The Union and the federating units share legal sovereignty, which is at the
heart of federalism. Delimiting federation and federating unit regions by
enacting laws is the most accurate method of doing so, in general. A number of
factors are at play here, but one of the most essential is the delineation of
legislative power, which assists in establishing its limits since it usually
controls executive power, too.
Several articles in India's constitution deal with the division of legislative
powers between the Union and the States (articles 245-254). Articles 245-246, on
the other hand, are the most fundamental and thus the most essential of these
In cases when a state or territorial law conflicts with supreme law, the
doctrine of repugnancy applies. Paramount legislation comes from the initial
source of legislative power of the state or territory. United Kingdom
Parliament, previously known as Imperial Parliament, is in charge of the
To put it another way, "paramount laws" are British or imperial laws designed to
be extended to the United States. State laws that are in conflict with imperial
supreme laws are thus null and void in commonwealth since they are repugnant.
Since the Australia Acts 1986, the States are now bound by only three
paramount imperial laws:
- The Commonwealth of Australia Constitution Act 1900 which of course
includes the Commonwealth Constitution; the Statute of Westminster 1931; and
- The Australia Act 1986 (UK)
It was abolished by S 3(2) of the Australia Acts 1986 in reference to the
States. The laws of the Commonwealth are the most important ones in the
territories. It is therefore illegitimate to enact territory legislation that
conflict with the Commonwealth's laws, in particular the respective
Self-Government Act. So long as a territory's laws conflict with the
Commonwealth Constitution, they are also void. In contrast, there is no
repugnancy when a state statute conflicts with a federal law. If there is a
conflict, s 109 of the Commonwealth Constitution states that the latter can
override the former to the extent of the discrepancy.
"The State law is merely rendered inoperative so long as an inconsistency
exists, and it revives if the inconsistency is removed. To understand the
doctrine of repugnancy, it is necessary to outline first the reception of
English law in the Australian colonies".
Conflict In Concurrent List
Legislative powers are shared between the federal and state legislatures if
there is a Concurrent List of legislative subjects (as in the Indian
Constitution) (as specified in the Concurrent List. It's inevitable that a
debate will ensue about which of the two laws adopted by the two legislatures
will prevail if they are unable to work together. Art. 254 of the Indian
Constitution provides a clear example of what might happen if two competing laws
were to collide. To augment or enhance the constitutional requirements, courts
have developed broad rules and criteria to identify "inconsistency" or
"repugnancy" in lieu of such an express provision in the Constitution.
There is an overlapping area of jurisdiction between the federal and state
legislatures, even in countries where there is no Concurrent List, such as
Australia and Canada, where judicial interpretation of the exclusive lists has
resulted in the Courts treating legislative power as shared or common between
the legislatures. The Courts will have to come up with a solution to the
disagreement between laws passed by the two legislatures once this position is
achieved. Courts have had to lay down universal principles even under
Constitutions of this type, despite minor variances in detail. Before discussing
these ideas, it would be helpful to distinguish between a number of notions that
are frequently misunderstood because of a lack of focus.
Ultra Vires and Repugnancy
Both repugnancy and ultra vires are more fundamental than either one. While
supra vires alludes to a lack of competence, repugnancy is characterised by a
lack of consistency.
The law becomes extra vires if a legislature claims to legislate on a subject
that does not fall under its purview, such as when a State Legislature in India
draughts a law on a subject that falls under List I. Union laws may be ultra
vires, on the other hand, in the event that they infringe directly upon a
state's authority over a matter in the state's List II (the State List).
Two legislatures with distinct jurisdictions are not in competition in supra
vires. If a law is passed by a legislature that exceeds its constitutional
authority, it can be overturned by the courts. If the scope and impact of the
disputed law cannot be attributed to any of the Entries included in that List or
they go beyond the ambit of the Entry relied upon, following correct
interpretation, it may operate in regard to the Legislature's exclusive list.
But the question of repugnancy can arise only when both the Legislatures are
competent to legislate with respect to the same subject, v/z., a subject
included in the Concurrent List (List III). Again, the idea of superiority or
paramountcy is involved in the conception of repugnancy. There is no provision
for a Union law to be void by reason of its inconsistency with any State law.
But a State law will be void by reason of its being inconsistent with a Union
law (subject, of course, to CI. (2) Of Art. 254). If, however, there is no such
inconsistency, the State Legislature is free to legislate upon that Concurrent
subject, without any consent of the Union.
