Legislature Cannot Protect Actions Taken Under An Unconstitutional Law By Enacting A Saving Clause: Supreme Court

The Supreme Court on Tuesday observed that legislature cannot infuse life into a legislation, which it itself recognised as unconstitutional, by enacting a saving clause.

The bench of Justices LN Rao, BR Gavai and BV Nagarathna was considering 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.

While striking down the saving clause the bench in The State of Manipur & Ors. v. Surjakumar Okram & Ors. observed,

"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, we are of the considered view 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. 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."

The Court noted that the Manipur assembly passed the Repeal Act taking note of the fact that the similar law passed by Assam was declared unconstitutional. Therefore, the legislature itself recognized the unconstitutionality of the 2012 Act. In this background, the legislature could not have introduced a saving clause to protect the actions taken under the 2012 Act, which it itself recognized as unconstitutional.

Background

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 a similar law passed by the Assam Assembly - The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004- as unconstitutional.

Taking note to that judgment in the Assam case, 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 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 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 had 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

Appearing for the appellants, Senior Advocate Rajeev Dhavan submitted that declaration of the Assam Act, 2004 as unconstitutional did not per se render the 2012 Act invalid. He argued that Bimolangshu Roy's case was wrongly decided and should be held to be per incuriam for not considering the relevant entry in List II of the Seventh Schedule of the Constitution while declaring that the Assam Legislature lacked competence to enact the Assam Act, 2004. Senior Counsel further argued that striking down of the Repealing Act, 2018 should not result in invalidation of all the decisions taken by the Parliamentary Secretaries appointed under the 2012 Act. He also argued that the Repealing Act, 2018 should not be disturbed in view of the express saving provision thereof, the de facto doctrine and the principles underlying Section 6 of the General Clauses Act, 1897.

Senior Advocate Narendra Hooda  for the respondents submitted that no error was committed by the Court in deciding Bimolangshu Roy's case. He further contended that by applying the principles of the Roy's case to the 2012 Act, the saving clause could not have been inserted in the Repealing Act, 2018, especially after the State Government had accepted the judgment. It was also Senior Advocate's contention that the saving clause was only to justify the illegal appointments that were made by virtue of the 2012 Act.

Supreme Court's Analysis

To adjudicate on the issues, the bench in the judgment authored by Justice LN Rao firstly considered Senior Advocate Rajeev Dhavan's submission with regards to Bimolangshu Roy's case being wrongly decided.

In this regards, the bench after considering the findings in Bimolangshu Roy's case said,

"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. We are of the considered view 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. 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 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. Therefore, we do not see any force in the submission of Dr. Dhawan that the judgment of this Court in Bimolangshu Roy (supra) needs reconsideration."

The Law Passed By Legislature Is Good Law Till It Is Declared As Unconstitutional By Competent Court Or Till It Is Repealed

With regards to the High Court 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, bench after referring to Kay v. Goodwin (1830) 6 Bing. 576, at p. 582 and State of U.P. & Ors. v. Hirendra Pal Singh & Ors. (2011) 5 SCC 305 said,

"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. 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 (supra)."

Referring to the judgements in Norton v. Shelby County 118 US 425 (1886), Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 613, Deep Chand v. State of Uttar Pradesh & Ors. 1959 Supp (2) SCR 8, Keshavan Madhava Menon v. State of Bombay 1951 SCR 228, State of Punjab v. Harnek Singh, the bench said,

The principles that can be deduced from the law laid down by this Court, as referred to above, are:

• 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.

"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", Court further added.

Thus the bench while striking down the saving clause in exercise of its powers under Art 142 of the Constitution of India considered it necessary to save only those acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure.

"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, we consider it necessary to save only those acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure. In view of the relief provided, it is not necessary to refer to the de facto doctrine pleaded by Dr. Dhawan," Court said.

Case Title: The State of Manipur & Ors. v. Surjakumar Okram & Ors.| Civil Appeal Nos. 823-827 of 2022

Coram: Justices LN Rao, BR Gavai and BV Nagarathna

Citation : 2022 LiveLaw (SC) 113

Counsel for Petitioners: Senior Advocate Rajeev Dhavan, Hijam Lenin Singh, AAG, Advocate(s) Abdulrahiman Tamboli, Anish R. Shah, Rahul Joshi

Counsel for Respondents: Senior Advocate Narender Hooda, Advocates Shivendra Dwivedi, Rajesh Mahale

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