A comparative examination of the Constitutional Laws and state laws in India

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This article is written by Vaishnavi of 4th Semester of Barkatullah University, an intern under Legal Vidhiya

The Constitutional Law and the Constitution – An Overview

In a democratic country, it’s constitution is its supreme law. The Constitution is the fundamental law of the state and varies from country to country. There is no entity above the Constitution. The legal system of any country is divisible into

Law governing the state
Law by which the state governs and regulates the conduct of its members.

Laws like torts, property law, contracts criminal laws etc. falls in the second category. But constitutional law, administrative law and public international law falls in the first category.

The word Constitution is derived from Latin word ‘Constitute’ meaning “to establish”. The Constitution of any country seeks to establish its fundamental or basic or apex organs of government and administrative, their powers, structure, function and composition, their relationship inter se and with citizens.

Constitutional law is primarily an interpretation and implementation of the Constitution and its principles. But it may be wrong to assume that Constitutional law and the Constitution are same. Though Constitutional law is mainly an interpretation of the constitution, it is, however, a broader term as it comprises the ‘constitution’, relevant statutory laws, judicial decisions and conventions. Only the basic norms about these institutions are inscribed in the Constitution. But, the Constitutional law of a country includes both “legal” and “non – legal” norms.

Legal norms are enforced and implemented by the courts and if violated, courts can give relief and redress. Whereas, “non legal” norms arise in course of time as a result of practice followed over and over again. Such norms are known as conventions, usages, customs, practices of the Constitution. There may be nothing in constitution sanctioning them. However, they exist. To have a full picture of a country’s Constitutional law, references must be made to both ‘legal’ and ‘non – legal’ norms.

The Constitution, however is a source of and not an exercise of, legislative power.

The Constitution of India

The Constitution of India, the living document, came into effect on January 26,1950. It is the longest written Constitution in the world and one can discern in it the impact of several constitution. For example, fundamental right adopted American Bill of Rights, Parliamentary form from the Britain etc.

One of the major features of Indian Constitution is that The Indian Constitution is a semi federal constitution, i.e., it is between federal and unitary. This does not mean that the Constitution is vague. It has very clearly defined in it the Centre – State relationship. However, it is not expressly mentioned in the constitution that it is a federal one.

The federal feature of Indian Constitution establishes a dual polity, a two-tier government system with the central government at one level and the state government at other.

Position of States in the Indian Constitution

“India, that is, Bharat, shall be a Union of states” (Article – 1)

The word “Union” was deliberately selected by the Drafting Committee of the Constituent assembly to indicate two things –

That Indian union is not a result of an agreement by the states
The states have no freedom to secede from it.

Though the country and its citizens maybe divided into different states for convenience of administration, the constitution recognizes only single citizenship. The country is an integral whole and the citizens are under the ambit of a single constitution.

However, the Unitary feature of the constitution makes Center more dominant than the states.

What are State Laws?

State law refers to the law of a federated state which is different from that of the federation which it is a part of. In India, the Constitution gives each State Government the freedom to make its own laws on the subjects as specified in the constitution.

Let’s comparatively discuss the Constitutional and State Laws in India.

Constitutional Law vs State Law

Traditionally there are three organs of government. The constitution recognizes these three pillars in democracy viz. the Legislature, the law-making body of India; the Executive, comprising of President, Prime Minister, Council of Ministers etc.; and the Judiciary. The Constitution describes the structure, composition, power, functions and their relationships inter se and with citizens.

The Legislature is the law-making body, represented by the Parliament. The Parliament of India is bicameral. It comprises of two Houses and the President of India. The Houses are –

Lok Sabha, the lower House, also known as “House of the People”.
Rajya Sabha, the upper House, “the Council of States”

The President does not participate in the proceedings of any of the Houses but he has certain important functions to discharge. For example, giving assent to the Bills passed by the two Houses, summon the Houses etc.

The two Houses of Parliament of India do not enjoy a co-equal status. They are constituted on different principles and perform differ functions.

The primary function of the Parliament is making laws for the governance of the country which are applicable all over India or a part of the Indian territory as specified (Article 245 of the Indian Constitution). These laws are generally known as the Constitutional laws.

According to Article 246(1) of the Constitution, the Parliament can make laws on the subjects enumerated in the Union List or the List 1 of the Seventh Schedule of the Constitution. It can make laws on the subjects of Concurrent list that is the List 3 is the 7th Schedule of the Constitution (Article 246(2)).

Article 248(1) of the Constitution provides that it is the Parliament that will make laws on the residuary subjects that is the subjects not mentioned in any of the three lists.

