Supreme Court Upholds Repeal of Manipur Parliamentary Secretary Act, but Strikes Down Saving Clause

Date of the Judgment: 01 February 2022

Citation: Civil Appeal Nos. 823-827 of 2022 (Arising out of SLP (C) Nos.2001-2005 of 2021)

Judges: L. Nageswara Rao, J., B.R. Gavai, J., and B.V. Nagarathna, J.

The Supreme Court of India addressed a critical question regarding the legislative competence of a state assembly to enact and repeal laws, specifically concerning the appointment of parliamentary secretaries. The core issue revolved around whether the Manipur Legislature had the power to enact the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012, and subsequently, whether it could repeal the same with a clause that saved actions taken under the repealed law. This case delves into the intricacies of constitutional law, examining the extent of state legislative powers and the implications of such actions on governance. The judgment was delivered by a three-judge bench consisting of Justice L. Nageswara Rao, Justice B.R. Gavai, and Justice B.V. Nagarathna, with the opinion authored by Justice L. Nageswara Rao.

Case Background

The Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 (the “2012 Act”) was enacted to provide for the appointment of Parliamentary Secretaries in Manipur. This Act allowed the Chief Minister to appoint a member of the Manipur Legislative Assembly as a Parliamentary Secretary, granting them the rank and status of a Minister of State. The salary and allowances of these secretaries were equivalent to those of a Minister of State. In 2017, several members of the Manipur Legislative Assembly were appointed as Parliamentary Secretaries.

The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004, which had similar provisions, was challenged in the Gauhati High Court. This case was later transferred to the Supreme Court, which, in 2017, declared the Assam Act, 2004 as unconstitutional due to lack of legislative competence. Following this, the Manipur Assembly passed the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 (the “Repealing Act, 2018”), repealing the 2012 Act. However, the Repealing Act, 2018 included a saving clause that sought to protect actions taken under the repealed 2012 Act.

Several Public Interest Litigations (PILs) were filed in the High Court of Manipur challenging the validity of the 2012 Act. Subsequently, the validity of the Repealing Act, 2018 was also challenged. The High Court of Manipur heard these cases together and declared both the 2012 Act and the Repealing Act, 2018 as unconstitutional. Aggrieved by this decision, the State of Manipur and the appointed Parliamentary Secretaries appealed to the Supreme Court.

Timeline:

Course of Proceedings

The High Court of Manipur addressed multiple petitions challenging the Manipur Parliamentary Secretary Act, 2012 and the Repealing Act, 2018. The petitioners argued that the Manipur Legislature lacked the competence to enact the 2012 Act, mirroring the Supreme Court’s ruling on the Assam Act of 2004. They also contended that the saving clause in the Repealing Act, 2018 was a deliberate attempt to legitimize illegal appointments made under the 2012 Act. The High Court agreed with these arguments, stating that a legislative body’s power to repeal a law is tied to its original competence to enact it. Since the High Court believed the Manipur Legislature lacked the competence to enact the 2012 Act, it concluded that the legislature also lacked the power to repeal the Act with a saving clause. Consequently, the High Court declared both the 2012 Act and the Repealing Act, 2018 unconstitutional.

Legal Framework

The Supreme Court considered several key provisions of the Constitution of India:

• Article 164(1): States that the Chief Minister is appointed by the Governor, and other Ministers are appointed by the Governor on the advice of the Chief Minister. Ministers hold office during the pleasure of the Governor.
• Article 164(1-A): Limits the number of Ministers, including the Chief Minister, in a State’s Council of Ministers to 15% of the total members of the Legislative Assembly.
• Article 194(3): Empowers the State Legislature to make laws regarding the powers, privileges, and immunities of the House of the Legislature and its members and committees.
• Article 246: 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:

• Entry 39: “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: “Salaries and allowances of Minister for the State.”

These provisions outline the structure of state governance and the legislative powers of the state assemblies. The court examined how these provisions relate to the enactment and repeal of the Manipur Parliamentary Secretary Act.

Arguments

Appellants’ Arguments:

• Dr. Rajeev Dhawan, representing the Appellants, argued that the 2012 Act was valid until it was repealed and that the High Court erred in declaring it unconstitutional after its repeal.
• He contended that the Supreme Court’s judgment in Bimolangshu Roy v. State of Assam & Anr., which declared the Assam Act, 2004 unconstitutional, was wrongly decided and should be considered per incuriam for not considering entry 40 of List II of the Seventh Schedule.
• Dr. Dhawan submitted that the relevant entry empowering the Manipur Legislature to make the 2012 Act is entry 40 of List II, which was not considered in Bimolangshu Roy.
• He argued that the Repealing Act, 2018, including its saving clause, should not be disturbed due to the de facto doctrine and the principles under Section 6 of the General Clauses Act, 1897.
• He argued that the decisions made by persons appointed under the 2012 Act should be saved by virtue of the de facto doctrine, the express saving provision of the Repealing Act, 2018, and Section 6 of the General Clauses Act, 1897.

