2022 (2) TMI 1253 - SC - Indian Laws

Constitutional Validity of Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 - whether Legislature of Assam lacked competence to enact the Assam Act, 2004 or not? - whether Manipur Legislature lacked competence to promulgateManipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012, or not - HELD THAT - This Court in Bimolangshu Roy 2017 (7) TMI 1260 - SUPREME COURT 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 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 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 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. The 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 - 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 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. Validity of the saving Clause in the Repealing Act, 2018 - HELD THAT - 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 ab initio - In Behram Khurshid Pesikaka v. State of Bombay 1954 (9) TMI 46 - SUPREME COURT , 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. 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. 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. 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. Appeal disposed off.

Summary

Issues Involved:
1. Legislative competence of the Manipur Legislature to enact the 2012 Act.
2. Validity of the Repealing Act, 2018.
3. Validity of the saving clause in the Repealing Act, 2018.
4. Legal consequences of actions taken under the 2012 Act.

Detailed Analysis:

1. Legislative Competence of the Manipur Legislature to Enact the 2012 Act:
The primary issue was whether the Manipur Legislature had the competence to enact the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 ("2012 Act"). The appellants argued that the 2012 Act was valid until declared unconstitutional and that the High Court erred in declaring it unconstitutional post its repeal. The Supreme Court referred to its earlier judgment in Bimolangshu Roy v. State of Assam, which struck down the Assam Act, 2004, a statute similar to the 2012 Act, due to lack of legislative competence. The Court concluded that the Manipur Legislature lacked the competence to enact the 2012 Act, aligning with the principles established in Bimolangshu Roy.

2. Validity of the Repealing Act, 2018:
The Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 ("Repealing Act, 2018") was enacted to repeal the 2012 Act in light of the Bimolangshu Roy judgment. The appellants contended that the High Court erred in declaring the 2012 Act unconstitutional after its repeal. The Supreme Court agreed, stating that the 2012 Act ceased to exist post-repeal and should not have been declared unconstitutional by the High Court. The Court emphasized that a statute remains valid until declared unconstitutional or repealed.

3. Validity of the Saving Clause in the Repealing Act, 2018:
The saving clause in the Repealing Act, 2018 aimed to preserve actions taken under the 2012 Act. The Supreme Court scrutinized whether the Manipur Legislature had the competence to introduce such a clause. The Court noted that the 2012 Act and the Assam Act, 2004 were in pari materia and that the Manipur Legislature acknowledged the unconstitutionality of the 2012 Act by enacting the Repealing Act. The Court held that the Manipur Legislature could not validate a statute recognized as unconstitutional by including a saving clause in the Repealing Act. Thus, the saving clause was struck down.

4. Legal Consequences of Actions Taken Under the 2012 Act:
The Court addressed the implications of actions taken by Parliamentary Secretaries under the 2012 Act. It noted that nullifying these actions would cause significant disruption and confusion. Invoking its powers under Article 142 of the Constitution, the Court decided to save the acts, deeds, and decisions undertaken by the Parliamentary Secretaries during their tenure under the 2012 Act. This measure was taken to prevent harm to third parties and ensure continuity in public administration.

Conclusion:
The Supreme Court held that the Manipur Legislature was competent to enact the Repealing Act, 2018 but not the saving clause within it. The saving clause was struck down, but the Court exercised its powers to preserve the validity of actions taken by Parliamentary Secretaries under the 2012 Act to avoid public inconvenience and legal confusion. The appeals were disposed of accordingly.