[Manipur MLAs disqualification] Plea in Supreme Court alleges Election Commission not performing its Constitutional duty

A Supreme Court Bench of Justices L Nageswara Rao and Ravindra Bhat on Friday issued notice to Election Commission of India on a plea by Congress leader DD Thaisii seeking directions to the poll body to give its opinion to Governor of Manipur regarding the disqualification of twelve members of the Manipur Legislative Assembly..Thaisii has claimed before the top court that Election Commission of India has failed to discharge its Constitutional duty due to which the twelve Members of the Legislative Assembly (MLAs) of Manipur Assembly are continuing as members of the House, despite their apparent and undisputed disqualification under Article 191 (1 )(a) of the Constitution..It is the petitioner's case that the disqualification of the twelve MLAs can happen only after the EC gives its opinion to Governor which would enable him to discharge his Constitutional duty..The claim for disqualification itself stemmed from the fact that the twelve MLAs were appointed as Parliamentary Secretaries for the State of Manipur, in exercise of powers under Section 3 of The Manipur Parliamentary Secretaries (Appointment, Salary and Allowance and Miscellaneous Provisions) Act, 2012..The office of Parliamentary Secretary is an office of profit elevating the MLAs to rank and status of minister and entitling them to draw higher salary and allowances admissible to a minister, the petitioner has contended. ."It is submitted that during 2017, a Member of the Manipur Legislative Assembly was entitled to receive Rs.19,500/- per month apart from allowances under The Salaries and Allowances of Members of the Legislative Assembly (Manipur) Act, 1972. During the same time, under the Salaries and Allowances of the Ministers (Manipur) Act, 1972 a Minister of State of Manipur was entitled to receive Rs.26,000/- per month apart from Sumptuary Allowances, free Residence and Conveyance Allowance. Therefore, the monetary benefit of the 12 members of the Manipur Legislative Assembly, who were appointed as Parliamentary Secretaries is doubtless and obvious," the petition states. .Such appointment as Parliamentary Secretaries was done to circumvent Article 164(1-A) of the Constitution which imposes cap on the number of ministers who can be inducted into the Council of Ministers, the plea states.Article 164(1-A) states that the total number of ministers including the Chief Minister in the Council if Ministers in the State should not exceed 15 percent of the total number of the legislative assembly of that State..As per the petition, the twelve members of the Legislative Assembly, who were appointed and who accepted appointment as Parliamentary Secretaries, occupied an office of profit and, thus, automatically incurred disqualification under Article 191(1)(a) of the Constitution..Moreover, the Supreme Court had in the 2017 case of Bimolangshu Roy held that legislatures of States lack the competence to enact laws for appointing Parliamentary Secretaries. The Manipur government had then published a notification repealing the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act 2012 and for providing a savings clause to protect the twelve Parliamentary Secretaries..However, the Manipur High Court, placing reliance on the Supreme Court judgment, on September 17, 2020 struck down the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act 2012 and the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 as unconstitutional..The petitioner along with another MLA then submitted a petition before the Governor requesting that a decision as contemplated under Article 192 of the Constitution of India for disqualification of the members under Article 191(1) of the Constitution be taken. The Governor of Manipur referred the application to the Election Commission of India the said petition for its opinion as contemplated under Article 192 of the Constitution of India. So far, the Election Commission has not submitted its opinion to the Governor, the plea before Supreme Court states. .Under Article 192 of the Constitution of India, the Governor of a State has been entrusted with the power to decide on questions regarding disqualification of members of legislative assembly and legislative council of the State. However, the Article mandates that before giving any such decision, the Governor is required to obtain the opinion of the Election Commission and has to act according to such opinion..The plea states that the Election Commission is not performing its Constitutional duty as required and consequently, the twelve MLAs are continuing to act and discharge functions as members of the Manipur Legislative Assembly, which is "unconstitutional and illegal as the seats, by operation of law, have fallen vacant"..The petitioner has, therefore, prayed that a direction be issued to the Election Commission of India to submit its opinion to the Governor of Manipur to enable the expeditious disposal of the petition under Article 192 of the Constitution of India regarding the disqualification of the twelve MLAs..[Read Order]