India’s federal system is about 76 years old, as compared to the federal systems in other countries

like the United States, Switzerland or Canada, which are more than two centuries old. Yet, it is
recognised as the most complex of a kind for a critically diverse population in a federal framework.
The national government specifically deals with vast issues like national defence, foreign relations,
commerce, and currency. The state governments, on the other hand, have more roles than the federal
government, encompassing aspects such as education, public safety, standards and fixing the
infrastructure.

The federalism in India is notable for its quasi-federal nature of government. A quasi-federal
government is often characterised by a division of power between the centre and the states, where the
centre is relatively more powerful than the states. Basically, there is a combination of a central and
state government of a country, but unlike the federal government, the central government has more
influence over the state government. The state government can make decisions. However, the central
government has the authority to intervene within it. In this article, we will shed light on the
implications of this power distribution and how it affects decision-making, regional autonomy, and
the overall balance of power within the country.

WHAT IS FEDERALISM

Federalism is the structure of government, where the powers are shared between two kinds of
governments. One is the Central government, and the other is smaller regional governments. It
indicates the agreement between different levels of government to work together while still
maintaining independence in their own spheres. In a federation, the national and regional governments
each have their own areas of authority as outlined in the Constitution.

EVOLUTION OF FEDERALISM

Originating from the Latin word ‘foedus’ meaning ‘treaty’ or ‘covenant’ impacting the sovereign
existence of different constituents of a union, the term federalism was nationalised in the late
eighteenth century in the ‘Greek city-states’ of classical Greece. Earlier states used the confederacy
agreement to tie up between the most powerful state and other smaller or localised states to create a
balance between the power, authority and mutual dependence between the sovereign states.

Renowned academicians like K.C Wheare and A.V Dicey ascribe the meaning of federalism in their
testaments as a way in which powers are bifurcated between central government and regional
government for employing their powers within their own independent spheres. Also, in a completely
developed federal system, powers are distributed among different governmental bodies, each with
limited but equal powers. In the constitutional premise, the courts have the supreme authority to
uphold and interpret the values of the Constitution in a federation.
From the late 1700s to 1860s, the power struggle between the national government and the United
States states prevailed. The first American Union, formed in 1781, was a confederation with a weak
central government. However, the second American Union, established in 1789, created a stronger
federal government, preserving state sovereignty. The system evolved through various constitutional
amendments during the Civil War period (1861-65), solidifying modern federalism.

The key conflict between federal authority and sovereign states came up in the creation of the
National Bank, where the states came up as resistance. The decision of Alexander Hamilton, one of
the prominent secretaries of the Congress federal government, to set up the first federal bank of the
United States faced opposition from the Republicans. Subsequently, in the McCulloch vs. Maryland
(1819) case, the institution of the ‘Second Bank of the United States received massive objections for
imposing tax on the federal bank encroaching on state jurisdiction.

The Supreme Court bench of Sir John Marshall ruled that the authority to create the National Bank
was within the powers of the national government, and the state’s tax protocol could not be enforced
on the federal government. This asserted the central government’s supremacy over state interference
in federal activities. Further, in Gibbons vs. Ogden (1824), the Supreme Court reinforced federal
authority over state laws, particularly in matters of commerce, emphasising the national government’s
power over the states. Overall, the scope of encroachment of national powers began after the Civil
War, as it instigated the state to turn away from powers to save their own interests.

Gradually, federal principles were implemented in the Indian Constitution to maintain a balance of
power so that each tier of government operates within its designated domain. Through many trials and
errors, India has now evolved through many amendments altogether to escalate intergovernmental
relations.

CLASSIFICATION OF FEDERALISM

Federalism can be divided into the following categories:-

DUAL FEDERALISM

In this kind of federalism, the national government and the state governments can exist with distinct
powers to operate independently from each other. This demonstrates that certain responsibilities and
decision-making freedoms are bestowed upon the federal government, such as managing foreign
affairs, national defence, and trade. Meanwhile, states with sovereign power have more authority over
other areas of the state’s internal matters, such as education, licensing, and public policy.

COOPERATIVE FEDERALISM

Cooperative federalism refers to a system where the federal government and state governments
cooperate and work together towards achieving common goals. This approach allows for greater
flexibility and innovation at the state level while still working towards overarching national
objectives.

HOLDING TOGETHER FEDERALISM

Holding Together Federalism is a political system in which a group of federal states come together to
form a single federal entity. In that case, each member of the federation retains a significant degree of
autonomy and authority. It aims to maintain units while maintaining diversity and is characterised by
centralised power or decentralised governance. For example, India, Spain and Belgium have ‘holding
together federalism’ in their political system.

NEW FEDERALISM

In this concept of New federalism, it is possible to identify the concept that focuses on the
decentralisation of powers of the federal government and the states and municipalities. It enhances a
culture of devolution that supports the policymaking of a state instead of the federal government. The
main proponents of this approach show that the results are more responsive in this governance since
solutions to any issue can be made from the level closest to the people.

DIFFERENCE BETWEEN FEDERALISM, CONFEDERALISM AND QUASI-

FEDERALISM

In a federal political system, power is divided between a central authority and constituent political
units (states or provinces). The U.S. is a federal republic where the Constitution divides powers
between the federal government and the states. Both have their own jurisdictions and own set of
powers and functions.

In Confederalism, a group of sovereign states came together to form a union to promote defence,
foreign policy, and resources. A pure confederation has these features, but the member states have the
right to retain their sovereignty or secede from the union. The EU is not a pure confederation but has
limited powers delegated by member states.

In a quasi-federal government, the central government retains substantial powers over the states and
provinces. The constitution allows the centre for intervention in state-related matters. India is an
example of a quasi-federal country.

INDIAN FEDERALISM : BRIEF FACTS AND HISTORY

India has a federal system of governance that has emerged from the ancient, mediaeval, and colonial
past. It thus has its roots in the federal structure long before the adoption of the Constitution in 1950.

India’s ancient history reveals a form of quasi-federalism at its core. The Mauryan and Gupta
Empires, for instance, showcased a central authority with considerable autonomy granted to provinces
and local regions. The Mauryan Empire (321-185 BCE), under the rule of Ashoka, had witnessed
significant control of local governors in their territory. Similarly, in the Gupta Empire (320-550 CE),
a strong central government existed while recognising the autonomy of the local rulers and
administrative units.

The mediaeval period saw the rise of several regional kingdoms and empires, such as Cholas, Rajputs,
and later Mughals. The Chola administration (9th to 13th centuries) was notable for its village
autonomy and local self-government. The Mughal Empire (1526-1857) also implemented a
centralised system with provincial governors (subahdars) but allowed considerable autonomy in local
governance. These all worked as a precursor to the adoption of the federal principles.

The colonial period introduced a more formalised federal structure under the rule of the British. The
‘Montagu-Chelmsford Reforms’, incorporated in the Government of India Act, 1919, introduced the
concept of dyarchy, which divided provincial subjects into reserved and transferred categories,
thereby sharing power between the British-appointed governors and Indian ministers.

The Government of India Act, 1935 was a significant milestone that proposed a federation of British
Indian provinces and princely states, though a full federation never materialised due to various
political complexities. Overall, the Act laid the ground for introducing provincial autonomy and
federal principles.

Dr. B.R. Ambedkar, being the chairman of the Drafting Committee post-independence, advocated for
a ‘Union of States’ while giving strong power to the centre to maintain the unity and integrity of a
diverse nation, such as India, with varied linguistic, cultural, and regional perspectives.

Finally, the Indian Constitution delineated powers between the centre and the states through three
distinct lists: the Union list, the State list, and the Concurrent list, as outlined in Article 246 and
the Seventh Schedule of the Constitution. This division of power is aimed at balancing integrity and
autonomy between the central government and the state governments. The legislative link between the
state and the centre is delineated from Articles 245–255 in Part XI of the Constitution. Article 245
lays down that Parliament can make laws for the whole or any part of the territory of India, while the
state legislature has the similar power in the whole or any part of the state. On the other hand, Article
254 sets forth that the central legislation enacted by the Parliament would prevail over the state
legislation in case of difference. In addition, provisions such as Article 356 allow the President’s rule
in the states in case of failure of constitutional machinery, which indicates the inclination towards
unitary power in the federal structure.

NATURE OF FEDERALISM IN INDIA

India has a federal structure with a single Constitution that applies to both the central and state
governments. This is different from the federal systems of other countries, such as the United States,
where each state possesses its own constitution. The Indian Constitution provides the nation with an
intricate nature of law that makes it possible for states to address local matters while maintaining and
upholding national standards.

Federalism in India was adopted mainly because of India’s colonial past and the need to embody the
diversity in the nation. The Government of India Act,1935, among other things, spearheaded
federalism through provincial autonomy. The drafting of the Indian Constitution after independence,
as well as the findings of the Constitutional framers, strived to achieve a balance between the centre
and the states. These, as a result, have enabled the limited scope of establishment of federalism in
India.

The structure of federalism in India becomes distinguished and dynamic because it is tilted to the
power-sharing nature between the centre and states. It embraces certain features of both federal and
unitary systems of governance to accommodate the unpredicted and diverse requirements of the
nation. This hybrid model of the federal system evidenced the pluralistic nature of the Indian political
and constitutional framework. Thus, it enables India to face the problems of administration in a large
and complex ambit and develop a standard of living through cooperative federalism.

Decentralisation of powers and the role of regional players make the centre and states’ relationship
through coalition governments or other alliances of political parties more sustainable. While political
devolution has its vices causing problems in governance, it has also given enhanced regional political
representation and authority.

FEDERAL FEATURES OF THE INDIAN CONSTITUTION

1. Binary Government

India has a dual government polity, which has both central government and state government
operating in a parliamentary democracy. The union government works at the centre, and the state
governments operate at a regional level. While the central government implements laws made by the
parliament, state governments have the autonomy to make laws and policies tailored to their specific
needs and circumstances.

2. Division of Powers

The Seventh Schedule of the Constitution delineates the powers and responsibilities of the central
government and the state government through the following comprehensive three lists:-

Union List
  The Seventh Schedule includes a list of subjects that are under the exclusive jurisdiction of
the central legislature, known as the union list. It has a total of 97 subjects. For example –
defence, foreign affairs, banking, and railways.

State List

 It includes the subjects that are responsibilities of the state legislatures. It consists of a total of
66 subjects. For example – public health, election to State legislative assemblies, agriculture,
and local governance.

Concurrent List

 The concurrent list consists of subjects on which both the central and state governments have
jurisdiction. It has a total of 47 subjects. For example – forests, wild animals, marriage, and
adoption.

3. Written Constitution

India has one of the largest constitutions in the world, which consists of 448 articles, 25 parts and 12
schedules. The Constitution must be written without vagueness to clearly establish a distinction
between the states’ and central powers.

4. Bicameral-legislation

In India, the legislature is bicameral. It has two houses, Lok Sabha and Rajya Sabha. The upper house
of the parliament, which represents the states is the Rajya Sabha, and the lower house of the
parliament, which represents the people in general, is Lok Sabha.

5. Rigidity with Flexibility

The Constitution contains some relatively rigid provisions while giving the leeway to amendment by a
special majority under Article 368. It makes the provisions flexible in rigidity.

NON-FEDERAL FEATURES OF THE INDIAN CONSTITUTION

1. DIVISION OF POWER IS NOT EQUAL

In India, the central government has been given more power than the state government. Usually, in the
federal government, powers are divided equally between the two governments.
2. SINGLE CONSTITUTION

Another non-federal feature of the Indian constitution is that it only has a single Constitution. There
are no separate constitutions for the states in India and it is applicable to both the union as a whole
and the states. In a true federal system, there are separate constitutions for the state and union.

3. THE CONSTITUTION IS NOT STRICTLY RIGID

Another non-federal feature of the Indian constitution is that it can be amended by the Indian
parliament. Parliament, on many subject matters, does not need the approval of the state legislature to
amend the constitution. As per Article 368(2), an amendment is introduced in the form of a bill in the
House of Parliament, which is passed after getting a majority (two-thirds of the members present and
voting) votes. However, in the true federal government, both state and central governments take part
in the amendment of the constitution with respect to all matters. Therefore, those constitutions are
rigid and not easy to amend.

4. CENTRAL CONTROL OVER STATES

Another non-federal feature of the Indian constitution is that the central government has control over
the state government. This means that any law made by the central government has to be followed by
the state government, and the state government cannot interfere in the matters of the central
government.

5. JUDICIAL INDEPENDENCE

India has a single & integrated judiciary, with the Supreme Court at the apex. Whenever any dispute
arises between the centre and the states, the Supreme Court has the authority to resolve these disputes
and ensure both levels of government function within their own constitutional boundaries.

6. SINGLE CITIZENSHIP

In India, citizens only have a single citizenship of the whole country. However, in the true federal
government, citizens are allotted dual citizenship. First, they are the citizens of their respective
provinces or states, and then they are the citizens of their country.

7. PARLIAMENT DOES NOT REPRESENT THE STATES EQUALLY

In India, the upper house (Rajya Sabha) and lower house (Lok Sabha) do not have equal
representation in states. The more populous state has more representatives in the Rajya Sabha than the
state which is less populous. However, in a true federal government, the upper house of the legislature
has equal representation to the constituting states.

8. PROCLAMATION OF EMERGENCY
The President of India has been given emergency powers by the Constitution of India. However, he
can exercise such powers and declare an emergency in the country under three conditions. Once the
emergency is declared by the president, the central government becomes dominant, and the state
governments come under the total control of it. The state governments lose their liberty, and this is
against the principles of a federal government.

RELATION BETWEEN UNION AND STATES

While the Constitution provides a framework for cooperation between the centre and states,
continuous negotiation and adjustment are required to make it practical. In recent years, the concept of
cooperative federalism has gained prominence, emphasising collaboration between the union and the
states. NITI Aayog, replacing the Planning Commission, fosters cooperative federalism by involving
state governments in the formulation and implementation of national policies.

Article 245 demarcates the legislative powers to make laws between the centre and states with
respect to the territory. However, the jurisdiction of the states is limited, for example, in the case of
special jurisdiction bestowed on the Parliament to deal with the Union Territories like the
Andaman & Lakshadweep group of islands. In addition, there are some residuary powers, as
per Article 248 of the Constitution, entrusted upon the Parliament to create laws not included in
the subject matters in one of the three lists. Notwithstanding that, the discretion of whether a
specific matter falls within residuary powers or not is finally decided by the Supreme Court of
India.

FEDERALISM VIS-A-VIS GST SCHEME

The GST (Goods and Service Tax) regime was introduced in 2017 with the intent of tax-gaining
equivalence for both the centre and the states. Creating a unified national tax market, replacing the old
regime of indirect taxes levied by the central and the state governments, the scheme resorts to
maintaining the economic balance and well-being of the country. However, the implementation of
GST has also raised concerns about its impact on the federal structure of the country.

One of the key concerns is that GST reduced the autonomy of states in taxation. Prior to GST, states
had the power to levy a variety of indirect taxes such as sales tax, value-added tax, octroi and excise
duty. They gained control over a significant portion of their revenue generation. With the introduction
of GST, these powers were subsumed under the new tax regime, resulting in the decrease of state
control over their finances.

IMPLICATIONS OF FISCAL FEDERALISM IN GST

While the unified national market strengthens the multifaceted tax system to boost economic
efficiency, the concerns of upholding cooperative federalism still remain a challenge. The raised
concerns are mentioned below:-

(I) Reduced State Autonomy

The Seventh Schedule of the Indian Constitution divides legislative powers between the central and
the state governments. It specifies three lists: List I contains subjects over which the central
government has exclusive power to make laws; List II contains subjects over which state governments
have exclusive powers to make laws; and List III contains subjects over which both the central and the
state governments can make laws.

