. Few examples include matters like police, public order, public health etc. - Both Parliament and State legislature can make laws with respect to any of the matters enumerated
in the Concurrent list. The matters on which uniformity of legislation is required but is not essential
are placed in the concurrent list. - The power to make laws with respect to residuary subjects i.e. the matters which are not
enumerated in any of the three lists is vested with the Parliament.
The Constitution ensures the predominance of the Union list over the State list and the Concurrent list
and that of concurrent list over the state list. In case of a conflict between the Central law and the state
law on a subject enumerated in the Concurrent list the Central law prevails over the state law. However,
if the state law has been reserved for the consideration of the President and has received his/her assent,
then the state law prevails in that state.
This unique distribution of legislative powers in the current scheme ensures that the diversity of India is
taken into consideration while integrity and uniformity is maintained wherever required.
Circumstances under which Parliament can make laws on matters enumerated in the State list: - Article 249: When Rajya Sabha passes a resolution supported by two-thirds of the member present
and voting, declaring that it is necessary in national interest that Parliament should make laws on
matter in the State list . - Article 250: During a national emergency, Parliament acquires the power to legislate with respect to
matters in the State list. - Article 252: When the legislature of two or more states pass resolution requesting the Parliament to
enact laws on a matter in the state list, then Parliament can make laws for regulating that matter. A
law so enacted applies only to those states which have passed the resolutions . - Article 253: The Parliament can make laws on any matter in the State list for implementing the
international treaties, agreements or conventions. - President’s rule: During President’s rule in a state, Parliament becomes empowered to make laws
with respect to any matter in the State List in relation to that state
2.
Explain the significance of the concept of ‘separation of powers’ in a democracy. What can be the
reasons for India not following the doctrine in the strict sense?
Approach:
- Briefly explain the doctrine of separation of powers.
- Explain how it has not been adopted in strict sense in India
- Discuss some of the important judgments of SC in context with separation of power.
Answer:
The doctrine of separation of powers is traceable to Aristotle, but the writings of Locke and
Montesquieu gave it a base on which the modern attempt to distinguish between legislative, executive
and judicial power is grounded.
According to this doctrine there should be a clear-cut division of power between the three organs of the
state i.e. Executive, Legislative and the Judiciary in such a manner that: - The same person should not form part of more than one of the three organs of the government. For
e.g., ministers should not be a part of the Parliament. - One organ of the government should not interfere with any other organ of the government. For e.g.
the Judiciary should be independent of the Executive. - One organ of the government should not exercise the functions assigned to any other organ. For e.g.
the Ministers should not be assigned any legislative powers.
Its significance in a democracy: - It ensures that power is not concentrated in a single person’s hand or a group of people.
- It ensures government of law rather than wills and whims of the officials.
- It ensures an independent judiciary and hence a fair government and proper justice to the people.
- It ensures checks and balances in the system.
In India, separation of powers has been considered as one of the basic features of Indian Constitution.
Article 50 also puts an obligation over the state to separate judiciary from executive. However,
functional and personnel overlap can be observed, such as: - Executive is part of the Legislature and are responsible to its lower house.
- Judiciary can declare a legislation and an executive action as void or unconstitutional.
- Executive has a role to play in appointment of judges.
- Legislature may also perform judicial functions, for example if the President is to be impeached both
houses of Parliament are to take an active participatory role.
This shows that instead of adopting a rigid separation of power like that in USA, India opted for a unique
separation of power with sufficient checks and balances. The reason behind this are: - Indian Constitution is pro-responsibility rather than having stability at the centre. A nonparliamentary
executive tends to be less responsible to the legislature. Thus, current scheme
ensures a more responsible government. - Functions of various organs of the government have been meticulously differentiated in the
constitution and no organs can usurp the power of the other.
The doctrine of separation of powers in its true sense is very rigid and therefore, Indian constitution
makers have made it more fluid by ensuring sufficient number of checks and balances on the powers of
various organs of the government.
