DOCTRINE OF REPUGNANCY

SUBJECT: CONSTITUTIONAL LAW II

P R O J E C T TO P I C :
DO CTR INE O F REP UG N AN CY

Submitted By
RICHA JOSHI
Roll no. 1225
th
3 Year, 6 Semester, B.B.A.LL.B(Hons.)

Submitted to
Prof. (Dr.) A.Subrahmanyam
Faculty of Constitutional Law- I

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

APRIL , 2017

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ACKNOWL EDGEME NT

I take this opportunity to express my profound gratitude and deep regards to my guide
Dr. A. Subrahmanyam for his exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The blessing, help and guidance
given by him time to time shall carry me a long way in the journey of life on which I am
about to embark.
I also take this opportunity to express a deep sense of gratitude to my seniors, the library
staff and my friends for their valuable information and guidance, which helped me in
completing this task through various stages.
I would also thank my institution and my faculty members without whom this project
would have been a distant reality. I also extend my heartfelt thanks to my family and well
wishers.

-RICHA JOSHI

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AI M S A N D O B J E C T I V E S

No stone has been left unturned to make this project a worthy task. To let it not go a futile
exercise every possible step has been taken. It is being believed by the researcher that it will
open a door of success in making many such academic researches and even better than it,
when needed.

It would quench the thirst for academic excellence and dealing with such wrong in real
life, if continued. Besides this it will also fulfill the desire of the researcher to contribute
services to the society.
The objective of this project is to explain the distribution of legislative powers between the
centre 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 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.

S OURCES OF DATA

The following secondary sources of data have been used in the project-

1. Articles/Journals

2. Books

3. Websites

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M ETHOD OF WRITING AND M ODE OF CITATION

The method adopted in making this project is the Doctrinal Method of research. Doctrinal
Study basically deals with theoretical study which includes use of Journals, Articles,
Newspapers, Websites, and Book etc. which shows in itself the very pattern of study.

This method of study is adopted because it is less exhaustive, less time consuming and
most importantly it deals with library study in general. And as a matter of fact, it is one of the
best method to be adopted so as to get authentic material and provides numerous solutions to
the problems.

STATEMENT OF PROBLEM

If conflict is between two laws or their incidentally encroaching provisions and one or, both of
the laws, belongs to the exclusive field, a question of power is involved but when the laws
relating to the same matter are applicable at the same time there will be a question of
repugnancy.

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T ABLE OF CO N T EN TS

1. I NTRODUCTION ---------------------------------------------------------------------------------- 6

2. DOCTRINE OF REPUGNANCY ----------------------------------------------------------------- 7

2.1. Conflict between Exclusive Jurisdictions-------------------------------------------------- 7

2.2. Conflict in Concurrent List------------------------------------------------------------------ 8

2.3. Problems arising in Concurrent Sphere-------------------------------------------------------10

2.4. Ultra Vires and Repugnancy-------------------------------------------------------------------10

2.5. Inconsistency and repugnancy-----------------------------------------------------------11

2.6. Sources of Concurrent Jurisdiction------------------------------------------------------------11

3. REPUGNANCY BETWEEN UNION AND STATE LAWS----------------------------------------- 13

4.1. Interaction of Several Clauses of Article 254------------------------------------------- 15

4.2. Repugnancy Inconsistency and Implied Appeal------------------------------------- 16

4.3. Some general Rules related to Repugnancy---------------------------------------------- 18

4.4. Validation of Presidents Assent------------------------------------------------------- 18

4. JUDICIAL APPROACH -----------------------------------------------------------------------------20

5. EFFECTS OF REPUGNANCY ---------------------------------------------------------------------23

8. CONCLUSION AND SUGGESTIONS-------------------------------------------------------------24

9. REFERENCES ----------------------------------------------------------------------------------------------- 25

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1. INTRODUCTION

Part XI of the Indian Constitution describes the legislative relations between the States and
Centre. Article 254 which establishes the doctrine of Repugnancy is one of the laws laid
down under the Indian Constitution as a safeguard to solve disputes arising between the states
and the Union. Repugnancy is meant to express conflict, whereby there is an expressed
inconsistency between the State-made law and the Union-made law.
Article 254 of the Constitution, and its predecessor Section 107 of the Government of India
Act, 1935 use the term repugnancy to describe the incompatibility between the Union and
State laws in the concurrent field. Repugnancy seems to have been used to mean
inconsistency as the marginal notes to these sections refer to inconsistency between them.
The meaning of both the terms seems to be the same. The terms inconsistency and invalid
are used in section 109 of the Australian Constitution instead of the words 'repugnant' and
'void' used in the Indian Constitution. The use of the tens 'void' to describe the status of
repugnant State law which is capable of becoming valid again if the Union law is repealed is
not very apt. Therefore the phraseology adopted in the Australian Constitution in this regard
seems to be preferable.
Before the tests for determining repugnancy are considered, it is necessary to dispose of
certain instances which seemingly involve repugnancy, but which on closer scrutiny are not
instances which attract article 254(1) of the Constitution.
The Supreme Law of Democratic India i.e. Constitution of India, vests the law-making power
between the Union Parliament and State Legislatures in terms of various Articles read with
Schedule VII. It further provides 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 Indian Constitution through
Article 2541 provides that a law on a subject-matter prescribed in List III enacted by the State
Legislature would be valid only in case, where it is not in contravention to a law made by the
Parliament on the same subject-matter. Thus in order to put more light and certainty the
Doctrine of Repugnancy came in to picture as a principle, which is employed so as to
ascertain when and where a State law turns repugnant to the Parliamentary legislation.1

1 SEE ALSO TARUN JAIN , DOCTRINE OF REPUGNANCY: THE LAW REVISITED, Available at
http://legalperspectives.blogspot.in/2010/05/doctrine-of-repugnancy-law-revisited.html. (Last accessed on
26/03/2017).