In every state of India, as per Article 168 of the Indian Constitution , there must be constituted a State Legislature to make laws for the state. The State legislature can make law for the whole or any part of the state (Article 245). These laws do not extend outside their respective territories. But there is no uniformity in the organisation of the State legislature. Most of the states have a unicameral legislature system that is they only have a Vidhan Sabha while there are States that have bicameral legislation system and they have both Vidhan Sabha and Vidhan Parishad. The laws made the State legislature are generally known as State laws.

State legislature can make laws on any subject enumerated in the List 2 of the Seventh Schedule or say the State list (Article 246(3)). The State legislature can also make laws on the subjects of Concurrent list too (Article 246(2)). However the State legislature is not authorized to make laws on the matter of Residuary list.

Article 246 clause 2 of the Indian Constitution provides that both, Parliament and the state legislature, can make laws on the subjects of Concurrent list mentioned in List 3 of Seventh Schedule of the Indian Constitution. However, the Parliament has an overriding power that is , in case of any conflict between the laws made by the Parliament and State legislature, the law made by the Parliament prevails over the laws made by the latter (Article 254(1)).

Another supremacy of the Constitutional laws is depicted when the Constitution grants the Parliament the power to make laws on the matters of State list in following cases :-

When the Rajya Sabha passes a resolution to that effect making the subject as a subject of national importance.(Article 249)
When proclamation of National Emergency is in operation (Article 250)
On the joint request of two or more States to the Parliament to make law on the subject (Article 252)
When it is necessary to give effect to the international agreements, treaties, convention etc. (Article 253)
When President’s rule is in operation in the State.

What is the say of the Supreme Court in determining status of and relation between the Constitutional Law and State laws ?

In India, there have been several landmark case laws that have dealt with the conflict between Constitutional laws and state laws. Here are a few examples:

Kesavananda Bharati v. State of Kerala¹is widely considered as one of the most significant in the history of Indian constitutional law. The Supreme Court held that the Parliament’s power to amend the Constitution was not unlimited and that certain fundamental features of the Constitution could not be altered. This decision affirmed the supremacy of the Constitution over all other laws, including state laws.

The Supreme Court also in State of Madras v. Champakam Dorairajan held that the state government could not provide preferential treatment to certain communities in matters of public employment and education, as it violated the fundamental rights enshrined in the Constitution. This case established the principle of non-discrimination and equal protection under the law.²

In Maneka Gandhi v. Union of India case that involved the interpretation of the right to personal liberty under Article 21 of the Constitution. The Supreme Court held that this right was not limited to procedural aspects, but also included the right to travel abroad. This decision expanded the scope of individual liberties under the Constitution.³

In S.R. Bommai v. Union of India⁴ case the Supreme Court laid down guidelines for the imposition of President’s Rule in a state under Article 356 of the Constitution. The Court held that the Governor’s report was not conclusive and that the imposition of President’s Rule could be subject to judicial review. This decision reaffirmed the federal structure of the Constitution and the autonomy of the states.

In the case of Union of India v. Valluri Basavaiah Choudhary⁵, the Supreme Court held that the legislature of state does not include governor.

In another case, the Apex Court of Indian held that Article 245 is the fountain source of legislative powers. The Court struck down certain levies by way of cess on coal as unconstitutional for want of legislative competence in the State Legislature. The Supreme Court held that if there is any repungancy found between the List 2 on one hand and List 1 and List 3 on the other, the Statute law will be ultra vires and the Union Law shall prevail.⁶

In K.K Kochuni v. State of Madras the Supreme Court of India held that the State can have extra-territorial operation only if there is a territorial nexus between the enacting state and the subject.⁷

In case there is a repungancy between the laws of Parliament and State on the matters of Concurrent List , the law the extent of repungancy may be declared void.

The Articles 249 and 251 also permits the Parliament to encroach upon the specified legislature competence of a State legislature by declaring the matter to be of State importance.

These cases illustrate the importance of the Constitution as the supreme law of the land and the role of the judiciary in upholding its provisions. They also demonstrate the evolving nature of Indian constitutional law and the need for a dynamic and flexible interpretation of its provisions

Conclusion:-

The quasi federal structure of the Constitution, give the constitutional laws supremacy over the state laws . The State laws derive their powers from the constitution and it’s principles.

However, any law made either by the Parliament or by the State legislature must not be inconsistent with the provisions of the Constitution. If found so the law shall be void.

To protect the spirit of the Constitution, the Judiciary, to be specific the Supreme Court, is given the power of judicial review and thus laws inconsistent with the Constitution cease to operate.

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