Seventh Schedule of Indian Constitution: Union, State and Concurrent Lists and Legislative Relations

Seventh Schedule: Meaning, Purpose and Structure

What the Seventh Schedule Contains

The Seventh Schedule is the part of the Constitution that lists the subjects on which Parliament and the State Legislatures may make laws. Article 246 refers to it directly. It holds three lists. List I, the Union List, covers subjects on which Parliament alone legislates. List II, the State List, covers subjects on which a State Legislature normally legislates alone. List III, the Concurrent List, covers subjects on which both can legislate.

As amended to date, the Union List has 98 entries, the State List 59 and the Concurrent List 52. The original Constitution had 97, 66 and 47. Amendments have added lettered entries such as 2A of the Union List and omitted others, which is why the counts differ from one book to another.

The division follows the importance of the subject. Matters of national importance, and those that need one law across the country, sit in the Union List. Matters of regional and local importance, where variety is acceptable, sit in the State List. Matters on which uniformity is desirable but not essential sit in the Concurrent List, which allows diversity along with uniformity.

Why the Constitution Divides Legislative Power

India has two sets of government, one for the whole country and one for each State, and both have constitutional status. The Constitution therefore marks out what each may do. It divides legislative, executive and financial powers between the Centre and the States, but it does not divide judicial power, because it set up one integrated judicial system that enforces both Central and State laws.

The scheme rests on the federal idea of subsidiarity, under which what can best be administered from the Centre stays with the Union and what is of regional or local interest goes to the States. The Concurrent List covers areas such as education, health, employment and nutrition, where a broad national approach is needed but each State has its own requirements.

Legislative relations form one of three heads of Centre-State relations, with administrative and financial relations as the other two. They have four aspects:

• Territorial extent: Where the laws of Parliament and of a State Legislature apply.
• Distribution of subjects: The three lists and the residuary power.
• Parliamentary legislation in the State field: The situations in which Parliament may enter the State List.
• Central control over State legislation: Reservation of Bills and previous sanction.

The division of executive power follows the division of legislative power. For a Concurrent List subject, the executive power rests with the States unless the Constitution or a law of Parliament gives it to the Centre.

Origins and Models of the Three-List Scheme

Government of India Act 1935 as the Model

The three-list scheme came from the Government of India Act, 1935, which provided for an all-India Federation of provinces and princely states. It divided powers between the Centre and the units into a Federal List with 59 items, a Provincial List with 54 items and a Concurrent List with 36 items. Residuary powers went to the Governor-General, who was also the Viceroy. The Constitution kept the three lists but gave the residue to Parliament, following Canada.

The federal part of the 1935 Act never came into operation. It was to take effect only when half the states, counted by weight, agreed to federate. That agreement was never reached, and the Federation was postponed indefinitely after the Second World War began. The provincial part took effect in 1937 and replaced dyarchy in the provinces with provincial autonomy.

Whether the 1935 Act laid down a federal constitution turns on these facts. It had the outward form of a federation, with units, a division of powers by lists and a Federal Court. Yet four features cut against a federation.

• Discretion: The Governor-General and the provincial Governors held wide discretionary and safeguard powers.
• Residue: The residuary power lay with the Governor-General.
• Dyarchy at the Centre: Defence and foreign affairs were controlled through the Governor-General.
• Princely nominees: The upper house of the federal legislature was to reserve 104 of its 260 seats for nominees of the rulers of the princely states.

It was a federal design that never became a working federation.

Residuary Powers in the United States, Australia and Canada

Federations place the residue differently, and the comparison shows what India chose.

India follows the Canadian precedent on the residue and the Government of India Act, 1935 on the three lists. The Concurrent List is traditionally traced to the Australian Constitution, which also has a provision under which State Parliaments can refer matters to the Commonwealth Parliament, a close parallel to Article 252 of India. Canada also gave India the doctrine of pith and substance, which came from rulings of the Privy Council on the Canadian lists.

Territorial Extent of Laws: Article 245

Territorial Reach of Parliament and State Legislatures

Article 245 fixes where laws operate. Subject to the Constitution, Parliament may make laws for the whole or any part of the territory of India, and a State Legislature may make laws for the whole or any part of its State. The territory of India includes the States, the Union territories and any other area for the time being included in it.

Article 245(2) adds that no law of Parliament is invalid because it would have extra-territorial operation. Parliament alone can therefore make extra-territorial laws, and its laws apply to Indian citizens and their property anywhere in the world. A State Legislature has no such power. Its laws do not apply outside the State, except where there is a sufficient nexus between the State and the object of the law.

Article 246(4) completes the picture for areas outside the States. Parliament may make laws on any matter for any part of the territory of India not included in a State, even if the matter is in the State List. This is the basis of Parliament's power to legislate for Union territories on any subject.

Doctrine of Territorial Nexus

The doctrine of territorial nexus tests whether a State law with some effect beyond the State borders is valid. Article 245(1) confines a State law to the State, yet the courts have held State laws with extra-territorial operation to be valid when there is a sufficient nexus between the State and the object of the law.

The doctrine has two features. First, it applies to State Legislatures; Parliament does not need it because Article 245(2) already allows extra-territorial laws. Second, it relaxes the territorial limit but never the subject limit, because a State still needs a matter in List II or List III to legislate on at all.

