Application Of Doctrine Of Repugnancy On Delegated Legislation

On this fulcrum, the recent decision of the Supreme Court - Gambhirdan K Gadhvi v. State of Gujarat[2] (hereinafter ‘Gambhirdan Case’), which was followed by the subsequent decisions of State of West Bengal v. Anindya Sundar Das[3] (hereinafter ‘Anindya Case’), Prof Sreejith PS v. Dr Rajasree MS[4] (hereinafter ‘Prof Sreejith Case’) and Prof Narendra Singh Bhandariv. Ravindra Jagrun[5] (hereinafter ‘Prof Narendra Case’) needs to be analyzed.

Supreme Court in Gambhirdan Case was called upon decide the validity of the appointment of Vice-Chancellor (VC) of Sardar Patel University established under Sardar Patel University Act 1955 (hereinafter ‘1955 Act’). Section 10 of the 1955 Act left the eligibility criteria formulation to the Selection Committee’s wisdom. University Grants Commission (UGC), in the exercise of the power conferred by Section 26 of the UGC Act 1956 (hereinafter ‘1956 Act’), came up with the UGC Regulations. Regulation 7.3.0 provided for the eligibility criteria for appointment of VC should be a minimum of ten years of experience as Professor in a university system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization. The question of inconsistency between the 1955 Act and the Regulations enacted under the 1956 Act arose relating to the eligibility criteria for the post of VC.

The Supreme Court, while quashing the appointment, held that the 1955 Act’s provisions are contrary to the Regulations. The Court arrived at this conclusion by embracing; first, the regulations have statutory force (para 49); second, the regulations are part of the 1956 Act (para 50). It is pertinent to note that while adopting the second line of reasoning, the Court took the help of Section 28 of the 1956 Act. The said Section requires the rules and regulations framed by the UGC to be laid down in each House of Parliament. The Court observes that “Even as per the UGC Act, every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act.” Once the Court arrives at the conclusion that the effect of Section 28 of the 1956 Act makes the regulations a part of the 1956 Act, it is needless to mention that the conflict of the State Act (1955 Act) with the Central Act (1956 Act), the application of Article 254 makes way for Central Act. In this regard, the Court observes that an appointment made contrary to the regulations warrants interference by the Court as the central legislation shall prevail by applying the rule of repugnancy. Thus, the Court made the State enacted law subordinate to the delegated legislation/subordinate legislation framed under the Central law. Although the Court did not refer to any precedent to reach the aforesaid conclusion, the decision of Kalyani Mathivanan v. KV Jevraj[6] (hereinafter ‘Jevraj Case’) and Annamalai University v. Secretary to Govt., Information and Tourism Dept.[7] (hereinafter ‘Annamalai University Case’) were referred by the petitioner’s counsel. The Court, in both cases, held that the State law, to the extent of inconsistency with the Central law, including subordinate legislation made by the Central legislation, shall be repugnant.

Subordinate Legislation Prevailing Over State Law:

The approach of the Court to read the subordinate legislation as a part of Central law rests on two-fold premises. Firstly, the Central subordinate rule is a part of the Central Act and facilitates the enforcement of the Central Act. Secondly, the laying down of subordinate legislation framed under Central law before the House of Parliament validates the central subordinate legislation. The subordinate legislation is the constituent element of the legislative power, and in exercising such legislative power, the legislature can delegate the ancillary powers.[8] The Court appreciates the ‘practical necessity’, ‘flexibility’, ‘expedition’ and ‘pragmatic needs’ for empowering the subordinate legislation.[9] Consequently, Parliament has delegated the power to make regulations consistent with the Act to UGC under Section 26 of the 1956 Act. Therefore, this delegation of power facilitates achieving the legislature’s intention in enacting the 1956 Act.

Further, the ‘consistency with the Act’ is maintained by Section 28, which mandates laying down regulations framed before each House of Parliament. The Section further enables both Houses to modify and negate the regulations. To maintain control over the subordinate legislation, the Procedure and Conduct of Business Rules of Lok Sabha[10] and Rajya Sabha[11] envisages the Committee on Subordinate Legislation. The Committee is tasked to scrutinize the regulations and rules relating to the adherent to the parent Act. Consequently, the executive-made subordinate legislation (UGC Regulations in this case) gets stamp approval from the House of Parliament. On these counts, the subordinate legislation enacted in the exercise of the power conferred by the Central Act forms part of the same.

The decision of the Gambhirdan Case has been relied upon or referred to by the Supreme Court in Anindya Case, Prof Sreejith Case and Prof Narendra Case and also by Kerala High Court in Sabu Thomas v. Chancellor, Mahatma Gandhi University.[12]

Article 254 strikes against the conflict between the State law and the Central law to the extent of repugnancy. It is uncalled for to deny the subordinate legislation from being part of the parent Act (Central Act, i.e., 1956 Act in this case) once it fulfils both the criteria of being within the constitutionally defined permissible limits as well as following the procedural requirements (Section 28, i.e., laying down before both the Houses) mentioned in the parent Act. Therefore, the reasoning adopted by the Supreme Court in the Gambhirdan Case is appreciated and fits into the constitutional scheme.

The author is a research scholar at Indian Institute of Technology (IIT) Kharagpur. Views are personal.

[1] Tika Ramji v. State of Uttar Pradesh, (1956) SCR 393.