The Doctrine of Repugnancy - Resolving the inconsistency between two enactments.

(tentative)

Abstract: 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 254 1 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.

Keywords: Indian Constitution Inconsistency Doctrine of Repugnancy Article 254

Interpretation of Constitution.

Introduction:

In so far as the constitution is the source of validity for all statutory law and it has distinct
procedures both for promulgation and amendment. The interpretation of the constitution is
very different when compared to interpretation of other statutes. A constitution is a higher
form of statutory law. Hence Justice Iyer J stated that 2 A constitution is a documentation of
the founding faiths of the nation and the fundamental directions for their fulfilment. So much
so, an organic, not pedantic approach to interpretation, must guide the judicial process. The
healing art of harmonious construction, promotes the rhythm of the law. Part XI of the
Indian Constitution describes the legislative relations between the States and Centre. Article
254 to establish 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. The Indian constitution clearly
recognises the right of both parliament and state legislatures to legislate concurrently with
1 CONSTITUTION OF INDIA, ART. 254. Inconsistency between laws made by Parliament and laws made by
thelegislatures 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.

2 Fatehchand Himatlal v. State of Maharastra (1977) Mah LJ 205, (1977) MP LJ 201 (SC), Per
Krishna Iyer J.
regard to that subject mentioned in the concurrent list, and therefore the doctrine of
repugnancy is applied in India but is not so stringent as like in other countries where
constitutional position is different. Hence the courts while interpreting the constitution are
cognizant of the fact that it is the constitution that they are interpreting. As the constitution is
considered as an evolving dynamic document which changes the shape and colour depending
upon the needs of the polity. Even so efforts are always made to interpret each and every
phrase of it. Even though the doctrine of repugnancy is used in the interpretation of the
constitution Article 254 but in reality this doctrine not just resolves the inconsistency in the
constitution but also between two different statutes. Hence the doctrine of repugnancy plays a
vital role in the interpretation of inconsistent statutes which are enacted by the state and
central government.
Research Objective:

The main objective of the research is to study and analyse the doctrine of repugnancy and
how it aids in the interpretation of the constitution and to find out what is the rule of
interpretation under which the doctrine of repugnancy falls. And how is the doctrine applied
in other countries.

Research questions:
1. Whether there are any strict rules of interpretation for the application of the doctrine
of repugnancy?
2. Whether it is mandatory to repeal the statue when they are merely inconsistent?
3. What is the relationship between Doctrine of repugnancy and Occupies Field and
Harmonious construction?
4. Is there any change in the applicability of the Doctrine of repugnancy in other
countries?

Research methodology:

The researcher will be doing a doctrinal and the main focus is to understand the main purpose
of to interpretation by analysing the doctrine of repugnancy. Therefore this research work is
intended to make an analytical study of the interpretation of social welfare legislations by
various precedents. The present study is based on secondary data. The secondary data is
obtained from published and, relevant literature. The researcher has also referred to various
books and articles and internet sites.
Literature Review:

1. Article: DOCTRINE OF REPUGNANCY BY PANKAJ SEVTA

Citation: Sevta, Pankaj, Doctrine of Repugnancy (April 5, 2013). Available at SSRN:

https://ssrn.com/abstract=2245805 or http://dx.doi.org/10.2139/ssrn.2245805

The author in this article has discussed the landmark judgments given by the Indian courts
while applying the doctrine of repugnancy and how the principle is to be applied and its
limitations. The author further says that the matters enumerated in List III (Concurrent List),
both Parliament and the State Legislature has equal competence to legislate and here again,
the courts are charged with the duty of interpreting the enactments in such manner as to avoid
a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of
resolution of such a conflict. Thereafter, SC, held that the question of repugnancy between
the parliamentary legislation and the State legislation could arise in following two ways :
First, where the legislations, though enacted with respect to matters in their allotted sphere,
overlap and conflict. Second, where the two legislations are with respect to matters in the
Concurrent List and there is a conflict. Hence the researcher feels that the doctrine of
repugnancy plays a very important role not in interpretation of the enactments but to maintain
consistency between two enactments.

2. URMILESH KUMAR, SHORT SPEECH ON THE DOCTRINE OF REPUGNANCY,

Available at http://www.shareyouressays.com/115281/short-speech-on-the-doctrine-of-
repugnancy (Last Accessed on 26/03/2013)

The author has discussed the case of GOVT. OF A.P. V. J.B. EDUCATIONAL SOCIETY 3 ,
the author says that taking into account the ambit of and scope of Articles 246 and 254 and
considering the scheme laid down by this Court in M. Karunanidhi case 4 with respect to the
situations in which repugnancy would arise, held that "Parliament has exclusive power to
legislate with respect to matters in List I The non obstante clause under Article 246(1)
indicates the predominance or supremacy of the law made by the Union Legislature in the
event of an overlap of the law made by Parliament with respect to a matter in List I and law
3 GOVT. OF A.P. V. J.B. EDUCATIONAL SOCIETY, [(2005) 3 SCC 212]

4 M. KARUNANIDHI V. UNION OF INDIA [(1979) 3 SCC 431]

by the State Legislature with respect to matter enumerated in List II. 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. Therefore the researcher feels that there occurs biasness as the parliamentary enactments
prevail mostly.

3. 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 7/03/2017)

The author discusses the case of NATIONAL ENGG. INDUSTRIES LTD. V. SHRI KISHAN
BHAGERIA5 where Sabyasachi Mukharji, J., opined that the best test of repugnancy is that if
one prevails, the other cannot prevail. Therefore by this statement the researcher feels that in
cases where the doctrine of repugnancy applies then the question of harmonious
interpretation fails as only one can prevail. Nicholas in his Australian Constitution, 2nd
Edition, page 303, refers to three tests of inconsistency or repugnancy :- "(1) There may be
inconsistency in the actual terms of the competing statutes;(2) Though there may be no direct
conflict, a State law may be inoperative because the Commonwealth law, or the award of the
Commonwealth Court is intended to be a complete exhaustive code; and(3) Even in the
absence of intention, a conflict may arise when both State and Commonwealth seek to
exercise their powers over the same subject matter." The honourable Supreme Court in Ch.
Tika ramji v. The State of Uttar Pradesh 6 accepted the said three rules, among others, as
useful guides to test the question of repugnancy.

4. Article: Doctrine of repugnancy

Author: Malini Ramchandra Kamat

5 NATIONAL ENGG. INDUSTRIES LTD. V. SHRI KISHAN BHAGERIA [(1988) Supp

SCC 82]

6 CH. TIKA RAMJI V. THE STATE OF UTTAR PRADESH, 1956 AIR 676, [1956] SCR
393.
 Citation: http://www.grkarelawlibrary.yolasite.com/resources/FM-Jul14-CL-2-Malini.pdf
The author in this paper has given the rules for the interpretation of the constitution and
doctrine of repugnancy. The author first discusses the repugnancy between a central Law and
State Law with interpreting Article 254 and does a case analysis of M. Karunanidhi v. Union
of India, where the appellant challenged the validity of the Tamil Nadu Public Men (Criminal
Misconduct) Act. 1947, as amended by the Act of 1947 on the ground that it was inconsistent
with the Central Act and Prevention of Corruption Act, 1947 and hence void. Then researcher
also by analysing such judgements will lay down the principle laid for the interpretation of
two inconsistent enactments and give few suggestions so as to make the principle serve the
legislative intent.

5. Book: MN Rao & Amita Dhanda, N.S Bindras, Interpretation of statutes 433(11th edn
Lexis Nexis Butterworths,2014) P669-686
The author in this book has discussed briefly about the interpretation of the constitution under
chapter 13 the contextual dimensions of interpretation by discussing the applicability of rules
of statutory construction and by discussing the original intent and dynamic interpretation with
the help of the preamble and constituent assembly debates. The author further goes into the
interpretation of the legislative powers and gives principles using the doctrines. The
researcher will also try to analyse the doctrine of repugnancy as to how it removes the
ambiguities in the interpretation of the legislative powers and how is dynamic interpretation
and legislative intent applied as a principle while using the doctrine of repugnancy in order to
resolve the inconsistency between two enactments which is a kind of statutory interpretation
also.