Prior to GST, states had the independent authority to levy taxes included in List II, such as sales tax
and certain excise duties. After the introduction of GST, the taxes previously levied by states came
under the ambit of GST. This has resulted in the decreased autonomy of states, as a major source of
revenue generation is now subject to a national tax regime determined by the GST Council.

(II) Centralised Control

Article 246 of the Constitution deals with the distribution of legislative powers. After
the Constitutional 101st amendment, Article 246A was inserted, dealing with the powers of special
powers of the centre and the states in relation to GST. The composition of the GST Council, which is
chaired by the Union Finance Minister and the representatives of all states, was established to
envisage a balance of power between the centre and the states. However, the central government has a
weighted voting share in the council, giving it more power to influence decisions. This has led to an
unruly situation, where the states argue about the inadequate representation in the federal spirit of the
Indian Constitution.

(III) Revenue Sharing Concerns

GST implementation had guaranteed a compensation scheme for five years (2017-18 to 2021-2022) to
address the potential revenue loss of the states compared to the pre-GST era. The compensation
amount was calculated considering the 14% annual growth in state state revenues.

The expiration of the guaranteed compensation period in 2022 has created uncertainty for state
finances. Many states have argued that they are still experiencing revenue shortfalls due to GST
implementation, particularly those states that were previously reliant on sectors such as textiles or
petroleum products, which are now taxed under the GST regime. There have been ongoing
discussions between compensation periods or devising alternative mechanisms to address revenue
losses, yet a concrete agreement is yet to be reached.

Liquor, petrol, and diesel tax policy

Notably, liquor or alcoholic beverages, petrol, and diesel are currently kept outside the ambit of GST.
Thus, the states continue to levy taxes over excise duty (central government) and VAT (state
government) in the GST regime.

Apart from that, states have control over luxury taxes, entry taxes, tax advertisements, lotteries,
betting, gambling, and other cesses related to the supply of goods and services. However, the states
are apprehensive about losing control over the major source of revenue, particularly if the GST rate on
these products is set high enough to reduce their tax collection. States have the freedom to determine
their own excise duty and VAT rates on liquor. Despite this, it can distort prices to hinder the free
movement of these goods across the country, refusing the key objectives of GST.

Significance of federalism in India

Federalism in India is immensely required for the distribution of power between the central and the
state governments. It seeks to uphold the unitary features while maintaining diversity and fostering
the heritage of India.

 It allows different states of India to maintain their distinct identities and manage their local
affairs according to their cultural, social, and linguistic variations.

 Different states have varying levels of development, resources, and economic conditions. So,
it enables targeted development initiatives, promotes competitive federalism, and encourages
states to innovate and attract investments.

 The 73rd and 74th constitutional amendments have strengthened the federal structure by
empowering local self-governments in rural and urban areas, respectively.

 It provides a framework for resolving conflicts between the central and the state governments
as well as among states. The Supreme Court plays a crucial role in adjudicating disputes
between centres and states and maintaining the federal balance.

Why is India quasi-federal

India is described as a quasi-federal nation. It strikes a balance between federalism and strong central
authority. While it respects the autonomy of states, it ensures that the central government has
sufficient power to maintain national unity, integrity, and effective governance. The Union List in the
Seventh Schedule of the Constitution contains subjects that only the Central Government can
legislate, while the Central Government has the power to legislate on subjects falling under the
Concurrent List. In case of any conflict, the central law always prevails.
Article 356 empowers the centre with greater authority to proclaim an emergency in a state
considering the failure of its constitutional machinery. Under Article 249, the Parliament can legislate
on any subject in the State list if the Rajya Sabha passes a resolution by the votes of a two-thirds
majority of the assembly necessary for the national interest.

The Central Government also has control over financial resources and the distribution of funds to
states through centrally sponsored schemes, showing the financial dependency of states on the centre.
Thus, India has a unique blend of federal and unitary features. It ensures that India manages the
spectrum of diversity while ensuring cohesive functioning at the national level.

Constitutional debate on federalism

Dr. B.R. Ambedkar, in his historic speech in November 1949, addressed the concept of federalism in
the Constituent Assembly. He highlighted specific features of the draft Constitution that aimed to
create a flexible and adaptable federal system capable of functioning effectively in both ordinary
times and during emergencies.

The draft Constitution included provisions that aimed to facilitate this flexibility. For instance, Article
246 distributes legislative powers between the central government and the states. However, Articles
249, 250, and 252 empower the Parliament to legislate on state-specific subjects under various
circumstances. Dr. Ambedkar argued that these federal features allowed the Indian Constitution to
function as a federal system in normal times, with a clear division of powers. Conversely, during
emergencies or for matters of national interest (Articles 352 & 353), the central government could
assume greater control. This, he believed, was essential for national unity and security. The key
provisions are discussed below:-

 ARTICLE 246: THIS ARTICLE DISTRIBUTES LEGISLATIVE POWER BETWEEN

THE CENTRAL GOVERNMENT AND THE STATES. THE UNION HOLDS
EXCLUSIVE AUTHORITY OVER MATTERS LISTED IN LIST 1 (SEVENTH
SCHEDULE), WHILE BOTH THE UNION AND STATES CAN LEGISLATE ON
MATTERS IN LIST III.

 PARLIAMENTARY INTERVENTION IN STATE SUBJECTS: THE CONSTITUTION

EMPOWERS PARLIAMENT TO LEGISLATE ON MATTERS UNDER THE PURVIEW
OF STATE JURISDICTION IN CERTAIN MATTERS.

o ARTICLE 249 ALLOWS PARLIAMENT TO ENACT LAWS ON STATE

SUBJECTS DEEMED TO BE IN THE NATIONAL INTEREST.

o ARTICLE 250 GRANTS LEGISLATIVE POWERS TO THE PARLIAMENT

OVER ANY STATE SUBJECT DURING A NATIONAL EMERGENCY.
 o ARTICLE 252 EMPOWERS PARLIAMENT TO MAKE LAWS FOR TWO OR
MORE STATES WITH THEIR CONSENT.

 EMERGENCY PROVISIONS (ARTICLES 352 AND 353): THE PROVISIONS FOR

PROCLAIMING AN EMERGENCY AND THE AUTHORITY OF THE CENTRAL
GOVERNMENT IN SUCH SITUATIONS ARE OUTLINED IN THESE ARTICLES.

 PARLIAMENTARY SUPREMACY: THE CONSTITUTION CAN BE AMENDED BY

THE PARLIAMENT THROUGH A SPECIAL MAJORITY. ARTICLE 368 GRANTS
SPECIAL POWERS TO THE PARLIAMENT TO MAKE AMENDMENTS IN FAVOUR
OF NATIONAL INTERESTS AND BALANCING FEDERALISM OVER TIME.
HOWEVER, THE JUDICIARY ENSURES THAT THE AMENDMENTS COMPLY
WITH THE CONSTITUTION’S BASIC STRUCTURE.

Balancing the flexibility in federalism

While Dr. Ambedkar’s speech focused on the context of the newly independent India, the concept of
flexibility in federalism still remains a challenge. Critics argue that it creates a quasi-federal system
that allows the central government to take greater control during emergencies or in the interest of
national unity and security. This flexibility is seen as necessary to maintain overall stability and
uniformity in the country. However, the potential misuse of the emergency powers outlined in
Articles 352 and 353 is still argued as a way to encroach upon the state’s rights.

Challenges of federal structure in the Indian Constitution

India’s federal structure leads to disputes between the states and the centre when the states particularly
feel that their autonomy is being undermined. Issues arising, such as the use of Article 356
(President’s Rule) by the central government against the state governments, have always been a
contentious discussion.

The effective implementation of policies requires coordination between the central and the state
governments. Part XI (256-263) discusses the measures of inter-governmental disputes between the
states and the centre. Article 263 of the Constitution addresses contentions between states over any
policies by establishing an Inter-State council.

Sometimes, the dual control of the state and the centre might lead to major conflicts in the following
ways:-

 In every state in India, there are different dynamics in the culture, education, and economic
position, which bring about regionalism in the unitary features.
  The central armed police forces and the intelligence agency’s influence lead to conflict in
dual control. It sometimes leads to major security threats, especially in cases of elections.

 Disputes arise regarding the role of Governors, who are appointed by the President and are
often seen as an extension of the central government. For instance, governors are perceived to
act against the interest of the state government when matters like the appointment of the chief
minister or the dissolution of the state assembly come into play.

 Fiscal federalism, which creates a unified market, often expresses other concerns regarding
the transparency and the duration of compensation from the central government to the states
for revenue losses for GST. Many states have complained of experiencing shortfalls due to
GST implementation to meet their expenditure needs as well as developmental
responsibilities.

Although the Planning Commission for addressing these issues was established, the same is not as
effective as a whole. Further, central policies like citizenship amendment, tax policies, one-nation-
one-election, National Education Policy, farm laws, and COVID-19 policies are often discussed as
repugnant to the federal structure of government.

RELEVANT DOCTRINES

DOCTRINE OF TERRITORIAL NEXUS

THE DOCTRINE OF TERRITORIAL NEXUS IS A PRINCIPLE IN CONSTITUTIONAL LAW

THAT CONCERNS THE JURISDICTIONAL POWERS OF A LEGISLATIVE BODY IN A
FEDERAL SYSTEM LIKE INDIA. ARTICLE 245(1) OF THE CONSTITUTION STATES THAT
PARLIAMENT CAN MAKE LAWS FOR THE ENTIRE OR ANY PART OF THE TERRITORY
OF INDIA, AND A STATE LEGISLATURE MAY MAKE LAWS FOR ANY PART OF THE
STATE. THUS, IT ALLOWS THE PARLIAMENT TO MAKE LAWS THAT HAVE EXTRA-
TERRITORIAL OPERATION. THE DOCTRINE OF TERRITORIAL NEXUS CONCERNS THE
EXTRATERRITORIAL OPERATION OF THE STATE LEGISLATURE IF THERE IS A
REASONABLE CONNECTION BETWEEN THE OBJECT OF THE ACT AND THE SUBJECT
MATTER OF LAW.

THE APEX COURT, IN THE CASE OF STATE OF BIHAR VS. CHARUSILA DASI (1959),
HELD THAT IF THERE IS SUFFICIENT NEXUS BETWEEN THE OBJECT OF THE ACT
AND THE SUBJECT MATTER OF EXTRA-TERRITORIAL APPLICATION, THE LAWS CAN
OVERREACH JURISDICTIONAL BOUNDARIES IMPOSED BY LAW. THE CONNECTION
BETWEEN THE STATE AND THE SUBJECT MATTER MUST BE REAL AND
SUBSTANTIAL.
In 1949, when the Constitution was being drafted, the framers of our Constitution structured
the Indian democracy on the legislative, executive, and judiciary. The legislative pillar of our
democracy has a quasi-federal structure. Schedule VII of the Indian Constitution provides three
lists, namely the Union list, the State list, and the concurrent list. These lists divide the powers of
legislators at both the central and state levels and entitle them the power to formulate
legislation. Though it is a very complex mechanism, but, it is the very purpose for which a
federal state is formed and includes the distribution of powers between the Union and the states.
The separation of powers is maintained by the Constitution so that both the Union and states
have independence over the subject-matter of their legislative competence. As our Constitution
is quasi-federal in structure, it establishes a dual-polity relationship between the Union and the
State. They are conferred with sovereign powers, which are to be used in a manner directed by
the Constitution.

Although the lists clearly demarcate the operational territory of the legislation made by both the
Union and the State, some of the legislative provisions are applicable beyond the operational
territory of that particular legislation. The Parliament has specifically been bestowed with the
power to formulate laws for extraterritorial implementation, but the state legislature has not
been conferred with any such power by the Constitution of India. The doctrine of territorial
nexus, however, allows even the state laws to have extraterritorial operation. This article is an
attempt to discuss all the intricacies of the doctrine of territorial nexus.

Division of powers under the Indian Constitution

The Constitution of India provides for two types of jurisdictions namely territorial jurisdiction
and subject-matter jurisdiction. Article 245(1) of the Indian Constitution provides for territorial
jurisdiction. Both the Parliament and the State Legislature have the power to formulate and
enforce laws in their territories. Article 245(2) of the Indian Constitution enables the Parliament
to have extra-territorial operation of any federal law. This empowers them to enforce their
legislation in the foreign territory as well. However, the same has not been provided to the State
by the Indian Constitution.

Subject-Matter jurisdiction

The power to formulate legislation has been divided at two levels in the federal structure of
Indian democracy. One is the Central Government and the other is the State Government. Both
levels have been provided with different scope of subjects on which the legislation can be
formulated. These subject matters are provided in the three lists provided under Schedule VII
of the Indian Constitution.Under Article 246, it has been stated,
 1. Parliament has the explicit power to make laws for the subject matters enumerated in
the Union list (List I of Schedule VII).

2. The State has the power to make laws for the subject matter enumerated in the State list
(List II of Schedule VII).

3. Both the State and the Union have the power to make laws for the subject matter
enumerated in the Concurrent list (List III of Schedule VII).

Detailed overview of all these 3 lists are as follows:

Central List (List I)

This list contains the subject matters on which the laws can be made only by the Union and are
applicable in whole or in any part as decided by the Union while formulating the legislation.
This list includes 97 subject matters like defence, foreign affairs etc., among many others. Apart
from these 97 subject matters, if there is any matter which has not been listed in any of the three
lists provided under Schedule VII of the Indian Constitution, then in that case, Article 248 of
the Indian Constitution provides the power to formulate legislations on such a matter to the
Parliament.

State List (List II)

This list contains the subject matters on which the laws can only be made by the State for their
respective jurisdictions. This list contains 66 subject matters like agriculture, pilgrimages,
libraries etc., among many other subject matters.

Concurrent List (List III)

This list contains subject matters on which the laws can be made by both the State and the
Union, but in case of a conflict, the laws made by the Union shall prevail over the legislation
made by the state. This list includes 47 subject matters like contracts, administration of justice
etc., among other subject matters.

Concept of doctrine of territorial nexus

The concept of the doctrine of territorial nexus finds its place in Article 245(2) of the Indian
Constitution. The doctrine gives the Parliament the power to formulate legislation that is
operative in extra-territorial jurisdiction if necessary. This power is only provided to the
Parliament and not to the State legislature. Under Article 245(1) of the Indian Constitution, it
has been stated that:

1. Parliament has the jurisdiction to make laws for extraterritorial operation or laws for
the whole or any part of the country.
 2. The State legislature has the jurisdiction to make laws for the whole or any part of the
state.

Thus, it can be said that both the Union and the states have their own territorial jurisdiction to
make laws.

As per Article 245(2) of the Indian Constitution, Parliament has the power to make legislation
having extra-territorial operation. Thus the validity of a legislation cannot be questioned on the
sole ground that it has extra-territorial operation. In such a case, the courts cannot interfere
with the laws having extra-territorial operations and the legislation cannot be invalidated or
struck down on this ground alone. However, such a power has not been granted to the state
legislatures. But if sufficient nexus is established between the subject matter and the legislation,
then the legislation formulated by the state legislature may also have extraterritorial operation.
This is known as the doctrine of territorial nexus. This view has been upheld by the courts in a
plethora of cases, as discussed in the latter section.

Theory of doctrine of territorial nexus

As has already been discussed above, as per Article 245(1) of the Indian Constitution, the
Centre and the State have the power to formulate laws for their respective jurisdictions. The
Constitution provides the power of extraterritorial operation to the Centre, but the same is not
provided to the State.

In Wallace Bros. And Co. Ltd. v The Commissioner Of Income Tax (1948), a company
incorporated in the United Kingdom also carried out its business in India through a sleeping
partner. The firm made a staggering profit in that accounting year. The income tax authorities
sought to levy a tax upon the respondent company. This order of the Income Tax Authority was
challenged by the respondent before the Bombay High Court, but it was held that the doctrine
of territorial nexus is operative in this case and hence the levying of such tax is valid. It was also
mentioned in the judgement that a major part of the income which was taxed was extracted
from British India and it was considered as a sufficient ground to establish a territorial nexus.

