THE STATE OF MANIPUR & ORS.versusSURJAKUMAR OKRAM & ORS.

                         [2022] 1 S.C.R. 1057                             1057


                THE STATE OF MANIPUR & ORS.                               A
                                  v.
                 SURJAKUMAR OKRAM & ORS.
                 (Civil Appeal Nos. 823-827 of 2022)
                        FEBRUARY 01, 2022                                 B
           [L. NAGESWARA RAO, B. R. GAVAI AND
                  B. V. NAGARATHNA, JJ.]
      Repeal: There is no question of repeal of a statute which has
been declared unconstitutional by the Court – In Bimolangshu Roy,
                                                                          C
Assam Act, 2004 was struck down as unconstitutional – The 2012
Act was not the subject matter of consideration in Bimolangshu Roy
– Thus, it is well within the competence of the Manipur Legislature
to repeal the 2012 Act, which has not been adjudged as
unconstitutional by any Court till the Repealing Act, 2018 was
enacted – Manipur Parliamentary Secretary (Appointment, Salary            D
and Allowances and Miscellaneous Provisions) Act, 2012 – Assam
Parliamentary Secretary (Appointment, Salary, Allowances and
Miscellaneous Provisions) Act, 2004.
       Manipur Parliamentary Secretary (Appointment, Salary and
Allowances and Miscellaneous Provisions) Repealing Act, 2018:             E
Competence of Manipur Legislature to introduce a saving clause in
the Repealing Act, 2018 – Held: 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
                                                                          F
its repeal – Thus, the Manipur Legislative cannot be said to have
the competence to enact the saving clause in the Repealing Act,
2018.
       Repeal: Power of legislative body to repeal a law – Held:
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     G
obliterate it completely from the records of Parliament – 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therefrom, under the repealed statute.                                    H
                                 1057
1058            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


 A            Repeal: Distinction between declaration of a statute as
       unconstitutional by a Court of law and the repeal of a statute –
       Held: 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
 B
       exclusive domain of the Court – On the other hand, though the
       consequence of repeal is also obliteration of the statute with
       retrospective effect on past transactions, the Legislature is empowered
       to introduce a saving clause in the repealing act – Even in cases
       where a saving clause is not made, the provisions of the General
 C     Clauses Act are applicable to central statutes and the principles of
       the General Clauses Act can be made applicable to statutes made
       by the State Legislatures as well.
              Legislation: An unconstitutional law, be it either due to lack
       of legislative competence or in violation of fundamental rights
 D     guaranteed under Part III of the Constitution of India, is voidab
       initio – A statute which is made by a competent legislature is valid till
       it is declared unconstitutional by a court of law – After declaration
       of a statute as unconstitutional by a court of law, it is non est for all
       purposes – In declaration of the law, the doctrine of prospective
       overruling can be applied by this Court to save past transactions
 E     under earlier decisions superseded or statutes held unconstitutional
       – Relief can be moulded by this Court in exercise of its power under
       Art.142 of the Constitution, notwithstanding the declaration of a
       statute as unconstitutional – There is no question of repeal of a
       statute which has been declared as unconstitutional by a Court –
 F     Constitution of India – Art.142.
             Disposing of the appeals, the Court
             HELD: 1. Article 164(1) of the Constitution of India
       provides that the Chief Minister shall be appointed by the
       Governor and the other Ministers shall be appointed by the
 G     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 Constitution (Ninety-first
       Amendment) Act, 2003. The said Article limited the number of
       Ministers, including the Chief Minister, in the Council of
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       THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                       1059


Ministers in a State to 15 percent of the total members in the        A
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
                                                                      B
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.
[Para 8][1070-B-D]
      2. The Assam Legislature enacted the relevant statute in
2004, providing for appointment of members of the Assam               C
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         D
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. [Para 9]
[1070-F-H]
                                                                      E
       3. This Court in Bimolangshu Roy observed 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 Secretaries. It was noted that in some
cases, the power to legislate was conferred by certain Articles in    F
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,            G
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
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1060            SUPREME COURT REPORTS                       [2022] 1 S.C.R.


