Meghalaya High Court
Shri Madal Sumer vs State Of Meghalaya And Ors on 9 November, 2017
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
PIL No.5/2016
Shri Madal Sumer v. State of Meghalaya
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
PIL No. 5 of 2016 Shri Madal Sumer ..... Petitioner
-Versus-
State of Meghalaya and others ..... Respondents
Date of Order :: 9th November 2017
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri B Bhattacharjee, for the petitioner Dr. BP Todi, Advocate General with Ms. P Agarwal, GA for the respondents No.1 and 2 Shri R Debnath CGC for the respondents No.3 and 4 Shri H S Thanghkhiew Senior Advocate with Shri N Mozika for the respondent No. 5 Ms. S Alam, for the respondents No.7, 12, 16 and 22 Shri S Dey, with Ms. QB Lamare and Ms. N Gurung for the respondents No.8, 11, 13, 14, 18 and 21 AFR BY THE COURT: (per Hon'ble the Chief Justice) Introductory and Rival Stands By way of this petition in the nature of Public Interest Litigation [„PIL‟], the petitioner has questioned the vires of the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2005 [„the Meghalaya Act of 2005‟] and has also alleged that the respondents No. 6 to 22, holding the office of Parliamentary Secretary, have incurred disqualification to be the members of Meghalaya Legislative Assembly.
On the matter being taken up for hearing, learned counsel for the petitioner submitted at the outset that the principal issue involved in this 2 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya petition regarding constitutional validity of such an enactment creating the office of Parliamentary Secretary has now been settled by the three- Judge Bench decision of the Hon‟ble Supreme Court in the case of Bimolangshu Roy (Dead) through LRs v. State of Assam and Anr.:
Transferred Case (Civil) No.169 of 2006 decided on 26.07.20171 wherein, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 [„the Assam Act of 2004‟], has been declared unconstitutional for want of legislative competence of the State Legislature. Learned counsel for the petitioner submitted that the Meghalaya Act of 2005 being in pari materia with the Assam Act of 2004 and the basic issue having been settled by the Hon‟ble Supreme Court, the present matter is squarely covered by the said decision in Bimolangshu Roy; and hence, the Meghalaya Act of 2005 also deserves to be struck down.
However, the learned Advocate General appearing for the respondents No. 1 and 2 submitted that the said decision in Bimolangshu Roy‟s case cannot be applied to the present case because of material difference in the two enactments namely, the Assam Act of 2004 and the Meghalaya Act of 2005. The learned Advocate General referred to the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) (Amendment) Act, 2016 [„the Amendment Act of 2016‟] and submitted that by way of this amendment, brought into effect from 26.09.2016, the status and privileges of the Parliamentary Secretaries have been materially altered and thereby, they do not draw any salary or allowances as Parliamentary Secretaries and in essance, they remain only the members of Legislative Assembly. Thus, according 1 Reported in AIR 2017 SC 3552 3 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya to the learned Advocate General, the provisions contained in the Assam Act of 2004, as examined by the Supreme Court in Bimolangshu Roy‟s case, and those in Meghalaya Act of 2005 being different on material particulars, the ratio of Bimolangshu Roy does not apply to the present case. The learned Advocate General also submitted that the petitioner has not taken any pleadings so as to question the Meghalaya Act of 2005 on the ground of legislative competence; rather the petition was founded only on the ground that the Meghalaya Act of 2005 was hit by Article 164(1-A) of the Constitution of India and the Hon‟ble Supreme Court having not ruled on the grounds taken in the present petition, Bimolangshu Roy cannot be applied as a binding decision under Article 141 of the Constitution of India.
While questioning the Meghalaya Act of 2005, the petitioner has also joined those members of the Meghalaya Legislative Assembly, who have been appointed as Parliamentary Secretaries, as respondents No. 6 to 22 to this petition and has further asserted that the office of Parliamentary Secretary, as held by these respondents, being an extra- constitutional one, they stand disqualified to be the members of Legislative Assembly by virtue of Article 191(1)(a) of the Constitution of India; and they cannot claim any exemption from being disqualified.
A few of the said respondents No. 6 to 22 have chosen not to appear despite service while the others have put in appearance through their respective counsel; and the stand on their behalf is more or less identical in nature [hereafter these contesting respondents are collectively referred to as „the contesting Parliamentary Secretaries‟]. While opposing the submissions made on behalf of the petitioner, though it has not been disputed on their behalf that the Assam Act of 2004 and the Meghalaya 4 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya Act of 2005 are in pari materia but it has been suggested that if the Meghalaya Act of 2005 is held ultra vires, its forerunner, i.e., the Parliamentary Secretary‟s Salaries and Allowances Act, 1991 [„the Meghalaya Act of 1991‟] would revive and thereby, these respondents cannot be said to be holding any extra-constitutional office. It has also contended that these respondents have been appointed as Parliamentary Secretaries on the strength of the existing law and they cannot be said to be disqualified; and in any case, the question of disqualification of any member of Legislative Assembly could only be determined by the Hon‟ble Governor under Article 192 of the Constitution of India. While adding another dimension to the issues raised, it has been suggested on behalf of the said contesting Parliamentary Secretaries that though the Hon‟ble Supreme Court has rendered the decision on the Assam Act of 2004 but therein, the provisions contained in Article 361-B of the Constitution of India have not come up for consideration, which specify that there could be other „remunerative political posts‟; and, therefore, creation of the post of Parliamentary Secretary cannot be said to be altogether invalid.
In view of the aforesaid stand of the respective parties, it appears appropriate to take note of the relevant pleadings as also the relevant statutory provisions and ratio of the referred decision of the Hon‟ble Supreme Court.
The substance of pleadings The petition Before proceeding further, it may be observed that the present one is a PIL wherein, none of the factual aspects are in dispute and in essence, only the legal issues have been raised as regards vires of the Meghalaya Act of 2005; and it is claimed, as a sequel, that the 5 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya respondents No. 6 to 22 have incurred disqualification for being the members of the Legislative Assembly. In the given layout of the case, strict rules of pleadings applicable to an adversarial litigation are not to be applied to this PIL; and only the substance of the matter emerging from the pleadings is to be noticed.
