“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A statute which has been previously struck down and declared constitutional already the apex court does not need to be repealed again by the court was upheld by Supreme Court of India through a bench led by HONOURABLE MR.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 Then, in 2018, a petition was also filed against the 2018 repealed Law.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 The Supreme Court initially stated that since the 2012 Act was repealed by the 2018 Act, the Supreme Court could not review the Constitutional validity of the 2012 Act.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 The court annulled some of the provisions of the savings, which were enacted by a law that repealed it. Within the scope of the repealed law, some lawsuits, rights and obligations were tried to be saved.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.
 IN THE CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 823 827 of 2022 Arising out of SLPNos.2001 20021 The State of Manipur & Ors. AppellantNos.2386 23921 JUDGMENT L. NAGESWARA RAO J The Manipur Parliamentary Secretary Act 2012(hereinafter referred to as the “2012 Act”) was enacted by the Legislature of Manipur to provide for appointment salary and allowances 1 | P a g e 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 arising out of SLPNos. 2386 23921 were appointed as Parliamentary Secretaries in 2017 The Assam Parliamentary Secretaries Act 2004which had provisions similar to that of the 2012 Act was the subject matter of challenge before the Gauhati High Court. The writ petition filed before the Gauhati High Court was transferred to this Court. On 26.07.2017 this Court in Bimolangshu Roy v. State of Assam & Anr.1 declared 114 SCC 408 2 | P a g e that the Legislature of Assam lacked competence to enact the Assam Act 2004. The Manipur Assembly passed the Manipur Parliamentary SecretaryRepealing Act 2018 which was notified on 04.04.2018. It was mentioned in preamble of the Repealing Act 2018 that the 2012 Act was being repealed in light of the judgment of this Court in Bimolangshu Roy XXX XXX XXX 2) Notwithstanding the repeal of the Manipur Parliamentary Secretary Act 2012 the repeal shall not affect a) the previous operations of the repealed Act or anything duly done in pursuance of the Act so repealed including anything done in official discharge of their duties by the Parliamentary Secretaries or b) any right privilege or obligation incurred under the 3 | P a g e In the meanwhile the Appellants in Civil Appeals arising out of SLPNos. 2386 23921 resigned from the post of Parliamentary Secretaries. It is also relevant to mention that PIL Nos. 7 9 and 117 were filed in the High Court of Manipur challenging the validity of the 2012 Act. The validity of the Repealing Act 2018 was assailed in the High Court of Manipur by way of Writ PetitionNo 3118 and PIL No. 118. The PILs and the Writ PetitionNo. 3118 were taken up together by the High Court of Manipur and disposed of by judgment dated 17.09.2020. The 2012 Act and the Repealing Act 2018 were declared as unconstitutional by the High Court. Aggrieved by the said judgement the State of Manipur and the members of the Manipur Legislative Assembly who were appointed as Parliamentary Secretaries have filed the above appeals. The writ petitioners contended before the High Court of Manipur that the Manipur Legislature lacked competence to promulgate the 2012 Act. It was further submitted before the High Court that the saving clause in the Repealing Act 4 | P a g e 2018 is a devious method to justify the illegal appointments made by virtue of the 2012 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 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 2018. The State 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. 5. We have heard Dr. Rajeev Dhawan learned Senior Counsel appearing for the Appellants in Civil Appeals arising out of SLPNos. 2386 23921 learned Additional Advocate General appearing for the State of Manipur in Civil Appeals arising out of SLPNos. 2001 20021 and Mr. Narender Hooda learned Senior Advocate appearing for the Respondents in Civil Appeals arising out of SLPNos 2001 20021 5 | P a g e Dr. Dhawan submitted that the Appellants resigned as Parliamentary Secretaries on 04.08.2017 while remaining members of the Assembly due to which PIL Nos. 7 9 and 117 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. He argued that Bimolangshu Roy was wrongly decided and should be held to be per incuriam for not considering the relevant entry in List II of the Seventh Schedule of the Constitution while declaring that the Assam Legislature lacked competence to enact the Assam Act 2004. In any event according to Dr. Dhawan 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. Relying on judgments of this Court Dr. Dhawan submitted that the Repealing Act 2018 should not be disturbed in view of the express saving provision thereof the de facto doctrine and the principles underlying Section 6 of the General Clauses Act 1897 hereinafter referred to as the “General Clauses Act” 6 | P a g e Mr. Hooda learned Senior Counsel on the other hand countered the submissions made on behalf of the Appellants by submitting that there was no error committed by this Court in deciding Bimolangshu Royrepealed the 2012 Act Appointments made to the post of Parliamentary Secretaries were discontinued after the judgment in Bimolangshu Roy of the Constitution of India provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed 7 | P a g e by the Governor on the advice of the Chief