Distribution of Legislative Powers
Distribution of Legislative Powers
- Article 245:Territoriality Clause
- Article 246: Subject Matter of Laws made by Parliament and State Legislatures
State Of Bihar & Others v. Sm. Charusila Dasi
Bihar Hindu Religious Trusts Act, 1950
Section 3 of the Act says- “This Act shall apply to all religious trusts, whether created before or after the commencement of this Act, any part of the property of which is situated in the State of Bihar “. The argument before us on behalf of the respondent is this. Under Art. 245 of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. Clause (2) of the said Article further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. Article 246 gives the distribution of legislative power; Parliament has exclusive power to make laws with respect to any of the matters enumerated in what has been called the Union List; Parliament as also the legislature of a State have power to make laws with respect to any of the matters enumerated in the Concurrent List; the legislature of a State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List. Item 28 of the Concurrent List is “charities and charitable institutions, charitable and religious endowments and religious institutions “.
Learned counsel for the respondent contends that by reason of the provisions in Arts. 245 and 246 of the Constitution read with item 28 of the Concurrent List, the Bihar legislature which passed the Act had no power to make a law which has operation outside the State of Bihar; he further contends that under s. 3 the Act is made applicable to all religious trusts, whether created before or after the commencement of the Act, any part of the property of which is situated in the State of Bihar; therefore, the Act will apply to a religious institution which is outside Bihar even though a small part of its property may lie in that State. It is contended that such a provision is ultra vires the power of the Bihar Legislature, and Parliament alone can make a law which will apply to religious institutions having properties in different States. Alternatively, it is contended that even if the Act applies to a religious institution in Bihar, the provisions of the Act can have no application to such property of the institution as is outside Bihar…
- “An Interpretation as will make it operative and not in-operative”
It is necessary first to determine the extent of the application of the Act with reference to ss. 1 (2) and 3 of the Act read with the preamble. The preamble states:- ” Whereas it is expedient to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts.” It is clear from the preamble that the Act is intended to provide for the better administration of Hindu religious trusts in the State of Bihar. Section 1 (2) states that the Act extends to the whole of the State of Bihar, and s. 3 we have quoted earlier. If these two provisions are read in the context of the preamble, they can only mean that the Act applies in cases in which (a) the religious trust or institution is in Bihar and (b) any part of the property of which institution is situated in the State of Bihar. In other words, the aforesaid two conditions must be fulfilled for the application of the Act. It is now well settled that there is a general presumption that the legislature does not intend to exceed its jurisdiction, and it is a sound principle of construction that the Act of a sovereign legislature should, if possible, receive such an interpretation as will make it operative and not in-operative…We accordingly hold that s. 3 makes the Act applicable to all public religious trusts, that is to say, all public religious and charitable institutions within the meaning of the definition clause in s. 2 (1) of the Act, which are situated in the State of Bihar and any part of the property of which is in that State.
- No Question of Extra-Territorial Operation
Undoubtedly, the Bihar Legislature has power to legislate in respect of, to use the phraseology of item 28 of the Concurrent List, ” charities, charitable institutions, charitable and religious endowments and religious institutions ” situate in the State of Bihar. The question, therefore, narrows down to, this: in so legislating,, has it power to affect trust property which may be outside Bihar but which appertains to the trust situated in Bihar ? In our opinion, the answer to the question must be in the affirmative. It is to be remembered that with regard, to an interest under a trust the beneficiaries’ only right is to have the trust duly administered according to its terms and this right can normally be enforced only at the place where the trust or religious institution is situated or at the trustees’ place of residence. The Act purports to do nothing more. Its aim., as recited in the preamble, is to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection of properties appertaining thereto. This aim is sought to be achieved by exercising control over the trustees in personam. The trust being situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer, the trust. Therefore, there is really no question of the Act having extraterritorial operation.
- Sufficiency of the Territorial Connection
A deed of trust was executed by the respondent on March II, 1938, when she was residing at D in the State of Bihar, in respect of the properties described in the Schedules referred to in the deed, some of which were situated outside the State of Bihar…(the fact) that the temples where the deities are installed are situated in Bihar, that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public in Bihar gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such a trust… in the Tata Iron & Steel Co.’s case…it was pointed out that sufficiency of the territorial connection involved a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection. It cannot be disputed that if the religious endowment is itself situated in Bihar and the trustees function there, the connection between the religious institution and the property appertaining thereto is real and not illusory ; indeed, the religious institution and the property appertaining thereto form one integrated whole and one cannot be dissociated from the other.
We do not see any reason why the principles which were followed in The State of Bombay v. R. M. D. Chamarbaugwala should not be followed in the present case. In R. M. D. Chamarbaugwala’s case it was found that the respondent who was the organiser of a prize competition was outside the State of Bombay; the paper through which the prize competition was conducted was printed and published outside the State of Bombay, but it had a wide circulation in the State of Bombay and it was found that ” all the activities which the gambler is ordinarily expected to undertake“ took place mostly, if not entirely, in the State of Bombay. These circumstances, it was held, constituted a sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and the law could not be struck down on the ground of extra-territoriality. We are of the opinion that the same principles apply in the present case and the religious endowment itself being in Bihar and the trustees functioning there, the Act applies and the provisions of the Act cannot be struck down on the ground of extra- territoriality.
