Delhi is not the only State where the post of Parliamentary Secretary has been challenged. Various High Court judgments in the past have deemed the appointment of Parliamentary Secretaries unconstitutional and have ruled against such appointments.
Delhi Chief Minister Arvind Kejriwal reacted strongly to the President’s rejection of proposed legislation by the Delhi government to exempt the post of Parliamentary Secretary from the purview of ‘office-of-profit’.
The CM said that Delhi is being singled out as other States too have instituted the post of ‘Parliamentary Secretary.’ The posts do exist in various States at present, including Gujarat, Punjab and Rajasthan where the BJP is in power.
Who are Parliament Secretaries:
A parliamentary secretary is a MP who assists a more senior minister with his or her duties.
Current position of Parliament Secretaries in various states:
Some argue that PS are in contradiction to Article 164 (1A) of the Constitution which provides for limiting the number of Ministers in the State Cabinets to 15 per cent of the total number of members of the State Legislative Assembly.
Because a Parliament Secretary often holds the rank of Minister of State, various High Courts, have quashed the appointment of Parliamentary Secretaries in West Bengal, Goa and Himachal Pradesh dubbing it unconstitutional. The Hyderabad High Court stayed the appointment of Parliamentary Secretaries in Telangana. The matter is sub judice in Punjab and Haryana.
The number of Cabinet Ministers in Delhi cannot exceed 10 per cent of the total 70 seats that is seven as per Article 239(A) of Constitution. As of now, only one Parliamentary Secretary to the Chief Minister is authorised.
‘Parliamentary Secretary’ and ‘office of profit’:
‘Office of profit’ is not defined in the Constitution. However, in past judgments, the Election Commission has noted “what constitutes an office of profit under the Government is now well established by a number of judgments of the Supreme Court.”
Five tests have been laid down:
(i) whether the government makes the appointment;
(ii) whether the government has the right to remove or dismiss the holder;
(iii) whether the government pays remuneration;
(iv) what the functions of the holder are;
(v) does the government exercise any control over the performance of these functions.
The Delhi government argues that as Parliamentary Secretaries are not eligible for any remuneration or perks from the government the post should be exempt from the office of profit.