This case is one of the very first cases which clearly define what an extraterritorial operation is
and what conditions are required to be satisfied in order to enforce a legislation in
extraterritorial jurisdictions.

Example of the doctrine of territorial nexus

One of the most commonly acknowledged examples of the doctrine of territorial nexus are
various taxation laws imposed by the states. These tax legislations are sometimes operative in
extraterritorial jurisdictions in addition to their operation in the territorial jurisdiction of the
states. This is one example that clearly demonstrates that the state governments can implement
the laws formulated by them in extraterritorial jurisdictions if the doctrine of territorial nexus
is applicable.

Salient features of doctrine of territorial nexus

The doctrine of territorial nexus is a unique power given to the Parliament and state legislatures
in India. Some of the salient features of the said doctrine are discussed below:

1. Only the Parliament can make laws for extraterritorial jurisdiction. This power has not
been conferred on the state legislature by the Constitution of India. The doctrine of
territorial nexus is an exception to this, as it provides the same power to the state
legislature to implement laws made by them in extraterritorial jurisdictions.

2. The doctrine of territorial nexus is primarily based on the nexus between the state and
the subject matter. If there is a nexus between the two, then the state legislature has the
power to implement the legislation formulated by them in extraterritorial jurisdictions.

3. Any legislation formed by the state shall be deemed invalid merely on the ground that it
has extraterritorial operation unless the second point mentioned above is fulfilled.

When is doctrine of territorial nexus invoked

The doctrine of territorial nexus is an exception to the general legislation which does not
provide any power to the State to formulate to enforce legislation formulated by them in
extraterritorial jurisdiction. But in some cases, states can enforce their legislations in
extraterritorial jurisdictions as well. This can happen if the following two conditions are
fulfilled:

1. The nexus must be real and not illusory in nature.

2. The liability sought to be imposed by the State must be directly related to that
connection.

If these two conditions are fulfilled, the doctrine of territorial nexus can be used by the State for
the enforcement of legislation in extraterritorial jurisdiction.

Landmark judgements on doctrine of territorial nexus

The powers conferred by the Parliament are not absolute. Laws made by the Parliament for
extraterritorial operations are for the purpose of operating outside the geographical limits of
India. The State legislature does not have the power to make laws for extraterritorial
operations. However, if it is established that there is sufficient connection with the object, the
laws enacted by the State legislature will have an effect outside the territorial limits of the state.
This position of law has been affirmed by the higher courts in various cases, as discussed
hereafter.

State of Bombay v. R.M.D. Chamarbaugwala (1957)

Facts Of the case

In this case, the respondent, who was not a resident of Bombay, conducted a prize competition
of a crossword puzzle through a newspaper that was printed and published in Bangalore. This
paper was widely published in Bombay too. For this competition, depots were established so
that the forms and fees could be collected. It attracted a lot of buyers for the tickets to that
competition.

The State government then taxed the respondents’ company for contesting a prize competition
in the state. The respondent challenged the same in the Supreme Court on the point that the
State cannot tax the company as it does not fall in the territorial nexus of the state.

Issue before the Court

Whether the tax can be levied on a person who resides outside the territorial limits of the state?

Arguments

The petitioner side based their arguments on the point that the company was running the
competition within their territorial jurisdiction and the citizens residing in the state were
participating in the competition and hence, the state had a nexus with the subject matter which
was the company in this case. On the contrary, the respondents argued that the competition was
run by a company situated in Bangalore which is outside the jurisdiction of the state.

Judgement

After hearing all the arguments of both the sides, the Supreme Court was of the view that since
the news was published in the territory of the State and the depots were also set up by the
respondent, there was a sufficient territorial nexus between the state and the competition and
hence, the state legislature had the authority to tax the respondent for the revenue earned by his
company through the prize competition.

State of Bihar v. Charusila Dasi (1959)

Facts of the case

In this case, a legislation was passed by the state of Bihar which dealt with the motive to
safeguard the properties relating to Hindu religious trusts. This Act was applicable on all the
trusts within the territorial limits of Bihar. So the respondent trust deeded several of its
properties in Bihar and Calcutta, while the trust was situated, institutionalised and within the
territorial limits of Bihar.

Issue before the Court

Whether the scope of the Act passed by the State of Bihar could be extended beyond the
geographical limits of the state?

Arguments of the parties

The trust argued that as the properties were outside the territorial jurisdiction of the State, the
laws made by Bihar cannot be enforced upon those properties. The state government argued
that since the managing body of the trust is within the territorial jurisdiction of Bihar and the
trust has complete control over any affairs related to those properties, the legislation made by
the State legislature of Bihar was enforceable on those properties as well.

Judgement

In the judgement pronounced by the Hon’ble Supreme Court of India, it was held that the Act
passed by the state of Bihar could have an effect on property situated outside the territorial
limits of Bihar as the management body of the trust was there in the territory of Bihar and all
those properties were belonging to the trust itself, therefore, drawing a direct nexus between the
subject matter and the legislation as the relation between the trust and those properties was
held to be real and not illusory in nature.

Other relevant cases on the doctrine

All these judgements clearly emphasise on the point that if there is a nexus between the
legislation made by the State government and the subject matter, the enforcement of such
legislation by the State is not ultra-vires in nature as it is covered by the doctrine of territorial
nexus.

In the case of State of Bihar v. Shankar Wire Products Industries (1994), the State Legislature
of Bihar formulated a legislation named the Bihar Weight and Measures (Enforcement) Act,
1959 which mandated the verification and stamping of weights for sale and delivery in other
states. Regarding the validity of this legislation, the High Court ruled that this requirement is
irrelevant, as it applies to weights manufactured in Bihar and not where they are sold. The Act
aimed to protect consumers’ interests, requiring weights to be verified and stamped at the
manufacturing site. The Hon’ble SC in its judgement upheld the State Legislature’s territorial
legislative competence in verifying and stamping weights.
In the case of Shrikant Bhalchandra Karulkar v. State of Gujarat (1994), the Hon’ble Supreme
Court held that the state legislature is conferred with the power to enact legislation for extra-
territorial operations complying with the provisions enshrined under Articles 245 and 246. The
laws made by the state legislature are applicable to a person, and his acts within the territorial
limits of a state are not considered as extra-territorial.

In the case of Tata Iron and Steel Company v. Bihar State Tax Act (1958), the state of Bihar
passed a sales tax Act for levying a tax on the sale of goods, whether it took place within the
territorial limits of the state or outside of that limit. It was also stated that the goods should be
manufactured in the state. In the instant case, it was held that there was an established nexus
between the object that was to be taxed and the law. These are the two essential elements that
constitute the doctrine of territorial nexus and since the same was fulfilled, the extra-territorial
operation would be valid.

Conclusion

The doctrine of territorial nexus in India holds a significant importance in the Indian legal
system. It enables the legislature to extend the operation of laws even outside the territorial
limits in cases where the link between the subject matter and the legislation is real and not
illusory in nature. Though the doctrine finds its roots in the Constitution of India, the Indian
judiciary has played a crucial role in the development of this doctrine in Indian jurisprudence.
The same is evident from various landmark decisions of various courts as discussed in this
article. Before concluding, it is imperative to note that the doctrine addresses the complex
relationships between the Centre and states and between two or more states. Hence, it becomes
crucial that while analysing the law formulated by the Centre or state, the doctrine is applied
with much caution to not encroach upon the jurisdiction of other.

DOCTRINE OF PITH AND SUBSTANCE

THIS DOCTRINE IS USED TO RESOLVE CONFLICTS WHERE A LAW APPEARS TO

ENCROACH UPON THE DOMAIN OF ANOTHER LEGISLATIVE BODY. IN INDIA, THE
CONSTITUTION DELINEATES THE POWERS OF THE PARLIAMENT AND STATE
LEGISLATURES THROUGH THE UNION LIST, STATE LIST, AND CONCURRENT LIST IN
THE SEVENTH SCHEDULE. ARTICLES 246-254 PROVIDE THE FRAMEWORK FOR THE
DIVISION OF THESE POWERS. THIS DOCTRINE PROVIDES A WAY TO IDENTIFY
INCIDENTAL ENCROACHMENTS OF LEGISLATURES ON MATTERS OUTSIDE THE
JURISDICTION OF THE LEGISLATIVE BODIES. IT STRESSES ON THE TRUE NATURE
OR PURPOSE OF LAW RATHER THAN ITS FORM WHILE DETERMINING THE SUBJECT
MATTER AND ITS EFFECT. IT DEALS WITH FLEXIBILITY IN LEGISLATIVE ACTION
WHILE ENSURING THAT THE CORE PURPOSE OF THE LEGISLATION IS IN
COMPLIANCE WITH THE CONSTITUTIONAL DIVISION OF POWERS.

IN THE CASE STATE OF BOMBAY V. F.N. BAKSARA (1951), THE SUPREME COURT
APPLIED THE DOCTRINE WHILE DETERMINING THAT THE BOMBAY PROHIBITION
ACT, 1949, ENACTED BY THE CENTRAL GOVERNMENT UPON STATE GOVERNMENTS,
WAS TO ADDRESS INFLATIONARY PRESSURES, THUS NOT INFRINGING STATE’S
RIGHTS ALTOGETHER.

The Doctrine of Pith and Substance states that if the substance of legislation falls within a
legislature’s lawful power, the legislation does not become unconstitutional just because it
impacts an issue beyond its area of authority. “True nature and character” is what the phrase
“pith and substance” signifies. The infringement of the constitutional delimitation of legislative
powers in a Federal State is the subject of this concept. The Court uses it to determine whether
the claimed intrusion is just incidental or significant. Thus, the ‘pith and substance’ concept
holds that the challenged statute is fundamentally within the legislative competence of the
legislature that enacted it but only incidentally encroaches on the legislative field of another
legislature. The present article discusses this doctrine majorly highlighting the same on how
the Indian Constitution has perceived this doctrine.

Evolution of the doctrine of pith and substance

The Canadian Constitution inspired the doctrine of pith and substance. The country of Canada
is divided into two parts, namely, the Dominion and the Provinces. In order to divide the powers
of the Dominions and Provinces, the framers of the Canadian Constitution inserted two
separate lists to the Constitution. Section 69 of the Canadian Constitution, which was first
established in 1857 as the British North America Act, separated the powers delegated to the
Dominion from those delegated to the Provinces. Furthermore, Sections 91 and 92 of
the Constitution Act of 1867 define the Dominions’ and Provinces’ exclusive rights.

The origin of this doctrine can be traced back to the case of Cushing vs. Dupuy (1880) in
Canada, and it has since spread to India, where it is firmly supported by Article 246 of the
Indian Constitution and the Seventh Schedule, through which the Constitution of India divides
the scope of legislative powers between the Centre and states. The Union, State, and Concurrent
Lists of the Indian Constitution make up this schedule.

While the term ‘Pith’ implies the genuine nature or essence of anything, ‘Substance’ indicates
the most important or vital aspect of something, to break down the concept to its molecular
meanings. The state and union legislatures are made supreme within their respective areas, and
they should not intrude on the sphere delimited for the other, according to the doctrine’s
interpretation.

WHEN A LAW APPROVED BY ONE LEGISLATURE IS CONTESTED OR TRESPASSED BY

ANOTHER LEGISLATURE, THE DOCTRINE OF PITH AND SUBSTANCE IS APPLIED. This
doctrine states that while assessing whether a certain law applies to a specific issue, the court
looks to the content of the case. If the content of the thing falls inside one of the three lists, the
encroachment by law on another list does not render it illegal since it is said to be ultra vires.

Reason behind the formation of doctrine of pith and substance

The objective behind the creation of this doctrine was to prevent absolute intrusion of legislative
powers by evaluating the ‘content’ of enactment and then determining which list the specific
subject matter fell within. As a result, this doctrine is applied to establish the legislative
competency of a given law by examining the ‘content’ of that statute. Examining an enactment’s
‘substance’ might lead to one of two outcomes:

1. The enactment’s substance corresponds to the subject matter given to the legislature for
the purpose of enacting laws: This will constitute the enactment totally lawful.

2. Enactment includes subject matter that is outside the jurisdiction of the federal or state
legislatures: This may result in a partial or accidental incursion of legislative powers,
which may or may not render the entire statute invalid and void. Certain subject topics
enumerated in the three lists indicated in the Seventh Schedule might overlap at times,
therefore incidental encroachments are permitted to some extent when evaluating
legislative competency.

Early takes on the doctrine of pith and substance by the judiciary

During the course of examining the scope of the intrusion, a crucial question about the grounds
on which legislative competence should be confirmed arose. In the case of Cushing v.
Dupey (1880), the Privy Council came to the rescue in 1880. In its judgment, the Privy Council
developed the doctrine of pith and substance, holding that the ‘pith and substance’ of enactment
must be considered in determining whether it falls within or beyond the scope of legislative
powers allocated to either the Dominion or the Province.

Lord Watson, while testifying for the Privy Council in the matter of Union Colliery Company of
British Columbia v. Bryden in 1889, caught the notion of “real essence and character” of law and
treated it as a metaphor “whole pith and substance” of an enactment.

Features of the doctrine of pith and substance

 1. The philosophy behind the doctrine emphasises that it is the primary subject matter
that must be contested, not its unintended consequences in another discipline. Pith
refers to a thing’s ‘essence’ or ‘real nature,’ whereas substance refers to a thing’s most
significant or fundamental portion.’

2. The adoption of this doctrine is necessary because otherwise every law would be
considered unconstitutional since it encroaches on the subject matter of another realm.

3. The actual character of law is defined by pith and substance. The true subject matter is
being questioned in this regard and not its unintended consequences in another
discipline. The idea has also been used in India to allow some flexibility in an otherwise
strict electricity distribution structure.

4. To identify which list a piece of legislation belongs to, the doctrine looks at its genuine
nature and substance.

5. It considers whether the state has the authority to enact legislation that affects a subject
from another list or not.

Doctrine of pith and substance under the Indian Constitution

The doctrine of pith and substance, sometimes known as incidental encroachment, is a product
of Canadian jurisprudence that has been applied to the Government of India Act, 1935, and the
current Constitution. Occasionally, legislation is enacted under the authority of an item in one
of the VII Schedule’s Lists. The idea of pith and substance is employed in such instances to
determine which legislature has the authority to implement such legislation. The court must
consider the genuine nature and character of the law, whether it essentially comes within the
authority of the legislature passing it, and whether it is valid even though incidentally it touches
upon some matter within the competence of another legislature.

In general, the Parliament and state legislatures are supposed to stay in their allocated sectors
and not trespass on each other’s jurisdiction. If otherwise, the legislation would be declared
illegal by the judiciary. But first, it will apply the doctrine of pith and substance to determine
the true authority that the aforementioned piece of law comes under. To put it another way, the
idea of pith and substance is used to identify which category a piece of legislation belongs to.
However, the powers bestowed on each level are certain to intersect at some point. It is
impossible to draw a clear line between the competencies of separate legislatures as they will
inevitably overlap at times.

Need for the doctrine of pith and substance in India

 1. One of the key reasons for the doctrine’s adoption and use in India was to give flexibility
to an otherwise inflexible framework for power allocation under a federal structure.

2. Another important ground establishing a need for the doctrine in India is that if every
legislation were to be declared invalid on the ground that it encroached on the subject of
another legislature, then these powers assigned to the legislature would be enormously
restrictive, and this would not serve the purpose of the power being granted to the
legislature.

Article 246 of the Indian Constitution : all you need to know

The distribution of authority between the Union and the States is addressed in the
Constitution’s Seventh Schedule, which is enshrined under Article 246 of the Indian
Constitution. Article 246 of the Constitution defines the Union’s and states’ powers by
categorising them into three lists, namely, Union List, State List, and Concurrent List. The
Indian Constitution establishes the doctrine of separation of powers between the national and
state governments. The three lists have been placed hereunder:

1. Union List: This is the List in which the Centre has sole authority to enact legislation.
The Union List essentially covers military, foreign affairs, railways, and banking, among
other areas where Parliament can enact legislation.

