INDIAN CONSTITUTION:

REPUGNANCY IN CONCURRENT LIST

SUBMITTED BY

VIJAY KUMAR

DR. RAM MANOHAR LOHIYA NATIOANL LAW UNIVERISTY, LUCKNOW

INTRODUCTION

The essence of federalism lies in the sharing of legal sovereignty by the Union and the
federating units. And, in general, the most precise way of demarcating the respective areas of
the federation and federating units is to demarcate their respective areas in regard to
legislation. There are many reasons for this; but one of the most important, is the demarcation
of legislative power which helps in defining boundaries that of the executive power also, as
usually the former controls the latter.

The constitutional provisions in India on the subject of distribution of legislative powers

between the Union and the States are spread out over several articles (articles 245-254).
However, the most important of those provisions – i.e, the basic one – is that contained in
articles 245-246.

The doctrine of repugnancy describes the situation where a State or territory law is rendered
invalid for being inconsistent with paramount law. Paramount law emanates from the original
source of State or territory legislative power. This, in the case of the Australian States, is the
United Kingdom Parliament, in the past referred to as the Imperial Parliament. Paramount
laws in relation to the States are United Kingdom or imperial laws intended to extend to the
States. Consequently, where a State law is inconsistent with the terms of an imperial
paramount law, the State law is void for repugnancy at common law. Since the Australia Acts
1986, the States are now bound by only three paramount imperial laws: the Commonwealth
of Australia Constitution Act1900 (Imp) which of course includes the Commonwealth
Constitution; the Statute of Westminster 1931(Imp); and the Australia Act 1986
(UK)1.Otherwise the doctrine of repugnancy was abolished in relation to the States by s 3(2)

1
Australia Acts 1986 s 5.
of the Australia Acts 1986. In the case of the territories, their paramount laws are the
enactments of the Commonwealth. Accordingly, territory laws are invalid for repugnancy so
far as they are inconsistent with Commonwealth laws, in particular, their respective Self-
Government Act. Territory laws are also invalid so far as they are inconsistent with the
Commonwealth Constitution – an imperial law. By comparison, no repugnancy arises where
a State law is inconsistent with a Commonwealth law. In such a case, s 109 of the
Commonwealth Constitution provides for the latter to override the former to the extent of the
inconsistency. The State law is merely rendered inoperative so long as an inconsistency
exists, and it revives if the inconsistency is removed2. To understand the doctrine of
repugnancy, it is necessary to outline first the reception of English law in the Australian
colonies.

CONFLICT BETWEEN EXCLUSIVE JURISDICTIONS

The question of a conflict between union and state jurisdiction primarily arises where the
constitution provides two exclusive lists, as in Canada and in India. Since the question is a
legal question, its solution must also be legal, and thus calls for legal interpretation of the
constitutional instrument by the courts.

So far as Canada is concerned, the general principle evolved by the courts in interpreting the
conflicts between ss. 91 and 92 of the British North America Act, 1867, have been already
stated. In the present context the problem will be more fully dealt with in relation to the
Indian constitution.

In the present context, we are not concerned with those overriding provision of the Indian
constitution which have the effect of superseding, the normal distribution of powers made by
the 7th Sch. In specified contingencies, such as article 249-253, which we have just been
mentioned. Now we shall confine ourselves to a normal situation when there is no question of
applying such extraordinary provisions, giving overriding powers to the Federal legislature,
invading the state field.

As already explained, in the normal situation, while a State Legislature shall have exclusive
jurisdiction to make laws for its State with respect to any subject enumerated in List II of the
7th Sch. [Art. 246(1)], the Union Legislature shall have exclusive jurisdiction to make laws
relating to any of the subjects specified in List I [Art. 246(1)]. Since a Union law operates
over the entire territory of India [Art. 245(1)], laws made by both the Union and State
Legislatures operate within the territory of each State. Hence, arises the possibility of a clash
between a Union and a State law, within a particular State in case they profess to relate to the

2
Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 274, 278, 282–3, 286.
same subject of legislation. The problems relating to such conflict may conveniently be
discussed under several heads.

A. The simplest case is where one of the two competing Legislatures professes to
directly legislate as regards a subject which belongs to the Exclusive List of the other
Legislature. In such a situation, the doctrine which is applicable is that of ultra vires,
namely, that the Legislature having transgressed its own powers and invaded a field
assigned by the Constitution exclusively to another Legislature, the law made by it is
incompetent and void.64 65 Under the Indian Constitution, such a situation may arise
when a State Legislature makes a law relating to a subject included in the Union List,
such as Defence (Entry 1 of List I). Conversely, a Union law would be ultra vires, if it
deals directly with a subject included in the State List, e.g., Local government (Entry
5 of List 11), without any constitutional provision sanctioning such enlargement of
the federal jurisdiction and invasion into the State sphere3.

CONFLICT IN CONCURRENT LIST

a. Need for a concurrent list-

The object of a concurrent list of subjects, over which the union and the units have
concurrent power, is uniformity of legislative action. Since the plan of three lists in the
constitutions has been adopted from the Government of India Act, 1935, it would be
profitable to refer to the observations of the joint parliamentary committee, on the point.

