DOCTRINE OF

REPUGNANCY
• With the enactment of laws by different legislative bodies all over the
world, conflict of laws is an unavoidable issue. Doctrine of
Repugnancy deals with the conflict of laws between the State and the
Centre. Part XI of the Indian Constitution describes the legislative
relations between the Centre and the States. The legislative field of
the Parliament and the State Legislatures has been specified in Article
246 of the Constitution whereas Article 254 of the Constitution
describes the mechanism of for resolution of conflict between the
Central and the State legislations enacted with respect to any matter
enumerated in List III of the Seventh Schedule.
DEFINITION According to Black’s Law
Dictionary
• Repugnancy could be defined as “an inconsistency or contradiction
between two or more parts of a legal instrument (such as a statute or
a contract)”.
• Article 245 states that Parliament may make laws for whole or any
part of India and the Legislature of a state may make laws for whole
or any part of the State. It further states that no law made by
Parliament shall be deemed to be invalid on the ground that it would
have extra- territorial operation.
• Article 246 also talks about Legislative power of the Parliament and
the Legislature of a state.
• It states that:
1.The Parliament has exclusive power to make laws with respect to any
of the matters enumerated in List I or the Union List in the Seventh
Schedule.
2.The Legislature of any State has exclusive power to make laws for
such state with respect to any of the matters enumerated in List II or
3.The Parliament and the Legislature of any State have power to make
laws with respect to any of the matters enumerated in List III or
Concurrent List in the Seventh Schedule.
4.Parliament has power to make laws with respect to any matter for
any part of the territory of India not included in a State notwithstanding
that such matter is a matter enumerated in the State List.
WHEN REPUGNANCY ARISES
• 1)Direct Conflict- There may be inconsistency in the actual terms of the
Statute as when one legislature says “do” and the other says “don’t”.
There is a clear and direct inconsistency between the Central Act and
the State Act and such inconsistency is absolutely of such a nature as to
bring the two Acts into direct collision and a situation is reached where
it is impossible to obey the one without disobeying the other.
• 2) Exhaustive code
• 3)Occupied Field- There may be not an apparent conflict or collision
between the two provisions yet there may be repugnancy between
both covering the same field.
CONDITIONS
• 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 nature as to bring the two Acts into direct collision with each
other and a situation is reached where it is impossible to obey the
one without disobeying the other.
• Thereafter, the court laid down the following propositions in this
respect: 1)That in order to decide the question of repugnancy, it must
be shown that the two enactments contain inconsistent and
irreconcilable provisions so that they cannot stand together or
operate in the same field. 2)That there can be no repeal by
implication unless the inconsistency appears on the face of the two
statutes. 3)That where the two statutes occupy a particular field but
there is room or possibility of both the statutes operating in the same
field without coming into collision with each other, no repugnancy
results. 4)That where there is no inconsistency but a statute
occupying
Karunanidhi v. Union of India
• The court said that: Where the provisions of a Central Act and a State
Act in the Concurrent List are fully inconsistent and are absolutely
irreconcilable, the Central Act will prevail and the State Act will
become void in view of the repugnancy.
• Where a law passed by the State Legislature while being substantially
within the scope of the entries in the State List entrenches upon any
of the Entries in the Central List, the constitutionality of the law may
be upheld by invoking the doctrine of pith and substance if on any
analysis of the provisions of the Act it appears that they by and large
the law falls within the four corners of the State List and
entrenchment, is purely incidental.
• Where, a law made by the State Legislature on a subject covered by
the Concurrent List is inconsistent with and repugnant to a previous
law made by Parliament, then such law can be protected by obtaining
the assent of the President under Article 254(2).
Deepchand v. State of UP (1959):
• UP Transport Services Act authorized State Government to frame
schemes of “nationalization of motor transport”. The law was
necessitated because the Central Motor Vehicles Act, 1939 did not
contain any such provision. Later, Parliament amended the Act by
adding a new chapter enabling the State Government to frame and
execute schemes of Nationalization. It was held that two laws belong
to same field and the State Law, to extent of repugnancy, is void. New
Chapter in the Act does not indicate that schemes already finalized
should be reopened. The law under UP Act subsists to support
schemes framed and becomes void only in respect of schemes framed
under Central Act
National Engg. Industries Ltd. v. Shri Kishan
Bhageria
• Sabyasachi Mukharji, J., opined that the best test of repugnancy is
that if one prevails, the other cannot prevail. Nicholas in his Australian
Constitution, 2nd Edition, page 303, refers to three tests of
inconsistency or repugnancy :- (1) There may be inconsistency in the
actual terms of the competing statutes; (2) Though there may be no
direct conflict, a State law may be inoperative because the
Commonwealth law, or the award of the Commonwealth Court is
intended to be a complete exhaustive code; and (3) Even in the
absence of intention, a conflict may arise when both State and
Commonwealth seek to exercise their powers over the same
Krishna Dist. Co-op. Marketing Soc. Ltd.
v. N.V.P.Rao
• the state law which had been enacted after the central law and which
had received the assent of the president would continue to operate
over the central law, if there was a repugnancy between the two. If
there was no such repugnancy, then the two laws would continue to
co-exist.
M.P. Shikshak Congress v. R.P.F.
