Repugnancy: Article 254

The intention to occupy the field is inferred, not assumed. The court looks at the scheme of the Union Act, its provisions, and whether it purports to be exhaustive.

Article 254(2): the State's escape route

How it works. A State Bill on a Concurrent matter that would otherwise be repugnant to an earlier Union law may be reserved by the Governor under article 200 for the President's consideration. If the President assents, the State law prevails in that State.

Three limits. The saving operates only in the State concerned; it works only against an EARLIER Union law, not a later one; and by the proviso, Parliament may at any time add to, amend, vary or repeal the State law, so the protection lasts only as long as Parliament allows.

And the assent must be to the repugnancy. The President's assent under article 254(2) is understood to relate to the specific repugnancy for which the reservation was made, not to be a general immunisation of the State Act.

A worked example

Parliament enacts the Contract Labour (Regulation and Abolition) Act, a Concurrent subject under Entry 22 or 24 of List III, providing that a contractor employing twenty or more workers must be licensed. A State enacts a law providing that a contractor employing ten or more workers must be licensed, and imposing additional conditions. Is the State law repugnant?

Condition one is satisfied. Both laws are on a Concurrent matter, so both legislatures are competent and article 254 is in play.

Condition two is the real question, and the answer is usually no. A contractor employing fifteen workers must be licensed under the State law and need not be under the Union law. Can both be obeyed? Yes: obtaining a licence the Union law does not require is not disobedience to the Union law. A stricter State law on a Concurrent subject is generally not repugnant to a more permissive Union law.

Now change the facts so that it is. Suppose the Union Act provides that no contractor employing fewer than twenty workers SHALL BE REQUIRED to obtain a licence. Now the two cannot stand together: the Union law confers an immunity the State law removes, and the State law is void to the extent of the repugnancy.

And now change them again. Suppose the Union Act contains a complete scheme of registration, licensing, conditions of work and abolition, and states that it is to be the whole law on contract labour. Even the first State law may then be repugnant on the occupied field ground.

Finally, the escape route. If the State Bill in the second or third version had been reserved by the Governor under article 200 and had received the President's assent, it would prevail in that State under article 254(2), until Parliament chose to amend or repeal it.

The cases

Repugnancy arises only in the Concurrent field. In Hoechst Pharmaceuticals Ltd v. State of Bihar, 1983 AIR 1019; (1983) 4 SCC 45, decided on 6 May 1983. Facts. Section 5(3) of the Bihar Finance Act 1981 imposed a surcharge on large dealers and forbade them to pass it on to purchasers, while paragraph 21 of the Drugs (Prices Control) Order 1979, made under the Essential Commodities Act 1955, permitted a dealer to pass on sales tax; drug manufacturers said the State provision was repugnant and must yield under article 254(1). Held. The State provision valid. Entry 54 of List II is a tax entry, so the two laws were not in the same field. The question of repugnancy under article 254(1) arises only where both legislatures are competent with respect to a matter in the Concurrent List and there is a direct conflict; only then is the State law void to the extent of the repugnancy. Article 254(1) has no application to an overlap between List II on the one hand and Lists I and III on the other: there the State law fails, if at all, for want of competence under article 246(1) read with the opening words of article 246(3), and not for repugnance. Why it matters here is that it is the authority for the boundary of the article, and it is the proposition most answers miss.

The tests for a direct conflict. In M. Karunanidhi v. Union of India, AIR 1979 SC 898. Facts. A prosecution of a former Chief Minister under the Prevention of Corruption Act 1947 and the Indian Penal Code, the accused arguing that the Tamil Nadu Public Men (Criminal Misconduct) Act 1973, a State law which had received the President's assent and had later been repealed, was repugnant to the Central Acts and had displaced them. Held. There was no repugnancy: the State Act created a distinct offence with different ingredients and did not conflict with the Central Acts, and it laid down that repugnancy arises where the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together, where obedience to one involves disobedience to the other, or where Parliament has intended to lay down an exhaustive code in respect of the subject-matter replacing the State law. Why it matters here is that it is the standard statement of the tests and it gives the occupied-field limb its Indian formulation.

And the timing of the two laws matters, which article 254 conceals. In Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648. Facts. The case concerned the Uttar Pradesh Transport Service (Development) Act 1955 and its relation to the Motor Vehicles Act as amended by Parliament in 1956, the State scheme having been framed before the Central amendment. Held., distinguishing the two clauses of article 13 in a passage that has become the standard authority, that a pre-Constitution law inconsistent with a fundamental right is void only from the commencement of the Constitution, whereas a post-Constitution law made in contravention of article 13(2) is void ab initio and still-born; and on the federal question it applied the occupied-field principle to the competing transport schemes. Why it matters here is the still-born and eclipsed distinction, which is why a State law struck down for repugnancy cannot simply revive when the Union law is repealed unless it is re-enacted.

Distinctions

What it does NOT mean

It does not mean a stricter State law is repugnant. Where both can be obeyed, there is no direct conflict, and a stricter State standard on a Concurrent subject usually stands.

It does not mean the President's assent immunises a State Act generally. The assent relates to the repugnancy for which the reservation was made, and Parliament may override the State law at any time under the proviso.

It does not mean article 254 protects a State law made without competence. A law outside the State's field is void whether or not the President assented to it.

And it does not mean repugnancy is the usual reason a State law fails. Most State laws that fail do so for want of competence or for breach of Part III, and Hoechst exists because the two enquiries were being run together.

Quick revision

Article 254(1): a State law repugnant to a Parliamentary law or an existing law with respect to a Concurrent matter is void to the extent of the repugnancy, and the Parliamentary law prevails whether passed before or after. Two conditions: both legislatures competent in the same field, meaning the Concurrent List, AND a direct conflict. Hoechst: article 254 has no application to an overlap between List II and Lists I or III, where the question is competence under article 246(1) and (3) and not repugnance. M. Karunanidhi: repugnancy where the provisions are irreconcilable, where obedience to one is disobedience to the other, or where Parliament intended an exhaustive code. Deep Chand: a post-Constitution law contravening article 13(2) is void ab initio and still-born, not eclipsed. Article 254(2): a State law reserved for and assented to by the President prevails in that State against an earlier Union law, subject to the proviso letting Parliament add to, amend, vary or repeal it at any time.

Test yourself

1. State the two conditions for repugnancy under article 254(1). Both legislatures must be competent in the same field, which means the matter must be in the Concurrent List; and there must be a direct conflict between the two laws.

2. What did Hoechst decide about the boundary of article 254? That it has no application to an overlap between List II on the one hand and Lists I and III on the other. In such a case the State law fails, if at all, for want of legislative competence under the non obstante clause in article 246(1) read with the opening words of article 246(3), and not for repugnance.

3. Give the three tests of direct conflict from M. Karunanidhi. Where the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together; where obedience to one involves disobedience to the other; and where Parliament intended to lay down an exhaustive code on the subject-matter replacing the State law.

4. Is a stricter State law on a Concurrent subject repugnant to a more permissive Union law? Usually not, because both can be obeyed. It becomes repugnant if the Union law confers an immunity or a right that the State law removes, or if the Union law is an exhaustive code on the subject.

5. State three limits on the protection given by article 254(2). It operates only in the State concerned; only against an earlier Union law; and only until Parliament exercises its power under the proviso to add to, amend, vary or repeal the State law.

6. Why can a State law struck down for repugnancy not simply revive when the Union law is repealed? Because on Deep Chand a law that was void when made is still-born rather than merely eclipsed, so the removal of the impediment does not restore it and re-enactment is required.