"Experience has shown, both in India and elsewhere, that there are certain matters which
cannot be allocated exclusively either to a Central or to a Provincial Legislature, and for
which, though it is often desirable that Provincial Legislation should make provision, it
equally necessary that the Central Legislature should also have a legislative jurisdiction, to
enable it in some cases to secure uniformity in the main principles of law throughout the
country, in others to guide and encourage provincial efforts, and in others again to provide
remedies for mischief’s arising in the provincial sphere but extending or liable to extend
beyond the boundaries of a single province.

Instances of the first are provided by the subject-matter of the great Indian Codes: of the
second by such matters as labour legislation, and of the third by legislation for the prevention
1 and control of epidemic disease.

It would in our view be disastrous if the uniformity of law which the Indian Codes provide
were destroyed or whittled away by the uncoordinated action of Provincial Legislatures. On

3
Ref. under Art. 143, AIR 1965 SC 745 (762).
the other hand, local conditions necessarily vary from Province to Province, and Provincial
Legislatures ought to have the power of adapting general legislation of this kind to meet the
particular circumstances of a Provillce.4" 1

Prof. Wheare5 opposes the creation of a Concurrent List on the ground that the more the
number of words to be interpreted by the courts, the greater arises the scope for litigation and
consequent uncertainty. The question is whether this I uncertainty is greater than that which
results from the American system which uses the minimum number of words in one list and
leaves the rest to judicial decisions. It is precisely to avoid such uncharted wide sea for
judicial speculation that the framers of the Government of India Act, 1935, thought it
advisable to engraft a Concurrent List and the framers of the Constitution of India have
adopted that scheme, obviously, because the experience of the working of the third List was
not discouraging. Further, instead of giving up the Concurrent List, the trend since 1950 is to
transfer to it several Entries from the States' exclusive Listen order to secure uniformity of
legislation. It is remarkable that many of the post-war Constitutions have adopted a Con-
current List. The most conspicuous of these is the Constitution of West Germany, (1949),
which has [Arts. 72 and 74J some 27 subjects in the Concurrent List, with respect to which
the Federal Legislature shall have the power to legislate whenever the interests of uniformity
and effective national control demand federal legislation. It is further noticeable that 3
subjects have been added to the original list of 24, by amendments subsequent to 1949.

The Constitution of Malaysia (1957) has also adopted a Concurrent List [Art.74 (2); List III
of the 9th Sch.]. Likewise, the Constitution of Nigeria (1979) contains a Concurrent List of as
many as 30 subjects [s. 4(4)(a); Part II of the 2nd Sch.]

There are some advocates of State autonomy in India: who still urge that the Constitution
should be revised in order to confine the jurisdiction of the Union t the three subjects of
Defence, External Affairs and Communications. But, apart; from anything else, this plea runs
counter to the lesson derived from a comparative study of Federal Constitutions over the
world. The needs of society have undergone momentous and extensive changes since the 18th
century which gave birth to the American constitution or even the belonging of the 20 th
century which saw the enactment of the Australian constitution Act.

Even the Exclusive Union List (List I of the 7th Sch.) comprehends more subjects than in any
other Constitution, because, as has been explained at the outset, the perspective of the makers
of the Indian Constitution swung from residuary State powers to residuary Union powers as
soon as the Partition of India took place, creating a foreign State through the heart of India. It

4
Joint parliamentary committee on Indian constitutional reforms, 1934, para 51
5
A criticism of concurrent jurisdiction is to be found in wheare, federal Government, (1963) pp-78
is impossible to put the clock back so long as that situation which needs a strong Union
government continues. On the other hand, that situation has aggravated at the time of writing
these pages, when India stands surrounded on all sides by aggressive external forces and torn
by divisive forces within.

b. Problems Arising In The Concurrent Sphere

Where there is a Concurrent List of legislative subjects (as in the Indian Constitution), the
Federal and State Legislatures are both competent to legislate with respect to the same subject
(as specified in the Concurrent List). The question is, therefore, bound to arise as to which of
such laws enacted by the two Legislatures should prevail in case they cannot stand together.
The Constitution itself may indicate (as does Art. 254 of the Indian Constitution) what would
be the result of a clash between such competing legislation. Apart from such express pro-
vision in the Constitution itself, the task of resolving such conflict must be undertaken by the
Courts which have accordingly evolved general principles and tests to determine such
'inconsistency' or 'repugnancy', to supplement or amplify the constitutional provisions.

Even under Constitutions which do not provide any Concurrent List, such as the U.S.A.,
Australia or Canada, judicial interpretation of the exclusive Lists has led to the result that
there is an area where the exclusive jurisdictions of the Federal and State Legislatures
overlap, so that within that area the Courts treat the legislative power as concurrent or
common to both the Legislatures. Once this position is reached, the question of conflict
between laws made by the two Legislatures is bound to arise, and the Courts must offer the
solution. Hence, even under Constitutions of this group, Courts have had to lay down the
principles which are, but for differences in detail, broadly universal. Before entering into a
discussion of these principles, it would be useful to distinguish between several concepts
which often create confusion owing to loose thinking.

c. Ultra Vires And Repugnancy

Ultra vires is more fundamental than repugnancy. Shortly speaking, ultra vires refers to
incompetency, while repugnancy refers to inconsistency.

When a Legislature professes to legislate with respect to a subject which does not belong to
its legislative power, the law becomes ultra vires, e. g . , when a State Legislature, in
India, makes a law with respect to a subject included in List I. Similarly, a Union law may be
ultra vires, if it deals directly with a subject included in List II (i.e., the State List),
without any constitutional provision sanctioning such encroachment.

