Supremacy, Repugnancy and the Occupied Field

The occupied field

The doctrine matters because it produces repugnancy without contradiction. A State law that adds to a federal scheme, and is perfectly capable of being obeyed alongside it, may still fail if Parliament intended its own law to be a complete code.

The reason is that a legislature may intend not only to regulate but to define the limits of regulation, and a State that adds requirements defeats that intention as surely as one that contradicts it.

In the United States this is called field preemption, and it sits alongside express preemption, where the federal statute says so, and conflict preemption, where compliance with both is impossible or the State law obstructs the federal purpose.

A worked example

Parliament enacts a law licensing a trade and prescribing conditions. A State enacts a law prescribing additional conditions for the same trade.

No direct conflict, because a trader can satisfy both.

Repugnancy nevertheless, if Parliament intended its conditions to be exhaustive. The court looks at the scheme: does the Union Act contain a complete code of licensing, with a licensing authority, conditions, appeals and penalties? If so, the State law is void to the extent of the repugnancy under article 254(1).

Unless article 254(2) applies. If the State law was reserved and assented to, it prevails in that State until Parliament legislates again.

In the United States, the same analysis, called field preemption, and the question is whether the federal scheme is so pervasive as to make reasonable the inference that Congress left no room for the States.

The cases

Facts. M. Karunanidhi v. Union of India, AIR 1979 SC 898, concerned the Tamil Nadu Public Men (Criminal Misconduct) Act 1973, which created machinery for investigating public men, and whether it was repugnant to the Prevention of Corruption Act 1947, the Criminal Law Amendment Act 1952 and the Indian Penal Code.

Held, by a Constitution Bench. No repugnancy. The Court laid down that repugnancy arises where there is a clear and direct inconsistency between the two enactments which is irreconcilable, so that they cannot stand together in the same field; where Parliament intended to lay down an exhaustive code; or where both occupy the same field. The State Act was supplemental and had received the President's assent.

Why it matters here. It is the leading Indian statement of the test and the case to cite on article 254.

Facts. Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648, concerned the Uttar Pradesh Transport Service (Development) Act 1955 and its relationship with the Motor Vehicles Act 1939 after the latter was amended by Parliament in 1956.

Held, by the Supreme Court. Where a State law and a later Union law occupy the same field, the State law becomes void to the extent of the repugnancy from the commencement of the Union law; repugnancy arises where the two are in direct collision, or where the later law was intended to be a complete and exhaustive code.

Why it matters here. It settles the timing question, that the State law is void from the commencement of the repugnant Union law and not from its own enactment, and it is one of the earliest statements of the occupied field doctrine in India.

Distinctions

What beginners get wrong

"Article 254 applies to any conflict between a Union and a State law." It applies where both are competent, which in practice means the Concurrent List or an existing law with respect to a Concurrent List matter. Where the State was not competent at all, the law fails for want of competence.

"Repugnancy requires a contradiction." It does not. Occupation of the field by an exhaustive Union code suffices.

"Presidential assent under article 254(2) makes the State law permanent." The proviso preserves Parliament's power to add to, amend, vary or repeal it.

Limits and criticism

The occupied field doctrine centralises, because a determined central legislature can exclude the units from any concurrent subject by legislating comprehensively.

Article 254(2) makes the President a party to federal disputes, and assent is given on the advice of the Union Council of Ministers, which means the centre decides whether a State law survives.

Canadian paramountcy is applied narrowly on purpose, to preserve concurrent operation wherever possible, which is the opposite of the Indian tendency.

Quick revision

1. Conflict rules: Article VI in the United States; article 254 in India; article 31 with article 72 in Germany; article 49 in Switzerland; judicial paramountcy in Canada.
2. Article 254(1): a repugnant State law is void to the extent of the repugnancy where both are competent.
3. Article 254(2): a State law reserved for and assented to by the President prevails in that State, subject to Parliament legislating again.
4. Test for repugnancy: direct conflict; an exhaustive Union code; or both occupying the same field.
5. Occupied field produces repugnancy without contradiction.
6. M. Karunanidhi v. Union of India, AIR 1979 SC 898: the three-limb test.
7. Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648: the State law is void from the commencement of the repugnant Union law.

Test yourself

1. State the test for repugnancy under article 254. Following M. Karunanidhi v. Union of India, AIR 1979 SC 898, repugnancy arises where there is a clear and direct inconsistency such that obedience to one law involves disobedience to the other and they cannot stand together; or where Parliament intended to lay down an exhaustive code covering the subject; or where both laws occupy the same field. The State law is then void to the extent of the repugnancy.

2. What does article 254(2) provide, and what limits it? That a State law with respect to a Concurrent List matter, containing a provision repugnant to an earlier Union law or existing law, which has been reserved for the consideration of the President and has received his assent, prevails in that State. The proviso limits it: nothing prevents Parliament from enacting at any time a law with respect to the same matter, including one adding to, amending, varying or repealing the State law.

3. Explain the occupied field doctrine and why it matters. It treats a comprehensive federal scheme as excluding unit legislation on the same subject even where the two could be obeyed together, on the footing that the federal legislature intended to define the limits of regulation and not merely to regulate. It matters because it centralises: a central legislature can exclude the units from any concurrent subject by legislating exhaustively, without contradicting anything the units have done.

4. How does the Canadian approach differ? Canada has no general paramountcy clause in the Constitution Act 1867, apart from section 95 for agriculture and immigration; paramountcy is a judicial doctrine and is applied narrowly, so that concurrent operation is preserved wherever the two laws can both be obeyed and the provincial law does not frustrate the federal purpose. Section 52(1) of the Constitution Act 1982 is a different rule, making the Constitution supreme over all law rather than federal law supreme over provincial law.