Commissioner, Jabalpur
• The Supreme Court further interpreted Article 254(2) in this case by
holding that the sub clause would be applicable only in those cases
where the Central law was enacted before the state law. Even if the
state act receives the assent of the president, it would be of no avail
because the repugnancy was with the central act which was enacted
by the parliament after the enactment of the state law. The sub
clause would not apply if the state act became repugnant to a
parliamentary law enacted after the state law.
Govt. of AP v. J.B. Educational Society
• Taking into account the ambit of and scope of Articles 246 and 254
and considering the scheme laid down by this Court in M. Karunanidhi
case with respect to the situations in which repugnancy would arise,
held that "Parliament has exclusive power to legislate with respect to
matters in List I. The non obstante clause under Article 246(1)
indicates the predominance or supremacy of the law made by the
Union Legislature in the event of an overlap of the law made by
Parliament with respect to a matter in List I and law by the State
Legislature with respect to matter enumerated in List II.
Salient features
• If any law passed by the legislature of the state enumerated in the
concurrent list which is repugnant to the earlier law made by the
parliament or an existing law the law passed by the state legislature would
remain in existence in that state if the assent is given by the president.
• After receiving the presidential assent the law can still be held void if the
parliament amend, verify and repeal any law in respect to the same matter.
• The state legislature and the parliament have equal competence to legislate
in the concurrent list. It is the duty of the court to interpret the enactments
and avoid conflicts.
• No repugnancy of law passed by the state legislate would be required if the
matter is different. Then Article 254(2) would have no application.
• Under article 254 of the Indian constitution when a law passed by the
legislature of the state which is inconsistent with the law parliament the
whole law won’t be held void it will be held void to the extent of repugnancy.
• To ascertain repugnancy it is necessary to check law made by the parliament
is an exhaustive code if it is not then the state law won’t be held void.
• In order to strike down a law passed by the state legislature in the court it is
necessary to prove both laws are made on the same matter and both are
inconsistent with each other.
• The state law which becomes void after repugnancy till the time the union
law is not repealed once it is repealed it becomes operative.
Difference between repugnance and ultra-
vires
• Ultra-Vires refers as when a body exceeds his legislative power. E.g.
When state makes a law in List I even though it doesn’t have the
legislative power to make laws in list I. In Ultra-Vires law becomes
invalid when the legislature exceeds the law. In Ultra-Vires there is no
question of competition between two legislatures. In repugnancy
both the legislatures are competent to make laws if they are
inconsistent then the laws made by the state would be held void. In
simple terms Ultra-Vires refers as incompetency and repugnancy
refers as inconsistency.
Doctrine of Occupied Field
• The general concept of Occupied Field refers to the situation where
two legislative authorities have jurisdiction (or legislative
competence) to legislate over one particular subject or field. When
the superior legislative authority has already enacted legislation on
the subject or field, regardless of the fact whether it is exhaustive or
otherwise, it precludes the remaining legislative body from enacting
any law thereon, as the field is already "occupied".
• Doctrine of Occupied Field has nothing to do with the conflict of laws
between the state and the centre. It is merely concerned with the
‘existence of legislative power’ whereas repugnance is concerned
with the ‘exercise of legislative power’ that is shown to exist.
• Doctrine of Occupied Field comes into picture even before the Union
Law or the State Law has commenced. Under Article 254, as soon as a
Union law receives assent of the President, it is said to be ‘a law
made by the Parliament’. Actual commencement of the law is not
important for the purpose of attracting doctrine of Occupied Field.
State of Kerala & Ors v. M/S. Mar Appraem
Kuri Co.Ltd. & Anr.
• the Centre enacted the Chit Funds Act (Central Act). For the Law to
become operative in any state, the Central Government would have
to issue a notification under Section 3 of the Central Act. In the
meantime, the State of Kerala enacted a separate act on ‘Chit Funds’
called as Kerala Chitties Act. However, the Central Act did not get
notified in Kerala resulting into a situation wherein there was only one
Act in force in the State of Kerala i.e. the Kerala Chitties Act. It was
contended that the Kerala Chitties Act was repugnant to the un-
Notified Central Act. The Supreme Court held that even an un-
notified Central law attracts art 254.
• The reasoning given by the Supreme Court was that the Central
Enactment covered the entire ‘field’ of ‘Chit Funds’ under the Concurrent
List. Even though the Central Chit Funds Act was not brought in force in
the State of Kerala, it is still a law ‘made’, which is alive as an existing law.
• The Court emphasized that Article 254 uses the verb ‘made’ and the
‘making’. Thus, the ‘making’ of a law is complete, even before that law is
notified. The court also said that:
• The verb ‘make’ or the verb ‘made’ is equivalent to the expression ‘to
legislate’. The importance of this discussion is to show that the
Constitution framers have deliberately used the word ‘made’ or ‘make’ in
the above Articles
• Our Constitution gives supremacy to the Parliament in the matter of
making of the laws or legislating with respect to matters delineated in
the three Lists. The principle of supremacy of the Parliament, the
distribution of legislative powers, the principle of exhaustive
enumeration of matters in the three Lists are all to be seen in the
context of making of laws and not in the context of commencement
of the laws.”
• Thus, the State Legislature is denuded of Legislative Competence as
soon as the Parliament, by enacting the Central Act, intended
to occupy the entire field of ‘Chit Funds’ under the Concurrent List.