'Has Trappings of Ministers' Office': Karnataka High Court Declares Parliamentary Secretaries Act As Unconstitutional

A Division Bench comprising of Chief Justice Abhay S. Okay and Justice SR Krishna Kumar held that the State Legislature of Karnataka had no legislative competence to enact the said legislation.

The Petitioners in this case had contended that the State Legislature lacked the legislative competence to make the said Act. It was argued that Entry-39 of list-II of Schedule VII of the Constitution does not empower the State Legislature to frame a Legislation dealing with the powers and privileges of the members of the Legislative Assembly and the Legislative Council.

Reliance was also placed on the Supreme Court's decision in Bimolangshu Roy (dead) through Lrs v. State of Assam & Anr., where it was held that the State Legislature had no power to enact the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 by deriving support either from Article 194 (3) of the Constitution of India or from the entry-39 of List-II.

The Karnataka High Court has also held that 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.

The Court noted that the impugned Act did not deal with the powers, privileges and immunities of the members of the Legislative Assembly or the Legislative Council and the committees of the said Houses. In fact, it was a ploy to delegate the functions and duties in respect of the Legislative matters to the Parliamentary Secretary attached to him.

In this context it noted the following functions and duties of a Parliamentary Secretary:

• He shall brief the concerned Minister on the subjects which involve Legislative matters;
• He shall assist and advise to execute Legislative duties of the concerned Ministers on the floor of the house so that the business of the house could be done effectively; and
• He shall execute the functions and duties entrusted by the concerned Minister, in respect of the Legislative matters.

The Court observed that most of the duties and functions of Parliamentary Secretaries are akin to the Legislative duties of a Deputy Minister or a Minister of State without independent charge; and the same cannot be said to be 'privileges and immunities' contemplated under Article 194.

"It is true that there is no specific provision under the said Act, which specifically lays down that the Parliamentary Secretaries shall be entitled to the status of Hon'ble Ministers or Ministers of State or Deputy Ministers to whom, the Hon'ble Governor administers the oath of office on the advice of the Hon'ble Chief Minister. But, the said Rules show that there is hardly any difference between the role of a Deputy Minister or a Minister of State without independent charge and a Parliamentary Secretary," it said.

The Court further emphasized,

"none of the Constitutional provisions referred above empower the State Legislature, even by implication, to enact a law for appointment of the Parliamentary Secretaries. Entry-39, List-II of Schedule-VII of the Constitution deals with the powers and privileges and immunities of the legislators qua Legislature, as held by the Apex Court. There was an argument canvassed on behalf of the State that the said Act confers additional privileges on members of both the Houses. However, on plain reading of the said Act, it seeks to provide for appointment of Parliamentary Secretaries and further seeks to define their powers and duties. The Apex Court has held that the State Legislature has no competence to enact a law providing for appointment of Parliamentary Secretaries. Moreover, the said Act does not confer any privileges on the members of both Houses as legislators qua Legislature." Reliance was placed on Bimolangshu Roy (supra).

Another reason given by the Court for declaring the impugned Act as unconstitutional is as follows:

"the office of the Parliamentary Secretaries has trappings of the post of Hon'ble Ministers of State without independent charge or at least Hon'ble Deputy Ministers. The said Act will work as a devise available to the Hon'ble Chief Minister to appoint the members of the Legislative Assembly and Legislative Council of his choice as parliamentary Secretaries, who cannot be made as Ministers due to constraints of Article 164(1-A). This will completely defeat and nullify the upper ceiling limit imposed by Article 164(1-A) of the Constitution of India on number of Ministers. Hence, even otherwise, the said enactment is ultra vires the constitutional mandate in Article 164(1-A)."

Case Title: MB Adinarayana v. State of Karnataka

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