[ Nani Bath ]
The appointment of parliamentary secretaries started in the early years of India’s independence under the prime ministership of Jawaharlal Nehru. D Ering from Arunachal Pradesh and S C Jamir from Nagaland were once the parliamentary secretaries to the Prime Minister (Nehru).
As the constitution of India did not have specific provision for the appointment of parliamentary secretaries, such appointments were definitely extra-constitutional, if not unconstitutional. The issue of appointment of parliamentary secretaries became instant national news on July 27, 2017, the day the apex court declared the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 as unconstitutional.
The Act in question was passed by the then Tarun Gogoi-led Congress Government in Assam. The government appointed eight parliamentary secretaries with the rank and status of a minister of state. The appointments were quashed by the court on the ground that it violates Article 164 (1-A) of the Constitution which restricted the number of ministers to 15 percent of the total strength of a state assembly.
The Kolkata High Court had quashed a bill for the appointment of parliamentary secretaries in 2015. The Court agreed that state legislature is entitled to make appropriate rules and procedure for conducting its own business, but “the dominant purpose must be to regulate the business of the floor and not to subvert the restrictions imposed by the constitution as to the number of the Council of Ministers”. “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”.
The state High Court of Himachal Pradesh had struck down the appointment of Chief Parliamentary Secretaries and Parliament Secretaries, terming the appointments as void ab initio (to be treated as invalid from the outset) “right from the threshold”. It held that “Parliamentary Secretaries are usurpers of public office since their appointments did not owe their origin to any constitutional or legal provision, they having been appointed by person(s) not vested with the power of appointment”.
Similarly, a bill passed by the Goa Legislative Assembly for appointment of parliamentary secretaries in 2009 was quashed by the Mumbai High Court (Goa bench). The court called the entire decision making process and the final decision of the assembly as “arbitrary, unjustifiable, unconstitutional and serve no public interest”.
The concept of parliamentary secretary owes its origin to the United Kingdom. Often referred to as Private Parliamentary Secretary, he is a Member of Parliament who assists an individual minister with no extra perks or remuneration. A parliamentary secretary has no ministerial role. It is said that the first parliamentary secretaries were appointed during World War I, when Robert Borden was the Prime Minister. There are some writings suggesting that in the 1730s, Prime Minister Robert Walpole used the services of his brother and fellow Member as PPS.
The purpose and intent of the appointment of PPS in the United Kingdom was basically to acquaint the backbenchers/junior Members of Parliament of the government’s activities and share a minister’s parliamentary responsibilities. Parliamentary secretaries may also perform extra-parliamentary duties for the minister such as fulfilling speaking engagements, attending ceremonies, or meeting delegations. It is often regarded as a political ‘training ground’ for future ministers.
Since India adopted the Westminster model of Parliamentary democracy, the practice of appointment of parliamentary secretary was adopted too. Of late, such appointments have been made, by redefining their role and responsibilities, with definite political motives. Many of the states have created acts/rules giving them the status of a Cabinet Minister or a Minster of State.
The practice of appointment of parliamentary secretaries remained out of public focus and judicial scrutiny as the Constitution 91st Amendment Act and Anti-defection laws were not in existence then.
What necessitated Anti-defection laws in India?
Theoretically India was a multi-party state but in practice single-party dominance prevailed in the 1950s and early part of 1960s. As such, the heat of ‘defection disease’ and its effects were neither comprehended nor anticipated.
The coalition era began in Indian politics after 1967 elections. The Congress party, for the first time, had to face defeats in almost all the sixteen states that had gone to polls. This election also triggered a series of political defections. It is reported that some 142 MPs and over 1900 MLAs are estimated to have changed their political colours (1967 to 1971). Economic and political benefits of the defectors were so huge that one of the defectors was awarded Chief Ministership in Haryana.
Several but not-so-serious attempts were made to arrest the politics of ‘Aya Ram-Gaya Ram’ (reference to one legislator from Haryana, Gaya Lal, who changed his party thrice a day). The Fifty-second Constitutional Amendment Act (1985) inserted the Tenth Schedule to the Constitution of India, which we all know as the “Anti-Defection law”.
The Tenth Schedule originally recognised a ‘split’ if at least one-third members of the legislature party decided to form or join another political party. This was changed by the 91st Constitutional Amendment Act, 2003. It now recognises a ‘merger’ that requires at least two-third members of a legislature party to join another political formation or form a new one. It also inserted article 164(1A) in the constitution which stipulates that the size of the council of ministers in the state should not exceed 15 per cent of the total strength of the assembly.
Thereafter, it became difficult for the political parties to keep their flocks together. It is in this context that the appointment of parliamentary secretaries assumes significance. It aims at circumventing the restrictions imposed by the 91st Amendment Act, as per the Supreme Court observation.
The incumbent BJP government in Assam has no parliamentary secretary so the recent SC ruling will not have any bearing on it. With the resignation of all seven parliamentary secretaries Mizoram became the first state in the Northeast to implement SC verdict. No parliamentary secretary was ever appointed in Tripura. The states of Manipur and Meghalaya too have parliamentary secretaries.
It is anticipated that Nagaland could become the first state to face political instability after the Supreme Court. Only recently the chief minister T R Zeliang had appointed 26 parliamentary secretaries, who were among a group of MLAs who had helped him wrest power from his predecessor Shurhozelie Liezietsu.
There are 24 parliamentary secretaries in Arunachal Pradesh. They were appointed under The Arunachal Pradesh Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2007. Section 2(c), Section 3 and Section 4 of the Act are in toto replication of the Assam Act, 2004.
Section 4 of the Act declares that parliamentary secretary should be of the rank and status of a Minister of State. They, therefore, are entitled to draw salaries and allowances as per the Arunachal Pradesh Salaries and Allowances of Ministers Act, 1983, as amended in 2000.
The legal position as it stands today is that the source of appointment, purpose of appointment, duties and functions and the perks and privileges confirmed on such parliamentary secretary is on par with a minister of state. Moreover, the Ministry of Law (Government of India) is of the opinion that the parliamentary secretaries appointed by the Aam Admi Party government in Delhi are de facto ministers.
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. But after some months, Pema Khandu may have been politically compelled to go for 24 numbers of parliamentary secretaries.
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.
Pema is already gripped with challenges- both within and outside the party. Sources have confirmed that PPA with tacit support from some of the legislators from within the party had already attempted ‘political coup’ against his ministry. There are factions within the state unit of the party. The party is also divided on the considerations of ‘New BJP’ and ‘Old BJP’.
Some of the MLAs from Tani belt look to be unhappy with his and his deputy, Chowna Mein’s style of functioning (Chowna Mein holds the portfolios of Planning and Finance). Financial allocations under SADA (State Annual Development Agenda) are highly skewed since huge amount of finances are diverted for the ‘development’ of Namsai district and Mon region.
Adoption of the Tibetan Rehabilitation Policy, 2014 by the Government of Arunachal Pradesh might possibly become too hot an issue for Pema and his associates to handle. I have been consulted on the issue by almost all the visible NGOs and some students’ organisations. Pema’s inability to settle the Lower Siang district imbroglio sends out a clear impression that he is not in full control of the government. (The writer is a senior lecturer of Rajiv Gandhi University)