“The philosophy of the dual federalism is essentially the exposition of the States’ rights position. It is that conception of the Federal system that views the powers of the natural government and the State as mutually exclusive, conflicting and antagonistic.” – Creig R Ducat, Constitutional Interpretation, 8th Ed, Pg. 273
Article 254(1) of the Constitution of India states that if a law made by the State Legislature under the Concurrent List is repugnant to a Central law, the State law is void to the extent of the repugnancy. To the general rule laid down in Clause (1), Clause (2) engrafts an exception viz., that if the President assents to a State law which has been reserved for his consideration (Article 200), it will prevail notwithstanding its repugnancy to an earlier law of the Union, both dealing with a concurrent subject. Article 254 (2) only deals with the legislative supremacy and not legislative competency. This clause is confined to a case of ‘repugnancy’ between a State and a Union law relating to the same subject enumerated in the Concurrent List. In such a case, the State law shall prevail notwithstanding such repugnancy, if it receives the assent of the President. It has no application to any State law which is ultra-vires, e.g., if it substantially relates to a subject in List I. In such a case the State law is void ab intio and no assent of the President can validate it. Though, it is relevant to note that Parliament will still have power under the Proviso of Article 254 (2) to amend or repeal law.
Clauses (1) and (2) of Article 254 of the Constitution substantially reproduces sub-ss. (1) and (2) of Section 107 of the Government of India Act, 1935. The similar provision may also be found in Section 109 of the Australian Constitution which deals with ‘inconstancy between State and Commonwealth laws.’
Recently, there has been frequent use or mulling over to use of Article 254 (2) by the State to bypass the Central Legislation. It is apt to note that the Hon’ble President of India has assented all the eight Bills presented to him under Article 200 read with Article 254 (2) and Article 201 of the Constitution of India from January 1, 2021 to June 7, 2021. Out of the total eight Bills four belong to the State of Gujarat and four belongs to Assam and Odisha. The four Bills of Gujarat are the Industrial Disputes (Gujarat Amendment) Bill, 2020, the Contract Labour (Regulation and Abolition) (Gujarat Amendment) Bill, 2020, the Small Cause Courts Laws (Gujrat Amendment) Bill, 2020, and the Child and Adolescent Labour (Prohibition and Regulation) (Gujarat Amendment) Bill, 2020. Further, the remaining four Bills which belong to State of Assam, and Odisha are the Contract Labour (Regulation and Abolition) (Assam Amendment) Bill, 2020, the Industrial Disputes (Assam Amendment), Bill 2020, the Industrial Disputes (Odisha Amendment) Bill, 2020, and the Contract Labour (Regulation & Abolition) (Odisha Amendment) Bill, 2020.
Moreover, when three farm laws had created havoc in the entire country in 2020-2021 after getting assent from the President of India, Congress had advised the Party-ruled states to use Article 254(2) of the Constitution to negate three farm laws.
When State uses Article 254(2) to pass any law which is in conflict with the law made by the Parliament, there is some procedure which is required to be followed. It is divided in two stages. First is prior approval stage where the State before sends the Bill to Union government for approval (not mandated by Constitution). Secondly, is after approval stage where the State sends the Bill for assent (Mandated by Constitution). In second Stage, there are few protocols which State is required to be followed (though not uniformly followed by all States) such as to provide five copies of Bill, provide extracts from proceeding of the State Legislature on the Bill, and to explain the extent of repugnancy to existing Central legislation in forwarding letter. This last practice to explain the extent of repugnancy has always been the heat of the debate between Centre and State.
Thus, the frequent use of Article 254(2) or mulling over to use by the State for their political or legal ends, may again raise the debate to explain the extent of repugnancy in the State Bill in relation to the Central Law or laws. Thus, it behoves the authors to analyse the following questions:
- Whether the State Legislature really needs to point out the provisions of the State law that are repugnant to the Central Law or laws to comply with Article 254(2)?
- Whether the ‘assent’ of the President of India under Article 254(2) of the Constitution is justiciable and is subject to judicial review, and if yes when to what extent?
- Analysing the Question No. 1:
The Hon’ble Supreme Court in the case of Kaiser-i-Hind Pvt.ltd v. National Textile Corporation Ltd in 2002 analysed this position. The issue before the Hon’ble Supreme Court was whether the Bombay Rent Act, 1947 had received the assent of the President under Article 254(2) for all the Central laws which it was repugnant to or only those Central laws for which assent was specifically sought from the President?
The Constitution bench of the Hon’ble Supreme Court laid down that there are two essentials for obtaining ‘assent’ under Article 254(2), namely, that the law must be ‘reserved for the consideration of the President’ and the law must receive the ‘assent of the President’. The Court held that ‘reserved for the consideration of the President’ would mean that the President has actively applied his mind to the repugnancy which was pointed out by the State legislature and the reasons for enacting a repugnant law. This would imply that if the President granted his assent, the repugnancy between the Central and State law is within his knowledge. It could mean either that all the Central laws which are repugnant to the State law must be brought to the attention of the President or that the conflicting provisions in the State law must be specified to the President to allow him to make an informed decision regarding the operation of the repugnant State law. Since the State legislature had mentioned only certain Central laws which were repugnant to the Bombay Rent Act, the Court held that the Act was void to the extent of the repugnancy with the Central laws for which assent was not sought from the President.
