1

REPUGNANCY BETWEEN CENTRE

AND STATE RELATIONS
Submitted By:

Swathi. Ashok. Nair,

LLM, 2nd Semester,

Roll No: 30

Submitted To:

Dr. Vani Kesari. A,

Assistant Professor,

School of Legal Studies, CUSAT.

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TABLE OF CONTENTS

Table of contents 2

Introduction 3

Meaning and definition of repugnancy 4

Repugnancy Under Indian Constitution 4

 Article 254 (1) 5
 Article 254(2) 6

 Distinction between Ultra Vires and Repugnancy 7

Judicial Interpretations 7
 M. Karunanidhi.v. Union of India 7
 Zaverbhai Amaidas .v. The State Of Bombay 8

 Deep Chand .v. State of Uttar Pradesh 9

 Hoechst Pharm Ltd v. State of Bihar 10

11
 Government of Andhra Pradesh v. J.B. Educational Society
12
 Doctrines of Repugnancy applied by Indian Judiciary
15
 Recent Case laws relating to doctrine of Occupied field
16
 Recent Case laws related to Repugnancy
Comparitive study on Repugnancy of other federal Jurisdictions 17
 United States of America 17 17
 Australia 20 20

 Canada 21 21

Conclusion 23
References 23
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INTRODUCTION

The Constitution of India has empowered the Central and the State Government to enact laws
by virtue of various Articles read with Schedule VII. Black’s Law Dictionary defines
repugnancy as inconsistency or contradiction between two or more parts of a legal
instrument. In a system that divides its law-making power between the Centre and the States,
an inconsistency can arise between the laws made by the Centre and those made by the State.
The Doctrine of Repugnancy was introduced in the Constitution to resolve such situations.

The doctrine of repugnancy essentially deals with the conflict between centre and state
legislations. Repugnancy, in literal sense means conflicts between the two legislations, which
when applied to the same facts produces a different result. This doctrine had been adopted
from the American constitution. However, under Article 254 of Indian constitution, whenever
the central legislation is conflicting with the state legislation, such state legislation is
repugnant to that extend where it contradicts with central legislation, thus giving the
prevalence to the central legislation.

If any law is passed by the state enumerated in the concurrent list, which is repugnant to the
earlier law or existing law, the law passed by the state legislature would prevail as soon as it
receives an assent from the President. However, in case if the parliament have passed or
amend any law in respect to the same matter, such law made by the state could be held void,
even if it receives the assent of the president. In order to strike down any State legislation on
the name of the repugnancy, it is necessary to prove that both laws are made on the same
matter and are inconsistent with each other.

However, such laws are repugnant to the extent to which it contradicts with the central
legislature. If such central legislations have been amended or repealed, then the repugnancy
ceases to exist and the state law would become valid and operative once again.

Repugnancy arises where three essentials are satisfied; direct conflict, occupied field and
intended occupation. If these three are mainly satisfied then the parliamentary law should
prevail over the state law.

Various judicial interpretations have been given by the Superior courts as well as the lower
courts to determine the test required to interpret this doctrine. Article 254 plays an important
 4

role in maintaining the uniformity in laws and to avoid further chaos which creeps when there
is inconsistency between the central and state laws.

In This Assignment, the Author intends to look into the meaning and definition of
repugnancy, repugnancy under Indian constitutions, Judicial Interpretations regarding this
Doctrine (including old and new case laws), and how repugnancy is dealt under other federal
jurisdictions.

MEANING AND DEFINITION OF REPUGNANCY

Taking in the Literal Sense, the word ‘repugnancy’ means something that which is contrary
to something else; a repugnant condition is one contrary to the contract itself.

According to Black’s law dictionary1, An inconsistency, opposition, or contrary between two

or more clauses of the same deed or contract, or between two or more material allegations of
the same pleading.

In common law, repugnancy refers to a contradiction or inconsistency between clauses of the

same document, instrument, or contract, or between assertions of the same pleading. In
English law, the court will resolve the disagreements in a document based on the principal
intention of the parties; if this cannot be proven, the court treats the earlier declaration as
effective in the case of a deed and the later declaration in the case of a will.

In most federal constitutions and democracies around the world, the doctrine of repugnancy
is enshrined to resolve the conflict between a centre-dictated law and a conflicting law
dictated by the state. In most cases, the decision goes in favour of the central law. In the
United States of America, when a federal law conflicts with a state law, the federal law takes
precedence over state law. In Australia, until 1986, the law of the territories was considered
to be inconsistent with Commonwealth law, which was the supreme law of land.

REPUGNANCY UNDER INDIAN CONSTITUTION

The Constitution sets out in Schedule VII, the various subjects on which Parliament and the
State may legislate in Schedule I and Schedule II, respectively. Under Schedule III, also
known as the Concurrent List, both Parliament and the states have the power to legislate.

1
Black’s law dictionary.
 5

Under Article 254, the Constitution provides that if both Parliament and the State make a law
on a matter on the Concurrent List and the laws are incompatible, the law made by
Parliament shall prevail and that made by the State Law is viewed as repugnant to the extent
of its abhorrence of the central law.

