Parliamentary secretaries: India
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Parliamentary secretaries in various states: 2016
The Times of India, Jul 01 2016
Finding itself in a crisis over the appointment of 21 parliamentary secretaries, AAP on Thursday submitted to the Election Commission a list of MLAs from 13 states who, it claims, are occupying offices of profit.
Senior party member Sanjay Singh, who was part of the delegation, said: “These parliamentary secretaries have been drawing fat salaries, availing the same facilities available to ministers, and have been allocated bunga lows and staff. State governments are spending crores of rupees on these parliamentary secretaries. It's a clear case of office of profit.“
He said that there could not be two sets of rules. “On one hand, political parties are targeting Aam Aadmi Party in Delhi even though its MLAs are not getting any pecuniary benefits, while, on the other, they are spen ding crores on their own parliamentary secretaries.“
The party has submitted a complaint against 13 MLAs from Arunachal Pradesh, 11 from Chhattisgarh, five from Gujarat, four from Haryana, nine from Himachal Pradesh, 10 from Karnataka, five from Manipur, 18 from Meghalaya, seven from Mizoram, 24 each from Nagaland and Punjab, five from Rajasthan and two from Madhya Pradesh.
Six of these states are ruled by the BJP or a BJP-combine. The ruling party in Nagaland is the Naga Peoples Front, an ally of the NDA.
Delhi
The issue, its history, HC judgements
The Times of India, Jun 20 2016
Dhananjay Mahapatra The brazen corruption of the high and the mighty may grab headlines, but for ordinary people it is the ubiquity of everyday corruption that weighs heaviest. And that demoralises. Arvind Kejriwal, founder of India's `Parivartan', understands this, which is why his campaign for change begins with small things“ -this was what Ramon Magsaysay Award citation said about Kejriwal, who won it in the Emergent Leadership category a decade back. Kejriwal's watershed moment came with Anna Hazare's Jan Lokpal movement in 2011. He did not look back.His mentor fell on the way side as his crusade against corruption fuelled and fired the public imagination. Buoyed by seismic public support, he floated Aam Aadmi Party in November 2012.
He effortlessly portrayed himself as a victimised common man who wanted prevailing conditions to improve.His maiden attempt at elections fetched an impressive 27 seats in Delhi assembly in December 2013. But in February 2015, it was a landslide. AAP's broom swept away BJP and Congress. It won 67 of the 70 assembly seats. Kejriwal promised parivartan and a governance that would have nothing in common with those of past provided by Congress and BJP . But, the massive mandate had become a headache. Law permitted him to pick only six of 66 MLAs as members of his council of ministers.
How would he satisfy hopes, aspirations and expectations of 60 MLAs? In Delhi, a politician gets little attention if he had no governmental position. Congress and BJP , when in power, had appointed two or three MLAs as parliamentary secretaries to the CM. But, Kejriwal had to placate the vocal among 60 MLAs, who deserved but did not get a ministerial berth.
His mandate was to do things differently . But cir cumstances forced him to choose the much beaten track. He appointed 21 MLAs as parliamentary secretaries despite knowing that law counted these posts as `office of profit', which would disqualify them.
The appointments were made within two months of Kejriwal becoming CM. In April last year, he administered oath of office to them.Then he realised that he has pushed the 21 MLAs into a danger zone. Swiftly , an amendment to Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, was tabled in Assembly on June 23 last year. It retrospectively exempted these MLAs from `office of profit' disqualification. AAP's overwhelming majority made passage of the Bill a formality .
As a face saver, the Bill said parliamentary secretary post would not involve any additional financial assistance from the Central Government through substantive expenditure from the Consolidated Fund of the NCT Delhi. It also said that the Bill did not propose to confer power of legislation on the parliamentary secretaries.
But, the anti-corruption and anti-nepotism image of Kejriwal had got dented. The broom that was wielded in public to show his unwavering intent to sweep out corruption was used to sweep glaring political nepotism under the carpet. Unable to stomach criticism, Kejriwal asked -why is it wrong when he appoints parliamentary secretaries but right when BJP and Congress appointed them? By asking this, he blurred the distinguishing line between AAP, Congress and BJP. He had promised to eschew the nepotistic political path devised by BJP and Congress. The educated AAP leadership knew about rulings of high courts of Himachal Pradesh, Calcutta and Bombay , each branding the post of parliamentary secretary as unconstitutional. Probably Prashant Bhushan co uld have advised Kejriwal against it. But, like Hazare, he too had fallen aside during Kejriwal's tryst with power.
All three judgments ran on same line. The HP HC's 2005 verdict applied squarely to Delhi because Kejriwal had administered oath to 21 parliamentary secretaries at a time when no law authorised the CM to do so.
The HC had said -“parliamentary secretaries being holders of public office, it is not open to any individual to evolve a private arrangement whereby , by his whims he would administer oath because any such private arrangement not having the sanction of law would not cast upon parliamentary secretaries the corresponding obligation of maintaining secrecy as well as resultant legal consequences of their being exposed to the rigours of penal law if the oath is ever violated.“
“We therefore hold that the act of the CM in administering oath to parliamentary secretaries and the parliamentary secretaries subscribing oath of before the CM is without any sanction of law on the simple ground that no law empowers the CM to administer oath on them nor does any law prescribe the form of such oath.“
If Kejriwal wants to continue his crusade against corruption and nepotism, he must re-read the 2006 citation along with Magsaysay Award and the SC judgment in DTC Vs DTC Mazdoor Congress [1991 SCC Supl (1) 600] that warned political executives against exercising power arbitrarily .
It had said: “Vesting arbitrary power would be a feeding ground for nepotism and insolence; instead of subserving the constitutional purpose, it would defeat the very object, in particular, when the tribe of officers of honesty , integrity and devotion are struggling under despondence to continue to maintain honesty , integrity and devotion to the duty, in particular, when moral values and ethical standards are fast corroding in all walks of life including public services as well.“
The legality of the CM’s decision
The Times of India, Jun 15 2016
CM's authority to appoint parliamentary secys in question Who are parliamentary secretaries and what are their roles?
Parliamentary secretaries are ruling party members appointed to assist ministers. They are regarded for all practical purposes as deputy ministers having access to all official files and documents. Practice of appointing parliamentary secretaries is almost a century old. Canada had appointed three such secretaries to assist ministers during World War-I. Apart from Canada, it is in vogue at present in the United Kingdom, Australia, Ireland, Malaysia and most of the states in India.
How are they appointed?
In foreign countries, it is the Prime Minister who appoints his party members and legisla tors as parliamentary secretaries. In foreign countries, they are paid salaries and perks and special laws have been passed to exempt them incurring disqualification under “office of profit“ clause, which prohibits elected representatives from drawing salary in addition to emolu ments as legislator.
In India, state governments have been appointing parliament secreta ries from among MLAs, especially those who could not be included in the council of mini sters as junior mini sters because of Article 164 (1A) which limits the total number of ministers to 15% of the strength of the assembly .
In India, chief ministers appoint parliamentary secretaries and administer oath of office. In general, the number of parliament secretaries corresponds to the number of cabinet ministers.
Why high courts have struck down post of parliamentary secretaries?
Prior to the President's refus Prior to the President's refusal to give assent to the Bill passed on June 24, 2015, amending Delhi Members of Legislative Assembly (Removal of Disqualification) Act exempting 21 AAP MLAs appointed as parliamentary secretaries from the “office of profit“ disqualification, three high courts--Himachal Pradesh, Bombay and Calcutta--had quashed appointment of MLAs as parliamentary secretaries.
HP HC had said the CM had no authority to either appoint or administer oath of office to parliamentary secretaries. It had in August 2005 struck down appointments made by CM Virbhadra Singh and said: “Parliamentary secretaries are usurpers of public office since their appointments did not owe their origin to any constitutional or legal provisions, they having been appointed by a person not vested with the power of appointment“ [Citizen Rights Protection Forum case]. In 2009, the Goa bench of Bombay High Court had struck down ordinances issued by Digambar Kamat government appointing three parliamentary secretaries saying it violated the constitutional mandate under Article 164 (1A) [Aires Rodrigues case].
In June 2015, the Calcutta HC had struck down appointment of 13 parliamentary secretaries made by Mamata Banerjee government in 2013 despite these appointments being made under a 2012 law [Vishak Bhattacharya case].
Challenge to appointment of parliamentary secretaries in Punjab, Haryana and Rajasthan is pending adjudication in respective high courts.
What is the Supreme Court's take on this issue?
The SC has kept pending since 2005, the Himachal Pradesh government's appeal against the HC decision quashing the appointment of parliamentary secretaries. However, it had not stayed the HC judgment. Goa government did not appeal against the 2009 Bombay HC decision. But, the West Bengal government had appealed in SC against the Calcutta HC's last year decision. That too is pending. Given the spread of the issue tou ching almost every state, the SC would soon have to take a decision to lay down the binding law.
Will appointment of MLAs and MPs as chairman of public sector undertakings invite disqualification?
The possibility of attracting constitutional disqualification by MPs (under Article 102) and MLAs (under Article 191) on appointment as chairman of PSUs or government undertakings would kick in if the elected representative concerned draws any salary or perks as holder of the office to invite the wrath of these two Articles. However, there would be no disqualification if the posts so held by MPsMLAs have been duly exempted by Parliament or the state legislature.
What is the fate of the 21 AAP MLAs after President refused to give assent to the Bill exempting the office of parliamentary secretaries from the `office of profit' disqualification?
The first problem is that the Bill, which was moved in the assembly on June 23 last year and passed a day later, attempts to retrospectively exempt MLA-parliamentary secretaries from disqualification under Article 191 of the Constitution.
The problem gets compounded if one goes by the Calcutta HC verdict which had quashed the appointments despite these being made under West Bengal parliamentary secretaries (appointment, salaries, allowances and miscellaneous provisions) Act, 2012.
If there is no law, as is the case in Delhi now since President has declined assent to the Bill, the Election Commission would be inclined to accept the view of various high courts to ask these 21MLAs why they be not disqualified.
Parliamentary secretaries are de facto ministers: Law Ministry
The Times of India, Jun 15, 2016
Bharti Jain Parl secys de facto ministers: Law min
While declining assent to Kejriwal government's bill seeking to exempt 21 AAP MLAs appointed as parliamentary secretaries from the purview of “office of profit“, the President went by the law ministry's opinion that the appointees were de facto ministers and, taken with regular ministers, exceeded the rule that the council of ministers cannot exceed 10% of the strength of the assembly . The Delhi Members of Legisla tive Assembly (Removal of Disqualification) Amendment Act, 2015, was referred to the home ministry which opined that the “bill is violative of Article 239AA(4) of the Constitution, which provides that the council of ministers shall not be more than 10% of the total number of members in the legislative assembly of Delhi“.
The home ministry reached the conclusion that the situation could have been avoided if the AAP government had stuck to procedures set out in the transaction of business rules and the existing legal provision which states that just one parliamentary secretary can be appointed to the CM.
The legal affairs department is said to have cited two high court orders regarding the matter. The first relates to Aires Rodrigues vs The State of Goa, 2009, where the court ruled that parliamentary secretaries represented the government in the assembly and, while assisting the CM, would have the authority to pass orders. They would also participate in the decision-making process and take decisions themselves and this, in “spirit and substance“, meant they were equivalent to Cabinet ministers.
Quoting another verdict in Vishal Bhattacharya vs The State of West Bengal and Others (2015), the department pointed out how the court quashed the Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act, 2012, on the ground that “the description of parliamentary secretary and duties assigned to them is nothing but allowing an MLA to become de facto minister“.
Incidentally , the appointment of parliamentary secretaries in states like Punjab, Haryana and Karnataka has been challenged in court, stayed in Telangana, and quashed in Goa and West Bengal. In Rajasthan, their number is within the ceiling laid down for its council of ministers.
The opinion on the illegality of the appointments was approved at the highest level in the law ministry and formed the basis of the home ministry's recommendation to the President to reject the bill on the grounds of being “unconstitutional“. The President withheld assent to the bill and this was communicated to lieutenant governor of Delhi Najeeb Jung on June 10.
A MHA officer dismissed Kejriwal's argument that the post of parliamentary secretary in Delhi was not an “office of profit“ as none of the 21 appointees were drawing salaries, perks or other benefits. “If a parliamentary secretary is handling government files and taking decisions, it is deemed an office of profit,“ he told TOI.
Ministry officials also refuted that a decision on the bill referred to it by the Delhi government was being delayed, saying that each of the 10 pending bills had either been returned with queries or was at different stages of consultation with central ministries concerned.
As regards the sub-judice matter relating to appointment of parliamentary secretaries, the MHA said appointments were not covered under the existing law. As per the GNCTD Act, 1991, the maximum number of ministers can be seven for Delhi.
Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997
The Times of India, Jun 14 2016
Ambika Pandit & Abhinav Garg
Staring at crisis, CM turns guns on PM
The President's refusal to give assent for bringing an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 has cast a shadow on the future of the 21 parliamentary secretaries appointed by the Aam Aadmi Party government through an administrative order last year. The Election Commission of India has, meanwhile, been looking into the office of profit allegation under a petition. AAP was holding an emergency meeting on Monday night to discuss the crisis, with Chief Minister Arvind Kejriwal in the chair. The govenrment's restlessnes was evident as the CM took to twitter to mount his defence.He yet again chose to hit out at Prime Minister Narendra Modi, saying that “Modi does not respect democracy . He is only scared of AAP“. In a series of tweets, he said: “We did not give a single paisa to any MLA, neither car nor bungalow. All MLAs were working for free. Modiji says sit at home, don't do any work.“ He added: “One MLA was put in charge of power, one of water and another of hospitals and one MLA of schools. Modiji says neither will I work, nor will I let anyo ne work.“
According to constitutional experts, the President's refusal has moved the 21 MLAs one step closer to certain disqualification. The EC has alredy issued these MLAs a show-cause notice on the same ground earlier, and decision by the President denies the exemption Kejriwal wanted to give them for shielding them from disqualification under Office of Profit rules.
Legal experts said the role of EC is now largely academic and procedural since the head of state has in a way settled the issue. Former solicitor general Mohan Parasaran told TOI that once the “President has decided not to accord his assent, the complaint before EC doesn't survive. It remains an academic discussion since the President has decided on a higher plane.“
The former secretary general of Lok Sabha, Subhash C Kashyap, agreed. “The legal position is that having occupied an office of profit, these 21 MLAs stand disqualified. Disqualification has to be done by President in consultation with EC under Article 192.“
An AAP government spokesperson, however, claimed that this was not the end of the road as the amendment to the legislation was aimed at bringing the parliamentary secretaries under the category exempted from disqualification on grounds of office of profit so that they could be given some “essential perks“ which they were not getting now. As far as the petition in EC was concerned, the spokesperson argued that this was a different matter as it was not about the legislation but on the question of whether these MLAs come under the purview of the “office of profit“. He added: “We have been arguing repeatedly that they do not come under the office of profit as they don't get any financial benefits.“
In June 2016, the Delhi government had moved the amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997. It sought to exempt the parliamentary secretaries from the office-ofprofit disqualification provisions retrospectively , so that “necessary benefits and perks could be given to them to enable them to execute their duties“. These parliamentary secretaries to ministers don't figure on the list of posts exempted from the office-ofprofit rule as of now. The appointments have been questioned repeatedly .
The assembly had passed the Bill without the prior approval of the LG or the Centre (see box).