State Of A.P vs National Thermal Power Corpn
The High Court of Andhra Pradesh at Hyderabad has, by its impugned judgment dated April 11, 1990, allowed the writ petition filed by the respondent National Thermal Power Corporation Ltd. (hereinafter ‘NTPCL’, for short) and declared that the levy of duty by the State of Andhra Pradesh on the sales of electrical energy generated by the Corporation-respondent No.1 at its thermal power station set up at Ramagundam, within the State of Andhra Pradesh, and sold to the Electricity Boards of Karnataka, Kerala, Tamil Nadu and the State of Goa in pursuance of contracts of sales occasioning inter-State movement of electricity is incompetent and outside the power of State Legislature. Consequently, the tax levied and collected has also been held to be without authority of law, hence liable to be refunded in accordance with law. On a prayer made by the learned Advocate General on behalf of the State of Andhra Pradesh, the High Court certified that the case involves a substantial question of law as to the interpretation of Constitution under Article 132. The appeal has been filed pursuant to the certificate so granted by the High Court. On 4.10.1991, a bench of two learned Judges directed the appeal to be placed for hearing before a Constitution Bench, as required by Clause (3) of Article 145 of the Constitution.
- Inter-State Sale or Intra-State Sale
Andhra Pradesh Electricity Duty Act, 1939 provides for levy of duty on certain sales and consumption of electricity by licensees in the State of Andhra Pradesh. The definition of the term ‘licensee’ specifically includes the National Thermal Power Corporation (respondent No.1) or any other Corporation engaged in the business of supplying energy. Section 3 of the Act is the charging section…the limited question arising for our consideration is __ whether sales of energy by NTPCL, the respondent No.1, to several Electricity Boards situated outside the State of Andhra Pradesh and to the State of Goa, attract the incidence of taxation under Section 3 of the Act…The controversy centres mainly around the question as to under which entry Andhra Pradesh Electricity Duty Act, 1939 is covered and whether the sales of electricity by NTPCL, the respondent No.1, to the Electricity Boards situated outside the State of Andhra Pradesh and to the State of Goa, can be construed as inter-State sale or intra- State sale.
- Section 3 of Central Sales Tax Act
When is a sale or purchase of goods said to take place in the course of inter-State trade or commerce.—A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase—
(a) occasions the movement of goods from one State to another; or
(b) is effected by a transfer of documents of title to the goods during their movement from one State to another. Explanation 1.—Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee. Explanation 2.—Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State.
- Creating A Fiction
Generally speaking, a legislation having extra territorial operation can be enacted only by Parliament and not by any State Legislature; possibly the only exception being one where extra territorial operation of a State legislation is sustainable on the ground of territorial nexus. Such territorial nexus, when pleaded, must be sufficient and real and not illusory. In Burmah Shell Oil Storage & Distributing Co.India Ltd.(supra), which we have noticed, it was held that sale for use or consumption would mean the goods being brought inside the area for sale to an ultimate consumer, i.e. the one who consumes. In Entry 53, ‘sale for consumption’ (the meaning which we have placed on the word ‘sale’) would mean a sale for consumption within the State so as to bring a State Legislation within the field of Entry 53. If sale and consumption were to take place in different States, territorial nexus for the State, where the sale takes place, would be lost. We have already noticed that in case of electricity the events of sale and consumption are inseparable. Any State legislation levying duty on sale of electricity, by artificially or fictionally assuming that the events of sale and consumption have taken place in two States, would be vitiated because of extra territorial operation of State legislation.
- Judgment: Cannot tax an Inter-State Sale by Creating a Fictional Territorial Nexus
In 20th Century Finance Corporation’s case…The, majority has clearly opined that the State where the goods are delivered in the transaction of inter-State sale, cannot levy a tax on the basis that one of the events in the chain has taken place within the State; so also where the goods are in existence and available for the transfer of right to use, there also that State cannot exercise power to tax merely because the goods are located in that State…However, we are dealing with the case of electricity as goods, the property whereof, as we have already noted, is that the production (generation), transmission, delivery and consumption are simultaneous, almost instantaneous. Electricity as goods comes into existence and is consumed simultaneously; the event of sale in the sense of transferring property in the goods merely intervenes as a step between generation and consumption. In such a case when the generation takes place in one State wherefrom it is supplied and it is received in another State where it is consumed, the entire transaction is one and can be nothing else excepting an inter-State sale on account of instantaneous movement of goods from one State to another occasioned by the sale or purchase of goods…Though it may be permissible to fix the situs of sale either by appropriate State legislation or by Judge made law as held by the majority opinion in 20th Century Finance Corporation case, we would like to clarify that none of the two can artificially appoint a situs of sale so as to create territorial nexus attracting applicability of tax legislation enacted by any State Legislature and tax an inter-State sale in breach of Section 3 of the CST Act.
