The article has been written by Satyanshu Kumari. This article deals with the case of Zaverbhai Amaidas vs. State of Bombay (1954), which was a significant legal precedent in the Indian jurisprudence, dealing with the doctrine of repugnancy. This article covers the facts of the case, arguments raised by the parties, the Apex Court’s decision, and relevant judgments on the issue. The article also covers the issue of repugnancy between the Union and State laws, as governed by Article 254 of the Constitution of India. 

This article has been published by Shashwat Kaushik.

Introduction 

Part  XI of the Constitution discusses the “relation between the Union and the States”. Article 245 to Article 254 emphasise the idea of central supremacy while focusing on the legislative relationships between the centre and the states. One among various principles of interpretation to decide the respective power of the Union and the state is the doctrine of repugnancy. 

It is critical to acknowledge the importance of this structural impulse when analysing how the doctrine of repugnancy relates to Indian Constitution law. One way to think of the doctrine of repugnancy is as a way to settle disputes that occur when there are two distinct legislative branches, each having the power to enact laws on different topics. When two statutes passed by two different legislatures within their separate domain of legislative authority contain provisions that cannot be reconciled, this concept is applied. The essential constitutional provisions for addressing concerns about repugnancy are found in Article 254 of the Constitution.  

The case of Zaverbhai Amaidas vs. State of Bombay (1954) deals with the doctrine of repugnancy. Within the context of this doctrine, this article explores the possibility of competing interpretations from both union and state and how courts handle such disputes and decide which law applies by looking at pertinent provisions, statutes and judicial precedents, among other materials. The article also throws light on how the doctrine of repugnancy upholds the separation of powers in the legislative branch while establishing a consistent body of law. 

Details of the case

Case name

Zaverbhai Amaidas vs. State of Bombay

Equivalent citation 

AIR 1954 SC 752; 1955 (57) BOMLR 589; 1954 INSC 85; [1955] 1 SCR 799 

Case number

Criminal Appeal No.31 of 1953

Name of the court

Hon’ble Supreme Court of India

Bench 

The then Chief Justice of India, Mehr Chand Mahajan, Justice B.K. Mukherjee, Justice Vivian Bose, Justice B. Jagannath Das, and Justice T.L. Venkatarama Ayyar

Date of decision

8th October, 1954

Appellant(s) 

Zaverbhai Amaidas

Respondent(s)

State of Bombay

Acts and provisions involved

Article 254 and Article 254(2) of the Constitution of India, 1950, Section 107(2) of the Government of India Act, 1935, Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, the Bombay Essential Supplies (Temporary Powers), 1946, and the Cattle (Control) (Enhancement of Penalties) Act, 1947, Section 5(1) of the Bombay Food Grain (Regulation of Movement and Sale) Order, 1949, Section 2 of the Bombay Act No. XXXVI of 1947, Section 429 of the Code of Criminal Procedure, 1973, and the Essential Commodities and Cattle (Control) (Enhancement of Penalties) Act, 1947.

Background of the case

The background of this case provides insight into the doctrine of repugnancy, wherein the state government of Bombay found it necessary to pass an amendment to the Essential Commodities Act, 1955, which notified that the punishment cornering the production and distribution of the essential commodity was increase from 3 years to 7 years because, according to the state, the punishment given was not sufficient. The state government had already received the assent of the President for the amendment in the Essential Commodities Act, 1955, but the issue was that the President had already amended the  Essential Commodities Act, 1955 in respect of the amendment of the punishment in the year 1950. 

Facts of the case

• The appellant was charged on 6th April 1951 for transporting 15 maunds of juwar from his village of Khanjroli to Mandvi without a permit and thereby violating Section 5(1) of the Bombay Food Grains (Regulation of Movements and Sales) Order, 1949. 
• The Resident First Class Magistrate of Bardoli, who tried the matter, found him guilty and sentenced him to imprisonment till the rising of the court (i.e., the guilty person will be detained in a courtroom and made to sit in the courtroom till the proceedings conclude) and also imposed a fine of Rs. 500 on him.