It is of course true, as argued by the learned Advocate General, that the present petition is predominantly founded on the ground that the Meghalaya Act of 2005 offends Clause (1-A) of Article 164 of the Constitution of India that was inserted by the Constitution (Ninety-first) Amendment Act, 2003 so as to put a check on the size of the Council of Ministers of every State. The petitioner has averred that as per the mandate of Article 164(1-A) of the Constitution of India, the total number of Ministers including the Chief Minister in the Council of Ministers in a State cannot exceed 15% of the total number of members of the Legislative Assembly subject to the proviso that number of such Ministers including the Chief Minister in a State shall not be less than 12. The petitioner has pointed out that the Legislative Assembly of the State of Meghalaya is having 60 members and hence, the Council of Ministers could be of maximum 12 Ministers including the Chief Minister. The petitioner has submitted that after inquiry, he came to know that as many as 18 Parliamentary Secretaries have been appointed in the State of Meghalaya from amongst the members of Legislative Assembly in different departments but the same is colourable exercise of power without any legal sanction. The petitioner has pointed out that such appointment of Parliamentary Secretaries was notified on 14.03.2013 in the name of Chief Minister in exercise of the powers under the Meghalaya Act of 2005.
6PIL No.5/2016
Shri Madal Sumer v. State of Meghalaya The petitioner has referred to the provisions of the Meghalaya Act of 2005, as then existing, to submit that as per Section 5 thereof, a Parliamentary Secretary is to hold the rank and status of the Minister of State and is entitled to such salaries and allowances as admissible to a Minister of State under the Meghalaya (Minister‟s Salaries and Allowances) Act, 1972 [„the Meghalaya Act of 1972‟]. The petitioner would contend that the duties discharged by the Parliamentary Secretaries in the State of Meghalaya are in no way different than the duties of the Minister of State in the Cabinet and the Parliamentary Secretaries are being treated as Ministers for all purposes in gross violation of Article 164(1-A) of the Constitution; and such appointments have virtually increased the number of Ministers beyond the permissible 12. It has also been averred that as per Section 3 of the Meghalaya Act of 2005, the Chief Minister is empowered to appoint the Parliamentary Secretaries and that practically confers the Chief Minister with the status of Executive Head, contrary to the constitutional mandate of Article 154 that the Governor is the Executive Head of the State. The petitioner has also taken the pleadings that the provisions contained in the impugned enactment, of administering oath by the Chief Minister to the Parliamentary Secretaries, are ultra vires the provisions of Article 164 (3) of the Constitution. The petitioner has also referred to the repeal of the Meghalaya Act of 1991, which according to the petitioner, makes it clear that the Parliamentary Secretaries are now being given the status of a Minister of State and thus, the impugned Act is running in the teeth of Article 164(1-A) of the Constitution. After the aforesaid, the petitioner has also taken the pleadings that by virtue of Clauses (2) and (3) of Article 246 of the Constitution, the law making power of the State is limited to the matters enumerated in Lists II 7 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya and III of the Seventh Schedule; and the said Lists do not in any way empower the State of Meghalaya to make the laws with regard to the appointment, rank, status and benefit of the Parliamentary Secretaries while equating them with a Minister of State and that too against the explicit bar created by Article 164 (1-A) of the Constitution. The averments so taken read as under:-
"22.That the petitioner states that by virtue of Article 246(2) and Article 246(3) the law making power of the State is limited to the matters enumerated in List II(State List) and List III(Concurrent List) in the Seventh Schedule and it is subject to the mandate of the Constitution and exclusive law making power of the Parliament. The subjects enumerated in List II and List III do not in any way empower the State of Meghalaya to make laws with regard to appointment, rank, status and benefit of the Parliamentary Secretaries equating them with a Minister of State that too against the explicit bar created by Article 164(1-A) of the Constitution of India. The impugned Act of 2005 and appointment of the respondents no.6 to 22 as Parliamentary Secretaries in the rank and status of a Minister of State is wholly arbitrary, illegal and ultra vires to the Constitution."
The petitioner has further averred that the Meghalaya Act of 2005 is in gross violation of the constitutional norms set out in Articles 154,162, 164(1-A) and 246 of the Constitution of India. After having, thus, questioned the Act of 2005, the petitioner has further averred that the office of Parliamentary Secretary held by the respondents No.6 to 22 is an office of profit under the State of Meghalaya and hence, these respondents are liable to be disqualified as members of the Legislative Assembly. The petitioner has elaborated on these submissions that the office of Parliamentary Secretary held by the respondents No.6 to 22 is capable of yielding profit or pecuniary gain, as they are entitled to such salaries and allowances as are admissible to the Minister of State by the Meghalaya Act of 1972; and hence, this is an extra-constitutional office of profit. The petitioner has referred to the Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) Act, 1970 [„the 8 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya Meghalaya Act of 1970‟], preventing disqualification of the members of Legislative Assembly of Meghalaya by reason of holding the offices specified in the Schedule to the said Act, which includes the office of the Parliamentary Secretary; and has also referred to the Meghalaya Act of 1991 to contend that both these enactments were passed by the State Legislature prior to the 91st amendment of the Constitution and none of the provisions of the aforesaid Acts of 1970 and 1991 conferred the rank and status of a Minister to the Parliamentary Secretary but now, the impugned Meghalaya Act of 2005, which came into being by repealing the Meghalaya Act of 1991, is apparently violative of the constitutional mandate set out in the Articles aforesaid.
The substance of the aforementioned averments in the petition is that the office of Parliamentary Secretary under the Meghalaya Act of 2005 is an extra-constitutional office which yields profit and, therefore, the holder of such post being holder of an office of profit, stands disqualified under Article 191(1)(a) of the Constitution. With these submissions, the petitioner has prayed that the Meghalaya Act of 2005 be declared ultra vires the Constitution and be struck down as such; that the appointment of the respondents No. 6 to 22 be declared illegal and void ab initio; and that the said respondents be held disqualified from being the members of Legislative Assembly in terms of Article 191(1)(a) of the Constitution of India.