 A     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
 B
       State Legislature would still be competent to make laws on topics
       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
 C     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
 D
       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 Roy. In view of the said
       finding, the Court did not find it necessary to examine the other
       issues that had been identified. [Para 11][1071-E-H; 1072-A-D]
 E           Ujagar Prints & Ors. (II) v. Union of India & Ors. (1989)
             3 SCC 488 : [1988] 3 Suppl. SCR 770 – referred to.
             4. 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
 F     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 was that the Legislature had the competence
 G     to make the law in view of entry 39, which has to be given the
       broadest possible interpretation. [Para 13][1073-D-F]
            5. The Appellants in the present matter contended that this
       Court did not appreciate the relevance of entry 40 of List II while

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       THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                        1061


assessing the Assam Legislature’s competence to enact the              A
Assam Act, 2004. 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
                                                                       B
the other hand, entry 40 corresponds to Article 164 of the
Constitution. In Bimolangshu Roy this Court has correctly
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. The judgment of this Court in             C
Bimolangshu Roy does not require reconsideration. After the
judgment of this Court in Bimolangshu Roy, 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
                                                                       D
and therefore, the High Court committed an error in declaring
the 2012 Act as unconstitutional. [Paras 14, 15][1074-A-E]
      State of U.P. & Ors. v. Hirendra Pal Singh & Ors. (2011)
      5 SCC 305:[2010] 15 SCR 854 – relied on.
      Kay v. Goodwin (1830) 6 Bing. 576 – referred to.                 E
       6. 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      F
Bimolangshu Roy, while 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          G
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 holding that the

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1062            SUPREME COURT REPORTS                       [2022] 1 S.C.R.


 A     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
 B
       this Court in Bimolangshu Roy. [Para 16][1075-B-E]
               7.1 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
 C     one can be punished for having refused obedience to it before
       the decision was made. [Para 18][1076-A-B]
             Gokaraju Rangaraju v. State of Andhra Pradesh (1981)
             3 SCC 132: [1981] 3 SCR 474; Election Commission
             of India & Anr. v. Dr. Subramaniam Swamy & Anr.
 D           (1996) 4 SCC 104: [1996] 1 Suppl. SCR 637 – referred
             to.
             Norton v. Shelby County 118 US 425 (1886) – referred
             to.

 E            7.2 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 ab
       initio. [Para 19][1076-C]
             Behram Khurshid Pesikaka v. State of Bombay [1955]
 F           1 SCR 613; Deep Chand v. State of Uttar Pradesh &
             Ors. [1959] Supp 2 SCR 8 – relied on.
              8. 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. While repealing a statute, the Legislature is
 G
       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

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       THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                       1063


unconstitutional by a Court of law and the repeal of a statute by     A
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 past transactions, the Legislature is
                                                                      B
empowered to introduce a saving clause in the repealing act. Even
in cases where a saving clause is not made, the provisions of the
General Clauses Act are applicable to central statutes and the
principles of the General Clauses Act can be made applicable to
statutes made by the State Legislatures as well. The Manipur
Legislature enacted the Manipur General Clauses Act, 1966,            C
which came into force on 30.03.1966, by which the provisions of
the General Clauses Act, 1897 were made applicable to the
statutes of the Manipur Legislature. [Para 20][1077-A-E]
      I.C. Golak Nath & Ors. v. State of Punjab & Anr.[1967]
      2 SCR 762 – followed.                                           D
      State of Punjab v. Harnek Singh (2002) 3 SCC
      481:[2002] 1 SCR 1060 – relied on.
       9. 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         E
prospective overruling has been applied by this Court even where
the issue was being decided by the Court for the first time. While
laying down the principles of prospective overruling, this Court
in Golak Nath dealt with the scope of Article 142 of the
Constitution of India and held that the said provision enables the    F
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. [Paras 21 and 22][1078-B-D]
      India Cement Ltd. & Ors. v. State of Tamil Nadu & Ors.
      (1990) 1 SCC 12 : [1989] 1 Suppl. SCR 692; Orissa               G
      Cement Ltd. v. State of Orissa & Ors. 1991 Supp (1)
      SCC 430 : [1991] 2 SCR 105; Indra Sawhney & Ors.
      v. Union of India & Ors. 1992 Supp (3) SCC 217
      : [1992] 2 Suppl. SCR 454; General Manager,

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1064            SUPREME COURT REPORTS                      [2022] 1 S.C.R.