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2. DOCTRINE OF REPUGNANCY

2.1 Conflict between Exclusive Jurisdictions

The question of a conflict between union and state jurisdiction primarily arises where the
constitution provides two exclusive lists, as in Canada and in India. Since the question is a
legal question, its solution must also be legal, and thus calls for legal interpretation of the
constitutional instrument by the courts.
So far as Canada is concerned, the general principle evolved by the courts in interpreting the
conflicts between ss. 91 and 92 of the British North America Act, 1867, have been already
stated. In the present context the problem will be more fully dealt with in relation to the
Indian constitution.
In the present context, we are not concerned with those overriding provision of the Indian
constitution which have the effect of superseding, the normal distribution of powers made by
the 7th Sch. In specified contingencies, such as article 249-253, which we have just been
mentioned. Now we shall confine ourselves to a normal situation when there is no question of
applying such extraordinary provisions, giving overriding powers to the Federal legislature,
invading the state field.
As already explained, in the normal situation, while a State Legislature shall have exclusive
jurisdiction to make laws for its State with respect to any subject enumerated in List II of the
7th Sch. [Art. 246(1)], the Union Legislature shall have exclusive jurisdiction to make laws
relating to any of the subjects specified in List I [Art. 246(1)]. Since a Union law operates
over the entire territory of India [Art. 245(1)], laws made by both the Union and State
Legislatures operate within the territory of each State. Hence, arises the possibility of a clash
between a Union and a State law, within a particular State in case they profess to relate to the
same subject of legislation. The problems relating to such conflict may conveniently be
discussed under several heads.
The simplest case is where one of the two competing Legislatures professes to directly
legislate as regards a subject which belongs to the Exclusive List of the other Legislature. In
such a situation, the doctrine which is applicable is that of ultra vires, namely, that the
Legislature having transgressed its own powers and invaded a field assigned by the
Constitution exclusively to another Legislature, the law made by it is incompetent and

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void.64 65 Under the Indian Constitution, such a situation may arise when a State Legislature
makes a law relating to a subject included in the Union List, such as Defence (Entry 1 of List
I). Conversely, a Union law would be ultra vires, if it deals directly with a subject included in
the State List, e.g., Local government (Entry 5 of List 11), without any constitutional
provision sanctioning such enlargement of the federal jurisdiction and invasion into the State
sphere2.

2.2 Conflict in Concurrent List

The object of a concurrent list of subjects, over which the union and the units have concurrent
power, is uniformity of legislative action. Since the plan of three lists in the constitutions has
been adopted from the Government of India Act, 1935, it would be profitable to refer to the
observations of the joint parliamentary committee, on the point.
"Experience has shown, both in India and elsewhere, that there are certain matters which
cannot be allocated exclusively either to a Central or to a Provincial Legislature, and for
which, though it is often desirable that Provincial Legislation should make provision, it
equally necessary that the Central Legislature should also have a legislative jurisdiction, to
enable it in some cases to secure uniformity in the main principles of law throughout the
country, in others to guide and encourage provincial efforts, and in others again to provide
remedies for mischiefs arising in the provincial sphere but extending or liable to extend
beyond the boundaries of a single province.
Instances of the first are provided by the subject-matter of the great Indian Codes: of the
second by such matters as labour legislation, and of the third by legislation for the prevention
1 and control of epidemic disease.
It would in our view be disastrous if the uniformity of law which the Indian Codes provide
were destroyed or whittled away by the uncoordinated action of Provincial Legislatures. On
the other hand, local conditions necessarily vary from Province to Province, and Provincial
Legislatures ought to have the power of adapting general legislation of this kind to meet the
particular circumstances of a Provillce3.
Prof. Wheare4 opposes the creation of a Concurrent List on the ground that the more the
number of words to be interpreted by the courts, the greater arises the scope for litigation and
consequent uncertainty. The question is whether this I uncertainty is greater than that which

2Ref. under Art. 143, AIR 1965 SC 745 (762).

3 Joint parliamentary committee on Indian constitutional reforms, 1934, para 51.
4 A criticism of concurrent jurisdiction is to be found in wheare, federal Government, (1963) pp-78.

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results from the American system which uses the minimum number of words in one list and
leaves the rest to judicial decisions. It is precisely to avoid such uncharted wide sea for
judicial speculation that the framers of the Government of India Act, 1935, thought it
advisable to engraft a Concurrent List and the framers of the Constitution of India have
adopted that scheme, obviously, because the experience of the working of the third List was
not discouraging. Further, instead of giving up the Concurrent List, the trend since 1950 is to
transfer to it several Entries from the States' exclusive Listen order to secure uniformity of
legislation. It is remarkable that many of the post-war Constitutions have adopted a Con-
current List. The most conspicuous of these is the Constitution of West Germany, (1949),
which has [Arts. 72 and 74J some 27 subjects in the Concurrent List, with respect to which
the Federal Legislature shall have the power to legislate whenever the interests of uniformity
and effective national control demand federal legislation. It is further noticeable that 3
subjects have been added to the original list of 24, by amendments subsequent to 1949.
The Constitution of Malaysia (1957) has also adopted a Concurrent List [Art.74 (2); List III
of the 9th Sch.]. Likewise, the Constitution of Nigeria (1979) contains a Concurrent List of as
many as 30 subjects [s. 4(4)(a); Part II of the 2nd Sch.]
There are some advocates of State autonomy in India: who still urge that the Constitution
should be revised in order to confine the jurisdiction of the Union t the three subjects of
Defence, External Affairs and Communications. But, apart; from anything else, this plea runs
counter to the lesson derived from a comparative study of Federal Constitutions over the
world. The needs of society have undergone momentous and extensive changes since the 18 th
century which gave birth to the American constitution or even the belonging of the 20 th
century which saw the enactment of the Australian constitution Act.
Even the Exclusive Union List (List I of the 7th Sch.) comprehends more subjects than in any
other Constitution, because, as has been explained at the outset, the perspective of the makers
of the Indian Constitution swung from residuary State powers to residuary Union powers as
soon as the Partition of India took place, creating a foreign State through the heart of India. It
is impossible to put the clock back so long as that situation which needs a strong Union
government continues. On the other hand, that situation has aggravated at the time of writing
these pages, when India stands surrounded on all sides by aggressive external forces and torn
by divisive forces within.

