Assam law on parliamentary secretaries unconstitutional: SC

The Supreme Court today held as "unconstitutional" a 2004 legislation in Assam on parliamentary secretaries saying the then Congress-led government lacked the competence to enact it.
A bench headed by Justice J Chelameswar allowed the plea challenging validity of the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 on the ground that it violated the mandate under Article 164 (1A) which stipulates an upper limit of 15 per cent as the strength of the council of ministers.
On January 1, 2004, the Constitution 91st Amendment Bill, 2003 was passed by both the Houses of the Parliament and after the President's assent, it became an act with modifications made to articles 75 and 164 of the Constitution.

Article 164(1A) of the Act stipulated that the size of the council of ministers in the state should not exceed 15 per cent of the total strength of the assembly.
"We are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act. In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment.
"The writ petition is allowed. The impugned Act is declared unconstitutional," the bench, also comprising justices R K Agrawal and A M Sapre, said.

The bench noted in its judgement that at the time of the coming into force of 91st Constitutional Amendment Act, 2003, the strength of the council of ministers in Assam was at 36 out of a total 126 members which amounted to 28.57 per cent of the strength of the Legislative Assembly.

It further noted that in view of the mandate contained in Article 164(1A), the strength of the council of ministers was to be brought down to 19 as per the 15 per cent ceiling.
The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004 was promulgated on November 3, 2004 and on December 29, 2004, the Act was passed and published in Assam's official gazette.
Thereafter, on May 30, 2005, eight parliamentary secretaries were appointed under the Act and they took oath of office, but were not assigned any ministry.
The petitioners had challenged the validity of the Act contending that the state was not competent to enact it and it was intended to "over-reach the mandate of the Constitution Amendment Act".

However, Assam government had contended before the apex court that it has the legislative competence to enact the Act and functions of parliamentary secretary were different from the functions of a minister and therefore neither the principle of collective responsibility nor the mandate of the Constitution was violated.