Supreme Court Reserves Judgment On Pleas Challenging Manipur HC Judgment Which Struck Down Parliamentary Secretary Act

The Supreme Court on Thursday reserved judgement in the special leave petitions challenging the Manipur High Court's order of striking down the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 ("Act, 2012) and the Manipur Parliamentary Secretary (Appointment, Salary And Allowances and Miscellaneous Provisions) Repealing Act, 2018 ("Repealing Act, 2018") as unconstitutional.

The matter was heard by the bench Justices LN Rao, BR Gavai and BV Nagarathna.

The Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 enabled the Chief Minister to appoint Members of Manipur Legislative Assembly as Parliamentary Secretary with the status and rank of a Minister of a State. As per the Act, the Parliamentary Secretary was to perform his duties and function as may be specified in the Official Gazette by the Chief Minister.

The Top Court on July 26, 2017 in Bimolangshu Roy (Dead) through Legal representatives vs. State of Assam and Another (2018) 14 SCC 408 (Bimolangshu Roy's case) had declared the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 as unconstitutional.

Pursuant to the judgement, the State of Manipur had passed the Manipur Parliamentary Secretary (Appointment, Salary And Allowances and Miscellaneous Provisions) Repealing Act, 2018. The Act provided for a saving clause under Section 2(2), as per which the repeal could not affect the previous operations of the repealed Act or anything duly done in pursuance of the Act so repealed including anything done in the official discharge of their duties by the Parliamentary Secretaries; and safeguarded the right, privilege or obligation incurred under the repealed Act.

The Manipur High Court on September 17, 2020 in light of the Top Court's judgment in Bimolangshu Roy's case declared the Act, 2012 and Repealing Act, 2018 as invalid and unconstitutional.

The High Court had observed that the State of Manipur did not have the power to repeal the Act, 2012 because it lacked the legislative competence to enact the same.

"The State legislature cannot provide for a saving clause in the Repealing Act, 2018 to justify acts, deeds, privileges which are impermissible under the Manipur Act No. 10 of 2012 which is unconstitutional. No right, in any manner, can subsist under the Manipur Act No. 10 of 2012 and in any event, it cannot be saved by Repealing Act, Manipur Act No. 6 of 2018. What the State legislature cannot do directly, cannot be done indirectly. On this aspect also, it has to be clearly held that the Repealing Act, 2018 is invalid and unconstitutional," the High Court had further observed.

Submission Of Counsels

2012 Act Is Valid Since It Was Never Declared Invalid: Petitioner's Counsel

Senior Advocate Rajeev Dhawan appearing for the petitioners submitted that the 2012 Act was also valid as it had never been declared invalid. He further contended that since it was in pari materia with Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004, it was declared as invalid.

It was also Senior Counsel's contention that Bimolangshu Roy's case was bad in law since the widest interpretation has to be given to all the Legislative Entries.

Senior Counsel submitted that the State Legislature had jurisdiction to repeal an existing act which was enacted earlier by the State Legislature even if the earlier enactment was without jurisdiction.

With regards to the "Savings Clause" in Section 2(2) of the Repealing Act, 2018 and the State's action under the Act, 2012 Senior Counsel relied on the Doctrine of Necessity, section 6 of the General Clauses Act, 1897 and the principles of justice, equity and good conscience.

"Secondly, the savings clause is absolutely necessary otherwise there would be chaos," Senior Counsel further submitted in this regard.

It was also Senior Counsel's contention that since the annulment of the statute did not remove it from the statute books, the State legislature had power to repeal it.

Additional Advocate General Lenin Hizam appeared for the State of Manipur.

By enacting the Repealing Act, State Legislature Intends To Save Its Action Taken Under An Unconstitutional Enactment: Respondent's Counsel

Senior Advocate Narender Hooda assisted by Advocate Shivendra Dwivedi and Advocate on Record Rajesh Mahale appearing for the Respondents Surjakumar Okram and D.D. Thaisii submitted that the Act, 2012 was declared unconstitutional on the ground that the State legislature lacked legislative capacity to enact such a law.

He further contended that Bimolangshu Roy's case was a good law.

Senior Counsel during the course of hearing referred to content of the Repealing Act, 2018, "Whereas, it is expedient to repeal the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 in light of the ruling of the Hon'ble Supreme Court of India in Transfer Case (Civil) No. 169 of 2006 (Bimolangsu Roy (Dead) through LRs Vs. State of Assam & Another), and in the process of being a responsible Government which upholds the Rule of Law" and submitted that the same was an admission of the State Legislature's part that it did not have the competence to legislate and thus repealed the same.

Senior Counsel on petitioner's contention with reference to Section 6 of the General Clauses Act, 1897 submitted that when an enactment is declared to be void, it is void ab-initio, as if it never existed.

"If the other side's contention is accepted, it would set a very dangerous precedent. The Office of Profit was acquired through the backdoor which was a completely illegal act. Then they provided for a saving clause. What is the larger good that we're trying to save here? Once the Act was without competence, they did not have the right for saving clause," Senior Counsel added.

Justice LN Rao the presiding judge at this juncture posed a question, "Suppose Parliamentary Secretaries were appointed based on the law enacted by the State Legislature and when the appointment was made, the Statute was in accordance with law but subsequently the law was repealed, why should I be disqualified?"

"How can you say that it is bad when it was made in accordance with law?," Justice Rao further added.

Replying to the question posed by the bench, Senior Counsel while relying on the observations made in the High Court's order submitted that since the Statue was bad in law, the appointment would result in nullity.

"If the 2012 Act is valid, then the repeal is valid. If Act, 2012 is not valid, the repeal cannot be valid. The State only has a problem that the repeal act has been declared to be bad. The High Court has Roy's judgement and said that the State Legislature did not have the competence to enact the Act, 2012. They want to save something till the time the Act has been declared to be unconstitutional and they cannot do that," Senior Counsel further added.

It is pertinent to mention that, considering that the Governor had passed a decision on the opinion given by the Election Commission of India regarding the disqualification of 12 BJP MLAs of Manipur Assembly in the "office of profit" issue, the bench today disposed of the petition which was filed by DD Thaisii.

Case Title: State Of Manipur and Anr. v. Surjakumar Okram And Ors.| SLP(C) No. 2001-2005/2021 And Leishangthem Susindro Meitei (Yaima) And Ors. V. Surjakumar Okram And Ors.| 2386-2390/2021

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