All you need to know about the doctrine of repugnancy

Table of Contents

Introduction

The Constitution of India, the supreme law of the nation, has empowered the Central and the State Government to enact laws by virtue of various Articles read with Schedule VII. Black’s Law Dictionary defines repugnancy as inconsistency or contradiction between two or more parts of a legal instrument. In a system that divides its law-making power between the Centre and the States, an inconsistency can arise between the laws made by the Centre and those made by the State. The Doctrine of Repugnancy was introduced in the Constitution to resolve such situations.

Meaning of doctrine of repugnancy

Article 254 of the Indian Constitution establishes the doctrine of repugnancy in India. Before getting to this doctrine, it is quintessential to understand the legislative scheme and the Centre-State relations set out by the Constitution. `

Article 245 empowers the Parliament to make laws for the whole or any part of India and the State legislature to make laws for the whole or any part of the State. It also states that a law made by the Parliament shall not be deemed invalid due to its extraterritorial application. Further, Article 246 provides the subject-matter of laws that can be made by the Parliament and Legislature of the States.

  • The Parliament has exclusive powers to make laws for all matters given in the Union List or List I of the Schedule VII of the Indian Constitution.
  • The Legislature of the State has powers to make laws for such State for all matters given in the State List or List II of Schedule VII.
  • Both the Parliament and the State Legislature have powers to make laws for all matters listed in the Concurrent List or List III of the Seventh Schedule.
  • The Parliament is empowered to make laws relating to any matter for any part of the territory of India, not included in a State, notwithstanding if it is enumerated in the State List.

Repugnancy means a contradiction between two laws which when applied to the same set of facts produce different results. It is used to describe inconsistency and incompatibility between the Central laws and State laws when applied in the concurrent field. The situation of repugnancy arises when two laws are so inconsistent with each other that the application of any one of them would imply the violation of another.

The doctrine of repugnancy, in accordance to Article 254, states that if any part of State law is repugnant or conflicting to any part of a Central law which the Parliament is competent to enact, or to any part of a law of the matter of List III, then the Central law made by the Parliament shall prevail and the law made by the State legislature shall become void, to the extent of its repugnancy. While considering this doctrine, whether the central law is passed before or after the State law is immaterial. Hence, this is a principle to ascertain that when a state law becomes repugnant to the Central law.

Judicial interpretation

One of the landmark judgments concerning this doctrine is M. Karunanidhi v. Union of India. In this case, a constitutional bench of the Apex court considered the question of repugnancy between a law made by the Parliament and a law made by the State legislature. It was observed that the following conditions should be satisfied for the application of the doctrine of repugnancy:

  1. A direct inconsistency between the Central Act and the State Act.
  2. The inconsistency must be irreconcilable.
  3. The inconsistency between the provisions of the two Acts should be of such nature as to bring the two Acts into direct collision with each other and a situation should be reached where it is impossible to obey the one without disobeying the other.

The Hon’ble Court also laid down some propositions in this respect. For the application of the doctrine of repugnancy, two enactments must contain provisions that are so inconsistent that they cannot stand together in the same field. Repeal by implication cannot be done unless there is a prima facie repugnancy in the enactments. If two enactments exist in the same field and there is a possibility for both of them to operate without colluding with the other, then this doctrine is not attracted. When there is an absence of inconsistency but enactment in the same field creates distinct offences, the question of repugnancy does not arise.

Another landmark judgment is Government of Andhra Pradesh v. J.B. Educational Society, where the Court observed that the judiciary must interpret legislation made by the Parliament and the State Legislature in such a way that the question of conflict does not arise or can be circumvented. However, if such a conflict between laws is unavoidable, then the Parliamentary law shall prevail. Since List III gives equal competence to both the Parliament and the State Legislatures, to enact laws, the highest scope of a conflict exists here. Again, the Court should interpret laws to avoid the conflict or else follow the manner of resolution iterated in Article 245. 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.

The case of Hoechst Pharma ltd. v. State of Bihar discusses the effect of Clause (2) of Article 254. It was observed that the assent of the President for a state law which is repugnant to a Central law for a matter related to a concurrent subject is important as it results in the prevailing of the State law in that particular State, thereby, overriding the application of the Central law in that state only.

Tests for determining repugnancy

The principles of repugnancy have been applied under the Australian Constitution and have been borrowed by analogy for their application in India. Following Australian precedents, the Court in the case of Deep Chand v. State of Uttar Pradesh observed that repugnancy between two enactments can be identified with the help of the following three tests:

  1. Whether there is a direct conflict between the two conflicting provisions;
  2. Whether the Parliament intended to lay down an exhaustive enactment on the subject-matter and to replace the law made by the State legislature; and
  3. Whether the law made by the Parliament and that made by the State legislature occupies the same field.

