Legislature Cannot Protect Actions Taken Under An Unconstitutional Law By Enacting A Saving Clause
Case: The State of Manipur & Ors. v. Surjakumar Okram & Ors.
Coram: Justices LN Rao, BR Gavai and BV Nagarathna
Case No.: Civil Appeal Nos. 823-827 of 2022
Court Observation: “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 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 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.”
“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).”
“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”
“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”
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Keywords
Unconstitutional Law, Legislature,
