NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

TRIMESTER: V TRIMESTER

SESSION: 2019-2020

SUBJECT:

CONSTITUTIONAL LAW- III

A PROJECT REPORT ON

“RELEVANCE OF DOCTRINE OF REPUGNANCY I N INDIA: A

CRITICAL ANALYSIS”

SUBMITTED TO: SUBMITTED BY:

PROF. Ms. Kuldeep Kaur Somya Yadav

Barrister-at-law from Lincoln’s Inn ROLL NO. - 2018BALLB37

Contents
SYNPOSIS ................................................................................................................................. 3

INTRODUCTION ..................................................................................................................... 3

RESEARCH METHODOLOGY........................................................................................... 4

OBJECT OF RESEARCH ..................................................................................................... 4

Research Questions ................................................................................................................ 4

HYPOTHESIS ....................................................................................................................... 4

REVIEW OF LITERATURE ................................................................................................ 4

BOOKS .................................................................................................................................. 4

ARTICLES ............................................................................................................................ 5

REPORTS .............................................................................................................................. 5

The Doctrine Of Repugnancy .................................................................................................... 6

Scope and Application of Article 254 .................................................................................... 8

INTERPRETATION of 254 (1) IN FAVOUR OF A WIDER APPLICATION................. 13

CONCLUSION ........................................................................................................................ 16

BIBLIOGRAPHY .................................................................................................................... 18
SYNPOSIS

INTRODUCTION
The Indian Constitution can be safely described as a federal constitution for it conforms to the
basic principles of a federal constitution. While the word “federal” is not directly mentioned in
a qualifying sense anywhere in the constitution, Article 1 says that “India, that is Bharat, shall
be a Union of States.”1 Dr Ambedkar in his address to the Constituent Assembly explained that
the word “Union” is used 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 have no right to secede from the federation.” This also enunciates
the supremacy of the Centre over the constituent States, and the justification for the same
cannot be appreciated more anywhere than in a heterogeneous society like India.

Part XI of the Constitution deals with the “relations between the Union and the States.”
Articles 245 to 254 deal specifically with the legislative relations between the centre and the
states and the principle of Central supremacy is enshrined in the provisions therein too. It is in
light of this structural impulse that we must appreciate the implication of the doctrine of
repugnancy in its relation with the Indian Constitutional law. The doctrine of repugnancy can
be roughly understood as a conflict resolution principle, which is invoked when there exist two
different tiers of Legislature, each competent to legislate on a definite 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 competence. The constitutional
provisions relevant for solving questions of repugnancy are to be found in Article 254 of the
Constitution.2

This paper attempts to look into the application and scope of the doctrine of repugnancy as
interpreted and applied by the courts in India. Such an analysis would inevitably run into a
critique of the judicial interpretation of the doctrine itself. While drawing parallels and deriving
authority from academic and judicial sources in constitutional law, the paper would also
attempt to answer the need for and consequences of applying the doctrine of repugnancy vis-
à-vis Article 254. The paper should find its natural culmination in an examination of the

1
Art. 1, CONSTITUTION OF INDIA, 1950.
2
M.P. Jain, INDIAN CONSTITUTIONAL LAW, Vol. 2, 783 (5th edn., 2003).
alternative interpretations proposed to revise the present judicial position and their
constitutional feasibility.

RESEARCH METHODOLOGY
The researcher has adopted a combination of descriptive and analytical approach.

OBJECT OF RESEARCH
The object of inquiry is the doctrine of repugnancy with strict reference to its scope and
application in the Indian legal milieu.

RESEARCH QUESTIONS
1) What is the doctrine of repugnancy?
2) How has it been interpreted and applied with respect to resolving legislative conflicts
in India? What are the constitutional and policy imperative for the interpretation?
3) What are the tests to determine repugnancy? When are laws repugnant? When are they
not?
4) What are the implications of the application of Article 254 for politics in India?
5) Is the present judicial stand on the scope and application of Article 254 completely
sound? Is there a scope for revision of the same?

HYPOTHESIS
The doctrine of repugnancy, as it stands today, has been interpreted by the Supreme Court in
an unduly restricted fashion, and is constitutionally amenable to a relatively wider
interpretation.

