CONSTITUTIONAL LAW

PROJECT WORK

TOPIC- DOCTRINE OF REPUGNANCY

AND COLOURABLE LEGISLATION

SUBMITTED TO: SUBMITTED BY:

MR.RUSHIL MANSIMRIT SINGH
UILS,PU 359/22, BCOMLLB
 ACKNOWLEDGEMENT

The success and final outcome of this project required a lot

of guidance and assistance from many people and I am
extremely fortunate to have got this all along the completion
of my project report. Whatever I have done is only due to
such guidance and I would never forget to thank them.

I take this opportunity to record deep sense of gratitude to

my teacher, Mr. Rushil , University Institute of Legal studies,
Chandigarh for her incontestably perfect unmatched
guidance, encouragement, valuable suggestions and efforts
made during the preparation of this project and during her
lectures which enabled me to complete this project
successfully on the topic.
 CONTENTS

PAGE 4 INTRODUCTION
PAGE 4-7 DOCTRINE OF REPUGNANCY
PAGE 8 CASE LAWS
PAGE 9 INTRODUCTION
PAGE 9-12 DOCTRINE OF COLOURABLE
LEGISLATION
PAGE 12-13 CASE LAW
PAGE 14 CONCLUSION
PAGE 15 BIBLIOGRAPHY
DOCTRINE OF REPUGNANCY

INTRODUCTION
The Constitution is known as the supreme law of the country
because it contains the core of the workings of the law on which the
wheels of justice turn. The Indian Constitution contains many such
Articles which are responsible for providing an understandable
overview and also to avoid further confusion that might arise if these
Articles were not provided by the Constitution itself, among these
Articles of unparalleled importance is the Article 254 of the
Constitution establishing the doctrine of repugnancy. There are three
types of lists mentioned in the 7th Schedule in the Indian
Constitution, including: Union List, which lists the subjects on which
Parliament can legislate, while State List, which lists those falling
within the purview of the State lawmakers fall. The concurrent list,
on the other hand, has subjects that are the responsibility of both
the parliament and the state legislature. However, the Constitution
grants Parliament federal sovereignty over concurrent list items in
the event of a conflict.

OBJECTIVE
The doctrine of repugnancy is basically when two pieces of legislation
having a conflict between them and when are applied to the same
facts but they produce different outcomes or results. When
provisions of 2 laws are so contrary and disconfirmed that it becomes
difficult to do one without opposing the other, this is a situation
where repugnancy arises. Article 254 of the Indian Constitution
establishes successfully the Doctrine of Repugnancy in India. The
doctrine of repugnancy, in accordance with Article 254, states that if
any part of State law is repugnant or conflicting to any part of a
Central law which the Parliament is competent to enact, or to any
part of a law of the matter of List III, then the Central law made by
the Parliament shall prevail and the law made by the State legislature
shall become void, to the extent of its repugnancy.

WHEN DOES DOCTRINE OF REPUGNANCY ARISE?

Repugnancy between a Central law and a state law arises only if both
the laws are contradictory to each other and there is absolutely no
means to reconcile the provisions. In the case of Bharat Hydro Power
Corporation Limited v. State of Assam [1], the Supreme Court stated
that every effort has to be made to reconcile the conflicting
provisions in order to avoid repugnancy. Repugnancy has to be there
in fact, it cannot be based on a mere possibility. It must be shown
clearly that the State law is repugnant to the Central law. There would
be no repugnancy in cases where the two provisions are related to
different subject matters and do not encroach upon each other.
Repeal by implication cannot be done unless there is a prima facie
repugnancy in the provisions. If two provisions are related to the
same field and there is a possibility for both of them to operate
without encroaching upon each other, then this doctrine is not
attracted. In Chief Secretary to the Government, Chennai Tamil Nadu
v. Animal Welfare Board [2], the court stated that for a law to be
considered as void, the inferior legislation must not only be
inconsistent, but also irreconcilable with the superior legislation.
Furthermore, there should be no possibility of the two legislations to
be able to operate together. In the case of State of Maharashtra v.
Bharat Shanti Lal Shah, the court held that there was no repugnancy
between Sections 13 to 16 of the Maharashtra Control of Organised
Crime Act, 1999 (State laws) and the provisions of the Telegraph Act,
1885, section 5(2) read with Telegraph Rules, 1951 (Central laws).[3]
M. Karunanidhi v. Union of India [4] is a landmark judgement on the
doctrine of repugnancy. The constitutional bench of the Supreme
Court stated that the following conditions have to be fulfilled in order
to apply this doctrine: 1. There must be a clear and direct
inconsistency between the two enactments. 2. There can be no
repeal unless inconsistency appears on the face of the two statues. 3.
Two statues occupy same field without coming in collusion there can
be no repugnancy results. 4. There is no inconsistency between the
statues in the same field both the statues continue to operate. In the
case of, Government of Andhra Pradesh v. J.B. Educational Society [5],
the Court stated that there must be sufficient efforts made in
interpreting the Central and the State legislations in such a way that
the conflicts do not arise or can be circumvented. But in cases where
such interpretation is not possible, then the Parliamentary law will
prevail. The basic principle of the Indian constitution is that there is a
division of legislative, executive and financial authority between the
centre and the state. India follows the system of federalism where
centre and state which is at a periphery each of them and is endowed
with power assigned by the constitution. In the Indian constitution
there are three types of lists mentioned in the 7th schedule they
include Union list in which the union government has an exclusive
power to make law. 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.

