legislative power and competence exercised by a legislature must be within the limits circumscribed by the Constitution.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 2357 of 2017
Government of NCT of Delhi Appellant
Versus
Union of India Respondent
2
J U D G M E N T
Dr. Dhananjaya Y Chandrachud, CJI

The phrase “Subject to the provisions of this Constitution” is not unique to Article 239AA. It has been used in twenty-two provisions of the Constitution. Notably, the phrase has also been used in the provisions dealing with the 16 See Justice Chandrachud’s opinion in the 2018 Constitution Bench PART G 48 legislative power of Parliament and the State Assemblies (Article 245)17 as well as in the provisions dealing with the executive power of the Union (Article 73(2))18 and of the States (Article 162(3))19. The phrase is used to indicate that the legislative power and competence exercised by a legislature must be within the limits circumscribed by the Constitution. Those boundaries may differ on a case to case basis. For instance, a law made by a legislature cannot violate the fundamental rights of citizens. Another instance is that Parliament can only enact laws on subjects within its legislative competence. Furthermore, any law made by Parliament or a State Legislature shall be subject to the power of judicial review under Article 32 or Article 226. A Constitution Bench of this Court in the case of Rajendra Diwan v. Pradeep Kumar Ranibala20 held: “Parliament and the State Legislatures derive their power to make laws from Article 245(1) of the Constitution of India and such power is subject to and/or limited by the provisions of the Constitution. While Parliament can make law for the whole or any part of the territory of India, the State Legislature can only make laws for the State or any part thereof, subject to the restrictions in the Constitution of India… While Parliament has exclusive power Under Article 246(1) of the Constitution to make laws with respect to the matters enumerated in the Union List, the State Legislature has exclusive power to make laws with respect to matters enumerated in the State List, subject to Clauses (1) and (2) of Article 246. Along with the Union Legislature, the State Legislature is also competent to enact laws in respect of the 17 245. Extent of laws made by Parliament and by the Legislatures of States - (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. […] 18 73. Extent of executive power of the Union - (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend – […]. 19 162. Extent of executive power of State - Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: […] 20 [2019] 17 SCR 1089 PART G 49 matters enumerated in the Concurrent List, subject to the provisions of Article 246(1)… While the widest amplitude should be given to the language used in one entry, every attempt has to be made to harmonize its contents with those of other Entries, so that the latter may not be rendered nugatory.” (emphasis supplied) The judgment indicates that the law-making power of even Parliament and State legislatures under Article 245(1) is not absolute. It has to be within the confines of the Constitution. DD Basu, in the Commentary on the Constitution of India discusses the constitutional limitations upon legislative power:21 “As the opening words of Art. 245(1) say, the legislative powers of both the Union and State Legislatures are subject to the other provisions of the Constitution, even though their powers are plenary within the spheres assigned to them respectively by the Constitution… Whether a law has transgressed any of these limitations is to be ascertained by the Court and if it is found so to transgress, the Court will declare the law to be void. These limitations fall under various categories: I. The first and foremost is the question of vires or legislative competence… II. Apart from want of legislative competence, a law may be invalid because of contravention of some positive limitation imposed by the Constitution. In such cases, even though the Legislature had the competence to make a law with respect to the subject-matter of the impugned law, it became invalid because of contravention of some specific prohibition or limitation imposed by the Constitution. Such limitations fall under two heads- (i) The Fundamental Rights contained in Part III. The effects of the contravention of a Fundamental Right have been fully discussed under Art. 13. 21 Dr DD Basu, Commentary on the Constitution of India, 8th Edn., 2012, Vol. 8, pp. 8749-8753 PART G 50 […] (ii) Not merely the provisions included in Part III, but any other provision contained in the Constitution (even though it does not confer any fundamental right) constitutes a limitation upon legislative power on two conditions: (a) That the provision in question is justiciable, that is to say, intended to be and capable of being judicially enforced. (b) That the provision is mandatory, e.g., Arts. 255: 286, 301, 303-4. III. In the case of State legislation, there are further limitations, viz., that (a) its operation cannot extend beyond the boundaries of the State, in the absence of a territorial nexus; Another limitation on the legislative power or a ground of unconstitutionality is that the Legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution and has made an excessive delegation of that power to some other body. (b) it must be for the purposes of the State.” The same meaning as referred above has to be applied to the usage of the phrase “Subject to the provisions of this Constitution” in Article 239AA.