Plenary and Ancillary Powers of Legislation
In 1957, the U. P. Legislature passed the U. P. Large Land Holdings Tax Act …Entry 49 in List II of the 7th Schedule of the Constitution. This Entry relates to taxes to lands and buildings. The argument is that ‘Lands’ in the context does not include agricultural lands and so, the U. P. Legislature was not competent to levy the tax. In considering the merits of this argument, it is necessary to bear in mind that we are interpreting the words used in the Constitution and it is an elementary cardinal rule of interpretation that the words used in the Constitution which confer legislative power. must receive the most liberal construction and if they are words of wide amplitude, they must be interpreted so as to give effect to that amplitude. It would be out of place to put a narrow or restricted construction on words of wide amplitude in a Constitution. A general word used in an entry like the present one must be construed to extend to all ancillary or subsidiary matters which can fairly and reasonably be held to be included in it…It is, however, urged that since Entry 46 in list II refers to taxes on agricultural income, it follows that agricultural income is not included in Entry 49… But it must be remembered that both Entries 46 and 49 are in List II and it would make no difference whether the State legislation imposing taxes on agricultural income is sustained by reference to Entry 46 rather than by reference to Entry 49.- Per Gajendragadkar J in Jagnnath Baksh Singh
Doctrine of Harmonious Construction:Gujarat University v. Madholkar
Shrikant son of Shri Krishna Madholkar appeared for the Secondary School Certificate examination held by the State of Bombay in March, 1960, and was declared successful. He took instruction in the various subjects prescribed for the examination through the medium of Marathi (which is his mother-tongue) and answered the questions at the examination also in the medium of Marathi. Shrikant joined the St. Xavier’s College affiliated to the University of Gujarat, in the First Year Arts class and was admitted in the section in which instructions were imparted through the medium of English. After successfully completing the First Year Arts course in March, 1961, Shrikant applied for admission to the classes preparing for the Intermediate Arts examination of the University through the medium of English. The Principal of the College informed Shrikant that in view of the provisions of the Gujarat University Act, 1949, and the Statutes 207, 208 and 209 framed by the Senate of the University, as amended in 1961 he could not without the sanction of the University permit him to attend classes in which instructions were imparted through the medium of English. Shri Krishna, father of Shrikant then moved the Vice-Chancellor of the University for sanction to permit Shrikant to attend the “English medium classes” in the St. Xavier’s College. The Registrar of the University declined to grant the request, but by another letter Shrikant was “‘allowed to keep English as a medium of examination“ but not for instruction.
- Legislation in Question
St. Xavier’s College was affiliated to the University of Bombay under Bombay Act 4 of 1928. The Legislature of the Province of Bombay enacted the Gujarat University Act, 1949…By s. 5(3) of the Act, from the prescribed date all educational institutions admitted to the privileges of the University of Bombay and situate within the University area of Gujarat were deemed to be admitted to the privileges of the University of Gujarat…Section 4 of the Act enacted a provision which is not normally found in similar Acts constituting Universities. By that. section various powers of the University were enumerated. These powers were made exercisable by diverse authorities of the University set out in s. 15. We are concerned in these appeals with the Senate, the Syndicate and the Academic Council…In 1954, the Gujarat University framed certain Regulations dealing with the media of instruction…After the constitution of a separate State of’ Gujarat, Act 4 of 1961 was enacted by the Gujarat State Legislature.
- Two Crucial Questions for Determination
A petition was then filed by Shri Krishna Madholkar on behalf of himself and his minor son Shrikant in the High Court of Gujarat for a writ or order in the nature of Mandamus or other writ, direction or order requiring the University of Gujarat to treat ss. 4(27), 18 (i) (xiv) and 38A of the Gujarat University Act, 1949 (as amended in 1961), and Statutes 207, 208 and 209 as void and inoperative…The High Court of Gujarat by order dated January 24, 1962, issued the writs prayed for. The University and the State of Gujarat have separately appealed to this Court with certificates of fitness granted by the High Court. Two substantial questions survive for determination-(1) whether under the Gujarat University Act, 1949, it is open to the University to prescribe Gujarati or Hindi or both as an exclusive medium or media of instruction and examination in the affiliated colleges, and (2) whether legislation authorising the University to impose such media would infringe Entry 66 of List I, Seventh Schedule to the Constitution.
- Judgment on Question (i)
Therefore, neither under the Act as originally framed nor under the Act as amended by Act 4 of 1961 was there any power conferred on the University to impose Gujarati or Hindi or both as exclusive medium or media of instruction and examination and if no such power was conferred upon the University, the Senate could not exercise such a power. The Senate is a body acting on behalf of the University and its powers to enact Statutes must lie within the contour of the powers of the University conferred by the Act. On the view we have expressed, consideration of the question whether the State Government is competent to enact laws imposing Gujarati or Hindi or both as an exclusive medium or media of instruction in the Universities, may appear academic, But we have thought it necessary to consider the question because the High Court has declared certain provisions of Act 4 of 1961 relating to medium of instruction as ultra vires the State Legislature and on the question which was argued at considerable length we were invited by counsel for the appellants to express our view for their guidance in any future legislation which may be undertaken.
- Question (ii)
By the Constitution a vital change has been made in the pattern of distribution of legislative powers relating to education between the Union Parliament and the State Legislatures. By item No. 11 of List II (Deleted by the 42nd Amendment) of the Seventh Schedule to the Constitution, the State Legislature has power to legislate in respect of “‘education including Universities subject to the provisions of items 63, 64, 65 and 66 of List I and 25 of List III“…(Item 63) Power to enact legislation with respect to the institutions known at the commencement of the Constitution as the Benaras Hindu University, the Aligarh Muslim University and the Delhi University and other institutions declared by Parliament by laws to be an institution of national importance is thereby granted exclusively to Parliament. Item 64 invests the Parliament with power to legislate in respect of “‘institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament, by law, to be institutions of national importance”. Item 65 vests in the Parliament power to legislate for “Union agencies and institutions for (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime”. By item 66 power is entrusted to Parliament to legislate on “co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”.
- “Subject to”
Item 25 of the Concurrent List confers power upon the Union Parliament and the State Legislatures to enact legislation with respect to “vocational and technical training of labour”. It is manifest that the extensive power vested in the Provincial Legislature to legislate with respect to higher, scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List I and List III mentioned in item 11 of List II. Item 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament. Use of the expression “subject to” in item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State… this Court in considering the import of the expression “subject to” used in an entry in List II, in relation to an entry in List I observed that to the extent of the restriction imposed by the use of the expression “”subject to” in an entry in List II, the power is taken away from the State Legislature. Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of “education including Universities” power to legislate on that subject must lie with the Parliament.
