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The Doctrine of Residuary Powers

The Constitution of India assigns residuary powers of legislation exclusively to Parliament. Article 248 and Entry 97 of the Union List give Parliament the exclusive power to legislate on any matter not covered by the State List or Concurrent List. While the three lists aim to cover all possible subjects, it is possible some matters were not contemplated. In such cases, Parliament can legislate using its residuary powers. However, residuary powers are intended as a last resort, not the first step in legislation. The judiciary plays an important role in determining if a matter falls under Parliament's residuary powers.

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Dharshani Selvi
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89 views2 pages

The Doctrine of Residuary Powers

The Constitution of India assigns residuary powers of legislation exclusively to Parliament. Article 248 and Entry 97 of the Union List give Parliament the exclusive power to legislate on any matter not covered by the State List or Concurrent List. While the three lists aim to cover all possible subjects, it is possible some matters were not contemplated. In such cases, Parliament can legislate using its residuary powers. However, residuary powers are intended as a last resort, not the first step in legislation. The judiciary plays an important role in determining if a matter falls under Parliament's residuary powers.

Uploaded by

Dharshani Selvi
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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THE DOCTRINE OF RESIDUARY POWERS

INTRODUCTION

The framers of the Constitution had placed matters of national concern in the Union
List and those of purely State or local significance in the State List. Matters that are
of common interest to the States and the Union were placed in the Concurrent List,
in order to ensure uniformity in legislation with due regard to the country’s diversity.

Parliament and the State legislatures have exclusive powers to legislate on items in
the Union List and the State List respectively. Both can legislate on items in the
Concurrent List. However, foreseeing the possibility of a situation in which legislation
might be required on matters that are not mentioned in any of the three Lists, the
Founding Fathers made residuary provisions in Article 248 of the Constitution and
Entry 97 of the Union List. The residuary powers of legislation are vested in
Parliament.

Article 248(2) of the Constitution of India says that the Parliament has exclusive
power to make any law with respect to any matter not enumerated in list II and III.
Such power shall include the power of making any law imposing a tax not mentioned
in either of those lists.

The entry 97 of Union List also lays down that parliament has exclusive power to
make laws with respect to any matter not enumerated in list II or III.

Thus, Article 248 and Entry 97 of the Union List of Constitution of India assign the
residuary powers of legislation exclusively to the Union. 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. In other words, the scope and extent of Article
248 is identified with that of entry 97, list I.

But the scope of the residuary powers is restricted. This is because the three lists viz.
Union, State and Concurrent cover all possible subjects. Then, the court can also
decide whether a subject matter falls under the residuary power or not. The
rationale behind the residual power is to enable the parliament to legislate on any
subject, which has escaped the scrutiny of the house, and the subject which is not
recognizable at present. But, the framers of constitution intended that recourse to
residuary powers should be the last resort, and not the first step.
The distribution of powers is an essential feature of federalism. The object for which
a federal state is formed involves a division of authority between the National
Government and separate states. The Constitution of India adopts a threefold
distribution of the subjects of legislative power between the Parliament and State
legislature by placing them in any one of the three Lists, namely, Union List, State List
and Concurrent List. With the advancement of society, expanding horizons of
scientific and technical language and probe into the mystery of creation, it is possible
that every imaginable head of legislation with human comprehension and within
foreseeable future could not be within the contemplation of the Constitution-makers
and was therefore, not specifically enumerated in one or the other of the three lists.
Complex modern governmental administration in a federal setup providing for
distribution of legislative powers coupled with the power of judicial review may rise
such a situation that a subject of legislation may not squarely fall in any specific entry
in the tree Lists. In such a situation Parliament would have the power to legislate on
the subject in the exercise of residuary powers under Article 248 and under Article
246(1) read with Entry 97 of List I.

Article 248 vests the residuary powers in the parliament. It says that parliament has
exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or the State List. Entry 97 in the Union List also lay down that
Parliament has exclusive power to make laws with respect to any matter not
mentioned in the State List or the Concurrent List including any tax not mentioned in
either of these Lists. Thus the Indian Constitution makes a departure from the
practice prevalent in U.S.A., Switzerland and Australia where residuary powers are
vested in the states. This reflects the leanings of the Constitution-makes towards a
strong Centre.

Judiciary (being the interpreter of constitution) has a very important role to play in
deciding the residuary powers. It has been left to the courts to determine finally as to
whether a particular matter falls under the residuary, power or not. It may be noted,
however, that since the three lists attempt an exhaustive enumeration of all possible
subjects of legislation, and courts generally have interpreted the sphere of the
powers to be enumerated in a liberal way.

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