Residuary Powers (Art. 248)

Article 248: "Parliament has exclusive power to make any law with respect to any matter not enumerated in List II or III. Such power shall include the power of making any law imposing a tax not mentioned in either of those lists" (It is to be noted that before independence, Governor-General, and not the federal legislature, which had such powers). Entry 97 of List I also lays down that Parliament has exclusive power to make laws with respect to any matter not enumerated in List II or III.

Article 248 and Entry 97, List I, assign residuary powers of legislation exclusively to the Union Parliament. If no entry in any of the three lists covers a piece of legislation, it must be regarded as a matter not enumerated in any of the three lists and belonging exclusively to Parliament under Entry 97, List I. By virtue of Art. 248, Parliament has exclusive power to make any law with respect to any matter not enumerated in List II or List III, and for this purpose, and to avoid any doubts, Entry 97 has also been included in List I. In other words, the scope and extent of Art. 248 is identified with that of Entry 97, List I (Hari Krishna Bhargava vs UOI)

However, the scope of residuary powers is restricted, as the three lists cover all possible subjects and because of the court's interpretation as to a matter falls under residuary powers or not. The rationale behind such powers is that it enables Parliament to legislate on any subject which has escaped the scrutiny of the House, and the subject which is not recognizable at present. Thus, it enables the Parliament to make laws on the subject matter which have come up with the advancement of society. However, the framers of Constitution intended that recourse to residuary powers should be the last resort and not the first step. Residuary power is a well-known convention in federal Constitutions. In the USA, and Australia, such powers are vested in States, while in Canada, in the Centre. Nevertheless, residuary powers are criticized, as they promote a 'strong' Centre and curb the autonomy of States.

There is no field of legislation which has not been allotted either to Parliament or to the State Legislature and therefore, if a law made by Parliament is challenged on the ground that it is beyond its legislative competence, it is enough to inquire, if it is with respect to any matters enumerated in the State List and if it is 12 not so, no. of question arises (i.e. it would be unnecessary to go into the question whether it falls under any entry in the Union or Concurrent List). Parliament can combine its power under an Entry in the Union List or Concurrent List and the residuary power under Art. 248 [UOI verses H.S. Dhillon's case; Kartar Singh versus the State of Punjab].

Several Acts have been enacted by Parliament under its residuary power. For example, the Wealth Tax Act (UOI verses Dhillon 's case), Gift Tax Act, Commissions of Inquiry Act, etc. which have been held valid under the residuary power of Parliament.

Parliament’s power to legislate on State Subjects:

Though in normal times, the distribution of powers must be strictly maintained and neither the State nor the Centre can encroach upon the sphere allotted to the other by the Constitution, yet in exceptional situations, the above system of distribution may be suspended. These exceptional situations are:

(1) Power of Parliament to legislate in national interest:

According to Article 249, if the Rajya Sabha passes a resolution supported by a two-thirds majority that it is expedient or necessary in the national interest that Parliament should make laws with respect to any matter enumerated within State List, then it will be lawful for the Parliament to make laws for the whole or any part of the territory of India.

(2) During a proclamation of Emergency:

According to Article 250, while the proclamation of Emergency is in operation, the Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to matters on State List. Such a the law will expire after six months on the expiration of the proclamation of emergency.

(3) Parliament’s power to legislate with the consent of States:

According to Article 252, if the legislature of two or more States pass resolution to the effect that it is desirable to have a law passed by Parliament on any matter in State List, it shall be lawful for Parliament to make laws regulating that matter. Any other State may adopt such a law by passing a resolution to that effect.

(4) Parliament’s Power to legislate for having effect to treaties and international agreements: Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions. In other words, the normal distribution of powers will not stand in the way of Parliament to pass a law to give effect to any international agreement even though such law relates to any of the subjects in the State List.

(5) In case of failure of constitutional machinery in the State: Under Article 356 Parliament is empowered to make laws with respect to all matters in the State List when the Parliament declares that the government of the State cannot be carried on in accordance with the Constitution.

It is submitted that these provisions enable the Centre to legislate in exceptional circumstances on the State subjects without amending the Constitution and thus introducing a certain amount of flexibility in the scheme of distribution of legislative powers.