This article is written by Anurag Singh from ILS Law College, Pune. This is a comprehensive article on repugnancy under Article 254.
India practices division of power between the State and the Centre. Hence, it is known as a federal state. Due to the existence of this division of power, sometimes the legislation formed by the Centre and the states do not align with each other and there are some inconsistencies between them. However, two laws with the same subject matter, inconsistent with each other cannot co-exist. One has to prevail over the other. Therefore, to decipher this inconsistency, the doctrine of repugnancy was formulated by the framers of the Indian Constitution.
Article 254: an overview
In Colin Howard’s Australian Federal Constitutional Law, while describing the nature of inconsistency between the two enactments, it was observed that – “An obvious inconsistency arises when the two enactments produce different legal results when applied to the same facts”. The doctrine of repugnancy is an adopted concept from other federal countries like the United States of America and Australia. Therefore, the principles of the concept are similar when taken up in the Indian context.
According to Article 246 of the Constitution, there are three lists on which the State and the Centre can make laws. These are mentioned below:
- List – I: The ‘Union List’ includes subject matter on which the Parliament can make laws.
- List – II: The ‘State List’ includes subject matter on which the state legislatures can make laws.
- List – III: The ‘Concurrent List’ includes on which both the state legislatures and the Parliament can make laws.
Moreover, this concept of repugnancy has been developed under Article 254 of the Indian Constitution to deal with the conflict between the Centre and states regarding the legislation on the same subject matter in the Concurrent List. Sub-clauses of the Article are herein explained below:
- Article 254(1) clearly states that if any legislation enacted by the state legislature is repugnant to the legislation enacted by the Parliament, then the state legislation will be declared void, and the legislation enacted by the Parliament will prevail over the former.
Illustration: Education is a part of the concurrent list. Therefore, both the State and the Centre can amend the existing laws or make new laws for the betterment of the education system. However, if the state government formulates a law that is inconsistent in a way that disregards the essence in which the Parliament formulated the law on the same subject matter, then the state legislation will be declared void. Moreover, if the laws formulated are not entirely inconsistent but some parts of them are inconsistent, then the state legislature can enact that piece of legislation after removing the inconsistency.
- Article 254(2) clearly states that in case of a repugnant legislation passed by the state against the Parliament, the state can enforce the legislation if they receive assent from the President.
Illustration: The Parliament passed a law stating that taxation on land is 5% but the State Government of Kerala wants it to be 3%. Therefore, if the concerned state government obtains assent from the President, they can enforce their version of taxation on the land.
It will not be out of place to state here that the framers of the Constitution have vested more powers with the Centre than the state. It was done keeping in mind that the Centre has to formulate laws for the entire country, however, the state legislatures exercise their powers within the ambit of their particular state.
In the case M Karunanidhi v. Union of India (1979), it was held by the Supreme Court that three conditions must be satisfied to conclude that repugnance exists. These are:
- That there is a clear and direct inconsistency between the Central Act and the State Act.
- That such an inconsistency is absolutely irreconcilable.
- That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey one without disobeying the other.
This landmark judgment laid down that for the legislations to be repugnant to each other, it should not only be inconsistent but also be irreconcilable, meaning that the similar legislation passed are not repugnant unless and until they encroach on each other. This view was also held in the Animal Welfare Board Of India v. A. Nagaraja & Ors. (2014) and Chief Secretary to the Govt., Chennai Tamilnadu & Ors v. Animal Welfare Board & Ors, (2016).
Difference between ultra vires and repugnancy
The phrase ‘Ultra vires’ is a Latin phrase that refers to ‘beyond the powers’. Ultra vires is a term used when legislative authority exceeds its power of making laws. For example, a state legislature makes a law on a subject that is part of the union list. In the given circumstance, the state is acting ‘beyond its powers’, therefore, it is not eligible to make laws. However, when we talk about repugnancy, then the Parliament and the state both are eligible to make laws but one of them cannot enact it because it is inconsistent with the other. For example, if the state and Centre make a law related to criminal law, which is a concurrent subject, none of them is acting beyond their powers. However, the legislation enacted is inconsistent with each other. Therefore, the law made by the Parliament will prevail. It will not be out of place to state here that the major difference between ultra vires and repugnancy is the eligibility to formulate laws.
