Navigating Competence in Indian Federalism: A Closer Look at Legislative and Executive Powers

India is home to 28 states and 8 Union Territories, each with distinct languages, cultures, economies, and governance needs. Managing this diversity under a single constitutional framework requires a carefully designed system of power-sharing. Central to this system is the concept of legislative and executive competence – the legal authority of each level of government to make laws and carry them out in specific areas. The Indian Constitution does not leave this to chance. It maps out who gets to do what, and crucially, what happens when both levels of government have a stake in the same issue.

The constitutional foundation: Article 246 and the Seventh Schedule 🔗

The distribution of legislative powers in India is governed primarily by Article 246 of the Constitution and the Seventh Schedule. Together, these provisions divide all law-making subjects into three lists, assigning each level of government a defined sphere of competence.

The Seventh Schedule contains three lists: the Union List, the State List, and the Concurrent List. Article 246(1) gives Parliament exclusive power over Union List subjects; Article 246(2) allows both Parliament and State Legislatures to legislate on Concurrent List subjects; and Article 246(3) grants State Legislatures exclusive power over State List subjects.

This architecture did not emerge in a vacuum. The Government of India Act, 1935 laid the groundwork by introducing a three-fold enumeration of powers between the central and provincial governments, and India’s Constitution framers drew heavily on this model while adapting it to the realities of a newly independent, deeply diverse nation.

The Union List: exclusive central competence 🔗

The Union List currently contains 98 subjects on which only Parliament can legislate. These cover matters of national importance that demand uniform laws across the country – defence, foreign affairs, banking, currency, atomic energy, railways, and major ports, among others.

In India, residual powers – those not covered by any of the three lists – also rest with the Union Parliament under Article 248. This is a significant design choice. Unlike the United States or Australia, where residual powers belong to the states, India’s Constitution centralises this authority. This means that emerging areas like cyber laws, space exploration, and artificial intelligence fall under Parliament’s exclusive jurisdiction by default.

The rationale for this strong central hand was partly historical: national integration was a paramount concern after Partition, and only a strong central government could protect against external threats and internal fragmentation.

The State List: exclusive state competence 🔗

The State List currently contains 61 subjects (originally 66) over which State Legislatures have exclusive legislative authority. These are areas where local knowledge, regional sensitivity, and proximity to the governed population matter most.

Public order 🔗

One of the most politically significant entries in the State List is public order. Entry 1 of the State List gives states exclusive competence over public order, while Entry 2 covers police, including railway and village police. This means that maintaining law and order within a state’s territory is primarily a state responsibility. However, this does not extend to the use of naval, military, or air forces of the Union, or any other force subject to Union control – those remain under central authority. The deployment of central armed forces in states is separately provided for under Entry 2A of the Union List.

Agriculture 🔗

Agriculture is firmly placed in the State List (Entry 14 of List II), giving states the authority to legislate on farming practices, land revenue, agricultural markets, and rural development. This reflects the sheer diversity of agricultural conditions across India – cropping patterns, irrigation needs, and land ownership structures vary enormously between, say, Punjab and Kerala.

Yet the Union government is not absent from this domain. It can legislate on food security, inter-state trade in agricultural commodities, and import-export of farm produce, all of which touch the Union List or Concurrent List. National schemes like the Pradhan Mantri Kisan Samman Nidhi (PM-KISAN) channel central funds directly to farmers, creating a layer of Union presence even in an area of state competence. This overlap is a recurring feature of how Indian federalism functions in practice.

The Concurrent List: shared competence and its complexities 🔗

The Concurrent List contains 52 subjects (originally 47) on which both Parliament and State Legislatures can make laws. This list was deliberately included to avoid the rigidity of a purely two-tier division. It covers subjects where both national uniformity and regional flexibility are desirable – education, marriage and divorce, forests, environmental protection, labour laws, and criminal procedure, among others.

However, concurrent jurisdiction creates an inherent tension. If a state law on a Concurrent List subject conflicts with a Union law on the same matter, the Union law prevails. There is one exception: if a state law has been reserved for the President’s consideration and has received presidential assent, it may override the conflicting Union law in that state. This mechanism allows for regional variation while keeping the Union’s legislative primacy intact.

The legal doctrine used by courts to determine which level of government a law truly belongs to is the doctrine of pith and substance. As explained in Animal Welfare Association v. Union of India (2023), if the core of a legislation falls within a legislature’s permitted jurisdiction, any incidental encroachment into the other’s domain is disregarded. This prevents either level of government from using cleverly worded laws to invade the other’s competence.

Executive competence: beyond law-making 🔗

Legislative competence is only one side of the equation. The Constitution also distributes executive power – the authority to implement and enforce laws – between the Union and the states. In general, the executive power of each level of government co-extends with its legislative competence. States administer State List subjects; the Union administers Union List subjects.

Articles 256 and 257: the Union’s oversight role 🔗

The Constitution does not leave states entirely free in their executive functioning. Article 256 mandates that the executive power of every state must be exercised in a manner that ensures compliance with laws made by Parliament, and that the Union may issue directions to states to ensure this compliance.

