SC invalidates appointment of Assam Parliamentary Secretaries

    Morung Express News Dimapur | July 26   The Supreme Court, on Wednesday, declared as unconstitutional the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004.   The Bench headed by J Chelameswar with RK Agrawal and AM Sapre held that the State Legislature is “not authorized to create offices of Parliamentary Secretaries” 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 Act was on November 3, 2004 passed and published in the Official Gazette of the State of Assam on December 29, 2004. As per the act, “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 of the Act also declared that the PS “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.   Consequently, on May 30, 2005, eight Parliamentary Secretaries were appointed in exercise of the power under “the Act and they took oath of office, but were not assigned any ministry.”   A Writ Petition (PIL) No.30/2005 was filed on April 13, 2004 in the High Court of Gauhati by Late Bimolangshu Roy challenging the constitutional validity of the Act. On August 21, 2006, the Supreme Court has allowed transfer of the petition and registered the same as Case (Civil) No. 169 of 2005.   In its judgment the SC said that the bench examined two pertinent issues from the petitioner’s submission. Firstly, whether the Legislature of Assam is competent to make the Act? And 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 Council of Ministers?   Looking into the matter through the Article 194 which deals “exclusively with the powers and privileges of the legislature, its members and committees thereof” the Bench observed that “the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question.”   “For the above-mentioned reasons, 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.”   Various petitions in the High Court have challenged the appointment of Parliament Secretary, arguing that the post is in contradiction to Article 164 (1A). In September 2016, the Delhi High Court set aside the appointment of 21 AAP MLAs as parliamentary secretaries by Arvind Kejriwal government.   The Hindu reported in June 2016 that the Calcutta High Court quashed the appointment of 24 Parliamentary Secretaries in West Bengal dubbing it unconstitutional in June 2015. Similar action was taken by the Bombay High Court in 2009; Goa and by the Himachal Pradesh High Court in 2005. In May 2015, the Hyderabad High Court stayed the appointment of Parliamentary Secretaries in Telangana. The matter is sub judice in Punjab and Haryana.