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Repugnancy In The Concurrent List Of The Indian Constitution.

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 regulations.

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 Australian States.

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:

  1. The Commonwealth of Australia Constitution Act 1900 which of course includes the Commonwealth Constitution; the Statute of Westminster 1931; and
  2.  The Australia Act 1986 (UK)[1]

 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[2]. 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)[3]. 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[4]". 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"[5].

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 apparent.

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.

  1. The actual terms of competing statutes may be inconsistent;
  2. 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;
  3. 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,[6] it was held as follows:

  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 corning into collision with each other, no repugnancy results.
  4. 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[7] 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".[8]

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.

  1. 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.
  2. 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

  1. Repugnancy must be decided by courts and not by either of two legislative bodies
  2. 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.
  3. 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.
  4. 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.
  5. Repugnancy does not arise unless Parliament and the State Legislature make laws that conflict with one other.
  6. 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.

Landmark Case
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 needed.

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.

Final Suggestion:
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:

  1. Is there a right to build educational institutes for minorities and if so, under what provision?
  2. 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 minority institute.

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.


  1. Australia Acts 1986 s 5.
  2. Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 274, 278, 282–3, 286.
  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 III).
  4. Subramaniam v. Muthuswami, (1940) FCR 188 (200).
  5. Annamalai University v. Information & Tourism Dept., (2009) 4 SCC 590; See also Southern Petrochemicals Industries Ltd. v. Electricity Inspector & ETIO, (2007) 5 SCC 447
  6. M. Karunanidhi v. Union of India, AIR 1979 SC 898 : (1979) 3 SCR 254 : (1979) 3 SCC 431
  7. 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
  8. Kaur v. Cardial Singh Mann, AIR 2001 SC 1273: (2001) 4 SCC 262.

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