Written: Kaunain Sheriff M, Sanjeev Verma, Parimal A Dabhi, Mahim Pratap Singh, Samudra Gupta Kashyap, Sreenivas Janyala
The Case of Delhi
A retrospective amendment, but ‘no burden on Exchequer’
On March 14, 2015, Arvind Kejriwal appointed 21 MLAs as “Parliamentary Secretaries to the Ministers of the Government of Delhi for smooth functioning of the government”. The notification clarified that “the Parliamentary Secretaries will not get any remuneration or perks from the government — meaning no burden on Exchequer”.
On June 1, 2015, the Calcutta High Court declared unconstitutional the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2012, using which Mamata Banerjee’s government had appointed 26 Parliamentary Secretaries, with benefits at par with Ministers of State. “State has no authority to frustrate the Constitutional mandate and over-reach the constitutional restriction (under Article 164(1)(A) of 15% of the strength of the Assembly on the number of Ministers),” the court said.
On June 19, 2015, lawyer Prashant Patel filed a complaint before the President of India seeking the disqualification of the 21 MLAs appointed as Parliamentary Secretaries. The same evening, the Delhi Cabinet approved the proposal to keep the Parliamentary Secretaries out of the purview of Office of Profit.
On June 24, 2015, the Delhi Assembly passed an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 — the second amendment to this law. The original (1997) Act, which exempted two offices from disqualification under the Office of Profit criterion (Chairman of the Khadi and Village Industries Board and Chairperson of the Delhi Commission for Women) was amended in 2006 (when the BJP was in power in Delhi) — and a third office was exempted: “Office of the Parliamentary Secretary to Chief Minister”.
The second amendment, brought by the AAP government, said that “after the words ‘Chief Minister’, the words ‘and Minister’ shall be inserted”. This in effect exempted not just the Parliamentary Secretary to the CM, but all 21 Parliamentary Secretaries.
The amendment Bill was introduced in the Assembly on June 23, 2015, and passed the next day — June 24. But it was “deemed to have come into force on the 14th day of February, 2015” — a month before the notification on the appointment of the 21 Parliamentary Secretaries was issued. — KAUNAIN SHERIFF M
The Cases Elsewhere
Salaries, Perks and intervention by the High Courts
FOUR Chief Parliamentary Secretaries appointed on July 23, 2015. House strength is 90, and the state can’t have more than 14 ministers (15%). It has 13, including Chief Minister Manohar Lal Khattar.
AMENDMENT: The Haryana State Legislature (Prevention of Disqualification) Amendment Act, 2006, placed the office of Parliamentary Secretary outside the definition of ‘Office of Profit’.
CHALLENGE: Just after the appointment of the CPSes, advocate Jagmohan Singh Bhatti went to the Punjab and Haryana High Court, saying it defeats the purpose of the 91st Constitutional Amendment Act, 2004, which capped the membership of the Council of Ministers at 15% of the number of MLAs. The government replied that the CPSes were neither Ministers nor Deputy Ministers, they had not usurped any public office, they had been appointed in the public interest to assist Ministers, and that CPSes had been appointed in Haryana and Punjab since the states’ formation. The case remains pending before the High Court.
SALARY & PERKS: CPSes draws the same salary as MLAs: Rs 30,000 per month salary, Rs 30,000 per month constituency allowance, Rs 15,000 monthly telephone allowance, Rs 5,000 monthly sumptuary allowance, Rs 5,000 monthly office allowance and Rs 10,000 monthly secretarial allowance. Like MLAs, they are entitled to an official vehicle, residential accommodation on concessional rates, and free travel anywhere in India or abroad up to Rs 2 lakh per year.
STATE SAYS: According to Haryana Advocate General Baldev Raj Mahajan, “We have already exempted CPS from the Office of Profit by amending the Haryana State Legislature (Prevention of Disqualification) Act in 2006. CPSes do not enjoy the status of Minister or Deputy Minister, they can’t take independent decisions. But since they perform additional work as compared to other MLAs, they enjoy a little additional benefit.”— SANJEEV VERMA
FIVE MLAs have been appointed Parliamentary Secretaries by the Chief Minister.
AMENDMENT: The post has existed in Gujarat since 1960. It was exempted from the purview of Office of Profit by The Gujarat Legislative Assembly Members (Removal of Disqualifications) Act, 1960.