A State Legislature's laws are therefore tested twice, first for subject (is the matter in the State List or Concurrent List?) and then for territory (does the law keep within the State or have a sufficient nexus with it?).

Areas Where Acts of Parliament Do Not Apply Directly

The Constitution places three restrictions on Parliament's otherwise wide territorial reach:

• Union territories without a working Legislature: Under Article 240 the President may make regulations for the peace, progress and good government of the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu, and Puducherry whenever its Legislature is dissolved or suspended. The Jammu and Kashmir Reorganisation Act, 2019, brings Ladakh, a Union territory without a Legislature, under the same power. A regulation has the same force as an Act of Parliament and may repeal or amend one.
• Scheduled Areas: Under paragraph 5 of the Fifth Schedule the Governor may direct by public notification that an Act of Parliament or of the State Legislature does not apply to a Scheduled Area, or applies with specified exceptions and modifications.
• Tribal areas: The Governor of Assam may likewise direct that an Act of Parliament does not apply to an autonomous district in Assam, or applies with modifications. The President has the same power for the tribal areas of Meghalaya, Tripura and Mizoram.

The first of these is a power to make law directly, while the other two are powers to switch an Act off or adjust it for a specified area.

The Three Lists and Their Entries

Union List: Subjects of National Importance

The Union List has 98 entries, and Parliament has exclusive power to make laws on them. Its entries fall into recognisable groups.

• Defence and security: Defence of India (1); naval, military and air forces (2); deployment of Union armed forces in a State in aid of the civil power (2A); arms and ammunition (5); atomic energy (6); the Central Bureau of Intelligence and Investigation (8); preventive detention for defence, foreign affairs or security of India (9).
• Foreign affairs: Foreign affairs (10); the United Nations (12); treaties and agreements (14); war and peace (15); citizenship, naturalisation and aliens (17); extradition (18); passports and visas (19).
• Transport and communication: Railways (22); national highways (23); national waterways (24); major ports (27); airways (29); posts, telegraphs, telephones, wireless and broadcasting (31).
• Industry and resources: Industries whose control by the Union Parliament declares by law to be expedient in the public interest (52); oilfields, mineral oil and petroleum products (53); regulation of mines and mineral development to the extent Parliament declares by law (54); labour and safety in mines and oilfields (55); inter-State rivers and river valleys (56); fishing and fisheries beyond territorial waters (57).
• Money, banking and trade: Currency, coinage and legal tender (36); the Reserve Bank of India (38); foreign trade (41); Inter-State trade and commerce (42); banking (45); insurance (47); stock exchanges and futures markets (48).
• Institutions and administration: The Census (69); All-India Services and the Union Public Service Commission (70); elections and the Election Commission (72); the Supreme Court (77) and the High Courts (78); inter-State migration and inter-State quarantine (81).
• Union taxes: Taxes on income other than agricultural income (82); customs duties (83); excise on petroleum crude, high speed diesel, petrol, natural gas, aviation turbine fuel and tobacco (84); corporation tax (85).

The list ends with a set of incidental entries, 93 to 96, which cover offences, inquiries and statistics, the jurisdiction of courts and fees on any Union List matter, and with Entry 97, the residuary entry.

State List: Subjects of Regional and Local Importance

The State List has 59 entries, and a State Legislature has exclusive power over them for its State, subject to the overriding provisions of Article 246. Its main subjects fall into the following groups.

• Law and order: Public order (1); police, including railway and village police (2); prisons, reformatories and Borstal institutions (4).
• Local and social matters: Local government (5); public health and sanitation, hospitals and dispensaries (6); pilgrimages other than those to places outside India (7); intoxicating liquors (8); relief of the disabled and unemployable (9).
• Land and agriculture: Agriculture, including agricultural education and research (14); preservation and improvement of livestock and veterinary matters (15); water supplies, irrigation, canals and water power, subject to Entry 56 of the Union List (17); land and land tenures (18); fisheries (21).
• Trade and enterprise: Trade and commerce within the State (26), subject to Entry 33 of the Concurrent List; markets and fairs (28); money-lending (30); betting and gambling (34).
• State machinery: Elections to the State Legislature (37); State public services and the State Public Service Commission (41).
• State taxes: Land revenue (45); taxes on agricultural income (46); taxes on lands and buildings (49); taxes on the consumption or sale of electricity (53); taxes on the sale of petroleum crude, diesel, petrol, natural gas, aviation turbine fuel and alcoholic liquor for human consumption (54); taxes on professions, trades, callings and employments (60).

Entries 64 to 66 are the incidental entries of the State List. They cover offences, the jurisdiction of courts other than the Supreme Court, and fees on State List matters.

Concurrent List: Subjects of Shared Competence

The Concurrent List, List III of the Seventh Schedule, has 52 entries on which Parliament and a State Legislature can both make laws, matters on which uniformity across the country is desirable but not essential. Its main entries fall into these groups:

• Criminal law and procedure: Criminal law (1); criminal procedure (2); preventive detention for the security of a State, public order or essential supplies (3).
• Civil and personal law: Marriage and divorce, adoption, wills and succession (5); transfer of property other than agricultural land (6); contracts (7); bankruptcy and insolvency (9); trust and trustees (10); evidence and oaths (12); civil procedure, limitation and arbitration (13).
• Subordinate courts: Administration of justice and the constitution and organisation of all courts except the Supreme Court and the High Courts (11A).
• Health, environment and planning: Prevention of cruelty to animals (17); forests (17A); protection of wild animals and birds (17B); drugs and poisons (19); economic and social planning (20); population control and family planning (20A).
• Economy and labour: Trade unions and industrial and labour disputes (22); social security and social insurance (23); welfare of labour (24); price control (34); electricity (38).
• Education and professions: Education, including technical and medical education and universities (25); legal, medical and other professions (26); charities and religious endowments (28).
• Other shared matters: Weights and measures except the establishment of standards (33A); newspapers, books and printing presses (39); acquisition and requisitioning of property (42); stamp duties other than rates of stamp duty (44).

