Repugnancy and the Occupied Field

Held. The State Act was not repugnant. It was complementary and ran pari passu with the central Acts, providing an additional safeguard rather than an inconsistent rule, and although the ingredients of the offence were substantially the same, the punishment under the State Act was more severe, not less. In reaching that conclusion the Court set out the conditions that must be satisfied before any repugnancy can arise:

(i) That there is a clear and direct inconsistency between the Central Act and the State Act; (ii) that such an inconsistency is absolutely irreconcilable; (iii) that the inconsistency between the provisions of the two Acts is of such a 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.

The Court also summarised the circumstances in which repugnancy operates: where central and State laws in the Concurrent field are fully inconsistent and absolutely irreconcilable, the central Act prevails and the State Act becomes void; where the State Act has been passed in accordance with article 254(2), it prevails in that State to the extent of the repugnancy; and where a State law substantially within the State List entrenches on the Union List, it may be saved by pith and substance if the entrenchment is incidental.

Why it matters. It is the standard three-condition test, drafted in a form made to be quoted, and it makes the threshold high. Mere difference is not repugnancy; nor is greater severity; nor is duplication. There must be a direct collision such that obeying one means disobeying the other.

The two ways a conflict can arise

The test above catches the first way. The case law recognises a second.

Direct conflict. The two laws command incompatible things. One permits what the other forbids, or one requires what the other prohibits. Obedience to both is impossible. This is what Karunanidhi's three conditions describe.

The occupied field. Parliament has legislated on the subject so completely that the central law is intended to be a complete, exhaustive and exhaustive code on the matter, leaving no room for the State to add to it. Here there may be no direct contradiction at all: the State law may be perfectly consistent in its terms, and still be void because Parliament has covered the ground and evinced an intention that its scheme alone should apply.

The second is harder to establish and depends on the intention to be gathered from the central Act as a whole: its scheme, its comprehensiveness, and whether it contains its own provision about the operation of other laws. A saving clause preserving State laws is strong evidence against an intention to occupy the field.

Article 254(2), and the President's assent

The exception is the most practically important part of article 254, and its effects are frequently misstated.

What it requires. The State law must be with respect to a matter in the Concurrent List; it must be repugnant to an earlier law of Parliament or to an existing law; it must be reserved for the consideration of the President; and it must receive his assent.

What it achieves. The State law then prevails in that State. It does not repeal the central law, and it has no effect anywhere else. So the same central provision may be displaced in one State and fully operative in the next, which is one of the genuinely federal features of the Indian scheme.

What it does not achieve. By the proviso, Parliament may at any time enact a law with respect to the same matter, including a law adding to, amending, varying or repealing the law so made by the State legislature. The State's victory is therefore permanent only for as long as Parliament allows it. That is the point at which article 254(2) stops looking like a federal guarantee.

Two limits are examinable. The assent protects the State law only against the earlier central law that was placed before the President; it does not immunise it against a later central law. And the assent operates only where the President actually applied his mind to the repugnancy, so a State that reserves a Bill without disclosing the conflict cannot rely on the assent to cure it.

Article 251, and the temporary displacement

Article 251 deals with a different situation and belongs beside article 254 in an answer.

Where Parliament has legislated on a State subject under article 249, on a resolution of the Council of States, or under article 250 during a Proclamation of Emergency, a State legislature is not thereby disabled from legislating on the same matter. But if the two laws are repugnant, the law of Parliament prevails, and the State law is inoperative to the extent of the repugnancy only so long as the central law remains in force. When the central law lapses, the State law revives.

That word "inoperative" is doing work. Contrast article 254(1), under which the State law is void to the extent of the repugnancy. Under article 251 it is merely suspended.

Eclipse, and whether a void State law can revive

The revival question also arises under article 254(1), and the answer comes from the eclipse line of cases.

Facts. Deep Chand v. State of Uttar Pradesh, decided 15 January 1959. The Uttar Pradesh Transport Service (Development) Act 1955 authorised a State road transport scheme. Parliament then passed the Motor Vehicles (Amendment) Act 1956 on the same subject. The question was whether the State Act became void under article 254(1) and what happened to a scheme already framed under it.

Held. The State Act did not become wholly void; it continued as a valid subsisting law supporting the scheme already framed, and even if the central Act had repealed it under article 254(2), section 6 of the General Clauses Act would have saved the scheme. On the wider point, Das C.J. and Sinha J. held that there is no reason why the doctrine of eclipse should not apply to a post-Constitution law that infringes a fundamental right conferred on citizens alone: such a law is shadowed as against citizens but remains effective against non-citizens, and when the shadow is removed by amendment it applies to citizens without re-enactment.

Why it matters. It is the bridge between article 254 and the doctrine of eclipse, and it establishes that "void to the extent of the repugnancy" is a narrower thing than it sounds: the rest of the State law stands, and what has already been done under it may survive.

Read the citation for this case with care. The report's own equivalent-citations line was not captured when the judgment was fetched, so the AIR and SCR references recorded in the case bank are marked unread and must be confirmed against a report before they are copied into an answer. The holding above was read in full from the judgment.

A worked example

Parliament enacts a central Act on a Concurrent subject in 2015. In 2018 State S enacts a law on the same subject which sets a higher penalty and adds a procedural safeguard the central Act does not contain. The State Bill was reserved for the President and received his assent. In 2022 Parliament amends the central Act, raising its own penalty above the State's.

Step one, competence. Both legislatures are competent: the subject is in List III.

Step two, is there repugnancy at all? Apply the three conditions from Karunanidhi: a clear and direct inconsistency, absolutely irreconcilable, such that it is impossible to obey one without disobeying the other. A higher penalty and an extra safeguard are not necessarily irreconcilable with the central Act; a law that is complementary and runs pari passu is not repugnant. This is exactly what the Court held about the Tamil Nadu Act.

Step three, if there is repugnancy, what does the assent do? Article 254(2): a Concurrent State law repugnant to an EARLIER central law, reserved for and assented to by the President, prevails in that State. So between 2018 and 2022 the State law governs in State S, and the central Act is displaced there to the extent of the repugnancy.

Step four, the 2022 amendment. The proviso to article 254(2) preserves Parliament's power at any time to enact a law with respect to the same matter, including one adding to, amending, varying or repealing the State law. The 2022 amendment is a later central law and the assent does not protect the State law against it. From 2022 the central provision prevails.

The trap. The assent is not a permanent immunity. It protects only against the earlier law placed before the President.

Quick revision

• Order of enquiry: competence first, then whether the field is Concurrent, then repugnancy.
• Article 254(1): central law prevails, whether earlier or later, and the State law is void to the extent of the repugnancy.
• Karunanidhi's three conditions: clear and direct inconsistency, absolutely irreconcilable, direct collision so that obeying one means disobeying the other.
• Two routes to repugnancy: direct conflict, and the occupied field where Parliament intended its law to be a complete code.
• Article 254(2): a Concurrent State law repugnant to an earlier central law, reserved for and assented to by the President, prevails in that State. The proviso lets Parliament undo it at any time.
• Article 251: a State law inconsistent with a law made under article 249 or 250 is inoperative, not void, and revives when the central law goes.

Test yourself

1. In what order must competence and repugnancy be considered, and why does the order matter?

2. State the three conditions that must be satisfied before repugnancy can arise, from M. Karunanidhi.

3. Distinguish direct conflict from the occupied field, and say what evidence establishes the second.

4. Explain the effect of the President's assent under article 254(2), and its two limits.

5. Contrast the word "void" in article 254(1) with "inoperative" in article 251.