State of Manipur vs Surjakumar Okram

State of Manipur vs Surjakumar Okram - Supreme Court Case 2022 - 

Reportable

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. 823-827 of 2022

(Arising out of SLP (C) Nos.2001-2005 of 2021)

The State of Manipur & Ors. .... Appellant (s)

Versus

Surjakumar Okram & Ors. …. Respondent (s)

W I T H

Civil Appeal Nos. 828-832 of 2022

(Arising out of SLP (C) Nos.2386-2390 of 2021)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.

1. The Manipur Parliamentary Secretary (Appointment,

Salary and Allowances and Miscellaneous Provisions) Act,

2012 (Manipur Act No. 10 of 2012) (hereinafter referred to

as the “2012 Act”) was enacted by the Legislature of

Manipur to provide for appointment, salary and allowances

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of Parliamentary Secretaries in Manipur. Section 3 read

with Section 4 thereof, enabled the Chief Minister to appoint

a member of the Manipur Legislative Assembly as a

Parliamentary Secretary, who shall have the rank and

status of a Minister of State. Section 7 of the 2012 Act

stipulated that a Parliamentary Secretary shall be entitled

to such salary and allowances as are admissible to a

Minister of State under the Manipur Parliamentary Secretary

(Salary and Allowances) Act, 1972. Appellants in Civil

Appeals arising out of SLP (C) Nos. 2386-2390 of 2021 were

appointed as Parliamentary Secretaries in 2017.

2. The Assam Parliamentary Secretaries (Appointment,

Salaries, Allowances and Miscellaneous Provisions) Act,

2004 (hereinafter referred to as the “Assam Act, 2004”),

which had provisions similar to that of the 2012 Act, was

the subject matter of challenge before the Gauhati High

Court. The writ petition filed before the Gauhati High Court

was transferred to this Court. On 26.07.2017, this Court in

Bimolangshu Roy v. State of Assam & Anr.

1

 declared

1 (2018) 14 SCC 408

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that the Legislature of Assam lacked competence to enact

the Assam Act, 2004. The Manipur Assembly passed the

Manipur Parliamentary Secretary (Appointment, Salary and

Allowances and Miscellaneous Provisions) Repealing Act,

2018 (hereinafter referred to as the “Repealing Act,

2018”) which was notified on 04.04.2018. It was mentioned

in preamble of the Repealing Act, 2018 that the 2012 Act

was being repealed in light of the judgment of this Court in

Bimolangshu Roy (supra). The Repealing Act, 2018

contained a saving provision to the following effect:

“2. (1) XXX XXX XXX

(2) Notwithstanding the repeal of the Manipur

Parliamentary Secretary (Appointment, Salary and

Allowances and Miscellaneous Provisions) Act, 2012, the

repeal shall not affect –

(a) 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; or

(b) any right, privilege or obligation incurred under the

repealed Act.”

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3. In the meanwhile, the Appellants in Civil Appeals

arising out of SLP (C) Nos. 2386-2390 of 2021 resigned from

the post of Parliamentary Secretaries. It is also relevant to

mention that PIL Nos. 7, 9 and 10 of 2017 were filed in the

High Court of Manipur challenging the validity of the 2012

Act. The validity of the Repealing Act, 2018 was assailed in

the High Court of Manipur by way of Writ Petition (C) No.

317 of 2018 and PIL No. 16 of 2018. The PILs and the Writ

Petition (C) No. 317 of 2018 were taken up together by the

High Court of Manipur and disposed of by judgment dated

17.09.2020. The 2012 Act and the Repealing Act, 2018 were

declared as unconstitutional by the High Court. Aggrieved

by the said judgement, the State of Manipur and the

members of the Manipur Legislative Assembly who were

appointed as Parliamentary Secretaries have filed the

above appeals.

4. The writ petitioners contended before the High Court

of Manipur that the Manipur Legislature lacked competence

to promulgate the 2012 Act. It was further submitted before

the High Court that the saving clause in the Repealing Act,

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2018 is a devious method to justify the illegal appointments

made by virtue of the 2012 Act. 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.

