Supreme Court says state can’t make a law if the Centre already has one

ILNS: The Supreme Court on Tuesday asked if a state government enacts a law, which is the same or similar to a law passed by the Centre, would there be two parallel laws.

The query came from the bench of Justices Dr D.Y. Chandrachud and M.R. Shah was hearing a plea filed by the Forum for Peoples Collective Efforts (FPCE), challenging the constitutional validity of the West Bengal Housing Industry Regulation Act 2017 (Forum for Peoples Collective Efforts (FPCE) & Anr vs The State of West Bengal & Anr). After the hearing, the bench reserved orders.

The bench asked the Counsel for the State of West Bengal,

“Can a state enact the same laws as the Centre’s law? Would that not amount to be a parallel law? This is a very interesting case, we’ll consider it.”

At that point, Counsel Justine George, appearing for FPCE, informed the Bench that the main counsel for the petitioner (Advocate Devashish Bharuka) is suffering from Covid-19, so will not be able to make his submissions today. Justice Chandrachud encouraged the young Advocate and said, “You seem to have well read the case; you make the submission today.”

Advocate George thereafter opposed the West Bengal Housing Industry Regulation Act 2017, because there already is a central enacted law in force (RERA).

He said, “Creation of a parallel regime will amount to a state of absurdity.” He also gave an example that electricity being the subject matter on the concurrent list, the Central government has enacted the legislation called ‘The Electricity Act, 2003’.

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If state governments are also allowed to legislate and make their own electricity statute then it will lead to a state of absurdity.

Senior Advocate Rakesh Dwivedi, appearing for West Bengal, said the matter is in the ambit of the concurrent list, where both the Centre and the State can legislate. The State law cannot be rendered repugnant to the Centre’s law, until and unless it is in conflict with the same.

The Bench intervened and said the state cannot make a parallel law on the same matter. It explained that the law made by the State of West Bengal is not in addition to the Centre’s law, rather it is exactly the same as the Centre’s law. Therefore, the State of West Bengal is trying to occupy the field of Parliament. And hence, it is repugnant to the Centre’s law.

Justice Chandrachud went on to give an example that when Parliament’s intention is to say ‘X’ and the state says ‘X Minus,’ then this amounts to occupying the field, which has already been occupied by the Centre.

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To this, Dwivedi said the state had already occupied the field by legislating on the same subject matter by enacting the statute called The West Bengal Housing Board Act, 1972. Therefore, the state has historically occupied the field.

Dwivedi went on to explain that in a federal structure, there is need for harmony between the Centre and the state. The State cannot be prevented from interjecting and making laws. He insisted Articles 246 (2) and Article 254 need to be construed harmoniously.  Thereafter, the Bench concluded the hearing on this matter for the day.
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