Residuary powers

Also called: Article 248 · Topic: Federalism and Centre-State Relations · NCERT: Class 9, Ch 6 "Democracy"; Class 10, Ch 2 "Federalism"; Class 11, Ch 1 "Constitution: Why and How?"; Class 11, Ch 7 "Federalism"

Meaning

Residuary power is the power to make laws on any subject that is not named in the State List or the Concurrent List. Article 248 and Union List entry 97 give this power to Parliament, and it includes the power to levy any tax that is not named in those lists.

It matters because new subjects keep appearing that the framers could not foresee in 1950, such as cyber laws and computer software. Placing this power with the Union is one of the clearest signs that India is a federation with a strong centre.

Explanation

How it works

• The Constitution divides law-making subjects into three lists in the Seventh Schedule [2]:
• List I (Union List): only Parliament can make laws on these (Art. 246(1)) [2].
• List II (State List): only the state legislature can make laws on these (Art. 246(3)) [2].

• List III (Concurrent List): both can make laws on these (Art. 246(2)) [2].

• Some subjects fit none of these lists. For these, residuary power applies.

• Art. 248(1): Parliament has exclusive power (only Parliament, no one else) over any matter not listed in the State List or the Concurrent List.

• Union List entry 97 says the same thing again inside the Union List: "any other matter" not in List II or List III.

• What happens in practice: if a subject is in no list, the states cannot make laws on it. Only Parliament can.

Its two parts

• Residuary legislation: making ordinary laws on unlisted subjects.

• Examples: cyber laws (Class 11 NCERT) and computer software (Class 10 NCERT). Neither existed in 1950, so both go to Parliament.

• Residuary taxation: making laws that impose a tax not named in any list.

• Art. 248(2) says the residuary power includes the power to levy such a tax.
• So the Union, not the states, gets any new tax that the lists do not name.

Limits and conditions

• It is a last resort. Courts first try to fit a law into an existing entry.
• They use pith and substance (the court looks at the main purpose of a law to decide which list it belongs to).
• They also use harmonious construction (the court reads entries together so that every entry keeps some meaning).

• The court falls back on residuary power only when no entry fits.

• The GST exception: Art. 248 is now subject to Art. 246A, which was added by the 101st Amendment (2016).

• Under Art. 246A, Parliament and the states can both tax the supply of goods and services.
• Only Parliament can tax supply between states (inter-state supply).

• So Parliament cannot use residuary power to claim the whole of GST for itself.

• The states lose nothing they already have. Residuary power covers only subjects that are missing from the lists. It cannot take away a subject that is clearly in the State List.

In the Constitution and practice

• Where it sits:
• Part XI, Chapter I (Arts. 245–255) covers how law-making power is divided.

• The power itself is in Art. 248 and Union List entry 97 in the Seventh Schedule.

• Roots:

• The Government of India Act 1935 had three lists: Federal, Provincial and Concurrent.
• Under that Act, residuary power was given to the Governor-General, not to either list.

• The Constitution kept the three-list design but gave residuary power to Parliament.

• Where India borrowed from:

Federation	Who holds residuary power	Concurrent List
India	Union (Art. 248)	Yes (List III)
Canada	Centre	Limited
USA	States	No formal list
Australia	States	Yes (India borrowed the idea from here)

• Who uses it: Parliament. It uses this power when a new field of activity appears that the 1950 lists did not foresee, for example cyber laws and computer software.
• How it fits the larger design: three features together tilt power towards the Union:
• Art. 246(1) opens with "notwithstanding" clauses (2) and (3). So the Union List wins where the lists overlap [2].
• Residuary power lies with the Union (Art. 248).

• Subjects have moved only one way, from the states towards the Union or the Concurrent List. An example is the 42nd Amendment (1976).

• The other side: courts often read State List entries widely. When a subject fits a State List entry, it never reaches the residuary field.

• MADA v. SAIL (25 July 2024, 8:1): the power to tax mineral rights belongs to the states under State List entry 50. Royalty is not a tax [3].
• Lalta Prasad Vaish (23 October 2024, 8:1): "intoxicating liquors" in State List entry 8 includes industrial alcohol [4].

Don't confuse with

• Concurrent List (List III): both Parliament and the states can make laws on concurrent subjects. Residuary subjects belong to Parliament alone. India borrowed the Concurrent List from Australia but residuary power with the centre from Canada.
• Art. 246A (GST power): under Art. 246A, the Union and the states share the power to tax goods and services. Residuary taxation (Art. 248(2)) belongs only to the Union, and Art. 248 is now subject to Art. 246A.
• Union List supremacy (Art. 246(1)): this settles a clash between subjects that are listed (the Union List wins) [2]. Residuary power deals with subjects that are not listed at all.
• Repugnancy (Art. 254): this settles a clash between a Union law and a state law on a Concurrent subject. It has nothing to do with unlisted subjects.

Prelims Hooks

• Art. 248 + Union List entry 97 give residuary power to Parliament. This power includes taxation of matters not named in any list (Art. 248(2)).
• Source trap: India took residuary power with the centre from Canada and the Concurrent List from Australia. In the USA and Australia, residuary power lies with the states.
• 1935 Act vs Constitution: under the Government of India Act 1935, residuary power was with the Governor-General. Under the Constitution, it is with Parliament.
• NCERT examples: cyber laws (Class 11) and computer software (Class 10) are residuary subjects.
• 101st Amendment (2016) added Art. 246A, and Art. 248 is now "subject to" it. Residuary power cannot override the shared GST power.
• "Which of the following lies with the states?" Residuary power does not. Agriculture, police and public order do (State List entries 14, 2 and 1).

Mains Points

• Strong centre by design:
• Residuary power with the Union, the Union List winning in overlaps, and the one-way shift of subjects (42nd Amendment, 1976) together make India a "federation with a strong centre".

• The framers chose this to protect national unity after Partition. A good answer balances that aim against the states' complaint that every new field goes to the Union by default.

• Technology makes the question bigger:

• Fields that did not exist in 1950 (cyber laws, computer software) fall to Parliament automatically. So the Union's share of power grows over time without any amendment.

• A reform option is a regular review of the Seventh Schedule, so that new subjects are placed in a list after consulting the states.

• The judiciary as a balance:

• Courts use residuary power only as a last resort. They first try to fit a law into a listed entry (pith and substance, harmonious construction).
• In 2024, the Supreme Court read State List entries broadly (MADA v. SAIL on mineral taxation [3]; Lalta Prasad Vaish on industrial alcohol [4]). This keeps contested fields with the states and supports fiscal federalism (the states' power to raise their own money).

Related concepts

• Seventh Schedule
• Union List
• State List
• Concurrent List
• Transfer of subjects to the Concurrent List
• Doctrine of pith and substance
• Doctrine of colourable legislation
• Doctrine of territorial nexus

Read more

• Distribution of legislative powers: the Seventh Schedule and its interpretation