2. State List: This is the List in which states have sole authority to enact legislation. Public
order, police, public health, and sanitation, as well as hospitals and dispensaries, betting,
and gambling, are some of the subject matters covered under the same.

3. Concurrent List: The List in which both the Centre and the states can pass legislation is
the Concurrent List. The central law takes precedence over state law in circumstances
of repugnancy. It covers subject matters such as education, population management,
family planning, criminal law, animal cruelty prevention, wildlife and animal
preservation, forests, and several others.

The Constitution’s Seventh Schedule has been amended several times since 1950. The Union
List and the Concurrent List have grown in size, while the State List has converged over the
years. In 1976, the 42nd Amendment Act rebuilt the Seventh Schedule, guaranteeing that State
List subject matters such as education, forest, wildlife, and bird preservation and
administration of justice. Whereas, weights and measures were transferred to the Concurrent
List.

Interpretation of the doctrine of pith and substance

IN KARTAR SINGH V. THE STATE OF PUNJAB (1961), THE SUPREME COURT’S
CONSTITUTIONAL BENCH EXPLAINED HOW THE DOCTRINE OF PITH AND
SUBSTANCE SHOULD BE APPLIED. IT WAS DISCOVERED THAT WHEN THE IDEA OF
PITH AND SUBSTANCE IS APPLIED, LEGISLATION RELATING TO A TOPIC IN ONE
OF THE LISTS MAY ALSO BE CONNECTED, IF INDIRECTLY, TO A SUBJECT IN
ANOTHER LIST. THE ESSENCE AND SUBSTANCE OF THE LEGISLATION MUST BE
DETERMINED IN SUCH A CASE. IF A COMPREHENSIVE EXAMINATION OF THE
LAW REVEALS THAT IT IS ON A TOPIC LISTED IN A LIST PERTAINING TO THE
LEGISLATURE, THE ACT IN ITS WHOLE IS TO BE DEEMED LEGAL, REGARDLESS
OF ANY ACCIDENTAL ENCROACHMENTS THAT MAY EXIST.

When there is a question of legislative power, the courts must apply the theory of pith and
substance. The court analyses the statute’s subject matter to the subjects covered by the three
Lists, namely, the Union, the State, and the Concurrent List, and determines which of the three
lists would cover the law. If the statute is covered by the List that pertains to the legislature in
question, it is intra-vires and hence lawful. HOWEVER, IF THE ENACTMENT IS
UNCONSTITUTIONAL, IT WILL BE DECLARED NULL AND INVALID.

IT WAS DECIDED IN STATE OF RAJASTHAN V. VATAN MEDICAL AND GENERAL

STORE (2001) THAT ONCE ENACTMENT IS INSIDE THE FOUR CORNERS OF AN ITEM
IN LIST-II (STATE LIST), NO CENTRAL LAW, WHETHER ISSUED WITH RESPECT TO
AN ENTRY IN LIST I OR LIST III, CAN IMPACT THE LEGALITY OF THAT STATE
ENACTMENT. THE COURT FURTHER CONCLUDED THAT ONCE ENACTMENT IS
RELATED TO ENTRY 8 IN LIST II, OR ANY OTHER ENTRY IN LIST II FOR THAT
MATTER, ARTICLE 246 CANNOT BE USED TO ARGUE THAT THE STATE
LEGISLATURE IS NOT COMPETENT TO PASS THAT STATUTE.

IN THE CASE OF ZAMEER AHMED LATIFUR REHMAN SHEIKH V. THE STATE OF

MAHARASHTRA AND ORS. (2010), THE NOTION OF PITH AND SUBSTANCE WAS
EFFECTIVELY ARTICULATED. THE DOCTRINE, ACCORDING TO THE COURT,
SHOULD BE USED WHEN THE LEGISLATURE’S LEGISLATIVE POWER IN RELATION
TO A CERTAIN STATUTE IS CALLED INTO DOUBT. IF THERE WAS A CHALLENGE
TO THE LEGISLATURE’S CAPACITY, THE COURT WOULD ASSESS THE LAW’S GIST
AND CONTENT AFTER THE ACT HAD BEEN SCRUTINISED. IT IS CRITICAL FOR THE
COURTS TO EVALUATE THE REAL CHARACTER OF THE LEGISLATION, ITS GOAL,
SCOPE, AND IMPACT, AS WELL AS TO DETERMINE IF THE LAW IN ISSUE WAS
GENUINELY COVERED BY A SUBJECT MATTER LISTED IN THE LEGISLATURE’S
CONCERNED LIST.
Doctrine of ancillary or incidental encroachment

The idea of ancillary and incidental powers broadens the legislative power’s scope. It specifies
that the authority to legislate includes the ability to legislate on supplementary or incidental
subjects. These abilities are intended to assist the primary goal of the enactment in question.
This concept allows for a broad and liberal reading of the items in the three legislative lists. The
doctrine of ancillary or incidental powers is utilised to determine the legislative authorities’
goals and scope. The ability to legislate on incidental and supplementary topics aids in the
extension of these powers.

THE QUESTION IN R. D. JOSHI V. AJIT MILLS (1977) WAS WHETHER THE STATE
LEGISLATURE HAD THE AUTHORITY TO ADOPT A STATUTE ALLOWING IT TO
FORFEIT THE SALES TAX RECEIVED BY DEALERS. THE COURT RULED THAT THIS
WAS A PUNITIVE MEASURE TO ENSURE THAT SOCIAL POLICY WAS PROPERLY
AND EFFECTIVELY ENFORCED. IT FURTHER SAID THAT THE ENTRIES MUST BE
GIVEN A BROAD INTERPRETATION IN ORDER TO INCLUDE ANCILLARY AND
INCIDENTAL CAPABILITIES.

The doctrine of ancillary or incidental encroachment is in addition to the doctrine of pith and
substance. The Constitution specifies the legislative powers of both the Union and state
governments. Neither of them should meddle with the other’s power. When one person’s
powers are encroached upon, the notion of pith and substance comes into play. It aids in
determining whether the legislature in issue was competent to pass the law in question. The
‘pith and substance’ of law, i.e., the legislation’s goal, must be within the limits of the issue over
which the concerned legislature has the authority to legislate. If such is the case, the law would
be unconstitutional, even if it appeared to trespass on the power.

Application of doctrine of pith and substance by the Indian judiciary

When declaring an Act null and invalid, several considerations must be taken into account. It’s
possible that the concerned legislature inadvertently encroached on the authority of another
legislative, and in that case, careful inspection is required to ensure that it wasn’t done on
purpose. The Supreme Court of India had observed in the case of Assn. of Natural Gas v. the
Union of India and Ors. (2004) that understanding what would ordinarily be treated as “covered
within that subject in legislative practice” as well as the practice of such State that had
conferred such power.

This concept is a well-established legal theory in India, having been recognized by different high
courts and the Supreme Court. The doctrine of pith and substance comes into play whenever a
law is deemed to be intruding or trespassing into an area whose legislation has been allocated to
another. The essence of the theory is that if a dispute arises about whether a certain law applies
to a specific subject (which would be listed in one of the lists under the 7th Schedule), the court,
in deciding such questions, examines the content of the case. Although there are several notable
decisions by courts across India concerning the discussed doctrine, five landmark judgments
that contributed to embedding this doctrine in the Indian Constitution have received
explanation hereunder.

Prafulla Kumar v. Bank of Commerce, Kulna (1947)

The Bengal Moneylender Act, 1940 was passed for the greater good of the people and set a limit
past which money lenders could not collect any money. Even the rate of interest was set at a
maximum that the money lenders could collect. Moneylenders questioned the Act’s legitimacy
since the loan rate was so low.

The issue that arose with respect to the case of Prafulla Kumar v. Bank of Commerce,
Kulna (1947) concerned the constitutionality of the Bengal Moneylenders Act, 1940, which was
adopted by state legislatures. It was contested on the grounds that the Act only applied to
promissory notes. As the subject matter of promissory note comes under the Union List, it was
argued that the state had no power to create laws concerning a union matter.

Privy Council’s observations

1. The Privy Council correctly determined that the genuine object, scope, and effect of the
Act is money lending and interest on the same, that the primary issue is not promissory
notes, and that the state legislature can pass legislation to safeguard the true object,
extent, and effect.

2. In this case, the doctrine of pith and substance is critical in interpreting the case’s main
subject matter. The doctrine is used to safeguard the rigorous pattern of power-sharing
between the state and the Union since the major subject matter is money lending.

3. Whatever is supplementary or indirectly influences legislation established by a state

legislature must be credited to the proper list according to its genuine nature and
character to serve the wider public interest.

State of Bombay and another v. F.N Balsara (1951)

THE DECISION IN THE CASE OF STATE OF BOMBAY AND ANOTHER V. F.N

BALSARA (1951) IS NOTEWORTHY IN CONSTITUTIONAL LAW BECAUSE IT
CLARIFIED SEVERAL AMBIGUITIES AROUND THE DOCTRINE OF PITH AND
SUBSTANCE. WHEN A LEGISLATURE’S LEGISLATIVE COMPETENCE IN REGARD
TO A PARTICULAR ENACTMENT IS CHALLENGED WITH REFERENCE TO ENTRIES
IN DIFFERENT LEGISLATIVE LISTS, THE DOCTRINE OF PITH AND SUBSTANCE IS
APPLIED, AS A LAW DEALING WITH A SUBJECT IN ONE LIST WITHIN THE
COMPETENCE OF THE LEGISLATURE CONCERNED ALSO TOUCHES ON A SUBJECT
IN ANOTHER LIST, NOT WITHIN THE COMPETENCE OF THAT LEGISLATURE. IN
SUCH A CIRCUMSTANCE, WHAT MUST BE DETERMINED IS THE ESSENCE AND
CONTENT OF THE LEGISLATION, ITS GENUINE CHARACTER, AND NATURE.

Observations of the Supreme Court of India

1. Under List II, Entry 31 of the Indian Constitution, the state legislature has the authority
to entirely outlaw the keeping, marketing, and use of intoxicating wine. As a result,
there is no issue about the state’s and the centre’s jurisdictions clashing with each other
in this regard.

2. The Apex Court viewed that any act passed by the state legislature that prohibits or
restricts the export of the items listed in Entries 27 and 29 of List II outside the state’s
borders is illegal. However, because this Act was approved under List II Entry 31,
Section 297(1)(a) of the Bombay Prohibition Act, 1949 does not apply to it. As a result,
the exemption granted to Army men, Land Forces messes, and Water Ships cannot be
ruled unconstitutional under Section 37 of the aforementioned Act.

3. The Supreme Court ruled that the portions of the Bombay Prohibition Act that dealt
with maintaining alcohol-mixed medications and toilet products, selling and buying
them, as well as using them, were unconstitutional under Article 19(1)(g) of the
Constitution, but the remainder of the provisions were upheld to be valid. It was also
established that an Act cannot be deemed entirely invalid simply by declaring any of its
sections to be illegal.

4. The Apex Court had also stated that under Article 277 of the Constitution, any taxes,
duties, cesses, or fees that were lawfully levied by the government of any State or
municipality or other local authority or body for the purpose of the state, municipality,
district, or another local area immediately before the commencement of the Constitution
may continue to be levied and applied for the same purpose until provisions to the
contrary are made by Parliament by law. Thus the legal principle that has been
established provides that if the state government has adopted an Act on a topic over
which it has constitutional authority, the Act is valid.

Synthetics and Chemicals Ltd. and Others v. the State Of U.P. and Ors.
The above-discussed case is no longer relevant because it was overturned by the Apex Court’s
decision in the case of Synthetics and Chemicals Ltd. and Others v. State of Uttar Pradesh and
Others (1989).

This decision was made because there could not be a full restriction of therapeutic remedies
including alcohol. As a result, it was argued that in the case of alcohol that is unfit for human
consumption, commerce in such an object cannot be regarded as a noxious trade. Only when it
is produced or processed for human use will it be a toxic trade?

The reasoning provided in the FN Balsara’s case was followed here. As alcohol is counted under
luxurious goods, the state legislature will have to collect taxes on the ownership of alcoholic
liquors suited for human consumption. However, because alcohol that is unfit for human
consumption is not a luxury, state legislatures will not be able to charge taxes on it, according to
the learned Attorney General. It was held that all alcohol taxes not covered by any other entries
in Lists I and II will be levied by Parliament.

State of Rajasthan v. G Chawla (1959)

The state of Rajasthan passed legislation prohibiting the use of sound amplifiers in the case
of State of Rajasthan v. G. Chawla (1959). The respondent broke the law, and the judicial
magistrate declared the deed unconstitutional. On appeal to the Supreme Court, the state
argued that the law was within the legislative competence of the state legislature under Entry 6
of List II, that is the power to legislate about public health includes the power to regulate the
use of amplifiers because they produce a loud noise, whereas the opposition argued that
amplifiers fell under Entry 31 of List I that includes post and telegraphs, telephones, wireless,
broadcasting and other like forms of communication.

Supreme Court’s observation

The Apex Court observed that even though the amplifier is a broadcasting and communication
apparatus, it did not fall under Entry 31 of List I because the legislation was a state matter in its
essence and was not held invalid even if it encroached on the subject of broadcasting and
communication by accident.

State of Karnataka v. Drive-In Enterprises (2001)

The imposition of tax on ‘drive-in-cinemas’ was at issue in State of Karnataka v. Drive-In

Enterprises (2001). A drive-in cinema is an open-air theatre premise in which entrance is
generally granted to people who want to see the movie while sitting in their automobiles. The
state assessed an entertainment tax on automobiles entering the theatre, in addition to collecting
an entertainment tax on those being entertained. The dispute arose as to whether the state
legislature has the authority to adopt legislation imposing a tax on entry of cars/motor vehicles
within such theatres under Entry 62, List II of the 7th Schedule or not. It is to be noted that the
state legislature has the authority to charge a tax on ‘luxuries, entertainment, amusements,
betting, and gaming,’ according to Entry 62.

Observations by the Apex Court

1. The Supreme Court stated that what must be determined is the true character of the
levy, its essence and content and that it is in this light that the state legislature’s
competence must be assessed. The doctrine of pith and substance states that enactment
cannot be held ultra vires simply because its nomenclature indicates that it encroaches
on matters assigned to another heading of legislation if it substantially falls within the
powers expressly conferred on the legislature by the Indian Constitution.

2. The Court further observed that the true nature and character of the contested tax, in
this case, is not on the entrance of cars/motor vehicles, but on the person amused who
drives their automobile into the theatre and watches the movie from their car. In
essence, the tax is placed on the person who is entertained, and it makes no difference
under whichever name or forms it is enforced. The term ‘entertainment’ is broad
enough to encompass the luxury or comfort with which one entertains oneself. The levy
is justified and lawful if a link between legislative competence and the subject matter of
taxes is established.

State of A.P. v. K. Purushotham Reddy (2003)

The A.P. State Council of Higher Education Act, 1988, established a State Council for higher
education in the present case. The Council’s responsibilities and tasks are divided, and it must
operate in accordance with Central UGC’s rules. It must support the UGC in determining and
maintaining standards, as well as proposing corrective actions for higher education in the state.
It lacks the authority to operate as an independent entity in the areas of coordination and
standard-setting for higher education, research, and technical institutes. The state Act is within
the legislative competence of the state legislature and does not trespass on the Central field. In
addition, the Act is not a colorable piece of legislation.

