Supreme Court: Stating that declaration by a Court that a statute is unconstitutional obliterates that statute entirely as though it had never been passed, the Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ., added that the consequences of the declaration of unconstitutionality of a statute have to be dealt with only by the Court.
The Supreme Court held that, the Manipur Legislature was not competent to introduce a saving clause in the Repealing Act 2018.
The Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 was enacted by the legislature of Manipur to provide for appointment, salary and allowances of parliamentary Secretaries in Manipur.
The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 which had provisions similar to that of the 2012 Act was the subject matter of challenge before the Gauhati High Court. The petition was transferred to this Court.
This Court in Bimolangshu Roy v. State of Assam, (2018) 14 SCC 408, declared that the Legislature of Assam lacked the competence to enact the Assam Act, 2004.
In April 2018, the Manipur Assembly passed the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 and in the preamble of the said Act it was written that the 2012 Act was being repealed in light of the decision of this Court in Bimolangshu Roy v. State of Assam, (2018) 14 SCC 408.
The 2012 Act and the Repealing Act, 2018 were declared unconstitutional by the Manipur High Court. On being aggrieved by the said decision, the State of Manipur and the members of the Manipur Legislate Assembly who were appointed as Parliamentary Secretaries filed the appeals.
Writ Petitioners contended before the High Court that the saving clause in the Repealing Act 2018 was devious method to justify the illegal appointments made by virtue of the 2012 Act.
The High Court was of the view that, the power of a legislative body to repeal a law is co-extensive with the legislative body’s competence to enact such law. If the State Legislature lacked legislative competence to enact the 2012 Act, the State Legislature did not have the power to repeal the same by way of the Repealing Act, 2018. The State Legislature could not have provided for a saving clause in the Repealing Act, 2018 to justify acts done and rights, privileges and obligations incurred under the 2012 Act.
Analysis and Discussion
Supreme Court noted that Assam Legislature enacted the relevant statute in 2004, providing for appointment of members of the Assam Legislative Assembly as Parliamentary Secretaries.
The Assam Act, 2004 and the 2012 Act were undoubtedly in pari materia. This Court in Bimolangshu Roy v. State of Assam, (2018) 14 SCC 408 struck down the Assam Act, 2004 as unconstitutional. The appointments of Parliamentary Secretaries were discontinued by the Chief Minister of Manipur around the time the Supreme Court decision was delivered. Thereafter, the Repealing Act, 2018 was enacted and notified.
Later, the 2012 Act and the Repealing Act, 2018 were challenged before the High Court of Manipur.
Assam Legislature’s Competence
Appellants contended that the Court did appreciate the relevance of entry of 40 List II while assessing the Assam Legislature’s competence to enact the Assam Act, 2004.
Bench opined that Entry 40 which relates to the salaries and allowances of the Ministers of the State cannot be resorted to, for the purpose of justifying the legislative competence in enacting the Assam Act, 2004.
Entry 40 corresponds to Article 164 of the Constitution, and we are in complete agreement with Bimolangshu Roy (supra), wherein this Court has acknowledged and reiterated the need to be wary of the perils of interpreting entries in the lists of the Seventh Schedule as encompassing matters that have no rational connection with the subject-matter of the entry.
Hence, the Supreme Court’s decision in Bimolangshu Roy v. State of Assam, (2018) 14 SCC 408 did not require any reconsideration.
Effect of repealing a Statute
Elaborating further, the Court opined that after enactment of the Repealing Act, 2018, the 2012 Act did not survive and the High Court ought not to have considered the constitutional validity of the same. To that extent, the High Court committed an error in declaring a non-existing law as unconstitutional.
High Court committed an error in holding that the Manipur Legislature did not have the competence to enact the 2012 Act as a result of which, the Repealing Act, 2018 could not have been made.
The law passed by the legislature is good law till it is declared as unconstitutional by a competent Court or till it is repealed.
Hence, Manipur Legislature did not commit any error by repealing the 2012 Act in light of the Supreme Court decision in Bimolangshu Roy v. State of Assam, (2018) 14 SCC 408.
Validity of Saving Clause in Repealing Act, 2018
“Where a statute is adjudged to be unconstitutional, it is as if it had never been.”
While repealing a statute, the Legislature is competent to introduce a clause, saving any right, privilege, liability, penalty, act or deed duly done and any investigation, legal proceeding or remedy arising therefrom, under the repealed statute, Bench observed.
Stating that there is a distinction between the declaration of a statute as unconstitutional by a Court of law and the repeal of a statute by the Legislature, Supreme Court expressed that,
On declaration of a statute as unconstitutional, it becomes void ab initio. Saving past transactions are within the exclusive domain of the Court.
On the other hand, though the consequence of repeal is also obliteration of the statute with retrospective effect on past transactions, the Legislature is empowered to introduce a saving clause in the repealing act. [Keshavan Madhava Menon v. State of Bombay, 1951 SCR 228]
The Bench referred to the Supreme Court decision in I.C. Golak Nath v. State of Punjab, (1967) 2 SCR 762, wherein the doctrine of prospective overruling was applied, by following the American jurisprudence.
After referring to a catena of Supreme Court decisions, the Court laid down Principles deduced from the law laid down by this Court:
- A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law.
- After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes.
- In declaration of the law, the doctrine of prospective overruling can be applied by this Court to save past transactions under earlier decisions superseded or statutes held unconstitutional.
- Relief can be moulded by this Court in exercise of its power under Article 142 of the Constitution, notwithstanding the declaration of a statute as unconstitutional.
Hence, the Bench held that,
There is no question of repeal of a statute which has been declared as unconstitutional by a Court.
While concluding the matter, Court held that in the Supreme Court decision of Bimolangshu Roy v. State of Assam, (2018) 14 SCC 408, 2012 Act was not the subject matter of consideration and this Court was only concerned about the validity of the Assam Act, 2004.
“…there can be no doubt that the Legislature has the power to include a saving provision while repealing a statute.”
Expressing that the Manipur Legislature had no competence to enact the saving clause in the Repealing Act, 2018, Supreme Court asserted that by means of the saving clause in the Repealing Act, 2018, the Manipur Legislature could not have infused life into a legislation, which was recognised by the Legislature itself as unconstitutional and thereby, a nullity, prompting its repeal.
Exercising the powers under Article 142 of the Constitution of India, this Court considered it necessary to save only those acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure.
While disposing of the civil appeals, the Supreme Court held that the saving clause in the Repealing Act, 2018 will be struck down. [State of Manipur v. Surjakumar Okram, 2022 SCC OnLine SC 130, decided on 1-2-2022]
Advocates before the Court:
Senior Advocate Rajeev Dhavan for appellant,
Senior Advocate Narender Hooda for respondents