REPUGANCY UNDER ARTICLE 254 & TEST OF VALIDATING LAW

 

Shubham Budhiraja[1]

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[1] Company Secretary, LLB Final Year,DU & Bcom (H)

The land acquisition falls in concurrent list and parliament in year 2013 has introduced a new act which provides for rehabilitation, compensation and procedure on land acquisition of property. The State of T.N has made 3 different state laws w.r.t. land acquisition which was struck off by the High Court. Thereafter, state of TN in year 2019 enacted the same law but with president assent under Article 254 to avoid the repugnancy with 2013 act under Article 254. The appeal filed before apex court w.r.t. repugnancy of 2019 state law with 2013 central law & test of validating the struck off law. The Supreme Court observed as:

VALIDATING A LAW WITH RETROSPECTIVE EFFECT

Case Law	Relevant Remarks
National  Agricultural  Cooperative  Marketing  Federation  of India Ltd. & Anr. vs. Union of India & Ors, (2003) 5 SCC 23	The legislative power either to introduce enactments for the first time or to amend the enacted law with retrospective effect is not only subject to the question of competence but is also subject to several judicially recognized limitations with some of which we are at present concerned. The first is the requirement that the words used must expressly provide or clearly imply retrospective operation. The second is that the retrospectively must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional. The third is apposite where the legislation is introduced to overcome a judicial decision. Here the power cannot be used to subvert the decision without removing the statutory basis of the decision A validating clause coupled with a substantive statutory change is therefore only one of the methods to leave actions unsustainable under the un-amended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectively is otherwise apparent
Ujagar Prints & Ors. (II) vs. Union of India & Ors, 1989) 3 SCC 488	A competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating in factors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective Such legislative expedience of validation of laws is of particular significance and utility and is quite often applied, in taxing statutes. It is necessary that the legislature should be able to cure defects in statutes. No individual can acquire a vested right from a defect in a statute and seek a windfall from the legislature's mistakes.
Indian Aluminium Co. & Ors. vs. State of Kerala & Ors, (1996) 7 SCC 637	In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. Legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same
State of Tamil Nadu vs. State of Kerala & Anr , (2014) 12 SCC 696	If the legislature has the power over the Subject matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject matter and whether in making the validation law it removes the defect which the courts had found in the existing law

 

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

 

(ii)                There must be a clear validating clause coupled with 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.

 

 

(v)                It is permissible for the legislature to make a decision of the Court ineffective by removing the material basis of the decision in the manner that the Court would not have arrived at the same conclusion had the corrected/modified position prevailed at the time of rendering the said earlier decision.

 

REPUGANCY REMOVAL ON PRESIDENT ASSENT UNDER ARTICLE 254(2)

 

(i)                  A law made by the legislature of the State

(ii)                 Such law is made on a subject falling in the concurrent list

(iii)               Such law is repugnant to the provisions of an earlier/existing law made by the Parliament (the 2013 Act in this case); and

(iv)              The State law is reserved for the assent of the President and has received the same.

 

Upon fulfillment of the conditions, such State law would prevail in the State despite there being a law made by the Parliament on the same subject and despite being repugnant thereto. The most peculiar feature of Article 254(2) is the recognition of existence of repugnancy between the law made by the Parliament and State law and rendering that repugnancy inconsequential upon procurement of Presidential assent. The whole exercise of pointing out any repugnancy after a validating Act has obtained the assent of the President is otiose.

JUDICIAL REVIEW OF PRESIDENT ASSENT UNDER ARTICLE 254

Case law

Relevant Remarks

KaiserIHind Pvt. Ltd. & Anr. vs. National Textile Corpn. (Maharashtra North) Ltd. & Ors, (2002) 8 SCC 182

The mere forwarding of a copy of the Bill  to president may obviate, if at all, only the need to refer to each one of the provisions therein in detail in the requisition sent or the letter forwarding it, but not obliterate the necessity to point out specifically the particular Central law or provisions with reference to which, the predominance is claimed or purported to be claimed. The deliberate use of the word “consideration” in clause (2) of Article 254, in my view, not only connotes that there should be an active application of mind, but also postulates a deliberate and careful thought process before taking a decision to accord or not to accord the assent sought for. If the object of referring the State law for consideration is to have the repugnancy resolved by securing predominance to the State law, the President has to necessarily consider the nature and extent of repugnancy, the feasibility, practicalities and desirability’s involved therein, though may not be obliged to write a judgment in the same manner, the courts of law do, before arriving at a conclusion to grant or refuse to grant or even grant partially, if the repugnancy is with reference to more than one law in force made by Parliament. Protection cannot be claimed for the State law, when questioned before courts, taking cover under the assent, merely asserting that it was in general form, irrespective of the actual fact whether the State claimed for such protection against a specific law or the attention of the President was invited to at least an apprehended repugnancy vis-à-vis the particular Central law.

REFERENTIAL LEGISLATION

Case Law	Relevant Remarks
Girnar Traders (3) vs. State of Maharashtra & Ors, (2011) 3 SCC 1	With the development of law, the legislature has adopted the common practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law i.e. by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law.
Ujagar Prints & Ors. (II) vs. Union of India & Ors, 1989) 3 SCC 488	Referential legislation is of two types. One is where an earlier Act or some of its provisions are incorporated by reference into a later Act. In this event, the provisions of the earlier Act or those so incorporated, as they stand in the earlier Act at the time of incorporation, will be read into the later Act. Subsequent changes in the earlier Act or the incorporated provisions will have to be ignored because, for all practical purposes, the existing provisions of the earlier Act have been reenacted by such reference into the later one, rendering irrelevant what happens to the earlier statute thereafter
Krishna Chandra Gangopadhyaya & Ors. vs. Union of India & Ors, (1975) 2 SCC 302	There is no constitutional inhibition to legislation by incorporation and found it in accordance with the power accorded by the constitutional law to instrumentalities clothed with plenary authorities.

 

(I)                 The plenary power of legislature is not limited to the substance of legislation in context of the Seventh Schedule, but also extends to the determination of the form of legislation. 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.

 

(II)               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.