The tryst between Forest and Constitution

 

“We all share one planet and are one humanity, there is no escaping this reality.”

-WangariMaathai

Many great forests had become footprint on the sands of times by the hands of humans. There is an urgent need to save the forest. To feel the urgency you need not go and see the live destruction of the forest. Just look around, maybe the thing on which you are sitting right now is made from forest wood. The laws related to the conservation of forests are not adequate to reach its objective.

If we go to the roots of legislations and policies regarding forest conservation in India, we can find laws back from the colonial period (i.e., Indian Forest Act, 1865, Forest Policy, 1894 and Indian Forest Act, 1927). Though, the intention of the lawmaker was for the betterment of the forest. But, in reality, there was rampant deforestation by the hands of Britishers for their selfish needs (e.g. wars, building Ships and railway). This made the Britishers the major reason for this sorry condition of our forest, sadly an independent India did little to stop the lush green forest areas from turning into a stretch of barren lands and cement jungles.

After independence, the Indian government came up with many new forest laws (i.e., Indian Forest Policy of Independent India, 1952, National Commission on Agriculture, Forest (Conservation) Act, 1980, National Forest Policy, 1988, Forest Right Act, 2006, National Forest Policy, 2018). But the effort for the implementation has not been as novel as the intention. Further, India amended (42^nd Constitutional Amendment Act, 1976) its constitution to comply with the principles laid down in the Stockholm Declarations (also known as Magna Carta of environmental law). This made India one of the first countries to implement provisions regarding the improvement of the environment in its constitution. Article 48A added “forest” as Entry 17A in the Concurrent List. In T.N. GodavarmanThirumulpad v. Union of India[1] said defining forest according to the Forest Conservation, 1980 would hamper the principle of sustainable development. Therefore, the Supreme Court used the dictionary meaning, which has a broader definition of “forest” and many forest trees were protected. Even with so many safeguards, the central and state government could not save the forests from the wrath of uncontrolled industrialization and illegal encroachment.

Constitutional Aspect

The 42^nd constitutional amendment gave birth to Article 48A and 51A (g) into the world of the Indian Constitution. This created a constitutional duty on both state [Article 48A] and citizen [Article 51A (g)] to protect and improve the natural resources and environment (i.e., forest, water, air, soil, etc.) of this country. Since Article 48A is within the ambit of the Directive Principle of State Policy, it is not enforceable in the court of law.[2] So, the court invokes Article 21 into Article 48A to nudge the state to implement environmental law as a fundamental right (i.e., the right to live in a clean environment). Many times, the apex court used article 21 like the gateway to enforcing environmental rights as an explicit right to a healthy environment. In Subash Kumar v. State of Bihar,[3] the Supreme Court directed to read Article 48A, 51A (g), 14 and 21 altogether.

In the landmark judgment of M.C. Mehta v. Kamal Nath,[4] the Supreme Court discussed the Public Trust Doctrine. This doctrine is a common law principle is based on principles of equity. Thus, by using this doctrine the Supreme Court brought justice to the whole society. The principle behind this doctrine is; society at large has a right to be equally benefitted from the forest lands and other natural resources. And the state, like a trustee, has a duty to protect every citizen’s right over. So, whenever, the state is not diligently doing its duty as a trustee, a public-spirited person or any social action group can file a writ of mandamus under Article 32[5] or 226[6] as public interest litigation. Thus, the Indian government held the forest lands like a trustee, and without prior approval, no private body can use the forest. If such restriction had not been there, then it would have deprived the whole public of many invaluable resources. But the Indian government has failed to protect the environment from the hands of Industries and encroachers.

Industrialization

The concept of public trust doctrine and trusteeship were reiterated while deciding an allotment of mining lease, in the case of Natural Resources Allocation. The court observed that this act of alienating natural resources for private exploitation was held to be arbitrary, hence, violating Article 14. It also defied Article 39(b) in this case, because this distribution of natural resources was not in the best sub serve of the common good. In consonance with the public trust doctrine, the Indian judiciary had delivered many noble judgments for the sustainable development of our environment.

