Himachal Pradesh High Court Nullifies 2006 Law Permitting Appointment Of MLAs As Parliamentary Secretaries

With this, a bench of Justice Vivek Singh Thakur and Justice Bipin Chander Degi 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'.

“Since the impugned Act is void ab initio therefore respondents No.5 to 10 in CWP No.2507 of 2023 are usurpers of public office right from their inception and thus, their continuance in the office, based on their illegal and unconstitutional appointment, is completely impermissible in law. Accordingly, from now onwards, they shall cease to be holder of the office(s) of Chief Parliamentary Secretaries with all the consequences,” High Court's operative portion of the order reads.

The division bench passed this order while 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].

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.