5. We have heard Dr. Rajeev Dhawan, learned Senior

Counsel appearing for the Appellants in Civil Appeals arising

out of SLP (C) Nos. 2386-2390 of 2021, learned Additional

Advocate General appearing for the State of Manipur in Civil

Appeals arising out of SLP (C) Nos. 2001-2005 of 2021 and

Mr. Narender Hooda, learned Senior Advocate appearing for

the Respondents in Civil Appeals arising out of SLP (C) Nos.

2001-2005 of 2021.

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6. Dr. Dhawan submitted that the Appellants resigned as

Parliamentary Secretaries on 04.08.2017, while remaining

members of the Assembly, due to which PIL Nos. 7, 9 and

10 of 2017 filed before the High Court became infructuous.

The declaration of the Assam Act, 2004 as unconstitutional

does not per se render the 2012 Act invalid. He argued 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. In any

event, according to Dr. Dhawan, 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. Relying on judgments of this

Court, Dr. Dhawan submitted 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

(hereinafter referred to as the “General Clauses Act”).

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7. Mr. Hooda, learned Senior Counsel, on the other hand,

countered the submissions made on behalf of the

Appellants by submitting that there was no error committed

by this Court in deciding Bimolangshu Roy (supra). The

State of Manipur, accepting and following the judgment in

Bimolangshu Roy (supra), repealed the 2012 Act.

Appointments made to the post of Parliamentary

Secretaries were discontinued after the judgment in

Bimolangshu Roy (supra). Applying the principles of the

said judgment to the 2012 Act, the saving clause could not

have been inserted in the Repealing Act, 2018, especially

after the State Government has accepted the judgment.

The saving clause is only to justify the illegal appointments

that were made by virtue of the 2012 Act.

8. Before proceeding to deal with the submissions made

on either side, it is necessary to take note of the relevant

provisions in the Constitution of India that would arise for

consideration in this case. Article 164(1) of the Constitution

of India provides that the Chief Minister shall be appointed

by the Governor and the other Ministers shall be appointed

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by the Governor on the advice of the Chief Minister, and

that the Ministers shall hold office during the pleasure of

the Governor. Article 164(1-A) was inserted by the

Constitution (Ninety-first Amendment) Act, 2003. The said

Article limited the number of Ministers, including the Chief

Minister, in the Council of Ministers in a State to 15 percent

of the total members in the Legislative Assembly of the

State. Article 194(3) of the Constitution empowers the State

Legislature to make laws in respect of the powers,

privileges and immunities of a House of the Legislature and

of the members and the committees of a House of such

Legislature. Article 246 of the Constitution confers the

Legislature of a State with exclusive powers to make laws

for such State or any part thereof with respect to any of the

matters enumerated in List II of the Seventh Schedule. The

relevant entries in List II of the Seventh Schedule are as

below:

“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

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committees thereof; enforcement of attendance of

persons for giving evidence or producing documents

before committees of the Legislature of the State.

40. Salaries and allowances of Minister for the State.”

9. There does not appear to be any dispute on the factual

front. The Assam Legislature enacted the relevant statute in

2004, providing for appointment of members of the Assam

Legislative Assembly as Parliamentary Secretaries. The

Assam Act, 2004 and the 2012 Act are undoubtedly in pari

materia. This Court in Bimolangshu Roy (supra) struck

down the Assam Act, 2004 as unconstitutional. The

appointments of Parliamentary Secretaries were

discontinued by the Chief Minister of Manipur around the

time the judgment in Bimolangshu Roy was delivered.

Thereafter, the Repealing Act, 2018 was enacted and

notified with effect from 04.04.2018. The 2012 Act and the

Repealing Act, 2018 were challenged before the High Court

of Manipur.

10. The first submission of Dr. Rajeev Dhawan is that

Bimolangshu Roy (supra) was wrongly decided and needs

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reconsideration. The following issues arose for

consideration before this Court in the matter of

Bimolangshu Roy (supra):

“I. Whether the Legislature of Assam is competent to

make the Act?