- “Harmoniously Construed”
Item 11 of List II and item 66 of List I must be harmoniously construed. The two entries undoubtedly overlap: but to the extent of overlapping, the power conferred by item 66 List I must prevail over the power of the State under item 11 of List II. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences, technology and vocational training of labour. The power to legislate in respect of primary or secondary education is exclusively vested in the States by item No. 11 of List II, and power to legislate on medium of instruction in institutions of primary or secondary education must therefore rest with the State Legislatures. Power to legislate in respect of medium of instruction is, however, not a distinct legislative head; it resides with the State Legislatures in which the power to legislate on education. is- vested, unless it is taken away by necessary intendment to the contrary. Under items 63 to 65 the power to legislate in respect of medium of instruction having regard to the width of those items, must be deemed to vest in the Union. Power to legislate in respect of medium of instruction, in so far it has a direct bearing and impact upon the legislative head of co-ordination and determination of’ standards in institutions of higher education or research and scientific and technical institutions, must also be deemed by item 66 List I to be vested in the Union.
- A Degree of Overlapping is Inevitable
The State has the power to prescribe the syllabi and courses of study in the institutions named in Entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co-ordination of such standards either on an All India or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable…It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the “doctrine of pith and substance” of the impugned enactment. The validity of the State legislation on University education and as regards the education in technical and scientific institutions not falling within Entry 64 of List I would have to be judged having regard to whether it impinges on the field reserved for the Union under Entry 66. In other words, the validity of State legislation would depend upon whether it prejudicially affects co-ordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254(1) ; even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid.
It is true that “medium of instruction” is not an item in the legislative list. It falls within item No. 11 as a necessary incident of the power to legislate on education : it also falls within items 63 to 66. In so far as it is a necessary incident of the powers under item 66 List I it must be deemed to be included in that item and therefore excluded from item 11 List II. How far State legislation relating to medium of instruction in institutions has impact upon co-ordination of higher education is a matter which is not susceptible, in the absence of any concrete challenge to a specific statute, of a categorical answer…We are unable, however, to agree with the High Court that Act 4 of 1961 in so far as it amended the proviso to s. 4(27) is invalid, because it is beyond the competence of the State Legislature.
By the amendment of the proviso to s. 4 (27), the Legislature purported to continue the use of English as the medium of instruction in subjects selected by the Senate beyond a period of ten years prescribed by the Gujarat University Act, 1949. Before the date on which the parent Act was enacted, English was the traditional medium of instruction in respect of all subjects at the University level. By enacting the proviso as it originally stood, the University was authorised to continue the use of English as an exclusive medium of instruction in respect of certain subjects to be selected by the Senate. By the amendment it is common ground that no power to provide an exclusive medium other than the pre-existing medium is granted. Manifestly, imparting instruction through a common medium, which was before the Act the only medium of instruction all over the Country, cannot by itself result in lowering standards and coordination and determination of standards cannot be affected thereby. By extending the provisions relating to imparting of instruction for a period longer than ten years through the medium of English in the, subjects selected by the University, no attempt was made to encroach upon the powers of the Union under item No. 66 List I.
Doctrine of Colourable Legislation
It is only when a legislature which has no power to legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not, it can be said that the legislation so enacted is colourable legislation. In K.C. Gajapati Narayan Deo v. State of Orissa, Mukherjea, J., who spoke for the Court observed as under: “It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power.”
Thus the whole doctrine resolves itself into a question of competency of the concerned legislature to enact the impugned legislation. If the legislature has transgressed the limits of its powers and if such transgression is indirect, covert or disguised, such a legislation is described as colourable in legal parlance. – Ashok Kumar v. Union of India
Doctrine of Pith and Substance
It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance or its “true nature and character,” for the purpose of determining whether it is legislation with respect to matters in this list or in that.- Sir Maurice Gwyer C.J. in Subramanyan Chettiar’s case
- “Priority in what respect?”
…the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with…No doubt where they come in conflict List I has priority over Lists III and II and List III has priority over List II, but, the question still remains, priority in what respect? Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to consider what the substance of an Act is and, whatever its ancillary effect, attribute it to the appropriate list according to its true character? In their Lordships’ opinion the latter is the true view.- Per Lord Porter in Prafulla Kumar Mukherjee vs The Bank Of Commerce
State Of Rajasthan vs Shri G. Chawla And Dr. Pohumal
This appeal was preferred by the State of Ajmer, but after reorganisation the b of States, the State of Rajasthan stands substituted for the former State. It was filed against the decision of the Judicial Commissioner of Ajmer, who certified the case as fit for appeal to this Court under Art. 132 of the Constitution. The Ajmer Legislative Assembly enacted the Ajmer (Sound Amplifiers Control) Act, 1952, (hereinafter called the Act) which received the assent of the President on March 9, 1953. This Act was successfully impugned by the respondents before the learned Judicial Commissioner, who held that it was in excess of the powers conferred on the State Legislature under s. 21 of the Government of Part C States Act, 1951 and, therefore, ultra vires the State Legislature. The respondents (who were absent at the hearing) were prosecuted under S. 3 of the Act for breach of the first two conditions of the permit granted to the first respondent, to use sound amplifiers on May 15 and 16, 1954. These amplifiers, it was alleged against them, were so tuned as to be audible beyond 30 yards (condition No. 1) and were placed at a height of more than 6 feet from the ground (condition No. 2). The second respondent was at the time of the breach, operating the sound amplifiers for the Sammelan, for which permission was obtained.