With an objective of sustainable development of forests and other natural resources, the Supreme Court came up with “precautionary principle” and “polluter pays” in the case of Vellore Citizen’ Welfare Forum v. Union of India.[7]

This principle strengthens the stance of the judiciary against the industries that are engaged in the degradation of forest lands and other natural resources. This principle states:-

i.  The state government and the statutory bodies have to anticipate and prevent the destruction of the environment,

ii.    If there are “threats of serious and irreversible damage” to the environment, then the state government should not make the excuse of “lack of scientific certainty” to delay the prevention process of environmental damage, and

iii.  The industrialist has the duty to show that its action is not a threat to the environment.

Similarly, the polluter pays principle can be used to ensure that the industries responsible for the destruction of the forest shall be the one to restore it.[8] With these two principles, we can enhance the process of sustainable development of our forests from the treats of industrialization.

Unfortunately, even after developing environmental jurisprudence and creating green courts, the Indian forests have continued to pay a large price for industrialization. Specifically, mining and logger industries destroyed millions of forest trees. Such industries have to follow the Forest (Conversation) Act, 1980 to rehabilitate and afforest the used forest land.[9]Further, the compensatory afforestation of the damaged forest is not very effective, because the lost original forest cannot be replaced by an artificial forest.[10]As regards the degradation of forest land by the industrialization, many officials and experts have alleged the data showed by the government are just the tip of the iceberg.[11] In addition to this, there is another allegation that only 30% of data on compensatory afforestation is correct.

Urban Encroachment

In 2019, AkashVashishtha, an environmental lawyer, filed an RTI to know the forest area of India. When the government showed the figures, it was quite shocking. Only 21.54% of land is covered under forest area out of which 2% (13,000 sq. km) of the forest land has encroached. The encroachment may or may not be permanent, but once the forest land gets encroached it takes many years for a tree to grow at that place.

According to a UN report, by 2050, 416 million people will move to cities in India.[12] Most of the time migration is a compulsion, not an option to the most vulnerable social group to move from rural to urban in search of livelihood. Though the urbanization provides employment, opportunity, education, health care and business, however, it takes a toll on the environment. Almost all cities have a neighbouring eco-sensitive zone (i.e. Turahalli of Bengaluru, Mangarbani of New Delhi, Aarey of Mumbai,Manas Reserve Forest and Kaziranga Wildlife Sanctuaryof Guwahati). So, if there is an influx of people into the cities, it would increase pressure on the city’s settlement area. The uncontrolled increase in the urban population has magnified the demand of the forest land. Consequently, the forest becomes the ultimate supply for the unlimited demand for migrants.

Recently, while deciding a dispute regarding cutting a mango tree. The High Court of Bombay Bench at Goa, in VithalKamatSambari v. State of Goa, commented:

“A seed or a sapling believes it owns the earth, so it anchors itself with roots deep into the ground… man almost an alien to planet earth has invaded it, colonized it. As every colonizer does, he pounds, plunders and pillages it. So, man makes laws and the laws are human centric…”

While on the positive end there are also people who consider trees as their god and protecting trees is their religion.

The Sacred Forests and Their Protectors

New Delhi, home to 29 million, is the world’s 2^nd largest city in terms of population. Beside this Mega City lies MangarBani forest, which is a sacred forest to the local people. These people acted as an environmentalist to protect this forest. But time and again the forest got encroached. Although, the Supreme Court or NGT imposing penalty on these offenders. But these orders are not doing justice to the Forest, because there are numerous cases of re-encroachments by the same offender.[13]

Similarly to MangarBani, there are many such cases where the local people have acted as a protector and manager of the forest. These people are diligently doing their constitutional duty under Article 51A (g). Article 51A (g) focuses on the duty of the citizens to protect and improve the quality of the forest and other elements of nature. Any citizen who is filing a suit for protecting the forest is also doing its constitutional duty under this article. But the ratio of citizens who are doing the duty as a protector of nature is very low.  Moreover, the slow judicial process and lackadaisical work ethic of the forest department hijack the whole theory of conservation of forest. The forest department is reeling under a shortage of employees and this makes the forest products the easiest things to steal. It is very disheartening to see the government has left unguarded the most valuable thing of mankind. So, the legislature needs to revamp the obsolete forest laws and bring some stringent changes to prevent the degradation of forest lands.

---

[1]T.N. GodavarmanThirumulpad v. Union of India, AIR 2012 SC 1254.

[2]7 DDBasu, Commentary on the Constitution of India, in Part IV Directive Principles of State Policy:Article 48A 4 (9^th ed. 2014).