The counter affidavit/s on behalf of the State of Meghalaya At the initial stage of this petition, this Court only called upon the official respondents to file the counter affidavit/s; and in response, a counter affidavit was filed on behalf of the respondent No.2, the Joint Secretary to the Government of Meghalaya in its Law Department on 9 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya 04.07.2016 with the submissions, inter alia, that the appointment of Parliamentary Secretaries is not a new phenomenon to the State of Meghalaya; and the Meghalaya Act of 2005 was duly passed by the Assembly and was assented to by the Governor on 30.05.2005. It has been averred that the office of Parliamentary Secretary is for ensuring better coordination between the Council of Ministers and the State Legislature; and there is no illegal appointment of Parliamentary Secretaries who are, according to the respondent No.2, necessary for smooth running and functioning of the Government. It has also been averred that the Council of Ministers in the State including the Chief Minister is in conformity with the mandate of Article 164(1-A) of the Constitution and the Parliamentary Secretaries cannot be understood to mean „the Ministers‟, whether in terms of their appointment or in terms of their authority and power. It has further been averred that as per Section 8 of the Act, the Parliamentary Secretary while drawing salary or allowances for his office as such, is not entitled to any salary or allowances as a member of Legislative Assembly; and that merely the use of expression „rank and status of a Minister of State‟, does not confer the power or authority of a Minister in the Parliamentary Secretary. According to the respondent No.2, the Parliamentary Secretaries are only functioning to assist the Minister-in-Charge and are appointed by the Chief Minister by virtue of Section 3 of the Meghalaya Act of 2005; and being not the Ministers in the literal sense, the provisions of Article 164(1- A) are not applicable to their case. It has also been maintained that the Parliamentary Secretaries are not empowered with the executive function and the Meghalaya Act of 2005 does not override the constitutional provisions contained in Article 164.
10PIL No.5/2016
Shri Madal Sumer v. State of Meghalaya As regards the above-quoted paragraph 22 of the petition, the respondent No.2 has replied as follows:-
"18. That with regard to the averments made in paragraph 22 of the petition, the deponent while denying the contention of the petitioner a false and baseless, states that matter of appointment of Parliamentary Secretary is primarily concerning the affair of the State Legislature and therefore the subject matter is part of State List. It may further be stated that entry No.38, 39 and 40 of the State List of Schedule 7 of the Constitution of India mentions with regard to the Legislature of the State. Further, with regard to the averments made by the petitioner regarding Article 164(1-A) of the Constitution of India, the respondent in reply reiterates what has already been stated in para 7, 11, 13 and 17 of this affidavit-in-opposition."
While maintaining that the appointment of respondents No.6 to 22 is neither unconstitutional nor illegal and that a member while holding office of Parliamentary Secretary is not entitled to draw any salary or allowance as a member of Legislative Assembly nor practice any profession or trade, the respondent No.2 has averred that the question of any undue profit to the Parliamentary Secretary does not arise. It has further been averred that the question of disqualification of membership under Article 191(1)(a) of the Constitution of India would not arise because the Parliamentary Secretaries are appointed as per the provisions of the Meghalaya Act of 2005 and there is no prohibition in the Constitution of India for the State Legislature making any such laws with regard to the appointment of Parliamentary Secretaries. It has also been asserted that the post held by the respondents No. 6 to 22 is included in the Schedule to the Meghalaya Act of 1970, which exempts them from disqualification.
After noticing a reference to the fact in the counter affidavit of respondent No.2 that similar issue was pending before the Hon‟ble Supreme Court but without particulars, the concerned respondents were 11 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya directed to place on record the requisite particulars and in response, an additional affidavit was filed on 29.07.2016.
In the additional affidavit filed on 29.07.2016, the respondent No.2 stated the „requisite particulars‟ of the matters pending (at that stage) in the Supreme Court „pertaining to the similar issues‟. In this affidavit, the particulars of two such cases were stated namely, (a) Petition for Special Leave to Appeal (C) No(s).17003 - 17004/2015: State of West Bengal and others v. Vishak Bhattacharya etc. etc., which was likely to be listed on 02.09.2016; and (b) Transfer Case (Civil) No. 169/2006:
Bimolangshu Roy (Dead) through LRs v. State of Assam and Anr., which was likely to be listed on 25.07.2016. The orders passed by the Hon‟ble Supreme Court in those cases until then and case status details were also filed with this affidavit.
The counter affidavit/s on behalf of the contesting Parliamentary Secretaries It may be pointed out that after the aforesaid affidavits of the respondent No. 2, this matter was kept pending for sometime in this Court awaiting decision of the Hon‟ble Supreme Court. Ultimately, on 16.08.2017, it was submitted on behalf of the petitioner that the Hon‟ble Supreme Court had rendered the decision in Transfer Case (Civil) No. 169/2006: Bimolangshu Roy (Dead) through LRs v. State of Assam and Anr. on 26.07.2017, declaring invalid a similar enactment namely, the Assam Act of 2004; and it was contended that the said decision squarely covered the subject-matter of this petition and on similar lines, the impugned enactment was required to be declared invalid. In view of the law declared by the Supreme Court, this Court directed completion of service on all the respondents. As noticed, the Parliamentary Secretaries 12 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya appointed in the State of Meghalaya have been impleaded as respondents No. 6 to 22 in this petition. On behalf of some of them, the learned counsel have put in appearance and they have filed counter affidavits, more or less on similar lines.
So far the decision in Bimolangshu Roy‟s case is concerned, it is not disputed on behalf of the contesting Parliamentary Secretaries that the Assam Act is in pari materia with the Meghalaya Act of 2005. It is, however, maintained that the Hon‟ble Supreme Court, even while holding that the State Legislature lacked competence to enact the Assam Act, has not further examined as to whether the Parliamentary Secretaries would be subject to disqualification under Article 191 (1) (a) of the Constitution of India. The averments so taken by the respondents, similar in nature, read as under2:-:-
"7. That in reply to the statement made in paragraphs 14, 15, 16 and 17 of the PIL the deponent begs to state that the deponent respectfully states that the Assam Act is pari Materia with the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2005 (hereinafter, the ACT) whose constitutional validity is the subject matter of this Public Interest Litigation.
The Hon‟ble Supreme Court in Bimolangshu Roy asked the question whether the text of Article 194 (3) and Entry 39 is wide enough to authorise the legislature to make the Assam Act, and then answered it in the negative. Paragraph 45 of the judgment states:
"For the above-mentioned reasons, we are of the opinion that the Legislature of 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."
8. That in reply to the statements made in paragraphs 18, 19, 20, 21, 22, 23 and 24 of the PIL the deponent begs to state that the Hon‟ble Supreme Court notes that the Assam Act was passed and published on 29.12.2004. The Writ Petition [(PIL) No.30/2005] challenging the Act was filed on 13.04.2005. The Government of Assam appointed eight Parliamentary Secretaries on 30.05.2005, in exercise of the power under 2 reproduced from the counter affidavit filed by the respondent No.7 13 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya the Assam Act. The Parliamentary Secretaries took oath of office during the pendency of the Writ Petition [(PIL) 30.2005]. The Hon‟ble Supreme Court, while holding that the State Legislature lacked competence to enact the Assam Act has not further examined whether the eight Parliamentary Secretaries might have been subject to disqualification under Article 191 (1) (a)."
