Can legislators use the saving clause to infuse life into legislation which is declared unconstitutional by court?

 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 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 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 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 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.

                                 Supreme Court

JUSTICE L. NAGESWARA RAO JUSTICE B.R. GAVAI JUSTICE B.V. NAGARATHNA

The State of Manipur & Ors. Vs. Surjakumar Okram & Ors.

Civil Appeal Nos. 823-827 of 2022

1st February 2022

Author: L. NAGESWARA RAO, J.

Citation:  2022 ALL SCR (ONLINE) 109

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Whether court can reduce sentence if legislature has prescribed minimum sentence without discretion?

When the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Dipak Misra and Amitava Roy, JJ.)

Mohd. Hashim v.  State of U.P. & Ors. 

Criminal Appeal No. 1218 of 2016

(Arising out of S.L.P. (Crl) No. 6104 of 2014)

Decided on November 28, 2016

Citation:2016 SCC OnLine SC 1440,(2017) 2 SCC 198

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Whether legislature can overrule any decision my making cosmetic changes in law?

In so far as points Nos. (iii) and (iv) are concerned, if the law passed by a Legislature is struck down by the Courts as being invalid for one or the other reason, it would be competent for the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. (See: Rai Ramakrishna vs. State of Bihar, MANU/SC/0031/1963 : AIR 1963 SC 1667). The Legislature can pass a retrospectively validating action taken under a law which was void because it contravened fundamental rights. If the legislature can by retrospective legislation, cure the invalidity of action taken in pursuance of laws which are void for want of legislative competence and can validate such action by appropriate provisions, the same power can be effectively exercised by the Legislature for validating action taken under laws which are void for the reason that they contravened fundamental rights. (See: West Ramnad Electric Distributioon Co. Ltd. vs. State of Madras, MANU/SC/0060/1962 : AIR 1962 SC 1753). It was held that Legislature can change the basis on which a decision is given by the Court, and thus change the law in general, which will affect a class of persons and events at large. The Legislature can render judicial decisions ineffective by enacting a valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the Court; if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. (See: Indian Aluminium Company vs. State of Kerala, MANU/SC/0370/1996 : AIR 1996 SC 1431).

And it is also laid down by the Apex court in Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union vs. Srinivasa Resorts Limited and others, MANU/SC/0436/2009 : (2009) 5 SCC 342, in a situation where in circumstances that a statute is held to be unconstitutional, the offending provisions are sought to be reintroduced with cosmetic changes, as in the present case on hand, thus:

"62. Section 40(3) is clearly comparable to Section 47(3) and also Section47(4), as the last part of that section is identical with the wording in Section 47(4). The only difference which we find is that instead of the word "gratuity", the terminology of "service compensation" is substituted. In our opinion, the High Court was right in opining that a mere cosmetic amendment could not have been made by way of introduction of Sections47(3) and 47(4). It was tried to be argued before us that in the present 1988 Act, the mischief pointed out by the High Court in the earlier Section40(3) of the 1966 Act has been remedied. We are unable to agree with such an argument. We do not see as to how and in what manner, the mischief has been remedied.

64. The High Court also noted that the provisions of Sections 47(3) and47(4) were nothing, but a cosmetic amendment to the earlier Section40(3). It is, therefore, clear that no attempt has been made, whatsoever, to point out (sic remedy) the mischief found by the High Court in Section40(3) of the 1966 Act.
70. The High Court found that instead of remedying the defects point out in Suryapet Coop. Mktg. Society Ltd. v. Munsif Magistrate, (1972) 2 An LT 163 a cosmetic change was made by raising the period of six months to one year. We are, therefore, unable to accept the submission of the learned counsel for the appellant that the High Court proceeded on to decide the constitutionality on the basis of a comparison. We do not, therefore, see how the aforementioned judgment in State of M.P. v. G.C. Mandawar, MANU/SC/0135/1954 : AIR 1954 SC 493, can be of any application and help to the present case."

Thus, it can be safely said that  amendment was brought about by Act No. 13 of 2012, bad in law for the above reason.

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Writ Petition Nos. 64805-64868, 65648-65680 of 2011 (GM-R/C), 72157 of 2012 and 80796-80822 of 2013 (GM-R/C) and 65539 of 2012 (GM-R/C)

Decided On: 17.11.2015

Appellants: Shri Maha Ganapati Shankara Devasthana and Ors.
Vs.
Respondent: State of Karnataka and Ors.

Hon'ble Judges/Coram:Anand Byrareddy and S. Sujatha, JJ.

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Whether legislature can annul judgment of court?

It is settled law by a catena of decisions of this Court that the legislature cannot directly annul a judgment of a court. The legislative function consists in "making" law [see: Article 245 of the Constitution] and not in "declaring" what the law shall be [see: Article 141 of the Constitution]. If the legislature were at liberty to annul judgments of courts, the ghost of bills of attainder will revisit us to enable legislatures to pass legislative judgments on matters which are inter- parties. Interestingly, in England, the last such bill of attainder passing a legislative judgment against a man called Fenwick was passed as far back as in 1696. A century later, the US Constitution expressly outlawed bills of attainder [see: Article 1 Section 9].

It is for this reason that our Constitution permits a legislature to make laws retrospectively which may alter the law as it stood when a decision was arrived at. It is in this limited circumstance that a legislature may alter the very basis of a decision given by a court, and if an appeal or other proceeding be pending, enable the Court to apply the law retrospectively so made which would then change the very basis of the earlier decision so that it would no longer hold good. However, if such is not the case then legislation which trenches upon the judicial power must necessarily be declared to be unconstitutional.

Supreme Court of India

S.T. Sadiq vs State Of Kerala & Ors on 4 February, 2015

Bench: Ranjan Gogoi, Rohinton Fali Nariman

Citation;AIR 2015 SC 1306

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Whether legislature can directly annul a judgment of a court?

The Apex Court has observed that as per the settled law the legislature cannot directly annul a judgment of a court. The legislative function consists in “making” law and not in “declaring” what the law shall be. If the legislature were at liberty to annul judgments of courts, the ghost of bills of attainder will revisit us to enable legislatures to pass legislative judgments on matters which are inter-parties. It is for this reason that our Constitution permits a legislature to make laws retrospectively which may alter the law as it stood when a decision was arrived at. It is in this limited circumstance that a legislature may alter the very basis of a decision given by a court, and if an appeal or other proceeding be pending, enable the Court to apply the law retrospectively so made which would then change the very basis of the earlier decision so that it would no longer hold good. However, if such is not the case then legislation which trenches upon the judicial power must necessarily be declared to be unconstitutional.

Supreme Court of India

S.T. Sadiq vs State Of Kerala & Ors on 4 February, 2015

Bench: Ranjan Gogoi, Rohinton Fali Nariman

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