Respondents’ Arguments:

• Mr. Narender Hooda, representing the Respondents, argued that the Supreme Court’s decision in Bimolangshu Roy was correct.
• He contended that the State of Manipur, by repealing the 2012 Act, had accepted the principles laid down in Bimolangshu Roy.
• He argued that the saving clause in the Repealing Act, 2018 was an attempt to justify illegal appointments made under the 2012 Act.
• Mr. Hooda submitted that entry 40 of List II, which relates to salaries and allowances of Ministers for the State, cannot be relied on to defend the Assam Act, 2004. He argued that entry 39, which refers to powers, privileges, and immunities of the Legislative Assembly and its members, corresponds to Article 194(3) of the Constitution of India.
• He argued that the legislature is empowered to make laws by virtue of Article 194(3) and entry 39 in respect of powers, privileges, and immunities of a House of the Legislature and its members and committees, but this authority does not extend to the creation of new offices.

[TABLE] of Submissions:

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the judgment of this Court in Bimolangshu Roy (supra) needs reconsideration?
2. Whether the Manipur Legislature was competent to enact the Repealing Act, 2018?
3. Whether the saving clause in the Repealing Act, 2018 is valid?
4. What is the fate of the acts, deeds, etc. undertaken by the Parliamentary Secretaries who were appointed under the 2012 Act?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Cases:

• Bimolangshu Roy v. State of Assam & Anr. (2018) 14 SCC 408 – The Supreme Court of India. This case was a key precedent, where the court declared the Assam Parliamentary Secretaries Act, 2004 unconstitutional due to lack of legislative competence.
• Ujagar Prints & Ors. (II) v. Union of India & Ors. (1989) 3 SCC 488 – The Supreme Court of India. This case was cited to argue that a state can support legislation under any entry within its competence, not just the one initially intended.
• Kay v. Goodwin (1830) 6 Bing. 576 – This case was cited to explain the effect of repealing a statute, which is to obliterate it as if it had never existed.
• State of U.P. & Ors. v. Hirendra Pal Singh & Ors. (2011) 5 SCC 305 – The Supreme Court of India. This case was cited to emphasize that when an Act is repealed, it is considered as if it never existed, except for specific purposes under Section 6 of the General Clauses Act, 1897.
• Gokaraju Rangaraju v. State of Andhra Pradesh (1981) 3 SCC 132 – The Supreme Court of India. This case was cited in support of the de facto doctrine.
• State of Punjab v. Harnek Singh (2002) 3 SCC 481 – The Supreme Court of India. This case was cited in support of the applicability of the principles of the General Clauses Act to state statutes.
• Election Commission of India & Anr. v. Dr. Subramaniam Swamy & Anr. (1996) 4 SCC 104 – The Supreme Court of India. This case was cited in support of the de facto doctrine.
• Norton v. Shelby County 118 US 425 (1886) – This case was cited to emphasize that an unconstitutional act is not law and confers no rights or duties.
• Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 613 – The Supreme Court of India. This case was cited to emphasize that a law opposed to fundamental law is a nullity.
• Deep Chand v. State of Uttar Pradesh & Ors. 1959 Supp (2) SCR 8 – The Supreme Court of India. This case was cited to summarize the propositions on the lack of legislative power.
• Keshavan Madhava Menon v. State of Bombay 1951 SCR 228 – The Supreme Court of India. This case was cited to highlight the distinction between the declaration of a statute as unconstitutional by a court and the repeal of a statute by the Legislature.
• I.C. Golak Nath & Ors. v. State of Punjab & Anr. (1967) 2 SCR 762 – The Supreme Court of India. This case was cited for the doctrine of prospective overruling.
• India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors. (1990) 1 SCC 12 – The Supreme Court of India. This case was cited to show how the Court can mold relief.
• Orissa Cement Ltd. v. State of Orissa & Ors. 1991 Supp (1) SCC 430 – The Supreme Court of India. This case was cited for the refusal of the Court to give directions for refund of amounts collected till the date of declaration of unconstitutionality.
• Indra Sawhney & Ors. v. Union of India & Ors. 1992 Supp (3) SCC 217 – The Supreme Court of India. This case was cited for the overruling of an earlier judgment and the direction to make the decision operative from a future date.
• General Manager, Southern Railway v. Rangachari (1962) 2 SCR 586 – The Supreme Court of India. This case was cited as the earlier judgment that was overruled in Indra Sawhney.
• Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997) 5 SCC 201 – The Supreme Court of India. This case was cited for the power of the Court under Article 142 to do complete justice.

Legal Provisions:

• Article 164(1) of the Constitution of India: Pertains to the appointment of the Chief Minister and other Ministers.
• Article 164(1-A) of the Constitution of India: Limits the number of Ministers in a State’s Council of Ministers.
• 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.
• 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.
• Entry 39 of List II of the Seventh Schedule: Relates to the powers, privileges, and immunities of the Legislative Assembly and its members and committees.
• Entry 40 of List II of the Seventh Schedule: Relates to the salaries and allowances of Ministers for the State.
• Section 6 of the General Clauses Act, 1897: Deals with the effect of repeals.
• Article 142 of the Constitution of India: Enables the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
• Manipur General Clauses Act, 1966: Made the provisions of the General Clauses Act, 1897 applicable to the statutes of the Manipur Legislature.