Prior proceedings

Before the Sessions Court

This order of conviction and punishment imposed by the First Class Magistrate to the appellant was challenged by the appellant in an appeal to the Session judge in Surat. After hearing the appeal, the Session Judge, Surat upheld the appellant’s conviction.   

Before the High Court

• The appellant in the present case filed a revision petition on the matter in the Bombay High Court, raising the claim, for the first time, that the Resident First Class Magistrate had no jurisdiction to try this case since, under Section 2 of the Bombay Act No. XXXVI of 1947 (hereinafter referred to as “the Bombay Act, 1947”), the offence was punishable by imprisonment, which could be extended to 7 years and, as per the Second Schedule to the Criminal Procedure Code, 1973, it was only the Session Court that had the jurisdiction to try such an offence.
• The counsel representing the state of Bombay answered to this contention that, after the enactment of the Bombay Act, 1947, the Essential Supplies (Temporary Powers) Act, 1946 had undergone substantial amendments and was finally altered by the Central Act No. LII of 1950 (hereinafter referred to as “Central Act, 1950”). The counsel further submitted that the effect of these amendments was that the Bombay Act, 1947 had become inoperative and the governing Act was the Central Act, 1950. The counsel, thus, argued that the Resident First Class Magistrate had jurisdiction over the offence, because, under that Act, the maximum sentence for the offence in question was three years.   
• The bench, consisting of Justice Bavedekar and Justice Chainani, heard the revision petition filed by the petitioner. Justice Bavdekar believed that the amendments to the Essential Supplies (Temporary Powers) Act, which include the re-enactment of Section 7 in Central Act No. LII of 1950, did not trench on the field covered by the Bombay Act, 1947, which accordingly remained unaffected by them.
• On the other hand, Justice Chainani held that both statutes, namely Bombay Act, 1947 and Central Act No. LII of 1950, related to the same subject matter, and the Bombay Act, 1950 was a central legislation of a later date; it prevailed over the Bombay Act, 1947.
• On this difference of opinion, the matter came up before Justice Chagla, under Section 429 of the Criminal Procedure Code, who agreed with Justice Chainani, that there was a repugnancy between Section 7 of the Central Act No. LII of 1950 and Section 2 of Bombay Act, 1947 and, under Article 254(2) of the Constitution of India, the former prevailed and the revision petition was accordingly dismissed by the High Court.
• Against this judgement, the appeal was filed by the appellant under Article 132(1) of the Constitution. 
• The said appeal was against the judgement of the High Court of Bombay, dismissing the revision petition filed by the appellant against his conviction under Section 7 of the Essential Supplies (Temporary Power) Act, 1946.   

Issues raised in the case

The following were the issues that were raised before the Hon’ble Supreme Court in the present case.

• Whether the Act of Parliament prevails against the state law, in the case when the subject matter of both legislation is identical and they cannot stand together? 
• Whether the High Court of Bombay was justified in dismissing the appellant’s revision case against his conviction under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946?
• Whether the amendment made to the Essential Supplies (Temporary Power) Act by the Central Legislation in 1948, 1949 and 1950 are “further legislation” failing within Section 107(2) of the Government of India Act or “law with respect to the same matter” falling within Article 254(2)?  

Laws involved in Zaverbhai Amaidas vs. State of Bombay (1954)

The court used different provisions of law to provide a conclusive judgement in the mentioned case:

Section 7 of Essential Supplies (Temporary Powers) Act, 1946

The Essential Supplies (Temporary Power) Act, 1946 enacted by the central legislature by virtue of the power conferred on it by 9 and 10, George VI, Chapter 39, it was applied to the whole of British India. 

Sub-section (1) of Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, states that it empowered the central government to issue orders for regulating the production, supply and distribution of essential commodities issued under Section 3 of the said act and under Section 4 of the said act this power could be delegated to the provincial government. 

Proviso of Section 7 provides that where a violation is found in an order relating to food items and there exists a provision relating to this matter, the court will make directions in regard to this matter unless it has sufficient grounds, which must be stated, not to do so for the whole of the property or a part of a property. 