The main emphasis in the length of counter affidavits of the contesting Parliamentary Secretaries is that there was no question of they being disqualified and, according to them, in view of the decision of the Supreme Court which has held the Assam Act to be void, the status of all the persons ever appointed as Parliamentary Secretary becomes identical i.e., void. These respondents have averred as follows2:-
"10. That in reply to the statements made in paragraphs 27 and 28 of the PIL the deponent begs to submit that the Meghalaya Act that is impugned in the present case was passed in 2005 and several Parliamentary Secretaries who were appointed in exercise of powers under the ACT have already served their terms. The Petition, while raising the issue of disqualification is silent on their status. In fact, in Paragraph 31, the Petitioner states that prior to the filing of this PIL, one of the Members of the Legislative Assembly has tendered his resignation, and as such the (sic) has not been arrayed as the party respondent. It is respectfully submitted that in view of the Hon‟ble Supreme Court‟s judgment, which has held the Assam Act to be void ab initio, the status of all persons ever appointed as Parliamentary Secretary becomes identical, that is, void.
Thus no office survives."
The contesting Parliamentary Secretaries have also averred that the question of disqualification is a matter of jurisdiction of the Hon‟ble Governor of the State under Article 192 of the Constitution of India.
In a summation of the above, it could be readily noticed that the petitioner has sought two fold declarations: one that Meghalaya Act of 2005 is ultra vires the Constitution of India; and second that the respondents No.6 to 22, by holding the extra-constitutional office of Parliamentary Secretary, have incurred disqualification for being the members of the Meghalaya Legislative Assembly. In relation to the first aspect on the vires of the Meghalaya Act of 2005, the petitioner has principally taken the ground that creation of the office of Parliamentary 14 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya Secretary offends Article 164(1-A) of the Constitution. However, the petitioner has also taken the ground that the Meghalaya Act of 2005 is beyond the legislative competence of the State Legislature. In reply, it is asserted on behalf of the State that appointment of Parliamentary Secretaries is by virtue of a status for ensuring better coordination between the Council of Ministers and the State Legislature and they are not Ministers in the literal sense and hence, the provisions of Article 164(1-A) are not applicable to their case. As regards the averment relating to legislative competence it is averred that „that matter of appointment of Parliamentary Secretary is primarily concerning the affair of the State Legislature and therefore the subject matter is part of State List‟; and Entries 38, 39 and 40 of the State List in Schedule Seventh to the Constitution of India have been referred. The State respondents have also maintained that the question of disqualification of membership under Article 191(1)(a) of the Constitution of India would not arise because the Parliamentary Secretaries are appointed as per the provisions of the Meghalaya Act of 2005 and there is no prohibition in the Constitution of India for the State Legislature making any such laws with regard to the appointment of Parliamentary Secretaries. It has also been averred that respondents No.6 to 22 stand exempted from disqualification by virtue of the Meghalaya Act of 1972. We may indicate that the petition as also the affidavits on behalf of the State were filed before the decision of the Hon‟ble Supreme Court in Bimolangshu Roy‟s case (supra). On the other hand, while filing the affidavits after the decision in Bimolangshu Roy, the contesting Parliamentary Secretaries have essentially admitted that the Meghalaya Act of 2005 is in pari materia with the Assam Act of 2004 which was considered in Bimolangshu Roy and that in view of the 15 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya decision of the Hon‟ble Supreme Court, the status of all the persons ever appointed as Parliamentary Secretaries is identical, that is void; and that no such office survives. It is, however, submitted that the Hon‟ble Supreme Court has not examined the question as to whether the Parliamentary Secretaries would be subject to any disqualification under Article 191(1)(a) of the Constitution of India.
After a comprehensive view of the pleadings of the parties, we may now take note of the law declared by the Hon‟ble Supreme Court in Bimolangshu Roy‟s case.
Law declared by the Supreme Court: Bimolangshu Roy's case In Bimolangshu Roy‟s case (supra), the validity of the Assam Act of 2004 was in question. After taking note of the stand of the respective parties, the Hon‟ble Supreme Court formulated the issues arising for determination in the following:-
"10. The following issues arise out of the above rival submissions:
I. Whether the Legislature of Assam is competent to make THE ACT?
ll. Whether the creation of the office of Parliamentary Secretary would amount to a violation of the constitutionally prescribed upper limit of 15% on the total number of Council of Ministers?
III. Whether the concept of a „Responsible Government‟ envisaged under various provisions of the Constitution is in any way violated by the impugned enactment and therefore unconstitutional as being violative of the basic structure of the Constitution.
IV. Whether the theory of basic structure could be invoked at all to invalidate an enactment which is otherwise not inconsistent with the text of the Constitution."
The Hon‟ble Supreme Court indicated that if the answer to any one of the first two issues was in favour of the petitioner, the other two issues need not be examined and thereafter, examined the first issue on the question of legislative competence of the Assam Legislature to make the Assam Act of 2004. The Hon‟ble Supreme Court pointed out that the 16 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya authority to make law flows not only from an express grant of power by the Constitution to a legislative body but also by virtue of implications flowing from the context of the Constitution. The Supreme Court also indicated the pattern and width of the three Lists of the Seventh Schedule to the Constitution of India in the following:-
"28. A broad pattern can be identified from the scheme of the three lists, the salient features of which are (i) Fields of legislation perceived to be of importance for sustaining the federation, are exclusively assigned to the Parliament, (ii) State legislatures are assigned only specified fields of legislation unlike the US Constitution, (iii) Residuary legislative power is conferred in the Parliament; (iv) taxing entries are distinct from the general entries, and (v) List III does not contain a taxing entry,
29. At the same time, it can also be noticed that there is no logical uniformity in the scheme of the three lists contained in the Seventh Schedule.
(a) Power to legislate is conferred by some of the Articles by an express grant either on the Parliament or the State Legislature to make laws with reference to certain matters specified in each of those Articles but there is no corresponding entry in the corresponding list indicating the field of such legislation.
For example, under Article 3 the Parliament is competent to create or extinguish a State. There is no entry in the List I of the Seventh Schedule indicating that the Parliament could make a law with regard to the creation of a new State or the extinguishment of an existing State.
(b) On the other hand, with reference to some of the powers conferred expressly by the text of the Constitution, there is also a corresponding entry in the List. Entries 38, 39 and 40 in List II fall in this category."