[3]Subash Kumar v. State of Bihar,AIR 1991 SC 420.

[4]M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.

[5]Id.

[6]Natureal Lover Movement v. State of Kerala &Ors, 2000, Ker HC 1784.

[7]Vellore Citizen’ Welfare Forum v. Union of India, AIR 1996 SC 2715.

[8]DD Basu, supra note, at 10.

[9]Mayank Aggarwal, Private sector gets go ahead for assisting rehabilitation of degraded forests, Mongabay(July 23, 2019). https://india.mongabay.com/2019/07/private-sector-gets-go-ahead-for-assisting-rehabilitation-of-degraded-forests/.

[10]Jayashree Nandi, Compensatory afforestation process overhauled, Hindustan Times (Jan. 3, 2020), https://www.hindustantimes.com/india-news/compensatory-afforestation-process-may-be-overhauled/story-0BPfVOz9RIe9XqBiJDh3iI.html.

[11]The Quint, Large Forest Cover lost to 23,716 Industrial Projects in India, (June 3, 2016), https://www.thequint.com/news/environment/large-forest-cover-lost-to-23716-industrial-projects-in-india.

[12] United Nations, 2018 Revision of World Urbanization Prospects, (May 16, 2018),https://www.un.org/development/desa/publications/2018-revision-of-world-urbanization-prospects.html.

[13]Shilpy Arora, Fresh Encroachment in MangarBani, The Times of India, (Mar. 27, 2018), https://timesofindia.indiatimes.com/city/gurgaon/fresh-encroachment-in-mangar-bani/articleshow/63472859.cms. 

(Sasthibrata Panda is a law student from Damodaram Sanjivayya National Law University, Visakhapatnam)

Read More

Constitutional Analysis of E.V. Chinnaiah v State of Andhra Pradesh

 

E.V. Chinnaiah v. State of AP and others[1] is a very crucial decision regarding the doctrine of pith and substance, where the Honourable Supreme Court of India interpreted the legislative competence of Andhra Pradesh to sub-classify the Schedule Castes mentioned in the Presidential order, under Article 341 of the Indian Constitution.

Justice Ramchandra Raju was constituted by the State of AP, in 1996, to look into the statistical data about the various castes, enlisted in the Presidential order, getting the benefits of reservation in educational and public employment. This commission concluded that there are wide disparities among several castes regarding socio-economic, occupational and educational factors. Accordingly, it recommended sub-categorisation of these castes into four broad groups to promote equity and equal opportunity of representation among the people from Schedule Castes.

In furtherance of these recommendations, the State Government issued a general order in 1997 for this sub-categorization, which was later substituted by Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000.[2] It was challenged in the High Court of Andhra Pradesh, where the Court ruled in favour of the Act, stating that there was no violation of Article 341. However, when the same question of constitutionality of the Act was addressed by the Supreme Court, the five Judge Bench constituting of N. Santosh Hegde gave judgment for himself and on behalf of S.N. Variava and B.P. Singh, S.K. Sema and S.B. Sinha, JJ, unanimously disagreed with the judgment given by the High Court of Andhra Pradesh and declared the act to be ultra vires of the constitution.[3]

This paper analyses the possible arguments that the Supreme Court should have considered when they ruled in the favour of the petitioner in this case. It has also been discussed how the Court neglected some of the important aspects, which directly affect the people belonging to these communities.

Analysis of the Judgment

The quasi federal nature of the division of powers between the Central and State government entitles the former to have more legislative authority and competence on several crucial issues, mentioned in the Constitution of India. In this particular case, it has been argued that the State government transcended their legislative powers by enacting and implementing the Andhra Pradesh Castes (Rationalisation of Reservation) Act, 2000, which is argued to be an infringement of Article 341 as the power to amend Presidential list of Schedule Castes, in any way, resides with President and Parliament. The only other power that the state is entitled with is to maintain efficiency in administration to ensure the appointments for people from Schedule Castes as mentioned in Article 335.[4] According to the Supreme Court judgment, the State had already been complying with 15% reservation policy for the Schedule Castes and hence, it was argued that they shouldn’t have allotted reservations for sub-categorized groups, who were already in the broad spectrum of existing reservation policy.[5] The rationale of the judges can be determined to be very similar with what was decided in Balaji v. State of Mysore,[6] where the Court discarded the plea for a distinction between Backward Classes and ‘more’ Backward Classes, which was giving additional reservation to the latter group apart from the existing reservation for Schedule Castes and Schedule Tribes because of the sole reason that Article 15(4) does not envisage the distinction between these two Classes.

