LEGAL ISSUE: Whether a state legislature can create the position of Parliamentary Secretary when the Constitution specifies the offices of the political executive.
CASE TYPE: Constitutional Law
Case Name: Bimolangshu Roy (Dead) Through LRs vs. State of Assam & Another
Judgment Date: July 26, 2017
Date of the Judgment: July 26, 2017
Citation: (2017) INSC 681
Judges: J. Chelameswar, R.K. Agrawal, Abhay Manohar Sapre
Can a State legislature create a position of Parliamentary Secretary, when the Constitution specifies the offices of the political executive? The Supreme Court of India addressed this question in a case concerning the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004. The Court examined whether the state legislature had the power to enact such a law and whether it violated the constitutional limit on the size of the Council of Ministers. The judgment was delivered by a three-judge bench comprising Justices J. Chelameswar, R.K. Agrawal, and Abhay Manohar Sapre, with Justice Chelameswar authoring the opinion.
Case Background
The case originated from a Public Interest Litigation (PIL) filed in the High Court of Gauhati, challenging the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 (THE ACT). The core issue was the constitutional validity of THE ACT, which allowed the appointment of Parliamentary Secretaries in Assam. This came after the 91st Constitutional Amendment Act, 2003, which limited the size of the Council of Ministers to 15% of the total strength of the Legislative Assembly.
At the time of the amendment, the Assam Council of Ministers had 36 members, which was 28.57% of the Assembly. This needed to be reduced to 19 to comply with the 15% limit. On November 3, 2004, the Assam government promulgated an ordinance and later passed THE ACT on December 29, 2004, allowing the appointment of Parliamentary Secretaries who would have the rank and status of a Minister of State. Eight Parliamentary Secretaries were appointed on May 30, 2005. The petitioners argued that the Act was an attempt to circumvent the constitutional limit on the size of the Council of Ministers.
Timeline
| Date | Event |
|---|---|
| January 1, 2004 | Constitution 91st Amendment Bill, 2003 passed by both Houses of Parliament. |
| November 3, 2004 | Assam Parliamentary Secretaries Ordinance, 2004 was promulgated. |
| December 29, 2004 | Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 (THE ACT) was passed. |
| April 13, 2005 | Writ Petition (PIL) No.30/2005 was filed in the High Court of Gauhati challenging the constitutional validity of THE ACT. |
| May 30, 2005 | Eight Parliamentary Secretaries were appointed. |
| January 24, 2006 | High Court of Gauhati adjourned the hearing of the PIL in light of similar matters in the Supreme Court. |
| August 21, 2006 | Supreme Court allowed the Transfer Petition (C) No. 433 of 2006, and the case was registered as Transferred Case (Civil) No. 169 of 2005. |
| July 26, 2017 | Supreme Court declared the Assam Parliamentary Secretaries Act unconstitutional. |
Course of Proceedings
The High Court of Gauhati had adjourned the hearing of the PIL, noting that similar legal questions were pending before the Supreme Court in another case (State of Himachal Pradesh v. Citizen Rights Protection Forum). Subsequently, the Supreme Court allowed a transfer petition, bringing the case before it as Transferred Case (Civil) No. 169 of 2005.
Legal Framework
The core legal framework revolves around the following:
- Article 164(1A) of the Constitution of India: This provision, introduced by the 91st Constitutional Amendment Act, limits the total number of ministers in a state, including the Chief Minister, to 15% of the total members of the Legislative Assembly. The provision states:
“The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State…”
- Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004: This Act allowed the Chief Minister to appoint Parliamentary Secretaries, who would have the rank and status of a Minister of State.
- Section 2(c): Defines a Parliamentary Secretary as a Member of the Assam Legislative Assembly appointed by the Chief Minister.
- Section 3: Empowers the Chief Minister to appoint Parliamentary Secretaries and assign duties.
- Section 4: Declares the rank and status of a Parliamentary Secretary as equivalent to a Minister of State.
- Section 7: Specifies that Parliamentary Secretaries will receive the same salary and allowances as a Minister of State.
- Article 246 of the Constitution of India: This article distributes legislative powers between the Parliament and State Legislatures.
- Entry 39 of List II of the Seventh Schedule: This entry deals with the powers, privileges, and immunities of the Legislative Assembly and its members.
- Article 194 of the Constitution of India: This article deals with the powers, privileges, and immunities of the State Legislature and its members.
- Article 74(1), 75(1), 163(1) and 164(1) of the Constitution of India: These articles create the offices of the Prime Minister, Chief Minister and other Ministers respectively.
