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The Doctrine of Repugnancy In The Indian Constitution

A study of the Indian Constitution is absolutely essential for any person attempting to study and understand the law of the country. The Constitution is the supreme law of the land. It has the distinction of being the longest written constitution in the world. This is because the makers of our constitution did not want to exclude any subject which would later lead to a conflict of interest.

One of the significant portions of the Constitution deals with Center-State relation. Various doctrines regarding this have been incorporated in various Articles of the Constitution.
The objective of this paper is to explore the doctrine of repugnancy within the ambit of the Indian constitution. The Doctrine of Repugnancy has been stated in Article 254 of the Indian Constitution, under Part XI.

The area of research falls within the ambit of the relations between the Center and the States , as provided for in the Constitution. The paper describes in detail, what Article 254 purports to stand for, along with the provisions and the exceptions stated in the Article. It explains the importance of the Article under the context of Indian Federalism, as well as the significance of the Article in making the Constitution lean more towards the federal side.

The paper asks the question of how far the importance of the Article has been recognized and upheld by the Courts and explores the judicial precedents set in relation to the Article. It also examines when does repugnancy arise and how it can be solved, by citing precedents.

The methodology of research adopted for this paper is mainly the doctrinal method of research.

The paper concludes by attempting to critically analyze Article 254 and its role in the Indian Constitution and whether the Article unfairly positions the states against the Center by favoring legislations passed by the Center.

Blacks' Law Dictionary defines repugnancy as an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or a contract).
Repugnancy means the conflict between two pieces of legislation which when applied to the same facts produce different results. Repugnancy arises when the provisions of two laws are so inconsistent and irreconcilable that it is impossible to do one without disobeying the other.

In the Indian context, if such a conflict arises between a central and a state legislation, then the central law will prevail. This has been stated in Article 254 of the Indian Constitution and has also been further clarified by the Supreme Court in various cases like I.T.C Ltd. V. Agricultural Produce Market Committee[1].

In M. Karunanidhi v. Union of India, the Supreme Court held that, where the provisions of a Central Act and a State Act in the Concurrent list are fully inconsistent and absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

In most federal constitutions and democracies across the world, the doctrine of repugnancy is embedded to resolve the conflict between a law made by the center and a conflicting law made by the state. In most case, the decision is in favor of the central law. In the United States of America, if a federal law conflicts with a state law, then the federal law pre-empts the state law. In Australia, until 1986, the law for the territories was considered repugnant to the Commonwealth law, which was the supreme law.

The Constitution under Schedule VII sets out the various subjects on which the Parliament and State may legislate, under List I and List II respectively. Under List III, also known as the Concurrent List, both the Parliament and the states have the power to make laws.

It is under Article 254 that the Constitution provides that in case both the Parliament and the state make a law upon a matter in the Concurrent List and the laws are such that they are irreconcilable, then the law made by the Parliament shall prevail and the law made by the state shall be deemed to be repugnant to the extent of its repugnancy with the Central law.

Doctrine Of Repugnancy In The Indian Constitution

Article 254 of the Indian Constitution talks about the doctrine of repugnancy. It involves solving questions of repugnancy between the Central and the State law.

According to Article 254(1), if any provision of a state law is repugnant to a provision in a law made by the Parliament, which the Parliament is competent to enact, or with any existing law regarding any matter in the Concurrent List, then the Parliamentary law would prevail over the State law. It will be of no importance whether the Parliamentary law was enacted before or after the State law. To the extent of repugnancy, the State law will be void.

It is due to this Article that the power of the Parliament to legislate upon matters contained in List III i.e., the Concurrent List is supreme. The Article gives an overriding effect to any statue which the Parliament is competent to enact and which has been enacted by it.

The application of this provision most commonly arises when there is a direct conflict between statues enacted by both the Center and the State on matters in the Concurrent List, and there is repugnancy between them. 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[2].

The Supreme Court held in the case of Bharat Hydro Power Corpn. Ltd. v. State of Assam[3], as well as in the case of Central Bank of India v. State of Kerala[4], 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.

It is essential that the repugnancy should exist in fact. It should also be clearly and sufficiently shown that the Central and State laws are repugnant to each other. It was held in the case of State of Maharasthra v. Bharat Shanti Lal Shah[5], that there was no such repugnancy between Ss. 13 to 16 of the Maharashtra Control of Organised Crime Act, 1999 which is a State Act and Section 5(2) of the Telegraph Act, 1885, which is a Central Act.