"For the same reason, no question of 'repugnancy' arises where, by the terms of
the Constitution itself, the State Legislature is given the power to legislate
with respect to a subject-matter only so long and in so far as Parliament does
not legislate with respect to the subject-matter, e.g., regulation of mines
under Entry 23 and industries under Entry 24 of List
Inconsistency and repugnancy
Australian legislation employs the phrase 'inconsistency,' but the Indian
Constitution uses the term 'repugnancy,' in Art. 251 and 254. That doesn't mean
anything, however, because the Indian draughtsman thought the two meanings to be
interchangeable, as seen by the marginal comments to both Articles 251 and 254
(where the word 'inconsistency' is used instead of the word 'repugnant).
Repugnancy Between Union And State Laws
According to Article 246(2) of the United Nations Charter, both the Union and
the State Legislatures have concurrent legislative rights with respect to the
Concurrent List (List III), 7th Sch. As a result, legislation enacted by both
houses of Congress on a single item on List 111 should be considered genuine.
Hence, "an absurd situation would result if two inconsistent laws, each of equal
validity, could exist side by side within the same territory". The instant
Provision has been engrafted to obviate such an absurd situation.
"Though the words 'competent to enact' in cl. (1) are rather wide and might
include laws made under List I as well. The scope of cl. (1) is made clear by
the words 'subject to the provisions of cl. (2)', for cl. (2) contemplates only
a State law relating to the Concurrent List. Hence, cl. (1) speaks of repugnancy
between a Central law and a State law, relating to the same matter included in
the Concurrent list".
Some questioned the Author's position, which he outlined on page 561 of the
First Edition of this Commentary. In Prem Nath v. State of J&K, however, the
Supreme Court made it clear that the existing law must be, with respect to one
of matters listed in the Concurrent List; in other words, unless it is shown
that the repugnancy is between provisions of a subsequent law and those of an
existing law with respect to specified matters, the A. 254(1) must be applied.
The Supreme Court made this clear in the following words—The essential condition
for the application of Art.
There is no need for this article if one of the two Acts of Parliament was
passed under Entry 66 of List I and the other under Entry 25 of List III. Both
laws are in the concurrent list, thus there is no issue of repugnance.
To be clear, Art. 254's use of the verb "made" makes it clear that legislation
is created by each state's and parliament's constituent legislatures rather than
being initiated. Art. 254, cl. (1) and (2), which governs inconsistencies or
incompatibilities in the law on a concurrent subject, do not depend on when
Parliament and the State Legislature enact their respective acts. When the
operation's results are compared, any incompatibility or repugnance becomes
A competent legislature with higher efficacy can, however, demonstrate its
purpose to cover all areas of law with legislation, and if the other
legislature's legislation is passed before or after, it will be overridden on
the basis of repugnancy, regardless of when it was enacted. There is no need for
a detailed analysis of the two pieces of legislation to illustrate the
discrepancy, but just the existence of both pieces of legislation.
- The actual terms of competing statutes may be inconsistent;
- Even if there is no direct conflict, a State law may be inoperative
because of the Commonwealth law, or a Commonwealth Court award is intended
to be a complete and exhaustive Code;
- Even if there is no intention to conflict, conflict may arise when both
State and Commonwealth seek to exercise their powers over the same issue.
(I) Our Supreme Court has also endorsed these tests.
Repugnancy Under The Laws Enacted By The Parliament
Under article 254 (1) clearly provides some condition for the application of
this provision. In M. Karunanidhi v. Union of India, it was held as
- 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.
- That there can be no repeal by implication unless the inconsistency
appears on the face of the two statutes.
- 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
corning into collision with each other, no repugnancy results.
- That 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.
In Zaverbhai Amaidas v. State of Bombay it was held that to establish
repugnancy, it is not necessary that one legislation should say "do" what the
other legislation says "don't" and that repugnancy might result when both the
legislations cover the same field. To make itself clearer, it also agreed with
Maxwell On Interpretation Of Statutes
"That if a later statute again describes an offence created by a previous one,
and imposes a different punishment or varies the procedure, earlier statute is
repealed by the later statute".
This rule, however, did not apply to Karunanidhi. Because there was no "direct
contradiction between the State and Union Acts despite they inhabited the same
field, the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 as amended in
1974, (State Act) was not in conflict with the Indian Penal Code or the
Prevention of Corruption Act, 1947.