In ultra vires, there is no question of competition between two Legislature having different
jurisdictions. It operates to invalidate a law made by any Legislature if the legislation goes
beyond the powers assigned to that Legislature by the Constitution. It may operate in relation
to the Legislature's exclusive List if the scope and effect of the impugned law cannot be
related to any of the Entries included in that List or they go beyond the ambit of the Entry
relied upon, after proper interpretation.

But the question of repugnancy can arise only when both the Legislatures are competent to
legislate with respect to the same subject, v/z., a subject included in the Concurrent List (List
III)6. Again, the idea of superiority or paramountcy is involved in the conception of
repugnancy. There is no provision for a Union law to be void by reason of its inconsistency
with any State law. But a State law will be void by reason of its being inconsistent with a
Union law (subject, of course, to CI. (2) of Art. 254). If, however, there is no such
inconsistency, the State Legislature is free to legislate upon that Concurrent subject, without
any consent of the Union.

For the same reason, no question of 'repugnancy' arises where, by the terms of the
Constitution itself, the State Legislature is given the power to legislate with respect to a
subject-matter only so long and in so far as Parliament does not legislate with respect to the
subject-matter, e.g., regulation of mines under Entry 23 and industries under Entry 24 of List
II.

d. .'Inconsistency' and 'repugnancy'

While the Australian Constitution Act [s. 109] uses the term 'inconsistency', the word
'repugnancy' is used in Arts. 251 and 254 of the Indian Constitution. This does not, however,
make any material difference because the two terms have been considered by the Indian
draftsman to be identical, as would appear from the fact that in the marginal notes to both
Arts. 251 and 254, the word 'inconsistency' is used instead of the word 'repugnancy' (or
'repugnant') which occurs in the text of the Articles.

e. Sources of Concurrent Jurisdiction

A study of the leading Federal Constitutions shows that while in some of them there is an
express Concurrent List by which certain specified subjects are open to both the Federal and

6
The suggestion made in Ramchandra v. Dt. Board, AIR 1951 Ori 1 (6) that a question of 'repugnancy' may
arise also where a State law is inconsistent with a Central Act falling under List I is not sound inasmuch as that
would be a case of ultra vires, under CI. (1) of Art. 246, which makes the power of Parliament with respect to
matters in List I exclusive [Cf. Ativa v. Abdul, (1940) 3 FLJ (HC) 83]. The same result would follow where
Parliament seeks to legislate with respect to List II which is committed to the exclusive care of a State
Legislature, by CI. (3) of Art. 246, fCf. Ref. un¬der Art. 143, AIR 1965 SC 745 (762)] subject to certain specific
provisions of the Constitution, e.g., Arts. 249-252. The foregoing view of the Author, expressed as early as
1950, at p. 564 of the 1st Edition of the Author's Commentary on the Constitution of India, has since been
affirmed by nu¬merous decisions of the Supreme Court, so that it has been settled beyond any controversy
that Aft 254 as well as any question of repugnancy can only arise where the Union and State Legislatures have
made conflicting laws in relation to the same subject which is included in the Concurrent (i.e., List III).
State Legislatures, e.g., West Germany, Malaysia , Nigeria and India in some others, such as
the U.S.A, Australia and Canada, a concurrent field has been set up by judicial interpretation.

1. Before going to India, it would be useful to refer to the Constitutions which have
found a concurrent sphere by virtue of judicial interpretation because the principles
evolved by the Courts in those countries are frequently referred to in interpreting the
relevant provisions of the Indian Constitution.

In USA as it has been stated earlier, even though Art. I, s.8 7 grants enumerated powers to the
Federal Legislature, leaving the residue to the States (10th Amendment), judicial
interpretation has held that all the powers granted to Congress by Art. I, s. 8 need not be
exclusive, so as to exclude State legislation altogether with respect to all the matters
enumerated in Art. I, s. 8. The powers so granted to Congress by the Constitution have been
divided by the Courts under two categories:

A. It has been held that only such powers belong to Congress exclusively- (a) as are
expressly vested in the federal government exclusively; (b) as must necessarily be
exercised by the federal government exclusively, in the interest of uniformity; (c) as are
given to Congress and prohibited to the States,—by the Constitution.

The following powers of Congress have thus been held to be exclusive—De-B fence and
War [Art. I, s. 8(1), (11)-(14)]; taxation of income [16th Amendment]; coinage and currency
[Art. I, s. 8(5)]; borrowing money on the credit of the U.S. [Art. I, s. 8(2) ]8.

B. All other powers are concurrent in the sense that—

"The States may also exercise jurisdiction over them so long as the federal government
takes no action or so long as the States' action is not in conflict with that of the federal
government."

In reality, the powers of the States thus are not concurrent, but subordinate. Instances of
such concurrent subjects are—Bankruptcy; regulation of public utilities, food and drug
regulation; regulation of electric power and gas; planning; public welfare and social
insurance; copyrights9 and patents; census and statistics; weights and measures; quarantine.

In short, as will be explained more fully hereafter, though these second category of
powers are also included in Art. I, s. 8, the Court would permit State legislation on these
subjects except in cases such as the following:

7
S.C.W, p77.
8
Norman v. Baltimore Co. (1935) 213 US 294 US 240
9
Watson v. Buck (1941) 313US 387
 (a) Where the scheme of federal regulation is so pervasive as to make reasonable the
inference that the Federal Legislature left no room for the States to supplement it;

(b) Where the field to which the legislation relates is such that the federal interest is so
dominant that the federal system must be assumed to preclude enforcement of State laws on
the subject10;

(c) Where the enforcement of the State statute would present a serious danger of conflict
with the administration of the federal programme11.