- Rival Entries
…the Judicial Commissioner of Ajmer held that the pith and substance of the Act fell within Entry No. 31 of the Union List and not within Entry No. 6 of the State List, as was claimed by the State…
Entry No. 31 of The Union List: Post and Telegraphs; Telephones, wireless, broadcasting and other like forms of communication.
Entry No. 6 of The State List: Public health and sanitation; hospitals and dispensaries.
The attention of the learned Judicial Commissioner was apparently not drawn to Entry No. 1 of the State List, which is to the following effect: Public order(but not including the use of naval, military or air forces of the Union in aid of civil power.)
- Not Allowed
There can be little doubt that the growing nuisance of blaring loud-speakers powered by amplifiers of great output needed control, and the short question is whether this salutary measure can be said to fall within one or more of the Entries in the State List. It must be admitted that amplifiers are instruments of broadcasting and even of communication, and in that view of the matter, they fall within Entry 31 of the Union List. The manufacture, or the licensing of amplifiers or the control of their ownership or possession, including the regulating of the trade in such apparatus is one matter, but the control of the ‘use’ of such apparatus though legitimately owned and possessed, to the detriment of tranquility, health and comfort of others is quite another. It cannot be said that public health does not demand control of the use of such apparatus by day or by night, or in the vicinity of hospitals or schools, or offices or habited localities.
- Unfolding the Pith and Substance
The pith and substance of the impugned Act is the control of the use of amplifiers in the interests of health and also tranquility, and thus falls substantially (if not wholly) within the powers conferred to preserve, regulate and promote them and does not so fall within the Entry in the Union List, even though the amplifier, the use of which is regulated and controlled is an apparatus for broadcasting or communication. As Latham, C. J., pointed out in Bank of New South Wales v. The Commonwealth (1): “ A power to make laws ‘with respect to’ a subject matter is a power to make laws which in reality and substance are laws upon the subject-matter. It is not enough that a law should refer to the subject-matter or apply to the subject-matter: for example, income tax laws apply to clergymen and to hotel-keepers as members of the public; but no one would describe an income-tax law as being, for that reason, a law with respect to clergymen or hotel-keepers. Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or banking.”
On a view of the Act as a whole, we think that the substance of the legislation is within the powers conferred by Entry No. 6 and conceivably Entry No. 1 of the State List” and it does not -purport to encroach upon the field of Entry No. 31, though it incidentally touches upon a matter provided there. The end and purpose of the legislation furnishes the key to connect it with the State List. Our attention was not drawn to any enactment under Entry No. 31 of the Union List by which the ownership and possession of amplifiers was burdened with any such regulation or control, and there being thus no question of repugnancy or of an occupied field, we have no hesitation in holding that the Act is fully covered by the first cited Entry and conceivably the other in the State List. The Judicial Commissioner’s order, with respect, cannot be upheld, and it must be set aside. We allow the appeal and reverse the decision, and we declare the Act in all its parts to be intra vires the State Legislature.
- Viswanathiah And Company And … Vs State Of Karnataka
The two appeals and the three writ petitions challenge the validity of the provisions of the Mysore Silkworm Seed and Cocoon (Regulation of Production, Supply and Distributions) Act, 1959 (Act No. 5 of 1960), hereinafter referred to as ‘the impugned Act‘…the argument before us was limited to a single contention. This was that the impugned provisions lack legislative competence after the enactment, by Parliament, of the Central Silk Boards Act (Act 61 of 1948), (hereinafter referred to as ‘the Central Act’) which contains a declaration contemplated under Entry 52 of List I in the Seventh Schedule to the Constitution of India. We shall be addressing ourselves only to this argument.
The above Act, was amended by the Karnataka Act 33 of 1979. In the preamble, in addition to the ‘silk worm seed’ and ‘cocoon’, reference was added to silk yarn‘…The short point made on behalf of the petitioners is that any legislation in respect of ‘silk industry’ can be enacted only by Parliament and the State Legislature is incompetent to legislate on this matter. This is because Section 2 of the Central Silk Board Act, which reads as follows: “It is hereby declared that it is expedient in the public interest that the Union should take under its control the silk industry.”…In this context, it is emphasised that originally the Central Act and the declaration in S. 2 had been restricted to ‘raw silk industry’ but, by an amendment of 1953 effective from 25.3.1954, their scope was widened to include the entire ‘silk industry’. The long title of the Central Act is that it is “an Act to provide for the development under Central control of the silk industry and for that purpose to establish a Central Silk Board”.
- High Court’s Decision
It will at once be seen that the point raised by the petitioners/ appellants has been repelled by the High Court on the basis of a series of decisions of this Court regarding scope of Entry 52 of List I in the Seventh Schedule to the Constitution. The High Court has pointed out that when Entry 52 talks of control of industry it does not mean all aspects of the industry in question. An industry comprises of 3 important aspects: (i) raw materials (ii) the process of manufacture or production; and (iii)the distribution of the products of the industry. Legislation in regard to raw materials would be permissible under Entry 27 of List 2, notwithstanding a declaration of the industry under Entry 52 to be one within the purview of parliamentary legislation. The process of manufacture or production can be legislated on by States under Entry 24 of List 2 so long as the industry is not a controlled industry within the meaning of Entry 7 or Entry 52 of List I. So far as the third aspect viz. the distribution of the products of the industry are concerned, the State Legislature would be quite competent to legislate thereto in regard thereto under Entry 27 of List II. However, when the industry is also a controlled industry legislation in regard to the products of the industry would be permissible by both the Central and the State Legislatures by virtue of Entry 33 of List 3. This in short is the decision of the High Court (based on various SC decisions).
