Law Made By A Legislature Is Valid Till It Is Declared Unconstitutional By A Court Of Law: Supreme Court

The Supreme Court observed that a law passed by the legislature is good law till it is declared as unconstitutional by a competent Court or till it is repealed.

The very declaration by a Court that a statute is unconstitutional obliterates the statute entirely as though it had never been passed, the bench comprising Justices L. Nageswara Rao, BR Gavai and BV Nagarathna observed.

The court observed thus in a judgment in which it upheld the law passed by the Manipur assembly repealing the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012. The court also struck down the saving clause in the Repealing Act.

The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 was struck down by the Supreme Court in Bimolangshu Roy v. State of Assam holding that the Legislature of Assam lacked competence to enact it. In 2012, the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 (which had provisions similar to that of the Assam Act) was enacted by the Legislature of Manipur to provide for appointment, salary and allowances of Parliamentary Secretaries in Manipur. Later, the Manipur Assembly passed the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 which was notified on 04.04.2018. In the preamble of the Repealing Act, 2018, it was stated that the 2012 Act was being repealed in light of the judgment of the Supreme Court in Bimolangshu Roy.

Disposing the writ petitions challenging the 2012 Act and 2018 Repealing Act, the Manipur High Court declared that both the Acts are unconstitutional. 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, it was held.

Before the Apex Court, the appellants raised the following contentions: That the declaration of the Assam Act, 2004 as unconstitutional does not per se render the 2012 Act invalid. That Bimolangshu Roy (supra) 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. 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. That, 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.

The respondents contended that the saving clause could not have been inserted in the Repealing Act, 2018. That, the saving clause is only to justify the illegal appointments that were made by virtue of the 2012 Act.

The Apex court bench observed that the High Court committed an error in declaring a non-existing law as unconstitutional.

"It is beyond question that this Court in Bimolangshu Roy (supra), 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 court observed.

Referring to various earlier judgments, the bench noted these principles:

I. A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law.

II. After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes.

III. 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.

IV. 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.

The bench observed that the Manipur Legislature cannot be said to have the competence to enact the saving clause in the Repealing Act, 2018. "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.", the court said.

The bench therefore held that the Manipur Legislature was competent to enact the Repealing Act, 2018, but it struck down the saving clause in the Repealing Act, 2018. In exercise of powers under Article 142 of the Constitution of India, the court saved only those acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure.