ConstitutionalLawI

RELEVANCE OF DOCTRINE OF
REPUGNANCY I N INDIA: A CRITICAL
ANALYSIS

Submitted by:

RISHAV RAJ (ID NO. 2167)

I YEAR, B.A., LL.B (HONS.)

DATE OF SUBMISSION: 18TH APRIL, 2015

National Law School of India University

Contents
INDEX OF AUTHORITY.........................................................................................................4

LIST OF STATUTES............................................................................................................4

LIST OF CASES....................................................................................................................4

INTRODUCTION......................................................................................................................6

RESEARCH METHODOLOGY...............................................................................................7

OBJECT OF RESEARCH.....................................................................................................7

Research Questions................................................................................................................7

HYPOTHESIS.......................................................................................................................7

CHAPTERISATION..............................................................................................................7

Methodology..........................................................................................................................8

Citation Method.....................................................................................................................8

The Doctrine Of Repugnancy....................................................................................................9

Scope and Application of Article 254..................................................................................11

Article 254: Political Issues.....................................................................................................16

Gains to State Legislatures...................................................................................................16

President’s Assent and Change in Regimes: GUJCOTA, GUJCOCA and MCOCA..........16

Political Justification for Union Supremacy Under Article 254..........................................17

Problem of Centralisation of Legislative Power..................................................................17

Case for an Alternative Interpretation......................................................................................19

The case in favour of the current position on repugnancy as applicable only to the
concurrent domain................................................................................................................19

INTERPRETATION of 254 (1) IN FAVOUR OF A WIDER APPLICATION.................20

CONCLUSION........................................................................................................................23

BIBLIOGRAPHY....................................................................................................................25

BOOKS................................................................................................................................25

ARTICLES...........................................................................................................................25
REPORTS............................................................................................................................25
 INDEX OF AUTHORITY
LIST OF STATUTES
1. Constitution of the Commonwealth of Australia, 1900.
2. Constitution of India, 1950.
3. Government of India Act, 1935.
4. Indian Penal Code, 1860.
5. Industrial Disputes Act, 1947.
6. Maharashtra Control of Organised Crime Act, 1999.
7. The Advocates Act, 1961.
8. The Arms Act, 1959.
9. The Code of Criminal Procedure, 1973.
10. The Constitution of the United States of America, 1787.
11. The Explosives Act, 1884.
12. The Indian Evidence Act, 1872.
13. The Indian Medical Council Act, 1956.
14. The Indian Railways Act, 1890.
15. The Industrial Disputes (Assam Amendment) Act, 1962.
16. The Karnataka Land Reforms (Amendment) Act, 1974.
17. The Police Act, 1861.
18. The Prevention of Corruption Act, 1988.
19. The Tamil Nadu Public Men (Criminal Misconduct) Act, 1973.
20. The Unlawful Activities (Prevention) Act, 1967.

LIST OF CASES
1. A.S. Krishna v. State, AIR 1954 Mad. 993 (High Court of Madras).
2. Clyde Engineering v. Cowburn, (1926) 37 CLR 466 (High Court of Australia).
3. Deep Chand v. State of UP, AIR 1959 SC 648 (Supreme Court of India).
4. Govt. Of Andhra Pradesh v. JB Educational Society, (2005) 3 SCC 212 (Supreme
Court of India).
5. Hingir Rampur Coal Co. v. State of Orissa, AIR 1961 SC 459 (Supreme Court of
India).
6. Kanaka D.H.P. Co. v. State of Kerala, AIR 1972 SC 2301 (Supreme Court of India).
7. Kanaka GruhaNirmanaSahakaraSangha v. Narayanamma, AIR 2002 SC 3659
(Supreme Court of India).
8. Lakhinarayanan v. Province of Bihar, AIR 1950 FC 59 (Federal Court of India).
9. M. Karunanidhi v. Union of India, AIR 1979 SC 898 (Supreme Court of India).
10. Megh Raj v. AllaRakhia, (1943) 5 FCR 182 (Federal Court of India).
11. ShyamakantLal v. Rambhajan Singh, AIR 1939 FC 74 (Federal Court of India).
12. SrinivasaRaghavacharv. State of Karnataka, AIR1987 SC 1518 (Supreme Court of
India).
13. State of Assam v. Horizon Union, AIR 1967 SC 442 (Supreme Court of India).
14. TikaRamji v. State of UP, AIR 1956 SC 676 (Supreme Court of India).
15. Zameer Ahmed LatifurRehman Sheikh v. State of Maharashtra, AIR 2010 SC 2633
(Supreme Court of India).
16. ZaverbhaiAmaidas v. State of Bombay, AIR 1954 SC 752 (Supreme Court of India).
INTRODUCTION
The Indian Constitution can be safely described as a federal constitution for it conforms to
the basic principles of a federal constitution. While the word “federal” is not directly
mentioned in a qualifying sense anywhere in the constitution, Article 1 says that “India, that
is Bharat, shall be a Union of States.”1 Dr Ambedkar in his address to the Constituent
Assembly explained that the word “Union” is used over “Federation” because “Indian
Federation is not the result of an agreement among the States, as in the United States of
America. Secondly, the states have no right to secede from the federation.” This also
enunciates the supremacy of the Centre over the constituent States, and the justification for
the same cannot be appreciated more anywhere than in a heterogeneous society like India.

