Doctrine of Repugnance

From time immemorial, legislative bodies have been enacting laws all over the world. With the enactment of laws by different legislative bodies all over the world, conflict of laws is an unavoidable issue. However, in this article I will mainly be focusing on the conflict of laws with regard to India. In India, there are three wings of the Government, namely, The Legislature, The Judiciary and the Executive. The legislature has the law making powers for the entire country. The legislature is further divided into the Centre and the State. Doctrine of Repugnancy deals with the conflict of laws between the State and the Centre. Part XI of the Indian Constitution describes the legislative relations between the States and the Centre. The legislative field of the Parliament and the State Legislatures has been specified in Article 246 of the Constitution whereas Article 254 of the Indian Constitution describes the mechanism for resolution of conflict between the Central and the State legislations enacted with respect to any matter enumerated in List III of the Seventh Schedule. Various judicial pronouncements have declared the pre-conditions for the application of the doctrine of repugnancy. In the case of M. Karunanidhi v. Union of India, the Constitutional Bench laid down the tests for the application of the Doctrine of Repugnancy, which is as follows: â€Å"1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. 2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. . That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results. 4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field. † In National Engineering Industries Ltd. Vs. Shri Kishan, the Supreme Court observed : In order that a question of repugnancy may be arise, two conditions must be fulfilled, namely that the State Law and the Laws of the Union must operate the name field and one must be repugnant or inconsistent with the other. † From the plain reading of the Articles 246 and 254 it is clear that in case of a conflict between the Union laws and State laws, it is the Union law which shall prevail if it is made within an entry of List III of the Constitution. In such a scenario if any provision of a State-made law is in conflict with the Parliament–made law under such circumstance the State-made law is declared void to the extent of repugnancy. However, this general rule is subject to Clause (2) of Article 254 of the Indian Constitution. The Clause (2) of the said Article says that that the State law will become void to the extent of repugnancy unless the State law has been reserved for the assent of the President. If the Preseident grants his assent to the said state law, then the Union law, to the extent of its repugnancy will become void in that state. However, this does not curtail the power of the Parliament from enacting at any time any law with respect to the same matter including a Law adding to amending varying or repealing the law so made by the legislature of the State. Thus, what is visible to us by analyzing the various judicial pronouncements and by going through the Constitution is that both the Centre and the State have supreme powers with regard to enacting the laws for their respective domains but in the presence of a conflict, it is the Centre-made laws which shall prevail in most cases. The Supreme Court in Zameer Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra has examined the law relating to the Doctrine of Repugnancy. In essence, Part XI of the Indian Constitution describes the legislative relations between the States and the Centre. Further, Article 254 establishes the doctrine of Repugnancy which acts as a safeguard to solve disputes arising between the states and the Union. The term ‘Repugnancy’ means inconsistency between the State-made law and the Union-made law. The relevant extracts from the judgment are reproduced hereunder; 46. Before we proceed to analyze the said aspect, it would be appropriate to understand the situations in which repugnancy would arise. 47. Chapter I of Part XI of the Constitution deals with the subject of distribution of legislative powers of the Parliament and the legislature of the States. Article 245 of the Constitution provides that the Parliament may make laws for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the State. 48. The legislative field of the Parliament and the State Legislatures has been specified in Article 246 of the Constitution. Article 246, reads as follows: – 49. We may now refer to the judgment of this Court in M. Karunanidhi v. Union of India, [(1979) 3 SCC 431], which is one of the most authoritative judgments on the present issue. In the said case, the principles to be applied for determining repugnancy between a law made by the Parliament and a law made by the State Legislature were considered by a Constitution Bench of this Court. At para 8, this Court held that repugnancy may result from the following circumstances: â€Å"1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. 3. 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 he 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 and entrenchment, if any, is purely incidental or inconsequential. 