Constitution of India
Article 328: Power of Legislature of a State to make provision with respect to elections to such Legislature
Part XV — Elections
Article 328 (single, undivided article — no sub-clauses)
WHAT IT SAYS: State Legislatures may, from time to time, make laws on all matters relating to elections to the State Legislature — including preparation of electoral rolls and all other matters necessary for due constitution of the House(s) — subject to the Constitution and only insofar as Parliament has not already legislated on that matter. WHAT IT MEANS: 1. State legislatures have residuary power to legislate on state election matters. 2. This power is SUBORDINATE to (a) the Constitution itself, and (b) any law Parliament makes under Article 327. 3. If Parliament has covered a subject (e.g., via Representation of the People Act, 1950/1951), the State cannot legislate inconsistently. 4. The State can fill gaps left by Parliament in election-related matters. 5. Scope includes: electoral rolls, election conduct, qualifications for voting, and all matters necessary to constitute the House(s). KEY DOCTRINE: 1. Parliamentary Supremacy in Electoral Legislation — Parliament's law under Art. 327 overrides State law under Art. 328 (Article 254 repugnancy principle applies). 2. Residuary Power Doctrine — State Legislature acts only where Parliament has not occupied the field. 3. Part XV as a Self-Contained Code — Articles 324–329 together form a complete electoral code (N.P. Ponnuswami, 1952).
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 291 Original provision: Section 291 dealt with powers of Provincial Legislatures to make provisions for elections and delimitation of constituencies. What India kept: The basic concept of empowering sub-national legislatures to legislate on their own elections. 2. Canadian Election Act (referenced in debates) Original provision: Dominion Parliament enacted its own election act governing federal elections. What India kept: The principle that a central law takes precedence, with state/provincial legislatures filling residuary gaps. INDIA'S SPECIFIC ADAPTATIONS: 1. Parliamentary supremacy clause ('in so far as provision in that behalf is not made by Parliament') — Added by Ambedkar's amendment to ensure uniformity and avoid Centre-State friction on electoral laws. 2. Centralized Election Commission (Article 324) overseeing even State elections — Unlike Canada/UK where federal and provincial election authorities are completely separate. 3. Removal of delimitation power from State Legislatures — Original Draft Article 291 included delimitation; the final Article 328 removed it, vesting that power solely in Parliament/Delimitation Commission.
Constituent Assembly Debate
DEBATED ON: 15–16 June 1949 (CAD Volume VIII) Draft Article Number: 291 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Drafting Committee Chairman) — Moved two key amendments: (a) State Legislature to legislate only where Parliament has not, and (b) adding preparation of electoral rolls and other necessary matters to the scope. 2. Pandit Thakur Das Bhargava (East Punjab) — Opposed residuary powers for State Legislatures; argued either Parliament should make the law or there should be no authority at all. 3. Shri M. Ananthasayanam Ayyangar (Madras) — Supported Ambedkar's amendment; argued State Legislatures must retain power to fill gaps Parliament leaves, since election administration was already heavily centralised. MAJOR DISAGREEMENTS: 1. Centre vs. State control — Pandit Bhargava feared that concurrent powers could create 'friction or tension between the Parliament and the State Legislature.' Ambedkar clarified that State power was purely residuary. 2. Delimitation power — The original Draft Article 291 gave States the power to delimit constituencies. Ambedkar's amendment removed this, reserving delimitation for Parliament. FINAL OUTCOME: Both of Ambedkar's amendments were accepted without formal division; the amended Draft Article 291 was adopted on 16 June 1949, becoming Article 328. AMBEDKAR'S KEY CLARIFICATION: The State Legislature would only have residuary powers — it could only make provisions on matters that the Parliament had failed to make provisions on.
Landmark Judgments
LANDMARK JUDGMENTS: 1. N.P. Ponnuswami v. Returning Officer, Namakkal (1952) — Part XV (Arts. 324–329) is a self-contained code; Articles 327 and 328 deal with law-making for elections, Article 324 with executive conduct, and Article 329 with dispute resolution. Article 328 is complementary to Article 327. 2. Kanhiya Lal Omar v. R.K. Trivedi (1985) — State Legislatures may legislate under Article 328 read with Entry 37 of List II; the Election Commission's powers under Art. 324(1) are subject to laws made under Arts. 327 and 328. 3. Mohinder Singh Gill v. Chief Election Commissioner (1978) — Where Parliament has legislated under Art. 327, the Election Commission cannot override such law; similarly laws under Art. 328 bind the Commission in State election matters. 4. Kuldip Nayar v. Union of India (2006) — Upheld Parliament's supremacy under Art. 327 over Art. 328; validated RP (Amendment) Act, 2003 introducing open ballot in Rajya Sabha elections. 5. A.C. Jose v. Sivan Pillai (1984) — Election Commission has no power outside statutory provisions made under Arts. 327/328; its powers supplement but do not supplant the law. NOTABLE DISSENTS: None specifically recorded on Article 328 interpretation in the above landmark cases. SCHOLARS & JURISTS: 1. Justice V.R. Krishna Iyer (in Mohinder Singh Gill) — Described Articles 327–328 as fulfilling the first requisite of election machinery: a set of laws governing elections. 2. Justice Fazl Ali (in N.P. Ponnuswami) — Held Article 328 is 'a complementary article giving power to the State Legislature' parallel to Parliament's power under Article 327.