The proviso was amended in 1949 and under this amendment, the proviso to Section 7(i) was repealed, and a new clause substituted in the following terms:

Where the contravention is of an order relating to foodstuffs, the Court shall:

i) any person convicted of such contravention to imprisonment for a term which may extend to 3 years and may impose a fine, unless the reason is recorded, it believes that a sentence of fine only would be sufficient to deal with the ends of justice.

ii) direct that any property in respect of which the order has been contravened or a part shall be forfeited to His Majesty unless, for reasons to be recorded, it is of the opinion that such direction is not necessary to be made in respect of the whole, or, as the case may be, a part of the property.

As per sub-section (2) of Section 7 of the enacted Essential Supplies (Temporary Powers) Act, 1946, It is prescribed that if any person to whom direction is given under sub-section (4) of Section 3 fails to comply with the direction, he shall be punished with imprisonment for a term which may extend to three years or with fine or with both.

Section 107 of the Government of India Act, 1935

Section 107 of the Government of India Act, 1935 deals with inconsistency between Federal law and Provincial State laws. 

Under sub-section (1) of Section 107 of the Government of India Act, 1935, if any Provincial law makes any provision which is in contravention of any provision of a Federal law where the Federal government alone has the power to make the law or in relation to any matter in the Concurrent List then the Federal law shall prevail. This applies whether the Federal law was made before or after the making of the Provincial law. Thus, the referenced articles of the Provincial law shall be considered void to the extent of such inconsistency.

Sub-section (2) of Section 107 states that a Provincial law in the Concurrent list is repugnant to an earlier Federal Law or an existing Indian law and where the provincial law has been referred to the Governor-General if the provincial law has been acted upon with the permission of the Governor-General or His Majesty then in that province the provincial law shall prevail, but the Federal Legislature may at any time enact further legislation in regard to the same matter. 

The proviso of Section 7 of the Act, no Bill or amendment which is in itself repugnant to any Provincial law which has been reserved under Section 4 and to which the assented by the Governor-General or His Majesty can introduce or moved in the Federal legislature without prior approval of the Governor-General at his destruction.  

Under sub-section (3) of Section 107 of the Government of India Act, 1935, if a Federal law is applied to a State law, the Federal law, whether passed before or after the law of the State, shall prevail and the law of the State shall, to the extent of the repugnancy, be void.

Central Act No. LII of 1950

The old Section 7 of the Central Act, 1950 was repealed and replaced with the following terms.

Sub-section 1 states that anyone who violates an order related to cotton textiles under Section 3 may face imprisonment for up to three years as well as a fine. Additionally, any property involved in the violation, or a portion of it deemed appropriate by the court, will be forfeited to the Government.

Sub-section 2 provides that if any person contravenes any order under Section 3 relating to foodstuffs:

1. He shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to a fine unless for reasons to be recorded the court is of the opinion that a sentence of fine only will meet the ends of justice; and 
2. If an order has been violated regarding a property, the property or a portion of it may be forfeited to the Government. However, if the court believes that forfeiting the entire property or a part of it is unnecessary, it will state its reasons for not doing so.

Proviso to Sub-section 2 stated that, where the contravention is of an order prescribing the maximum quantity of any foodgrain that may lawfully be possessed by any person or class of persons, and the person contravening the order is found to have been in possession of foodgrains exceeding twice the maximum quantity so prescribed, the court shall – 

1. Sentence him to imprisonment for a term which may extend to seven years and to a fine not less than twenty times the value of the foodgrain found in his possession, and 
2. Direct that the whole of such foodgrain in excess of the prescribed quantity shall be forfeited to the Government.

Sub-section 3 provides that, if someone violates an order related to an essential commodity (excluding cotton textiles and foodstuffs) under Section 3, they may face imprisonment for up to three years, a fine, or both. Additionally, if the order states so, any property connected to the violation may be taken by the Government, provided the court finds sufficient evidence of the contravention.

