LEGISLATIVE COMPETENCE: THE UNION AND THE STATES


V. Niranjan

INTRODUCTION

On 14 November 1946, the Judicial Committee of the Privy Council convened to hear oral

argument in a case that would prove to be one of the last Indian appeals of significance to

come before that august body: Prafulla Kumar Mukherjee v Bank of Commerce, Khulna.1

The Board’s advice in that case, alongside three other important judgments2 given during this

period, should have definitively settled the Indian law of legislative competence. Yet, a

cursory glance at the law reports reveals that this topic—perhaps more than any other part of

Indian constitutional law—continues to defy rationalisation. The thesis of this Chapter is that

this is because of a failure in subsequent cases to distinguish between two distinct concepts

that are at the heart of Part XI of the Constitution of India: the existence of legislative power

(‘competence’) and the exercise of legislative power (‘repugnance’).

These topics—competence and repugnance—encapsulate the legislative relationship

between the States and the Union and are the main concern of this Chapter. Part I provides a

brief overview of the framework of legislative relations under the Indian Constitution and its

legislative history. Part II considers the nature of legislative power under the Indian

Constitution and explains that the failure the failure to separate competence and repugnance

is responsible for the mysterious emergence of new ‘doctrines’ in India (notably the aspect


Barrister, One Essex Court. This chapter appeared in S Choudhry, M Khosla and PB Mehta (eds), Oxford
Handbook of the Indian Constitution (OUP 2016). All comments gratefully received: nv@oeclaw.co.uk.
1
Prafulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna (1946-47) 74 IA 23.
2
Nagaratnam v Seshayya (1939) 49 LW 257 (Mad HC (FB)); ALSPPL Subrahmanyan Chettiar v Muttuswami
Goundan [1940] FCR 188 and Bank of Commerce Ltd v Amulya Krishna Basu [1944] FCR 126.

Electronic copy available at: https://ssrn.com/abstract=2858565

theory) which, on closer examination, are actually indistinguishable from pith and substance.

Part III distinguishes repugnance from competence, and revisits a long-standing controversy

in Indian law about the applicability of art 254(1) to legislation outside the Concurrent List.

Part IV draws the threads together and concludes.

I - LEGISLATIVE COMPETENCE IN THE INDIAN CONSTITUTION:

AN OVERVIEW

Much of Indian law has English roots.3 Constitutional law is no exception. A striking

difference, however, is that Indian Parliament, unlike (at least in theory) its British

counterpart, is not sovereign,4 and this proposition must be the starting point of any analysis

of its legislative competence: Parliament’s power to legislate is located in, and limited by, the

provisions of the Constitution. These provisions, principally articles 245, 246 and 254, are

themselves derived from sections 100 and 107 of the Government of India Act, 1935 (‘the

1935 Act’), and it is to that legislation that one must turn in order to understand why the

Constitution adopts this model.

A. Constitutional Framework and Legislative History : An

Outline

3
This is quite apparent in private law—indeed, some provisions of current Indian legislation are exact
reproductions of observations made in the leading English cases of the day: for eg compare section 70 of the
Indian Contract Act, 1872 with Lampleigh v Brathwait (1615) Hobart 105, 80 ER 255 and section 73 with
Hadley v Baxendale (1854) 9 Exch 341, 359 (Alderson B). For a brilliant exposition of the (similar) origins of
the Indian law of evidence, see JD Heydon, ‘The Origins of the Indian Evidence Act’ (2010) 9 OUCLJ 1 and on
the influence of the common law and equity on early Indian private law generally, see VK John, ‘Principles of
Equity and their Application to Indian Law’ (1928) 28 LW (JS) 29.
4
See, eg, Re Keshav Singh [1965] 1 SCR 413 (Gajendragadkar CJ) and Raja Ram Pal v Lok Sabha (2007) 3
SCC 184 [21]–[22] (Sabharwal CJ).

Electronic copy available at: https://ssrn.com/abstract=2858565

When it was decided in the early 1930s that British India would become a Federation,

legislative competence was naturally a subject that occupied the minds of the legislators. In

1932, the British Government presented a White Paper to Parliament titled ‘Proposals for

Indian Constitutional Reform’ (‘the White Paper’).5 The proposals made in the White Paper

were examined by a Joint Select Committee (‘JSC’), which submitted a report in 1934 (‘the

JSC Report’).6 In these documents lie the seeds of what is today Part XI of the Constitution

of India.

The framework adopted by the JSC—and later by the 1935 Act and the

Constitution—was in some respects unprecedented because it did not precisely correspond

with either of the two models of legislative distribution that were popular at the time.

Common to both models was the allocation of a specific list of enumerated powers to one

legislature and the residue to the other: in the Australian model, the residuary power was with

the Provincial Legislature and in the Canadian, with the Federal Legislature.7 Although the

JSC Report was closer to the Canadian than to the Australian model, it was perhaps the first

attempt to enumerate legislative fields as exhaustively as possible,8 which the Canadian

Constitution (the BNA Act 1867) did not do. Thus, the 1935 Act—as does the Constitution—

divided the fields of legislation into three Lists, with essentially local subjects in Lists II and

III, and pan-Indian subjects in List I.

5
Foreign Office, Proposals for Indian Constitutional Reform (Cmd 4268, 1933).
6
Joint Select Committee on Indian Constitutional Reform, Report of Proceedings Vol I (1934).
7
See generally JP Eddy and FH Lawton, India's New Constitution: A Survey of the Government of India Act,
1935 (2nd edn, Macmillan and Co 1938) and the JSC Report (n 6).
8
M Ramaswamy, The Law of the Indian Constitution: A Legal Interpretation of the Government of India Act,
1935 (Longmans, Green & Co 1938) 217.

3
 This model was adopted in the belief that it would avert some of the contentious

litigation about legislative competence and residuary power that had already come before the

Canadian and Australian courts. Not everyone agreed it would do this: during the debate in

the House of Commons, Eric Bailey, a Conservative MP, cuttingly observed that the House

‘shall, at any rate, be doing a wonderful thing for the legal profession’.9 As this Chapter

shows, Mr Bailey has been proved right. Whether that is because of the model itself or its use

by the courts is a matter I leave for the reader to judge.

II – COMPETENCE: POWER AND REPUGNANCE DISTINGUISHED

A central argument of this Chapter is that the courts have, with respect, fallen into error in

repeatedly conflating the question ‘does this legislature have the power to enact this law’ with

‘does this law conflict with a law enacted by the other legislature’: in short, not distinguishing

between questions of vires and questions of repugnance. As the following sub-section

explains, the use of the expression ‘with respect to’ in article 246 shows that this distinction

is at the heart of Part XI.

A. Questions of Vires—The Expression ‘With Respect To’

Article 246 gives each legislature the power (either exclusively or otherwise) to make laws

‘with respect to’ ‘matters enumerated’ in the respective List. It is this expression that marks a

clear divide between competence and repugnance, because it shows that the test of vires is to

be applied to the legislation as a whole, and not to individual provisions in it. The

significance of this is that a law which ‘as a whole’ is ‘with respect’ to a matter in the

9
HC Deb 27 March 1935, vol 299, col 1965.

4
appropriate List does not become ultra vires simply because it contains provisions which may

also be validly enacted by the other legislature.

One may ask what happens if an intra vires Central law contains a provision which is

inconsistent with an intra vires State law. The answer is that the inconsistency does not affect

the competence of either legislature but is resolved by applying the provisions of the

Constitution that deal with repugnance. Indeed, this is the answer the courts gave in the early

years although, as we shall see, these insights have been obscured by a series of later

Supreme Court decisions.

