LEGISLATIVE COMPETENCE

the Union and the States

V NIRANJAN*

I. 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 Ltd, 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. Section II provides a brief overview of
the framework of legislative relations under the Indian Constitution and its legislative history. Section
III considers the nature of legislative power under the Indian Constitution and explains that the failure
to separate competence and repugnance is responsible for the mysterious emergence of new
‘doctrines’ in India (notably the aspect theory) which, on closer examination, are actually
indistinguishable from pith and substance. Section IV distinguishes repugnance from competence, and
revisits a long-standing controversy in Indian law about the applicability of Article 254(1) to
legislation outside the Concurrent List. Section V draws the threads together and concludes.

II. 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.
1. Constitutional Framework and Legislative History: An Outline
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 entitled ‘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.
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, 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.

III. COMPETENCE: P OWER 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.

1. 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 Lists. 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 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.

a. The Early Skirmishes in the Moneylending Litigation

The moneylending 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
(eg, if one law prescribes a higher rate of interest than the other), that is a matter for Article 254, not
Article 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 moneylender by an agriculturist whether the debt had ripened into a decree
before the commencement of the Act or not. The moneylenders 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 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
coexist 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 moneylender 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 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 Article 246) the expression ‘with respect to’, which mandates an inquiry into the true
nature and character (or pith and substance) of the law as a whole:
On a very strict interpretation of s. 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 the 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 (Article 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 irrelevant because the underlying debt was on a promissory note: thus, for him, it became
necessary to apply section 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

b. 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 and
followed Lord Atkin’s observations in Gallagher v Lynn.24 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’.25
However, Spens CJ—perhaps because of a misunderstanding of certain observations of Viscount
Maugham26—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 moneylending 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.
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:
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.28
As every Indian lawyer knows, Lord Porter accepted this argument, once again declining Sir Herbert
Cunliffe KC’s invitation29 to endorse the Patna view about the inapplicability of pith and substance to
the Indian Constitution. Lord Porter said:
[T]he 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 Act. 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.30

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 passage31—on innumerable occasions.32 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.33
The seeds of the first limb which Lord Porter had so firmly rejected were sown in Mudholkar.34
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 conclusion given that Entry 11 is expressly subject to Entry 66.35 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 Article 254, not Article
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 … ’,36 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:

(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 construction37 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
show 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 legislation 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 legislation factually conflict, Article 254, not Article 246, is the
answer. If the provisions do not conflict, or if one of the legislation is not in force, the question
of repugnance simply does not arise.
(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 Kunja Behari and Gujarat University, respectively. The
second limb has had more serious consequences, as Section III explains.

2. The So-called ‘Aspect Theory’

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.38

a. 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’).39 The Federation challenged the vires of the Expenditure Tax Act 1987, a Central
legislation that levied a 10 per cent tax on expenditure incurred in a hotel in which the room tariff
exceeded Rs 400 per day. The State of Gujarat40 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. 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.41 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, Parasaran, invoked Canadian and Privy Council authority to suggest that one
subject matter may have more than one ‘aspect’, that is, 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.42

b. The So-called ‘Aspect Theory’ is Indistinguishable from ‘Pith and Substance’

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 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,43 which is cited in the work of 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.
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, Kerr QC, who
appeared for Hodge, relied on Russell v The Queen,44 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 Sect. 92, may in another aspect and for another purpose fall within Sect. 91.45

Again, this is indistinguishable from pith and substance, though the language of ‘aspect’ is used.
Subsequent Canadian cases46 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 comment47 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 moneylending litigation in support of the proposition that the doctrine of pith and substance is
part of Indian law.48
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.

IV. 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 Article 254 of the Constitution, but this provision has given rise to a
number of difficult questions.49 Two of the most important, in the light of recent developments, are: (i)
is ‘actual conflict’ between a State and Central law necessary or can a State law be ousted by the
possibility of conflict? and (ii) does Article 254(1) only apply to conflicting legislation within the
Concurrent List or also to conflicting legislation 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.

1. Mar Appraem Kuri and Actual Conflict

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 constitutional bench decided State of Kerala v Mar Appraem Kuri.50 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 Article 254 was section 107 of the 1935 Act. That Act, as Section 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.51

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.
The courts had nearly unanimously accepted this proposition until 2012. One of the earliest cases,
Amulya Krishna Basu, contains a particularly clear exposition of the point. In 1955, a constitutional
bench in Tika Ramji52 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 sugar cane 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 section 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.53

This has since been uniformly followed.54

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 dealt 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’.55 Because Parliament had ‘made’ the 1982 Act,
although it was not ‘in force’, Article 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).

