Doctrine of Occupied Field

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.