Many chief ministers and ministers appoint MLAs as secretaries. As this is violative of the constitution, 21 Delhi MLAs appointed in this manner have been issued notices by the Election Commission
By Devender Singh Aswal
Parliament, in exercise of its constituent power and responding to public demand, put a ceiling on the size of the council of ministers. It amended Articles 75 and 164 and inserted a new sub-clause (1A) to each article vide the 91st Constitution (Amendment) Act in 2003. This ordains that the total number of ministers shall not be more than 15 percent of the total number of a particular legislature.
The proviso to sub clause 1A of Article 164 further provides that the number of ministers, including the chief minister, in a state shall not be less than 12, thus taking care of the states with MLAs less than 100. But, politics, perhaps the most ingenious calling, always finds new ways and means to circumvent the law so as to further parochial politics. Many chief ministers, unable to induct more legislators in the council of ministers due to constitutional constraints, appoint their MLAs as parliamentary secretaries in order to assist them or the ministers, ostensibly, in the discharge of their legislative functions.
A parliamentary secretary is neither a minister nor does he remain an uncompromisingly ferocious legislative watchdog once he is offered luring crumbs of power or the largesse of the executive. He cannot be privy to cabinet discussions; in the absence of that, he is bound to remain an errand boy of the chief minister or the minister concerned.
Before a minister enters office, the president, in the case of the Union and the governor, in the case of a state, administers to him the oaths of (a) office and (b) secrecy according to the form set out for the purpose in the Third Schedule of the constitution. A minister is sworn not to communicate or reveal directly or indirectly to any person or persons any matter which is brought for his consideration. In this regard, a parliamentary secretary is not a constitutional functionary and therefore, cannot be privy to any discussions in the cabinet. Nor is he responsible to the legislature as members of the council of ministers are.
The office of a minister is not an office of profit in view of the express constitutional provisions, whereas a member incurs disqualification if he holds an office of profit under the government, be it the Union or the state. In case a question of such disqualification arises, the president in the case of an MP and the governor in case of an MLA can declare it so after obtaining the opinion of the Election Commission (EC). If it is established that the legislator was occupying an office under the government and the office was an office of profit, i.e., capable of giving pecuniary gain or material benefit regardless of the quantum of gain, the membership is liable to disqualification, unless specifically protected by the Parliament (Prevention of Disqualification) Acts granting exemptions to certain offices.
OFFICE OF PROFIT
Besides, by way of a writ petition, a member can be disqualified by the court as happened in the case of Jaya Bachchan and Shibu Soren who were disqualified for holding office of profit under the state governments of UP and Jharkhand, respectively. Sonia Gandhi re-signed from the 14th Lok Sabha as her membership was under challenge.
The Kolkata High Court only last year struck down the appointment of 24 parliamentary secretaries by the West Bengal government. The message was loud and clear—the ceiling imposed by the constitution with respect to the size of the council of ministers cannot be exceeded by way of appointment of parliamentary secretaries.
The sword of Damocles also hangs over 21 MLAs of the Delhi Legislative Assembly who were appointed as parliamentary secretaries by the Kejriwal government. The EC, based on a petition filed last year, had issued notices to all 21 asking them to explain not later than April 11, the validity of their appointment.
The matter is under consideration of the EC. But the situation is grave, as in view of the clear constitutional provisions and judgments of the Supreme Court, the advice of the EC and the decision of the lieutenant-governor are bound to be on obvious lines. The plea that parliamentary secretaries assist ministers in legislative work is a specious argument. It is also in direct conflict with the principle of separation of powers and violative of the constitutional restraint on legislators not to accept any office of profit under the government.
MLAs, being legislators and entrusted by the constitution to secure accountability of the executive to legislature and mount effective and unremitting legislative oversight over the executive, cannot be subordinate to ministers or act as their chaperones or errand boys. Legislators are parliamentary watchdogs and any attempt to make them subservient to the executive must be opposed tooth and nail. What is explicitly prohibited by the constitution cannot be circumvented indirectly by the executive.
In the words of Ronald Dworkin, one of the leading jurist and political philosopher of modern times, “legislatures must be free to make policy, which is a utilitarian calculation of the greatest good for the greatest possible number”. Where any authority infringes the constitution or resorts to extra-constitutional measures to strangulate its soul, it is incumbent upon constitutional institutions to discharge their functions, issue appropriate orders and uphold the statute.
—The writer is additional secretary, Lok Sabha
(This article features in India Legal – May 15 issue)