Karnataka HC Strikes Down Parliamentary Allowances And Miscellaneous Provisions Act Being Ultra Vires The Constitution Of India : HC [Read Judgment]

A division bench of Chief Justice Abhay Oka and Justice S R Krishna Kumar held the State Legislature of Karnataka had no legislative competence to enact the Act and the same is ab initio void, being ultra vires the Constitution of India.

The bench allowed the petition filed by M.B. Adinarayana and others seeking a declaration that the act is ultra vires and further prayed to remove the respondents 3 to 10 from the office of the Parliamentary Secretaries. The prayer for removal does not survive as the respondents were no longer Parliamentary Secretaries.

The case background:

The said Act of 1963 empowers the Hon'ble Chief Minister to appoint Parliamentary Secretaries from amongst the members of the Karnataka Legislative Assembly and the Karnataka Legislative Council.

Major changes brought about by the amendment Act of 1999. The said changes can be broadly summarized as under:

(a) The preamble well as the long title of the original Act provided that it was an Act to further provide for allowances to the Parliamentary Secretaries. By the Amendment Act of 1999, the word 'allowances' was substituted by the words 'Salary, allowances and miscellaneous provisions';

(b) Sections-3 to 6 of the original Act were replaced by the Amendment Act of 1999 and by introducing Section-3, for the first time, a provision was made that a Parliamentary Secretary shall be entitled to such salaries and allowances as are admissible to a Minister, Minister of State or a Deputy Minister under the Karnataka Minister's Salaries and Allowances Act, 1956. In the original Act, there was no provision for payment of salary and it provided for only for travelling allowance and Daily allowance to the Parliamentary Secretary;

(c) The newly incorporated Section-5 provided that the functions and duties of a Parliamentary Secretary shall be such as may be specified by the Chief Minister or the Minister to whom he is the Parliamentary Secretary. There was no provision providing for functions and duties of Parliamentary Secretaries in the original Enactment.

(d) Under the original Act, there was no provision for administering of oath of office. But under Section-6 of the amended Act, the provision regarding administering of oath of office and secrecy to the Parliamentary Secretaries by the Chief Minister has been introduced.

On November 18, 2016, the Rule making power under the said Act of 1963 was exercised by framing the Karnataka Parliamentary Secretaries (Functions and Duties) Rules, 2016 (for short, 'the said Rules'). Rule-3 which lays down the functions and duties ofParliamentary Secretaries.

Petitioners argued:

The petitioners submitted that the State Legislature completely lacked the Legislative Competence to enact the said Act. Their submission is that entry-39 of list-II of Schedule VII of the Constitution does not empower the State Legislature to frame a Legislation dealing with the powers and privileges of the members of the Legislative Assembly and the Legislative Council. In support of their submissions, strong reliance was placed in both the petitions on the decision of the Apex Court in the case of Bimolangshu Roy (dead) through Lrs –vs- State of Assam and another decided by a Bench of three Hon'ble Judges. Also on the judgement of Division Bench of the Calcutta High Court, in the case of Vishak Bhattacharya and others –vs- The State of West Bengal and others and on the decision of the Division Bench of the High Court of Judicature of Bombay, at Goa, in the case of Aires Rodrigues –vs- The State of Goa and others.

State opposed the pleas arguing:

Decision of the Apex Court in the case of Bimolangshu Roy (supra) is clearly distinguishable, as the provisions of the Assam Act were drastically different than the said Act. Merely because Section-3 of the said Act provides that a Parliamentary Secretaries shall be entitled to the salaries and allowances as are admissible to Hon'ble Ministers, the status of Hon'ble Minister is not conferred on the Parliamentary Secretaries. The said Act only confers additional privileges on the member of both the Houses of Legislature and, therefore, Item 39 of List II is attracted. As per the provisions of the said Act, the Parliamentary Secretaries have no status of Hon'ble Ministers, but the said Act only deals with the powers and privileges of the members of the Legislature Assembly and Legislature Council which will be covered under Entry-39, list-II of Schedule VII of the Constitution of India. The state relied on judgement of Chhattisgarh High Court at Bilaspur, in the case of Rakesh Choubey and others –vs- State of Chhattisgarh and others.

Court referring to the judgements relied upon by the petitioners and Article 164 (1-A), Article 194 of the Constitution of India, said "Under Chapter VI, the Constitution of India creates various posts such as the Hon'ble Chief Minister, Hon'ble Ministers,Hon'ble Speaker and Deputy Speaker of the Assembly, Hon'ble Chairman and Deputy Chairman of the Council. In Part VI which deals with the States, there is no provision therein for appointing Parliamentary Secretaries. None of the Constitutional provisions referred above empower the State Legislature, even by implication, to enact a law for appointment of the Parliamentary Secretaries."

The bench also disagreed with view taken in the decision relied by the state, saying "With greatest respect, the decision of the Chhattisgarh High Court is completely contrary to what is held by the Apex in paragraph 44 of in the case of Bimolangshu Roy (supra). Hence, we are unable to agree with the view of the High Court. Thus, we are of the considered view that ex facie, the State Legislature of Karnataka lacked Legislative power to enact the said Act."

The court also observed that "The office of the Parliamentary Secretaries has trappings of the post of Hon'ble Ministers of State without independent charge or at least Hon'ble Deputy Ministers. The said Act will work as a devise available to the Hon'ble Chief Minister to appoint the members of the Legislative Assembly and Legislative Council of his choice as parliamentary Secretaries, who cannot be made as Ministers. This will completely defeat and nullify the upper ceiling limit imposed by Article 164(1-A) of the Constitution of India on number of Ministers. Hence, even otherwise, the said enactment is ultra vires the constitutional mandate in Article 164(1-A)."

Advocate G R Mohan appeared for Petitioner M.B. Adinarayana.

Dr. K.B. Vijayakumar, Advocate appeared party in person.

Additional Advocate General Dhyan Chinnappa M, along with B.V. Krishna – Additional Government Advocate for state