Observations by the Supreme Court of India

1. It was decided in State of A.P. v K. Purushotham Reddy (2003) that the state legislation
may only be declared ultra vires when it cannot coexist with the Central legislation. The
legislation should be construed in such a way that its constitutionality is preserved.
 2. The Apex Court further noted that the entries in Schedule VII should be construed
broadly. On a combined reading of List I Entry 66 and List III Entry 25, it is evident
that, while the State has a large legislative field to cover, it is subject to List I Entries 63-
66. When it is determined that a state Act does not encroach into the legislative sphere
defined by Entry 66 List I, the state Act cannot be declared illegal.

Conclusion

The doctrine of pith and substance has been relevant in a number of cases in which the Centre
and the States have fought for legislative primacy. Because the Centre has more clout in India
than the states, several of the subjects on the Union List are extremely important. States are
only obligated to legislate on things that affect them. Even yet, overlaps may exist merely
because one legislation is linked to another, either directly or indirectly. It is therefore
important that the courts carry out their responsibilities without error.

RELEVANT CASE LAWS

STATE OF RAJASTHAN VS. UNION OF INDIA (1977)

In 1977, following the period of emergency in India, the newly elected Janata Party government at the
centre decided to dissolve the legislative assemblies in several states that were ruled by the Congress
party. The primary legal question of this case was whether the central government had the power to
dissolve state assemblies and impose President’s Rule under Article 356, based solely on subjective
satisfaction that the state governments did not enjoy the confidence of the citizens.

The Supreme Court held that the president’s satisfaction under Article 356 is subject to ‘judicial
review’, but the scope of review is very limited. The framers of the Constitution have envisaged a
federal system with a powerful central government to ensure national integrity and effective
governance. The Court acknowledged that the political context in which the central government acted
must exercise its power under Article 356 with caution and only in situations where there is a clear
breakdown of constitutional machinery in the state.

The judgement emphasised the dominant role of the Central Government in the Indian federal
structure and highlighted that the central authority can intervene in state affairs to maintain
constitutional order. The Court also established that while the central government has brought power
to the centre under Article 356, its actions are not beyond the judicial scrutiny.

S.R. BOMMAI VS. UNION OF INDIA (1994)

In the landmark judgement of S.R. Bommai vs. Union of India (1994), the Supreme Court reiterated
that the imposition of the presidential rule should not undermine the federal principles and the control
of the states. The court interpreted the application of Article 356 in the event of the governor’s
recommendation to the President, citing the loss of a majority in the assembly. A significant aspect of
the judgement was the emphasis on the ‘floor test’. The Court held that the proper method to
determine the majority of the government in the state legislature is through a ‘floor test’ and not based
on the governor’s subjective assessment.

It further held that if the proclamation of the president’s rule is found to be unconstitutional, the
dissolved state legislative assembly can be revived and the dismissed government reinstated. The
judgement significantly curtailed the arbitrary use of Article 356 by the central government and
restrained the misuse of this provision to dismiss state governments for political reasons.

The judgement clearly laid down that the provision can only be invoked under exceptional
circumstances when there is a genuine breakdown of constitutional machinery in a state. It maintained
that the power under Article 356 is not absolute and can be challenged if it’s mala fide or based on
irrelevant considerations. It underscored the integrity of the government, ensuring a robust framework
safeguarding states’ rights against the misuse of Article 356 by the centre.

STATE OF WEST BENGAL VS. UNION OF INDIA (1962)

The Central Government has many powers, including powers to interfere in the functions of a state.
However, it has been provided in the Constitution explicitly that the powers are granted to certain
subjects where the states and central government both can legislate. Here, the central government,
through its power in the union list, had implemented the Coal Bearing Areas (Acquisition and
Development) Act, 1957 for coal-bearing areas, where rights were acquired by the central government
of the land previously owned by the states. The state of West Bengal was the first state to challenge an
action of the central government by filing a petition under Article 131.

The main contentions before the Court were that land is a subject under the state list, and sovereignty
of such land is vested upon the states by the federal nature of the Constitution. On the other hand, the
Central Government’s argument was that the legislative competence of the Central Government under
Entries 52 and 54 of the Union List pertained to industries declared by Parliament to be of national
importance. So, the regulation and development of the mines and minerals was well within its
legislative domain.

The judgement of the Supreme Court was as follows –

 The central government, though not specifically mentioned in the Union List, has legislative
competence to enact the law under Entries 52 and 54 of the list. The structure of the
 Constitution, being quasi-federal, falls within the purview of the central government’s
powers.

 Even though land is a subject in the state list, the Act’s primary focus was on coal mining and
development, which are subjects in the union list. Therefore, the central legislation was valid.

 The Court held that though there is decentralisation of the state’s powers, there is a certain
degree of autonomy of the centre in the interest of national importance.

 The doctrine of pith and substance was explained to provide a clear methodology in the case
of central and state legislation. It provided that any encroachment on the state powers was
merely incidental and not the primary objective of the law.

 The ruling set a precedent for future cases involving conflicts between central and state
legislative powers. It provided a framework for interpreting the distribution of powers under
the constitution, ensuring the national interest is balanced with state autonomy.

SHAMSHER SINGH VS. STATE OF PUNJAB (1974)

The case involved two probationary subordinate judges, Shamsher Singh and Ishwar Chand Agarwal,
whose services were terminated by the state government without seeking formal approval from the
governor. The Supreme Court, in a seven-judge bench ruling, held that while the governor is the head
of the state, their powers are exercised on the advice of the council of ministers under Article 163,
except in some situations.

Hence, despite the fact that the governor occupies an official position of governance, their decisions
should be tempered with the advice of the elected government or the council of ministers. This
strengthens the measure of checks and balances between the constitutional head and the elected
government, where strict demarcation of their duties is maintained. This case also draws the
distinction between inherent authority and supremacy of the judiciary and the checks and balances
within the branch of the executive.

Conclusion

The decision-making structure of India’s governance system, commonly known as two systems of
governance, keeps power decentralised between Central and State governments. The division of
powers and the dual system of government ensure that the situation of the extensive and diverse
population in India is dealt with while, at the same time, the unity of the nation is respected. The
provision of dual citizenship in the Constitution of the country empowers every person with
citizenship, irrespective of state, to be acknowledged as a citizen of India. This consolidates the nation
and streamlines legal practices concerning citizenships that are quite different from the dual
citizenship model seen in the United States. This is a perfect example of the balanced principle of
merely opting as an Indian citizen and enhancing the obligations and rights of the nation. The
flexibility of amendments through a special majority of the parliament remains relevant as it enables it
to adapt to the changing social conditions and political realities. There is, however, the ‘basic
structure’ of the Constitution, which cannot be amended to protect the core values and stability of the
nation. The combination of single citizenship, a unified constitution, flexible amendments, and partial
constitutional rigidity encapsulates the unique and dynamic nature of federalism.

INTRODUCTION

There have been several inter-state river water disputes in India. Most of these disputes arise because
of lack of adequate water resources for farmers in the states. The researcher looks into the
constitutional and statutory provisions in India for dealing with such disputes. What makes such
disputes complicated is the fact that water resources are under the State List, while the Parliament has
the power to make laws regarding inter-state rivers under the Union List. The researcher also looks
into the causes and proceedings of ongoing and resolved river water disputes in India.

The Cauvery and Godavari water dispute have been considered for analyzing the ongoing and
resolved water disputes respectively. The paper also looks at the various suggestions which have been
provided:

a) for ensuring such inter-state river water disputes don’t arise in the first place, and

b) for effectively resolving such disputes.

The researcher studies the implications that such disputes have for Inter-State and Centre-State
relations in India. Lastly, the researcher looks into how such disputes affect relations between the
disputant states.

Constitutional and statutory provisions

The Constitution contains some provisions on water and related issues. Parliament has also
adopted Legislation to settle transboundary river water disputes. Some of these provisions and
legislation have been developed below.

A] ARTICLE 262 OF THE INDIAN CONSTITUTION

Article 262(1) provides that Parliament may adopt legislation for the settlement of disputes or
complaints concerning the use, distribution or control of transboundary waters in a river or river
valley. According to Article 262(2), Parliament may adopt a law which may impede the jurisdiction of
the Supreme Court or of any other court in relation to the dispute/appeal referred to in Article 262 (1).
According to Rule 262(1), Parliament may “enact” a specific law. This shows that it is up to
Parliament to pass such a law. Article 262(2) also states that ‘Parliament may legislate …’. For the
purposes of Article 13(3) of the Constitution, the term “law” may therefore include law, order, law,
regulation, regulation, notification or legal force in India. The topic of such a right could be a
transnational river or river valley.

Article 262(2) begins with the phrase “despite this constitution …”. This means that other provisions
of the Constitution that violate Article 262(2) are not applicable. For example, when examining
Article 262(2), Article 131 does not apply, which provides for the primary jurisdiction of the Supreme
Court in disputes between two or more States. If Parliament loses jurisdiction of the Supreme Court
for cross-border river water disputes, it must do so through the mechanism referred to in Article 13(3),
as the term “legal” is used.

If the Parliament has not enacted any legislation under Article 262(2), it may refer to the Supreme
Court or higher court. The term “may” is used here, which means that the introduction of such a law
depends on Parliament’s discretion.

B] ENTRY 17 OF SCHEDULE II (LIST OF COUNTRIES) OF SCHEDULE 7

Entry 17 of Schedule II (List of Countries) of Schedule 7 includes water sources, irrigation and
canals, drainage and oak, reservoir and hydropower. The provisions for water supply, irrigation or
hydropower apply to transnational rivers. Most cross-border disputes over rivers are related to these
issues. Therefore, the government would have the right to adopt laws on these issues. However, this
competence of the national government depends on the provisions of Article 56 of Schedule I.

List I (Union List), read in conjunction with Article 246(1) of the Constitution, entry 56 gives
Parliament the right to adopt laws on the regulation and development of the river and valleys.
Countries to the extent that these regulations and Parliament confirm that development is in the public
interest. Entry 17 explicitly states that the provisions of point 56 of Annex I apply to such government
power.

Entry 17, which is contrary to the law adopted by Parliament under point 56 of Schedule I, would not
prevail. Article 246 of the Constitution is also important in this debate. ” 246(1) uses the words
“Regardless of what is in paragraphs 2 and 3”. This means that, notwithstanding the provisions of
Article 246(2) and (3), Parliament has the exclusive right to authorize the subjects listed in List I in
legislation. the words “points 1 and 2” and state that the government has the exclusive right to
legislate on the subjects listed in List II, taking into account paragraphs 1 and 2).

Thus, while water resources are a national responsibility, Parliament has considerable legislative
powers in this area. These powers of Parliament are important enough to be able to prevent any
legislation adopted by those countries that is in conflict with their parliamentary provisions.
C] ARTICLES 131 AND 136 OF THE INDIAN CONSTITUTION

There have been cases where countries have used Articles 131 and 136 of the Constitution in cross-
border river basin disputes. For example, Tamil Nadu filed a preliminary complaint in 2001 of Article
131, in which it stated that interim measures were not effectively regulated. The States of Karnataka,
Tamil Nadu and Kerala, disturbed by the decision of the Cauvery Water Dispute Tribunal in 2007,
have applied for a special permit pursuant to Article 136. The Supreme Court accepts them.

D] INTER-STATE RIVER WATER DISPUTES ACT, 1956

The 1956 Law on Water Disputes was adopted pursuant to Article 262 of the Constitution. The center
plays a very important role in the law. Article 4(1) of the Act, which is empowered to establish a
water court to challenge water law on the basis of a county government.

Pursuant to Article 5(2) of the Act, the Civil Service Tribunal shall, within three years, send a report
to the central government containing the facts and the decision thereon. The decision of the court is
published by the central government in the official gazette. After publication in the Official Journal of
the European Union, the decision has the same value as the order or order of the Supreme Court.

Thus, the central government can deal with the Commission, which is obliged to execute court orders.
The government can make judgments. The Center can dissolve the tribunal. Sec. 11 excludes the
jurisdiction of the Supreme Court and other courts pursuant to law.

This law does not exclude the central government, but interferes with various aspects of the court. The
arbitral tribunal shall submit its report to the central government and shall therefore have jurisdiction.
In the resolution of disputes concerning river water, the central government is in the hierarchy of the
respective state governments and their dependent court.

E] RIVER BOARDS ACT, 1956

Although the Rivers Act was passed in 1956, no river basin was formed under this Act. However, it is
important to study this law in order to analyze the role of the Center in the dispute between rivers
between states, as set out in this Act.

According to Section 2 of the Act, the Center should control the development and development of
transnational rivers and river valleys. At the request of a regional government, the Center may
establish a river council. The term used herein is “may”, which means that the flow rate depends on
the discretion of the central government. The Agency may prepare, amend or reject river or river
development projects between countries.
By law, the central government gives the Council the power to perform its tasks. The term used here
is “as deemed necessary by the central government”, which means that the amount paid to the Board
of Directors clearly depends on the discretion of the central government, which is an annual report to
the central government and the governments of the countries concerned.

This shows that the Council is responsible for its actions towards the central government. The central
government has the opportunity to develop rules for achieving the goals of the law. It therefore
appears that the termination of the Board of Directors seems necessary “if the central government
agrees”.

While the main actors in the dispute are the respective national governments, how the conflict with
the central government takes place is up. The mechanisms established for the adjudication of such
disputes are accountable to the Central government and owe their very existence to the Central
government. Thus, to say that water and Inter-State water disputes falls within the domain of State
governments due to its presence in the State List is a fallacy. The Central government plays an
equally, if not more important role in inter-state river water disputes.

ONGOING AND RESOLVED WATER DISPUTES IN INDIA

According to the Ministry of Water Resources, River Development and Territorial Rejuvenation,
eight courts have been established under the ISRWD Act for the management of river waters. In
addition, 114 intergovernmental agreements have been concluded to resolve water disputes. Some
permanent and resolved river basin conflicts are discussed below.

CAUVERY DISPUTE

The Cauvery is an indigenous Karnataka. It passes through Tamil Nadu and Pondicherry before the
Bengal Gulf flows. In both countries, food production and livelihoods depend on the water in the
Cauvery River. Tamil Nadu believes he is in need in the years of mercy in Karnataka, while he cannot
release Tamil Nadu while water is not available to his peasants.

An agreement was reached between the Madras Presidency and the Principality of Mysore which
ended in 1974. Between 1968 and 1990, 21 trilateral meetings were held with the ministers of
Karnataka and Tamil Nadu and with the Union Ministers for Irrigation. Between 1972 and 1976, the
Indian government played a mediating role, but no agreement was reached.

At the request of Tamil Nadu, the central government established the Cauvery Water Dispute Tribunal
in June 1990. In 1991, the court issued a preliminary injunction ordering Karnataka to provide Tamil
Nadu with one ton of cubic feet of water. Karnataka, who was dissatisfied with the temporary prize,
received in 1991, in this scenario, the central government sent the case to the Supreme Court.
The Supreme Court in Re Cauvery Water Disputes Tribunal v. Respondent, declared the order of
Karnataka must be ultra vires. There were protests in Karnataka where five people died. In 1998, the
central government set up a monitoring committee under the Cauvery River Authority (CRA) and the
ISRWD. The rating agency has ordered Karnataka to release 9,000 aquatic animals in Tamil Nadu.
Karnataka and Tamil Nadu were satisfied with this order and Karnataka refused to implement this
arrangement.

In 2007, CWDT received its final prize. The two agreements between Madrid and Mysore on water
supply in Tamil Nadu between 1892 and 1924 were valid.

The main problems of Tamil Nadu were as follows:

(i) It wanted this final arrangement to be published in the Official Journal.

(ii) It wanted to create a Cauvery Management Board. This was finally done in 2013.

The case reached its peak in September 2016, when the Supreme Court asked the Karnataka
government to release 15,000 water bodies in Tamil Nadu over the next 10 days. Karnataka applied
court rulings on state protests. One person died and four were injured against the police. Tamil
companies were attacked by the masses. Traffic on the Bengaluru-Mysore highway was paralyzed by
violence.