6. Book : Vepa.P.Sarathi, Interpretation of Constitution 5th edn; Eastern Book Company pg.
445-488.
The author in this book has briefly given an introduction and a note on Kesavanada Bharthi v.
State of kerala the author says the purpose of the note on the case was to show that assuming
the constitution has certain basic features and no court or law can make any enactment
repugnant to the constitution. The researcher will also analyse that can any enactment be held
invalid by applying the doctrine of repugnancy if it violates the basic features of the
constitution.
7. Article: The Voidness of Repugnant Statutes: Another Look at the Meaning of Marbury
Author: NOAH FELDMAN
 Citation: https://www.amphilsoc.org/sites/default/files/proceedings/480103

The author describes that the judges who were once seen as the embodiment of laws
artificial reason into the appointed interpreters of the written document. That process of
interpretation requires the exercise of reason, but it is not reason alone. It is something more
constrained and more cautious, something that requires faith not only to the judges of the past
but to the People in whose name the Constitution has been written. The reason why in
marshall v Madison chose the language of repugnance and voidness was that he wanted to
convey that it was precisely the judiciary that now had the power to be supreme over the
legislature in declaring certain acts void. A law that is repugnant to the Constitution is void ab
initio. It has no validity. It is not law at all. Hence inorder to declare a law void the judges
have to take a very careful interpretation.
8. Article: Federal Supremacy and the Occupied Field: A Comparative Critique
Author: Arun sagar
Citation: https://doi.org/10.1093/publius/pjs034
This article undertakes a comparative study of the concept of federal supremacy as it appears
in the constitutional texts and judicial doctrine of the United States, Australia, India, Canada,
and Germany. It discusses the complex judicial techniques and principles developed in each
of these federations, and argues that the approaches based on conflict and field,
respectively, should be distinguished as opposing paradigms of interpretation. The field
approach is criticized as being incompatible with a coherent vision of supremacy, and as
being itself replete with conceptual problems that are unnecessary to the resolution of cases.
It is further suggested that the conflict approach is in itself sufficiently flexible to be adapted
to all situations.
9. Article: Vida Sutherland on Statutory Construction, Vol.2, pp.177178.

In this article the author lays down two important points which are considered during the
application of the doctrine of repugnancy. One of the main point is after the invalid portion is
expunged from the statute what remains cannot be enforced without making alterations and
modifications therein, than the whole of it must be struck down as void, as otherwise it will
amount to judicial legislation. The author also says that in determining the legislative intent
on the question of separability, it will be legitimate to take into account the history of the
legislation, its object, the title and the preamble to it. As we interpret the statues in the light of
legislative intent.
10. Article:http://shodhganga.inflibnet.ac.in/bitstream/10603/14379/18/18_chapter%200

The author in this article first gives a brief introduction of the doctrine of repugnancy by
stating its historical background from sec. 107 of the Government of India Act, 1935. The
author further gives instances where the doctrine is not applicable and lists down the
important case laws where the doctrine was applied and how were the statues interpreted. The
researcher will also be dealing with the historical background of this doctrine as well as
discuss landmark cases with this regard.

CASE LAWS:
1. M. Karunanidhi v. Union of India [(1979) 3 SCC 431]
Bench: FAZALALI, SYED MURTAZA, CHANDRACHUD, Y.V. ,BHAGWATI, P.N.
UNTWALIA, N.L., PATHAK, R.S.

