Manipur Office Of Profit Case : Governor Yet To Decide On ECI Opinion About Disqualification Of 12 BJP MLAs, Congress MLA Tells Supreme Court

Further, it was alleged that the Manipur Parliamentary Secretary (Appointment, Salary And Allowances and Miscellaneous Provisions) Repealing Act, 2018 is a colourable legislation for safeguarding an unconstitutional Act by exercise of power which the State legislature does not have, and once it lacks of legislative competence to enact the Act of 2012, it lacks legislative competence to pass the Repealing Act, 2018 also. The second limb of the contention on behalf of the petitioners was that the Repealing Act, 2018 is also bad for the reason that it provides for a saving clause in Section 2(2), providing that the repeal shall not affect the previous operations of the repealed Act or anything duly done in pursuance of the Act so repealed including anything done in official discharge of their duties by the Parliamentary Secretaries; and safeguards the right, privilege or obligation incurred under the repealed Act. It was claimed before the High Court that when there is no power for the State legislature to enact the Act 2012 or the Repealing Act, the saving clause in the Repealing Act is a devious method to safeguard and justify the illegality committed by virtue of the Act of 2012 which is constitutionally invalid.

The division Bench of Justice Nageswara Rao and Ravindra Bhat was considering a petition filed by DD Thaisii, Congress MLA from Manipur, who seeks a direction to the Election Commission to perform its Constitutional obligation under Article 192.

According to the petitioner, the Election Commission has a constitutional duty to submit its opinion to the Governor of Manipur and failure to discharge the constitutional duty by a constitutional authority cannot be sustained. The Election Commission should therefore, be directed to perform its duty and submit its opinion to the Governor expeditiously, in the interest of justice and for maintaining the purity of the Manipur Legislative Assembly.

The plea has stated that 12 members of the Legislative Assembly of Manipur were appointed as Parliamentary Secretaries for the State of Manipur. The Offices titled as Parliamentary Secretary for the State of Manipur, are Offices of Profit, as the said appointment elevated the 12 members of the Legislative Assemble of Manipur to the rank and status of Minister of State and also entitled them to draw higher Salary and Allowances. The 12 members of the Legislative Assembly, who were appointed and who accepted appointment as Parliamentary Secretaries, therefore, occupied Office of Profit and thus automatically incurred the disqualification under Article 191 of the Constitution of India and are not entitled to continue as Members of the Manipur Legislative Assembly.

The plea has further stated that the petitioners submitted a petition, to the Governor of Manipur to take a decision under Article 192 of the Constitution of India for disqualification of the said 12 members. The Governor of Manipur referred the application to the Election Commission of India for its opinion, as contemplated under Article 192 of the Constitution of India. However, Election Commission has not submitted its opinion for disposal of the petition.

"This Writ Petition is filed to maintain the purity of the legislative assembly of the State of Manipur as the Election Commission of India has failed to discharge its constitutional duty due to which, 12 members of the legislative assembly of the State of Manipur, who have incurred disqualification under Article 191(1)(a) of the Constitution of India are continuing as members of the House, despite their apparent and undisputed disqualification. " - the plea read.

The petitioner has submitted in the plea that based on the analogy laid down by the Apex Court in its previous judgements, a quasi judicial authority acting as a tribunal is bound to decide the question of disqualification within a reasonable period and an outer limit of 3 months has been given. The constitutional objective of deciding on the disqualification of membership remains the same in the present case and the Election Commission is bound by law to assist the Governor in delivering his decision on the question within 3 months i.e. the outer limit.

The plea has cited the Supreme Court's judgement in the case of Brudaban Nayak v. Election Commission of India, (1965), where a Constitution Bench had held that it is of utmost importance that complaints made under Article 192 (1) of the Constitution of India must be disposed expeditiously.

The petition has been filed by Advocate Rajesh Mahale on behalf of the petitioner D.D Thaisii.