The Doctrine of Repugnancy in the Constitution of India
According to the Article 254 (1), any provision of law formed by the Legislature of the State is repugnant to any provision of law formed by Parliament which is competent to enact or to any provision of the prevailing law with reference to one among the matters enumerated within the Concurrent list, then the law made by Parliament, whether passed before or after the law made by the Legislature of such stage or, because the case could also be , the prevailing law shall prevail and therefore the law made by the legislature of the State shall, to the extent of the repugnancy be void.
Article 254 (1) only applies where there’s inconsistency between a Central Law and a State Law concerning a subject mentioned within the Concurrent List. Article 254 of the Constitution is merely applicable when the State law is in ‘Pith and Substance’ a law concerning an entry within the concurrent list on which the Parliament has legislated. The biggest question is how the repugnancy is to be determined? In M. Karunanidhi v. Union of India, consistent with all the sooner decisions Fazal Ali, summarised the test of repugnancy. A repugnancy would arise between the 2 statutes within the following situations consistent with him:
- It must be shown that there’s clear and direct inconsistency between the 2 enactments (Central Act and State Act) which is irreconcilable, in order that they can’t stand together or operate within the same field.
- There is often no repeal by implication unless the inconsistency appears on the face of the 2 statues.
- Where there’s no inconsistency but a statue occupying an equivalent field seeks to make distinct and separate offences, no doubt of repugnancy arises and both the statutes still operate within the same field.
- Where the two statutes occupy a selected field, but there’s room or possibility of both the statutes operating within the same field without coming into collusion with each other , no repugnancy results.
The above rule of repugnancy is, however, subject to the exception provided in clause (2) of this text . According to clause (2) if a State Law with reference to any of the matters enumerated within the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament, or an existing law with respect of that matter, then the State Law if it’s been reserved for the assent of the President and had received his assent, shall prevail notwithstanding such repugnancy. But it might still be possible for the Parliament under the supply to clause (2) to override such a law by subsequently making a law on an equivalent matter. If it makes such a law the State law would be void to the extent of repugnancy with the Union Law. The question of repugnancy between the Parliamentary Legislation and State Legislation arises in two ways. First, where the legislations are enacted with reference to matters allotted in their fields but they overlap and conflict. Second, where the two legislations are with respect to the matters in the concurrent list and there is a conflict. In both the situations, the Parliamentary Legislation will predominate, in the first by virtue of the non – obstante clause in Article 246 (1) and in the second by reason of Article 254 (1).
In Deep Chand v. State of U.P., during this case the validity of U.P. The Transport Service Development Act got involved. Through this Act the government was authorised to implement the Scheme for nationalisation of Motor Transport within the State. As, the automobiles Act, 1939 didn’t contain any provision for the nati onalisation of Motor Transport Services was necessitated by the law. The Parliament in 1956, willed to introduce a consistent law which was amended within the automobiles Act,1939. A replacement provision was added enabling the government to border rules of nationalisation of Motor Transport. Since, both the Union Law and State Law occupied an equivalent field, the Court held that the State Law is void to the extent of repugnancy to the Union Law.
Repugnancy – Assent of the President looked for a specific purpose would be limited thereto and can’t be extended beyond it – In Krishi Upaj Mandi Samiti, Narsinghpur v. M/s Shiv Shakti Khansari Udyog, the mechanism enshrined within the Sugarcane Control Order, 1996 issued under Section 3 of Essential Commodities Act, 1955 ( a Central Act) and M.P. Krishi Upaj Mandi Adhiniyam,1973 called the Market Act regarding the determination of the worth of the notified agricultural produce brought into the market yard purchasable which couldn’t be but the support price declared by the government . One among the questions involved was whether the Market Act would prevail over Control Order. The plea that the Market Act was enforced after taking the assent of the President and hence it might prevail was held to be not tenable since the Act had not been reserved for Presidential assent on the bottom of repugnancy between the Act and Control Order. The assent of the President isn’t an empty formality and therefore the President has got to be apprised of the rationale why his assent is being sought. If the assent is looked for a selected purpose, it might be limited thereto purpose and may not be extended beyond it.
Validation Act :- It is the exclusive power of the legislature to validate an invalid law or to legalise an illegal action. It is not an encroachment on the judicial power of the Court. But, when the validity of any such Validation Act is called in question, the Court would have to carefully examine the Law and determine whether 1)the vice of invalidity that rendered the act, rule, proceedings or action invalid has been cured by the validating legislation, 2) whether the legislature was competent to validate the Act, action, proceedings or rule declared invalid in the previous judgements. 3) whether such validation is consistent with the rights guaranteed by Part -3 of the Constitution when all these three questions are answered in the affirmative, the Validation Act can be held to be effective and the consequence flowing from adverse pronouncement if the Court held to have been neutralized.
Author: Shaheera Sultana,
NBM Law College, 2nd year