[TABLE] of Authorities Considered:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Bimolangshu Roy v. State of Assam & Anr. (2018) 14 SCC 408* – The Court upheld this judgment, stating it was correctly decided and that it was the correct precedent for determining the legislative competence in this case.
• Ujagar Prints & Ors. (II) v. Union of India & Ors. (1989) 3 SCC 488* – The Court distinguished this case, stating that while a State can rely on multiple entries, the specific context of legislative competence in this case was different.
• Kay v. Goodwin (1830) 6 Bing. 576* – The Court used this case to explain the effect of repealing a statute, which is to obliterate it as if it had never existed.
• State of U.P. & Ors. v. Hirendra Pal Singh & Ors. (2011) 5 SCC 305 – The Court used this case to emphasize that when an Act is repealed, it is considered as if it never existed, except for specific purposes under Section 6 of the General Clauses Act, 1897.
• Gokaraju Rangaraju v. State of Andhra Pradesh (1981) 3 SCC 132 – The Court acknowledged this case in support of the de facto doctrine, but did not ultimately rely on it to validate the saving clause.
• State of Punjab v. Harnek Singh (2002) 3 SCC 481 – The Court cited this case to support the applicability of the principles of the General Clauses Act to state statutes.
• Election Commission of India & Anr. v. Dr. Subramaniam Swamy & Anr. (1996) 4 SCC 104 – The Court acknowledged this case in support of the de facto doctrine, but did not ultimately rely on it to validate the saving clause.
• Norton v. Shelby County 118 US 425 (1886) – The Court used this case to emphasize that an unconstitutional act is not law and confers no rights or duties.
• Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 613 – The Court used this case to emphasize that a law opposed to fundamental law 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 lack of legislative power.
• Keshavan Madhava Menon v. State of Bombay 1951 SCR 228 – The Court used this case to highlight the distinction between the declaration of a statute as unconstitutional by a court and the repeal of a statute by the Legislature.
• I.C. Golak Nath & Ors. v. State of Punjab & Anr. (1967) 2 SCR 762 – The Court cited this case for the doctrine of prospective overruling, but did not apply it in this instance.
• India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors. (1990) 1 SCC 12 – The Court used this case to show how the Court can mold relief.
• Orissa Cement Ltd. v. State of Orissa & Ors. 1991 Supp (1) SCC 430 – The Court cited this case for the refusal of the Court to give directions for refund of amounts collected till the date of declaration of unconstitutionality.
• Indra Sawhney & Ors. v. Union of India & Ors. 1992 Supp (3) SCC 217 – The Court cited this case for the overruling of an earlier judgment and the direction to make the decision operative from a future date.
• General Manager, Southern Railway v. Rangachari (1962) 2 SCR 586 – The Court cited this case as the earlier judgment that was overruled in Indra Sawhney.
• Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997) 5 SCC 201 – The Court cited this case for the power of the Court under Article 142 to do complete justice.

Decision

The Supreme Court upheld the Manipur State Legislature’s competence to repeal the 2012 Act through the Repealing Act, 2018. However, the Court struck down the saving clause in the Repealing Act, 2018. The Court held that the saving clause was invalid as the Manipur Legislature recognized the 2012 Act as unconstitutional and therefore did not have the competence to introduce a saving clause that would infuse life into a nullity. The Court also held that the decision in Bimolangshu Roy was correct and did not require reconsideration.

The Court, in exercise of its powers under Article 142 of the Constitution, saved the acts, deeds, and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act till the date of discontinuation of their appointments. This was done to prevent significant disruption and confusion in the conduct of public business.

Flowchart

Key Takeaways

This judgment reinforces several key legal principles:

• Legislative Competence: A State Legislature can only enact laws on matters within its legislative competence as defined by the Constitution and the Seventh Schedule.
• Effect of Repeal: The repeal of a law generally obliterates it as if it never existed, unless specific provisions are made to the contrary.
• Saving Clauses: A saving clause in a repealing act cannot validate actions taken under an unconstitutional law.
• De Facto Doctrine: The de facto doctrine can be applied to save the actions of public officials who held office under an invalid law, but it does not validate the law itself.
• Article 142: The Supreme Court can exercise its powers under Article 142 of the Constitution to do complete justice and address the consequences of its decisions.
• Precedent: The judgment in Bimolangshu Roy was upheld, reinforcing the principle that State Legislatures cannot create new offices that are not provided for in the Constitution.
• No Infusion of Life into a Nullity: The Manipur Legislature, having recognized the 2012 Act as unconstitutional, could not introduce a saving clause that would infuse life into a nullity.