Introduction
In the last post, we discussed the doctrine of Pith and Substance according to which
where the question arises of determining whether a particular law relates to a
particular subject (mentioned in one list of another), the court looks into the
substance of the matter.
We also
discussed doctrine of Repugnancy in one of the posts. The best test of
repugnancy is that if one prevails, the other cannot prevail. Article 254
deals with various situations that could give rise to repugnancy.
In the present
post, we will discuss a similar doctrine called as doctrine of Occupied Field. There
is a very thin of line of difference between doctrine of Repugnancy and Doctrine
of Occupied Field. As we know that repugnance arises only if there is an
actual conflict between two legislations, one enacted by the State Legislature
and the other by Parliament, both of which were competent to do so.
On the other
hand, doctrine of Occupied Field simply refers to those legislative entries of
State List, which are expressly made ‘subject’ to a corresponding Entry
in either the Union List or the Concurrent List.
Doctrine of
Occupied Field has nothing to do with the conflict of laws between the state
and the centre. It is merely concerned with the ‘existence of legislative
power’ whereas repugnance is concerned with the ‘exercise of legislative
power’ that is shown to exist.
Doctrine of
Occupied Field comes into picture even before the Union Law or the State Law
has commenced. Under Article 254, as soon as a Union law receives assent of the
President, it is said to be ‘a law made by the Parliament’. Actual
commencement of the law is not important for the purpose of attracting doctrine
of Occupied Field.
The Curious
Case of State of Kerala v. Mar Appraem Kuri
Let us understand
this doctrine with the help of a famous case. In the case of State of
Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr.[1],
the Centre enacted the Chit Funds Act (Central Act). For the Law to become
operative in any state, the Central Government would have to issue a
notification under Section 3 of the Central Act. In the meantime, the State of
Kerala enacted a separate act on ‘Chit Funds’ called as Kerala Chitties Act. However,
the Central Act did not get notified in Kerala resulting into a situation wherein
there was only one Act in force in the State of Kerala i.e. the Kerala
Chitties Act. It was contended that the Kerala Chitties Act was repugnant
to the un-Notified Central Act. The Supreme Court held that even an
un-notified Central law attracts art 254.
The reasoning
given by the Supreme Court was that the Central Enactment covered the entire ‘field’
of ‘Chit Funds’ under the Concurrent List. Even though the Central Chit Funds Act
was not brought in force in the State of Kerala, it is still a law ‘made’,
which is alive as an existing law.
The Court
emphasized that Article 254 uses the verb ‘made’ and the ‘making’.
Thus, the ‘making’ of a law is complete, even before that law is
notified. The court also said that:
“The verb ‘make’
or the verb ‘made’ is equivalent to the expression ‘to legislate’.
The importance of this discussion is to show that the Constitution framers have
deliberately used the word ‘made’ or ‘make’ in the above
Articles.
Our
Constitution gives supremacy to the Parliament in the matter of making of the
laws or legislating with respect to matters delineated in the three Lists. The
principle of supremacy of the Parliament, the distribution of legislative
powers, the principle of exhaustive enumeration of matters in the three Lists
are all to be seen in the context of making of laws and not in the context
of commencement of the laws.”
Thus, the State
Legislature is denuded of Legislative Competence as soon as the Parliament, by
enacting the Central Act, intended to occupy the entire field of ‘Chit
Funds’ under the Concurrent List.
Last Word
1. We can easily
see that the line of difference between Repugnance and Occupied Field is very
thin. Where Occupied Fields ends, repugnancy starts. Parliament is indeed the
supreme Law-Making body under our Constitutional Scheme. Normally, the Courts
try to construe a Central Law and a State Law harmoniously. However, when the Parliament
tries to occupy the field of the State Law, it is the Central Law that is to
prevail.
2. The question
of repugnance is separate one. Whether the whole State law or only a particular
provision is repugnant to the Central Law is a question that is to be decided
after deciding whether the Parliament has really occupied the field of
the State Law.
3. Once it is
made sure that the Parliament intends to legislate over a particular field on
which the State has already legislated, the repugnancy kicks in. To what extent
is the repugnancy is a subjective question.
4. The intention
of the Parliament can be either express or implied. Express intention can be
shown explicitly by enacting a Central Law to repeal a State Law. Implied
Intention is slightly more convoluted. Implied Intention can be shown by
enacting a Central Law on a subject on which the State has already legislated.
By enacting such a Central Legislation, it will be implied that the Parliament
intends to occupy a particular field and strip the State Legislature of its
power to legislate in this respect.
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Excellent article on Interpretation of the Constitution
ReplyDeleteWhat was the decision of the court in plain language ?
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