[This is a guest post by Ashwin Vardarajan.]

Introduction

Two recent judgments of the Supreme Court – Gambhirdan K. Gadhvi v. State of Gujarat (March 2022) and Sreejith P.S v. Rajasree M.S. (October 2022) – have brought to the fore an important issue of constitutional interpretation: does the doctrine of repugnancy, under Article 254 of the Constitution of India, allow a law made by a State Legislature to be subordinated to delegated legislation promulgated by the Union Government under a law of the Parliament? While the SC’s answer was a resounding ‘yes’, the reasoning employed by it is a continuation of a pre-existing constitutional anomaly which has existed under Article 254 for quite some time. Without questioning the correctness of the outcomes in Gambhirdan and Sreejit on merits, this essay argues that the reasoning employed by the SC in answering the aforesaid question is incorrect and deserves to be reconsidered.

The Decisions in Gambhirdan and Sreejit, and a Historical Background

Briefly put, Gambhirdan and Sreejit concerned the appointment of two Vice Chancellors (‘VC’) under state laws of Gujarat and Kerala, respectively, challenged for being in contravention of the method for choosing a VC prescribed under the University Grants Commission Regulations, 2018 (‘UGC Regulations’).

In Gambhirdan, the VC was chosen on the basis of a criteria prescribed by the selection committee established under the Sardar Patel University Act, 1955 (‘SPU Act’) as opposed to the UGC Regulations. The SC, in this regard, held that the SPU Act’s provisions were “contrary to the [UGC Regulations], which…are binding on the State Government and the universities thereunder”. While setting aside the concerned VC’s appointment for being contrary to the UGC Regulations, they held that “being a subordinate legislation, UGC Regulations becomes part of the [UGC] Act”, and that “any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject ‘education’ is in the Concurrent List (List III) of the Seventh Schedule of the Constitution.”

In Sreejith, a similar question arose in respect of the appointment of the VC at the APJ Abdul Kalam Technological University (‘AKTU’). The challenge against the appointment of the VC was advanced again on lines of it being in violation of the UGC Regulations. Following Gambhirdan, the SC set aside the appointment of the VC at AKTU, noting that:

“8.2…to the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List, the same shall be repugnant to the Central legislation and would be inoperative.” (Emphasis added)

In effect, the two decisions discussed above rule that a subordinate/delegated legislation promulgated by the Union Government under a law made by Parliament will have an overriding effect over a law made by the legislature of a State in accordance with Article 254. These decisions, however, are not the first of their kind.

One of the earliest instances encountering this issue was the SC’s decision in State of Jammu & Kashmir v. M.S. Farooqi (1972), where the All-India Services (Discipline and Appeal) Rules, 1951 were found to be in conflict with the State of Jammu & Kashmir Government Servants (Prevention of Corruption) Act, 1962. While relying on a plethora of decisions dealing with the doctrine of repugnancy, the SC held the State law to be repugnant to the 1951 Rules in accordance with Article 254. However, it must be noted that none of the decisions which the SC relied on to substantiate its ruling dealt with a case where a Central delegated legislation superseded a (repugnant) law enacted by the legislature of a State. Rather, all of these decisions concerned repugnancy between laws enacted by State legislatures and the Parliament.

Farooqi was also a deviation from the language of Article 254(1), which reads that if:

“…any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then…the law made by Parliament…shall prevail.” (Emphasis added)

Clearly, the wording emphasises on the enactment of a competent State legislature and the Parliament, and does not provide any room for delegated legislation made by the Union Government in its language. Naturally, thus, a delegated legislation must not be included within the fold of the doctrine of repugnancy. Farooqi also does not offer any explanation or reasoning as to why a delegated legislation superseded an enacted law of a State legislature by virtue of Article 254, despite the language indicating to the contrary. Later, in Annamalai University v. Information & Tourism Deptt. (2009), while dealing with the question of repugnancy between regulations made under the UGC Act and a State law, that the SC categorically ruled that “[subordinate] legislation as is well known when validly made becomes part of the Act (sic).”

This observation became the basis for courts, in subsequent decisions, to conclude that if a central delegated legislation promulgated under a Parliamentary law must be considered an extension of the latter, and thus supersede a law made by the State legislature under Article 254. For instance, in Kalyani Mathivanan v. K.V. Jeyaraj (2015), the SC relied on the decision in Annamalai and concluded that the State Madurai Kamaraj University Act, 1965 was repugnant to the UGC Regulations, 2010 (a delegated legislation under the UGC Act).

