By Dr. Khomdon Singh Lisam
Nobody is above the Indian Constitution. The Constitution is the fountain source of all statutes and laws. The Constitution of India is the Supreme Law of India.. The pertinent question is “Can a state government pass a law in violation of the Indian Constitution ? ”. Is it not a serious challenge to the judiciary by the Legislature enacting an Act against the provision of the Constitution of India. Does it constitute a constitutional crisis ?
On 3rd August, 2012, the Manipur Legislative Assembly under leadership of our Hon’ble Chief Minister Shri O. Ibobi Singh Manipur passed the Parliamentary Secretary ( Appointment , salary and allowances and miscellaneous provisions) Act, 2012 and on 4th August, 2012 received the assent of the Governor of Manipur and the said Act was notified for general information of the public. On 6th October, 2012, the Hon’ble Chief Minister appointed and administered oath of office and secrecy to five Parliamentary Secretaries- Shri Keisam Meghachandra Singh , Shri Mairenbam Prithibiraj Singh ,Shri Victor Keishing , Shri Vungzagin Valte , Md. Amin Shah .
The questions may be asked here are :-
1. Is it admissible under the Indian Constitution to appoint Parliamentary Secretaries in Manipur under the said Act – is it not violation of the 91st Amendment (Article 164 (IA) of the Indian Constitution.
2. Is the Act – Parliamentary Secretary (Appointment , salary and allowances and miscellaneous provisions) Act, 2012 ultra vires of the Indian Constitution ?
3. Do we require five Parliamentary Secretaries in Manipur. Is there any justifiable need ?
4. What will be the cost to the state exchequer for payment of monthly salaries, allowances, maintaining office, security of the five Parliamentary Secretaries?
The sequence of events were as follows :-
On 2nd May, 2012, Hon’ble Chief Minister, Shi O. Ibobi Singh sent the Manipur Parliamentary Secretary (Allowances, Appointment, salary & Miscellaneous Provision) Ordinance 2012 to the Governor of Manipur for his assent.
On 29th June, 2012, the political parties of Manipur called on the Governor of Manipur and lobbied hard against the proposed Manipur Parliamentary Secretary Bill 2012 (Appointment, salary and allowances and miscellaneous provisions ) and urged His Excellency, Shri Gurbachan Jagat, the Governor of Manipur not to allow the State Government to appoint the Parliamentary Secretaries. The Governor reportedly assured that he would work to stop the Government from doing unreasonable things . In spite of Chief Minister’s personal persuasion with the Governor, he failed to get the assent of the Governor
Then he got Manipur Parliamentary Secretary (Allowances, Appointment, salary & Miscellaneous Provision) Bill – 2012 passed by his 42 strong Congress MLAs through the Manipur State Assembly and hurriedly appointed the five Parliamentary Secretaries.
Provisions of the Manipur Parliamentary Secretary ( Appointment , salary and allowances and miscellaneous provisions Act, 2012 :
According to Section 3 of the said Act , the Chief Minister having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretary.
According to Section 4 of the said Act , a Parliamentary Secretary shall be of the rank and status of a Minister of State.
According to Section 6 of the Act , the Parliamentary Secretary shall, before entering upon his office m make and subscribe before the Chief Minister an oath of office and secrecy according to the form set out for the purpose in the Schedule appended to this Act.
According to Rule 3 of the “Rules of Procedure and conduct of Business of the Manipur Legislative Assembly” “ Minister” means a member of the Council of Ministers , a Minister of State, a Deputy Minister or a Parliamentary Secretary. Therefore a Parliamentary Secretary is a Minister of State in Manipur
What the Indian Constitution says :
1.The 91st Amendment of the Indian Constitution viz Article 164 (IA) of the Constitution provides for limiting the total number of Ministers including the Chief Minister within 15% of the total number of members of the Legislative Assembly. As per Article 164 (IA) of the Constitution, Manipur can not have more than 12 Ministers.
2. The Article 188 of the Indian Constitution states that every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
Why the Manipur Parliamentary Secretary ( Appointment , salary and allowances and miscellaneous provisions) Act, 2012 is unconstitutional and illegal .