1. The Early Skirmishes in the Money-Lending Litigation

The money-lending litigation is the best illustration of the proposition that the same provision

may be validly enacted by two different legislatures under different legislative entries. The

1935 Act had placed ‘money-lending and money-lenders’ in the Provincial List and

‘promissory notes’ and ‘banking’ in the Federal List.10 If the argument advanced here about

the meaning of ‘with respect to’ is correct, it should follow that the same provision (eg

regulating the rate of interest payable on a promissory note) can be validly enacted by both

legislatures, in the case of the Union as part of legislation dealing with promissory notes

which happen to involve agriculturists, and in the case of the States as part of legislation

dealing with agricultural loans which happen to be secured by promissory notes. Both laws—

including the provision about interest rates—would be intra vires because both (as a whole)

are ‘with respect’ to the appropriate legislative entry. If individual provisions are inconsistent

(for example if one law prescribes a higher rate of interest than the other), that is a matter for

10
In the Constitution, these correspond to Entry 30, List II (money-lending) and Entries 45 and 46, List I
(banking and promissory notes respectively).

5
art 254, not art 246. But it would be different if the interest rate provision were to be found in

a State legislation dealing only with promissory notes or in a Union legislation dealing only

with agricultural debt because, on that hypothesis, neither legislation is ‘with respect’ to the

appropriate field of legislation.

This is the view that prevailed in the litigation that was to eventually culminate in the

widely cited but misunderstood case of Prafulla Kumar Mukherjee.11 One of the earliest

cases on the point was a decision of a Full Bench of the Madras High Court in Nagaratnam v

Seshayya (‘Nagaratnam’).12 The Madras Agriculturist Debt Relief Act, 1938 (‘the Madras

Act’) provided that a court could ‘scale down’ a debt owed to a money-lender by an

agriculturist whether the debt had ripened into a decree before the commencement of the Act

or not. The money-lenders argued that this law was ultra vires the Provincial Legislature and

alternatively repugnant to sections 32 and 79 of the Negotiable Instruments Act, 1881, which

provided that an acceptor of a negotiable instrument was liable to pay the amount on maturity

according to the apparent tenor of the instrument at the specified rate of interest. I say no

more at this stage about the repugnance point than that it is different from the ‘ultra vires’

point—indeed, it arises only if the ultra vires (ie competence) point fails. As to competence,

Sir Lionel Leach CJ held, correctly, that the Madras Act was intra vires, deriving from the

Privy Council’s jurisprudence the proposition that the same provision can be validly enacted

by more than one legislature, provided each does so as part of a legislation that it is (overall)

competent to enact.

As Lord Hope of Craighead has recently observed, a number of phrases have been

coined to describe the principle that Sir Lionel Leach CJ applied, depending upon the fashion

11
Prafulla Kumar Mukherjee (n 1).
12
Nagaratnam (n 2).

6
of the time: in India, ‘the doctrine of pith and substance’ is undoubtedly the most popular, but

‘true nature and character’, ‘respection doctrine’ and other phrases used in other federal or

devolved jurisdictions embody exactly the same principle.13

The Madras view was not uncontroversial. Meredith J rejected it in Sagarmal

Marwari (‘Sagarmal’),14 a case that came before the Patna High Court two years later,

reasoning that the doctrine of pith and substance applied by the Judicial Committee in the

Canadian appeals could not co-exist with the State’s legislative power being expressly made

‘subject to’ the Union’s. This conflict between the Patna15 and the Madras views was

resolved in favour of the latter in two momentous cases which, even today, remain the most

important judicial contributions to the topic of legislative competence in Indian constitutional

law: Subramanyam Chettiar v Muttuswami Goundan (‘Goundan’)16 and Prafulla Kumar

Mukherjee (‘Prafulla Kumar Mukherjee’).17 Both cases must be closely analysed.

Goundan was effectively a challenge in the Federal Court to Sir Lionel Leach CJ’s

judgment in Nagaratnam: as in that case, the money-lender had obtained a decree on a

promissory note which the court, at the request of the agriculturist, had ‘scaled down’. A

crucial feature of the case is that the promissory note had matured into a decree in November

1934, four years before the commencement of the Madras Act. In the Federal Court, Sir

Maurice Gwyer CJ and Varadachariar J were in the majority, and Sulaiman J dissented on a

different point. However, the Court was unanimous in rejecting the Patna view: the Canadian

13
Martin v Most [2010] UKSC 10 [13] (Lord Hope). This is why, as explained below, the so-called aspect
theory is not a distinct rule at all.
14
Marwari v Ram AIR 1941 Pat 99 (Pat HC).
15
Other High Courts had taken this view as well: Patna is chosen here simply as a representative example.
16
Goundan (n 2).
17
PK Mukherjee (n 1).

7
doctrine of pith and substance ‘evolved by the Judicial Committee … is equally applicable to

the Indian Constitution Act’.18 Sulaiman J’s judgment contains the best explanation of why

the doctrine applies in India: because, said the learned judge, section 100 uses (as does art

246) the expression ‘with respect to’, which mandates an enquiry into the true nature and

character (or pith and substance) of the law as a whole.

On a very strict interpretation of Section 100, it would necessarily follow that

from all matters in List II which are exclusively assigned to Provincial
Legislatures, all portions which fall in List I or List III must be excluded.
Similarly, from all matters falling in List III, all portions which fall in List I
must be excluded… But the rigour of the literal interpretation is relaxed by
the use of the words “with respect to” which as already pointed out only
signify ‘pith and substance,’ and do not forbid a mere incidental
encroachment.19

In other words, although the same provision—the rate of interest payable by an

agriculturist on a promissory note—was in the 1881 and Madras Acts, both were intra vires

because the provision in the one case was enacted as part of the regulation of promissory

notes and in other as part of the regulation of agricultural debt. This, it is submitted, is

correct. But what about the actual conflict between the (intra vires) Madras Act and the (intra

vires) Negotiable Instruments Act? Gwyer CJ held that this was in principle governed by

section 107 of the 1935 Act (art 254 of the Constitution) but that it was unnecessary to decide

it because the creditor’s cause of action was, on the facts of that case, not the promissory note

but the decree, which was unaffected by the 1881 Act. Varadachariar J agreed. This course

was open to Gwyer CJ only because the promissory note had matured into a decree before the

commencement of the Act: if it had not, it would have become necessary to decide whether

the Madras Act was repugnant to the 1881 Act, but the answer would not have affected the

competence of either legislature. Sulaiman J thought that the time of crystallisation was

18
Goundan (n 2) [6] (Sir Maurice Gwyer CJ).
19
Goundan (n 2) (Sulaiman J).

8
irrelevant because the underlying debt was on a promissory note: thus, for him, it became

necessary to apply s 107. This Chapter considers his analysis of repugnance in more detail

subsequently but it suffices at this stage to point out that none of the judges thought that

legislative competence depended upon the terms of the 1881 Act (the analysis would have

been the same even if the 1881 Act had never been enacted) or that the conflict was to be

resolved by applying the doctrine of pith and substance: for the Federal Court, repugnance

and competence were watertight and mutually exclusive compartments.20

2. The Argument of Sir Walter Monckton KC and the Advice of Lord

Porter

This was the state of the law when the Prafulla Kumar Mukherjee litigation commenced.

This too was a challenge to the Bengal Act but this time the decree had been obtained by the

bank after the commencement of the Act: so the repugnance question Gwyer CJ had been

able to leave open in Goundan would now have to be decided. The Calcutta High Court

correctly held that this feature of the case made no difference to competence, because the

Bengal Act was still in pith and substance about moneylending, although it gave rise to a

repugnance issue, unlike in Goundan.21 But how could competence be assailed? In the

Federal Court, counsel for the Bank did it by boldly challenging the proposition—as Sir

Herbert Cunliffe KC22 was to do in the Privy Council—that an incidental encroachment does

not affect the vires of a legislation and invited the Court to endorse the Patna view in

preference to the Madras view that Goundan had accepted. Spens CJ23 declined this invitation

20
See also AK Basu (n 2).
21
Bank of Commerce Ltd v Kar (1944) 48 CWN 403 (Cal HC).
22
PK Mukherjee (n 1) 32.
23
Bank of Commerce Ltd, Khulna v Kar AIR 1945 FC 2, 5 (Spens CJ).

