DOCTRINE OF REPUGNANCY

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This article is written by Ananya Banerjee, Kari Nazrul University, an intern under Legal Vidhiya.

Abstract:

Schedule VII of the Constitution of India, the mother law of all laws in force in India, entitles the Central government as well as the State Governments the authority to enact legislation in their respective spheres. Repugnancy is defined as a mere contradiction between two or more elements of a legal document by Black’s Law Dictionary. Such an unintentional discrepancy between the laws made by the Center and the State can occur under a system where the authority to make laws is conferred between both the Center and the States. Therefore to avoid such inconsistency the doctrine of repugnancy comes in the picture.

Introduction:

Federalism divides every action of both the central level government and state level government so that both the governments would be able to form policies according to the needs of the people. This division can be seen only in legislative, executive and financial actions. In the seventh schedule of the Indian constitution, there has been given three lists i.e. union list, state list and concurrent list. In these lists, powers are specifically divided between two level governments. Doctrine of repugnancy has its role under concurrent list. When both the governments have made a law over the same subject matter and both the laws are extremely inconsistent with each other, the parliamentary legislation shall prevail over state legislation. This doctrine aims to remove unnecessary ambiguities and makes the superior authority supreme.

Seventh schedule of the Indian Constitution:

The Seventh Schedule, which includes the Union List, State List, and Concurrent List, enshrines Article 246 of the Indian Constitution.

A variety of topics are included on the Union List, under which the Parliament may pass laws. The union list contains 97 subject-matter categories. This encompasses, among other things, the military, foreign policy, railroads, and finance.

The State List contains a list of topics on which a state’s legislature may pass laws. Some of the topics that fall under the state list are public order, police, public health and sanitation, hospitals and dispensaries, betting, and gaming. The State list includes a total of 47 subjects.

The Concurrent List comprises topics that grant both the federal government and state governments authority. It is divided into 66 different topics.

Definition of doctrine of repugnancy:

The notion of repugnancy is established in India by Article 254 of the Indian Constitution. Understanding the legislative framework and the Center-State relations outlined by the Constitution is crucial before discussing this philosophy. According to Article 245, both the State legislature and the Parliament are given the authority to enact laws that apply to all or any portion of India. Furthermore, it specifies that a law passed by the Parliament cannot be ruled illegal because it applies extraterritorially. Additionally, Article 246 outlines the types of laws that the Parliament and State legislatures may enact.

For all topics listed in the Union List or List I of Schedule VII of the Indian Constitution, the Parliament has the only authority to enact legislation.

The State Legislature has the authority to enact legislation on behalf of the State for any issues listed in List II or the State List of Schedule VII.

All items specified in the Concurrent List or List III of the Seventh Schedule are subject to lawmaking authority by both the Parliament and the State Legislature.

The provision to Article 254(2) gives the Parliament the power to make any law, on any subject, at any time, including one that supplements, modifies, differs from, or repeals a State law on the same subject included in the Concurrent List. Thus, the proviso gives the Parliament more authority by enabling it to pass legislation that is opposed to earlier state law. Only insofar as the Parliament does not pass a bill on the same subject that is incompatible with the State law is the state law protected by presidential assent.

If the Parliament takes this action, state laws’ provisions that are in conflict with the federal law will be null and void. It is essential that the same issue be covered by both the earlier state legislation and the later central law. Additionally, under this provision, the Parliament may explicitly proclaim that an earlier state legislation is repealed. The state law will be nullified as soon as the succeeding federal statute on that topic is passed, even if it is not specifically repealed.

Distinction between ultra virus and doctrine of repugnancy:

The Latin term ultra vires means states exceeding its power prescribed. In ultra vires, the law becomes invalid as soon as it is made out of ultra vires power. In ultra vires, there’s no competition between two legislatures. In doctrine of repugnancy, both level legislatures are eligible to make laws.

Direct test:

In Mati Lal Shah v. Chandra Kanta Sarkar, AIR 1947 Cal 1, a dispute developed between Sections 20 and 34 of the Bengal Agricultural Debtors Act of 1936 and Section 31 of the Presidency Small Causes Courts Act of 1882. This case was brought to the Calcutta High Court. The former required that a notice be served to prevent the execution of specific judgements against agricultural debtors, while the latter required that, if necessary, other courts be used to carry out the execution. The Bengal Act’s provisions were declared void by the court because they were repugnant.

One could argue that the direct test is sometimes limited and not always advantageous for society. The doctrine can still be put into action without being stopped.

Extended code:

What if the center consciously created a code to regulate a topic and remove it from the control of the government? The state law is not in harmony with this. As a result, a second principle developed that gave the judiciary room to defend the paramount legislation’s intended goal and steer clear of constructing arguments.

Judicial interpretation:

A simple reading of the article will indicate that it has been phased in to apply in all instances of incompatibility between a Central and State law. The competing State and Central laws should only be included on the Concurrent List, however this is not stated explicitly. The Concurrent List simply seems to specify that, in the event of a conflict, a legislation established by Parliament that is already in effect in connection to an item on the Concurrent List would have precedence over a specific law in the same area. The language that the Parliament is authorized to enact is utilized with regard to laws passed after the Constitution’s enactment.

Contrary to popular belief, the judiciary has consistently held that Article 254(1) only applies when both the Central and State laws have been passed on a topic included in the Concurrent List. This is how the court has interpreted the provision in the cases of State of Jammu and Kashmir v. M.S. Farooqi, Bar Council of Uttar Pradesh v. State of Uttar Pradesh[14], and K.S.E. Board v. Indian Aluminium Co.

