The Meghalaya High Court’s order of November 10 striking down the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2005, as invalid could throw the Congress-led government in the state into disarray. The ruling meant that the state government’s appointment of parliamentary secretaries under the Act would become void.

Soon after coming to power in 2013, the Mukul Sangma-led government had appointed 18 members of the Assembly as parliamentary secretaries to assist the state’s 12 ministers. One of them stepped down from the post last year. The remaining 17 resigned within hours of the court judgement.

However, the petition that led to the court order also pressed for the 17 lawmakers to be disqualified from the Assembly. The court has left that decision to governor Ganga Prasad.

This leaves the Meghalaya government in a precarious position. In the 60 member-Assembly, the ruling alliance has a strength of 45. This includes 29 Congress legislators (apart from the speaker), 14 independents and two Nationalist Congress Party legislators. If the 17 former parliamentary secretaries – a mix of Congress and independent legislators – are disqualified, the government will be reduced to a minority.

Meghalaya goes to polls early next year.

Calls for disqualification

In the wake of the high court ruling, the clamour for disqualification continues. A little over a week after the court order, petitioner Madal Sumer, who describes himself as a “concerned citizen”, submitted a fresh representation to the governor asking him to disqualify the 17 MLAs. He claimed that they should be disqualified for holding an “office of profit”. He argued that legislators holding such posts would fail to discharge their constitutional duties as elected representatives without a conflict of interest.

On November 19, the governor said in a press statement that he had referred the matter to the Election Commission, which would adjudicate if the parliamentary secretaries were indeed holding an office of profit.

The Meghalaya High Court struck down the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2005, as invalid on November 10.

A contentious appointment

A parliamentary secretary often holds the same rank as a minister of state, with the same entitlements, and is usually assigned to a particular department.

This is not the first time a controversy around the appointment of parliamentary secretaries has broken out. In 2016, the Delhi High Court quashed the Aam Aadmi Party government’s appointment of 21 party legislators as parliamentary secretaries on the grounds that this was not approved by the lieutenant governor. Before that, West Bengal, Himachal Pradesh, Goa and Telangana saw similar judicial interventions.

In September, the Supreme Court declared the post of parliamentary secretary as unconstitutional.

Besides, Article 164 (1A) of the Constitution states that the number of ministers in a state, including the chief minister, cannot be more than 15% of the strength of the Assembly. Yet, four state governments in the North East – Manipur, Arunachal Pradesh, Meghalaya and Nagaland – continued the practice of appointing parliamentary secretaries. Analysts say the primary reason is that this serves as an incentive to woo independent lawmakers to lend support to the government.

Office of profit

While the courts have routinely struck down such appointments, disqualification from the legislature for holding an office of profit is relatively rare. In 2006, the Samajwadi Party’s Jaya Bachchan was disqualified as a member of the Rajya Sabha for simultaneously holding the post of chairperson of the Uttar Pradesh Film Development Corporation. In Delhi, the case concerning the disqualification of legislators who had held the position of parliamentary secretary is still pending with the Election Commission.

The 17 lawmakers in Meghalaya insist there are no legal grounds for their disqualification. One of them, independent legislator Justine Dkhar, affirmed they were not occupying an office of profit as they were not drawing any salary from the government. “How can they disqualify us?” he asked. “We have nothing do with any money from the government. We were only drawing salaries as MLAs like everybody else.”

Another former parliamentary secretary, Kennedy Khyriem of the Congress, agreed. “Since everyone put in their papers, there should not be any case of disqualification,” he said.

However, Dkhar’s contention may not stick. Recent judgements suggest that remuneration is only one of the many yardsticks to gauge an office of profit. If the government exercises control over appointment, removal and performance, and if the office has government powers and is susceptible to the influence of the government, it could also be considered an office of profit.

Congress versus others

The petitioner maintains that the governor should dismiss all 17 former parliamentary secretaries. “They were holding dual posts, one an office of profit, so as per law they should be disqualified,” said Augustine Shanpru, a spokesperson for Sumer. Shanpru said they had filed the petition because the state’s “MLAs get all the perks and facilities from these extra jobs but create no employment for the state’s youth”.

The Opposition, too, has backed the demand for the MLAs’ disqualification. Ardent Miller Basaiawmoit, a legislator from the Hill State People’s Democratic Party, who also filed a representation to the government this year questioning the appointments, said: “Now the court has also called it unconstitutional, so they should be disqualified. If disqualification cannot happen retrospectively, at least some action should be taken.”

The Congress, however, remains defiant. Urban Affairs Minister Ronnie V Lyngdoh said the state government is constitutionally empowered to enact laws and appoint parliamentary secretaries. “As you know, the legislature is supreme,” he said, adding that there was no question of disqualification as the parliamentary secretaries were discharging their duties according to the Constitution. He said the government was confident that the Election Commission would rule in its favour “as the law was very clear”.