However, according to the researcher, the rationale given by the Honourable judges of the Supreme Court was not a solitary textual interpretation of the Constitution and extended the true meaning of Article 341. One can find it intriguing that even though the Supreme Court accepts that certain sections of the Schedule Castes are more backward than others,[7] as their judgments were precisely based on whether the State has powers to amend the Presidential list, they completely discarded the idea to elevate these sections from the heterogeneous inequality they suffer within Schedule Castes. The prominent issue that the Court was concerned about is to determine whether the State government was competent to bring such Acts. The Doctrine of pith and substance was used by the judges to identify the scope of legislative actions of the State. The prime concern of the Supreme Court was to identify whether there was an infringement of Article 341 by the Andhra Pradesh government, which empowers the President to make amendments, after taking consultation from the Governor of that particular state, in the enlisted castes under Presidential order of Schedule Castes and Schedule Tribes. However, it is very ironic that the Court completely discarded the existence of Article 38 while determining the competency of the State for making provisions for sub-classification. This particular Article gives the States the authority to make provisions to secure the social order and promote the welfare of people. According to Article 38(2), it is the responsibility of the State to strive for minimizing inequality in incomes, which is not just limited to individuals, but also to groups of individuals. If not absolute authority, Article 38 vests some power with the State Government to decide on the policies that directly affect the public interests of that particular State. Without taking due consideration of Part IV of the Constitution, which mentions Direct Principles of State Policy, the Court ignored a vital portion of the Constitution that could have affected the Judgment, to some extent.

The ambit of Schedule Castes includes a number of castes and because of differences in cultural and socio-economic backgrounds, they are broadly termed as a Class in the context of Article 16(4). However, this doesn’t mean that there are no heterogeneous differences among these Castes. The OBC conglomeration into two categories, between less backward and more backward, in Indra Sawhney v. Union of India[8] can be considered as an appropriate case which makes provisions and reservation for a more economically backward class, who have been subjected to social hegemony. This case was not related to the position of SCs and STs and hence, in the Chinnaiah case it wasn’t dealt in detail. However, the judges could have juxtaposed the arguments in both the cases and a “casual” observation[9] could have been inferred as the dimension for both, Backward Classes and Schedule Castes remains the same. Languishing homogeneity of communities is a process of social mobility through education, job, access to political offices, etc.[10] This is a natural vertical movement towards social order to elevate oneself from socio-economic differences existing in society.

When this case was challenged in Andhra Pradesh High Court, the five judge bench upheld the constitutionality of the Act by a majority of 4:1. The majority reasoned that the conglomeration of different castes was done in order to help them transcend the parochial boundaries where there is no equal representation of a particular caste in the broader spectrum of Schedule Castes. The Court also gave the reasoning that the federal system makes the State competent, enough, to implement the matters regarding access to educational institutions or services in territorial boundaries of State and it was considered that it’s the decision of State to decide extent and manner of -preference to be given to the most backward Schedule Castes to assure the percolation of reservation benefits equitably. Hence, the Court concluded that the Act was in compliance with Article 338 and wasn’t in violation of Article 341(2) of the constitution. It’s not necessary to uphold the superiority of the Union government, especially when the State government’s provision reflects social justice. An ordinary citizen believes that federalism will maintain a sense of community and inter-relationship among the people and serve the importance of human needs if it is governed by the local government.[11] The Andhra Pradesh government tried to make some amendments taking cognisance of the above stated theory. However, it is clear that the Supreme Court directly rejected it.

One of the prime reasons behind the Court not considering the Act to be constitutional was because it was tinkering with the 15% reservation policy. After the division into sub-groups, these castes would not have been entitled with the whole 15% reservation policy as individual groups would be having their own percentage of reservation like Category A had 1%, Category B had 7%[12], etc. It is evident from the Ramchandra Raju Commission Report that the castes enlisted in the Presidential List are not operating homogeneously as the Mala and Adi Andhras are in a better position than Relli and Madiga castes as the former groups were having agriculture as their occupational background as compared to the latter groups, who were confined to being sweepers and scavengers, as their occupation.[13] As the former groups are relatively in a better position, they are benefitted more from reservation rather than the latter groups. This has led to form an anomaly in the understanding of reservation to Schedule Castes, because of the existing sub-classifications among these classes. To remove this socio-economic disparity among the Schedule Castes, the Court should have considered the idea of separate reservation for more backward groups. Considering heterogeneity among the Schedule Castes, it can be argued that micro-classification is not only justified but also necessary in the present social scenario.

