“There is no question of repeal of a statute which has been declared as unconstitutional by a Court” : Supreme Court

A statute which has been previously struck down and declared constitutional already the apex court does not need to be repealed again by the court was upheld by Supreme Court of India through a bench led by HONOURABLE MR. JUSTICE L NAGESWARA RAO , HONOURABLE MR. JUSTICE B R GAVAI and HONOURABLE MRS. JUSTICE B V NAGARATHNA in the case of State of Manipur vs Surjakumar Okram (Civil Appeal Nos. 823-827 of 2022).

Brief facts of the case are appeals from Manipur State against a Manipur High Court decision that dismissed the Manipur Parliamentary Secretary (Assignment, Salary and Allowances and Miscellaneous Provisions), 2012 (2012 Act) and the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repeal Act, 2018 (Repeal Act 2018). In 2018, Manipur Assembly passed the 2018 Repeal Act to repeal the State’s 2012 law as it is similar to the 2004 Assam Act. The 2018 law add MLAs who cannot be placed in cabinet as parliamentary secretaries of State government with ministerial privileges. However, in the 2018 Repeal Act, the State of Manipur included an act of disposition that includes all decisions and any rights, privileges or obligations under the 2012 Act. What has been done under the 2012 Law has been secured. However, some PILs had already been filed in the Supreme Court in 2017, contesting the 2012 Act. Then, in 2018, a petition was also filed against the 2018 repealed Law. The Supreme Court therefore ruled that the State could not provide an act of disposition to justify acts and rights, privileges and obligations under the 2012 Repeal Act. Therefore, it has struck down both the 2012 and 2018 Laws. The Supreme Court initially stated that since the 2012 Act was repealed by the 2018 Act, the Supreme Court could not review the Constitutional validity of the 2012 Act. In this case, the 2012 Act was not challenged before the Supreme Court in the Bimolangshu Roy case. It was only the Assam Act that was challenged in the high court and declared unconstitutional.

The apex court held the annulment of a law on the grounds that it is unconstitutional makes it completely abolish as if it had never been enacted. Therefore, no rights can be built under it. The court annulled some of the provisions of the savings, which were enacted by a law that repealed it. Within the scope of the repealed law, some lawsuits, rights and obligations were tried to be saved. Since the 2012 Law was already repealed by the 2018 Law, the Supreme Court could not examine and decide on the constitutional validity of the 2012 Law. The Supreme Court made a mistake by declaring a non-existent law unconstitutional. Thus, the Manipur legislature enacting the 2018 Act to repeal the 2012 Act was only a procedural formality to give the law a logical conclusion, in light of the pending public interest lawsuit. Hence, petitions contesting its constitutional validity before the court, which ruled that the Manipur legislature is empowered to enact the 2018 repeal Act.

However, the Manipur Legislature repealed the 2012 Act on the grounds that the legislature itself could not infuse life into a legislation which was considered unconstitutional and therefore a nullity. The Court, exercising its powers under Article 142 of the Constitution, protected the acts and decisions of the parliamentary secretaries under the 2012 Act, as the invalidation of such proceedings could cause serious harm to third parties and create significant confusion and disorder in the administration of public business.

Click here to read the judgement

Judgement reviewed by – Bhaswati Goldar

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