SHILLONG: As many as 10 legislators have said there was no ground for their disqualification since they had already quit the post of parliamentary secretaries after the High Court verdict on November 9.
In a statement issued on behalf of these legislators on Sunday, Advocate S. Dey, who had represented some of them in the court, said since the post of parliamentary secretary itself ceased to exist, out of abundant caution and respect for the court verdict, all parliamentary secretaries had immediately resigned.
“Therefore, the issue of disqualification becomes infructuous,” he said.
The legislators who issued the statement include Marthon J. Sangma, Brigady N. Marak, Samuel N. Sangma, Michael T. Sangma, Cherak W. Momin, Limison D. Sangma, Noverfield R. Marak, Ashahel D. Shira, Rophul S. Marak and Sengnam Marak.
The court had declared the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2005, as ultra vires for lack of legislative competence.
According to the statement of the MLAs, the petitioner wanted the declaration of disqualification of parliamentary secretaries by the court, but it declined to give such a declaration.
They said while the court preferred not to refer the matter directly to the governor, gave liberty to individuals to petition the governor if they do wish.
According to the MLAs, the court had taken note of the parliamentary secretaries’ position that the issue of disqualification does not arise since there is Prevention of Disqualification
(Members of the Legislative Assembly of Meghalaya) Act, 1970, which exempts parliamentary secretaries from the purview of disqualification. The validity of this entry has not been challenged”.
Dey on behalf of the MLAs said the principle that a legislature has the right to declare any post to be exempted from disqualification under Article 191(1)(a) as in the present case, is a settled law.
Quoting from the Constitution, Dey said the question of disqualification for holding an ‘office of profit’ is governed by Article 191 (1) (a) of the Constitution which states that a person will 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”.
Petitioner finds ground for action against legislators
The petitioner of PIL against parliamentary secretaries has found ground for the disqualification of 17 legislators.
In the representation to be submitted to Governor Ganga Prasad on Monday, the petitioner, Madal Sumer, is expected to raise that the Act related to the appointment of parliamentary secretary is unconstitutional and hence the Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) Act, 1970, does not protect the 17 MLAs from disqualification.
The second argument would be that the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2005, speaks about the salary aspect of MLAs who were appointed as parliamentary secretaries and hence the issue of office of profit is involved.
The November 9 order of the High Court of Meghalaya had left it to the governor to decide on disqualification of MLAs who were appointed as parliamentary secretaries based on the office of profit issue.
The petitioner is banking on Article 191 (1) of the constitution which states that 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”.
According to the petitioner, since the Act related to the parliamentary secretaries is invalid, they fall under office of profit ambit and are liable to be disqualified.