Legislative Competence
Legislative competence refers to the constitutional authority of a legislature (Parliament or State Legislature) to make laws on a particular subject, as distributed by Articles 245-246 of the Constitution through the Union, State, and Concurrent Lists.
What is Legislative Competence?
**Legislative competence** refers to the **constitutional authority and power** of a legislature to enact laws on a particular subject matter. In India's federal structure, the Constitution distributes law-making power between Parliament (the Union Legislature) and State Legislatures through three lists in the **Seventh Schedule**. A legislature can only make valid laws on subjects that fall within its constitutionally assigned competence. A law enacted beyond a legislature's competence is **ultra vires** (beyond power) and void.
In simple terms, legislative competence answers the question: "Does this legislature have the right to make this law?" Parliament can make laws on defence, foreign affairs, and banking because these are in its domain. State legislatures can make laws on police, land, and agriculture because these are in their domain. If either tries to legislate on a subject outside its domain, that law can be struck down.
Legal Framework
Articles 245-246 of the Constitution
- **Article 245(1):** Parliament may make laws for the whole or any part of India. A State Legislature may make laws for the whole or any part of the state.
- **Article 245(2):** No law made by Parliament shall be deemed invalid on the ground that it has extra-territorial operation.
- **Article 246(1):** Parliament has **exclusive power** to make laws on subjects in **List I (Union List)** of the Seventh Schedule.
- **Article 246(2):** Parliament and State Legislatures both have power to make laws on subjects in **List III (Concurrent List)**.
- **Article 246(3):** State Legislatures have **exclusive power** to make laws on subjects in **List II (State List)**, subject to Articles 246(1) and (2).
The Three Lists (Seventh Schedule)
**List I — Union List (97 entries):** Subjects on which only Parliament can legislate. Includes defence, atomic energy, foreign affairs, banking, insurance, railways, airways, posts and telegraphs, currency, interstate trade, and more.
**List II — State List (66 entries):** Subjects on which only State Legislatures can legislate. Includes police, public order, land, agriculture, local government, state taxes, public health, and more.
**List III — Concurrent List (47 entries):** Subjects on which both Parliament and State Legislatures can legislate. Includes criminal law, criminal procedure, marriage and divorce, bankruptcy, education, forests, trade unions, and more. In case of conflict between a Central law and a State law on a Concurrent List subject, the **Central law prevails** (Article 254(1)), unless the State law has received **Presidential assent** under Article 254(2).
Residuary Powers — Article 248
Subjects not mentioned in any list fall under the **residuary power** of Parliament. Article 248 gives Parliament exclusive power to make laws on any matter not enumerated in the State List or Concurrent List. Entry 97 of the Union List correspondingly covers "any other matter not enumerated in List II or List III."
When Does This Term Matter?
Challenging the Validity of Laws
The most common context in which legislative competence arises is when a law is **challenged as unconstitutional** on the ground that the legislature that enacted it lacked competence over the subject matter. Courts examine whether the subject matter of the law falls within the list assigned to that legislature.
Pith and Substance Doctrine
When a law appears to encroach on another legislature's domain, courts apply the **pith and substance doctrine** — they examine the true nature and character of the legislation. If, in its pith and substance, the law falls within the competence of the enacting legislature, incidental encroachment on another legislature's field does not invalidate it.
Colourable Legislation
If a legislature enacts a law that appears to be within its competence but is in reality a disguised attempt to legislate on a subject outside its domain, courts strike it down as **colourable legislation** — "what cannot be done directly cannot be done indirectly."
Goods and Services Tax (GST)
The introduction of GST through the **101st Constitutional Amendment (2016)** significantly altered the legislative landscape by creating a concurrent taxation power, replacing multiple Union and State indirect taxes with a unified framework.
Practical Significance
- **Federal balance:** Legislative competence is the mechanism through which India's federal structure is maintained, ensuring neither the Centre nor the states overstep their constitutional boundaries.
- **Article 249:** Parliament can legislate on a State List subject if the Rajya Sabha passes a resolution by two-thirds majority that it is necessary in the national interest.
- **Article 250:** During a national emergency under Article 352, Parliament can legislate on any subject, including State List subjects.
- **Article 252:** Two or more states may request Parliament to legislate on a State List subject for those states.
- **Governor's assent:** Under Article 254(2), if a State law on a Concurrent List subject is repugnant to a Central law, the State law prevails in that state if it has received the President's assent.
Frequently Asked Questions
What happens if a State Legislature passes a law on a Union List subject?
The law is **ultra vires** and void. Only Parliament has the power to legislate on Union List subjects under Article 246(1). If a State Legislature enacts a law whose pith and substance falls within the Union List, any person affected by it can challenge it in court, and the court will strike it down as unconstitutional for lack of legislative competence. However, courts apply the pith and substance test carefully — if the law is essentially about a State List subject and only incidentally touches upon a Union List matter, it may be upheld.
Can Parliament and State Legislatures both legislate on the same Concurrent List subject?
Yes, both can legislate on Concurrent List subjects. However, if there is a **conflict or repugnancy** between the Central law and the State law, the Central law prevails under Article 254(1) and the State law becomes void to the extent of the repugnancy. The exception is when the State law has received **Presidential assent** under Article 254(2), in which case the State law prevails in that state — but Parliament can still override it by subsequent legislation.
What is the residuary power and who exercises it?
The residuary power belongs to **Parliament** under Article 248 of the Constitution. Any subject that is not covered by the State List (List II) or the Concurrent List (List III) falls within Parliament's residuary power. Entry 97 of the Union List specifically covers taxes not mentioned in either the State or Concurrent Lists. This is unlike some other federations where residuary power rests with the states. The broad scope of the Union List combined with residuary power gives Parliament significant legislative reach.
Disclaimer: This glossary entry is for informational purposes only and does not constitute legal advice.
Related Legal Terms
Ultra Vires
Ultra vires is a Latin term meaning 'beyond the powers,' used to describe an act performed by an authority, corporation, or official that exceeds the legal power or authority granted to them by law.
Jurisdiction
Jurisdiction is the authority of a court or tribunal to hear, try, and decide a case based on the subject matter, territorial limits, and monetary value of the dispute.
Original Jurisdiction
Original jurisdiction is the authority of a court to hear and decide a case for the first time, as opposed to appellate jurisdiction where a court reviews a lower court's decision, with the Supreme Court's original jurisdiction defined under Article 131 and High Courts under Article 226 of the Constitution.