Minister and that the Ministers shall hold office during the pleasure of the Governor. Article 164(1 A) was inserted by the ConstitutionAct 2003. The said Article limited the number of Ministers including the Chief Minister in the Council of Ministers in a State to 15 percent of the total members in the Legislative Assembly of the State. Article 194(3) of the Constitution empowers the State Legislature to make laws in respect of the powers privileges and immunities of a House of the Legislature and of the members and the committees of a House of such Legislature. Article 246 of the Constitution confers the Legislature of a State with exclusive powers to make laws for such State or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule. The relevant entries in List II of the Seventh Schedule are as “39. Powers privileges and immunities of the Legislative Assembly and of the members and the committees thereof and if there is a Legislative Council of that Council and of the members and the 8 | P a g e committees thereof enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State 40. Salaries and allowances of Minister for the State.” There does not appear to be any dispute on the factual front. The Assam Legislature enacted the relevant statute in 2004 providing for appointment of members of the Assam Legislative Assembly as Parliamentary Secretaries. The Assam Act 2004 and the 2012 Act are undoubtedly in pari materia. This Court in Bimolangshu Roy struck down the Assam Act 2004 as unconstitutional. The appointments of Parliamentary Secretaries were discontinued by the Chief Minister of Manipur around the time the judgment in Bimolangshu Roy was delivered Thereafter the Repealing Act 2018 was enacted and notified with effect from 04.04.2018. The 2012 Act and the Repealing Act 2018 were challenged before the High Court of Manipur. 10. The first submission of Dr. Rajeev Dhawan is that Bimolangshu Roywas wrongly decided and needs 9 | P a g e reconsideration. The following issues arose for consideration before this Court in the matter of Bimolangshu Royobserved that Article 194(3) of the Constitution deals with powers privileges and immunities of the House of the Legislature and its members but does not authorize the State Legislature to create offices such as those of Parliamentary 10 | P a g e Secretaries. It was noted that in some cases the power to legislate was conferred by certain Articles in the Constitution on matters specified therein without corresponding entries in the lists in the Seventh Schedule such as in the case of Article 3 under which the Parliament is competent to create or extinguish a State but there is no corresponding entry in List I of the Seventh Schedule. In certain other cases corresponding entries in the lists of the Seventh Schedule are found with reference to the power to legislate as expressly conferred in the text of some Articles of the Constitution as is seen with entries 38 39 and 40 of List II. With respect to the latter category this Court held that where the power to legislate is sourced to a dedicated Article in the Constitution legislative authority with respect to a closely associated or the same topic as contained in the Article cannot be sought from the corresponding entry in the list read with Article 246. To substantiate it was further elaborated that even if entries 38 39 and 40 in List II were not there in the Seventh Schedule the State Legislature would still be competent to make laws on topics 11 | P a g e indicated in those three entries because of the authority contained in Articles 164(5) 186 194 195 etc. Therefore any interpretation on legislative power sought to be given to these entries which is not contemplated by the corresponding Article was considered to be repugnant to the scheme of the Constitution as the Article expressly conferring legislative authority is the source of legislating power. Noticing that the text of both Articles 194(3) and the relevant portion of entry 39 are substantially similar this Court was of the firm opinion that creation of new offices by legislation would be outside the scope of Article 194(3). The powers privileges and immunities contemplated by Article 194(3) and entry 39 are those of the legislators qua legislators as concluded by this Court in Bimolangshu Royv Union of India & Ors.2 he argued that this Court committed an error in striking down the Assam Act 2004 which was in the nature of a composite legislation drawing upon several entries. As this Court examined the legislative competence only with reference to Article 194(3) of the Constitution of India and entry 39 of List II the judgment is liable to be declared per incuriam. Arguing to the contrary Mr. Hooda submitted that entry 40 of List II relates to salaries and allowances of Ministers for the State and cannot be relied on to defend the Assam Act 2004. He argued that entry 39 which refers to powers privileges and immunities of the Legislative Assembly and of the members and the committees thereof corresponds to Article 194(3) of the Constitution of India. According to Mr. Hooda the Legislature is empowered to make laws by virtue of Article 194(3) and entry 39 in respect of powers privileges and immunities of a House of the Legislature and of its 23 SCC 488 13 | P a g e members and communities but this authority does not extend to creation of new offices. In Ujagar Prints(supra) this Court held as “53. If a legislation purporting to be under a particular legislative entry is assailed for lack of legislative competence the State can seek to support it on the basis of any other entry within the