(d) Where the State statute is directly inconsistent with a federal law on the subject.

The principle, upon which the Court would invalidate a conflicting State law in a case
like the above, is of 'federal supremacy', embodied in Art. VI, s. 2, which must be dealt with
separately.

DOCTRINE OF OCCUPIED FIELD

In applying the first principle, namely, whether the federal regulation is so pervasive as to
preclude any legislation by the States, the Court has evolved the doctrine of 'occupied field',
around which has grown up a mass of case-law, relating to the second category of powers
included in Art. I, s. 8, which are judicially regarded as 'concurrent'. According to this
doctrine, the States are enabled to legislate in this sphere by reason of the fact that Congress
does not exercise its enumerated powerfully or over the entire field of the subject-matter
under its jurisdiction.

Thus, though it has exclusive power over 'inter-State commerce' [Art. I, s. 8], it may not
choose to regulate inter-State trade in all its aspects. To the extent of such Congressional
inaction, a State may enter into the federal sphere to exercise its reserved 'police power', in
respect of matters of a local character, e.g., health, safety or convenience of local areas 12.

The police power of the States would, however, be superseded where it is evident that
Congress intended to 'occupy' the entire field to the exclusion of any State jurisdiction. Such
intention to occupy the entire field may be evidenced in several ways:

(a) The scheme of the federal regulation may be so pervasive as to make reasonable the
inference that Congress left no room for the State to supplement it

10
U.S v. Yazell (1966) 382 US 341.
11
Ibid. See note 10

12
Parker v. Brown, (1934) 317 US 341
 (b) The Act of Congress may touch a field in which the federal interest is so dominant
that the federal system will be assumed to preclude the enforcement of State laws on the
same subject.

(c) The object sought to be obtained by the federal law and the character of the
obligations imposed by it may reveal the same purpose.

REPUGNANCY BETWEEN UNION AND STATE LAWS UNDER ARTICLE-254

Article 24 of the Indian Constitution clearly says that

(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 is 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 the 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.”

The question of repugnancy properly arises in connection with the Concurrent List (List
III), 7th Sch. Under Art. 246(2), ante, both the Union and the State Legislatures have
concurrent powers to legislate with respect to this List. Logically, therefore, legislation by
both Legislatures relating to the same subject-matter within List 111 shall be valid. Hence,
"an absurd situation would result if two inconsistent laws, each of equal validity, could exist
side by side within the same territory13". The instant Provision has been engrafted to
obviate such an absurd situation.

Though the words 'competent to enact' in cl. (1) are rather wide and might include laws
made under List I as well. The scope of cl. (1) is made clear by the words 'subject to the
provisions of cl. (2)', for cl. (2) contemplates only a State law relating to the Concurrent
List. Hence, cl. (1) speaks of repugnancy between a Central law and a State law, relating to

13
Subramaniam v. Muthuswami, (1940) FCR 188 (200).
 the same matter included in the Concurrent list14.

This view of the Author, expressed at p. 561 of the First Edition of this Commentary, was
questioned in some quarters. But it has now been clearly confirmed by the Supreme Court
in Prem Nath v. State of J. &K. in the following words—

"The essential condition for the application of Art. 254(1) is that the existing law must
be, with respect to one of the matters enumerated in the Concurrent List; in other words,
unless it is shown that the repugnancy is between the provisions of a subsequent law and
those of an existing law in respect of the specified matters, the Article would be
inapplicable."

Where one of the two Acts of Parliament was enacted under Entry 66 of List I and the
other under Entry 25 of List III, they cannot be repugnant to each other and there is no
scope for the applicability of this article. When both laws fall under different heads of the
concurrent list, no question of repugnancy arises.

The verb "made" in Art. 254 brings out the constitutional emanation that it is the making
of the law by the respective constituent Legislature, namely, the Parliament and State
Legislature as the decisive factor and not its commencement. Inconsistency or
incompatibility in the law on a concurrent subject, by operation of Art. 254, cl. (1) and (2)
does not depend upon the commencement of the respective acts made by Parliament and the
State Legislature. Incompatibility or repugnancy would be apparent when the effect of the
operation is visualized by a comparative study.

It is held that the test of two legislations containing contradictory provision is not,
however, the only criteria for repugnancy, for, if a competent Legislature with a superior
efficacy expressly or impliedly evinces by its legislation an intention to cover the whole
field, the enactment of the other Legislature whether passed before or after would be
overborne on the ground of repugnancy. Where such is the position, the inconsistency is
demonstrated not by a detailed comparison of provision of the two legislations, but by the
mere existence of the two pieces of legislation.

According to NICHOLAS ON AUSTRALIAN CONSTITUTION (2nd Edn. at p. 303),

(I) There may be inconsistency in the actual terms of the competing statutes; (2) Though
there may not be no direct conflict, a State law may be inoperative, because of the
Commonwealth law, or the award of the Commonwealth Court is intended to be a complete
and exhaustive Code; (3) Even in the absence of intention, conflict may arise when both

14
Annamalai University v. Information & Tourism Dept., (2009) 4 SCC 590; See also Southern Petrochemicals
Industries Ltd. v. Electricity Inspector & ETIO, (2007) 5 SCC 447
 State and Commonwealth seek to exercise their powers over the same subject matter. These
tests have been accepted by our Supreme Court also.

The question then arises, which one shall prevail in case an Act of one Legislature be in
conflict with an Act of the other, relating to the same subject, in the Concurrent sphere.

The answer is given in the different Clauses of the present Article, as follow:

INTERACTION OF SEVERAL CLAUSES OF ARTICLE 254

I. Clause (1) lays down the general rule that in case of repugnancy of a State law with a
Union law relating to the same matter in the Concurrent List, the Union law will prevail and
the State law will fail to the extent of the repugnancy, whether the Union law is prior or
subsequent to the State law.

But this clause operates only when repugnancy exists in fact and not when there is mere
possibility with an order which might be issued under the Central Act "in future15

II. But to this general rule, cl. (2) engrafts an exception, viz, that if the President assents
to a State law which has been reserved for bis consideration Art 254(2) it will prevail
notwithstanding its repugnancy to an earlier law of the Union16. This exception, again, is to
be read subject to the Proviso. The Proviso to cl. (2) of the present Article empowers the
Union Parliament to repeal or amend a repugnant State law even though it has become valid
by virtue of the President's assent This power, however, may be exercised by Parliament
only by making another law relating to the same concurrent subject But before cL (2) could
be invoked, there must be repugnancy between the State Act and an earlier Act of
Parliament ID effect.

REPUGNANCY UNDER LAW ENACTED BY PARLIAMENT

Under article 254 (1) clearly provides some condition for the application of this provision.
In M. Karunanidhi v. Union of India,17 it was held as follows: (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, but there is room or
possibility of both the statutes operating in the same field without corning into collision with
each other, no repugnancy results. (4) That there is no inconsistency, but a statute occupying

15
B.sugar co. v. State of Rajasthan (1999) 9 SCC 620
16
Geofory v. Riggs (1989)133 US 253
17. M. Karunanidhi v. Union of India, AIR 1979 SC 898 : (1979) 3 SCR 254 : (1979) 3 SCC 431
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.

In Zaverbhai Amaidas v. State of Bombay18 it was held that to establish repugnancy, it is

not necessary that one legislation should say "do" what the other legislation says "don't" and
that repugnancy might result when both the legislations cover the same field. To make itself
clearer, it also agreed with MAXWELL ON INTERPRETATION OF STATUTES

"that if a later statute again describes an offence created by a previous one, and imposes a
different punishment or varies the procedure, earlier statute is repealed by the later statute".

But in Karunanidhi's case, the above principle was not applied. In that case, Tamil Nadu
Public Men (Criminal Misconduct) Act, 1973 as amended in 1974 (State Act) was not
repugnant to any of the provisions of the Indian Penal Code (existing law) or the Prevention
of Corruption Act, 1947 (Union Act) because there was no "direct conflict between the State
and Union Acts though they occupied the same field. In that case, the Court held:

"Although the ingredients of criminal misconduct as defined in s. 5(l)(d) of the Prevention

of Corruption Act are substantially the same, in the State Act, than the one contained in the
Central Acts. It is, therefore, manifest that the State Act does not contain any provision which
is repugnant to the Central Act, but is a sort of complimentary Act which runs 'pari passu'
the Central Acts mentioned above".

Uniformity of law, being the basic characteristic of Indian jurisprudence, cannot be termed
to be at sufferance by reason of a State legislation. It is not necessary that one legislation
should be on the positive side whereas the other one is on the negative, such a stringent
requirement is not the requirement in order to bring home the issue of repugnancy, but all the
same, it might result when both the legislations cover the same field.19

Recourse to Art. 254 would be resorted to only when there exists direct conflict between
the Central legislation and State legislation and not otherwise. Both the laws would
ordinarily be allowed to have their play in their own respective fields. When the field of
legislation is the same, a question would arise as regards the effect of one Act over the other
in the event of it being found that there exists a conflict. For the said purpose, it is not
necessary that the conflict would be direct only in a case where provisions of one Act would
have to be disobeyed if the provisions of the other are followed. The conflict may exist even
where both the laws lead to different legal results.

The question of repugnancy between Parliamentary legislation and State legislation can
arise in two ways.

18. Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752 : (1955) 1 SCR 799 See akn rw„ Chand v. State of UP., AIR 1959 SC
648. L*ep
19. Kaur v. Cardial Singh Mann, AIR 2001 SC 1273 : (2001) 4 SCC 262.
 (1) Where the legislations, though enacted with respect to matters in their allotted sphere,
overlap and conflict.

(2) Where the two legislations are with respect to same 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 Art. 246(1), in the second by reason of Art.
254(1 ).

There could be no repugnancy between the Central and State law passed on matters in
List I and the State laws in pith and substance falling under List II. If either Parliament or
State trenches upon the field of the other, the law will be ultra vires?

One of the important tests to find out as to whether or not there is repugnancy is to
ascertain the intention of the Legislature regarding the fact that the dominant Legislature
allowed the subordinate Legislature to operate in the same field 'pari passu’ the State Act,
and there will be no inconsistency where the State Act and Central Act are supplemental to
each other.

In Vijay Kumar Sharma v. State of Karnataka20, the Court summarised the law and
laid down eleven ways in which seven important repugnancy or inconsistency may arise.