The author has used both a theoretical review of legislation and Constitutional provisions and
an empirical approach using case law and statistics to arrive at his findings.

REVIEW OF LITERATURE

BOOKS

1. A.P. Datar, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. II, (2nd edn.,
2007).
2. A.R. Lakshmanan, WHARTON’S LAW LEXICON, (15th edn., 2009).
3. D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. IV.
4. D.D. Basu, COMPARATIVE FEDERALISM, (2nd edn., 2008).
 5. D.D. Basu, INTRODUCTION TO THE CONSTITUTION OF INDIA.
6. E.A. Elizabeth, OXFORD DICTIONARY OF LAW, (5th edn., 2003).
7. M.P. Jain, INDIAN CONSTITUTIONAL LAW, Vol. 2, (5th edn., 2003).
8. S.C. Jain, THE CONSTITUTION OF INDIA: SELECT ISSUES AND PERCEPTIONS.
9. S.C. Kashyap, INTRODUCTION TO THE CONSTITUTION OF INDIA.

ARTICLES
1. B. Jain, GUJTOC Unlikely to Face Central Hurdle, THE TIMES OF INDIA 14
(Bangalore edn., April 1, 2015).

REPORTS
1. Report of the Sarkaria Commission, available at
http://interstatecouncil.nic.in/Sarkaria_Commission.html.
The Doctrine Of Repugnancy
When two enactments are repugnant, Wharton’s Law Lexicon proposes, it means that
“conflicting results are produced when both laws are applied to the same set of facts”. It further
enunciates on this position and suggests that repugnant laws are laws inconsistent with one
another, that they cannot stand together at the same time, and that such a situation arises when
the command or power or provision in the one law conflicts directly with the command or
power or provision in the other.3 The word “inconsistent” itself, in the legal sense, has been
defined as mutually repugnant in the sense that acceptance of one leads to the the abandonment
of the other.4

In such a situation, the grund-norm envisages a mechanism to resolve such a conflict, for “it is
not possible to obey one law without disobeying the other”.5 The resolution proposed may vary
from one polity to another. Generally, one law prevails over another and the paramount
legislation is determined by the nature of the federation.

Take for example the case of federations like the United States or Australia. The constitutions
for these countries divide the legislative competencies of the Federal or Commonwealth (as in
Australia) and Provincial or State legislatures under two separate lists of subjects on which the
said legislatures could legislate. Notwithstanding that, there are allied matters on which the
legislations often run into an irreconcilable conflict with each other. Article 109 of the
Australian Constitution establishes the overriding nature of the Commonwealth legislation,6
and the “Supremacy Clause”7 under the US Constitution provides that the judges in all States
shall be bound by the provisions of the Constitution of the United States of America.8

Article 254 of the Constitution of India, as has already been mentioned in the preceding pages
of this paper, provides for the resolution of conflicts between Central and State legislations that
are wholly repugnant to one another.

Article 254, with its clauses and proviso, reads as follows:

“254. Inconsistency between laws made by Parliament and laws

made by the Legislatures of States

4
E.A. Elizabeth, OXFORD DICTIONARY OF LAW, 246 (5th edn., 2003).
5
Shyamakant Lal v. Rambhajan Singh, AIR 1939 FC 74 (Federal Court of India).
6
Sec. 109, THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA, 1900.
7
D.D. Basu, COMPARATIVE FEDERALISM, 241(2nd edn., 2008).
8
Art. 6, Sec. 2, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1787.
 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 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 that State:
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.”9

The term “existing laws” has been defined under Article 366, clause 10, and are laws made by
the competent legislatures before the commencement of the Constitution.10 The provisions of
Article 254 are based on Article 107 of the Government of India Act, 1935.
There has been a catena of judgements in India, on cases related to repugnancy arising out of
conflicts between legislations of the sort envisaged in Article 254 of the Constitution, and the
widely held view on the scope, meaning and implication of repugnancy right from the case of
Zaverbhai Amaidas v State of Bombay to the famous M Karunanidhi v. Union of India has
been fairly consistent.

