In Constitutionalising Repugnancy under Article 254(2), the Emphasis should be on Substance over Form | G. Mohan Rao v. State of T.N.: A case comment

“Courts of equity make a distinction in all cases between that which is matter of substance and that which is matter of form; and if it finds that by insisting on the form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat the substance.”

 — [Lord Romilly MR in Parkin v. Thorold[1]]

Whilst the captioned quote is a well-known maxim under the personal law of equity, the same principle was upheld by the Supreme Court in the context of the plenary powers of a State Legislature to retrospectively validate laws for repugnancy under Article 254(2)[2] of the Constitution.

In its judgment in G. Mohan Rao v. State of T.N.[3], the 2-Judge Bench of the Supreme Court comprising of Khanwilkar and Dinesh Maheshwari, JJ. clarified the law relating to retrospective validation of laws that have been judicially pronounced to be invalid for repugnancy.

This case concerned issues of repugnancy arising between the “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” (the 2013 Act)[4] on the one hand, and three Tamil Nadu land acquisition statutes,  (i) the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act,1978 (Act of 1978)[5], (ii) the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Act of 1997), and (iii) the Tamil Nadu Highways Act, 2001 (Act of 2001)[6], on the other.

After the 2013 Act came into force, the State of Tamil Nadu wished to preserve its own State laws which allowed for more speedy acquisition proceedings and so sought to exclude them from the applicability of the Central law whilst maintaining the main reforms introduced by the Central law, namely, on enhanced compensation and resettlement and rehabilitation. It is noteworthy that several Central laws are excluded from the scope of the 2013 Act by being placed under Schedule 4[7] to the said Act. This Schedule includes the National Highways Act, 1956[8], which is pari materia with the 2001 Tamil Nadu statute on highways acquisitions.

To this end, in 2014, the State Legislature enacted a law inserting Section 105-A[9] into the 2013 Act insofar as it applies to the State of Tamil Nadu to continue acquiring lands under the three State laws by excluding the applicability of the 2013 Act. However, at the same time, maintaining the provisions on compensation and rehabilitation and resettlement under the 2013 Act. Presidential assent was obtained for Section 105-A under Article 254(2) of the Constitution.

This was challenged before the High Court of Madras. The High Court in its judgment dated 3-7-2019[10] struck down and declared all three State laws to be void for repugnancy and set aside all land acquisitions thereunder post coming into effect of the 2013 Act. The High Court held that the law enacting Section 105-A, which sought to revive the three State laws, was ineffective. It found that as the State laws had become void on the date the 2013 Act received Presidential assent (i.e. on 27-9-2013) they could not be “resuscitated” but had to be re-enacted as new individual Bills. The State appealed this judgment before the Supreme Court in a special leave petition which remains pending.

Meanwhile, given the dire effects of the judgment of the High Court on pending land acquisition proceedings and consequently on its exchequer, the State Legislature introduced and enacted “A Bill to revive the operation of the Tamil Nadu Acquisition for Harijan Welfare Schemes Act, 1978, the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and the Tamil Nadu Highways Act, 2001” (the 2019 Act). The said Bill received Presidential assent under Article 254(2) on 2-12-2019. The Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 was challenged in writ proceedings before the Supreme Court by G. Mohan Rao and others (being owners of agricultural and wetlands sought to be acquired for highways development) on the grounds, inter alia, that the 2019 Act amounts to subversion of the judgment of the High Court.

In its judgment penned by A.M. Khanwilkar, J. the Supreme Court dismissed the writ petition, held that retrospective validation of laws where repugnancy arises between State and Central subjects on the Concurrent List is a common phenomenon and that in judging the constitutionality of these validating laws, courts ought not to place form over substance.

Article 254(2) of the Constitution states that wherever a State law is repugnant with an earlier Central law regarding one of the matters enumerated in the Concurrent List then the State law may nevertheless prevail in the State if it has received Presidential assent. Thus, Article 254(2) is a means to cure any repugnancy that may otherwise render the State law unconstitutional. The provision is as follows:

(2) Where a law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

The proviso to Article 254(2) clarifies that the above power is subject to the overriding power of Parliament to enact a law amending or repealing the State law that has received Presidential assent under this provision.

