Constitution of India
Article 248: Residuary powers of legislation
Part XI — Relations between the Union and the States (Chapter I — Legislative Relations, Distribution of Legislative Powers)
Clause (1)
WHAT IT SAYS: Subject to Article 246A, Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. WHAT IT MEANS: If a subject is not found in List II (State) or List III (Concurrent) of the Seventh Schedule, only Parliament — not State Legislatures — can legislate on it. However, after the 101st Amendment (2016), this power is subject to Article 246A (GST). KEY DOCTRINE: Doctrine of Residuary Powers — ensures no legislative vacuum exists for unforeseen subjects; the Centre is the residual repository of legislative power.
Clause (2)
WHAT IT SAYS: Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists. WHAT IT MEANS: Parliament's residuary power explicitly includes fiscal matters — it can impose entirely new categories of taxes not found in any of the three Lists. KEY DOCTRINE: Residuary Taxing Power — taxation is separated from general legislation and independently vested in Parliament to avoid any doubt about fiscal competence over novel taxes.
Constitutional Inspiration
SOURCE(S): 1. Canada — Constitution Act, 1867, Section 91 (Peace, Order, and Good Government clause) Original provision: Federal Parliament may legislate on all matters not exclusively assigned to Provincial Legislatures. What India kept: The core idea of vesting residuary powers in the Central/Union legislature rather than the States. 2. Government of India Act, 1935 Original provision: Three-list scheme (Federal, Provincial, Concurrent) with residuary powers vested in the Governor-General, not clearly assigned to any legislature. What India kept: The three-list enumeration system via the Seventh Schedule, but explicitly assigned residuary power to Parliament. INDIA'S SPECIFIC ADAPTATIONS: 1. Explicit constitutional text — Unlike Canada's broad POGG clause, India created a specific Article (248) + a specific Entry (97, List I) to remove all ambiguity about where residuary power lies. 2. Inclusion of taxing power — Clause (2) separately and expressly grants residuary taxing power to Parliament, avoiding the Canadian experience where POGG's scope on taxation remained judicially contested. 3. Strong Centre bias — Unlike the US (where residuary powers go to States via the 10th Amendment), India chose to follow the Canadian model due to post-Partition concerns about unity, integrity, and potential secessionist tendencies. 4. GST exception (2016) — The 101st Amendment added 'Subject to Article 246A' to Clause (1), carving out GST as a concurrent subject — a uniquely Indian adaptation with no foreign parallel.
Constituent Assembly Debate
DEBATED ON: 13 June 1949 (CAD Volume VIII) DRAFT ARTICLE: Draft Article 223 KEY SPEAKERS: 1. Mr. President (Dr. Rajendra Prasad) — Noted several amendments (Nos. 2754 to 2759) had been tabled to this article. 2. Shri T.T. Krishnamachari — Suggested grouping related articles for efficiency; the Drafting Committee did not consider some predecessor articles necessary. 3. Prof. Shibban Lal Saksena — Urged that the article should not pass without discussion, citing Alladi Krishnaswami Ayyar's dissent note on the distribution of powers scheme. MAJOR DISAGREEMENTS: 1. Distribution of residuary power — Alladi Krishnaswami Ayyar had filed a note of dissent (Appendix, Draft Constitution pp. 212-213) proposing an alternative scheme for distributing legislative powers between Centre and States. 2. Amendments Nos. 2754–2759 were tabled but none were moved — suggesting broad consensus on vesting residuary power with the Centre. FINAL OUTCOME: Draft Article 223 was adopted without amendment; all proposed amendments were not pressed, and the article was added to the Constitution as adopted. AMBEDKAR'S KEY POSITION: Dr. Ambedkar acknowledged that the initial proposition was to vest residuary powers with the States, but this idea was abandoned after Partition due to the need for a strong Centre to preserve national unity and integrity.
Landmark Judgments
LANDMARK JUDGMENTS: 1. K.C. Gajapati Narayan Deo v. State of Orissa (1953) — Parliament's residuary powers are broad and include all subjects not enumerated elsewhere, reaffirming Union supremacy in legislative matters. 2. I.C. Golaknath v. State of Punjab (1967) — Held that Article 248 read with Entry 97, List I granted Parliament the power to amend the Constitution, while Article 368 only prescribed the procedure (later modified by 24th Amendment and Kesavananda Bharati). 3. Union of India v. H.S. Dhillon (1972) — When a subject cannot be located in any of the three Lists, Parliament's competence under Article 248 automatically applies; residuary taxation power under Clause (2) is integral to this authority. 4. State of West Bengal v. Kesoram Industries Ltd. (2004) — Reaffirmed that residuary powers vest exclusively with Parliament; if the State lacks legislative competence, it is not permissible to uphold a State Act by giving a broader meaning to State List entries. 5. Attorney General for India v. Amratlal Prajivandas (1994) — If a statute is not relatable to any entry in List II, no further inquiry needed — Parliament is competent either through List I/III entries or through residuary power under Article 248 read with Entry 97. 6. Naga People's Movement of Human Rights v. Union of India (1998) — Parliament was competent to enact the Armed Forces (Special Powers) Act under Entry 2, List I and Article 248 read with Entry 97. NOTABLE DISSENTS: 1. Justice Khanna in H.S. Dhillon (1972) — Cautioned that residuary power should not be used to encroach on subjects deliberately excluded from Parliament's domain (e.g., agricultural land exempted from wealth tax Entry 86). SCHOLARS & JURISTS: 1. H.M. Seervai — If a subject was 'prominently present to the minds of the framers' and expressly denied to Parliament, it cannot be located in residuary power; residuary power is a gap-filler, not an overriding head. 2. M.P. Jain — Article 248 reflects the framers' conscious choice to create a 'holding-together' federation with a strong Centre, departing from the US model of a 'coming-together' federation. 3. D.D. Basu — Entry 97 of List I and Article 248 together constitute the 'ultimate head of power' in the Union, ensuring no legislative vacuum in the constitutional scheme.