Repugnancy means any inconsistency or contradiction between two or more parts of a legal instrument. Inconsistency is bound to happen especially in the system where the law making power has been divided between the center and the state, just like in our country. To tackle these situations the doctrine of repugnancy was introduced.
Article 254 of the Indian constitution establishes the doctrine of repugnancy. Repugnancy arises when two laws are so inconsistent with each other that the application of any of them directly implies the violation of another. The doctrine of repugnancy according to Article 254, states that if any part of the law made by the State is repugnant or conflicting to any part of the law made by the Center on which the Parliament is competent to enact, or to any part of a law of the matter of List III, then the Central law made by the Parliament shall prevail and the law made by the State legislature shall become void, to the extent of its repugnancy. Whether the central law passed before or after the State law is immaterial. Hence, this is a principle to ascertain that when a state law becomes repugnant to the Central law.
Tests for determining repugnancy
The court in the case of Deep Chand v. State of Uttar Pradesh, 1959 AIR 648, 1959 SCR Supl. (2) 8, while analyzing the principles of repugnancy given under the Australian constitution brought out three tests of repugnancy-
- Whether there is a direct conflict between the two conflicting provisions.
- Whether the Parliament intended to lay down an exhaustive enactment on the subject matter and to replace the law made by the State legislature and
- Whether the law made by the Parliament and that made by the State legislature occupies the same field.
Mati Lal Shah v. Chandra Kanta Sarkar, AIR 1947 Cal 1, the case filed before the Calcutta High Court wherein a conflict arose between Section 20 and Section 34 of the Bengal Agricultural Debtors Act, 1936, and Section 31 of the Presidency Small Causes Courts Act, 1882. The former required that the service of a notice shall stay for the execution of certain decrees against the agricultural debtors while the latter required that the execution shall take place through other courts, if necessary. The Court held the provisions of the Bengal Act void due to repugnancy.
In the case of Vishwanath v. Harihar Gir (1939), Section 16 read with Section 17 of the Bihar MoneyLenders Act, 1938 was conflicting with Order 21, Rule 66 of the Code of Civil Procedure. The Bihar Act provided that the Court should fix an amount of the property, when it is brought for sale, and not permit its sale below that fixed amount. On the other hand, the Code provided that the Court shall mention the amount of the property which is mentioned by the Decree holder or judgment debtor but is not required to vouch for the correct price of the property. The Court observed that the application of both the provisions at the same time is impossible as they are contradictory to each other. Hence, in substance, there is repugnancy. The Court held the provisions of the Bihar Act void and applied those of the Code.
One can say that the direct test cannot always be beneficial for the society and can be narrow for some complex scenarios. The implementation of the doctrine remains unpreventable.
What if the center intentionally drafted a code for regulating a subject matter and taking it out from the hands of the state. This is not harmonious for the state legislation. Thus a second principle was evolved which provided scope for the judiciary to uphold the intended purpose of the paramount legislation and to avoid narrow arguments..
In the case of State of Assam v. Horizon Union 1967 AIR 442, 1967 SCR (1) 484, the Apex Court undertook the exhaustive code test. For appointing the Presiding Officer of an Industrial Tribunal, the qualifications required by the candidate, as per the State law, were 3 years experience as a District Judge or qualified for appointment as a High Court judge, provided that such appointment could be made only after consultation with the High Court. The challenge, in the present case, was on a candidate who was appointed without any consultation from the High Court. The Supreme Court observed that the Central Act was intended to be an exhaustive code on the subject matter, i.e., the appointment of District Judges as a Presiding Officer and the appointment was valid. However, if a person qualified to be appointed as a Judge of the High Court were to be appointed as the Presiding Officer, the provisions in the State law for consultation with the High Court were still valid. This shows on what narrow field the Central Government was held to have laid down an exhaustive code.
In the above case, the test of direct conflict would have failed in determining the conflict.
Occupying the same field
In Zaverbhai Amaidas v. the State of Bombay 1954 AIR 752, 1955 SCR 799, a convict pleaded that he was convicted by a Court having no jurisdiction. According to the state law, the offense committed by him, that is, transporting food grains without permit attracted imprisonment for a term of 7 years. On the other hand, the Central law prescribed punishment of imprisonment for a term of 3 years for the offense committed by him. An additional provision in the Central law was that the punishment could be increased to 7 years if the person was found possessing double the permitted quantity of food grains. The convict argued that he should have been governed by the provisions of the Bombay Act and not the Central Act which would render the decision of the court a faulty one, and without jurisdiction as the Magistrate who punished him could sentence him for the imprisonment of only up to 3 years. The occupation of the field of both the laws was observed as seen whether they occupy the same field or not. The Supreme Court held that both the laws occupied the same field and cannot be split up. Hence, the State laws were held to be void and the Central law prevailed as per the doctrine of repugnancy.
To ensure the efficiency of governance and to counter any conflict between the powers and interests of the central government and the state government, there needs to be a logical and proper mechanism in place. The doctrine of repugnancy is an effective work-frame to deal with any such issues. It is here to stay for all the time to come and its efficiency will only increase.