Part XI of the Constitution deals with the “relations between the Union and the States.”
Articles 245 to 254 deal specifically with the legislative relations between the centre and the
states and the principle of Central supremacy is enshrined in the provisions therein too. It is
in light of this structural impulse that we must appreciate the implication of the doctrine of
repugnancy in its relation with the Indian Constitutional law. The doctrine of repugnancy can
be roughly understood as a conflict resolution principle, which is invoked when there exist
two different tiers of Legislature, each competent to legislate on a definite subject, and where
there is an irreconcilable inconsistency between the provisions of two laws enacted by the
two legislatures on this field in exercise of their legislative competence. The constitutional
provisions relevant for solving questions of repugnancy are to be found in Article 254 of the
Constitution.2

This paper attempts to look into the application and scope of the doctrine of repugnancy as
interpreted and applied by the courts in India. Such an analysis would inevitably run into a
critique of the judicial interpretation of the doctrine itself. While drawing parallels and
deriving authority from academic and judicial sources in constitutional law, the paper would
also attempt to answer the need for and consequences of applying the doctrine of repugnancy
vis-à-vis Article 254. The paper should find its natural culmination in an examination of the
alternative interpretations proposed to revise the present judicial position and their
constitutional feasibility.

1
Art. 1, CONSTITUTION OF INDIA, 1950.
2
M.P. Jain, INDIAN CONSTITUTIONAL LAW, Vol. 2, 783 (5thedn., 2003).
 RESEARCH METHODOLOGY
OBJECT OF RESEARCH
The object of inquiry is the doctrine of repugnancy with strict reference to its scope and
application in the Indian legal milieu.

RESEARCH QUESTIONS
1) What is the doctrine of repugnancy?
2) How has it been interpreted and applied with respect to resolving legislative conflicts
in India? What are the constitutional and policy imperative for the interpretation?
3) What are the tests to determine repugnancy? When are laws repugnant? When are
they not?
4) What are the implications of the application of Article 254 for politics in India?
5) Is the present judicial stand on the scope and application of Article 254 completely
sound? Is there a scope for revision of the same?

HYPOTHESIS
The doctrine of repugnancy, as it stands today, has been interpreted by the Supreme Court in
an unduly restricted fashion, and is constitutionally amenable to a relatively wider
interpretation.

CHAPTERISATION
This paper is divided into the following chapters:

Chapter 1 briefly discusses the nature of Indian federation and the place of the doctrine of
repugnancy in that arrangement.

Chapter 2 outlines the research methodology employed.

Chapter 3 dissects Article 254 into its constituent elements and discusses their implication
with reference to the interpretation provided by courts, and elucidated with insights from
academic authorities.

Chapter 4 looks into the policy issues and political trends that have shaped and are
themselves shaped by the implication of the doctrine of repugnancy on State Legislations. A
brief but nonetheless relevant discussion of the recently passed Gujrat Control of Terrorism
and Organised Crime Act provides a thrust to the proposition that Clause (2) of Article 254 is
loosely used in concurrence with political agendas of reigning parties.

Chapter 5 propounds the case for an alternative and a wider interpretation of the doctrine of
repugnancy.

Chapter 6 condenses the principal arguments and findings of the paper.

METHODOLOGY
The author has used both a theoretical review of legislation and Constitutional provisions and
an empirical approach using case law and statistics to arrive at his findings.

CITATION METHOD
The NLS Uniform Guide to Citation has been relied upon throughout this paper.

The Doctrine Of Repugnancy

When two enactments are repugnant, Wharton’s Law Lexicon proposes, it means that
“conflicting results are produced when both laws are applied to the same set of facts”. 3It
3
A.R. Lakshmanan, WHARTON’S LAW LEXICON, 1491
(15thedn., 2009).
further enunciates on this position and suggests that repugnant laws are laws inconsistent
with one another, that they cannot stand together at the same time, and that such a situation
arises when the command or power or provision in the one law conflicts directly with the
command or power or provision in the other.4The word “inconsistent” itself, in the legal
sense, has been defined as mutually repugnant in the sense that acceptance of one leads to
thethe abandonment of the other.5

In such a situation, the grund-norm envisages a mechanism to resolve such a conflict, for “it
is not possible to obey one law without disobeying the other”. 6 The resolution proposed may
vary from one polity to another. Generally, one law prevails over another and the paramount
legislation is determined by the nature of the federation.