Nonetheless, the ingredients of criminal misconduct as specified in s. 5(l)(d)
of the Prevention of Corruption Act are nearly identical in the State Act and in
the Central Acts. Therefore, it is clear that the State Act does not contain any
provisions that are in conflict with the Central Act, but rather is a kind of
complimentary Act that runs "pari passu" with the Central Acts listed above..
"Uniformity of law, being the basic characteristic of Indian jurisprudence,
cannot be termed to be at sufferance by reason of a State legislation. It is not
necessary that one legislation should be on the positive side whereas the other
one is on the negative, such a stringent requirement is not the requirement in
order to bring home the issue of repugnancy, but all the same, it might result
when both the legislations cover the same field".
In the event of a direct contradiction between central and state legislation,
recourse to Art. 254 would be appropriate only in those cases. Normally, both
laws would be allowed to play their roles in their own distinct areas of
application. In the event of a disagreement between two pieces of legislation,
the question arises as to which one has the greater impact on the outcome.
A direct conflict is not necessary for this purpose, as long as one Act's
provisions must be disregarded if the other Act's are followed. Even if the two
pieces of legislation provide opposing legal outcomes, a conflict may arise.
There are two ways to raise the issue of legislative repugnance between Congress
and the states. There are times when the legislations, even though passed with
respect to their respective spheres, overlap and conflict.
- When there is a disagreement between two pieces of legislation that deal
with the same subject area as those on the Concurrent list. Because of the
non-obstante clause in Article 246(1) and because of Article 254,
Parliamentary legislation will predominate in both cases.
- Central and state legislation passed on issues in List I and List II are
indistinguishable, hence there is no contradiction between them. If
Parliament or the State digs trenches on the other's territory, isn't that a
violation of the rule of law?
Finding out if the dominant legislature allowed the subordinate legislature to
operate in the same field "pari passu" the State Act is a key test for
determining whether or not repugnancy exists. When both the state and federal
laws are supplementary to one other, there will be no inconsistencies
Some General Rules Related To Repugnancy
- Repugnancy must be decided by courts and not by either of two
- Second, the burden of proving that a statute is repugnant to a higher
law falls on the person who is arguing that the legislature has exceeded its
authority, because the presumption is that a legislature does not go beyond
its authority, and the court should make every effort to reconcile the
provision of an apparently conflicting law.
- No repugnance exists unless the two acts are completely incompatible or
would result in ludicrous remits if combined. Article 254(I) only allows for
repugnancy between Central and State laws in circumstances when both laws
address one of the areas listed in List 111 of Schedule 7 and there is
"direct contact" between the two. If both conditions are met, State law will
be declared repugnant and hence void.
- There is another way to determine repugnance, though, and that is to
compare two pieces of legislation that have contradictory provisions.
Although it is possible to obey both central and state laws without
violating the other, a competent legislature with a superior efficacy may
express or impliedly demonstrate its intention to cover the entire field,
and the enactment of the other legislature whether passed before or after
would be overridden on this ground of repugnance.
- Repugnancy does not arise unless Parliament and the State Legislature
make laws that conflict with one other.
- 1 No repugnancy arises, for example, when the State Act deals with a
different subject matter than the Union Act. This is the case even though
the two laws are of a kindred and linked character.
M Karunanidhi V. Union of India, 1979
When it came to determining whether or not a state law violated federal law, the
Supreme Court ruled in favour of a state law because it created distinct and
independent offences with distinct elements and different punishments that did
not conflict with federal law. The State Act, on the other hand, serves as a
companion piece to the federal law. After an investigation is concluded and a
report is produced, the State Act allows the Central Acts to come to its help.
The 'public man' will be prosecuted under the Central Acts under the State Act.
The subject of repugnancy between Parliamentary legislation and State
legislation occurs in two different ways. Legislations are enacted with regard
to their respective sectors, but they overlap and clash. Second, in cases where
two laws are in disagreement with each other on an issue on the concurrent list.
Article 246(1)'s non-obstacle clause and Article 254's predominance of
Parliamentary legislation make it clear that Parliament has the final say in
both cases (1).
The legitimacy of the U.P. Transport Service (Development) Act was in issue in
Deep Chand v. State of U.P. As a result of this law, the state government
was given authority to implement a plan for state-wide nationalisation of the
motor vehicle industry. As a result of the Motor Vehicles Act of 1939, which did
not provide for the nationalisation of Motor Transport Services, a law was
Motor Vehicle Act of 1939 was revised in 1956 to include a clause allowing the
State Governments to establish guidelines for nationalisation of Motor
Transport. As a result of this ruling, a state law was void to the degree that
it conflicted with Union law, according to the Court of Appeal.
