LEGAL ISSUE: Whether the Manipur Legislature had the competence to enact a saving clause in the Repealing Act of the Manipur Parliamentary Secretary Act, 2012, after the Assam Act of 2004, which is in pari materia, was declared unconstitutional.
CASE TYPE: Constitutional Law, Legislative Competence
Case Name: The State of Manipur & Ors. vs. Surjakumar Okram & Ors.
[Judgment Date]: 01 February 2022
Introduction
Date of the Judgment: 01 February 2022
Citation: 2022 INSC 134
Judges: L. Nageswara Rao, J., B.R. Gavai, J., B.V. Nagarathna, J.
Can a state legislature validate past actions under a law that is similar to one already declared unconstitutional? The Supreme Court of India recently addressed this question while examining the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012, and its subsequent repeal. The core issue revolved around whether the Manipur legislature could include a saving clause in the repealing act to protect actions taken under the original law, especially after a similar Assam law was struck down by the Supreme Court. This judgment clarifies the extent of a state legislature’s power in repealing laws and the limitations on saving clauses. The judgment was delivered by a three-judge bench comprising Justices L. Nageswara Rao, B.R. Gavai, and B.V. Nagarathna, with the opinion authored by Justice L. Nageswara Rao.
Case Background
The Manipur Legislative Assembly enacted the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 (the “2012 Act”), which allowed the Chief Minister to appoint members of the Assembly as Parliamentary Secretaries with the rank of a Minister of State. In 2017, some members of the Manipur Legislative Assembly were appointed as Parliamentary Secretaries under this Act.
Meanwhile, the Gauhati High Court was hearing a challenge to the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 (the “Assam Act, 2004”), which had similar provisions. This case was transferred to the Supreme Court, which, on 26 July 2017, in the case of Bimolangshu Roy v. State of Assam & Anr. [(2018) 14 SCC 408], declared the Assam Act, 2004 unconstitutional, holding that the Assam Legislature lacked the competence to enact it.
Following the Supreme Court’s decision in Bimolangshu Roy, the Manipur Assembly passed the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 (the “Repealing Act, 2018”), which repealed the 2012 Act. The Repealing Act, 2018, included a saving clause that aimed to protect the previous operations of the repealed Act, including actions taken by the Parliamentary Secretaries.
Subsequently, some of the appointed Parliamentary Secretaries resigned from their posts. Simultaneously, Public Interest Litigations (PILs) were filed in the High Court of Manipur challenging the validity of the 2012 Act, and later, the validity of the Repealing Act, 2018. The High Court of Manipur heard these petitions together and, on 17 September 2020, declared both the 2012 Act and the Repealing Act, 2018, unconstitutional. Aggrieved by this decision, the State of Manipur and the former Parliamentary Secretaries appealed to the Supreme Court.
Timeline
| Date | Event |
|---|---|
| 2012 | Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 enacted. |
| 2017 | Appointments of Parliamentary Secretaries in Manipur. |
| 26 July 2017 | Supreme Court declares the Assam Act, 2004 unconstitutional in Bimolangshu Roy v. State of Assam & Anr. [(2018) 14 SCC 408]. |
| 04 August 2017 | Appellants resigned as Parliamentary Secretaries. |
| 04 April 2018 | Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 notified. |
| 17 September 2020 | High Court of Manipur declares both the 2012 Act and the Repealing Act, 2018 unconstitutional. |
| 01 February 2022 | Supreme Court disposes of the appeals. |
Course of Proceedings
The High Court of Manipur, while addressing the PILs and the writ petition, held that the Manipur Legislature lacked the competence to enact the 2012 Act. The High Court reasoned that since the power to repeal a law is co-extensive with the power to enact it, and the Manipur Legislature lacked the competence to enact the 2012 Act, it also lacked the power to repeal it. The High Court further held that the saving clause in the Repealing Act, 2018, was an attempt to justify illegal appointments made under the 2012 Act.
Aggrieved by the High Court’s judgment, the State of Manipur and the members of the Manipur Legislative Assembly who were appointed as Parliamentary Secretaries filed appeals before the Supreme Court.