Entries 45 to 47 are the incidental entries of the Concurrent List. They cover inquiries and statistics, the jurisdiction of courts and fees.

How the Entry Counts Changed to 98, 59 and 52

The counts follow from what the amendments omitted and inserted. The Union List began with 97 entries. Entry 33 was omitted by the Seventh Amendment (1956) and Entry 92 by the 101st Amendment (2016). Entries 2A (42nd Amendment), 92A (Sixth Amendment) and 92B (46th Amendment) were added as lettered entries, and Entry 92C, inserted by the 88th Amendment in 2003, was never brought into force and was omitted in 2016. That leaves 98.

The State List began with 66 entries and has lost seven numbers: 36, on acquisition and requisitioning of property (Seventh Amendment, 1956); 11, 19, 20 and 29, on education, forests, wild animals and birds, and weights and measures (42nd Amendment, 1976); and 52 and 55, on the entry tax and the tax on advertisements (101st Amendment, 2016). That leaves 59. The Concurrent List began with 47 entries and gained five lettered entries from the 42nd Amendment, which are 11A, 17A, 17B, 20A and 33A, without any omission. That makes 52.

Same Subject in Different Lists: Entries Students Confuse

Several subjects appear in more than one list, each time with a different scope.

Each pair divides the same field by a test written into the entry, such as beyond or within territorial waters, the setting of standards or all other weights and measures, declared or not declared by Parliament, and outside or inside India.

Article 246: Priority Among the Lists

Non Obstante Clauses and the Order of Priority

Article 246 sets an order of priority among the three lists through its wording. Under clause (1), Parliament has exclusive power over the Union List "notwithstanding anything in clauses (2) and (3)". Under clause (2), Parliament and, subject to clause (1), a State Legislature have power over the Concurrent List, "notwithstanding anything in clause (3)". Under clause (3), a State Legislature has exclusive power over the State List "subject to clauses (1) and (2)".

Three rules follow:

• Where the Union List and the State List overlap, the Union List prevails.
• Where the Union List and the Concurrent List overlap, the Union List prevails.
• Where the Concurrent List and the State List overlap, the Concurrent List prevails.

These rules decide which list a subject belongs to. A clash between two laws on the same Concurrent List subject is a different problem and is settled by Article 254. The Sarkaria Commission described this supremacy of the Union as a technique to avoid absurdity, resolve conflict and ensure harmony between Union and State laws, and as indispensable for the successful functioning of the federal system.

Article 246A: Goods and Services Tax

The 101st Amendment Act, 2016 inserted Article 246A, which gives a special rule for the goods and services tax. Notwithstanding Articles 246 and 254, Parliament and, subject to clause (2), the Legislature of every State have power to make laws on the goods and services tax imposed by the Union or by that State. Clause (2) gives Parliament exclusive power to make laws on the tax where the supply of goods, services or both takes place in the course of inter-State trade or commerce.

Because Article 246A operates notwithstanding Articles 246 and 254, the ordinary priority rules and the repugnancy rule do not decide how Central and State laws on the tax relate to each other. The same amendment made Articles 248, 249 and 250 subject to or inclusive of Article 246A. The residuary power in Article 248 is now "subject to article 246A", and the powers of Parliament in Articles 249 and 250 extend to the goods and services tax.

Article 247: Additional Courts for Union Laws

Article 247 is a short provision that completes the scheme. Notwithstanding anything in Chapter I of Part XI, Parliament may by law provide for the establishment of any additional courts for the better administration of laws made by Parliament, or of any existing laws on a matter in the Union List.

The provision fits with the entries on courts. The constitution and organisation of courts other than the Supreme Court and the High Courts is a Concurrent List entry (11A), and the Union List gives Parliament the jurisdiction and powers of all courts except the Supreme Court on Union List matters (Entry 95). Article 247 lets Parliament add courts for the laws it makes. The need is real, as the Punchhi Commission noted that nearly 340 Central legislations referable to the Union List and the Concurrent List are administered by courts established by the State Governments.

Residuary Powers of Legislation

Article 248 and Entry 97

Residuary power is the power to legislate on a matter that appears in none of the three lists. Under Article 248, Parliament has exclusive power, subject to Article 246A, to make any law on a matter not enumerated in the Concurrent List or State List. Clause (2) adds that this includes the power to make a law imposing a tax not mentioned in either of those lists. Entry 97 of the Union List repeats the point in the words "any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists".

Residuary power exists because no list can foresee every future subject. When a new technology or a new activity appears, such as cyber law, it falls to Parliament unless some entry of the State List or Concurrent List already covers it.

Demands to Move Residuary Power to the States

States have long objected to the Union's holding of residuary power. The Rajamannar Committee (1969), the Anandpur Sahib Resolution (1973) and the West Bengal Memorandum (1977) all asked for the residue to go to the States, and the Central Government accepted none of these demands.