Speaking of the powers of Parliament and State Legislatures, Article 245 gives Parliament
the power to legislate in whole or in part for India. It also empowers states to make the laws
of the state as a whole or part of the state. Article 245 also guarantees that the law passed by
Parliament will not be considered invalid because it would have extraterritorial effect. Article
246 of the Indian Constitution mentions the powers of Parliament and the state legislature.

Schedule 7 of the Constitution primarily provides for a three-way division of legislative

affairs between the Centre and the states, as follows:

• Parliament is granted exclusive power to legislate on matters listed in the Union Schedule
or Schedule I.

• The state legislature is granted exclusive authority to legislate for that state on any matter
included in the Schedule of States or Schedule II.

• The parliament and legislature of each state have the power to legislate on any matter
included in the Concurrent List or List III.

Article 254(1)

Under Article 254(1), if a provision of a state statute conflicts with a provision of a statute
enacted by Parliament which Parliament has jurisdiction to enact, or with an existing statute
relating to a matter on the list at the same time, then Parliamentary law would prevail over
state law. It does not matter whether the parliamentary law was passed before or after the
state law. To the extent of obstinacy, the law of the state is void. According to the respected
lawyer M.P.Jain,

It does not seem reasonable to limit Article 254(1) only to situations where the conflicting
central government laws fall under the competing schedule when it is possible that they may
fall on different schedules and yet be inconsistent with each other.
 6

He goes on to further say that although it is true that situations of repugnancy arise most
commonly when both the laws fall within the same List, yet it is not unimaginable that a
similar difficulty may arise when the two conflicting statues fall within different Lists2.

By virtue of this article, Parliament's legislative power in matters of List III, i.e., the
concurrent list, is paramount. The Article gives supreme effect to all laws which Parliament
has jurisdiction to enact and which are enacted by it.

Article 254(2)

According to Article 254 (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 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 that 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 State3.

For a better understanding of what the article implies, we can look at the different aspects of
the provision separately. First, the article applies only where a state law on an issue
constituting the concurrent list conflicts with a national law. In such a case, the state law may
take precedence over the central law if the President consents to the former. However, the
President acts with the help and advice of the Council of Ministers. However, Article 254(2)
is the exception, not the rule. Section 254(1) of the Constitution essentially states that in the
event of any inconsistency between laws passed by Parliament and those passed by a state
legislature, the former shall prevail.

In addition, a condition in Section 254(2) states that Parliament may subsequently amend or
repeal the statute even if the President approves a state law passed under that provision.

Article 254(2) does not operate when the two Acts operate in different fields. An illustration
of this is the case of Official Assignee, Madras v. Inspector General of Registration 4, where
the Central Act concerned Insolvency under entry 9 of List III and the State Act related to

2
M.P.JAIN, INDIAN CONSTITUTIONAL LAW, 569 ( LexisNexis 2014).
3
INDIA CONST. art 254 cl.2.
4
Official Assignee, Madras v. Inspector General of Registration, AIR 1981 Mad 54.
 7

Stamp duties under entry 44 of List III. It was held that no stamp fees would be payable on
the sale deed executed by the Official Assignee.

Article 254(2) was introduced to prevent state laws on the Concurrent List from being
replaced by central laws due to the repulsion doctrine.

The subsection applies when two conditions are met. These conditions are (a) there must be
a valid Central Law on the same subject and field in the concurrent list to which the Central
Law relates. (b) The state law must contradict the central law.

One of the latest debates regarding the application of Article 254(2) is regarding the
widespread protest over the farm bills in 2020. President Ramnath Kovind have given the
consent to 3 farm bills, namely The Farmers' Produce Trade and Commerce (Promotion and
Facilitation) Bill, 2020, The Farmers (Empowerment and Protection) Agreement of Price
Assurance and Farm Services Bill, 2020 and The Essential Commodities (Amendment) Bill
20205.

The Congress party have advised the Congress-ruled states to explore the possibilities to pass
laws in their respective states under Article 254(2) of the Constitution, which allows the state
legislatures to pass a law to negate the anti-agriculture Central laws encroaching upon the
state's jurisdiction under the Constitution. This (states passing laws negating Central
legislations) would enable the states to bypass the unacceptable anti-farmers' provisions in
the three agricultural law(s) including the abolition of MSP and disruption of APMCs in
Congress-ruled states6.

The Article 254(1) will cease to operate if both the central and the state law have not been
enacted on the same subject matter in the concurrent list. In such a situation, the state law
would prevail proprio vigour.