The Hon‟ble Supreme Court, thereafter, pointed out that a great deal of examination of the entire Constitution while interpreting the scope of each of the Entries contained in the three Lists of the Seventh Schedule was requisite; and put a note of caution on the doctrine of „widest construction‟ while pointing out that the rule of construction in relation to the Entries of the Seventh Schedule, which is not a source of power but only indicative of the field of legislation, would be different than the principles in relation to a provision which confers power to legislate and is thus, the source of power. The Hon‟ble Supreme Court observed as under:-
17PIL No.5/2016
Shri Madal Sumer v. State of Meghalaya "31. The doctrine of "widest construction" propounded by Marshall was in the context of the substantive provisions of the Constitution which are the sources of power to legislate and stipulate the areas with respect to which "the Congress" shall have the "Legislative Power" but not in the context of something like an entry in the 7th Schedule of our Constitution which is not a source of power but only indicative of the field of legislation. Though words and expressions employed in the Constitution must receive widest possible construction, we believe that the principle must be applied with some degree of caution when it comes to the examination of the amplitude of the legislative Entries. There must be some distinction between a provision of the Constitution which confers power to legislate (source of power) and an Entry in one of the 3 lists of the 7th Schedule which are not sources of power but are only indicative of the fields of legislation. Any construction which would run counter to the scheme of the Constitution relevant in the context must be avoided."
Thereafter, the Hon‟ble Supreme Court accepted the submissions on behalf of the petitioner that existence of a dedicated Article in the Constitution authorising making of law on a particular topic would eliminate the possibility of existence of legislative authority to legislate in Article 246 read with any Entry in the Seventh Schedule which appears to be closely associated with the topic dealt with by the dedicated Article. In this regard the Supreme Court observed that even if Entries 38, 39 and 40 in List II of the Seventh Schedule were not there, the State Legislatures would still be competent to make laws with respect to the fields indicated in those three Entries because of the authority contained in Articles 164(5), 186, 194, 195 etc. The Hon‟ble Supreme Court said,-
"32. As rightly pointed out by the petitioners, the existence of a dedicated article in the Constitution authorizing the making of law on a particular topic would certainly eliminate the possibility of the existence of the legislative authority to legislate in Article 246 read with any Entry in the Seventh Schedule indicating a field of legislation which appears to be closely associated with the topic dealt with by the dedicated article. For Example even if the Constitution were not to contain Entries 38, 39, 40 in List II the State Legislatures would still be competent to make laws w.r.t. the topics indicated in those 3 entries, because of the authority contained in Articles 164(5), 186, 194, 195 etc. Therefore, to place a construction on those entries which would have the effect of enabling the concerned legislative body to make a law not within the contemplation of the said Articles would be plainly repugnant to the scheme of the Constitution."18 PIL No.5/2016
Shri Madal Sumer v. State of Meghalaya Thereafter, the Hon‟ble Supreme Court referred to the decision in Cauvery Water Disputes3 wherein, an Ordinance promulgated by the State of Karnataka in relation to the interstate water dispute was held beyond its legislative competence because of existence of a dedicated Article empowering the Parliament to make laws for interstate water disputes (Article 262); and it was held that the subject stood excluded by implication from Entry 56 of the Union List and Entry 17 of the State List of the Seventh Schedule to the Constitution of India. The Hon‟ble Supreme Court pointed out that the difference in the case on hand was that while the referred Entries of Seventh Schedule in Cauvery Water Disputes did not make any mention of adjudication of water disputes and only Article 262 dealt with the same while in the case on hand, the relevant portion of the text of Article 194(3) and Entry 39 of the State List were almost identical, speaking about "powers, privileges and immunities" of the House, its members and committees. The Hon‟ble Supreme Court thereafter, indicated the broad question involved in the matter, i.e., as to whether the text of Article 194(3) and Entry 39 of the State List are wide enough to authorise the Legislatures to make the Assam Act of 2004. The Hon‟ble Supreme Court answered in the negative in no uncertain terms and held that the Legislature of Assam was lacking in competence to make the impugned Act. The Hon‟ble Supreme Court observed and held as under:-
"40. The question therefore is - whether the text of Article 194(3) and Entry 39 is wide enough to authorise the legislature to make THE ACT?
41. In view of the fact that the text of both Article 194(3) and the relevant portion of Entry 39 are substantially similar, the meaning of the clause "the powers, privileges and the immunities of a House of the Legislature of a State ..... and of the members of a House of such Legislature" must be examined.3
1993 Supp. (1) SCC 96 (II) 19 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya
42. In ascertaining the meaning of the clause, the scheme of Article 194 and the setting in which the said clause is placed is relevant. Article 194 occurs in Chapter III of Part VI of the Constitution which deals with the States. Chapter II of Part VI deals with the State Executive. Chapter III deals with the State Legislature. Various articles of Chapter III provide for establishment of a legislature (either unicameral or bicameral), the composition of such legislative bodies, the qualifications for membership of the legislative bodies and their durations, the offices of the legislature and their powers and responsibilities and all other allied matters.
43. Article 194 deals exclusively with the powers and privileges of the legislature, its members and committees thereof. While clause declares that there shall be freedom of speech in the Legislature subject to the limitations enumerated therein, clause (2) provides immunity in favour of the members of the Legislature from any legal proceedings in any court for anything said or any vote given by such members in the Legislature or any Committees etc. Sub-clause (3) deals with the powers, privileges and immunities of a House of the Legislature and its members with respect to matters other than the ones covered under clauses (1) and (2).
44. Thus, it can be seen from the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question. On the other hand, Article 178 speaks out the offices of Speaker and Deputy Speaker. Article 179 deals with the vacation of those offices or resignations of incumbents of those offices whereas Articles 182 and 183 deal with the Chairman and Deputy Chairman of the Legislative Council wherever the Council exists. In our opinion, the most crucial article in this Chapter 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 officers 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. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject matter of the entry. "The powers, privileges and immunities" contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators.
45. For the above-mentioned reasons, we are of the opinion that the Legislature of 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."
(underlining supplied for emphasis) Thus, it is beyond any doubt or debate that the Hon‟ble Supreme Court has declared the law in no uncertain terms that in view of elaborate and explicit constitutional arrangement with respect to the Legislature and various offices connected with the Legislature and matters incidental to them, there was no authority in the State Legislature to create new offices by legislation. In view of this clear pronouncement of the Hon‟ble 20 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya Supreme Court, the law is that there is no legislative competence of the State Legislature to create the new office of Parliamentary Secretary. Binding nature of the law declared by the Supreme Court:
It requires hardly any expansive discussion that as per the mandate of Article 141 of the Constitution of India, the law declared by the Hon‟ble Supreme Court is binding on all the Courts in India. Article 141 reads as under:-
"Article 141- The law declared by the Supreme Court shall be binding on all courts within the territory of India".
