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Supreme Court of India
The State Of Manipur vs Surjakumar Okram on 1 February, 2022Author: L. Nageswara Rao
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 823-827 of 2022
(Arising out of SLP (C) Nos.2001-2005 of 2021)
The State of Manipur & Ors. …. Appellant (s)
Versus
Surjakumar Okram & Ors. …. Respondent (s)
WITH
Civil Appeal Nos. 828-832 of 2022
(Arising out of SLP (C) Nos.2386-2390 of 2021)
JUDGMENT
L. NAGESWARA RAO, J.
Leave granted.
1. The Manipur Parliamentary Secretary (Appointment,
Salary and Allowances and Miscellaneous Provisions) Act,
2012 (Manipur Act No. 10 of 2012) (hereinafter referred to
as the “2012 Act”) was enacted by the Legislature of
Manipur to provide for appointment, salary and allowances
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of Parliamentary Secretaries in Manipur. Section 3 read
with Section 4 thereof, enabled the Chief Minister to appoint
a member of the Manipur Legislative Assembly as a
Parliamentary Secretary, who shall have the rank and
status of a Minister of State. Section 7 of the 2012 Act
stipulated that a Parliamentary Secretary shall be entitled
to such salary and allowances as are admissible to a
Minister of State under the Manipur Parliamentary Secretary
(Salary and Allowances) Act, 1972. Appellants in Civil
Appeals arising out of SLP (C) Nos. 2386-2390 of 2021 were
appointed as Parliamentary Secretaries in 2017.
2. The Assam Parliamentary Secretaries (Appointment,
Salaries, Allowances and Miscellaneous Provisions) Act,
2004 (hereinafter referred to as the “Assam Act, 2004”),
which had provisions similar to that of the 2012 Act, was
the subject matter of challenge before the Gauhati High
Court. The writ petition filed before the Gauhati High Court
was transferred to this Court. On 26.07.2017, this Court in
Bimolangshu Roy v. State of Assam & Anr.1 declared
1 (2018) 14 SCC 408
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that the Legislature of Assam lacked competence to enact
the Assam Act, 2004. The Manipur Assembly passed the
Manipur Parliamentary Secretary (Appointment, Salary and
Allowances and Miscellaneous Provisions) Repealing Act,
2018 (hereinafter referred 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was being repealed in light of the judgment of this Court in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.”
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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 Petition (C) No.
317 of 2018 and PIL No. 16 of 2018. The PILs and the Writ
Petition (C) No. 317 of 2018 were taken up together by the
High Court of Manipur and disposed of by judgment dated
17.09.2020. The 2012 Act and the Repealing Act, 2018 were
declared as unconstitutional by the High Court. Aggrieved
by the said judgement, the State of Manipur and the
members of the Manipur Legislative Assembly who were
appointed as Parliamentary Secretaries have filed the
above appeals.
4. The writ petitioners contended before the High Court
of Manipur that the Manipur Legislature lacked competence
to promulgate the 2012 Act. It was further submitted before
the High Court that the saving clause in the Repealing Act,
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2018 is a devious method to justify the illegal appointments
made by virtue of the 2012 Act. The High Court was of the
view that the power of a legislative body to repeal a law is
co-extensive with the legislative body’s competence to
enact such law. If the State Legislature lacked legislative
competence to enact the 2012 Act, the State Legislature
did not have the power to repeal the same by way of the
Repealing Act, 2018. The State Legislature could not have
provided for a saving clause in the Repealing Act, 2018 to
justify acts done and rights, privileges and obligations
incurred under the 2012 Act.
5. We have heard Dr. Rajeev Dhawan, learned Senior
Counsel appearing for the Appellants in Civil Appeals arising
out of SLP (C) Nos. 2386-2390 of 2021, learned Additional
Advocate General appearing for the State of Manipur in Civil
Appeals arising out of SLP (C) Nos. 2001-2005 of 2021 and
Mr. Narender Hooda, learned Senior Advocate appearing for
the Respondents in Civil Appeals arising out of SLP (C) Nos.
