Doctrine of Repugnancy

Author: Manan Agrawal

Doctrine of Repugnancy [1] [2] [3] 

Before getting into what the doctrine of repugnancy implies, we shall first know what the word “repugnancy” means. According to Black’s Law Dictionary, Repugnancy could be defined as “an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or a contract)”.

Legislative scheme envisaged in our Constitution –

Article 245 gives authority to parliament to make laws for the whole or any part of India and the state legislature may make laws for the whole or any part of the State. The legislative field of the Parliament and the State Legislatures have been specified in Article 246 of the Constitution. Article 246,  reads as follows: – Subject-matter of laws made by Parliament and by the legislature of States. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the VIIth Schedule (in this Constitution referred to as the ‘Union List’).

2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the ‘Concurrent List’).

3) Subject to clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ‘State List’).

4) Parliament has the power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

Under the VIIth Schedule of the Constitution, it provides for a three-fold distribution of legislative subjects between the center and the state viz., List – I (the Union list), List – II (the state list), and LIst-III (the concurrent list). The Parliament has exclusive power to make laws with respect to any of the matters enumerated in the Union list. The state legislature has “in normal circumstances” exclusive power to make laws with respect to any of the matters enumerated in the State list. Both, the parliament and the state legislature can make the laws with respect to any of the matters enumerated in the Concurrent List.

The list of subjects under each of the three lists can be accessed at http://www.mea.gov.in/Images/pdf1/S7.pdf.

So, in India the power to legislate rests with both the parliament and the state legislature. But what will happen if a law made by the parliament and the state legislature on the same subject matter under List-III are not in the same? The Constitution has developed the doctrine of repugnancy which is employed to test as to when and where a State law turns repugnant to the Parliamentary legislation.

The doctrine of repugnancy was incorporated under Article 254 to provide for the method of resolving conflicts between a law made by Parliament and a law made by the legislature of a State with respect to a matter falling in the Concurrent List. Article 254 read as follows – Inconsistency between laws made by Parliament and laws made by the Legislature of States –  (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or any existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

Article 254 acts as a mechanism to resolve such repugnancy which may arise between the laws made by the parliament and state legislatures relating to a subject matter mentioned in the Concurrent List (List III) under the VIIth schedule.

K. T. Plantation Pvt. Ltd., & Anr. v. State of Karnataka,2011, the court held that when the repugnancy between the Centre and State legislation is pleaded we have to first examine whether the two legislations cover or relate to the same subject matters. 

Now we shall focus on what the conditions that shall be satisfied before any repugnancy could arise. Let us under repugnancy with the help of a case. The Court in the case M. Karunanidhi v UOI, laid down conditions which must be satisfied before any kind of repugnancy could arise –

1. That there is a clear and direct inconsistency between the law enacted by the Parliament and the law made by the state legislature.

2. That the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together or operate in the same field.

3. That the inconsistency between the provisions of the two laws is of such nature as to bring the two laws into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.

But, where a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state act will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.

Repugnancy arises between two statues when they occupy the same field and are completely inconsistent with each other and have absolutely irreconcilable provisions, as stated in the case of Deep Chand v. State of Uttar Pradesh.

The predominance of the state law may however be taken away if the parliament legislates under the proviso to Article 254(2). The proviso empowers the parliament to repeal or amend a repugnant state law either directly or by enacting a law repugnant to the state law with respect to the same matter. Though the subsequent law enacted by the parliament does not expressly repeal a state law, even then in such case the state law will become void as soon as the subsequent law of Parliament creating repugnancy is enacted.

State law will be repugnant to the union law when there is a direct conflict between the two laws. Such a repugnancy may also arise when both the laws operate in the same field and the two cannot stand together.

There have been instances when the courts have to apply and interpret Article 254 to resolve the dispute between the laws enacted by the Parliament and that by the state legislature with respect to any matter enumerated in List III of the Seventh Schedule.

