Parl Secy: To be or not to be?

Free Thinker *

12 Parliamentary Secretaries by the coalition Government led by N Biren :: Pix - TSE

We were taught in the evening law college (LC-II) of South Campus of a prestigious University that the Supreme Court verdict is the law of the land. Until and unless the same is reviewed by itself (Supreme Court) the law remains valid and ought to be enforced throughout the length and breadth of the country.

One Prof Koul said , and I was completely floored by him , that " in this country we have so many laws, nobody knows how many, and at the same time nobody knows how many are implemented or enforced successfully, including the Supreme Court rulings ".

We have anti-dowry laws, prohibition law, anti-smoking law, anti-plastic law, many environmental laws (some are SC verdicts) bundles of traffic laws and anti-bribery laws. But law breakers are no doubt more numerous than the law abiders.

For instance, bribe taking and giving are punishable offences; it is clearly written in the law book. In reality both become elated and are enjoying; the giver has got his work done and the taker enjoys the fruit of his 'karma'.

Once in a while, hundred in a lac are caught in corruption cases and out of that (100) one may get conviction; like the cow-man of Bihar. What I am trying to say is that even though the Apex Court has made it amply clear that Parliamentary Secretaries are not constitutionally possible and legally tenable while considering the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances & Miscellaneous Provisions) Act 2004, we are still having a good number of Parliamentary Secretaries in the States .

In fact Supreme Court had declared that the appointment of Parliamentary Secretaries is unconstitutional particularly after the 91 Constitution Amendment, which has restricted the number of Ministers at 15% or twelve for the Smaller States. Parliamentary Secretaries are palpable back door entrees.

There were a series of High Court verdicts in respect of Parliamentary Secretaries. In 2005 The Himachal Pradesh High Court invalided the appointment of eight Chief Parliamentary Secretaries and four Parliamentary Secretaries. In 2009 the Bombay High Court erased 2 Parliamentary Secretaries appointed by the Goa Government.

Telengana government's order appointing Parliamentary Secretaries was struck down in 2015 by the Hyderabad High Court. Again, the Calcutta High Court in 2016, junked a law enacted by the West Bengal Assembly which provided for the appointment of Parliamentary Secretaries.

The High Court verdicts and judgments of other States are not binding on Manipur; because these courts have their respective jurisdictions. The state of Manipur is now under the jurisdiction of Manipur High Court. What is going to be relevant is the verdict of the Manipur High Court?

Even if the relevant Act is repealed, the Court still can pass a judgment on the legality and constitutionality of the then Act. Then the retrospective legal consequences can be effected; but it is rare. In Duki (guide for passing exam), I found that the judgment of a particular High Court has no legal binding on other High Courts.

In other words a High Court ruling holds good only within its jurisdiction. But it has some moral bearing or referral value while hearing the cases of similar nature in other High Courts. Again I read somewhere in jurisprudence that the laws including the Court verdicts are normally implemented prospectively not retrospectively (except when there is a commencement clause).

At the outset there are two issues to be dealt with in our case. First, whether the Parliamentary Secretaries have resigned; if so, when? Whether their resignations were on or before the crucial Supreme Court verdict pertaining to Assam Parliamentary Secretaries?

The issue of office of profit arises only after we have clarity in the whole sequence of events. The landmark Supreme Court Judgment on the appointment of Parliamentary Secretaries came only in July 2017, which made it null and void.

Consequently, after this verdict all the Parliamentary Secretaries, in every nook and corner of the country, not only in Assam are bound to go (though seemingly protected by the State enactments). Mizoram, where the literacy rate is one of the highest, took a stand immediately and all their Parliamentary Secretaries resigned in August 2017.

Our Parliamentary Secretaries had also resigned around that time (7 + 5). It is believed that the resignations are all bona fide and timely. And now the Manipur Parliamentary Secretary (Appointment, Salary, Allowances & Miscellaneous Provisions) Act 2012 is also repealed as it has become redundant and nonviable after the Federal Court has quashed the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances & Miscellaneous Provisions) Act 2004 (which is a similar enactment) .

This is my humble opinion. Opinions are like feet, everybody has got a couple and they usually stink.