DOCTRINE OF REPUGNANCY IN RELATION TO THE CENTRAL AND STATE LAW: ARTICLE 254 OF INDIAN CONSTITUTION.

Article submitted by Ruma Minj, Indian Institute of Legal Studies, Siliguri.

The distribution of powers is an important element of federalism. A federal Constitution establishes the dual polity with the Union at the center and the States at a perimeter, each of them is entrusted with sovereign powers to be exercised in the area assigned to them respectively by the Constitution under Article 245 and 246. The current Constitution acquires the procedure pursued by the Government of India Act, 1935 and distributes the power between the Union and the States into three Lists: the Union List, the State List, and the Concurrent List. The Centre and State can enact legislation within their allotted subject in the list but it is scientifically very difficult to create division, accordingly leads to conflicts of legislation. Both the Parliament and State Legislature are supreme in their respective allotted fields. It is the obligation of the Court to interpret the legislation formulated by Parliament and State Legislature in such a way as to deter any kind of conflict between both.[i]

The Doctrine of Repugnancy deals with the conflict of law between the Centre and the States. The word ‘Repugnancy’ according to the Black Laws dictionary signifies incongruity or contradiction between two or more areas of legal instruments or statutes. Article 254 of the Indian Constitution is applicable when the state law is in ‘pith and substance' a law relating to entry in the concurrent list on which the parliament has legislated.[ii] Article 254 (1) pertains to where there is any inconsistency between a central law and a state law relating to a subject present in the concurrent list.[iii]

Determination of Repugnancy

In M. Karunanidhi v. Union of India,[iv]Justice Fazal Ali reviewed all its prior decisions and summarized the test of repugnancy. According to him following are the circumstances when repugnancy would occur between the two statutes:

1. It must be indicated that there is a clear and direct inconsistency between the central and state laws which is irreconcilable so that they cannot persist jointly or operate in the uniform field.

2. There can be no repeal by implication unless the inconsistency arises on the face of the two statutes.

3. Where the two statutes acquire a particular field, but there is a probability of both the statutes operating in the uniform field without landing into complicity with each other, no repugnancy results.

4. Where there is no inconsistency but a statute acquires the similar field seeks to establish distinct and separate offences, no question of repugnancy arises and both the statutes proceed to operate in the similar field.

The question of repugnancy between the parliamentary legislation and state legislation occurs in two ways:

· Firstly, where the legislations are enacted with respect to matters allotted in their fields but they overlap and conflict.

· Secondly, where the two legislations are with respect to the matters in the concurrent list and there is conflict. In both the circumstances, the parliamentary legislation will be predominant, in first by virtue of the non-obstante clause in Article 246 (1) and in the second by a justification of Article 254 (1).[v]

Exception to the rule of Repugnancy

The doctrine of repugnancy is also subject to the exception which is provided under clause (2) of Article 254 of the Indian Constitution. According to the clause (2) of Article 254 if a state law with respect to any of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of prior legislation formulated by the parliament, or prevailing legislation with respect of that matter, then the state legislation if it has been reserved for the assent of the President and has received his assent, shall persist notwithstanding such repugnancy. But it would still be possible for the parliament under the provision to clause (2) to override such legislation by subsequently formulating legislation on a similar matter. If it formulates such legislation then the state legislation would be void to the extent of repugnancy with the union legislation.

Case Laws

Deep Chand v. State of U. P[vi]

The question, in this case, was pertained to the validity of the U. P. Transport Service Act. With this Act, the state government was authorized to create the scheme for the nationalization of Motor Transport in the state. The legislation was necessitated because the Motor Vehicles Act, 1939 did not encompass any provision for the nationalization of Motor Transport Services. Later on, in 1956 the Parliament with a perspective to introduce uniform legislation amended the Motor Vehicles Act, 1939, and added a new provision facilitating the state government to frame rules of nationalization of Motor Transport. It was held by Court that since both, the union law and state law occupied the identical field, the State legislation was void to the extent of repugnancy to the union legislation.

Zaverbhai v. State of Bombay[vii]

The Parliament passed the Essential Supplies Act, 1946, for governing production, supply, and distribution of essential commodities. Contravening any of the provisions of the Act was punishable with imprisonment of up to 3 years or fine or both. In 1947, contemplating the punishment inadequate, the Bombay legislature enacted an Act increasing the punishment furnished under the central legislation. The Bombay Act obtained the assent of the President and this prevailed over the central law and become operative in Bombay. However, in 1950 Parliament amended its Act of 1946 and increased the punishment. It was held by the Court in the instant matter that as both inhabited a similar field that is an enhancement of punishment, hence the state legislation became void as being repugnant to the central law.

State of Kerala v. M/s. Mar Appraem Kuri Co. Ltd.[viii]

This case pertains to the question that whether the Kerala Chitties Act, 1975 became repugnant to the Central Chit Fund Act, 1984 upon the enactment of the Central Act that is when the president assented to the bill or when a notification was issued under the Act bringing the Act in force in the state of Orissa. The Supreme Court held that the repugnancy occurs on the making of the legislation and not on its enforcement.

Krishi Upaj Mandi Samiti, Narsinghpur v. M/s. Shiv Shakti Khansari Udyog[ix]

In this instant case, the mechanism enshrined in the Sugarcane Control Order, 1996 issued under section 3 of Essential Commodities Act, 1955 which is a central Act and M. P Krishi Upaj Mandi Adhiniyam, 1973 which is also known as Market Act regarding the determination of the price of sugarcane was vastly different. The Control Order envisaged the fixation of a minimum price of sugarcane by the central government. The Market Act postulated determination of the price of the notified agricultural produce brought into the market yard for sale which could not be less than the support price announced by the State government. One of the questions involved was whether the Market Act would prevail over Control Order. The plea that the Market Act was enforced after receiving the assent of the President and hence it would prevail was held to be not justifiable since the Act had not been reserved for Presidential assent on the ground of repugnancy between the Act and Control Order. The assent of the President is not an empty formality and the President has to be appraised of the reason why his assent is being sought. If the assent is sought for a specific objective, it would be restricted to that objective and cannot be extended beyond it.

Conclusion

The Doctrine of Repugnancy signifies repugnancy between the two statutes which occurs if there is a direct conflict between the two provisions or the law enacted by Parliament and the enacted made by state legislature occupies a similar field. Hence, whenever the question of repugnancy between the law passed by the Parliament and of the state legislature is raised, it becomes quite essential to evaluate as to whether the two legislations relate to the similar subject matter or distinct. Both Centre and the State Legislatures are equally powerful and enjoy absolute authority while legislating on their respective fields. But there are some fields where the power and interest of the governments colloid and logical mechanisms to counter the inconsistency or conflicts requires to be in place to assure the efficiency of the governance. Doctrine of Repugnancy thus furnishes for an effective mechanisms to deal with such inconsistencies.

[i] Government of A. P. v. J. B Educational Society, AIR 2005 SC 2014. [ii] Security Association of India v. Union of India, AIR 2014 SC 3812 pp. 3827-3828. [iii] Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562 : AIR 1990 SC 2072. [iv] M. Karunanidhi v. Union of India, AIR 1979 SC 898. [v] State of Kerala v. M/s Mar Appraem Kuri Co Ltd., AIR 2012 SC 2375. [vi] Deep Chand v. State of U. P., AIR 1959 SC 648. [vii] Zaverbhai v. State of Bombay, AIR 1954 SC 752. [viii] Supra note iv. [ix] Krishi Upaj Mandi Samiti, Narsinghpur v. M/s. Shiv Shakti Khansari Udyog, AIR 2012 SC 2375.