Constitutional Law - Doctrine of Repugnancy and the Constitution of India (Centre-State Relations)

Introduction

It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of Repugnancy in India. 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)”. Before understanding the Doctrine of Repugnancy, let us first understand a bit about the legislative scheme envisaged in our Constitution.

Article 245 states that Parliament may make laws for whole or any part of India and the Legislature of a State may make laws for whole or any part of the State. It further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

Article 246 also talks about Legislative power of the Parliament and the Legislature of a State. It states that:

1. The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I or the Union List in the Seventh Schedule.

2. The Legislature of any State has exclusive power to make laws for such state with respect to any of the matters enumerated in List II or the State List in the Seventh Schedule.

3. The Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in the List III or Concurrent List in the Seventh Schedule.

4. Parliament has 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.

The Legislative Scheme in our Constitution is both complex and lengthy. In the present post, I will confine myself only to Repugnancy and its niceties. I will not deal not with any other provisions relating to the Legislative Scheme of our Constitution. The only articles that I will be touching in this respect are article 245, article 246 and article 254.

Supreme Court’s Interpretation of Doctrine of Repugnancy

Article 254[1] has been beautifully summarized by the Supreme Court in M. Karunanidhi v. Union of India[2]. The court said that:

“1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.

3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List, the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.

4. Where, however, 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 of affairs 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.

Now, the conditions which must be satisfied before any repugnancy could arise are as follows:

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

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

Thereafter, the court laid down following propositions in this respect:

“1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.”

Further in the case of Govt. of A.P. v. J.B. Educational Society[3], the court held that:

“1. There is no doubt that both Parliament and the State Legislature are supreme in their respective assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List.

2. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State Legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State Legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict.”

The Court also said that:

1. Where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1).

2. Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation.

In the case of National Engg. Industries Ltd. v. Shri Kishan Bhageria[4], it was held that “the best test of repugnancy is that if one prevails, the other cannot prevail”. All the above mentioned cases have been upheld by the Supreme Court in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra[5].

Thus, we see that Doctrine of Repugnancy is firmly entrenched in our constitutional scheme and is here to stay for a long time to come. In the subsequent posts, I will try to discuss doctrines like Pith and Substance, Colourable Legislation, Legislative Competence, Doctrine of Eclipse etc.

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[1] Article 254 – (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 an 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 an 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.

[2] (1979) 3 SCC 431.

[3] (2005) 3 SCC 212.

[4] (1988) Supp. SCC 82.

[5] CIVIL APPEAL NO. 1975 OF 2008.