9
and followed Lord Atkin’s observations in Gallagher v Lynn. He also observed, correctly,

that encroachment is intra vires only if the legislation as a whole is ‘with respect to’ a matter

in List II: ‘in such cases a provincial legislation can, if at all, encroach on List I subjects, only

incidentally’.24 However, Spens CJ—perhaps because of a misunderstanding of certain

observations of Viscount Maugham25—erroneously held that the question whether an

encroachment by a State legislature is incidental depends on how far it transgresses into List

I, that is, a ‘substantial’ transgression is ultra vires.

Applying this test of ‘substantiality’, the Bengal Act was ultra vires (not repugnant)

because it ‘substantially affected’ sections 32 and 79 of the 1881 Act by altering the rule

there prescribed that an acceptor of a negotiable instrument is liable to pay the amount on

maturity according to the apparent tenor of the instrument. This, with respect, is exactly the

danger of conflating competence and repugnance: Spens CJ’s test cannot possibly have had

anything to do with ultra vires because it involved comparing the State legislation with a

Federal legislation, rather than a legislative entry. The State law does not cease to be a law

about money-lending simply because it is inconsistent with sections 32 and 79 of the 1881

Act. The ‘substantial effect’ test, on the other hand, is obviously material if the question is

whether the Bengal Act is repugnant to the 1881 Act because there the purpose of the State

law is irrelevant: what matters is whether its provisions actually conflict with the provisions

of the Central law.

24
Kar (n 23) 4 (Spens CJ).
25
A-G for Alberta v A-G for Canada [1943] AC 356 (PC).

10
 In a powerful argument in the Privy Council that repays study, Sir Walter Monckton

KC made exactly this point about this passage from Spens CJ’s judgment:26

That suggested distinction which is drawn between an Act which affects

promissory notes to a substantial extent and one which affects them to a less
extent is unsound, and based on a misunderstanding of what was said27 …
There is, however, nothing in the earlier of those two cases to suggest that the
antithesis in the mind of the Board was “substantial” or “not substantial”; the
distinction they made was between pith and substance and incidental or
ancillary. They were not measuring the degree of interference. What really
vitiates the decision of the Federal Court in this case was that they assumed
that that was the test—substantial or not—and applied it mutatis mutandis to
the impugned Act. It is submitted that, applying what is found in the two last
cited cases, if the impugned Act is in pith and substance a money lending Act,
and the Federal Court have so held, and if the provincial legislature had power
to deal with promissory notes, then no objection can be taken on the ground
that the provincial legislature has dealt with them substantially.

As every Indian lawyer knows, Lord Porter accepted this argument, once again

declining Sir Herbert Cunliffe KC’s invitation28 to endorse the Patna view about the

inapplicability of pith and substance to the Indian Constitution. Lord Porter said:

… the extent of the invasion by the Provinces into subjects enumerated in the
Federal List has to be considered. No doubt it is an important matter, not, as
their Lordships think, because the validity of an Act can be determined by
discriminating between degrees of invasion, but for the purpose of
determining what is the pith and substance of the impugned set. Its provisions
may advance so far into Federal territory as to show that its true nature is not
concerned with Provincial matters, but the question is not, has it trespassed
more or less, but is the trespass, whatever it be, such as to show that the pith
and substance of the impugned Act is not money-lending but promissory notes
or banking? Once that question is determined the Act falls on one or the other
side of the line and can be seen as valid or invalid according to its true
content.29

26
PK Mukherjee (n 1) 29–31 (emphasis mine).
27
By Viscount Maugham.
28
PK Mukherjee (n 1) 32, 33.
29
PK Mukherjee (n 1) 43, 44 (Lord Porter) (emphasis mine).

11
 One may be forgiven for thinking that the clarity—and high authority—of this

exposition should have settled this issue for good. Indeed, the Supreme Court of India has

endorsed Lord Porter’s views—including this very passage30—on innumerable occasions.31

However, the proposition the Supreme Court has actually accepted in recent years is the

‘repugnance fallacy’ that prevailed with Spens CJ, not its rejection by Lord Porter.

This fallacy contains two limbs: first, that the vires (or competence) of a legislation

depends upon the degree of invasion of the other List (‘the first limb’); and second, that the

repugnance of a legislation depends upon its pith and substance (‘the second limb’). Of

these, the second limb is the more serious because it has led the courts astray and produced

the wrong outcome in a number of prominent cases.32

The seeds of the first limb which Lord Porter had so firmly rejected were sown in

Mudholkar.33 The question there was whether the State of Gujarat was competent to prescribe

Gujarati or Hindi as, subject to certain exceptions, an exclusive medium of instruction. Under

Entry 11, List II (as it then was), the State Legislature was entitled to make laws about

‘education…subject to the provisions of Entry … 66 of List I’. Entry 66 of List I entitled

Parliament to make laws about the ‘coordination and determination of standards in

institutions for higher education’. Shah J, who gave the majority judgment, found that the

medium of instruction was part of Entry 66 as well as Entry 11. This may seem a surprising

30
See, eg, Kannan Devan Hills Produce v State of Kerala (1972) 2 SCC 218 [28] (Sikri CJ).
31
See, eg, State of Bombay v Balsara [1951] SCR 682 [16] (Fazl Ali J); Banerji v Mukherjee [1953] SCR 302
[4] (Chandrasekhara Aiyar J); AS Krishna v State of Madras [1957] SCR 399 [4] (Venkatarama Aiyar J) and
State of AP v McDowell & Co (1996) 3 SCC 709 [20] (Jeevan Reddy J).
32
See Part III below.
33
Gujarat University v Mudholkar 1963 Supp (1) SCR 112.

12
conclusion given that Entry 11 is expressly subject to Entry 66.34 However, assuming it is

correct, it should follow from the argument made in this Chapter that a State law about

education may incidentally prescribe the medium of instruction while a Union law about the

coordination and determination of standards may incidentally prescribe the medium of

instruction. Both laws would be intra vires and the conflict, if any, would be resolved by art

254, not art 246. As there was in fact no Union law prescribing a medium of instruction, the

question of repugnance could not have arisen. Shah J recognised the difference between

repugnance and competence but held that the State law is ultra vires if it ‘prejudicially affects

coordination and determination of standards’,35 whether or not a conflicting Union law

actually exists: in other words, if Spens CJ’s ‘substantial effect’ test is satisfied. It appears

that Shah J was influenced by the submission of counsel that the doctrine of pith and

substance is irrelevant to a ‘subject to’ entry. However, as Subba Rao J correctly pointed out

in his dissenting judgment, a ‘subject to’ entry is different only because its scope (unlike an

entry which is not expressly subject to a List I entry) can be limited by the existence of

another entry: this is a matter of construction. Once the point of construction is resolved one

way or the other, the doctrine of pith and substance applies in the usual way, and the degree

of interference is irrelevant except insofar as it goes to show what the pith and substance of

the impugned legislation really is.

To summarise, it is respectfully submitted that the correct position on legislative

competence under Part XI can be formulated in the form of the following five propositions:

34
Unlike other ‘overriding’ entries in List I (for eg 52 and 54), Entry 66 does not need to be triggered by a
‘declaration’ by Parliament. One might think, therefore, that to the extent a field of legislation is found in both
Entry 66 and a State List entry, the former prevails so that the State Legislature has no competence at all with
respect to that field (leaving incidental encroachment aside). Since the Supreme Court did not take this view of
the point of construction, it became necessary to analyse competence and repugnance.
35
Gujarat University (n 33) [23] (Shah J).