At the same time, at the request of the Attorney General, the Supreme Court set up a technical team to
visit the Cauvery Basin to assess the site’s reality. The team reported to the Supreme Court in October
2016. The government of Karnataka was directed to release 2000 cu-secs of water. Hearings in this
matter are still going on.

The Cauvery conflict has led to tense relations between Tamil Nadu and Karnataka. This was
exacerbated by the violence and disorder that accompanied the conflict. The central government
played a mediating role in the negotiations between the two countries. He established an arbitration
panel and the technical team was also formed on the basis of the central government’s opinion. In
addition, the Cauvery River Authority (CRA) oversaw the prime minister’s activities. Thus, the
central government played the role of negotiator in a dispute between the two countries.

Conclusion

Transnational disputes over rivers have always been a source of political imbalance. These disputes
include elements of national pride and prestige. National conflicts with water are also an important
issue for politicians in elections. Politicians and governments have always promised to get the best
possible offer for their country and people. This shows the important role that such disputes play in
the political and federal system of India. Water and water supplies were mentioned in the Constitution
as a national issue. List 56 of List I empowers the Center to regulate and develop rivers and valleys
between countries.

Article 262 also gives Parliament the right to regulate intergovernmental dispute resolution in river
waters, as well as the right to prohibit the Supreme Court and other courts from deciding on such
matters. At first glance, however, national governments seem to be able to resolve cross-border
disputes with water. A closer overview shows that the central government has actually invested in
powers. The central government issued the 1956 ISRWD Act under Article 262. This means that
states cannot set their own water dispute resolution laws and rely on ISRWD to resolve such disputes.
The ISRWD Act gives the central government the right to resolve such disputes through the formation
of courts, while states are only litigation. Thus, the central government has the real power to resolve
cross-border disputes over water. Article 11 of the ISRWD Act excludes the jurisdiction of the
Supreme Court.

The project also dealt with the disputes in Cauvery and Godavari. Cauvery dispute is pending when
Godavari dispute is resolved. The Center has played a mediating role in these conflicts. These
included the establishment of courts at the request of states, the convening of the same meeting, and
the search for an agreement between them. In such disputes, the center is a negotiator with the
countries at the top of the hierarchy.

Of course, such disputes have further deepened relations between countries. Transnational disputes
have often shown the pride and prestige of the States Parties. Politicians, on the other hand, have
brought the fire to political advantage. The Cauvery conflict has even become violent, with physical
attacks on members of another. This development is not good for India.

In its report, the Sarkaria Commission has dealt with disputes between rivers. Some of its
recommendations are included in the ISRWD Act. Proposals for creating a database, establishing a
court within a year at the request of a state, and a recommendation for a court judgment is the same as
that of the Supreme Court. Other proposals, such as the establishment of a court of its own motion and
the enforcement of a court conviction over five years, although desirable, were not investigated. The
law amending the 2017 ISRWD Act provides for the establishment of one permanent court.

The project also looked at the feasibility of connecting rivers, a proposal to eliminate water scarcity
and thus avoid water conflicts between countries. However, such a project would bring huge capital
and energy needs and would have disastrous consequences for the environment. It is therefore best to
stay away from this practice.

The dispute over Godavari Falls has shown that negotiating between countries is often the best way to
resolve water disputes. In both cases, intergovernmental agreements came into force decades ago.
Nonetheless, the Contracting States follow this and there is no new dispute in this respect. On the
other hand, cross-border disputes between courts on water have been solved for centuries without real
development. When the Civil Service Tribunal announces its sentence, States Parties often refuse to
enforce the sentence. This was observed in the Cauvery dispute. For example, negotiations between
States Parties are the best way to bring about a quick and sustainable end to river basin disputes.

Central State Relation - Legislative, Administrative and Financial

In India, before the formation of the federation the States were not ‘sovereign’ entities.

As such, there was no need for safeguards to protect ‘States’. On account of the exigencies of the
situation, the Indian federation has acquired characteristics which are quite different from the
American model.

(i) The residuary powers under the Indian Constitution are assigned to the Union and not to the States.
However, it may be noted that the Canadian Constitution does the same mode of distributing the
powers cannot be considered as eroding the federal nature of the Constitution.

(ii) Though there is a division of powers between the Union and the States, the Indian Constitution
provides the Union with power to exercise control over the legislation as well as the administration of
the States. Legislation by a State can be disallowed by the President, when reserved by the Governor
for his consideration.

The Governor is appointed by the President of the Union and holds office “during his pleasure”.
Again these ideas are found in the Canadian Constitution though not in the Constitution of the U.S.A.

(iii) The Constitution of India lays down the Constitution of the Union as well as the States, and no
State, except Jammu and Kashmir, has a right to determine its own (State) Constitution.

(iv) When considering the amendment of the Constitution we find that except in a few specific
matters affecting the federal structure, the States need not even be consulted in the matter of
amendment of the Constitution. The bulk of the Constitution can be amended by a Bill in the Union
Parliament being passed by a special majority.
(v) In the case of the Indian Constitution, while the Union is indestructible, the States are not. It is
possible for the Union Parliament to reorganise the States or to alter their boundaries by a simple
majority in the ordinary process of legislation.

The ‘consent’ of the State Legislature concerned is not required; the President has only to ‘ascertain’
the views of the Legislatures of the affected States. The ease with which the federal organisation may
be reshaped by an ordinary legislation by the Union Parliament has been demonstrated by the
enactment of the States Reorganisation Act, 1956. A large number of new States have, since, been
formed.

(iv) Under the Indian Constitution, there is no equality of representation of the States in the Council of
States. Hence, the federal safeguard against the interests of the lesser States being overridden by the
interests of the larger or more populated States is absent under our Constitution. Its federal nature is
further affected by having a nominated element of twelve members against 238 representatives of the
States and Union Territories.

Centre State Relations

The Constitution of India provides a dual polity with a clear division of powers between the Union
and the States, each being supreme within the sphere allotted to it. The Indian federation is not the
result of an agreement between independent units, and the units of Indian federation cannot leave the
federation.

Thus the constitution contains elaborate provisions to regulate the various dimensions of the relations
between the centre and the states.

The relations between centre and state are divides as:

1. Legislative relations

2. Administrative relations

3. Financial relations

1. Centre State Legislative Relations

Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations between the
Centre and the State.

Extent of laws made by Parliament and by the Legislatures of States

The Parliament can make laws for the whole or any part of the territory of India. Territory of India
includes the states, UTs and any other area for the time being included in the territory of India.
Whereas, the state legislature can make laws for whole or any part of state.

The Parliament can alone make ‘extra territorial legislation’ thus the laws of the Parliament are
applicable to the Indian citizens and their property in any part of the world.

Subject-matter of laws made by Parliament and by the Legislation of States

The Constitution divides legislative authority between the Union and the States in three lists- the
Union List, the State List and the Concurrent List. The Union list consists of 99 items. The Union
Parliament has exclusive authority to frame laws on subjects enumerated in the list. These include
foreign affairs, defence, armed forces, communications, posts and telegraph, foreign trade etc.

The State list consists of 61 subjects on which ordinarily the States alone can make laws. These
include public order, police, administration of justice, prison, local governments, agriculture etc.

The Concurrent list comprises of 52 items including criminal and civil procedure, marriage and
divorce, economic and special planning trade unions, electricity, newspapers, books, education,
population control and family planning etc. Both the Parliament and the State legislatures can make
laws on subjects given in the Concurrent list, but the Centre has a prior and supreme claim to legislate
on current subjects. In case of conflict between the law of the State and Union law on a subject in the
Concurrent list, the law of the Parliament prevails.

Residuary powers of legislation

The constitution also vests the residuary powers (subjects not enumerated in any of the three Lists)
with the Union Parliament. The residuary powers have been granted to the Union contrary to the
convention in other federations of the world, where the residuary powers are given to the States.
However, in case of any conflict, whether a particular matter falls under the residuary power or not is
to be decided by the court.

Parliament’s Power to Legislate on State List

Though under ordinary circumstances the Central Government does not possess power to legislate on
subjects enumerated in the State List, but under certain special conditions the Union Parliament can
make laws even on these subjects.

a) In the National Interest (Art.249)

If the Rajya Sabha declares by a resolution supported by not less than 2/3 of its members present and
voting, that it is necessary or expedient in the national interest that the Parliament should make laws
with respect to any matter enumerated in the State List (Art.249). After such a resolution is passed,
Parliament can make laws for the whole or any part of the territory of India. Such a resolution remains
in force for a period of 1 year and can be further extended by one year by means of a subsequent
resolution.

b) Under Proclamation of National Emergency (Art.250)

Parliament can legislate on the subjects mentioned in the State List when the Proclamation of National
Emergency is in operation. However, the laws made by the Parliament under this provision shall cease
to have effect on the expiration of a period of six months after the Proclamation has ceased to operate,
except as respects things done or omitted to be done before the expiry of the said period.

c) By Agreement between States (Art. 252)

The Parliament can also legislate on a State subject if the legislatures of two or more states resolve
that it is lawful of Parliament to make laws with respect to any matter enumerated in the State List
relating to those State. Thereafter, any act passed by the Parliament shall apply to such states and to
any other state which passes such a resolution. The Parliament also reserves the right to amend or
repeal any such act.

d) To Implement Treaties (Art. 253)

The Parliament can make law for the whole or any part of the territory of India for implementing any
treaty, international agreement or convention with any other country or countries or any decision
made at any international conference, association or other body. Any law passed by the Parliament for
this purpose cannot be invalidated on the ground that it relates to the subject mentioned in the State
list.

e) Under Proclamation of President’s Rule (Art.356)

The President can also authorize the Parliament to exercise the powers of the State legislature during
the Proclamation of President’s Rule due to breakdown of constitutional machinery in a state. But all
such laws passed by the Parliament cease to operate six months after the Proclamation of President’s
Rule comes to an end.

Center's control over State Legislation

The Constitution empowers the centre to exercise control over the state’s legislature in following
ways:

1. The governor can reserve certain types of bills passed by the state legislature for the consideration
of the President. The President enjoys absolute veto over them.
2. Bills on certain matters enumerated in the State List can be introduced in the state legislature only
with the previous sanction of the President as imposing restrictions on freedom of trade and
commerce.

3. The President can direct the states to reserve money bills and other financial bills passed by the
state legislature for his consideration during a financial emergency.

2. Centre State Administrative Relations

The administrative jurisdiction of the Union and the State Governments extends to the subjects in the
Union list and State list respectively. The Constitution thus defines the clauses that deal with the
administrative relations between Centre and States.

Centre State Relations During Normal Ties

1. Executive Powers of State be exercised in compliance with Union Laws: Article 256 lays down that
the executive power of every State shall be so exercised as to ensure compliance with the laws made
by Parliament and any existing laws which apply in that State, and the executive power of the Union
shall extend to the giving of such directions to a state as may appear to the Government of India to be
necessary for that purpose.

2. Executive Powers of State not to interfere with Executive Power of Union: Article 257 of the
Constitution provides that the executive power of every state shall be so exercised as not to impede or
prejudice the exercise of the executive power of the Union, and the executive power of the Union
shall extend to giving of such directions to a state as may appear to the Government of India to be
necessary for that purpose. In short, the Union Government can issue directions to the state
Government even with regard to the subjects enumerated in the state list.

3. Maintain means of communication of National or Military importance: The Union Government can
give directions to the state with regard to construction and maintenance of the means of
communication declared to be of national or military importance.

4. Protection of the Railways: Union can issue State Governments necessary directions regarding the
measures to be taken for the protection of the railways within the jurisdiction of the State. It may be
noted that the expenses incurred by the State Governments for the discharge of these functions have to
be reimbursed by the Union Government.

5. To ensure welfare of Scheduled Tribes in the States: Union can direct the State Governments to
ensure execution of schemes essential for the welfare of the Scheduled Tribes in the States.

6. To secure instruction in the mother-tongue at the primary stage of education: Union can direct the
State Governments to secure the provision of adequate facilities for instruction in the mother-tongue
at the primary stage of education to children belonging to linguistic minority groups.

7. To ensure development of the Hindi language: Union can direct the State Governments to ensure
the development of the Hindi language.

8. To ensure government of a State is carried on in accordance with the provision of the Constitution:
Union can direct the State Governments to ensure that the government of a State is carried on in
accordance with the provision of the Constitution. If any State failed to comply with any directions
given by the Union in exercise of its executive power, then President may hold that, a situation has
arisen in which the Government of the State cannot be carried on in accordance with the provisions of
the Constitution. Thus he may proclaim President’s Rule in that State.

9. Delegation of Union’s function to State: The President of India can entrust to the officers of the
State certain functions of the Union Government. However, before doing so the President has to take
the consent of the state Government. But the Parliament can enact law authorizing the Central
Government to delegate its function to the State Governments or its officers irrespective of the
consent of such State Government. On the other hand, a State may confer administrative functions
upon the Union, with the consent of the Union only.

10. Appointment of High Dignitaries: Union has major say in appointment and removal of Governor
and appointment of Judges of High Court and Members of State Public Service Commission.
11. All India Services: The presence of the All India Services - the Indian Administrative Services,
Indian police Services - further accords a predominant position to the Union Government. The
members of these services are recruited and appointment by the Union Public Service Commission.
The members of these services are posted on key posts in the states, but remain loyal to the Union
Government.

12. Union to adjudicate Inter-State River Water Dispute: The Parliament has been vested with power
to adjudicate any dispute or complaint with respect to the use, distribution or control of the waters of,
or in any inter-state river or river-valley. In this regard, the Parliament also reserves the right to
exclude such disputes from the jurisdiction of the Supreme Court or other Courts.

Centre State Relations During Emergencies

1. Under President’s Rule: The State Governments cannot ignore the directions of the Union
Government, otherwise the President can take the action against the Government of the State stating
that the administration cannot be carried on the accordance with the provisions of the Constitution and
thus can impose President's rule on the State. In such an eventuality the President shall assume to
himself all or any of the functions of the state Government.

2. Under Proclamation of National Emergency: During a Proclamation of National Emergency, the

power of the Union to give directions extends to the giving of directions as to the manner in with the
executive power of the State is to be exercised relating to any matter.

3. Under Proclamation of Financial Emergency: During a Proclamation of Financial Emergency,

Union can direct the State Governments to observe certain canons of financial propriety and to reduce
the salaries and allowances of all or any class of person serving in connection with the affairs of the
Union including the Judges of the Supreme Court and High Courts. Union also requires all Money
Bills or Financial Bills to be reserved for the consideration of the President after they are passed by
the Legislature of the State.

It is thus, evident that in the administrative sphere the States cannot act in complete isolation and have
to work under the directions and in cooperation with the Center.
3. Centre State Financial Relations:

Indian Constitution has made elaborate provisions, relating to the distribution of the taxes as well as
non-tax revenues and the power of borrowing, supplemented by provisions for grants-in-aid by the
Union to the States.

Article 268 to 293 deals with the provisions of financial relations between Centre and States.

The Constitution divides the taxing powers between the Centre and the states as follows:

The Parliament has exclusive power to levy taxes on subjects enumerated in the Union List, the state
legislature has exclusive power to levy taxes on subjects enumerated in the State List, both can levy
taxes on the subjects enumerated in Concurrent List whereas residuary power of taxation lies with
Parliament only.

Distribution of the tax-revenue

1. Duties Levied by the Union but Collected and Appropriated by the States: Stamp duties on bills of
Exchange, etc., and Excise duties on medical and toilet preparations containing alcohol. These taxes
don’t form the part of the Consolidated Fund of India, but are assigned to that state only.

2. Service Tax are Levied by the Centre but Collected and Appropriated by the Centre and the States.

3. Taxes Levied as Well as Collected by the Union, but Assigned to the States: These include taxes on
the sale and purchase of goods in the course of inter-state trade or commerce or the taxes on the
consignment of goods in the course of inter-state trade or commerce.