Take for example the case of federations like the United States or Australia. The constitutions
for these countries divide the legislative competencies of the Federal or Commonwealth (as
in Australia) and Provincial or State legislatures under two separate lists of subjects on which
the said legislatures could legislate. Notwithstanding that, there are allied matters on which
the legislations often run into an irreconcilable conflict with each other. Article 109 of the
Australian Constitution establishes the overriding nature of the Commonwealth
legislation,7and the “Supremacy Clause”8under the US Constitution provides that the judges
in all States shall be bound by the provisions of the Constitution of the United States of
America.9

Article 254 of the Constitution of India, as has already been mentioned in the preceding pages
of this paper, provides for the resolution of conflicts between Central and State legislations
that are wholly repugnant to one another.

Article 254, with its clauses and proviso, reads as follows:

“254. Inconsistency between laws made by Parliament and

laws made by the Legislatures of States
1. If any provision of a law made by the Legislature of a State
is repugnant to any provision of a law made by Parliament
which Parliament is competent to enact, or to any provision of
an existing law with respect to one of the matters enumerated in
the Concurrent List, then, subject to the provisions of clause ( 2

4
Id.
5
E.A. Elizabeth, OXFORD DICTIONARY OF LAW, 246 (5thedn., 2003).
6
ShyamakantLalv. Rambhajan Singh, AIR 1939 FC 74 (Federal Court of India).
7
Sec. 109, THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA, 1900.
8
D.D. Basu, COMPARATIVE FEDERALISM, 241(2ndedn., 2008).
9
Art. 6, Sec. 2, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1787.
 ), the law made by Parliament, whether passed before or after
the law made by the Legislature of such State, or, as the case
may be, the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the repugnancy,
be void
 2. Where a law made by the Legislature of a State with respect
to one of the matters enumerated in the concurrent List
contains any provision repugnant to the provisions of an earlier
law made by Parliament or an existing law with respect to that
matter, then, the law so made by the Legislature of such State
shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament
from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.”10

The term “existing laws” has been defined under Article 366, clause 10, and are laws made
by the competent legislatures before the commencement of the Constitution. 11 The provisions
of Article 254 are based on Article 107 of the Government of India Act, 1935.
There has been a catena of judgements in India, on cases related to repugnancy arising out of
conflicts between legislations of the sort envisaged in Article 254 of the Constitution, and the
widely held view on the scope, meaning and implication of repugnancy right from the case of
ZaverbhaiAmaidas v State of Bombay to the famous M Karunanidhi v. Union of Indiahas
been fairly consistent.

A dissection of the provisions of Article 254, in conjunction with reference to the views of
Constitutional authorities and landmark judgements would certainly serve the purpose of this
paper, and help us gauge the life of the doctrine of repugnancy with respect to constitutional
law in the Indian legal milieu.

There are certain elements that must be essentially present to invoke the provisions of Article
254 to hold the legislation of the state legislature repugnant to the Central enactment.
Constitutional experts disagree on a host of issues regarding the scope and application of
Article 254. While we will attempt to examine these disputes later into this paper, we will in
the following section encapsulate the essential scope and elements of Article 254 as
explicated by the Supreme Court in its judgements, followed by a discussion of the effects of
repugnancy, repeal, severability and the exception clause.

10
Art. 254, CONSTITUTION OF INDIA, 1950.
11
Art. 366(10), CONSTITUTION OF INDIA, 1950.
SCOPE AND APPLICATION OF ARTICLE 254
The provisions of Article 254 are invoked subject to the incidence of the following
conditions:

Laws are repugnant when wholly incompatible: The provisions under Article 254 are
attracted only when the statutes in question are wholly incompatible with each other and
cannot stand together. The Rajasthan High Court in Om Prakash v. State, ruled that there is
no repugnancy unless the two laws are wholly repugnant to each other and their conjunctive
application would produce absurd results. This does not mean that the laws have to be
inconsistent in each and every letter and provision, but that in so far as the provisions are in
fact inconsistent, the inconsistency must be absolute, so as to be militating against any
possibility for harmonious construction.

As an interpretation principle, it is a well-established principle of procedure that there is a

presumption in the favour of the constitutionality of laws and the onus to prove repugnancy
lies on the party assailing the challenged law. 12 Even then, the doctrine of harmonious
construction governs that the courts are to interpret the provisions of the laws in such a
manner so as to avoid repugnancy and allow for the smooth co-existence of the impugned
laws, and the laws are to be struck down on grounds of repugnancy in the manner prescribed
under Art. 254(1), only when “the laws are fully inconsistent and absolutely irreconcilable”.13

Conflicts with reference to the Concurrent list only: The scope of repugnancy envisaged
under Art.254 (1), applies exclusively to legislations on entries covered under the Concurrent
List and that “no repugnancy arises unless the law made by the Parliament and the law made
by the State legislature occupy the same field”. 14 If they deal with separate and distinct
matters, though of a cognate and allied nature, no repugnancy arises.15

In M. Karunanidhi, one of the most authoritative judgements on repugnancy, the Supreme

Court while discussing the various ways in which repugnancy may arise had the following
observation to make about the limitation of the scope of Article 254 to conflicts arising out of
concurrent field legislations:

“Where the provisions of a Central Act and a State Act in the

Concurrent List are fully inconsistent and are absolutely

12
M Karunanidhi v. Union of India, AIR 1979 SC 898 (Supreme Court of India), [M. Karunanidhi]
13
M. Karunanidhi, 1979 AIR 898.
14
Deep Chand v. State of UP, AIR 1959 SC 648 (Supreme Court of India), [Deep Chand].
15
TikaRamji v. State of UP, AIR 1956 SC 676 (Supreme Court of India), [TikaRamji].
 irreconcilable, the Central Act will prevail and the State Act
will become void in view of the repugnancy.”16
It is to be noticed that the Court seems to have deliberately pointed out that the mechanism
under Article 254 would uphold the Central law where there is a repugnancy between “the
provisions of a Central Act and a State Act in the Concurrent List”, while completely
overlooking the former part in cl. 1 of the aforesaid article which purports to bring into the
purview of the said Article “laws that the Parliament is competent to enact”, and which is in
ostensibly conspicuous distinction with the later part that talks of the Concurrent List.

That the observation of the court is not an oversight but a determined effort at a definite
interpretation is brought out by a subsequent observation strengthening the above position
that runs thus:

“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 an analysis of the
provisions of the Act it appears that by and large the law falls
within the four corners of the State List an entrenchment, if any,
is purely incidental or inconsequential.”17
The same position is reiterated as recently as in 2010 in Zameer AhmedLatifurRehman
Sheikh v. State of Maharashtra as under:

“Article 254 of the Constitution which contains the mechanism

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…”18
In JB Educational Society v. Government of Andhra Pradesh19, the Supreme Court lays down
some lucidity as to why should conflict resolution on concurrent legislation alone should be
invoked vide Art. 254. While explaining how inconsistencies can arise in two laws and what
principles must be applied to resolve them in the following terms:

“First, where the legislations, though enacted with respect to

matters in their allotted sphere, overlap and conflict. Second,
where the two legislations are with respect to matters in the
Concurrent List and there is a conflict. In both the situations,
parliamentary legislation will predominate, in the first, by

16
M. Karunanidhi, 1979 AIR 898.
17
M. Karunanidhi, 1979 AIR 898.
18
Zameer Ahmed LatifurRehman Sheikh v. State of Maharashtra, AIR 2010 SC 2633 (Supreme Court of India).
19
Govt. Of Andhra Pradesh v. JB Educational Society, (2005) 3 SCC 212 (Supreme Court of India),
[Educational Society].
 virtue of the non obstante clause in Article 246(1), in the
second, by reason of Article 254(1)…”20
This is by far the most disputed issue with respect to the doctrine of repugnancy. An
alternative argument on the same, and supporting the expansion of the scope of Article 254 to
conflicts arising out of enactments beyond concurrent competencies, shall be extended
towards the end of this paper.

Determination of Repugnancy:Supreme Court has also laid down a broadly comprehensive

test for determining repugnancy itself.

The first principle of determination covers express inconsistency, of the nature where one law
says ‘do’ where the other says ‘don’t’. Also, it may alternatively be possible that it may be
possible to follow both the laws where both of them cover the same field but inconsistency
may still be there. This may arise from situations where both the laws create the same offence
and award different punishments.21 However, where two laws create two different offences
for the same act, no repugnancy would result.22

This position was highlighted by the Supreme Court in M. Karunanidhi where the accused, a
former Chief Minister of the State was charged with corruption on count of passing favours
to a certain firm for pecuniary benefit, in the matter of purchase of wheat from Punjab for the
state, and was booked under the Prevention of Corruption Act, it was held that the provisions
of the Central Act are not repugnant to the State’s Public Men Criminal Misconduct Act,
insofar as the State and Central Acts created different offences, which are procedurally and
substantially different. Repugnancy does not lie in the mere co-existence of two laws where
both are susceptible of simultaneous obedience.23

Repugnancy, in these scenarios, attracts the construction of implied repeal when the two
statues are so inconsistent that it becomes impossible for them to stand together. 24Further, the
principle on which the rule of implied repeal rests, was dealt with lucidly in Zaverbhai,
observing that:

“…if the subject-matter of the later legislation is identical with

that of the earlier, so that they cannot both stand together, then
the earlier is repealed by the later enactment, and this shall be
equally applicable to a question under Art. 254(2) whether the

20
Educational Society, (2005) 3 SCC 212.
21
ZaverbhaiAmaidas v. State of Bombay, AIR 1954 SC 752 (Supreme Court of India), [Zaverbhai].
22
M. Karunanidhi, 1979 AIR 898.
23
D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. IV, 202.
24
Kanaka GruhaNirmanaSahakaraSangha v. Narayanamma AIR 2002, SC 3659 (Supreme Court of India).
 further legislation by Parliament is in respect of the same
matter as that of the State law.”25
But the rule of implied repeal can be avoided when the judicial interpretation of the statutes
construes the scope of the enactments to be different.26