13
 (1) Before applying the doctrine of pith and substance, it is necessary to decide what

the words of the relevant legislative entry mean. This is a process of construction36

and entirely independent of the impugned legislation.

(2) Once the meaning of an entry has been ascertained, the doctrine of pith and

substance helps the court ascertain whether the impugned legislation is

attributable to that entry, so construed. Again, the existence of competing

legislation is entirely irrelevant: the impugned legislation is either in the

appropriate List, or not, whatever the other legislature may have done.

(3) The fact that the impugned legislation contains individual provisions which fall

within an entry in a competing List is also irrelevant unless the nature and context

of those provisions shows that the legislation is in fact in pith and substance not

attributable to the appropriate List. Similarly, whether an entry in the competing

list has been ‘substantially’ or ‘peripherally’ invaded is immaterial except as an

index of pith and substance.

(4) If, by applying (1) to (3) above, both legislations are essentially about matters in

the appropriate List, both are intra vires even if they regulate the same activity or

transaction. If common provisions in these legislations factually conflict, art 254,

not art 246, is the answer. If the provisions do not conflict, or if one of the

legislations is not in force, the question of repugnance simply does not arise.

36
Space does not permit a detailed account of this to be given in this Chapter. However, see Mr Seervai’s
illuminating analysis of the main rules of construction, ie broad construction, ancillary powers, harmonious
construction and nomen juris: HM Seervai, Constitutional Law of India: A Critical Commentary (4th edn,
Universal Law 1996) 2.93 and Vol III.

14
 (5) The Supreme Court’s failure to accept (3) and (4) above has produced what I call

the two limbs of the repugnance fallacy: (i) that ‘vires’ depends on the ‘effect’ of

one legislation on the other legislature’s field; and (ii) that ‘repugnance’ depends

on the ‘purpose’ or ‘pith and substance’ of the impugned legislation. The first

limb of the fallacy is exemplified by the judgments of Spens CJ and Shah J in

Kunj Behari and Gujarat University, respectively. The second limb has had more

serious consequences, as Section III explains.

B. The So-Called ‘Aspect Theory’ 37

The failure to articulate the nature of the doctrine of pith and substance is also responsible for

the considerable confusion surrounding the supposed existence of the ‘aspect theory’. It is

respectfully submitted, for the reasons that follow, that there is no such doctrine in Indian

constitutional law and that the repeated references to it are founded on a misunderstanding of

certain observations in Canadian and English cases. Once this is appreciated, it becomes

apparent that what is termed the ‘aspect theory’ is in fact indistinguishable from pith and

substance.

1. The Birth of the ‘Aspect Theory’ in Indian Law: The Federation

Case

The aspect theory emerged as a ‘separate’ rule of legislative competence in the Federation

case (‘Federation’).38 The Federation challenged the vires of the Expenditure Tax Act, 1987,

37
This section has greatly benefited from numerous discussions I have had over the years with Mr Arvind Datar,
Senior Advocate, about the aspect theory, although our views differ.
38
Federation of Hotel & Restaurant Association of India v Union of India (1989) 3 SCC 634.

15
a Central legislation that levied a 10 percent tax on expenditure incurred in a hotel in which

the room tariff exceeded Rs. 400 per day. The State of Gujarat 39 had enacted the Tax on

Luxuries (Hotels and Lodging Houses) Act, 1977 imposing a tax on ‘luxuries’ provided by a

hotel.

The case was argued by eminent counsel. Mr Palkhivala, who appeared for the

petitioners, had two strings to his bow: the Central levy, he argued, was not an ‘expenditure

tax’ because it was imposed on specific items of expenditure rather than on expenditure

generally. The Supreme Court rejected this contention—it is submitted correctly—on the

ground that there was no reason to limit legislative competence to impose a particular tax to

the economist’s definition of it.40 The second argument was that the 1987 Act, in pith and

substance, was a luxury tax under Entry 62, List II. In response, the Attorney General, Mr

Parasaran, invoked Canadian and Privy Council authority to suggest that one subject-matter

may have more than one ‘aspect’, ie, sums expended at hotels may be taxed in their

‘expenditure aspect’ by the Union and in their ‘luxury aspect’ by the States. This contention

prevailed.

Unfortunately, this has given rise to the belief that the ‘aspect theory’ is some special

rule of Canadian law imported into India by Federation, which it is not.41

2. The So-Called ‘Aspect Theory’ is Indistinguishable from ‘Pith and

Substance’

39
Several States had enacted similar legislation. Gujarat is chosen as a representative example.
40
Federation (n 38) [76] (Ranganathan J).
41
See, eg, Bharti Telemedia Ltd v Govt of NCT of Delhi [2011] 182 DLT 665 (Del HC).

16
There are at least three indications that the ‘double aspect theory’ is nothing but pith and

substance by a rather more exotic name.

First, a closer analysis of the two judgments in Federation confirms that the Supreme

Court, in accepting Mr Parasaran’s argument, was simply applying the rule that Sir Lionel

Leach CJ had applied in Nagaratnam—what was the ‘true nature and character’ of the 1987

Act? In other words, what was its pith and substance? For example:

31. Indeed, the law “with respect to” a subject might incidentally “affect”
another subject in some way; but that is not the same thing as the law being on
the latter subject. There might be overlapping; but the overlapping must be in
law. The same transaction may involve two or more taxable events in its
different aspects. But the fact that there is an overlapping does not detract
from the distinctiveness of the aspects.

This passage is making the point that the ‘true nature and character’ (or ‘pith and substance’)

of the 1987 Act was a tax on the act of incurring expenditure which happened to include a

luxury, not a tax on luxuries themselves.

Secondly, the authorities from which Federation is said to have derived a

‘freestanding’ aspect theory actually demonstrate the opposite: that it is the same rule as pith

and substance. The leading authority is generally considered to be Hodge v The Queen,42

which is cited in the work of Mr Lefroy to which the Supreme Court referred in Federation.

In that case, the appellant, who was licensed to run a tavern in Toronto, challenged the vires

of the Liquor License Act, 1877, enacted by the State of Ontario. The Act authorised the

imposition of penalties for contravention of the terms of the licence. Mr Hodge said that this

was exclusively within the Dominion’s competence by virtue of section 91 of the BNA Act

(‘Regulation of Trade and Commerce’). In support of this contention, Mr Kerr QC, who

42
Hodge v The Queen (1883) 9 App Cas 117 (PC).

17
appeared for Mr Hodge, relied on Russell v The Queen43 where the Privy Council had upheld

the Dominion’s competence to enact the Canada Temperance Act, 1878, observing that it was

not, in pith and substance, within section 92 (‘Property and civil rights’): its true nature and

character was the maintenance of public order and it contained provisions about liquor only

incidentally. Their Lordships in Hodge then said this:

It appears to their Lordships that Russell v. The Queen when properly

understood is not an authority in support of the appellant's contention, and
their Lordships do not intend to vary or depart from the reasons expressed for
their judgment in that case. The principle which that case and the case of the
Citizens' Insurance Company illustrate is, that subjects which in one aspect
and for one purpose fall within sec. 92, may in another aspect and for another
purpose fall within sec. 91.44

Again, this is indistinguishable from pith and substance, though the language of ‘aspect’ is

used. Subsequent Canadian cases45 purporting to apply the ‘double aspect’ theory can be

analysed in exactly the same way and illustrate the truth of Lord Hope of Craighead’s

comment46 that the same principle is in play in all these jurisdictions, although the

nomenclature differs.

