Doctrine of Occupied Field

Introduction And Background

A federal system of government, such as those in USA, India, and Canada, implies a dual set of legislatures: at the central or union level, and at the state or provincial level. Since these central and provincial jurisdictions cover the same geographical area, the existence of concurrent jurisdictions is natural. In simple words, a state or province is ruled by the state government as well as the central government. If we take the example of India, even though the subjects on which the State Legislature can legislate are different from those of the Parliament, the state government is subordinate to the central government, and more often than not, it so happens that both tiers of the government legislate on one subject, because an aspect of it may be covered by the State List and another may be covered by the Union List.

Even where the constitution or any other law lists out the separate subjects on which the two tiers of the government must legislate, some or the other form of overlap, in practice, is bound to occur. This very overlap creates possibility of conflict, and it does not come down to the mere supremacy of the Parliament, but an important question that needs to be asked in this regard is that which legislation fits the situation better, the one enacted by the state or the one enacted by the centre?

However, as per the federal laws of India, the supremacy of the Parliament is the answer to this conflict. But, a mechanism that could eliminate the entire possibility of a conflict is required, in order to maintain harmony between the two levels of the government, and this is where certain doctrines come into play. The doctrine of Occupied Field is one of them.

Doctrine of Occupied Field

The doctrine of occupied field indicates a field(s) that is or has been occupied. In India, the Parliament and the State Legislatures legislate on different subjects, which are mentioned in the Union List and the State List, respectively. There is also a third list, the Concurrent List[1], on which both, the Parliament as well as the State Legislatures can legislate. But, there are certain subjects in the State List, which are placed under a corresponding entry in either the Union List or the Concurrent List. These subjects are under the legislative power of the Union.

The doctrine of occupied field does not actively mitigate centre-state conflict over legislation, it simply mentions that certain subjects in the State List are within the purview of the Parliament. When an entry is attached to a corresponding entry in the Union List, it means that the Parliament will have exclusive jurisdiction over it, and where an entry is attached to a corresponding entry in the Concurrent List, even though the state government can legislate on matters of the Concurrent List, the law made by the Parliament will be given supremacy, if exclusive jurisdiction not already rests with the Parliament.

The doctrine of occupied field is found in Entry 52, List I, Entry 24, List II, which when read together, state that the Parliament can make laws to exercise control of certain industries in public interest, which would render those industries out of the legislative power of the State Legislatures. Further, Entry 7, List I, provides that the Parliament has competence to legislate over industries necessary in relation to defence or prosecution of war. The doctrine provides a basis for the Parliament to legislate on matters related to mines and minerals, higher education, regulation of ports etc.

The doctrine of occupied field is often confused with the doctrine of repugnancy, and the latter finds its place in Article 254(1) of the Indian Constitution. Where the doctrine of occupied field talks about existence of legislative power, the doctrine of repugnancy signifies the exercise of such legislative power. The two are not mutually exclusive, but the latter is an extended form of the former.

Doctrine of Repugnancy

Repugnancy indicates that there exists a contradiction when two laws which are applied to the same facts produce different results. For example, a subject in the Concurrent List is legislated upon by the State Government as well as the Parliament, but the situation becomes incompatible when both sets of laws are applied to the subject. This creates repugnancy, when the application of any one law or set of laws would lead to the violation of the other.

Article 254(1) states that if a law enacted by the State Legislature is repugnant to the central law which the Parliament is competent to enact, or to a law related to subject in the Concurrent List, then the law made by the Parliament shall prevail over that of the State Legislature. This can happen in two ways: where the centre has not enacted the law yet, and the state has legislated on the matter, and where the central law already exists, and the state comes out with its own law. In both the cases, the law made by the State Legislature will be declared null and void so far as it is repugnant with the law made by the Parliament.