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2.3 Problems arising in the Concurrent Sphere

Where there is a Concurrent List of legislative subjects (as in the Indian Constitution), the
Federal and State Legislatures are both competent to legislate with respect to the same subject
(as specified in the Concurrent List). The question is, therefore, bound to arise as to which of
such laws enacted by the two Legislatures should prevail in case they cannot stand together.
The Constitution itself may indicate (as does Art. 254 of the Indian Constitution) what would
be the result of a clash between such competing legislation. Apart from such express pro-
vision in the Constitution itself, the task of resolving such conflict must be undertaken by the
Courts which have accordingly evolved general principles and tests to determine such
'inconsistency' or 'repugnancy', to supplement or amplify the constitutional provisions.
Even under Constitutions which do not provide any Concurrent List, such as the U.S.A.,
Australia or Canada, judicial interpretation of the exclusive Lists has led to the result that
there is an area where the exclusive jurisdictions of the Federal and State Legislatures
overlap, so that within that area the Courts treat the legislative power as concurrent or
common to both the Legislatures. Once this position is reached, the question of conflict
between laws made by the two Legislatures is bound to arise, and the Courts must offer the
solution. Hence, even under Constitutions of this group, Courts have had to lay down the
principles which are, but for differences in detail, broadly universal. Before entering into a
discussion of these principles, it would be useful to distinguish between several concepts
which often create confusion owing to thoughtless thinking.

2.4 Ultra Vires and Repugnancy

Ultra vires is more fundamental than repugnancy. Shortly speaking, ultra vires refers to
incompetency, while repugnancy refers to inconsistency.
When a Legislature professes to legislate with respect to a subject which does not belong to
its legislative power, the law becomes ultra vires, e.g., when a State Legislature, in India,
makes a law with respect to a subject included in List I. Similarly, a Union law may be ultra
vires, if it deals directly with a subject included in List II (i.e., the State List), without any
constitutional provision sanctioning such encroachment.
In ultra vires, there is no question of competition between two Legislature having different
jurisdictions. It operates to invalidate a law made by any Legislature if the legislation goes
beyond the powers assigned to that Legislature by the Constitution. It may operate in relation
to the Legislature's exclusive List if the scope and effect of the impugned law cannot be

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related to any of the Entries included in that List or they go beyond the ambit of the Entry
relied upon, after proper interpretation.
But the question of repugnancy can arise only when both the Legislatures are competent to
legislate with respect to the same subject, v/z., a subject included in the Concurrent List (List
III)5. Again, the idea of superiority or paramountcy is involved in the conception of
repugnancy. There is no provision for a Union law to be void by reason of its inconsistency
with any State law. But a State law will be void by reason of its being inconsistent with a
Union law (subject, of course, to CI. (2) of Art. 254). If, however, there is no such
inconsistency, the State Legislature is free to legislate upon that Concurrent subject, without
any consent of the Union.
For the same reason, no question of 'repugnancy' arises where, by the terms of the
Constitution itself, the State Legislature is given the power to legislate with respect to a
subject-matter only so long and in so far as Parliament does not legislate with respect to the
subject-matter, e.g., regulation of mines under Entry 23 and industries under Entry 24 of List
II.

2.5 Inconsistency and Repugnancy

While the Australian Constitution Act [s. 109] uses the term 'inconsistency', the word
'repugnancy' is used in Arts. 251 and 254 of the Indian Constitution. This does not, however,
make any material difference because the two terms have been considered by the Indian
draftsman to be identical, as would appear from the fact that in the marginal notes to both
Arts. 251 and 254, the word 'inconsistency' is used instead of the word 'repugnancy' (or
'repugnant') which occurs in the text of the Articles.
2.6 Sources of Concurrent Jurisdiction

A study of the leading Federal Constitutions shows that while in some of them there is an
express Concurrent List by which certain specified subjects are open to both the Federal and

5 The suggestion made in Ramchandra v. Dt. Board, AIR 1951 Ori 1 (6) that a question of 'repugnancy' may
arise also where a State law is inconsistent with a Central Act falling under List I is not sound inasmuch as that
would be a case of ultra vires, under CI. (1) of Art. 246, which makes the power of Parliament with respect to
matters in List I exclusive [Cf. Ativa v. Abdul, (1940) 3 FLJ (HC) 83]. The same result would follow where
Parliament seeks to legislate with respect to List II which is committed to the exclusive care of a State
Legislature, by CI. (3) of Art. 246, fCf. Ref. under Art. 143, AIR 1965 SC 745 (762)] subject to certain
specific provisions of the Constitution, e.g., Arts. 249-252. The foregoing view of the Author, expressed as early
as 1950, at p. 564 of the 1st Edition of the Author's Commentary on the Constitution of India, has since been
affirmed by numerous decisions of the Supreme Court, so that it has been settled beyond any controversy that
Aft 254 as well as any question of repugnancy can only arise where the Union and State Legislatures have made
conflicting laws in relation to the same subject which is included in the Concurrent (i.e., List III).