ARTICLE OF INDIAN CONSTITUTION.

Article 246 Deals with three lists which provides subject-matters on
which whether Centre can make law or State or both. Article 254 of
the Indian Constitution firmly entrenches the Doctrine of Repugnancy
in India. This doctrine deals with the conflict of law arises between
Centre and States. Article 254(1) states that if any provision of law or
law made by the legislature of the State is repugnant to the any
provision of law or law made by the Parliament, then the law made by
Parliament will prevail over State enacted Law. Article 254(2) defines
that if any provision of law or law made by the legislature of the State
on the matter enumerated in concurrent list, is repugnant to the any
provision of law or law made by the Parliament and if it has been
reserved for the assent of the President and got the assent from the
President ten State law will prevail over the law enacted by
Parliament. Provided that Parliament at any time before the assent of
the President can amend or repeal the repugnant law. Exception to
the rule of Repugnancy The doctrine of repugnancy is also subject to
the exception which is provided under clause (2) of Article 254 of the
Indian Constitution. According to the clause (2) of Article 254 if a state
law with respect to any of the matters enumerated in the concurrent
list contains any provision repugnant to the provisions of prior
legislation formulated by the parliament, or prevailing legislation with
respect of that matter, then the state legislation if it has been
reserved for the assent of the President and has received his assent,
shall persist notwithstanding such repugnancy. But it would still be
possible for the parliament under the provision to clause (2) to
override such legislation by subsequently formulating legislation on a
similar matter. If it formulates such legislation then the state
legislation would be void to the extent of repugnancy with the union
legislation.

CASE LAWS
Deep Chand v. State of U. P[vi] the question, in this case, was
pertained to the validity of the U. P. Transport Service Act. With this
Act, the state government was authorized to create the scheme for
the nationalization of Motor Transport in the state. The legislation
was necessitated because the Motor Vehicles Act, 1939 did not
encompass any provision for the nationalization of Motor Transport
Services. Later on, in 1956 the Parliament with a perspective to
introduce uniform legislation amended the Motor Vehicles Act, 1939,
and added a new provision facilitating the state government to frame
rules of nationalization of Motor Transport. It was held by Court that
since both, the union law and state law occupied the identical field,
the State legislation was void to the extent of repugnancy to the
union legislation. Zaver bhai v. State of Bombay[vii] The Parliament
passed the Essential Supplies Act, 1946, for governing production,
supply, and distribution of essential commodities. Contravening any
of the provisions of the Act was punishable with imprisonment of up
to 3 years or fine or both. In 1947, contemplating the punishment
inadequate, the Bombay legislature enacted an Act increasing the
punishment furnished under the central legislation. The Bombay Act
obtained the assent of the President and this prevailed over the
central law and become operative in Bombay. However, in 1950
Parliament amended its Act of 1946 and increased the punishment. It
was held by the Court in the instant matter that as both inhabited a
similar field that is an enhancement of punishment, hence the state
legislation became void as being repugnant to the central law.
INTRODUCTION
Federalism is the basic structure of the Indian Constitution. The
sovereign authority derived from the Constitution is distributed
between the two levels of government: the centre and the states.
This step promotes better administration and includes growth in the
nation. At times, one government body attempts to encroach on the
jurisdiction of another government body by enacting legislation that is
not within their purview of governance or by passing laws that give
them authority to enact laws from another’s domain of governance.
This defeats the very purpose of federalism, and there is always a
constant risk of one government authority becoming more powerful
and starting to impose its decisions on another government
authority.

THE DOCTRINE OF COLOURABLE

LEGISLATION
The doctrine of colourable legislation is a legal principle that aims at
the prevention of excessive and unconstitutional use of the legislative
authority of the government. The doctrine is derived from the Latin
maxim “quando aliquid prohibetur ex directo, prohibetur et per
obliquum” which means things that cannot be done directly should
not be done indirectly either.

The Blacks Law Dictionary defines the word ‘colourable’ as:

1. Appearing to be true, valid or right.

2. Intended to deceive; counterfeit.
3. Appearance, guise or semblance.
In a literal sense, the doctrine of colourable legislation means that the
government is enacting legislation under the guise of having authority
even though it does not possess any competent authority to do so.