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

There has been a long-standing—and perhaps not yet definitively resolved—debate about whether
Article 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 Article 254(1) does apply across the Lists. I take this view for principally three
reasons: (i) the language of Article 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.

a. 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 is competent to enact … ’, while the second branch (‘Branch 2’) deals with its repugnance
with ‘existing56 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 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’, that is, 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.

b. 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.
If the formulation in the Government of India 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 section 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:
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.57

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: section 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.58

c. The Case Law Before VK Sharma

Between 1935 and 1990 (when VK Sharma was decided), it had not been firmly established that
Article 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, that is,
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 cases59 dealing with repugnance, notably Das60 and Megh Raj,61 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,62 or
expressly left the Branch 1 point open,63 or found on the facts that there was no repugnance64 or
happened to deal with what was clearly a List III law anyway.65 None of 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.66 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.67 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 Farooqi case
unconvincingly. Soon, the Supreme Court began to treat this proposition as settled law,68 notably in
Karunanidhi69 and Hoechst.70 But it was definitively established in VK Sharma,71 to which I now
turn.

d. 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 legislation 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
Article 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.72

It is respectfully submitted that Sawant J’s analysis is wrong: indeed, it is the second limb of the
repugnance fallacy described in Section 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 per cent, 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 coexist, provided the ‘object’ of the two legislatures (as will usually be
the case) is different. Yet, it was precisely to avert this circumstance that Article 254 was inserted.
Notwithstanding these criticisms, VK Sharma has generally been followed in the past two decades,73
although there are some curious cases74 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.

e. 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 27 March 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 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 Article 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
Article 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.75
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 insertion of
‘notwithstanding’ and ‘subject to’ in Articles 246(1) and (3) was to ensure that legislative entries in
Lists I and III—not legislation—override entries in List II.76 It is true that this must now be read in
the light of the Supreme Court decisions77 purporting to apply the non-obstante clause to repugnancy,
but that view is itself a result of 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 Article 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 Article 246 can achieve this ‘partial’ intra vires,
although Article 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 Article 246 but with a List III conflict in Article 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 legislation before Sir Thomas Inskip’s
amendment on 27 March 1937, but it is clear that this was not the intention of the framers of the 1935
Act.
(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 Article 254(2) should be confined to the
Concurrent List if the main rule in Article 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.78 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’.79

V. 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 Article 246 and the Lists, and repugnance, which
is governed by Article 254 but not by Article 246. None of this can be set right below the level of a
constitutional bench of the Supreme Court which, it is to be hoped, will begin afresh when the point
next arises.
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; secondly, it provides a simple rule to
identify which legislation (not legislature) has priority should two intra vires legislation
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 Article 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 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 inquiry 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 Article 254(1). For this inquiry, 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 legislation 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 and not
its possibility.
5. Article 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. Secondly, it did not consider the legislative history of section 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.
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.