2001-2005 of 2021.
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6. Dr. Dhawan submitted that the Appellants resigned as
Parliamentary Secretaries on 04.08.2017, while remaining
members of the Assembly, due to which PIL Nos. 7, 9 and
10 of 2017 filed before the High Court became infructuous.
The declaration of the Assam Act, 2004 as unconstitutional
does not per se render the 2012 Act invalid. He argued that
Bimolangshu Roy (supra) 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. In any
event, according 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”).
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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 illegal appointments
that were made by virtue of the 2012 Act.
8. Before proceeding to deal with the submissions made
on either side, it is necessary to take note of the relevant
provisions in the Constitution of India that would arise for
consideration in this case. Article 164(1) of the Constitution
of India provides that the Chief Minister shall be appointed
by the Governor and the other Ministers shall be appointed
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by the Governor on the advice of the Chief Minister, and
that the Ministers shall hold office during the pleasure of
the Governor. Article 164(1-A) was inserted by the
Constitution (Ninety-first Amendment) Act, 2003. The said
Article limited the number of Ministers, including the Chief
Minister, in the Council of Ministers in a State to 15 percent
of the total members in the Legislative Assembly of the
State. Article 194(3) of the Constitution empowers the State
Legislature to make laws in respect of the powers,
privileges and immunities of a House of the Legislature and
of the members and the committees of a House of such
Legislature. Article 246 of the Constitution confers the
Legislature of a State with exclusive powers to make laws
for such State or any part thereof with respect to any of the
matters enumerated in List II of the Seventh Schedule. The
relevant entries in List II of the Seventh Schedule are as
below:
“39. Powers, privileges and immunities of the
Legislative Assembly and of the members and the
committees thereof, and if there is a Legislative
Council, of that Council and of the members and the
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committees thereof; enforcement of attendance of
persons for giving evidence or producing documents
before committees of the Legislature of the State.
40. Salaries and allowances of Minister for the State.”
9. There does not appear to be any dispute on the factual
front. The Assam Legislature enacted the relevant statute in
2004, providing for appointment of members of the Assam
Legislative Assembly as Parliamentary Secretaries. The
Assam Act, 2004 and the 2012 Act are undoubtedly in pari
materia. This Court in Bimolangshu Roy (supra) struck
down the Assam Act, 2004 as unconstitutional. The
appointments of Parliamentary Secretaries were
discontinued by the Chief Minister of Manipur around the
time the judgment in Bimolangshu Roy was delivered.
Thereafter, the Repealing Act, 2018 was enacted and
notified with effect from 04.04.2018. 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
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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 Legislature
and its members but does not authorize the State
Legislature to create offices such as those of Parliamentary
10 | P a g e
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
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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 powers, privileges and immunities
contemplated by Article 194(3) and entry 39 are those of
the legislators qua legislators, as concluded by this Court in
Bimolangshu Roy (supra). In view of the said finding, the
Court did not find it necessary to examine the other issues
that had been identified.
12. Dr. Dhawan submitted that the relevant entry
empowering the Manipur Legislature to make the 2012 Act
is entry 40 of List II, which was not considered in
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Bimolangshu Roy (supra). Placing reliance on the
judgment of this Court in Ujagar Prints & Ors. (II) v.
Union of India & Ors.2, 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
2 (1989) 3 SCC 488
13 | P a g e
members and communities, but this authority does not
extend to creation of new offices.
13. In Ujagar Prints (II) (supra), this Court held as
follows:
“53. If a legislation purporting to be under a particular
legislative entry is assailed for lack of legislative
competence, the State can seek to support it on the
basis of any other entry within the legislative
competence of the legislature. It is not necessary for
the State to show that the legislature, in enacting the
law, consciously applied its mind to the source of its
own competence. Competence to legislate flows from
Articles 245, 246, and the other articles following, in
Part XI of the Constitution. In defending the validity of a
law questioned on ground of legislative incompetence,
the State can always show that the law was
supportable under any other entry within the
competence of the legislature. Indeed in supporting a
legislation sustenance could be drawn and had from a
number of entries. The legislation could be a composite
legislation drawing upon several entries. Such a
“ragbag” legislation is particularly familiar in taxation.”