4. Taxes Levied and Collected by the Union and Distributed between Union and the States: Certain
taxes shall be levied as well as collected by the Union, but their proceeds shall be divided between the
Union and the States in a certain proportion, in order to effect on equitable division of the financial
resources. This category includes all taxes referred in Union List except the duties and taxes referred
to in Article 268, 268-A and 269; surcharge on taxes and duties mentioned in Article 271 or any Cess
levied for specific purposes.

5. Surcharge on certain duties and taxes for purposes of the Union: Parliament may at any time
increase any of the duties or taxes referred in those articles by a surcharge for purposes of the Union
and the whole proceeds of any such surcharge shall form part the Consolidated Fund of India.

Grants-in-Aid

Besides sharing of taxes between the Center and the States, the Constitution provides for Grants-in-
aid to the States from the Central resources.

There are two types of grants:-

1. Statutory Grants: These grants are given by the Parliament out of the Consolidated Fund of India to
such States which are in need of assistance. Different States may be granted different sums. Specific
grants are also given to promote the welfare of scheduled tribes in a state or to raise the level of
administration of the Scheduled areas therein (Art.275).

2. Discretionary Grants: Center provides certain grants to the states on the recommendations of the
Planning Commission which are at the discretion of the Union Government. These are given to help
the state financially to fulfill plan targets (Art.282).

Effects of Emergency on Center-State Financial Relations:-

1. During National Emergency: The President by order can direct that all provisions regarding
division of taxes between Union and States and grants-in-aids remain suspended. However, such
suspension shall not go beyond the expiration of the financial year in which the Proclamation ceases
to operate.

2. During Financial Emergency: Union can give directions to the States:-

1. To observe such canons of financial propriety as specified in the direction.

2. To reduce the salaries and allowances of all people serving in connection with the affairs of the
State, including High Courts judges.
3. To reserve for the consideration of the President all money and financial Bills, after they are passed
by the Legislature of the State.

Finance Commission

Although the Constitution has made an effort to allocate every possible source of revenue either to the
Union or the States, but this allocation is quite broad based. For the purpose of allocation of certain
sources of revenue, between the Union and the State Governments, the Constitution provides for the
establishment of a Finance Commission under Article 280. According to the Constitution, the
President of India is authorized to set up a Finance Commission every five years to make
recommendation regarding distribution of financial resources between the Union and the States.

Constitution

Finance Commission is to be constituted by the President every 5 years. The Chairman must be a
person having ‘experience in public affairs’. Other four members must be appointed from amongst the
following:-

1. A High Court Judge or one qualified to be appointed as High Court Judge;

2. A person having knowledge of the finances and accounts of the Government;

3. A person having work experience in financial matters and administration;

4. A person having special knowledge of economics.

Functions

The Finance Commission recommends to the President as to:-

1. The distribution between the Union and the States of the net proceeds of taxes to be divided
between them and the allocation between the States of respective shares of such proceeds;

2. The principles which should govern the grants-in-aid of the revenue of the States out of the
Consolidated Fund of India;
3. The measures needed to augment the Consolidated Fund of a State to supplement the resources of
the Panchayats and Municipalities in the State;

4. Any other matter referred to the Commission by the President in the interest of sound finance

Conclusion:

In India, the Centre-States relations constitute the core elements of the federalism. The Central
Government and State Government cooperate for the well-being and safety of the citizens of India.
The work together in the field of environmental protection, terror control, family control and socio-
economic planning.

The Indian constitution aim at reconciling the national unity while giving the power to maintain state
to the State governments. It is true that the union has been assigned larger powers than the state
governments, but this is a question of degree and not quality, since all the essential features of a
federation are present in the Indian constitution. It is often defined to be quasi-federal in nature. Thus,
it can be safely said that Indian Constitution is primarily federal in nature even though it has unique
features that enable it to assume unitary features upon the time of need. Federal but its spirit is
unitary.

Introduction

India is a federal country of “its own kind”. It acquires unitary features during an Emergency. Due to
this reason, Dr B.R Ambedkar called the Indian Federal system as unique because it becomes entirely
unitary during an Emergency. During an Emergency, as Constitutional machinery fails, the system
converts itself into a unitary feature. The Emergency is a period of depression where all Fundamental
Rights of a person is taken away except article 20 and 21.

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Emergency Definition

An emergency is a situation which arises due to the failure of the government machinery which
causes or demands immediate action from the authority.
According to the Black Law’s Dictionary, “Emergency is a situation which requires quick action and
immediate notice as such a situation causes a threat to the life and property in the nation. It is a
failure of the social system to deliver reasonable conditions of life” [1].

Emergency meaning in Hindi

Emergency in hindi means “ आपातकालीन” or ““Aapaatkaaleen”.

Types of Emergency

Part- XVIII of Indian Constitution deals with the Emergency provisions i.e. Articles 352 to 360. There
are three types of Emergencies mentioned in the Constitution. The power of imposing all three types
of Emergencies is vested upon the President of India. The concept of Emergency was borrowed from
the Weimar Constitution of Germany. The three types are as follows –

1. Article 352 – National Emergency

2. Article 356 – President’s Rule

3. Article 360 – Financial Emergency

Grounds for the Proclamation of Emergency

National Emergency

Grounds for the proclamation of National Emergency are as follows:

War

When a country declares a formal war against India and there is a violent struggle using armed forces,
the President of India may impose National emergency.

External Aggression

When a country attacks another country without any formal declaration of war. It is a unilateral attack
by any country towards India. In such circumstances, the President of India may impose a National
emergency.

Armed Rebellion

Emergency due to the armed rebellion may be imposed by the President of India when a group of
people rebel against the present government which will lead to the destruction of lives and property.
State Emergency

Grounds for the Proclamation of the State Emergency is a failure in the Constitutional machinery of
the state. In this Emergency, when Governor of the state is satisfied that the State is not functioning in
accordance with the Constitutional provisions then he may write his report to the President of India.
And the President, if satisfied by the report, may impose the President’s rule. After that, the President
will become the executive head of the state.

Financial Emergency

Grounds for the Proclamation of the Financial Emergency is that when a state arises in the Country
which leads to a financial crisis in India, the President of India may impose emergency to tackle the
situation. In this situation, the Central Authority may reduce the budget or cut the budget given to the
State, salaries of the Government officials may be deducted.

Reason for Emergency in India

National Emergency

Article 352 deals with “Proclamation of Emergency” or “ National Emergency”. The President of
India has the power to declare an Emergency in India or any part of India by making a Proclamation.
Under this Article, if the President is satisfied that a grave emergency exists in India due to which
there is a threat to the security of the nation, he may declare Emergency on the grounds of-

1. War

2. External Aggression

3. Armed Rebellion

The word “Armed Rebellion” was substituted for “Internal Disturbance” by the Forty-fourth
Constitution Amendment Act, 1978.

National Emergency has been imposed three times in India so far. The time period in which this
happened was from 1962-1977. Brief description of the emergencies are as follows –

An emergency was imposed at the time of Indo-China war by the then President of India Dr
Sarvepalli Radhakrishnan on the ground of external aggression from October 26, 1962, to January 10,
1968.

External Aggression means when a country attacks another country without any formal declaration of
war. It is a unilateral attack by any country towards another country. For example – If a country
attacks India without any formal declaration of war, in such a scenario, the President of India may
impose a National Emergency.
Again, an Emergency was imposed from December 3, 1971, to March 21, 1977, by the then President
of India Mr V.V. Giri during the Indo-Pakistan war. The reason was the same as above i.e. external
aggression.

The third Emergency was imposed due to a clash between Legislature and Judiciary. Mrs Indira
Nehru Gandhi, the then Prime Minister of India with the permission of the then President Fakhruddin
Ali Ahmed declared an emergency. It was imposed for a period of 19 months from June 25, 1975to
March 21, 1977.

State Emergency

Article 356 deals with State Emergency or President’s Rule in the State (“Provisions in case of
Failure of Constitutional Machinery in States”). The President of India has the power to proclaim
State Emergency when he receives a report from the Governor of that particular State explaining that
the situation in the State Government is such that they cannot carry out the Constitutional provisions.

President’s Rule has been imposed on the State of Jammu and Kashmir for six years and 264 days
from January 19, 1990, to October 9, 1996. The State has always been a target for many external
elements. The Indian Government imposed President’s Rule to control the situation of Jammu &
Kashmir which was facing a military threat from Pakistan.

Punjab was under the President’s Rule for 4 years and 259 days from June 11, 1987, to February 25,
1992. The reason for imposing President’s rule in Punjab was the control of Khalistan Commando
Forces which was a Sikh organisation which was involved in the genocidal attack on Hindus.

Till January 2016, the President’s Rule has been imposed 124 times in India. During Indira Gandhi’s
regime, the President’s Rule was invoked for maximum time. The President’s Rule under her cabinet
was imposed 35 times in various states.

The case S.R Bommai v. Union of India[2] is a landmark case in respect of imposing President’s Rule
in any State. The case laid down the power of the Union Government in relation to the State
Emergency under Article 356 of the Indian Constitution. Judicial Review of the President’s Rule was
made possible by this case. While giving the judgement, the court depended on Sarkaria’s
Commission Report, 1987.

President’s Rule can be judicially reviewed and the President becomes answerable only when the
Emergency is imposed in certain cases, which are:

1. When there is Constitutional non-conformity by the State with the direction of Union

2. When there is a political crisis in the State.

3. When there is an internal subversion in the State

Financial Emergency

Article 360 deals with “Provisions as to Financial Emergency”. Financial Emergency is imposed by
the President when there arises any situation which causes a financial threat to India or any part of
India.

Financial Emergency has never been imposed in India. However, in 1990, the possibility of financial
emergency emerged but the situation was controlled by the Indian Government as in July 1991 the
Reserve Bank of India pledged 46.91 tonnes of Gold with Bank of England and Union Bank of
Switzerland to raise $400 million.

Emergency Provisions

1. Article 352: Proclamation of Emergency.

2. Article 353: Effect of Proclamation of Emergency.

3. Article 354: Application of provisions relating to the distribution of revenues while a

proclamation of emergency is in operation.

4. Article 355: Duty of the Union to protect States against external aggression and internal
disturbance.

5. Article 356: Provisions in case of failure of constitutional machinery in State.

6. Article 357: Exercise of legislative powers under Proclamation issued under Article 356.

7. Article 358: Suspension of provisions of article19 during Emergencies.

8. Article 359: Suspension of the enforcement of the rights conferred by Part III during
emergencies.

9. Article 360: Provisions as to Financial Emergency.

Article 352

Article 352 (Part XVIII) talks about “Proclamation of Emergency”.

Clause 1 states that National Emergency may be imposed by the President if he is satisfied that there
exists a grave situation due to which there is a threat to the security of India or any part of the territory
because of:

 War

 External Aggression
  Armed Rebellion

The proviso of Clause 1 states that an Emergency may be proclaimed by the President even when
there is no actual occurrence of war, external aggression, and armed rebellion. In this case, the
President must be satisfied that there is an imminent danger.

Clause 2 states that another Proclamation may be issued to revoke and to make any variation in the
previous Proclamation.

Clause 3 states that the President of India may declare an Emergency when Union Cabinet (Council
of Minister headed by the Prime Minister) advice to him in writing.

Clause 4 states that before issuing Proclamation it is required to be placed before both the Houses of
Parliament and shall end its effect at the expiration of one month unless both the Houses of Parliament
approve it by resolution before the expiration of the said period.

Clause 5 states that proclamation approved in the second resolution shall have an effect up to six
months and on expiry of six months, it will end to operate unless it is revoked in between the period.

44th Constitutional (Amendment) Act, 1978

The imposition of Emergency stressed the legislature to think again about the Constitutional
provisions that provide power to the executive to supersede the judiciary hampering the basic
structure of the Indian Constitution.

Under Article 352, the amendment had substituted the ground of “Internal Disturbance” with “Armed
Rebellion”. The President is allowed to impose emergency only when the Union
Cabinet communicates to him in writing about their decision.

The Proclamation is required to be approved by both the houses of Parliament by resolution within a
month instead of two months by a total majority of the membership of each house of Parliament and
by the ratification of not less than 2/3rd members present and voting in each house instead of a simple
majority.

Under Article 356, the period for extension of a Proclamation from one month has been amended to
six-months. Proclamation in the first instance can only be exceeded for six months.

Case Study

Indira Nehru Gandhi vs. Shri Raj Narain & Anr[3]

Case No:- Appeal (civil) 887 of 1975

Bench:- A.N. Ray J., H.R Khanna J., K.K Mathew J., M.H Beg J. and Y.V Chandrachud J.
Facts

Raj Narain was a contender from Rae Bareilly Constituency in the 5th Lok Sabha Election 1971
against Indira Nehru Gandhi. Congress won the election with a majority in 1971 and Mrs Gandhi took
the oath as a new Prime Minister of India. After the result of elections, Raj Narain approached the
Allahabad High Court and filed a petition against Indira Nehru Gandhi contending that she had
performed her election using corrupt practices.

Allahabad High Court observed in the case Raj Narain v. State of Uttar Pradesh[4] that Indira Gandhi
was guilty, as she misuses Government machinery under section 123(7) of Representation of Peoples
Act, 1951. Indira Gandhi was barred to contest elections for six years and she was forbidden to
continue as a Prime Minister of India.

Further, the court observed that “Rules of evidence that prevent disclosure of certain government
documents in court proceedings may be overridden if the public interest in disclosure outweighs the
public interest in keeping documents secret”[5].

The judgement led in a declaration of National Emergency under Article 352 by the then President of
India Fakhrudeen A. Ahmad. The reason given for imposing an emergency was “Internal
Disturbance”.

Raj Narain’s case was on conditional stay up to their appearance in the Supreme Court on August 11,
1975. However, on August 10, 1975, Thirty-Ninth Constitutional (Amendment) Act, 1971 was done
and it inserted Article 329A which bar the Supreme Court to entertain the matter. Further on one can
question the election of Prime Minister, President, Vice- President and the Speaker of Lok Sabha.

Issues

Whether the 39th Constitutional (Amendment) Act, 1971 was Constitutionally valid?

Judgment

Referring to the landmark judgment of Kesavananda Bharati v. State of Kerala[5] for the first time
the Supreme Court observed that Clause 4 of Article 329A is violative and unconstitutional. It violates
the principle of separation of power as it provides functions of the judiciary to the legislature. The
amendment violated the “Rule of Law”.

The Apex Court finds the 39th Constitutional Amendment Act, 1971 as violative of the basic structure
of the India Constitution and unconstitutional and therefore declares it as void.

Effects of National Emergency

Under Article 358, National Emergency suspends the rights guaranteed under Article 19 of the Indian
Constitution. Also, other Fundamental Rights get suspended under Article 359 except Article 20 and
21.

Article 20 of the Indian Constitution deals with the “Protection in respect of conviction from
offences”. This Article is pillars of all the Fundamental Rights which are guaranteed by the Indian
Constitution. It protects the right of an individual in case of conviction.

Article 21 of the Indian Constitution deals with “Protection of life and personal liberty” because no
person shall be deprived of his life and personal liberty except procedure established by law.

Under this kind of Emergency, the State Government comes under the direct control of the Central
Government. The State Government has to work as per the direction is given by the Union.

The distribution of financial resources between the Union and the State may be suspended by the
President.

The Parliament acquires power over the subjects of the State List which ceases on the expiry of six
months.

Article 356

Part XVIII, Article 356 talks about “Provision in case of failure of constitutional machinery in states”
or “President’s Rule”.

The State Emergency or President’s Rule is imposed by the President of India when the
Constitutional machinery of State collapse and is unable to carry in accordance with the Indian
Constitution. The President will impose an emergency when he will get a report of such a situation
from the Governor of that particular state.

