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BJP to knock at court’s door against appointment of chief parliamentary secretaries in Himachal
The Congress government’s move to chief parliamentary secretaries was seen as an efforts to strike power balance and not alienate leaders who could not be appointed in the council of ministers.
Months after the Congress took over reins in Himachal Pradesh, the opposition Bharatiya Janata Party (BJP) will challenge the appointment of chief parliamentary secretaries.
Chief minister Sukhvinder Singh Sukhu had expanded the cabinet almost a month after he was sworn in, inducting seven ministers while three berths were kept vacant. Prior to the oath of ministers, as many as six chief parliamentary secretaries (CPS).
The appointees — Ram Kumar Chaudhary (Doon), Sanjay Awasthy (Arki), Mohan Lal Brakta (Rohru), Sunder Singh Thakur (Kullu), Ashish Butail (Palampur), and Kishori Lal (Baijnath) — were also administered the oath of office by CM, in a move at the time seen as an efforts to strike power balance and not alienate leaders who could not be appointed in the council of ministers.
The Himachal legislature had enacted the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privilege and Amenities) Act, 2006, under which the chief parliamentary secretaries had been appointed by the state in 2013. The People for Responsible Governance, a registered society, had challenged the Act and appointments of the secretaries by way of Civil Writ Petition 3,000 of 2016. The petition was admitted by the court on June 21, 2017, and is pending adjudication.
Speaking of the same, former chief minister Jai Ram Thakur said, “We have already sought legal opinion on challenging the appointments of chief parliamentary secretaries. Within a few days the party’s high command will hold discussions on this. Its appointments are in contravention of the apex court orders,” said the leader of the opposition.”
Calling out the alleged double standards, the opposition party said while the Congress government is talking about “vyavastha parivartan” (changing the system) on one hand, no steps were being taken to curb the wasteful expenditure.
The BJP legislature party will meet tomorrow and further discuss the issue.
There are two grounds on which the Act and consequent appointments have been challenged. The first ground is that the state legislature lacks the legislative competence to enact the said Act and as such the appointments of the secretaries was without legislative authority.
“The said ground has been affirmed by the Supreme Court in case Bimolagshu Roy vs the State of Assam, decided on July 26, 2017, in which the Act enacted by the legislature of Assam had been quashed. Both the Assam Act and Himachal Pradesh Act are para material and contain similar provisions,” said Rajneesh Maniktala, senior advocate at Himachal high court.
The second ground of challenge is that Article 164 (1A) of the Constitution limits the size of the council of ministers, which cannot be more than 15% of the total strength of the legislative assembly. So, the number of ministers cannot exceed 12.
In order to please different power centres, the Government has been appointing the CPS. So, this is an indirect way of overreaching the Constitutional provisions. What cannot be done directly is being done indirectly.
After BJP came into power in 2017, the party did not appoint secretaries, but enacted a The Salaries, Allowances And Other Benefits of chief whip and deputy chief whip in the legislative assembly of Himachal Pradesh Act, 2018 to a whip and deputy chief whip. The same was also largely seen as a bid to achieve political balance.
The said Act and appointments made there under were challenged by way of Civil Writ Petition 1116 of 2019 titled Tek Chand vs State. The grounds of challenge are the same as those for the Himachal Pradesh Parliamentary Secretaries Act, 2006, and the petition is also pending adjudication.
Pointing out the similarity in the both Acts, Maniktala said, “So, both the governments formed by the Congress and BJP had resorted to appointments that were unconstitutional.”
The present appointments, however, come in the backdrop of a similar Act authorising the appointments in Assam having been declared unconstitutional by the Supreme Court. “The government is required to respect the Constitution and the principle of constitutional morality requires that no such appointments are made which have been expressly declared to be illegal,” Maniktala added.
