No question of repealing a law struck down by court; rights cannot be built up under it: Supreme Court

The Supreme Court on Tuesday held that there is no question of repealing a statute which has been declared unconstitutional by a court [State of Manipur vs Surjakumar Okram]..A Bench of Justices L Nageswara Rao, BR Gavai and BV Nagarathna held that the very fact that a statute has been struck down for being unconstitutional obliterates it entirely, as though it had never been passed.Hence, no rights can be built up under it, the Court underscored."It is clear that there is no question of repeal of a statute which has been declared as unconstitutional by a Court...Where a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it," the Bench stated. Hence, the Court struck down certain saving provisions enacted by a repealing law which had tried to save some actions, rights and obligations under the repealed law.The top court was dealing with appeals from the State of Manipur against a Manipur High Court judgment which had struck down the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 (2012 Act) and the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 (2018 Repealing Act)..Earlier, the Supreme Court had by way of its judgement in Bimolangshu Roy v. State of Assam & Anr., struck down the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004. Thereafter in 2018, the Manipur Assembly passed the 2018 Repealing Act to repeal the 2012 legislation of the State since it was similar to the 2004 Assam Act. The 2018 legislation had enabled the State government to attach MLAs who could not be accommodated in the cabinet as parliamentary secretaries with ministerial perks. However, in the 2018 Repealing Act, the State of Manipur had included a saving provision by which all decisions taken under the 2012 Act and any right, privilege or obligation incurred under the 2012 Act were safeguarded. However, some PILs had already been filed before the High Court in 2017 challenging the 2012 Act. Later in 2018, a petition was also filed challenging the 2018 repealing 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 a 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.Thus, the High Court held that the State could not have provided for a saving clause in the Repealing Act to justify acts done and rights, privileges and obligations incurred under the 2012 Act.It, therefore, struck down both the 2012 and 2018 Acts..The Supreme Court at the outset noted that since the 2012 Act had already been repealed by the 2018 Act, the High Court could not have examined and decided on the Constitutional validity of the 2012 Act. "To that extent, the High Court committed an error in declaring a non-existing law as unconstitutional," the top court ruled..Regarding the 2018 Act, the apex court after examining earlier judgments, said that the following principles can be deduced:1. A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law;2. After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes;3. 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;4. 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..Thus, there was no question of repealing a statute which had already been declared as unconstitutional, the Court held. ."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," the judgment said. However, in the instant case, the 2012 Act was not challenged before the Supreme Court in Bimolangshu Roy case.It was only the Assam Act which was under challenge before the top court and came to be declared unconstitutional, the Court noted. But the 2012 Act came to be challenged before the Manipur High Court, and since the 2012 Acts and the Assam Act were pari materia, it would have been declared unconstitutional relying on Bimolangshu Roy judgment even if the 2018 Repealing Act was not enacted, the apex court observed.Thus, the Manipur legislature enacting the 2018 Act to repeal the 2012 Act was a mere procedural formality to give the statute a logical conclusion, in light of the pending public interest litigation petitions challenging its constitutional validity before the High Court, the Supreme Court opined..The apex court, therefore, held that Manipur legislature was competent to enact the Repealing Act of 2018. However, it struck down the saving clause in the Act on the ground that the Manipur Legislature could not have infused life into a legislation (2012 Act), which was recognised by the legislature itself as unconstitutional and thereby, a nullity, prompting its repeal.."In light of the above, the Manipur Legislature cannot be said to have the competence to enact the saving clause in the Repealing Act, 2018," the top court held. .However, the Court, invoking its powers under Article 142 of the Constitution, saved the actions and decisions by the parliamentary secretaries under the 2012 Act, since nullification of such transactions could cause serious damage to third parties and create significant confusion and irregularity in the conduct of public business..[Read Judgment]