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State Legislatures, e.g., West Germany, Malaysia , Nigeria and India in some others, such as
the U.S.A, Australia and Canada, a concurrent field has been set up by judicial interpretation.

1. Before going to India, it would be useful to refer to the Constitutions which have
found a concurrent sphere by virtue of judicial interpretation because the principles
evolved by the Courts in those countries are frequently referred to in interpreting the
relevant provisions of the Indian Constitution.

In USA as it has been stated earlier, even though Art. I, Sec. 86 grants enumerated powers to
the Federal Legislature, leaving the residue to the States (10th Amendment), judicial
interpretation has held that all the powers granted to Congress by Art. I, s. 8 need not be
exclusive, so as to exclude State legislation altogether with respect to all the matters
enumerated in Art. I, Sec. 8. The powers so granted to Congress by the Constitution have
been divided by the Courts under two categories:

A. It has been held that only such powers belong to Congress exclusively- (a) as are
expressly vested in the federal government exclusively; (b) as must necessarily be
exercised by the federal government exclusively, in the interest of uniformity; (c) as are
given to Congress and prohibited to the States,by the Constitution.

The following powers of Congress have thus been held to be exclusiveDe-B fence and
War [Art. I, s. 8(1), (11)-(14)]; taxation of income [16th Amendment]; coinage and currency
[Art. I, s. 8(5)]; borrowing money on the credit of the U.S. [Art. I, s. 8(2) ] 7.

B. All other powers are concurrent in the sense that

"The States may also exercise jurisdiction over them so long as the federal government
takes no action or so long as the States' action is not in conflict with that of the federal
government."

In reality, the powers of the States thus are not concurrent, but subordinate. Instances of
such concurrent subjects areBankruptcy; regulation of public utilities, food and drug
regulation; regulation of electric power and gas; planning; public welfare and social
insurance; copyrights8 and patents; census and statistics; weights and measures; quarantine.

6 S.C.W, p77.
7 Norman v. Baltimore Co., (1935) 213 US 294 US 240
8 Watson v. Buck, (1941) 313US 387

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In short, as will be explained more fully hereafter, though these second category of
powers are also included in Art. I, s. 8, the Court would permit State legislation on these
subjects except in cases such as the following:

(a) Where the scheme of federal regulation is so pervasive as to make reasonable the
inference that the Federal Legislature left no room for the States to supplement it;

(b) Where the field to which the legislation relates is such that the federal interest is so
dominant that the federal system must be assumed to preclude enforcement of State laws on
the subject9;

(c) Where the enforcement of the State statute would present a serious danger of conflict
with the administration of the federal programme10.

(d) Where the State statute is directly inconsistent with a federal law on the subject.

The principle, upon which the Court would invalidate a conflicting State law in a case
like the above, is of 'federal supremacy', embodied in Art. VI, s. 2, which must be dealt with
separately.

3. Repugnancy Between Union and States

Article 24 of the Indian Constitution clearly says that

(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.
(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 is 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 the State:

9 U.S v.Yazell, (1966) 382 US 341.

10 Ibid. See note 10

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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.

The question of repugnancy properly arises in connection with the Concurrent List
(List III), 7th Sch. Under Art. 246(2), ante, both the Union and the State Legislatures
have concurrent powers to legislate with respect to this List. Logically, therefore,
legislation by both Legislatures relating to the same subject-matter within List 111
shall be valid. Hence, "an absurd situation would result if two inconsistent laws, each
of equal validity, could exist side by side within the same territory11". The instant
Provision has been engrafted to obviate such an absurd situation.

Though the words 'competent to enact' in cl. (1) are rather wide and might include
laws made under List I as well. The scope of cl. (1) is made clear by the words
'subject to the provisions of cl. (2)', for cl. (2) contemplates only a State law relating
to the Concurrent List. Hence, cl. (1) speaks of repugnancy between a Central law and
a State law, relating to the same matter included in the Concurrent list12.

This view of the Author, expressed at p. 561 of the First Edition of this Commentary,
was questioned in some quarters. But it has now been clearly confirmed by the
Supreme Court in Prem Nath v. State of J. &K. in the following words

"The essential condition for the application of Art. 254(1) is that the existing law must
be, with respect to one of the matters enumerated in the Concurrent List; in other
words, unless it is shown that the repugnancy is between the provisions of a
subsequent law and those of an existing law in respect of the specified matters, the
Article would be inapplicable."

Where one of the two Acts of Parliament was enacted under Entry 66 of List I and the
other under Entry 25 of List III, they cannot be repugnant to each other and there is no
scope for the applicability of this article. When both laws fall under different heads of
the concurrent list, no question of repugnancy arises.

The verb "made" in Art. 254 brings out the constitutional emanation that it is the
making of the law by the respective constituent Legislature, namely, the Parliament

11 Subramaniam v. Muthuswami, (1940) FCR 188 (200).

12 Annamalai University v. Information & Tourism Dept., (2009) 4 SCC 590; See also Southern Petrochemicals
Industries Ltd. v. Electricity Inspector & ETIO, (2007) 5 SCC 447

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and State Legislature as the decisive factor and not its commencement. Inconsistency
or incompatibility in the law on a concurrent subject, by operation of Art. 254, cl. (1)
and (2) does not depend upon the commencement of the respective acts made by
Parliament and the State Legislature. Incompatibility or repugnancy would be
apparent when the effect of the operation is visualized by a comparative study.

It is held that the test of two legislations containing contradictory provision is not,
however, the only criteria for repugnancy, for, if a competent Legislature with a
superior efficacy expressly or impliedly evinces by its legislation an intention to cover
the whole field, the enactment of the other Legislature whether passed before or after
would be overborne on the ground of repugnancy. Where such is the position, the
inconsistency is demonstrated not by a detailed comparison of provision of the two
legislations, but by the mere existence of the two pieces of legislation.

