# THE STATE OF MANIPUR & ORS v. SURJAKUMAR OKRAM & ORS

- **Citation:** [2022] 1 S.C.R. 1057
- **Court:** Supreme Court of India
- **Decided:** 2022-02-01
- **Case number:** Civil Appeal Nos. 823-827 of 2022
- **Bench:** L. Nageswara Rao, B. R. Gavai, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-manipur-ors-v-surjakumar-okram-ors-36016
- **Pages:** 26

## Headnote

Repeal: There is no question of repeal of a statute which has
been declared unconstitutional by the Court - In Bimolangshu Roy,
Assam Act, 2004 was struck down as unconstitutional - The 2012
Act was not the subject matter of consideration in Bimolangshu Roy
- Thus, it is well within the competence of the Manipur Legislature
to repeal the 2012 Act, which has not been adjudged as
unconstitutional by any Court till the Repealing Act, 2018 was
enacted - Manipur Parliamentary Secretary (Appointment, Salary
and Allowances and Miscellaneous Provisions) Act, 2012 - Assam
Parliamentary Secretary (Appointment, Salary, Allowances and
Miscellaneous Provisions) Act, 2004.
Manipur Parliamentary Secretary (Appointment, Salary and
Allowances and Miscellaneous Provisions) Repealing Act, 2018:
Competence of Manipur Legislature to introduce a saving clause in
the Repealing Act, 2018 - Held: 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 - Thus, the Manipur Legislative cannot be said to have
the competence to enact the saving clause in the Repealing Act,
2018.
Repeal: Power of legislative body to repeal a law - Held:
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 - 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therefrom, under the repealed statute.
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Repeal: Distinction between declaration of a statute as
unconstitutional by a Court of law and the repeal of a statute -
Held: 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 - 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.
Legislation: 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 voidab
initio - A statute which is made by a competent legislature is valid till
it is declared unconstitutional by a court of law - After declaration
of a statute as unconstitutional by a court of law, it is non est for all
purposes - 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
- Relief can be moulded by this Court in exercise of its power under
Art.142 of the Constitution, notwithstanding the declaration of a
statute as unconstitutional - There is no question of repeal of a
statute which has been declared as unconstitutional by a Court -
Constitution of India - Art.142.
Disposing of the appeals, the Court
HELD: 1. 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 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-firs