Sub-section 4 states that anyone who fails to follow a direction given under Sub-section (4) of Section 3 may face a punishment of up to three years imprisonment, a fine, or both.

Doctrine of repugnancy (Article 254 of the Constitution)

The word ‘repugnancy’, in common parlance, means ‘inconsistent’ or ‘incompatible’. Wharton’s Law Lexicon defines ‘repugnant’ as “really means inconsistent with and when they cannot stand together at the same time and one law is inconsistent with another law when command or power or provision in the law conflicted directly with the command or power or provision in the other”. According to Black’s Law Dictionary, repugnancy could be defined as “an inconsistency or contraction between two or more parts of a legal instrument (as a statute or a contract)”. 

Article 254 deals with the inconsistency between laws made by the Parliament and laws made by the legislature of the states. It talks about the ‘doctrine of repugnancy’.

According to Article 254 clause (1) any law made by the state legislature on a subject that is in the Concurrent list (Part III of the Constitution), and which also falls under anything enumerated in the Union List shall be repugnant with any provision of an existing Union Law enacted. The law made by the Parliament, whether passed before or after the law made by the state legislation, the law made by the Parliament will prevail over the State law and the law made by the state legislature shall be repugnant and, thus, void.      

Further, Clause (2) of Article 254, if a state legislature enacts a law on a topic listed in the Concurrent List and it conflicts with a previous law enacted by the Parliament or an existing law on the same matter, the state legislation can prevail in that state if it is reserved to the President for consideration and receives the President’s assent.

The proviso of this clause shall prevent the Parliament from passing any law on the same subject matter, even if it modifies, amends, varies or repeals the law created by the state legislature.

In the case of M. Karunanidhi vs. Union of India (1979), the Supreme Court held that, where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. In the case of Kanaka Gruha Mirman Sahakara Sangha vs. Narayanamma (2002), the Supreme Court held that, for the application of Article 254(1), there must be a repugnancy between the State and the Central law, then the State law will only be void to the extent of the repugnancy.

Further, in the case of a Forum for Peoples Collective Efforts vs. State of West Bengal (2021), the Supreme Court pointed out that there is an overlap between the provisions of the West Bengal Housing Industry Regulation Act, 2017, which is a State Act, and a Central Act, the Real Estate (Regulation and Development) Act, 2016, and this overlap is significant. Hence, the court held that there are no doubts that the State law was repugnant to the Central law under Article 254 of the Constitution. 

To know more about the doctrine of repugnancy, click here.

Arguments of the parties

Petitioner

In this case, the appellant argued that the subject matter in the Bombay Act, 1947 was exclusively in the Provincial List and, that, Section 107(2) of the Government of India Act, 1935 and Article 254(2) of the Constitution did not come into operation as they applied only in subjects in the Concurrent List. The appellant relies on the Bombay Act, 1947; as already mentioned, the subject matter is in the Concurrent List. When the appellant raised this question before the learned judges of the Bombay High Court, it was rejected by the judges.  

Respondent 

In this case, the respondent contended that there was subsequent legislation by the central legislature in 1948, 1949 and again in 1950 and as a result such legislation i.e. Section 2 of the Bombay Act, 1947 had become inoperative. In 1948, there was an amendment to the Essential Supplies (Temporary Powers) Act, whereby the provision of Section 7(1) was repealed and a new proviso substituted, which provided that “where it was contended that an order relating to the foodstuffs which contain an express provision in this behalf, the court shall direct that any property in respect of which the order has been contravened shall be forfeited to His Majesty unless for the reason to be recorded in writing it is of the opinion that the direction should be made not in respect of the whole, or as the case may be, a part of the property.”

Judgement in Zaverbhai Amaidas vs. State of Bombay (1954)

Justice Bavdekar took the view that concerned government authorities must give effect to a law enacted by Parliament, where such an Act is within Article 254(1). He pointed out that the Essential Supplies (Temporary Powers) Act, 1950 also includes the re-enactment of Section 7 of the Central Act, 1950, which did not dig on the field covered by the Bombay Act, 1947, which accordingly remained unaffected by them.

