Is the appointment of parliamentary secretaries constitutional? Analyse in the context of Office of Profit.
Refer – The Hindu
Enrich the answer from other sources, if the question demands.
IAS Parliament 6 years
KEY POINTS
Office of profit
· It is not defined in the Constitution.
· However, what constitutes an office of profit under the Government is now well established by a catena of judgments of the Supreme Court.
· Five tests have been laid down:
a) Whether the government makes the appointment;
b) Whether the government has the right to remove or dismiss the holder;
c) Whether the government pays remuneration;
d) What are the functions of the holder and
e) Does the government exercise any control over the performance of these functions.
· Also, Supreme Court, in various cases has held that all the five tests need not co-exist conjointly for determining whether an office is an office of profit under the government.
Constitutional validity of PS
· In India’s parliamentary system, contesting elections to the legislature is primarily seen as a path to exercise executive power.
· But, one of the major constraints in cabinet formation is Article 164 (1-A) of the Constitution which limits the number of Ministers in State cabinets — including the Chief Minister — to 15% of the total number of MLAs of the State.
· It is for this reason; most of the State governments create posts such as Parliamentary secretaries (PS) to circumvent the constitutional cap of 15%.
· Because, a Parliament Secretary often holds the rank of Minister of State.
· Various High Court judgments in the past have deemed the appointment of Parliamentary Secretaries unconstitutional and have ruled against such appointments.
· For example, the Calcutta High Court in 2015, quashed the appointment of 24 Parliamentary Secretaries in West Bengal dubbing it unconstitutional.
Rationale behind the principle
· The underlying principle behind this is the doctrine of separation of powers.
· The office of profit rule seeks to ensure that legislators act independently and are not lured by offers from the executive.
· It was felt desirable that members of legislatures should not feel themselves beholden to the executive government and lose their independence of thought and action in the discharge of their public duties as representatives of the people.