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[2022] 1 S.C.R. 1057
1057
THE STATE OF MANIPUR & ORS.
v.
SURJAKUMAR OKRAM & ORS.
(Civil Appeal Nos. 823-827 of 2022)
FEBRUARY 01, 2022
[L. NAGESWARA RAO, B. R. GAVAI AND
B. V. NAGARATHNA, JJ.]
Repeal: There is no question of repeal of a statute which has
been declared unconstitutional by the Court - In Bimolangshu Roy,
Assam Act, 2004 was struck down as unconstitutional - The 2012
Act was not the subject matter of consideration in Bimolangshu Roy
- Thus, it is well within the competence of the Manipur Legislature
to repeal the 2012 Act, which has not been adjudged as
unconstitutional by any Court till the Repealing Act, 2018 was
enacted - Manipur Parliamentary Secretary (Appointment, Salary
and Allowances and Miscellaneous Provisions) Act, 2012 - Assam
Parliamentary Secretary (Appointment, Salary, Allowances and
Miscellaneous Provisions) Act, 2004.
Manipur Parliamentary Secretary (Appointment, Salary and
Allowances and Miscellaneous Provisions) Repealing Act, 2018:
Competence of Manipur Legislature to introduce a saving clause in
the Repealing Act, 2018 - Held: 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 - Thus, the Manipur Legislative cannot be said to have
the competence to enact the saving clause in the Repealing Act,
2018.
Repeal: Power of legislative body to repeal a law - Held:
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 - 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.
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Repeal: Distinction between declaration of a statute as
unconstitutional by a Court of law and the repeal of a statute -
Held: 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 - 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.
Legislation: 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 voidab
initio - A statute which is made by a competent legislature is valid till
it is declared unconstitutional by a court of law - After declaration
of a statute as unconstitutional by a court of law, it is non est for all
purposes - 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
- Relief can be moulded by this Court in exercise of its power under
Art.142 of the Constitution, notwithstanding the declaration of a
statute as unconstitutional - There is no question of repeal of a
statute which has been declared as unconstitutional by a Court -
Constitution of India - Art.142.
Disposing of the appeals, the Court
HELD: 1. 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 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
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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.
[Para 8][1070-B-D]
2. 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 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. [Para 9]
[1070-F-H]
3. This Court in Bimolangshu Roy 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
THE STATE OF MANIPUR v. SURJAKUMAR OKRAM
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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
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. In view of the said
finding, the Court did not find it necessary to examine the other
issues that had been identified. [Para 11][1071-E-H; 1072-A-D]
Ujagar Prints & Ors. (II) v. Union of India & Ors. (1989)
3 SCC 488 : [1988] 3 Suppl. SCR 770 - referred to.
4. 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
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 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. [Para 13][1073-D-F]
5. The Appellants in the present matter contended that this
Court did not appreciate the relevance of entry 40 of List II while
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assessing the Assam Legislature's competence to enact the
Assam Act, 2004. 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. In Bimolangshu Roy this Court has correctly
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. The judgment of this Court in
Bimolangshu Roy does not require reconsideration. After the
judgment of this Court in Bimolangshu Roy, 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. [Paras 14, 15][1074-A-E]
State of U.P. & Ors. v. Hirendra Pal Singh & Ors. (2011)
5 SCC 305:[2010] 15 SCR 854 - relied on.
Kay v. Goodwin (1830) 6 Bing. 576 - referred to.
6. 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, 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 holding that the
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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. [Para 16][1075-B-E]
7.1 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. [Para 18][1076-A-B]
Gokaraju Rangaraju v. State of Andhra Pradesh (1981)
3 SCC 132: [1981] 3 SCR 474; Election Commission
of India & Anr. v. Dr. Subramaniam Swamy & Anr.
(1996) 4 SCC 104: [1996] 1 Suppl. SCR 637 - referred
to.
Norton v. Shelby County 118 US 425 (1886) - referred
to.
7.2 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. [Para 19][1076-C]
Behram Khurshid Pesikaka v. State of Bombay [1955]
1 SCR 613; Deep Chand v. State of Uttar Pradesh &
Ors. [1959] Supp 2 SCR 8 - relied on.
8. The power of a legislative body to repeal a law is coextensive with its power to enact a law. The effect of repealing of
a statute is to obliterate it completely from the records of
Parliament. 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
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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. 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. 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. [Para 20][1077-A-E]
I.C. Golak Nath & Ors. v. State of Punjab & Anr.[1967]
2 SCR 762 - followed.
State of Punjab v. Harnek Singh (2002) 3 SCC
481:[2002] 1 SCR 1060 - relied on.
9. Though Golak Nath 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 applied by this Court even where
the issue was being decided by the Court for the first time. While
laying down the principles of prospective overruling, this Court
in Golak Nath 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. [Paras 21 and 22][1078-B-D]
India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors.
(1990) 1 SCC 12 : [1989] 1 Suppl. SCR 692; Orissa
Cement Ltd. v. State of Orissa & Ors. 1991 Supp (1)
SCC 430 : [1991] 2 SCR 105; Indra Sawhney & Ors.
v. Union of India & Ors. 1992 Supp (3) SCC 217
: [1992] 2 Suppl. SCR 454; General Manager,
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Southern Railway v. Rangachari [1962] 2 SCR 586;
Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997)
5 SCC 201: [1997] 3 SCR 269 - referred to.
10. A statute which is made by a competent legislature is
valid till it is declared unconstitutional by a court of law. After
declaration of a statute as unconstitutional by a court of law, it is
non est for all purposes. 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. 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. [Para 23][1080-E-H; 1081-A-C]
11. The 2012 Act was not subject-matter of consideration
by this Court in Bimolangshu Roy. 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 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. 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 and "in the process of being a responsible Government which
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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.
However, before these matters were taken up by the High Court,
the Manipur Legislature, taking cognizance of the ramifications
of Bimolangshu Roy 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, 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. [Para 24][1081-D-H;
1082-A-C]
12 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,
it is necessary to save only those acts, deeds and decisions duly
undertaken by the Parliamentary Secretaries under the 2012 Act
during their tenure. [Para 25][1082-C-E]
13. Manipur Legislature was competent to enact the
Repealing Act, 2018. The saving clause in the Repealing Act,
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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. [Para 26][1082-F]
Bimolangshu Roy v. State of Assam & Anr. (2018) 14
SCC 408:[2017] 13 SCR 301; Keshavan Madhava
Menon v. State of Bombay [1951] SCR 228 - referred
to.
Case Law Reference
[2017] 13 SCR 301
referred to
Para 2
[1988] 3 Suppl. SCR 770
referred to
Para 12
[2010] 15 SCR 854
relied on
Para 15
[1981] 3 SCR 474
referred to
Para 17
[2002] 1 SCR 1060
referred to
Para 17
[1996] 1 Suppl. SCR 637
referred to
Para 17
[1955] 1 SCR 613
relied on
Para 19
[1959] Supp 2 SCR 8
relied on
Para 19
[1951] SCR 228
relied on
Para 20
[1967] 2 SCR 762
followed
Para 21
[1989] 1 Suppl. SCR 692
referred to
Para 22
[1991] 2 SCR 105
referred to
Para 22
[1992] 2 Suppl. SCR 454
referred to
Para 22
[1962] 2 SCR 586
referred to
Para 22
[1997] 3 SCR 269
referred to
Para 22
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 823827 of 2022.
From the Judgment and Order dated 17.09.2020 of the High Court
of Manipur at Imphal in W.P. (C) No.317 of 2018, PIL No.10 of 2017,
PIL No.16 of 2018, PIL No.7 of 2017, PIL No.9 of 2017.
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With
Civil Appeal Nos. 828-832 of 2022.
Tushar Mehta, SG, Lenin Singh Hijam, AAG, Narender Hooda,
Rajiv Dhawan, Sr. Advs., Shivendra Dwivedi, Rajesh Mahale, Anish R.
Shah, Abdulrahiman Tamboli, Rahul Joshi, Amit Sharma, Preetam Shah,
K. Krishna Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
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 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
Royv. State of Assam & Anr.1 declared 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
1 (2018) 14 SCC 408
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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 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, 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
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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.
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").
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.
THE STATE OF MANIPUR v. SURJAKUMAR OKRAM
[L. NAGESWARA RAO, J.]
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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
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 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.
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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 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
THE STATE OF MANIPUR v. SURJAKUMAR OKRAM
[L. NAGESWARA RAO, J.]
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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 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 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 members and communities, but this authority
does not extend to creation of new offices.
2 (1989) 3 SCC 488
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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 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
other entry, apart from entry 39, to substantiate its legislative competence
before this Court in Bimolangshu Roy (supra).
THE STATE OF MANIPUR v. SURJAKUMAR OKRAM
[L. NAGESWARA RAO, J.]
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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 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 Kayv. 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.