Thirdly, it is exactly this passage from Hodge that was cited by the High Courts and

Federal Court in the money-lending litigation in support of the proposition that the doctrine

of pith and substance is part of Indian law.47

43
Russell v The Queen (1882) 7 App Cas 829 (PC).
44
Hodge (n 42) [30] (Sir Barnes Peacock).
45
See for eg Multiple Access Ltd v Mccutcheon [1982] 2 SCR 161 (SCC); Rio Hotel v New Brunswick [1987] 2
SCR 59 (SCC); DFS Ventures Inc v Manitoba [2003] 8 WWR 200 (Man CA).
46
Martin (n 13).
47
See, eg, Nagaratnam (n 2).

18
 In sum, it is to be hoped that the Supreme Court will take the next opportunity to

clarify that aspect should not treated as a ‘separate’ rule to be applied after making a

determination about the pith and substance of the impugned legislation.

III – REPUGNANCE: CONFLICTING INTRA VIRES LEGISLATION

Having established that vires depends solely on the construction of the legislative entry and

the impugned (but not the competing) legislation, I can now turn to the obvious question that

arises if this contention is accepted: what if the ‘incidental encroachment’ is inconsistent with

a law passed by the other legislature?

The answer is nominally in art 254 of the Constitution but this provision has given

rise to a number of difficult questions.48 Two of the most important, in the light of recent

developments, are: (1) is ‘actual conflict’ between a State and Central law necessary or can a

State law be ousted by the possibility of conflict? and (2) does article 254(1) only apply to

conflicting legislations within the Concurrent List or also to conflicting legislations across the

Lists? It will be argued that the answers are, respectively, that actual conflict is needed and

that article 254 applies across the Lists. As we will see, the Supreme Court has, with respect

erroneously, given the opposite answer to both questions.

C. Mar Appraem Kuri and Actual Conflict

48
This Chapter cannot explore all of them. Of those it does not discuss, perhaps the most important is the ‘test’
of repugnance. The—with respect, somewhat dubious—view that a State law may be repugnant to a Central law
simply because Parliament ‘intended to occupy the field’ has prevailed: see, for some of the leading cases on
this, Tika Ramji (n 36) [26] (NH Bhagwati J); Karunanidhi v Union of India AIR 1979 SC 898 [24], [35] (Fazal
Ali J); Deep Chand v State of UP 1959 Supp (2) SCR 8; Satyapal Reddy v Govt of AP (1994) 4 SCC 391 [7]
(Ramaswamy and Venkatachala JJ.

19
If the argument advanced in this Chapter is correct, one would expect to find that questions of

repugnance can arise only if both laws are intra vires and actually conflict. If, for example, a

State legislature incidentally encroaches on Federal territory in the course of enacting intra

vires State legislation, and the Federal legislature has not enacted a law covering that field,

though it could have done so, the question of repugnance cannot arise. This was indeed the

law in India between 1935 and 2012, when a Constitution Bench decided State of Kerala v

Mar Appraem Kuri.49 To make good the submission that Mar Appraem Kuri is wrongly

decided, it is necessary to briefly explain how this analysis of repugnance came to be as well-

established as it was before 2012.

The predecessor to art 254 was section 107 of the 1935 Act. That Act, as Part II has

explained, gave effect to the JSC Report. Section 107 of the Government of India Bill was

debated in the House of Commons on 27 March, 1935. In response to a question about its

scope, the Attorney-General said this:

My hon. Friend asks what "repugnancy" means—does it mean that on every

subject upon which a provincial legislature legislates there will be repugnancy
with the Federal legislation? That is not in the least possible. The provincial
legislature will be dealing with some matters for which provision is not made
in Federal legislation, but if there is conflict, a means is provided, so far as the
concurrent field is concerned, in Sub-section (2) of the Clause.50

In other words, section 107 only applies in the event of actual conflict: if the Federal

legislature has either not legislated in the same field or has done so consistently with the

Provincial legislation, the Provincial legislation is not rendered repugnant merely because of

the possibility of conflict.

49
State of Kerala v Mar Appraem Kuri (2012) 7 SCC 106.
50
HC Deb 27 March 1935, vol 299, col 1966.

20
 The courts had nearly unanimously accepted this proposition until 2012. One of the

earliest cases, AK Basu, contains a particularly clear exposition of the point. In 1955, a

Constitution Bench in Tika Ramji51 unequivocally held that repugnance cannot arise in the

absence of actual conflict. The petitioners in that case challenged the UP Sugarcane

(Regulation of Supply and Purchase) Act, 1953 on the ground of vires and alternatively

repugnance. The Act made it compulsory for certain sugar factories to purchase sugarcane

from the Cane Growers Cooperative Society. The Central law—section 18-G of the

Industries (Development and Regulation) Act, 1951—gave the Centre the power to regulate

the supply and distribution of products of scheduled industries, which included sugar. But no

order had in fact been made by the Centre under s 18-G in relation to sugar. The petitioners in

Tika Ramji said that the 1953 UP Act was nevertheless repugnant to section 18-G. The

Supreme Court correctly rejected this contention:

Even assuming that sugarcane was an article or class of articles relatable to the
sugar industry within the meaning of Section 18-G of Act 65 of 1951, it is to
be noted that no order was issued by the Central Government in exercise of
the powers vested in it under that section and no question of repugnancy could
ever arise because, as has been noted above, repugnancy must exist in fact and
not depend merely on a possibility. The possibility of an order under Section
18-G being issued by the Central Government would not be enough. The
existence of such an order would be the essential prerequisite before any
repugnancy could ever arise.52

This has since been uniformly followed.53

51
Tika Ramji (n 36).
52
Tika Ramji (n 36) [32] (NH Bhagwati J) (emphasis mine); SIEL Ltd v Union of India (1998) 7 SCC 26 [20]
(Sujata Manohar J).
53
See, eg, ITC Ltd v Agricultural Produce Market Committee (2002) 9 SCC 232 [96] (Ruma Pal J); see also
Punjab Dairy Development Board v Cepham Milk Specialties Ltd (2004) 8 SCC 621 [12] (Variava J) and State
of Maharashtra v Shah (2008) 13 SCC 5 [48] (Balakrishnan J).

21
 How was the Supreme Court in Mar Appraem Kuri able to reach the contrary

conclusion in the light of this overwhelming authority? It may be helpful to first briefly

describe the facts. The State of Kerala enacted the Kerala Chitties Act, 1975 (‘the Kerala

Act’), which regulated chit funds in the State of Kerala. Parliament had enacted the Chit

Funds Act, 1982 (‘the Central Act’) but this Act had not been extended to the State of

Kerala and was not in force there. The case, therefore, was on all fours with Tika Ramji and

SIEL: a Central legislation that could have been but was not in force in the State whose law

was impugned. Yet, Kapadia CJ distinguished Tika Ramji by relying on certain observations

in MA Tulloch which in fact deal not with repugnance but with the scope of Entry 54, List

II—a matter that goes to competence. His Lordship then held that the Kerala Act was

repugnant to the Central Act because article 254 uses the words ‘law made by Parliament’

and not ‘commencement of a law made by Parliament’.54 Because Parliament had ‘made’ the

1982 Act, although it was not ‘in force’, art 254 applied.

With great respect, it must be said that Kapadia CJ’s reasoning is not only

inconsistent with the authorities described above but fundamentally flawed as a matter of

principle, for it fails to distinguish between competence and repugnance. To say that a State

law is ultra vires on the ground that the law, in pith and substance, is in List I even though

Parliament has not itself legislated in that field is understandable: that is a vires question and

whether Parliament has actually legislated or not is irrelevant. But to say that a State law is

repugnant to a Central law that is not in force is, with respect, to confuse conflict with powers

(or repugnance with vires).

