PART III—ARTICLES 247, 249 AND 252 Article

2.24.01 The power to provide for the administration of a law is necessarily incidental to the power to make laws relating to the subject. In consonance with this principle, Article 247 empowers Parliament to establish additional courts for the better administration of Union laws relating to any matter in List I only.

2.24.02 One State Government has objected that “Article 247 is so wide that it enables Parliament to establish additional courts for the exercise of normal civil and criminal jurisdiction also during the peaceful time... as such observance of due process of law is also the responsibility of the States, this provision may be omitted”. Another State Government has objected to the establishment of additional courts on the ground that these courts are a departure from the normal judicial structure envisaged by the Constitution where the same Courts administer all laws whether made by Parliament or the State Legislature. There should be no justification for setting up such courts in normal non-Emergency times. These objections possibly stem from a misapprehension of the scope of Article 247. The Article does not enable Parliament to establish courts for the administration of Union laws with respect to a matter in the Concurrent List. Administration of State laws whether they relate to matters in List II or List III are outside its purview. The

Article thus does not in any way derogate from the powers assigned to the States by the constitution. We, therefore, find no substance in these objections.

25. ARTICLE 249

2.25.01 Article 249 is an exception to Article 246(3). Clause (1) of the Article authorises Parliament to make law on a matter enumerated in the State List, if the Council of States (Rajya Sabha) by not less than two-third majority of the members present and voting, resolves that it is necessary or expedient in the national interest so to legislate. Clause (2) provides that such a resolution shall remain in force for a period

not exceeding one year as may be specified therein. The proviso to this clause enables the continuance in force of the resolution, if and so often a resolution approving the continuance is passed in the manner prescribed by clause (1). The life of the temporary statute extends for a period of six months after the resolution has ceased to be in force.

Effect of the Use of Article 249

2.25.02 When Parliament assumes power under this Article, the subject-matter of the Parliament legislation, in a sense, stands temporarily transferred to the Concurrent List and the exercise of the power of the State Legislatures in regard to that matter becomes subject to the rule of inconsistency laid down in Article 251.

Issue Raised

2.25.03 Four State Governments specifically, and one more State Government indirectly, have asked for deletion of Article 249. Two of them have suggested, in the alternative, that Articles 249 and 252 should be so amended that the Union Government powers to legislate on items in the State List do not exceed a period of six months each proposed legislation must first be approved by the Inter-State Council. Political parties supporting these State Governments, have also made a similar demand. One Regional Party has also made a similar demand. Some experts and public-men who appeared before the Commission, have also suggested the deletion of this Article. On the other hand, most State Governments and political parties do not find fault with the provisions of Article 249.

2.25.04 The main arguments advanced for deletion of Article 249 are : that it short-circuits the amending process prescribed in Article 368 and enables only one House of the Union Legislature to unilaterally transfer a subject from the State List to the Concurrent List. The two-thirds majority of members present and voting in the Council of States (Rajya Sabha) may not necessarily reflect the consent of the majority of the States through their representatives. The initial life of the statute, though limited to one year, may be prolonged indefinitely through successive resolutions of the Rajya Sabha and a better alternative is available in Article 252(1).

2.25.05 We have carefully considered the arguments for deletion or amendment of Article 249. These stem from fears about the possible misuse of this power. These fears have no empirical basis. The evidence before us shows that the Article has been availed of very sparingly to meet abnormal situations.

2.25.06 Article 249 was first invoked in August, 1950 “for the effective control of black-marketing”, when in pursuance of the resolution, dated August 8, 1950 of the “Rajya Sabha”, (See Foot Note 56—under paragraph 2.26.17), Parliament enacted the Essential Supplies (Temporary Powers) Amendment Act, 1950 and the Supply and Price of Goods Act, 1950. Again, in 1951, pursuant to another resolution of the “Rajya Sabha” under this Article, Parliament passed the Evacuee Interest (Separation) Act, 1951, applicable to all evacuee property including agricultural land. This Act was enacted to resolve an unusual problem relating to rehabilitation and settlement of displaced persons from Pakistan.

2.25.07 After 1951, for a period of about 35 years, this Article remained dormant. Thereafter, it was resorted to recently in August, 1986. On August 13, 1986, the council of States with the requisite two-thirds majority resolved that it was necesary in the national interest that Parliament should for a period of one year from 12th August 1986, make laws with respect to the matters comprised in six Entries in the State List, namely, Entries Nos. 1 (Public Order), 2 (Police), 4 (Prisons....), 64 (Offences against laws with respect to matters in the State List), 65 (Jurisdiction and Powers of all courts, except the Supreme Court,

with respect to matters in List II) and 66 (Fees in respect of any of the matters in List II, but not including fees taken in any court). The reasons and objects for invoking this provision, as indicated in the preamble of the Resolution, were :

“Whereas the situation in Punjab and other areas in the north-west borders of India has become extremely grave due to infiltration from across the north-western borders and unabated terrorist activities in the border areas,...”

2.25.08 No legislation, in pursuance of the resolution, dated August 13, 1986, of the Rajya Sabha was

passed by Parliament.

2.25.09 There are three in-built safeguards against the misuse of the power conferred by this Article. The first is that Parliament can assume jurisdiction only when two-thirds of the members of the Rajya Sabha present and voting pass a resolution to that effect. Secondly, the resolution is required to specify the matter enumerated in the State List, with respect to which Parliament is being authorised to legislate in the national interest. Some Entries in List II comprise a cluster of several matters. It is, therefore, open to the Rajya Sabha to limit the resolution specifically with respect to any one of those matters (which may even be a particular aspect of a matter) in an Entry. Thirdly, a resolution passed under clause (1) of the Article remains in force for a period not exceeding one year as may be specified therein unless extended for a further period not exceeding one year by a fresh resolution. A law passed in pursuance of clause (1) ceases to have effect on the expiry of six months after the resolution has ceased to be in force. It is true that these safeguards are not fool-proof. But the basic fact that, in any case, the power is to be exercised by Parliament which consists of the representatives of the people from all the States, is itself a guarantee against its misuse. There is not allegation that, when this power was exercised in 1950-51 to pass the aforsaid temporary statutes, it worked to the disadvantage of the States or the interests of their people. In the recent case, power was conferred on Parliament to legislate with respect to certain matters in the State List to meet a situation on the north-western border, which, according to the Rajya Sabha resolution under Article 249, was “extremely grave”.

2.25.10 The Article provides a simple and speedy method for effective handling, at the national level, or urgent problems of an extraordinary nature which temporarily assume national significance. The Article may also be availed of in a situation in which speed is the essence of the matter, and invocation of the Emergency Provisions in Article 352 and 356 is not considered necessary or expedient. Compared with Article 249, the procedure provided in Article 252 is very cumbersome, and time-consuming. It cannot, therefore, be reasonably said that Article 252 provides an equally efficacious or a better alternative to Article 249. On the basis of evidence before us, therefore, it is not possible to say that this extra-ordinary power has been misused. It has been exercised with due restraint in extraordinary situations for temporary periods which have not been indefinitely extended by successive resolutions.

2.25.11 We do not favour the suggestion that, in addition to the requisite resolution of Rajya Sabha, the prior approval of the Inter-Governmental Council should also be a condition for authorising Parliament to legislate on a matter in the State List. In our view, it would operate as a clog on the speedy and effective use of the Article in extraordinary situations, requiring urgent action.

2.25.12 For these reasons, we cannot support the suggestion for deletion or amendment of the provisions of Article 249.

26. ROLE OF THE COUNCIL OF STATES (RAJYA SABHA) IN RELATION TO ARTICLE 249