Sunday, May 19, 2019
Doctrine of Repugnance
From time immemorial, legislative bodies gain been enacting justnesss all over the world. With the enactment of integritys by different legislative bodies all over the world, conflict of legalitys is an needed issue. However, in this article I ordain mainly be focusing on the conflict of virtues with compute to India. In India, in that respect be three wings of the Government, namely, The legislative body, The Judiciary and the Executive. The legislature has the impartiality making powers for the entire country. The legislature is further divided into the Centre and the arouse.Doctrine of Repugnancy deals with the conflict of laws betwixt the utter and the Centre. Part XI of the Indian organic law describes the legislative relations mingled with the enjoins and the Centre. The legislative field of the parliament and the asseverate Legislatures has been undertake in name 246 of the Constitution whereas article 254 of the Indian Constitution describes the mechani sm for resolution of conflict between the Central and the State legislations enacted with follow to every matter enumerated in tendency III of the seventh Schedule. discordant juridic pronouncements have declared the pre-conditions for the application of the doctrine of repugnancy. In the case of M. Karunanidhi v. federation of India, the Constitutional remove laid down the tests for the application of the Doctrine of Repugnancy, which is as follows 1. That in order to decide the question of repugnancy it must(prenominal) be shown that the two enactments contain inconsistent and inharmonious supply, so that they netnot stand together or run for in the same field. 2. That on that point can be no repeal by implication unless the diversity appears on the face of the two statutes. . That where the two statutes enliven a particular field, and there is board or possibility of both the statutes operating in the same field without coming into collision with severally other, no repugnancy results.4. That where there is no inconsistency but a statute occupying the same field seeks to bring in distinct and se parityte offences, no question of repugnancy arises and both the statutes continue to lock up in the same field. In interior(a) Engineering Industries Ltd. Vs. Shri Kishan, the Supreme coquette observed In order that a question of repugnancy whitethorn be arise, two conditions must be fulfilled, namely that the State Law and the Laws of the coupler must operate the name field and one must be irreconcilable or inconsistent with the other. From the plain discipline of the names 246 and 254 it is clear that in case of a conflict between the Union laws and State laws, it is the Union law which shall feed if it is do within an entry of List III of the Constitution. In such a scenario if whatever provision of a State-made law is in conflict with the fan tanmade law under such circumstance the State-made law is declared void to the purpose of repugnancy.However, this general rule is subject to Clause (2) of Article 254 of the Indian Constitution. The Clause (2) of the say Article says that that the State law will become void to the period of repugnancy unless the State law has been reserved for the assent of the chairman. If the Preseident grants his assent to the said state law, accordingly the Union law, to the extent of its repugnancy will become void in that state. However, this does not curtail the power of the 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.Thus, what is visible to us by analyzing the various judicial pronouncements and by going through the Constitution is that both the Centre and the State have supreme powers with dissemble to enacting the laws for their respective domains but in the presence of a conflict, it is the Centre-made laws which shall prevail in m ost cases. The Supreme Court in Zameer Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra has examined the law relating to the Doctrine of Repugnancy. In essence, Part XI of the Indian Constitution describes the legislative relations between the States and the Centre.Further, Article 254 turn overes the doctrine of Repugnancy which acts as a safeguard to solve disputes arising between the states and the Union. The term Repugnancy means inconsistency between the State-made law and the Union-made law. The relevant extracts from the judgment are reproduced hereunder 46. onward we proceed to analyze the said aspect, it would be appropriate to understand the circumstances in which repugnancy would arise. 47. Chapter I of Part XI of the Constitution deals with the subject of distribution of legislative powers of the Parliament and the legislature of the States.Article 245 of the Constitution provides that the Parliament whitethorn engender laws for the whole or any part of the ter ritory of India, and the legislature of a State may make laws for the whole or any part of the State. 48. The legislative field of the Parliament and the State Legislatures has been contract in Article 246 of the Constitution. Article 246, reads as follows 49. We may now refer to the judgment of this Court in M. Karunanidhi v. Union of India, (1979) 3 SCC 431, which is one of the most authoritative judgments on the present issue.In the said case, the principles to be applied for determining repugnancy between a law made by the Parliament and a law made by the State Legislature were considered by a Constitution Bench of this Court. At paratrooper 8, this Court held that repugnancy may result from the next circumstances 1. Where the provisions of a Central identification number and a State make believe in the Concurrent List are amply inconsistent and are abruptly irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.Where h owever a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. 3. Where a law passed by the State Legislature while being substantially within the backdrop of the entries in the State List entrenches upon any of the Entries in he Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential. 