According to NICHOLAS ON AUSTRALIAN CONSTITUTION (2nd Edn. at p.

303), (I) There may be inconsistency in the actual terms of the competing statutes; (2)
Though there may not be no direct conflict, a State law may be inoperative, because
of the Commonwealth law, or the award of the Commonwealth Court is intended to
be a complete and exhaustive Code; (3) Even in the absence of intention, conflict may
arise when both State and Commonwealth seek to exercise their powers over the same
subject matter. These tests have been accepted by our Supreme Court also.

The question then arises, which one shall prevail in case an Act of one Legislature be
in conflict with an Act of the other, relating to the same subject, in the Concurrent
sphere.

The answer is given in the different Clauses of the present Article, as follow:

2.5 Interaction of Several Clauses of Article 254

I. Clause (1) lays down the general rule that in case of repugnancy of a State law with a
Union law relating to the same matter in the Concurrent List, the Union law will prevail and
the State law will fail to the extent of the repugnancy, whether the Union law is prior or
subsequent to the State law.

But this clause operates only when repugnancy exists in fact and not when there is mere

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possibility with an order which might be issued under the Central Act "in future13.

II. But to this general rule, cl. (2) engrafts an exception, viz, that if the President assents
to a State law which has been reserved for bis consideration Art 254(2) it will prevail
notwithstanding its repugnancy to an earlier law of the Union14. This exception, again, is to
be read subject to the Proviso. The Proviso to cl. (2) of the present Article empowers the
Union Parliament to repeal or amend a repugnant State law even though it has become valid
by virtue of the President's assent This power, however, may be exercised by Parliament
only by making another law relating to the same concurrent subject But before cL (2) could
be invoked, there must be repugnancy between the State Act and an earlier Act of
Parliament ID effect.

2.5 Repugnancy Inconsistency and Implied Appeal

'Repugnant literally means 'inconsistent with'. Etymologically,

"things are inconsistent when they cannot stand together at the same time, and one law is
inconsistent with another law when the command or power or provision in the one law
conflicts directly with the command or power or provision in the other...as when one
Legislature says 'do' and the other says 'don't".

If the provisions in the two legislations relate to the same subject matter, to the same
situation and both substantially overlap and are co-extensive and at the same time so
contrary and repugnant in their terms and impact that one must perish wholly, if the other is
to prevail at all, then they are inconsistent.

So, a State law is not inconsistent with a Union law if it is possible to obey the State law
without disobeying the Union law. Technically, this is called the test of obedience'. But the
test of obedience is not an exhaustive one, for there may be inconsistency between two laws
though both say 'don't, e.g., when both impose prohibitions against the same act, but one of
them is more stringent than the other.

It is not necessary that the conflict would be direct. Only in a case where the provisions
of one act would have to be disobeyed if the provision of the offer are followed. The
conflict may exist even where both the laws lead to different results.

13 B.sugar co. v. State of Rajasthan (1999) 9 SCC 620

14 Geofory v. Riggs (1989)133 US 253

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The principle of Implied Repeal is that if the provisions of a later enactment of the same
Legislature) are so plainly repugnant to the provisions of an earlier enactment relating to the
same subject that effect cannot be given to both at the same lame, the Courts will imply a
repeal of the earlier enactment by the latter15. The Supreme Court has indicated that the test
applied for repugnancy under Art. 254 may be applied for solving a question of implied
repeal and that it should be seen (1) whether there is a direct conflict between the two
provisions; (2) whether the Legislature intended to lay an exhaustive Code in respect of the
subject matter replacing the earlier law; (3) whether the two laws occupy the same field. If
the two laws "operate in the same field" without collision, they cannot be said to "occupy
the same field" and there is no inconsistency and consequently no implied repeal unless the
law subsequently enacted is intended to be an exhaustive Code. Further, it is the point of
time of making the Jaw and not its commencement in deciding which is the prior law and
which is the later law for the purpose of Art. 254 of the Constitution16.

In order to operate as implied repeal the inconsistency must appear on the face of the
later statute in relation to the earlier one17. Thus,

(a) When the punishment or penalty is altered in degree but not in kind, the later
provision would be considered as superseding the earlier one18.

(b) A later Act which alters the quality and incidents of an offence would be construed as
impliedly repealing the old Act19.

(c) There is a clear inconsistency when a later enactment penalises an act the
performance of which is enjoined by an earlier one20. There is however, no inconsistency
merely because a later enactment makes an act an offence which was not declared to be an
offence by the earlier Act21.

(d) If two statutes give authority to two public bodies to exercise power which cannot
consistently with the object of the Legislature co-exist, the earlier must necessarily be
deemed to have been repealed by the later statute22.

15 Michell v. Brown, (1859) 1 EH & EH 267 (274)

16 Rishikesh (Pt.) v. Smt. Salma Begum, (1995) 4 SCC 718 : (1995) 2 SCJ 496
17 Zaverbhai v. State of Bombay, (1955) 1 SCR 799; Barai v. Henry, AIR 1983 SC 150 (paras. 17-18, 25-26)
18 AG v, Lockwood. (1842) 9 M&W 378 (391): MAXWELL, 10th Edn., 187;
19 Lee v. Dangar. (1892) 2 QB 377 (348).
20 Cf. Southern R. Co.v. Reld, 222 US 424
21 Basant lal v. Bansi lal AIR 1961 SC 823
22 R v. Justice of Middlesex (1831) 2 B and Ad 819

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2.5 Some General Rules related to Repugnancy

1. Repugnancy is a question to be determined by the Courts and not by either of the two
Legislatures concerned23.

2. When a statute is challenged as repugnant to a paramount law, the onus of showing

the repugnancy and the extent thereof is on the party who attacks the validity of the
legislature for the presumption is that a legislature does not exceed its jurisdiction and
the court should make every attempt to reconcile the provision of the apparently
conflicting enactment.

