This article has been written by Rathinam Murugesan, who pursuing a Diploma in Intellectual Property, Media and Entertainment Laws and has been edited by Oishika Banerji (Team LawSikho).
It has been published by Rachit Garg.
One of the significant doctrines of the Indian Constitution that reflects on the constitutional principle of dual federalism, the doctrine of repugnancy has been discussed under Article 254 of the Indian Constitution. Designed with two clauses, while Clause (1) discusses the supremacy of the concurrent list over the state list, Clause (2) deals with the greater weightage or union list over the state list, both in times of conflict. The discussion of our article that surrounds “assent of the President”, which is a condition precedent for validation of law, stands as an exception to Article 254 of the Constitution. The established rule states that even if repugnancy prevails if the repugnant law (a state law in both the above-discussed instances, provided the same is constitutionally valid) has received the assent of the President. The Hon’ble Supreme Court of India raised the moot question regarding “assent of the President” as envisaged in Article 254 (2) of the Indian Constitution in this case FPCE v. State of West Bengal (2021). The present article is dedicated to the same.
Article 254 of the Indian Constitution
The Constitution of India has been called to be quasi-federal by the distinguished Jurist K.C. Wheare. But the framers of our Constitution define it as a federal one. This basic federal structure is beyond the purview of amendment under Article 368 of the Constitution. Article 254 is meant to emphasise the federal structure.
As has been discussed previously, Article 254 of the Indian Constitution relates to the doctrine of repugnancy. In our discussed case, it is noteworthy that the Hon’ble Supreme Court envisaged that the criteria to determine repugnancy are:
- To place two legislations, having inconsistent provisions with each other, simultaneously, and
- Determining that both the legislations cannot stand together and we cannot obey the legislations simultaneously.
One of the landmark decisions made surrounding the doctrine of repugnancy was M. Karunanidhi vs. Union of India (1979) in which it was held that there must be a direct conflict between the two provisions, both legislations must cover the same field and the Act of the Parliament had been a complete and an exhaustive statute. If these conditions are satisfied, then recourse to Article 254 was a must. Thereafter the condition provided in Article 254(2) has to be abided by. The significance of the word “assent” is in reference to the overriding effect of the Act having inconsistent provisions.
Analysis of FPCE V. State of West Bengal (2021)
Facts and background of the case
To protect the rights and interests of consumers by minimising the malpractices done by the developers and promoting uniform business practices and transactions in the real estate sector, the Parliament enacted a comprehensive Act namely Real Estate (Regulation and Development ) Act, 2016 (RERA). This Act protects the home buyers from being exploited at the hands of builders/ promoters along with ensuring a fair and transparent process for the functioning of the real estate sector.
It is necessary to note that prior to the discussed judgement, West Bengal is the only Indian state that excludes itself from being subject to RERA thereby not implementing the provisions of the central legislation within its territorial jurisdiction. Lack of implementation of draft rules surrounding RERA made room for the state to bring up the Housing Industry Regulation Act, 2017 (WB-HIRA). Modelled on the same alignment as RERA, HIRA aimed to govern the contractual behaviours of homebuyers and promoters alongside buyers of real-estate projects that take place in the state.
HIRA was challenged under Article 32 of the Indian Constitution by a non-profit company called Forum for People’s Collective Efforts on the ground that state legislature is incompetent to enact a law on the very same subject matter that is already covered by the central Act.
Issues framed in the case
- Why was the assent of the President necessary?
- What would be the effect of non-compliance with the President’s assent?
- Whether the President’s assent to a particular provision of the Act includes assent to the entire Act or not?
- Whether the President’s assent gives irrevocable immunity to the state law?
- Whether assent given by the President is subject to judicial review?
Why was the assent of the President necessary and what is the effect of its non-compliance
Generally, when a bill is presented for consideration, the President exercises his veto power on the bill with the aid from the council of ministers headed by the Prime Minister, as have been expressed under Article 74(1) of the Indian Constitution. The President has the power to reject the bill on his own accord and the same is known as a pocket veto. This kind of veto was once exercised by President Zail Singh in 1986. When it comes to the money bill, the President does not have the option to exercise such named powers. Further, similar kinds of powers are also vested upon the President in regard to constitutional amendments where the President has to give his assent upon such amendment.
In our present discussed case of FPCE v. State of West Bengal (2021), Hon’ble Supreme Court has majorly emphasised the word “assent” as provided under Article 254(2) of the Constitution while examining the validity of the conflicting HIRA Act. Put simply, the Apex Court had reached the conclusion that since HIRA was lacking the assent of the President, the same ipso facto declared it unconstitutional.
In this case, HIRA was a mere replica of RERA. Alongside this, both the legislation addressed the same field thereby not being incidental or allied to each other. Further, the intention of the State legislature in this regard was also to prevent the home buyers from the malpractices, and dilatory tactics of promoters, builders or developers. Therefore when the conditions laid down under Article 254(1) are said to have been fulfilled, the result spoke that HIRA appeared repugnant with RERA. The next thing to be noted is that if the state law has to have effect in spite of the presence of the central law, it has to obtain the assent of the President as per Article 254(2) of the Constitution. Then, to the extent of repugnancy, state law would be valid within the territory of the state. This ratio has been held in the case of Rajiv Sarin (2011), where it was also stated that “twin requirements are to be met under Article 254, one being the existence of repugnancy between Central and state laws and the other being the mandate of acquiring Presidential assent for declaring the state legislation to be valid in effect.”