legislative competence of the legislature. It is not necessary for the State to show that the legislature in enacting the law consciously applied its mind to the source of its own competence. Competence to legislate flows from Articles 245 246 and the other articles following in Part XI of the Constitution. In defending the validity of a law questioned on ground of legislative incompetence the State can always show that the law was supportable under any other entry within the competence of the legislature. Indeed in supporting a legislation sustenance could be drawn and had from a number of entries. The legislation could be a composite legislation drawing upon several entries. Such a “ragbag” legislation is particularly familiar in taxation.” Article 194(3) enables the Legislature to make law relating to powers privileges and immunities of its members. This Court in Bimolangshu Roy categorically held that State 14 | P a g e Legislatures are competent to make law in respect of powers privileges and immunities of a House of the Legislature and its members even in the absence of reference to entries 38 39 and 40 of List II. The stand of the State of Assam before this Court in Bimolangshu Roy supra) was that the Legislature had the competence to make the law in view of entry 39 which has to be given the broadest possible interpretation. In its affidavit the State of Assam contended that the legislative entry should not be read in a narrow or pedantic sense but must be given its fullest meaning and widest amplitude. It was further stated that the making of law providing for creation of the post of Parliamentary Secretary was within the competence of the State Legislature as a Parliamentary Secretary is a member of the Legislative Assembly. It is no doubt true that this Court in Ujagar Prints(supra) held that the State Government can always resort to more than one entry to defend the legislation when it is challenged on the ground of legislative competence. However it is to be noted that the State of Assam did not seek to take the support of any 15 | P a g e other entry apart from entry 39 to substantiate its legislative competence before this Court in Bimolangshu 14. The Appellants in the present matter contended that this Court did not appreciate the relevance of entry 40 of List II while assessing the Assam Legislature’s competence to enact the Assam Act 2004. We are of the considered view that entry 40 which relates to salaries and allowances of the Ministers of the State cannot be resorted to for the purpose of justifying the legislative competence in enacting the Assam Act 2004. The relevant entry is entry 39 which corresponds to Article 194(3) of the Constitution of India On the other hand entry 40 corresponds to Article 164 of the Constitution and we are in complete agreement with Bimolangshu Roy wherein this Court has acknowledged and reiterated the need to be wary of the perils of interpreting entries in the lists of the Seventh Schedule as encompassing matters that have no rational connection with the subject matter of the entry. Therefore we do not see any force in the submission of Dr. Dhawan 16 | P a g e that the judgment of this Court in Bimolangshu Roy supra) needs reconsideration. 15. After the judgment of this Court in Bimolangshu Roy supra) the Parliamentary Secretaries resigned and the Repealing Act 2018 was notified on 04.04.2018. The contention of the Appellants is that PIL Nos. 7 9 and 10 became infructuous after the 2012 Act was repealed and therefore the High Court committed an error in declaring the 2012 Act as unconstitutional. In Kay v. Goodwin3 Tindal C.J. stated “I take the effect of repealing a statute to be to obliterate it as completely from the records of Parliament as if it had never been passed and it must be considered as a law that never existed except for the purpose of those actions which were commenced prosecuted and concluded whilst it was an existing law.” In the case of State of U.P. & Ors. v. Hirendra Pal Singh Ors.4 this Court was of the following opinion “22. It is a settled legal proposition that whenever an Act is repealed it must be considered as if it had never existed. The object of repeal is to obliterate the Act 36 Bing. 576 at p. 582 45 SCC 305 17 | P a g e from the statutory books except for certain purposes as provided under Section 6 of the General Clauses Act 1897. Repeal is not a matter of mere form but is of substance. Therefore on repeal the earlier provisions stand obliterated abrogated wiped out wholly...” 16. The aforesaid judgments leave no room for doubt that after enactment of the Repealing Act 2018 the 2012 Act did not survive and the High Court ought not to have considered the constitutional validity of the same. To that extent the High Court committed an error in declaring a non existing law as unconstitutional. It is beyond question that this Court in Bimolangshu Roywhile dealing with the Assam Act 2004 which is ad verbum to the 2012 Act held that the Assam Act 2004 was vitiated due to lack of legislative competence. However the 2012 Act was not dealt with by this Court and the same continued to be valid till it was repealed. Indeed the 2012 Act was not declared unconstitutional by any court before the High Court delivered the impugned judgment and therefore it was well within the competence of the Manipur Legislature to repeal the 2012 Act. The High Court has committed an error in 18 | P a g e holding that the Manipur Legislature did not have the competence to enact the 2012 Act as a result of which the Repealing Act 2018 could not have been made. The law passed by the legislature is