- SC Judgment
In other words, though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act and the declaration in section 2 thereof, that declaration and Entry 52 do not in any way limit the powers of the State Legislature to legislate in respect of the goods produced by the silk industry. To interpret Entry 52 otherwise would render Entry 33 in List 3 of the Seventh Schedule to the Constitution otiose and meaningless. In this view of the matter the limitation contained in Entry 52 does not affect the validity of the present legislation…In view of our conclusion above, the State legislation would be quite valid unless it is repugnant to the provisions of a Central legislation on the subject. A persual of the Central Act makes it clear that the pith and substance of the legislation is the constitution of a silk Board for research into the scientific, technological and economic aspects of the industry. It does not have anything to do with the aspects covered by entry 33 in List III. There is, therefore, no infirmity in the legislation under consideration.
The State Of Karnataka & Ors. vs M/S. Drive-In Enterprises
The Drive-in-Theatre of the respondent with which we are concerned here is a cinema with an open-air-theatre into which admissions are given to persons desiring to see cinema while sitting in their motor cars taken inside the theatre. The Drive-in-Theatre has also an auditorium wherein other persons who are without cars, view the film exhibited therein either standing or sitting. The persons who are admitted to view the film exhibited in the auditorium are required to pay Rs.3/- for admission therein. It is not disputed that the State Government has levied entertainment tax on such admission and the same is being realised. However, if any person desires to take his car inside the theatre with a view to see the exhibition of the films while sitting in his car in the auditorium, he is further required to pay a sum of Rs.2/- to the proprietor of the Drive-in-Theatre. The appellant-State in addition to charging entertainment tax on the persons being entertained, levied entertainment tax on admission of cars inside the theatre. This levy was challenged by the proprietors of the Drive-in-Theatres by means of writ petitions before the Karnataka High Court which were allowed and levy was struck down by a single Judge of the High Court. The said judgment was affirmed by a Division Bench of that Court. It was held, that the levy being not on a person entertained (i.e. Car/Motor vehicle), the same was ultra vires.
- Karnataka Entertainment Tax Act
After the aforesaid decision, the Karnataka Legislature amended the Act by Act No.3 of 1985…After the aforesaid amendments, the appellant herein, again levied entertainment tax on admission of cars into Drive-in- Theatre. This levy was again challenged by means of a petition under Article 226 of the Constitution and the said writ petition was allowed, and as stated above , the High Court struck down (the amendments)…On the arguments of learned counsel of parties, the question arises as to whether the State Legislature is competent to enact law to levy tax under Entry 62 of List II of Seventh Schedule on admission of cars/motor vehicles inside the Drive-in-Theatre…when a levy is challenged, its validity has to be adjudged with reference to the competency of the State Legislature to enact such a law, and while adjudging the matter what is required to be found out is the real character and nature of levy.
Entry 62 of List II of Seventh Schedule empowers the State Legislature to levy tax on luxuries, entertainment, amusements, betting and gambling. Under Entry 62, the State Legislature is competent to enact law to levy tax on luxuries and entertainment. The incidence of tax is on entertainment. Since entertainment necessarily implies the persons entertained, therefore, the incidence of tax is on the person entertained. Coming to the question whether the State Legislature is competent to levy tax on admission of cars/motor vehicles inside the Drive-in-Theatre especially when it is argued that cars/motor vehicles are not the persons entertained. Section 3 which is charging provision, provides for levy of tax on each payment of admission. Thus, under the Act, the State is competent to levy tax on each admission inside the Drive-in-Theatre. The challenge to the levy is on the ground that the vehicle is not a person entertained and, therefore, the levy is ultra vires. It cannot be disputed that the car or motor vehicle does not go inside the Drive-in-Theatre of its own. It is driven inside the Theatre by the person entertained.
- Quality of Entertainment
In other words the person entertained is admitted inside the Drive-in Theatre along with the car/motor vehicle. Thereafter the person entertained while sitting in his car inside the auditorium views the film exhibited therein. This shows that the person entertained is admitted inside the Drive-in Theatre along with the car/motor vehicle. This further shows that the person entertained carries his car inside the Drive-in-Theatre in order to have better quality of entertainment. The quality of entertainment also depends on with what comfort the person entertained has viewed the cinema films. Thus, the quality of entertainment obtained by a person sitting in his car would be different from a squatter viewing the film show. The levy on entertainment varies with the quality of comfort with which a person enjoys the entertainment inside the Drive-in-Theatre. In the present case, a person sitting in his car or motor vehicle has luxury of viewing cinema films in the auditorium. It is the variation in the comfort offered to the person entertained for which the State Government has levied entertainment tax on the person entertained.
- Real Nature of Levy
The real nature and character of impugned levy is not on the admission of cars or motor vehicles, but the levy is on the person entertained who takes the car inside the theatre and watches the film while sitting in his car. We are, therefore, of the view that in pith and substance the levy is on the person who is entertained. Whatever be the nomenclature of levy, in substance, the levy under heading admission of vehicle is a levy on entertainment and not on admission of vehicle inside the Drive-in-Theatre. As long as in pith and substance the levy satisfies the character of levy, i.e. entertainment, it is wholly immaterial in what name and form it is imposed. The word entertainment is wide enough to comprehend in it, the luxury or comfort with which a person entertains himself. Once it is found there is a nexus between the legislative competence and subject of taxation, the levy is justified and valid…We accordingly hold that the impugned levy is valid.
