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The legislature cannot safeguard steps taken under an unconstitutional law by implementing a saving clause: says the Supreme Court

Socio Legal Corp

Written By – Radhika

In the case of the State of Manipur & Ors. v. Surjakumar Okram & Ors., the bench comprising of Justices LN Rao, BR Gavai, and BV Nagarathna was hearing the special leave petitions challenging the Manipur High Court’s ruling where the Manipur Parliamentary Secretary Act, 2012, and the Manipur Parliamentary Secretary Repealing Act, 2018 was declared unconstitutional. The Manipur Parliamentary Secretary Act, 2012 empowered the Chief Minister to select members of the Manipur Legislative Assembly to the position of Parliamentary Secretary, along with the authority and rank of the State Minister.

Senior Advocate Rajeev Dhavan, appearing for the appellants, contended that the determination of the Assam Act, 2004 as unconstitutional did not render the 2012 Act unlawful in and of itself. He contended that Bimolangshu Roy’s case was incorrectly resolved and should be overturned on appeal for failing to consider the essential entry in List II of the Seventh Schedule of the Constitution while ruling that the Assam Legislature lacked competence to pass the Assam Act, 2004. He further claimed that the Repealing Act, 2018, should not be changed because of its express saving clause, the de facto doctrine, and the principles underlying Section 6 of the General Clauses Act, 1897.

On the other hand, Senior Advocate Narendra Hooda for the respondents argued that the Court made no mistakes in ruling on Bimolangshu Roy’s case. He also said that by implementing the concepts of the Roy’s case to the 2012 Act, the saving clause could not have been included in the Repealing Act, 2018, particularly since the State Government had approved the ruling.

Thus, in exercising its powers under Article 142 of the Indian Constitution, the bench felt it important to save only those acts, deeds, and decisions legally made by the Parliamentary Secretaries under the 2012 Act throughout their term and ruled that the legislature cannot infuse life into legislation that it has already declared unconstitutional by implementing a saving clause.


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