 Distinction between Ultra Vires and Repugnancy - Ultra Vires refers to when the State
exceeds his legislative power. E.g., When the State makes a law in List I or Union List
even though the State does not have the legislative power to make laws in that particular
List7. While in repugnancy, a statute is referred only when there arises a conflict between
the centre and State laws, In Ultra Vires, law becomes invalid when the legislation power

5
FIRSTPOST, https://www.firstpost.com/politics/congress-mulls-using-article-2542-to-bypass-farm-laws-all-
you-need-to-know-about-the-rarely-used-provision-8861611.html (last visited Jul. 10, 2022)
6
Id. at 5.
7
Vaishnavi Devidas Kapsikar, Doctrine Of Repugnancy , BLACK & WHITE JOURNAL, ( Jun. 20, 2022,
10:00 AM ), https://bnwjournal.com/2020/11/28/doctrine-of-repugnancy/.
 8

exceeds the law. In Repugnancy, the state legislature becomes void to the extent of the
repugnancy to the centre legislature. In Ultra Vires, there is no competition between two
legislatures. In Repugnancy, both the legislatures are competent to make laws. If they are
not consistent with each other, the laws made by the State would be held void (Subject to
the exceptions provided under Article 254(2).

JUDICIAL INTERPRETATIONS

1. M. Karunanidhi .v. Union of India 8(1979).

In 1973, the State of Tamil Nadu passed a law for the Tamil Nadu Public Men (Criminal
Misconduct) Act, 1973. It was further amended in 1974. The decree was challenged in the
Supreme Court on the grounds that it was contrary to the law passed by the central
government, including the Anti-Corruption Act 1947 and the Indian Penal Code. The court
ruled that there is an indirect conflict

between the central and provincial laws. These are complementary laws that can be executed
Pari passu, i.e., alongside the law passed by Parliament. The bench of the Supreme Court in
this case defined how the doctrine of Repugnancy can be included; a. There must be a direct
and clear contradiction between the state law and the central law. b. The inconsistency must
be absolute and must not be transferrable. c. The inconsistency between the clauses and
provisions of two laws will be such as to result in two decrees directly clashing with each
other. i.e., It is not possible to obey one law without obeying the other law. The Court has
also made some suggestions in this regard. For the doctrine of repugnancy to be applied, two
decrees must contain provisions so contradictory that they cannot lie together in the same
field. It cannot be tacitly rescinded unless the laws are prima facie contradictory. If there are
two edicts in the same area and there is a chance that both will work without conflicting, then
that doctrine is unappealing.

If there is no incompatibility but the enactment gives rise to different offenses in the same
area, the question of repugnancy does not arise.

2. Zaverbhai Amaidas.v. The State of Bombay9 (1954)

This is the case where the occupying of the same field doctrine was applied.

8
M. Karunanidhi .v. Union of India ,1979 AIR 898.
9
Zaverbhai Amaidas .v. The State Of Bombay, 1954 AIR 752.
 9

In this case, a convict claimed to have been convicted by a court with no jurisdiction.
According to state law, the crime he committed, that is, transporting grain without a permit,
was punishable by 7 years in prison. On the other hand, the central law provided for a 3-year
prison sentence for the crime he committed. Another provision in the Central Law was that in

the sentence could be increased to 7 years if the person was found to possess twice the
amount of edible grain. The convict argued that he should have followed the provisions of the
Bombay Law and not the Central Law, which would make the court's decision flawed and
lack jurisdiction as the judge who punished him only sentenced him to up to three years in
prison could judge. The occupied field of both laws was observed according to whether they
occupied the same territory or not. The Supreme Court ruled that both laws covered the same
area and could not be divided. Therefore, the state laws were considered null and void and the
central law was enforced according to the doctrine of repugnancy.

It was also decided that the relevant words in Article 254(2) are of great importance. It was
explained that it is important to check whether the legislation addresses the same issue. If the
following legal provisions deal with a situation that differs from the subject matter of the
previous legal provisions, but has a cognate and allied character, Section 254 (2) does not
apply.

3. Deep Chand.v. State of Uttar Pradesh 10(1959)

The petitioners operated as transport operators on various routes in Uttar Pradesh with valid
permits under the Motor Vehicles Act 1939 together with government owned buses.
However, the UP Legislature passed the Uttar Pradesh Transport Service (Development) Act,
1955, and under Section 3, the Government issued a Nationalization Notice. The
complainants received notice under Section 5 of the U.P. Act, prompting them to object if
necessary. After receiving the

objections, they were informed that they would be heard by a bench. The objections
submitted by all operators except those from Agra region were heard and the investigation
regarding Agra region was suspended, but the operators from Agra region did not reappear. A
notice has been issued pursuant to Section 8 of the Act and is published in the UP Gazette. In
addition, the secretary of the Agra Regional Transport Authority sent an order allegedly
issued by the Transport Commissioner

10
Deep Chand .v. State of Uttar Pradesh, 1959 AIR 648.
 10

to the operators in the Agra region, forbidding them to operate their stage carriages on the
designated routes and also telling them that their permits would be transferred to other routes.

2 issues mainly arise:

 Whether the provisions of Part III of the Constitution enshrining the fundamental rights
are mere checks or limitations on the legislative competency conferred on Parliament and
the State Legislatures by Arts. 245 and 246 read with the relevant entries in the Lists in
the Seventh Schedule to the Constitution or are in integral part of the provisions defining,
prescribing and conferring the legislative competency itself?
 Whether the doctrine of eclipse is applicable only to pre-Constitution laws or can apply
also to any post-Constitution law which falls under Art. 13(2) of the Constitution?