In the similar lines of the rationale given in the Judgment by the High Court of Andhra Pradesh, one can argue that federalism has only complementary and not obstructive role in the context of human rights.[14] Under Entry 25 and Entry 41 of List III and List II, respectively, the State government has legislative authority to govern services and education in that particular State. Hence, it cannot be concluded that the actions of State were “unconstitutional”, as conveyed in the Judgment. The Seventh Schedule clearly entitles the State to make provisions regarding public services and education.

Before determining the validation of the impugned Act, by applying the doctrine of pith and substance, one needs to identify the meaning of the legislative order. After determining the meaning of the legislative order, one can simply identify the constitutionality of the said order.[15] According to the textual interpretation of Article 341, the powers possessed by the President are very much limited to inclusion and exclusion of castes and specify them in the Presidential List and the Union government does not have any executive or legislative authority beyond that. No particular caste has been included in or excluded from the Presidential List as the State government tried to make separate reservations for the people who were not getting equal representation within the spectrum of Schedule Castes. The judges gave opinion that there is no mention of sub-classification on Article 341 and hence, the impugned Act should get discarded.[16] It is evident that the judges’ interpretation of Article 341 is distorted, to some extent. The aforementioned Article gives very limited power to the Union government and specifically classifies the duties of the President regarding reservation policies. It can be argued that the legislative powers of the State which are much wider than Union government, regarding this issue.

Conclusion

With urbanisation, industrialisation and modernisation of society, some amendments should be made regarding the change in the reservation policies as it is evident that there are some castes in the State’s Schedule Castes list which are not getting benefits of reservation. The discretion given by the Court regarding the interpretation of Article 341 cannot be considered very apt, if limited one’s reasoning to the textual interpretation. The Supreme Court didn’t consider the prominence of Article 38, in which states are assigned with the duty to make provisions that can benefit the citizens and curb socio-economic inequality prevailing in the society. It’s in the discretion of the State, according to 15(4) and 16(4), to make provisions and reservations that might benefit socially backward classes. Hence, one can conclude that it is very arbitrary to say that the doctrine of pith and substance is accordingly used in this case.

Instead of supporting the statute, the Supreme Court discarded its applicability. This could have been a revolutionary statute, which could have opened the window for other states to think about their legislative policies regarding the same. It nowhere violated the existing criteria of reservation policy and just sub-divided the existing percentage into few groups, which can be termed necessary by taking cognizance of the scenario that not every deprived caste is able to benefit from the current reservation policy. This statement does not mean that the existing reservation policies are flawed and should be removed, but it just means that the step taken by the State of Andhra Pradesh was innovative and worth consideration. 

---

[1](2005) 1 SCC 375

[2]Ibid [2]

[3]P. Ishwara Bhat, ‘The Means and Limits of Rationalising Reservation: A Critical Comment on E.V. Chinnaiah v. State of Andhra Pradesh’ (2010) 

[4] Ibid (n 1) [19].

[5]M P Jain, Indian Constitutional Law (Wadhwa and Co, 5^th edn, 2004)

[6] 1963 AIR 649

[7]All Answers ltd, 'Reservation Issue on the Right to Equality' (Lawteacher.net, May 2020) <https://www.lawteacher.net/free-law-essays/constitutional-law/reservation-issue-on-the-right-to-equality-constitutional-law-essay.php?vref=1> accessed 11 May 2020

[8]1992 Supp (3) SCC 217. 

[9]Jain (n 5).

[10]Yogendra Singh, ‘Social Change in India: Crisis and Resilience’ [1993] Har-Anand Publications 146.

[11]Stephen Breyer, ‘Does Federalism Make a Difference?’ [1999] Public Law 651,  662

[12]Ibid (n 1) [2]

[13] Ishwara (n 3)

[14]P. Ishwara Bhat, ‘Fundamental Rights: A Study of their Interrelationship’ [2004] Eastern Law House 560-561.

