Manipur Legislature was not competent to enact saving clause in Manipur Parliamentary Secretary Repealing Act, 2018: Supreme Court

Read Judgment: The State of Manipur & Ors. V. Surjakumar Okram & Ors. 

Pankaj Bajpai

New Delhi, February 3, 2022: The Supreme Court has recently opined that by means of the saving clause in the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018, the Manipur Legislature could not have infused life into a legislation, which was recognized by the Legislature itself as unconstitutional and thereby, a nullity, prompting its repeal. 

In light of the same, the Manipur Legislature cannot be said to have the competence to enact the saving clause in the Repealing Act, 2018, added the Court. 

A Larger Bench of Justice L. Nageswara Rao, Justice B.R. Gavai and Justice B.V. Nagarathna observed that there is no question of repeal of a statute which has been declared as unconstitutional by a Court. 

The very declaration by a Court that a statute is unconstitutional obliterates the statute entirely as though it had never been passed, added the Bench.  

Going by the background of the case, 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 this Court in Bimolangshu Roy v. State of Assam & Anr , (2018) 14 SCC 408, , wherein it was declared that the Legislature of Assam lacked competence to enact the Assam Act, 2004. 

Accordingly, the Manipur Assembly passed the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018. In the meanwhile, the Appellants resigned from the post of Parliamentary Secretaries. Later, the 2012 Act and the Repealing Act, 2018 were declared as unconstitutional by the High Court.

The State of Manipur and the members of the Manipur Legislative Assembly who were appointed as Parliamentary Secretaries contended before the High Court of Manipur that the Manipur Legislature lacked competence to promulgate the 2012 Act. It was further submitted that the saving clause in the Repealing Act, 2018 was a 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. 

After considering the submissions, the Top Court noted that Entry 40 which relates to 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, and rather, the relevant entry is entry 39 which corresponds to Article 194(3) of the Constitution of India.

The Court was in complete agreement with Bimolangshu Roy’s Case (Supra), wherein this Court had 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, added the Court.

Speaking for the Bench, Justice Rao opined that the law passed by the legislature is good law till it is declared as unconstitutional by a competent Court or till it is repealed.

“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. It is beyond question that this Court in Bimolangshu Roy, while dealing with the Assam Act, 2004 which is ad verbum to the 2012 Act, held that the Assam Act, 2004 was vitiated due to lack of legislative competence. However, the 2012 Act was not dealt with by this Court and the same continued to be valid till it was repealed”, added the Bench. 

Justice Rao observed that an unconstitutional law, be it either due to lack of legislative competence or in violation of fundamental rights guaranteed under Part III of the Constitution of India, is void ab initio, and the power of a legislative body to repeal a law is co- extensive with its power to enact a law.

“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. There is a distinction between declaration of a statute as unconstitutional by a Court of law and the repeal of a statute by the Legislature. On declaration of a statute as unconstitutional, it becomes void ab initio. Saving past transactions are within the exclusive domain of the Court”, added the Bench.

The Top Court observed that nullification of transactions affecting the public due to the acts done by the Parliamentary Secretaries appointed under the 2012 Act would cause serious damage to third parties and create significant confusion and irregularity in the conduct of public business. 

The Top Court therefore struck down the saving clause in the Repealing Act, 2018. 

However, this shall not affect the acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act till discontinuation of their appointments, which are hereby saved, added the Court.