Regarding doctrine of eclipse, the provision of the law which was under scrutiny by the
Hon’ble Supreme Court of India was the Doctrine of Eclipse. It was clarified that any post
constitutional law infringing fundamental rights are void ab initio and the doctrine of eclipse
cannot apply11.

Regarding Article 254, the Supreme court Observed that repugnancy between two enactments
can be identified with the help of the following three tests:

1.Whether there is a direct conflict between the two conflicting provisions;

2.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

3.Whether the law made by the Parliament and that made by the State legislature occupies the
same field.

4. Hoechst Pharm Ltd v. State of Bihar (1983)12

The petitioner was a company that manufactured and sold various medicines and life-saving
medicines across India, including the state of Bihar.

11
LAWINSIDER, lawinsider.in/judgment/deep-chand-vs-the-state-of-uttar-pradesh-and-ors (last visited Jun. 20
2022).
12
Hoechst Pharm Ltd v. State of Bihar, 1983 AIR 1019.
 11

The petitioner had a branch or shop in Patna, registered as a distributor, and sold his
manufactured products through wholesalers/warehouses in Bihar districts, who sold them to
retailers who brought medicines and drugs to consumers.

Nearly 94% of medicines and pharmaceuticals sold by companies/distributors were sold at

the absolute local tax-controlled price under the Medicines (Price Control) Order 1979 issued
by the Central Government under subsection (1) of Section 3 of the Essential Commodities
Act and clearly prohibiting them Selling medicines and pharmaceuticals above the controlled
price set by the central government from time to time, allowing the manufacturer to pass on
the obligation of excise duty. Section 5(1) of the Bihar Finance Act, 1981 provided for the
imposition of a surcharge on traders whose gross sales during a financial year exceeded Rs. 5
lakhs in addition to the tax payable by him at a rate not exceeding 10% of the total amount of
tax exceeds, and Section 5(3) of the Act therein prohibits the dealer from collecting the
balance of the tax to pay the surcharge. The petitioner questioned the constitutional validity
of these sections, citing their printed price lists of their known medicines and medicines
manufactured by them, which show the price at which they are sold to retailers and the
selling price, both including excise taxes. Clause (1) provided that if any state law relating to
a subject on the Concurrent List is contrary to Union law relating to the same subject matter,
whether Union law was earlier or later, Union law shall prevail and the state law, to the
extent of its repugnancy, would be void.

5. Government of Andhra Pradesh v. J.B. Educational Society (2005)13

The petitioners of the case are the private educational institutions. They wanted to establish
engineering schools in the state of Andhra Pradesh. They submitted an application to the
authorities under the AICTE Law and the AICTE Council granted them approval for the
1997-1998 academic year. These applicants applied under Section 20 of the Act for
permission to set up the establishment. The permit was denied on the grounds that the
resolution's proposers had applied for permits to establish

schools in locations where several schools already existed and that the state government was
not satisfied with the educational needs of that locality. At that hearing, approval was denied.
Affected by the same, the Writ Petitions were filed.

13
Government of Andhra Pradesh v. J.B. Educational Society, Appeal (civil) 976-978 of 1999.
 12

The court states: “It is the duty of the court to interpret the legislation of Parliament and state
legislation in such a way as to avoid conflict. If the conflict becomes unavoidable, Article
245 specifies the form of resolution of such a conflict.14”

This means that the judiciary must interpret the legislation of Parliament and state legislation
in such a way that conflict does not arise or can be circumvented. However, if such a conflict
of laws is unavoidable, the Parliamentary law takes precedence, because list III gives both
Parliament and the state legislature equal power to legislate, this is where the greatest scope
of conflict exists. Again, the Court must interpret the laws to avoid conflict or else follow the
repeated solution form in Article 245. Paragraph (2) of Article 254 deals with a situation in
which the legislation of the State has been reserved and obtained Presidential approval in that
State prevails; this in turn is subject to the condition that Parliament can reintroduce
legislation to overrule even such state laws.

Doctrines of Repugnancy applied by Indian Judiciary

1. Direct Conflict Test

Direct conflict exists when two laws cannot be effectuated at the same time. Repugnancy
occurs when the existence of one law prohibits the application of another law with respect to
the same conduct. Such were the circumstances in the case Mati Lal Shah v Chandra Kanta
Sarkar15 before the Calcutta High Court. 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 which is an existing Indian law in force. 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 case of Vishwanath v. Harihar Gir (1939) 16, 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
14
United States .v. Brown, 381 U.S. 437.
15
Mati Lal Shah v Chandra Kanta Sarkar ,AIR 1947 Cal 1.
16
Vishwanath v. Harihar Gir , LAWS(PVC)-1938-9-103.
 13

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. In this
case, it was seen that although there is a judicial eagerness to limit the area of repugnancy,
however, when it is coupled with mechanical reconciliation, the result might not always end
up being desirable or beneficial for the society in general. The implementation of the doctrine
remains unpreventable.

