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Anand Prakash Saxena   16 February 2019

Article 252

This is a question about article 252 if the Indian Constitution Clause 2

If an act passed under this article is adopted by a state legistature, can the state legislature subsequently or later on de-notify/ repeal it in the legislative assembly. Can an executive order by the government of the state denotify it or remove it from the statute book of the state.

Thanks

Anand



Learning

 1 Replies

Palak batra   19 February 2022

Dear Querist,

 

Article 252(2) of the Indian constitution states that, ‘Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.’ 

 

The subsequent amending or repealing Act is applicable only to those States that passed the resolution in the first instance or later adopted it by resolution. The amending or repealing Act does not apply ipso facto to all States to which the original Central Act applied. Therefore, unlike the American Constitution, the Indian Constitution expressly provides for redistribution powers if two or more States feel the necessity for the same and resolve accordingly.

 

It has been apprehended that India could be transformed into a unitary state if a State legislature 'transfers' all of its legislative subjects to the Centre through the Article 252 mechanism, This would be particularly likely if the political party at the Centre is also in power in the States," The only defense to this would be for the courts to step in and term it unconstitutional being an affront to federalism which is a part of the 'basic structure' of the Indian Constitution. 

 

Article 252 should not provide for a permanent change in federal legislative powers without the process of constitutional amendment envisaged in Article 368. At the same time, if the powers transferred to the Centre could be prematurely recalled by the States, the interest of an effective common legislation would not be served. A balance needs to be struck between these two positions. Therefore, the transfer should be for a fixed period of time after which the subject matters would revert back to the State List. 6 If the States desire the continuance of the Central Act, they should pass the required resolution calling for the continuance, before the recall happens.

 

Regards,

Palak


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