Legal Framework
The Supreme Court considered the following constitutional provisions:
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Article 164(1) of the Constitution of India: Deals with the appointment of the Chief Minister and other Ministers by the Governor. It also states that the Ministers hold office during the pleasure of the Governor.
“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 the Ministers shall hold office during the pleasure of the Governor.” - Article 164(1-A) of the Constitution of India: Limits the number of Ministers in a State’s Council of Ministers to 15% of the total members of the Legislative Assembly.
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Article 194(3) of the Constitution of India: Empowers the State Legislature to make laws regarding the powers, privileges, and immunities of the House of the Legislature and its members and committees.
“Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.” - Article 246 of the Constitution of India: Confers exclusive powers to the State Legislature to make laws for the State on matters listed in List II of the Seventh Schedule.
The relevant entries in List II of the Seventh Schedule are:
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Entry 39, List II: Powers, privileges, and immunities of the Legislative Assembly and its members and committees.
“Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State.” -
Entry 40, List II: Salaries and allowances of Ministers for the State.
“Salaries and allowances of Minister for the State.”
Arguments
The Appellants (former Parliamentary Secretaries and the State of Manipur) argued that:
- The Supreme Court’s decision in Bimolangshu Roy was incorrect and should be reconsidered as it did not consider Entry 40 of List II of the Seventh Schedule, which relates to the salaries and allowances of Ministers.
- The 2012 Act was valid until it was repealed, and the Repealing Act, 2018, was a valid exercise of legislative power.
- The saving clause in the Repealing Act, 2018, should be upheld to protect the actions taken by the Parliamentary Secretaries during their tenure.
- The de facto doctrine and the principles under Section 6 of the General Clauses Act, 1897, should apply to save the decisions made by the Parliamentary Secretaries.
The Respondents (original writ petitioners) argued that:
- The Supreme Court’s decision in Bimolangshu Roy was correct, and the Manipur Legislature lacked the competence to enact the 2012 Act.
- The saving clause in the Repealing Act, 2018, was an attempt to justify illegal appointments.
- The Manipur Legislature, having accepted the judgment in Bimolangshu Roy, could not introduce a saving clause to validate actions done under the 2012 Act.
The Appellants contended that the judgment in Bimolangshu Roy was per incuriam for not considering Entry 40 of List II of the Seventh Schedule. They argued that this entry empowers the legislature to make laws regarding the salaries and allowances of ministers, and by extension, Parliamentary Secretaries who hold the rank of a Minister of State. They relied on Ujagar Prints & Ors. (II) v. Union of India & Ors. [(1989) 3 SCC 488] to argue that the legislation could be supported by multiple entries and that the court should have considered Entry 40.
The Respondents countered that Entry 40 relates to the salaries and allowances of Ministers and cannot be used to justify the appointment of Parliamentary Secretaries. They argued that Entry 39, which deals with the powers, privileges, and immunities of the Legislative Assembly, corresponds to Article 194(3) of the Constitution and does not extend to the creation of new offices.
Summary of Arguments
| Appellants’ Submissions | Respondents’ Submissions |
|---|---|
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|
Issues Framed by the Supreme Court
The Supreme Court considered the following issues:
- Whether the judgment in Bimolangshu Roy needs reconsideration.
- Whether the Manipur Legislature was competent to repeal the 2012 Act.
- Whether the saving clause in the Repealing Act, 2018, is valid.
- What is the fate of the acts, deeds, etc., undertaken by the Parliamentary Secretaries appointed under the 2012 Act.
