Concurrent Power: Whether a tool for political gains?

Gaurang Kanth comments on the scope of current power in the light of the recently implemented rules under the Motor Vehicles (Amendment) Act, 2019.

A few States such as Andhra Pradesh, Madhya Pradesh, Punjab, West Bengal, Rajasthan and Telangana have decided against the implementation of the new rules under the Motor Vehicles (Amendment) Act, 2019 (“Amendment Act”) (as effective from 1st September, 2019) within their jurisdiction. Certain other States such as Gujarat, Karnataka and Maharashtra have implemented the provisions after dilution of the same and appear to have at least made a beginning towards ensuring of the safety on the roads. It is also evident that the States mentioned hereinabove which have completely decided against the implementation of the Amendment Act consists of ruling dispensations which appear to be on the opposite spectrum of the party holding fort at the Central Government. This is not however, the first instance of such a difference in opinion and there have been repeated instances of such chasm which appear to be merely based on partisan lines. Such differences more often than not adversely affects the Centre-State relations which have been impeccably covered under the Constitution and concretized by the Supreme Court. However, these actions on the part of such State dispensations have only helped in limiting the benefits for the citizens of this Country.

Legislative relations between the Centre and the State

It may be mentioned that the Constitution of India (the Constitution), is fairly clear and unequivocal in providing the recognition to States in as much as their domain of legislative authority is concerned. The Constitution among others includes the Legislative Relations between the Centre and the States. The Legislative Relations are mentioned under Article 245 to Article 255 while the Administrative and the Financial Relations are mentioned under Articles 256 to 253 and Articles 264 to 291 of the Constitution respectively. Further, Article 246 deals with the distribution of the legislative powers between the Parliament and the State Legislature, with reference to the different Lists illustrated under the Seventh Schedule. Pursuant to such distribution, the Parliament has the full and exclusive power to legislate on matters in List I (Union list) while the State Legislature is empowered to formulate legislations for such State or part on matters as enumerated in List II (State List). The Parliament, according to Article 245 of the Constitution, is empowered to make laws for the whole or any part of the territory of India. However, these exclusive powers of the Parliament as well as the State Legislature are subject to the provisions of the Constitution as enumerated therein. It is also manifestly clear that the Constitution envisages a dual polity in relation to the Centre-State relations where they operate within their respective domains. Having said that, the Seventh Schedule also includes a List III which is the Concurrent List. The Concurrent List consists of matters which are neither exclusively of national interest nor of purely State or local concern but are of common interests for the Centre as well as the State. The Parliament and the State Legislature have concurrent powers to legislate on matters in this List.

Concurrent List and the Powers of the Centre and States

While discussing about the significance of List III, the States Re-Organisation Committee, one of the various commissions and committees set up for the Centre-State relation, stated that “It is the Union of India which is the basis of our nationality… States are but limbs of the Union, and while we recognize that they be healthy and strong… it is the strength and stability of the Union and its capacity to develop and evolve that should be governing consideration of all changes in the country.” Dr. Shayama Prasad Mookharjee and Dr. B.R. Ambedkar have also put forth arguments in favour of strong Centre in paramount interest of our Country. It may thereby be viewed that the Concurrent List serves as a device to loosen the excessive rigidity of federalist structure.

By virtue of these contemporary powers as exemplified under List III, the Parliament as well as the State Legislature have enacted plethora of enactments on the entries present therein such as criminal law and procedure, contracts and transfer of property, marriage, divorce and adoption, bankruptcy and insolvency, social security, education and many others. In general practice, the Parliament formulates a Central Act on the subject matter as mentioned in the List. As problems and conditions may differ from State to State requiring diverse remedies, the States either adopt the Central Act itself or modify the same as per their local peculiarities, however, in consonance with the provisions of the Constitution.

The Inconsistency and the test thereof

Although, the States may modify the Central Act but there may be situations where inconsistency or conflict may arise between the provisions of Central and the State enactments due to such modifications. To such a situation of inconsistency or repugnancy, the provisions of Article 254 of the Constitution provides guidance. Article 254(1) makes it abundantly clear that if there is such an inconsistency or repugnancy, the Central Act will prevail subject to the provisions of Article 254(2) and further subject to proviso to Article 254(2) in cases where such Central Act has been enacted on subject matter under the Concurrent List. [See Zaverbhai Amaidas v. State of Bombay, (1955) 1 SCR 799, M/s Hoechst Pharmaceuticals Ltd. and Ors. vs. State of Bihar and Ors. (1983) 4 SCC 45, and T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177.]

Referring to the sensitive relationship between the Centre and the States, Dr. B.R. Ambedkar said, “the one is not subordinate to other in its own field; the authority of one is coordinate with that of the other.” However, resolution of conflict arising on account of the co-existence of Central as well as the State competency to frame legislation with respect to the matters enumerated under List III becomes a necessity as uniformity in law cannot be left at sufferance. These conflicts are subject to the test of repugnancy as laid down under clause (2) of Article 254 of the Constitution. The Hon’ble Supreme Court has held that in order to decide the question of repugnancy, it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field under List III. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes. It was further held that where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without corning into collision with each other, no repugnancy results. [See M. Karunanidhi v. Union of India (1979) 3 SCR 254 and Kalyani Mathivanan v. K.V. Jeyaraj and Others (2015 6 SCC 363)]

Instances of repugnancy in enactments under Concurrent List

Eventually, instances of such inconsistencies or repugnancies by virtue of the statutes enacted on subject matter under List III appear to have aggravated in due course of time. The Real Estate (Development and Regulation) Act, 2016 (RERA) has been one such significant Central Act [enacted under Entry 6 and 7 (dealing with contracts and the transfer of property) of the Concurrent List] which has had various implications in different States because of dilution of the Central Act by the State Legislatures. For instance, the State Legislature of West Bengal has enacted West Bengal Housing & Industrial Regulation Act, 2017 (WBHIRA) with effect from 17th October, 2017. WBHIRA has inconsistent and incongruous provisions with that of RERA. Recently, the constitutional validity of the said Act has been challenged in the Supreme Court on the grounds of repugnancy without the assent of the President under Article 254 of the Constitution. Along with West Bengal, States such as Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland and Sikkim have still not yet notified RERA. The resistance of certain States with respect to the Motor Vehicles (Amendment) Act, 2019 has already been highlighted in the introductory para.

Conclusion

Since there are different dispensations at the State and the Centre respectively, the abuse of the provisions of the Constitution in the garb of State autonomy to sustain their political interests, is becoming more apparent. This tussle hampers the cohesive functioning of the enumerated Constitutional structure. As laid down under the Constitution, the principal aim of the States is to take all measures to implement and promote the scheme of social and economic justice including the welfare of people. However, the bitter truth is that the persistent affairs of the State dispensation in undertaking their partisan objectives results in suffering of the public at large, impinging on their socio-economic rights and welfare. Therefore, the need of cooperation between the Centre and States is more pressing than ever keeping in view the Constitutional spirit.