The Sarkaria Commission took a middle course. It recommended that the residuary powers of taxation remain with Parliament and that the other residuary powers be placed in the Concurrent List. Here the objection to the existing scheme was met by sharing the residue, not by transferring it. The Punchhi Commission supported most of the Sarkaria findings.

Parliamentary Legislation in the State Field

Five Situations Where Parliament Enters the State List

The distribution of subjects holds in normal times. The Constitution lets Parliament make laws on State List matters in five extraordinary situations, so this part of legislative relations shows how the scheme bends in the Union's favour.

Parliament's power under Article 246(4) over areas outside the States is a different kind of power, because it concerns territory and not an extraordinary situation. Article 369 was a further, temporary power, under which for five years from the commencement of the Constitution Parliament could legislate on certain trade and production matters in the State List as if they were in the Concurrent List.

Article 249: Rajya Sabha Resolution in the National Interest

Under Article 249, if the Council of States has declared by a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws on a matter in the State List specified in the resolution, Parliament may make laws on that matter for the whole or any part of India while the resolution is in force. Since 2016 the power also covers the goods and services tax.

• One year at a time: The resolution remains in force for the period it specifies, not more than one year, and a further resolution can extend it for another year, as often as needed.
• Six-month tail: A law that Parliament could not have made but for the resolution ceases to have effect, to the extent of the incompetency, six months after the resolution ceases to be in force, except for things done before then.
• No role for the Lok Sabha: The Rajya Sabha, the House that represents the States, alone passes the resolution.

Rajya Sabha seats are allotted to the States broadly by population. The Sarkaria Commission pointed out that a resolution lacking the support of almost two-thirds of the States could pass with the votes of the larger States together with nominated members. The Punchhi Commission called this unfair to the smaller States.

The Rajya Sabha has one more special power of this kind. Under Article 312, a resolution of the Council of States supported by not less than two-thirds of the members present and voting lets Parliament create All-India Services common to the Union and the States.

Article 250: Legislation During a Proclamation of Emergency

Under Article 250, while a Proclamation of Emergency is in operation, Parliament has power to make laws for the whole or any part of India on any matter in the State List, including the goods and services tax. A law made under this power ceases to have effect, to the extent of the incompetency, six months after the Proclamation ceases to operate, except for things done before then.

The Proclamation referred to is the one under Article 352, which the President may issue when the security of India or any part of it is threatened by war, external aggression or armed rebellion. It must be approved by resolutions of both Houses of Parliament within one month, each passed by a majority of the total membership and by not less than two-thirds of the members present and voting. If the House of the People stands dissolved, approval by the Council of States is followed by approval of the House of the People within thirty days of its first sitting.

During the Emergency the State Legislature is not suspended. Its power to make laws on the same matter is not restricted, but a Union law prevails over a conflicting State law.

Article 251: Conflict With State Laws Under Articles 249 and 250

Article 251 resolves what happens when a State law conflicts with a law Parliament made under Article 249 or 250. Nothing in those articles restricts the State Legislature's power to make any law it is otherwise competent to make. If a provision of the State law is repugnant to a provision of the parliamentary law, the parliamentary law prevails, whether passed before or after the State law, and the State law is inoperative to the extent of the repugnancy, but only so long as the parliamentary law continues to have effect.

Article 251 differs from Article 254, under which a repugnant State law is void, because the two powers differ in nature. Articles 249 and 250 are temporary powers that lapse with the resolution or the Emergency, so the State's competence must survive them; Article 254 is a permanent rule of the Concurrent List.

Article 252: Parliament Legislating at the Request of States

Article 252 applies where the Legislatures of two or more States consider it desirable that a State List matter be regulated by Parliament by law, and resolutions to that effect are passed by all the Houses of the Legislatures of those States. Parliament may then pass an Act regulating the matter, and the Act applies to those States and to any other State that later adopts it by a resolution of its Legislature.

• Amendment and repeal: An Act so passed can be amended or repealed only by an Act of Parliament passed or adopted in like manner, and not by the Legislature of a State to which it applies.
• Surrender of power: The resolution operates as abdication of the State's power on that matter, which is placed entirely in the hands of Parliament.
• At least two States: A single State cannot request Parliament to make a law on a State subject.

Laws passed under Article 252 include the Prize Competition Act, 1955, the Wild Life (Protection) Act, 1972, the Water (Prevention and Control of Pollution) Act, 1974, the Urban Land (Ceiling and Regulation) Act, 1976 and the Transplantation of Human Organs Act, 1994.

The surrender covers only the matter named in the resolution. In R.M.D.C. (Mysore) v. State of Mysore (1962), Mysore had adopted the Prize Competition Act, 1955, and later amended its own law to levy a tax. The Supreme Court held that by the resolution the State had surrendered the regulation of prize competitions (betting and gambling, Entry 34 of the State List) but not its separate power of taxation (Entry 62 as it then stood), and that the amendment was not colourable legislation.

Article 253: Legislation to Implement International Agreements

Article 253 gives Parliament power to make any law for the whole or any part of India for implementing any treaty, agreement or convention with another country or countries, or any decision made at an international conference, association or other body. It applies notwithstanding the whole of the preceding scheme of the lists, and it needs no consent of any State.