A dissection of the provisions of Article 254, in conjunction with reference to the views of
Constitutional authorities and landmark judgements would certainly serve the purpose of this
paper, and help us gauge the life of the doctrine of repugnancy with respect to constitutional
law in the Indian legal milieu.

There are certain elements that must be essentially present to invoke the provisions of Article
254 to hold the legislation of the state legislature repugnant to the Central enactment.
Constitutional experts disagree on a host of issues regarding the scope and application of
Article 254. While we will attempt to examine these disputes later into this paper, we will in
the following section encapsulate the essential scope and elements of Article 254 as explicated

9
Art. 254, CONSTITUTION OF INDIA, 1950.
10
Art. 366(10), CONSTITUTION OF INDIA, 1950.
by the Supreme Court in its judgements, followed by a discussion of the effects of repugnancy,
repeal, severability and the exception clause.

SCOPE AND APPLICATION OF ARTICLE 254

The provisions of Article 254 are invoked subject to the incidence of the following conditions:

Laws are repugnant when wholly incompatible: The provisions under Article 254 are
attracted only when the statutes in question are wholly incompatible with each other and cannot
stand together. The Rajasthan High Court in Om Prakash v. State, ruled that there is no
repugnancy unless the two laws are wholly repugnant to each other and their conjunctive
application would produce absurd results. This does not mean that the laws have to be
inconsistent in each and every letter and provision, but that in so far as the provisions are in
fact inconsistent, the inconsistency must be absolute, so as to be militating against any
possibility for harmonious construction.

As an interpretation principle, it is a well-established principle of procedure that there is a

presumption in the favour of the constitutionality of laws and the onus to prove repugnancy
lies on the party assailing the challenged law.11 Even then, the doctrine of harmonious
construction governs that the courts are to interpret the provisions of the laws in such a manner
so as to avoid repugnancy and allow for the smooth co-existence of the impugned laws, and
the laws are to be struck down on grounds of repugnancy in the manner prescribed under Art.
254(1), only when “the laws are fully inconsistent and absolutely irreconcilable”.12

Conflicts with reference to the Concurrent list only: The scope of repugnancy envisaged
under Art. 254 (1), applies exclusively to legislations on entries covered under the Concurrent
List and that “no repugnancy arises unless the law made by the Parliament and the law made
by the State legislature occupy the same field”.13 If they deal with separate and distinct matters,
though of a cognate and allied nature, no repugnancy arises.14

In M. Karunanidhi, one of the most authoritative judgements on repugnancy, the Supreme

Court while discussing the various ways in which repugnancy may arise had the following
observation to make about the limitation of the scope of Article 254 to conflicts arising out of
concurrent field legislations:

11
M Karunanidhi v. Union of India, AIR 1979 SC 898 (Supreme Court of India), [M. Karunanidhi]
12
M. Karunanidhi, 1979 AIR 898.
13
Deep Chand v. State of UP, AIR 1959 SC 648 (Supreme Court of India), [Deep Chand].
14
Tika Ramji v. State of UP, AIR 1956 SC 676 (Supreme Court of India), [Tika Ramji].
 “Where the provisions of a Central Act and a State Act in the
Concurrent List are fully inconsistent and are absolutely
irreconcilable, the Central Act will prevail and the State Act will
become void in view of the repugnancy.”15
Principles of Law (to apply doctrine of repugnancy)

1. There should be clear and direct inconsistencies between Union law and Sate law.
2. Inconsistency is absolutely irreconcilable.
3. The inconsistency is such that there is a direct collision with each other and it is
impossible to obey one without disobeying the other.
4. The Union law and State law are inconsistent and irreconcilable and cannot operate in
the same field.
5. There is no repeal by implication unless inconsistency appears in the face of the statute.
6. When two statues occupy a particular field and there is room and possibility for both to
operate in the same field without colliding, then no repugnancy occurs.
7. There is no inconsistency when the statute occupy the same field but it creates separate
and distinct offences then no repugnancy exists or results and can continue to operate
in the same field.

