Legislature Cannot Protect Actions Taken Under An Unconstitutional Law By Enacting A Saving Clause: Supreme Court

The Supreme Court on Tuesday observed that legislature cannot infuse life into a legislation, which it itself recognised as unconstitutional, by enacting a saving clause. The bench of Justices LN Rao, BR Gavai and BV Nagarathna was considering special leave petitions challenging the Manipur High Court's order of striking down the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 ("Act, 2012) and the Manipur Parliamentary Secretary (Appointment, Salary And Allowances and Miscellaneous Provisions) Repealing Act, 2018 ("Repealing Act, 2018") as unconstitutional.While striking down the saving clause the bench in The State of Manipur & Ors. v. Surjakumar Okram & Ors. observed, "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."The Court noted that the Manipur assembly passed the Repeal Act taking note of the fact that the similar law passed by Assam was declared unconstitutional. Therefore, the legislature itself recognized the unconstitutionality of the 2012 Act. In this background, the legislature could not have introduced a saving clause to protect the actions taken under the 2012 Act, which it itself recognized as unconstitutional.Background 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 Top Court on July 26, 2017 in Bimolangshu Roy (Dead) through Legal representatives vs. State of Assam and Another (2018) 14 SCC 408 (Bimolangshu Roy's case) had declared a similar law passed by the Assam Assembly - The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004- as unconstitutional.Taking note to that judgment in the Assam case, the State of Manipur had 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 the repeal could not affect 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; and safeguarded the right, privilege or obligation incurred under the repealed Act.The Manipur High Court on September 17, 2020 in light of the Top Court's judgment in Bimolangshu Roy's case had declared the Act, 2012 and Repealing Act, 2018 as invalid and unconstitutional.The High Court had observed that the State of Manipur did not 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," the High Court had further observed.Submission Of Counsels Appearing for the appellants, Senior Advocate Rajeev Dhavan submitted that declaration of the Assam Act, 2004 as unconstitutional did not per se render the 2012 Act invalid. He argued that Bimolangshu Roy's case 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. Senior Counsel further argued that 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. He also argued that the Repealing Act, 2018 should not be disturbed in view of the express...

Legislature Cannot Protect Actions Taken Under An Unconstitutional Law By Enacting A Saving Clause: Supreme Court

Shruti Kakkar

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