Treatment of the Issue by the Court
| Issue | Court’s Decision |
|---|---|
| Whether the judgment in Bimolangshu Roy needs reconsideration. | The Court held that the judgment in Bimolangshu Roy was correctly decided and does not need reconsideration. It clarified that Entry 40 of List II cannot be used to justify the appointment of Parliamentary Secretaries. |
| Whether the Manipur Legislature was competent to repeal the 2012 Act. | The Court held that the Manipur Legislature was competent to repeal the 2012 Act, as it was not declared unconstitutional by any court before the Repealing Act, 2018, was enacted. |
| Whether the saving clause in the Repealing Act, 2018, is valid. | The Court held that the Manipur Legislature was not competent to introduce a saving clause in the Repealing Act, 2018, as it was an attempt to validate actions under a law that was recognized as unconstitutional. |
| What is the fate of the acts, deeds, etc., undertaken by the Parliamentary Secretaries appointed under the 2012 Act. | The Court, exercising its powers under Article 142 of the Constitution, saved the acts, deeds, and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure. |
Authorities
The Supreme Court considered the following authorities:
On the competence of the State Legislature to enact laws regarding powers, privileges, and immunities of the Legislative Assembly:
- Bimolangshu Roy v. State of Assam & Anr. [(2018) 14 SCC 408] – Supreme Court of India: The Court reiterated its finding that the State Legislature cannot create new offices under the guise of powers, privileges, and immunities of the Legislative Assembly and its members.
On the interpretation of legislative entries:
- Ujagar Prints & Ors. (II) v. Union of India & Ors. [(1989) 3 SCC 488] – Supreme Court of India: The Court referred to this case to emphasize that a legislation can draw sustenance from multiple entries. However, it clarified that Entry 40 of List II cannot be used to justify the appointment of Parliamentary Secretaries.
On the effect of repealing a statute:
- Kay v. Goodwin [(1830) 6 Bing. 576]: The Court quoted this case to highlight that the effect of repealing a statute is to obliterate it completely as if it had never been passed.
- State of U.P. & Ors. v. Hirendra Pal Singh & Ors. [(2011) 5 SCC 305] – Supreme Court of India: The Court referred to this case to reiterate that when an Act is repealed, it is as if it had never existed.
On the effect of declaring a statute unconstitutional:
- Norton v. Shelby County [118 US 425 (1886)]: The Court referred to this case to highlight that an unconstitutional act is not law and confers no rights.
- Behram Khurshid Pesikaka v. State of Bombay [(1955) 1 SCR 613] – Supreme Court of India: The Court referred to this case to reiterate that a law opposed to the fundamental law is in excess of legislative authority and is a nullity.
- Deep Chand v. State of Uttar Pradesh & Ors. [1959 Supp (2) SCR 8] – Supreme Court of India: The Court referred to this case to summarize the propositions on the effect of a law made in excess of legislative power.
On the power of the Court to save past transactions:
- I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762] – Supreme Court of India: The Court referred to this case to explain the doctrine of prospective overruling.
- India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors. [(1990) 1 SCC 12] – Supreme Court of India: The Court referred to this case to explain how the court can save past transactions.
- Orissa Cement Ltd. v. State of Orissa & Ors. [1991 Supp (1) SCC 430] – Supreme Court of India: The Court referred to this case to explain that the court can refuse to give directions for refund of amounts collected under an unconstitutional law.
- Indra Sawhney & Ors. v. Union of India & Ors. [1992 Supp (3) SCC 217] – Supreme Court of India: The Court referred to this case to explain how the court can give prospective effect to its judgments.
- Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. [(1997) 5 SCC 201] – Supreme Court of India: The Court referred to this case to explain the scope of Article 142 of the Constitution.
On the application of the General Clauses Act:
- State of Punjab v. Harnek Singh [(2002) 3 SCC 481] – Supreme Court of India: The Court referred to this case to explain that the principles of the General Clauses Act can be applied to statutes made by the State Legislatures.