54
Mar Appraem Kuri (n 49) [42] (Kapadia CJ).

22
D. Article 254(1), the Concurrent List and VK Sharma

There has been a long-standing—and perhaps not yet definitively resolved—debate about

whether art 254(1) applies only to a law made under the Concurrent List or also to a law

made under Lists I and II. The view preferred here, although not the one that has found

favour with the Supreme Court, is that art 254(1) does apply across the Lists. I take this view

for principally three reasons: (i) the language of art 254; (ii) perhaps most importantly, its

legislative history, which the Supreme Court did not consider in VK Sharma or any other

case; and (iii) the case law before VK Sharma.

1. The Language of Article 254(1)

There is no doubt that the exception in article 254(2) is confined to legislation in the

Concurrent List. As the next sub-section shows, there is a good reason for this. But does it

follow, as the Supreme Court has held, that the general rule in article 254(1) is also limited in

this way? Consider once again the language of that sub-clause, which can be divided into two

branches.

The expression ‘law made by the Legislature of a State’ is common to both. The first

branch (‘Branch 1’) deals with repugnance between such a law and a ‘law made by

Parliament which Parliament which Parliament is competent to enact…’ while the second

branch (‘Branch 2’) deals with its repugnance with ‘existing55 law’. The expression ‘with

respect to one of the matters enumerated in the Concurrent List’ (‘the CL qualification’) is

found in Branch 2. Branches 1 and 2 are separated by a ‘comma’ which is placed after the

55
Defined in art 366(10) of the Constitution as (essentially) a law made before the commencement of the
Constitution. This, surprisingly, was overlooked in MP Shikshak Congress v RPF Commissioner (1999) 1 SCC
396 [11].

23
word ‘enact’ (the last word of Branch 1). It follows from the rules of English grammar that

the qualifying expression in Branch 2 does not qualify Branch 1. It would have been different

(at least on a purely linguistic analysis) if the comma had been placed after the words

‘existing law’, ie after rather than before Branch 2. It follows that Branch 1 deals with any

law which Parliament is ‘competent to enact’ (ie under List III or List I) and Branch 2 with

pre-1950 legislation referable to matters now enumerated in the Concurrent List. Another

textual indication that the CL Qualification does not qualify Branch 1 is that the words

‘competent to enact’ in Branch 1 would otherwise be otiose: that clause could as well have

said ‘law made by Parliament … with respect to a matter in the Concurrent List’.

This linguistic analysis is not, of course, conclusive: one must still identify the

rationale for making article 254(1) applicable across the Lists. But it shows that there can be

no textual objection to the view preferred in this Chapter: if anything, the language militates

against the contrary view.

2. The Legislative History of Article 254(1)

It is unfortunate that the Supreme Court did not consider the legislative history of article

254(1) because that makes it quite clear that it was intended to apply across the Lists. Section

107 of the 1935 Act, article 254’s predecessor, originally did not contain the CL

Qualification: it was inserted during the debate about the Bill in the House of Commons

simply to cater for pre-1935 legislation. Nor did the Draft Constitution of 1948 contain the

CL Qualification: how it came to be inserted is a matter of some obscurity, but the very fact

that it was not originally a part of what is now article 254(1) shows that Branch 1 was

intended to apply across the Lists.

24
 If the formulation in the GoI Bill had found its way into the Act and then the

Constitution, the VK Sharma position would have been unarguable because the CL

Qualification would not have existed. Why was the CL Qualification inserted into s 107? It

was at the behest of the Attorney-General, Sir Thomas Inskip, who said this in the House of

Commons on 27 March 1935:56

I beg to move, in page 64, line 21, after "enact," to insert: "or to any provision
of an existing Indian law with respect to one of the matters enumerated in the
Concurrent Legislative List." The provisions of this Clause are directed to the
question of repugnancy in connection with laws which the Federal Legislature
is competent to enact. It has been noticed that no provision is made for
repugnancy in the existing law, and this is the first of four Amendments
dealing with the same problem, really drafting Amendments, to effect that
which, I think, everybody will agree is necessary, namely, to provide that
repugnancy in connection with an existing Indian law shall be dealt with in the
same way as repugnancy in connection with a Federal law which may be
passed.

It is submitted that Sir Thomas Inskip’s explanation of why it was felt necessary to

insert the CL Qualification shows beyond doubt that the drafters thought that the

Qualification had the effect of making the general rule applicable to pre-1935 legislation; not

that the Qualification altered the general rule. The view of commentators on the Government

of India Act, 1935, largely accords with this: s 107, they wrote, applies to a conflict between

a Provincial law and a Federal law in any list, or to a pre-1935 Federal law with respect to a

matter in the Concurrent List.57

56
HC Deb 27 March 1935, vol 299, col 1962.
57
See, eg, SM Bose, The Working Constitution in India: A Commentary on the Government of India Act, 1935
(1939) 224; Ramaswamy (n 8) 225.

25
 3. The Case Law Before VK Sharma

Between 1935 and 1990 (when VK Sharma was decided), it had not been firmly established

that art 254 applied to Lists I and II but this was the dominant view. In analysing these

judgments, it is important to ascertain whether the particular case was governed by Branch 1

or Branch 2, ie, whether the competing Central legislation was pre-1935/1950 or post-

constitutional. Branch 2, as we have seen, applies only to a law under List III but these cases

have sometimes been wrongly treated as authorities about the interpretation of Branch 1.

Naturally, as the 1935 Act had just come into force, many of the pre-1950 cases58 dealing

with repugnance, notably Das59 and Megh Raj,60 were Branch 2 cases and are accordingly of

little relevance to the construction of Branch 1.

Many Supreme Court decisions in which the statement was made that article 254 only

applies to Concurrent List legislation are similarly distinguishable: they were either Branch 2

cases,61 or expressly left the Branch 1 point open,62 or found on the facts that there was no

repugnance63 or happened to deal with what was clearly a List III law anyway. 64 None of

58
For eg Goundan (n 2) (Sulaiman J); Kunja Behari (n 23).
59
Das v Province of Bihar [1949] FCR 693 702 (Mukherjea J). The Central law in question was the Code of
Criminal Procedure, 1869, a Branch 2 law.
60
Raj v Rakhia [1942] FCR 53 and Raj v Rakhia AIR 1947 PC 72. The Central legislations were the Contract
Act, 1872 and the Code of Civil Procedure, both (as the Privy Council expressly recognised) Branch 2
legislations.
61
Das (n 59) 702 (Mukherjea J); AS Krishna (n 44); Amaidas v State of Bombay [1955] 1 SCR 799 (not just
because there was a Branch 2 law—the appellant was refused leave to take the repugnance point); AS Krishna (n
31) [4] (Venkatarama Aiyar J); Kaul v State of J&K 1959 Supp (2) SCR 270 [43] (Gajendragadkar J); Bhagwat
Singh v State of Rajasthan [1964] 5 SCR 1 (dealt with art 254(2), not (1)); State of Assam v Devi [1967] 3 SCR
611 [7] (Subba Rao CJ).
62
Tika Ramji (n 36) [26] (NH Bhagwati J); RMDC (Mysore) Pvt Ltd v State of Mysore [1962] 3 SCR 230 [13]
(Kapur J).
63
State of Orissa v Bose 1962 Supp (2) SCR 380 [16] (Gajendragadkar J); Kolhe v State of Maharashtra [1964]
1 SCR 926 [18] (it was in addition a Branch 2 law).

26
these cases can therefore be cited as authority in favour of VK Sharma. On the other hand,

when the point did arise, although it was not clearly established, the courts appeared to favour

the view that Branch 1 did apply to both List I and List II.65 Notable among these is also

Varadachariar J’s judgment in Goundan.