4. Where, however, a law made by the State Legislature on a subject cover by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protect ed by obtaining the assent of the President under Article 254(2) of the Constitution.The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. In para 24, this Court further laid down the conditions which must be satisfied before any repugnancy could arise, the said conditions are as follows- 1. That there is a clear and direct inconsistency between the Central Act and the State Act. 2. That such an inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two Acts is of such temperament as to bring the two Acts into direct collision with each other and a situation is reached where it is unthinkable to obey the one without disobeying the other. Thereafter, this Court after referring to the catena of judgments on the subject, in para 38, laid down following propositions- 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 coming into collision with each other, no repugnancy results.4. That where there is no inconsistency but a statute occupying 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. 50. In Govt. of A. P. v. J. B. Educational Socie ty, (2005) 3 SCC 212, this Court while discussing the celestial orbit of Articles 246 and 254 and considering the proposition laid down by this Court in M. Karunanidhi case (supra) with respect to the situations in which repugnancy would arise, in para 9, held as follows- 9. Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I, notwithstanding anything contained in clauses (2) and (3) of Article 246. The non obstante clause under Article 246(1) indicates the predominance or supremacy of the law made by the Union Legislature in the event of an overlap of the law made by Parliament with respect to a matter enumerated in List I and a law made by the State Legislature with respect to a matter enumerated in List II of the Seventh Schedule. 10. There is no doubt that both Parliament and the State Legislature are supreme in their respective assigned fields.It is the duty of the court to interpret the legislations made by Parliament and the St ate Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List. 11. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State Legislature have equal competence to legislate.Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State Legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict. Thereafter, this Court, in para 12, held that the question of repugnancy between the parliamentary legislation and the State legislation could arise in following two ways- 12. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict.Second, where the two legislations are with respect to 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 Article 246(1), in the second, by reason of Article 254(1). Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained Presidents assent, prevails in that State this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation. 51. In National Engg. Industries Ltd. v. Shri Kishan Bhageria (1988) Supp SCC 82, Sabyasachi Mukharji, J. , opined that the best test of repugnancy is that if one prevails, the other cannot prevail. fictitious character Study Vijay Kumar Sharma V State Of Karnataka (Air 1990 Sc 2072) by Sayontika Das Part XI of t he Indian Constitution describes the legislative relations between the States and the Centre.Article 254 to establish the doctrine of Repugnancy is one of the laws laid down under the Indian Constitution as a safeguard to solve disputes arising between the states and the Union. Repugnancy is meant to express conflict, whereby there is an expressed inconsistency between the State-made law and the Union-made law. Case detailsBench Majority opined- Mishra Rangnath, Sawant P. B and desenting view Ramaswamy. K. Relevant statutory provisions (i) Karnataka Contract Carriages (Acquisition) Act (21 of 1976) s. 14 & s. 20 (ii) Motor Vehicles Act 1988 s. 74 & s. 80(2) and (iii) The doctrine of Repugnancy Article 254 of the Indian Constitution. Reference cases (i) Ch. Tika Ramji v. State of Uttar Pradesh (AIR 1956 SC 676) (ii) Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR 1983 SC 1019). Case Study The doctrine deals with List (III) schedule (VII) which declares both the Union and State l egislatures competent to legislate. However in case of conflict between the laws, the Union law will prevail if it is made within an entry of List (III), irrespective of whether it the Union law is made by before or after the State Legislature. According to Article 254 (1) an overriding effect is provided to the provisions of a Parliament-made law which the Parliament is competent to enact or in with respect to any matter as enumerated in the List III of Schedule VII.In such a scenario if any provision of a State-made law is in conflict with the Parliamentmade law under such circumstance the State-made law is declared void to the extent of repugnancy. Under List III named as the Concurrent List in Schedule VII of the Indian Constitution both the Union and State Legislatures are competent to make laws on any of the entries mentioned therein. However they are subject to Clause (2) of Article 254 only in case, there is no conflict between the provisions of the said State-made law and a Central Act on the subject.However in case there is a repugnancy in question of a State law and Union law enumerated on one of the subjects of List III, the State law must yield to the Union law unless it has already been reserved for the assent of the President and has duly received so under Article 254 (2). The question of repugnancy therefore rightfully arises when there is a direct conflict between the provisions of the State law and the Union law on the same occupied field. Laws are said to be repugnant ideally when they get involved into taking responsibility for obedience to a higher authority.Simultaneously however certain inconsistent enactments to each of these laws may sometimes be possible without disobeying the other. Thus a competent instance for repugnancy arises only when legislation falling in List III, the Concurrent List can be cured by resorting to Article 254 (2). The question of repugnancy under Article 254 arises when the provisions of both laws are fully in consistent or are absolutely irreconcilable and it is impossible to obey without disobeying the other, or conflicting results are produced when both the statutes covering the same field are applied to a given set of facts.