Authorities Considered by the Court
| Authority | How the Court Viewed It |
|---|---|
| Bimolangshu Roy v. State of Assam & Anr. [(2018) 14 SCC 408] – Supreme Court of India | Affirmed; the Court upheld its previous decision that the State Legislature cannot create new offices under the guise of powers, privileges, and immunities of the Legislative Assembly and its members. |
| Ujagar Prints & Ors. (II) v. Union of India & Ors. [(1989) 3 SCC 488] – Supreme Court of India | Distinguished; the Court acknowledged that a legislation can draw sustenance from multiple entries, but clarified that Entry 40 of List II cannot be used to justify the appointment of Parliamentary Secretaries. |
| Kay v. Goodwin [(1830) 6 Bing. 576] | Cited; the Court used this case to highlight that the effect of repealing a statute is to obliterate it completely as if it had never been passed. |
| State of U.P. & Ors. v. Hirendra Pal Singh & Ors. [(2011) 5 SCC 305] – Supreme Court of India | Cited; the Court used this case to reiterate that when an Act is repealed, it is as if it had never existed. |
| Norton v. Shelby County [118 US 425 (1886)] | Cited; the Court used this case to highlight that an unconstitutional act is not law and confers no rights. |
| Behram Khurshid Pesikaka v. State of Bombay [(1955) 1 SCR 613] – Supreme Court of India | Cited; the Court used this case to reiterate that a law opposed to the fundamental law is in excess of legislative authority and is a nullity. |
| Deep Chand v. State of Uttar Pradesh & Ors. [1959 Supp (2) SCR 8] – Supreme Court of India | Cited; the Court used this case to summarize the propositions on the effect of a law made in excess of legislative power. |
| I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762] – Supreme Court of India | Cited; the Court used this case to explain the doctrine of prospective overruling. |
| India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors. [(1990) 1 SCC 12] – Supreme Court of India | Cited; the Court used this case to explain how the court can save past transactions. |
| Orissa Cement Ltd. v. State of Orissa & Ors. [1991 Supp (1) SCC 430] – Supreme Court of India | Cited; the Court used this case to explain that the court can refuse to give directions for refund of amounts collected under an unconstitutional law. |
| Indra Sawhney & Ors. v. Union of India & Ors. [1992 Supp (3) SCC 217] – Supreme Court of India | Cited; the Court used this case to explain how the court can give prospective effect to its judgments. |
| Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. [(1997) 5 SCC 201] – Supreme Court of India | Cited; the Court used this case to explain the scope of Article 142 of the Constitution. |
| State of Punjab v. Harnek Singh [(2002) 3 SCC 481] – Supreme Court of India | Cited; the Court used this case to explain that the principles of the General Clauses Act can be applied to statutes made by the State Legislatures. |
Judgment
The Supreme Court held that the Manipur Legislature was competent to enact the Repealing Act, 2018, as the 2012 Act had not been declared unconstitutional by any court before the enactment of the Repealing Act, 2018. However, the Court struck down the saving clause in the Repealing Act, 2018, holding that the Manipur Legislature could not have infused life into a legislation that it recognized as unconstitutional.
The Court, exercising its powers under Article 142 of the Constitution, saved the acts, deeds, and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure.
The court analyzed the submissions made by both the parties and the authorities relied upon by them. The following table demonstrates as to how the submissions made by the parties were treated by the court:
| Submission by the Parties | How the Court Treated the Submission |
|---|---|
| The judgment in Bimolangshu Roy needs reconsideration. | The Court rejected this submission and held that the judgment in Bimolangshu Roy was correctly decided. |
| Entry 40 of List II was not considered in Bimolangshu Roy. | The Court rejected this submission and held that entry 40 of List II cannot be used to justify the appointment of Parliamentary Secretaries. |
| The 2012 Act was valid until it was repealed. | The Court accepted this submission and held that the 2012 Act was valid until it was repealed. |
| The Repealing Act, 2018, was a valid exercise of legislative power. | The Court accepted this submission and held that the Manipur Legislature was competent to enact the Repealing Act, 2018. |
| The saving clause in the Repealing Act, 2018, should be upheld. | The Court rejected this submission and struck down the saving clause in the Repealing Act, 2018. |
| The de facto doctrine and Section 6 of the General Clauses Act should apply. | The Court did not find it necessary to refer to the de facto doctrine and did not apply Section 6 of the General Clauses Act, in light of the relief granted under Article 142. |
