SC: Parliament can make law declaring any stretch/section to be a national highway

The Hon’ble Supreme Court, on 08.12.2020, in the matter of The Project Director, Project Implementation Unit v. P.V. Krishnamoorthy & Ors. observed that there is nothing in the Constitution which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway.

Questions before the Hon’ble Supreme Court:

About the legislative competence of the Parliament to enact a law for declaring open green­field lands as national highway.

Is legislative power of the Union limited to making law in exercise of powers ascribable to Entry 23 of List I in respect of an existing highway to be declared as a national highway?

Whether the National Highways Act, 1956 is a law ascribable to Entry 23 of the Union List and it provides for construction of a national highway on a non-­existing road/highway traversing through green­field lands ?

The Hon’ble Supreme Court observed that:

If the National Highways Act, 1956 & National Highway Authority of India Act, 1988 made by the Parliament is ascribable to Entry 23 of List I of the Seventh Schedule, the Parliament has the exclusive power to make law on that subject and for matters connected therewith. The fact that Entry 13 of List II bestows exclusive power upon the legislature of any State concerning subject “roads”, cannot be the basis to give restricted meaning to Entry 23 in List I, dealing with all matters concerning “national highways”.  (Para 27)

If the law made by the Parliament is in respect of subject falling under Union List, then the incidental encroachment by the law under the State list, per se, would not render it invalid. (Para 27)

The doctrine of pith and substance is well ­established in India. The doctrine is invoked upon ascertaining the true character of the legislation. (Para 27)

It may be useful to advert to Article 248 of the Constitution, bestowing legislative powers on the Parliament to make a law with respect to any matter not enumerated in the Concurrent List or the State List. Concededly, the expression “highways” as such, is not mentioned either in the State List or the Concurrent list. While making law on the subject falling under the Union List in terms of Entry 97 thereof, it is open to the Parliament to make law on any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists. (Para 27)

Indisputably, the entries in the legislative lists are not sources of legislative powers, but are merely topics or fields in respect of which concerned legislative body is free to make a law. The entries must receive a liberal and expansive construction, reckoning the wide spirit thereof and not in a narrow pedantic sense. Entry 23 in List I refers generally to “highways” declared or to be declared by the Parliament as national highways and all matters connected therewith. This empowers the Parliament to declare any stretch/section across any State as a highway for being designated as a national highway. There is no indication in the Constitution to limit the exercise of that power of the Parliament only in respect of an existing “highway”. Further, whenever and wherever the question of legislative competence is raised, the test is whether the law enacted, examined as a whole, is substantially with respect to the particular topic of legislation falling under the concerned list. If the law made by the Parliament or the legislature of any State has a substantial and not merely a remote connection with the Entry under which it is made, there is nothing to preclude the concerned legislature to make law on all matters concerning the topic covered under the Union List or the State List, as the case may be. (Para 28)

Moreover, power of law­making itself would be rendered otiose if it does not provide for suitable coverage of matters that are incidental as well as intrinsically connected to the expressly granted power. Further, Chapter II of Part XI of the Constitution dealing with administrative relations between the Union and the States makes it amply clear that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which applied in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. Article 257 expounds about the control of the Union over States in certain cases. Clause (2) predicates that the executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national and military importance. The proviso makes it further clear that the power of the Parliament is not restricted in any way to the matters specified therein. (Para 28)

There is nothing in the Constitution which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway. Whereas, the provisions in the Constitution unambiguously indicate that the legislative as well as executive power regarding all matters concerning and connected with a highway to be designated as a national highway, vests in the Parliament and the laws to be made by it in that regard. For the same reason, the complete executive power also vests within the Union. (Para 29)

There is nothing in the National Highways Act, 1956 to constrict the power of the Central Government to notify any stretch/section (not being an existing road/highway) within any State, to be a national highway. (Para 31)

The Central Government is free to construct/build a new national highway keeping in mind the obligations it has to discharge under Part IV of the Constitution for securing a social order and promotion of welfare of the people in the concerned region, to provide them adequate means of livelihood, distribute material resources as best to sub-serve the common good, create new opportunities, so as to empower the people of that area including provisioning new economic opportunities in the area through which the national highway would pass and the country’s economy as a whole. The availability of a highway in any part of the State paves way for sustainable development and for overall enhancement of human well­being including to facilitate the habitants thereat to enjoy a decent quality of life, creation of assets (due to natural increase in market value of their properties) and to fulfil their aspirations of good life by provisioning access to newer and present­ day opportunities. (Para 32)

Section 3A of the National Highways Act, 1956 inserted by way of an amendment in 1997, empowers the Central Government to declare its intention to acquire “any land”. It need not be linked to an existing road or State highway. For, the expression “any land” ought to include open green­fields for construction or building of a national highway, consequent to declaration under Section 2(2) of the same Act in that regard. The central condition for exercise of such power by the Central Government is that it should be satisfied that such land is required for the public purpose of building a national highway or part thereof. (Para 34)

Section 3B of the National Highways Act, 1956 empowers the person authorised by the Central Government to enter upon the notified lands for the limited purpose of survey etc., to ascertain its suitability for acquisition for the stated purpose or otherwise. The final declaration of acquisition is then issued under Section 3D of the Act after providing opportunity to all persons interested in the notified land to submit their objections and participate in a public hearing under Section 3C. (Para 34)

Article 257 of the Constitution deals with administrative relations between the States and the Union. In the first place, having said that the Parliament has exclusive legislative competence to make a law in respect of national highways and all matters connected therewith, which includes declaring any stretch/section within the State (not being existing roads/highways) as a national highway, it must follow that the Central Government alone has the executive powers to construct/build a new national highway in any State and to issue directions to the Government of any State for carrying out the purposes of the National Highways Act, 1956. (Para 37)

Section 2(2) of the National Highways Act, 1956 empowers the Central Government to notify any other highway (not forming part of the Schedule appended to the Act) as a national highway and upon such publication of notification in the official gazette, the said highway is deemed to be specified in the Schedule as a national highway. This power is not constricted or circumscribed by any other inhibition, such as to declare only an existing road or highway within the State as a national highway. The requirement of a national highway within the country as a whole and State­wise, in particular, is to alleviate evolving socio­economic dynamics, for which such a wide power has been bestowed upon the Central Government. The Central Government is obliged to do so to facilitate it to discharge its obligations under Part IV of the Constitution. There is nothing in the Constitution of India or for that matter, 1956 Act to limit that power of the Central Government only in respect of existing roads/highways within the State. To say so would be counter­productive and would entail in a piquant situation that the Central Government cannot effectively discharge its obligations under Part IV of the Constitution unto the remote inaccessible parts of the country until the concerned State Government constructs a road/highway within the State. On the other hand, if the concerned State, due to reasons beyond its control or otherwise, is unable/flounder to provision a road/highway in a given segment of the State; despite being imperative to do so to assuage the perennial difficulties faced by the locals in that belt due to lack of access, the Central Government may come forward and step in to construct a national highway and connect the area with the other parts of the country. By its very nomenclature, a national highway is to link the entire country and provide access to all in every remote corner of the country for interaction and to promote commerce and trade, employment and education including health related services. This approach would enhance and further the federal structure. This is because, the existence of a national highway in the neighbourhood paves way for the fulfilment of aspirations of the locals and their empowerment. It not only brings with it opportunity to travel across, but also propels the economy of that region and the country as a whole. It gives impetus to myriads of social, commerce and more importantly, access to other activities/facilities essential for the health, education and general well­being of the locals, in particular. (Para 38)

Copy of judgment: Judgement 08-Dec-2020

-Adv. Tushar Kaushik

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