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Delhi is not the only State where the post of Parliamentary Secretary has been challenged. Various High Court judgments in the past have deemed the appointment of Parliamentary Secretaries unconstitutional and have ruled against such appointments.
On Tuesday, Delhi Chief Minister Arvind Kejriwal reacted strongly to the President’s rejection of proposed legislation by the Delhi government to exempt the post of Parliamentary Secretary from the purview of ‘office-of-profit’, questioning why Delhi is being singled out as other States too have instituted the post of ‘Parliamentary Secretary.’ The posts do exist in various States at present, including Gujarat, Punjab and Rajasthan — where the BJP is in power.
Various petitions in the High Court have challenged the appointment of Parliament Secretary, arguing that the post is in contradiction to Article 164 (1A) of the Constitution which provides for limiting the number of Ministers in the State Cabinets to 15 per cent of the total number of members of the State Legislative Assembly. Because a Parliament Secretary often holds the rank of Minister of State, the Calcutta High Court, in June 2015, quashed the appointment of 24 Parliamentary Secretaries in West Bengal dubbing it unconstitutional. Similar action was taken by the Bombay High Court in 2009 for the appointment of two Parliamentary Secretaries in Goa and by the Himachal Pradesh High Court in 2005 for the appointment of eight Chief Parliamentary Secretaries and four Parliamentary Secretaries in the State. In May 2015, the Hyderabad High Court stayed the appointment of Parliamentary Secretaries in Telangana. The matter is sub judice in Punjab and Haryana.
The number of Cabinet Ministers in Delhi cannot exceed 10 per cent of the total 70 seats — that is seven — as per Article 239(A) of Constitution. As of now, only one Parliamentary Secretary to the Chief Minister is authorised.
The ongoing debate around Delhi is whether the post of ‘Parliamentary Secretary’ is an ‘office of profit.’
‘Office of profit’ is not defined in the Constitution. However, in past judgments, the Election Commission has noted “what constitutes an office of profit under the Government is now well established by a catena of judgments of the Supreme Court.”
Five tests have been laid down: (i) whether the government makes the appointment; (ii) whether the government has the right to remove or dismiss the holder; (iii) whether the government pays remuneration; (iv) what the functions of the holder are; and (v) does the government exercise any control over the performance of these functions.
The Delhi government argues that as Parliamentary Secretaries are not eligible for any remuneration or perks from the government the post should be exempt from the office of profit.
But, in the case where Jaya Bachchan was disqualified as Rajya Sabha member for simultaneously holding the post of Chairperson of Uttar Pradesh Film Development Corporation, EC noted that the Supreme Court, in various cases has held that all the five tests “need not co-exist conjointly for determining whether an office is an office of profit under the government.” Hence, the fact that no remuneration is being provided to Parliamentary Secretaries may not be a sufficient argument to exempt the post from being considered an ‘office of profit’, as the party argues. But the judicial decisions vary depending on the facts of each case and no generalisations can be made. EC has issued notices to the 21 MLAs asking them to explain why their assembly membership should not be cancelled.
In the Jaya Bachchan case, EC has noted that this provision is in place is to keep the legislatures independent of the executive. “It was felt desirable that members of legislatures should not feel themselves beholden to the executive government and lose their independence of thought and action in the discharge of their public duties as representatives of the people,” notes the EC.