II. Whether the creation of the office of Parliamentary

Secretary would amount to a violation of the

constitutionally prescribed upper limit of 15 % on the

total number of the Council of Ministers?

III. Whether the concept of a “Responsible

Government” envisaged under various provisions of the

Constitution is in any way violated by the impugned

enactment and therefore unconstitutional as being

violative of the basic structure of the Constitution.

IV. Whether the theory of basic structure could be

invoked at all to invalidate an enactment which is

otherwise not inconsistent with the text of the

Constitution.”

11. This Court in Bimolangshu Roy (supra) observed that

Article 194(3) of the Constitution deals with powers,

privileges and immunities of the House of the Legislature

and its members but does not authorize the State

Legislature to create offices such as those of Parliamentary

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Secretaries. It was noted that in some cases, the power to

legislate was conferred by certain Articles in the

Constitution on matters specified therein without

corresponding entries in the lists in the Seventh Schedule,

such as in the case of Article 3 under which the Parliament

is competent to create or extinguish a State but there is no

corresponding entry in List I of the Seventh Schedule. In

certain other cases, corresponding entries in the lists of the

Seventh Schedule are found with reference to the power to

legislate as expressly conferred in the text of some Articles

of the Constitution, as is seen with entries 38, 39 and 40 of

List II. With respect to the latter category, this Court held

that where the power to legislate is sourced to a dedicated

Article in the Constitution, legislative authority with respect

to a closely associated or the same topic as contained in

the Article cannot be sought from the corresponding entry

in the list read with Article 246. To substantiate, it was

further elaborated that even if entries 38, 39 and 40 in List

II were not there in the Seventh Schedule, the State

Legislature would still be competent to make laws on topics

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indicated in those three entries because of the authority

contained in Articles 164(5), 186, 194, 195 etc. Therefore,

any interpretation on legislative power sought to be given

to these entries which is not contemplated by the

corresponding Article, was considered to be repugnant to

the scheme of the Constitution, as the Article expressly

conferring legislative authority is the source of legislating

power. Noticing that the text of both Articles 194(3) and

the relevant portion of entry 39 are substantially similar,

this Court was of the firm opinion that creation of new

offices by legislation would be outside the scope of Article

194(3). The powers, privileges and immunities

contemplated by Article 194(3) and entry 39 are those of

the legislators qua legislators, as concluded by this Court in

Bimolangshu Roy (supra). In view of the said finding, the

Court did not find it necessary to examine the other issues

that had been identified.

12. 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

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Bimolangshu Roy (supra). Placing reliance on the

judgment of this Court in Ujagar Prints & Ors. (II) v.

Union of India & Ors.

2

, he argued that this Court

committed an error in striking down the Assam Act, 2004,

which was in the nature of a composite legislation drawing

upon several entries. As this Court examined the legislative

competence only with reference to Article 194(3) of the

Constitution of India and entry 39 of List II, the judgment is

liable to be declared per incuriam. Arguing to the contrary,

Mr. Hooda submitted that entry 40 of List II relates to

salaries and allowances of Ministers for the State and

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 of the members

and the committees thereof corresponds to Article 194(3) of

the Constitution of India. According to Mr. Hooda, 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 of its

2 (1989) 3 SCC 488

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members and communities, but this authority does not

extend to creation of new offices.

13. In Ujagar Prints (II) (supra), this Court held as

follows:

“53. If a legislation purporting to be under a particular

legislative entry is assailed for lack of legislative

competence, the State can seek to support it on the

basis of any other entry within the legislative

competence of the legislature. It is not necessary for

the State to show that the legislature, in enacting the

law, consciously applied its mind to the source of its

own competence. Competence to legislate flows from

Articles 245, 246, and the other articles following, in

Part XI of the Constitution. In defending the validity of a

law questioned on ground of legislative incompetence,

the State can always show that the law was

supportable under any other entry within the

competence of the legislature. Indeed in supporting a

legislation sustenance could be drawn and had from a

number of entries. The legislation could be a composite

legislation drawing upon several entries. Such a

“ragbag” legislation is particularly familiar in taxation.”

