CONSTITUTIONAL LAW: Doctrine of occupied field

Introduction: what is the doctrine

Indian constitution is the longest written constitution in the world. It elaborately deals with
the powers, functions and limitations of state bodies and has been the subject of much judicial
and academic scrutiny. Our constitution is referred to as quasi federal which means that it
encompasses all the features of a federation, but the union government holds the last say in
the matter. Division of legislative power between centre and state is one of the fundamental
aspects of federalism. Powers of Parliament and state legislature have been delineated
through the provisions of three lists in the seventh schedule of the constitution. However,
considerable legal controversy arises over the scope of certain entries because of their being
made subject to the Acts of Parliament. The Doctrine of Occupied Field is held in such cases
by the Supreme Court. Its general concept relates to the situation where two legislative
authorities have jurisdiction to legislate over one field. Thus, here it refers to those legislative
entries of state list, which are expressly made ‘subject’ to a corresponding entry in either the
union or the concurrent list. When the superior legislative authority has already enacted a
legislation on the field in question it prevents the remaining legislative authority from
enacting any law thereon irrespective of the fact whether the existing legislation is exhaustive
or not. That field is termed as “occupied”. Our constitutional scheme holds parliament as the
supreme law-making body. Normally, the central laws and the state laws are construed
harmoniously by the courts. However, the central law prevails when the parliament tries to
occupy a field of the state law.

Its evolution
The constitution strives to remove all the ambiguity by clearly demarcating the legislative
jurisdiction of the centre and state in the three lists of the seventh schedule. It has also
conferred the territorial competence on the legislature by the means of Article 245 in which
union parliament is given the power to legislate for whole or any part of the territory of India
and the state legislature has been given the power to legislate for whole or any part of the
territory of a state. The Union Parliament is also conferred with the power to legislate extra-
territorially. Article 246 gives exclusive field for legislation to the respective legislatures. The
Union Parliament has the items of union list as exclusive field of legislation and the state
legislature has the items of state list. certain other provisions also provide exclusive fields of
legislation for Union Parliament, such as, Article 252 empowers the Parliament to exclusively
legislate on the items in state list when the house of legislature of the concerned state passes
such resolution and authorises it. Article 253 also creates an exclusive field for the Union
Parliament which is implementation of any treaty or agreement with an other country or the
implementation of a decision made at any international association, or conference or any
other body.
As seen above, the constitution attempts to exclusively demarcate the fields of legislation for
the Union Parliament and the state legislature but it has not been an area of the utmost clarity
and has been subject to judicial interpretation and academic speculation. The fields of
legislation have mainly overlapped in the following three main ways:
  Division of a subject of the nature of wide scope between state and union legislative
authority. The nature of such subject prevents from a clear division and thus results in
overlapping of the fields.
 Certain entries in the state list are described as comprising of matters not specified in
List I, i.e., the Union List. For example, entry 13 speaks of such other means of
communication not specified in union list, entry 32 talks about incorporation,
regulation, and winding up of corporations other than stated in union list, entry 63
gives reference to rates of stamp duty for those documents which are not under List I.
 The exclusive field in favour of state is made subject to another exclusive field which
is carved out of it and reserved in favour of the union.
Due to these reasons the overlapping of field occurs and the union and state legislative
fields need to be separated by the court of law. for the purpose of resolving such conflicts
of resolution between exclusive fields of legislation, it is imperative to ascertain the field
and characterise the legislation to know which field the law relates to.
Thus, through the means of various case laws the doctrine of occupied field evolved. It
strives to resolve the conflict where the centre or state legislature occupy other’s field of
legislation.

Salient features
The doctrine of occupied field is attributed with the following salient features:
 This doctrine precedes the doctrine of repugnancy. It re-enforces the Parliament as the
supreme law-making authority, thus, where the Parliament tries to occupy the field of
the state legislature, it is the centre law that is to prevail.
 Actual commencement of the law is not important for the purpose of attracting
doctrine of occupied field. According to article 254, as soon as union law receives
assent of the president, it is said to be a law made by the parliament. Enacting such a
legislation simply implies that the parliament intends to occupy the field to state
legislation and thus the doctrine of occupied field is attracted.
 It is concerned with existence of legislative power and not exercise of legislative
power. This doctrine has nothing to do with the conflict of laws between state and
centre, it merely operates to the extent of determination of the existence of legislative
power over certain field which has been occupied.

Landmark judgements
Doctrine of occupied field is attracting even when the actual commencement of law hasn’t
taken place, this can be understood with the help of a landmark case, State of Kerala v. Mar
Appraem Kuri. in this case, the central law of Chit Fund Act was yet to be enacted by issuing
a notification under section 3 of the Central Act. Meanwhile, a separate act on chit funds was
enacted by the state of Kerala, called Kerala Chitties Act. It was held by the Supreme Court
that even an un-notified central law attracted Article 254. Since Article 254 used the words
‘made’ or ‘making’ the intention of the centre to occupy a field is established even when the
law is not notified.
In some cases, just a proper delimitation of the field may solve any apparent conflict. The
case of State of Madras v. Gannon Dunkerley & Co. Limited it was found that the essential
ingredient of ‘sale of goods’ is agreement to sell moveable for a price and passing off of the
property. Thus, in a works contract there was no ‘sale of goods’ as such and so the Provincial
Legislature had no power to levy sales tax on the price of the materials used in works
contract.

Critical analysis and Conclusion

The doctrine of occupied field assists the courts in smoothly resolving the conflicts that arise
concerning the legislative authority of the various bodies on one field. There may be many
aspects on which the ultimate decision is based but the basics of the doctrine are only
concerned with the intent of the Union Legislature to occupy a certain field. The existence of
this doctrine furthers the constitutional intent to project the Parliament as the supreme law-
making body. This doctrine is not in the slightest concerned with the conflict between the
laws. It is simply a way of referring to certain entries in the state list which are expressly
made subject to the union list or concurrent list. The two important instances of such entries
are entry 24 of List II which concerns industries and is made subject to entry 52, List 1 which
empowers the parliament to declare the control of certain industries by the Union if it is in
public interest, and entry 23, List II, which concerns mines and mineral development and is
made subject to entry 54, List I which empowers the Parliament to declare that the control of
mine and minerals by Union is in public interest. By making such declarations in the
legislation through the means of certain acts such as Essential Commodities Act or MMRDA,
the Parliament acquire legislative jurisdiction over a field which would otherwise be a subject
to state legislation. Thus, the state is entirely denuded of legislative competence in such
matters.
This doctrine does not deal with conflict of laws and is neither subject to enactment of laws,
mere existence of legislative intent is enough for the doctrine to operate. The doctrine of
occupied field gives a clear-cut direction that in case there is a legislative intent of the Union
to occupy a field of State Legislature, the central law is to prevail.