Northeast States Yet to Implement SC Order Declaring Parliamentary Secretaries ‘Unconstitutional’

The highest number of parliamentary secretaries is in BJP-ruled Arunachal Pradesh, followed by Nagaland where the party is in alliance with Naga People’s Front.

At 31, the BJP government in Arunachal Pradesh led by chief minister Pema Khandu appointed the highest number of parliamentary secretaries in the Northeast. Credit: PTI

At 31, the BJP government in Arunachal Pradesh led by chief minister Pema Khandu appointed the highest number of parliamentary secretaries in the Northeast. Credit: PTI

New Delhi: On July 26, the Supreme Court struck down the post of parliamentary secretaries by declaring it “unconstitutional”.

The apex court’s judgement was in response to a writ petition filed in 2006 by one Bimalangshu Roy against the passage of Assam Parliamentary Secretaries (Appointment, Salaries, Allowances, and Miscellaneous Provisions) Act by the then Congress government in the state. The court had cited Article 194(3) and Entry 39 of List II of the seventh schedule of the constitution to note that it “doesn’t expressly authorise the state legislature to create offices such as the one in question.”

The bench, comprising Justices J. Chelameswar, R.K. Agarwal and A.M. Sapre had therefore held that the legislature of Assam lacked the competence to create the post of parliamentary secretaries.

The court also made a reference to Article 187, which has stipulations with reference to secretarial staff of the legislature.

“On the face of such elaborate and explicit constitutional arrangement with respect to the legislature and the various offices connected with the legislature and matters incidental to them to read the authority to create new offices by legislation would be a wholly irrational way of construing the scope of Article 194(3) and Entry 39 of List II. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject matter of the entry. ‘The powers, privileges and immunities’ contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators,” it observed.

Though the judgement was in reference to Assam, it would have no bearing on the state as the present BJP government hasn’t appointed any parliamentary secretaries. Following court orders last year, states like Delhi have also gotten rid of its parliamentary secretaries. Therefore, the Supreme Court order was at once seen to have an immediate effect on the composition of governments in as many as six northeastern states, four of which are either run by the BJP or its partners. In all, 93 parliamentary secretaries were expected to lose their jobs in these states due to the judgement.

Barring Tripura, all the other states in the Northeast followed the footsteps of the then Congress government in Assam and promulgated their own Act to appoint as many parliamentary secretaries as they wanted by creating provisions for their allowances, salaries and other perks including discretionary funds at par with a minister of state. These Acts were primarily brought in to accommodate legislators in the government beyond the stipulated number allowed by the constitution, particularly after the 91st amendment. As per that amendment, the ministry can’t be more than 15% of the total strength of the house. Ruling parties have treated these posts as political appeasements to keep their dispensation free of a possible defection.

Only Mizoram complying with court orders

The effect of the Supreme Cour judgement has so far been seen in only one northeastern state. On August 30, all the seven parliamentary secretaries in the Congress-ruled Mizoram handed over their resignation letters to chief minister Lal Thanhawla.

In Meghalaya, also a Congress-ruled state, there are presently 18 parliamentary secretaries who continue to hold the posts declared unconstitutional by the country’s highest court. Often used as a tool by the ruling parties to win the support of legislators for their dispensation, eight of those appointed by chief minister Mukul Sangma in the poll-bound state this past March were independents.

With the state government showing no sign of adhering to the SC court judgement, a public interest litigation (PIL) has been filed by one Madal Sumer in the Meghalaya high court challenging the appointments. According to local news reports, the high court has issued a notice on August 16 to the state government for a final hearing on the matter.

Yet another state that has seen a PIL in this regard is Nagaland. In July, after weeks of political uncertainty, the BJP engineered a new dispensation in the state with its longtime ally and North-East Democratic Alliance (NEDA) partner Naga People’s Front (NPF) along with a few independents. Chief minister T. R. Zeliang appointed as many as 26 parliamentary secretaries in his government, besides nine advisors, to keep it afloat.

Though civil society organisations like the Nagaland Tribes Council (NTC) have submitted written demands to the governor P.B. Acharya to remove the parliamentary secretaries as per the Supreme Court judgement, no action has been taken in this regard. On July 28, a delegation of Nagaland State Congress Committee also met the governor at Raj Bhavan to submit a memorandum demanding the resignation of the parliamentary secretaries. Interestingly, the governor has denied receiving any representation in this regard to the local media, thereby clearly attempting to skirt the issue.

