Political Philosophy
By Consent and Adoption: The Five Routes Into the State List, and the Only One a State Cannot Leave
16 October 2026 · 22 min read
The State List is usually described as a protected field. Article 246(3) gives the Legislature of a State exclusive power over the matters in List II of the Seventh Schedule, and the word "exclusive" is taken to mean that Parliament is shut out unless something unusual has happened. The provisions that let Parliament in are then introduced as exceptions, and arranged by the gravity of the occasion that triggers them — a national emergency at one end, a resolution of the Council of States at the other.
That arrangement describes the entrances accurately and tells one nothing about the exits. A law made under any of these provisions is still a law, and the question that decides how much of the State's exclusive power has actually been displaced is not how Parliament got in but how long it stays and who can remove what it leaves behind. Read for that, Chapter I of Part XI produces an order that reverses the familiar one. The routes that need no State's consent at all are the routes whose laws lapse automatically. The route that requires the consent of the State's own Legislature produces an Act the State can never repeal.
What exclusivity means in Article 246
The baseline has to be stated carefully, because it is already qualified on its face.
Article 245(1) fixes the territorial reach: "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."
Article 246 then distributes subjects. Clause (1): "Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List')." Clause (2) gives Parliament and the State Legislatures concurrent power over List III, Parliament's position there being expressly "subject to clause (1)". Clause (3) reads: "Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List')."
The three exclusivities are not of the same strength. Parliament's exclusivity over List I is introduced by a non obstante clause that subordinates both other clauses to it. The State's exclusivity over List II is introduced by the words "Subject to clauses (1) and (2)", which subordinate it to both the others. The word "exclusive" is the same in clause (1) and clause (3); the grammar around it is opposite. Before any of the provisions discussed below is reached, the State's exclusive power is the only one of the three that the article itself ranks last.
Clause (4) adds a further reservation that is territorial rather than federal: "Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List." This is not an incursion into any State's field, since it operates only where there is no State. It is worth noting only because it shows the drafter stating an exception in the plainest possible way when that was the intention.
Route one: a resolution of the Council of States
Article 249(1) opens: "Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to goods and services tax provided under article 246A or any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force." The reference to goods and services tax was inserted by the Constitution (One Hundred and First Amendment) Act, 2016, with effect from 16 September 2016.
Three features of the trigger are worth separating.
The declaring body is the Council of States alone. The House of the People has no part in it. The Chamber that represents the States in the Union legislature decides that a State subject should be legislated on by Parliament, and no State Legislature is asked anything.
The standard is "necessary or expedient in the national interest", and the resolution must specify the matter. Nothing in the clause requires the resolution to state reasons, or to identify which States are concerned, or to be confined to the territory where the need arises — Parliament may then legislate "for the whole or any part of the territory of India".
The majority is two-thirds of the members present and voting, with no floor beyond the general quorum. That is a fraction raised above the Article 100(1) default without any change to the denominator.
The exit is where the clause becomes interesting. Clause (2) provides that the resolution "shall remain in force for such period not exceeding one year as may be specified therein", with a proviso permitting renewal, "if and so often as" a further resolution is passed in the same manner, for one year at a time. Clause (3) then deals with the law: "A law made by Parliament which Parliament would not but for the passing of a resolution under clause (1) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period."
The law does not need to be repealed. It ends on its own, and it ends only "to the extent of the incompetency" — whatever in it Parliament could have enacted anyway survives, because the clause is addressed to the part of the law that rests on the resolution. Nobody has to act for the State's field to be restored. Parliament must act, repeatedly, for it to stay open.
Route two: a Proclamation of Emergency
Article 250(1) reads: "Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to goods and services tax provided under article 246A or any of the matters enumerated in the State List."
The non obstante clause is wider than the one in Article 249. Article 249(1) overrides "the foregoing provisions of this Chapter"; Article 250(1) overrides "this Chapter", which on its face reaches the provisions that follow it as well. Whether the wider formula does any work is a separate question, and the Chapter as drafted suggests it does not: Article 251, the provision that would otherwise be the obvious candidate for being overridden, opens by naming both articles together — "Nothing in articles 249 and 250" — and so applies to Article 250 by its own terms rather than in spite of it. The difference between the two openings is visible on the page and has no visible consequence in the Chapter.
Everything else about Route Two is lighter than Route One. There is no resolution, no majority, no specification of the matter, and no statement of necessity; the power is conferred by the existence of the Proclamation and extends to the whole List. The only discipline is the one attached to the Proclamation itself by Article 352, including the requirements of parliamentary approval and periodic continuance in that article.
And the exit is the same. Clause (2): "A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period."
Two provisions with very different thresholds therefore end in identical words. The six-month tail is measured from the end of the trigger in each case, and in each case the Union law disappears without anyone repealing it.
What Article 251 restores, and for which routes
Immediately after the two of them sits the provision that explains why the lapse is clean.
Article 251: "Nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative."
