DO THE DOCTRINE OF REPUGNANCY

AND SPIRIT OF FEDERALISM GO HAND

IN HAND?
admin | June 9, 2017 | Constitutional | No Comments

THIS ARTICLE WAS WRITTEN BY WAFA JALLU, A

STUDENT OF OP JINDAL GLOBAL UNIVERSITY.
The concept of federalism which had been depicted by the US can be considered as the best
example of federalism. It says the federal principle can be observed when there is a clear distinction
between powers of centre and state and also their powers in making laws in their respective fields.

Repugnancy in Blacks law dictionary is defined as an inconsistency or contradiction between two or

more legal instruments such as statutes. Article 254 of the Indian Constitution provides for us with
two rules regarding the laws made by the centre and state. The rule explains that when there is an
inconsistency between Union and State law in the same field falling in the concurrent list , the law
made by union will prevail over the law made by the state. But before this, it is imperative to
understand what repugnancy is and when it arises.

TheHonble Supreme Court of India in the case M. Karunanidhi v UOI[1], laid down conditions which
must be satisfied before any kind of repugnancy could arise. The conditions are as follows:

That there is a very clear and direct inconsistency between the Central and the State
statutes and that this inconsistency absolutely irreconcilable.

That the inconsistency is of such nature that the two statutes or Acts are in so much collision
that there is no way one can obey one act without disobeying the other.

That the inconsistency should be of such a nature that one cannot be applied unless the
other act is being applied.

Summarising the decision taken by the Honble court in the above case, the court ruled that
repugnancy can best tested by seeing that when one prevails, the other cannot prevail.

In the case of ZaveribhaiAmidas v. State of Bombay,[2]the court held that the punishment of seven
years of imprisonment awarded by the state legislation for an offence to be inconsistent as the
central legislation has awarded three years of imprisonment for the same offence. The reason
behind taking such a decision was that the central legislation has already constituted a code
covering all the offences of the concerned Act, hence, to a great extent that it falls in the ambit of the
same field in the concurrent list. Therefore, it is not mandatory for a legislation to say do or dont
until they fall in the category of same field.

The main aim of the doctrine of repugnancy is to avoid mishaps which might be created due to
ambiguous laws. In the case of Subramianm v. Muthuswami[3], the court held that the simultaneous
operation of two acts, of the same validity, will be unreasonable. When the centre and the state
make laws exercising their powers, which are vested upon them by List I and List II respectively,
when the latter make laws which are inconsistent with the former, the law created by the latter is
deemed to be void and repugnant due to Art. 254(1). However, the court in the case of Hoechst
Pharmaceuticals Ltd. v State of Bihar[4], disagreed with this view and held that Art. 254 has to be
read as a whole. Therefore, based on this ruling it is clear that the repugnancy of the act does not
depend on List I overlapping List II but depend on overlapping of List III and Concurrent List.

However, the spirit of federalism will be disturbed if the parliament is given the power to remove laws
created by the state under the concurrent list so easily according to the provisions provided by
Article 254 (2). Though it is not accepted judicially that the parliament can repeal the state laws it has
certainly gained attention from the judiciary. The court held that the contention has considerable
force in the case of TikaRamji v. State of UP[5], where the main contention was that the parliament
did not have the power to repeal at its own convenience, a state law without any substantial
enactment.

The key aspect of having repugnancy laws is to avoid two laws on the same subject matter and
achieve uniform law throughout the nation which is one of the reasons behind constituting the Indian
Constitution. Such kind of uniformity is essential to have a mature legal system and this can be
taken forth only by an authority who has uniform jurisdiction all over the nation, which is the
parliament in India. State governments have jurisdiction only on particular matters and therefore
cannot ensure a uniform in this system. This ensures a clear demarcation of powers between the
Centre and the State, and helps to create a conflict-free national system as far as jurisdiction on
issues are concerned. Any other scenario would mean unnecessary litigation between centre and
the states, which harms the very concept of integrity of India, which is the very bed-rock of this
democracy. The Centre should be a protector of the states, including ensuring no conflicts happen
amongst states. This can be done only when paramount issues (like defence, etc.) are left under the
Central supervision and authority. This includes the Central authority over-riding the states. This
helps to keep the nation going along a single trajectory which ensures growth and development.

However, even though HM Seervai is arguing that the doctrine of repugnancy is not counter to
Federalism, it is basically treating the local opinion as a child to be beaten and put in order by the
paternal state (much like the British State). This in no way furthers the interest of Federalism. Rather,
it hinders the very effort of Indian states to act as autonomous beings and takes away all the
authority from them. The reason why the issues were divided between various lists was for
convenience and not to serve an authoritarian purpose, especially since the Constitution was framed
after liberation from an authoritarian regime.

[1]1979 AIR 898

[2]ZaverbhaiAmaidas v State of Bombay

[3] (1940) 2 MLJ 170

[4]1983 AIR 1019

[5]1956 AIR 676