* I am grateful to the editors of this volume for inviting me to present this paper at a stimulating conference in Delhi, and to them and
the participants for the many useful comments that I received. I am also grateful to the librarians at the Bodleian Law Library for
providing me with invaluable historical material relating to the Government of India Act 1935, and to Divyanshu Agrawal for research
assistance in relation to the doctrine of occupied field.
1
Prafulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna (1946–47) 74 IA 23.
2
Nagaratnam v Seshayya (1939) 49 LW 257 (Mad High Court (FB)); ALSPPL Subrahmanyan Chettiar v Muttuswami Goundan
[1940] FCR 188; and Bank of Commerce Ltd v Amulya Krishna Basu [1944] FCR 126.
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: 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, Special Reference No 1 of 1964 AIR 1965 SC 745 (Gajendragadkar CJ) and Raja Ram Pal v Speaker, Lok Sabha
(2007) 3 SCC 184 [21]–[22] (Sabharwal CJ).
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) (JSC Report).
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.
9
HC Deb 27 March 1935, vol 299, col 1965.
19
Goundan (n 2) 218 (Sulaiman J).
10
In the Constitution, these correspond to Entry 30, List II (moneylending) and Entries 45 and 46, List I (banking and promissory
notes, respectively).
11
Prafulla Kumar Mukherjee (n 1).
12
Nagaratnam (n 2).
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 (Patna High Court).
15
Other High Courts had taken this view as well: Patna is chosen here simply as a representative example.
16
Goundan (n 2).
17
Prafulla Kumar Mukherjee (n 1).
18
Goundan (n 2) 201 (Sir Maurice Gwyer CJ).
20
See also Amulya Krishna Basu (n 2).
28
Prafulla Kumar Mukherjee (n 1) 29 (emphasis added).
30
Prafulla Kumar Mukherjee (n 1) 43, 44 (Lord Porter) (emphasis added).
21
Bank of Commerce Ltd v Kar (1944) 48 CWN 403 (Calcutta High Court).
22
Prafulla Kumar Mukherjee (n 1) 32.
 23
Bank of Commerce Ltd, Khulna v Kunja Behari Kar [1944] 6 FCR 370, 382 (Spens CJ).
24
[1937] AC 863.
25
Kunja Behari (n 23) 382 (Spens CJ).
26
A-G for Alberta v A-G for Canada [1943] UKPC 5.
27
By Viscount Maugham.
29
Prafulla Kumar Mukherjee (n 1) 32.
31
See eg, Kannan Devan Hills Produce v State of Kerala (1972) 2 SCC 218 [28] (Sikri CJ).
32
See eg, State of Bombay v FN Balsara AIR 1951 SC 318 [16] (Fazl Ali J); DN Banerjee v PR Mukherjee AIR 1953 SC 58 [4]
(Chandrasekhara Aiyar J); AS Krishna v State of Madras AIR 1957 SC 297 [4] (Venkatarama Aiyar J) and State of AP v McDowell
& Co (1996) 3 SCC 709 [20] (Jeevan Reddy J).
33
See Section III below.
34
Gujarat University v Shri Krishna Ranganath Mudholkar AIR 1963 SC 703.
35
Unlike other ‘overriding’ entries in List I (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.
36
Gujarat University (n 34) [23] (Shah J).
37
Space does not permit a detailed account of this to be given in this chapter. However, see Seervai’s illuminating analysis of the main
rules of construction, that is, broad construction, ancillary powers, harmonious construction and nomen juris: HM Seervai,
Constitutional Law of India: A Critical Commentary, vol 3 (4th edn, Universal Book Traders 2002) 2.93.
38
This section has greatly benefited from numerous discussions I have had over the years with Arvind Datar, Senior Advocate, about
the aspect theory, although our views differ.
39
Federation of Hotel & Restaurant Association of India v Union of India (1989) 3 SCC 634.
40
Several States had enacted similar legislation. Gujarat is chosen as a representative example.
41
Federation (n 39) [76] (Ranganathan J).
42
See eg, Bharti Telemedia Ltd v Govt of NCT of Delhi [2011] 182 DLT 665 (Delhi High Court).
45
Hodge (n 43) 67–68 (Sir Barnes Peacock).
43
Hodge v The Queen [1883] UKPC 59.
44
Russell v The Queen [1882] UKPC 33.
46
See eg, Multiple Access Ltd v Mccutcheon [1982] 2 SCR 161 (Canada Supreme Court); Rio Hotel v New Brunswick [1987] 2
SCR 59 (Canada Supreme Court); DFS Ventures Inc v Manitoba [2003] 8 WWR 200 (Manitoba CA).
47
Martin (n 13).
48
See eg, Nagaratnam (n 2).
49
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 v State of Uttar Pradesh AIR 1956 SC 676 [26]
