Where a statute is adjudged to be unconstitutional, it is as if it had never been, Rights cannot be built up under it: SC
The Supreme Court ruled that where a statute is adjudged to be unconstitutional, it is as if it had never been, rights cannot be built up under it.
Background
The Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 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 were appointed as Parliamentary Secretaries in 2017.
Arguments
Advocate Dhawan contended that the Appellants resigned as Parliamentary Secretaries, 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.
Advocate Hooda, countered the submissions made on behalf of the Appellants by arguing that there was no error committed by the Court in deciding Bimolangshu Roy.
Decision
The three judge bench of Justice L. Nageswara Rao, Justice B.R. Gavai and Justice B.V. Nagarathna noted 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.
The court stated 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.
In exercise of powers under Article 142 of the Constitution of India, the court considered it necessary to save only those acts, deeds and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act during their tenure.
The court held that the Manipur Legislature was competent to enact the Repealing Act, 2018 and struck down the saving clause in the Repealing Act, 2018.
Case title: The State of Manipur & Ors. v/s Surjakumar Okram & Ors.
