DOCTRINE OF REPUGNANCY

Constitutional Law Project

Submitted To: - Submitted By:-

Dr. Asad Mallik Sb. Hasan Al-Banna

B.A. LL.B (Hons.), SF, 3rd Semester

 Acknowledgment
It is not possible to prepare a project report without the assistance and encouragement of other
people. This one is certainly no exception. On the very outset of this project we would like to
extend our sincere and heartful obligation towards all the personages who helped us in this
endeavor.

We would like to express our special thanks of gratitude to Dr. Asad Malik Sb. who gave us the
golden opportunity to this wonderful project ‘DOCTRINE OF REPUGNANCY’. It helped us in
doing a lot of research through which we came to know about so many new and important things.

We would also like to thank our parents for their moral and financial support for this project.
 Contents

1) Introduction

2) Objective of Repugnancy.

3) Doctrine of Repugnancy in context of Indian Federalism

4) Repugnancy under Article 254.

5) Conclusion
 DOCTRINE OF REPUGNANCY

Introduction:-

The doctrine of repugnancy is influence by one of the basic idea of distribution of power, it

deals with the situation when a lower authority or administration makes law on some matter, and

the higher authority makes law on the same matter then the lower authority’s law becomes

invalid or void. The paramount authority’s law prevail on the lower authority’s law. If we talk

about it, in Indian scenario the law made by legislature of a state is become void if any provision

of a law made by Parliament on concurrent list contravention on the same subject-matter. That

means the Parliament Law prevail on Legislatures’ Law is repugnant to it. In simple word

Repugnancy means the quality or fact of being inconsistent, irreconcilable, or in disagreement. In

the case of Lehman v. U. S, court defined the meaning of Repugnancy “An inconsistency,

opposition, or contrariety between two or more clauses of the same deed or contract, or between

two or more material allegations of the same pleading”.1

Repugnancy could be arises on three dimension, firstly when there is ‘Direct conflict’

between the two statute authority. One statutory body says “Do” and other says “Don’t”. This is

the direct and clear collision between the Center Act and State Act. There is impossible to obey

the both Act. One must has to disobey, this is the clear inconsistency. Second dimension in

1
Lehman v. U. S., 127 Fed. 45, 61 C. C. A. 577.
which Repugnancy may arise is ‘Occupied field’, in this case there is no direct collision between

two statutory authority but the occupied the same domain which may resulted of Repugnancy.

The third and last dimension of Repugnancy ‘Intended Occupation’ which is the most critical but

the fog situation. In this case there is no direct conflict and capturing of the right because of its

character of blurred one party intended to occupy the other rights by the back door. That is why

according to Black’s Law dictionary the repugnancy means “repugnancy as an inconsistency or

contradiction between two or more parts of a legal instrument such as a statute or a contract.”2

As in the case of Zaveri bhai Amidas v. State of Bombay3 the court held that the punishment of

seven years of imprisonment awarded by the state legislation for an offence to be inconsistent as

the central legislation has awarded three years of imprisonment for the same offence. The reason

behind taking such a decision was that the central legislation has already constituted a code

covering all the offences of the concerned Act, hence, to a great extent that it falls in the ambit of

the “same field” in the concurrent list. Therefore, it is not mandatory for a legislation to say “do”

or “don’t” until they fall in the category of same field.

OBJECTIVE OF REPUGNANCY:-

The objective of this article is to explain the distribution of legislative powers between centers

and states in general and its main object is deals with the Doctrine of Repugnance under Article

254 of the Indian Constitution. The Constitution of India the lawmaking power between the

Union Parliament and State Legislatures in terms of its various provisions read with Schedule

2
http://legalserviceindia.com/legal/article-964-the-doctrine-of-repugnancy-in-the-indian-constitution.html
3
Zaverbhai Amaidas vs The State Of Bombay, 1954 AIR 752
VII. It therein distributes the subject-matters over which the two are competent to make laws;

List I being the fields allocated for the Parliament, List II being those within the exclusive

domain of the State Legislatures and List III represents those areas where both carry concurrent

powers to make laws. The Constitution, however, itself provides [vide Article 254] that a law on

a subject-matter prescribed in List III enacted by the State Legislature would be valid only in the

absence of or not being contrary to a law made by the Parliament on the same subject-matter.

