Powers of the Legislature of the State
There are two competing interpretations to the phrase “powers of the Legislature of the State”. It could be read expansively to include “all” the powers of the State Legislature or narrowly to place limitations on the nature of legislative power that can be exercised by Parliament. The petitioners term it as the distinction between legislative and constituent power, or the law and non-law powers of the State legislature.
However, regardless of the manner in which the distinction is drawn, the issue is whether all the powers of the Legislature of the State (that is, both law-making and non-law making powers) are vested in Parliament when the President issues a declaration in terms of Article 356(1)(b).
In addition to the legislative powers granted to the States under List II of the Seventh Schedule, the States have also been granted various non-law making powers to ensure the voice of their electorates are well represented at the constitutional plane. This is a recognition that even though Parliament has representatives from the entire country, and the Rajya Sabha is elected entirely by State Legislatures, the outlook of such a body is fundamentally national. The actual polity of Parliament is the entire nation.
The Constitution recognises that this creates a risk that the interests of specific states may not be adequately represented despite such States being particularly impacted. For example, the power to abolish or create a Legislative Council in a State is conferred on Parliament under Article 169 as such a law has national consequences, such as for the election of the President. However, it is also a power that would directly impact the constitutional governance within the concerned State.
Thus, despite Parliament and the Rajya Sabha possessing Members from the concerned State, the Constitution provides an extra layer of federal representation to the State. Article 169 states that no law for the creation of a Legislative Council in a State can be passed by Parliament without the Legislative Assembly of the State first passing a resolution by a 2/3rds majority. This ensures that the constitutional governance of the State cannot be overridden by national considerations. 221.
Constitutional (or non-law making) powers held by the Legislature
A few of the constitutional (or non-law making) powers held by the Legislature of the State are:
(a) the power of the State legislatures to ratify an amendment;
(b) election of the President by elected members of the Legislative Assemblies of the State;
(c) election of the representatives of each State to the Rajya Sabha by the elected members of the Legislative Assembly of the State; and
(e) the Houses of Legislatures in two or more States passing a resolution to the effect that Parliament must legislate upon certain matters in those states, matters it otherwise does not have the power to legislate upon.
Article 356(1)(b) does not make a distinction between legislative and constitutional powers. Clause (b) of Article 356(1) unlike clause (a) of Article 356(1) also does not make a distinction between “all or any” powers. Clause (b) states that the President shall by a Proclamation make a declaration that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.
Article 357 provides the scope of the power which can be exercised by Parliament upon a declaration being made under Article 356(1)(b). Article 357(1) is extracted below:
“357. Exercise of legislative powers under Proclamation issued under Article 356
(1) Where by a Proclamation issued under clause (1) of Article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent:
(a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf;
(b) for Parliament, or for the President or other authority in whom such power to make laws is vested under sub clause (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities thereof;
(c) for the President to authorise when the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament.”
Article 357, as indicated in the marginal note, deals with the exercise of legislative powers upon the issuance of a Proclamation under Article 356.
The provision states that upon a declaration being made under Article 356(1)(b), it shall be competent:
a. For Parliament to confer law making powers on the President or authorise the President to delegate the power to any other authority;
b. For Parliament to make laws conferring powers and duties upon the Union or officers and authorities; and
c. For the President to authorise expenditure from the Consolidated Fund of the State when the House of People is not in session and pending sanction of such expenditure by Parliament.
Article 357(1) states that it shall be competent for Parliament to exercise the powers stipulated in the clauses. Article 357(1) confers the law-making body with powers which are otherwise not available to it. By virtue of Article 357(1)(a), Parliament can delegate the law-making function to the President and authorise the President to delegate the power to any other authority. This is a unique power granted by the provision which is an exception to the executive and legislative divide between Parliament and the executive.
Under Article 357(1)(b), Parliament can (acting as the Legislative Assembly of the State) enact laws conferring powers and imposing duties upon the Union. By Article 357(1)(c), the President is granted the power to authorise expenditure in deviation from the procedure prescribed in Article 204 by which expenditure from the Consolidated fund of the State can only be authorised by a law. The phrase “competence” in Article 357(1) has an expansive and not a restrictive scope.
Article 357(1) dwells on the competence of Parliament and the President from a constitutional perspective, when under a Proclamation under Article 356, the “powers of the legislature of the State shall be exercisable by or under the authority of Parliament”. The expression “powers of the legislature of the state” in Article 356(1)(b) and in the prefatory part of Article 357(1) is broader in content than “the power of the legislature of the state to make laws” in Article 357(1)(a) and 357(1)(b). The latter is the law-making power of the state legislature while the former includes but is not confined to the power to legislate. Clause (a) of Article 357(1) deals with “the power of the legislature of the state to make laws”.