A landmark case in this regard was that of M. Karunanidhi v. Union of India[2], in which a constitutional bench of the Supreme Court considered the question of repugnancy. The Court laid down certain points which needed to be kept in mind before the application of the doctrine of repugnancy:

• That there is a direct inconsistency between the law made by the centre and the law made by the state
• That the inconsistency is such that it cannot be reconciled
• That the inconsistency is of such nature that it brings into collision the two laws
• That the inconsistency is such that a situation cannot be reached without disobeying one or the other law

A law cannot be repealed merely because of an indirect conflict; there must be prima facie repugnancy. Moreover, if the two laws can exist without colliding against each other, then there is no need to apply the doctrine.

In another case, Government of Andhra Pradesh v. J. B. Educational Society and anr.[3], the Supreme Court opined that it falls upon the judiciary to interpret the enactments of the Parliament as well as the State Legislature in such a way that there arises no conflict between the two, and even if there is, the same can be circumvented. But if such conflict cannot be avoided in any case, then the enactment of the Parliament shall prevail. List III of the 7^th Schedule in the Indian Constitution attracts the scope of such conflict, therefore, again it is the responsibility of the courts to interpret laws such that the conflict is averted. In case that cannot happen, the courts should follow the method laid down under Article 245 of the Constitution. Article 245 empowers the Parliament to legislate for the entire country or for any part thereof, and empowers the State Legislatures to legislate for their entire state or for any part thereof.

In Hoechst Pharma Ltd. v. State of Bihar[4], the question regarding Article 254(2) came up. Article 254(2) states that when a State Legislature enacts a law on a subject from the Concurrent List and reserves it for the President’s assent, and such law is repugnant to a law of the Parliament, if the law of the State Legislature receives the assent of the President, then it will prevail in that state. The same was held to be true because the President’s assent is important in the sense that it will override any law of the Parliament in force in that state, in case of repugnancy.

However, Article 254(2) also states that the Parliament possesses the power to add to, amend or repeal the law made by the State Legislature at a later stage.

Test of Repugnancy

There are certain principles which determine repugnancy in terms of laws. The same exists in the Australian Constitution but have been applied by Indian courts to further clarify the doctrine of repugnancy.

In Deep Chand v. State of Uttar Pradesh[5], the Court held the following three points as determinants of repugnancy:

• There is a direct conflict between two provisions
• The two conflicting provisions of the Parliament and the State Legislature(s) occupy the same field
• The enactment of the Parliament is exhaustive and was formulated to replace the enactment of the State Legislature(s)

There exists direct conflict between two provisions, namely, of the Parliament and of the State Legislature, when enforcing both of them becomes impossible. In such a case, usually, the law made by the Parliament overrides the law made by the State Legislature.[6] Also, it would be incorrect if the State legislates on a subject on which the Parliament has already come out with a law. Further, if the Parliament has specifically come out with an enactment to replace the existing law of the State Legislature, then evidently the law of the State will be rendered unenforceable.

Conclusion

Conflicts between the centre and the states have been a dispute since time immemorial. It is important to have harmonious centre-state relations in a federal government in order to maintain a status of equilibrium. The states have a duty to abide by the laws of the centre and enforce them not as per the whims of the state legislature. The overriding capacity of the central laws is only because in a country like India, it is necessary to have a strong central government, so that the various states do not bifurcate into countries of their own, when given excessive powers. But, a strong centre does not mean that the Parliament can encroach upon the legislative powers of the state governments and devise whimsical laws. Lastly, it falls upon the judiciary to determine correct laws as valid and vice versa. Both the doctrines, of occupied field and of repugnancy, define centre-state relations to an extent, but to apply them to each case accordingly is only to be done by the courts of law.

Short Questions on Doctrine of Occupied Field

[1] The Constitution of India, sch. VII.

[2] 1979 AIR 898.

[3] (2005) INSC 126.

[4] 1983 AIR 1019.

[5] 1959 AIR 648.

[6] Mati Lal Shah v. Chandra Kanta Sarkar, AIR 1947 Cal 1.

[7] Supra note 5.