The first case in which the erroneous proposition was accepted as part of the ratio is

probably Bar Council.66 A UP legislation prescribing that Rs. 250 shall be payable as stamp

duty on the issue of a certificate of enrolment to an advocate was challenged as repugnant to

the Advocates Act, 1961, which was a post-Constitutional Central legislation and therefore

governed by Branch 1. It was also under List I. AN Grover J, relying on Prem Nath Kaul (a

Branch 2 case), held that article 254 was inapplicable because the 1961 Act was under List I,

not List III, and distinguished the Farooqui case unconvincingly. Soon, the Supreme Court

began to treat this proposition as settled law,67 notably in Karunanidhi68 and Hoechst.69 But it

was definitively established in VK Sharma, to which I now turn.

64
Jain v Nilratan Prasad Shaw [1965] 2 SCR 6 [4]; State of Assam v Horizon Union [1967] 1 SCR 484 [9]
(Bachawat J); Ahmedabad Mill Owners Assn v Thakore [1967] 2 SCR 437 [11]; Gram Panchayat v Malwinder
Singh (1985) 3 SCC 661 [11] (Chandrachud CJ); Sabhapathy v State of Kerala 1992 Supp (3) SCC 147 [8]
(Agrawal J); Kanaka Gruha Nirmana Sahakara Sangha v Narayanamma (2003) 1 SCC 228.
65
Bhawani Cotton Mills Ltd v State of Punjab [1967] 3 SCR 577 (Central Sales Tax Act, not a Branch 2 law);
State of J&K v Farooqi (1972) 1 SCC 82; ITC v State of Karnataka [1985] Supp 1 SCR 145 [68] (Varadarajan
J) overruled on a different point in ITC v AMPC (n 53).
66
Bar Council of UP v State of UP (1973) 1 SCC 261 [15].
67
For eg Kerala SEB v Indian Aluminium Co Ltd (1976) 1 SCC 466 [3] (Alagiriswami J, who said that counsel
who argued the contrary was ‘confused’).
68
Karunanidhi (n 48) [8] (Fazal Ali J).
69
Hoechst Pharmaceuticals Ltd v State of Bihar (1983) 4 SCC 45.

27
 4. VK Sharma and the Second Limb of the Repugnance Fallacy

The Karnataka Contract Carriages (Acquisition) Act, 1976 (‘the 1976 Act’), enacted under

Entry 42, List III, nationalised contract carriage in the State and prohibited the issue or

renewal of licences to private operators. The Motor Vehicles Act, 1988 (‘the 1988 Act’),

enacted by Parliament under Entry 35, List III, provided that a licence should ordinarily not

be refused to a private operator. There was no doubt that both Acts were intra vires and that

the 1976 Act had incidentally encroached into Entry 35. It was a classic case for applying

article 254. Sawant J, however, held that article 254(1) does not apply unless both legislations

are enacted under the same entry in the Concurrent List. Sawant J also held that one must

apply the doctrine of pith and substance to resolve a repugnance issue under art 254. Three

passages in the judgment call for close scrutiny:

37. It was then contended that when there is a repugnancy between the
legislations under Article 254 of the Constitution, the doctrine of pith and
substance does not apply…

39. … I am of the view that not to apply the theory of pith and substance when
the repugnancy between the two statutes is to be considered under Article 254
of the Constitution, would be illogical when the same doctrine is applied while
considering whether there is an encroachment by the Union or the State
legislature on a subject exclusively reserved for the other ... [T]here is no
reason why the repugnancy between the provisions of the two legislations
under different entries in the same list, viz. the Concurrent List should not be
resolved by scrutinizing the same by the same touchstone. What is to be
ascertained in each case is whether the legislations are on the same subject
matter or not. In both cases the cause of conflict is the apparent identity of the
subject matters. The tests for resolving it therefore cannot be different.

53. The aforesaid review of the authorities makes it clear that whenever
repugnancy between the State and Central legislation is alleged, what has to be
first examined is whether the two legislations cover or relate to the same
subject matter. The test for determining the same is the usual one, namely, to
find out the dominant intention of the two legislations. If the dominant
intention, i.e. the pith and substance of the two legislations is different, they
cover different subject matters.

28
It is respectfully submitted that Sawant J’s analysis is wrong: indeed, it is the second limb of

the repugnance fallacy described in Part II above. It is difficult to understand how the learned

judge reached the conclusion that repugnance is to be determined by the ‘dominant intention’

of the two legislatures: suppose the Bengal Moneylenders Act had provided that the interest

rate shall not exceed 5 percent, and the Negotiable Instruments Act that the contractual rate of

interest shall prevail, the intention of the legislature in each case is plain, but does that assist

in deciding which provision should give way? Secondly, if neither provision is to give way,

Sawant J’s views mean that two contradictory laws can co-exist, provided the ‘object’ of the

two legislatures (as will usually be the case) is different. Yet, it was precisely to avert this

circumstance that art 254 was inserted. Notwithstanding these criticisms, VK Sharma has

generally been followed in the last two decades70 although there are some curious cases71 that

(inconsistently) adopt the correct principle.

In sum, it seems clear that Sawant J’s analysis—alongside the first limb of the

repugnance fallacy and Mar Appraem Kuri—effectively turns Part XI of the Constitution on

its head: now competence is to be determined by a test of ‘substantial interference’ (Gujarat

University), repugnance by the doctrine of ‘pith and substance’ (VK Sharma) and a law can

be repugnant to a law that is not in force (Mar Appraem Kuri). With respect, this proposition

needs only to be stated to be shown to be false: it is unfortunate that it nevertheless represents

the law of India today. One hopes that the Supreme Court takes the next opportunity to

overturn it.

70
See, eg, SPIC v Electricity Inspector (2007) 5 SCC 447 and State of Maharashtra v Shah (2008) 13 SCC 5.
71
See, eg, Kaur v Mann (2001) 4 SCC 262 [18] and Maa Vaishno Devi Mahila Mahavidyalaya v State of UP
(2013) 2 SCC 617 [66] (Swatanter Kumar J). It is impossible to reconcile these cases with VK Sharma.

29
 5. Three Objections to the Argument that VK Sharma is Wrong

One can make a reasonable argument in favour of the result in VK Sharma without

subscribing to its reasoning. In particular, there are three main objections to the argument

advanced in this Chapter. This Section explains why these are important but ultimately not

persuasive.

(i) What is the Rationale for Branch 2?

It must be conceded that it is difficult to find a convincing reason why the drafters chose to

limit Branch 2 to pre-1950 Concurrent List legislation: what if a post-1950 State legislation

had been repugnant to the Companies Act, 1913, the Negotiable Instruments Act, 1881 or any

other pre-1950 List I legislation? Sir Thomas Inskip’s speech on March 27, 1935 suggests

that the drafters perhaps thought that repugnance with a pre-1935/1950 List I law was only a

remote possibility and therefore did not provide for it. This was the explanation favoured by

Varadachariar J in Goundan.

Whatever the reason for the omission, what is the position when a post-1950 State

legislation is repugnant to a pre-1950 Central legislation that is not referable to List III? It

would be a mistake to think that this problem is academic now that 64 years have passed

since the Constitution was adopted, because some of the most important Central legislation

currently in force is ‘existing law’ as defined in article 366(28): the Contract Act (1872), the

Penal Code (1860), the Evidence Act (1872) and the Code of Civil Procedure (1908), to name

but four. The problem was considered at some length by Sulaiman J in his judgment in

Goundan. It will be recalled that Sulaiman J thought that it was necessary to decide the

repugnance point on the ground that the Madras Act, properly construed, dealt with

‘promissory notes’ whether the note had matured into a decree before the commencement of
30
the Act or not. The learned judge asked if Parliament could really have intended that the

States could not override Central legislation in the Concurrent List but could do so in the

Union List? Sulaiman J thought this inconceivable and his solution was to borrow the

doctrine of ‘occupied field’—a most misleading and imprecisely used expression in Indian

law—from Canadian law. By ‘occupied field’, Sulaiman J meant that incidental

encroachment is permitted provided the area of encroachment is not occupied by the

legislature primarily authorised to make laws in that field.

