Transfer of subjects to the Concurrent List

Topic: Federalism and Centre-State Relations · NCERT: Beyond NCERT

Meaning

Transfer of subjects to the Concurrent List means taking a subject out of the State List (List II), where only the states can make laws, and putting it in the Concurrent List (List III), where both Parliament and the states can make laws. The main example is the 42nd Amendment (1976). It moved five subjects: education, forests, protection of wild animals and birds, weights and measures (except setting standards), and administration of justice (the setting up and organisation of courts other than the Supreme Court and High Courts).

It matters because each transfer gives the Union a say in an area that once belonged only to the states. This reduces state autonomy (the states' freedom to decide for themselves).

Explanation

How a transfer works

• The Seventh Schedule holds three lists. It decides which subjects belong only to the Union, which belong only to the states, and which are shared [1].
• Art. 246(3): a state legislature has exclusive power over the State List [1].
• Art. 246(2): Parliament and the states both have power over the Concurrent List [1].
• So when a subject moves from List II to List III:
• The state keeps its power to make laws on it.
• Parliament gains the power to make laws on it too.

• If the two laws clash, the Union law usually wins (Art. 254).

• The lists are part of the Constitution, so a subject can move only through a constitutional amendment.

What the 42nd Amendment (1976) moved

It was passed during the Emergency.

Subject	Old State List entry	New Concurrent List entry
Education	11 (deleted)	Merged into entry 25
Administration of justice (courts other than the Supreme Court and High Courts)	Part of entry 3	11A
Forests	19 (deleted)	17A
Protection of wild animals and birds	20 (deleted)	17B
Weights and measures (except setting standards)	29 (deleted)	33A

• Not a transfer, but added at the same time: population control and family planning became a new Concurrent subject (entry 20A). It was never in the State List.
• Effect on the size of the lists:
• The State List lost 4 whole entries (11, 19, 20, 29). Entry 3 lost only part of its content.
• The Concurrent List grew from 47 to 52 entries: 11A, 17A, 17B, 20A and 33A.
• Education got no new entry. It was merged into the existing entry 25.

Limits and consequences

• Only partial transfers in two cases:
• Only the organisation of lower courts moved. The Supreme Court and High Courts were not part of the move.

• Only weights and measures other than setting standards moved.

• Repugnancy (Art. 254): when a Union law and a state law on a concurrent subject clash, the Union law normally wins.

• A state law can still win in that state if it was reserved for the President's assent and got it.

• Parliament can later override even that state law.

• One-way direction: subjects have always moved from the states to the Union or Concurrent List, never the other way.

In the Constitution and practice

• Where it sits:
• Part XI, Chapter I (Arts. 245–255) divides law-making power.
• Art. 246 sets out each level's subjects [1].
• The Seventh Schedule holds the three lists [1].

• Art. 254 settles clashes on concurrent subjects.

• Background: the Concurrent List idea came from Australia. India kept the three-list design of the Government of India Act 1935 (Federal, Provincial and Concurrent lists).

• The 42nd Amendment (1976) is the key instance. It moved five State subjects and added population control and family planning.
• Education in practice:
• Education is now concurrent (entry 25).

• So Parliament could pass the Right to Education (RTE) Act 2009, which applies across India.

• Forests and wildlife: entries 17A and 17B let the Union make national laws on forests and on wild animals and birds.

• Why it is debated: NCERT Class 11 asks whether the system leans towards the centre. The one-way flow of subjects feeds the states' complaint that it does.
• The other direction, from the courts (2024): some judgments have read State List entries broadly.
• Mineral Area Development Authority v. SAIL (25 July 2024, 8:1): royalty is not a tax. States can tax mineral rights under State List entry 50 [2].
• State of U.P. v. Lalta Prasad Vaish and Sons (23 October 2024, 8:1): State List entry 8 ("intoxicating liquors") covers industrial alcohol [3][4].
• These rulings protect state subjects. The 42nd Amendment narrowed them.

Don't confuse with

• Art. 249 (Parliament making laws on a State subject in the national interest): here the subject stays in the State List. Parliament gets a temporary power after a Rajya Sabha resolution. A transfer is permanent and needs a constitutional amendment.
• Residuary power (Art. 248 + Union List entry 97): this covers subjects that are in none of the three lists, such as cyber laws. These go to Parliament alone. A transferred subject is named in List III and is shared.
• Repugnancy (Art. 254): this is the rule for settling a clash between laws on a concurrent subject. It is not about moving subjects. Transfer decides who can make laws. Art. 254 decides whose law wins.
• Art. 246A (GST, 101st Amendment, 2016): this gives Parliament and the states a shared taxing power over goods and services. It is a separate article. No subject was moved into List III.

Prelims Hooks

• 42nd Amendment (1976) moved five subjects from List II to List III: education, forests, weights and measures, protection of wild animals and birds, administration of justice.
• Trap: agriculture, police and public health were NOT moved. They are still State List subjects (entries 14, 2 and 6).
• Population control and family planning (entry 20A) was a new addition, not a transfer from the State List.
• The Concurrent List grew from 47 to 52 entries after the 42nd Amendment (11A, 17A, 17B, 20A, 33A). Education was merged into entry 25.
• Entry matches: forests → 17A; wild animals and birds → 17B; administration of justice → 11A; weights and measures → 33A.
• Art. 246(2): Parliament and the states both have power over List III [1]. The Concurrent List idea came from Australia.

Mains Points

• Centralisation versus national uniformity:
• The transfers were made during the Emergency, and they have only ever gone one way. Both facts support the view of a "federation with a strong centre".
• In favour: national laws such as the RTE Act 2009 give the same standards across India.

• A balanced answer weighs this uniformity against the states' need to suit local conditions.

• Concurrent subjects need cooperative federalism:

• On shared subjects such as education and forests, Union laws can override state laws under Art. 254.

• So reform debates ask for prior consultation with states before Parliament makes a law on a concurrent subject.

• Should some subjects go back to the states?

• Some argue that subjects such as education should return to the State List.
• The 2024 judgments (MADA, Lalta Prasad Vaish) show the courts reading State List entries broadly [2][4]. This supports a regular review of the Seventh Schedule.

Related concepts

• Seventh Schedule
• Union List
• State List
• Concurrent List
• Residuary powers
• 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