It should be noted that, based on the rule of pith and substance, if the Center made a law upon a subject in the Central or Concurrent List and the State made a law on a matter in the State List, then the question of repugnancy would not arise. As seen in Krishna v. State of Madras[6], and in State of Madras v. Dunkerley[7], a State law would not be rendered invalid, on its incidental encroachment in the Concurrent List, if it is enacted with respect to a matter in the State List.

It would be void if it is enacted with respect to a matter in the Union List.
Article 254(2) provides a manoeuvre to save a State law which is repugnant to the Central law on matters provided for in the Concurrent List. As such, it relaxes the rule of repugnancy contained in Article 254(1).

Under ordinary circumstances, the Central law reigns supreme over a State law, rendering the State law void. However, there may arise some extraordinary circumstances in a State, under which special provisions made by the state will be more desirable than a uniform central law. As such Article 254(2) was incorporated in the Constitution to maintain an element of flexibility and to make it possible to have a State law suitable to local circumstances against a contrary Central law on a matter.

The Article states that if a state law has been enacted on a subject in the concurrent list and it contains provisions repugnant to the provisions of a central law, then with respect to that particular matter, the state law will prevail in the concerned state. The law should have been reserved for the consideration of the president and it should have received his assent. The result of this assent will be that, the state law would continue to operate in that particular state and would overrule the application of the central act in that state only. It is essential that both the laws deal with a subject on the concurrent list.

Explaining the effect of Article 254(2), the Supreme Court said in the case of Hoechst Pharm Ltd. v. State of Bihar, that the result of obtaining the assent of the president in respect to a state act which was inconsistent with a previous union law relating to a concurrent subject would be that, the state law would prevail in that state and it would override the provisions of the Central act in that state only.

However, the final say rests with the centre which would eventually decide whether the central law would give way to the state law or not. The state law so assented to, would prevail only to the extent of its inconsistency with the central law. It would not override the whole of the central law, as held by the court in Ukha Kolhe v. State of Maharsthra[8].

The Supreme Court observed in Zaverbhai Amaidas v. State of Bombay[9], the words with respect to that matter are of great importance in the Article 254(2). It stated that the important thing to consider was whether the legislation was in respect to the same matter. If the later legislation deals with a matter which is distinct from the subject of the earlier legislation but is of a cognate and allied character, then Article 254(2) will have no application.

Article 254(2) does not operate when the two Acts operate in different fields. An illustration of this is the case of Official Assignee, Madras v. Inspector General of Registration[10], where the Central Act concerned Insolvency under entry 9 of List III and the State Act related to Stamp duties under entry 44 of List III. It was held that no stamp fees would be payable on the sale deed executed by the Official Assignee.

Article 254(2) was implemented with the view of saving those state laws falling under the Concurrent List from being superseded by central laws due to the doctrine of repugnancy.

The sub-clause operates when two conditions are present. These conditions are:
  • There must be a valid central law on the same subject matter and in the same field in the concurrent list to which the central law relates.
  • The state law must be repugnant to the central law
The Article will cease to operate if both the central and the state law have not been enacted on the same subject matter in the concurrent list. In such a situation, the state law would prevail proprio vigore.

In Pt. Rishikesh v. Salma Begum[11], the Supreme Court held that if an enacted Parliamentary law is brought into effect after enactment of a State law which had received the assent of the President, then the State law would prevail because the parliamentary law was the earlier law.

The President's assent is not a mere formality and is limited only to that specific purpose for which it was sought and given. The state law will be void with respect to the central law, unless the conflict between the two acts was specifically brought to the notice of the President while obtaining his assent. The President's assent therefore, does not confer irrevocable immunity upon the State law from the operation of the rule of repugnancy, as stated by the Supreme Court in the case of Grand Kakatiya Sheraton Hotel and Towers Employees & Workers Union v. Srinivasa Resorts Ltd[12].

The proviso to Article 254(2) enables the Parliament to enact at any time, any law on any subject matter, including a law adding to, amending, varying or repealing the State law on the same matter in the Concurrent List. The proviso thus, increases the power of the Parliament by providing it the power to enact a law, repugnant to the earlier state law. The state law is only protected by Presidential assent, in so far as the Parliament does not enact another law on the same matter which is repugnant to the State law.

If the Parliament does so, then those provisions of the state law which is repugnant to the central law will be void. It is of essence that both the earlier state law and the later central law are enacted on the same subject. This provision also provides the Parliament to expressly declare the earlier state law as repealed. Even if it is not expressly repealed, the state law will become void as soon as the subsequent central law is enacted on that subject.