- Article 248:Residuary Powers of Legislation
- (1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.
Union of India vs. H.S. Dhillon
Section 3 of the Wealth Tax Act, 1957, imposes a tax on the capital value of the net wealth of an assessee. Net wealth, under the Act, is the amount by which the aggregate value of all assets of the assessee, computed in the manner provided by the Act, is in excess of the aggregate value of all debts (subject to some exceptions) owed by the, assessee; and assets, under s. 2(e) as it originally stood, meant generally property of every description but not including agricultural land, growing crops, grass or standing trees on such land. Section 24 of the Finance Act, 1969, amended s. 2(e) of the Wealth Tax Act and included agricultural land etc., in the assessee’s assets for the purpose of computing his net wealth. The High Court held that the amendment was beyond the legislative competence of Parliament.
The submissions of Mr. Setalvad, appearing on behalf of the Union in brief were these : That the impugned Act is not a law with respect to any entry (including entry 49) in List II; if this is so, it must necessarily fall within the legislative competence of Parliament under entry 86, read with entry 97, or entry 97 by itself read with Art. 248 of the Constitution; the words “exclusive of agricultural land” in entry 86 could not cut down the scope of either entry 97 List I, or Art. 248 of the Constitution.
The submissions of Mr. Palkiwala, who appeared on behalf of the respondent in the appeal, and the other counsel for the interveners, in brief, were these: It was the scheme of the Constitution to give States exclusive powers to legislate in respect of agricultural land, income on a agricultural land and taxes thereon; in this context the object and effect of specifically excluding agricultural land from the scope of entry 86 was also to take it out of the ambit of entry 97 List I and Art. 248; the High Court was wrong in holding that the impugned Act was not a law in respect of entry 49 List II.
- Questions for Consideration
It seems to us that the best way of dealing with the question of the validity of the impugned Act and with the contentions of the parties is to ask ourselves two questions; first, is the impugned Act legislation with respect to entry 49 List II? and secondly, if it is not, is it beyond the legislative competence of Parliament? We have put these questions in this order and in this form because we are definitely of the opinion, as explained a little later, that the scheme of our Constitution and the actual terms of the relevant articles, namely, Art. 246, Art. 248 and entry 97 List I, show that any matter, including tax, which has not been allotted exclusively to the State Legislatures under List II or concurrently with Parliament under List III, falls within List I, including entry 97 of that list read with Art. 248.
It seems to us unthinkable that the Constitution-makers, while creating a sovereign democratic republic, withheld certain matters or taxes beyond the, legislative competency of the legislatures in this country either legislating singly or jointly.
- Framers’ Intent
There does not seem to be any dispute that the Constitution makers wanted to give residuary. powers of legislation to the Union Parliament. Indeed, this is obvious from Art. 248 and entry 97 List I. But there is a serious dispute about the extent of the residuary power…For example, in entry 82, taxes on agricultural income have been excluded from the ambit of “taxes on income”;, in entry 84 there is exclusion of duties of excise on alcholic liquors for human consumption and on opium, Indian hemp and other narcotic drugs and narcotics; in entry 8-6, agricultural land has been excluded from the field of taxes on the capital value, of the assets; in entry 87, agricultural land has again been excluded’,from the Union Estate duty in respect of property; and in entry 88, agricultural land has been further excluded from the incidence of duties in respect of succession to property. It was urged that the object of these, exclusions was to completely deny Parliament competence to legislate on these excluded matters.
- Content of the Residuary Power
It will be noticed that all the matters and taxes which have been excluded, except taxes on the capital value of agricultural land under entry 86 List I, fall specifically within one of the entries in List II. While taxes on agricultural income have been excluded from entry 82 List I, they form part of entry 46 List II. Duties of excise excluded in entry 84 List I have been included in entry 51 List II; agricultural land exempt in entry 87 List I has been incorporated as entry 48 List II; and, similarly, agricultural land exempted from the incidence of duties in respect of succession to property (Entry 88 List I) has been made the subject-matter of duties in respect of succession in entry 47 List II. It seems to us that from this scheme of distribution it cannot be legitimately inferred that taxes on the capital value of agricultural land were designedly excluded from entry 97 List I…If the residuary subjects had ultimately been assigned to the States could it have been seriously argued that vis-a- vis the States the matter of Taxes on “Capital value of agricultural land” would have been outside the powers of States? Obviously not, If so, there ,can be no reason for excluding it from the residuary powers ultimately conferred on Parliament. The content of the residuary power does not change with its conferment on Parliament.
- Impossible to Limit the Width of Article 248
…if on a proper interpretation of entry 49 List II, read in the light of entry 86 List I, it is held that tax on the capital value of agricultural land, is not included within entry 49 List II or that the, tax imposed by the impugned statute does not fall either in entry 49 List II or entry 86 List I, it would be arbitrary to say that it does not fall within entry 97 List I. We find it impossible to limit the width of art. 248 and entry 97 List I by the words “exclusive of agricultural land” in entry 86 List I. We do- not read the words “any other matter” in entry 97 to mean–that it has any reference to topics excluded in entries 1-96 List I.’ It is, quite clear that the words “any other matter” have reference to matters on which the Parliament has been given power to legislate by the enumerated entries 1-96 List I and not to matters on which it has not been given power to legislate. The matter in entry 86 List I is the whole entry and not the entry without the, words “exclusive of agricultural land”. The matter in entry 86 List I again is not tax on capital value of assets but the whole entry…it would, we think, be erroneous to treat entry 82 List I (Taxes on income other than agricultural income) as containing two matters, one, tax on income, and the other, as “other than agricultural incomes.