1. Under Article 164(1A) of the constitution of India , for Manipur having only 60 member of the Legislative Assembly only 12 (twelve) Ministers including the Chief Minister (being 15% of the total number of members of the Legislative Assembly) have to be appointed. There are already 12 ministers in Manipur appointed by the Governor vide notice no 1/6/2002-CON dated 28th April, 2012 and portfolios have been distributed on the same day. But after the appointment of five Parliamentary Secretaries who are also Ministers of State , there are 17(seventeen) Ministers against the permissible limit of 12. Therefore, the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012 is unconstitutional, illegal , arbitrary and ultra vires . This act is void ab initio.
In Manipur, a Parliamentary Secretary is a Minister according to the definition given by the “ Rules of Procedures and conduct of Business of the Manipur Legislative Assembly. An Advocate General is given the rank of a Minister but Advocate General is not a Minister. But Parliamentary Secretary is given the rank of a Minister of state according to the Act and he is a Minister according to the definition given the State Legislative Assembly .
2. Again , under the provisions of Article 164 of the Indian Constitution, a Minister is to be appointed by the Governor and a Minister can not be appointed by the Chief Minister . As such a Parliamentary Secretary , being the rank and status of a Minister of State , the Chief Minister can not appoint such number of Parliamentary Secretaries under section 3 of the Manipur Parliamentary Secretaries Act 2012 . The appointment order no. 15/1/2012-CON dated 6th October, 2012 was not in the name of the Governor but in the name of the Chief Minister . Therefore the provision of section 3 of the Manipur Parliamentary Secretary (Appointment , salary and allowances and miscellaneous provisions ) Act , 2012 is unconstitutional and illegal;. It is liable to declare null and void .
3. Under the provisions of Article 164 of the Constitution of India –before a Minister enters upon his office , the Governor shall administer to him the oath of office and secrecy according to the forms set out for the purpose to the third schedule. There is no provision in the constitution to take oath from a Minister by the Chief Minister if he is not appointed or authorised by the Governor. But under section 6 of the Act, the Chief Minister has to administer the office and secrecy to the Minister or MLA in the name of Parliamentary Secretaries . Such provision of taking oath from a minister i.e a Parliamentary Secretary by the Chief Minister is ultra vires of the Constitution of India under Article 164 . There was neither any source of power with the Chief Minister to appoint the Parliamentary Secretaries nor any power to administer oath of office and secrecy This is another violation of the Indian Constitution.
4. Under Section 10 of the Act, Manipur Parliamentary Secretary (Salary and Allowances ) Act, 1972 is repealed . As it is being repealed , the provision of section 7 of the impugned Act-2012 – a Parliamentary Secretary shall be entitled to such salary and allowances as admissible to a Minister of State under the Salaries and Allowances of Ministers ( Manipur) Act, 1972 is also ultra vires and the five Parliamentary Secretaries five (5) in number shall not be entitled to such salary and allowances under section 7 of the impugned Act-1972.
Previous High Court Judgements :
1. In 2009 in the case of Mr. Aires Rodrigues Vs the State of Goa and others ( as cited in Anami Narayan Ray Vs Union of India ) , a Division Bench of the Bombay High Court comprising of Chief Justice Swatanter Kumar and Justice Nelson A Britto held the appointments of the two Parliamentary Secretaries as illegal, unconstitutional and unnecessary and in violation of the Article 164 (IA) to the Constitution and set aside the appointment of two Parliamentary Secretaries in the state Government of Goa.
On 18 August, 2005. a Division Bench comprising Chief Justice Vinod Kumar Gupta and Mr Justice Deepak Gupta, held that there was no provision for the post of Chief Parliamentary Secretary and Parliamentary Secretary in the Constitution. In the order, the judges observed that there was neither any source of power with the Chief Minister to appoint the Parliamentary Secretaries nor any power to administer oath of office and secrecy. As such the appointments were void “ab-initio” and they could not be allowed to continue in their offices. The High Court quashed the appointment of 12 Chief Parliamentary Secretaries and Parliamentary Secretaries declaring such appointments as illegal and unconstitutional. The High Court observed that their continuance in office was impermissible under the law.