Three things follow from the wording, and the third is the one that matters here.
First, the State's own legislative power is untouched while the Union law stands. The State may legislate on the same matter throughout; Article 251 says so in terms.
Second, the State law is not void. The word is "inoperative". Article 254(1), dealing with the Concurrent List, uses "void" for the corresponding situation, and the two words sit three articles apart in the same Chapter.
Third, the suspension is expressly temporary: "but so long only as the law made by Parliament continues to have effect". When the Union law lapses under Article 249(3) or Article 250(2), the State law it displaced becomes operative again, by force of Article 251 and without re-enactment.
Article 251 names Article 249 and Article 250 and nothing else. It does not mention Article 252 or Article 253, and nothing elsewhere performs the same office for them. For those routes there is no revival rule, because there is nothing for a revival rule to do: neither law lapses.
Route three: the consent of the States themselves
Article 252 is the only route a State can open, and the only one it cannot close.
Clause (1): "If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State."
The consent is the most complete in the Chapter. Two or more States must each resolve, and in a bicameral State the resolution must pass "all the Houses" — the Legislative Council included. A State that stayed out may come in later by adopting the Act, again through each House. No majority above the ordinary one is prescribed, so Article 189(1) governs and the resolution carries on a majority of those present and voting; but the decision is the State Legislature's own, taken in its own Chamber, about its own field.
The clause has no non obstante opening. Article 249, Article 250 and Article 253 each begin by overriding something. Article 252 does not override Article 246(3); it proceeds by consent, and what it produces is a law that the States asked for.
Clause (2) then settles its durability: "Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State."
There is no time limit anywhere in the article. There is no lapse clause, no sunset, and no provision for a State to withdraw its resolution. The Act continues until Parliament ends it, and Parliament may end it only "in like manner" — words that point back to the machinery of clause (1), the resolutions and the adoptions, as the route by which an amending or repealing Act must also come. And the State is barred by name from amending or repealing the Act as it applies to that State.
So the position of a State after Route Three is this. It has given up, on the matter covered, the exclusive power Article 246(3) gave it, for as long as the Act applies. It cannot take that power back by legislating, because clause (2) forbids it. It cannot take it back by rescinding its resolution, because the article provides no such step. The only route out is the one that required the agreement of other States to enter, and it requires their agreement again to leave.
Set that beside Routes One and Two. There, the State was never asked, and the Union law ends by itself. Here, the State asked, and the Union law does not end at all.
Route four: an international agreement
Article 253: "Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."
This is the shortest of the five provisions and the least conditioned. There is no resolution of any House, no consent of any State, no Proclamation, no majority above the ordinary, no specification of the matter, no time limit and no lapse. The only condition is the purpose: the law must be for implementing one of the instruments described.
The description is wide. It covers a treaty, an agreement or a convention with any other country or countries, and then extends past the category of agreements altogether to "any decision made at any international conference, association or other body". The clause does not require that India be a party to the body, that the decision be binding, or that Parliament have approved the instrument being implemented.
What Article 253 adds is narrower than it first appears, and the Seventh Schedule shows what. Entry 14 of the Union List is "Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries", and Entry 13 is "Participation in international conferences, associations and other bodies and implementing of decisions made thereat". The two limbs of Article 253 correspond to those two entries. Parliament therefore already has exclusive power to implement treaties and international decisions, by Article 246(1) alone; and Article 73(1)(a) extends the executive power of the Union to "the matters with respect to which Parliament has power to make laws", while Article 73(1)(b) extends it to "the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement".
Article 253 is not, then, the source of the power to implement. It is the provision that lets the implementation reach into List II. Everything the article does is done by its opening words, and what those words remove is the State’s exclusivity — at the instance of an instrument the State had no part in making and that the Union legislature need not have approved.
Nothing in the Chapter limits how much of the State List a law under Article 253 may occupy, and nothing provides for what happens to it afterwards. A law validly made under Article 253 is a law Parliament was competent to make; it stands until Parliament repeals it.
There is a drafting detail here worth recording, because it shows that the four provisions of the Chapter were not drafted as a single family. Article 252(1) defines its own field as "any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250". The definition names two of the other routes and omits the third. Article 253 sits in the next article but one, and carries no amendment footnote in the consolidated compilation, so the omission is not the residue of a later insertion. The field available to Route Three is simply described without reference to it.
Route five: a law made while the State has no Legislature
The fifth route is outside Chapter I of Part XI, and it is the one in which a State subject is legislated on by an authority the State did not choose, at a time when the State has no legislature to object.
Article 356(1) permits the President, on being satisfied "that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution", to issue a Proclamation, and sub-clause (b) permits him by that Proclamation to "declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament". Sub-clause (a), which permits the President to assume the functions of the State Government, expressly excepts "the Legislature of the State" from the bodies whose powers he may take; the legislative power is dealt with separately, and it is handed to Parliament.