In Maltilal Shah’s case17, 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 which is an existing Indian law in force. 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 as void due to repugnancy.

2. Test of Exhaustive code

Direct conflict testing can be limited for complex scenarios. Therefore, a second principle
was developed for a more complete understanding of the application of the prevailing
legislation, i.e., if the central government intentionally drafted a code for its exhaustive
application to regulate the matter, it would not be harmonious for the state. The legislation
works at the same time. This test provides sufficient scope for the Judiciary to uphold the
intended values, envisaged in the paramount legislation, by the makers of the legislation and
to defeat narrow arguments that could be raised on the basis of the direct collision test.

In the case of State of Assam v. Horizon Union18, 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 19. 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

17
Id. at 12.
18
State of Assam v. Horizon Union, 1967 AIR 442.
19
Aiswarya Sandeep, Doctrine of Repugnancy, PARENTING & LAW BY AGAM WALIA, ( Jul. 3 2022, 9:29 AM),
https://aishwaryasandeep.com/2021/06/23/doctrine-of-repugnancy/.
 14

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.

3. Doctrine of Occupied Field

This test is always in close relation with the exhaustive code test for identifying the
repugnancy between two enactments. If the Central government has enacted a law with the
intention of occupying the entire field, then it would not be fit for the State law to legislate in
the same field.

In Zaverbhai Amaidas v. the State of Bombay 20, 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.

Sai Traders A Proprietary Concern. state of Goa (2006). 21

In this case, the petitioners complain that once full control of an industry has passed to the
central government, the state legislature cannot legislate in relation to that industry or the
products manufactured by that industry. Under Section 2 of the Tobacco Act, the Union has
taken control of the tobacco industry, which is a statement covered by Entry 52 of Schedule I
of Schedule VII of the Indian Constitution. List II entry 24 is subject to

List I entry 52. Therefore, the tobacco product is excluded from the State List field. Since
entry 33(a) of list III deals with the trade and the production, supply and distribution of the
products of any industry where Parliament declares by law that Union control of that industry
is in the public interest this led to the exclusion of the product in question from entry 33 of
list III together with entries no.26 and 27 of list II

of the state list.

20
Id. at 8.
21
Sai Traders A Proprietary Concern .v. State Of Goa , 2006 (4) BomCR 1
 15

The repugnancy rule contained in Article 254, paragraph 2, of the Constitution deals with the
obscuring effect of the central legislature on the state legislature when the latter intends to
invade territory occupied by the former.

The "occupied ground" principle clearly means that if Parliament's declaration presumes that
the whole matter will be dealt with by Parliament, thereby depriving the State of its powers in
this regard, then it follows that the "matter" in the list of states, the scope of the list of states
is deducted to the extent of the declaration. In other words, when a law has been passed
which contains a declaration of Parliament under Entry 52, and if such a declaration covers
the subject contained in the list of states , then the state statute on the subject would be ultra
vires, not because of a disagreement between the two statutes, but because the state
legislature does not have jurisdiction to pass the statute, so if both Parliament and state
legislatures exercise their powers under the concurrent list of Annex VII schedule and the
central legislation issues a comprehensive code in relation to the matter and the state
legislature on the same matter, the state legislation would be repugnant and void in this
regard.

Recent Case laws relating to doctrine of Occupied field

1. Prabhakar Dattatraya Gune .v. The State Of Maharashtra22 (2013).

In subparagraph (aa) of Section 45-I, Mr. Pradan said that the term "company" is used in
Section 3 of the Indian Company Act 1956 to protect the interests of depositors, as set forth
in Section 45NB. It is defined as meaning a company within the meaning of. Under the
Reserve Bank of India Act of 1934, such authority may be exercised by the authorities set
forth therein, within the meaning of the Act. Authorities have the authority to investigate the
operations of non-bank financial companies. Therefore, the region and sector are subject to
the Reserve Bank of India Act of 1934. Our attention was directed to Chapter 5 of the
Reserve Bank of India Act 1934, entitled Penalties. According to Pradan, once the territory
and territory are occupied by this law, the 1999 MPID Act is a state law and the 1999 MPID
Act is deprived of power and cannot be taken over. There is a parliamentary law in this area
that covers all aspects and issues, and if the state legislature passes the law on the same
subject, the parliamentary law takes precedence. In other words, Articles 246 and 254 of the
Indian Constitution enact the doctrine of the occupied territories. This doctrine stipulates that
state legislation must give way to or give way to parliamentary / central legislation. Both

22
Prabhakar Dattatraya Gune .v. The State Of Maharashtra Criminal Writ Petition No.3801 OF 2012.
 16

cannot stand together. Therefore, Mr. Pradhan argues that he cannot proceed with the
procedures under Articles 3 and 4 of the 1999 MPID Act. The fact that such a license was
not granted, or the fact that the Banking Control Act of 1949 did not apply, caused the
Honorary Supreme Court to consider both issues: legislative capacity and the doctrine of the
occupied territories.

