(Authored by Anil Nair) Many states in the Indian Union have instituted the post of Parliamentary Secretary. A Parliament Secretary often holds the rank of Minister of State and has the same entitlements and is assigned to a government department. Manipur, HP, Mizoram, Assam, Rajasthan, Punjab, Goa are some of the states where MLAs have been appointed Parliament Secretaries by the Government. PILs filed in various High Courts on the matter have argued that the appointment of Parliament Secretaries is ultra vires the 91st Amendment of the Indian Constitution which introduced Article 164 (1A) to the Constitution. Article 164 (1A) provides for limiting the number of ministers in the state cabinets. The total number of ministers including the Chief Minister, has to be within 15 per cent of the total number of members of the legislative assembly of the state. Article 164 (1A) was inserted in the Constitution on the recommendation of the National Commission for Review of the Working of the Constitution headed by former Chief Justice of India, M.N. Venkatachaliah on misuse and drainage of public money to put a ban on over-sized cabinet. Various High Courts have deemed the appointment of Parliamentary Secretaries unconstitutional and have ruled against such appointments often in the past. In 2009, in the case of Adv. Aires Rodrigues vs The State of Goa and others (as cited in Anami Narayan Roy vs. Union of India), a Division Bench of the Bombay High Court discussed the impact of arbitrary State action relating to appointment of Parliament Secretaries in Goa. It held that appointing Parliamentary Secretaries of the rank and status of a Cabinet Minister is in violation to Article 164 (1A) of the Constitution and set aside the appointment of two Parliamentary Secretaries in the state government. In 2005, in Citizen Rights Protection Forum vs Union of India and Others (decided on 18 August, 2005), the Himachal Pradesh High Court quashed the appointment of Chief Parliamentary Secretaries and Parliament Secretaries. It held that ‘(Parliamentary Secretaries) are usurpers of public office since their appointments did not owe their origin to any constitutional or legal provision, they having been appointed by person(s) not vested with the power of appointment’. Recently, newspapers have reported that the Rajasthan High Court issued notices to thirteen Parliamentary Secretaries in a petition challenging their appointments. Similarly, there have been news reports that the Punjab High Court has asked the state governments in Punjab and Haryana to provide information on appointment of Chief Parliamentary Secretaries in the states. Punjab and Haryana have appointed 20 and 11 Chief Parliamentary Secretaries respectively. The High Court has ordered the two states to submit details about the entitlements, facilities and powers given to the Chief Parliamentary Secretaries.
In today's Opinion piece, in the Indian Express, we discuss how enacting hasty new legislation in response to public events may not be the answer. The recent spot fixing controversy in the Indian Premier League has brought the issue of betting in sports back into the limelight. As a result, public debate around betting, and steps that need to be taken to prevent the recurrence of such events, is gaining traction. The government's response to this incident has been somewhat predictable. The minister of state for sports has reportedly stated that his ministry is committed to putting in place new legislation to deal with the menace of fixing in sports. This approach to law making points towards a growing trend of initiating policy and legislative decisions as a reaction to public events. This is not something new. The Mumbai terror attack in 2008 was the catalyst for the enactment of the National Investigation Agency Act, and the brutal rape and murder of a young girl in Delhi led to the overhaul of India's penal code to ensure stricter penalties for crimes against women. Both these bills were passed without effective scrutiny, as they were not referred to a parliamentary standing committee for examination. Events in the country may, on occasion, highlight gaps in our policy and legislative framework. However, they often point out the ineffectiveness of existing laws and the lack of proper implementation. And that is not always a result of not having enough laws in the country. There are more than a 1,000 Central laws and over 15,000 state laws. The problem lies with our law-making process, which is ad hoc in nature. It is geared towards churning out legislation that is not entirely evidence based and does not take the feedback of different stakeholders into account. In its reports, the National Commission to review the working of the Constitution had observed that "our legislative enactments betray clear marks of hasty drafting and absence of Parliament scrutiny from the point of view of both the implementers and the affected persons and groups". Take, for example, the Gram Nyayalaya Act, which establishes village courts to provide people with easy access to justice and reduce the case law burden on the court system. Structured feedback from villagers, whom this act is trying to empower, prior to introducing the bill in Parliament would have given valuable insights about implementation challenges. A comprehensive study to examine the impact that village courts would have in reducing pendency in the judicial system would have provided hard numbers to substantiate what types of cases should be adjudicated by the village courts. A detailed financial analysis of the cost implications for the Central and the state governments for implementing the law would have helped policymakers decide on the scale and effectiveness of implementation. In the absence of these studies, there is no way to measure whether the law has been effective in giving villagers easy access to justice and in reducing the burden on the judicial system. The importance of stakeholder consultation was recently stressed by the parliamentary committee examining the land acquisition bill. In its report on the bill, the committee recommended that, "before bringing in any bill in future, the government should ensure wider, effective and timely consultations with all relevant and stakeholders so that all related issues are addressed adequately." Rajya Sabha MP N.K. Singh, while testifying before the parliamentary standing committee on the National Food Security Bill, had drawn the attention of the committee towards the need for an accurate financial memorandum accompanying the bill, to "avoid serious consequences in the implementation of the bill." The National Advisory Council has also suggested a process of pre-legislative scrutiny of bills and delegated legislation. In its approach paper, the Financial Sector Legislative Reforms Commission had suggested that delegated legislation should also be published in draft form to elicit feedback and that a cost benefit analysis of the delegated legislation should be appended to the draft. New laws can have a significant impact on the lives of people, so it is important that our law-makers enact "effective laws". For this to happen our law-making process needs to evolve. While there will always be public pressure for new laws, the solution lies in ensuring that the law-making process is robust, consultative and deliberative. The solution to addressing policy opportunities does not always lie in making new laws but in ensuring that whatever law is enacted is well thought out and designed to be effective.