In July, the BJP formed a government in Nagaland with its longtime ally Naga People's Party and appointed 23 parliamentary secretaries in an attempt to keep the dispensation afloat. Credit: PTI

In July, the BJP formed a government in Nagaland with its longtime ally Naga People’s Party and appointed 23 parliamentary secretaries in an attempt to keep the dispensation afloat. Credit: PTI

“Contrary to what he said, on August 18, we sent a letter to the governor urging him to remove these unconstitutional posts as per the SC order within seven days. However, he didn’t act on it. So we waited for another seven days. When he refused to act on it, we decided to form a committee to look into the matter which decided to file a PIL in the Kohima bench of the Gauhati high court,” NTC general secretary Nribemo Ngullie told The Wire from Dimapur.

While the ruling BJP and NPF leaders contend that “Nagaland can continue having these posts as it comes under Article 371A of the constitution which allows the state to form its own laws,” Nribemo said that, “Though the definition of the Article 371A is a bit different from what these parties are suggesting, the honourable court is bet suited to decide the matter and therefore we have gone to the court to sort the matter once and for all.”

On September 11, the bench, Nribemo said, “has forwarded the matter to the honourable chief justice of the Gauhati high court, which is the principal court, as the issue is constitutional in nature.”

Though these high courts are yet to pass judgments in these PILs, the Sikkim Democratic Front (SDF), a NEDA partner of the BJP, is yet to act even though the Sikkim HC on August 25 termed the posts “unconstitutional.” The high court was hearing a petition filed by Sikkim Krantikari Morcha (SKM) after three of its legislators joined the ruling SDF, who along with some other SDF MLAs were given allowances and perks akin to cabinet ministers. In all, the Pawan Chamling government has 11 parliamentary secretaries.

Even though the Sikkim High Court has termed the post of parliamentary secretaries as unconstitutional, Sikkim chief minister and BJP ally Pawan Chamling is yet to adhere to the directive. Credit: PTI

Even though the Sikkim high Court has termed the post of parliamentary secretaries as unconstitutional, Sikkim chief minister and BJP ally Pawan Chamling is yet to adhere to the directive. Credit: PTI

Speaking at a press meet in Gangtok after the high court ruling, O.P. Bhandari, the lawyer for the petitioners, said, “These parliamentary secretaries were given huge salaries, personal guards, government vehicles, personal secretaries, discretionary funds, etc. So it is not just a question of a few MLAs but is also about public funds [being] misused for political appeasements.”

However, till date, the Chamling government is yet to demand the resignation of the parliamentary secretaries adhering to the HC order. On September 8, one of the parliamentary secretaries, Bikram Pradhan, resigned on his own.

In Manipur too, the BJP-led coalition is yet to abolish these posts. This past March, chief minister N. Biren Singh, clearly keeping the stability factor in mind, accommodated 12 parliamentary secretaries in his government. In May, the Manipur high court issued a notice to the Biren Singh government in response to a PIL seeking directives to set aside the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions ) Act 2012 and the subsequent appointment made by the incumbent government. On July 17, seven of them resigned – prior to the SC judgment – reportedly because of a policy chalked out by the BJP that one couldn’t be a parliamentary secretary and a member of House committees formed by the chief minister at the same time. The rest, however, continue in the BJP led government.

Among all the northeastern states, the highest number of parliamentary secretaries is in the BJP-ruled Arunachal Pradesh at 31. With defections by state legislators common in the last two years, which has even lead to change of three chief ministers in close succession, current chief minister Pema Khandu, while defecting to the BJP to form a government in November 2016, tried to discourage future defection of the MLAs supporting him by accommodating them as parliamentary secretaries.

With barely any opposition left in that state now, there is no demand for removal of these unconstitutional posts. So far, according to news reports, only Arunachal Elite Forum, a civil society organisation, has demanded their resignation. In a press note issued after the Supreme Court judgement, it demanded that the government at once remove those posts as they “absorb huge financial involvements as the state is reeling under huge financial constraint and cannot afford them.”

In an article on the matter, political commentator Nani Bath wrote in the Arunachal Times, “BJP being one of the complainants against the appointment of parliamentary secretaries in Delhi, its government in Arunachal Pradesh was actually withholding similar appointments in the state…it would be interesting to observe how Pema Khandu and his BJP government handle the post-verdict situation and inevitable reallocation of portfolios in his Council of Ministers.”

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