[15]Sujit Choudhary, Madhav Khosla and Pratab Bhanu Mehta, The Oxford Handbook of the Indian Constitution (1^st edn, OUP, 2016)

[16]Ibid (n 1) [13]

(Anurag Tirpude is a law student from National Law School of India University) 

Read More

Critical analysis of the Doctrine of Occupied Field

 

A federal constitution generally provides for an elaborate scheme of division of legislative powers, done broadly in three lists. Two of them specify subject matters of exclusive legislative competence while the third list contains entries of concurrent jurisdiction. However, no drafting is made with such mathematical precision as to completely separate the entries of one list from another. Thus, overlapping of subjects and conflict between center and state legislations become inevitable. Indian federal structure is not immune to this problem either. To resolve such conflicts, Indian courts have either taken the recourse of doctrine of repugnancy as enunciated in Article 254 or the doctrine of occupied field. 

Academically, it has been claimed time and again that in application both these doctrines are as different as chalk and cheese. But there is ample literature which shows that in various jurisdictions, especially ones having no clear demarcation of lists, both these concepts have been used jointly, in fact as substitutes. Although the Indian landscape still stands by the difference theory, it is not hidden that in a practical sense ‘doctrine of occupied field’ has often been used as a subset of ‘test of repugnancy’ thus complicating the picture even more. 

To find out whether there is an actual line of differentiation between these two concepts in India, the author has tried to analyse the court’s action on this subject while also incorporating the academic view that exists in this regard. For arguing that the ‘doctrine of occupied’ field is not needed, the author has tried bringing forth the views that prevail in other federal states like the U.S.A. and Canada. 

Repugnancy vis-à-vis Doctrine of the occupied field: Theory

Test of repugnancy Federal supremacy or the test of repugnancy has been elucidated in Article 254 of the Indian Constitution. This rule gives superior preference to the laws made by the parliament with regards to list III. Article 254 (1) lays down that when the provisions of state law are repugnant or come in conflict with a parliamentary law which the parliament is competent to enact, or to any existing law on a subject matter falling within the concurrent list, then it is the parliamentary law that would prevail. The state law would be void to the extent of repugnancy and not on the whole. This law gives an over-riding effect to the parliamentary laws.[1] Application of federal supremacy creates an apprehension in the mind that a state’s power to legislate stands prejudiced. However, it is to be kept in mind that Article 254 (1) applies only to matters in List III and not list II. Thus, states’ exclusive powers are safe from encroachment. And even in matters relating to the concurrent list, Article 254(2) provides repugnant state laws if the President’s assent regarding such repugnancy[2] is received. 

A.    Controversy regarding concurrent and exclusive jurisdiction

Article 254(1) suggesting that repugnancy applies not only to matters contained in the concurrent list but also to matters that are the exclusive jurisdiction of state and center respectively. This deduction has been made on the ground that the words ‘concurrent list’ only qualifies the phrase ‘existing law’ and therefore the post constitution laws are qualified by the words ‘parliament is competent to enact’ giving it a wider interpretation. This would mean that if there ever arose a conflict between a state law falling in the state list and a central law falling in the union list then the central law would prevail. 

However judicial precedents have always negated this point.[3] This is because if laws are made on subject matters falling within either the state or union list, then it is their legislative competence that has to be questioned.[4] The doctrine of ultra vires would apply because by virtue of Article 246, list I and list II fall within the exclusive jurisdiction of center and state respectively and any encroachment would render the law thus made, void. There will arise no question of conflict but excessive use of legislative authority.

B.     Departure from the settled view 

Author M.P. Jain disagrees with the view that Article 254 (1) should have but limited application. The argument is justified based on the application of Article 253 where the parliament is allowed to legislate on a state matter to effectuate a treaty. The author argues that if parliament passes such a law then it would come in conflict with existing law. The parliamentary law shall no doubt prevail but that cannot happen without invoking a wider interpretation of section 254(1).[5]

Similarly, some judicial pronouncements have hinted at the application of repugnancy even on matters of exclusive jurisdiction. In the case of Hingir Rampur Coal Company v. State of Orissa,[6] the court went into the question of repugnancy of a state law made under Entry 23, List II with a Central law made under Entry 52, List I. Similarly, in the leading case of Srinivasa Raghavacharya v. State of Karnataka,[7] a state law legislated on a matter contained in the state list prohibited legal practitioners from appearing before land tribunals. This law was held repugnant to a Central law namely- Advocate’s Act, 1961 made by parliament under Entry 77 and 78 in List I. All these cases show that there is a possibility of applying repugnancy to matters forming part of exclusive legislative jurisdiction. 

