Doctrine of Repugnancy

The Doctrine of

Repugnancy

By: Amlan Mishra, 1536, Semester-II

Definition of Repugnancy
• The doctrine of Repugnancy as provided in Article
254(1) which states that the Parliament’s law
prevails over the State law in a matter of conflict,
and the State law is to that extent void.
• Every effort should be made to reconcile the two
enactments and construe them to avoid them
being repugnant to each other. If the two
enactments operate in different fields, then the
enactment will not be repugnant.
Issues in the doctrine
• Whether repugnancy is to apply only on subjects
of the Concurrent list or on other lists ?
• Whether repugnancy will be applicable in cases
where there is no actual conflict between laws ?
• Whether the intention of the Parliament to
occupy a legislative field is of any importance in
deciding repugnancy
Whether applicable only on concurrent list?
• The present jurisprudence confines it to the Concurrent
List.
• In Kanan v. State of Kerala AIR 1972 SC 2301, the
Supreme Court looked into the application of
repugnancy between List I and List II and III but there
was no conflict between the Acts.
• In Srinivas Raghavachar v. State of Karnataka AIR 1987
SC 1518, the Supreme Court found repugnancy between
the Advocates Act, 1961 by the Parliament(List I) and a
State law prohibiting practitioners from appearing
before land tribunals(List II)
Whether applicable only on concurrent list?
• In Bar Council of Uttar Pradesh v. State of Uttar

Pradesh (1973) 1 SCC 261, the case concerned a UP
Legislation(a pre-constituional law) prescribing that
Rs. 250 shall be payable on stamp duty, challenged
as repugnant to Advocates Act. The court held that
the repugnancy was inapplicable because
Advocates Act was under List I and not under List III.
• This position was reiterated in M Karunanidhi v.
Union of India (1979) 3 SCC 391.
Whether applicable only on concurrent list
• The position was elaborately discussed and settled in VK
Sharma v. State of Karnataka. The Sate of Karnataka
enacted the Karnataka Contract Carriages Ac, 1976 under
Entry 43, List III. Thereafter the Parliament amended
Motor Vehicles Act, 1988 falling under List III providing for
carriage permits. Was there a questions of repugnancy?
• J Sawant : “When question of repugnancy is raised the
first thing to determine is whether they relate to the same
subject matter, and the doctrine of pith and substance is
to be used for this. Both Acts must be substantially on the
same subject of the List III to attract Article 254”
Exception to Article 254(1) in (2)
• Some peculiar local circumstances might warrant
circumventing the rigour of Article 254(1), therefore
there is Article 254(2) which saved an Act if its has
received President’s Assent.
• As a result of obtaining assent of the President, the
State Act will prevail and and override applications of
the Central Act in the State (Hoechst Pharm Limited
v. State of Bihar AIR 1983 SC 1019)
• If the legislation deals with other cognate matters
and not in respect of the same matter, Article 254(2)
will have no application.
Exception to Article 254(1) in (2)
• In M. Karunanidhi v Union of India, the Supreme Court
accepted the argument that if pursuant of Article 254(2) a
State law was kept alive vis-a-vis a Central Law, the latter
was repealed pro tanto, even when the State Law itself was
later repealed. But in this case, there was no repugnancy,
and therefore the Central Law continued to prevail.
• Article 254(2) does not apply when the two acts operate in
different fields.
• Article 254(2) saves the State enactment only from being
repugnant to Acts of the Parliament before the State Act.
But the President’s assent will be of no vail for Acts brought
after the State’s enactment.
Operation of the Provision to Article 254(2)
• When the state seeks assent under Article 253(2) to a state
law, because of its repugnancy with a specific central law,
the state law is not protected if its repugnant to any other
Central law.
• In Central Bank of India v. State of Kerala, the State rent Act
received its assent with respect to Transfer of Property Act.
But it could not be saved when it was found repugnant to
Public Premises Act, 1977
• The provision enlarges the power of the parliament, as not
it can enact a provision repugnant to the existing State Law.
Implied Repeal by the Parliament
• Supreme Court enunciated the principle of implied repeal in
Hoechst Pharmaceuticals v. State of Bihar AIR 1983 SC
1019 : ‘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. This is equally applicable in Article 254(2) where
there is further legislation by the Parliament in respect to
the same matter
• However this implicit power to repeal cannot be delegated
too any executive authority. Further there can be a repeal
only when a state law fulfils all conditions under Article 254.
Whether repugnancy is applicable when
there is no actual conflict ?
• In several cases including Tika Ramji v. State of Uttar Pradesh,
the court had held that actual conflict of laws is necessary for
conflict by holding that ‘repugnance must exist in fact not on a
possibility’ and holding that a possibility of a conflicting order
under the enactment does not make the State Law repugnant.
• This changed in 2012 with the case of State of Kerala v. Mar
Appraem Kuri (2012) 7 SCC 106, which concerned Kerala Chitties
Act, which regulated Chit funds in Kerala and Chit funds Act,
1982(the Central Act). The Central Act had not been extended
to Kerala, but the court read Article 254(1) which uses ‘law
made by the Parliament’ and not ‘commencement of law made
by the Parliament’. Therefore the State Act was held repugnant.
Whether the Parliament can occupy a field ?
• In Deep Chand v. State of UP, the state Act had nationalised the
means of transport. The Centre brought the MVA, 1956 which
the court held occupied the same field and therefore the State
law had to yield space to Central law.
• Further in State of Orissa v. MA Tulloch the State government
passed an Act levying cess on all extracted minerals for the
betterment of mining activities. The Parliament enacted the
Mines and Minerals Regulation Act, 1957 requiring
conservation and development of mineral resources. The court
held: ‘Repugnancy may arise if the superior legislature
expressly or impliedly evinces an intention to impliedly cover
the whole field’
Conclusion and suggestions
• With regard to the issue of application of Article 254
across other list, the jurisprudence is questionable. There
is no rationale for subjecting only Concurrent List to
repugnancy. What is to be done if a situation where the
Parliament makes laws for the enforcement of a treaty
on a List II subject and it goes against a State law ?
• Further the application of repugnancy in cases where
there is no actual conflict, i.e. where the conflicting
central law do not extend to that state or the Central law
is not in direct conflict with the State law but only
intends to cover the field, does not make logical sense.

Doctrine of Repugnancy

Uploaded by

Copyright:

Available Formats

Doctrine of Repugnancy

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Doctrine of Repugnancy

Uploaded by

Copyright:

Available Formats

The Doctrine of

By: Amlan Mishra, 1536, Semester-II

• In Bar Council of Uttar Pradesh v. State of Uttar

You might also like