Arguments
The petitioners argued that the Assam legislature lacked the competence to enact THE ACT. They contended that the Constitution itself creates the political executive through Articles 74(1), 75(1), 163(1), and 164(1), which specify the offices of the Prime Minister, Chief Minister, and other Ministers. The petitioners argued that the word ‘shall’ in these articles indicates that no other office of the political executive can be created by legislation. They relied on the Cauvery Water Disputes case to argue that the presence of dedicated provisions for the political executive ousts the state legislature’s competence to create the position of Parliamentary Secretaries.
The State of Assam argued that it had the legislative competence to make the impugned legislation under Entry 39 of List II of the 7th Schedule, which deals with the powers, privileges, and immunities of the Legislative Assembly. The State contended that a Parliamentary Secretary, being a member of the Legislative Assembly, falls within the scope of this entry. The State also argued that the functions of a Parliamentary Secretary are different from those of a Minister, and therefore, the constitutional mandate under the 91st Amendment is not violated. They contended that legislative entries should be interpreted broadly, encompassing all ancillary and subsidiary matters.
| Main Submission | Sub-Submissions |
|---|---|
| Petitioners’ Submissions |
|
| Respondents’ Submissions |
|
Issues Framed by the Supreme Court
The Supreme Court framed the following issues:
- Whether the Legislature of Assam is competent to make THE ACT?
- Whether the creation of the office of Parliamentary Secretary would amount to a violation of the constitutionally prescribed upper limit of 15% on the total number of Council of Ministers?
- Whether the concept of a ‘Responsible Government’ envisaged under various provisions of the Constitution is in any way violated by the impugned enactment and therefore unconstitutional as being violative of the basic structure of the Constitution.
- Whether the theory of basic structure could be invoked at all to invalidate an enactment which is otherwise not inconsistent with the text of the Constitution.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Whether the Legislature of Assam is competent to make THE ACT? | No | The Court held that the State Legislature lacked the competence to create the office of Parliamentary Secretary, as the Constitution itself creates the offices of the political executive. |
| Whether the creation of the office of Parliamentary Secretary would amount to a violation of the constitutionally prescribed upper limit of 15% on the total number of Council of Ministers? | Not Addressed | The Court did not address this issue as it found the State Legislature lacked the competence to make the Act. |
| Whether the concept of a ‘Responsible Government’ envisaged under various provisions of the Constitution is in any way violated by the impugned enactment and therefore unconstitutional as being violative of the basic structure of the Constitution. | Not Addressed | The Court did not address this issue as it found the State Legislature lacked the competence to make the Act. |
| Whether the theory of basic structure could be invoked at all to invalidate an enactment which is otherwise not inconsistent with the text of the Constitution. | Not Addressed | The Court did not address this issue as it found the State Legislature lacked the competence to make the Act. |
Authorities
The Court considered the following authorities:
| Authority | Court | How it was Considered | Legal Point |
|---|---|---|---|
| Cauvery Water Disputes (1993 Supp. 1 SCC 96 (II)) | Supreme Court of India | Relied upon by the petitioners and extended to support the argument that a dedicated article in the Constitution eliminates legislative authority under Article 246. | The presence of a dedicated article in the Constitution authorizing the making of law on a particular topic eliminates the possibility of the existence of the legislative authority to legislate in Article 246 read with any Entry in the Seventh Schedule. |
| Union of India & Others v. Shah Goverdhan L. Kabra Teachers’ College, (2002) 8 SCC 228 | Supreme Court of India | Cited to explain that the rule of widest construction does not enable the legislature to make a law relating to a matter which has no rational connection with the subject-matter of an entry. | The language of the entries should be given the widest scope of which their meaning is fairly capable but not to a matter which has no rational connection with the subject-matter of an entry. |
| India Cement Ltd. & Others v. State of Tamil Nadu & Others, (1990) 1 SCC 12 | Supreme Court of India | Cited to explain that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. | Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. |
| McCulloch v. Maryland, 17 US 316 (1819) | US Supreme Court | Cited to explain that a Constitution contains the great outlines of power and important objects, and that the word “necessary” should be interpreted broadly. | A constitution only contains the great outlines of the power and important objects sought to be achieved. |
| James v. Commonwealth of Australia, (1936) AC 578 | Privy Council | Cited to explain that a Constitution must not be construed in any narrow and pedantic sense. | A Constitution must not be construed in any narrow and pedantic sense. |
| Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, (1939) 1 FCR 18 | Federal Court | Cited to explain that a broad and liberal spirit should inspire those whose duty it is to interpret the Constitution. | A broad and liberal spirit should inspire those whose duty is to interpret the Constitution. |
| United States v. Curtiss – Wright Export Corp., 299 U.S. 304, 81 L. Ed. 255 | US Supreme Court | Cited to explain the doctrine of inherent powers of the government. | The government has inherent powers in certain areas. |
| Synthetics and Chemicals Ltd. & Others v. State of U.P. & Others, (1990) 1 SCC 109 | Supreme Court of India | Cited to explain that the power to legislate is given by Article 246 and other Articles of the Constitution. | The power to legislate is given by Article 246 and other Articles of the Constitution. |
| Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166 | Supreme Court of India | Cited to explain that the entries in the three Lists are only legislative heads or fields of legislation, and they demarcate the area over which the appropriate Legislatures can operate. | The entries in the three Lists are only legislative heads or fields of legislation. |
| Union of India v. Harbhajan Singh Dhillon, (1971) 2 SCC 779 | Supreme Court of India | Cited to explain that the function of the lists is not to confer powers, they merely demarcate the legislative field. | The function of the lists is not to confer powers; they merely demarcate the legislative field. |
| M/s. Hoechst Pharmaceuticals Ltd. & Others v. State of Bihar & Others, (1983) 4 SCC 45 | Supreme Court of India | Cited to explain that taxation is considered to be a distinct matter for purposes of legislative competence. | Taxation is considered to be a distinct matter for purposes of legislative competence. |
Judgment
The Supreme Court held that the Assam Legislature lacked the competence to enact the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004. The Court reasoned that the Constitution itself creates the political executive through Articles 74(1), 75(1), 163(1), and 164(1), which specify the offices of the Prime Minister, Chief Minister, and other Ministers. The Court found that the text of Article 194(3) and Entry 39 of List II, which deal with the powers, privileges, and immunities of the Legislature, do not authorize the creation of new offices like that of Parliamentary Secretary. The court stated that:
“The ‘powers, privileges and immunities’ contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators.”
The Court also noted that the existence of a dedicated article in the Constitution authorizing the making of law on a particular topic would eliminate the possibility of the existence of legislative authority under Article 246 read with any Entry in the Seventh Schedule. The Court found that the State’s reliance on the principle of “widest construction” of legislative entries was misplaced, and that such construction should not extend to matters that have no rational connection with the subject matter of the entry.
| Party Submission | Court’s Treatment |
|---|---|
| Petitioners’ argument that the State Legislature lacks competence to make THE ACT. | Accepted. The Court held that the State Legislature lacked the competence to create the office of Parliamentary Secretary. |
| Respondents’ argument that the State has legislative competence under Entry 39 of List II. | Rejected. The Court held that Entry 39 does not authorize the creation of new offices. |
How each authority was viewed by the Court?
- Cauvery Water Disputes [1993 Supp. (1) SCC 96 (II)]: The Court extended the principle to support the argument that a dedicated article in the Constitution eliminates legislative authority under Article 246.
- Union of India & Others v. Shah Goverdhan L. Kabra Teachers’ College [(2002) 8 SCC 228]: The Court used this case to clarify that the rule of widest construction does not allow for laws unrelated to the entry’s subject matter.
- India Cement Ltd. & Others v. State of Tamil Nadu & Others [(1990) 1 SCC 12]: The Court clarified that while legislative entries should be interpreted broadly, they must be reasonably connected to the subject matter.
- McCulloch v. Maryland [17 US 316 (1819)]: The Court adopted the view that a constitution contains the great outlines of power and important objects, and the word “necessary” should be interpreted broadly.
- James v. Commonwealth of Australia [(1936) AC 578]: The Court used this case to support the principle that a Constitution must not be construed in a narrow and pedantic sense.
- Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 [(1939) 1 FCR 18]: The Court adopted the view that a broad and liberal spirit should inspire those whose duty it is to interpret the Constitution.
- United States v. Curtiss – Wright Export Corp. [299 U.S. 304, 81 L. Ed. 255]: The Court referred to this case to explain the doctrine of inherent powers of the government.
- Synthetics and Chemicals Ltd. & Others v. State of U.P. & Others [(1990) 1 SCC 109]: The Court reiterated that the power to legislate is given by Article 246 and other Articles of the Constitution.
- Harakchand Ratanchand Banthia v. Union of India [(1969) 2 SCC 166]: The Court used this case to explain that the entries in the three Lists are only legislative heads or fields of legislation.
- Union of India v. Harbhajan Singh Dhillon [(1971) 2 SCC 779]: The Court used this case to explain that the function of the lists is not to confer powers; they merely demarcate the legislative field.
