New Delhi: Opining that the 2006 state law that allowed for the appointment of chief parliamentary secretaries (CPS) and parliamentary secretaries in Himachal Pradesh was “beyond the legislative competence of the State Legislature”, the high court Wednesday quashed it.
A bench comprising Justices Vivek Singh Thakur and Bipin Chander Negi set aside the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges and Amenities) Act, 2006, and ruled that the appointment of six CPS under the law was “illegal, unconstitutional, void ab-initio”.
Chief Minister Sukhvinder Singh Sukhu had appointed six Congress legislators—Sanjay Awasthy (Arki), Sundar Singh (Kullu), Ram Kumar (Doon), Mohan Lal Bragta (Rohru), Ashish Butail (Palampur) and Kishori Lal (Baijnath)—as CPS ahead of a cabinet expansion in January last year and attached them with ministers.
The court was hearing a batch of petitions challenging the competence of the state legislature to make the 2006 law which created the office of CPS and parliamentary secretary for members of the Himachal Pradesh Legislative Assembly.
The 2006 law allowed the CM to appoint any number of MLAs as CPS and parliamentary secretaries, and assign them any duties or functions that he or she deemed fit. The law said that these secretaries were entitled to amenities such as a car, furnished house and maintenance charges or residence allowance as well.
One of these petitions challenging the law was filed in 2023 by 12 BJP MLAs. Among other things, the petitioners had asserted that under Article 164 of the Constitution, the number of ministers cannot exceed 15 percent of the strength of the assembly.
Taking into account the privileges and amenities provided to parliamentary secretaries under the 2006 law, the court now opined that the distinction sought to be made between them and a minister was “artificial”.
The court then felt that the state legislature had tried to do indirectly what had been prohibited and limited by Article 164 of the Constitution, which was specifically amended in 2003 to cap the size of the council of ministers in a state to 15 percent of the total strength of the assembly.
“If there is a constitutional provision inhibiting the Constitutional Authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge,” the court observed.
Satpal Singh Satti, one of the petitioners, called the verdict a “victory for the people of Himachal Pradesh” and accused the government of spending excessively on CPS at the expense of public welfare schemes.
“This is justice for the people… the court has recognised that resources have been misallocated while essential programmes for the people suffer,” Satti told ThePrint.
Before the court, the state government had also questioned the petition on the ground that the petitioners, being legislators, never got the law repealed and some of them were appointees under the 2006 law themselves in the past.
However, the court rejected this contention, observing: “While it is true that the court is required to examine whether a litigation is really in public interest or to advance some other interest in the garb of public interest, at the same time, a public interest litigation cannot be thrown out only because the petitioner belongs to a rival political party.”
The state government has decided to challenge the high court order in the apex court. Advocate General Anup Rattan told mediapersons: “The court has not considered some facts provided by us. Will challenge the ruling in the Supreme Court.”
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Similar Assam law
A similar law creating the office of parliamentary secretary was created by the Assam Assembly in November 2004.
In a verdict passed in July 2017, a three-judge bench of the Supreme Court had quashed the Assam law, holding that the state legislature lacked the competence to create the post of parliamentary secretaries.
The law was passed after the 91st Constitutional Amendment Act of 2003 amended Articles 75 (Provisions relating to Union Council of Ministers) and 164 (Provisions relating to State Council of Ministers) of the Indian Constitution. Among other things, this amendment says that under Article 164, the size of the council of ministers in a state should not exceed 15 percent of the total strength of the assembly.
The apex court noted that when the 91st constitutional amendment came into force in 2003, the strength of the council of ministers in Assam was at 36, amounting to 28.57 percent of the strength of the 126-member assembly. Therefore, in order to adhere to the mandate of the amended Article 164, the strength of the council of ministers was to be brought down to 19 to be consistent with the 15 percent ceiling.
While the petitioners relied on violation of Article 164 among other things, the Supreme Court had quashed the Assam law noting that Article 194—which deals with powers, privileges, etc., of the Houses of Legislatures—does not authorise the state legislature to create the office of parliamentary secretary.
It took note of other constitutional provisions as well, which speak about other offices, like that of the Speaker, and the secretarial staff of the legislature, and observed that there was an elaborate and explicit constitutional arrangement with respect to the legislature and the various offices connected with it.
The Himachal Pradesh High Court now felt that the Supreme Court judgement in the Assam case squarely covers the case before it, and observed: “The office created by the impugned Act for a Member of the Himachal Pradesh Legislative Assembly in the State of Himachal Pradesh is also beyond the legislative competence of the state legislature.”
‘Just like ministers’
The high court noted that the 2006 law’s “statement of objects and reasons” said “the object behind the appointment of the chief parliamentary secretaries and the parliamentary secretaries is to strengthen parliamentary affairs and make the system more efficient and effective and to serve the twin purpose of lightening the overburden of ministers and also to afford opportunity to youth members to share higher responsibilities in future”.
The court then asserted that the “legislature cannot violate the mandatory constitutional prohibitions by employing an indirect method”.
It noted that while there is no express provision conferring the rank and status of a minister on a parliamentary secretary, “hidden status provided to such office is unveiled from the ‘object’ of the law”.
It noted that the CPS and parliamentary secretaries are provided access to files and the power to record notes in the form of a proposal on the files for consideration of the minister-in-charge. It further noted that they also have perks and facilities similar to a minister.
The court further pointed out that the CM had allotted departments to CPS, and they had been attached with state cabinet ministers like deputy/junior ministers. It even pointed out that before the court’s interim order passed in January this year, CPS had been permitted to fly the national flag and display the “Ashoka Chakra” emblem on their vehicles and use the government seal/emblem.
“In fact, they were being allowed to enjoy the rank and status of a minister,” the court opined.
Not the first time
In August 2005, a single-judge bench of the Himachal Pradesh High Court had quashed the appointments of CPS and parliamentary secretaries in the state.
The government had then passed the 2006 law, creating the post.
In January this year, the high court had refused to restrain the six CPS from performing their functions, but added that “they shall not perform and discharge the functions of ministers and no status, privileges and benefits, available and equivalent to the ministers, shall be extended to them”.
(Edited by Nida Fatima Siddiqui)
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