Chief Justice H.K. Chainani observed that both the Bombay Act, 1947 and the Essential Supplies (Temporary Powers) Act, 1950 dealt with the same subject matter. Thus, as per the doctrine of repugnancy, it is a Central Act that has to prevail over subsisting State Acts; therefore, where a subsequent law covers the same field as an earlier and if both of them are strictly inconsistent without any room to be reconciled with each other, then the latter law becomes void. This principle is also relevant when evaluating whether Parliament’s subsequent legislation falls within the same subject matter as the state law, as provided in Article 254(2).

Consequently, it was concluded by the court that Section 2 of the Bombay Act 1947 cannot override Section 7 of the Essential Supplies (Temporary Powers) Act, as amended by the Central Act, 1950.  

Additionally, though the appellant argued that the subject matter of the Bombay Act, 1947 exclusively falls under the Provincial List, the court held that Section 107(2) of the Government of India and Article 254(2) of the Constitution apply only to legislation concerning subjects in the Concurrent list. 

Rational behind the judgement 

The court referred to Section 107(2) of the Government of India Act, 1935 and then a case  Attorney General of Ontario vs. Attorney General of Canada (1907), where the relationship between the powers of the Dominion Legislature and the Provincial Legislature in Canada was examined. In that case, Lord Watson noted, while a law passed by the Parliament of Canada can supersede the Provincial legislation that addresses the same area, the Dominion Parliament does not have the constitutional power to directly repeal Provincial statutes. 

This is similar to what existed in the Government of India Act, 1935 under Section 107(2), with references only to items enumerated in the Concurrent List. The proviso to Article 254(2) of the Constitution of India too has extended Parliament’s power. One, the Parliament can make laws that may amend or repeal state laws on a subject in List III ( Concurrent list) which power could not be by central legislature till Section 107(2) of the Government India Act. Hence, this provision empowers the Parliament to remove state laws. But, even if the Parliament does not state that it is repealing a particular state law in its enacting Act but still makes laws further to the same subject attention/field for which a State has made Law earlier then Parliament’s later law will make void the provision of incompatible (direct conflict) provisions under such an Act.

Whether the Bombay Act, 1947 and Central Act, 1950 deal with the same subject matter?

In the present case, Central Act No. LII of 1950 did not explicitly repeal the Bombay Act, according to the proviso in Article 254(2). Therefore, the court highlighted that the only issue to determine is whether the amendments to the Essential Supplies (Temporary Powers) Act,1955 made by the Central Legislature in 1948, 1949, and 1950 qualify as “further legislation” under section 107(2) of the Government of India Act or as “law with respect to the same matter” under Article 254(2).

The court, then, noted that a key factor to consider here is whether the new legislation addresses the same issues as the earlier laws. The court observed that, if the later legislation deals with entirely different subjects, even if they are related, Article 254(2) does not apply. Thus, the core principle of Section 107(2) and Article 254(2) is that when both the Central and Provincial Governments enact laws on the same subject and are competent to do so, the central law takes precedence over the state law.

Considering the matter from this standpoint, the first question to be asked is, what is the subject matter of the Bombay Act 1947? Since the offence for which the appellant was convicted occurred on April 6, 1951, we will focus on the Central Act, 1950, which was in effect at that time. This Act repealed Section 7(1) of the Essential Supplies (Temporary Powers) Act, 1955, originally passed in 1946 and amended in 1948 and 1949, and replaced it with a new section. The new section categorises offences for punishment into three groups: 

• Those related to cotton textiles;
• Those related to foodstuffs; and 
• Those concerning essential commodities other than textiles or foodstuffs.

The specific punishment for various categories of offences includes severe penalties for possession of excessive foodstuffs, such as imprisonment for up to seven years for exceeding the maximum limit of foodgrains by more than double, along with the potential fines and forfeiture of goods. Lesser offences may result in up to three years of imprisonment.  Section 7 is an all-encompassing framework to be used in the determination of penalties based on a combination of the nature of the commodity and the type of offence committed. Under the pretext of supplementary punishment, this is also in conformity with the extended notion of punishment under Bombay Act 1947 vis-a-vis food grain hoarding as found in Central Act 1950.

