No question of repeal of statute, declared unconstitutional by court: SC

The Supreme Court on Tuesday said there is no question of repeal of a statute which has been declared as unconstitutional by a court.

A bench, headed by Justice L. Nageswara Rao and comprising Justices B.R. Gavai and B.V. Nagarathna, said: “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.”

The bench said the Manipur legislature was not competent to introduce a saving clause in the Repealing Act, 2018, for a 2012 Act in connection with the appointment of MLAs as Parliamentary Secretaries. “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,” it noted.

It said the 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,” it said.

In July 2017, the top court had declared that, in Bimolangshu Roy Vs State of Assam, that the state legislature lacked competence to enact the Assam Act, 2004 in connection with the appointment of Parliamentary Secretaries.

After this judgment, PILs were filed in the Manipur High Court to declare the similar 2012 Manipur law as unconstitutional. In 2018, the Manipur legislature passed a repealing law, but with a saving clause on appointments of Parliamentary Secretaries.

The bench noted that it 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.

“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,” it said.

The high court had ruled that the legislature cannot provide a saving clause in the Repealing Act, 2018 to justify acts done and rights, privileges and obligations incurred under the 2012 Act. It declared both the 2012 and 2018 Acts as unconstitutional. This order by the high court was challenged in the top court by the Manipur government and those appointed as Parliamentary Secretaries.

The top court said: “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 and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act till discontinuation of their appointments, which are hereby saved.”

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