4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be pro tected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. † In para 24, this Court further laid down the conditions which must be satisfied before any repugnancy could arise, the said conditions are as follows:- â€Å"1. That there is a clear and direct inconsistency between the Central Act and the State Act. 2. That such an inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. † Thereafter, this Court after referring to the catena of judgments on the subject, in para 38, laid down following propositions:- 1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. 2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. 3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results. 4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field. † 50. In Govt. of A. P. v. J. B. Educational Society, [(2005) 3 SCC 212], this Court while discussing the scope of Articles 246 and 254 and considering the proposition laid down by this Court in M. Karunanidhi case (supra) with respect to the situations in which repugnancy would arise, in para 9, held as follows:- â€Å"9. Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I, notwithstanding anything contained in clauses (2) and (3) of Article 246. The non obstante clause under Article 246(1) indicates the predominance or supremacy of the law made by the Union Legislature in the event of an overlap of the law made by Parliament with respect to a matter enumerated in List I and a law made by the State Legislature w ith respect to a matter enumerated in List II of the Seventh Schedule. 10. There is no doubt that both Parliament and the State Legislature are supreme in their respective assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List. 11. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State Legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State Legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict. Thereafter, this Court, in para 12, held that the question of repugnancy between the parliamentary legislation and the State legislation could arise in following two ways:- â€Å"12. †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1). 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. 51. In National Engg. Industries Ltd. v. Shri Kishan Bhageria [(1988) Supp SCC 82], Sabyasachi Mukharji, J. , opined that the best test of repugnancy is that if one prevails, the other cannot prevail. Case Study – Vijay Kumar Sharma V State Of Karnataka (Air 1990 Sc 2072) by Sayontika Das Part XI of the Indian Constitution describes the legislative relations between the States and the Centre. Article 254 to establish the doctrine of Repugnancy is one of the laws laid down under the Indian Constitution as a safeguard to solve disputes arising between the states and the Union. Repugnancy’ is meant to express ‘conflict’, whereby there is an expressed inconsistency between the State-made law and the Union-made law. Case details:Bench Majority opined- Mishra Rangnath, Sawant P. B and desenting view Ramaswamy. K. Relevant statutory provisions (i) Karnataka Contract Carriages (Acquisition) Act (21 of 1976); s. 14 & s. 20; (ii) Motor Vehicles Act 1988; s. 74 & s. 80(2); and (iii) The doctrine of Repugnancy: Article 254 of the Indian Constitution. Reference cases (i) Ch. Tika Ramji v. State of Uttar Pradesh (AIR 1956 SC 676) ; (ii) Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR 1983 SC 1019). Case Study: The doctrine deals with List (III) schedule (VII) which declares both the Union and State legislatures competent to legislate. However in case of conflict between the laws, the Union law will prevail if it is made within an entry of List (III), irrespective of whether it the Union law is made by before or after the State Legislature. According to Article 254 (1) an overriding effect is provided to the provisions of a Parliament-made law which the Parliament is competent to enact or in with respect to any matter as enumerated in the List III of Schedule VII. In such a scenario if any provision of a State-made law is in conflict with the Parliament–made law under such circumstance the State-made law is declared void to the extent of repugnancy. Under List III named as the Concurrent List in Schedule VII of the Indian Constitution both the Union and State Legislatures are competent to make laws on any of the entries mentioned therein. However they are subject to Clause (2) of Article 254 only in case, there is no conflict between the provisions of the said State-made law and a Central Act on the subject. However in case there is a repugnancy in question of a State law and Union law enumerated on one of the subjects of List III, the State law must yield to the Union law unless it has already been reserved for the assent of the President and has duly received so under Article 254 (2). The question of repugnancy therefore rightfully arises when there is a direct conflict between the provisions of the State law and the Union law on the same occupied field. Laws are said to be repugnant ideally when they get involved into taking responsibility for obedience to a higher authority. Simultaneously however certain inconsistent enactments to each of these laws may sometimes be possible without disobeying the other. Thus a suitable instance for repugnancy arises only when legislation falling in List III, the Concurrent List can be cured by resorting to Article 254 (2). The question of repugnancy under Article 254 arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and it is impossible to obey without disobeying the other, or conflicting results are produced when both the statutes covering the same field are applied to a given set of facts.