Constitutional Law: Doctrine of Repugnancy

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Federalism limits every action of the government and splits power between centre and the state. The basic principle of the Indian constitution is that there is a division of legislative, executive and financial authority between the centre and the state. India follows the system of federalism where centre and state which is at a periphery each of them and is endowed with power assigned by the constitution. In the Indian constitution there are three types of lists mentioned in the 7th schedule they include Union list in which the union government has an exclusive power to make law.

State list where the state government has an exclusive power to make law. In the concurrent list both state legislature and the union have the power to make law. Doctrine refers as a set of rules, established through precedents can prove useful for determining a judgement in a given case.  Doctrine of repugnancy refers as where the law is enacted by the legislation which is in conflict with a law made by the state in the concurrent list the parliamentary legislation would prevail over the state legislature. Doctrine of repugnancy occurs when both the statues have made law in the concurrent list The aim of the concurrent list was to confirm uniformity across the country where both centre and state can legislate.

Justice Fazal Ali reviewed the decision passed by the courts on the doctrine of repugnancy and held in the case of M Karunanidhi v. Union of India that the doctrine of repugnancy can be used when

1. There must be a clear and direct inconsistency between the two enactments.

2. There can be no repeal unless inconsistency appears on the face of the two statues.

 3. Two statues occupy same field without coming in collusion there can be no repugnancy results.

4. There is no inconsistency between the statues in the same field both the statues continue to operate.

Evolution of doctrine of repugnancy

The doctrine of repugnancy is not expressly mentioned in the American as well as Canadian constitution it is being adopted from American constitution. The framers in order to avoid conflicts between the state and the union introduced the doctrine in the article 254 of the Indian constitution.

Article 254: Inconsistency between laws made by Parliament and laws made by the Legislatures of States

In the clause (1) it mentions that any provision of law made by the legislature of the state which is repugnant to the law passed by the parliament in the concurrent list, whether passed before or after the law made by the legislature of such state, the law passed by the parliament shall prevail and law made by the legislature of the state shall be void to the extent of repugnancy. In the clause (2) it mentions that law made by the legislature of the state in matters enumerated in the concurrent list which is repugnant to the existing law passed by the parliament, the law made by legislature of such state has been reserved with president’s assent it shall prevail in that state.  

The second clause was interpreted in many judgements as an exception of the first clause.

Proviso: Nothing shall prevent parliament from enacting a law on the same matter which will amend, verify, and repeal the law made by the legislature of the state.

The framers understandable gave more power to the union over the state as because the state government have a jurisdiction in a particular state. Centre is the protector of the states. The main aim of introducing this doctrine was to create conflict free national system. The doctrine has evolved over the years through interpretation of courts in various cases. In M.P. Sundararamier and Co v. The state of Andhra Pradesh the court interpreted repugnancy in two situations First the central and the state on any filed mentioned in list III of the seventh schedule which are inconsistent article 254 would be applied. Second Inconsistency between the central and the state law in list 1 and list II both the laws cannot stand together it shall be at the interpretation of the court.

The law that is passed in the state legislature won’t be repugnant if the laws are in different matters this was interpreted by the court in Zaveribhai Amaidas vs. State of Bombay. In UCO Bank v. Dipak Debbarma the court interpreted that the parliamentary legislation is the dominant legislation and the act passed in the parliament would prevail over the state law. In Deep Chand v. State of UP the court interpreted as if there is a direct and irreconcilable conflict then the law passed by the state legislature can be struck down. Justice K.G. Balakrishnan in Govt of A.P v. J.B. Educational society held that any law passed by the state legislation which is in conflict with the law passed by the parliament after reserving the assent of the president can be operative in that state subject to proviso mention under Article 254(2). There have been cases where state have exceeded with their power to make laws those laws are supposed to be struck down this was interpreted in M/S Gujarat exports Ltd v. State of Uttarakhand. The interpretation of the doctrine has evolved over the times from courts to courts,  and the courts while interpreting the doctrine has considered it import in maintaining the centre-state relation.

