Article 246 of the Indian Constitution, Provisions, Amendments

Article 246 of the Constitution of India is a key provision that defines how law-making powers are divided between the Union and the States. The core purpose of Article 246 of the constitution is to avoid conflict between Parliament and State Legislatures by clearly demarcating their areas of law-making authority. It strengthens cooperative federalism by balancing unity and diversity within the Indian constitutional system.

About Article 246 of the Constitution of India

Article 246 of the Constitution deals with the distribution of legislative powers between Parliament and State Legislatures. It is based on the Seventh Schedule of the constitution, which contains three lists: the Union List (List I), the State List (List II), and the Concurrent List (List III).

Article 246 of the Constitution of India Provisions 

Article 246(1) of the Constitution provides that, notwithstanding anything contained in clauses (2) and (3), Parliament has exclusive power to make laws with respect to matters enumerated in List I (Union List) of the Seventh Schedule.

Union List (List I)

The Union List contains subjects of national and international importance that require a uniform legal framework throughout the country. These matters are placed under the exclusive jurisdiction of Parliament to ensure consistency in policy-making and implementation across all States. This arrangement enables the Union government to address issues related to sovereignty, security, and national integrity in a coordinated and effective manner, where uniformity of law is essential. Major Subjects in the Union List include: 

• Defence of India
• Armed forces
• Foreign affairs
• Diplomatic relations
• War and peace
• Citizenship
• Railways
• Airways
• National highways
• Shipping and navigation
• Posts and telegraphs
• Telephones and wireless communication
• Banking
• Insurance
• Currency and coinage
• Foreign exchange
• Atomic energy
• Space research
• Census
• Election Commission
• Inter-State trade and commerce
• Stock exchanges
• Income tax
• Customs duties
• Corporation tax

Concurrent List (List III)

Under Article 246(2) of the Constitution, both Parliament and State Legislatures can make laws on subjects in the Concurrent List. In case of conflict between a Central law and a State law on the same subject, the law made by Parliament prevails. This principle is known as the doctrine of repugnancy.

The Concurrent List reflects cooperative federalism, where both levels of government can legislate, but national interest is protected through Parliamentary supremacy in case of conflict. Major Subjects in the Concurrent List include: 

• Criminal law
• Criminal procedure
• Marriage and divorce
• Bankruptcy and insolvency
• Education
• Forests
• Protection of wild animals and birds
• Electricity
• Labour welfare
• Trade unions
• Population control
• Economic and social planning
• Drugs and poisons
• Newspapers and printing presses
• Civil procedure
• Prevention of cruelty to animals

State List (List II)

Under Article 246(3), the State Legislature has exclusive power to make laws on matters listed in the State List, in normal circumstances. This ensures that States can independently legislate on subjects of regional and local importance and address their specific governance needs. However, this power is not absolute, as it remains subject to the supremacy of Parliament under clauses (1) and (2), which helps maintain coordination and balance within India’s federal structure. Major Subjects in the State List: 

• Public order
• Police
• Public health and sanitation
• Hospitals
• Agriculture
• Irrigation
• Fisheries
• Markets and fairs
• Betting and gambling
• Land rights
• Land revenue
• Local government
• Panchayats
• Burial grounds
• Libraries
• State public services
• Prisons
• Roads and transport
• Water supply
• Pilgrimages within the state

Parliamentary Power over State Territories

Article 246(4) provides that Parliament can make laws for any part of the territory of India not included in a State. This provision primarily covers Union Territories and other centrally administered regions.This means that even on subjects listed in the State List, Parliament can legislate for Union Territories. In Union Territories where a legislature exists, the elected legislature can make laws on subjects similar to a State List, but its authority is limited and subject to the powers of Parliament. Parliament can still legislate on any subject for these Union Territories, and in case of conflict, Parliamentary law prevails.

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Article 246 of the Constitution Major Amendments

Originally, the Constitution contained 97 subjects in the Union List, 66 subjects in the State List and 47 subjects in the Concurrent List. Over time, constitutional amendments have altered this distribution.

The 42nd Constitutional Amendment Act, 1976 transferred important subjects such as education, forests, weights and measures, and protection of wildlife from the State List to the Concurrent List. This expanded the scope of Parliamentary legislation under Article 246(2) and reduced the exclusive domain of States under Article 246(3).

Residuary Powers

The Constitution vests residuary legislative powers in Parliament under Article 248, read with Entry 97 of the Union List. It provides that Parliament has the exclusive authority to legislate on matters which are not enumerated in the State List or the Concurrent List.

