Joel Rodrigues
In 2003, the Indian Parliament passed the Constitution (Ninety-First Amendment) Act 2003 to limit the design of jumbo cabinets at the state and central governments. The aim was to reduce the burden on the state exchequer. The National Commission to Review the Working of the Constitution (NCRWC) in ts report of March 31, 2002 had initially proposed to limit the cabinet size to 10% of the strength of the state legislature. The Parliament passed the amendment with a cap of 15% despite opposition and reservations of the states. It provided for six months to rectify the jumbo cabinets in the state where the existing size then exceeded the limit. The amended article read-
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 Chief Minister in a State shall not be less than twelve:
In the context of smaller state legislatures, the amendment directed that the number of ministers cannot be less than 12 inclusive of the Chief Minister. Nevertheless, the Supreme Court in May 2008 ruled that there is no violation of the law if a council of ministers has less members than the lower limit. On the contrary, the Supreme Court commended smaller cabinets unless it is very small, for e.g. with just five members. This was in the context of the then Himachal Pradesh CM Prem Kumar Dhumal who had a ten member council of ministers including himself (Dhananjay Mahapatra 2008). However, expecting the successive Nagaland state governments to trim down its cabinet to that extent and become more efficient is beyond the bounds of possibility.
Every time, Nagaland inducts 12 ministers and more, the action is in deliberate violation of the Indian constitution. It intentionally burdens the state’s exchequer when the state struggles with generating revenue or pay its various employees or beneficiaries of several central-sponsored schemes. In February 2017, when the new Democratic Alliance of Nagaland (DAN) government was sworn in with Shurhozelie Liezietsu as the Chief Minister, the state violated the various directives provided for the creation of the state cabinets. In addition to the 11 cabinet ministers, the government had six advisors and 24 parliamentary secretaries. Most of these additional advisors and parliamentary secretaries held the rank of cabinet ministers with designated portfolios even if the titles given to them was different. In addition, in March 2017, two working presidents of the NPF were also appointed as Advisors (Political) to the Chief Minister in the status of a Cabinet Minister with pay and alliance and all other facilities admissible to a Cabinet Minister.
In July 2017, another DAN government was sworn in with TR Zeliang as the chief minister after political upheaval in the state. He inducted 26 parliamentary secretaries and nine advisors in addition to the 11 cabinet ministers. This is a total of 47 members in the government while the strength of the state assembly is currently 59 members. The CM added that not all advisors would be in the rank of cabinet and that would be decided on the basis of seniority (‘TR Ministry expanded, 9 Advisors 26 Parliamentary Secy’s inducted’ 2017) but the parliamentary secretaries in Nagaland hold cabinet ranks. In the past, a cabinet minister in Nagaland earned a monthly salary of INR 55,000. With allowances, this total would rise to INR 1,07,000 per month. Interestingly, Imtikumzuk who held the position of deputy speaker of the assembly was also inducted as a parliamentary secretary.
There have been several High Court judgements striking down the creation of the positions of Parliamentary Secretaries after the 91st amendment. In June 2015, the Calcutta High Court ruled out that the state legislation of West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act 2012 was ‘unconstitutional and void’. The judgement struck down the appointment of 26 parliamentary secretaries in the state that were at par with the rank, status, salary and allowances of a minister of State (Manohar 2015).
In August 2016, the Punjab and Haryana High Court held that Parliamentary Secretaries are in the nature of Junior Ministers and their appointments amount to infraction of the provisions of Article 164 (1A) of the Constitution of India. It added that the Governor of the State or the legislature had no competence or legislative sanction to frame rules relating the conditions of appointment and services of Chief Parliamentary Secretaries and Parliamentary Secretaries for their functioning within within the House of the State Assembly (KM 2016). The Bombay High Court struck down the appointment of two Parliamentary Secretaries in Goa and the Himachal Pradesh High Court abolished the position of eight Chief Parliamentary Secretaries and four Parliamentary secretaries in the state prior to this (Bansal 2016).
In July 2017, the Supreme Court declared the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act 2004 unconstitutional thereby erasing the positions of the Parliamentary Secretaries for MLAs in Assam. It clarified that Article 194 of the Constitution and Entry 39 of List II do not empower State Legislatures to create new offices like Parliamentary Secretary. The Supreme Court held that the Legislature of Assam lacked competence to make the impugned Act which was passed immediately after the 91st amendment.
There is no ambiguity of the application of these judgements in the case of Nagaland. The creation of the Political Executive of the state is the creation of the constitution and not local laws. Hence, these would certainly not come under the privileges of Article 371 (A). In the light of the cases of Assam and West Bengal, the creation of a state Act to legitimise these positions merely seven months before the state elections will be unconstitutional as it can be read that the legislature of Nagaland is incompetent to create an act or the positions in this regard.
Recently, the Naga People’s Front’s press secretary Sebastian Zumvu told the New Indian Express, “The aims and objectives of downsizing of ministries were very noble but in a state that has various tribes, this ruling is going to create instability” (Mazumdar 2017). This cannot be held as a valid reason as every state in the country has similar divisions of tribes and castes, and what Nagaland faces is not different from others in this sphere. Designated ministers across the board might have largely looked inwards either to maintain the privileges received or to counter the injustice faced by the community s/he represented. Nevertheless, the portfolios and ministry are never tribe-specific and covers the entire state, unless otherwise noted in very few cases (like DUDA or tribal ministry). Demanding that every tribe should be represented with a designation is not mandatory if the state governments understand how they should function and how MLAs can facilitate development in their constituencies even without portfolios.
By December or January, the Election Commission’s moral code of conduct will be enforced in Nagaland. What will these ministers do in such little time, and was government effectiveness the intention for these appointments in the election year? The creation of several portfolios has never assured the desired implementation of projects and centrally-sponsored schemes in Nagaland. The rationale and the wisdom of the government in having a jumbo cabinet in defiance, therefore, lies exposed to the public of the state.
(Joel Rodrigues completed his Master of Arts in Peace and Conflict Studies from Tata Institute of Social Sciences, Guwahati campus)