Article 257 goes further. It requires that states must not exercise their executive power in ways that impede or prejudice the Union’s executive power. The Union can direct states on matters relating to the construction and maintenance of communication links of national or military importance, and the protection of railways within state territories. If a state incurs expenditure in complying with such directives, the Union is obligated to provide financial compensation.

These provisions reinforce what scholars describe as India’s quasi-federal structure – a system that is federal in normal times but tilts significantly toward the Union when national interests are at stake. The landmark S.R. Bommai v. Union of India (1994) case confirmed that while the Union has significant administrative authority over states, this authority is subject to judicial review and cannot be used arbitrarily.

Taxation: a domain reshaped by cooperative federalism 🔗

Taxation illustrates the evolution of competence distribution in Indian federalism better than almost any other area. Historically, the Union and states each had distinct taxing powers. The Union List included subjects like customs, corporate taxes, and excise on manufactured goods; the State List included taxes on land, vehicles, alcohol, and sales taxes on goods.

This changed dramatically with the 101st Constitutional Amendment Act, 2016, which introduced the Goods and Services Tax (GST). The amendment granted simultaneous powers to Parliament and State Legislatures to make laws on GST, while Parliament retained exclusive power over inter-state supply of goods and services. It also introduced Article 246A, a new constitutional provision specifically for GST, standing alongside – not replacing – the Seventh Schedule’s existing structure.

The amendment removed specific State List entries related to sales taxes on goods, subsuming them under the unified GST regime. To manage this shared taxation space, the GST Council – comprising the Union Finance Minister and State Finance Ministers – was constituted under Article 279A to jointly decide tax rates, exemptions, and implementation rules.

The GST Council is widely seen as a model of cooperative federalism in action. It institutionalised a platform for the Centre and states to jointly govern a major area of taxation, and provided for compensation to states for revenue losses arising from GST implementation for five years (2017-2022). However, tensions have persisted over revenue sharing and the pace of reform, revealing the inherent difficulties of managing concurrent competence in fiscal matters.

When Parliament can enter state territory 🔗

The distribution of competence is not entirely static. The Constitution provides several circumstances under which Parliament can legislate on State List subjects, effectively suspending exclusive state competence:

Under Article 249, Parliament can legislate on a State List subject if the Rajya Sabha passes a resolution declaring it expedient in the national interest, by a two-thirds majority. Under Article 250, Parliament gains full legislative competence over all three lists during a national emergency. Under Article 252, if two or more states request it, Parliament can pass legislation on a State List subject that applies only to those states. And under Article 253, Parliament can legislate on any subject – including State List entries – to fulfil international treaties or agreements.

Additionally, under Article 356 (President’s Rule), Parliament is empowered to make laws on matters in the State List when a state’s constitutional machinery has broken down. These provisions underline that state competence, while genuine, is not absolute. The Constitution accommodates a strong Union when circumstances demand it.

The role of the judiciary in policing competence 🔗

Disputes over legislative competence are inevitable in a federal system as complex as India’s. The Supreme Court plays a crucial role in interpreting the constitutional balance between the Union and the states, and has consistently held that federalism is a part of the basic structure of the Constitution – meaning it cannot be destroyed even by constitutional amendment.

Courts apply doctrines like pith and substance (looking at the true character of a law, not its label), doctrine of colourability (preventing a legislature from doing indirectly what it cannot do directly), and territorial nexus (determining whether a state law has sufficient connection to state territory) to resolve jurisdictional disputes. These judicial tools are essential to maintaining the integrity of the three-list system over time.

A living framework 🔗

The distribution of competence in Indian federalism is not a static constitutional artifact. Constitutional amendments, notably the 42nd Amendment (1976) and the 101st Amendment (2016), have shifted the balance between the lists – the 42nd expanded the Centre’s domain by moving subjects to the Concurrent List, while the 101st restructured the fiscal landscape through GST. Emerging governance challenges – digital regulation, climate change, public health crises – will continue to test and reshape where competence lies.

What makes the Indian model distinctive is not just the three-list division, but the mechanisms built around it: presidential assent for state laws, Union directives, the GST Council, and judicial oversight. Together, they create a system that is neither purely federal nor purely unitary – but one designed to govern a country of extraordinary complexity.

What do you think? Should agriculture be moved to the Concurrent List given the increasing role of the Union government in food security and farm policy – or does keeping it in the State List better protect the diverse needs of Indian farmers? And as new domains like artificial intelligence and digital infrastructure emerge, is it adequate for residual powers to remain exclusively with Parliament, or should states have a say in regulating technologies that directly affect their populations?

References

1. https://www.constitutionofindia.net/articles/article-256-obligation-of-states-and-the-union/
2. https://en.wikipedia.org/wiki/Seventh_Schedule_to_the_Constitution_of_India
3. https://pmkisan.gov.in/
4. https://testbook.com/constitutional-articles/article-257-of-indian-constitution
5. https://lawbhoomi.com/administrative-relations-between-centre-and-state-in-india/
6. https://gstcouncil.gov.in/gst-council-0