Repeal: There is no question of repeal of a statute which has been declared unconstitutional by the Court – In Bimolangshu Roy, Assam Act, 2004 was struck down as unconstitutional – The 2012 Act was not the subject matter of consideration in Bimolangshu Roy – Thus, it is well within the competence of the Manipur Legislature to repeal the 2012 Act, which has not been adjudged as unconstitutional by any Court till the Repealing Act, 2018 was enacted – Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 – Assam Parliamentary Secretary (Appointment, Salary, Allowances and Miscellaneous Provisions) Act, 2004.
Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018: Competence of Manipur Legislature to introduce a saving clause in the Repealing Act, 2018 – Held: 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 – Thus, the Manipur Legislative cannot be said to have the competence to enact the saving clause in the Repealing Act, 2018.
Repeal: Power of legislative body to repeal a law – Held: The power of a legislative body to repeal a law is co-extensive with its power to enact a law – The effect of repealing of a statute is to obliterate it completely from the records of Parliament – 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penalty, act or deed duly done and any investigation, legal proceeding or remedy arising therefrom, under the repealed statute.
Repeal: Distinction between declaration of a statute as unconstitutional by a Court of law and the repeal of a statute – Held: 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 – 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 – Even in cases where a saving clause is not made, the provisions of the General Clauses Act are applicable to central statutes and the principles of the General Clauses Act can be made applicable to statutes made by the State Legislatures as well.
Legislation: 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 voidab initio – 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 Art.142 of the Constitution, notwithstanding the declaration of a statute as unconstitutional – There is no question of repeal of a statute which has been declared as unconstitutional by a Court – Constitution of India – Art.142.
Disposing of the appeals, the Court
HELD: 1. Article 164(1) of the Constitution of India provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and that the Ministers shall hold office during the pleasure of the Governor. Article 164(1-A) was inserted by the Constitution (Ninety-first Amendment) Act, 2003. The said Article limited the number of Ministers, including the Chief Minister, in the Council of Ministers in a State to 15 percent of the total members in the Legislative Assembly of the State. Article 194(3) of the Constitution empowers the State Legislature to make laws in respect of the powers, privileges and immunities of a House of the Legislature and of the members and the committees of a House of such Legislature. Article 246 of the Constitution confers the Legislature of a State with exclusive powers to make laws for such State or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule. [Para 8][1070-B-D]
2. The 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 are undoubtedly in pari materia. This Court in Bimolangshu Roy 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 judgment in Bimolangshu Roy was delivered. Thereafter, the Repealing Act, 2018 was enacted and notified with effect from 04.04.2018. The 2012 Act and the Repealing Act, 2018 were challenged before the High Court of Manipur. [Para 9] [1070-F-H]
3. This Court in Bimolangshu Roy observed that Article 194(3) of the Constitution deals with powers, privileges and immunities of the House of the Legislature and its members but does not authorize the State Legislature to create offices such as those of Parliamentary Secretaries. It was noted that in some cases, the power to legislate was conferred by certain Articles in the Constitution on matters specified therein without corresponding entries in the lists in the Seventh Schedule, such as in the case of Article 3 under which the Parliament is competent to create or extinguish a State but there is no corresponding entry in List I of the Seventh Schedule. In certain other cases, corresponding entries in the lists of the Seventh Schedule are found with reference to the power to legislate as expressly conferred in the text of some Articles of the Constitution, as is seen with entries 38, 39 and 40 of List II. With respect to the latter category, this Court held that where the power to legislate is sourced to a dedicated Article in the Constitution, legislative authority with respect to a closely associated or the same topic as contained in the Article cannot be sought from the corresponding entry in the list read with Article 246. To substantiate, it was further elaborated that even if entries 38, 39 and 40 in List II were not there in the Seventh Schedule, the State Legislature would still be competent to make laws on topics indicated in those three entries because of the authority contained in Articles 164(5), 186, 194, 195 etc. Therefore, any interpretation on legislative power sought to be given to these entries which is not contemplated by the corresponding Article, was considered to be repugnant to the scheme of the Constitution, as the Article expressly conferring legislative authority is the source of legislating power. Noticing that the text of both Articles 194(3) and the relevant portion of entry 39 are substantially similar, this Court was of the firm opinion that creation of new offices by legislation would be outside the scope of Article 194(3). The powers, privileges and immunities contemplated by Article 194(3) and entry 39 are those of the legislators qua legislators, as concluded by this Court in Bimolangshu Roy. In view of the said finding, the Court did not find it necessary to examine the other issues that had been identified. [Para 11][1071-E-H; 1072-A-D] Ujagar Prints & Ors. (II) v. Union of India & Ors. (1989)