Change in punishment and its effect on the law

Justice Bavdekar of the High Court, in the revision petition, argued that establishing repugnancy under Section 107(2) of the Government of India Act, 1950 does not require one law to outright oppose another; rather, it can occur when both laws address the same area. He maintained that the enhanced penalty provisions under the Bombay Act, 1947 were distinct from the punishments outlined in the Essential Supplies (Temporary Powers) Act, 1946. Justice Bavdekar noted that the enhanced penalties only applied when foodstuffs were possessed in excess of twice the permitted amount. Thus, he concluded that the Bombay Act, 1947 was unaffected by the Central Act No. LII of 1950 regarding other matters. However, this reasoning was deemed erroneous by the Supreme Court.

Further, the court noted that the question of punishment for contravention of orders under the Essential Supplies (Temporary Powers) Act, 1946 both under the Bombay Act, 1947 and the Central Act, 1950 constitutes a single subject matter. It cannot be split up in the manner suggested by the learned judge. The court, after referring to the book titled “Maxwell and Interpretation of Statutes”, stated that, on this principle, rests the rule of construction relating to statutes that “when the punishment or penalty is altered in degree but not in kind, the latter provision would be considered as superseding the earlier one.” The court later referred to the observations of Justice Goddard in the case of Smith vs. Benabo [1937] 1 K.B. 518, i.e., “It is a well-settled rule of construction that, if a later statute again describes an offence created by a previous one, and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute.”

Analysis of Zaverbhai Amaidas vs. State of Bombay (1954)

The case of Zaverbhai Amaidas vs. State of Bombay (1954) is a turning point in Indian legislative history, recognising the doctrine of repugnancy in the context of the Union and State relationship. The Supreme Court, in its decision in 1954, addressed the question of “whether a State law can prevail over a Union law when there is a conflict between them”. 

The appellant, Zaverbhai Amaidas, was convicted for transporting juwar without a permit, which is an offence under the Bombay Food Grains (Regulation for Movements and Sales) Order, 1949. The Bombay Act, 1947 increased the punishment for such offences to 7 years imprisonment. However, the Essential Supplies (Temporary Power) Act, of 1946, as amended by the Parliament in 1950, also dealt with the same subject matter. The appellant argued that the Bombay Act, 1947 was based on the assumption that the subject matter was in the Concurrent List, thus, Article 254 of the Constitution applied. 

The Supreme Court’s reasoning required it to interpret Article 254 of the Constitution, which controls the legislative powers of the Union and the states in the event of a disagreement. The court had to decide whether the idea of implicit repeal applied to Article 254(2) and if the Bombay Act of 1947 was only on the Provincial List, rendering Article 254 inapplicable. 

The court decided that the concept of implicit repeal applied to Article 254(2) and that, in the event of a repugnancy, Union law would prevail over State legislation, as long as Union law was within its legislative competence. The court further determined that the Bombay Act, 1947 was predicated on the idea that the subject matter was on the Concurrent List, and so Article 254 applied. 

The relevance of this case stems from its formulation of standards for addressing conflicts between Central and State legislation. It emphasises the role of the theory of repugnancy in maintaining the balance of legislative powers between the Union and the states. The case also emphasises the importance of creating legislation harmoniously to avoid avoidable confrontations. 

Similar cases on the doctrine of repugnancy 

The following cases showcase how the conflicts between the central and state laws were resolved by the judiciary.