In G. Mohan Rao[11], A.M. Khanwilkar, J. correctly limited himself to the issue of repugnancy and not the vires of the 2019 Act vis-à-vis Part III of the Constitution and held that the High Court applied the law under Article 254(2) in an erroneous manner to the facts of the case. In particular, the High Court erred in insisting that all three State laws be re-enacted afresh. According to the Supreme Court, the High Court had placed a hypertechnical divide between re-enactment and revival or validation.

Validating statute need not be a re-enactment of the older repugnant law

 In its findings, the Supreme Court reiterated the well-established legal position that the State Legislature can retrospectively validate laws in response to judicial invalidation of such laws. Running through past authorities such as National Agricultural Coop. Mktg. Federation of India Ltd. v. Union of India[12], Ujagar Prints (2) v. Union of India[13] and Indian Aluminium Co. v. State of Kerala[14] , the Supreme Court held that there is a consensus that legislative validation of laws does not amount to judicial subversion if the following conditions are met:

(i) The legislature must be having power over the subject-matter as also competence to make a validating law.

(ii) There must be an explicit validating clause coupled with a substantive change in the earlier position.

(iii) The retrospective operation must be specified clearly.

(iv) There can be no express or declaratory overruling of the judgment of the Court.

The Supreme Court found that all four requirements were met by the 2019 Act. It held that the 2019 Act had a clear determinative principle demonstrated by:

(a) its Statement of Objects and Reasons which specifically stated that it was for the revival of the  State Acts concerned declared to be repugnant by the High Court and to amend the same and for validating the actions already taken thereunder;

(b) that the Act is divided into three parts and each part is dedicated explicitly to the State enactment concerned; and

(c) that it expressly revived the three State acts with effect from 26-9-2013 (one day before the Presidential assent was given to the 2013 Act) along with all orders, notifications, etc. and saved all land acquisitions thereunder.

 A.M. Khanwilkar, J. whilst noting that the State Legislature neither individually placed the State laws in the form of new Bills before the House and nor did it separately amend the three State Acts, held that the 2019 Act was nevertheless a practical piece of validating law and did not subvert the High Court’s judgment for the reasons mentioned above.

Furthermore, referring to the doctrine of referential legislation (wherein a law is incorporated into and forms part of another through express reference), and relying on its judgment in Ujagar Prints (2)[15] where it was held that legislation by reference is practically tantamount to re-enactment — the Supreme Court held that the 2019 Act effectively incorporated the three State laws by reference and that no re-enactment was required.

The Supreme Court put an end to needless confusion caused by the judgment of a 3-Judge Bench of the Delhi High Court in P.L. Mehra. v. D.R. Khanna[16], which held that revalidation would not be permissible as a constitutionally invalid statute was a dead letter and could therefore technically not be “revived” but had to be re-enacted in the strict sense of that term. The Supreme Court found that P.L. Mehra[17] was concerned with nullity under Article 13[18] of the Constitution  (i.e. voidness due to violation of any of the provisions of Part III of the Constitution) and not with repugnancy. Ergo, repugnancy can be cured through a validating amendment or a truncated statute such as the 2019 Act and did not have to be re-enacted.

Sufficiency of Presidential assent under Article 254(2)

 The Supreme Court also correctly emphasised substance over form when examining the nature of the Presidential assent given to the 2019 Act under Article 254(2) of the Constitution. According to A.M. Khanwilkar, J. determinative in this respect is the transparency of communication between State and Centre when seeking Presidential assent. In the present case, in its letter seeking Presidential assent, the State had briefly narrated the entire factual position including about the failed attempt to revive the State enactments via Section 105-A and expressly outlined that repugnancies may exist between the 2013 Act and the 2019 Act. The Supreme Court reiterated the law set out in its earlier judgment in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd.[19]  in which it upheld the legal proposition that the President’s assent is not justiciable but at the same time Article 254(2) cannot be abused to obtain a general assent. Relying on this dictum, the Supreme Court in effect held that it would not go behind or do hair-splitting at what weighed in the President’s mind when he/she assented to the Bill. So long as the specific State Bill is with the President, the specific Central Act identified and attention invited to the apprehended repugnancy.

One further finding of the Supreme Court related to the objection raised by the writ petitioner that the deemed date of commencement of the 2019 Act (being 26-9-2013) was fatal to the 2019 Act. They argued that on 26-9-2013 there was no 2013 Act in operation (which became operational only from 27-9-2013) and when the 2013 Act came into operation the next day, the State enactments would again become repugnant.  A.M. Khanwilkar, J. rejected this circuitous argument and held that there is a difference between a law being “made” and its commencement. It was held that making of a law involves a demarcated legislative procedure which culminates with the assent of the President or Governor. Applying the law set out in State of Kerala v. Mar Appraem Kuri Co. Ltd.[20], the Supreme Court found that repugnancy occurs at the point in time the law is made. The 2019 Act was therefore “made” when it received Presidential assent on 2-12-2019. The fact that it was given retrospective effect from 26-9-2013 was done in abundant caution to save past land acquisitions under the three State laws and not to compete with the laws existing in the past at that point of time (i.e. the Land Acquisition Act, 1894[21]). Thus, the Supreme Court found for the State of Tamil Nadu on all counts.

The Court’s emphasis on substance over form is evident from the following excerpt in G. Mohan Rao[22]:

 “61. … To say that a particular form of legislative activity is not permissible would require a strong basis in the Constitution, which has not been pointed out by the petitioners. The Constitution envisages a judicial review of the existence of legislative competence and use of such competence to enact something that does not violate Part III or other provisions of the Constitution. It does not envisage a review of the cosmetic characteristics of a legislation as long as the substance of such legislation has its roots in the Constitution.”

 The judgment of the Supreme Court is therefore legally correct and sound as it delineates the powers of the Court when it comes to adjudicating the constitutionality of validating laws under Article 254(2) and recognises the wide plenary powers of the State Legislature in legislating on matters in the Concurrent List. In the process, the judgment stresses that unduly formalistic fetters cannot be placed on the vast plenary powers of the State Legislature.

 A.M. Khanwilkar, J. was not convinced by the technical objections taken by the writ petitioners and rightly so. The Supreme Court recognised that, in effect, all that is practically required for validating laws where repugnancy arises is explicit statutory wording. This is of course subject to the validating law passing the test of constitutionality under Part III but, as noted above, this was not an issue before the Court in G. Mohan Rao[23].


 †† Advocate-on-Record, Supreme Court of India.

† Advocate, Supreme Court of India.

[1]   (1852) 16 Beav 59.

[2] Article 254(2)  of the Constitution.

[3] 2021 SCC OnLine SC 440.

[4] <http://www.scconline.com/DocumentLink/Y53nZ49Z>.

[5] <http://www.scconline.com/DocumentLink/wze2D86P>.

[6] <http://www.scconline.com/DocumentLink/i9oMrdWU>.

[7]  <http://www.scconline.com/DocumentLink/k4TW71zs>.

[8] http://www.scconline.com/DocumentLink/Ehv7iE72>.

[9] <http://www.scconline.com/DocumentLink/Q9Z2Fpuh>.

[10] Caritas India v. Union of India, 2019 SCC OnLine Mad 2167.

[11] 2021 SCC OnLine SC 440.

[12] (2003) 5 SCC 23.

[13] (1989) 3 SCC 488.

[14] (1996) 7 SCC 637.

[15] (1989) 3 SCC 488.

[16] 1970 SCC OnLine Del 203.

[17] 1970 SCC OnLine Del 203.

[18] Article 13 of the Constitution.

[19] (2002) 8 SCC 182.

[20] (2012) 7 SCC 106.

[21] Land Acquisition Act, 1894.

[22] 2021 SCC OnLine SC 440.

[23] 2021 SCC OnLine SC 440.

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