This principle was illustrated in the case of Zaverbhai v. State of Bombay, where a central law was enacted to regulate the supply, production and distribution of essential commodities in 1946. The law also prescribed punishments for those who acted in contravention of the act. The Bombay legislature did not consider these punishments adequate and enacted another law in 1947, increasing the amount of punishment. This subsequent state law received the assent of the president and continued to operate, until 1950, when the parliament itself amended the original law and increased the punishments. The Supreme Court held that the state law would become void as it was repugnant to the central law and both the laws had been enacted on the same subject of enhanced punishments.

Judicial Interpretation
A straightforward reading of the Article will suggest that the Article has been phased in such a way that it applies to all cases of repugnancy between a Central and State law. It does not specifically say that the conflicting State and Central laws should belong to the Concurrent List only. The words in the Concurrent List appear only to state that the existing law, indicating a law made by the Parliament, already in existence, in relation to a matter in the Concurrent List, would prevail over a State law in that same area in case of repugnancy. Regarding laws post the enactment of the Constitution, the words which the Parliament is competent to enact is used. This is a broad term and would comprise of the laws made by the Parliament on subjects in both the Central as well as the Concurrent List.

However, this is not how the judiciary has interpreted Article 254(1). Judicial decisions in the cases of State of Jammu and Kashmir v. M.S.Farooqi[13], of Bar Council of Uttar Pradesh v. State of Uttar Pradesh[14], and in the case of K.S.E. Board v. Indian Aluminium Co.[15], have consistently stated that repugnancy arises and Article 254(1) would apply only when both the Central and the State laws have been enacted on a subject in the Concurrent List and not otherwise.

Explaining the purport of Article 254(1), the Supreme Court stated in Hoechst Pharm Ltd v. State of Bihar[16], that Clause (1) laid down that if a State law relating to subject in the Concurrent List was repugnant to Union Law relating to the same subject, whether the Union Law was prior or later in time, the Union Law would prevail and the State law, to the extent of repugnancy, would be void.

Issues regarding Article 254(1) is not whether a statue falls under one or the other of the entries of the Lists but whether the State law comes into conflict with the Central law or not. On this issue, the Supreme Court has clarified, in Kanaka Gruha Nirmana Sahakara Sangha v. Narayanamma[17], that for the application of this Article, first there must be a repugnancy between the State and Central law and secondly, if there is indeed a repugnancy, then the State law will only be void to the extent of the repugnancy.

To ascertain repugnancy, it will be taken into consideration whether the Parliament intended to lay down an exhaustive code regarding the subject, which would replace the State Law. If the Parliament did not intend to lay down an exhaustive and unqualified code, then there can be no inconsistency and any qualification or restriction introduced by another law cannot be said to be repugnant to the Central law. The Supreme Court further stated that before coming to this conclusion, the Court must fully satisfy itself that the two laws are so inconsistent that they cannot stand together, and thereby must be repealed by implication.

In T.Barai v. Henry & Hoe[18] the court held that, Article 254(2) is an exception to the general rule laid down in Article 254(1).

In Krishna Dist. Co-op. Marketing Soc. Ltd. v. N.V.P.Rao[19], the state law which had been enacted after the central law and which had received the assent of the president would continue to operate over the central law, if there was a repugnancy between the two. If there was no such repugnancy, then the two laws would continue to co-exist.

The Supreme Court further interpreted Article 254(2) in the case of M.P. Shikshak Congress v. R.P.F. Commissioner, Jabalpur[20], by holding that the sub clause would be applicable only in those cases where the Central law was enacted before the state law. Even if the state act receives the assent of the president, it would be of no avail because the repugnancy was with the central act which was enacted by the parliament after the enactment of the state law. The sub clause would not apply if the state act became repugnant to a parliamentary law enacted after the state law. This was additionally retreated in S.M.C. Students, Parents Ass. v. Union of India[21].

There are certain conditions operating on which the Parliament may repeal a state law, by enacting a subsequent legislation. These conditions are that; there must already be central law on a matter in the concurrent list, the state law then enacted a subsequent legislation on the same matter which was inconsistent with the central law and the state law then received the assent of the Parliament. This was stated by the Supreme Court in the case of Tika Ramji v. State of Uttar Pradesh[22], where it interpreted the proviso to Article 254(2).