It is to be noticed that the Court seems to have deliberately pointed out that the mechanism
under Article 254 would uphold the Central law where there is a repugnancy between “the
provisions of a Central Act and a State Act in the Concurrent List”, while completely
overlooking the former part in cl. 1 of the aforesaid article which purports to bring into the
purview of the said Article “laws that the Parliament is competent to enact”, and which is in
ostensibly conspicuous distinction with the later part that talks of the Concurrent List.

That the observation of the court is not an oversight but a determined effort at a definite
interpretation is brought out by a subsequent observation strengthening the above position that
runs thus:

“Where a law passed by the State Legislature while being

substantially within the scope of the entries in the State List
entrenches upon any of the Entries in the Central List the
constitutionality of the law may be upheld by invoking the
doctrine of pith and substance if on an analysis of the provisions
of the Act it appears that by and large the law falls within the
four corners of the State List an entrenchment, if any, is purely
incidental or inconsequential.”16

15
M. Karunanidhi, 1979 AIR 898.
16
M. Karunanidhi, 1979 AIR 898.
The same position is reiterated as recently as in 2010 in Zameer Ahmed Latifur Rehman Sheikh
v. State of Maharashtra as under:

“Article 254 of the Constitution which contains the mechanism

for resolution of conflict between the Central and the State
legislations enacted with respect to any matter enumerated in
List III of the Seventh Schedule…”17
In JB Educational Society v. Government of Andhra Pradesh18, the Supreme Court lays down
some lucidity as to why should conflict resolution on concurrent legislation alone should be
invoked vide Art. 254. While explaining how inconsistencies can arise in two laws and what
principles must be applied to resolve them in the following terms:

“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. In both the situations,
parliamentary legislation will predominate, in the first, by virtue
of the non obstante clause in Article 246(1), in the second, by
reason of Article 254(1)…”19
This is by far the most disputed issue with respect to the doctrine of repugnancy. An alternative
argument on the same, and supporting the expansion of the scope of Article 254 to conflicts
arising out of enactments beyond concurrent competencies, shall be extended towards the end
of this paper.

Determination of Repugnancy: Supreme Court has also laid down a broadly comprehensive
test for determining repugnancy itself.

The first principle of determination covers express inconsistency, of the nature where one law
says ‘do’ where the other says ‘don’t’. Also, it may alternatively be possible that it may be
possible to follow both the laws where both of them cover the same field but inconsistency
may still be there. This may arise from situations where both the laws create the same offence
and award different punishments.20 However, where two laws create two different offences for
the same act, no repugnancy would result.21

This position was highlighted by the Supreme Court in M. Karunanidhi where the accused, a
former Chief Minister of the State was charged with corruption on count of passing favours to

17
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, AIR 2010 SC 2633 (Supreme Court of India).
18
Govt. Of Andhra Pradesh v. JB Educational Society, (2005) 3 SCC 212 (Supreme Court of India), [Educational
Society].
19
Educational Society, (2005) 3 SCC 212.
20
Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752 (Supreme Court of India), [Zaverbhai].
21
M. Karunanidhi, 1979 AIR 898.
a certain firm for pecuniary benefit, in the matter of purchase of wheat from Punjab for the
state, and was booked under the Prevention of Corruption Act, it was held that the provisions
of the Central Act are not repugnant to the State’s Public Men Criminal Misconduct Act,
insofar as the State and Central Acts created different offences, which are procedurally and
substantially different. Repugnancy does not lie in the mere co-existence of two laws where
both are susceptible of simultaneous obedience.22

Repugnancy, in these scenarios, attracts the construction of implied repeal when the two statues
are so inconsistent that it becomes impossible for them to stand together.23 Further, the
principle on which the rule of implied repeal rests, was dealt with lucidly in Zaverbhai,
observing that:

“…if the subject-matter of the later legislation is identical with

that of the earlier, so that they cannot both stand together, then
the earlier is repealed by the later enactment, and this shall be
equally applicable to a question under Art. 254(2) whether the
further legislation by Parliament is in respect of the same matter
as that of the State law.”24
But the rule of implied repeal can be avoided when the judicial interpretation of the statutes
construes the scope of the enactments to be different.25