It also arises when the central law seeks to create an exhaustive code to cover the entire field
covered by a subject matter. 27This can be explained by the proposition that if a competent
legislature expressly or impliedly evinces its intention of covering the whole field, that itself
is a conclusive test of inconsistency where another legislation assumes to enter to any extent
upon the same field.28 Where the Industrial Disputes Act of the Centre sought to cover the
entire field of appointment as a member of the Industrial Tribunal, the State’s Assam Act 8 of
1962 was rendered repugnant to the extent that it sought to govern the area of appointment as
a member of the same industrial tribunal in the state.29

The intention of the Central Legislation to cover the whole field must be clearly established
and it cannot be inferred the legislation itself is silent on the matter. 30 The Indian Evidence
Act, 1872 lays down certain statutory presumptions, but nothing in the Act suggest that the
presumptions laid down were intended by the Act to be exhaustive. Hence a state legislature
is not debarred from laying down additional presumptions.31

It is also clear that if the Central Legislation itself permits or recognises other laws restricting
or qualifying the general provisions contained therein the paramount, no intention of
exhaustiveness can be inferred, and no restriction or qualification introduced by a State Act
can be construed to be repugnant to the Central Authority.32

Where the Cr.P.C lays down that the “provisions of this code would not affect any special
form of procedure prescribed by any special form of procedure prescribed by any law for the
time being in force”,33 the provision for arrest without warrant in the Police Act, Arms Act,
Explosives Act, Indian Railways Act, or the Public Safety Act are not void for repugnance
with the Cr.P.C.34

25
Zaverbhai, AIR 1954 SC 752.
26
Basu, supra note 22, at 200.
27
TikaRamji, AIR 1956 SC 676.
28
Clyde Engineering v. Cowburn, (1926) 37 CLR 466 (High Court of Australia).
29
State of Assam v. Horizon Union, AIR 1967 SC 442 (Supreme Court of India).
30
Basu, supra note 22, at 201.
31
A.S. Krishna v. State, AIR 1954 Mad. 993 (High Court of Madras).
32
Megh Raj v. AllaRakhia, (1943) 5 FCR 182 (Federal Court of India), [Megh Raj].
33
Sec. 1(2), The Code of Criminal Procedure, 1973.
34
Lakhinarayanan v. Province of Bihar, AIR 1950 FC 59 (Federal Court of India).
Consequences of Repugnancy: When the provisions of a state law are repugnant to a
Central legislation or an existing law with respect to a matter in the concurrent list, the
Central legislation wouldprevail, and the state legislation, to the “extent of the repugnancy”,
would become void. This gets us to the doctrine of severability, which has been imported by
the Indian Constitution by the import of the phrase “to the extent of the repugnancy”. 35 The
courts have the onus to save as much of the impugned act that has been rendered repugnant as
possible.

Also, doctrine of repugnancy differs from the doctrine of eclipse as envisaged in article 251
in a fundamental manner. While the operation of Art. 251 renders as inconsistent enactment
inoperative, which revives after the waning of the paramount legislation, under Art. 254 the
repugnant enactment becomes void, and can be invoked only though re-enactment after the
repeal of the prevailing law, and this extends also to the case of Central Laws when the State
Law assumes the Paramount stature under Art. 254(2).36

President’s Assent under Article 254(2): The requirement of the President’s assent arises
when a law made by the Legislature of a state is wholly incompatible with a Central
legislation. It is not an idle procedure and requires that the President be informed as to why
the assent is sought.37 President’s assent cures actual repugnancy and not the mere possibility
of a repugnancy.38The President’s assent can save a law of the State only when it has been
formed after the passing of the Central Legislation. According to the Proviso to the Art., the
Parliament can repeal, amend or vary the act so made by the State, or form another law
repugnant to the State Act so as to render it invalid. In effect Cl. 2 of the Article empowers
the State to enact laws repugnant to the Central law in the territory of the state with the assent
of the President. The use of the word “assent” in Cl. 2 implies knowledge of the President to
the repugnancy between the State law and the earlier law made by the Parliament on the same
subject matter and the reasons for grant of such assent.39

35
Basu, supra note 22, at 206.
36
M. Karunanidhi, 1979 AIR 898.
37
A.P. Datar, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. II, 1503 (2nd edn., 2007).
38
While it is pertinent to note here that the Bill is sent to the President only when it is repugnant, and it has been
held that repugnancy itself arises only when it is real and not merely possible.
39
Datar, supra note 36, at 1505.
 Article 254: Political Issues
GAINS TO STATE LEGISLATURES
The restrained application of the Doctrine of Repugnancy with respect to the Concurrent List
entries only adds an additional dimension to the legislative power of the State legislatures for
they can legislate with respect to entries in the state list without being unduly restricted by
Central Laws made in concurrence with entries in the Union or Concurrent lists.40

The Indian Medical Council Act, 1956, has been enacted by the Parliament under entry 26 of
List III of the Seventh Schedule to the Constitution. 41 Sec. 27 of the Act provides that any
person who is enrolled as a medical practitioner under the Indian Medical Register shall be
entitled to practice in any part of India. 42 A West Bengal Act prohibited members of the state
Health Services from carrying out private practice.