The doctrine of occupied field

The doctrine of the occupied field comes into play when a central law intends to occupy the field. In other words, if the central law made on a subject contained in the concurrent list intends to be an exhaustive or complete Act, then it shows an intention of the center to occupy the entire field regarding that entry. The result is that the states are denuded of the power to legislate on that topic anymore. Such exclusion is effective even in the absence of real conflict or contradiction. The doctrine of occupied field saw an application in the leading case of State of Orissa v. MA Tulloch & Company.[8] In this case, the Orissa legislature enacted an act which levied subsidy on all extracted minerals with an aim to promote the development of the mining area. However, later the Parliament enacted the Mines and Minerals Act, 1957, with an objective to ensure conservation and development of the entire country’s mineral resources. The Supreme Court held that this objective clearly showed the center’s intention to cover the entire field of legislation related to mining and therefore, the Parliament made law would prevail over the state law.

A.    Occupied field merely a case of indirect conflict  

Test of repugnancy under Article 254 (1) is attracted when:

• Laws made under List I conflict with legislation made under List II.[9]
• When both central and state laws are made under the concurrent list overlap and conflict with each other.

Under the above-mentioned conditions, the state law which is repugnant to the provisions of the parliamentary law is declared void and non-operative. However, this can only happen if the court is fully satisfied that the laws are fully inconsistent and absolutely irreconcilable.[10] In a landmark judgment of the Australian high court,[11] the term inconsistency was explained to be something where one law takes away the right conferred by another. To illustrate this point further, the author would take recourse to the facts and findings of the Supreme Court in the case of Deep Chand v. State of Uttar Pradesh.[12] In this case, the U.P government had enacted a law in 1955 which authorized the government to frame a scheme of nationalisation of motor transport but later, the Motor Vehicles Act 1956 was amended by the parliament to create a uniform law. The court held that the Motor Vehicles Act would prevail over the U.P Act because both the statutes fell within the same field of legislation and differed from each other in important aspects, e.g.- the manner of objection, the authority to hear the objection, payment of compensation, etc. This can be termed as a case of direct conflict because it becomes fairly evident after a reading or two.

Article 254 (1) can also be invoked:

• If there is no overlapping or conflict but the Central legislation was intended to be exhaustive and to occupy the entire field.[13]

It was the Court’s view in MA Tulloch[14] case that when the field is occupied by a central law then the state law gets dismissed on the grounds of repugnancy. In other words, when the Parliament shows its intention to pre-empt a subject from state legislation, then any attempt on the part of the state to enact a law on that very subject would be considered a conflict and thus be superseded. This, then ultimately becomes a case of indirect conflict. And when we already have a mechanism to solve a conflict, then the need for another such doctrine becomes questionable. 

Why is the doctrine of occupied field undesirable?

This section critiques the use of occupied field and considers it an unnecessary addition to the already existing conflict resolution procedure in the form of the repugnancy test. Some of the reasons are enumerated below:

Defies the concept of shared sovereignty- Occupied field creates repugnance even in the absence of actual contradiction, that is to say when obedience to one law would not mean disobedience to another.[15] To attribute extreme weightage to Parliament’s intention to occupy a field and consequently restrict states’ competence to legislate on those matters would strike at the very aim of constitution framers behind creating a list of concurrent jurisdiction. It would move away from the ‘idealized conception of shared sovereignty in a federal system.’[16] If such a doctrine is used routinely and unscrupulously, it would become a tool in the hands of Parliament to pre-empt 

• States’ legislative authority as and when the center feels like it just to serve their political interest. This will tilt the balance in favor of parliament and consequently lead to centralization of legislative power.
• Practical application is difficult- To identify whether a central law has pre-empted state action in a field is a complex task in all federal countries around the world. Courts, generally undertake a two-fold step to determine this question- first, is to find out the intention of Centre to occupy that field and second is to identify the precise field on which further state legislation is denied.[17] Here, comes the main issue, i.e. determination of such intention. Federal intention to occupy a field can be gauzed if there is an explicit statement to that effect, which is rarely the case. As a result, there remains only one option and that is examining the entire Central law in question to establish if it is a complete and exhaustive code.[18] This again is an arduous task and a subjective matter of interpretation.  
• The doctrine is globally disapproved- Federal countries like U.S.A[19] and Canada[20] have in the recent past been hesitant to employ this rule of field pre-emption. Where Canada, on one hand, has progressively rejected the doctrine of occupying field,[21] U.S.A on the other hand has increasingly substituted this doctrine for ‘federal supremacy’. 