Recent Case laws related to Repugnancy

1. G.Mohan Rao .v. State of Tamil Nadu 23(2021).

This case concerned issues of repugnancy arising between the “Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement of 2013 Act 24” (the
2013 Act) on the one hand and three Land Acquisition Laws of Tamil Nadu (d) Tamil Nadu
Harijan Welfare Scheme Land Acquisition Act, 1978 (1978 Act), (ii) Tamil Nadu Industrial
Land Acquisition Act, 1997 (1997 Act), and (iii) Tamil Nadu Highways Act, 2001 (2001
Act). After the 2013 Act came into effect, the State of Tamil Nadu wished to maintain its
own state laws that allowed for faster procurement procedures and therefore sought to exempt
them from the applicability of the Central Law and to retain the key reforms introduced by
the Central Law, namely on Enhanced Compensation and Resettlement and Rehabilitation. It
should be noted that several core statutes are excluded from the scope of the 2013 Act by
being included in Schedule 4 of the 2013 Act.

This list includes the National Highways Act 1956 which follows the Tamil Nadu
Acquisition Act 2001 is equated with motorways.

To this end, in 2014 the State Legislature enacted an Act which inserted Section 105-A into
the 2013 Act as far as the State of Tamil Nadu is to continue acquiring land under the three
State Acts, excluding the applicability of the 2013 law. At the same time, however, the
compensation, rehabilitation and resettlement provisions of the 2013 Act remain in effect.
Presidential approval for Section 105-A was obtained pursuant to Article 254(2) of the
Constitution.

This was challenged in the Madras High Court. The High Court, in its judgment of 7/3/2019,
declared the three state statutes void for unruliness and voided all land acquisitions under
them following the enactment of the 2013 Act which issued Section 105-A which revitalized

23
G.Mohan Rao .v. State of Tamil Nadu, 2021 SCC OnLine SC 440.
24
SCC BLOG, https://sccblog-linux.azurewebsites.net/post/2021/10/15/in-constitutionalising-repugnancy-
under-article-2542-the-emphasis-should-be-on-substance-over-form/, ( last visited Jul. 4 2022 6:54 PM).
 17

the three state statutes as ineffective. It was found that since the state statutes had been voided
by the date the 2013 Act received presidential approval (i.e., September 27, 2013),

they could not be "revived" but could had to be rewritten. The state appealed that decision to
the Supreme Court in a special stay appeal process that is still pending.

2. Forum for Peoples Collective Efforts.v. State of West Bengal25 (2021).

The proceedings determined the constitutional validity of the West Bengal Housing Industry
Regulation Act (WB-HIRA) of 2017.

Judge DY Chandrachud and Judge MR Shah have heard a complaint simply because WB-
HIRA overlaps with parallel central law and often simply contains the same provisions: Real
Estate. (Regulation and Development) Act, 2016 (RERA).

The petitioner alleged that the state decree (WB-HIRA) was unconstitutional, as both statutes
dealt with issues from the simultaneous list. The court agreed with the petitioner and ruled
that the entire WB-HIRA was unconstitutional. The problem gaps left by RERA as a result of
simultaneous listings are legislated by the state government as long as they are related,
incidental, or related to the exercise of parliamentary legislative power. There is a possibility
that However, in the present case the Bench ruled that the State enactment was virtually
identical to the Central RERA. Implying to the third `prong` of Justice Subba Rao`s
guidelines for repugnancy, the Bench ruled that the subject matter covered by both Acts
occupied the same field and in the absence of presidential assent, the WB-HIRA was
unconstitutional.

COMPARATIVE STUDY OF DIFFERENT FEDERAL JURISDICTIONS

1. United States of America

In the US, the pre-emption doctrine refers to the idea that a higher legal authority will
supersede the right of a lower legal authority if the two authorities are in conflict. When state
law and federal law conflict, federal law displaces, or pre-empts, state law, due to the
Supremacy Clause of the Constitution26.

The pre- emption applies regardless of whether the conflicting laws originate from
legislators, courts, administrative authorities or constitutions. For example, the Voting Rights

25
Forum for Peoples Collective Efforts .v. State of West Bengal, Writ Petition (C) No. 116 of 2019.
26
U.S. Const. art. VI., § 2.
 18

Act, a law of Congress, overrides state constitutions, and FDA regulations may override state
court decisions in prescription drug cases.

Congress has anticipated government regulation in many areas. In some cases, such as for
example, with medical devices, Congress has anticipated any government regulation. For
others, such as prescription drug labels, Congress allowed federal regulators to set minimum
national standards but did not pre-empt state regulations, which imposed stricter standards
than federal regulators. When rules or regulations do not clearly state whether or not pre-
emption should apply, the Supreme Court seeks to follow the intent of the '

legislature and favours interpretations that avoid pre-empting state law.

State Precedence: Absolute, Express, and Implied Precedence

Like federal and state law, state law generally takes precedence where state and local law
conflict. Therefore, the main question that the courts try to answer is whether there is a
conflict. In general, there are 3 types of conflicts of priority:

1. Absolute conflict: when a regulation directly contradicts a state law

2. Express priority: the state law directly contradicts a local authority

3. Implicit priority – This Occurs when 1 of 3 things happen:

• When a local ordinance prohibits an action permitted by law.