We may refer to the jurisprudence of Article 141 of the Constitution of India with its outstanding and superlative reach, higher than ordinary laws of precedents, as explained by a learned Single Judge of Allahabad High Court in the case of Union of India v. Firm Ram Gopal: AIR 1960 Allahabad 672 as follows:
"(26) In the various authorities cited before me, it has been overlooked-I may say so with deep respect-that the doctrine of the supremacy of any declaration of law by the Supreme Court has been made a part of the constitutional law of the republic. It therefore rests on a much loftier pedestal than judicial conventions under which every inferior court is bound to follow the previous decisions of a Superior Court.
If the object had been merely to guarantee the binding force of the decisions of the Supreme Court as the highest court of the republic, no special provisions in the Constitution was required. The founders were not inserting a superfluous or redundant article in the Constitution. Many of them were eminent lawyers and jurists, and well acquainted with judicial practice and principles according to which the decisions of the Supreme Court have the same binding force as those of the House of Lords in England even without Art. 141.
(27) But they were not content with the mere binding force of the decisions of the Supreme Court. The language of Art.141 shows that the Founders intended to extend its scope beyond the actual decisions of the Supreme Court to every declaration of law made by it. This is clear from a comparison of the language of the Article with that of Sec.212 of the Government of India Act, 1935, which gave a binding force to the decisions of the old Federal Court.
21PIL No.5/2016
Shri Madal Sumer v. State of Meghalaya That Section provided that "the law declared by the Federal Court and by any judgment of the Privy Council shall, so far as applicable, be binding on and shall be followed by all Courts in British India". But Art.141 of our Constitution provides that "the law declared by the Supreme Court shall be binding on all courts within the territory of India". The word "judgment" is not used, and the qualifying words "as far as applicable" have been deleted.
The omission is significant and negatives any suggestion that the Founders had in mind the principle of ratio decidendi or the binding effect of decisions, but nothing more. I am inclined to the view that Art.141 has the effect, in addition to investing the decisions of the Supreme Court with a binding force, of creating a constitutional organ whose declaration of law pronounced ex cathedra shall be binding on all courts in the republic. Under this article it is not necessary that a pronouncement of the Supreme Court should be part of the ratio decidendi of any judgment. An obiter dictum or a mere enunciation of a principle of law would amount to a declaration of law under Art.141, and the manner and circumstances of its pronouncement are immaterial, provided it is made by the Supreme Court ex cathedra."
(underlining supplied for emphasis) In the case of M/s Shenoy and Co. V. Commercial Tax Officer, Circle II, Bangalore and Ors.: (1985) 2 SCC 512 the Hon‟ble Supreme Court has directly pointed out the all-pervasive nature of Article 141 thus,-
"...... A mere reading of this article brings into sharp focus its expanse and its all pervasive nature......."
Further, in the case of Director of Settlements, A.P. and Ors. V. M.R. Apparao and Anr.: (2002) 4 SCC 638 the Hon‟ble Supreme Court expounded on various facets of binding elements in its decisions as follows:-
"7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before 22 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court [see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur4 and AIR 1973 SC 794). When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity......"
(underlining supplied for emphasis) Thus, it is beyond the pale of doubt that the law declared by the Supreme Court is the law of the land; and it is hardly a matter of any debate that once the law is declared by the Hon‟ble Supreme Court, that acquires the status of the law of the land and every Court in the country is cleanly and squarely bound by it. Therefore, the other principles of the law of precedents, that judicial utterances are made in the setting of facts of a particular case or that circumstantial and factual flexibility may make a substantial difference in the conclusion between two cases, cannot be applied on the core of the declaration of law by the Supreme Court. In other words, the force and binding nature of the law declared by the Supreme Court is not dependent on the pleadings of the parties. In yet other words, merely because a party had not been specific in its pleadings, the binding nature of law declared by the Supreme Court is not altered; of course, its applicability has to be determined with reference to the issue involved in a given case.
4 ( 1970) 2 SCC 267 23 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya The contention urged by the learned Advocate General that for want of specific case on legislative competence, the decision in Bimolangshu Roy‟s case may not apply to the present matter, falls flat when examined in the light of the aforesaid salutary principles coupled with the fact that in Bimolangshu Roy‟s case, the Supreme Court has declared the law that the Assam State Legislature is not having the legislative competence to enact the law like Assam Act of 2004 and cannot create new office like that of Parliamentary Secretary. This declaration of law by the Supreme Court, on want of legislative competence of the State Legislature, is binding on all the Courts and obviously, if the said law is applicable to the present case, it shall have to be applied, irrespective of the pleadings of the parties.
Apart from the aforesaid elementary aspects, the fact of the matter in the present case is that question on the legislative competence of the State Legislature of Meghalaya to enact the Meghalaya Act of 2005 has indeed been pleaded in paragraph 22 of the petition, as reproduced hereinabove. The official respondents have equally responded to such averments in their counter affidavit that the matter of appointment of Parliamentary Secretary is primary concerning the affairs of the State Legislature and is a subject-matter of State List of the Seventh Schedule to the Constitution of India. In the face of such pleadings of the parties, the contention urged by the learned Advocate General turns out to be rather hollow and baseless. True it is that the petition is essentially founded on the ground that the Meghalaya Act of 2005 offends Article 164 (1-A) but that does not whittle down the other ground on the legislative competence as taken in the petition, may be not as elaborate as other grounds. We are impelled to reiterate that declaration of law in 24 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya Bimolangshu Roy‟s case is binding on this Court and will have to be applied as such, wherever it is applicable, irrespective of the frame of the ground urged in the petition. We may also observe that the present one is a PIL petition and is required to be dealt with on the substance of the matter and the technicalities have hardly any role to play herein. Even such technicalities as suggested by the learned Advocate General cannot in any manner take away the binding force of the law declared by the Supreme Court. Therefore, the suggestion, that the law declared in Bimolangshu Roy cannot be applied to the present case for want of specific pleadings on legislative competence and for foundational grounds in the present petition being of challenging the enactment on anvil of Article 164(1-A) stands rejected.