Difference between pith and substance and repugnancy
The doctrine of pith and substances and the doctrine of repugnancy has often been with one another.it is essential to take note here that, doctrine of pith and substance deals with conflicts between state and Centre when they formulate legislation that is not a part of their list. However, the doctrine of repugnancy deals with the conflict that arises due to the legislation formulated on the concurrent list.
If the Union formulates a law that is part of the state list and vice versa and then the inconsistency arises between state and Center then that has to be dealt with under the doctrine of pith and substance and not under the doctrine of repugnancy. This view was upheld by the Supreme Court in the case of Hoechst Pharma Ltd. v. State of Bihar (1983).
The importance of the doctrine of repugnancy
- The doctrine of repugnancy helps to avoid confusion over the legislation on subject matter present in the concurrent list.
- Public interest is given the utmost importance.
- It gives the Center the power it needs, which is quintessential in the situation of ‘emergency’.
- However, all the power is not with the Centre. States can also get their legislation approved if they get the assent of the President.
- State laws become operative once the legislation from the Centre is repealed.
- It keeps the state as well as the Centre under constant check.
- If the states are not under constant check, then they might formulate laws that are autonomous and against the public interest.
- When there is any inconsistency between the laws it can still be implemented by the state. It can simply remove the inconsistency. The entire legislation is not declared void at the outset.
Landmark judgments on the doctrine of repugnancy
Deep Chand v. The State of Uttar Pradesh (1959) is a milestone case where the Uttar Pradesh Transport Service (Development) Act, 1955 was found repugnant to the Motor Vehicles Act, 1939 by the Parliament, when the State Government of Uttar Pradesh issued a notification under Section 3 of the impugned Act, directing that the said routes along with others should be exclusively served by the State buses, and followed up that notification by others under Sections 4 and 8 of the Act. Therefore, the Supreme Court, in this case, held that the U.P. Transport Service Act is void to the extent of repugnancy.
The Supreme Court laid down the three tests to identify whether the two legislations are repugnant or not, they are herein mentioned below:
- Whether there is a direct conflict between the two conflicting provisions,
- 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
- Whether the law made by the Parliament and that made by the State legislature occupies the same field.
These three tests laid down in this very judgment paved a way for many judgments that came after it.
- In the case of Zaverbhai Amaidas v. The State of Bombay (1954), the State Government of Bombay felt the need to pass an amendment to the Essential Commodities Act, 1955 to intensify the punishment from 3 years to 7 years of imprisonment regarding production and distribution of essential commodities because the State felt that the punishment prescribed was not sufficient. Moreover, they also received the assent of the President for this amendment. But the Parliament also enhanced the punishment for the same offense in 1950.
The Supreme Court in the instant case observed that, “The important thing to consider with reference to this provision is whether the legislation is “in respect of the same matter”. If the later legislation deals not with the matters which formed the subject of the earlier legislation, but with other distinct matters, though of a cognate and allied character, then Article 254(2) will have no application”.
This judgment explained the meaning of ‘with respect to the matter’ in Article 254(2). The court, in the instant case, was of the view that the state legislation and the legislation enacted by the Centre are on the same field. Therefore, the court declared the state laws void as they were repugnant to the central legislation.
- In the case Hoechst Pharma ltd. v. State of Bihar, the petitioner had a branch or sales store at Patna, under the Drugs (Price Control) Order of 1979 and was prohibited from selling these medicines and drugs in excess of the controlled price so fixed. Therefore, occasionally the manufacturers transfer the taxes on the medicine to the consumer. However, the Bihar Finance Act, 1981 (later renamed as Bihar Value Added Tax Act, 2005) prohibited such a dealer to collect the balance of the payable surcharge.
The Supreme Court in the instant case observed that, “In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only”.
In this judgment, the Supreme Court explained the effects of Article 254(2). In the instant case, the Supreme Court was of the view that the Essential Commodities Act and the Drugs (Price Control) Order function in two different areas of law. Therefore, there is no conflict between the two legislations. The question of repugnancy does not arise and they can coexist.
India is a quasi-federal state. Hence, the division of power between the states and Centre is evident. However, when exercising their powers more often than not, both the authorities face conflict while formulating laws on the subject matter in the concurrent list. Therefore, it will be safe to say that the Union is given more powers herein than the state to formulate laws because in case of any inconsistency, the laws made by the Center, more competent with respect to the needs of the citizen, prevails on the point where the state laws are repugnant to the central law. Moreover, the state legislature can also enact their laws in case of inconsistency with the assent of the President.
- Australian Federal Constitutional Law by Colin Howard
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