Doctrine of Repugnancy - Advocate Kasana

The Indian structure of governance is Quasi federal with a unitary system of distribution of power. This means that the Center and the States have the power to make legislations exclusively over some subject matters while there are still some area where a unitary form of distributions of power where central is deemed superior under certain circumstances.^[1] This federal nature is embodied in Part XI of the India constitution. Chapter 1 of Part XI provides for the distribution of legislative powers between the Parliament and state legislature. Chapter 1 contains Article 245-255, Article 245 confers law making power for the whole or part of the territory of India to the Parliament and the power to make laws in whole or part of the state to the legislature of the state. Hence the parliament Makes central legislations while the state makes state legislations.

The legislative power is divided based on subject matter. The seventh schedule of the Indian constitution divides and classifies subjects into 3 lists; List I (Union list), List II (State List) and List III (Concurrent list). Each list contains the matters on which the Parliament or State Legislature can exercise legislative power. Article 246 (1) assigns Exclusive legislative power to the Parliament over the union list. Article 246(3) gives the State legislature Exclusive power to legislate on the matters listed in the State List. Article 246 (2) gives both, the Parliament and the State legislature, the power to legislate over the concurrent list.

When there is shared power, conflict is bound to arise. One such situation of conflict is when the state and the Parliament both enact a law under the same subject using their powers under Article 246 (2) and an inconsistency or incompatibility exists between provisions of these two laws and the use of one goes against or disobeys the provisions of the other. This phenomenon is know as repugnancy. Repugnancy is defined under Black’s Law as “an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or a contract)”^[2].

Two laws are said to be repugnant when the use of provisions from one law will go against or disobey the provisions of the other. In the Indian constitution, the doctrine of repugnancy is embodied in Article 254 (1) which says that, if any provision of a state law, that was enacted on a subject under the concurrent list contradicts any provision of law made by the parliament on the same subject under the concurrent list then Central law will prevail voiding the state legislation to the extent of repugnancy. Article 254 (1) is subject to clause (2) which states that if laws are incompatible then, subject to presidential assent for the repugnancy to exist, the state law will prevail in that State. This supremacy of the Parliament depicts the quasi federal nature where central is deemed superior when concurrent powers with the state come create conflict.

The supreme court in the case of Rajiv Sarin v State of Uttar Pradesh and others^[3] said that when the legislative competence of an enactment is being challenged, the courts have to ascertain the pith and substance of the enactment by scrutinizing the act. The court said that while deciding pith and substance the courts should also examine the true character and nature of the act, its object, scope and effect to find out if the enactment falls within the allotted legislation to the respective legislature under the constitutional scheme. ^[4]

The supreme court case of M. Karunanidhi v UOI^[5] is the leading case law on the Doctrine of repugnancy. The court in deciding, discussed some circumstance where repugnancy may arise

(i) where the provision of a central act and those of a safe act in the concurrent list are fully inconsistent and absolutely irreconcilable and the central act will prevail and void the state act to the extent of repugnancy.

(ii) where, if the law passed by the state and a law passed by the central under the concurrent list then the state act shall prevail and to the extent of repugnancy and central act will be voided in that state only provided the act was passed in accordance to Article 254 (2).

(iii) “Where a law passed by the State legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List an entrenchment, if any, being purely incidental or inconsequential”^[6]

(iv) When Article 254 (2) is met and the state law prevails in that state over the central act, the law will remain that way till the Parliament makes a law “adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.”^[7]

The court in this case also set the prerequisite for repugnancy to exist 1) there needs to be a clear and direct inconsistency between the central act and the state act , 2) the inconsistency in question is absolutely irreconcilable, 3) the acts should be in direct conflict with each other and it is impossible to obey one without disobeying the other. The court further said that while deciding the question of repugnancy,

When the inconsistent and irreconcilable provisions contained in the two acts results in their inability to exist in the same field.
Unless there is Prima facie inconsistency with the two statutes, repeal by implication is invalid.
When two statutes occupy the same field and there is a possibility for both to operate in the same field without collision then no there is no repugnancy.
When two statutes occupying the same field without inconsistency but pursue different separate offenses, no repugnancy arises and both statutes can operate in the same field.

The supreme court, in the case of Govt. of A.P & Anr v J.B. Education society & Anr ^[8], held that the while interpreting the legislations of the Parliament and the State legislature, the court has a duty to interpret in a manner that avoids any conflict. In the scenario that there exists unavoidable conflict and the enactments are irreconcilable, then as mentioned under Art 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the state regarding matters under State list. With respect to conflict in terms of the Concurrent List, the court referred to Article 245 which indicates the manner of resolution of such conflict. The court therefore affirmed the predominancy of parliamentary legislations.

The Supreme court in Kartar Singh v. State of Punjab^[9] said that incidental encroachment does not automatically result in repugnancy. While assessing a law that deals with and was enacted under one list but touches upon a subject in another list, then the courts have to analyze the pith and substance of the enactments. The court also said that the legislations have to be substantially on the same subject to attract the Doctrine, hence upholding previous judgements of the court.

^[1] “The Doctrine of Repugnancy In The Indian Constitution”, <http://www.legalserviceindia.com/legal/article-964-the-doctrine-of-repugnancy-in-the-indian-constitution.html> (Accessed on 21 September 2020)

^[2] Doctrine of Repugnancy in the Indian Constitution” (Our Legal World July 14, 2020) <https://www.ourlegalworld.com/doctrine-of-repugnancy-in-the-indian-constitution/>> ( Accessed on 20 September 2020)

^[3] (2011) 8 SCC 708

^[4] see n(18)

^[5] M. Karunanidhi v Union of India, 1979 3 SCC 431

^[6] M. Karunanidhi v Union of India, 1979 3 SCC 431

^[7] see n (21)

^[8] AIR 2005 SC 2014

^[9] 1994 3 SCC 569