Direct conflict

Direct conflict is said to exist when two laws cannot be effectuated at the same time. A lucid occurrence of repugnancy is when the existence of one law prohibits the application of another law with respect to the same conduct. Such were the circumstances in the case Mati Lal Shah v Chandra Kanta Sarkar before the Calcutta High Court. A conflict arose between Section 20 and Section 34 of the Bengal Agricultural Debtors Act, 1936, and Section 31 of the Presidency Small Causes Courts Act, 1882 which is an existing Indian law in force. The former required that the service of a notice shall stay for the execution of certain decrees against the agricultural debtors while the latter required that the execution shall take place through other courts, if necessary. The Court held the provisions of the Bengal Act void due to repugnancy.

In another case of Vishwanath v. Harihar Gir (1939), Section 16 read with Section 17 of the Bihar MoneyLenders Act, 1938 was conflicting with Order 21, Rule 66 of the Code of Civil Procedure. The Bihar Act provided that the Court should fix an amount of the property, when it is brought for sale, and not permit its sale below that fixed amount. On the other hand, the Code provided that the Court shall mention the amount of the property which is mentioned by the Decree holder or judgment debtor but is not required to vouch for the correct price of the property. The Court observed that the application of both the provisions at the same time is impossible as they are contradictory to each other. Hence, in substance, there is repugnancy. The Court held the provisions of the Bihar Act void and applied those of the Code. In this case, it was seen that although there is a judicial eagerness to limit the area of repugnancy, however, when it is coupled with mechanical reconciliation, the result might not always end up being desirable or beneficial for the society in general. The implementation of the doctrine remains unpreventable.

Exhaustive code

The test of direct conflict can prove to be narrow for complex scenarios. Thus, a second principle was evolved for the fuller understanding of the application of the dominant legislation, which is, if the Central government intentionally drafted a code for its exhaustive application for regulating the subject-matter, then it would not be harmonious for the State legislation to function at the same time. This test provides ample scope for the Judiciary to uphold the intended values, envisaged in the paramount legislation, by the makers of the legislation and to defeat narrow arguments that could be raised on the basis of the direct collision test.

In the case of State of Assam v. Horizon Union, the Apex Court undertook the exhaustive code test. For appointing the Presiding Officer of an Industrial Tribunal, the qualifications required by the candidate, as per the State law, were 3 years experience as a District Judge or qualified for appointment as a High Court judge, provided that such appointment could be made only after consultation with the High Court. The challenge, in the present case, was on a candidate who was appointed without any consultation from the High Court. The Supreme Court observed that the Central Act was intended to be an exhaustive code on the subject-matter, i.e., the appointment of District Judges as a Presiding Officer, and the appointment was valid. However, if a person qualified to be appointed as a Judge of the High Court were to be appointed as the Presiding Officer, the provisions in the State law for consultation with the High Court were still valid. This shows on what narrow field the Central Government was held to have laid down an exhaustive code.

In the above case, the test of direct conflict would have failed in determining the conflict.

Occupying the same field

This test is in close relation with the exhaustive code test for identifying repugnancy between two enactments. If the Central government has enacted a law with the intention of occupying the whole field, then it would not be fit for the State law to legislate in the same field.

In Zaverbhai Amaidas v. the State of Bombay, a convict pleaded that he was convicted by a Court having no jurisdiction. According to the state law, the offence committed by him, that is, transporting food grains without permit attracted imprisonment for a term of 7 years. On the other hand, the Central law prescribed punishment of imprisonment for a term of 3 years for the offence committed by him. An additional provision in the Central law was that the punishment could be increased to 7 years if the person was found possessing double the permitted quantity of food grains. The convict argued that he should have been governed by the provisions of the Bombay Act and not the Central Act which would render the decision of the court a faulty one, and without jurisdiction as the Magistrate who punished him could sentence him for the imprisonment of only up to 3 years. The occupation of the field of both the laws was observed as seen whether they occupy the same field or not. The Supreme Court held that both the laws occupied the same field and cannot be split up. Hence, the State laws were held to be void and the Central law prevailed as per the doctrine of repugnancy.

Conclusion

The effect of the application of this doctrine will make the State law void to the extent of repugnancy. As long as the Central law occupies the field, the State law is eclipsed. If, in case, the Central law is repealed, then the State law shall revive. The doctrine of severability also comes into application since if a State law is repugnant for a matter in the concurrent list, then only the repugnant part will be held void and the rest shall function normally, thereby, giving rise to severability. Article 254 proves that the Indian Constitution is both unitary and federal. This doctrine is quintessential for the Centre-State relations in the country.