Legislative Competence and Repugnancy Under Articles 245–254

Welcome back. Last lesson tested whether an arrest, search, or criminal penalty complied with Articles 20–22. There is an earlier question in any challenge to a statute: did the legislature have authority to make this law? A provision can be administered fairly and still fail for want of legislative competence. Conversely, a legislature may have competence even though a particular provision later fails a fundamental-rights challenge.

This lesson gives you a method for deciding who may legislate and what happens when Union and State laws appear to conflict. We will use Articles 245–254 and the Seventh Schedule, then apply them to the kind of Maharashtra criminal-procedure file that could appear in an HJS mains paper. Allow about 40–45 minutes, including the selected video and judgments.

Begin with territory and subject matter—not with “Central law prevails”

A competence answer has two axes. Article 245 concerns the territory for which a law is made: Parliament may legislate for all or part of India; a State legislature may legislate for all or part of its State. Article 245(2) prevents a parliamentary law from being invalidated merely because it operates outside India. For a State law affecting a person or transaction outside the State, ask whether there is a real territorial connection to that State. An out-of-State effect alone is not decisive.

Article 246, read with the Seventh Schedule, concerns subject matter. List I contains Union fields; List II contains State fields; List III contains Concurrent fields in which both may legislate. These entries describe fields of legislation: the source of power is the Constitution’s operative articles, not the entry standing alone. For a criminal case, for example, distinguish the State field of police (List II, Entry 2) from the Concurrent fields of criminal law and criminal procedure (List III, Entries 1 and 2). A measure about what police officers must do during investigation is not necessarily a law about police organisation merely because police officers administer it.

Watch the selected parts of Arvind P. Datar’s talk for the structure of the lists and the method of identifying a law’s true subject.

Article 246 gives Parliament exclusive authority over List I, gives both legislatures authority over List III subject to List I, and gives States authority over List II subject to the preceding allocations. Its fourth clause also permits Parliament to legislate for territory not included in a State on a State List matter. Article 248, with List I Entry 97, places a genuinely unenumerated matter within Parliament’s residuary competence. Do not reach for residuary power merely because a modern activity—say, a digital transaction—is not named in the Schedule. First examine whether its legally relevant aspect fits an existing entry.

Classify the law by its real character

Suppose a Maharashtra enactment provides relief from agricultural debts, including debts recorded in promissory notes. One argument is that promissory notes belong to a Union field, so the State law is incompetent. That argument starts with an effect of the law rather than its pith and substance—its true nature and character. Examine the enactment as a whole: its purpose, operative provisions, and practical effect. If it is substantially a law concerning agricultural indebtedness within a State field, an incidental effect on promissory notes need not defeat competence.

The reverse matters equally. Calling a provision a “police administration measure” does not make it one if its operative rule actually changes the procedure for registering or investigating offences. Labels cannot enlarge legislative power.

A Supreme Court decision concerning the A.P. Education Act and the central AICTE Act provides a useful second distinction. National coordination and determination of higher-education standards fall under List I Entry 66; education under List III Entry 25 is expressly subject to specified Union entries. Yet a State inquiry into whether a locality needs another institution need not be the same question as what national technical standards an institution must meet.

The PDF text contains a mistaken reference to Article 245 where its discussion of the Concurrent List conflict plainly concerns Article 254. Use the constitutional provision, not that transcription, for your rule. More generally, the holding that two particular provisions can operate together does not mean every State educational condition is valid: a condition that effectively displaces national standards calls for a fresh competence and conflict analysis.

This yields an essential distinction:

• Competence/overlap: What is each law, in substance, about? Does any intrusion into another field remain incidental? Article 246 and the entries do the principal work.
• Repugnancy: Where both legislatures can legislate on the relevant Concurrent matter, do their operative legal rules conflict? Article 254 then becomes central.

Do not use “repugnancy” as a loose synonym for every Centre–State disagreement.

Test repugnancy provision against provision

Under Article 254(1), if a State law is repugnant to a competent parliamentary law—or to an applicable existing law—in a Concurrent List matter, the parliamentary or existing law prevails and the State law is void to the extent of the repugnancy, subject to Article 254(2). Parliamentary law does not win merely because it is parliamentary. The court must first identify the relevant field and the actual inconsistency.

M. Karunanidhi v. Union of India is worth reading for its disciplined treatment of that inquiry.

The clearest collision is impossibility of obeying both operative rules. If a competent parliamentary criminal-procedure provision requires an officer to act immediately, while a State provision forbids that act until an additional approval is obtained, compare the provisions’ precise conditions and consequences. But impossibility is not the only inquiry. An enactment may reveal an intention to provide an exhaustive rule for the same matter, leaving no room for the competing rule. That intention must be established from the scheme and text; saying that Parliament has “occupied the field” is a conclusion to justify, not a shortcut.