It is unnecessary for the purposes of the argument made in this Chapter to take a view

on this controversy: it is enough to suggest that there is something to be said for Sulaiman J’s

solution although that should not lead one to think that it is the ‘subject to’ clause in art 246

that allows the court to reach this result—to Sulaiman J, it is an implied limitation. There is

some inelegance, no doubt, in applying this implied limitation to a pre-1950 but not to post-

1950 legislation but it is probably the best that can be done given the obscurity surrounding

the reasons for not extending art 254(1), Branch 2, to pre-1950 List I legislation as well.

(ii) Does it Render the Non-Obstante Clause in Article 246 Redundant?

The second major objection to the view that VK Sharma is wrong is that the words

‘notwithstanding’ and ‘subject to’ in sub-clauses (1) and (3) of article 246 are rendered

redundant. If VK Sharma is good law, on the other hand, it is those phrases that result in the

invalidation of a State legislation that is inconsistent with a Central legislation under List I to

the extent of its incidental encroachment.72

It is submitted for four reasons that this objection, although an important one, is

misconceived. First, there is Privy Council authority for the proposition that the reason for the

72
ITC v AMPC (n 53) (Ruma Pal J).

31
insertion of ‘notwithstanding’ and ‘subject to’ in article 246(1) and (3) was to ensure that
73
legislative entries in Lists I and III—not legislations—override entries in List II. It is true

that this must now be read in the light of the Supreme Court decisions74 purporting to apply

the non-obstante clause to repugnancy but that view is itself a result VK Sharma and the need

to find a constitutional mechanism to resolve a conflict to which article 254 does not apply.

Secondly, it is submitted that the Privy Council’s view is preferable in principle,

because what the ‘subject to’ clause in art 246(3) qualifies is the State Legislature’s power to

enact laws and not the exercise of that power. This must mean that the State lacks

competence to enact a law if the ‘subject to’ clause is attracted and yet it is clear that the law

is intra vires except to the extent of the incidental encroachment. It is not easy to see how art

246 can achieve this ‘partial’ intra vires, although art 254 can.

Thirdly, as a matter of drafting technique, it is difficult to understand why the drafters

would have wished to deal with a List I/II conflict in art 246 but with a List III conflict in art

254.

Finally, it may simply be that the words were inserted ex abundanti cautela,

particularly because the contrary view cannot explain the legislative history set out above: if

it is correct, there was no constitutional mechanism to deal with conflicting List III

legislations before Sir Thomas Inskip’s amendment on March 27, 1937, but it is clear that

this was not the intention of the framers of the 1935 Act.

73
Governor-General in Council v Province of Madras [1945] FCR 179 (PC) 191 (Lord Simonds).
74
See, eg, Hoechst (n 69) [38] (AP Sen J); VK Sharma (n 72) [99] (Ramaswamy J); ITC v AMPC (n 53) [93]
(Ruma Pal J) and Govt of AP v JB Education Society (2005) 3 SCC 212 [12] (Balakrishnan J).

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 (iii) What is the Rationale for Confining Article 254(2) to the Concurrent
List?

The last, and it is submitted the least persuasive, objection to the criticism of VK Sharma is

that there is no reason why the Presidential assent exception in art 254(2) should be confined

to the Concurrent List if the main rule in art 254(1) applies across the Lists. On the contrary,

the White Paper and the JSC Report explain that the Concurrent List was created to allow

Parliament to legislate on what are essentially local subjects, if it felt that uniformity is

required, for example, in dealing with such matters as civil and criminal procedure. 75 But it

was thought that the States could be denuded of much legislative power by an ‘active Centre’

if the Act simply conferred concurrent powers and left it at that. The solution devised was to

allow individual States to override Central legislation by obtaining Presidential consent, and

the reason this option is given with respect to List III but not List I is that only List III deals

with ‘essentially provincial subjects’.76

CONCLUSION

It is fairly clear, even from this Chapter’s relatively abridged account of this important branch

of the law, that something has gone wrong in the analysis of legislative competence in the

Indian courts. This Chapter has suggested that it is the failure to articulate two underlying

principles that form the bedrock of Part XI: competence, which is governed only by art 246

and the Lists, and repugnance, which is governed by art 254 but not by art 246. None of this

can be set right below the level of a Constitution Bench of the Supreme Court which, it is to

be hoped, will begin afresh when the point next arises.

75
White Paper (n 5) [114].
76
JSC Report (n 6) [233]. See also Bose (n 57) 215.

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 I conclude this Chapter with a summary, in the form of six propositions, of what it is

respectfully submitted is the correct position of law:

1. Unlike British Parliament, Indian Parliament and the State Legislatures derive their

power to legislate from the Constitution. The Constitution provides two mechanisms

to address the inevitable inconsistencies that arise from giving legislative power to

two legislatures: first, it attempts to define (as exhaustively as possible) the fields of

legislation committed exclusively to each and the fields committed concurrently to

both; second, it provides a simple rule to identify which legislation (not legislature)

has priority should two intra vires legislations containing inconsistent provisions

collide. This Chapter has referred to the former mechanism as ‘competence’ and to

the latter as ‘repugnance’.

2. The first question that a court must ask itself is whether the legislation is attributable

to the appropriate List. This follows from the use of the expression ‘with respect to’,

which is found in all three sub-clauses of art 246. As Sulaiman J and Lord Porter

explained, the question is therefore whether the legislation as a whole (and not

individual provisions in it) is ‘with respect to’ the legislative entry in question. The

existence of competing legislation is entirely irrelevant at this stage: if a State law is

challenged as ultra vires, the position is exactly the same whether Parliament has

enacted legislation on that subject or not. This is essentially a process of construction:

is this legislation, properly construed, ‘with respect to’ this legislative entry, properly

construed?

3. The principle the courts have devised for this process of construction has been given

various names in the common law world. The most popular one in India is ‘the
34
 doctrine of pith and substance’. The result of applying it is that individual provisions

referable to the wrong List can be upheld in a legislation that is (as a whole) ‘with

respect’ to the correct List. The degree to which the individual provision invades the

wrong List is irrelevant except, as Lord Porter and Sir Walter Monckton explained, to

the extent it transforms the character of the legislation as a whole; if it does, the

legislation is no longer ‘with respect to’ the correct List and therefore wholly void.

4. Once Principles (1)–(3) have been applied, the impugned legislation will be found to

be either within or outside the competence of the legislature. If the latter, the enquiry

ends and the law is void. If the former, the next question is whether the legislation

actually conflicts with another legislation (also competently enacted, in accordance

with (1) to (3) above). That is governed by art 254(1). For this enquiry, the purpose of

the impugned or the competing legislation and the doctrine of pith and substance are

irrelevant: if there is no factual repugnance, both legislations are valid. It is a failure

to appreciate this that led the Supreme Court astray in Mar Appraem Kuri:

competence deals with power, and repugnance with actual conflict not its possibility.

5. Art 254(1) applies across Lists I, II and III. VK Sharma is wrongly decided and should

be overruled. It is wrong for two principal reasons. First, it too holds that repugnance

falls to be decided by applying the doctrine of pith and substance, which this Chapter

has shown is not accurate. Second, it did not consider the legislative history of s 107

of the Government of India Act, 1935, and notably the debate in the House of

Commons on 27 March, 1935, which clearly demonstrates that the ‘Concurrent List

Qualification’ was inserted by way of amendment to ensure that the basic rule applies

to the Qualification, undermining the opposite inference which VK Sharma drew.

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6. If Points (1) to (5) above are accepted, it would also follow that there is no room for a

‘freestanding’ aspect theory. What is thought to be a distinct aspect theory is in fact

indistinguishable from pith and substance, for the reasons given in Section II of this

Chapter.

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