DO THE DOCTRINE OF REPUGNANCY AND SPIRIT OF FEDERALISM GO HAND IN HAND?

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 Black’s 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.

TheHon’ble 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 Hon’ble 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 “don’t” 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