The article works together with the Union List. Entry 13 covers participation in international conferences and implementing their decisions, and Entry 14 covers entering into treaties and implementing treaties, agreements and conventions with foreign countries. Together they give the Union both the treaty power and the means to put a treaty into domestic effect, even where the subject lies in the State List.

Laws enacted under this power include the United Nations (Privileges and Immunities) Act, 1947, the Geneva Convention Act, 1960 and the Anti-Hijacking Act, 1982, along with environmental laws and laws that implement obligations under the TRIPS agreement.

Implementing the GATT and WTO agreements needs a law of Parliament under Entry 14 read with Article 253. The National Commission to Review the Working of the Constitution suggested that Parliament itself should make a law on treaty-making, with a parliamentary committee for treaties.

Articles 356 and 357: Legislation During President's Rule

When a Proclamation under Article 356 declares that the powers of the Legislature of a State are exercisable by or under the authority of Parliament, Article 357 describes how they are used. Parliament may confer on the President the power of the State Legislature to make laws, and may authorise the President to delegate that power to another authority. Parliament, the President or the other authority may make laws conferring powers and imposing duties on the Union or its officers, and the President may authorise expenditure from the Consolidated Fund of the State while the House of the People is not in session.

The feature that sets this route apart is its survival. A law made in exercise of the State Legislature's power under Article 357, which Parliament or the President would not otherwise have been competent to make, continues in force after the Proclamation has ceased to operate, until altered, repealed or amended by a competent Legislature or other authority.

The Rajamannar Committee and the West Bengal Memorandum had both asked for Articles 356 and 357 to be dropped, and the Sarkaria Commission recommended that Article 356 be used very sparingly, in extreme cases and as a last resort.

Repugnancy and Conflict of Laws: Article 254

Article 254(1): Union Law Prevails on Concurrent Subjects

Repugnancy is a direct clash between a State law and a parliamentary law on a subject where both have power. Article 254(1) deals with it. If a provision of a State law is repugnant to a provision of a law made by Parliament which Parliament is competent to enact, or to a provision of an existing law on a Concurrent List matter, the parliamentary law or the existing law prevails, whether passed before or after the State law, and the State law is void to the extent of the repugnancy.

Three points follow from the wording:

• The rule applies to Concurrent List matters, because only there do both legislatures have power.
• The word "void" is limited by "to the extent of the repugnancy", so only the conflicting provision falls.
• Timing is irrelevant, because the Central law wins whether it came before or after the State law.

Article 254 protects only a law "which Parliament is competent to enact", so it applies only where the Central law is within Parliament's competence.

Article 254(2): State Law Prevailing With Presidential Assent

Article 254(2) is the exception. Where a State law on a Concurrent List matter contains a provision repugnant to an earlier law made by Parliament or an existing law on that matter, the State law prevails in that State if it has been reserved for the consideration of the President and has received his assent.

Three limits apply:

• The exception covers only an earlier Central law or an existing law, so a later Central law still overrides the State law.
• Under the proviso, Parliament may at any time enact a law on the same matter, including a law adding to, amending, varying or repealing the State law, so the Presidential assent gives the State law no permanent protection.
• The assent protects the State law only against the repugnancy for which it was sought. In Kaiser-i-Hind (P) Ltd. v. National Textile Corporation (2002), the Supreme Court held that assent given on the basis of the repugnancy with particular earlier laws does not save the State law against other earlier laws for which no assent was sought. The Court also held that the correctness of the assent is not subject to judicial review.

Because Article 254(2) makes the Governor's act of reserving a Bill necessary to secure Presidential assent, it is one of the provisions that bring the Governor's power under Article 200 into play, along with the provisos to Articles 31A and 31C, Article 288(2) and Article 360.

Resolving a Conflict Step by Step

A student can settle most conflict questions by moving through five steps.

1. Identify the subject of each law and find its entry. If it is in the Union List, only Parliament could make the law, and a State law on the matter is invalid. If it is in the State List, only the State could make it, except in the situations of Articles 249, 250, 252, 253 and 357.
2. If the entries overlap, apply Article 246. The Union List prevails over the State List and the Concurrent List, and the Concurrent List prevails over the State List.
3. If both laws are on the same Concurrent List subject, check for repugnancy under Article 254(1) by asking whether the State provision conflicts with the Central provision.
4. If it does, ask whether the State law was reserved for the President and received assent (Article 254(2)). If it was, and the Central law came first, the State law prevails in that State.
5. Even then, Parliament can later override the State law by enacting a law on the same matter (proviso to Article 254(2)).

Article 255: Recommendations and Previous Sanctions as Procedure

Article 255 provides that no Act of Parliament or of a State Legislature, and no provision in one, is invalid merely because a recommendation or previous sanction required by the Constitution was not given, if assent was given by the appropriate authority. Where the recommendation required was that of the Governor, assent by the Governor or by the President is enough. Where the recommendation or previous sanction required was that of the President, assent by the President is enough.

The article treats recommendations and previous sanctions as matters of procedure, not substance. An Act that has been assented to cannot be struck down on the ground that a preliminary recommendation was missing. It does not remove the requirement itself. A Bill that needs the President's previous sanction, such as one under Article 304(b), still cannot be introduced without it, and Article 255 only protects the Act after assent.