3 SCC 488 : [1988] 3 Suppl. SCR 770 – referred to.
4. Article 194(3) enables the Legislature to make law relating to powers, privileges and immunities of its members. This Court in Bimolangshu Roy categorically held that State Legislatures are competent to make law in respect of powers, privileges and immunities of a House of the Legislature and its members even in the absence of reference to entries 38, 39 and
40 of List II. The stand of the State of Assam before this Court in Bimolangshu Roy was that the Legislature had the competence to make the law in view of entry 39, which has to be given the broadest possible interpretation. [Para 13][1073-D-F]
5. The Appellants in the present matter contended that this Court did not appreciate the relevance of entry 40 of List II while assessing the Assam Legislature’s competence to enact the Assam Act, 2004. 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. The relevant entry is entry 39 which corresponds to Article 194(3) of the Constitution of India. On the other hand, entry 40 corresponds to Article 164 of the Constitution. In Bimolangshu Roy this Court has correctly 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. The judgment of this Court in Bimolangshu Roy does not require reconsideration. After the judgment of this Court in Bimolangshu Roy, the Parliamentary Secretaries resigned and the Repealing Act, 2018 was notified on 04.04.2018. The contention of the Appellants is that PIL Nos. 7, 9 and 10 became infructuous after the 2012 Act was repealed and therefore, the High Court committed an error in declaring the 2012 Act as unconstitutional. [Paras 14, 15][1074-A-E]
State of U.P. & Ors. v. Hirendra Pal Singh & Ors. (2011)
5 SCC 305:[2010] 15 SCR 854 – relied on.
Kay v. Goodwin (1830) 6 Bing. 576 – referred to.
6. 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. Indeed, the 2012 Act was not declared unconstitutional by any court before the High Court delivered the impugned judgment and therefore, it was well within the competence of the Manipur Legislature to repeal the 2012 Act. The High Court has 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. There is no error committed by the Manipur Legislature in repealing the 2012 Act in light of the judgment of this Court in Bimolangshu Roy. [Para 16][1075-B-E]
7.1 Where a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. [Para 18][1076-A-B]
Gokaraju Rangaraju v. State of Andhra Pradesh (1981)
3 SCC 132: [1981] 3 SCR 474; Election Commission of India & Anr. v. Dr. Subramaniam Swamy & Anr. (1996) 4 SCC 104: [1996] 1 Suppl. SCR 637 – referred to.
Norton v. Shelby County 118 US 425 (1886) – referred to.
7.2 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. [Para 19][1076-C]
Behram Khurshid Pesikaka v. State of Bombay [1955]
1 SCR 613; Deep Chand v. State of Uttar Pradesh & Ors. [1959] Supp 2 SCR 8 – relied on.
8. The power of a legislative body to repeal a law is coextensive with its power to enact a law. The effect of repealing of a statute is to obliterate it completely from the records of Parliament. 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. 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. Even in cases where a saving clause is not made, the provisions of the General Clauses Act are applicable to central statutes and the principles of the General Clauses Act can be made applicable to statutes made by the State Legislatures as well. The Manipur Legislature enacted the Manipur General Clauses Act, 1966, which came into force on 30.03.1966, by which the provisions of the General Clauses Act, 1897 were made applicable to the statutes of the Manipur Legislature. [Para 20][1077-A-E]
I.C. Golak Nath & Ors. v. State of Punjab & Anr.[1967]
2 SCR 762 – followed.
State of Punjab v. Harnek Singh (2002) 3 SCC
481:[2002] 1 SCR 1060 – relied on.
