Doctrine of Repugnancy: A Stillborn in GST Context?
Introduction: A contextual revisit to Constitutional law canons
A federation beseeches separation of powers between the federal constituents. Irrespective of the constitutional model, the very premise of shared powers harbour scope for disputes, in particular those seeking delineation of the respective legislative entitlement of the federal constituents. Certain doctrines such as ‘occupied field’, ‘pith and substance’, ‘incidental encroachment’, etc. are judicially evolved theories to address such jurisdictional-turf related conflicts. However, these doctrines essentially seek to mitigate the consequences of the conflict, thereby allowing parallel operation of the conflicting laws with minimal reading-down. On the other hand is the doctrine of repugnancy which invalidates the operation of a law entrenching upon the legislative competence of the other federal constituent. It is engrafted in Article 254 of the Constitution of India (‘COI’) and seeks to confer upon a law enacted by the Union Parliament overriding effect over State enactment in the same legislative-field. By default, the doctrine of repugnancy also ensures that there is only one law governing a particular aspect at any given point of time which in turn translates into the exclusivity of legislation between the Union and States. Thus, the doctrine of repugnancy precludes situations of overlap or head-on collision between Union and State law, the State law being ‘void’ in such eventuality. In short, therefore, the doctrine of repugnancy plays a critical balancing role in the federal setting under the COI.
The Constitutional Amendment introducing GST: Exploring the pivot
To facilitate introduction of Goods and Services Tax (‘GST’), which is a new tax on ‘supply’, substantive foundational changes were carried out by the 101st Constitutional Amendment (‘Amendment’) to the COI. The Amendment literally reshapes the federal idea underlying the constitutional landscape in so much so that the Amendment inserts a new provision – Article 246-A – which concurrently empowers both Parliament and States to enact legislations on the subject-matter of GST. Simultaneously, Article 248 is amended to make it subject to Article 246-A; thereby excluding GST from the residuary legislative powers of the Parliament. Thus, the application of the H.S. Dhillon ratio is negated in the context of GST. A fundamental change to the scheme of ‘legislative relations’ is, therefore, manifest wherein the amended scheme departs from the underlying theory of ‘exclusivity’ of legislative fields and instead broods ‘concurrency’ in legislative action.
Furthermore, vide Article 279-A, the Amendment institutes Goods and Services Tax Council (‘GST Council’), a new constitutional institution. The GST Council inter alia recommends model GST laws, the principle of levy of this new tax, rates of tax, etc. to the Union and the States. The details regarding the composition, voting, etc. of the GST Council, as set out in the Amendment, reveal that the GST Council is instituted to facilitate cooperative decision-making by the Union and the States; non-concurrence of either of them would result into a stalemate. Thus, the concurrency in legislative fields is not just a design but instead forms even the functional bedrock of the GST framework. In pragmatic realm, GST is, thus, and rightly, touted as a ‘dual levy’, because there are two taxes on each supply, one each levied by the Union and the States.
Even the Supreme Court, which in Skill Lotto had the occasion to delineate the provisions of the GST laws, acknowledged that “Article 246-A is a special provision” which “has to be liberally construed”, thereby empowering enactment of taxes which were impermissible prior to the Amendment.
Interfacing GST with doctrine of repugnancy: Legal position and consequences
The scheme of amended COI, in particular Article 246-A, reveals that qua enactment of GST laws, both Parliament and the States derive their legislative competence from outside the three Lists of the Seventh Schedule. In fact, this is one of the rare instances, such as Article 194(3) of the COI, wherein the State Legislature is empowered to enact upon a legislative field outside the Seventh Schedule. Therefore, the repugnancy doctrine ceases to apply in the context of GST. This is because, in view of Hoechst Pharmaceuticals, the width of the doctrine is circumscribed by Article 254 to a situation of conflict of laws relatable to List III of the Seventh Schedule. Any doubt on this proposition is obviated by the non obstante clause employed by Article 246-A which specifically overrides Article 254. Thus, the very source of doctrine of repugnancy in the constitutional scheme is denuded of its strength in the context of GST. Put pithily, the doctrine of repugnancy does not apply to GST laws.
A question naturally arises, is the absence of repugnancy critically ominous to the GST framework? The answer is an emphatic affirmative. The non-application of the doctrine reveals a conspicuous absence of a constitutional mechanism to check a deviation i.e. avert a scenario of conflicting Central and State GST laws. This is because of the following aspects of the constitutional scheme;
Ø The function of GST Council is ‘recommendatory’. No matter the extent of its persuasive bearing, GST Council cannot inhibit the legislative prerogative vis-à-vis enactment of GST laws.