There is no repugnancy unless the two acts are wholly incompatible with each other or the two
together would lead to absurd remits. the question of repugnancy UNDER art, 254(i) between a
central law and state law arises only in cases where both the legislation occupy the same field
with respect to one of the matters ENUMERATED in list 111 of seventh schedule and there is a
"direct contact" between THE TWO JAW, ft is only when both the conditions are satisfied, the state
law win be HELD TO BE repugnant and hence void.

3. BUT IT was also held that the test of two legislations containing contradictory provision is not the

only criterion of repugnance. repugnancy may arise between THE CENTRAL LAW and state law,
even though obedience to each of them is possible WITHOUT disobeying the other if a
competent legislature with a superior efficacy EXPRESSLY or impliedly evinces by its legislation
an intention to cover the whole field AND THE enactment of the other legislature whether passed
before or after would be OVERBORNE on the ground of repugnance.

4. NO question of repugnancy arises unless the law made by parliament and the LAW MADE BY the

state legislature occupy the same field.1 if they deal with separate AND DISTINCT matters though
of a cognate and allied character, repugnancy does not ARISE e.g., where the state act deals
with a subject-matter other than that of the UNION act.

2.6 Validation of Presidents Assent

To the general rule laid down in cls. (1), (2) engrafts an exception2 viz., that if the
President assents to a State law which has been reserved for his consideration (Art, 200),
it will prevail notwithstanding its repugnancy to an earlier law of the Union, both dealing

23 A.G. of Ontario v. A.G.for Canada, (1896) AC 348

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with a concurrent subject24. Art. 254(2) only deals with legislative supremacy and not
legislative competency25. This exception, again, is to be read subject to the Proviso.

This clause is confined to a case of 'repugnancy' between a State and a Union law
relating to the same subject enumerated in the Concurrent List. In such a case, the State
law shall prevail notwithstanding such repugnancy, if it receives the assent of the
President. It has no application to any State law which is ultra vires, e.g., if it
substantially relates to a subject in List I. In such a case the State law is void ab initio and
no consent of the President can validate it. The present clause has nothing to do with
vires or competency.

It is further held that State law prevails only qua such Acts of the Union on matters
falling under the Concurrent List for which "repugnancy" was pointed out and assent of
President was sought for in the proposal made by the State Government and not qua other
Central Acts. It was held that "Consideration by the President" and "his assent" are
limited to such proposal only. For finding out whether "assent" given by the President is
restricted or unrestricted, the letter written or the proposal made by the State Government
for obtaining "assent" is to be looked into. It was observed that such a controversy can be
avoided if at the commencement of the Act, it is stated that the Act has received the
assent with regard to the repugnancy between the State law and "specified central law or
laws". In the concurring judgment, it was observed that the President has to be appraised
of the reasons atleast as to why his assent is being sought, the need or necessity and
justification or otherwise for claiming predominance for the State law concerned. This
itself would postulate an obligation to enumerate or specify and illustrate a particular
Central law or provision with reference to which the predominance is required. It was
observed that the President has to necessarily consider the nature and extent of
repugnancy, the feasibility, practicalities and desirabilities involved therein before
arriving at a conclusion to grant or refuse to grant or even grant partially, if repugnancy is
with reference to more than one law in force made by Parliament. The "reservation for
consideration" would necessarily obligate an invitation of the attention of the President as
to which of the pre-existing Central enactments or which provisions of those enactments
are considered or apprehended to be repugnant, with reference to which the assent
envisaged in Art. 254(2) is sought for.

24 Karunanidhi v. UOI 1979 SC 898

25 ITC Ltd. v. Agricultural produce Market committee, AIR 2002 SC 852

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Hence, the validity of an Act assented to by the President St be challenge*, on the

ground that there was no proper ground for the Governor to reserve the Bill for i he
assent of the President.

Limitations of validation by President's assent

The validation of the State law by the application of cl. (2) is subject to the following
conditions and limitations

a. The Central Act will give way to the State Act only to the extent of inconsistency
between the two, and no more.

b. The President's assent to an Amending Act cannot cure the repugnancy of the
principal

c. The predominance of the State law may be taken away if Parliament legislate* under the Proviso to cl.
(2).

4. JUDICIAL PRONOUNCEMENTS
Under article 254 (1) clearly provides some condition for the application of this provision.
In M. Karunanidhi v. Union of India,26 it was held as follows: (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 corning into collision with
each other, no repugnancy results. (4) That 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.

In Zaverbhai Amaidas v. State of Bombay27 it was held that to establish repugnancy, it is

not necessary that one legislation should say "do" what the other legislation says "don't" and
that repugnancy might result when both the legislations cover the same field. To make itself
clearer, it also agreed with Maxwell on Interpretation of Statutes "that if a later statute again

17. M. Karunanidhi v. Union of India, AIR 1979 SC 898 : (1979) 3 SCR 254 : (1979) 3 SCC 431
18. Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752 : (1955) 1 SCR 799 See akn rw Chand v. State of
UP., AIR 1959 SC 648.

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describes an offence created by a previous one, and imposes a different punishment or varies
the procedure, earlier statute is repealed by the later statute".

But in Karunanidhi's case, the above principle was not applied. In that case, Tamil Nadu
Public Men (Criminal Misconduct) Act, 1973 as amended in 1974 (State Act) was not
repugnant to any of the provisions of the Indian Penal Code (existing law) or the Prevention
of Corruption Act, 1947 (Union Act) because there was no "direct conflict between the State
and Union Acts though they occupied the same field. In that case, the Court held:

"Although the ingredients of criminal misconduct as defined in s. 5(l)(d) of the Prevention

of Corruption Act are substantially the same, in the State Act, than the one contained in the
Central Acts. It is, therefore, manifest that the State Act does not contain any provision which
is repugnant to the Central Act, but is a sort of complimentary Act which runs 'pari passu'
the Central Acts mentioned above".

