Appointment of Parliamentary secretaries were quashed in other states by courts

With the Election Commission's recommendation to disqualify 20 Aam Aadmi Party MLAs in Delhi, the future course for such legislators is fraught with legal battles, with little hope of success.

After the President's formal assent, which is termed natural, such MLAs, who were appointed parliamentary secretaries, are again going to question the decision in the court.

Though the AAP government claimed that such MLAs were not taking a single penny, there are many apparent legal deficiencies as the Delhi government brought the bill in this regard with retrospective effect. The President has then declined assent to the Delhi Members of Legislative Assembly (Removal of Disqualification) Bill, 2015, passed by Delhi assembly in June 2015.

It is notable that similar decision by other state governments to appoint MLAs as parliamentary secretaries could not sustain a legal challenge.

The Supreme Court's three-judge bench led by Justice J Chelameswar had on July 26, 2017, declared a law passed by Assam Assembly in 2004 for such a purpose as "unconstitutional". "We are of the opinion that the legislature of Assam lacks the competence to make the impugned Act," the bench has said.

The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 was passed after Parliament enacted amendment as Article 164(1A) of the Constitution.

The main arguments against such appointment were that it went against Article 164 (1A) of the Constitution and was repugnant to 91 st Constitutional Amendment, which fixed the ceiling of 10% on the number of Ministers of the total number of seats in the Assembly of a state and union territory.

The Punjab and Haryana had on August 12, 2016, quashed a law appointing Chief Parliamentary Secretaries in Punjab, saying it was contrary to the constitutional intent of limiting the number of ministers or the size of the Cabinet. The Meghalaya HC also on November 9, 2017, set aside such a state law for the appointment of parliamentary secretaries.

A similar move by the Goa (2009) and the West Bengal government (2015) was quashed by the HCs.

The appointment of parliamentary secretaries was seen as nothing but extending the privileges to some of the Member of Legislative Assembly who could not make it to the Council of Ministers. It is also argued that the move is nothing but elevating a good number of MLAs to the position of ministers under the guise of parliamentary secretary in violation of the Constitution.