DOCTRINE OF REPUGNANCY
The Constitution of India vests the law-making power in the Union Parliament and State Legislature in terms of varied Articles read with Schedule VII. The said Schedule provides that List I have fields allocated for the parliament, List II has fields within the exclusive domain of the State Legislature and List III has a domain that carries concurrent powers to form laws. Article 254 of the Indian Constitution, it provides that a law on a subject- matter prescribed in List III enacted by the State Legislature would be valid only in the case where it is not in conflict with a law made by the parliament on an equivalent subject matter. Therefore, in order to shed light and bring certainty, the doctrine of Repugnancy came into being, which is employed so as to ascertain when and where a state law turns repugnant to the Parliamentary legislation.
The doctrine of repugnancy is introduced in the constitution in Article 251. Article 251 talks about the inconsistency between laws made by the Parliament under Articles 249 and 250 and laws made by the Legislature of the States. Articles 249 and 250 are both exceptions to Article 246, where Article 249 is regarding the power of Parliament to legislate with respect to a matter in the State List in the National interest, and Article 250 deals with the power of the Parliament to legislate with respect to any matter in the State List if a proclamation of emergency is in operation. Article 251 is as follows:
“Nothing in articles 249 and 250 shall restrict the power of a legislature of a State to make any law which under this Constitution it has the power to make, but if any provision of the law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the legislature of the State, shall prevail, and the law made by the legislature of the State shall to the extent of repugnancy, but so long only as the law made by Parliament continues to have an effect, be inoperative.”
The repugnancy addressed by this article is very specific in nature. Meaning, it aims to resolve a particular conflict, i.e., in context of the articles 249 and 250. It is important to note that these articles deal with a temporary situation and hence the laws made by the Parliament during this period are also temporary. Article 251 very clearly mentions that in case of conflict or inconsistency between laws made by the Parliament or the State legislature under articles 249 and 250, the laws made by the Parliament shall prevail. This is regardless of the matter that the laws were made before or after the State legislature made the laws.
Going by Articles 249 and 250, there are two circumstances when the Parliament can invade the State List. Firstly, where an entry or entries in the State List assume national importance. However, this is provided that a resolution is passed by a two-thirds majority in favor of such exercise of the power by the Union by the Council of States. Secondly, where a proclamation of Emergency has been issued by the President.
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), 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.
The above-mentioned article is derived from the Section 107 of the Government of India Act, 1935. The inconsistency referred to in this article is very general in nature as compared to the very specific nature of article 251. The first clause of this article refers to the inconsistency between any law made by the Legislature of the State and any existing law with respect to entries given in the Concurrent List or any law made by the Parliament which it is competent to enact. In such a case, the law made by the central legislation shall prevail. This, again, is regardless of the matter that the laws were made before or after the State legislature made the laws.
A key difference between the repugnancy addressed in the Article 251 and Article 254 is that in the former Article, the law made by the State becomes inoperative when it comes in conflict with the central law while in the latter the State law becomes void. It means that the State law remains dormant till the time the law made by the Parliament is in force under Article 251. This is due to the temporary nature of Article 249 and Article 250. According to Clause (2) of the Article 249, the resolution passed shall not remain in force for more than one year. And as given under Article 249 (3), the law made by the Parliament will cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period. Similar meaning can also be derived from Article 250 (2). Both the above-mentioned clauses of the said articles point towards the transient nature of the laws made by the Parliament. However, in case of repugnancy as mentioned under Article 254, the State law becomes void. This is because the laws made by the Central Legislation are treated as perpetual, unlike under Article 251.
What are existing laws?
In accordance with the Article 372, existing laws are those laws which have been in force in the territory of India immediately before the commencement of the Constitution and continue to remain in force therein until altered or repealed or amended by a competent Legislature or a competent authority. Existing laws refer to those laws which were not made by the existing Parliament on subject matter which are in the Concurrent List, but they were made under different parent laws which were repealed. The existing laws remain in force due to virtue of Article 372. Subjects like marriage and divorce, transfer of property other than agricultural land, criminal law, civil procedure, contracts and evidence are included in the Concurrent List.
In State of Assam v. Horizon Union, an Act of the Assam legislature of 1962 prescribed that the Presiding Officer of the Industrial Tribunal shall be a person who has worked as District Judge for not less than three years and shall be appointed with consultation of the High Court. By the Central Act passed by the Parliament in 1964 on the same subject, there was no condition of consultation with the High Court. It was held that the Central Act was intended to be an exhaustive code in respect of the subject-matter. The Central Act occupied the field, and, accordingly, the Assam Act on the subject was held repugnant to the Central Act.
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.
Clause (2) mentions an exception to the clause (1) of the said Article. It aims to say that whenever there is any provision in the law made by the State Legislature repugnant to the provisions of any earlier Act of Parliament, or of any existing law with respect to that matter, then in order that the law made by the State Legislature may be effective and operative, the assent of the President has to be obtained with regard to it. For the application of Clause (2), the important thing to consider is whether the legislation is in respect of the same matter. If the latter legislation deals with the matter which forms the subject of the earlier legislation but with the other and distinct matters, though of a cognate and allied character, then Article 254(2) will not have any application.
Proviso in respect of Clause (2):
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.
It is apparent that Clause (2) of this Article aims to restrict the power of the parliament. However, the proviso given under the said Clause again gives power to the Parliament to supersede State Legislation. When we compare this with the Proviso given under Section 107 of the Government of India Act, 1935, it can be clearly seen that powers given to the Central Legislation have been enlarged. In Zaverbhai Amaidas v. State of Bombay, the state legislation had provided 7 years punishment for a certain affects the subsequent Central legislation fixed three years as punishment for the same offence it was held that there was repugnancy, and the state law was therefore inoperative in such a case it would be no defence to argue that it is possible to obey both the laws.
-Written by Disha Joshi