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As we all know that the framers of the Indian Constitution while deciding the Constitutional structure of India to be Unitary or Federal, opted for the second one. The Framers were very much enthusiastic about the Federal Structure of the Constitution because of, mainly two reasons, firstly the then-existing Constitutional document viz. The Government of India Act, 1935 provided for the federal structure with the distribution of legislative subjects under three lists viz. Federal, Provincial and Concurrent list, and secondly due to its wide success in American Constitution. Under the federal structure, the framers provided the distribution of legislative powers between the Union and State under two folds: Territorial and Subject wise. Under the Constitution, to infuse and strengthen the spirit of federalism by reinforcing the autonomy of the Union and State, exclusive legislative powers are provided to the Union under Art. 245(1)[1] and to State under Art. 245(3).[2] But the framers knew that certain subjects may require legislation by both Centre and State, and hence they also provided the Concurrent List under 245(2).[3] They also provided for the resolution of any dispute under Art. 254[4] in case of legislation by both Union and State under the Concurrent list. Art. 254[5], for dispute resolution, provides the Doctrine of Repugnancy, one of the Constitutional Doctrine. The doctrine of Occupied Field is it’s a sub-doctrine. These doctrines are not only restricted to Concurrent List in their operation but rather under Art. 254(1)[6] extends their operation to legislations under Arts. 252[7] and 253[8]. “Repugnancy” as the name suggests refers to the inconsistency in the provision of State law and Union law over the same subject matter. This repugnancy creates a dilemmatic situation the provision of which law is to be followed. Art 254(1)[9] answers this question that the Union law shall prevail to the extent of Repugnancy.


Prof. VN Shukla[10] provides that repugnancy may arise in three ways:

  1. Direct Conflict; when one provision of one law provides “Do” and the other “Don’t”.
  2. Occupied Field; when provisions of both laws are not head-to-head repulsive but the mere existence of the provision of one law impedes the operation of the other.
  3. Intended Occupation; interference with the intention of Parliament’s law to regulate the whole subject matter by State law.

Nicholas in his Australian Constitution, 2nd Edition, page 303[11], refers to three tests of inconsistency or repugnancy: –

  1. There may be inconsistency in the actual terms of the competing statutes;
  2. Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law or the award of the Commonwealth Court is intended to be a complete exhaustive code; and
  3. Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter.

The Judiciary in Ch. Tika Ramji v. The State of Uttar Pradesh[12] accepted the said three rules, among others, as useful guides to test the question of repugnancy.

This classification of Repugnancy was also iterated by Subba Rao J. in Deep Chand v. State of U.P[13]:

“Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:

  • Whether there is a direct conflict between the two provisions ;
  • Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and
  • Whether the law made by Parliament and the law made by the State Legislature occupy the same field.”


The Doctrine of Occupied field provides that if an Act of Parliament is occupying a subject over which the State Legislature is also empowered to legislate and has legislated and the State’s legislation obstructs the operation of the Parliament’s Act then the State’s legislation is repugnant or inconsistent with the Parliament’s Act to the extent of the provision(s) which obstructs the latter’s operation. And if a State’s Act is repugnant to the Parliament’s Act then subject to Art. 254(2)[14] to the extent of Repugnancy it is void.

In Victoria v. Commonwealth, Dixon J. summaries the test as:

“When a State Law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, nature, or the subject matter of a federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights or duties, then for State Law to regulate or apply to the same manner or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent.”

An illustration of this kind of Repugnancy can be the issue in Zaverbhai Amaidas v. State of Bombay[15]. The Supreme Court struck down the State Act to the extent of Repugnancy.

Similarly, if upon a concurrent subject, a State Law provides 10-year experience eligibility criteria for appointment and a Central Law does not provide any such eligibility requirement, here both the laws provide for that specific post with some minor differences in eligibility but both affect each other’s operation on the subject and hence repugnant as per this doctrine. And, repugnancy leads to the operation of Art. 254.[16]


But this doesn’t mean that the mere existence of State Law and Parliament’s Law simultaneously on the same subject attracts the operation of the “Doctrine of Occupied Field”.

Fazal Ali J. in M. Karunanidhi v. Union of India[17] clarified this point:

  • “In order to decide the questions of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together or operate in the same field;
  • that there can be no repeal by implication unless the inconsistency appears on the face of the two statutes;
  • that where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results;
  • that where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.”

Thus, in the same case, when the Tamil Nadu Public Men (Criminal Misconduct) Act, 1974 wasn’t inconsistent with the Indian Penal Code, 1860, and the Prevention of Corruption Act, 1947 even though upon the same subject matter in the concurrent list, they were held not repugnant but complementary to each other and thus as held in National Engineering Industries Ltd. v. Shri Kishan Bhageria[18]:

“In order to raise the question of repugnancy two conditions must be fulfilled. The State law and the Union law must operate in the same field and one must be repugnant or inconsistent with the other. These are two cumulative conditions which are required to be fulfilled.”


Hence in reality the “Doctrine of Occupied Field” doesn’t prevent State legislation on a subject matter on which there already exists a Central Law. It makes the position of law very clear and lucid on the subject matter by restricting the dilemma or paradox created by two inconsistent and contradicting laws on such subject. It allows the dominant law to prevail by virtue of Art. 254[19] on the ground of occupying a subject field and providing a comprehensive and holistic picture of law on that subject field. It is a distinct face of the “Doctrine of Repugnancy” in action.

Author(s) Name: Abhishek Gupta (Banaras Hindu University, Varanasi)


[1] Indian Constitution of India 1950, art 245(1)

[2] Indian Constitution of India 1950, art 245 (3)

[3] Indian Constitution of India 1950, art 245(2)

[4] Indian Constitution of India 1950, art 254

[5] Ibid

[6] Indian Constitution of India 1950, art 254(1)

[7] Indian Constitution of India 1950, art 252

[8] Indian Constitution of India 1950, art 253

[9] Indian Constitution of India 1950, art 254(1)

[10] V.N. Shukla, Constitution of India (13th Edition, Eastern Book Company 2017) 829

[11] H. S., The Australian Constitution (2nd Edition, The Australian Law Book Co.) 303

[12] Ch. Tika Ramji v The State of Uttar Pradesh (1956) AIR 676

[13] Deep Chand v State of U.P. (1959) AIR 648

[14] Indian Constitution of India 1950, art 245(2)

[15] Zaverbhai Amaidas v State of Bombay (1954) AIR 752

[16] Indian Constitution of India 1950, art 254

[17] M. Karunanidhi v Union of India (1979) AIR 898

[18]National Engineering Industries Ltd. v Shri Kishan Bhageria (1988) AIR 329

[19]Indian Constitution of India 1950, art 254