The Supreme Court has ruled that the State Act has been enacted under entry 41 of list II
which covers State Public Services. It does not regulate the medical profession in general.
The members who join the state health service voluntarily give up their right to private
practice. As such, the subject matter of the two enactments does not relate to the same field,
and the State law is not repugnant to the Central law.

PRESIDENT’S ASSENT AND CHANGE IN REGIMES: GUJCOTA, GUJCOCA AND

MCOCA
The Gujrat Control of Terrorism and Organized Crime Bill which has been passed by the
Gujrat Legislative Assembly and has been sent to the President under Article 254 (2) for his
assent, as it is in variance with the Unlawful Activities Prevention Act. 43 It has been formed
under entries 1, 2 and 12 of List III of the seventh schedule. GUJTOC has been
conceptualized and drafted based on the Maharashtra Control of Organised Control Act. The
MCOCA itself has been challenged for constitutional infirmity on the grounds that in so far
as it seeks to control activities carried out with the intention to promote or cause insurgency,
it encroaches upon a subject matter occupied by entry I of the Union List. As regards
repugnancy, the Supreme Court had contended that the ambit of the State Act was to curb
Organised Crime, and for the lack of a Central enactment covering the same field, and with

40
MP Jain, supra note 1, at 786.
41
Id.
42
Sec. 27, Indian Medical Council Act, 1956.
43
B. Jain, GUJTOC Unlikely to Face Central Hurdle, THE TIMES OF INDIA 14 (Bangalore edn., April 1, 2015).
the amendments to the UAPA covering terrorism being substantially different in their scope,
and that there was no repugnancy.

The GUJCOCA, in its earlier form, drafted on the lines of MCOCA, was returned by the
Presidents in 2004 and 2008 with recommendations for amendment, during the UPA regime.
The MCOCA, though similar in nature received the President’s assent during the NDA
regime. It is believed that with the change in the regime in the Centre, the State law
(GUJTOC) would finally receive the President’s assent.44

POLITICAL JUSTIFICATION FOR UNION SUPREMACY UNDER ARTICLE 254

The Indian federation, “which is an indestructible union of destructible states”, 45 provides for
a strong Union legislature. The imperative for such an arrangement can be explained on the
grounds that it is essential for a pluralistic society like India to have a strong Centre
supervising and holding the states together, while at the same time allowing for the states to
legislate on matters of local concern.

More specifically on the arrangement prescribed in Art. 254, it can be seen there are some
areas of legislation wherein both the centre and the state have a common interest. 46
Elucidating on the same, it can be seen that there are issues where the State has specific local
concerns and must govern them accordingly. State legislations have only intra-state
operation, and often lead to mischief which must be checked and a uniform national policy
must be resurrected.47 This necessitates the intervention of the Union Government.

Sarkaria Commission, it is pointed out, notes that the considerations that weighed in with the
framers of the Constitution in giving a pivotal role to the Central Government had not lost
their relevance and the distribution of power reconciled the imperative for a strong Centre
and the need for State autonomy.48

PROBLEM OF CENTRALISATION OF LEGISLATIVE POWER

The Sarkaria Commission Report on Centre-State Relations observes that, “The unilateralism
of the Union in regard to the exercise of legislative powers under the Concurrent List remains
a potential problem area”.49

44
Id.
45
46
D.D. Basu, INTRODUCTION TO THE CONSTITUTION OF INDIA.
47
S.C. Kashyap, INTRODUCTION TO THE CONSTITUTION OF INDIA.
48
S.C. Jain, THE CONSTITUTION OF INDIA: SELECT ISSUES AND PERCEPTIONS, 122.
49
Sarkaria Commission Report on Centre-State Relations, at 8.2.6.
Often, the Centre enacts laws on subjects enumerated in the Concurrent List which purport to
cover the entire field of legislation. In many cases, the State Governments have complained,
that the Centre tends to use the Concurrent List as a second Union List. This leads to
centralisation of power, a trend not apt for a co-operative federation.

The commission then goes on to suggest that the process of consultation between the centre
and the states must be institutionalized when the Centre decides to legislate with respect to a
matter in the Concurrent List.50 To that end, the practice of convening an Inter-State Council
has found coinage. But the recommendations of the Inter-State Council are not binding on the
Centre and are as such not very significant.

50
Id, at 8.2.12.
 Case for an Alternative Interpretation
THE CASE IN FAVOUR OF THE CURRENT POSITION ON REPUGNANCY AS

APPLICABLE ONLY TO THE CONCURRENT DOMAIN

Rejecting the suggestion made in Ramchandra v. District Board that repugnancy may also
arise where a state law in inconsistent with a Central Law made under List I, Dr DD Basu
contends that such an observation is not sound inasmuch as that would be a case of ‘ultra
vires’, under clause (1) of Article 246 which makes List I entries the exclusive legislative
domain of the central legislature.51

Again, in Educational Society52, the court ruled that the question of inconsistency when it
arises with respect to laws made under the allotted spheres, are settled in the favour of the
Central Legislation by virtue of the non-obstante clause in Article 246(1).53

The preceding issue, as interpreted by our judiciary so far, is one of legislative competence
vis-à-vis vires and not of repugnancy. The legislative competence of the legislatures under
questions of repugnancy is not questioned for repugnancy could arise only when the laws
occupy the same field under the Concurrent List and as such, both the legislature are
competent to enact on concurrent subjects.