In relation to the binding force of the decision of the Supreme Court, we may also dispose of a feeble and rather unnecessary suggestion on behalf of the contesting Parliamentary Secretaries that Article 361-B has not gone into consideration in Bimolangshu Roy‟s case. This suggestion has only been noted to be rejected for the other elementary principles that the declaration of law by the Supreme Court cannot be questioned before any other Court on the ground that some points have not been considered. This is apart from the fact that, in our view, Article 361-B, essentially dealing with disqualification for appointment on remunerative political post of a member of the house who stands disqualified under paragraph 2 of the Tenth Schedule, has no relevance to the question of the competence of the State Legislature to enact the law like that in question herein. The expression „remunerative political post‟ has also been explained in Article 361-B to mean any office under the Government of India or the Government of a State where the salary or remuneration is 25 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya paid out of the public revenue or under any body, whether incorporated or not, which is wholly or partially owned by the Government of India or the Government of a State and the salary or remuneration is paid by such body. We are unable to find if this Article would have any bearing on the issue examined and the law declared by the Supreme Court in Bimolangshu Roy‟s case. Besides, it is also noteworthy that so far the contesting Parliamentary Secretaries are concerned, they had been forthright in their affidavit/s on the question of applicability of the law declared in Bimolangshu Roy‟s case to the present case, where they have indeed admitted that the Assam Act of 2004 and Meghalaya Act of 2005 are in pari materia; and that on the law declared by the Supreme Court, the status of all the persons ever appointed as Parliamentary Secretaries is void and no such office survives. Be that as it may, as observed, operation of law declared by the Supreme Court is not dependent on the pleadings of the parties and the law so declared remains binding to the Courts.
The question, however, remains as to whether the law declared in Bimolangshu Roy‟s case applies to the Meghalaya Act of 2005? Applicability of the law declared in Bimolangshu Roy's case to the Meghalaya Act of 2005 Learned counsel for the petitioner has referred to the points for determination formulated in Bimolangshu Roy‟s case: the first point being related to the legislative competence of the State Legislature to make any such law and second one being on the question if such a law was offending the requirements of Article 164 (1-A) of the Constitution. Learned counsel has argued that the Supreme Court has answered the first and root question on the legislative competence with a clear 26 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya declaration of law that the State Legislature does not have competence to make any such law so as to create an office of Parliamentary Secretary and the law so declared squarely applies to the present case.
Per contra, the learned Advocate General has vehemently contended that in the Assam Act of 2004, the office of Parliamentary Secretary was made equivalent to that of a Minister and hence, it was offending Article 164(1-A) of the Constitution but, the Legislature of Meghalaya has taken care to amend the Meghalaya Act of 2005 by way of Amendment Act of 2016 and fundamental changes have been made as regards the rank and status of the Parliamentary Secretaries while also making it clear that they would not be entitled to any salary or allowance as Parliamentary Secretary but would continue to receive salary and allowance as per the Meghalaya (Minister‟s Salaries and Allowances) Act, 1972. Thus, according to the learned Advocate General, the Meghalaya Act of 2005, as it stands after the amendment of 2016, is materially different than the Assam Act of 2004 and, therefore, the decision in Bimolangshu Roy does not apply to the present case.
For a comprehension of the submissions made, appropriate it would be to take note of the relevant provisions of the Assam Act of 2004; the Meghalaya Act of 2005 (as slightly amended in the year 2010); and then, the Meghalaya Act of 2005 as now standing after amendment of 2016, as under5:-
5
It may be indicated that the present petition was filed in this Court on 18.04.2016; the Meghalaya Amendment Act of 2016 came into force on 26.09.2016; and the decision in Bimolangshu Roy‟s case was rendered by the Hon‟ble Supreme Court on 26.07.2017.
27 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya ASSAM ACT OF 2004 MEGHALAYA ACT OF 2005 (after MEGHALAYA ACT OF 2005 slight amendment in 2010) AFTER THE AMENDMENT OF 2016 Section 2(c) Section 2(c) Section 2(c) "Parliamentary Secretary" "Parliamentary Secretary" means "Parliamentary Secretary" means means a Member of the Assam any person appointed under any person appointed under Legislative Assembly appointed Section 3 of this Act by the Chief Section 3 of this Act by the Chief as the Parliamentary Secretary Minister. Minister. under this Act by the Chief Section 3 Section 3 Minister. The Chief Minister may, having The Chief Minister may, having Section 3 regard to the circumstance and the regard to the circumstance and The Chief Minister may, having requirement of the situation at any the requirement of the situation at regard to the circumstances and time appoint such number of any time appoint such number of the need of the situation, at any Parliamentary Secretaries from Parliamentary Secretaries from time appoint such number of amongst the Members of the amongst the Members of the Parliamentary Secretaries and Legislative Assembly and assign to Legislative Assembly. assign to each of them such each of them such duties and Section 5 duties and functions as he may functions as he may deem fit and A Parliamentary Secretary shall deem fit and proper. proper. discharge such functions and Section 4 Section 5 perform such duties as may be A Parliamentary Secretary shall A Parliamentary Secretary shall be assigned by the Chief Minister for be of the rank and status of a of the rank and status of Minister or the purposes of effective and Minister of State and shall be State and shall exercise such regular monitoring of the exercised such powers, powers, discharge such function development works of the discharge such functions and and perform such duties as may be Government Departments, from perform such duties as may be assigned to him by the Chief time to time." assigned to him by the Chief Minister. Section 6 Minister by way of a notification Section 6 A Parliamentary Secretary shall
published in the official Gazette. A Parliamentary Secretary shall be be entitled to salaries and Section 7 entitled to such salaries and allowances as per the Legislative A Parliamentary Secretary shall allowances as are admissible to a Assembly of Meghalaya be entitled to such salary and Minister of State under the (Members‟ Salaries and allowances as are admissible to Meghalaya (Minister‟s Salaries and Allowances) Act, 1972." a Minister of State under the Allowances) Act, 1972. Section 6A. Assam Ministers, Ministers of Section 6A A Parliamentary Secretary shall State and Deputy Ministers A Parliamentary Secretary shall be be entitled to such facilities as Salaries and Allowances Act, entitled to a Constituency may be notified by the 1958. Allowance as the State Government from time to time."
Government may from time to time Section 7
determine by issuing office The Parliamentary Secretary shall
Memorandum. hold office during the pleasure of
Section 7 the Chief Minister.
The Parliamentary Secretary shall
Section 8 : omitted
hold office during the pleasure of
the Chief Minister.
Section 8
Notwithstanding anything
contained in any other law for the
time being in force. A
Parliamentary Secretary shall not,
while he draws salary and
allowances for his office as such
Parliamentary Secretary, be
entitled to any salary or allowances
as a Member of the Meghalaya
Legislative Assembly.
