The Constitution of India
Article 328
Power of Legislature of a State to make provision with respect to elections to such Legislature
Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
Why this exists
India's Constitution sets up a shared system for running elections: Parliament can make overarching election laws for the whole country (under Article 327), while States are given a backup or supplementary power under Article 328 to legislate on election matters for their own legislatures, but only in the gaps Parliament leaves open. This ensures uniformity where needed (like using the Election Commission and common electoral roll principles) while still allowing States some flexibility over State-specific election administration.
How courts read it
Courts have generally read Article 328 as clearly subordinate to Parliament's power under Article 327. Once Parliament legislates on a subject (such as through the Representation of the People Act, 1950 and 1951), State laws on the same subject become inoperative to the extent of conflict. Judicial decisions have reinforced that this article gives States only a residual, gap-filling power, not an independent or overriding one.
Common misconceptions
- Myth: States have full, independent control over how their Assembly elections are run.
Fact: Their power is limited — Parliament's election laws take priority, and States can only legislate where Parliament has left a gap.