Division of powers means the divisions of powers between the Union and the State Governments. This is an essential feature of federalism. In a Federal Constitution as two types of governments exist – Union Government and State Governments, there should be a clear division of powers between the Union and State governments to avoid any conflict.
Since India has a federal Constitution, we too have division of powers between Union Government and State Governments under (Article 246) of our Constitution placed under VII schedule.
We have three lists under divisions of powers— (i) Union list having 97 subjects, (ii) State list having 66 subjects and (iii) Concurrent list having 47 subjects.
- Union List
The Union list has 97 subjects of National and International importance such as: Defence, Foreign affairs, Atomic energy, Currency, Communication, Commerce, Treaties, War & peace, CBI, RAW, NIA, IB, Citizenship, All India Services, Railways, Airways, RBI, UPSC, Extradition, Passports & Visas, National Highways, Post & telegraph, Banking, Insurance, Stock Exchange, Patents, Copyright, Trademark, Census, Survey of India, Meteorological organization, Election Commission, Income Tax, Custom duties, Corporation Tax, etc.
Only Union Parliament can make laws on the subjects in the Union list. However, the Union Parliament can delegate its authority of law making on any subject of the Union List to States under Article 258.
The Sarkaria Commission recommended that this authority should be used by the Union Government liberally to include states in law making on the Union List subjects.
- State List
The State list has 66 subjects of regional and local importance such as: Law & order, Police, Prisons, Health, Sanitation, Agriculture, Land, Water supply, Roads, Irrigation, Fisheries, Trade & Commence within the state, Burials & Burial grounds, Cremations & cremation grounds, Markets & fairs, Co-operative societies, Betting & gambling, State Public Service Commission, Land revenue, Taxes on land & buildings, Alcoholic liquors for human consumption, etc.
Normally, the state legislatures only can make laws on the subjects under the State list, but the Union Parliament can also make laws on the subjects under the State list in the following four circumstances :-
- In the national interest – If the Rajya Sabha passes a resolution by special majority, i.e. , by 2/3 majority that it is necessary in the national interest that the parliament should make laws on a subject which is under the state list, then the parliament can make laws on that subject.
- During National Emergency under (Article 352) and during State Emergency under (Article 356)
- If two or more states request that parliament should make laws on a subject of the state list for them –However, in this case the law made by the Union Parliament for a subject under the State List will be applicable only to the requesting states.
- To implement International treaties, international agreements and conventions.
- Concurrent List
The Concurrent list has 47 subjects of National and Regional importance such as: Education, Family Planning, Marriage, divorce, maintenance, Criminal Law, Transfer of property, Bankrupsy & insolvency, Civil Procedure, Economic & Social Planning, Legal, Medical & other professions, Factories, Stamp duty etc.
Both Union as well as States can make laws on a subject under the Concurrent list but in case of any dispute between the law of State and law of Union, the law of Union shall prevail.
We have borrowed the concept of concurrent list from the Constitution of Australia.
Residuary Powers
Any subject not mentioned in the three lists or any new subject developed in the due course of time comes under Residuary Powers of the Union. Only Union has the right to make law on such subjects. We have borrowed this feature from the Constitution of Canada.
Note: In the original constitution the subject EDUCATION was in state list. The subject education was transferred from State list to Concurrent list by 42nd Constitutional Amendment Act 1976.