No High Court or Supreme Court has upheld/ supported appointment of Parliamentary Secretaries till date.
Do we justify the need for appointment of Parliamentary Secretaries ?
The present Congress ministry headed by Shri O. Ibobi Singh is having 42 Congress MLA with 12 cabinet ministers . Since the Congress ministry is enjoying absolute majority in the Assembly and it is not a coalition ministry, there is no threat to the ministry and therefore there is no circumstances and no need for appointing the Parliamentary Secretaries as mentioned under section 3 of the Manipur Parliamentary Secretary ( Appointment , salary and allowances and miscellaneous provisions ) Act , 2012 .
The Manipur Government urgently needs to cut down heavily on unnecessary expenditure. The public money could have been better utilised. On March 31, the last day of the financial year 2011-12, an amount of Rs 700 Crores was drawn for different purposes including payment of salaries for employees. Withdrawal of this amount brought the State’s account balance to negative, incurring an overdraft of Rs 400 crores. Possibly, the Reserve Bank of India may ban the State Government from drawing funds any time now. In the beginning of financial year 2012-2013, the Manipur State Government had an overdraft account. The Reserve Bank of India may possibly ban the Government of Manipur from drawing any fund any time if the overdraft amount is not paid back. It is reported that the overdraft amount grew to Rs 400 crores as Rs 150 crores which should be kept in the State Government’s account was not transferred to the State account by the bank concerned. As such, it is likely that the overdraft amount would be reduced if the amount of Rs 150 crores is transferred to the State account.
The State Government has around 65,000 regular employees. After implementation of the 6th Central Pay Commission in Manipur since April 1 last year, the Manipur State Government has been spending Rs 200 crores thereby incurring a deficit of Rs 83 crores every month in paying salaries to its employees and pensioners. The State Government is not in a position to pay the salaries of employees regularly. Moreover, there are more than six lakhs unemployed youths in Manipur .
In addition, there are many more important core issues facing the State Government of Manipur like the conflict situation and communal tension among various ethnic groups, demand for a greater Nagaland or Nagalim, demand for a separate Kuki state , need to protect territorial integrity of Manipur, need for an uniform land law, political settlement of insurgency problem, control of national highway blockade, opening of a national highway protection force, opening of a separate Manipur Regiment, employment generation for youths, need for declaring Meiteis as Scheduled Tribe, need for bringing equality, solidarity and unity among all ethnic groups in Manipur, need for re-organisation of districts , need for providing 24 hour electricity , need for providing 24 hour water supply, need for providing domestic piped LPG supply, need for building multi storied car parking in Imphal city, need for introducing faster inter-district transport system, need for developing Imphal as a modern City, altern
ative administrative arrangement of the Nagas outside the purview of the State Government, need to speed up the Indo-Naga Peace Talk and finding a honourable solution, abolition of corruption at all levels, lifting of AFSPA -1958 from Manipur , need to regulate the entry of foreigners and outsiders through rigorous implementation of Foreigners Act and Inner Line Permit System, privatisation of all sick industrial units etc. It appears that the state government is busy only in giving symptomatic relief to the day to day problems and not caring for long term cure . The political leaders and bureaucrats in Manipur need to think outside the box. It is quite probable that the Law Department which is responsible for providing legal advice to the Chief Minister has misled the Chief Minister for reasons known to them . I believed that the present ministry under our Chief Minister , ShriO, Ibobi Singh is very much concerned with these core issues. The Hon’ble Chief Minister with his 42 MLAs may kindly re-examine the Act, make necessary corrections to make it commensurate with the Indian Constitution and pull up the Law Department headed by the Law Secretary for having misled the Government. It is, therefore, advisable for the state government to concentrate on these core issues in greater public interest rather than trying to satisfy some disgruntled MLAs.
(The views expressed in this article are personal opinion of the author)
