The Supreme Court has observed that Legislature cannot use 'saving clause' to infuse life into a legislation that it itself rendered as unconstitutional.

The bench comprising of Justice LN Rao, Justice BR Gavai and Justice BV Nagarathna was considering petitions challenging the Manipur High Court's order of striking down the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 and the Manipur Parliamentary Secretary (Appointment, Salary And Allowances and Miscellaneous Provisions) Repealing Act, 2018 as unconstitutional, 

"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 Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 enabled the Chief Minister to appoint Members of Manipur Legislative Assembly as Parliamentary Secretary with the status and rank of a Minister of a State. As per the Act, the Parliamentary Secretary was to perform his duties and function as may be specified in the Official Gazette by the Chief Minister.

The Supreme Court in had discarded a similar law passed by the Assam Assembly. In  2017, in case of Bimolangshu Roy (Dead) Through LRs Vs. State of Assam & Another, 2017 Latest Caselaw 508 SC, The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004- was decalred as unconstitutional.

Taking note of the above ruling, Manipur passed the Manipur Parliamentary Secretary (Appointment, Salary And Allowances and Miscellaneous Provisions) Repealing Act, 2018. The Act provided for a saving clause under Section 2(2) as per which the repeal couldn't affect the earlier activities undertaken under the repealed Act or anything duly done in pursuance of the Act so repealed including anything done in official discharge of their duties by the Parliamentary Secretaries; and safeguarded the right, privilege or obligation incurred under the repealed Act.

The Manipur High Court had on Sept 17th, 2020 in view of the Supreme Court judgment declared the Act, 2012 and Repealing Act, 2018 as invalid and unconstitutional.

In the Ruling, the Manipur High Court had observed that the State didn't have the power to repeal the Act, 2012 because it lacked the legislative competence to enact the same.

"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," 

Supreme Court Observation

On submission of Dr. Rajeev Dhawan is that Bimolangshu Roy was wrongly decided and needed reconsideration, the Court observed:

" 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 Secretaries. It was noted that in some cases, the power to legislate was conferred by certain Articles in the Constitution on matters speci4ed 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 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 are substantially similar, this Court was of the firm opinion that creation of new offices by Legislation would be outside the scope of Articles 194(3). The powers, privileges and immunities contemplated by Article 194(3) and entry are those of the legislators qua legislators, as concluded by this Court in Bimolangshu Roy (supra). In view of the said ending, the Court did not and it necessary to examine the other issues that had been identified."

 Placing reliance on Ujagar Prints Vs. Union of India & Ors, 1989 Latest Caselaw 29 SC he argued that Supreme 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.

The Court noted that 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 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 a other entry, apart from entry 39, to substantiate its legislative competence before this Court in Bimolangshu Roy (supra).

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 to which the Court noted 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.

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), the Court noted.

"It is well within the competence of the Manipur Legislature to repeal the 2012 Act, which had 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"
"the Manipur Legislature, taking cognizance of the rami4cations 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."

The Court held 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 a8ect the acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act till discontinuation of their appointments, which are hereby saved.

Read Judgement Here:

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Sheetal Joon