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
14 | P a g e
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 affidavit, the State
of Assam contended that the legislative entry should not be
read in a narrow or pedantic sense but must be given its
fullest meaning and widest amplitude. It was further stated
that the making of law providing for creation of the post of
Parliamentary Secretary was within the competence of the
State Legislature as a Parliamentary Secretary is a member
of the Legislative Assembly. It is no doubt true that this
Court in Ujagar Prints (II) (supra) held that the State
Government can always resort to more than one entry to
defend the legislation, when it is challenged on the ground
of legislative competence. However, it is to be noted that
the State of Assam did not seek to take the support of any
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other entry, apart from entry 39, to substantiate 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
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that the judgment of this Court in Bimolangshu Roy
(supra) needs reconsideration.
15. After the judgment of this Court in Bimolangshu Roy
(supra), the Parliamentary Secretaries resigned and the
Repealing Act, 2018 was notified on 04.04.2018. The
contention of the Appellants is that PIL Nos. 7, 9 and 10
became infructuous after the 2012 Act was repealed and
therefore, the High Court committed an error in declaring
the 2012 Act as unconstitutional.
In Kay v. Goodwin3, Tindal, C.J. stated:
“I take the effect of repealing a statute to be to
obliterate it as completely from the records of
Parliament as if it had never been passed; and it must
be considered as a law that never existed except for
the purpose of those actions which were commenced,
prosecuted and concluded whilst it was an existing law.”
In the case of State of U.P. & Ors. v. Hirendra Pal Singh
& Ors.4, this Court was of the following opinion:
“22. It is a settled legal proposition that whenever an
Act is repealed, it must be considered as if it had never
existed. The object of repeal is to obliterate the Act
3 (1830) 6 Bing. 576, at p. 582
4 (2011) 5 SCC 305
17 | P a g e
from the statutory books, except for certain purposes
as provided under Section 6 of the General Clauses Act,
1897. Repeal is not a matter of mere form but is of
substance. Therefore, on repeal, the earlier provisions
stand obliterated/abrogated/wiped out wholly…”
16. The aforesaid judgments leave no room for doubt that
after enactment of the Repealing Act, 2018, the 2012 Act
did not survive and the High Court ought not to have
considered the constitutional validity of the same. To that
extent, the High Court committed an error in declaring a
non-existing law as unconstitutional. It is beyond question
that this Court in Bimolangshu Roy (supra), while dealing
with the Assam Act, 2004 which is ad verbum to the 2012
Act, held that the Assam Act, 2004 was vitiated due to lack
of legislative competence. However, the 2012 Act was not
dealt with by this Court and the same continued to be valid
till it was repealed. 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
18 | P a g e
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 (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
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Pradesh5, State of Punjab v. Harnek Singh6 and
Election Commission of India & Anr. v. Dr.
Subramaniam Swamy & Anr. 7 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;
contracts which depend upon it for their consideration are
void; it constitutes a protection to no one who has acted
under it and no one can be punished for having refused
obedience to it before the decision was made 8. Field, J. in
Norton v. Shelby County9, observed that “an
unconstitutional act is not law, it confers no rights, it
imposes no duties, it affords no protection, it creates no
office; it is, in legal contemplation, as inoperative as though
it had never been passed”.
