Law to appoint Parl Secys unconstitutional, says SC

In a significant judgment, which would have wide-ranging impact on many states governments, the Supreme Court ruled on Wednesday that a state was not empowered to create the office of Parliamentary Secretaries. The court held that a state act aimed at appointment of parliamentary secretaries by circumventing the provisions of Article 164 (1A), which stipulates an upper limit of 15 per cent of the total seats in the Assembly as the strength of the council of ministers, was unconsititional.

"Any construction which would run counter to the scheme of the Constitution relevant in the context must be avoided," a bench comprising of Justices J Chelameshwar, AM Khanwilkar, and AM Sapre said, while setting aside the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004, for being unconstitutional.

In doing so, the bench also held that the then Congress government in Assam lacked the competence to enact it.

While today's judgment pertains to Assam, it will impact similar appointments by many states governments. There are many cases pending in various high courts, challenging the actions of several state government to appoint parliamentary secretaries.

"We are of the opinion that the Legislature in Assam lacks the competence to make the impugned Act. In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment.

"The writ petition is allowed. The impugned Act is declared unconstitutional," the bench said.

The bench noted that the strength of the council of ministers has to be brought down to 19 as per the 15 per cent ceiling.