In the landmark case concerning doctrine of repugnancy, M. Karunanidhi v. Union of India, a constitutional bench of the Supreme Court recognised the issues regarding this doctrine between the statutes made by the Central legislature and the statutes made by the state legislature. It was decided that the under noted points need to be satisfied for the application of the doctrine of repugnancy:

a clear contradiction between the State Act and the Central Act.
The contradiction must be incommensurable.
It should be difficult to obey one Act without also disobeying the other because of the discrepancy between its provisions, which should be severe enough to bring the two Acts into direct conflict.

The Honorable Court also established certain ideas in this regard. Two enactments must contain provisions that are so incompatible with one another that they cannot coexist in the same field in order for the theory of repugnancy to apply. It is not possible to repeal by implication unless the laws are inherently objectionable. This idea is not applicable if there are two laws in the same field that have the potential to operate independently of one another. The issue of repugnancy is not raised when there is no inconsistency but an act in the same field causes different violations.

Government of Andhra Pradesh v. J.B. Educational Society is another important decision in which the Supreme Court stated that the judiciary must interpret laws passed by the State Legislature and the Parliament in a way that avoids or avoids the issue of conflict. However, the Parliamentary law shall have precedence if a disagreement between the two laws cannot be avoided. The greatest potential for a conflict arises in this situation since List III grants the State Legislatures and the Parliament equal authority to enact legislation. Clause (2) of Article 254 addresses the case in which the State law, which has been reserved and received the President’s approval, prevails in that State; this is again subject to the proviso that Parliament may once more introduce legislation to override even such State legislation.

The impact of Clause (2) of Article 254 is discussed in the case of Hoechst Pharma Ltd. v. State of Bihar. It was noted that the President’s approval of a state law that conflicts with a federal law for a matter relating to a concurrent subject is significant because it causes the state law in that state to predominate, nullifying the application of the federal law in that state alone.

Test of identify repugnancy:

The Australian Constitution has implemented the repugnancy principles, while the Indian Constitution has done the same by analogy. According to Australian precedents, the court in Deep Chand v. State of Uttar Pradesh noted that the following three standards can be used to determine if two enactments are repugnant to one another:

Whether the two conflicting provisions are directly at odds with one another; Whether the Parliament intended to establish an exhaustive enactment on the subject and to supersede the law made by the State legislature; and Whether the areas of application of the two laws are the same.

Important case laws:

The court attempted to resolve the contradiction between the two Acts in Bharat Hydro Power Corpn. Ltd. v. State of Assam, although the two Acts are in distinct fields. The Supreme Court ruled that there won’t be repugnancy if the two laws operate in separate domains without interfering with one another.

In Deep Chand v. State of U.P., it was determined that the nationalization of the U.P. The Transport Service Act violated a later-added clause of the Motor Vehicle Act of 1939 that the Parliament had introduced. The Court concluded that because both laws dealt with the same subject, the State statute was invalid to the extent that it was incompatible with Union statute.

The Bombay legislature judged the punishment specified by Parliament in the Essential Supplies Act, 1946 to be insufficient in Zaver Bhai V. State of Bombay, and by modification they passed an Act by raising the punishment. Their bill was held back for the president’s approval, which they also received. Later, the punishment for the 1950 Act was further increased by Parliament. The court then ruled that because both laws covered the same territory, the state statute was null and void for being in conflict with the federal law.

It was determined in State of Maharashtra v. Bharat Shanti Lal Shah that the repugnancy must in fact exist. Additionally, it must be demonstrated sufficiently and clearly that state and federal laws are incompatible with one another.

The court held in Security Association of India v. Union of India that Article 254 only applies when the state law is in “Pith and Substance” a law pertaining to an entry in the concurrent list on which the parliament has passed legislation.

It should be observed that the issue of repugnancy would not emerge if the Center passed a law on a topic from the Central or Concurrent List and the State passed a legislation on a subject from the State List, according to the rule of pith and substance. A State law would not be declared unlawful on the basis of its accidental incursion in the Concurrent List if it is passed with respect to a matter in the State List, as demonstrated in Krishna v. State of Madras and State of Madras v. Dunkerley.

The Supreme Court ruled in Pt. Rishikesh v. Salma Begum that if a state legislation that had gained the President’s assent was passed after a parliamentary statute, the state law would take precedence because it was the earlier law.

However, the vast majority of resolved judgements have favoured the theory that the discrepancy must relate to issues on the Concurrent list, as demonstrated by the Supreme Court’s three-judge panel’s ruling in Vijay Kumar Sharma v. State of Karnataka[26]. The court ruled that the issue of repugnancy would only come up if both fields made reference to items on List III and one Act had been passed by the State and the other by the Parliament. If the Parliament has passed two distinct Acts, one under the Central List and the other under the Concurrent List, the issue of repugnancy won’t come up.

Conclusion:

The doctrine of repugnancy primarily addresses the dispute between federal and state laws. Since India has a federal system of government, the Constitution’s VII Schedule divides the scope of legislative authority between the Center and the States. According to Article 245, the legislature of a State may pass laws for the entirety or any portion of the State, and the legislature of Parliament may do the same. Article 246 specifies the scope of the legislative authority of both the Parliament and the State governments.

The Union Parliament and State Legislatures are given equal authority to enact legislation under the Indian Constitution. However, conflicts have occasionally arisen as a result of the Constitution’s intricacy; for this reason, the Indian Constitution is referred to as “Federal with Strong Centralizing Tendency.”

Citations:

“A brief on Doctrine of Repugnancy.” LawBhoomi, 22 July 2020, https://lawbhoomi.com/a-brief-on-doctrine-of-repugnancy/. Accessed 12 April 2023.

Vora, Darshit Hemang. “Constitutional Law: Doctrine of Repugnancy – Lexlife India.” Lexlife India, 11 May 2020, https://lexlife68840978.wordpress.com/2020/05/11/constitutional-law-doctrine-of-repugnancy/. Accessed 12 April 2023.

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