(1) There may be direct repugnancy between the two provisions;

(2) Parliament may evince its intention to cover the whole field by laying down an
exhaustive code in respect thereof displacing the State Act, provision or provisions in that
Act. The Act of Parliament may be either earlier or subsequent to the State law;

(3) The inconsistency may be demonstrated not necessarily by a detailed comparison of

the provisions of the two pieces of law, but by their very existence in the statutes;

(4) Occupying the same field; operational incompatibility; irreconcilability or actual

collision in their operation in the same territory by the Act/provision or provisions of the
Act made by the Parliament and their counterparts in a State law, are some of the true tests;
(5) Intention of Parliament to occupy the same field held by the State Legislature may not
be expressly stated but may be implied, which may be gathered by examination of the
relevant provisions of the two pieces of legislation occupying the same field;

(6) If one Act/provision in an Act makes lawful that which the other declares unlawful,
the two to that extent are inconsistent or repugnant The possibility of obeying both laws by
waiving the beneficial part in either set of the provisions is not the sure test;

20
AIR 1990 SC 2072 : (1990) 2 SCC 561
 (7) If the Parliament makes law conferring a right/obligation/privilege on a citizen/person
and enjoins the authorities to obey the law.

The State law does not become void as soon as the Union Parliament legislates with
respect to the same subject. There is nothing to prevent the State Legislature to legislate
with respect to a Concurrent subject merely because there is a Union law relating to the
same subject Article 254(7) is attracted only if the State law is 'repugnant' to the Union Act,
which means that the two cannot stand together.

The State law must be 'repugnant' to an existing law or a law of Parliament

"The Concurrent List is not a forbidden field to the Provincial Legislature and the mere
fact that the Provincial Legislature has legislated on any matter in the Concurrent List is not
enough to attract the mischief of s. 107 of the Government of India Act, 1935. There must
be repugnancy between such legislation and an existing law, law prevail, unless the
procedure laid down in Sub-sec. (2) of s. 107 was followed. In short, the American doctrine
of 'occupied field' is not to be applied to test the validity of a State law relating to List HI. It
is not true, in India, that a State law relating to a Concurrent List will be valid only so long
as the Union Parliament does not legislate with respect to the same matter, the State law
will be invalid only if it is 'repugnant' to the Union law whether prior or subsequent to it. in
point of time. Of course, for the purpose of determining 'repugnancy' the intention of
Parliament to cover the entire field may be a relevant consideration.

'REPUGNANCY', 'INCONSISTENCY' AND 'IMPLIED REPEAL'

'Repugnant* literally means 'inconsistent with'. Etymologically,—

"things are inconsistent when they cannot stand together at the same time, and one law is
inconsistent with another law when the command or power or provision in the one law
conflicts directly with the command or power or provision in the other...as when one
Legislature says 'do' and the other says 'don't".

If the provisions in the two legislations relate to the same subject matter, to the same
situation and both substantially overlap and are co-extensive and at the same time so
contrary and repugnant in their terms and impact that one must perish wholly, if the other is
to prevail at all, then they are inconsistent.

So, a State law is not inconsistent with a Union law if it is possible to obey the State law
without disobeying the Union law. Technically, this is called the test of obedience'. But the
test of obedience is not an exhaustive one, for there may be inconsistency between two laws
though both say 'don't, e.g., when both impose prohibitions against the same act, but one of
 them is more stringent than the other.

It is not necessary that the conflict would be direct. Only in a case where the provisions
of one act would have to be disobeyed if the provision of the offer are followed. The
conflict may exist even where both the laws lead to different results.

The principle of Implied Repeal is that if the provisions of a later enactment of the same
Legislature) are so plainly repugnant to the provisions of an earlier enactment relating to the
same subject that effect cannot be given to both at the same lame, the Courts will imply a
repeal of the earlier enactment by the latter21. The Supreme Court has indicated that the test
applied for repugnancy under Art. 254 may be applied for solving a question of implied
repeal and that it should be seen (1) whether there is a direct conflict between the two
provisions; (2) whether the Legislature intended to lay an exhaustive Code in respect of the
subject matter replacing the earlier law; (3) whether the two laws occupy the same field. If
the two laws "operate in the same field" without collision, they cannot be said to "occupy
the same field" and there is no inconsistency and consequently no implied repeal unless the
law subsequently enacted is intended to be an exhaustive Code. Further, it is the point of
time of making the Jaw and not its commencement in deciding which is the prior law and
which is the later law for the purpose of Art. 254 of the Constitution22.

In order to operate as implied repeal the inconsistency must appear on the face of the
later statute in relation to the earlier one23. Thus,

(a) When the punishment or penalty is altered in degree but not in kind, the later
provision would be considered as superseding the earlier one24

(b) A later Act which alters the quality and incidents of an offence would be construed as
impliedly repealing the old Act25.

(c) There is a clear inconsistency when a later enactment penalises an act the
performance of which is enjoined by an earlier one26. There is however, no inconsistency
merely because a later enactment makes an act an offence which was not declared to be an
offence by the earlier Act27.