 A           Southern Railway v. Rangachari [1962] 2 SCR 586;
             Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997)
             5 SCC 201: [1997] 3 SCR 269 – referred to.
               10. A statute which is made by a competent legislature is
       valid till it is declared unconstitutional by a court of law. After
 B     declaration of a statute as unconstitutional by a court of law, it is
       non est for all purposes. 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. Relief can be moulded by this Court in exercise
       of its power under Article 142 of the Constitution, notwithstanding
 C     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
 D     of declaration of unconstitutionality of a statute have to be dealt
       with only by the Court. [Para 23][1080-E-H; 1081-A-C]
              11. The 2012 Act was not subject-matter of consideration
       by this Court in Bimolangshu Roy. In the said judgment, this Court
       was concerned only about the validity of the Assam Act, 2004. It
 E     is well within the competence of the Manipur Legislature to
       repeal the 2012 Act, which had not been adjudged as
       unconstitutional by any Court till the Repealing Act, 2018 was
       enacted. Further, there can be no doubt that the Legislature has
       the power to include a saving provision while repealing a statute.
       However, we have been called upon to assess whether, in the
 F     peculiar facts of the present case, the Manipur Legislature had
       the competence to introduce a saving clause in the Repealing
       Act, 2018. The undisputed facts are that the 2012 Act and the
       Assam Act, 2004 are in pari materia. The Assam Act, 2004 was
       declared as unconstitutional in Bimolangshu Roy. Public interest
 G     litigations were filed in the Manipur High Court challenging the
       vires of the 2012 Act. The Manipur Legislature decided to repeal
       the 2012 Act “in light of the judgment of this Court in” Bimolangshu
       Roy and “in the process of being a responsible Government which


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       THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                        1065


upholds the Rule of Law”, as have been categorically stated in         A
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 as unconstitutional, relying on Bimolangshu Roy.
However, before these matters were taken up by the High Court,
                                                                       B
the Manipur Legislature, taking cognizance of the ramifications
of Bimolangshu Roy and 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       C
light of the pending public interest litigations challenging its
constitutional validity before the High Court. Bearing in mind
these exceptional facts and circumstances, 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
                                                                       D
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. [Para 24][1081-D-H;
1082-A-C]
       12 Having held that the Manipur Legislature was not             E
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         F
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,
it is necessary to save only those acts, deeds and decisions duly
undertaken by the Parliamentary Secretaries under the 2012 Act         G
during their tenure. [Para 25][1082-C-E]
     13. Manipur Legislature was competent to enact the
Repealing Act, 2018. The saving clause in the Repealing Act,

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1066           SUPREME COURT REPORTS                      [2022] 1 S.C.R.


 A     2018 is struck down. However, this shall not affect the acts, deeds
       and decisions duly undertaken by the Parliamentary Secretaries
       under the 2012 Act till discontinuation of their appointments,
       which are hereby saved. [Para 26][1082-F]
             Bimolangshu Roy v. State of Assam & Anr. (2018) 14
 B           SCC 408:[2017] 13 SCR 301; Keshavan Madhava
             Menon v. State of Bombay [1951] SCR 228 – referred
             to.
                             Case Law Reference
       [2017] 13 SCR 301                 referred to           Para 2
 C
       [1988] 3 Suppl. SCR 770           referred to           Para 12
       [2010] 15 SCR 854                 relied on             Para 15
       [1981] 3 SCR 474                  referred to           Para 17
       [2002] 1 SCR 1060                 referred to           Para 17
 D
       [1996] 1 Suppl. SCR 637           referred to           Para 17
       [1955] 1 SCR 613                  relied on             Para 19
       [1959] Supp 2 SCR 8               relied on             Para 19

 E     [1951] SCR 228                    relied on             Para 20
       [1967] 2 SCR 762                  followed              Para 21
       [1989] 1 Suppl. SCR 692           referred to           Para 22
       [1991] 2 SCR 105                  referred to           Para 22
 F     [1992] 2 Suppl. SCR 454           referred to           Para 22
       [1962] 2 SCR 586                  referred to           Para 22
       [1997] 3 SCR 269                  referred to           Para 22
             CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 823-
 G     827 of 2022.
            From the Judgment and Order dated 17.09.2020 of the High Court
       of Manipur at Imphal in W.P. (C) No.317 of 2018, PIL No.10 of 2017,
       PIL No.16 of 2018, PIL No.7 of 2017, PIL No.9 of 2017.