Article 194(3) enables the Legislature to make law relating

to powers, privileges and immunities of its members. This

Court in Bimolangshu Roy categorically held that State

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Legislatures are competent to make law in respect of

powers, privileges and immunities of a House of the

Legislature and its members even in the absence of

reference to entries 38, 39 and 40 of List II. The stand of

the State of Assam before this Court in Bimolangshu Roy

(supra) was that the Legislature had the competence to

make the law in view of entry 39, which has to be given the

broadest possible interpretation. In its affidavit, the State

of Assam contended that the legislative entry should not be

read in a narrow or pedantic sense but must be given its

fullest meaning and widest amplitude. It was further stated

that the making of law providing for creation of the post of

Parliamentary Secretary was within the competence of the

State Legislature as a Parliamentary Secretary is a member

of the Legislative Assembly. It is no doubt true that this

Court in Ujagar Prints (II) (supra) held that the State

Government can always resort to more than one entry to

defend the legislation, when it is challenged on the ground

of legislative competence. However, it is to be noted that

the State of Assam did not seek to take the support of any

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other entry, apart from entry 39, to substantiate its

legislative competence before this Court in Bimolangshu

Roy (supra).

14. 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

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that the judgment of this Court in Bimolangshu Roy

(supra) needs reconsideration.

15. After the judgment of this Court in Bimolangshu Roy

(supra), the Parliamentary Secretaries resigned and the

Repealing Act, 2018 was notified on 04.04.2018. The

contention of the Appellants is that PIL Nos. 7, 9 and 10

became infructuous after the 2012 Act was repealed and

therefore, the High Court committed an error in declaring

the 2012 Act as unconstitutional.

In Kay v. Goodwin

3

, Tindal, C.J. stated:

“I take the effect of repealing a statute to be to

obliterate it as completely from the records of

Parliament as if it had never been passed; and it must

be considered as a law that never existed except for

the purpose of those actions which were commenced,

prosecuted and concluded whilst it was an existing law.”

In the case of State of U.P. & Ors. v. Hirendra Pal Singh

& Ors.

4

, this Court was of the following opinion:

“22. It is a settled legal proposition that whenever an

Act is repealed, it must be considered as if it had never

existed. The object of repeal is to obliterate the Act

3 (1830) 6 Bing. 576, at p. 582

4 (2011) 5 SCC 305

17 | P a g e

from the statutory books, except for certain purposes

as provided under Section 6 of the General Clauses Act,

1897. Repeal is not a matter of mere form but is of

substance. Therefore, on repeal, the earlier provisions

stand obliterated/abrogated/wiped out wholly...”

16. The aforesaid judgments leave no room for doubt that

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. 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 High Court has committed an error in

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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).

17. The crucial point that arises next for our consideration

is the validity of the saving clause in the Repealing Act,

2018. It was submitted by the Appellants that any act done

or decision taken during the currency of the Repealing Act,

2018 required to be saved to avoid any confusion. Dr.

Dhawan submitted that decisions made by persons

appointed under the 2012 Act can be saved by virtue of (a)

the de facto doctrine; (b) the express saving provision of

the Repealing Act, 2018; and (c) Section 6 of the General

Clauses Act. He placed reliance on the judgments of this

Court in Gokaraju Rangaraju v. State of Andhra

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Pradesh

5

, State of Punjab v. Harnek Singh

6 and

Election Commission of India & Anr. v. Dr.

Subramaniam Swamy & Anr.

7

 in support of his

submissions.

18. Where a statute is adjudged to be unconstitutional, it

is as if it had never been. Rights cannot be built up under it;

contracts which depend upon it for their consideration are

void; it constitutes a protection to no one who has acted

under it and no one can be punished for having refused

obedience to it before the decision was made8

. Field, J. in

Norton v. Shelby County

9

, observed that “an

unconstitutional act is not law, it confers no rights, it

imposes no duties, it affords no protection, it creates no

office; it is, in legal contemplation, as inoperative as though

it had never been passed”.