(NH Bhagwati J); Deep Chand v State of Uttar Pradesh AIR 1959 SC 648 [28] (Subba Rao J); M Karunanidhi v Union of India
(1979) 3 SCC 431 [24], [35] (Fazal Ali J); S Satyapal Reddy v Govt of Andhra Pradesh (1994) 4 SCC 391 [7] (Ramaswamy and
Venkatachala JJ).
53
Tika Ramji (n 49) [32] (NH Bhagwati J) (emphasis added); SIEL Ltd v Union of India (1998) 7 SCC 26 [21] (Sujata Manohar J).
50
(2012) 7 SCC 106.
51
HC Deb 27 March 1935, vol 299, col 1966 (emphasis added).
52
Tika Ramji (n 49).
54
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 Bharat Shanti
Lal Shah (2008) 13 SCC 5 [48] (Sharma J).
55
Mar Appraem Kuri (n 50) [42] (Kapadia CJ).
56
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].
57
HC Deb 27 March 1935, vol 299, col 1962 (emphasis added).
58
See eg, SM Bose, The Working Constitution in India: A Commentary on the Government of India Act, 1935 (1939) 224;
Ramaswamy (n 8) 225.
59
See eg, Goundan (n 2) (Sulaiman J).
60
Lakhi Narayan Das v Province of Bihar 1950 MWN (Cri) 46 (2), 48 (Mukherjea J). The Central law in question was the Code
of Criminal Procedure 1869, a Branch 2 law.
61
Megh Raj v Allah Rakhia [1942] FCR 53 and Raj v Rakhia [1947] UKPC 5. The Central legislation were the Contract Act 1872
and the Code of Civil Procedure, both (as the Privy Council expressly recognised) Branch 2 legislation.
62
Das (n 60) 48 (Mukherjea J); Saverbhai Amaidas v State of Bombay AIR 1954 SC 752 [8] (Venkatarama Aiyar J) (not just
because there was a Branch 2 law—the appellant was refused leave to take the repugnance point); AS Krishna (n 32) [4]
(Venkatarama Aiyar J); Prem Nath Kaul v State of Jammu and Kashmir AIR 1959 SC 749 [43] (Gajendragadkar J); Bhagwat Singh
Bahadur v State of Rajasthan AIR 1964 SC 444 [14] (Shah J) (dealt with art 254(2), not (1)); State of Assam v Labanya Probha
Devi AIR 1967 SC 1575 [7] (Subba Rao CJ).
63
Tika Ramji (n 49) [26] (NH Bhagwati J); RMDC (Mysore) Pvt Ltd v State of Mysore AIR 1962 SC 594 [13] (Kapur J).
64
State of Orissa v Bhupendra Kumar Bose AIR 1962 945 [16] (Gajendragadkar J); Ukha Kolhe v State of Maharashtra AIR
1963 SC 1531 [18] (Shah J) (it was in addition a Branch 2 law).
65
Tansukh Raj Jain v Neel Ratan Prasad Shaw AIR 1966 SC 1780 [4] (Dayal J); State of Assam v Horizon Union AIR 1967 SC
442 [9] (Bachawat J); Ahmedabad Mill Owners’ Assn v IG Thakore AIR 1967 SC 1091 [11] (Bhargava J); Gram Panchayat v
Malwinder Singh (1985) 3 SCC 661 [11] (Chandrachud CJ); Dr. AK Sabhapathy v State of Kerala (1992) Supp (3) SCC 147 [8]
(Agrawal J); Kanaka Gruha Nirmana Sahakara Sangha v Narayanamma (2003) 1 SCC 228 [10]–[12] (Shah J).
66
Bhawani Cotton Mills Ltd v State of Punjab AIR 1967 SC 1616 [18] (Vaidialingam J) (Central Sales Tax Act, not a Branch 2
law); State of Jammu and Kashmir v MS Farooqi (1972) 1 SCC 82 [19]–[20] (Sikri CJ); ITC Ltd v State of Karnataka (1985) Supp
SCC 476 [68] (Varadarajan J) overruled on a different point in ITC v AMPC (n 54).
67
Bar Council of Uttar Pradesh v State of Uttar Pradesh (1973) 1 SCC 261 [15] (Grover J).
68
See eg, Kerala State Electricity Board v Indian Aluminium Co Ltd (1976) 1 SCC 466 [3] (Alagiriswami J, who said that counsel
who argued the contrary was ‘confused’).
69
M Karunanidhi (n 49) [8] (Fazal Ali J).
70
Hoechst Pharmaceuticals Ltd v State of Bihar (1983) 4 SCC 45 [67] (Sen J).
71
Vijay Kumar Sharma v State of Karnataka (1990) 2 SCC 562.
72
VK Sharma (n 71) [37], [39], [53] (emphasis added).
73
See eg, Southern Petrochemicals Industries Co Ltd v Electricity Inspector (2007) 5 SCC 447 [60]–[61] (Sinha J) and Bharat
Shanti Lal Shah (n 54) [48] (Sharma J).
74
See eg, Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC 262 [18] (Banerjee J) and Maa Vaishno Devi Mahila
Mahavidyalaya v State of Uttar Pradesh (2013) 2 SCC 617 [66] (Swatanter Kumar J). It is impossible to reconcile these cases with
VK Sharma.
75
ITC v AMPC (n 54).
76
Governor-General in Council v Province of Madras [1945] UKPC 4 (Lord Simonds).
77
See eg, Hoechst Pharmaceuticals Ltd (n 70) [38] (Sen J); VK Sharma (n 71) [99] (Ramaswamy J); ITC v AMPC (n 54) [93]
(Ruma Pal J) and Govt of Andhra Pradesh v JB Educational Society (2005) 3 SCC 212 [12] (Balakrishnan J).
78
Foreign Office (n 5) [114].
79
JSC Report (n 6) [233]. See also Bose (n 58) 215.