October 18, 2020
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-Ã -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.
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