Although the judgment states that ‘pointed attention’ of the President must be drawn to the repugnancy between the State and Central law, the context in which this was laid down indicates that Article 254(2) does not require specific provisions to be brought to the attention of the President. On the contrary, it is only required that the State Legislature indicate the specific laws made by the Parliament which are repugnant to the State law as this will allow the President to consider all the relevant materials before granting assent. This is clarified in paragraph 27 of the judgment wherein the Court states that it is not considering whether assent was rightly or wrongly given or if the President considered the nature and extent of repugnancy. It would mean that if the text of the bill passed by the State and the conflicting Central laws are produced before the President, it would be ‘reserved for the consideration of the President’ and hence, the requirement under Article 254(2) is fulfilled.
Further, in Rajiv Sarin v. State Of Uttarakhand, 2011 the Supreme Court clarified and relied on the Kaiser-I-Hind (supra) judgment. Here, the Court emphasised that the assent of the President, if sought for a specific purpose or specific provisions, would apply only for those provisions even if general assent was given.
However, in Yogendra Kumar Jaiswal & Others v. State of Bihar & Others, 2015 the Supreme Court upheld the validity of the Orissa Special Courts Act, 2006 although assent was sought for specific provisions only. This was because the entire Bill was sent for the consideration of the President and general assent was given for the entire Bill. Thus, an inference can be drawn that if the complete State law and Central law is placed before the President, it is presumed that he has applied his mind to the repugnancy between the provisions of the respective legislations before granting his assent.
The Delhi High Court rendered a contrary decision in Delhi High Court Bar Association v. Govt. of NCT of Delhi, 2013 wherein the Court held that merely forwarding copies of a bill does not fulfil the requirements under Article 254(2). The Court specified that the State must meet the requirement of ‘active application of the mind of the President’ by placing the specific provisions of the State law which are repugnant to the Central law. In doing so, the Court has reviewed the assent granted by the President and decided if he has considered the materials placed before him while granting assent. This was explicitly restricted in Kaiser-I-Hind as courts cannot adjudicate upon the manner in which assent was given or whether it was given correctly after examining the repugnant laws and the reasons for repugnancy.
The contention that specific provisions must be pointed out by the State Legislature was raised before the Supreme Court in G. Mohan Rao v. State Of Tamil Nadu, 2020. Here, the Court clarified the position in Kaiser-I-Hind, stating that the only requirement is to bring the conflicting laws to the notice of the President and the reasons for enacting a repugnant law. It was held that the scope of examination of the President’s assent is limited and hence, the Court can only determine if the materials necessary for the President to take an informed decision were placed before him by the State legislature.
- Analysing the Question No. 2:
In relation to analyse the question that whether the ‘assent’ of the President of India under Article 254(2) of the Constitution is justiciable and is subject to judicial review, and if yes when to what extent, it is essential to look into the law laid down by the Hon’ble Supreme Court in the case of Gram Panchayat of Village Jamalpur v. Malwinder Singh and Ors, 1985, wherein the Court held that assent granted by the President under Article 254(2) is not an ‘empty formality’ and must be given only after considering the reasons for placing the State law before him and enacting a repugnant State law thus allowing courts to examine Presidential assent to some extent. However, in Hoechst Pharmaceuticals Ltd. v. State Of Bihar, 1983 and Kaiser-I-Hind the Court held that the assent of the President is not justiciable and cannot be subject to judicial review.
Therefore, courts must decide if the requirements under Article 254(2) have been fulfilled while restricting themselves from reviewing an action taken by the President. Courts cannot consider if the President granted assent correctly, but they must decide if assent was sought correctly by placing all the relevant materials before him. Hence, if the entire text of the bill passed by the State Legislature is placed before the President and the Central laws with which it is conflicting is brought to his notice, there is no reason why specific provisions must be pointed out to him. The judgment in G. Mohan Rao (supra) supports this position.
After analysing the aforesaid points, it may safely be concluded that Article 254(2) lays down two simple requirements which must be complied with by the State legislature for a repugnant State law to receive valid assent from the President. Firstly, the entire text of the State law for which assent is sought and all the conflicting Central laws must be placed before the President and secondly, the reasons for introducing a repugnant State law must be brought to the attention of the President. Any examination by the courts beyond these requirements will result in a judicial review of the assent granted by the President which is not permitted by law. This can be seen from the line of precedents laid down by the Supreme Court which restricts the judiciary from examining the manner in which assent was given by the President. Instead, it only allows examination of the manner in which assent was sought from the President by the State Legislature. Through the decision in Kaiser-I-Hind and the recent decision in G. Mohan Rao, the Hon’ble Supreme Court has clarified that the assent of the President to a repugnant State law will not be invalid merely because specific provisions repugnant to the law made by the Parliament were not brought to the attention of the President since this would entail a judicial review of the assent granted by the President.
- Mr. Pawan Reley [Advocate, Supreme Court of India, & Co-Founder NIEV Judicial Education]
- Ms. Rida Ameen [Final Year, B.A., LL.B (Hons.) Student at School of Law, Christ (Deemed to be University)]