Court-Made Doctrines for Reading the Lists

Doctrine of Pith and Substance

The lists overlap because their entries are related, and the courts settle the resulting disputes about legislative competence. The doctrine of pith and substance looks at the true nature of a law, not at its form. If a statute relates in substance to a matter within the competence of the legislature that made it, it is valid even though it incidentally trenches on a matter outside its competence.

The doctrine came from the Privy Council. It evolved the rule when it had to decide whether laws made by the Dominion and provincial legislatures of Canada stood within sections 91 and 92 of the Constitution Act, 1867, whose lists overlapped. India adopted it to give flexibility to a rigid division of powers, since striking down every law that touched another legislature's field would sharply curtail legislative power.

The doctrine explains why a State law on a State List subject survives if it incidentally affects a Union subject, and why courts apply it to decide repugnancy in education, a Concurrent List subject. The Supreme Court also used it to uphold the Centre's competence to enact the anti-terror laws, the Terrorist and Disruptive Activities (Prevention) Act and the Prevention of Terrorism Act, against the objection that law and order is a State matter, by distinguishing a law and order problem within a State from terrorist acts and related offences against national security.

Doctrine of Colourable Legislation

Colourable legislation means a law that, in the guise of legislating on a matter within the legislature's competence, in truth legislates on a matter beyond it. The rule is that what a legislature cannot do directly it cannot do indirectly. The Court therefore looks past the label to the substance of what the law does.

The Supreme Court discussed the question fully in K.C. Gajapati Narayan Deo v. Orissa, and the ruling was confirmed in Sonapur Tea Co. v. Deputy Commissioner. Colourability is a question of competence, and a law is not colourable merely because it affects another field. The extent of the encroachment on matters beyond the legislature's competence may show that the law is a disguise; where it does not, the encroachment does not affect the validity of the law.

Pith and substance and colourability work as a pair. The first asks what a law really is. The second asks whether the legislature is pretending it is something else. The R.M.D.C. (Mysore) case of 1962, under Article 252, applied this test: Mysore's tax amendment was not colourable, because it did not regulate prize competitions by the back door.

Harmonious Construction and Federal Supremacy

Harmonious construction is the principle that when two provisions of a legal text seem to conflict, they are interpreted so that each has a separate effect and neither is redundant or nullified. Applied to the lists, it means reading a Union entry and a State entry so that both keep a field of operation. The Seventh Schedule helps by cross-references such as the one that makes the State's power over water subject to Entry 56 of the Union List, and the Concurrent List entry on education subject to Entries 63 to 66 of the Union List.

Federal supremacy applies where harmonious reading fails and the two laws genuinely conflict. The Union law then prevails, by the non obstante wording of Article 246(1), by Article 254(1) for the Concurrent List, and by Article 251 for laws under Articles 249 and 250. The Sarkaria Commission observed that without this rule the two-tier political system would be stultified by interference, strife, legal chaos and confusion caused by a host of conflicting laws, and that the federal principle of unity in diversity would be a casualty.

A workable order of reasoning is to read the entries harmoniously first, then apply pith and substance to find the true subject, and let supremacy decide only when a real conflict remains.

Incidental and Ancillary Powers

Legislative power over a subject reaches the matters incidental to it. The Constitution builds this into the lists themselves. Each list ends with incidental entries on offences or inquiries, the jurisdiction of courts and fees: Entries 93 to 96 of the Union List, 64 to 66 of the State List and 45 to 47 of the Concurrent List.

The same idea appears in Canada as the doctrine of necessarily incidental or ancillary effects, first articulated in Cushing v. Dupuy (1880), under which provisions that intrude on the other level's field are upheld if they are rationally connected to a law that is valid in pith and substance. The Australian Constitution likewise gives the Commonwealth an incidental power in section 51.

Amendments That Moved Entries Between Lists

Forty-Second Amendment: Five Subjects to the Concurrent List

The Constitution (42nd Amendment) Act, 1976 moved five subjects from the State List to the Concurrent List with effect from 3 January 1977:

• Education and universities: State Entry 11 was omitted, and Concurrent Entry 25 was substituted to read education, including technical education, medical education and universities, subject to Entries 63 to 66 of the Union List.
• Forests: State Entry 19 was omitted and Concurrent Entry 17A inserted.
• Protection of wild animals and birds: State Entry 20 was omitted and Concurrent Entry 17B inserted.
• Weights and measures: State Entry 29 was omitted and Concurrent Entry 33A inserted, covering weights and measures except the establishment of standards, which stays in Union Entry 50.
• Administration of justice: The constitution and organisation of all courts except the Supreme Court and the High Courts moved from State Entry 3 to Concurrent Entry 11A.

The same Amendment added Union Entry 2A on the deployment of Union armed forces in a State in aid of the civil power, with matching words in State Entries 1 and 2, and added Concurrent Entry 20A on population control and family planning.

A transferred subject does not return on its own, and once Parliament legislates on it the field is occupied, which narrows what the State can do. States have complained that the Union made these transfers without adequate consultation, and the Punchhi Commission recommended examining jointly whether to restore a transferred item to the State List where Central administration of it had not achieved its object.

Other Amendments to the Lists

Several other amendments have changed individual entries, most of them on taxation. The Sixth and Forty-sixth Amendments added Union entries on the taxation of inter-State sales and consignments, the Seventh Amendment reorganised property acquisition, and the 101st Amendment rewrote the tax entries of both the Union and State Lists for the goods and services tax.