In this case, the parliament enacted a law subsequent to a state law in Uttar Pradesh, regulating the supply and purchase of sugarcane. The Supreme Court held that the Parliament could not repeal a state law if it was not repugnant to an earlier central law or if there was no parliamentary law already in existence prior to the enactment of the parliamentary law on that matter. However, in the case of repugnancy, the parliamentary law would prevail to the extent of repugnancy. It was also pointed out that the power to repeal a state law could not be delegated by the Parliament to any executive authority.

Critical Analysis
According to esteemed jurist M.P. Jain, it does not appear to be sound to confine Article 254(1) only to those situations where the conflicting Centre-State laws fall within the Concurrent List, when it is possible that they could fall in different lists and yet be inconsistent with each other. He goes on to further say that although it is true that situations of repugnancy arise most commonly when both the laws fall within the same List, yet it is not unimaginable that a similar difficulty may arise when the two conflicting statues fall within different Lists.[23]

The Parliament may legislate on a matter in the State List, which can come into conflict with an existing State Law on that subject. In such a case, there is no doubt that the Central Law would prevail over the State law, but this result can only be achieved if the broader meaning of Article 254(1) is invoked. In the case of Kannan D.H.P.Co. v. State of Kerala[24], the Supreme Court did envisage the possibility of repugnancy between a Central Act on a subject in List I and a State Act on a state subject on List II.

In Srinivasa Raghavachar v. State of Karnataka[25], the court held that there was indeed a repugnancy between the Advocates Act, 1961, which was a Central Act enacted by the Parliament under entries 77 and 78 of List I and a State law prohibiting legal practioners from appearing before a land tribunal, enacted under List II. This broader interpretation helps the States by adding an extra dimension to their legislative powers, thereby allowing them to legislate on matters in List II without the undue restrictions caused by a central law under the con-current or even the central list.

However, the broad majority of decided cases, as illustrated by the decision of the three judge bench of the Supreme Court in Vijay Kumar Sharma v. State of Karnataka[26], have favoured the view that the inconsistency must arise in relation to matters in the Concurrent list. The court has declared that the question of repugnancy will arise only if one Act has been enacted by the Parliament and the other by the State and both the fields refer to subjects in List III. The question of repugnancy will not arise if the Parliament has enacted two separate Acts, one under the Central and the other under the Concurrent List.

The constitution of India has been called quasi-federal in nature by the distinguished jurist K.C.Wheare. This is due to the fact that the constitution has several unitary as well as federal features. However, the founders of our constitution defined it as a federal one.

Article 254 is a classic example of how both unitary and federal features exist in the Indian constitution. The Article provides that in case of a conflict between a central and a state law on the same subject, the provisions of the central law will prevail over the conflicting provisions of the same law. It even provides the parliament with the power to expressly repeal an earlier state law by enacting a subsequent legislation.

Conversely, protection has also been afforded to the laws made by the state. If a state law is conflicting with a central law, it may still continue to operate if the state law has received the assent of the president. The Supreme Court's judgement in Tika Ramji v. State of Uttar Pradesh interpreted the Article in way which was considered to be a significant pronouncement in the field of Indian federalism. It stated that, the Parliament could not repeal any state law in the concurrent list, if it was not repugnant to the central law. An earlier central law should exist prior to the state legislation for the parliament to enact a subsequent law repealing the earlier state law.

We can hence conclude that, Article 254 is a tremendously important one especially when looked at from the lens of centre-state relations. It plays a deciding role in determining the roles to be played by the laws made by the centre and the state and as such, is noteworthy in showcasing the federal side of the Indian constitution.

  1. AIR 2002 SC 852, 894
  2. AIR 1959 SC 648.
  3. (2004) 2 SCC 553
  4. (2009) 4 SCC 94
  5. (2008) 13 SCC 5
  6. AIR 1957 SC 297
  7. AIR 1958 SC 560
  8. AIR 1963 SC 1531
  9. AIR 1954 SC 752
  10. AIR 1981 Mad. 54
  11. (1995) 4 SCC 718
  12. (2009) 5 SCC 342
  13. AIR 1972 SC 1738
  14. AIR 1973 SC 231
  15. AIR 1976 SC 1031
  16. AIR 1983 SC 1019
  17. (2003) 1 SC 228
  18. AIR 1938 SC 150
  19. AIR 1987 SC 1960
  20. AIR 1999 SC 443
  21. AIR 2001 Kant, 457, 465
  22. AIR 1956 SC 676
  23. M.P.Jain, Indian Constitutional Law, 7th Edition, LexisNexis, p.569
  24. AIR 1972 SC 2301
  25. AIR 1987 SC 1518
  26. AIR 1990 SC 2072

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