Canadian Supreme Court in its two leading cases reaffirmed their view regarding narrow interpretation of test of repugnancy or ‘paramountcy’ which requires ‘operational conflict or frustration of federal purpose’ to actually exist before invoking the paramountcy.[22] Canada applies this test to both exclusive and concurrent legislative jurisdictions. 

In the U.S.A, there is no clear demarcation of state or concurrent jurisdiction. Hence, the balance always tilts in favour of federal laws by invoking the doctrine of ‘federal supremacy’ or ‘field pre-emtion’. However, the recent trend has been to strengthen state sovereignty. In the most recent case it was held that field pre-emtion is required to be shown in ‘actual subject matter’ and not through mere intention or purpose of Congress.[23] Although, the American Supreme Court often quotes ‘purpose’ and ‘effect’ of a piece of legislation as the central idea behind identifying the occupation of a field, its recent stance states otherwise. This recent judgment has shown the willingness of American jurisprudence to rely more on the test of actual operational conflict than the mere intention of Federal law to occupy a field.

Conclusion

The test of repugnancy and doctrine of occupied field is distinct and separate from each other in theory. While one operates in case of direct and irreconcilable conflict, the other one is a product of Parliament’s intention to cover a field. However, practically it is difficult to create a distinction. The intention to supersede a state law ultimately invokes the test of repugnancy thus implying that an intention to create superior legislation would be dealt with in the same manner as a conflict. Thus, indicating against the need for this doctrine. Also, it isn’t very desirable to invoke such a doctrine because one, there are practical difficulties in ascertaining federal intention to pre-empt a field, and two; it would create unreasonable centralization of legislative power. Therefore, it is the view of the author that now Indian jurisprudence should also follow the trend as in Canada and decide cases on the basis of actual ‘operational conflict’ than mere intention to occupy the field.  

 

---

[1] M.P Jain, Indian Constitutional Law 597 (8th ed. 2018).

[2] Grand Kakatiya Sheraton Hotel and Tower Employees & Worker’s Union v. Srinivasa Resorts Limited, AIR 2009 SC2337.

[3] Hoechst Pharm. Limited v. State of Bihar, AIR 1957 SC 297.

[4] PM Bakshi, The Constitution of India 204 (3rd ed. 1996).

[5] supra note 2 at 598.

[6] Hingir Rampur Coal Company v. State of OrissaAIR 1961 SC 459.

[7] Srinivasa Raghavacharya v. State of Karnataka, AIR 1987 SC 1518.

[8] State of Orissa v. MA Tulloch & Company,AIR 1964 SC 1284.

[9] supra note 2 at 596.

[10] Arun Sagar, Federal Supremacy and the Occupied Field :A Comparative Critique, 43 Oxford Journals 251, 259 (2013).

[11] Id. at 269.

[12] Deep Chand v. State of Uttar Pradesh , AIR 1959 SC 648.

[13] Animal Welfare Board v. A Nagaraj, (2014) 3 SCC (Cri) 136.

[14] supra note 8. 

[15] Thirumurga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu, (1996) 3 SCC 15.

[16] Arun Sagar, Federal Supremacy and the Occupied Field: A Comparative Critique, 43(2) Oxford Journals 251, 270 (2013).

[17] supra note 16 at 262.

[18] Id.

[19] Daryl R. Hague, New Federalism and Occupation of the Field: Failing to Maintain State Constitutional Protections within a Preemption Framework, 64 Wash. L. REV. 721, 730 (1989).

[20] Bora Laskin, Occupying the Field: Paramountcy in Penal Legislation, 41 CAN. B. REV. 234, 239 (1963).

[21] supra note 17 at 267.

[22] supra note 17 at 268.

[23] supra note 17 at 265-266.

(Asmita Srivastav is a third year student from Maharashtra National Law University, Nagpur)

Read More