DOCTRINE OF REPUGNANCY: A CRITICAL ANALYSIS

Category: Constitutional
Blog Post Image
「 ✦ Content ✦ 」

It outlines that the central government has the power to make laws on subjects listed in the Union List, while the state governments have the power to make laws on subjects listed in the State List. Additionally, both the central and state governments have the power to make laws on subjects listed in the Concurrent List, although incase of a conflict between central and state laws on concurrentsubjects, the centrallaw willprevail. Hence, arises the doctrine of repugnancy. This Article brings out the analysis of the issue as to whether the Indian Constitution positions the legislations made by the State, by favouring those made by the Union, at an instance of repugnancy, and whether a State law can be saved from repeal by Presidential Assent. 

Keywords: Repugnancy, Constitution, Legislative Powers, Presidential Assent, Concurrent List 

THE QUESTION OF REPUGNANCY 

The question of repugnancy raises when there exists some kind of inconsistency between the laws that were made by the parliament and the state legislature. It was in the case of Deep Chand v.State ofUttarPradesh, wherein, the principles of repugnancy were laid down. Following the Australian precedents, the court observed that repugnancy between the two enactments (by centre and the state) could beidentified withthe help ofthree testsofrepugnancy. These include, 

  • Finding whether there is any kind of directconflict between the two conflicting provisions: Direct conflict is said to exist between two enactments when theexistence of one lawprohibits theapplication of theother law, with respectto the samesubject. For instance, in the case of MatiLal Shahv. ChandraKanta Sarkar, a conflict had arisen with respect to Bengal Agricultural Debtors Act, 1936 and PresidencySmall CausesCourts Act,d1882, an existingIndian law. Here, the court observed that the provisions of the Bengal Agricultural Debtors Act, 1936, was void tothe extentof repugnancy and direct conflict with theother act. 


  • Whether the Parliament has intended to lay an exhaustive enactment on the subject matter to replace the law made by the State Legislature: The Second test to determine the repugnancy is that, in case the Central Government drafted a code for its exhaustive application to regulate the subject matter, it would be harmonious and without disagreement for the State Legislature to function at the same time. 


  • If the legislation/lawmade by theParliament and thelegislation/lawmade by the Statelegislatureoccupiesthesamefield: Under this test, it is necessary to identify the repugnancy between the two enactments, first. If the law enacted by thecentral governmenthas introduced the same with theintention ofoccupying thewhole field, thenit would notbe possible to enact a state law to legislate occupying the same field again. This can be seen in the case of Zaverbhai Amaidas v. The State of Bombay, that is discussed in the subsequent chapters, wherein, the SC held that since the laws made by the parliament and the state legislature occupied the same field, the state laws were void to the extent of repugnancy. 


A straightforward reading of Article 254 would suggest that all the of repugnancy cases are included under the purview of this doctrine, wherein the central law would prevail. However, the courts, at different instances, interpreted this doctrine in different ways. One of the landmark judgements that was decided based on this doctrine was the case of M. Karunanidhi v. Union of India. It was in this case wherethe principlesto be appliedfor determiningrepugnancy betweena parliament-made law and a state-made law was considered. 

In an-other case, Government ofAndhraPradesh v. J. B.Educational Society, theCourt observedthat such conflicts arising between the legislatures is not avoidable, and in any circumstance where such conflict occurs, the central law would prevail. Further, in thecase of HoechstPharma Ltd. v. Stateof Bihar, the court discussed the effect of Article 254(2). Here, it wasobserved that“the assent of thePresident is necessary for astate lawto come into effect, that was considered repugnant to a central law, pertaining to the subject present in the concurrent list, therebyoverriding the effect of thecentral law inthat particular stateonly.


EXCEPTIONS TO THE DOCTRINE OF REPUGNANCY 

The rule of repugnancy as discussed in previous chapters, makes a clear distinction of what subjects are to be decided by the state and what subjects are to be decided by the Union. In case of any inconsistency that prevails among these laws, the law/order made by the Union would stand against the State law/order. One exceptionto this doctrineof Repugnancyis Article 254(2) that permits astate law to prevailover the centre-madelaw, if the same isplaced for considerationby, and subsequentlyreceives an asset to the effect from the President of India.