Deep Chand vs. State of Uttar Pradesh & Ors. (1959)

Facts of the case

In this case, the petitioner used to carry out his business as a stage carriage operator using government-owned buses on various routes in Uttar Pradesh with valid permits issued under the Motor Vehicle Act, 1939. The State Legislature of Uttar Pradesh passed the Uttar Pradesh Road Transport Service Act, 1955 (hereinafter referred to as “the Act”). Under Section 5 of the Act, the petitioners were asked to submit their objections, if any. The petitioners were informed that their complaints would be heard by the Board when the Board received their objections. The Board heard all the objections that the operators lodged and the investigation was carried out accordingly, except for those belonging to the Agra region, as they did not show up. A notice was published in the Uttar Pradesh Gazette in accordance with Section 8 of the Act. Furthermore, the Secretary to the Regional Transport Authority, Agra, issued a directive to the operators of the Agra region, purportedly announced by the Transport Commission, prohibiting them from operating the stage carriage on the designed paths as well as informing them of the fact that the permits they had to obtain could be given away to different routes. 

Issues raised

1. Whether the doctrine of eclipse is solely applicable to pre-constitutional legislation or can it be applied to any post-constitutional statute that comes under Article 13(2) of the Constitution? 
2. Whether the provisions of Part III of the Constitution enshrining the fundamental rights are mere checks or limitations on the legislative competence of the Parliament and the State Legislature by Articles 245 and 246 read with the relevant entries in the Lists in the 7th Schedule to the Constitution or are in the integral part of the provisions defining, prescribing and conferring the legislative competency itself?

Judgement

The case of Deep Chand vs. State of UP (1959) primarily deals with the doctrine of the eclipse and the issue of the doctrine of repugnancy between the State law and the Union law under the Indian Constitution. The Apex Court concluded that even if the Central Act was construed as amounting to a repeal of the Uttar Pradesh Transport Service (Development) Act, 1955, the repeal did not destroy the scheme already framed under the Uttar Pradesh Transport Service (Development) Act, 1955, due to the provisions of Section 6 of the General Clauses Act, 1897. The Supreme Court ruled that the doctrine of eclipse did not apply in this case. The legislation was passed in 1955 and it immediately became empty. Since it was lapsed, it is now extinct. Therefore, there was never rebirth. If the State deems it necessary, fresh legislation should be passed. It was further stated that, when a statute is passed after the enforcement of the Constitution and it is opposed to Fundamental Rights, it is void from the very beginning. 

Hoechst Pharmaceuticals Ltd. vs. State of Bihar (1983)

Facts of the case

In this case, the petitioner had a business that produced and distributed medicines and life-saving treatments across India, including the state of Bihar. To sell their manufactured goods to the wholesale distributors or stockists in the districts of Bihar, who in turn sold them to the retailers through whom the medicines and drugs reached consumers, the petitioners established a branch or sales outlet there that was registered as a dealer. The Drugs (Prices Control) Order, 1979, issued by the Central Government under Sub-section (1) of Section 3 of the Essential Commodities Act, 1955, nearly 94% of the medicines and drugs sold by the companies/distributors were at controlled prices, and they were conspicuously forbidden from selling these medicine and drugs for more than the controlled price so fixed by the Central Government from occasionally allowing the manufacturer or producer to pass along a portion of the profit. In addition to the tax, Section 5(1) of the Bihar Finance Act, 1981 prescribed a surcharge on dealers with gross annual sales of more than Rs. 5 lakhs. Section 5(3) of the Bihar Finance Act, 1981 prohibited these dealers from collecting the outstanding amount of the due surcharge.

Issue raised

Can a conflict between a State law and the law passed by the Parliament occur in the area beyond those covered by the Concurrent List, as mentioned in Article 254(1) of the Constitution?

Judgment  

In this case, the Apex Court concluded that there was the absence of “any tax-related entries” in List III, the Concurrent Legislative List, it shows the incompatibility of State law, although the State law has the sole authority to impose or levy taxes of any kind of sales or purchase of the goods related to Entry 54 of the List II of the Seventh Schedule”. It is reasonable to conclude that the two laws, i.e., Section 5(2) Bihar Finance Act, 1981 and Paragraph 21 of the Central Government’s Control Order issued under Section 3(1) of the Essential Commodities Act, 1955, are two different laws and have separate objectives and both are enforceable. There was no denying that the two laws conflict, thus, repugnancy was not an issue there. 

