Supreme Court Stays HC Direction To Initiate Disqualification Proceedings Against HP MLAs Appointed As Parliamentary Secretaries

The Supreme Court on Friday (November 22) issued notice on a Special Leave Petition filed by the State of Himachal Pradesh against a judgment of the Himachal High Court which nullified a 2006 State Law which permitted the state government to appoint Members of the State Legislative Assembly (MLAs) as parliamentary secretaries.

A bench comprising Chief Justice of India Sanjiv Khanna and Justice PV Sanjay Kumar also stayed the High Court's direction, till the next date of hearing, to initiate disqualification proceedings against the MLAs who were appointed as Parliamentary Secretaries. The High Court had held that such appointment would amount to Offices of Profit, rendering the legislators liable to be disqualified.

The bench granted two weeks' time to the respondents to file their counter-affidavits and two weeks' time thereafter for the State to file its rejoinder.

CJI Khanna, after dictating the order, orally said that there should not be any appointments of MLAs as Secretaries in the meantime. 

The High Court, through its November 12 judgment, struck down the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges and Amenities) Act, 2006 as beyond the legislative competence of the State Legislature.

The High Court also struck down the protection granted under Section 3 (d) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971 for such appointments from disqualification. "Natural consequences and legal implications whereof shall follow forthwith in accordance with law," the High Court observed in paragraph 50 of the judgment, suggesting that such MLAs would be liable for disqualification.

Today, the Supreme Court ordered that till the next date of hearing, no further proceedings be initiated in terms of the observations in paragraph 50 of the judgment. 

Senior Advocates Kapil Sibal and Dr Abhishek Manu Singhvi appeared for the State. Sibal informed the bench that similar petitions relating to the laws in Chhattisgarh and West Bengal are pending in the Supreme Court.

Senior Advocate Maninder Singh, for the respondents on caveat, submitted that the Supreme Court, in 2022, had struck down a similar law passed by the State of Manipur in The State of Manipur & Ors. v. Surjakumar Okram & Ors. Singh therefore urged the bench to not grant any interim relief.

"The thumb rule is, when admit appeal, status quo be maintained...we will not allow the disqualification[in the interim]," CJI Khanna said.

CJI also observed that there was no discussion in the judgment regarding the reason to strike down the protection from disqualification. "Second legislation was passed which says this would not amount to office of profit, but it was also struck down, no discussion was done in the judgement.." CJI Khanna said.

Background

A bench of Justice Vivek Singh Thakur and Justice Bipin Chander Degi was dealing with a bunch of pleas, including by 12 State BJP MLAs challenging the State Legislature's competence to enact the law in question [The Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges and Amenities) Act, 2006].

The High Court also set aside the appointment of six Congress MLAs parliamentary secretaries (appointed in January 2023), terming the same to be 'illegal', 'unconstitutional' and 'void ab initio'.

At the outset, the Court referred to the Apex Court's Judgment in the case of Bimolangshu Roy v. State of Assam & Anr wherein the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 was struck down as Unconstitutional by holding that the Assam Legislature lacked the competence to enact the law.

The Himachal Pradesh High Court further observed that the impugned Act violated the mandatory constitutional restrictions imposed by Article 164(1-A) concerning cabinet size.

“By virtue of the impugned Act the transgression of the mandatory Constitutional prohibition and mandatory Constitutional Limitation contained in Article 164(1-A) of the Constitution of India is patent as the office created by the impugned Act, in fact, performs functions ancillary to and incidental to those of the Political Executive,” the Court noted.

It noted that the distinction attempted to be portrayed between Chief Parliamentary Secretary/Parliamentary Secretary and Minister was artificial.

The Court also factored that, unlike MLAs, Parliamentary Secretaries had access to official files, could participate in government decision-making, and were given perks similar to those of ministers.

In fact, before the interim order issued by the Court on January 3, 2024, Chief Parliamentary Secretaries were allowed to fly the National Flag, display the Ashoka Chakra on their vehicles, and use the Government Seal/Emblem, effectively enjoying the rank and status of a Minister, the Court noted.

Importantly, examining the act as a whole, the Court noted that the impugned Act granted Parliamentary Secretaries access to official files, the power to record proposals for Ministerial consideration [Section 4(2)], and they also took an Oath of Office and Secrecy (Section 6).

Additionally, they were entitled to salaries, allowances, residence, and conveyance perks (Sections 7-9), similar to those provided to Ministers under the Salaries and Allowances of Ministers (Himachal Pradesh) Act, 2000.

In view of this, the Court concluded that what was prohibited and limited directly by Article 164(1-A) of the Constitution of India had been sought to be done indirectly by the State Legislature.

Consequently, the 2006 Act was quashed as being beyond the legislative competence of the State Legislature. The protection granted to Six appointees to the office of Chief Parliamentary Secretary/ or Parliamentary Secretary was also declared illegal and unconstitutional.

The Court also directed the Chief Secretary to the Government and all others concerned to ensure the implementation of the judgment in letter and spirit forthwith.

Case title - STATE OF HIMACHAL PRADESH AND ANR. Versus KALPANA DEVI AND ORS. SLP(C) No. 27211-27212/2024 

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