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           THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                        1067


         With                                                              A
         Civil Appeal Nos. 828-832 of 2022.
      Tushar Mehta, SG, Lenin Singh Hijam, AAG, Narender Hooda,
Rajiv Dhawan, Sr. Advs., Shivendra Dwivedi, Rajesh Mahale, Anish R.
Shah, Abdulrahiman Tamboli, Rahul Joshi, Amit Sharma, Preetam Shah,
K. Krishna Kumar, Advs. for the appearing parties.                         B

         The Judgment of the Court was delivered by
         L. NAGESWARA RAO, J.
         Leave granted.
                                                                           C
       1. The Manipur Parliamentary Secretary (Appointment, Salary
and Allowances and Miscellaneous Provisions) Act, 2012 (Manipur Act
No. 10 of 2012) (hereinafter referred to as the “2012 Act”) 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   D
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.
                                                                           E
Appellants in Civil Appeals arising out of SLP (C) Nos. 2386-2390 of
2021 were appointed as Parliamentary Secretaries in 2017.
       2. The Assam Parliamentary Secretaries (Appointment, Salaries,
Allowances and Miscellaneous Provisions) Act, 2004 (hereinafter referred
to as the “Assam Act, 2004”), which had provisions similar to that of
                                                                           F
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
Royv. State of Assam & Anr.1 declared that the Legislature of Assam
lacked competence to enact the Assam Act, 2004. The Manipur
Assembly passed the Manipur Parliamentary Secretary (Appointment,          G
Salary and Allowances and Miscellaneous Provisions) Repealing Act,
2018 (hereinafter referred to as the “Repealing Act, 2018”) which
was notified on 04.04.2018. It was mentioned in preamble of the

1
    (2018) 14 SCC 408                                                      H
1068            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


 A     Repealing Act, 2018 that the 2012 Act was being repealed in light of the
       judgment of this Court in Bimolangshu Roy (supra). The Repealing
       Act, 2018 contained a saving provision to the following effect:
             “2. (1) XXX XXX XXX
             (2) Notwithstanding the repeal of the Manipur Parliamentary
 B           Secretary (Appointment, Salary and Allowances and
             Miscellaneous Provisions) 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
 C           anything done in official discharge of their duties by the
             Parliamentary Secretaries; or
             (b) any right, privilege or obligation incurred under the
             repealed Act.”

 D            3. In the meanwhile, the Appellants in Civil Appeals arising out of
       SLP (C) Nos. 2386-2390 of 2021 resigned from the post of Parliamentary
       Secretaries. It is also relevant to mention that PIL Nos. 7, 9 and 10 of
       2017 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 Petition (C) No. 317 of 2018 and
 E     PIL No. 16 of 2018. The PILs and the Writ Petition (C) No. 317 of 2018
       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
 F     Legislative Assembly who were appointed as Parliamentary Secretaries
       have filed the above appeals.
              4. 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, 2018 is a devious method to justify the
 G
       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
 H     way of the Repealing Act, 2018. The State Legislature could not have
        THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                              1069
                   [L. NAGESWARA RAO, J.]