Article 368: Ratification by Half the States

Because the lists define the States' own powers, Parliament cannot change them alone. Under the proviso to Article 368(2), an amendment that seeks to change any of the Lists in the Seventh Schedule must also be ratified by the Legislatures of not less than one-half of the States, by resolutions passed before the Bill is presented to the President for assent.

The same ratification applies to Chapter IV of Part V (the Union judiciary), Chapter V of Part VI (the High Courts in the States), Chapter I of Part XI (Articles 245 to 255), the representation of States in Parliament, Articles 54 and 55 on the election of the President, Article 73 on the extent of the Union's executive power, Article 162 on the extent of a State's executive power, Article 241, Article 279A and the provisions of Article 368 itself.

Not every change that touches States needs ratification. A law abolishing or creating a Legislative Council under Article 169, for instance, is not treated as an amendment for the purposes of Article 368 and needs only a resolution of the State's Legislative Assembly passed by a majority of the total membership and two-thirds of the members present and voting, followed by a law of Parliament. The conditions of the Governor's office (Article 158) are not among the matters in the proviso either.

The 101st Amendment was passed in 2016 in this way, since it changed the lists, and received Presidential assent on 8 September 2016 after ratification by the State Legislatures.

Goods and Services Tax and the Federal Balance

The 101st Amendment and the Lists

The Constitution (101st Amendment) Act, 2016 paved the way for the goods and services tax, which started on 1 July 2017. It rewrote the tax entries of the lists. It omitted Union Entries 92 and 92C and substituted Entry 84 so that Union excise now reaches only petroleum crude, high speed diesel, petrol, natural gas, aviation turbine fuel and tobacco products. It omitted State Entries 52 and 55 and substituted State Entry 54, so State sales tax now reaches petroleum crude, diesel, petrol, natural gas, aviation turbine fuel and alcoholic liquor for human consumption, but not inter-State or international sales. It inserted Article 246A, and Article 279A, under which the President constitutes the Goods and Services Tax Council.

The Council is chaired by the Union Finance Minister and has the Union Minister of State in charge of revenue or finance and each State's finance or taxation minister (or another Minister the State nominates) as members. It recommends the taxes to be subsumed, the goods and services to be taxed or exempted, model laws, rates and floor rates with bands, thresholds and special provisions for specified States.

Every decision needs not less than three-fourths of the weighted votes of the members present and voting. The Centre's vote has a weightage of one-third of the votes cast and all the States together two-thirds. The Council must also establish a mechanism to adjudicate disputes between the Centre and States, or among States.

How Far GST Reflects Accommodative Federalism

The 101st Amendment is significant because it replaced separate Central and State indirect-tax systems with one tax, built on shared law-making power under Article 246A and a joint body, the Council, that sets its design. Both levels can legislate on the tax, and Parliament alone legislates when the supply is inter-State.

The amendment reflects an accommodative spirit of federalism in several ways:

• Shared legislative power: Every State Legislature, and not Parliament alone, can make laws on the tax, notwithstanding Article 254.
• Weighted States' voice: The States together hold two-thirds of the votes in the Council.
• Ratification: Because it altered the lists, the amendment needed the consent of the States, and it was ratified by more than half of the State Legislatures, with Assam the first to approve on 12 August 2016.
• Dispute machinery: The Council must create a mechanism to settle disputes between the Centre and the States.

The GST scheme also has limits. The Centre's one-third weightage with a three-fourths decision rule means that no decision can pass without the Centre, since the States together hold only two-thirds; equally, the Centre alone cannot pass anything, since it holds only one-third. States gave up their own tax entries, such as the entry tax and the tax on advertisements, and the Council now recommends the rates and exemptions. The amendment therefore shows cooperative federalism working through a shared body, with a balance that still gives the Union an indispensable voice.

Centre's Control Over State Legislation

Reservation of Bills: Articles 200 and 201

When a Bill passed by a State Legislature is presented to the Governor under Article 200, the Governor may assent, withhold assent or reserve the Bill for the President's consideration. The Governor may also return a Bill other than a Money Bill for reconsideration, and shall not withhold assent from a Bill passed again. The Governor must reserve a Bill which in the Governor's opinion would so derogate from the powers of the High Court as to endanger its constitutional position.

Under Article 201, the President declares assent or withholds assent for a reserved Bill, and may, for a Bill that is not a Money Bill, direct the Governor to return it to the House with a message. The House must then reconsider it within six months, and if it passes the Bill again, it is presented to the President again. Because the President can withhold assent, the veto over a reserved Bill is absolute.

On 20 November 2025 the Supreme Court gave its opinion on a Presidential reference on these articles. It held that, in the absence of constitutionally prescribed time limits, it would not be appropriate for the Court to prescribe timelines for the exercise of powers under Article 200 or for the President's assent under Article 201. It also held that the President's assent under Article 201 is not justiciable, that the Governor's decisions are not justiciable before the Bill becomes law, and that Article 142 does not permit the concept of deemed assent. Any time limit for assent would therefore have to be written into the Constitution itself; the Punchhi Commission had proposed a six-month limit for the President.

Previous Sanction and Financial Emergency: Articles 304 and 360

Two other provisions let the Centre check State legislation.