It also arises when the central law seeks to create an exhaustive code to cover the entire field
covered by a subject matter.26 This can be explained by the proposition that if a competent
legislature expressly or impliedly evinces its intention of covering the whole field, that itself is
a conclusive test of inconsistency where another legislation assumes to enter to any extent upon
the same field.27 Where the Industrial Disputes Act of the Centre sought to cover the entire
field of appointment as a member of the Industrial Tribunal, the State’s Assam Act 8 of 1962
was rendered repugnant to the extent that it sought to govern the area of appointment as a
member of the same industrial tribunal in the state.28

The intention of the Central Legislation to cover the whole field must be clearly established
and it cannot be inferred the legislation itself is silent on the matter.29 The Indian Evidence Act,
1872 lays down certain statutory presumptions, but nothing in the Act suggest that the

22
D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. IV, 202.
23
Kanaka Gruha Nirmana Sahakara Sangha v. Narayanamma AIR 2002, SC 3659 (Supreme Court of India).
24
Zaverbhai, AIR 1954 SC 752.
25
Basu, supra note 22, at 200.
26
Tika Ramji, AIR 1956 SC 676.
27
Clyde Engineering v. Cowburn, (1926) 37 CLR 466 (High Court of Australia).
28
State of Assam v. Horizon Union, AIR 1967 SC 442 (Supreme Court of India).
29
Basu, supra note 22, at 201.
presumptions laid down were intended by the Act to be exhaustive. Hence a state legislature is
not debarred from laying down additional presumptions.30

It is also clear that if the Central Legislation itself permits or recognises other laws restricting
or qualifying the general provisions contained therein the paramount, no intention of
exhaustiveness can be inferred, and no restriction or qualification introduced by a State Act can
be construed to be repugnant to the Central Authority.31

Where the Cr.P.C lays down that the “provisions of this code would not affect any special form
of procedure prescribed by any special form of procedure prescribed by any law for the time
being in force”,32 the provision for arrest without warrant in the Police Act, Arms Act,
Explosives Act, Indian Railways Act, or the Public Safety Act are not void for repugnance with
the Cr.P.C.33

Consequences of Repugnancy: When the provisions of a state law are repugnant to a Central
legislation or an existing law with respect to a matter in the concurrent list, the Central
legislation would prevail, and the state legislation, to the “extent of the repugnancy”, would
become void. This gets us to the doctrine of severability, which has been imported by the Indian
Constitution by the import of the phrase “to the extent of the repugnancy”. 34 The courts have
the onus to save as much of the impugned act that has been rendered repugnant as possible.

Also, doctrine of repugnancy differs from the doctrine of eclipse as envisaged in article 251 in
a fundamental manner. While the operation of Art. 251 renders as inconsistent enactment
inoperative, which revives after the waning of the paramount legislation, under Art. 254 the
repugnant enactment becomes void, and can be invoked only though re-enactment after the
repeal of the prevailing law, and this extends also to the case of Central Laws when the State
Law assumes the Paramount stature under Art. 254(2).35

President’s Assent under Article 254(2): The requirement of the President’s assent arises
when a law made by the Legislature of a state is wholly incompatible with a Central legislation.
It is not an idle procedure and requires that the President be informed as to why the assent is
sought.36 President’s assent cures actual repugnancy and not the mere possibility of a

30
A.S. Krishna v. State, AIR 1954 Mad. 993 (High Court of Madras).
31
Megh Raj v. Alla Rakhia, (1943) 5 FCR 182 (Federal Court of India), [Megh Raj].
32
Sec. 1(2), The Code of Criminal Procedure, 1973.
33
Lakhinarayanan v. Province of Bihar, AIR 1950 FC 59 (Federal Court of India).
34
Basu, supra note 22, at 206.
35
M. Karunanidhi, 1979 AIR 898.
36
A.P. Datar, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. II, 1503 (2nd edn., 2007).
repugnancy.37 The President’s assent can save a law of the State only when it has been formed
after the passing of the Central Legislation. According to the Proviso to the Art., the Parliament
can repeal, amend or vary the act so made by the State, or form another law repugnant to the
State Act so as to render it invalid. In effect Cl. 2 of the Article empowers the State to enact
laws repugnant to the Central law in the territory of the state with the assent of the President.
The use of the word “assent” in Cl. 2 implies knowledge of the President to the repugnancy
between the State law and the earlier law made by the Parliament on the same subject matter
and the reasons for grant of such assent.38

