Code of Civil Procedure, 1908 (CPC)
Central Amendments vs State Amendments to the CPC: Article 254 and Section 97
One Code, three hands upon it. The Code of Civil Procedure, 1908 can be amended by Parliament for the whole country, by a State Legislature for its own State, and, as to the rules in the First Schedule, by each High Court for the courts under its superintendence. The distinction between central amendments and State amendments to the CPC, and the rules of priority when they conflict, is a favourite of judiciary examinations because it joins civil procedure to constitutional law: Entry 13 of the Concurrent List, Article 254, and Section 97 of the 1976 Amendment Act all meet here.
The three channels of amendment and the order of priority between them
1. The Constitutional Foundation: Entry 13, List III
Civil procedure is a Concurrent List subject. Entry 13 of List III of the Seventh Schedule covers civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration. Both Parliament and the State Legislatures are therefore competent to legislate on everything the Code contains, and the Code's uniformity across India is a matter of practice and priority, not of exclusive central power. That priority is supplied by Article 254: a State law repugnant to an existing central law on a Concurrent subject is void to the extent of the repugnancy, unless it has received the President's assent under Article 254(2), in which case it prevails in that State; and even then, by the proviso, Parliament may at any time enact a law adding to, amending, varying or repealing the assented State law.
2. The Three Channels Distinguished
Basis | Central amendment | State amendment | High Court rules |
|---|---|---|---|
Who acts | Parliament | State Legislature | The High Court |
Source of power | Entry 13, List III | Entry 13, List III with Article 254(2) assent where repugnant | Delegated power under Sections 122 to 131 CPC |
What it can touch | Body and Schedule alike | Body and Schedule alike, for that State | First Schedule rules only, never the body |
Check upon it | The Constitution alone | Presidential assent; later Parliamentary law prevails | State Government approval (s. 126); consistency with the body (s. 128) |
Territorial reach | All India | The State | Courts under that High Court |
The third column hides the trap examiners set. A High Court amendment to an Order, made under Section 122, is delegated rule-making and not legislation: it needs no Presidential assent because Article 254 has nothing to do with it, but it can never touch a section, and by Section 128 it is void so far as inconsistent with the body of the Code. A State Legislature's amendment is the reverse: full legislative power over sections and Orders alike, but only within Article 254's discipline. Conflating the two channels is the standard error in answers on this topic.
3. State Amendments in Practice
State amendments have historically clustered where local litigation pressed hardest. The best-known example is Uttar Pradesh, which repeatedly recast Section 115 to restructure revisional jurisdiction between the High Court and the District Court, producing a body of Supreme Court case law of its own; States have likewise amended the execution machinery of Order XXI, the provisions on appearance and adjournments, and court-fee linked procedures. Each such amendment, where repugnant to the central Code, rests on Presidential assent and operates only within the State, which is why the practitioner's first question in any Code problem is always: which State, and what do its local amendments say?
📖 Vishesh Kumar v. Shanti Prasad, (1980) 2 SCC 378 Uttar Pradesh had amended Section 115 to divide revisional jurisdiction between the High Court and the District Court by reference to valuation, and the question was whether a revision lay to the High Court against the District Court's revisional order, which would have created a second tier of revision. The Supreme Court, construing the U.P. scheme, held that the amendment created two mutually exclusive revisional forums and that no further revision lay to the High Court from the District Judge's revisional order. Rule: a State amendment, validly made and assented, is the operative text of the Code in that State, and is construed on its own scheme even where it departs from the central model. |
4. When Parliament Speaks Again: Section 97 of the 1976 Act
The proviso to Article 254(2) lets Parliament override even assented State amendments, and the 1976 Amendment Act used that power on a national scale. Section 97(1) of the Amendment Act 104 of 1976 provided that any amendment made, or provision inserted, in the principal Act by a State Legislature or a High Court before the commencement of the 1976 Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. Section 97(2) then contained detailed transitional savings, and Section 97(3) applied Section 6 of the General Clauses Act to the repeals. The design was to restore national uniformity at a stroke: local variations survived only where they could live consistently with the renovated central Code. The 2002 Amendment Act carried its own repeal and savings provision in Section 16 to the same general effect for the 1999 and 2002 changes.
