The Supreme Court has recently held 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.”
In 2012, Manipur had passed the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 empowering the state to appoint Parliamentary Secretaries but this was declared ultra vires in Bimolangshu Roy v. State of Assam & Anr. Subsequently, Manipur passed the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 adding a saving clause in the Repealing Act, hence justifying the illegal appointments made by them.
The Division Bench of Justices L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna were hearing appeals filed by the State of Manipur as the High Court had declared The Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 and Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018, ultra vires the Constitution.
Senior Advocate Rajeev Dhawan appearing for the appellants who were former parliamentary secretaries submitted that his clients resigned as Parliamentary Secretaries on 04.08.2017, while remaining members of the Assembly. He argued that 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
Senior Advocate Narendar Hooda submitted that the State of Manipur, accepted and followed the judgment in Bimolangshu Roy and hence Appointments made to the post of Parliamentary Secretaries were discontinued after the judgment, he further argued that the saving clause had been inserted to justify the illegal appointments that were made by virtue of the 2012 Act.
The Court 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 but also clarified that 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.”
“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.”