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2017 Supreme(SC) 686

J.CHELAMESWAR, R.K.AGRAWAL, A.M.SAPRE
Bimolangshu Roy (Dead) Through LRs – Appellant
Versus
State of Assam – Respondent


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












































































































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