Thus has developed the doctrine of repugnancy which is employed to test as to when and where

a State law turns repugnant to the Parliamentary legislation.

Doctrine of Repugnancy in context of Indian Federalism:-

Part XI of the Indian Constitution talks about the legislative relations between the States and

the Centre. According to article 246 the Legislative power of the Parliament and the Legislature

of a State, describe three list of distribution of power. It says that 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. Secondly, 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 the State List in the

Seventh Schedule. And the third list talks about the “Concurrent list,” It says the Parliament and

the Legislature of any State have power to make laws with respect to any of the matters

enumerated in the List III or Concurrent List in the Seventh Schedule. Under this article there is

no doubt about the supremacy of powers of Parliament over State Legislature, it has been laid

down certain grounds where it could clearly observed. Parliament of India also has many

additional powers over State under different article of the constitution. So by this if we observe
in terms of Federalism, it shows a unitary feature and the idea of “Quasi-federalism” reflected in

this article. In the case of In State of Kerala v. Mar Apparaem Kuri Co. Ltd.4 the question

involved was whether the Kerala Chities Act, 1975 became repugnant to the Central Chit Funds

Act, 1984 upon the enactment of Central Act i.e. 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 arises on making of the law and not on its enforcement.

The reason given by the Court is that the verb “made” in past tense finds place in the Head Note

to Article 245. The verb “make” in the present tense exists in Article 245 (2) and the verb

“made” finds place in Article 246. The word “made” has also been used in Article 250(2). The

word “make” and not “commencement” has a specific legal connotation meaning thereby “to

legislate”.

Article 245 of the Indian Constitution 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. But

no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-

territorial operation. Further in article 13 (2) which control the power of Parliament which says

“The State shall not make any law which takes away or abridges the rights conferred by this Part

and any law made in contravention of this clause shall, to the extent of the contravention, be

void.” That means Parliament should follow the rules which lay down in Indian constitution and

if Parliament extent his jurisdiction, they must be struck down by the Judiciary under the judicial

review.

4
State of Kerala v. Mar Appraem Kuri Co. Ltd., (2012) 7 SCC 106
.
There are also conflict in entries of the Union and state list like entry 23 of state and entry 54 of

union both are talk about the regulation of mines and minerals, as Entry 23 of the State List state

that “Regulation of mines and mineral development subject to the provisions of List I with

respect to regulation and development under the control of the Union.”. However, it is expressly

subject to the provisions of the Union List with respect to regulation and development under the

control of the Union. Entry 54 of the Union List provides for “Regulation of mines and mineral

development to the extent to which such regulation and development under the control of the

Union is declared by Parliament by law to be expedient in the public interest”. The jurisdiction

of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of

the entry. The Supreme Court in Hingir-Rampur Coal v. State of Orissa5 categorically spelled out

that if a central act has been passed which contains a declaration by Parliament as required in

Entry 54, and if the said declaration covers the field occupied by the impugned act, the impugned

act would be ultra vires, not because of any repugnance between the two statutes but because the

State Legislatures had no jurisdiction to pass the law

Repugnancy under Article 254:-

Article 254 establishes the doctrine of Repugnancy which acts as a safeguard to solve

disputes arising between the states and the Union. It describe the mechanism for resolution of

conflict between states and center with respect to any matter enumerated in List 3 of the seven

schedule. According to Clause (1) of Article 254, if any provision of a State law is repugnant to a

provision in law made by Parliament which it is competent to enact or to any existing law with respect

5
Hingir-Rampur Coal v. State of Orissa, 1961 SCR (2) 537
to or matter in Concurrent List then the parliamentary or existing law prevails over the State law, and it

does not matter whether the parliamentary law has been enacted before or after the State law. To the

extent of repugnancy, it will be void. Clause (2) of Article 254 provides that where a law made

by a State Legislature with respect to a matter in the Concurrent List contains any provisions

repugnant to the provisions of an earlier parliamentary law or existing law with respect to that

matter, then the State law will prevail in the State provided it has been reserved for the

President’s consideration and has received his assent.

