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

Mehal Jain
26 July 2021 4:26 PM GMT
Manipur Office Of Profit Case :  Governor Yet To Decide On ECI Opinion About Disqualification Of 12 BJP MLAs, Congress MLA Tells Supreme Court
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A Congress Manipur MLA on Monday urged before the Supreme Court his plea for the expeditious decision by the Governor as to the disqualification of 12 BJP Members of the Legislative Assembly under Article 192 for holding Offices of Profit on their appointment as Parliamentary Secretaries.The bench of Justices L. Nageswara Rao and Aniruddha Bose was hearing a writ petition filed by D. D....

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A Congress Manipur MLA on Monday urged before the Supreme Court his plea for the expeditious decision by the Governor as to the disqualification of 12 BJP Members of the Legislative Assembly under Article 192 for holding Offices of Profit on their appointment as Parliamentary Secretaries.

The bench of Justices L. Nageswara Rao and Aniruddha Bose was hearing a writ petition filed by D. D. Thaisii, Congress MLA from Manipur, who sought a direction to the Election Commission to perform its Constitutional obligation under Article 192 and submit its opinion as to the disqualification to the Governor, in the interest of justice and for maintaining the purity of the Manipur Legislative Assembly.
Senior Advocate Kapil Sibal, appearing for the petitioner, advanced, "The Manipur High Court has already held that there is no concept of the office of Parliamentary Secretary and that they are offices of profit. They have also come up in appeal here. In the meantime, the Governor has written to the Election Commission and apparently, the Election Commission has written back to the Governor...There is a newspaper report- but we don't know what that advice is..."
The bench was informed on behalf of the Election Commission of India that the grievance of the petitioner was that the Commission was not taking any action under Article 192 and that the ECI has already rendered its opinion to the Manipur Governor in January in compliance with Article 192, and as a result, these matters have become infructuous.
Mr. Sibal responded, "We have amended the petition, asking for the opinion of the EC to be put up and we have asked the Governor to place on record what the decision is. From January, we are today in July- it can't be that we don't know what the decision is. One way or the other, we wish to know. That is the whole point. The Governor since January has not taken any decision! The term of the Assembly is till next year..."
"You can go and make a representation to the Governor. We will pass the order and dispose off your case", suggested Justice Rao.
"The Election Commission said the opinion was rendered in January. We are in July and the Governor has still not decided. There is no point in my going back to the Governor to decide if they have not decided in six months...If it is against me, fine, and if it is in my favour, fine. But these are constitutional authorities who have constitutional obligations to decide the matter!", pressed Mr. Sibal. 
The bench on Monday listed the writ petition and the connected SLPs by the state of Manipur and some MLAs against the Manipur High Court judgment of September, 2020 for final disposal.
The Government of Manipur had enacted the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012, enabling the Chief Minister to appoint Members of Manipur Legislative Assembly as Parliamentary Secretary with the status and rank of a Minister of a State.
In 2017, the Supreme Court ruled that the scheme of Article 194 does not expressly authorize the State legislature to create an office such as that of the Parliamentary Secretary. Subsequently, the State of Manipur passed the Manipur Parliamentary Secretary (Appointment, Salary And Allowances and Miscellaneous Provisions) Repealing Act, 2018.
The Manipur High Court was moved claiming that the main Act of 2012 also lacks legislative competence, as in the case of Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 which was declared as unconstitutional by the above decision rendered by the Supreme Court in the case of Bimolangshu Roy v. State of Assam.

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 Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012, and the Manipur Parliamentary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 ceased to exist after the Manipur High Court pronounced them invalid and unconstitutional in a judgment on September 17, 2020. After the High Court declared these Acts void ab initio, the Manipur Congress had approached Governor Najma Heptulla seeking disqualification of the 12 BJP MLAs on account of holding the position of parliamentary secretaries, which qualified as 'office of profit' after the High Court ruling. The governor had sought the EC's views on the matter in October last year.

Background

The Supreme Court had earlier this year issued notice on a writ petition seeking a direction to the Election Commission of India to submit its opinion to the Governor of Manipur to enable the expeditious disposal of the petition regarding the disqualification of 12 Members of the Manipur Legislative Assembly have incurred disqualification under Article 192 of the Constitution of India for holding Offices of Profit.

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.



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