- July 27, 2017
‘office of profit case’ Look how Constitution stand on dispute
NAGALAND POST ————-In a big blow to states who have appointed legislators as parliamentary secretaries, the Supreme Court on Wednesday declared as unconstitutional the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004.
A bench headed by Justice J Chelameswar allowed the plea challenging validity of the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 on the ground that it violated the mandate under Article 164 (1A) which stipulates an upper limit of 15 per cent as the strength of the council of ministers.
The question posed before the Court was whether Article 194(3) and Entry 39 of List II of the 7th Schedule authorized the State Legislature to make the impugned Act.
Entry 39 indicates the field of legislation regarding the powers, privileges, and immunities of the house of legislatures. Article 194(3) authorizes the State legislature to prescribe by law, the powers, privileges and the immunities of the members and the committees of a House of such Legislature.
The Court ruled that Article 194 does not expressly authorize the State Legislature to create offices such as the one in question. It then made reference to Article 187 which makes stipulations with reference to the secretarial staff of the Legislature.
****** On January 1, 2004, the Constitution 91st Amendment Bill, 2003 was passed by both the Houses of the Parliament and after the Presidents assent, it became an act with modifications made to articles 75 and 164 of the Constitution.****
Article 164(1A) of the Act stipulated that the size of the council of ministers in the state should not exceed 15 per cent of the total strength of the assembly.
“We are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act.
In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment.
“The writ petition is allowed. The impugned Act is declared unconstitutional,” the bench, also comprising justices RK Agrawal and AM Sapre, said.
The bench noted in its judgement that at the time of the coming into force of 91st Constitutional Amendment Act, 2003, the strength of the council of ministers in Assam was at 36 out of a total 126 members which amounted to 28.57 per cent of the strength of the Legislative Assembly.
It further noted that in view of the mandate contained in Article 164(1A), the strength of the council of ministers was to be brought down to 19 as per the 15 per cent ceiling.
Thereafter, on May 30, 2005, eight parliamentary secretaries were appointed under the Act and they took oath of office, but were not assigned any ministry.
The petitioners had challenged the validity of the Act contending that the state was not competent to enact it and it was intended to “over-reach the mandate of the Constitution Amendment Act”.
Meanwhile on July 5 last, the Punjab and Haryana High Court quashed the appointment of four chief parliamentary secretaries in the government of Haryana.
The division bench of Justice S S Saron and Justice Darshan Singh pronounced the decision after hearing the PIL filed by advocate Jagmohan Singh Bhatti seeking quashing of their appointments. He has pleaded that there is no post of Parliamentary Secretary or Chief Parliamentary Secretary in the constitution.
However, on request of Haryana Government, the court has stayed the decision for three weeks granting time to file appeal in the upper court.
It may also be recalled that the Election Commission of India on June 24 refused to drop the ‘office of profit case’ against 21 Delhi AAP MLAs. EC concluded that the 21 AAP parliamentary secretaries, hence become accused in the “office of profit” case. The AAP MLAs are facing the threat of disqualification in the case.
Since the AAP MLAs held de facto posts of Parliamentary Secretaries from March 13, 2015, to September 8, 2016, the proceedings on the question of their disqualification will continue, the EC said in its order.