• Previous sanction under Article 304(b): A State may impose reasonable restrictions on the freedom of trade, commerce and intercourse with or within the State in the public interest, but no Bill or amendment for that purpose may be introduced or moved in the State Legislature without the President's previous sanction.
• Financial emergency under Article 360: While a Proclamation of financial emergency is in operation, the President may direct that all Money Bills and other financial Bills of a State be reserved for the President's consideration after the State Legislature passes them. The President may also direct reduction of salaries and allowances of persons serving a State.

Article 255 treats the requirement of previous sanction as procedural once assent is given.

Federalism as a Basic Feature and the Tilt Toward the Centre

India is a federation with a bias toward the Centre. The Union List contains more subjects than the State List, the more important subjects are in the Union List, the Centre has overriding authority over the Concurrent List, and the residuary power also lies with the Centre, whereas in the United States it lies with the states. The States also have no right to territorial integrity: Parliament can form new States and alter the boundaries or names of existing ones under Article 3.

The Supreme Court has recognised both sides. In Kesoram Industries (2004) it said that the tilt in favour of the Centre has to be understood with regard to the importance of the subject matter of parliamentary legislation. In Kuldip Nayar v. Union of India (2006) it held that greater power for the Centre does not make the States mere appendages of the Centre, that within their allotted sphere the States are supreme, and that courts must guard against any whittling down of the powers of the States. The Court has also held that federalism is a basic feature of the Constitution.

Commission Recommendations on Legislative Relations

Sarkaria Commission Recommendations, 1983 to 1987

The Sarkaria Commission was appointed in 1983 under R. S. Sarkaria, a retired judge of the Supreme Court. It submitted its final report in October 1987, with 247 recommendations, and the summary was officially released in January 1988. It did not favour structural change. It regarded the existing constitutional arrangements as basically sound and stressed changes in how power is exercised. It rejected the demand to curtail the powers of the Centre, stating that a strong Centre is essential to protect national unity and integrity, but it did not equate a strong Centre with centralisation of powers.

Its main points on legislative relations were:

• Consultation: On a Concurrent List subject the Union should consult the States before legislating, and a summary of their views with the comments of the Inter-State Council should accompany the Bill when it is introduced in Parliament.
• Occupation only as needed: Ordinarily the Union should occupy only that much of a concurrent field as uniformity of policy and action in the larger national interest requires, leaving the rest for State action within the framework of the Union law.
• Division of the residue: Taxation stays with Parliament, and the rest of the residuary power moves to the Concurrent List.
• Reasons for withholding assent: When the President withholds assent to a State Bill, the reasons should be communicated to the State.

The most important of its recommendations to be implemented was the setting up of the Inter-State Council in 1990.

Punchhi Commission Recommendations, 2007 to 2010

The Second Commission on Centre-State Relations was set up in April 2007 under Madan Mohan Punchhi, a former Chief Justice of India, and submitted its report in April 2010. It concluded that cooperative federalism is the key to sustaining unity, integrity and development. On legislative relations its main findings were:

• Consultation through the Inter-State Council: Some broad agreement between the Union and the States should be reached before Parliament legislates on a Concurrent List matter, and the existing arrangements should be institutionalised through the Inter-State Council, which should also audit matters of concurrent or overlapping jurisdiction.
• Restraint on transfers: The existence of a power in the Union does not by itself justify its exercise, and the Union should be extremely restrained in asserting parliamentary supremacy over matters assigned to the States. The Commission did not suggest shifting any item between lists, but asked that transferred items be reviewed jointly and restored to the State List where Central administration has not worked.
• No fourth list for Panchayats: A Panchayat List was too early to consider because Panchayat governance had not stabilised.
• Article 249: The Commission noted the Sarkaria point that the Rajya Sabha's formula for allocating seats makes an Article 249 resolution unfair to smaller States.
• Regulatory bodies: UGC, AICTE, NCERT, ICSSR and ICAR, created by the Centre under Entry 25 of the Concurrent List and Entry 66 of the Union List, occupy education substantially, and a State cannot make a law inconsistent with the AICTE Act.

Earlier Demands for State Autonomy

Before the Sarkaria Commission, committees and political parties made sharper proposals. They ranged from more delegation within the existing scheme, which the Administrative Reforms Commission proposed, to confining the Centre to a few subjects with the residue in the States, which the Akali Dal's Anandpur Sahib Resolution and the West Bengal Memorandum demanded. The Administrative Reforms Commission was chaired first by Morarji Desai and later by K. Hanumanthaiya, and the Rajamannar Committee was appointed by the Government of Tamil Nadu.

Sources

• Legislative Department: The Constitution of India (as on date)
• Inter-State Council Secretariat: Report of the Commission on Centre-State Relations (Punchhi), Volume II
• NCERT: Indian Constitution at Work (Class XI), Federalism
• Supreme Court of India: Opinion on the Presidential reference on Articles 200 and 201, 20 November 2025
• Wikipedia: Seventh Schedule to the Constitution of India
• Wikipedia: Concurrent List
• Wikipedia: Government of India Act 1935
• Wikipedia: Constitution Act, 1867
• Wikipedia: Section 51 of the Constitution of Australia
• Wikipedia: Pith and substance
• Wikipedia: Doctrine of colourability
• Wikipedia: Harmonious construction
• Wikipedia: M/S R.M.D.C. (Mysore) v. State of Mysore
• Wikipedia: One Hundred and First Amendment of the Constitution of India
• Wikipedia: Sarkaria Commission
• UPSC: Civil Services Examination question papers