ARTICLE 246 OF THE INDIAN CONSTITUTON

The Indian Constitution does not expressly mention the doctrine of
colourable legislation. However, Article 246 and Article 246A outlines
the legislative authority of the centre and states and judiciary have
the power to declare any legislation unconstitutional if the legislature
exceeds its authority.

Article 246 of the Constitution discusses the federal nature of India.

Article 246 distributes the power between the centre and the states
and specifies their authority to enact laws on various subjects.
The Seventh Schedule divides the legislative authority between the
centre and states into three distinct lists in order to prevent them
from intruding on each other’s legislative domain.

The subjects are divided into three lists:

(1) Union list;

(2) State list;

(3) Concurrent list.

UNION LIST
The union list contains matters of national importance, and the
central government has the exclusive right to make legislation for the
whole country or any region. The centre has the power to make laws
regarding the subjects mentioned in the union list. The union list
contains 97 subjects such as external security, defence,
communication, trade etc.

The central government is entrusted with the responsibility of

maintaining external security and internal peace in the country. With
respect to this, the union government can raise funds to develop
armed forces and make necessary laws on warfare industries for the
manufacturing of arms and ammunition.

The central government has the right to make laws on transportation

to improve connectivity between different parts of our country and
other nations. They include the creation and management of roads,
railways, national waterways, airways, aircraft, ports, and lighthouses
for the establishment of transport, infrastructure, and communication
both domestically and internationally.

STATE LIST
The state list contains subjects that are vital for the effective
functioning and administration of the state. Every state in India has
the exclusive power to make laws pertaining to the subjects in the
state list suitable for the respective state. The state list contains 61
subjects. Initially, there were 66 subjects in the state list, but after
the 42nd amendment of the Indian Constitution, five subject matters
relating to education, forests, protection of wild animals and birds,
weights and measures, and administration of justice, including the
constitution and organisation of all courts except the Supreme Court
and High Courts were transferred to the concurrent list.

The state government has the power to implement necessary

legislation to maintain law and order in their respective states. The
state government controls the police forces in the state. The police
are entrusted with the maintenance of peace and harmony within the
state. The government has the right to enact laws and regulations
with regard to state police in compliance with the requisites of the
state.

CONCURRENT LIST
The concurrent list contains subjects that are of interest to both the
centre and the states. Both the centre and states have exclusive
power to enact laws pertaining to the subjects mentioned in this list.
However, if both the union and state governments make laws on the
same subject, the central government’s law will take precedence.
The primary aim of the concurrent list is to promote the diversity of
laws, social traditions, and federal experimentation. The concurrent
list contains 52 subjects in total.

CASE LAWS

State of Bihar v. Maharaja dhiraja Sir Kameshwar

Singh (1952)

After independence, many state governments passed legislation on

the abolition of the zamindari system and intermediaries between the
cultivators and the state. The Bihar Land Reforms Act, 1950,
the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, and
the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950 were enacted in their respective states with a similar view.
However, landlords filed a case in the High Courts of their states
challenging the legitimacy of the act. The Bihar High Court declared
the Bihar Land Reforms Act to be invalid under Article 14 of the
Constitution, while the other two acts were held valid and legitimate.
This decision was challenged in the Supreme Court. During this
period, the Indian Constitution added the Ninth Schedule through
the First Constitutional Amendment. The subjects under the Ninth
Schedule were provided immunity from judicial review, and the Bihar
Land Reforms Act was placed in the Schedule in the same year.
Articles 31A and 31B were passed accordingly in this regard. This
amendment took away the opportunity of zamindars to attack the
legislation on infringement of Part III of the Constitution.
 CONCLUSION
The Constitution of India vests the law-making power between the
Union Parliament and State Legislatures and both have the power to
make laws. But sometimes conflict took place because of complexity
present in the Constitution that’s why Indian Constitution is called as “
Federal having strong centralizing Tendency” The constitution of India
consist of various doctrines out of which doctrine of repugnance is one
of the most significant it help to maintain uniformity in the country and
avoid disputes between the centre and the state. India being a Quasi
federal country there is a distribution of power between the centre and
the state so there are possibility that disputes arise between the centre
or the state then this doctrine proves critical. Where any law passed by
the parliament inconsistent with the law passed in the state legislature
the parliamentary law would prevail.
The doctrine of colourable legislation aims to prevent the use of the
legislative authority of the government for unauthorised purposes. The
primary objective of the division of powers is to prevent the
concentration of powers under one government authority. Whenever
a government authority tries to expand its powers by enacting new
laws outside its territory, this situation may pose a serious threat to
democracy in the country.
 BIBLIOGRAPHY

~ Constitutional Law Book by Narender Kumar

~ https://blog.ipleaders.in
~ https://legalservicesindia.com
~ https://www.rmnlu.ac.in