NEED FOR CONCURRENT LIST

2.11.01 The Concurrent List, at present, comprises 52 items. The State Legislatures are fully competent to legislate with respect to matters in this List, subject to the rule of repugnancy in Article 254. If Parliament completely occupies the field of a concurrent Entry, the power of the State Legislatures to legislate in the same field is rendered inoperative. The parameters of the rule of repugnancy and its effect on the State legislative power have been discussed earlier in paras 2.5.06 to 2.5.10 of this Chapter. Reservation of State Bills under clause (2) of Article 254 read with Article 200 will be dealt with the later in a separate Chapter37. Issues directly related to entries in the Concurrent List will be considered here.

Demand for abolition of the concurrent list

2.11.02 Two State Governments and their supporting parties have proposed abolition of the Concurrent List and transfer of all its items to the State List. The demand apparently rests on two-fold premises. First, that in a truly federal Constitution there is no need for a Concurrent sphere of jurisdiction, and, as such, a polity postulates a complete and mutually exclusive division of power between the two levels of government. Second, that the Concurrent List has been operated by the Union in a monopolistic and unilateral manner as if it were a second Union List.

2.11.03 Thus, the first point for consideration is, whether from a functional stand-point, it is feasible in any system of two levels of government, to have no area, whatsoever, of their concurrent responsibility or overlapping jurisdiction. The history of the working of the older federations attests that the emergence of a wide-ranging area of concurrent jurisdiction is inevitable with the passage of time.

Position in USA

2.11.04 The Constitution of the United States of America is supposed to be a classic model of water- tight compart-mentalisation of governmental functions. It enumerates the power of the National Government and reserves residuary powers, except those prohibited by the Constitution, for the States. It has no Concurrent List. Most of the powers delegated to the National Government are specified in Article 1, Section 8. All the powers granted to the Congress are not exclusive. Over the years as a result of judicial interpretation, a concurrent field has emerged. Those powers which do not belong to the Congress exclusively, and are not forbidden to the States, are concurrent in the sense that so long as the Congress does not formally pre-empt or occupy the subject-matter of these powers, the State legislatures may also exercise them. Instances of matters which fall under this 'concurrent' category are: bankruptcy, electric power and gas, regulation of public utility, food and drug regulation, public welfare and social insurance, planning, taxes, borrowing money, establishment of courts, chartering banks, corporations, acquisition of private property for public purposes etc. Most of these 'concurrent' powers are liable to pre-emption by the Congress through statutory elaboration, while others such as the power to tax, are not pre-emptible. Thus, in this so-called concurrent sphere the legislative power of the Congress predominates over that of the State Legislatures. Nonetheless, the scope of concurrent sphere continues to be large because Congress seldom occupies to the full, the field of a subject in the concurrent sphere. Indeed, the Congress did not for a number of years after the advent of the U.S. Constitution, exercise all the powers delegated to it. The power to regulate bankruptcies, for instance, was not exercised by it until 1933. Prior to the passage of the Water Quality Act, 1965, the occasions on which Congress exercised its power of total or partial pre-emption in respect to matters in the concurrent sphere, were few and far between. The underlying rationale of the pre- emption doctrine is that the Supremacy Clause in Article VI, Clause 2 of the United States Constitution invalidates State laws that interfere with, or are contrary to the laws of the Congress. The doctrine does not withdraw from the States either the power to regulate what is merely a peripheral concern of federal law or the authority to legislate when Congress could have regulated a distinctive part of a subject which is peculiarly adapted to local regulation but did not. In case of a conflict, between a State law and a Federal law on a concurrent subject the former must yield to the latter38. An analogue of this rule is embodied in

Article 254 of our Constitution. After 1965, Congress has evinced an increasing tendency to pass such pre- emptive statutes relating to matters in this so-called concurrent sphere. Air Quality Act, 1967 and Pollution Control Amendments of 1972 are examples.

