The Nagaland Tribes Council (NTC) has filed an RTI application seeking information on the appointment of Advisors by the ruling PDA (People’s Democratic Alliance) government. The application, as per the NTC, was submitted to the Chief Minister’s Office on March 26.
NTC Secretary, Theja Therie when contacted said that it sought from the Nagaland state government the basis for the appointment of MLAs in the 13th Nagaland Legislative Assembly. “We asked for the source of power based on which the Advisors have been appointed, under what law has the CMO created the posts and whether the CM is empowered to make such appointments,” said Therie of the information sought.
The intention of the application is to seek answers on whether the Advisors are enjoying privileges/status allotted to Parliamentary Secretaries. It comes in the backdrop of a standing Supreme Court judgment declaring the erstwhile Parliamentary position (that came with certain perks) as unconstitutional.
In July 2017, the Supreme Court has declared the appointment of Parliamentary Secretaries as unconstitutional, while ruling on a petition challenging the legitimacy of the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances, and Miscellaneous Provisions) Act.
In Indian law, rulings of the apex court are upheld all over the country. Article 141 of the Indian Constitution states, “The law declared by the Supreme Court shall be binding on all courts within the territory of India.”
Subsequent to the SC ruling, the NTC had filed a PIL at the Gauhati High Court in August 2017 against the appointment of Advisors and Parliamentary Secretaries in the then DAN III government. The case is being heard pending judgment.
According to the NTC secretary, the RTI replies from the CMO will be submitted to the court. He said that it is likely the government would claim the post of Advisor as not an ‘office of profit’ “but that they will have to explain to the court.”
The question of legality
The Nagaland State Legislature Members (Removal of Disqualification) Act 1964 provides for the appointment of Parliamentary Secretaries. The post was further governed by the Nagaland Salaries, Allowances and other facilities of the Chief Minister, other Ministers, Speaker, Leader of Opposition, Deputy Speaker, Parliamentary Secretaries and other members of the Nagaland Legislative Assembly and pension for Ex-Members Act, 2005.
While the SC has declared the post as unconstitutional, the government appears to be within the law since it has only appointed Advisors. But is it?
A legal expert when asked if the law allows for the post of Advisors said that the contention would now be whether the said post is an ‘office of profit.’ The expert, who wished to remain anonymous, referred to Article 191 which specifies the grounds for disqualification from membership of a state Legislature. As per Article 191 (1) a, he said that a member can be disqualified if the person “holds any office of profit under the Government of India or the Government of any State…”
With that in context, he further put forward the Doctrine of Colourable Legislation. There can be instances when people or government would circumvent the law to achieve a purpose, either ethical or otherwise, while it would appear to be acting within the limits of its constitutional mandate.
In statutory interpretation, he asserted that the Doctrine implies that “what cannot be done directly also cannot be done indirectly.”
No entity is permitted to bypass the law to indirectly act/legislate on a subject that is already prohibited, unless clearly allowed by the Constitution, he stated contextualising the doctrine in conjunction with Indian law.
In the case of the appointment of Advisors, “Could it be that law has been circumvented or is it something like that?”