good law till it is declared as unconstitutional by a competent Court or till it is repealed There is no error committed by the Manipur Legislature in repealing the 2012 Act in light of the judgment of this Court in Bimolangshu Roythe express saving provision of the Repealing Act 2018 andSection 6 of the General Clauses Act. He placed reliance on the judgments of this Court in Gokaraju Rangaraju v. State of Andhra 19 | P a g e Pradesh5 State of Punjab v. Harnek Singh6 and Election Commission of India & Anr. v. Dr Subramaniam Swamy & Anr.7 in support of his 18. Where a statute is adjudged to be unconstitutional it is as if it had never been. Rights cannot be built up under it contracts which depend upon it for their consideration are void it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made8. Field J. in Norton v. Shelby County9 observed that “an unconstitutional act is not law it confers no rights it imposes no duties it affords no protection it creates no office it is in legal contemplation as inoperative as though it had never been passed” 19. An unconstitutional law be it either due to lack of legislative competence or in violation of fundamental rights guaranteed under Part III of the Constitution of India is void 53 SCC 132 63 SCC 481 74 SCC 104 8 Cooley on Constitutional Limitations Volume I page 382 9 118 US 425Whether the Constitution affirmatively confers power on the legislature to make laws subject wise or negatively prohibits it from infringing any fundamental right they represent only two aspects of want of legislative power b) The Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other 101 SCR 613 11 1959 SuppSCR 8 21 | P a g e provisions of the Constitution and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution c) It follows from the premises that a law made in derogation or in excess of that power would be ab initio 20. The power of a legislative body to repeal a law is co extensive with its power to enact a law. The effect of repealing of a statute is to obliterate it completely from the records of Parliament.12 While repealing a statute the Legislature is competent to introduce a clause saving any right privilege liability penalty act or deed duly done and any investigation legal proceeding or remedy arising therefrom under the repealed statute. There is a distinction between declaration of a statute as unconstitutional by a Court of law and the repeal of a statute by the Legislature. On declaration of a statute as unconstitutional it becomes void ab initio. Saving past transactions are within the exclusive domain of the Court On the other hand though the consequence of repeal is also obliteration of the statute with retrospective effect on 12 Kay v. Goodwinthis Court held that the power of the amendment under 13 Keshavan Madhava Menon v. State of Bombay 1951 SCR 228 142 SCR 762 23 | P a g e Article 368 of the Constitution of India did not allow the Parliament to abridge the fundamental rights enshrined in part III of the Constitution. Realising that there would be confusion and chaos if the judgment is given retrospective effect this Court evolved a “reasonable principle to meet this extraordinary situation”. The following propositions were laid down by this Court in Golak NathThe doctrine of prospective overruling can be invoked only in matters arising under our Constitution 2) it can be applied only by the highest court of the country i.e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India 3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter Though Golak Nath applied the doctrine of prospective overruling in the context of earlier decisions of this Court on the same issues which had otherwise become final the doctrine of prospective overruling has been 24 | P a g e applied by this Court even where the issue was being decided by the Court for the first time. 22. While laying down the principles of prospective overruling this Court in Golak Nathdealt with the scope of Article 142 of the Constitution of India and held that the said provision enables the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it The conundrum in India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors.15 related to the levy of cess on royalty being within the competence of the State Legislature. A constitution bench of this Court declared the cess imposed by the State of Tamil Nadu as ultra vires. However this Court observed that the State of Tamil Nadu shall not be liable for any refund of cess already paid or collected Validity of levy of cess based on royalty was raised again in Orissa Cement Ltd. v. State of Orissa & Ors.16. An argument was advanced in the said case on behalf of the States that declaration of levy as invalid need not 151 SCC 12 16 1991 SuppSCC 430 25 | P a g e automatically result in a direction for refund of amounts collected earlier. Relying upon the earlier judgments of this Court in Golak Nath and India Cement this Court declared the levy of cess as unconstitutional However this Court refused to give any direction for refund of any amounts collected till the date on which the levy in question has been declared unconstitutional. In Indra Sawhney & Ors. v. Union of India & Ors.17 this Court overruled its earlier judgment in General Manager Southern Railway v. Rangachari18 and held that reservation in promotions cannot be provided under Article 16 of the Constitution of India but directed the decision to be operative from five years from the date of the judgment The points raised by the appellants in Ashok Kumar Gupta & Anr. v. State of U.P. & Ors.19 inter alia were a) that the reservation in