provided for a saving clause in the Repealing Act, 2018 to justify acts       A
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 SLP (C)
Nos. 2386-2390 of 2021, learned Additional Advocate General appearing
for the State of Manipur in Civil Appeals arising out of SLP (C) Nos.         B
2001-2005 of 2021 and Mr. Narender Hooda, learned Senior Advocate
appearing for the Respondents in Civil Appeals arising out of SLP (C)
Nos. 2001-2005 of 2021.
       6. Dr. Dhawan submitted that the Appellants resigned as
Parliamentary Secretaries on 04.08.2017, while remaining members of           C
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. He argued
that Bimolangshu Roy (supra) was wrongly decided and should be
held to be per incuriam for not considering the relevant entry in List II     D
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,         E
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”).
                                                                              F
       7. 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
Roy (supra). The State of Manipur, accepting and following the judgment
in Bimolangshu Roy (supra), repealed the 2012 Act. Appointments made
to the post of Parliamentary Secretaries were discontinued after the          G
judgment in Bimolangshu Roy (supra). Applying the principles of the
said judgment to the 2012 Act, the saving clause could not have been
inserted in the Repealing Act, 2018, especially after the State Government
has accepted the judgment. The saving clause is only to justify the illegal
appointments that were made by virtue of the 2012 Act.
                                                                              H
1070             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


 A            8. Before proceeding to deal with the submissions made on either
       side, it is necessary to take note of the relevant provisions in the
       Constitution of India that would arise for consideration in this case. Article
       164(1) of the Constitution of India provides that the Chief Minister shall
       be appointed by the Governor and the other Ministers shall be appointed
       by the Governor on the advice of the Chief Minister, and that the Ministers
 B
       shall hold office during the pleasure of the Governor. Article 164(1-A)
       was inserted by the Constitution (Ninety-first Amendment) Act, 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
 C     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
 D
       Schedule. The relevant entries in List II of the Seventh Schedule are as
       below:
              “39. Powers, privileges and immunities of the Legislative
              Assembly and of the members and the committees thereof, and
 E            if there is a Legislative Council, of that Council and of the
              members and the 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.”
 F            9. 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 (supra)
 G     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.
 H
        THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                                1071
                   [L. NAGESWARA RAO, J.]

      10. The first submission of Dr. Rajeev Dhawan is that                     A
Bimolangshu Roy (supra) was wrongly decided and needs
reconsideration. The following issues arose for consideration before this
Court in the matter of Bimolangshu Roy (supra):
      “I. Whether the Legislature of Assam is competent to make
      the Act?                                                                  B

      II. Whether the creation of the office of Parliamentary
      Secretary would amount to a violation of the constitutionally
      prescribed upper limit of 15 % on the total number of the
      Council of Ministers?
                                                                                C
      III. Whether the concept of a “Responsible Government”
      envisaged under various provisions of the Constitution is in
      any way violated by the impugned enactment and therefore
      unconstitutional as being violative of the basic structure of
      the Constitution.
                                                                                D
      IV. Whether the theory of basic structure could be invoked at
      all to invalidate an enactment which is otherwise not
      inconsistent with the text of the Constitution.”
        11. This Court in Bimolangshu Roy (supra) observed that Article
194(3) of the Constitution deals with powers, privileges and immunities         E
of the House of the Legislature and its members but does not authorize
the State Legislature to create offices such as those of Parliamentary
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,
                                                                                F
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        G
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
                                                                                H
1072                SUPREME COURT REPORTS                         [2022] 1 S.C.R.


 A     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 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
 B
       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).
 C     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 Roy (supra). In view of the said finding, the
       Court did not find it necessary to examine the other issues that had been
       identified.
 D            12. Dr. Dhawan submitted that the relevant entry empowering
       the Manipur Legislature to make the 2012 Act is entry 40 of List II,
       which was not considered in Bimolangshu Roy (supra). Placing
       reliance on the judgment of this Court in Ujagar Prints & Ors. (II) v.
       Union of India & Ors.2, he argued that this Court committed an error
 E     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
 F     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
 G     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 members and communities, but this authority
       does not extend to creation of new offices.

       2
 H         (1989) 3 SCC 488
        THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                                1073
                   [L. NAGESWARA RAO, J.]

      13. In Ujagar Prints (II) (supra), this Court held as follows:            A
      “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              B
      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                    C
      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.”               D
       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 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            E
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        F
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 (II) (supra) held that the State Government can always         G
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
other entry, apart from entry 39, to substantiate its legislative competence
before this Court in Bimolangshu Roy (supra).
                                                                                H
1074                 SUPREME COURT REPORTS                      [2022] 1 S.C.R.


