IMPORTANT POINTS
Legislative authority under Article 246 r/w Entries in Seventh Schedule would be eliminated if a dedicated article exists authorizing the making of law on a particular topic.
There is no logical uniformity in the scheme of the three lists of the Seventh Schedule of the Constitution.
The principle of constitutional interpretation that “each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it” is applicable to provisions of the Constitution which are sources of power. Cannot be applied to Entries in the three Lists which are only indicative of the fields of legislation.
Legislature of Assam lacks the competence to make the impugned Act.
The impugned Act declared unconstitutional.

Headnote:(a) Constitutional law – Validity – Power to make the legislation flows from sources like express text of the Constitution; by implication from the scheme of the Constitution; and as an incident of sovereignty – Legislative authority under Article 246 r/w Entries in Seventh Schedule – Would be eliminated if a dedicated article exists authorizing the making of law on a particular topic – Even in absence of Entries 38, 39, 40 in List II the State Legislatures would be competent to make laws w.r.t. the topics indicated in those 3 entries, under the authority contained in Articles 164(5), 186, 194, 195 etc. – No legislation not within contemplation of the said Articles 164(5), 186, 194, 195 etc. can be made under Entries 28, 39 an 40. (Para 21, 32)
       (1993) Supp. 1 SCC 96 (II); (1990) 1 SCC 12 – Referred
       (b) Constitution of India – Seventh Schedule – Entries, List I, II and III – Not sources of the legislative power – Only indicative of the fields with respect to which the appropriate legislature is competent to legislate – Salient features of the broad pattern of the Lists – (i) Fields of importance for sustaining the federation, exclusively assigned to the Parliament, (ii) Only specified fields of legislation assigned to State legislatures, (iii) Residuary legislative power conferred in the Parliament; (iv) taxing entries are distinct from the general entries, and (v) List III does not contain a taxing entry – No logical uniformity in the scheme of the three lists. (Para 26, 28, 29, 30)
       17 US 316 (1819); (1936) AC 578; (1939) 1 FCR 18; (1990) 1 SCC 109; (1969) 2 SCC 166 – Relied upon
       (c) Interpretation of Constitution – Each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it – Applicable to provisions of the Constitution which are sources of power – Cannot be applied to Entries in the three Lists which are only indicative of the fields of legislation. (Para 17, 18, 31)
       (2002) 8 SCC 228; (1984) 2 SCR 145 (Canada) – Relied upon
       (d) Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 – Validity – Constitution of India – Article 194(3) r/w Entry 39, List II, Seventh Schedule – Article 194 does not expressly authorise the State Legislature to create offices such as the one in question – “The powers, privileges and immunities” contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators – Held, Legislature of Assam lacks the competence to make the impugned Act – The impugned Act declared unconstitutional. (Para 44, 45)
       Facts of the case:
       The vires of Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 (hereafter THE ACT) is questioned in this case.
       Finding of the Court:
       Legislature of Assam lacks the competence to make the impugned Act.
       Result: Petitions allowed.

Judgement Key Points

A repeal can infringe upon constitutional provisions on grounds other than legislative competence if it violates the fundamental principles or basic features of the Constitution, such as the doctrine of the basic structure or the constitutional mandate of responsible government. Specifically, a repeal may be unconstitutional if it undermines the core constitutional values, rights, or the balance of powers established by the Constitution, regardless of whether the legislative authority to enact or repeal laws was properly exercised (!) (!) .

Furthermore, if the repeal affects the constitutional scheme of governance, such as responsible government or the independence and powers of legislative bodies, it can be deemed unconstitutional. This is because the Constitution embodies certain essential features that cannot be altered or overridden by legislation, including repeals. Repealing a law that is integral to the constitutional framework or that protects fundamental rights can thus be challenged on the grounds that it contravenes the constitutional guarantee of the rule of law and the constitutional order (!) (!) .

In essence, even if the legislature has the competence to repeal a law, such a repeal may still be invalid if it contravenes other constitutional provisions, principles, or the fundamental structure of the Constitution, which are protected from legislative alteration.

JUDGMENT

Chelameswar, J.

1. Transferred Case (Civil) No.169 of 2006 arises out of Writ Petition, PIL NO.30/2005 on the file of the High Court of Gauhati. The vires of Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 (hereafter THE ACT) is questioned in the writ petition.

2. Brief facts of the case are as follows:

On 1.1.2004 the Constitution 91st Amendment Bill, 2003 was passed by both the Houses of Parliament. This Bill after the assent of the President became an Act with modifications made to Articles 75 and 164 of the Constitution. This Act inter-alia provides under Article 164(1A) [The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State:
Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve;
Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint.

] that the size of the Council of Ministers in the State should not exceed 15% of the total strength of the Assembly.

3. At the time of the coming into force of the 91st Constitutional Amendment Act, 2003, the strength of the Council of Ministers in the State of Assam was at 36 out of a total 126 members, amounting to 28.57% of the strength of the Legislative Assembly. In view of the mandate contained in Article 164(1A) the strength of the Council of Ministers was to be brought down to 19 to be consistent with the ceiling of 15% imposed by Article 164(1A).

4. On 3.11.2004, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004 was promulgated. On 29.12.2004 THE ACT was passed and published in the Official Gazette of the State of Assam. We may briefly refer to the crucial provisions of the Act;

Section 2(c) of the Act defines Parliamentary Secretary as follows:-“‘Parliamentary Secretary’ means a Member of the Assam Legislative Assembly appointed as the Parliamentary Secretary under this Act by the Chief Minister.” Section 3 stipulates; “The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretaries and assign to each of them such duties and functions as he may deem fit and proper.”

Section 4 declares that Parliamentary Secretary should be of the rank and status of a Minister of State and exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister. [Section 4 – A Parliamentary Secretary shall be of the rank and status of a Minister of State and shall exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister by way of a notification published in the official Gazette.]

Section 7 deals with the salary and allowances of the Parliamentary Secretary. [Section 7. A Parliamentary Secretary shall be entitled to such salary and allowances as are admissible to a Minister of State under the Assam Ministers, Ministers of State and Deputy Ministers Salaries and Allowances Act, 1958.]

5. Writ Petition (PIL) No.30/2005 was filed on 13.04.2005 in the Hon’ble High Court of Gauhati challenging the constitutional validity of THE ACT. On 24.01.2006, the High Court of Gauhati adjourned the hearing of the said PIL in light of similar matters involving the same questions of law which had come up for hearing in this Court in SLP No. 22038 of 2

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2017 Supreme(SC) 686

SUPREME COURT OF INDIA J. CHELAMESWAR, R.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.Bimolangshu Roy (Dead) Through LRs – PetitionersVersus State of Assam & Another – RespondentsTRANSFERRED CASE (CIVIL) NO.169 OF 2006 Decided On : 26-07-2017

Cases Referred (5)

SUPREME COURT OF INDIA
J. CHELAMESWAR, R.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.
Bimolangshu Roy (Dead) Through LRs – Petitioners
Versus
State of Assam & Another – Respondents
TRANSFERRED CASE (CIVIL) NO.169 OF 2006
Decided On : 26-07-2017