The relevance of the doctrine of pith and substance: The laws made by the legislature of a
state or the Parliament with respect to their exclusively allotted spheres may incidentally and
inconsequentially encroach upon the restricted sphere, but as long as it can be shown that the
legislation in its pith and substance falls within the four corners of the allotted sphere, the law
would be intra-vires.

The doctrine of pith and substance has relevance to questions of repugnancy too, although in
an eliminating sense. If it can be shown that a law in pith and substance falls under a State
orUnion entry and any encroachment on a concurrent subject is incidental and
inconsequential, no repugnancy would arise.54

51
Basu, SUPRA NOTE 22, at 197.

52
Educational Society, (2005) 3 SCC 212.
53

Educational Society, (2005) 3 SCC 212.

54
Megh Raj, (1943) 5 FCR 182.
INTERPRETATION OF 254 (1) IN FAVOUR OF A WIDER
APPLICATION
A protracted reading of Art254(1) would show that the phraseology of article 254(1) does not
confine it merely to resolution of conflicts arising out of repugnancy in the Concurrent field.
It does not say that the state law and the central law should belong to the concurrent list only.
The words “in the concurrent list”, is suggested therein to qualify only ‘existing’ laws, which
means that an existing law in the matter of a subject belonging to the concurrent field prevails
over a state law in that area in case of a repugnancy. 55 So far as the post-Constitutional laws
are concerned, the words used are, “which the Parliament is competent to enact”, which are
quite broad and would include laws enacted by the Parliament with respect to both Union and
Concurrent lists- which would mean that if there is an irreconcilable conflict between a state
law falling under the state list and a central law falling under the central list, the later would
prevail over the former by virtue of the provisions of Article 254 itself.56

The same procedure can even be extended to laws made by the Parliament under powers
accorded to it under Articles 252 and 253 of the Constitution, which relate to subjects in the
State list and “the Parliament would not be competent to enact on matters thereon but for the
provisions enshrined under the said articles”.

Consider for example a hypothetical situation where the Central Government, in order to
honour an international treaty to reclaim and re-use burial ground, decides to impose a law
requiring people to relinquish burial grounds after 5 years of the burial in order to conserve
land which is getting scarce in urban areas. Consider also, that a distinct state A, which is not
only abundant in land but also where the majority population by force of ritual necessarily
need to hold the burial ground of their dead for at least 10 years. Now, the conflict between
the two laws, the subsequent repeal or the prevalence of the State law can be governed by the
provisions of Art254, for burial ground being a subject matter in the state list on which the
Parliament is not competent to legislate, it nonetheless “becomes competent to enact by virtue
of the competence accorded by Article 253”.

Thus, to effectuate a treaty a central law may come into conflict with a state list. No doubt
that the Central Law would prevail over the state law, but this result can be achieved only by
invoking the wider meaning of 254(1).57

55
Jain, supra note 1, at 784.
56
Id.
57
Id, at 785.
The observation made in JB Educational Society case and cited in this chapter can also be
extended to constitutionally validate the proposed stand. The non-obstante clause of Article
246(1) only establishes the principle of union supremacy. While it furnishes the basic
principle with which to approach conflicts between laws, it does not set down an elaborate
mechanism to resolve repugnancy, something that Art. 254 provides. And if we are to look up
to Art254 in that sense, we would not only realise that it can be extended to resolve conflicts
between legislations arising out of the privileged competence bestowed on the Parliament
under Articles 252 and 253, but also that just like unforeseen conflicts between federal and
state laws enacted in accordance with the allotted spheres, there is a scope for repugnancy
between state and central laws within the allotted spheres, and these too can be legitimately
resolved by provisions in Article 254, clauses (1) and (2).

What has definitely been elucidated by the Supreme Court is that for the application of this
article, there must be a repugnancy between the two laws. Secondly, if at all there is a
repugnancy, the state law would be repugnant only to the extent of the repugnancy. When an
impugned statute appears to touch two different entries in two lists, then the rule of pith and
substance helps to determine whether the law belongs to this list or that entry. But article 254
(1) is not so much about which entry does the statute occupy as about whether or not there is
repugnancy between the state law and the central law altogether.58

But it does not appear to be sound to confine article 254 (1) to only when the central law falls
within the concurrent list, rather than when the two laws fall in different lists and yet are
inconsistent to some extent, for such a possibility is not entirely inconceivable. In Kanaka
D.H.P. Co. v. State of Kerala59, the SC envisaged the possibility of a repugnancy between a
Central Law in the List 1 and a state act under lists 2 or 3, though in the instant case, no
conflict between the two Acts was found.60