| The Manipur Legislature lacked competence to enact the 2012 Act. | The Court did not deal with this submission because the 2012 Act was already repealed. |
| The saving clause in the Repealing Act, 2018, is an attempt to justify illegal appointments. | The Court accepted this submission and struck down the saving clause in the Repealing Act, 2018. |
| The State cannot validate actions under an unconstitutional law. | The Court accepted this submission and held that the Manipur Legislature could not have infused life into a legislation that it recognized as unconstitutional. |
The court also analyzed the authorities relied upon by the parties. The following table demonstrates as to how the authorities were viewed by the court:
| Authority | How the Court Viewed It |
|---|---|
| Bimolangshu Roy v. State of Assam & Anr. [(2018) 14 SCC 408] | The Court upheld its previous decision that the State Legislature cannot create new offices under the guise of powers, privileges, and immunities of the Legislative Assembly and its members. |
| Ujagar Prints & Ors. (II) v. Union of India & Ors. [(1989) 3 SCC 488] | The Court acknowledged that a legislation can draw sustenance from multiple entries, but clarified that Entry 40 of List II cannot be used to justify the appointment of Parliamentary Secretaries. |
| Kay v. Goodwin [(1830) 6 Bing. 576] | The Court used this case to highlight that the effect of repealing a statute is to obliterate it completely as if it had never been passed. |
| State of U.P. & Ors. v. Hirendra Pal Singh & Ors. [(2011) 5 SCC 305] | The Court used this case to reiterate that when an Act is repealed, it is as if it had never existed. |
| Norton v. Shelby County [118 US 425 (1886)] | The Court used this case to highlight that an unconstitutional act is not law and confers no rights. |
| Behram Khurshid Pesikaka v. State of Bombay [(1955) 1 SCR 613] | The Court used this case to reiterate that a law opposed to the fundamental law is in excess of legislative authority and is a nullity. |
| Deep Chand v. State of Uttar Pradesh & Ors. [1959 Supp (2) SCR 8] | The Court used this case to summarize the propositions on the effect of a law made in excess of legislative power. |
| I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762] | The Court used this case to explain the doctrine of prospective overruling. |
| India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors. [(1990) 1 SCC 12] | The Court used this case to explain how the court can save past transactions. |
| Orissa Cement Ltd. v. State of Orissa & Ors. [1991 Supp (1) SCC 430] | The Court used this case to explain that the court can refuse to give directions for refund of amounts collected under an unconstitutional law. |
| Indra Sawhney & Ors. v. Union of India & Ors. [1992 Supp (3) SCC 217] | The Court used this case to explain how the court can give prospective effect to its judgments. |
| Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. [(1997) 5SCC 201] | The Court used this case to explain the scope of Article 142 of the Constitution. |
| State of Punjab v. Harnek Singh [(2002) 3 SCC 481] | The Court used this case to explain that the principles of the General Clauses Act can be applied to statutes made by the State Legislatures. |
Decision
The Supreme Court disposed of the appeals by:
- Holding that the judgment in Bimolangshu Roy does not require reconsideration and is correctly decided.
- Holding that the Manipur Legislature was competent to enact the Repealing Act, 2018.
- Striking down the saving clause in the Repealing Act, 2018.
- Exercising its powers under Article 142 of the Constitution to save the acts, deeds, and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure.
Flowchart of the Case
Analysis
The Supreme Court’s decision in this case clarifies the limits of a state legislature’s power to enact saving clauses in repealing acts, especially when the original law is similar to one already declared unconstitutional. The Court emphasized that a state legislature cannot validate actions under a law that it recognizes as being unconstitutional. This judgment reinforces the importance of legislative competence and the principle that an unconstitutional law is void ab initio.
The Court’s reliance on Article 142 to protect the past actions of the Parliamentary Secretaries is a pragmatic approach, ensuring that the administrative and legal actions taken by them during their tenure are not invalidated. This decision balances the need to uphold constitutional principles with the need to maintain legal stability and avoid chaos.
The judgment underscores the need for State Legislatures to exercise caution when enacting laws that are similar to ones already declared unconstitutional. It also highlights the Supreme Court’s role in ensuring that legislative bodies do not overstep their constitutional boundaries. The judgment is a reminder that the power to repeal a law does not include the power to validate illegal actions.