19. An unconstitutional law, be it either due to lack of

legislative competence or in violation of fundamental rights

guaranteed under Part III of the Constitution of India, is void

5 (1981) 3 SCC 132

6 (2002) 3 SCC 481

7 (1996) 4 SCC 104

8 Cooley on Constitutional Limitations, Volume I, page 382

9 118 US 425 (1886)

20 | P a g e

ab initio. In Behram Khurshid Pesikaka v. State of

Bombay

10

, it was held by a constitution bench of this Court

that the law-making power of the State is restricted by a

written fundamental law and any law enacted and opposed

to the fundamental law is in excess of the legislative

authority and is thus, a nullity. A declaration of

unconstitutionality brought about by lack of legislative

power as well as a declaration of unconstitutionality

brought about by reason of abridgement of fundamental

rights goes to the root of the power itself, making the law

void in its inception. This Court in Deep Chand v. State

of Uttar Pradesh & Ors.

11

 summarised the following

propositions:

“(a) Whether the Constitution affirmatively confers

power on the legislature to make laws subject-wise or

negatively prohibits it from infringing any fundamental

right, they represent only two aspects of want of

legislative power;

(b) The Constitution in express terms makes the power

of a legislature to make laws in regard to the entries in

the Lists of the Seventh Schedule subject to the other

10 (1955) 1 SCR 613

11 1959 Supp (2) SCR 8

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provisions of the Constitution and thereby

circumscribes or reduces the said power by the

limitations laid down in Part III of the Constitution;

(c) It follows from the premises that a law made in

derogation or in excess of that power would be ab initio

void…”

20. The power of a legislative body to repeal a law is coextensive with its power to enact a law. The effect of

repealing of a statute is to obliterate it completely from the

records of Parliament.12 While repealing a statute, the

Legislature is competent to introduce a clause, saving any

right, privilege, liability, penalty, act or deed duly done and

any investigation, legal proceeding or remedy arising

therefrom, under the repealed statute. There is a

distinction between declaration of a statute as

unconstitutional by a Court of law and the repeal of a

statute by the Legislature. On declaration of a statute as

unconstitutional, it becomes void ab initio. Saving past

transactions are within the exclusive domain of the Court.

On the other hand, though the consequence of repeal is

also obliteration of the statute with retrospective effect on

12 Kay v. Goodwin (supra)

22 | P a g e

past transactions, the Legislature is empowered to

introduce a saving clause in the repealing act.13 Even in

cases where a saving clause is not made, the provisions of

the General Clauses Act are applicable to central statutes

and the principles of the General Clauses Act can be made

applicable to statutes made by the State Legislatures as

well (See: State of Punjab v. Harnek Singh (supra)). It is

relevant to state at this point that the Manipur Legislature

enacted the Manipur General Clauses Act, 1966, which

came into force on 30.03.1966, by which the provisions of

the General Clauses Act, 1897 were made applicable to the

statutes of the Manipur Legislature.

21. Elaborating on the point relating to the exercise of

powers by the Court to save past transactions, it is

necessary to refer to the law laid down by this Court.

Following American jurisprudence, the doctrine of

prospective overruling was applied in I.C. Golak Nath &

Ors. v. State of Punjab & Anr.

14

. In Golak Nath (supra),

this Court held that the power of the amendment under

13 Keshavan Madhava Menon v. State of Bombay 1951 SCR 228

14 (1967) 2 SCR 762

23 | P a g e

Article 368 of the Constitution of India did not allow the

Parliament to abridge the fundamental rights enshrined in

part III of the Constitution. Realising that there would be

confusion and chaos if the judgment is given retrospective

effect, this Court evolved a “reasonable principle to meet

this extraordinary situation”. The following propositions

were laid down by this Court in Golak Nath (supra):

“(1) The doctrine of prospective overruling can be

invoked only in matters arising under our Constitution;

(2) it can be applied only by the highest court of the

country, i.e., the Supreme Court as it has the

constitutional jurisdiction to declare law binding on all

the courts in India;

(3) the scope of the retroactive operation of the law

declared by the Supreme Court superseding its earlier

decisions is left to its discretion to be moulded in

accordance with the justice of the cause or matter

before it.”