The very discussion of repugnancy by the SC between a state act in the state list and a central
act in the central list in fact reflects the possibility of such a repugnancy. 61Reference can also
be made to SrinivasaRaghavachar v. State of Karnataka.62 The advocates act has been
enacted by the parliament under entry 77 of the union list while the state act was enacted
under an entry in the state list and prohibited advocates from appearing before the land

58
Id.
59
Kanaka D.H.P. Co. v. State of Kerala, AIR 1972 SC 2301 (Supreme Court of India).
60
Jain, supra note 1, at 785.
61
Hingir Rampur Coal Co. v. State of Orissa, AIR 1961 SC 459 (Supreme Court of India).
62
SrinivasaRaghavachar v. State of Karnataka, AIR1987 SC 1518 (Supreme Court of India), [Raghavachar].
tribunal. Here there was a repugnancy between a central law under List I and state law
enacted under List II.63

63
Raghavachar, AIR 1987 SC 1518.
 CONCLUSION
The foregoing analysis of the relevance of the doctrine of repugnancy brings forth some in
salient points.

The doctrine of repugnancy as interpreted by the courts in India, applies to law only when
they are wholly incompatible. The doctrine of harmonious construction asserts that the courts
must interpret the statutes so as to avoid the incidence of repugnancy and safeguard the
legislative sanctity of a legislating authority.

The widely favoured view confines the application of repugnancy to only Concurrent List
enactments. Inconsistencies beyond this field are determined by the application of the
doctrine of pith and substance, and resolved on the question of vires, by invoking the non-
obstante clause of Article 246.

For inconsistencies attracting challenges on grounds of repugnancy as well, in the spiritof

harmonious construction, the doctrine of pith and substance can be used to show that the
State law in pith and substance falls under the State list, and any encroachment on the
Concurrent List is incidental and inconsequential.

The Supreme Court over the years has set down conclusive tests to determine repugnancy. In
summing up the position of Courts before it, the SC in M. Karunanidhi64, laid down the
following premises for determining repugnancy:

“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, 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
the same field seeks to create distinct and separate offences, no
question of repugnancy arises and both the statutes continue to
operate in the same field.”

64
M. Karunanidhi, 1979 AIR 898.
Repugnancy- as opposed to the doctrine of eclipse enshrined in Article 251, which results in
the conflicting law becoming inoperative to the extent of the inconsistency for the time being
when the paramount legislation is in force- renders the repugnant law to be void, and it does
not revive even after the repeal of the overpowering statute, unless the invalid act is validated
by re-enactment. Again, in the case of M. Karunanidhi v. Union of India, it was held that the
same effect would flow to the fate of a Union law with respect to its application in a State
where the State legislation prevails by virtue of the Presidential Assent under Article 254(2).

The present judicial position on repugnancy has various political implications. While the
insulation of the laws under State List from scrutiny from the angle of repugnancy accords
freedom to the State Legislature to legislate on matters in the State list, the supremacy of the
Centrehas led to a situation where Centre by its laws has professed a tendency to occupy
entire fields in the Concurrent List to its exclusive jurisdiction. There has also been a trend to
use the provision of the President’s assent to further the policy of the Central government in
the States instead of allowing for repugnant but locally essential laws to operate in the states
based on discretion formed on policy prudence and in the spirit of the constitution.

The most stirring issue, however, has been the drive to interpret Art 254 in a wider fashion, to
expand its scope beyond concurrent field conflicts, which would subject even Articles 252
1nd 253 to it.

The rationale proposed is that the phraseology of the provisions allows for much wider
application, that the words “in the Concurrent List” are suggested to qualify only existing
laws, and insofar as post-Constitutional laws are concerned, the words “which the Parliament
is competent to enact” apply thereon. It is also proposed that the provisions in Article 246
only provide the guiding principle, subject to which Article 254 must provide for a more
comprehensive dispute resolution mechanism.
 BIBLIOGRAPHY
BOOKS

1. A.P. Datar, COMMENTARY ON THE CONSTITUTION OF INDIA , Vol. II, (2ndedn.,

2007).
2. A.R. Lakshmanan, WHARTON’S LAW LEXICON, (15thedn., 2009).
3. D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. IV.
4. D.D. Basu, COMPARATIVE FEDERALISM, (2ndedn., 2008).
5. D.D. Basu, INTRODUCTION TO THE CONSTITUTION OF INDIA.
6. E.A. Elizabeth, OXFORD DICTIONARY OF LAW, (5thedn., 2003).
7. M.P. Jain, INDIAN CONSTITUTIONAL LAW, Vol. 2, (5thedn., 2003).
8. S.C. Jain, THE CONSTITUTION OF INDIA: SELECT ISSUES AND PERCEPTIONS.
9. S.C. Kashyap, INTRODUCTION TO THE CONSTITUTION OF INDIA.

ARTICLES
1. B. Jain, GUJTOC Unlikely to Face Central Hurdle, THE TIMES OF INDIA 14
(Bangalore edn., April 1, 2015).

REPORTS
1. Report of the Sarkaria Commission, available at
http://interstatecouncil.nic.in/Sarkaria_Commission.html.