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TMI Blog2022 (2) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... esponding 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording 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 ). 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 ille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 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 Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered in Bimolangshu Roy (supra). Placing reliance on the judgment of this Court in Ujagar Prints and Ors. (II) v. Union of India and Ors. (1989) 3 SCC 488, 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 members and communities, but this authority does not extend to creation of new offices. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiate 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 that the judgment of this Court in Bimolangshu Roy (supra) needs reconsideration. 15. After the judgment of this Court in Bimolangsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Pradesh (1981) 3 SCC 132, State of Punjab v. Harnek Singh (2002) 3 SCC 481 and Election Commission of India and Anr. v. Dr. Subramaniam Swamy and Anr. (1996) 4 SCC 104 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 past transactions, the Legislature is empowered to introduce a saving Clause in the repealing act. Keshavan Madhava Menon v. State of Bombay 1951 SCR 228 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 and Ors. 1991 Supp (1) SCC 430. An argument was advanced in the said case on behalf of the States that declaration of levy as invalid need not 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 and Ors. v. Union of India and Ors. 1992 Supp (3) SCC 217, this Court overruled its earlier judgment in General Manager, Southern Railway v. Rangachari (1962) 2 SCR 586 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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