Leading Cases laws –

In the State of West Bengal vs Union of India, 1963 case, brought to light the usage of sovereign power by the states of India. The legislative competence of the Parliament to enact a law for compulsory acquisition of land and other properties vested in or owned by the state and the sovereign authority of states as distinct entities had been brought into question and were examined. The validity of sections 4 and 7 of the coal-bearing area (acquisition and development) act of 1957 (an act enacted by the parliament) was challenged as ultra vires the legislative competence of the parliament. The court outlined the characteristics, which highlight the fact that the Indian Constitution is not a “traditional federal Constitution”, and held that the Indian Constitution did not propound a principle of absolute federalism. Though the authority was decentralized, this was mainly due to the arduous task of governing the large territory. It is clear that the distribution of powers as provided to be a feature of any federal constitution is to facilitate local governance by the states and national policies to be decided by the Centre. The court also recognized that, as against a federal Constitution, which contains internal checks and balances, the Indian Constitution renders supreme power upon the courts to invalidate any action violative of the Constitution.

In Hoechst pharmaceuticals vs State of Bihar, 1983 case, parliament enacted the Essential commodities Act,1955 under entry 33 list III. The law was on the subject of price fixation of essential commodities. Under this act, the Central government passed an order that the manufacturer or the producers of goods can pass on sales and excise duty to the consumers. But on the other hand, section 5 of the Bihar Finance Act, 1981 prohibited dealers to recover sales tax from the consumers. The finance act was challenged on the ground that under the Central law the manufacturer and the producer are allowed to recover the sales tax from consumers. The court observed that the two acts operate on separate and distinct fields and both are capable of being obeyed. There was no question of any clash between the two and the question of repugnancy does not come into play.

Also in the case of Bharat Hydro Power Corpn. Ltd. v. State of Assam as well as in the case of Central Bank of India v. State of Kerala that every effort should be made to reconcile the two enactments and construe them both, in such a way, so as to avoid them being repugnant to each other. If the two enactments operate in different fields without encroaching upon each other, then there will be no repugnancy.

In Tika Ramji vs State of UP,1956 case the U.P, Legislature had enacted the U.P. Transport Services (Development) Act, 1955, which authorized the State Government control of Motor transport. Subsequently, the Parliament amended the motor vehicles act, 1939 to introduce a uniform law on State control of motor transport. The amendment enabled the State governments to frame and execute schemes of State controls of motor transport. The issue was whether the State law was repugnant to the Parliamentary amendment. The Supreme Court on comparing the provisions of both the Acts found that they were intended to operate in respect of the same subject-matter in the same field. Hence, it was held that the State law was repugnant to Central law, and therefore, void to the extent of repugnancy.

Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors, 1954 case is an illustration of the application of Article 254(2). In this case, the Parliament enacted an Essential supplies act that provides punishment for imprisonment for up to 3 years. The Bombay legislature later passed an act enhancing punishment for imprisonment for up to 7 years and received assent to the Governor. Subsequently, to the Bombay act, amendments were made to the Essential supplies act amending the imprisonment period. The court held that as both the acts occupy the same field, the Bombay act was impliedly repealed by the amendment made by the parliament, due to repugnancy. The Court held that it is common ground that the State Legislature does not have powers to legislate upon any of the matters enumerated in the union list. However, if it could not be shown that core area and the subject matter of the legislation is covered by an entry in the State List, then any incidental encroachment upon an entry in the Union List would not be enough so as to render the State law is valid, and such an incidental encroachment will not make the Legislation ultra vires the constitution

In a recent judgment, dealing with the issues relating to the constitutional validity of Maharashtra Control of the Organized Crime Act (a State legislation), the Court revisited the doctrine of Repugnancy and explained its nuances in its decision in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors. in the following terms: Chapter I of Part XI of the Constitution deals with the subject of the distribution of legislative powers of the Parliament and the legislature of the States. Article 245 of the Constitution provides that the Parliament may make laws for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the State.

In the case State of West Bengal and others v. Committee for Protection of Democratic Rights and others, the court held though, undoubtedly, the Constitution exhibits supremacy of Parliament over State Legislatures, yet the principle of federal supremacy laid down in Art. 246 of the Constitution cannot be resorted to unless there is an irreconcilable direct conflict between the entries in the Union and the State Lists.

Conclusion –

Therefore, it can be concluded that the Parliament as well as the state legislatures enjoy absolute authority when they legislate on their subject matters. But there are instances where the power conferred to both collide. The doctrine of repugnancy provides an effective mechanism to deal with any such inconsistencies. By applying the Doctrine of Repugnancy for the inconsistency of laws between the law made by Parliament and that by State legislature, the law by Parliament will prevail over the law made by State legislature and the State legislature law to the extent of repugnancy will be considered as void.

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