Thus, Farooqi, Annamalai and Kalyani collectively allowed courts to hold that delegated legislation promulgated under a Parliamentary law is an extension of the latter, and deserves to supersede a repugnant law enacted duly by the State legislature in accordance with Article 254. Gambhirdan and Sreejit are a continuation of this line of judgments.

Constitutional Concerns

It is submitted that the SC’s reasoning suffers from several infirmities.

Firstly, as noted above, and pointed out elsewhere too, the language of Article 254(1) itself does not permit a Central delegated legislation to supersede a law enacted by a State legislature. Notwithstanding that, Article 254 resides in Part XI, Chapter I of Constitution, which deals with ‘Legislative Relations’ between the Union and the States–a domain dealing squarely with relations between State legislatures and the Parliament, and not the State legislatures and the Union Government. To substantiate, we also see that the provisions under Part XI, Chapter I deal only with the distribution of legislative powers between the Parliament and State legislatures, whereas Chapter II deals with ‘Administrative Relations’ (i.e., relations between the Union and State Executives).

Second, a potential fallout of the SC’s interpretation is that the will of a legislature comprising of the elected representatives in the concerned Indian State is made subservient to delegated laws promulgated by the Union Government (which may comprise of ministers indirectly elected to the Rajya Sabha and/or possessing a lesser magnitude public confidence and trust). Furthermore, we may also read the per incuriam–but, it is submitted, correct–decision of the Calcutta High Court (‘HC’) in Medical Council of India v. State of WB (2012). Dealing with the question of repugnancy between the Bengal Medical Act, 1914, and rules and regulations under the Medical Council Act, 1956, the HC held that a “delegated legislation cannot run counter to supreme legislation” of a State by virtue of being below an enactment of a legislature in the hierarchy of laws. In other words, a State law can only be repugnant to a Central law’s provisions. The Bombay HC, in Suresh Patilkhede v. Chancellor, Universities of Maharashtra (2012), too subscribed to this line of reasoning, but was overruled in Kalyani.

Thirdly, Parliamentary laws frequently grant extensive authority to the Union Government to promulgate delegated legislations under vaguely worded provisions often devoid of any determining scope within which the Government is permitted to act. Resultantly, the Government often exercises essentially legislative functions–i.e., functions primarily performed by a competent legislature–without adequate checks and balances–a criticism noted by the SC as well. Therefore, to rule in a blanket way that the delegated legislation is a part, or an extension, of the Central law overlooks the problems it causes in the context of the doctrine of repugnancy under Article 254. In the absence of any safeguards to tackle it, the SC’s interpretation undermines the federal compact between the Parliament and State legislatures manifested in the Constitution.

Fourthly, the SC in Farooqi, Annamalai, Kalyani, Sreejit and Gambhirdan did not consider its decisions’ impact on Article 245(2). An exception to the doctrine of repugnancy, Article 254(2) permits a State law to prevail over a Central law if the same has been placed for consideration by, and received an assent to that effect from, the President of India. By including delegated legislations within the fold of Article 254(1), the SC impliedly has subjected State legislatures to undergo the tedious process–a process often influenced by political motivations–of obtaining the assent of the President in circumstances where the Union Government promulgates a delegated legislation which is inconsistent with the impugned State law. It is also well known that State or Parliamentary laws go through a much more rigorous process to get passed by the concerned legislature, as opposed to a delegated law promulgated often without any legislative sanction or scrutiny. Thus, despite there being no discussion on this front by the SC, ripple effects of their interpretation will inevitably impact the working of Article 254(2).

Conclusion

The doctrine of repugnancy under Article 254 has a direct bearing on the rights of States to enact legislatures under the Concurrent List, whereby the Parliament even may occupy the concerned legislative field even without prior consultation with the States–a concern also flagged by the Sarkaria Commission (here, ¶2.14.01). By (historically) allowing Central delegated legislations to prevail over laws enacted by State legislatures, the SC creates fissures in the balance of legislative powers distributed between the Union and States under the Constitution. In an appropriate case, therefore, the SC must reconsider and reverse its stance on this issue.