 A            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
 B
       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 (supra), wherein this Court has
       acknowledged and reiterated the need to be wary of the perils of
 C     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 that the judgment of this Court in Bimolangshu Roy (supra)
       needs reconsideration.
 D            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.
 E
                 In Kayv. 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
 F               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:
 G               “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 from the statutory

       3
           (1830) 6 Bing. 576, at p. 582
       4
 H         (2011) 5 SCC 305
         THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                             1075
                    [L. NAGESWARA RAO, J.]

       books, except for certain purposes as provided under Section           A
       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        B
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 Roy (supra), while 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         C
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            D
committed an error in 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           E
Bimolangshu Roy (supra).
       17. The crucial point that arises next for our consideration is the
validity of the saving clause in the Repealing Act, 2018. It was submitted
by the Appellants that any act done or decision taken during the currency
of the Repealing Act, 2018 required to be saved to avoid any confusion.       F
Dr. Dhawan submitted that decisions made by persons appointed under
the 2012 Act can be saved by virtue of (a) the de facto doctrine; (b) the
express saving provision of the Repealing Act, 2018; and (c) Section 6
of the General Clauses Act. He placed reliance on the judgments of this
Court in Gokaraju Rangarajuv. State of Andhra Pradesh5, State of              G
Punjabv. Harnek Singh6 and Election Commission of India & Anr.
v. Dr. Subramaniam Swamy & Anr.7 in support of his submissions.

5
  (1981) 3 SCC 132
6
  (2002) 3 SCC 481
7
  (1996) 4 SCC 104                                                            H
1076              SUPREME COURT REPORTS                             [2022] 1 S.C.R.


 A            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,
 B
       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
 C     III of the Constitution of India, is void ab initio. In Behram Khurshid
       Pesikakav. State of Bombay10, it was held by a constitution bench of
       this Court that the law-making power of the State is restricted by a
       written fundamental law and any law enacted and opposed to the
       fundamental law is in excess of the legislative authority and is thus, a
 D     nullity. A declaration of unconstitutionality brought about by lack of
       legislative power as well as a declaration of unconstitutionality brought
       about by reason of abridgement of fundamental rights goes to the root of
       the power itself, making the law void in its inception. This Court in Deep
       Chand v. State of Uttar Pradesh & Ors.11 summarised the following
       propositions:
 E
              “(a)Whether 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
 F            legislature to make laws in regard to the entries in the Lists of
              the Seventh Schedule subject to the other provisions of the
              Constitution and thereby circumscribes or reduces the said
              power by the limitations laid down in Part III of the
              Constitution;
 G            (c) It follows from the premises that a law made in derogation
              or in excess of that power would be ab initio void…”
       8
         Cooley on Constitutional Limitations, Volume I, page 382
       9
         118 US 425 (1886)
       10
          (1955) 1 SCR 613
       11
 H        1959 Supp (2) SCR 8
        THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                                1077
                   [L. NAGESWARA RAO, J.]

       20. The power of a legislative body to repeal a law is co-extensive      A
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
                                                                                B
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 past              C
transactions, the Legislature is empowered to introduce a saving clause
in the repealing act.13 Even in cases where a saving clause is not made,
the provisions of the General Clauses Act are applicable to central statutes
and the principles of the General Clauses Act can be made applicable to
statutes made by the State Legislatures as well (See: State of Punjabv.
                                                                                D
Harnek Singh (supra)). It is relevant to state at this point that the Manipur
Legislature enacted the Manipur General Clauses Act, 1966, which came
into force on 30.03.1966, by which the provisions of the General Clauses
Act, 1897 were made applicable to the statutes of the Manipur Legislature.
       21. Elaborating on the point relating to the exercise of powers by
the Court to save past transactions, it is necessary to refer to the law        E
laid down by this Court. Following American jurisprudence, the doctrine
of prospective overruling was applied in I.C. Golak Nath & Ors. v.
State of Punjab & Anr.14. In Golak Nath (supra), this Court held that
the power of the amendment under Article 368 of the Constitution of
India did not allow the Parliament to abridge the fundamental rights            F
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 Nath (supra):
                                                                                G
      “(1) The doctrine of prospective overruling can be invoked
      only in matters arising under our Constitution;

