Meghna Mishra, Nakul Sachdeva and Ankit Rajgarhia
The Government of NCT of Delhi had in the year 2015 introduced a Bill to amend the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 [hereinafter “Act”].
The amendments were proposed to be made to Sections 17 and 18 of the Act, with the stated object being “to strengthen the penal provisions of the Act to ensure compliance and implementation of the Act as well as the recommendations of the Majithia Wage Board. The proposed amendment seeks to provide effective deterrence for violators of the act.”
The Delhi government, by way of the said amendment, had sought to insert the following section:
“17 (1A): Without adversely affecting any other punishment, which can be imposed on the employer, the authority, may direct the employer to pay compensation of not more than 5 times of the amount due to the newspaper employee.”
Further, it proposed to substitute Section 18 of the Act with the following:
“Section 18: If any employer contravenes any of the provisions of this act or any rule or order made there under, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or both.
Provided that in case amount due to an employee is not paid, the employer shall be punishable with imprisonment which may extend to six months or fine which may extend to two hundred rupees per day or both till the time offence is continued.
(1A) Whoever, having been convicted of any offence under this Act, is again convicted of an offence involving the contravention of the same provision, shall be punishable with imprisonment which may extend to one year and with fine which may extend to ten thousand rupees.”
Article 246 of the Constitution of India splits the legislative power between the Parliament and State Legislature by reference to the Lists in the Seventh Schedule. More specifically, Article 246(2) bestows competence upon a Legislature of a State to make any laws with respect to any matter enumerated in List III of the Seventh Schedule.
Article 254 addresses the issue of possible conflicts between laws enacted by the Parliament and the Legislature of a State on a matter enumerated in List III of the Seventh Schedule and the effect of such conflicts.
In terms of Article 254, a law enacted by Parliament would prevail where the law enacted by the Legislature of the State is repugnant to the former. The question of repugnancy arises in connection with subjects enumerated in List III of the Seventh Schedule as regards matters which both the Union and State Legislature have concurrent legislative competence and powers over.
Article 254 provides that in case of repugnancy, the law enacted by the Parliament relating to the subject, irrespective of whether the law enacted by the Parliament is prior or later in time, shall prevail and the law enacted by the Legislature of the State shall be void to the extent of such repugnancy.
An exception to the above is if the law enacted by the Legislature of the State is assented to by the President, then the law enacted by the law enacted by the Legislature of the State will hold the field in that State, whereas the law enacted by the Parliament will hold field in the rest of India, until Parliament decides to enact another law in pursuance of its powers under the Proviso to Article 254(2).
The procedure for a law enacted by the Legislature of a State to receive the assent of the President is that upon passing of the Bill in the Legislature of a State, the Bill is sent to the Governor, who may assent to it as per Article 200 of the Constitution, or reserve it for the consideration of the President under Article 201 of the Constitution.
The Supreme Court of India in Deep Chand v. State of Uttar Pradesh para 28 affirming the law laid down in Zaverbhai Amaidas v State of Bombay, held that repugnancy between two statutes may be ascertained on the basis of the following three principles:
- there is a direct conflict between the two provisions;
- whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature;
- whether the law made by Parliament and the law made by the State Legislature occupy the same field.
More recently, the Supreme Court of India in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v State of Tamil Nadu and Ors. and in M. Karunanidhi v Union of India, noted that the test of two legislations containing contradictory provisions is not the only criterion of repugnance. Repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field. Accordingly, what has to be seen is whether in enacting legislation, Parliament has evinced an intention to cover the whole field.
Over the years, the core of the law on repugnancy has been consistent as can be seen from putting the observations/rulings in the aforementioned cases as well as that in the case of Vijay Kumar Sharma and Ors. v State of Karnataka and Ors, para 88, in a chronological and contextual order.
In the particular facts and circumstances of the State Amendment to the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, the following cases were the probable reason why the assent of the President was required:
- In Barai v Henry Ah Hoe and Anr., (1983) 1 SCC 177 (3-Judge Bench) it was held by the Supreme Court that, where both the Union Act and the State Act prescribe punishment for the same offence but punishment differs, in degree or kind or in the procedure prescribed, in all such cases, the law made by the Parliament shall prevail over the state law under Article 254.
- In P.A.I.T. Permit Owners Association and Anr. v State of Madhya Pradesh, (2004) 1 SCC 320 it was held by the Supreme Court that when the offence arising upon the Union law and the State law respectively are substantively identical, but additional penalties are imposed for the contravention by the provision of the State law, it would be inconsistent with the law of the Union and, therefore invalid.
The Act was enacted by Parliament under Entries 22 and 23 of List III of the Seventh Schedule of the Constitution of India. However, the said Entries being in List III, are capable of being used to enact laws by both the Union and the State Legislatures. The power to amend a law enacted under an entry is a concomitant of the power to enact a new law.
Since the Government of NCT of Delhi could hypothetically enact a new law relying on Entries 22 and 23 of List III of the Seventh Schedule of the Constitution of India, the Government of NCT of Delhi can amend an existing legislation enacted under the aforesaid Entries. That said, in the present factual scenario, the proposed amendment of the Act by the Government of NCT of Delhi would have been directly hit by the provisions of Article 254(1) of the Constitution of India.
The amendment proposed to provide enhanced punishment for the same offence, which while being in the legislative competence of the Legislature of the Government of NCT of Delhi, would render such amendment repugnant to the Act as it stood then, without the assent of the President. The aforesaid scenario would fall afoul of the Supreme Court’s judgment in T Barai.
In view of the foregoing, the proposed amendment would have been repugnant to the Act as it stood, and as such would have been void to the extent of its repugnancy with the Act. However, the application and operation of Article 254(1) would now not come into play as the Amendment Bill upon being passed in the Legislature of the NCT of Delhi, was reserved for consideration of the President and has received his assent as per Article 254(2).
The authors are lawyers from Karanjawala & Company Advocates. Meghna Mishra is a Partner, Nakul Sachdeva is a Principal Associate, and Ankit Rajgarhia is a Senior Associate at the firm.
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