Uniformity of law, being the basic characteristic of Indian jurisprudence, cannot be termed
to be at sufferance by reason of a State legislation. It is not necessary that one legislation
should be on the positive side whereas the other one is on the negative, such a stringent
requirement is not the requirement in order to bring home the issue of repugnancy, but all the
same, it might result when both the legislations cover the same field.28

Recourse to Art. 254 would be resorted to only when there exists direct conflict between
the Central legislation and State legislation and not otherwise. Both the laws would
ordinarily be allowed to have their play in their own respective fields. When the field of
legislation is the same, a question would arise as regards the effect of one Act over the other
in the event of it being found that there exists a conflict. For the said purpose, it is not
necessary that the conflict would be direct only in a case where provisions of one Act would
have to be disobeyed if the provisions of the other are followed. The conflict may exist even
where both the laws lead to different legal results.

The question of repugnancy between Parliamentary legislation and State legislation can
arise in two ways.

(1) Where the legislations, though enacted with respect to matters in their allotted sphere,
overlap and conflict.

19. Kaur v. Cardial Singh Mann, AIR 2001 SC 1273 : (2001) 4 SCC 262.

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(2) Where the two legislations are with respect to same matters in the Concurrent list, and
there is a conflict. In both the situations, Parliamentary legislation will predominate in the
first by virtue of the non-obstante clause in Art. 246(1), in the second by reason of Art.
254(1 ).

There could be no repugnancy between the Central and State law passed on matters in
List I and the State laws in pith and substance falling under List II. If either Parliament or
State trenches upon the field of the other, the law will be ultra vires?

One of the important tests to find out as to whether or not there is repugnancy is to
ascertain the intention of the Legislature regarding the fact that the dominant Legislature
allowed the subordinate Legislature to operate in the same field 'pari passu the State Act,
and there will be no inconsistency where the State Act and Central Act are supplemental to
each other.

In Vijay Kumar Sharma v. State of Karnataka29, the Court summarised the law and laid
down eleven ways in which seven important repugnancy or inconsistency may arise.

(1) There may be direct repugnancy between the two provisions;

(2) Parliament may evince its intention to cover the whole field by laying down an
exhaustive code in respect thereof displacing the State Act, provision or provisions in that
Act. The Act of Parliament may be either earlier or subsequent to the State law;

(3) The inconsistency may be demonstrated not necessarily by a detailed comparison of

the provisions of the two pieces of law, but by their very existence in the statutes;

(4) Occupying the same field; operational incompatibility; irreconcilability or actual

collision in their operation in the same territory by the Act/provision or provisions of the
Act made by the Parliament and their counterparts in a State law, are some of the true tests;
(5) Intention of Parliament to occupy the same field held by the State Legislature may not
be expressly stated but may be implied, which may be gathered by examination of the
relevant provisions of the two pieces of legislation occupying the same field;

(6) If one Act/provision in an Act makes lawful that which the other declares unlawful,
the two to that extent are inconsistent or repugnant. The possibility of obeying both laws by

29 AIR 1990 SC 2072 : (1990) 2 SCC 561

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waiving the beneficial part in either set of the provisions is not the sure test;

(7) If the Parliament makes law conferring a right/obligation/privilege on a citizen/person

and enjoins the authorities to obey the law.

The State law does not become void as soon as the Union Parliament legislates with
respect to the same subject. There is nothing to prevent the State Legislature to legislate
with respect to a Concurrent subject merely because there is a Union law relating to the
same subject Article 254(7) is attracted only if the State law is 'repugnant' to the Union Act,
which means that the two cannot stand together.

The State law must be 'repugnant' to an existing law or a law of Parliament

"The Concurrent List is not a forbidden field to the Provincial Legislature and the mere
fact that the Provincial Legislature has legislated on any matter in the Concurrent List is not
enough to attract the mischief of s. 107 of the Government of India Act, 1935. There must
be repugnancy between such legislation and an existing law, law prevail, unless the
procedure laid down in Sub-sec. (2) of s. 107 was followed. In short, the American doctrine
of 'occupied field' is not to be applied to test the validity of a State law relating to List HI. It
is not true, in India, that a State law relating to a Concurrent List will be valid only so long
as the Union Parliament does not legislate with respect to the same matter, the State law
will be invalid only if it is 'repugnant' to the Union law whether prior or subsequent to it. in
point of time. Of course, for the purpose of determining 'repugnancy' the intention of
Parliament to cover the entire field may be a relevant consideration.

6. EFFECT OF REPUGNANCY
In case of repugnancy, the state law becomes void to the extent of repugnancy. Hence
when the repugnancy is removed by repeal of expiry of the union law itself, the state
law would revive and become again operative. In shorts the state law, in so far as it is
repugnant, shall remain in abeyance until the union law is repealed by parliament.

This is the view taken under the corresponding provision in s. 109 of the Australian
Constitution Act. where of course, the word 'invalid* is used. In the Author's opinion,
the use of the word "void* in Art. 254(1) of our Constitution should not lead to a
different interpretation. For Art. 254 does not take away the competence of the Stale
Legislature to make a law relating to a subject in tine Concurrent List but merely lays

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down that if it is to repugnant to the provisions of a Central law. it shall be void to the
extent of the repugnancy. Hence, so long as mere in no Central law m the field, the law
enacted by the State Legislature is valid but when the Central lav is enacted, the
invalidity of the State law arises from the moment of enactment of the Central law if the
State law is repugnant to its provisions. Hence, if such Central tor is thereafter repealed,
the State law will revive with effect from the date of repeal of the Central law.