Though Golak Nath (supra) applied the doctrine of

prospective overruling in the context of earlier decisions of

this Court on the same issues which had otherwise become

final, the doctrine of prospective overruling has been

24 | P a g e

applied by this Court even where the issue was being

decided by the Court for the first time.

22. While laying down the principles of prospective

overruling, this Court in Golak Nath (supra) dealt with the

scope of Article 142 of the Constitution of India and held

that the said provision 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.

The conundrum in India Cement Ltd. & Ors. v. State of

Tamil Nadu & Ors.

15

 related to the levy of cess on royalty

being within the competence of the State Legislature. A

constitution bench of this Court declared the cess imposed

by the State of Tamil Nadu as ultra vires. However, this

Court observed that the State of Tamil Nadu shall not be

liable for any refund of cess already paid or collected.

Validity of levy of cess based on royalty was raised again in

Orissa Cement Ltd. v. State of Orissa & Ors.

16

. An

argument was advanced in the said case on behalf of the

States that declaration of levy as invalid need not

15 (1990) 1 SCC 12

16 1991 Supp (1) SCC 430

25 | P a g e

automatically result in a direction for refund of amounts

collected earlier. Relying upon the earlier judgments of this

Court in Golak Nath (supra) and India Cement (supra),

this Court declared the levy of cess as unconstitutional.

However, this Court refused to give any direction for refund

of any amounts collected till the date on which the levy in

question has been declared unconstitutional. In Indra

Sawhney & Ors. v. Union of India & Ors.

17

, this Court

overruled its earlier judgment in General Manager,

Southern Railway v. Rangachari

18

 and held that

reservation in promotions cannot be provided under Article

16 of the Constitution of India but directed the decision to

be operative from five years from the date of the judgment.

The points raised by the appellants in Ashok Kumar

Gupta & Anr. v. State of U.P. & Ors.

19

, inter alia, were:

(a) that the reservation in promotion having been declared

unconstitutional in Indra Sawhney (supra) was void ab

initio and vitiated the promotion of the respondents and

therefore, operation of the unconstitutional direction could

17 1992 Supp (3) SCC 217

18 (1962) 2 SCR 586

19 (1997) 5 SCC 201

26 | P a g e

not be postponed by prospective overruling of the ratio of

Rangachari (supra); (b) that the said prospective

overruling, even if assumed to be the majority judgment,

was violative of the fundamental rights of the

appellants/petitioners under Articles 14 and 16 and

therefore, the power under Article 142 of the Constitution

could not be exercised to curtail fundamental rights. The

said points were answered by this Court in the following

terms:

“60. It would be seen that there is no limitation under

Article 142(1) on the exercise of the power by this

Court. The necessity to exercise the power is to do

“complete justice in the cause or matter”. The

inconsistency with statute law made by Parliament

arises when this Court exercises power under Article

142(2) for the matters enumerated therein.

Inconsistency in express statutory provisions of

substantive law would mean and be understood as

some express prohibition contained in any substantive

statutory law. The power under Article 142 is a

constituent power transcendental to statutory

prohibition. Before exercise of the power under Article

142(2), the Court would take that prohibition

(sic provision) into consideration before taking steps

under Article 142(2) and we find no limiting words to

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mould the relief or when this Court takes appropriate

decision to mete out justice or to remove injustice. The

phrase “complete justice” engrafted in Article 142(1) is

the word of width couched with elasticity to meet

myriad situations created by human ingenuity or cause

or result of operation of statute law or law declared

under Articles 32, 136 and 141 of the Constitution and

cannot be cribbed or cabined within any limitations or

phraseology. Each case needs examination in the light

of its backdrop and the indelible effect of the decision.

