Doctrine of Repugnancy
DOCTRINE OF REPUGNANCY
Author : Garima Sethi
BACKGROUND
When India got independence in 1947 constituent assembly was formed in order to form a written constitution. It took almost 2 years 11 months and 17 days to adopt the final draft of the constitution. The world’s lengthiest constitution is considered as ‘Supreme law of the land’. This is known as lengthiest written constitution in the world as it had adopted different ideas from all over the world. Idea of ‘Fundamental duties’ ‘Parliamentary Government’ ‘Rule of Law’ etc. as features adopted or borrowed from the countries all over the world. Similarly, the idea of ‘Federal form of government’ was also borrowed from United States of America. Federal form of government implies that there shall be division of powers of government. Earlier this division of power of government was done in ‘Central’ and ‘State’ government in India, but after the recognition of Panchayat Raj in 73rd Constitutional amendment the power of government started to distribute at three level, Central, State and Gram or Panchayat level.
introduction
Doctrine of Repugnancy is a doctrine which talk about the conflicts which arise in a federal form of government. Article 252 of Indian constitution talks about the Doctrine of Repugnancy, wherein the word ‘Repugnancy’ means ‘those ideas or statements which are inconsistent or incompatible’. Doctrine specifically addresses all the questions arising between the parliament which has the law making authority and the legislature of each states which also have law making powers.
ANALYSIS OF DOCTRINE
Doctrine of Repugnancy talks about conflicts those arise between the laws of centre and State. As per Article 245 clearly specifies that Parliament may make laws or the whole or any part of the nation and the legislature of state of also has the power to make laws for the whole or a part of the state, respectively. The laws made by parliament will not be deemed as invalid in any case that it has exercised it power over its territory. Also the article as specifies that Parliament may make laws for whole or a part of the territory of India, it impliedly means that it can make laws for states also as it is a part of the territory of india.
Article 245 reads as:
Extent of laws made by Parliament and by the Legislatures of States
(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.
The power to make laws have been clearly defined in Article 245 as abovementioned and any conflict regarding the jurisdiction has also been clarified by the Article, that in no situation Parliament made laws will be denied and will always prevail even if they are made for a state also. Now, the subject matter of laws which will be made by both the Centre and State, has been specified in Article 426 of Constitution of India. Article 426 clearly mentions the subject matter of laws which the Parliament and each State legislature will be making laws regarding which topics or concerned matters. The Parliament has the exclusive power to make laws of all the subject matters given in List1(Union list) in the 7th schedule, the legislature of the state and the Parliament has powers to make laws given in the concurrent list (List 3). The Parliament is also empowered to make laws in respect of any matter or any part of the territory of India in respect with the State list.
The Article 246 reads as :
Subject matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List)
(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List)
(3) 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.
The subject matter and jurisdiction are clarified by the Articles as abovementioned. Now, a question of State list, Union list and Concurrent list may have arisen. The government has specified certain lists of matters in regard of which the Parliament and the State legislature are given power and jurisdiction to make laws. These lists are given in 7th schedule of the Constitution of India. The Union List consists of 97 subject matter in respect of which the Centre i.e. the Parliament will make laws, the State List consists of 66 subject matter in respect of which the State legislature will make laws and Concurrent 47 subject matters, in respect of which both the Centre and State will make laws with mutual considerations.
In case any dispute arises between the Centre and the State, in regard to the jurisdiction of making any law or in regard to any subject matter of the law the above mentioned Articles shall be taken into consideration. The judiciary has also helped in curving out more solutions and the conditions[i] which shall be considered in case any repugnancy could arise.
CONCLUSION
Doctrine of repugnancy was initially formulated in order to resolve differences arising between the Centre and the State as both are given the power to make laws. This will automatically create differences when both will make laws in respect of their subject matters. India as mentioned in constitution has a federal form of government which ultimately distributes powers among the Centre and the State.
[i] M.Karunanidhi VS. UOI