- Only Question to be Asked is…
It seems to us that the function of Art. 246 (1), read with entries 1-96 List I, is to give positive power to Parliament to legislate in respect, of these entries. Object is not to debar Parliament from legislating on a matter, even if other provisions of the Constitution enable it to do so. Accordingly, we do not interpret the words “any other matter” occurring in entry 97 List I to mean a topic mentioned by way of exclusion. These words really refer to the matters contained in each of the entries 1 to 96. The words “any other matters’ had to be used because entry 97 List I follows entries 1-96 List I. It is true that the field of legislation is demarcated by entries 1-96 List I, but demarcation does not mean that if entry 97 List I confers additional powers we should refuse to give effect to it. At any rate, whatever doubt there may be on the interpretation of entry 97 List I is removed by the wide terms of Art. 248. It is framed in the widest possible terms. On its terms the only question to be asked is : Is the matter sought to be legislated on included in List II or in List III or is the tax sought to be levied mentioned in List II or in List III ? No question has to be asked about List I. If the answer is in the negative, then it follows that Parliament has power to make laws with respect to that matter or tax.
Although we have held that the impugned Act does not impose a tax mentioned in entry 49, List II, we would like to caution that in case the real effect of a Central Act, whether called a Wealth Tax Act or not, is to impose a tax mentioned in entry 49 List II the tax may be bad as encroaching upon the domain of State legislatures…it is (therefore) not necessary to decide the question whether the impugned Act falls within entry 86 List I, read with entry 97 List I, or entry 97 List I alone…
- Article 254: Repugnancy
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
Hoechst Pharmaceuticals Ltd. vs State Of Bihar
Art. 254 of the Constitution makes provision first, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Art. 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Cl. (1) lays down that if a State law relating to a concurrent subject is ‘repugnant’ to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void…The question of repugnancy under Art. 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy become void.
(To be Read with Slide 23 Gujarat University Case)
Art. 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non-obstante clause in Art. 246(1) read with the opening words “Subject to” in Art. 246(3). In such a case, the State law will fail not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression “a law made by Parliament which Parliament is competent to enact” in Art. 254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the concurrent sphere because Parliament is competent to enact law with respect to subjects included in List III as well as ‘List I“. But if Art. 254(1) is read as a whole, it will be seen that it is expressly made subject to cl. (2) which makes reference to repugnancy in the field of Concurrent List-in other words, if cl. (2) is to be the guide in the determination of scope of cl. (1), the repugnancy between Union and State law must be taken to refer only to the Concurrent field.
- Clause 2: Exception to the General Rule
To the general rule laid down in cl.(1), cl.(2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to cl. (2). The proviso to Art. 254(2) empowers the Union Parliament to repeal or amend a repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the ‘same matter’. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made.
Tests of Repugnancy (Deep Chand Case)
Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:
(1) Whether there is direct conflict between the two provisions
(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and
(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
- Direct Conflict
A State law would be repugnant to the Union law when there is direct conflict between the two laws…We may briefly refer to the three Australian decisions relied upon. As stated above, the decision in Clyde Engineering Company’s case (supra), lays down that inconsistency is also created when one statute takes away rights conferred by the other. In Ex Parte McLean’s case, supra, Dixon J. laid down another test viz., two statutes could be said to be inconsistent if they, in respect of an identical subject-matter, imposed identical duty upon the subject, but provided for different sanctions for enforcing those duties. In Stock Motor Ploughs Limited’s case, supra, Evatt, J. held that even in respect of cases where two laws impose one and the same duty of obedience there may be inconsistency.
- Intended Occupation
The Supreme Court noticed the conclusive test of inconsistency laid down by Isaacs J. in Clyde Engineering Co. Ltd. v. Cowburn, 1926-37 CLR 466. The said test was: “If however, a competent legislature expressly or implicitly evinces its intention to cover the whole field that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.” The Supreme Court also cited with approval the following principle stated by Dixon J. in Ex parte Mclean. 1930-43 CLR 472. “If it appeared that the Federal Law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State, to govern the same conduct or matter.”
- Occupied Field
The test of repugnancy was thus explained by Dixon J. in — ‘Victoria v. The Commonwealth’, 58 Com-W LR 618 (C):
“Substantially it amounts to this. When a State law, if valid, would alter, impair or detract from the operation of the 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 a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent.”
- State of Haryana enacts a law mandating that teachers in Universities in Haryana must be UGC NET qualified;
- The Law does not apply to institutions mentioned in Entries 63, 64 and 65 in List I;
- Union of India then enacts a law whereby teachers in private Universities in India need not be UGC NET qualified if they have a foreign degree;
- Doctrine of pith and substance to be invoked to see if State law and Union Law is relatable to Entry 66 List I or Entry 25 List III; if pith and substance is “coordination and determination of standards in higher education”, State Law can only be challenged on grounds of legislative competence, not repugnancy; If both laws relatable to Entry 25 List III, test of repugnancy to be applied
- Assuming both Laws are Relatable to Entry 25 List III
- Direct conflict between two laws with respect to private Universities in Haryana;
- State Law will not apply to private universities in Haryana as the Union Law “occupies the field” in this respect;
- State Law will however continue to apply to non-private Universities in Haryana as the Union Law does not cover non-private Universities in Haryana;
- Assuming that the State Law postdates the Union Law and is reserved for consideration of the President and assented to, then the State Law will prevail in Haryana over the Union Law [254(2)]
- Power of Parliament to Legislate with respect to a Matter in the State List
Articles 246(4), 247,249-253,352,356
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