Supreme Court stays Himachal Pradesh HC direction removing ‘protection’ to 6 MLAs appointed as CPS

On November 13, the Himachal Pradesh High Court had held the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges and Amenities) Act, 2006, as unconstitutional, saying it violated Article 164 (1-A) of the Constitution, which mandates the size of state Cabinet not to exceed 15 per cent of the Assembly’s strength.

The high court ruling came on a clutch of petitions, including those by 12 state BJP MLAs challenging the state legislature’s competence to enact the law in question.

The Sukhvinder Singh Sukhu government formed in December 2020 had appointed six MLAs as CPS and granted them facilities equivalent to those of state ministers. However, the high court observed that the appointment of Ram Kumar Chaudhary (Doon), Sanjay Awasthi (Arki), Ashish Butail (Palampur), Sunder Singh Thakur (Kullu), Mohan Lal Brakta (Rohru), and Kishori Lal (Baijnath) was an “indirect attempt” to circumvent Article 164 (1-A) as each CPS was allotted several departments and entitled to benefits akin to a Cabinet minister.

Holding their appointments unconstitutional, the high court said in paragraph 50 of the judgment that “accordingly, protection granted to such appointment to the office of Chief Parliamentary Secretary/ or Parliamentary Secretary as per Section 3 with Clause (d) of Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971 is also declared illegal and unconstitutional and thus, claim of such protection under above referred Section 3(d) is inconsequential. Natural consequences and legal implications whereof shall follow forthwith in accordance with law”.

On Friday, the Supreme Court bench did not stay the entire high court order but only the consequences that would follow the directions in paragraph 50.

Appearing for the state government, senior advocates Kapil Sibal and A M Singhvi made a request for staying the direction. Opposing the prayer, senior advocate Maninder Singh, who appeared for the respondents, pointed out that in 2022, the Supreme Court had struck down a similar law passed by Manipur. He contended that the Himachal Pradesh appointments were made after the 2022 order and hence should not be protected from disqualification.

CJI Khanna, however, said, “The thumb rule is, when admitting appeal, status quo be maintained…”.

The court also agreed with the appellants that there was no discussion in the judgment on the detailed reasons to strike down the protection from disqualification.

“Second legislation was passed which says this would not amount to office of profit, but it was also struck down, no discussion was done in the judgement…,” CJI Khanna observed.