Though while bringing about the Amendment Act of 2016, an attempt has been made by the Meghalaya State Legislature to alter a few 28 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya characteristics as were attached to the office of Parliamentary Secretary in the originally enacted Meghalaya Act of 2005 but, we are afraid, such an exercise cannot take it away from sweep and rigor of the law declared in Bimolangshu Roy‟s case. This is for the simple reason that in Bimolangshu Roy, the Hon‟ble Supreme Court has ruled on the very fundamentals and has held that the State Legislature lacks competence to create any office in the name and nature of Parliamentary Secretary.
When such office, as per the dictum of the Supreme Court, cannot be created by the State Legislature at all, any change of characteristics of the office here or there cannot lend validity to the fundamentally invalid legislation i.e., the Meghalaya Act of 2005. In other words, the fundamental defect in the impugned enactment, of want of legislative competence of the State Legislature, cannot be cured by any amendment.
The office of Parliamentary Secretary, as per the law declared by the Supreme Court, cannot be created by the State Legislature.
The learned Advocate General has also submitted that in fact, with the amendment of 2016, the Parliamentary Secretary remains just in the name and nobody gets salary of this office. These submissions also meet the same fate. When the creation of the office of Parliamentary Secretary is beyond the competence of the State Legislature, even an imaginary creation is also ruled out what to say of name. This is apart from the fact that even after the amendment of 2016, Section 6-A as substituted in place of the previously inserted Section 6-A in the Meghalaya Act of 2005 provides that a Parliamentary Secretary would be entitled to such facilities as may be notified by the Government from time to time. Thus, it is not correct to say that the post of Parliamentary Secretary is just for the sake of it and carries nothing with it. The facility, whatever, to a Parliamentary 29 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya Secretary cannot be provided without corresponding burden on the exchequer, whether directly or indirectly. No facility comes for gratis. We need not elaborate on this aspect for the basic reason that when the creation of such office is beyond the competence of State Legislature and the Meghalaya Act of 2005 indeed creates such an office, the matter stands concluded, as being squarely covered by the law declared by the Hon‟ble Supreme Court in Bimolangshu Roy; and the Meghalaya Act of 2005 deserves to be declared invalid for want of legislative competence.
The learned Advocate General has also indicated that another appeal arising out of the decision rendered by the Calcutta High Court is pending in the Supreme Court. Indisputable it is that Bimolangshu Roy‟s case was also earlier referred by the respondents as one of the similar matters in the Supreme Court. It is also clear that the Meghalaya Act of 2005 (even after some modulations by way of amendment of 2016) stand on foundational aspects in pari materia with the Assam Act of 2004. A few modifications of the Meghalaya Act of 2005 by way of amendment of 2016 do not take away the substance of the matter and do not in any manner create a legislative competence in the State Legislature. Once the three-
Judge Bench of the Hon‟ble Supreme Court has specifically ruled against the legislative competence and there is no decision to the contrary, we see no reason to keep this matter pending any further.
To sum up, in our view, challenge to the validity of the Meghalaya Act of 2005 has to succeed in view of the law declared by the Supreme Court in Bimolangshu Roy‟s case; and, therefore, the Meghalaya Act of 2005 is required to be declared invalid.
Question of disqualification of respondents No.6 to 22 30 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya Learned counsel for the petitioner, with reference to the decision in the case of Election Commission of India v. Bajrang Bahadur Singh and others: (2015) 12 SCC 570 would argue that not only the Meghalaya Act of 2005 is invalid but for the reason of holding such extra-
constitutional office of Parliamentary Secretary, which is remunerative and is capable of earning profit, the respondents No. 6 to 22 have incurred disqualification as per Article 191(1)(a) of the Constitution of India.
Learned counsel for the petitioner has also submitted that even if Article 192 is applied in the matter, the question needs to be referred to the Hon‟ble Governor by this Court. Learned Advocate General has countered these submissions with the contention that no such issue of disqualification arise because the respondents No. 6 to 22 are not holding any office of profit. On behalf of the contesting Parliamentary Secretaries, it has been argued that even if the Meghalaya Act of 2005 is held ultra vires, its forerunner i.e., the Meghalaya Act of 1991 would revive and thereby, these respondents cannot be said to be holding any extra-
constitutional office. It has also contended that these respondents have been appointed as Parliamentary Secretaries on the strength of existing law and they cannot be said to be disqualified; and in any case, the question of disqualification of any member of Legislative Assembly could only be determined by the Governor under Article 192 of the Constitution of India. The learned counsel has, inter alia, referred to the decision in Consumer Education and Research Society v. Union of India and ors: (2009) 9 SCC 648. As per the indications during the submissions, some such reference has already been made to the Hon‟ble Governor.
In our view, the question of disqualification of respondents No.6 to 22 for the reason of their holding the office of Parliamentary Secretary is 31 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya required to be left open for decision by the Hon‟ble Governor for the clear mandate of Article 192 of the Constitution of India that reads as under:-
"192. Decision on questions as to disqualifications of members.- (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion."
It is hardly a matter of any doubt that when a question arises as to whether a member of a House of the Legislature of the State has become subject to any of disqualifications mentioned in Article 191(1), the question has to be referred for the decision of Hon‟ble Governor; and the decision of the Governor in this regard, on the basis of the opinion of Election Commission, is final. We see no warrant for the proposition that such a reference would be made by this Court. The Hon‟ble Supreme Court has indicated in Consumer Education (supra), albeit in the context of disqualification of the members of Parliament, but on similar nature provisions contained in Articles 102 and 103 of the Constitution where- under the reference is to be made to the President of India, that,-
"54. ..... The question of whether a particular Member has incurred a disqualification can be referred for the decision of the President by any citizen by means of making an application to the President. ....."
Hence, without any other comment, we leave the question, regarding disqualification of respondents No.6 to 22 for the reason of their holding the office of Parliamentary Secretary, open for decision of the Hon‟ble Governor, if the same is referred by any person in accordance with law.
Conclusion For what has been discussed hereinabove, while following the decision in Bimolangshu Roy‟s case, the Meghalaya Parliamentary 32 PIL No.5/2016 Shri Madal Sumer v. State of Meghalaya Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2005 is held invalid for want of legislative competence of the State Legislature and is, therefore, struck down. As a necessary corollary, the notifications appointing the Parliamentary Secretaries and other follow-up actions are declared void, for having been issued and carried out under an invalid enactment. The question regarding disqualification of respondents No.6 to 22 as members of Meghalaya Legislative Assembly is left open for determination of the Hon‟ble Governor, if raised in accordance with law.
The petition stands disposed of accordingly and with the observations foregoing.
JUDGE CHIEF JUSTICE Lam/Sylvana