In the ultimate analysis, it is for this Court to exercise

its power to do complete justice or prevent injustice

arising from the exigencies of the cause or matter

before it. The question of lack of jurisdiction or nullity of

the order of this Court does not arise. As held earlier,

the power under Article 142 is a constituent power

within the jurisdiction of this Court. So, the question of

a law being void ab initio or nullity or voidable does not

arise.

61. Admittedly, the Constitution has entrusted this

salutary duty to this Court with power to remove

injustice or to do complete justice in any cause or

matter before this Court. The Rangachari [(1962) 2 SCR

586 : AIR 1962 SC 36] ratio was in operation for well

over three decades under which reservation in

promotions were given to several persons in several

services, grades or cadres of the Union of India or the

respective State Governments. This Court, with a view

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to see that there would not be any hiatus in the

operation of that law and, as held earlier, to bring about

smooth transition of the operation of law of reservation

in promotions, by a judicial creativity extended the

principle of prospective overruling applied in Golak

Nath case [(1967) 2 SCR 762 : AIR 1967 SC 1643] in the

case of statutory law and of the judicial precedent

in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S)

1184 : (1993) 25 ATC 704] and further elongated the

principle postponing the operation of the judgment

in Mandal case [1992 Supp (3) SCC 217 : 1992 SCC

(L&S) Supp 1 : (1992) 22 ATC 385] for five years from

the date of the judgment. This judicial creativity is not

anathema to constitutional principle but an accepted

doctrine as an extended facet of stare decisis. It would

not be labelled as proviso to Article 16(4) as contended

for.”

23. The principles that can be deduced from the law laid

down by this Court, as referred to above, are:

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.

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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.

Therefore, 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.

24. The 2012 Act was not subject-matter of consideration

by this Court in Bimolangshu Roy (supra). In the said

judgment, this Court was concerned only about the validity

of the Assam Act, 2004. It is well within the competence of

the Manipur Legislature to repeal the 2012 Act, which had

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not been adjudged as unconstitutional by any Court till the

Repealing Act, 2018 was enacted. Further, there can be no

doubt that the Legislature has the power to include a saving

provision while repealing a statute. However, we have

been called upon to assess whether, in the peculiar facts of

the present case, the Manipur Legislature had the

competence to introduce a saving clause in the Repealing

Act, 2018. The undisputed facts are that the 2012 Act and

the Assam Act, 2004 are in pari materia. The Assam Act,

2004 was declared as unconstitutional in Bimolangshu

Roy (supra). Public interest litigations were filed in the

Manipur High Court challenging the vires of the 2012 Act.

The Manipur Legislature decided to repeal the 2012 Act “in

light of the judgment of this Court in” Bimolangshu Roy

(supra) and “in the process of being a responsible

Government which upholds the Rule of Law”, as have been

categorically stated in the preamble of the Repealing Act,

2018. In the normal course of events, the public interest

litigations challenging the vires of the 2012 Act would have

been allowed and the 2012 Act would have been declared

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as unconstitutional, relying on Bimolangshu Roy (supra).

However, before these matters were taken up by the High

Court, the Manipur Legislature, taking cognizance of the

ramifications of Bimolangshu Roy (supra) and

acknowledging the inferable unconstitutionality of the 2012

Act, has enacted the Repealing Act, 2018. 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.

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25. 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.

26. For the foregoing reasons, we hold that the Manipur

Legislature was competent to enact the Repealing Act,

2018. The saving clause in the Repealing Act, 2018 is

struck down. However, this shall not affect the acts, deeds

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and decisions duly undertaken by the Parliamentary

Secretaries under the 2012 Act till discontinuation of their

appointments, which are hereby saved.

27. The Civil Appeals are disposed of accordingly.

……..........................................J.

 [ L. NAGESWARA RAO]

 ……..........................................J.

 [B.R. GAVAI]

……..........................................J.

 [B.V. NAGARATHNA]

New Delhi,

February 01, 2022.

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Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले