Parliament secretary posts had been struck down by apex court and HCs

NEW DELHI: The impending blow of disqualification of 20 of its MLAs could have been softened if the AAP government had acted with prudence in first enacting a law creating the posts of parliamentary secretaries and exempting legislators from the “office of profit” clause.
If the AAP government had done so, the affected MLAs could have lost their seats by a court order rather than being unseated by the Election Commission.Instead, the AAP leadership committed the mistake of first appointing MLAs as parliamentary secretaries and later enacting a law to provide retrospective legal backing to the posts and prevent disqualification.
The Supreme Court and the HCs have consistently held that it was constitutionally impermissible to create posts of parliamentary secretary through legislations by states to appease MLAs who could not be accommodated in the Council of Ministers because of a ceiling imposed by Article 164(1A) of the Constitution.
Parliament had on January 1, 2004 passed the Constitution 91st Amendment Bill, 2003, to modify Articles 75 and 164 of the Constitution. This Act provided that under Article 164(1A), the size of the Council of Ministers in a state should not exceed 15% of the total strength of the Assembly.
A SC bench headed by Justice J Chelameswar had on July 26 last year struck down a law passed by the Assam Assembly 13 years ago to allow then Congress government headed by Tarun Gogoi to appoint MLAs as parliamentary secretaries even after Parliament capped the number of ministers.
The SC had also quashed appointment of parliamentary secretaries by some other states which had used the executive order route as was done by the AAP government in Delhi, terming them as illegal. In September 2016, appointment of AAP MLAs as parliamentary secretaries was also struck down by the Delhi high court.
In June 2015, the Calcutta HC had quashed appointment of 24 parliamentary secretaries in West Bengal terming it unconstitutional and said, “The statute in question is nothing but an enactment to overcome the limitation or restriction imposed under Articles 164(1A) of the Constitution of India. Hence, it is repugnant to the Constitution and deserves to be struck down. Accordingly, the writ petitions are allowed. The enactment of West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012 is struck down.”
In 2016, the Punjab and Haryana HC had struck down Punjab Parliamentary Secretaries and Chief Parliamentary Secretaries (Terms and Conditions of Appointment) Rules, 2006 holding it to be contrary to Article 164(1A). The Bombay HC had in 2009 struck down appointment of two parliamentary secretaries in Goa. The Himachal Pradesh HC had in 2005 in a similar ruling struck down appointment of eight chief parliamentary secretaries and four parliamentary secretaries.
In the Assam case decided by the SC in June last year, it was stated that at the time of the coming into force of the 91st Constitutional Amendment Act, 2003, the strength of the Council of Ministers in the state was at 36 out of a total str0ength of 126 MLAs, or 28.57% of the strength of the Assembly. In view of the mandate contained in Article 164(1A), strength of the Council of Ministers was to be brought down to 19 to be consistent with the 15% ceiling.