In the case of M. KARUNANIDHI V. UNION OF INDIA,6 the Constitution Bench of the apex

Court held that where the principles to be applied for determining repugnancy between a law

made by the Parliament and a law made by the State Legislature were considered by a Honorable

court in this case said, “where the provisions of a Central Act and a State Act in the Concurrent

list are fully inconsistent and absolutely irreconcilable, the Central Act will prevail and the State

Act will become void in view of the repugnancy”, and laid down following conditions which

must be satisfied before any repugnancy could arise. "1. That there is a clear and direct

inconsistency between the Central Act and the State Act. 2. That such an inconsistency is

absolutely irreconcilable. 3. 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." In this case

Supreme Court clearly summarized the battle of federal structure. But now question arise on the

supremacy and power of state. As B. R Ambedkar said “The one is not subordinate to the other

in its own field; the authority of one is coordinate with that of the other."7

6
M. Karunanidhi v. Union of India, [(1979) 3 SCC 431]
7
Bhagwan Vishnoo& Bhushan Vidya “Indian Administration” S Chand & Co Ltd, page no. 71 ( edition fourth, 2010)
Govt. of A.P. v. J.B. Educational Society – 2005, the court held that “There is no doubt that both

Parliament and the State Legislature are supreme in their respective assigned fields. It is the duty

of the court to interpret the legislations made by Parliament and the State Legislature in such a

manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments

are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the

parliamentary legislation would prevail notwithstanding the exclusive power of the State

Legislature to make a law with respect to a matter enumerated in the State List. 8

In the case of State of West Bengal vs. Kesoram Industries Ltd9 “While reading the three lists,

List I has priority over Lists III and II and List III has priority over List II. However, still, the

predominance of the Union List would not prevent the State Legislature from dealing with any

matter within List II though it may incidentally affect any item in List one.

Conclusion

The constitution of India has been called quasi-federal in nature that means the doctrine of

repugnancy and spirit of federalism both are protected. This is due to the fact that the

constitution has several unitary as well as federal features. However, the founders of our

constitution defined it as a federal one.

Article 254 is a classic example of how both unitary and federal features exist in the Indian

constitution. The Article provides that in case of a conflict between a central and a state law on

the same subject, the provisions of the central law will prevail over the conflicting provisions of

8
Govt. Of A.P. & Anr vs J.B. Educational Society & Anr. on 23 February, 2005
9
State of West Bengal vs. Kesoram Industries Ltd. (2004) 10 SCC 201
the same law. It even provides the parliament with the power to expressly repeal an earlier state

law by enacting a subsequent legislation. The object for which a federal State is formed involves

a division of authority between the Central Government and the State Government.

The one is not subordinate to other in its own field, the authority of one to co-ordinate with that

of the other. In fact, the basic principle of Federalism is that the legislature, executive and

financial authority is divided between the Center and the State not by any laws passed by the

Center but by the Constitution itself. As stated earlier that India has a Federal Constitution and

there is distribution of powers between the State and the Center in the similar manner the

Constitution of India has also conferred upon the Center and the State the power to make laws.
 Bibliography

1. M P Jain Indian, Constitutional Law, (LexiNexis; Eighth edition. 4th February 2018)

2. Dr. J.N. Pandey, Constitutional Law of India, (Central Law Agency, 2019)

3. Universal editorial Board, Bare Act, The Constitution of India as amended by The

Jammu and Kashmir Reorganisation Act, 2019 Bare Act with Short notes, (Universal

Publication, 2019)

4. D. D. Basu, Introduction to the Constitution of India, (Lexis Nexis; Twentieth edition,

2011)

5. www.IndianKanoon.com/Repugnancy

6. By Arsia, The Doctrine of Repugnancy In The Indian Constitution, available at:

http://www.legalserviceindia.com/legal/article-964-the-doctrine-of-repugnancy-in-the-

indian-constitution.html

7. By Urmilesh Kumar, Short Speech on the ‘Doctrine of Repugnancy’, available at:

http://www.shareyouressays.com/knowledge/short-speech-on-the-doctrine-of-

repugnancy/115281