States cannot create offices like Parliamentary Secretary under Entry 39 of List II: Supreme Court

The Supreme Court today ruled that Article 194 of the Constitution and Entry 39 of List II do not empower State Legislatures to create new offices like Parliamentary Secretary. In the process, the Court quashed the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 (Act), which created the office of Parliamentary Secretary..The judgment was rendered by a Bench of Justices Jasti Chelameswar, RK Agarwal and AM Sapre..The vires of the Act was in question before the Court on the ground that State Legislature of Assam was not empowered to enact the same..The Act, which was enacted in 2004, created the office of Parliamentary Secretary, which was defined by Section 2(c ) of the Act as follows:.“‘Parliamentary Secretary’ means a Member of the Assam Legislative Assembly appointed as the Parliamentary Secretary under this Act by the Chief Minister.”.Section 3 stipulated,.“The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretaries and assign to each of them such duties and functions as he may deem fit and proper.”.Interestingly, the Act was passed after the Union Parliament had amended Articles 75 and 164 thereby restricting the size of the Council of Ministers in the State to 15% of the total strength of the Assembly. It was alleged by the petitioners that the impugned Act was an attempt to over-reach the 15 per cent mandate brought about by amendment to the Constitution..The petitioner’s main contention was that the Entry 39 of the State List (List II), speaks of powers, privileges and immunities of the Legislative Assembly and the members of the committees of the legislative assembly. The latter part of the entry refers to enforcement of attendance of persons before committees of the legislature. The petitioners submitted that there is not even the slightest indication in the text of the Entry that it authorises the creation of offices other than those specified in the Entry..“Entry 39 corresponds to Article 194 of the Constitution, which deals with the powers, privileges and the immunities of the House of legislatures and of the members and committees thereof. Article 194(3) authorises the State legislature to prescribe by law, the powers, privileges and the immunities of the members and the committees of a House of such Legislature but does not make any mention of the authority to create new offices”, the petitioners argued..On the other hand, the respondents argued that Entry 39 of List II of the Seventh Schedule indicates the field of legislation regarding the powers, privileges, and immunities of the house of legislatures. It should not be read in a “narrow restricted sense” and the words occurring in the entry must be interpreted as extending and including all ancillary and subsidiary matters which can be comprehended in it. Since a Parliamentary Secretary is a member of the legislative assembly, it would be within the competence of the State legislature to make the Act..The Court held that Article 194 does not empower the State Legislature to create an office of the nature of Parliamentary Secretary..“…it can be seen from the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question..…to read the authority to create new offices by legislation would be a wholly irrational way of construing the scope of Article 194(3) and Entry 39 of List II. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject matter of the entry. “The powers, privileges and immunities” contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators.”.The Court, therefore, quashed the Act on the ground that State Legislature of Assam lacked the legislative competence to enact the impugned statute..Read the judgment below.