(d) If two statutes give authority to two public bodies to exercise power which cannot
consistently with the object of the Legislature co-exist, the earlier must necessarily be
21
Michell v. Brown, (1859) 1 EH & EH 267 (274)
22
Rishikesh (Pt.) v. Smt. Salma Begum, (1995) 4 SCC 718 : (1995) 2 SCJ 496
23
Zaverbhai v. State of Bombay, (1955) 1 SCR 799; Barai v. Henry, AIR 1983 SC 150 (paras. 17-18, 25-26)
24
AG v, Lockwood. (1842) 9 M&W 378 (391): MAXWELL, 10th Edn., 187;
25
Lee v. Dangar. (1892) 2 QB 377 (348).
26
Cf. Southern R. Co.v. Reld, 222 US 424
27
Basant lal v. Bansi lal AIR 1961 SC 823
 deemed to have been repealed by the later statute28.

SOME GENERAL RULES RELATING TO REPUGNANCY

1. Repugnancy is a question to be determined by the Courts and not by either of the two
Legislatures concerned29.

2. When a statute is challenged as repugnant to a paramount law, the onus of showing

the repugnancy and the extent thereof is on the party who attacks the validity of the
legislature for the presumption is that a legislature does not exceed its jurisdiction and
the court should make every attempt to reconcile the provision of the apparently
conflicting enactment.

There is no repugnancy unless the two Acts are wholly incompatible with each other or the two
together would lead to absurd remits. The question of repugnancy UNDER Art, 254(I) between a
Central law and State law arises only in cases where both the legislation occupy the same field with
respect to one of the matters ENUMERATED in List 111 of Seventh Schedule and there is a "direct
contact" between THE TWO JAW, ft is only when both the conditions are satisfied, the State law win
be HELD TO BE repugnant and hence void.
3.
BUT IT was also held that the test of two legislations containing contradictory provision is not
the only criterion of repugnance. Repugnancy may arise between THE CENTRAL LAW and State
law, even though obedience to each of them is possible WITHOUT disobeying the other if a
competent Legislature with a superior efficacy EXPRESSLY or impliedly evinces by its
legislation an intention to cover the whole field AND THE enactment of the other Legislature
whether passed before or after would be OVERBORNE on the ground of repugnance.

4. NO question of repugnancy arises unless the law made by Parliament and the LAW MADE BY the
State Legislature occupy the same field.1 If they deal with separate AND DISTINCT matters
though of a cognate and allied character, repugnancy does not ARISE e.g., where the State Act
deals with a subject-matter other than that of the UNION Act.

EFFECT OF THE REPUGNANCY

In case of repugnancy, the state law becomes void to the extent of repugnancy. Hence
when the repugnancy is removed – by repeal of expiry of the union law itself, the state
law would revive and become again operative. In shorts the state law, in so far as it is
repugnant, “shall remain in abeyance” until the union law is repealed by parliament.

This is the view taken under the corresponding provision in s. 109 of the Australian
Constitution Act. where, of course, the word 'invalid* is used. In the Author's opinion,

28
R v. Justice of Middlesex (1831) 2 B and Ad 819
29
A.G. of Ontario v. A.G.for Canada, (1896) AC 348
 the use of the word "void* in Art. 254(1) of our Constitution should not lead to a
different interpretation. For. Art. 254 does not take away the competence of the Stale
Legislature to make a law relating to a subject in tine Concurrent List but merely lays
down that if it is to repugnant to the provisions of a Central law. it shall be void to the
extent of the repugnancy. Hence, so long as mere in no Central law m the field, the law
enacted by the State Legislature is valid but when the Central lav is enacted, the
invalidity of the State law arises from the moment of enactment of the Central law if the
State law is repugnant to its provisions. Hence, if such Central tor is thereafter repealed,
the State law will revive with effect from the date of repeal of the Central law.

VALIDITION OF PRESIDENT ‘S ASSENT

To the general rule laid down in cls. (1), (2) engrafts an exception2 viz., that if the
President assents to a State law which has been reserved for his consideration (Art, 200),
it will prevail notwithstanding its repugnancy to an earlier law of the Union, both dealing
with a concurrent subject30. Art. 254(2) only deals with legislative supremacy and not
legislative competency31. This exception, again, is to be read subject to the Proviso.

This clause is confined to a case of 'repugnancy' between a State and a Union law
relating to the same subject enumerated in the Concurrent List. In such a case, the State
law shall prevail notwithstanding such repugnancy, if it receives the assent of the
President. It has no application to any State law which is ultra vires, e.g., if it
substantially relates to a subject in List I. In such a case the State law is void ab initio and
no consent of the President can validate it. The present clause has nothing to do with
vires or competency.

It is further held that State law prevails only qua such Acts of the Union on matters
falling under the Concurrent List for which "repugnancy" was pointed out and assent of
President was sought for in the proposal made by the State Government and not qua other
Central Acts. It was held that "Consideration by the President" and "his assent" are
limited to such proposal only. For finding out whether "assent" given by the President is
restricted or unrestricted, the letter written or the proposal made by the State Government
for obtaining "assent" is to be looked into. It was observed that such a controversy can be
avoided if at the commencement of the Act, it is stated that the Act has received the

30
Karunanidhi v. UOI 1979 SC 898
31
ITC Ltd. v. Agricultural produce Market committee, AIR 2002 SC 852
 assent with regard to the repugnancy between the State law and "specified central law or
laws". In the concurring judgment, it was observed that the President has to be appraised
of the reasons atleast as to why his assent is being sought, the need or necessity and
justification or otherwise for claiming predominance for the State law concerned. This
itself would postulate an obligation to enumerate or specify and illustrate a particular
Central law or provision with reference to which the predominance is required. It was
observed that the President has to necessarily consider the nature and extent of
repugnancy, the feasibility, practicalities and desirabilities involved therein before
arriving at a conclusion to grant or refuse to grant or even grant partially, if repugnancy is
with reference to more than one law in force made by Parliament. The "reservation for
consideration" would necessarily obligate an invitation of the attention of the President as
to which of the pre-existing Central enactments or which provisions of those enactments
are considered or apprehended to be repugnant, with reference to which the assent
envisaged in Art. 254(2) is sought for.