19. 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
5 (1981) 3 SCC 132
6 (2002) 3 SCC 481
7 (1996) 4 SCC 104
8 Cooley on Constitutional Limitations, Volume I, page 382
9 118 US 425 (1886)
20 | P a g e
ab initio. In Behram Khurshid Pesikaka v. State of
Bombay10, 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. This Court in Deep Chand v. State
of Uttar Pradesh & Ors.11 summarised the following
propositions:
“(a) Whether the Constitution affirmatively confers
power on the legislature to make laws subject-wise or
negatively prohibits it from infringing any fundamental
right, they represent only two aspects of want of
legislative power;
(b) The Constitution in express terms makes the power
of a legislature to make laws in regard to the entries in
the Lists of the Seventh Schedule subject to the other
10 (1955) 1 SCR 613
11 1959 Supp (2) SCR 8
21 | P a g e
provisions of the Constitution and thereby
circumscribes or reduces the said power by the
limitations laid down in Part III of the Constitution;
(c) It follows from the premises that a law made in
derogation or in excess of that power would be ab initio
void…”
20. The power of a legislative body to repeal a law is co-
extensive with its power to enact a law. The effect of
repealing of a statute is to obliterate it completely from the
records of Parliament.12 While repealing a statute, the
Legislature 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
12 Kay v. Goodwin (supra)
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past transactions, the Legislature is empowered to
introduce a saving clause in the repealing act. 13 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 30.03.1966, by which the provisions of
the General Clauses Act, 1897 were made applicable to the
statutes of the Manipur Legislature.
21. Elaborating on the point relating to the exercise of
powers by the Court to save past transactions, it is
necessary to refer to the law laid down by this Court.
Following American jurisprudence, the doctrine of
prospective overruling was applied in I.C. Golak Nath &
Ors. v. State of Punjab & Anr.14. In Golak Nath (supra),
this Court held that the power of the amendment under
13 Keshavan Madhava Menon v. State of Bombay 1951 SCR 228
14 (1967) 2 SCR 762
23 | P a g e
Article 368 of the Constitution of India did not allow the
Parliament to abridge the fundamental rights enshrined in
part III of the Constitution. Realising that there would be
confusion and chaos if the judgment is given retrospective
effect, this Court evolved a “ reasonable principle to meet
this extraordinary situation”. The following propositions
were laid down by this Court in Golak Nath (supra):
“(1) The doctrine of prospective overruling can be
invoked only in matters arising under our Constitution;
(2) it can be applied only by the highest court of the
country, i.e., the Supreme Court as it has the
constitutional jurisdiction to declare law binding on all
the courts in India;
(3) the scope of the retroactive operation of the law
declared by the Supreme Court superseding its earlier
decisions is left to its discretion to be moulded in
accordance with the justice of the cause or matter
before it.”
Though Golak Nath (supra) applied the doctrine of
prospective overruling in the context of earlier decisions of
this Court on the same issues which had otherwise become
final, the doctrine of prospective overruling has been
24 | P a g e
applied by this Court even where the issue was being
decided by the Court for the first time.
22. While laying down the principles of prospective
overruling, this Court in Golak Nath (supra) dealt with the
scope of Article 142 of the Constitution of India and held
that the said provision enables the Supreme Court to pass
such decree or make such order as is necessary for doing
complete justice in any cause or matter pending before it.
The conundrum in India Cement Ltd. & Ors. v. State of
Tamil Nadu & Ors.15 related to the levy of cess on royalty
being within the competence of the State Legislature. A
constitution bench of this Court declared the cess imposed
by the State of 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 & Ors. 16. An
argument was advanced in the said case on behalf of the
States that declaration of levy as invalid need not
15 (1990) 1 SCC 12
16 1991 Supp (1) SCC 430
25 | P a g e
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 & Ors. v. Union of India & Ors. 17, this Court
overruled its earlier judgment in General Manager,
Southern Railway v. Rangachari 18 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 the appellants in Ashok Kumar
Gupta & Anr. v. State of U.P. & Ors. 19, inter alia, were:
(a) that the reservation in promotion having been declared
unconstitutional in Indra Sawhney (supra) was void ab
initio and vitiated the promotion of the respondents and
therefore, operation of the unconstitutional direction could
17 1992 Supp (3) SCC 217
18 (1962) 2 SCR 586
19 (1997) 5 SCC 201
26 | P a g e
not be postponed by prospective overruling of the ratio of
Rangachari (supra); (b) that the said prospective
overruling, even if assumed to be the majority judgment,
was violative of the fundamental rights of the
appellants/petitioners under Articles 14 and 16 and
therefore, the power under Article 142 of the Constitution
could not be exercised to curtail fundamental rights. The
said points were answered by this Court in the following
terms:
“60. It would be seen that there is no limitation under
Article 142(1) on the exercise of the power by this
Court. The necessity to exercise the power is to do
“complete justice in the cause or matter”. The
inconsistency with statute law made by Parliament
arises when this Court exercises power under Article
142(2) for the matters enumerated therein.