It is further interesting to note that the contention raised by the state of West Bengal was that while the word “industry” fell under Entry 24 List II (State List), submission for consideration of legislation based on such subject-matter, before the President was not a mandate. Although this contention was not entertained by the court of law, the state of West Bengal referred to the word “industry” also provided under Entry 6 and 7 of List III (Concurrent List), without changing the very ground of their argument.
Applying the doctrine of pith and substance (what you cannot do directly, cannot be done indirectly as well), the Apex Court highlighted that the word “industry” does not restrict itself only to the real estate sector but is an inclusive term by itself. Following the same, an examination of Article 245(2) by the Court helped them conclude that HIRA indeed stood repugnant to RERA. The absence of presidential assent to the state legislature made way for it to be declared ultra vires in the Constitution. Therefore, it becomes easier for us to conclude that Presidential assent is a necessity for a state law to have a constitutional effect over the central legislation, in case of repugnancy between the two.
Whether the President’s assent to a particular provision of legislation signifies assent to the entire legislation
In this regard, there are differences of opinion as can be viewed from different decisions pronounced by the Apex Court, namely:
- The conflicting provisions in the state law with that of the Centre must be specified to the President to allow him to make an informed decision regarding the operation of the repugnant state law. This point was reiterated in Kaiser-I-Hind Pvt. Ltd. And Ors vs National Textile Corporation (2002), in which it held that “pointed attention” must be given to specific provisions when it comes to presidential assent.
- Application of presidential mind by the President upon the conflicting legislations so as to presume that his decision is reasoned by itself. This position was declared in the case of Yogendra Kumar Jaiswal & others v. State of Bihar & others (2015), where the Supreme Court of India upheld the validity of the Orissa Special Courts Act, 2006 on grounds that the entire legislation was sent for the consideration of the President and general assent was given to the same.
- The Supreme Court of India while deciding on the case of G. Mohan Rao V. State of Tamil Nadu (2020), settled our discussed question as to whether the President’s assent to a particular provision of legislation signifies assent to the entire legislation. The Court had concluded that the only thing necessary to view while determining the validity of the state law is whether the President has made an informed decision to reach to the conclusion he comes up with. In this case, Hon’ble Justice A.M. Khanwilkar held that “in constitutionalising repugnancy under Article 254 (2), the emphasis should be on substance over form”.
Whether the presidential assent provided irrevocable immunity to the state law concerned
In the present case, the Hon’ble Supreme Court examined the scope of Sections 88 and 89 of RERA with specific reference to “in addition to and not in derogation of any other law for the time being in force”. Section 89 of RERA clears out that the legislation will be having an overriding effect on any other laws for the time being in force. HIRA is a subsequent legislation enacted in the year 2017 whereas RERA came into effect in 2016, therefore ipso facto, RERA overrides HIRA by virtue of Section 89. Even if HIRA would have been enacted prior to RERA, then also Section 89 would have been in effect, nullifying HIRA’s functionality.
Furthermore, Sections 88 and 89 are mutually exclusive but if read conjointly, Section 88 has no effect at all and it is only the latter that operates alone. Therefore Section 89 will have the same effect as that of the proviso to Article 254, which reads as, “Provided that nothing in this clause shall prevent 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.”
It can therefore be concluded that acquiring assent definitely does not provide an irrevocable immunity to the state law. Another viewpoint of the Apex Court in our discussed case while holding HIRA as held unconstitutional, was that the repealed Act of 1993 (which was repealed by HIRA) would not be revived by the Court and it was to be considered as impliedly repealed by the enactment of RERA. Here the pertinent point to be noted is that the 1993 Act has duly received the assent of the President.
Whether presidential assent can be considered to be the subject matter of judicial review
As already referred in the case of G. Mohan Rao vs. State of Tamil Nadu (2021), the Hon’ble Supreme Court held that substance must be seen rather than the form so that the approval of the President implies drawing attention to material placed and this exercise is again done by the executive on one side and by the President on the other side as per Article 74 (1). In the above case, the Supreme Court had held that “in the process of getting assent of the President, unduly formalistic fetters cannot be placed on the vast plenary powers of the state legislature”.
In India, judicial review is not employed when the substance (or merits) of the decision is taken by public authorities. It’s limited to ruling on whether the decision was made following the reasoned process or not. The primary limitation of judicial review lies within the concept of judicial activism. The power of judicial review is employed when there is illegality, irrationality and procedural impropriety. As far as the ordinance-making power of the President is concerned, it is subject to judicial review. With regard to Article 254(2) of the Constitution, advice from the council of ministers and the President has to be taken before reaching an informed decision and in this circumstance, judicial activism is not called for. Instead, judicial self-restraint has to be followed.
In Gram Panchayat of Village Jamalpur v. Malvinder Singhand Others (1985), the Hon’ble Supreme Court examined the power of the President to some extent. In Hoechst Pharmaceuticals Ltd v. State of Bihar (1983) and In Kaiser – I-hind Pvt Ltd (2002), the court held that the assent of the President is not justiciable and cannot be subject to judicial review. While courts cannot necessarily consider whether the President granted assent in a justified manner, they must consider if at the assent sought was correctly granted by placing all the relevant materials available before him.
Article 254 is a very interesting and important provision in the Constitution. Article 254(2) acts as a check and balance on the powers of Parliament and state legislature to find out the dominant intention of both conflicting legislations. Sometimes, a provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In a nutshell, in order to attract the doctrine of repugnancy, both legislations must be substantially on the same subject.
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