Constitutional manoeuvres of separatist forces:

Need for Central Government Control Constitution of India

From the report presented by the author at the national seminar held on May 4 at the BMICH in Colombo organised by the World Alliance for Peace in Sri Lanka

Primacy of laws made by Parliament over state legislation in respect of matters in the concurrent list

The Constitution of India provides in Article 254 that laws made by Parliament with regard to any of the subjects enumerated in the concurrent list would supersede the laws made by a State legislature.

Article 254 (1) of the Indian Constitution states “if any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact or to any provision of any existing law with respect to one of the matters enumerated in the concurrence list, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the legislature of the state shall, to the extent of the repugnancy, be void.”

Sub clause (2) of the said Article provides that, “where a law made by the legislature of a State with respect of the one of the matter enumerated in the concurrent list contains any provisions repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such state shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the legislature of the State.”

Constitution of Sri Lanka

When enacting any law/statue by Parliament by any Provincial Council with regard to any matter set out in the concurrent list either body should consult the other, before the same is enacted.

Article 154 G (5) (a) and (b) of our constitution brought in by the 13th Amendment provides that,

(5) (a) Parliament may make by laws with respect to any matter set out in List III of the Ninth Schedule (hereinafter referred to as ‘the concurrent list’) after such consultation with all Provincial Councils as Parliament may consider appropriate in the circumstances of each case.

(b) Every Provincial Council may subject to the provisions of the Constitution make statues applicable to the province for which it is established with respect to any matter on the concurrent list after such consultation with Parliament may as it may consider appropriate in the circumstances of each case.

In Sri Lanka whether a law enacted by Parliament in respect of a matter in the concurrent list supersedes a statute made by a Provincial Council on the same matter depends on whether the law made by Parliament is an existing law or a subsequent law. The relevant provisions are Articles 154 G (6) and (9). The said Articles are reproduced below.

(6) if any provision of any statute made by a Provincial Council is inconsistent with the provision of any law made in accordance with the preceding provisions of this article the provisional of such law shall prevail and the provisions of such statute shall to the extent of such inconsistency be void.

(9) where there is a law with respect to a matter on the concurrent list on the date on which this chapter comes into force and Provincial Council establish for a province subsequently make a statute on the same matter inconsistent with that law, the provisions of that law shall, unless Parliament by resolution, decides to the contrary, remain suspended and be in operative within that province, with effect from the date on which that statue receives assent and so long only as that statute is in force.”

Thus if a statute enacted by a Provincial Council is inconsistent with a subsequent law enacted by Parliament after consulting the Provincial Council in accordance with Article 154 G (5), then the law made by Parliament shall prevail. In other words, all laws of Parliament made after the enactment of the 13th amendment shall prevail over statutes made by a Provincial Council.

However, if a Provincial Council makes a statute in respect of a matter in the concurrent list, when there is a law made by Parliament already in existence, then the law made by Parliament will be inoperative unless the Parliament decides by resolution to the contrary.

A comparison of the provisions in the Indian Constitution (Article 254) and our Constitution (Article 154 G (5) (6) and (9) will reveal that our law is much weaker than the corresponding Indian provisions, for the reason that in India a law made by Parliament on any subject in the concurrent list would ipso facto supersede a statute enacted by a State whether passed before or after the law.

But in Lanka, a subsequent statute enacted by the State legislature which is contrary to an existing law passed by Parliament would be operative, until the Parliament by resolution decides to the contrary.

It is very unlikely that our Parliament would be so vigilant to identify inconsistencies of Provincial Council Statutes with Laws made by Parliament and pass a resolution to nullify such inconsistencies. In practice the statute so passed will remain over the laws passed by Parliament.

Laws made by Parliament on subjects in provincial list

Article 154 G (2) and (3) of the Constitution as introduced by the 13th amendment provides that, any law to amend or repeal the 9th schedule to the Constitution (which contains the 3 lists, provincial, reserved and concurrent) or any law with regard to any matter in the Provincial list had to be passed by 2/3 of the majority of the Members of Parliament unless the Provincial Council agrees to such law being enacted.