• When a local ordinance permits an action prohibited by state law.

• When there is a clear legislative intention that the "field" be replaced by state law.

“Field” is generally defined as when there is a broad body of government regulation that
reflects the government's intent to pre-empt all local regulations in a particular area. An
occupancy of the field is likely to be found where state law relates to an area that has
traditionally been a state matter (e.g., foreclosure proceedings).

Courts have found various ways to determine when a state legislature has made headway in a
particular area.

Courts have found various ways to determine when a state legislature has pre-empted a
particular field. In Allied Vending Co. v Bowie 27(1993), the court issued a seven-part test to
determine whether a state legislature has pre-empted a field by implication:
27
Allied Vending Co. v Bowie ,332 Md. 279 (Md. 1993).
 19

1. Whether local laws existed prior to enactment of state laws of same subject matter

2. Whether statutes provide for pervasive admin regs

3. Whether ordinance regulates an area in which local control has been allowed

4. Whether state expressly gives concurrent authority

5. Whether state agency which administers/enforces the law has recognized legal authority to
act

6. Whether the particular aspect of the field sought to be regulated has been addressed by
state leg

7. Whether a 2-tiered regulatory process existing if local laws were not pre-empted would
engender chaos & confusion

State Pre-emption: Pre-empting State Pre-emption

There are times during which local ordinances will typically pre-empt state law. According to
City of Riverside v. Island Empire Patients Health and Wellness Centre Inc. 28 (2013), if
significant interests for a particular issue may vary from locality to locality, courts will
presume that they should favour the validity of the local ordinances against state pre-emption,
unless the state statute expressly forbids the ordinance.

McCulloch.v. Maryland29 (1819).

This is the case when it has been decided that the United States Constitution is the supreme
law of the country and state laws cannot interfere with federal laws made under the
Constitution.

In this case, Congress authorized the Second Bank of the United States. Branches were
established in many states, including one in Baltimore, Maryland. In response, the Maryland
legislature passed legislation imposing a tax on all banks in the state that are not licensed by
the state legislature. James McCulloch, cashier at the United States Bank in Baltimore, was

28
City of Riverside v. Island Empire Patients Health and Wellness Center Inc, 200 Cal.App.4th 885 (Cal. Ct.
App. 2011).
29
McCulloch .v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
 20

charged with violating this law. McCulloch admitted that he did not obey Maryland law.
McCulloch lost in

in Baltimore County Court and that court's decision was upheld by the Maryland Court of
Appeals. The case was then erroneously taken to the United States Supreme Court. The
question was whether Congress has the power to establish a Bank of the United States under
the Constitution.

The Maryland Attorney argued that because the Constitution was enacted by the independent
states, it should be administered under the subordination of the states. However, states ratified
the constitution by a two-thirds majority of their citizens, not by a decision of the state
legislature. Therefore, the Constitution, although limited in its powers, takes precedence over
the laws of the states.

There is no enumerated power in the Constitution permitting the formation of a bank.

However, Congress is granted the power "to make such statutes as are necessary and proper
to the exercise of the foregoing powers." The Supreme Court, through constitutional
interpretation, states that “necessary” is not a limitation but refers to any means for a
legitimate end within the Constitution. Because the Constitution takes precedence over state
law, states cannot levy taxes, which would effectively destroy federal legislative power.
Therefore, the Maryland State tax on the Bank of the United States is unconstitutional.

This Supreme Court decision establishes the Constitution as the supreme law of the country
and takes precedence over any state law inconsistent with it.

2. Australia

On January 1, 1901, the Australian colonies united into one nation. This is known as
federation and led to the formation of the Australian Parliament, with the colonies becoming
the 6 states of Australia. Through the federal government, the states have transferred some of
their legislative powers in certain areas of legislation to the federal Parliament. For this
reason, state laws cannot change federal laws.

On some issues, the federal parliaments and the state parliaments can enact laws on the same
issues, e.g., Roads and Health. Section 109 of the Australian Constitution states that when the
federal and state parliaments pass conflicting laws on the same subject, the federal law
overrules the state law or the part of the state law that is inconsistent with it.
 21

The Australian Constitution sets out how the High Court of Australia can settle disputes
between the federal and state governments over its legislative powers. When a law is
challenged, the High Court decides whether the Constitution gives the state legislature or the
federal parliament the power to make that law.

3. Canada

In Canada, the doctrine of supremacy is a constitutional instrument that helps resolve

conflicts between federal and provincial laws. According to this doctrine, a state law that
conflicts with a federal law is void to the extent of the conflict. This means that federal laws
take precedence over state laws. State law remains valid, but the part that conflicts with
federal law does not apply as long as the conflict exists. This unenforceable Part

may become effective again if federal law is amended in the future to resolve the dispute.

The Doctrine is applied when there is an apparent conflict between federal and provincial
statutes, and the courts use a two-pronged test to determine whether the supremacy doctrine
applies.