- M/s. Hoechst Pharmaceuticals Ltd. & Others v. State of Bihar & Others [(1983) 4 SCC 45]: The Court used this case to explain that taxation is considered to be a distinct matter for purposes of legislative competence.
What weighed in the mind of the Court?
The Court’s decision was primarily influenced by the constitutional scheme regarding the creation of political executive offices. The Court emphasized that the Constitution itself specifies the offices of the Prime Minister, Chief Minister, and other Ministers, and that the State Legislature cannot create additional political executive offices through legislation. The Court also stressed that legislative entries in the Seventh Schedule should not be interpreted so broadly as to include matters that have no rational connection with the subject matter of the entry. The Court was concerned that the Assam Act was an attempt to circumvent the constitutional limit on the size of the Council of Ministers.
| Sentiment | Percentage |
|---|---|
| Constitutional Scheme | 40% |
| Legislative Competence | 30% |
| Rational Connection | 20% |
| Circumvention of Constitutional Limit | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Logical Reasoning:
Does the Constitution specify the offices of the political executive?
Yes, Articles 74(1), 75(1), 163(1), and 164(1) specify the offices of Prime Minister, Chief Minister, and other Ministers.
Does Article 194(3) and Entry 39 of List II authorize the State Legislature to create new offices?
No, the “powers, privileges, and immunities” mentioned in Article 194(3) and Entry 39 are for legislators qua legislators, not for creating new political executive offices.
Therefore, the Assam Legislature lacks the competence to make the impugned Act.
Key Takeaways
- State legislatures cannot create new political executive offices that are not explicitly provided for in the Constitution.
- Legislative entries in the Seventh Schedule should not be interpreted in a manner that has no rational connection with the subject matter of the entry.
- The constitutional scheme for the creation of political executive offices is exhaustive.
- Any attempt to circumvent the constitutional limit on the size of the Council of Ministers by creating parallel offices is unconstitutional.
Directions
The Supreme Court declared the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 unconstitutional.
Development of Law
The ratio decidendi of this case is that a State Legislature cannot create new political executive offices not explicitly provided for in the Constitution, and that the legislative entries in the Seventh Schedule should not be interpreted so broadly as to include matters that have no rational connection with the subject matter of the entry. This case reinforces the principle that the constitutional scheme for the creation of political executive offices is exhaustive and any attempt to circumvent the constitutional limit on the size of the Council of Ministers by creating parallel offices is unconstitutional. There is no change in the previous position of the law.
Conclusion
The Supreme Court’s judgment in Bimolangshu Roy vs. State of Assam is a significant ruling that clarifies the limits of state legislative power in creating political executive offices. The Court held that the Assam Parliamentary Secretaries Act was unconstitutional, as it exceeded the legislative competence of the State Assembly. This ruling reinforces the constitutional scheme for the creation of political executive offices and prevents the circumvention of constitutional limits on the size of the Council of Ministers.
Category:
- Constitutional Law
- Article 164(1A)
- Article 246
- Entry 39, List II, Seventh Schedule
- Article 194
- Legislative Competence
- State Legislature
- Union Legislature
- Political Executive
- Council of Ministers
- Parliamentary Secretaries
- Seventh Schedule
- List II
FAQ
Q: What was the main issue in the Bimolangshu Roy vs. State of Assam case?
A: The main issue was whether the Assam State Legislature had the power to create the position of Parliamentary Secretary through the Assam Parliamentary Secretaries Act, 2004, given the constitutional limits on the size of the Council of Ministers.
Q: What did the Supreme Court decide in this case?
A: The Supreme Court declared the Assam Parliamentary Secretaries Act, 2004 unconstitutional, holding that the State Legislature lacked the competence to create such a position. The Court stated that the Constitution itself specifies the offices of the political executive.
Q: What is Article 164(1A) of the Constitution?
A: Article 164(1A) limits the total number of ministers in a state, including the Chief Minister, to 15% of the total members of the Legislative Assembly.
Q: What is Entry 39 of List II of the Seventh Schedule?
A: Entry 39 deals with the powers, privileges, and immunities of the Legislative Assembly and its members. The Supreme Court held that this entry does not authorize the creation of new political executive offices.
Q: Can other states create similar positions to Parliamentary Secretaries?
A: No. This judgment sets a precedent that state legislatures cannot create new political executive offices not explicitly provided for in the Constitution. Any such attempt would be deemed unconstitutional.
Q: What does this judgment mean for the size of the Council of Ministers?
A: This judgment reinforces the constitutional limit on the size of the Council of Ministers and prevents states from circumventing it by creating parallel positions like Parliamentary Secretaries.