Where there is an existing law with respect to any matter on the Provincial Council list, and a Provincial Council subsequently makes a statute on the same matter, then the provisions of the law will remain suspended and be inoperative within that province. Article is 154 G (8) is reproduced below:

154 G (8) Where there is a law with respect to any matter on the Provincial Council list in force on the date on which this chapter come into force, and a Provincial Council established for a Province subsequently makes a statue on the same matter and which is described in its long title as being inconsistent with that Law, then, the provisions of the law shall, with effect from the date of which that statute receives assent and so long only as that statute is in force, remain suspended and be inoperative within that Province.

In the South African law there is sufficient freedom for the National Legislature to override provincial legislation in appropriate circumstances. In this regard, Article 44 (2), 146 to 148 are reproduced below.

44. National legislative authority

1. The national legislative authority as vested in Parliament

a. confers on the National Assembly the power

i. to amend the Constitution;

ii. to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and

iii. to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and

b. confers on the National Council of Provinces the power

i. to participate in amending the Constitution in accordance with section 74;

ii. to pass, in accordance with Section 76, legislation with regard to any matter within a functional area listed in Schedule 4 and any other matter required by the Constitution to be passed in accordance with Section 76; and

iii. to consider, in accordance with Section 75, any other legislation passed by the National Assembly.

2. Parliament may intervene, by passing legislation in accordance with section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary

a. to maintain national security;

b. to maintain economic unity;

c. to maintain essential national standards;

d. to establish minimum standards required for the rendering of services; or

e. to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.

146. Conflicts between national and provincial legislation

3. National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that

a. is prejudicial to the economic, health or security interests of another province or the country as a whole; or

b. impedes the implementation of national economic policy.

147. Other conflicts

1. If there is a conflict between national legislation and a provision of a Provincial Constitution with regard to

a. a matter concerning which this Constitution specifically requires or envisages the enactment of national legislation, the national legislation prevails over the affected provision of the Provincial Constitution;

b. national legislative intervention in terms of section 44(2), the national legislation prevails over the provision of the Provincial Constitution; or

c. a matter within a functional area listed in Schedule 4, Section 146 applies as if the affected provision of the Provincial Constitution were Provincial legislation referred to in that section.

2. National legislation referred to in Section 44(2) prevails over Provincial legislation in respect of matters within the functional areas listed in Schedule 5.

148. Conflicts that cannot be resolved

If a dispute concerning a conflict cannot be resolved by a court, the national legislation prevails over the Provincial legislation or Provincial Constitution.

Central government control over use of executive power by provinces/states

Constitution of India

Article 162 of the Constitution of India provides that, “Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws:

Provided that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subjects to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.

Article 73(1) of the Constitution of India provides,

“(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend -

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause

(a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matter with respect to which the Legislature of the State has also power to make laws.”

The said Article 256 provides that “the executive power of every state shall be so exercised as to ensure compliance with the laws made by Parliament and existing laws which apply in that State, and the executive power of the union shall extend to the giving of such directions to a State as may appear to government of India to be necessary for that purpose.”

Article 257(1) provides that “the executive power of every State shall be so exercise as not to impede or prejudice the exercise of the executive power of the union, and the executive power of the union shall extend to the giving of such directions to a State as may appear to the government of India to be necessary for that purpose. Subsection

(2) of the said articles provides that “the executive power of the union shall also extent to the giving of directions to a state as to the construction and maintenance of means of communication declared in the directions to be of national or military importance.”

In India the extent of executive power that can be exercised by a State in respect of any subject enumerated in the concurrent list is subject to and limited by the provision of the Constitution and any law made by Parliament.

Therefore even when the State legislature has enacted legislation on a subject in the concurrent list, the enforcement mechanism of such a law is subject to central government control.

To be continued