No question of repeal of law declared unconstitutional, rules Supreme Court

The top court struck down Manipur's saving clause of 2018 Repealing Act, pertaining to appointment of Parliamentary Secretaries

Supreme Court. Credit: PTI File Photo

The Supreme Court on Tuesday declared that there is no question of repealing a statute that has been declared unconstitutional by a court, as a law is valid till it is declared unconstitutional.

"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," a three-judge bench presided over by Justice L Nageswara Rao said.

The top court held that the Manipur Legislature was not competent to introduce a saving clause in the Repealing Act, 2018 for a 2012 Act, with regard to the appointment of MLAs as Parliamentary Secretaries. "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," the court said.

The top court struck down the saving clause of 2018 Repealing Act, but said this would not affect the acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act till the discontinuation of their appointments.

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On July 26, 2017, the apex court declared in Bimolangshu Roy Vs State of Assam that State Legislature lacked the competence to enact the Assam Act, 2004 with regard to the appointment of Parliamentary Secretaries.

Subsequently, PILs were filed in Manipur High Court to declare the similar 2012 Manipur law as unconstitutional. The Manipur Legislature, taking a cue from the SC's judgement with regard to Assam, passed a repealing law in 2018 but with a saving clause on appointments of Parliamentary Secretaries.

The High Court held that Manipur 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. It declared both the Acts of 2012 and 2018 were unconstitutional.

The Manipur government as well as those appointed as Parliamentary Secretaries filed an appeal against the judgement.

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