This case and the doctrine of repugnancy have led us to the conclusion that
repugnancy generally occurs when there is a clear and direct inconsistency
between the Central Act and the State Act, such an inconsistency is absolutely
irreconcilable and the inconsistency between the provisions of the two Acts is
of such a nature as to bring the two Acts into direct collision with each other
and a situation where it is impossible to omit.
This also means that when a Central Act's provisions and a State Act's
provisions on the Concurrent List are completely and utterly incompatible, the
Central Act will prevail and the State Act will be declared void because of the
incompatibility. The State Act will prevail to the extent of repugnancy and the
Central Act's provisions will be null and void if the State Act is passed in
line with Article 254 clause (2), however, a law passed by the State conflicts
with a law approved by Parliament on an entry in the concurrent list. As a
result, in cases where state and federal laws contradict, the State law takes
precedence, as provided for in Article 254 (2).
Special rights should be granted to minorities in a large country like India in
order to ensure that all citizens are treated equally and that they can develop
their personalities to the fullest. Our constitutions and laws are being amended
to include provisions that allow minorities to compete with the majority.
Article 30(1) and the National Commission for Minority Educational Institutions
Act, 2004 allow minorities to construct, administrate, and affix themselves to
central universities, as well as other educational institutions.
These rights and acts, however, have been plagued by a number of inconsistencies
since their inception.
As a result, these articles and acts are unable to answer questions such as:
- Is there a right to build educational institutes for minorities and if
so, under what provision?
- Is it possible to create educational institutes for minorities?
According to article 30, what is to be the unit in order to determine the
presence of a religious or linguistic minority? When it comes to private
minority institutions that receive government financing, what are the limits of
their administrative powers? It's still unclear what the right answer to these
questions should be.
"A college or institution (other than a university) created or maintained by
persons or groups of persons from among the minorities" is what the National
Commission for Minority Educational Institutions Act, 2004, describes as a
As a result, an institution might be granted minority status just because its
administration is from a minority group, regardless of whether or not the
institution serves the minority population as a whole. A well-known fact is that
a majority of the institutions formed in honour of minorities, especially those
aiding the impoverished, are not actually promoting minorities' interests.
Admission is based only on a student's financial resources, not on their
academic merit or ethnicity.
As a result, it will speed up this process and benefit the economic minority
rather than the linguistic and religious minorities. So, in order to remove this
ambiguity from these articles and actions, assistance from the Court should be
sought. Because our country's future depends on it, these articles and
activities are critical.
- Australia Acts 1986 s 5.
- Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 274, 278, 282–3,
- The suggestion made in Ramchandra v. Dt. Board, AIR 1951 Ori 1 (6) that
a question of 'repugnancy' may arise also where a State law is inconsistent
with a Central Act falling under List I is not sound inasmuch as that would
be a case of ultra vires, under CI. (1) of Art. 246, which makes the power
of Parliament with respect to matters in List I exclusive [Cf. Ativa v.
Abdul, (1940) 3 FLJ (HC) 83]. The same result would follow where Parliament
seeks to legislate with respect to List II which is committed to the
exclusive care of a State Legislature, by CI. (3) of Art. 246, fCf. Ref.
un¬der Art. 143, AIR 1965 SC 745 (762)] subject to certain specific
provisions of the Constitution, e.g., Arts. 249-252. The foregoing view of
the Author, expressed as early as 1950, at p. 564 of the 1st Edition of the
Author's Commentary on the Constitution of India, has since been affirmed by
nu¬merous decisions of the Supreme Court, so that it has been settled beyond
any controversy that Aft 254 as well as any question of repugnancy can only
arise where the Union and State Legislatures have made conflicting laws in
relation to the same subject which is included in the Concurrent (i.e., List
- Subramaniam v. Muthuswami, (1940) FCR 188 (200).
- Annamalai University v. Information & Tourism Dept., (2009) 4 SCC 590;
See also Southern Petrochemicals Industries Ltd. v. Electricity Inspector &
ETIO, (2007) 5 SCC 447
- M. Karunanidhi v. Union of India, AIR 1979 SC 898 : (1979) 3 SCR 254 :
(1979) 3 SCC 431
- Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752: (1955) 1 SCR 799
See akn rw„ Chand v. State of UP., AIR 1959 SC 648. L*ep
- Kaur v. Cardial Singh Mann, AIR 2001 SC 1273: (2001) 4 SCC 262.