Hence, the validity of an Act assented to by the President St be challenge*, on the

ground that there was no proper ground for the Governor to reserve the Bill for i he
assent of the President.

Limitations of validation by President's assent

The validation of the State law by the application of cl. (2) is subject to the following
conditions and limitations—

a. The Central Act will give way to the State Act only to the extent of inconsistency
between the two, and no more.

b. The President's assent to an Amending Act cannot cure the repugnancy of the
principal

c. The predominance of the State law may be taken away if Parliament legislate* under the Proviso to cl.
(2).
In short, the result of obtaining the assent of the President to a State Act which is
inconsistent with a previous Union law relating to a Concurrent subject would be
that the State Act will prevail in that State and will over rule the provisions of the
Central Act in their applicability to that State only. This state of affairs will exist
only until Parliament may, at any time, make a law adding to or amending or
varying or repealing that State Act. Before the assent is sought for, the attention
of President must be drawn to the repugnancy between the earlier Central law and
the contemplated State legislation and the reasons for having such a State law. It is
held that when the Constitution extends a form of protection to a repugnant State
 law, permitting predominance and also to hold the field in the place of the law
made by the Centre, conditional upon the reservation of the State law for
consideration of the President and obtaining his assent, it is to be necessarily
viewed as an essential pre-requisite to be effectivel y and meticulously fulfilled
before even availing of the protection and the same cannot be viewed merely at a
ceremonial ritual.

EFFECT OF THE REPUGNANCY

In case of repugnancy, the State law becomes void 'to the extent of repugnanc32y. Hence, when the repugnancy
is removed—by repeal or expiry of the Union law itself, the State law would revive and become again operative. In
short, the State law, in so far as it is repugnant, "shall remain in abeyance" until the Union law is repealed by
Parliament.
This is the view taken under the corresponding provision in s. 109 of the Australian Constitution Act. where, of
course, the word 'invalid” is used. In the Author's opinion, the use of the word “void” in Art. 2540) of our
Constitution should not lead to a different interpretation. For. Art. 254 does not take away the competence of the
State Legislature to make a law relating to a subject in the Concurrent List bat merely lays down that if it is to
repugnant to the provisions of a Central law. it shall be void to the extent of the repugnancy. Hence, so long as mere
in no Central law m the field, the law enacted by the State Legislature is valid but when the Central law is enacted,
the invalidity of the State law arises from the moment of enactment of the Central law if the State law is repugnant to
its provisions. Hence, if such Central tor is thereafter repealed, the State law will revive with effect from the date of
repeal of the Central law.

CONCLUSION
In my opinion after looking the repugnancy in between centre and state under concurrent list after looking lots of
case and judicial decision by Supreme Court like in
a. Deep Chand v. State of Uttar Pradesh,
b. Zaverbhai v. State of Bombay,
c. Tika Ramji case,

32
Deep Chand v. State of Uttar Pradesh AIR 1959 SC 648
d. Hoeist pharma ,
e. Karunanidhi v. UOI,
The SC find that under Article 254 talks about the central dominance means central legislation prevail over state
legislation and also if we looked up the proviso of the Art-254 (2) bring more centralized tendency if law passed by
the parliament and it comes with the conflict with the stale legislation and the state receive the assent but the
parliament have the power to amend or repal the state legislation. So it shows the more centralized tendency.

BIBLIOGRAPHY:-
Books-
1. Halsbury law of India, Constitutional Law –II, vol-35, LexisNexis Buttor worths, New Delhi.
2. Bakshi P.M., The Constitutional Law of India, Seventh Edition, Universal Law Publication
Co. Pvt. Ltd., New Delhi, 2006
3. Jain M.P., Indian Constitutional Law, Fifth Edition, LexisNexis Butterworths wadhwa,
Nagpur, 2006
4. Seervai H.M., Constitutional Law of India, Fourth Edition, Vol. 3, Universal Law Publication
Co. Pvt. Ltd., New Delhi, 2006.
5. Singh M.P., Indian Legal and Constitutional History, Eighth Edition, Universal Law
Publication Co. Pvt. Ltd., New Delhi, 2006
6. Pandey J.N., Constitutional Law of India, Forty Third Edition, Central Law Agency
Allahabad,2006
7. Rai Kailash, The Constitutional Law of India, Seventh Edition, Central Law Publications
Allahabad,2008
Article-
a. Basu. D.D, Repugnancy between provincial and federal legislation in India, AIR 1949, pp-17-
18
Websites –
1. http://www.ebc-india.com/lawyer/articles/663.htm
2. http://lawmin.nic.in/ncrwc/finalreport/v2b3-3.htm
3. http://www.legalservicesindia.com/article/article/laws-relating-to-mines-&-minerals-
in-india-679-1.html
4. http://ebooks.cambridge.org/chapter.jsf?bid=CBO9780511607288&cid=CBO978051
1607288A042