Article 357(1) then provides the machinery. Where such a declaration has been made, it is competent "(a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf". Parliament may therefore pass the State's legislative power to the President, who may pass it on again.
Article 357(2), in the form substituted by the Constitution (Forty-second Amendment) Act, 1976 with effect from 3 January 1977, governs what survives: "Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority."
The opening words follow Articles 249(3) and 250(2) almost exactly — the same device of identifying the law by the incompetence it cures. The ending is the opposite. There, the law ceases on the expiration of six months. Here, it continues in force indefinitely.
But the continuation is expressly defeasible, and defeasible by the State. The law continues "until altered or repealed or amended by a competent Legislature or other authority", and on the ordinary distribution in Article 246(3) the competent Legislature for a State List matter, once the Proclamation has ceased and the State Legislature is functioning again, is that Legislature. On that reading a law made for the State by Parliament or by the President, while the State had no legislature of its own, is a law the restored State Legislature may repeal in the ordinary way. The displacement is permanent in duration and conditional in authority.
The two scales do not line up
Setting the five routes against each other, two orderings emerge, and they run in opposite directions.
By the weight of what must happen before Parliament may legislate, the order is: Article 253 (nothing beyond a treaty or an international decision, which the executive makes), Article 250 (a Proclamation of Emergency), Article 356 with Article 357 (the President's satisfaction that the State's government cannot be carried on constitutionally), Article 249 (a two-thirds resolution of the Council of States), Article 252 (resolutions of all the Houses of two or more State Legislatures).
By how long the resulting law lasts and who can end it, the order is: Articles 249 and 250 (automatic lapse six months after the trigger ends, with the displaced State law revived by Article 251), Article 357 (indefinite, but repealable by the State's own Legislature), Article 253 (indefinite, repealable by Parliament alone), Article 252 (indefinite, repealable by Parliament alone and only through the same machinery of State resolutions, and expressly not repealable by the State).
The two orderings are close to inverses. The route at the top of the consent scale is at the bottom of the exit scale. The routes at the bottom of the consent scale are the only two that expire by their own terms. And the route taken when the State has no functioning legislature at all leaves behind the one body of Union-made State law that the State itself can undo.
There is a reading on which this is coherent rather than perverse. Articles 249 and 250 are emergency and near-emergency powers exercised over a State's objection or without consulting it, and a power of that kind is confined in time because nothing else confines it. Article 252 is a voluntary pooling: its whole purpose is to produce one law across several States, and a law that any participating State could repeal for itself would not be that. Article 357 restores legislative power to the State the moment the Proclamation ends, and leaves the interim laws in force only so that administration is not interrupted; permitting the restored Legislature to repeal them is the natural corollary. Each rule, taken alone, fits its route.
What the Chapter does not contain is any statement of that reasoning, or any provision that makes the inversion visible. Article 251 would have been the place to put a general rule about what happens to the State's power after a Union incursion, and it covers two of the five routes. For the other three the answer has to be assembled from clause (2) of Article 252, from the silence of Article 253, and from a clause in Part XVIII.
What the Chapter declines to protect
Chapter I of Part XI closes on a provision that removes a further class of safeguard from the category of validity altogether.
Article 255: "No Act of Parliament or of the Legislature of a State, and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given, if assent to that Act was given — (a) where the recommendation required was that of the Governor, either by the Governor or by the President; (b) where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President; (c) where the recommendation or previous sanction required was that of the President, by the President."
The marginal heading states the effect: requirements as to recommendations and previous sanctions are "to be regarded as matters of procedure only". A requirement that the President recommend a Bill before it is introduced is, after Article 255, satisfied by his assent to the Act after it is passed. The condition survives as a direction to those who handle the Bill and ceases to be a condition of the statute's validity.
Article 255 is drafted in terms of recommendations and previous sanctions, and the resolutions under Articles 249 and 252 are neither. But it is the last word of a Chapter whose subject is the conditions on which one legislature may enter another's field, and what it says about the conditions it does cover is that failing them does not make the law bad.
What the design assumes
The ordinary account of Indian legislative federalism treats the State List as a defended perimeter with five gates, each of a different weight. The gates are there and the weights are real. What the ordinary account omits is that the Chapter spends far more care on entry than on return, and that the care is distributed in a pattern nobody would choose from first principles.
The Constitution attends closely to the end of the two incursions made under Articles 249 and 250. It says nothing at all about the end of the incursion a State invited, except to forbid the State from ending it. It attends to the revival of a State law displaced by an emergency and says nothing about the revival of a State law displaced by a treaty. And the only Union-made law over a State subject that the State's own Legislature is told it may repeal is the law made while that Legislature stood dissolved or suspended.
A State's exclusive power under Article 246(3), then, is better described not as a field with five exceptions but as a field with five different kinds of absence, three of which are indefinite and only one of which the State can bring to an end by itself. Which of them a State is in does not depend on how serious the occasion was. It depends on which provision was used.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.