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The Karnataka High Court last week quashed a 1999 amendment to the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act, 1963.
The 1963 Act empowers the Chief Minister to appoint parliamentary secretaries amongst the members of the Karnataka Legislative Assembly and Karnataka Legislative Council.
A Division Bench of Chief Justice Abhay Shreeniwas Oka and Justice SR Krishna Kumar held that the Act was “unconstitutional” and that the Legislature of Karnataka had no legislative competence to enact such an Act in the first place.
Social activist MB Adinarayana and Advocate KB Vijayakumar had challenged the appointment of parliamentary secretaries.
Adinarayana had specifically challenged the decision of previous Chief Minister HD Kumaraswamy, who had appointed eight MLAs/MLCs as parliamentary secretaries in January last year.
What the petitioners argued:
The petitioners submitted that the State Legislature completely lacked the legislative competence to pass the said Act. The petitioners further submitted that Entry-39, List-II of Schedule VII of the Constitution does not empower the State Legislature to frame a law dealing with the powers and privileges of the members of the Legislative Assembly and the Legislative Council.
Supporting the above argument, the petitioners placed heavy reliance on the case of Bimolangshu Roy V. State of Assam decided by the Apex Court.
Another important submission put forth by the petitioners was that the Parliamentary Secretaries were placed on par with ministers. In this respect, the Act enabled the Chief Minister to cross the ceiling on the number of ministers enumerated under Article 164(1-A) of the Constitution.
What the respondents argued:
The respondents stated that the decision of the Apex Court in the case of Bimolangshu Roy is clearly distinguishable, as the provisions of the Assam Act were completely different from the Karnataka Act.
Moreover, the said Act only confers additional privileges on the members of both the Houses of Legislature and, therefore, Item 39 of List II is attracted. In order to strengthen their averment, the judgment of Chhattisgarh High Court in the case of Rakesh Choubey and others v. State of Chhattisgarh was relied upon.
What the High Court held:
The High Court held that there is no specific provision under the said Act specifically laying down that Parliamentary Secretaries shall be entitled to the status of Ministers of State. However, when read with the connected Rules, there is hardly any difference between the role of a Deputy Minister and a Parliamentary Secretary, the High Court averred.
The Court further noted that the duties and functions of Parliamentary Secretaries are akin to the legislative duties of a deputy minister. Notably, the drastic amendments made in 1999 show the intention of the legislature, the Court expressed.
Further, on the point of whether the text of Article 194(3) and Entry 39 is wide enough to authorise the legislature to make the Act, the Court relied on the following excerpt from the Bimolangshu Roy judgment,
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…..….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. 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. For the above mentioned reasons, we are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act.
Bimolangshu Roy’s Judgment
Relying on the above judgment, the Karnataka High Court opined that the State Legislature lacked legislative competence to enact a law providing for appointment of Parliamentary Secretaries. The High Court further stated that,
“If we hold that Article 194(3) and Entry 39 of List II are the sources of legislative power for enacting the said Act, we will be going beyond their reasonable connotation, which is impermissible.”
The Karnataka High Court expressed its disagreement with Chattisgarh High Court decision in Rakesh Choubey's case, which stated that Parliamentary Secretaries are not shown to be having the same rank as a State minister.
Differing with this view, the Karnataka High Court opined,
“With greatest respect, the decision of the Chhattisgarh High Court is completely contrary to what is held by the Apex in paragraph 44 of in the case of Bimolangshu Roy (supra).
Hence, we are unable to agree with the view of the High Court. Thus, we are of the considered view that ex facie, the State Legislature of Karnataka lacked Legislative power to enact the said Act.”
Regarding the petitioner’s second submission, the Court held,
"The said Act will work as a device available to the CM to appoint members of the legislative assembly and legislative council of his choice as parliamentary secretary, who can't be made as minister due to constraints of Article 164(1-A) of the Constitution. This will completely defeat & nullify the upper ceiling imposed by Article 164(1-A) of the Constitution on the number of ministers,"
[Read Judgment here]