INTERPRETATION OF 254 (1) IN FAVOUR OF A WIDER

APPLICATION
A protracted reading of Art 254(1) would show that the phraseology of article 254(1) does not
confine it merely to resolution of conflicts arising out of repugnancy in the Concurrent field. It
does not say that the state law and the central law should belong to the concurrent list only.
The words “in the concurrent list”, is suggested therein to qualify only ‘existing’ laws, which
means that an existing law in the matter of a subject belonging to the concurrent field prevails
over a state law in that area in case of a repugnancy. 39 So far as the post-Constitutional laws
are concerned, the words used are, “which the Parliament is competent to enact”, which are
quite broad and would include laws enacted by the Parliament with respect to both Union and
Concurrent lists- which would mean that if there is an irreconcilable conflict between a state
law falling under the state list and a central law falling under the central list, the later would
prevail over the former by virtue of the provisions of Article 254 itself.40

The same procedure can even be extended to laws made by the Parliament under powers
accorded to it under Articles 252 and 253 of the Constitution, which relate to subjects in the
State list and “the Parliament would not be competent to enact on matters thereon but for the
provisions enshrined under the said articles”.

Consider for example a hypothetical situation where the Central Government, in order to
honour an international treaty to reclaim and re-use burial ground, decides to impose a law

37
While it is pertinent to note here that the Bill is sent to the President only when it is repugnant, and it has been
held that repugnancy itself arises only when it is real and not merely possible.
38
Datar, supra note 36, at 1505.
39
Jain, supra note 1, at 784.
40
Id.
requiring people to relinquish burial grounds after 5 years of the burial in order to conserve
land which is getting scarce in urban areas. Consider also, that a distinct state A, which is not
only abundant in land but also where the majority population by force of ritual necessarily need
to hold the burial ground of their dead for at least 10 years. Now, the conflict between the two
laws, the subsequent repeal or the prevalence of the State law can be governed by the provisions
of Art254, for burial ground being a subject matter in the state list on which the Parliament is
not competent to legislate, it nonetheless “becomes competent to enact by virtue of the
competence accorded by Article 253”.

Thus, to effectuate a treaty a central law may come into conflict with a state list. No doubt that
the Central Law would prevail over the state law, but this result can be achieved only by
invoking the wider meaning of 254(1).41

The observation made in JB Educational Society case and cited in this chapter can also be
extended to constitutionally validate the proposed stand. The non-obstante clause of Article
246(1) only establishes the principle of union supremacy. While it furnishes the basic principle
with which to approach conflicts between laws, it does not set down an elaborate mechanism
to resolve repugnancy, something that Art. 254 provides. And if we are to look up to Art254 in
that sense, we would not only realise that it can be extended to resolve conflicts between
legislations arising out of the privileged competence bestowed on the Parliament under Articles
252 and 253, but also that just like unforeseen conflicts between federal and state laws enacted
in accordance with the allotted spheres, there is a scope for repugnancy between state and
central laws within the allotted spheres, and these too can be legitimately resolved by
provisions in Article 254, clauses (1) and (2).

What has definitely been elucidated by the Supreme Court is that for the application of this
article, there must be a repugnancy between the two laws. Secondly, if at all there is a
repugnancy, the state law would be repugnant only to the extent of the repugnancy. When an
impugned statute appears to touch two different entries in two lists, then the rule of pith and
substance helps to determine whether the law belongs to this list or that entry. But article 254
(1) is not so much about which entry does the statute occupy as about whether or not there is
repugnancy between the state law and the central law altogether.42

But it does not appear to be sound to confine article 254 (1) to only when the central law falls
within the concurrent list, rather than when the two laws fall in different lists and yet are

