By Dr Fabian Lyngdoh
With regards to the dual posts issue in the Meghalaya State Legislative Assembly, the High Court can give no other ruling except as decided by the Governor as provided in clause (1) of article 192 of the Constitution of India; and the Governor can give no other decision except according to the opinion of the Election Commission as provided in clause (2) of article 192 of the Constitution. Hence, the final de facto decision is that of the Election Commission and the final de jure decision is that of the Governor. So, the crux of the issue lies with the Election Commission. The Governor has to stamp constitutionality on the opinion of the Election Commission, and the High Court has to interpret it accordingly. It is as simple as that, and there is nothing so mysterious or profound about it. This article is not a challenge to the ruling of the High Court on matters of law, but to give some pointers for public discussion on matters of truth.
According to article 191(1) of the Constitution of India, a person shall be disqualified ‘for being chosen’ (to be barred from being elected), and ‘for being’ (to be disqualified if having been elected) as MLA if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule. An office of profit is defined as an office which is capable of yielding a profit or pecuniary gain. The MDCs, Chairman, CEM and EMs of the District Council receive monthly salaries including perks and allowances that are credited into their personal bank accounts. Certainly these payments are made out of public fund because there is no private person or company donating or sponsoring the salaries of the MDCs.
Some may argue that the MDCs do not hold office of profit under the State Government or the Central Government because the District Council pays them salaries out of its own fund. The so called District Council’s own fund comes only from land revenue and taxes from the public which it is empowered to assess and collect by the Constitution of India under Para 8 of the Sixth Schedule. Is not the District Council functioning and paying salaries under the Government of India? To consider the office of the CEM of the District Council who draws a fixed monthly remuneration of Rs. 66, 900/- plus other perks and benefits, not as an office of profit, may be justified in the context of article 191 (1) of the Constitution, but it is not justifiable in truth.
We commonly think of the Government of India only in terms of the Cabinet of Ministers with the Prime Minister, belonging to a majority political party in the Lok Sabha. But constitutionally, the Government of India comprises the legislature, the executive and the judiciary in inseparable interrelationships. The executive power of the Union is vested in the President and exercised by him either directly or indirectly or through officers, sub-ordinate to him (Cabinet of Ministers) in accordance with the Constitution. All executive actions of the Government of India are expressed to be taken in the name of the President. At the same time the President is part and parcel of the Parliament. An Act of Parliament can be a law only with the assent of the President.
The Supreme Court of India was established to act as a vigilant guardian of the Constitution, particularly the fundamental rights guaranteed to the citizens, and as the conscience-keeper of the Government. It is the right of the judiciary to question the constitutional validity of the laws enacted by the legislature. But the age permissible for a Judge and the number of the Judges in the Supreme Court, and the extent of its powers shall be prescribed by the Acts of Parliament. However, the determination of the qualification of a Judge as a distinguished jurist and the appointments of Judges are to be made by the President. But despite all the powers conferred on the President, he/she may be removed from office through impeachment in Parliament (article 61). Moreover, article 53 provides that, nothing in this article shall prevent the Parliament from conferring by law functions on authorities other than the President.
An analysis of the provisions of the Constitution reveal the principle of checks and balances in the entire structure of the Government, and the nature of the Parliament as the de facto representative of “We the People”, and the President as the de jure representative of “We the People”, who solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic. The Council of Ministers and the Judiciary take up the actual responsibility of governance. But the expression, ‘Government of India’, has to be viewed in the context of its whole structure. Hence, any person drawing monthly remuneration out of public funds, whether in the State Government or in the District Council, has to be construed as holding an office of profit under the Government of India.
The argument that the Sixth Schedule provides the District Council with autonomy via-a-vis the State Government, and the Central Government is untenable. The District Council may to some extent be autonomous with respect to the State Government. However, even in this respect its autonomy is limited by the provision of Para 12A of the Sixth Schedule. But the District Council can in no way be autonomous with respect to the Government of India. The District Council has no plenary power to make law; it has no absolute autonomy even with regard to the laws it is permitted to make because all laws made by it should be submitted to the Governor and, until assented by him have no effect. Central funding constitutes a major portion of finance for maintaining the institution and the activities of the District Council. Article 21(1) of the Constitution empowers the Parliament to amend any of the provisions of the Sixth Schedule. Where is the District Council’s autonomy with respect to the Government of India?
According to Para 2 (6) of the Sixth Schedule, the Governor shall make rules for the first constitution of the District Councils in consultation with the existing tribal councils or other representative tribal organisations. This indicates that there is some extent of cultural autonomy of the Scheduled Tribes with respect to the Government of India. This cultural autonomy, however, belongs not to the District Council, but to the tribe and its traditional institutions. The District Council is only a special constitutional agency standing in between the cultural autonomy of a tribe and its traditional institutions on one side, and the political sovereignty of Government of India on the other side. But cultural autonomy of whatever kind does not belong to the District Council itself. Moreover, cultural autonomy should not be misconstrued as political sovereignty.
The Prevention of Disqualification (Members of Legislative Assembly of Meghalaya) (Amendment) Bill, 2015, intends to bar a person who is an MLA to also hold the post of MDC. Article 101 of the Constitution also bars a person to be at the same time a member of both Houses of Parliament. Also no MP shall at the same time be an MLA of a State Legislature. In principle, the State Bill requires the dual posts holders to resign from the post of MLA, but it neither advises nor compels anyone to resign from the post of MDC. But the dual-post holders chose to resign from the post of MDC of their own accord. If the State Bill does not permit MLAs to also be MDCs, it is not the business of the District Council to interfere, and it is not correct to say that the State Bill intrudes into the domain of the District Council.
Seeing this issue from the perspective of the District Council, the resignations of the MDCs have no connection with the State Bill but they resigned, on their own accord. Hence, they have no justification now to demand to be re-instated just because the State Bill is defeated in the High Court. As a jaidbynriew (tribe) we have always been easily moved by emotions, so I deem it proper to send words of caution to one and all that the court case victory of Mr PN Syiem is his personal victory in defending his own position. He deserves commendation for his courage but his personal victory should not be misconstrued as a victory of the Tribe.
Even if the present State Bill cannot be effective now, a proper law should definitely be passed and enforced from the next term onward to save the District Council from being abused as a dustbin for dumping the spill-overs from State politics, and to save the jaidbynriew from dishonour by the perpetuation of this 63-year-old ‘stop-gap arrangement’ which was meant for an illiterate society. The defects of the present State Bill is only because it is not timely and was passed with ulterior motives. Even the best of laws would become infructuous if made with ulterior motives.