promotion having been declared unconstitutional in Indra Sawhneywas void ab initio and vitiated the promotion of the respondents and therefore operation of the unconstitutional direction could 17 1992 SuppSCC 217 182 SCR 586 195 SCC 201 26 | P a g e not be postponed by prospective overruling of the ratio of Rangachari (b) that the said prospective overruling even if assumed to be the majority judgment was violative of the fundamental rights of the appellants petitioners under Articles 14 and 16 and therefore the power under Article 142 of the Constitution could not be exercised to curtail fundamental rights. The said points were answered by this Court in the following “60. It would be seen that there is no limitation under Article 142(1) on the exercise of the power by this Court. The necessity to exercise the power is to do “complete justice in the cause or matter”. The inconsistency with statute law made by Parliament arises when this Court exercises power under Article 142(2) for the matters enumerated therein Inconsistency in express statutory provisions of substantive law would mean and be understood as some express prohibition contained in any substantive statutory law. The power under Article 142 is a constituent power transcendental to statutory prohibition. Before exercise of the power under Article 142(2) the Court would take that prohibition sic provision) into consideration before taking steps under Article 142(2) and we find no limiting words to 27 | P a g e mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase “complete justice” engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology. Each case needs examination in the light of its backdrop and the indelible effect of the decision In the ultimate analysis it is for this Court to exercise its power to do complete justice or prevent injustice arising from the exigencies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does not arise. As held earlier the power under Article 142 is a constituent power within the jurisdiction of this Court. So the question of a law being void ab initio or nullity or voidable does not 61. Admittedly the Constitution has entrusted this salutary duty to this Court with power to remove injustice or to do complete justice in any cause or matter before this Court. The Rangachari2 SCR 586 : AIR 1962 SC 36] ratio was in operation for well over three decades under which reservation in promotions were given to several persons in several services grades or cadres of the Union of India or the respective State Governments. This Court with a view 28 | P a g e to see that there would not be any hiatus in the operation of that law and as held earlier to bring about smooth transition of the operation of law of reservation in promotions by a judicial creativity extended the principle of prospective overruling applied in Golak Nath case2 SCR 762 : AIR 1967 SC 1643] in the case of statutory law and of the judicial precedent in Karunakar case4 SCC 727 : 1993 SCC25 ATC 704] and further elongated the principle postponing the operation of the judgment in Mandal caseSCC 217 : 1992 SCC L&S) Supp 1 :22 ATC 385] for five years from the date of the judgment. This judicial creativity is not anathema to constitutional principle but an accepted doctrine as an extended facet of stare decisis. It would not be labelled as proviso to Article 16(4) as contended 23. The principles that can be deduced from the law laid down by this Court as referred to above are I. A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of II. After declaration of a statute as unconstitutional by a court of law it is non est for all purposes 29 | P a g e 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 IV. 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. Therefore it is clear 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. 24. The 2012 Act was not subject matter of consideration by this Court in Bimolangshu Roy and “in the process of being a responsible Government which upholds the Rule of Law” as have been categorically stated in the preamble of the Repealing Act 2018. In the normal course of events the public interest litigations challenging the vires of the 2012 Act would have been allowed and the 2012 Act would have been declared 31 | P a g e as unconstitutional relying on Bimolangshu Royand acknowledging the inferable unconstitutionality of the 2012 Act has enacted the Repealing Act 2018. As is evident from the preamble of the Repealing Act 2018 the repeal of the 2012 Act is a procedural formality by the Manipur Legislature to give the statute a logical conclusion in light of the pending public interest litigations challenging its constitutional validity before the High Court. Bearing in mind these exceptional facts and circumstances we are of the considered view that 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. 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 32 | P a g e 25. Having 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 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. In view of the relief provided it is not necessary to refer to the de facto doctrine pleaded by Dr. Dhawan For the foregoing reasons 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. However this shall not affect the acts deeds 33 | P a g e and decisions duly undertaken by the Parliamentary Secretaries under the 2012 Act till discontinuation of their appointments which are hereby saved. 27. The Civil Appeals are disposed of accordingly. [ L. NAGESWARA RAO ..........................................J [B.R. GAVAI [B.V. NAGARATHNA New Delhi February 01 2022. 34 | P a g e