In a significant decision, the Supreme Court has held that the post of Parliamentary Secretary created by State Governments is unconstitutional as State legislatures are not competent to create any new office under the Constitutional scheme.
The question arose in the context of a law passed by Assam Government in 2004 titled Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act 2004 appointing Parliamentary Secretaries by giving them status equal to Ministers of State.
The order is sure to affect other States as well which followed suit and passed similar laws. A Bench of Justices J Chelameswar, RK Agarwal and AM Sapre while striking down the Assam Act said, “In our opinion, the most crucial Article in Constitution is Article 187 which makes stipulations even with reference to the secretarial staff of the legislature. On the face of such elaborate and explicit constitutional arrangement with respect to the legislature and the various offices connected with the legislature and matters incidental to them to read the authority to create new offices by legislation would be a wholly irrational way of construing the scope of Article 194(3) and Entry 39 of list II.”
The Bench declared the Act to be unconstitutional and held that the state had no “legislative competence” to enact the same.
Article 194(3) dealt with powers and privileges of the legislature which can be defined by the legislature from time to time by law passed by the Assembly. The State Government cited this provision and traced the source of passing the 2004 law under Entry 39 of State list (list II). On May 30, 2005, the State even appointed eight Parliamentary Secretaries giving them oath of office but not assigning any Ministry.
However, the petition filed by one Bimolangshu Roy criticised the law for violating Article 164(1A) which places an upper limit on the Council of Ministers to be 15 per cent of the total strength of the Assembly. According to the petitioner, at the time of enacting Article 164(1A), the strength of the Assam Assembly was 126 while the strength of Council of Ministers was 36, constituting about 28.5 per cent. If Article 164(1A) was to be strictly applied, the Council of Ministers ought to be 15 per cent, thereby reducing the strength of Ministers to 19.