Ø Both Parliament and State Legislatures, in the wake of Article 246-A, are repositories of a sui generis empowerment to enact GST laws. Unlike other subjects, there is no grid-lock in the field of GST and thus neither legislative institution depends upon the other for inspiration or checks on legislative competence.
Ø Article 246-A specifically overrides Article 248 and Article 254, thereby ousting the supremacy of the Parliament’s legislative arena and laws. Thus, on the subject of GST, a law enacted by the State Legislature cannot be constitutionally challenged for any number of departures from the Parliamentary legislation.
Both in theory and practice, therefore, a State GST law cannot be challenged as unconstitutional on the ground of legislative competence, either with reference to the legislative subjects of the Parliament or otherwise. This is not just a startling proposition but also casts an onerous burden upon the federal structure propagated by the COI. The Amendment provides for a course-correction mechanism by empowering the GST Council to “establish a mechanism to adjudicate any dispute … between the Government of India and one or more States … arising out of the recommendations of the Council or implementation thereof.” However, upon a plain reading, this authority of the GST Council does not appear to extend to the legislative function and the empowerment appears to be confined towards addressing disputes between the executive Governments. This is because this scheme under the Amendment appears to be inspired by the provision relating to the original jurisdiction of the Supreme Court whereupon a view exists that the jurisdiction does not accommodate constitutional challenges to legislative enactments. In other words, there appears to be clearly identified constitutional forum to check a deviant State GST law.
Irrespective of the inability of the GST Council or other constitutional institutions from challenging a deviant State GST law, it nonetheless merits examination whether a citizen can successfully challenge validity of such deviant law. Given that the Supreme Court, specifically in the context of a State law, “has repeatedly stated that legislative enactment can be struck down by court only on two grounds, namely (i) that the appropriate legislature does not have the competence to make the law, and (ii) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions”, it is manifest that one can rule out the State GST law being quashed given the undoubted legislative competence of the State Legislature.
Examined from another angle, the doctrine of repugnancy is one of the facets which dilutes the unfettered legislative sovereignty of the States and thus avoids a situation wherein conflicting laws of the Parliament and State operate. The principal consequence of the absence of such a mechanism to correct deviations in GST context implies that there may be no constitutional avenue to seek redress against a State GST law which violates (with impunity or otherwise) the recommendations of the GST Council and is directly at variance with the Parliamentary GST law.
The constitutional scheme relating to GST appears to have fundamentally altered the legislative plane by repositioning States as co-equal partners in the Indian federation unlike the pre-Amendment scheme wherein the Union’s law carried a dominant override. A review of the parliamentary debates leading to the Amendment reveals that the amended design is intentional, the underlying objective being to effectuate co-operative federalism. Four years of GST experience has revealed that so far the Union and the States have joined ranks to effectuate this ideal into practice and have seamlessly ensured mirror legislative design basis the recommendations of the GST Council. Given that one cannot rule out a deviation for all times to come, it will be intriguing to observe how constitutional experts evolve to challenge the constitutional validity of a deviant State GST legislation. For now, such a challenge appears to be a herculean task in the wake of doctrine of repugnancy being specifically eclipsed in the post-Amendment scheme of the COI.
 Article 254(1), COI, states “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, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.” The Constitution (One Hundred and First Amendment) Act, 2016.  Article 246-A, COI.  Article 248, COI.  Union of India v. H.S. Dhillon (1971) 2 SCC 779.  Article 279-A, COI.  Skill Lotto Solutions Pvt. Ltd. v. Union of India [Writ Petition (Civil) No. 961 of 2018, decision dated December 3, 2020]: 2020 SCC Online SC 990.  Article 194(3), COI.  Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45.  Article 131, COI.  State of Madhya Pradesh v. Union of India (2011) 12 SCC 268. It is relevant to highlight that this decision was disagreed in State of Jharkhand v. State of Bihar (2015) 2 SCC 431 and reference was made to a larger bench for a categorical enunciation of the legal position. As on date, the reference is pending consideration.  State of Madhya Pradesh v. Rakesh Kohli (2012) 6 SCC 312.
Cite this Article - Jain Tarun, ‘Doctrine of Repugnancy: A Stillborn in GST Context?' (Tax Terminal Blog, 14 July 2021) <https://www.taxterminal.in/post/doctrine-of-repugnancy-a-stillborn-in-gst-context>
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