The Supreme Court Bench comprising Justice J. Chelameswar, Justice R.K. Agrawal and Justice A.M. Sapre has declared Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 ass unconstitutional.
On January 1, 2004, the Constitution 91st Amendment Bill, 2003 was passed by Parliament. This Assam Act was passed after the Union Parliament had amended Articles 75 and 164 thereby restricting the size of the Council of Ministers in the State to 15% of the total strength of the Assembly.
It was alleged by the petitioners that the impugned Act was an attempt to over-reach the 15 per cent mandate brought about by amendment to the Constitution.
Supreme Court held that the Legislature of Assam lacked the competence to create the post of Parliamentary Secretaries.
“We are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act. In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment.”The writ petition is allowed. The impugned Act is declared unconstitutional,” the bench, also comprising justices R K Agrawal and A M Sapre, said.
The question posed before the Court was whether Article 194(3) and Entry 39 of List II of the 7th Schedule authorized the State Legislature to make the impugned Act.
Entry 39 indicates the field of legislation regarding the powers, privileges, and immunities of the house of legislatures. Article 194(3) authorizes the State legislature to prescribe by law, the powers, privileges and the immunities of the members and the committees of a House of such Legislature.
The Court ruled that Article 194 does not expressly authorize the State Legislature to create offices such as the one in question. It then made reference to Article 187 which makes stipulations with reference to the secretarial staff of the Legislature.
The Bench therefore observed that the Legislature of Assam lacked the competence to make the impugned Act, and declared it unconstitutional.
The court said, “Article 194 does not expressly authorise the state legislature to create offices such as the one in question.”
Background:
Several states have created posts of ‘parliamentary secretary’ or ‘chief parliamentary secretary’ to ‘accommodate’ MLAs who could not become ministers.
The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004, was promulgated on November 3, 2004, and on December 29, 2004, the Act was passed and published in Assam’s official gazette.
Thereafter, on May 30, 2005, eight parliamentary secretaries were appointed under the Act and they took oath of office, but were not assigned any ministry.
These appointments were challenged on the ground that it would amount to a violation of the constitutionally prescribed upper limit of 15% on the total number of council of ministers.