12
   Kay v. Goodwin (supra)
13
   Keshavan Madhava Menon v. State of Bombay 1951 SCR 228
14
   (1967) 2 SCR 762                                                             H
1078             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


 A            (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
 B            to its discretion to be moulded in accordance with the justice
              of the cause or matter before it.”
              Though Golak Nath (supra) 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
 C     overruling has been 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 Nath (supra) dealt 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
 D
       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
 E     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 automatically result in
       a direction for refund of amounts collected earlier. Relying upon the
 F     earlier judgments of this Court in Golak Nath (supra) and India Cement
       (supra),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,
 G     this Court overruled its earlier judgment in General Manager, Southern
       Railway v. Rangachari18 and held that reservation in promotions cannot

       15
          (1990) 1 SCC 12
       16
          1991 Supp (1) SCC 430
       17
          1992 Supp (3) SCC 217
       18
 H        (1962) 2 SCR 586
           THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                             1079
                      [L. NAGESWARA RAO, J.]

be provided under Article 16 of the Constitution of India but directed the      A
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 Sawhney
(supra) was void ab initio and vitiated the promotion of the respondents
                                                                                B
and therefore, operation of the unconstitutional direction could not be
postponed by prospective overruling of the ratio of Rangachari (supra);
(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               C
fundamental rights. The said points were answered by this Court in the
following terms:
          “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         D
          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           E
          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 mould the             F
          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             G
          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.

19
     (1997) 5 SCC 201                                                           H
1080               SUPREME COURT REPORTS                        [2022] 1 S.C.R.


 A           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,
 B
             the question of a law being void ab initio or nullity or voidable
             does not arise.
             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.
 C           The Rangachari [(1962) 2 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 to
 D           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 case [(1967) 2 SCR 762 : AIR 1967
             SC 1643] in the case of statutory law and of the judicial
 E           precedent in Karunakar case [(1993) 4 SCC 727 : 1993 SCC
             (L&S) 1184 : (1993) 25 ATC 704] and further elongated the
             principle postponing the operation of the judgment in Mandal
             case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
             (1992) 22 ATC 385] for five years from the date of the
 F           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 for.”
             23. The principles that can be deduced from the law laid down by
 G     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 law.
             II.     After declaration of a statute as unconstitutional by a court
                     of law, it is non est for all purposes.
 H
         THE STATE OF MANIPUR v. SURJAKUMAR OKRAM                                1081
                    [L. NAGESWARA RAO, J.]

       III.   In declaration of the law, the doctrine of prospective             A
              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         B
              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            C
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 (supra). In the said judgment, this Court
was concerned only about the validity of the Assam Act, 2004. It is well         D
within the competence of the Manipur Legislature to repeal the 2012
Act, which had not been adjudged as unconstitutional by any Court till
the Repealing Act, 2018 was enacted. Further, there can be no doubt
that the Legislature has the power to include a saving provision while
repealing a statute. However, we have been called upon to assess
whether, in the peculiar facts of the present case, the Manipur Legislature      E
had the competence to introduce a saving clause in the Repealing Act,
2018. The undisputed facts are that the 2012 Act and the Assam Act,
2004 are in pari materia. The Assam Act, 2004 was declared as
unconstitutional in Bimolangshu Roy (supra). Public interest litigations
were filed in the Manipur High Court challenging the vires of the 2012           F
Act. The Manipur Legislature decided to repeal the 2012 Act “in light
of the judgment of this Court in” Bimolangshu Roy (supra) 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        G
and the 2012 Act would have been declared as unconstitutional, relying
on Bimolangshu Roy (supra). However, before these matters were
taken up by the High Court, the Manipur Legislature, taking cognizance
of the ramifications of Bimolangshu Roy (supra) and acknowledging
the inferable unconstitutionality of the 2012 Act, has enacted the Repealing     H
1082              SUPREME COURT REPORTS                           [2022] 1 S.C.R.


 A     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
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       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.
 C            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
 D     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.
 E     In view of the relief provided, it is not necessary to refer to the de facto
       doctrine pleaded by Dr. Dhawan.
             26. 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
 F     the acts, deeds 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.

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       Devika Gujral                                              Appeals disposed of.




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