STATUS & PERKS: Parliamentary Secretaries are equivalent to Ministers of State. Each Parliamentary Secretary is assigned a Department, the Cabinet Minister for which he/she assists. Each Parliamentary Secretary gets an official residence, car and office.
STATE SAYS: According to senior Cabinet Minister and Gujarat BJP chief Vijay Rupani, “We’ve had the system of Parliamentary Secretaries for long. They help the government take its various welfare schemes to the people, and assist the government in resolving people’s grievances. Ours is a legal system, I don’t know what the provisions are in Delhi and whether the government there is entitled to make such appointments.”— PARIMAL DABHI
FIVE Parliamentary Secretaries; stated duty is to assist Ministers in charge.
AMENDMENT: The Rajasthan Legislative Assembly Members (Removal of Disqualification) Act, 1956, exempted Parliamentary Secretaries from disqualification under the Office of Profit rule.
RANK & PERKS: The Rajasthan Ministers Salaries (Amendment) Act, 2012, gives them status equivalent to Minister of State. With effect from April 1, 2012 Parliamentary Secretaries have been getting a monthly salary of Rs 27,000, a sumptuary allowance of Rs 30,000, plus travelling and other allowances. They are entitled to medical facilities for self and family, and to housing, conveyance, telephone, postal and other facilities. They are also allowed to spend Rs 1,00,000 per annum at their discretion.— MAHIM PRATAP SINGH
NO Parliamentary Secretary currently; Chief Minister Sarbananda Sonowal is yet to appoint his full quota of ministers.
AMENDMENT: Section 2 of The Assam State Legislature Members (Removal of Disqualifications) Act, 1950, says, “A person shall not be disqualified for being chosen as, or for being, a member of the Assam Legislative Assembly by reason of the fact that he holds any of the offices specified in the Schedule appended hereto (in so far as it is an Office of Profit under the State Government).” This section protects from disqualification MLAs who hold posts including Parliamentary Secretary, Government Pleader, etc.
24 Parliamentary Secretaries in the 60-MLA House.
AMENDMENT: The Nagaland State Legislature Members (Removal of Disqualification) Act, 1964, is almost a copy of the Assam Act, and provides the same protection to MLAs appointed as Parliamentary Secretary.
19 Parliamentary Secretaries in the 60-member Arunachal Assembly.
AMENDMENT: The Arunachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2007, provides for the exemption.
PAY & PERKS: Under Section 4 of the 2007 Act, Parliamentary Secretaries have the rank of Minister of State, with the same pay and perks. However, unlike in Assam and Nagaland, Section 9 of the Act says that a Parliamentary Secretary in Arunachal Pradesh shall not, during his term, practice any profession or engage in any trade or commerce, and undertake for remuneration any employment other than his duties as Parliamentary Secretary.
18 Parliamentary Secretaries currently
RANK & SALARY: In April 2016, the Meghalaya Parliamentary Secretary (Appointment, Salaries, Allowances and Miscellaneous Provisions) (Amendment) Ordinance, 2016, was brought to delete a clause equating the rank of the Parliamentary Secretary with that of a Minister. The salary of a Parliamentary Secretary is the same as that of a Minister of State.
5 Parliamentary Secretaries
RANK & SALARY: The Parliamentary Secretary (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act gives them the rank of MoS along with salary and other allowances.
RANK & SALARY: Under The Mizoram Parliamentary Secretary (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, they enjoy the status of Minister of State, with the same salary and allowances.— SAMUDRA GUPTA KASHYAP
NO Parliamentary Secretaries currently. On December 29, 2014, the state government had issued The Telangana Parliamentary Secretaries (Appointment,Salaries, Allowances and Misc Provisions) Ordinance, 2014 (which later became an Act), and appointed six TRS MLAs as Parliamentary Secretaries with the status of Cabinet Ministers. After the High Court stayed the appointments, however, the government informed it on June 13, 2015, that they had been withdrawn.
CHALLENGE: Congress MP G Sukhender Reddy and TDP MLA Revanth Reddy challenged the appointments and the constitutional validity of The Telangana Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2015, saying it violated Article 164(1A), capping the number of Ministers. The TRS government’s 18 Ministers filled the entire 15% quota in the 119-MLA Telangana legislature, and there was no scope for further appointments, even with a different name like Parliamentary Secretary. On May 1, 2015, a Division Bench of the High Court deemed the appointments illegal.— SREENIVAS JANYALA