Clause (b) refers to the same subject when it speaks of “the authority in whom such power to make laws is vested under sub-clause (a)”. Article 357 uses the expression “competent” initially, in the prefatory part, to indicate certain actions which flow from the declaration under Article 356 that the power of the state legislature shall be exercisable by or under the authority of Parliament.
Clause 2 also uses the expression “competent” to indicate that a law made by Parliament or the President while exercising the power of the legislature of the state during a Proclamation under Article 356 shall continue in force after the Proclamation has ceased to operate even though such a law would not have been competent in the absence of a Proclamation. The state legislature can thereafter modify or repeal the law. In Clause 1 the expression “competent” is used to signify an empowerment; an entrustment of power. In Clause 2, the same expression is used to mean the constitutional capacity to make the law.
Article 356(1)(b) indicates that on a Proclamation being issued, the President may declare that the powers of the legislature of the state shall be exercisable by or under the authority of Parliament. Article 357 provides for what is subsumed, when by a declaration under Article 356, the powers of the legislature of the State are exercisable by or under the authority of Parliament. The text of the prefatory part of Article 357 is similar to the language of Article 356(1)(b).
However, the prefatory part of article 357 refers to the entirety of Clause 1 of Article 356. The ambit of Article 356(1)(b) is clearly broader than the canvas of Article 357(1). Article 356(1)(b) would comprehend both law making and non-law making powers when it uses the expression “powers exercisable by the legislature of the state”. Clause (a) of Article 357(1) – and Clause (b) which refers to Clause (a) – on the other hand refer to the power of the legislature of the state to make laws. This is the legislative power referable to Articles 245 and 246. It would be difficult to read Article 357(1) as restricting the ambit of the conferment of power under Article 356(1)(b).
The basic purpose of Article 357 is to ensure that while exercising the powers of the legislature of the State pursuant to a declaration under Article 356(1), Parliament, or as the case may be, the President are not impeded by an absence of competence which would have impeded the exercise of a similar power in the absence of a Proclamation under Article 356. The description in Article 357 of what could lie within the competence of Parliament or the President during a Proclamation which vests the powers of the State Legislature in Parliament cannot restrict the powers available under Article 356. Article 357 does not contain a non-obstante provision which overrides Article 356.
Article 357 cannot be read to exclude everything apart from sub-clauses (a), (b) and (c) of Clause 1 from the ambit of Article 356. To interpret Article 357(1) as a restriction on Article 356(1)(b) would be to read in a restriction which the plain terms of the Constitution do not provide. To put it differently, acceptance of a contrary interpretation would require the court to read the expression “only” to precede the expression “competent” in the prefatory part of Article 357. This will amount to judicial rewriting of the text of the Constitution which is plainly impermissible.
A seven-Judge Bench of the Court in In re Presidential Poll held that the dissolution of the Legislative Assembly is not a ground for preventing the holding of the election on the expiry of the term of the President. So, constitutional functions are not put on a hold when the Legislative Assembly of a State is dissolved. The constitutional powers of the State legislature are crucial facets of the principle of federalism. These provisions create a space for the States to be seen and heard and for the States to have an equal say in the democratic functioning of the Nation.
It is not only the letter of the law which makes a Constitution federal but also the exercise of such power. Interpreting the phrase “powers of the legislature” to allow Parliament to exercise all constitutional powers which are vested in the Legislative Assembly of the State would reduce the power of the State. However, the Constitution recognises such reduction of federal power when the Proclamation under Article 356 is in force. As we have held above, the exercise of power after a Proclamation under Article 356 is issued is subject to judicial review.
An immunity from judicial scrutiny does not attach to the exercise of Constitutional powers of the Legislature of the State. The Court while judicially reviewing the exercise of power can determine if the exercise of the Constitutional power of the Legislature of the State has a reasonable nexus with the object sought to be achieved by the Proclamation.
The standard to assess actions taken under Article 356 after the issuance of Proclamation
In view of the discussion above, the following standard is laid down to assess actions under Article 356 after the Proclamation has been issued:
a. The exercise of power by the President under Article 356 must have a reasonable nexus to the object of the Proclamation;
b. The exercise of power by the President will not be rendered invalid merely on the ground of ‘irreversibility’ of the actions;
c. The person challenging the exercise of power must prima facie establish that it is a mala fide or extraneous exercise of power. After a prima facie case is made, the onus shifts to the Union to justify that the exercise of power had a reasonable nexus with object of the Proclamation; and
d. The exercise of power by the President for everyday administration of the State is not ordinarily subject to judicial review.
Reference
Re: article 370 of the constitution, 2023