7. CONCLUSION AND SUGGESTIONS

In Article 245, they laid down that parliament might make laws for the whole or any part of
the territory of India, and the Legislature of the State might make laws for the whole or any
part of the State. Article 246 provided that parliament had exclusive power to legislate with
respect to matters included in the Union list, that State Legislatures had exclusive power to
make laws with respect to subjects in the State list, and that parliament and State Legislatures
were laws with respect to matters in the concurrent list.

Article 254 provided that the law made by parliament, whether passed before or after the law
made by the Legislature of a State, shall prevail, and the law made by the Legislature of the
State shall to that extent be void. The rule of repugnancy is subject to the exception of clause
(2) which says that if a state law with respect to any matter enumerated in the concurrent list
contains a provision repugnant to the earlier law made by the Parliament, then the state law
preserved for assent of the President shall prevail. However, it still is a glorified legislatin
which governs the relationship between the Union and States and adhers to the provision of
doctrine of separation of power.

Thus, we see that Doctrine of Repugnancy is firmly entrenched in our constitutional scheme
and is here to stay for a long time to come.

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REF EREN CE S
BOOKS :
Basu, Durga Das (2008). Introduction to the Constitution of India. Nagpur:
LexisNexis Butterworths Wadhwa. p. 98. ISBN 978-81-8038-559-9.
Shukla, V N., The Constitution of India, Lucknow, 12th Ed., Eastern Book
Co, 2013.
A.K. Vakil, Reservation Policy and Scheduled Castes in India, Ashish Publishing
House, Delhi, 1975 and 1985.
Anirudh Prasad, Reservation Policy and Practice in India, Deep and Deep
Publication, Delhi, 1991.
B.K. Roy Burman, Beyond Mandal and After, Mittal Publication, Delhi, 1992.
Brij Raj Chauhan, Scheduled Caste and Education, Anu Publication, Delhi, 1975.
Haroobhia Mehta and Hasmukh Patel, Dynamics of Reservation Policy, Patriot
Publishers, Delhi, 1991.
Hiranmay Karlekar, In the Mirror of Mandal: Social Justice, Caste, Class and the
Individual, Ajanta Publication, Delhi, 1992.
Jacob Aikara, Scheduled Castes and Higher Education, Dastane Ramechandra and
Co., Raviwar Peth, Poona, 1980.
Mishra, Narayan, Schedule Castes Education - Issues and Aspects, Kalpaz
Publications, New Delhi, 2001.
Mungekar, B. L., Indias Economic Reforms and the Dalits - An Ambedkarian
Perspective, Dr. Ambedkar Institute of Social and Economic Change, Mumbai,
2004.

RESEARCH POLITICAL WEEKLY AND REPORTS:

Prakash Ved, Trends in Growth and Financing of Higher Education in India,
Economic and Political Weekly, Delhi, August 4, 2007.
Das, Bhagwan Moments in a History of Reservations, Economic and Political
Weekly, Delhi, October 28, 2000.
Report of the Working Group on Higher Education for the XII Five Year Plan,
Department of Higher Education, Ministry of Human Resource Development,
Government of India, 2011.

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RESEARCH PAPERS:
Laskar Mehbubul Hassan, Rethinking Reservation in Higher Education in India,
Indian Law Institute, Law Review, New Delhi, pp. 25 53, 2010.
Rao, S.S., Equality in Higher Education - Impact of Affirmative Action Policies in
India, in E.F. Beckham (Eds.) Global Collaborations- the Role of Higher Education
in Diverse Democracies, Washington, 2001.
Thorat Sukhadeo, Senapati Chittaranjan, Reservation in Employment, Education
and Legislature Status and Emerging Issues, Working Paper Series, IIDS, Vol. 2,
No, 05, 2007.

STATUTES:
Government of India Act 1935.
Constitution of India, 1950.

WEBSITES:
www.manupatra.com
www.indiankanoon.com
www.legalserviceindia.com
www.jstor.com
www.academecia.com

CASE LAWS:
1. M. Karunanidhi v. Union of India
2. Zaverbhai Amaidas v. State of Bombay
3. Vijay Kumar Sharma v. State of Karnataka
4. Norman v. Baltimore Co. (1935) 213 US 294 US 240
5. Watson v. Buck (1941) 313US 387
6. U.S v. Yazell (1966) 382 US 341.
7. Subramaniam v. Muthuswami, (1940) FCR 188 (200).
8. Annamalai University v. Information & Tourism Dept., (2009) 4 SCC 590
9. Southern Petrochemicals Industries Ltd. v. Electricity Inspector & ETIO, (2007) 5
SCC 447
10. B.sugar co. v. State of Rajasthan (1999) 9 SCC 620
11. Geofory v. Riggs (1989)133 US 253

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12. Michell v. Brown, (1859) 1 EH & EH 267 (274)

13. Rishikesh (Pt.) v. Smt. Salma Begum, (1995) 4 SCC 718 : (1995) 2 SCJ 496
14. AG v. Lockwood. (1842) 9 M&W 378 (391): MAXWELL, 10th Edn., 187;
15. Lee v. Dangar. (1892) 2 QB 377 (348).
16. Cf. Southern R. Co.v. Reld, 222 US 424
17. Basant lal v. Bansi lal AIR 1961 SC 823
18. R v. Justice of Middlesex (1831) 2 B and Ad 819
19. A.G. of Ontario v. A.G.for Canada, (1896) AC 348
20. ITC Ltd. v. Agricultural produce Market committee, AIR 2002 SC 852
21. Kaur v. Cardial Singh Mann, AIR 2001 SC 1273 : (2001) 4 SCC 262.

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