📖 Ganpat Giri v. Second Additional District Judge, Ballia, (1986) 1 SCC 615 A judgment-debtor resisted an execution sale relying on provisions of Order XXI as they stood under Uttar Pradesh amendments made before 1976, which diverged from the central text as renovated by the Amendment Act 104 of 1976. The Supreme Court held that by force of Section 97(1) of the 1976 Act, every State or High Court amendment inconsistent with the principal Act as amended stood repealed on the Act's commencement, and the execution had therefore to be tested against the central Code alone. Rule: after 1 February 1977, a pre-1976 local amendment survives only to the extent of its consistency with the amended central Code; inconsistency means automatic repeal, without any fresh State-by-State exercise. |
5. The Order of Priority Stated
§ The hierarchy in four lines 1. A High Court rule yields to every section of the Code: Section 128. 2. A State amendment repugnant to the central Code is void without the President's assent, and prevails in the State with it: Article 254. 3. A later Parliamentary amendment prevails over even assented State amendments: proviso to Article 254(2), applied nationally by Section 97(1) of the 1976 Act (Ganpat Giri). 4. Within the central Code itself, for commercial disputes, Section 16 of the Commercial Courts Act, 2015 gives the Code as amended by its Schedule priority over inconsistent High Court rules and State amendments. |
6. Landmark Judgments on Central and State Amendments
- Ganpat Giri v. Second Additional District Judge, (1986) 1 SCC 615. Section 97(1) of the 1976 Act repealed all inconsistent State and High Court amendments; execution tested against the central Code.
- Vishesh Kumar v. Shanti Prasad, (1980) 2 SCC 378. The U.P. amendment to Section 115 creates exclusive revisional forums; no second revision to the High Court.
- Iridium India Telecom Ltd. v. Motorola Inc., (2005) 2 SCC 145. High Court original side rules, as special law, sit outside this contest by force of Section 4.
- Salem Advocate Bar Association (II), (2005) 6 SCC 344. The working of the centrally amended Code, including model rules for the States, settled nationally.
7. Frequently Asked Questions on Central vs State Amendments to CPC
Can a State Legislature amend the Code of Civil Procedure?
Yes. Civil procedure falls under Entry 13 of the Concurrent List, so a State Legislature may amend the Code for its State. Where the amendment is repugnant to the central Code it is void unless reserved for and given the President's assent under Article 254(2), and even then a later Parliamentary law prevails.
What is the difference between a State amendment and a High Court amendment to the CPC?
A State amendment is legislation: it can change sections and Orders alike, needs Presidential assent where repugnant, and operates State-wide. A High Court amendment is delegated rule-making under Sections 122 to 131: it can change only the First Schedule rules, needs State Government approval, and must be consistent with the body of the Code under Section 128.
What did Section 97 of the CPC Amendment Act, 1976 do?
Section 97(1) repealed every State Legislature or High Court amendment to the Code made before the 1976 Act, except so far as consistent with the Code as amended, restoring national uniformity. The Supreme Court applied it in Ganpat Giri to test execution proceedings against the central Code alone.
Why can the text of the CPC differ from State to State even today?
Because post-1976 State amendments with Presidential assent, and High Court amendments to the First Schedule consistent with the body, both remain valid. Local amendments must therefore always be read alongside the central text, subject to the priority of any later central amendment, including the Commercial Courts Act Schedule for commercial disputes.
8. Related Topics in This CPC Series
- Amendments to the CPC: A Complete Overview
- The CPC Amendments of 1976, 1999 and 2002 in Detail
- Nature and Scheme of the CPC: Sections, Orders and the Rule-Making Power
- Commercial Courts Act Amendments to the CPC