Law making powers
“Broadly speaking, the Parliament or the Centre has exclusive legislative powers over the matters enumerated in List-I. The matters in List-II are the exclusive powers of State Legislatures. Matters on which both the Centre and the State could legislate are found in List-III of the Concurrent List.
It may sometimes happen that in the course of making a law, one may incidentally trench upon a subject assigned to the other for the reason that the entries in the Lists have to be widely construed and some amount of overlapping could not altogether be avoided.
If the legislation is, in pith and substance, on a matter assigned to one legislative body, an incidental encroachment into the territory of the other could be considered permissible. Pith and substance and ‘incidental encroachment’ are the doctrine evolved by Courts to ensure that the federal machinery could function without serious friction.
In case of conflict between the entries in Lists I and II the question would be one of competency, to be decided with reference to the pith and substance of the matter, not one of repugnancy.
Repugnancy as has been pointed out by the Supreme Court in Hoechst Pharmaceutical Ltd v. State of Bihar, AIR 1983 SC 1019, would arise only when both the legislature bodies operate in a field common to them i.e. when they simultaneously legislate on the same matter in the concurrent list and speak in different voice. Inconsistency would arise when the provisions of two could not logically exist at the same time, or when they clash impose contradictory duties or confer contradictory rights. Where there is direct conflict between two provisions, or where one could not be obeyed without disobeying the other, a clear case of repugnancy might appear.
There is no provision in the Constitution which lays down that a Bill which has been assented to by the President would be ineffective as an Act if there was no compelling necessity for the Governor to reserve it for the assent of the President. There might be a genuine doubt about the applicability of any of the provisions of the constitution which required the assent of the President to be given to it in order that it must be effective as Act. If the Governor in exercise of his discretion decided to reserve the Bill in such a situation for consideration of the President to avoid any future complication that Act would not be put forward as a proof of the existence of repugnancy between the Parliamentary enactment and the Bill which had been reserved for the assent of the President.
The landmark decisions of the Supreme Court in Zaverbhai v. State of Bombay, AIR 1954 SC 752; Tika Ramji v. State of UP, AIR 1956 SC 676; Deepchand v. State of UP, AIR 1959 SC 648; Karunanidhi v. Union of India, AIR 1979 SC 898 and Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019 have by now settled the legal position so authoritatively and the principles laid down are so well known that we do not consider it necessary to quote passages from them for the purpose of this judgment. Suffice to note that broadly speaking the tests for ascertaining repugnancy, in the light of the guiding principles contained in those decisions, could be stated in a nutshell as follows:
- Whether there is direct conflict between the two provisions.
- Whether Parliament entered to lay down an exhaustive Code in respect of the subject matter replacing the Act of the State Legislature; and
- Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
(This is an excerpts from the Full Bench judgment in APSWI Co-operative Ltd. v. Labour Court, Hyderabad, AIR 1987 AP 182 while deciding the point that whether the Industrial Dispute Act and the Shops and Establishment Act were inconsistent to each other)