Henceforth, it is possible in the case of Presidential assent, to help the state law preside over the union law. However, subject to this exception, as provided in article 254(2) of the Indian Constitution, it would still be possible for the parliament to override such a law by making another law on the same matter. In such a case, once again, the state law would stand void to the extent of repugnancy present with the state law. 

In the case of Zaverbhai v. State of Bombay, that is considered as a landmark judgement decided in 1954, there was a contravention between the union-made law and the state-made law. Here, the parliament had enacted the Essential supplies Act, 1946, to regulate the production and distribution of essential commodities. And, any contravention to the same, according to the state law, would attract a punishment of imprisonment up to 3 years or fine or both. However,in1947, consideringthe punishmentto be inadequate,the Bombay Legislature passed another Act to enhance the punishment for the same. 

This Act received the assent of the President and subsequently prevailed over the Union law to become operative in Bombay. But later, in 1950, the Parliament amended the Act of 1946, and hence, enhanced the punishment. It was held by the Supreme Court, that, since both the Union and State laws occupies the same field of enhanced punishment, the State law was to be held void as it was being repugnant to the Union law. The Court further held that both the laws occupied the same field and cannot be split-up. 

APPLICATION OF DOCTRINE OF REPUGNANCY DURING COVID-19

On 24th March, 2020, Shri Narendra Modi, Prime Minister of India, announced a nation-wide lockdown, froms25th March,s2020 to 14sApril, 2020. Suchannouncement was a step taken by the Central government, in the backdrop of the COVID-19 Pandemic. Additionally, the Central government was also of the idea that, in order to maintain essential services and supplies, consistency is required in the application and implementation of various measures introduced by the government.

Subsequently, the Ministryof HomeAffairs, invokedrsectionr6(2)(i) of theDisaster ManagementAct, 2005, to issuean orderon 24thrMarch 2020, directingall the ministries/departments of theGovernment of India,State and UnionTerritory governments and the otherauthorities, to implementthe measures laiddown in thecentral order. 

This step, though applauded and appreciated by many among the legal fraternity, the sudden nature of the order originated certain issues and queries, resulting in debate among many, as to whether the central government was really authorised to overrule the powers of the state and go ahead to impose the order of lockdown under section 6(2)(i) of the Disaster Management Act, 2005. 

However, it was proven that the order that was passed by the Central Government was constitutionally valid owing to the reason of entry 29 in the concurrent list that clearly states that both central and the state government have the power to legislate on matters pertaining to the “prevention of an infectious and contagious disease spreading from one state to another.” Furthermore, as seen in the previous chapter, and as held in the case of M. Karunanidhi v. Union of India, if there exists any conflict prima facie between the law madeby the Parliamentand the law madeby the state, thelaw made by theParliament would have ahigher weightage thanthe latter.

REFERENCES

  1. Deep Chand v. State of Uttar Pradesh 1959 AIR 648 (India).

  2. Mati Lal Shah v. Chandra Kanta Sarkar AIR 1947 Cal 1 (India). 

  3. Zaverbhai Amaidas v. the State of Bombay 1954 AIR 752 (India).

  4. Government of Andhra Pradesh v. J. B. Educational Society (2005) (India).

  5. M.hKarunanidhi v.hUnion ofjIndia 1979jAIR 898k(India).

  6. INDIA CONST. Art. 254, cl. 2, amended by The Constitution (One Hundred and Fourth Amendment) Act, 2019.

  7. Hoechst Pharma Ltd. V. State of Bihar 1983 AIR 1019 (India). 

  8. The Essential Supplies (Temporary powers) Act, 1946.

    OLQ is a Pan-India basis law firm connecting legal expertise nationwide.

    WRITTEN BY: THANUJA ANTHIYUR ARAVINDAN 

    GUIDED BY: ADVOCATE ANIK

Rounded Image

Submit Comment