In M. Karunanidhi v. Union of India, the appellant challenged the validity of the Tamil Nadu
Public Men ( Criminal Misconduct) Act. 1947, as amended by the Act of 1947 on the ground
that it was inconsistent with the Central Act and Prevention of Corruption Act, 1947 and
hence void. A CBI inquiry was instituted against the appellants who were alleged to have
abused their official position in the matter of purchase of wheat from Punjab. As a result of
the inquiry a prosecution was launched against the appellant under the IPC and the
Prevention of Corruption Act. The state Act was passed after obtaining the assent of the
President. The State Act repealed and the question arose whether action could be taken under
the Central Laws i.e. the IPC, the Corruption Act and Criminal Law Amendment. The
appellant contended that even though the State Act was repealed it was repugnant to the
Central Laws, i.e. the IPC and the Corruption Act. The majority agreed that by virtue of Art.
254 (2) the provision the Central Act stood repealed and could not be revived after the State
Act was repealed. (Untwalia and Fazal Ali, JJ.) wereparties to the judgment, the following
observations were made:-
"The duty assigned to a public servant by his master, be it be under astatute or by an
executive order, will assume the character of public duty, provided the duty assigned is not
illegal or against public policy. Will it make any difference in the case of a Minister? In our
judgment, not. The Minister is a public servant-not disputed". These observations no doubt
fortify our opinion that the Chief Minister is a public servant which is based on the reasons
that we have already given and which are different from those given in the case cited before
us.
2. Case name : Deep Chand v. State of U.P 1959 AIR 648, 1959 SCR
 Bench: Das, Sudhi Ranjan (Cj), Bhagwati, Natwarlal H., Sinha, Bhuvneshwar P.,
Subbarao, K., Wanchoo, K.N.
In Deep Chand v. State of U.P., the validity of U.P. Transport Service (Development) Act was
involved. By this Act the State Government was authorised to make the scheme for
nationalisation of Motor Transport in the state. The law was necessities because the Motor
Vehicles Act, 1939 did not contain any provision for the nationalisation of Motor Transport
Services. Later on, in 1956 the Parliament with a view to introduce a uniform law amended
the Motor Vehicle Act, 1939, and added a new provision enabling the State Government to
frame rules of nationalisation of Motor Transport. The minority er Das, C.J., and Sinha J.-
There was no reason why the doctrine of eclipse could not also apply to a post-Constitution
law that infringed a fundamental right conferred on citizens alone The majority court per
Bhagwati, Subba Rao and Wanchoo, jj held that since both the Union Law and the State Law
occupied the same field, the State Law was void to the extent of repugnancy to the Union
Law.
3. Case law : Zaverbhai v. State of Bombay, 1954 AIR 752, 1955 SCR 799
Bench: Mahajan, Mehar Chand (Cj), Mukherjea, B.K., Jagannadhadas, B., Bose, Vivian,
Aiyyar, T.L. Venkataram
In Zaverbhai v. State of Bombay Parliament enacted the Essential Supplies Act 1946, for
regulating production supply and distribution of essential commodities . A contravention of
any provision of the above Act was punishable with imprisonment up to 3 years or fine or
both. In 1947, considering the punishment in adequate, the Bombay Legislature passed an Act
enhancing the punishment provided under the Central Law. The Bombay Act received the
assent of the President and thus prevailed over the Central Law and become operative in
Bombay. However, in 1950 Parliament amended its Act of 1946 and enhanced the
punishment. The revision petition was heard by a Bench consisting of Bavdekar and Chainani
JJ. Bavdekar J. was of the opinion that the amendments to the Essential Supplies (Temporary
Powers) Act including the re-enactment of section 7. While miniority hainani J., on the
otherhand, held that both Act No. XXXVI of 1947 and Act No. LII of 1950 related to the
same subject-matter, and that as Act No. LII of 1950 was a Central legislation of a later date,
it prevailed over the Bombay Act No. XXXVI of 1947. On this difference of opinion, the
matter came up under section 429, Criminal Procedure Code, for hearing before Chagla C.J.,
who agreed with Chainani J, that there was repugnancy between section 7 of Act No. LII of
1950 and section 2 of the Bombay Act No. XXXVI of 1947, and that under article 254(2), It
was held by the majority that as both occupied the same field (enhanced punishment) the
State law became void as being repugnant to the Central Law.

4. Case law: Govt. of A.P. v. J.B. Educational Society, [(2005) 3 SCC 212],
Bench: K.G. Balakrishnan, B.N. Srikrishna
In Govt. of A.P. v. J.B. Educational Society, this Court while discussing the scope of Articles
246 and 254 and considering the proposition laid down by this Court in M. Karunanidhi case
(supra) with respect to the situations in which repugnancy would arise, in para 9, the majority
held as follows:- 9. Parliament has exclusive power to legislate with respect to any of the
matters enumerated in List I, notwithstanding anything contained in clauses (2) and (3) of
Article 246. The non obstante clause under Article 246(1) indicates the predominance or
supremacy of the law made by the Union Legislature in the event of an overlap of the law
made by Parliament with respect to a matter enumerated in List I and a law made by the State
Legislature with respect to a matter enumerated in List II of the Seventh Schedule.

5. Case law: National Engg. Industries Ltd. v. Shri Kishan Bhageria [(1988) Supp SCC 82]
Bench: Mukharji, Sabyasachi (J)

In National Engg. Industries Ltd. v. Shri Kishan Bhageria, Sabyasachi Mukharji, J., opined
that the best test of repugnancy is that if one prevails, the other cannot
prevail.RajasthanShops and Commercial Establishments Act, 1958: Sections 28A and 37-
Whether repugnant to Industrial Disputes Act 1947-Employee's petition against
dismissal- Dismissed on ground of limitation-Relief through petition under I. D. Act 1947
but the Division Bench of the High Court, however reversed the aforesaid judgment and
held that the respondent was a 'workman'. The two writ petitions of the appellant were
dismissed, while the writ petition of the respondent was allowed.
Name: N.Bavithran (BC0140018)