Equally, two provisions may supplement one another. A State requirement that can be met alongside a parliamentary requirement is not necessarily repugnant. Check whether the parliamentary rule permits such supplementation, whether it was meant to be exhaustive, and whether the supposed conflict exists in fact, rather than in an imagined future application. If only one clause conflicts, explain why the unaffected provisions can still operate instead of declaring the entire State Act lost.

Presidential assent and exceptional routes for parliamentary power

Article 254(2) qualifies the ordinary result. A State law concerning a Concurrent List matter that is repugnant to an earlier parliamentary or applicable existing law can prevail in that State if the State law was reserved for the President’s consideration and received presidential assent. This does not turn it into a national law, cure a lack of State competence over an exclusive Union field, or immunise it permanently. Parliament may subsequently add to, amend, vary, or repeal the State law through legislation on that matter. When assent is asserted, verify the reservation, assent, and the relevant inconsistency; do not infer the exception merely from an Act’s existence.

Some apparent List II problems also require checking a specific constitutional route before concluding that Parliament lacked power. Articles 249 and 250 permit parliamentary legislation on State List matters in the stated circumstances of a Rajya Sabha national-interest resolution and a Proclamation of Emergency, respectively; Article 251 addresses inconsistency with laws made by those routes. Under Article 252, resolutions of two or more States permit parliamentary legislation for those States on a State List matter, with other States able to adopt it; the resulting Act’s amendment or repeal for those States is for Parliament, not their legislatures. Article 253 empowers Parliament to make laws implementing treaties, agreements, conventions, or international-conference decisions. These are fact-triggered exceptions, not qualifications to recite in every answer. Article 247 concerns Parliament’s power to establish additional courts for better administration of specified laws; it rarely decides a routine repugnancy problem.

Thus, if a problem alleges a parliamentary intrusion into a State field, ask which enabling route, if any, is pleaded and proved. Do not presume that the ordinary allocation is the whole Constitution. In a tax problem, also check the applicable special constitutional allocation—including Article 246A for GST—rather than forcing every levy into an older general entry.

A Maharashtra investigation file: the order of analysis

Consider a fictional pair of enactments. A parliamentary criminal-procedure provision says that, on receiving specified information about a cognizable offence, the officer must register it without awaiting administrative approval. A later Maharashtra Act says the officer must not register that information until a district screening authority grants written approval. The file supplies no evidence that the State Act was reserved for, or assented to by, the President. An accused challenges the investigation; the informant challenges the delay.

A reasoned answer would proceed as follows.

1. Identify territory and the real subject. Maharashtra can legislate for its State. But the disputed rule governs when information about an offence may be registered. Although police administer it, its substance is plausibly criminal procedure, List III Entry 2. Analyse the rule, not the Act’s title.
2. Establish both legislatures’ competence before comparing them. Criminal procedure is Concurrent. Parliament and the State may each legislate there, subject to the constitutional rule resolving a conflict. If a party instead classifies the State provision solely under List II Entry 2 (police), explain why its effect on the registration rule is, or is not, merely incidental.
3. Compare the commands on the same facts. The stipulated parliamentary provision requires registration without awaiting approval; the State provision forbids it until approval. On those facts, an officer cannot obey both. Identify the offending State provision and the extent of its conflict rather than asserting that all Maharashtra police legislation is void.
4. Check the claimed exception and timing. There is no established reservation and presidential assent, so Article 254(2) cannot simply be presumed. Article 254(1) supplies the ordinary consequence. If assent were proved, ask what earlier law and inconsistency it addressed, and whether Parliament later legislated to displace the State rule.

The constitutional-rights inquiry remains separate. A ruling on competence or repugnancy does not, by itself, decide whether a particular search, arrest, or custody decision respected Articles 20–22. Nor should a court infer that every step in an investigation is automatically nullified without identifying the applicable procedural rule and remedy. Keeping those questions separate produces a more precise judicial answer.

For a preliminary question, this method eliminates tempting but overbroad options: “any central law defeats any State law,” “presidential assent validates an incursion into an exclusive Union field,” and “two laws on the same topic are necessarily repugnant” are all unsafe propositions.

Conclusion

Determine legislative competence by checking territory under Article 245, then the law’s pith and substance against the Seventh Schedule and Article 246, including any relevant special route to legislative power. Use Article 254 only after identifying a genuine conflict in the applicable Concurrent matter. Compare operative provisions, consider whether they can coexist or whether one enactment exhaustively governs the same matter, and state precisely what fails. Presidential assent can alter priority within a State, but only within Article 254(2)’s limits.

Next lesson, we turn from which legislature may make a rule to which court and remedy can address an unlawful act or decision under Articles 32, 226, and 227—and how precedent controls that choice.