2.11.05 Former pre-emption apart, through the technique of conditional grants-in-aid, the Federal Government of the United States of America has immensely expanded its role and extended its activities to many fields which are traditionally the concern of the States and their local sub-divisions. After 1960, “the federal role has become bigger, broader and deeper-bigger within the federal system both in size of its inter-governmental outlays and in the number of grant programmes; broader in its programme and policy concerns... ...deeper in its regulatory thrust and pre-emptions” (ACIR Report). Today, the delivery of most governmental services in the United States has become inter-governmental in nature and most functional responsibilities from a practical stand-point, can no longer be described as exclusively of federal or state or local concern. The federal government is now playing an ever-increasing role in functional areas outside all those delegated to the Congress by Section 8 of Article 1. This is a major development. The broad interpretation placed by the Supreme Court of United States on the Commerce Clause, Police Power and General Welfare in its Constitution has had the effect of narrowing down the scope of legislative power of the States in various fields. Nonetheless, where diversity and not uniformity is needed and the matter is considered to be one of local or State concern, the States are conceded the power of legislation.

2.11.06 Sections 91 and 92 of the Constitution Act of Canada enumerate the Classes of Subjects within the exclusive competence of the Dominion and the Provinces, respectively. Section 95 places only two subjects viz., Immigration and Agriculture within the Concurrent legislative competence of the Dominion

and the Provinces. Subsequently, through an Amendment in 1951, Section 94A was inserted which brought 'old age pensions' within the overlapping jurisdiction of the Dominion and Provinces. A profound transformation has taken place in the institutions of government in response to a sequence of changing pressures. Judicial interpretation has also facilitated this change. Inter-governmental bargaining tend to take place among executives, to evolve complex agreements and tax transfer arrangements and on occasions confront legislatures with a fait accompli. The position has been succinctly summed up by the Royal Commission on Economic Union and Development prospects for Canada, (1985), thus:

“... The categories set out in those sections (SS 91, 92, 95 etc.) largely reflect mid- nineteenth-century attitudes towards governments; they bear little relation to the functions of the state today or to the concepts and terminology of policy decision. The area of de facto concurrent Federal- Provincial jurisdiction have multiplied far beyond the formally designated fields of immigration, agriculture and pensions ...”.

2.11.07 A persistent demand has been made in recent years to include many more subjects in the formally demarcated Concurrent field, with the object of ensuring coordination and cooperation between the two levels of governments over a much larger area of inter-governmental functions.

Australia

2.11.08 The Australian Constitution does not specifically provide for a concurrent field. But it impliedly recognises it. Section 51 of its Constitution Act enumerates the legislative powers of the Common-wealth parliament under 39 heads. There is nothing in the wording of Section 51 which makes the matters enumerated therein as subjects of exclusive legislative power of Commonwealth. It has been held in the light of Section 107 that with respect to matters enumerated in Section 51, the State Legislatures also may legislate on these subjects if considered necessary for the Government of the States. Thus, a fairly large concurrent field has come into existence in Australia. The power of the States to legislate in regard to Concurrent matters is subject to the rule of Federal paramountcy contained in Section 109 of the Australian Constitution. Article 254 of the Indian Constitution lays down a similar principle.

West Germany

2.11.09 The West German Constitution also provides for a substantial field of concurrent jurisdiction. 2.11.10 Even in the United States of America and Australia whose constitutions did not specifically provide for a Concurrent List, a large area of inter-governmental cooperation, concurrent jurisdiction and shared responsibilities has emerged. The existence of a sphere of concurrent jurisdiction is not only desirable but inevitable. Due to the inexorable pressure and inter-play of various factors—social, economic, technological, demographic, ecological and egalitarian—the role of the National Government in all dual systems is expanding. The Constitutional line dividing the domains of the national and the State Governments has become increasingly blurred. Areas of common concern to the nation as a whole are bound to grow with social, economic and technological developments. The primary goal of both levels of government is the welfare of the people. The sine qua non of progress towards that goal is inter- governmental cooperation, consultation and coordination between the two levels of government in all areas of common concern or concurrent jurisdiction. Elimination of all areas of concurrent jurisdiction through a constitutional amendment will only incapacitate the body politic in striving towards this goal. Considered from this aspect, the demand for abolition of the Concurrent List would be a retrograde step. Furthermore, abolition of the Concurrent List would involve a drastic change in the fundamental scheme and framework of the Constitution, which, under our Terms of Reference, we are imperatively required not to disregard. For all these reasons, it is not possible to support the demand for abolition of the Concurrent List.

12. DEMAND FOR CONSULATION WITH STATES BEFORE UNDERTAKING LEGISLATION