Inconsistency in express statutory provisions of
substantive law would mean and be understood as
some express prohibition contained in any substantive
statutory law. The power under Article 142 is a
constituent power transcendental to statutory
prohibition. Before exercise of the power under Article
142(2), the Court would take that prohibition
(sic provision) into consideration before taking steps
under Article 142(2) and we find no limiting words to
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mould the relief or when this Court takes appropriate
decision to mete out justice or to remove injustice. The
phrase “complete justice” engrafted in Article 142(1) is
the word of width couched with elasticity to meet
myriad situations created by human ingenuity or cause
or result of operation of statute law or law declared
under Articles 32, 136 and 141 of the Constitution and
cannot be cribbed or cabined within any limitations or
phraseology. Each case needs examination in the light
of its backdrop and the indelible effect of the decision.
In the ultimate analysis, it is for this Court to exercise
its power to do complete justice or prevent injustice
arising from the exigencies of the cause or matter
before it. The question of lack of jurisdiction or nullity of
the order of this Court does not 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
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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 the judgment
in Mandal case [1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] for five years from
the date of the judgment. This judicial creativity is not
anathema to constitutional principle but an accepted
doctrine as an extended facet of stare decisis. It would
not be labelled as proviso to Article 16(4) as contended
for.”
23. The principles that can be deduced from the law laid
down by this Court, as referred to above, are:
I. A statute which is made by a competent legislature is
valid till it is declared unconstitutional by a court of
law.
II. After declaration of a statute as unconstitutional by a
court of law, it is non est for all purposes.
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III. In declaration of the law, the doctrine of prospective
overruling can be applied by this Court to save past
transactions under earlier decisions superseded or
statutes held unconstitutional.
IV. Relief can be moulded by this Court in exercise of its
power under Article 142 of the Constitution,
notwithstanding the declaration of a statute as
unconstitutional.
Therefore, 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.
24. The 2012 Act was not subject-matter of consideration
by this Court in Bimolangshu Roy (supra). In the said
judgment, this Court was concerned only about the validity
of the Assam Act, 2004. It is well within the competence of
the Manipur Legislature to repeal the 2012 Act, which had
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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. However, we have
been called upon to assess whether, in the peculiar facts of
the present case, the Manipur Legislature had the
competence to introduce a saving clause in the Repealing
Act, 2018. The undisputed facts are that the 2012 Act and
the Assam Act, 2004 are in pari materia. The Assam Act,
2004 was declared as unconstitutional in Bimolangshu
Roy (supra). Public interest litigations were filed in the
Manipur High Court challenging the vires 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
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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 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.
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25. 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. In view of the relief
provided, it is not necessary to refer to the de facto doctrine
pleaded by Dr. Dhawan.
26. For the foregoing reasons, 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
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and decisions duly undertaken by the Parliamentary
Secretaries under the 2012 Act till discontinuation of their
appointments, which are hereby saved.
27. The Civil Appeals are disposed of accordingly.
…………………………………………J.
[ L. NAGESWARA RAO]
…………………………………………J.
[B.R. GAVAI]
…………………………………………J.
[B.V. NAGARATHNA]
New Delhi,
February 01, 2022.
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