Is appointment of Parliamentary Secretaries in Manipur unconstitutional and illegal ?
- Part 1 -

Dr. Khomdon Singh Lisam *

Assembly building as a component of the Capitol Complex at Chingmeirong, Imphal :: Pix - Bullu Raj

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 it 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 ( Appointment , salary and allowances and miscellaneous provisions ) Bill , 2012 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.

To be continued...