size of the cabinet

Constitutionality of Parliamentary Secretaries

(Authored by Anil Nair) Many states in the Indian Union have instituted the post of Parliamentary Secretary.  A Parliament Secretary often holds the rank of Minister of State and has the same entitlements and is assigned to a government department.  Manipur, HP, Mizoram, Assam, Rajasthan, Punjab, Goa are some of the states where MLAs have been appointed Parliament Secretaries by the Government. PILs filed in various High Courts on the matter have argued that the appointment of Parliament Secretaries is ultra vires the 91st Amendment of the Indian Constitution which introduced Article 164 (1A) to the Constitution.  Article 164 (1A) provides for limiting the number of ministers in the state cabinets.  The total number of ministers including the Chief Minister, has to be within 15 per cent of the total number of members of the legislative assembly of the state.  Article 164 (1A) was inserted in the Constitution on the recommendation of the National Commission for Review of the Working of the Constitution headed by former Chief Justice of India, M.N. Venkatachaliah on misuse and drainage of public money to put a ban on over-sized cabinet. Various High Courts have deemed the appointment of Parliamentary Secretaries unconstitutional and have ruled against such appointments often in the past. In 2009, in the case of Adv. Aires Rodrigues vs The State of Goa and others (as cited in Anami Narayan Roy vs. Union of India), a Division Bench of the Bombay High Court discussed the impact of arbitrary State action relating to appointment of Parliament Secretaries in Goa.  It held that appointing Parliamentary Secretaries of the rank and status of a Cabinet Minister is in violation to Article 164 (1A) of the Constitution and set aside the appointment of two Parliamentary Secretaries in the state government. In 2005, in Citizen Rights Protection Forum vs Union of India and Others (decided on 18 August, 2005), the Himachal Pradesh High Court quashed the appointment of Chief Parliamentary Secretaries and Parliament Secretaries.  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’. Recently, newspapers have reported that the Rajasthan High Court issued notices to thirteen Parliamentary Secretaries in a petition challenging their appointments. Similarly, there have been news reports that the Punjab High Court has asked the state governments in Punjab and Haryana to provide information on appointment of Chief Parliamentary Secretaries in the states.  Punjab and Haryana have appointed 20 and 11 Chief Parliamentary Secretaries respectively. The High Court has ordered the two states to submit details about the entitlements, facilities and powers given to the Chief Parliamentary Secretaries.