The Governor will report about the situation in the State that the government is unable to carry out in
accordance to the provisions of the Constitution and the Emergency imposed upon such a report shall
have an effect up to six months, after the expiry of which Emergency will end to have an effect on the
State.

The maximum period for the State Emergency is three years after which it can be extended after a
Constitutional amendment. It requires constant approval from the Parliament every six months.

Imposing of the State Emergency continuously became arbitrary in India. In the landmark judgment
of State of Rajasthan & Ors v. Union of India[7], the Supreme Court observed that Courts have no
power to review the Proclamation passed under Article 352. Imposing the State emergency
continuously becomes arbitrary in India due to this reason and, hence, the Supreme Court finds it
necessary to overturn the decision.
In the case, S. R. Bommai V. Union of India[2], the Supreme Court observed that, under Article 356,
President of India has restricted power and they are subjected to judicial review. The Supreme Court
has the power to declare the emergency void even if both the houses of Parliament passed the
Proclamation.

Effects of State Emergency

During the State Emergency or President’s Rule, the entire State administrative machinery is
transferred to the Union. President becomes executive head of the State and Governor works under his
name.

Legislative Assembly of the state may be dissolved or it may be suspended. Parliament took over the
charge of making laws in the 66 subjects of the List-II i.e. State List. All the ministers of State
Legislative assembly were barred from performing any action as every money bill is required to be
first referred to the Parliament for approval.

State’s High Court functions independently in such a situation. There is no effect of an emergency in
the State Judiciary. High Court may even entertain the petition filed against the President’s Rule. In
2016, the Congress Government approached the Nainital High Court against the President’s Rule
imposed under Narendra Modi’s regime.

It was imposed by the then President of India Pranab Mukherjee. The High Court of Uttarakhand gave
its verdict in favour of Harish Rawat’s government and declared to restore the Congress Government
in the State of Uttarakhand. Later, the judgement was upheld by the Supreme Court of India and the
Congress Government continued its period of governance.

How many times State Emergency declared in India

There are different circumstances under which the President’s Rule is imposed, these are:-

1. When the coalition government in the State collapses.

2. Law and orders are not followed in the State.

3. Failure to elect Chief Minister by the State Legislature.

4. Postponement of the State Elections due to any reasons.

In India, till 2018, the President’s Rule was imposed 126 times by the President of India. Maximum
times the President’s Rule was invoked during Indira Gandhi regime i.e. 35 times.

Difference between the National Emergency and President’s Rule

National Emergency (Article 352) President’s Rule (Article 356)

 National Emergency is proclaimed under Article 352 State Emergency is proclaimed under Article 356 when
on the ground of war, external aggression and armed the State Government cannot be carried out according to
rebellion. the Constitutional provisions.

State Executive powers get vested in the Central.

State Executive and legislature perform their power as
Governor works in the state on the advice of the
mentioned in List II of Schedule VII. Concurrent List
President. State Legislative Assembly is dissolved or
power vests in the Central Government.
suspended.

The maximum period up to which State Emergency may

The Proclamation may be continued for an indefinite
continue is three years after which it will cease but it
time as no maximum period is prescribed but it is
may be further continued after the Constitutional
subject to renew every six months.
Amendment.

Fundamental Rights are suspended during National There was no effect on the Fundamental Rights of the
Emergency except Article 20 & 21. people of the State.

Resolution for the continuation of the proclamation of Resolution can be passed with a simple majority in the
emergency must be passed with a special majority. Parliament.

The resolution for the revocation of the proclamation Resolution for revocation of the proclamation can be
can be passed by Lok Sabha. passed by President in his discretion.

During this emergency, the Centre’s relation undergoes Centre’s relation undergoes a modification only with the
a modification with all the States. state under the President’s Rule.

There is no delegation of lawmaking power of President may make laws for the state after consulting
Parliament under the State list. with the Members of Parliament from that state.

ARTICLE 360

PART XIII, ARTICLE 360 TALKS ABOUT “ FINANCIAL EMERGENCY”.

Financial Emergency is proclaimed by the President of India if he is satisfied that a situation of

financial instability has arisen in the nation or any part of the nation. Emergency imposed under
Article 360 shall not have effect after the expiration of two months from the date it was issued unless
both the Houses of Parliament approves it by passing a resolution.
The situation of 1991 led to the circumstances of the financial crisis. But it was solved after
introducing New Economic Policy by Economist Dr Manmohan Singh. No financial emergency was
imposed so far in India.

Effects of Financial Emergency

During the Financial Emergency, Parliament has the power to reduce the salaries and allowances of
the people working under the Union or the State Government. Financial and Money Bills passed by
the State Legislature of the State will be sent to the President of India for his consideration.

Parliamentary approval and duration of the Emergency

In India, there are three types of Emergencies and all the three emergencies have a different duration
up to which they remain in force. Parliamentary approval also differs in each emergency as the
duration for approval of a resolution of emergency is different in each kind of emergency. The
Parliamentary procedure for passing the resolution of Emergency is discussed as follows:

Parliamentary approval and duration of the National Emergency

Proclamation of National Emergency operates for the maximum period of six months subject to
approval in every six months. There is no period prescribed up to which period may be extended.

Under Article 352, when the President imposes an Emergency, it must be approved by both the
Houses of Parliament by a resolution within a month from the date of its issue. Before the 44th
Amendment Act, 1978, the period for approval was two months.

Meanwhile, Lok Sabha gets dissolved when the Proclamation was issued or Lok Sabha dissolved
without approving the proclamation of Emergency, one month will be counted from the first day of
sitting of the Lower House i.e. Lok Sabha after its reconstitution. It is required that in the meantime
Rajya Sabha has approved the proclamation.

When both the houses of Parliament approve the proclamation, it will remain in force for six months
and there is no maximum time limit for Proclamation. It is subjected to renew by both the Houses of
Parliament through resolution in every six months.

If Lok Sabha gets dissolved within six months from the date of issue of the resolution without further
approving the Proclamation of Emergency. In this situation, the Proclamation will survive until a
month from the first day of Lok Sabha after its reconstitution. It is required that in the meantime
Rajya Sabha has approved the Proclamation.

Every resolution for imposing Emergency or continuance of Emergency must be passed by either of
the House of Parliament by a special majority, i.e. a majority of the total membership of that house
and a majority of not less than 2/3rd members of the house present and voting.
Parliamentary approval and duration of the State Emergency

Proclamation of the State Emergency operates for the maximum period of six months or three years
(subject to extension of the period).

Under Article 356, when the President imposes Emergency it must be approved by both the Houses of
the Parliament by resolution within two months from the date of its issue after which it ceases to
affect.

If Lok Sabha gets dissolved when a proclamation was issued, then it must be passed within 30 days
from the first day of sitting of Lok Sabha after its reconstitution. In such situations, Rajya Sabha must
approve the Proclamation.

The duration of six months can be extended, subject to the approval in six months. But every
Proclamation passed under this Article cannot be extended for more than three years.

Parliamentary approval and duration of the Financial Emergency

Under Article 360, before the President imposes emergency it shall be approved by both Houses of
Parliament. Otherwise, after the expiry of two months, from the date of issuance of the proclamation,
it ceases to operate.

In case, Lok Sabha dissolves within two months, Lower House is required to approve the
proclamation within thirty days from the first day of sitting after its reconstitution. Rajya Sabha must
approve it in the meantime.

WHY WAS EMERGENCY DECLARED IN 1975

BACKGROUND

National Emergency has been imposed three times in India. But, the Emergency of 1975 emerged as
the Constitutional revolution in Indian history. The emergency of 1975 emerges as the dark phase for
the Indian Constitution. The situation which leads to the Proclamation of Emergency was the fifth
Lok Sabha election in 1971 in which Indira Gandhi won the election with a majority. Her opponent
contender from Rai Bareilly was Raj Narain who approached the Allahabad High Court by filing a
petition against Indira Gandhi’s election.

Allahabad High Court’s judgement was not acceptable to the Indira Gandhi who declared the decision
against her. They barred her from contesting election for the next six years and the Court also barred
her to continue the post of Prime Minister. To secure her post, Indira Gandhi came up with a strategy
that shook the nation and questioned the democracy of India.
The President of India Fakhruddin Ali Ahmed imposed National emergency on June 28, 1975, a day
before hearing of the case of Raj Narain v. State of Uttar Pradesh [4] in the Supreme Court as an
appeal. The reason behind the Proclamation of the Emergency was “Internal Disturbance”. This
Emergency was imposed when the emergency of 1971 due to the Indo-China war was already in force
in India.

The situation was becoming out of control, the Prime Minister of India was barred to contest election
for the next six years and her present post was declared to be occupied using ill corrupt practices.
Military and Police started disobeying the orders of the Government.

Union Railway Minister L.N. Mishra was murdered at Samastipur. A tussle between the central,
opposition, and the citizens created an environment of violence, threat and agitation. The Parliament
approved the Proclamation of Emergency and subsequently, National Emergency was imposed in
India.

1975 Emergency Reason

1. Allahabad High Court gave judgement against the Prime Minister. Judgement barred her to
contest election for the next six years and finds her involvement in ill corrupt practices in 5th
Lok Sabha election of 1971.

2. The demonstration was organised by the opposition under the supervision of Jayaprakash
Narayan.

3. The relationship between the Judiciary and Legislative become weak as Parliament’s
amendment of the Fundamental Rights was opposed by the Supreme Court.

4. An agitation that was launched in Gujarat in 1974 by the opposition party.

Consequences

1. Freedom of the Press was suspended and Indian Raj Censorship was imposed under which
newspapers get prior approval for publication.

2. Fundamental Rights of the citizens were suspended.

3. Opposition leaders were arrested and strikes were banned.

 4. Under 42nd Constitutional (Amendment) Act, 1976, Elections of the Prime Minister, the
President, and the Vice-President was kept out of the purview of justification from the court.

5. Provision of Habeas Corpus was neglected nullifying the rights of citizens under Article 21.

Effects

1. It led to the political crisis and Constitutional crises on the Indian polity.

2. Many new political parties emerged after 1977.

3. Emergency showed its impact on 1977 Lok Sabha election as Janta Party won the election.

4. Fundamental Rights of the citizens were strengthened.

5. The 44th Constitutional (Amendment) Act, 1978, was passed to clear the ambiguity of
provisions of emergency.

To sum up, everything that has been stated, the 1975 Emergency emerges as the dark side of the
Indian Judiciary. The emergency of 1975 was not less than a dark age of the Indian democracy
because during this period India emerged as a weak democratic country. It affected the federal
structure of democracy. It left the legislature to think about the provisions of the Constitution.

The Indian Constitution was continuously amending to favour one’s situation. Later, it becomes
necessary to amend the Constitution again, but this time to maintain its supremacy.

In Kesavananda Bharati v. State of Kerala[5], the Supreme Court observed that “Parliament does not
possess any power under Article 368 to amend the basic structure of the Constitution. Parliament has
the power to amend the entire Constitution whenever it becomes necessary according to the
requirement subject to, they cannot touch the Fundamental Rights which are the basic structure of the
Constitution”.

List of National Emergencies

National Emergency was invoked three times from 1962 to 1977.

First National Emergency was invoked in October 1962 during Indo-China war. This Emergency
remained in force till January 1968. It was imposed by the then President of India Shri. Sarvepalli
Radhakrishnan. The reason for imposing this emergency was the Chinese attack in Arunachal Pradesh
(North-East Frontier Agency). External Aggression was ground for invoking the Emergency.

The second Emergency was invoked in December 1971 during the Indo-Pak war. This Emergency
remained in force till March 1977. This Emergency was imposed by the then President of India Mr
V.V. Giri. The reason for imposing Emergency was war in Bangladesh. Ground for imposing this
Emergency was External Aggression, the Indian military was clashing with the military of Pakistan to
provide independence to East Pakistan.

The period of the war was 11 days and considered as the shortest war in the World. But, in the
meantime, the third emergency was imposed in India. The third emergency continued the second
emergency until 1977.

The third Emergency was invoked in June 1975 due to an internal disturbance in the Central
Government. It remained in force till March 1977. This Emergency was imposed by the then
President of India Fakhruddin Ai Ahmed. It was imposed when the second Emergency was already in
existence. The real cause behind this Emergency was to secure the seat of the then Prime Minister of
India Mrs Indira Nehru Gandhi who was found guilty in corrupt practices during her constituency
campaign by the Allahabad High Court.

Impact of Emergency in India

Most of the time Emergency have an adverse impact on the country. Whenever an Emergency was
imposed, whether it was the National Emergency or State emergency, it has questioned the democracy
of India. More time it was imposed, more democracy shows its unitary structure. Impact of
Emergency in India is:-

1. It deprives the citizens of their Fundamental Right.

2. The Freedom of Media was suspended.

3. Emergency overturned the Constitution.

4. Censorship orders barred newspapers to print anything without any prior consent from the
government.

National Emergency of 1975 resulted in the arrest of many opposition leaders such as Morarji Desai,
Jay Prakash Narayan, Atal Bihari Vajpayee and Lal Krishna Advani under Maintenance of Internal
Security Act, 1971. The arrest of these leaders led to the filing of petitions in various High Courts
challenging the detention. Indira Gandhi Government approached the Supreme Court because at the
time of Emergency Fundamental Right under Article 21 remained suspended so this does not allow
the writ of Habeas Corpus and the case came out to be known as the Habeas Corpus case.

A.D.M Jabalpur Case[11]

Background

After defeat in the Lok Sabha election of 1971, Raj Narain challenged the election in the Allahabad
High Court on the ground that she was guilty of corruption from her constituency. In the case of Raj
Narain v. State of Uttar Pradesh[4], Allahabad High Court found Indira Gandhi’s involvement in
corrupt practices and declared her election invalid. Indira Gandhi approached the Supreme Court
where Justice Krishna Iyer put a conditional stay on Allahabad judgement. On a day before hearing of
the case in the Supreme Court, President Fakhruddin Ali Ahmed declared Emergency on the ground
of “Internal Disturbance”.

During the Emergency, Fundamental Rights remained suspended under Article 14 and 21, as well as
any proceedings related to the enforcement of these Articles also remained suspended during the
period of Emergency. Anyone who was causing a threat to the politics was arrested under Preventive
Detention Law. Many famous political leaders were arrested under the Maintenance of Internal
Security Act, 1971 (MISA) because their activities were causing a political threat to Indira Gandhi.

These leaders approached the High Court against the arrest and the High Court made a decision in
their favour. Indira Gandhi’s Government filed a petition in the Supreme Court as a Fundamental
Right under Article 21 is suspended writ cannot be issued.

Issues

1. Whether writ of Habeas Corpus is maintainable by the High Court questioning illegal
detention when an emergency was imposed by the President?

2. Whether suspension of Rights and Liberty of any person under Article 21 is valid under Rule
of Law?

3. Whether detenue have locus standi during the proclamation of emergency?

Judgement

Supreme Court observed that under Article 359 clause (1) no person has locus standi to approach the
High Court under Article 226 to enforce his fundamental right of personal liberty in case of detention
by filing a writ of habeas corpus. Fundamental Rights remain suspended during the Emergency. A
person cannot invoke habeas corpus by filing an application under Section 491 of the Code of
Criminal Procedure, 1973. Supreme Court declared Section 16A (9) of Maintenance of Internal
Security as constitutionally valid.

Conclusion

Emergencies in India are imposed by the President after both the House of Parliament passed the
resolution of the Proclamation of Emergency. Where the State Emergency or President’s Rule is quite
frequently used by the President, National Emergency had become a part of history.

The national emergency of 1975 shows the weaker or dark phase of the Judiciary. Cases like Indira
Gandhi v. Raj Narain and A.D.M Jabalpur v. Shiv Kant Shukla show loophole in the judicial
system. Both cases do not recognize the Fundamental Rights of citizens during emergencies. There
was a need to change the mechanism and it was done in Kesavananda Bharati’s case.