Doctrine of Repugnancy Article 254 deals with a situation where the State legislation having been reserved and having obtained President's 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.

Introduction

It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of Repugnancy in India. 

According to Black’s Law Dictionary, Repugnancy could be defined as “an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or a contract)”. Before understanding the Doctrine of Repugnancy, let us first understand a bit about the legislative scheme envisaged in our Constitution.

Article 245 states that Parliament may make laws for whole or any part of India and the Legislature of a State may make laws for whole or any part of the State. It further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

Article 246 also talks about Legislative power of the Parliament and the Legislature of a State. It states that:

1. The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I or the Union List in the Seventh Schedule.

2. The Legislature of any State has exclusive power to make laws for such state with respect to any of the matters enumerated in List II or the State List in the Seventh Schedule.

3. The Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in the List III or Concurrent List in the Seventh Schedule.

4. Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

Supreme Court’s Interpretation of Doctrine of Repugnancy

Article 254 has been beautifully summarized by the Supreme Court in M. Karunanidhi v. Union of India(AIR-1979). The court said that:

“1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

2. Where however 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 scope of the entries in the State List entrenches upon any of the Entries in the 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 covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected 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. 

Conditions 

Now, the conditions which must be satisfied before any repugnancy could arise 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 nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.”

Thereafter, the court laid down following propositions in this respect:

“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.”

Further in the case of Govt. of A.P. v. J.B. Educational Society(AIR-1998),the court held that: 

1. 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 State 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.

2. 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.

The Court also said that:

1. 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). 

2. Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's 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.

In the case of National Engg. Industries Ltd. v. Shri Kishan Bhageria(AIR 1988), it was held that “the best test of repugnancy is that if one prevails, the other cannot prevail”. All the above mentioned cases have been upheld by the Supreme Court in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra.

Territorial Nexus and the Parliament

1. Article 245 (2) of the Constitution of India makes it amply clear that ‘No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation’. Thus legislation cannot be questioned on the ground that it has extra-territorial operation.

2. It is well-established that the Courts of our country must enforce the law with the machinery available to them; and they are not entitled to question the authority of the Legislature in making a law which is extra-territorial.

3. Extra-territorial operation does not invalidate a law. But some nexus with India may still be necessary in some of the cases such as those involving taxation statutes.

Territorial Nexus and the State Legislature

The Legislature of a State may make laws for the whole or any part of the Stat. Now, this leaves it open to scrutiny whether a particular law is really within the competence of the State Legislature enacting it. There are plethora of cases that have stated that the laws which a state is empowered to make must be for the purpose of that State.

Conditions

Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There are two conditions that have been laid down in this respect:

1. The Connection (nexus) must be real and not illusory.

2. The liability sought to be imposed must be pertinent to that connection.

If the above two conditions are satisfied, any further examination of the sufficiency of Nexus cannot be a matter of consideration before the courts.

In various cases relating to taxation statutes, the courts have time and again stated that it is not necessary that the sale or purchase should take place within the Territorial Limits of the State. Broadly speaking local activities of buying or selling carried in the State in relation to local goods would be sufficient basis to sustain the taxing power of the State, provided of course, such activities ultimately result in concluded sale or purchase to be taxed

There is also a Presumption of Constitutionality that the Legislature is presumed not to have exceeded its constitutional powers and a construction consistent with those powers is to be put upon the laws enacted by the Legislature.

Extra-Territorial Operation

It is well-established that the Parliament is empowered to make laws with respect to aspects or causes that occur, arise or exist, or maybe expected to do so, within the territory of India and also with respect to extra-territorial aspects or causes that have an impact or nexus with India.

“Such laws would fall within the meaning, purport and ambit of grant of powers of Parliament to make laws ‘for the whole or any part of the territory of India’ and they may not be invalidated on the ground that they require extra territorial operation. Any laws enacted by the Parliament with respect to extra territorial aspects or causes that have no nexus with India would be ultra vires and would be laws made for a foreign territory.” 

This clearly indicates that as long as the law enacted by the Parliament has a nexus with India, even if such laws require extra territorial operation, the laws so enacted cannot be said to constitutionally invalid. It is only when the ‘laws enacted by the Parliament with respect to extra territorial aspects or causes that have no nexus with India’ that such laws ‘would be ultra vires. 

What is an acceptable Nexus is again a subjective question. Professor Michael Lang in his book ‘Introduction to the Law of Double Taxation Conventions’ says that “in International law practice, there are no significant limits on the tax sovereignty of states. In designing the domestic personal tax law, the national legislator can even tax situations when, for example, only a "genuine link" exists. It is only when neither the person nor the transaction has any connection with the taxing state that tax cannot be levied”.

In granting the Parliament the powers to legislate ‘for’ India, and consequently also with respect to extra-territorial aspects or causes, the framers of our Constitution certainly intended that there be limits as to the manner in which, and the extent to which, the organs of the State, including the Parliament, may take cognizance of extra-territorial aspects or causes, and exert the State powers (which are the powers of the collective) on such aspects or causes.

Doctrine of Public Trust requires that all legislation by the Parliament with respect to extra-territorial aspects or causes be imbued with the purpose of protecting the interests of, the welfare of and the security of India, along with Article 51, a Directive Principle of State Policy, though not enforceable in a court of law, nevertheless fundamental to governance, lends unambiguous support to the conclusion that Parliament may not enact laws with respect to extra-territorial aspects or causes, wherein such aspects or causes have no nexus whatsoever with India.