Salient features

  • If any law passed by the legislature of the state enumerated in the concurrent list which is repugnant to the earlier law made by the parliament or an existing law the law passed by the state legislature would remain in existence in that state if the assent is given by the president.
  • After receiving the presidential assent the law can still be held void if the parliament amend, verify and repeal any law in respect to the same matter.
  • The state legislature and the parliament have equal competence to legislate in the concurrent list. It is the duty of the court to interpret the enactments and avoid conflicts.
  • No repugnancy of law passed by the state legislate would be required if the matter is different. Then Article 254(2) would have no application.
  • Under article 254 of the Indian constitution when a law passed by the legislature of the state which is inconsistent with the law parliament the whole law won’t be held void it will be held void to the extent of repugnancy.
  • To ascertain repugnancy it is necessary to check law made by the parliament is an exhaustive code if it is not then the state law won’t be held void.
  • In order to strike down a law passed by the state legislature in the court it is necessary to prove both laws are made on the same matter and both are inconsistent with each other.
  • The state law which becomes void after repugnancy till the time the union law is not repealed once it is repealed it becomes operative.

Landmark judgements

M Karunnanaidi vs. Union of India

Facts: The Tamil Nadu state passed a legislature Tamil Nadu public men (Criminal misconduct) act 1973. It was amended in the year 1974 the act was challenged claiming that it was repugnant with the act passed by the centre consisting of the Indian Penal Code and the prevention of corruption Act 1947.

Judgement: The court held that there is no direct conflict between the state and the central Acts. They are complementary acts which run pari passu to the central act. In this case court held that the question of repugnancy may arise when two enactments are irreconcilable or inconsistent and they cannot operate in the same field together.  No question of repugnancy may arise if the statues continue to operate in the same field without cornering into collusion.  

Deep Chand vs. Sate of UP

Facts: The state government introduced UP transport service Act and was added in the concurrent list. There were certain provision which were in the UP transport service Act which was not in the motor vehicles Act. So the parliament amended the Motor Vehicles Act to create a uniform law.

Judgement: The court held that both the law were in a direct conflict and occupied the same field. Therefore it is void to the extent of repugnancy.  

Zaveribhai vs. state of Bombay

Facts: The parliament enacted essential supple Act 1946 regarding production and distribution of essential commodities. If the rules listed are not followed the person would be imprisoned for 3 years. The state passed an Act with the assent of the president the Act increased the punishment up to 7 years. The parliament amended the Act and enhanced the punishment.

Judgement: The court held that both the legislations made law in a same fields conflicting each other . Therefore law passed by the state is void to the extent of repugnancy.

Difference between repugnance and ultra-virus

Ultra-Virus refers as when a body exceeds his legislative power. E.g. When state makes a law in List I even though it doesn’t have the legislative power to make laws in list I. In Ultra-Virus law becomes invalid when the legislature exceeds the law. In Ultra-Virus there is no question of competition between two legislatures. In repugnancy both the legislatures are competent to make laws if they are inconsistent then the laws made by the state would be held void. In simple terms Ultra-Virus refers as incompetency and repugnancy refers as inconsistency.

Critical analysis

There is no doubt that both state and union having an absolute power but there are some subject matters where interest of both the governments collides. In this scenario doctrine of repugnancy proves to be a critical mechanism dealing with such inconsistencies. In India where centre has dominance over the state this doctrine is not surprising under article 254(1) of the Indian Constitution mentions that any law inconsistent to the law passed by the parliament would be held void. If the state has got the assent by the president the parliament can still make the law void by verifying, amending and repealing law in the same subject matter. It is of no importance whether parliamentary law is passed before or after the passing of the state law. Repugnancy arises were three essential are satisfied like direct conflict, occupied field and intended occupation if they are satisfied then the parliamentary law would prevail over the state law. This doctrine plays a critical role in order to preserve the integrity of the country and avoid two laws on the same subject matter.

Conclusion

The constitution of India consist of various doctrines out of which doctrine of repugnance is one of the most significant it help to maintain uniformity in the country and avoid disputes between the centre and the state. India being a Quasi federal country there is a distribution of power between the centre and the state so there are possibility that disputes arise between the centre or the state then this doctrine proves critical. Where any law passed by the parliament inconsistent with the law passed in the state legislature the parliamentary law would prevail. Many cases in the past Article 254(2) is considered as an exception to Article 254(1) which mentions that law passed by state legislature can be saved with the presidential assent.

There is a provision added in article 254(2) of the Indian constitution which claims that the parliament can verify, amend the same law to make the state law inconsistent. The law remains inconsistent until and unless the law passed the parliament is not repelled once it is law passed by the legislature of state comes into existence. Legislative intent plays a crucial role in the doctrine of repugnancy. Thus this doctrine plays a pertinent part in the Indian constitution in determining the roles of centre and state.

Author: Darshit Hemang Vora from NMIMS, School of Law.

Editor: Anmol Mathur from Symbiosis Law School, NOIDA.

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