Doctrine of Repugnancy

The distribution of powers is an important feature of federalism. When a federal state is formed it involves a division of authority between the central and the state government. The tendency of federalism is to limit on every side the action of the govt. and to separate the strength of the state among co-ordinate and independent authorities are particularly noticeable. In terms of different Articles read with Schedule VII of the Indian Constitution, the Union Parliament and State Legislatures have the power to make legislation. It further provides List I which is allocated for the Parliament, List II being those within the domain of the State Legislatures and List III which represent those areas where both Parliament and State Legislatures carry concurrent law making powers. The Constitution of India through Article 254 states 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 violation to a law made by the Parliament on the same subject-matter. So as to put more light and certainty the principle “Doctrine of Repugnancy” was introduced, which is used to find out when and where a State law turns repugnant to the Parliamentary legislation.

Repugnancy is described as “a discrepancy or contradiction between two or more portions of a legal instrument (such as legislation or a contract)” by Black’s Law Dictionary. The Constitution of India can be easily described as a federal constitution because it contains the essential principles of a federal constitution. However the word federal isn’t directly mentioned in a very qualifying sense anywhere within the constitution. Dr. Ambedkar while addressing to the Constituent Assembly explained that the word “Union” is employed 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 do not have any right to separate from the federation.” And this also articulates the supremacy of the Centre over the constituent States, and therefore the justification for the same can only be appreciated more in a country like India because of its heterogeneous character. Part XI of the Constitution deals with the “relations between the Centre and the States.” From article 245 to 254, these articles especially deal with the legislative relations between the centre and the states and the principle of Central supremacy is also mentioned in the same provisions too. And it’s in the light of this structural impulse, why we must appreciate the implication of the doctrine of repugnancy in its relation with the Constitutional law. The doctrine of repugnancy is often roughly understood as a conflict resolution principle, which is invoked when there exist two different tiers of Legislature, each competent to legislate on a similar 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 competency. And the constitutional provisions which are relevant for solving such questions of repugnancy are to be found in Article 254 of the Indian Constitution.

It asserts that repugnant laws are laws that are so incompatible with one another that they can’t stand together at the same time, and that such a situation emerges when one law’s command, authority, or provision directly conflicts with another law’s command, power, or provision. The word “inconsistent” itself, within the legal sense, has been outlined as mutually repugnant in the sense that acceptance of one leads to the abandonment of the other. In such a situation, the ground-norm foresees a mechanism to resolve such a conflict, for “it is not possible to obey one law without disobeying the other”. The resolution proposed may vary from one polity to the other. Generally, one law prevails over another and the paramount legislation is determined by the nature or character of the federation.

Article 254 of the Constitution of India provides for the resolution of conflicts between Central and State legislations that are wholly repugnant to one another. The term “existing laws” which is mentioned under Article 254 has been defined under Article 366, clause 10, and these are the laws which are made by the competent legislatures before the Constitution. The provisions under Article 254 are attracted only if the statutes in question are wholly incompatible with one another and can’t stand together. And that there is no repugnancy unless the two laws are wholly repugnant to each other and their conjunctive application would manufacture absurd results. This doesn’t mean that the laws ought to be inconsistent in each and every letter and provision, but that in so far as the provisions are in fact inconsistent, the inconsistency should be absolute, so as to be militating against any possibility for harmonious construction.

As an interpretation principle, it’s a well-established principle of procedure that there is a presumption in the favor of the constitutionality of laws and also the onus to prove repugnancy lies on the party assailing the challenged law. Even so, the doctrine of harmonious construction dictates that the courts interpret the provisions of the laws in such a way as to avoid repugnancy and allow for the smooth coexistence of the challenged laws, with the laws being struck down on grounds of repugnancy in the manner prescribed by Art. 254(1) only when “the laws are fully inconsistent and absolutely irreconcilable.”

The laws made by the legislature of a state legislature or the Parliament with respect to their exclusively assigned spheres might incidentally with no consequence get in the restricted sphere, but as long as it can be shown that the legislation in its pith and substance falls in the four corners of the assigned sphere, the law would be intra-vires. The doctrine of pith and substance applies to concerns of repugnancy as well, though in a different way. If it can be shown that a law in pith and substance falls under a State or Union entry and any infringement on a concurrent subject is incidental and inconsequential, no repugnancy would arise.

There have been a number of judgments in India, on cases related to repugnancy arising out of conflicts between legislation with respect to Article 254 of the Constitution, and the widely held view on the scope, meaning and implication of repugnancy in several cases. M. Karunanidhi vs. Union of India[1], where a Constitution Bench of the Supreme Court considered the principles to be applied for determining repugnancy between a law made by the Parliament and a law made by the State Legislature, is one of the most commanding and authoritative judgments on the subject doctrine. Honorable court in this case, laid down following conditions which are essential for any repugnancy to arise.

  • That there is a clear cut and direct inconsistency between the Central Act and the State Act.
  • That such an inconsistency is absolutely irreconcilable.
  • That the discrepancy between the provisions of the two Acts is of such a kind that it brings them into direct conflict with one another, making it impossible to obey one without disobeying the other.

Thereafter, the Honorable Supreme Court after referring to reasoning of many judgments on the subject laid down following propositions:

  • That in order to decide the question of repugnancy it must be demonstrated that the two enactments contain conflicting and irreconcilable provisions, so that they cannot stand together or operate in the same field.
  • By implication, there can be no repeal unless the discrepancy is visible on the face of the two Acts.
  • There is no repugnancy where two statutes occupy the same field but there is room or opportunity for both statutes to operate in the same field without colliding.
  • That where there is no inconsistency but a statute occupying the same field looks to create distinct and separate offenses, no question of repugnancy arises and both the statutes continue to operate in the same field.

The aforesaid analysis of the relevance of the doctrine of repugnancy brings forward some salient points. The doctrine of repugnancy as interpreted by the courts in India, applies to law only when they’re wholly irreconcilable. The doctrine of harmonious construction asserts that the courts should interpret the statutes so as to avoid the occurrence of repugnancy and protect the legislative sanctity of the authority. The widely advocated view confines the application of repugnancy to only Concurrent List enactments. The current judicial position on repugnancy has numerous political implications. While the separation of laws under the State List from scrutiny from the perspective of repugnancy gives the State Legislature the freedom to enact on matters under the State List, the Centre’s supremacy has led to a situation where the Centre has professed a tendency to occupy entire fields in the Concurrent List to its exclusive jurisdiction through its laws. There has also been a tendency to use the President’s assent to advance the Central government’s policy in the states rather than allowing for repugnant but locally necessary laws to operate in the states based on discretion based on policy efficiency and in the spirit of the constitution. The most significant problem, however, has been the push to read Art 254 in a broader sense, to include concurrent field disputes in its scope, which would include Articles 252 and 253. The proposed explanation is that the text of the provisions allows for a much broader interpretation, that the terms “in the Concurrent List” are indicated to qualify only existing laws, and that the phrases “which the Parliament is competent to enact” apply to post-Constitutional laws. It’s 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.


[1] [1979] AIR 898, SCR (3) 254

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