State of Maharashtra vs. Bharti Shanti Lal Shah & Ors. (2008)

Facts of the case

In the present case, the respondents were arrested under the provisions of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as “MCOCA”). They filed a writ petition before the Bombay High Court, challenging the constitutional validity of MCOCA, particularly the provisions of Sections 2(d), (e), and (f), Sections 3 and 4, Sections 13 to 16, and Section 21(5) of MCOCA. 

Sections 2, 3, and 4 define “organised crime” and the punishment to be awarded for the same. The provision under Sections 13 to 16 facilitates the detection and investigation of organised crime. These provisions empower the State Government to select a competent authority to authorise the interception of any wire, oral, or written communication, to review any order authorising interception, and to limit on the disclosure of such interception. Section 21(5) of MCOCA forbids bail of an accused if he was on bail for an offence under the MCOCA Act or any other legislation at the time of the commission of the alleged offence. 

When the matter reached the High Court of Bombay, the Bombay High Court upheld the constitutionality of Sections 2(d), (e) and (f), Sections 3 and 4, but the court struck down Sections 13 to 16 as well as Section 21(5) for being unconstitutional. The court noted that their passage was beyond the legislative competence of the State legislature, and violated Article 14 of the Constitution. The High Court of Bombay held that the Parliament alone had the power to make law in that regard as provided for under Entry 31 of List I of the Seventh Schedule of the Constitution. Aggrieved by the decision, the appellant, i.e., the State of Maharashtra, filed an appeal in the Supreme Court. 

Issue raised

1. Whether the State legislature has the legislative competency to enact the MCOCA?
2. Whether the provisions of the MCOCA were violative of Articles 14 and 21 of the Constitution?

Judgment

The Supreme Court upheld the High Court’s verdict since it declared Sections 2(d), (e), and (f), as well as Sections 3 and 4, to be constitutional. Regarding Section 21(5), it upheld the High Court’s order striking down the words “or under any other Act” because they had the effect of restricting a person’s right to seek bail if they were out on bail for any offence, not just one similar to the offence for which they had been arrested under MCOCA. The court found that allowing bail restrictions where a defendant had not committed a similar offence would result in an unreasonable categorization and, thus, violated Articles 14 and 21 of the Constitution. 

Conclusion

The doctrine of repugnancy is effective because it determines whether specific legislation or sections of a statute should give way to the other. When ruling on a challenge to a statute or a part of the legislation, the Supreme Court begins with the basic presumption in favour of its constitutionality, and the burden of showing unconstitutionality, including “repugnancy”, falls on the individual bringing the case. After reviewing the case law on the subject, it is clear that, in all cases, the court must first attempt to reconcile the inconsistency or repugnancy between two laws applying the rule of harmonious construction so that both can co-exist and operate in a different sphere of law is shared under List III.

There is some overlap between Union and State legislation issued under List III is inescapable and will occur at some point. It is widely established that such incidental and slight trenching upon one another does not constitute repugnancy if the “doctrine of pith and substance” is applied, which states that both laws are not overshadowed by the same topic. Similar or superficial laws are to be ignored and cannot be described or classified as objectionable. 

Frequently Asked Questions (FAQs)

What is the doctrine of repugnancy?

The doctrine of repugnancy occurs when the provisions of two laws are so contradictory and inconsistent that it is difficult to perform one without opposing the other. Article 254 of the Indian Constitution mentioned the doctrine of repugnancy.  

What is the significance of the “Doctrine of Pith and Substance” in resolving the conflicts between the law?

According to the “doctrine of pith and substance”, the legislation does not become illegal just because it impacts an issue outside of a legislature’s scope if the content of the legislation falls within that body’s legal jurisdiction. The doctrine of pith and substance was developed in Canada in a case known as Cushing vs. Dupuy (1880). It is legalised by Article 246 and Schedule 7 of the Indian Constitution. 

References

• https://www.scconline.com/blog/post/2023/09/16/evolution-of-the-doctrine-of-repugnancya-perspective-of-the-supreme-court/ 
• https://www.linkedin.com/pulse/doctrine-repugnancy-constitution-india-aaditya-bhatt