The first step whether a statute is paramount or not is to establish whether both laws are valid.
To do this, courts will ask: “does the ‘matter’ (or pith and substance) of law come within the
‘classes of subjects’ (or heads of power) allocated to the enacting Parliament or Legislature?”

This means that validity is determined first by characterizing the law’s essential character —
or “pith and substance” — by considering its purpose and its legal and practical effects. Then,
by checking if the “pith and substance” is within the particular government’s jurisdiction.

The Constitution Act, 1867 lists different matters and specifies which level of government
— federal or provincial — has jurisdiction over them. Despite the existence of these lists, it
can sometimes be difficult to determine which level of government has jurisdiction to
legislate on a given matter; however, this is beyond the scope of this key term.

The second step asks whether there is actually a conflict between the federal and provincial
laws. There must be a conflict between federal and provincial legislation for the doctrine of
paramountcy to apply.

In Canadian constitutional law, federal and provincial laws can conflict in several different
ways. For example, in some cases, federal and provincial laws will be in operational conflict,
 22

where dual compliance — following both laws — is impossible. This is known as an

“express contradiction.”

In other cases, a conflict will exist because the provincial law frustrates the purpose of the
federal law. For example, in Law Society of BC v Mangat (2001) 30, a provincial law
prohibited people from obtaining non-lawyers as their counsel, while a federal law allowed
parties to be represented by non-lawyers. Although dual compliance with both laws was
possible, the provincial legislation defeated the purpose of the federal legislation: to allow for
inexpensive and accessible counsel. The provincial law was accordingly held to be
inoperative.

If both the federal and provincial laws are valid, and there is a conflict between them, then
the doctrine of paramountcy applies and renders the provincial law inoperative to the extent
of the conflict. If a conflict does not exist, the doctrine does not apply and both laws will
remain operational.

Another key example of the paramountcy doctrine in action is the case of Multiple Access
Ltd v McCutcheon31. In McCutcheon, the provincial law duplicated federal law to protect
companies against insider trading. Both laws were valid under the Constitution Act, 1867.
Provinces can legislate on matters relating to property and civil rights, and the federal
government can legislate on matters of trade and commerce. It was also probable to follow
both laws, so the Supreme Court of Canada did not apply the doctrine of paramountcy.
Instead, the court applied the double aspect doctrine, allowing both levels of government to
legislate on the matter.

In the Canadian Constitution, the question of conflict and coincidence in the domain in which
provincial and Dominion legislation overlap have been considered. If both may overlap and
co-exist without conflict, neither legislation is ultra vires. But if there is confrontation and
conflict the question of paramountcy and occupied field may come out. It has been held that
the rule as to predominance of Dominion legislation can only be invoked in case of
absolutely conflicting legislation in Pari Materia when it will be an impossibility to give
effect to both the Dominion and provincial enactments. There must be a real conflict between
the two Acts i.e., the two enactments must come into collision. The doctrine of Dominion
paramountcy does not operate merely because the Dominion has legislated on the same
subject matter. The doctrine of 'occupied field' applies only where there is a clash between
30
Law Society of BC v Mangat ,3 S.C.R. 113, 2001 SCC 67.
31
Multiple Access Ltd v McCutcheon ,[1982] 2 SCR 161.
 23

Dominion Legislation and Provincial Legislation within an area common to both. Where both
can co-exist peacefully, both reap their benefits.

Conclusion

The Repugnancy doctrine signifies repugnancy between the two laws, which occurs when
there is a direct conflict between the two provisions or the law enacted by Parliament and the
law enacted by the legislature occupy a similar field. Therefore, whenever the issue of
inconsistency between the law passed by Parliament and the state legislature is raised, it is
imperative to assess whether the two laws address the same issue or are different. Both the

Centre and state legislatures are equally powerful and enjoy absolute legislative authority in
their respective fields. But there are some areas where the power and interests of
governments require colloidal and logical mechanisms to counter inconsistencies or conflicts
to ensure the efficiency of governance. Thus, the doctrine of repugnancy thus provides an
effective mechanism for dealing with such inconsistencies.

References

1. https://www.firstpost.com/politics/congress-mulls-using-article-2542-to-bypass-farm-
laws-all-you-need-to-know-about-the-rarely-used-provision-8861611.html
2. https://blog.ipleaders.in/need-know-doctrine-repugnancy/.
3. https://indiankanoon.org/doc/493713/
4. https://www.scconline.com/blog/post/2021/10/15/in-constitutionalising-repugnancy-
under-article-2542-the-emphasis-should-be-on-substance-over-form/#:~:text=In%20its
%20judgment%20in%20G,to%20be%20invalid%20for%20repugnancy.
5. https://indiankanoon.org/doc/34436597/
6. https://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-
sullivan/national-powers-and-local-activities-origins-and-recurrent-themes/mcculloch-v-
maryland-4/
7. https://www.indiclegal.com/post/doctrine-of-repugnancy-in-relation-to-the-central-and-
state-law-article-254-of-indian-constitution.