Dual post row
SHILLONG: On September 23 this year the Meghalaya State Legislature passed the ‘Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) Amendment Act, 2015,’ which clearly debars an MLA from also holding the office of the MDC.
Prior to the passing of this Act, a Public Interest Litigation filed by CSWO president Agnes Kharshiing dated July 18, 2014, which is pending before the High Court, alleged that an MLA who is also an MDC benefits financially from both offices.
Feeling the heat of public opprobrium more than pressure from their parties and being unsure as to which way the PIL would go and perhaps being inadequately advised, 7 of the 8 MLAs who are also MDCs resigned from the ADC. They included Sanbor Shullai (NCP), Metbah Lyngdoh and Brolding Nongsiej (UDP), Ardent Basaiawmoit and KP Pangniang (HSPDP), HDR Lyngdoh (Congress), S Mukhim (Independent). Only the Chief Executive Member, KHADC, PN Syiem, remained adamant and has not resigned from his post.
According to Article 191 (1) a person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder.
Going by Article 191(1) the MDC would not appear to be holding any office of profit in the State or Government of India. However, the peculiarity of the Sixth Schedule is that under Article 12 (A) any Act of the District Council which is repugnant to any law made by the State Legislature of Meghalaya will be deemed to be void and the law made by the Legislature will prevail.
Hence, it is more a question of propriety and conflict of interests since an MLA who is also an MDC might have passed a particular law in the District Council but will also be party to the annulment of that Law in the State legislature should it violate the State law.
As far as the case of DD Lapang or that of PN Syiem is concerned, after the passing of the September 23, 2015 Amendment Act, under Article 192, a formal reference before the Governor should have come from the State Government, the Speaker of the Meghalaya Assembly or any member of the public, for him to take a considered view and action thereafter, since the Governor cannot take up their case suo moto.
It may be reminded that former Governor KK Paul had taken up the matter regarding elected MLAs retaining their elected seats in the ADCs with the Chief Minister on January 8, 2014 to which the Chief Minister had replied that in view of the specific exemption provided under the Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) Act 1972, MLAs could simultaneously hold membership of the ADCs.
Thereafter, Governor Paul had referred the matter to the Union Home Minister on February 14, 2014, much before any representation was received from Agnes Kharshiing. In the letter to the Home Ministry it was pointed out that while the Prohibition of Simultaneous Membership Rules 1950 prohibits simultaneous membership of Parliament and State legislature, there is no enactment governing simultaneous membership in the State Legislature and ADCs in Meghalaya and there have been many precedents of simultaneous memberships in the State.
However considering the impropriety of holding both posts as pointed earlier, the Union Home Ministry had proposed an amendment to the Sixth Schedule by providing that if an elected member of the ADC is chosen as MP or MLA his seat in the District Council shall become vacant.
The proposed amendment to the Sixth Schedule was not taken up. The present Governor, V Shanmuganatham held the same view as the former Governor and suggested that the proposed Amendment to the Sixth Schedule be carried out at the earliest. Alternatively it was suggested that suitable amendments be carried out in the Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) act 1972.
Following this the 2015 Amendment Act was passed in September this year which no longer protects the present MLAs who hold the dual posts , i.e. the post of Chairman, Chief Executive Member and other Executive Members, or ordinary members of the ADCs. However, the question is left to the competent authority (in this case the Governor) to take appropriate decision under Article 192.
According to a Delhi based Constitutional expert the office of the Governor cannot be held accountable if specific cases of violations under the new Amendment Act, 2015 are not brought to him vide a formal reference since the Governor cannot take suo moto action. His view is that the office of the Governor has been unnecessarily dragged into the current controversy without following due procedure.