9. Though Golak Nath applied the doctrine of prospective overruling in the context of earlier decisions of this Court on the same issues which had otherwise become final, the doctrine of prospective overruling has been applied by this Court even where the issue was being decided by the Court for the first time. While laying down the principles of prospective overruling, this Court in Golak Nath dealt with the scope of Article 142 of the Constitution of India and held that the said provision enables the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. [Paras 21 and 22][1078-B-D] India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors. (1990) 1 SCC 12 : [1989] 1 Suppl. SCR 692; Orissa Cement Ltd. v. State of Orissa & Ors. 1991 Supp (1) SCC 430 : [1991] 2 SCR 105; Indra Sawhney & Ors. v. Union of India & Ors. 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454; General Manager,
Southern Railway v. Rangachari [1962] 2 SCR 586; Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997)
5 SCC 201: [1997] 3 SCR 269 – referred to.
10. 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. Therefore, it is clear 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. The consequences of declaration of unconstitutionality of a statute have to be dealt with only by the Court. [Para 23][1080-E-H; 1081-A-C]
11. The 2012 Act was not subject-matter of consideration by this Court in Bimolangshu Roy. In the said judgment, this Court was concerned only about the validity of the Assam Act, 2004. It is well within the competence of the Manipur Legislature to repeal the 2012 Act, which had not been adjudged as unconstitutional by any Court till the Repealing Act, 2018 was enacted. Further, there can be no doubt that the Legislature has the power to include a saving provision while repealing a statute. However, we have been called upon to assess whether, in the peculiar facts of the present case, the Manipur Legislature had the competence to introduce a saving clause in the Repealing Act, 2018. The undisputed facts are that the 2012 Act and the Assam Act, 2004 are in pari materia. The Assam Act, 2004 was declared as unconstitutional in Bimolangshu Roy. Public interest litigations were filed in the Manipur High Court challenging the vires of the 2012 Act. The Manipur Legislature decided to repeal the 2012 Act “in light of the judgment of this Court in” Bimolangshu Roy and “in the process of being a responsible Government which upholds the Rule of Law”, as have been categorically stated in the preamble of the Repealing Act, 2018. In the normal course of events, the public interest litigations challenging the vires of the 2012 Act would have been allowed and the 2012 Act would have been declared as unconstitutional, relying on Bimolangshu Roy. However, before these matters were taken up by the High Court, the Manipur Legislature, taking cognizance of the ramifications of Bimolangshu Roy and acknowledging the inferable unconstitutionality of the 2012 Act, has enacted the Repealing Act, 2018. As is evident from the preamble of the Repealing Act, 2018, the repeal of the 2012 Act is a procedural formality by the Manipur Legislature to give the statute a logical conclusion, in light of the pending public interest litigations challenging its constitutional validity before the High Court. Bearing in mind these exceptional facts and circumstances, 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. In light of the above, the Manipur Legislature cannot be said to have the competence to enact the saving clause in the Repealing Act, 2018. [Para 24][1081-D-H; 1082-A-C]
12 Having held that the Manipur Legislature was not competent to introduce a saving clause in the Repealing Act, 2018, what remains to be considered is the fate of the acts, deeds etc. undertaken by the Parliamentary Secretaries who were appointed under the 2012 Act. 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. Therefore, in exercise of powers under Article 142 of the Constitution of India, it is necessary to save only those acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure. [Para 25][1082-C-E]
13. Manipur Legislature was competent to enact the Repealing Act, 2018. The saving clause in the Repealing Act, 2018 is struck down. 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. [Para 26][1082-F]
Bimolangshu Roy v. State of Assam & Anr. (2018) 14 SCC 408:[2017] 13 SCR 301; Keshavan Madhava
Menon v. State of Bombay [1951] SCR 228 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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