Validity of Appointment of Parliamentary Secretaries in India

Ceiling on number of Ministers.

Article 164(1A) of the Constitution of India is as under:

The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State:

Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve;

Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint.

Jumbo Cabinet in Assam.

Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004

On 3.11.2004, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004 was promulgated which inter alia provided as under:

The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretaries and assign to each of them such duties and functions as he may deem fit and proper.

Section 4 declares that Parliamentary Secretary should be of the rank and status of a Minister of State and exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister.

Section 4 – A Parliamentary Secretary shall be of the rank and status of a Minister of State and shall exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister by way of a notification published in the official Gazette.

Now this is apparently provides what Article 164(1A) expressly prohibits. So is it valid?

Creation of Political Executive

Another argument is that the Political Executive (both national and state level) is the creation of the Constitution itself. Articles 74(1) 6, 75(1)7, 163(1)8 and 164(1)9 of the Constitution create the offices of the Prime Minister, Chief Minister and other Ministers respectively. The framers of the Constitution were aware of the different offices in vogue (such as Parliamentary Secretaries, Deputy Ministers etc) in various parliamentary democracies but chose to make provisions for only the office of ‘Minister’. Continue reading “Validity of Appointment of Parliamentary Secretaries in India”