41
Id, at 785.
42
Id.
inconsistent to some extent, for such a possibility is not entirely inconceivable. In Kanaka
D.H.P. Co. v. State of Kerala43, the SC envisaged the possibility of a repugnancy between a
Central Law in the List 1 and a state act under lists 2 or 3, though in the instant case, no conflict
between the two Acts was found.44

The very discussion of repugnancy by the SC between a state act in the state list and a central
act in the central list in fact reflects the possibility of such a repugnancy. 45 Reference can also
be made to Srinivasa Raghavachar v. State of Karnataka.46 The advocates act has been enacted
by the parliament under entry 77 of the union list while the state act was enacted under an entry
in the state list and prohibited advocates from appearing before the land tribunal. Here there
was a repugnancy between a central law under List I and state law enacted under List II.47

43
Kanaka D.H.P. Co. v. State of Kerala, AIR 1972 SC 2301 (Supreme Court of India).
44
Jain, supra note 1, at 785.
45
Hingir Rampur Coal Co. v. State of Orissa, AIR 1961 SC 459 (Supreme Court of India).
46
Srinivasa Raghavachar v. State of Karnataka, AIR1987 SC 1518 (Supreme Court of India), [Raghavachar].
47
Raghavachar, AIR 1987 SC 1518.
CONCLUSION
The foregoing analysis of the relevance of the doctrine of repugnancy brings forth some in
salient points.

The doctrine of repugnancy as interpreted by the courts in India, applies to law only when they
are wholly incompatible. The doctrine of harmonious construction asserts that the courts must
interpret the statutes so as to avoid the incidence of repugnancy and safeguard the legislative
sanctity of a legislating authority.

The widely favoured view confines the application of repugnancy to only Concurrent List
enactments. Inconsistencies beyond this field are determined by the application of the doctrine
of pith and substance, and resolved on the question of vires, by invoking the non-obstante
clause of Article 246.

For inconsistencies attracting challenges on grounds of repugnancy as well, in the spirit of

harmonious construction, the doctrine of pith and substance can be used to show that the State
law in pith and substance falls under the State list, and any encroachment on the Concurrent
List is incidental and inconsequential.

The Supreme Court over the years has set down conclusive tests to determine repugnancy. In
summing up the position of Courts before it, the SC in M. Karunanidhi48, laid down the
following premises for determining repugnancy:

“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, there is
room or possibility of both the statutes operating in the same field
without coming into collision with each other, no repugnancy
results;
4. That where 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.”

48
M. Karunanidhi, 1979 AIR 898.
Repugnancy- as opposed to the doctrine of eclipse enshrined in Article 251, which results in
the conflicting law becoming inoperative to the extent of the inconsistency for the time being
when the paramount legislation is in force- renders the repugnant law to be void, and it does
not revive even after the repeal of the overpowering statute, unless the invalid act is validated
by re-enactment. Again, in the case of M. Karunanidhi v. Union of India, it was held that the
same effect would flow to the fate of a Union law with respect to its application in a State
where the State legislation prevails by virtue of the Presidential Assent under Article 254(2).

The present judicial position on repugnancy has various political implications. While the
insulation of the laws under State List from scrutiny from the angle of repugnancy accords
freedom to the State Legislature to legislate on matters in the State list, the supremacy of the
Centre has led to a situation where Centre by its laws has professed a tendency to occupy entire
fields in the Concurrent List to its exclusive jurisdiction. There has also been a trend to use the
provision of the President’s assent to further the policy of the Central government in the States
instead of allowing for repugnant but locally essential laws to operate in the states based on
discretion formed on policy prudence and in the spirit of the constitution.

The most stirring issue, however, has been the drive to interpret Art 254 in a wider fashion, to
expand its scope beyond concurrent field conflicts, which would subject even Articles 252 1nd
253 to it.

The rationale proposed is that the phraseology of the provisions allows for much wider
application, that the words “in the Concurrent List” are suggested to qualify only existing laws,
and insofar as post-Constitutional laws are concerned, the words “which the Parliament is
competent to enact” apply thereon. It is 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.
BIBLIOGRAPHY
1. www.IndianKanoon.com/Repugnancy

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

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

the-indian-constitution.html

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

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

repugnancy/115281