Arvind Kejriwal's desperate appointment of 21 'backdoor' ministers may face a legal challenge

The beleaguered Aam Aadmi Party (AAP) government in Delhi, facing some serious rebellion between different camps, has made a desperate move to keep its MLAs as happy as possible.

In an unprecedented move in Delhi politics, the government issued an order to appoint as many as 21 MLAs as parliamentary secretaries (PS) to its grand total of six ministers. It is not clear if anyone has been appointed PS to Chief Minister Arvind Kejriwal, who does not hold any portfolio.

Under Article 239AA of the Indian Constitution, the number of ministers in the Delhi Government cannot be more than 10 percent of the total number of members in the Legislative Assembly. This effectively means that the size of the cabinet cannot be more than seven, given that the Delhi Assembly has 70 members. Therefore, the option of increasing the size of the cabinet wasn't available to the Kejriwal government.

 Arvind Kejriwals desperate appointment of 21 backdoor ministers may face a legal challenge

Danish raza/Firstpost

What then was the solution to placate as many existing MLAs as possible so that internal rebellion is quelled? Find a way around the law with a move that reeks more of political compromise than the avowed goal of appointing "helping hands" that will increase efficacy in governance.

Although these 21 parliamentary secretaries will not be receiving any remuneration or perks from the government, according to this report in The Hindu - Deputy CM Manish Sisodia is quoted as saying this is a "totally non-profit arrangement" - these secretaries will get ministerial status, transport for official purposes and space in the minister's office.

The opposition party - the Bharatiya Janata Party - as well as the Congress have criticised the move. BJP MLA Vijender Gupta in fact, called the appointments "lollipops" and wrote to the Lt Governor asking him to oppose the move.

So, what is the legality of such appointments? Two high courts have so far categorically ruled on appointment of parliamentary secretaries in the absence of a specific state law - the Bombay High Court (Goa Bench) and the Himachal Pradesh High Court.

It is useful to state here that Delhi does not have any specific law which stipulates the appointment of parliamentary secretaries. States such as Karnataka, Assam and West Bengal, on the other hand, have a specific law.

In the May 2007 elections in Goa, which saw a fractured mandate, the Congress formed a government with allies. After forming the cabinet with the maximum number of ministers possible under the Constitution, the then Congress Chief Minister Digambar Kamat hurriedly appointed and swore-in three parliamentary secretaries with Cabinet rank.

The Bombay High Court (Goa Bench) quashed these appointments, terming them as violative of the Constitution on several grounds.

It held that the restriction on the size of the Council of Ministers (as laid out in the Constitution) could not be unsettled by any indirect method when it was directly impermissible. Merely being named 'parliamentary secretaries' did not mean they were not similar to ministers.

Parliamentary secretaries, it further noted, have access to government records and files. They are de facto (as a matter of fact) ministers even if not ministers de jure (as a matter of law). While the High Court noted that the Chief Minister had wide executive powers under the scheme of our Constitution, (s)he could not make decisions that frustrated the clear constitutional mandate on the size of the cabinet.

The High Court noted that this decision appeared to been made in "undue haste to accomplish a political wish". It was intended to create "political stability by accommodating" MLAs in violation of the Constitution, one serving no public utility or public interest. This decision by Digambar Kamat was a circumvention which deserved to be struck down.

In the Himachal Pradesh example, the High Court, in addition to examining the constitutional provisions, took umbrage at the fact that it was the Chief Minister who administered the oath of office and secrecy to people appointed as parliamentary secretaries.

In a scathing judgment, it asked: "Under which law does he (Chief Minister) have the power to administer oath of office and secrecy to these persons?" and "under which law and based on whose authority did these persons subscribe to the oath of office and secrecy before the Chief Minister?" The High Court was categorical that a Chief Minister did not have the powers to administer such an oath.

Indeed, to be sure, the practice of appointing parliamentary secretaries isn't unique to the Kejriwal government. Many governments across the political spectrum have done so earlier.

However, the sheer number of parliamentary secretaries appointed by the Kejriwal government (effectively, three de facto junior ministers for each de jure minister) betrays the desperation that the Kejriwal group in the Aam Aadmi Party is facing.

As the Goa Bench of the Bombay High Court described it, this "undue haste" is clearly intended to create "political stability" by accommodating MLAs so that further rebellion is avoided. The legality of this mammoth order is highly suspect, one that deserves a review by the Delhi High Court.

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Updated Date: Mar 17, 2015 18:26:17 IST