This provision ensures that emerging and unforeseen subjects of legislation remain within the Union’s domain. It has become particularly significant in the context of modern governance involving areas such as cyberspace, artificial intelligence, data protection, biotechnology, and space law.

Doctrine of Pith and Substance

The Doctrine of Pith and Substance is used by courts to resolve conflicts when a law appears to fall under more than one legislative list under Article 246 of the Constitution and the Seventh Schedule. It states that the true nature of the law must be examined. If the law falls substantially within the competence of a legislature, it remains valid even if it incidentally encroaches upon another list. 

• In the State of Rajasthan v. G. Chawla (1959), the Supreme Court upheld the validity of State legislation by applying the doctrine of pith and substance.
• In ITC Ltd. v. Agricultural Produce Market Committee (2002), the Supreme Court elaborated the doctrine of pith and substance and clarified that legislative entries must be interpreted in a flexible manner to avoid unnecessary conflicts. The judgement ensured harmonious construction between Union and State legislative powers under Article 246.

Doctrine of Colourable Legislation

This doctrine means that what cannot be done directly cannot be done indirectly. If a legislature transgresses its constitutional limits by disguising its true intent, the law is declared invalid.

It acts as a constitutional safeguard ensuring that Article 246 is not violated in substance under the guise of legislative competence.

Constitutional Exceptions to the Distribution of Legislative Powers

Although Article 246 lays down the general framework of legislative distribution between the Union and the States, the Constitution also provides certain exceptional situations where Parliament can legislate on State List subjects. These provisions reflect the flexible and dynamic nature of Indian federalism.

Article 249: Rajya Sabha Resolution in National Interest

When the Rajya Sabha passes a resolution by a two-thirds majority of members present and voting, declaring that it is necessary in the national interest for Parliament to legislate on a State List subject, Parliament becomes competent to do so.

Such a resolution remains valid for one year at a time and can be renewed repeatedly. However, the laws made under this provision cease to operate six months after the resolution expires.

Importantly, this does not restrict State Legislatures from making laws on the same subject. However, in case of conflict, Parliamentary law prevails.

Article 250: During National Emergency

During the operation of a National Emergency, Parliament acquires the power to legislate on matters in the State List for the entire country or any part of it. Such laws remain in force even after the Emergency ends, but they cease to operate six months after the Emergency has ended, unless modified earlier.

As in other cases, State Legislatures are not barred from legislating, but Parliamentary law prevails in case of repugnancy.

Article 252: Legislation by Consent of States

When the legislatures of two or more States pass resolutions requesting Parliament to legislate on a State List subject, Parliament becomes empowered to do so for those States.

Such laws apply only to consenting States, while other States may adopt them later through a resolution.

A key feature of this provision is that:

• The State Legislature loses its power over that subject
• Parliament alone can amend or repeal such a law

This represents a voluntary surrender of State legislative power to Parliament. Examples include:

• Wildlife (Protection) Act, 1972
• Water (Prevention and Control of Pollution) Act, 1974
• Urban Land (Ceiling and Regulation) Act, 1976
• Transplantation of Human Organs Act, 1994

Article 253: International Agreements

Parliament has exclusive authority to legislate on any subject, including those in the State List, for implementing international treaties, agreements, or conventions. Examples include:

• United Nations (Privileges and Immunities) Act, 1947
• Geneva Convention Act, 1960
• Anti-Hijacking Act, 1982
• Environmental protection and TRIPS-related legislations

Article 356: During President’s Rule

When President’s Rule is imposed in a State, Parliament assumes the power to legislate on any subject in the State List for that State. Such laws continue to remain valid even after the President’s Rule ends, unless altered or repealed by the State Legislature.

However, the State Legislature regains its legislative authority once the constitutional order is restored, except for laws already enacted by Parliament during this period.

Article 246 of the Constitution Provisions Significance 

Article 246 constitutes the foundational framework of legislative federalism under the Indian Constitution by delineating the respective legislative competencies of Parliament and State Legislatures through the Seventh Schedule.

• It effectuates a structured distribution of legislative subjects among the Union List, State List, and Concurrent List.
• It ensures constitutional clarity and prevents jurisdictional conflict between Union and State legislatures.
• It reinforces the principle of parliamentary supremacy in matters of national importance under the Union List.
• It preserves the federal principle by securing the exclusive domain of States over subjects of regional significance under the State List.
• It institutionalises cooperative federalism through concurrent legislative competence with Union predominance in case of repugnancy.
• It provides a constitutional mechanism for maintaining legislative hierarchy and resolving inter-governmental conflicts.
• It extends parliamentary legislative competence to Union Territories, thereby ensuring administrative uniformity and unitary coherence.