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Season’s message from Goa to Didi
- HC conclusion in 2009: parliamentary secretaries are ministers

Mumbai, Dec. 14: Chief minister Mamata Banerjee has won a Christmas invitation from Goa.

“I would invite Mamata Banerjee to come to Goa for Christmas and see with her own eyes how well-administered the state is without parliamentary secretaries,” Aires Rodrigues said today.

The name is unlikely to crop up in the Bengal chief minister’s appointments register. But Rodrigues may be a person of interest for Bengal parties as they battle it out over an act that empowers Mamata to appoint MLAs as parliamentary secretaries “of the rank and status of a minister of state or deputy minister”.

Rodrigues, 52, is the activist-lawyer who thwarted a similar measure by the Goa government, though with a difference. Goa had pushed through the appointments of parliamentary secretaries on the back of an executive order but the Bengal government has sought to fortify itself by promulgating an act that will become a law when the governor signs it.

But Rodrigues, who moved the Goa bench of Bombay High Court and got two such appointments quashed in 2009, feels that even a law would not stand legal scrutiny as it goes against the constitutional ceiling on the number of ministers. With 44 ministers, Bengal has already hit the ceiling of 15 per cent of total members of the Assembly.

“The provision under Article 164 has been made specifically with the objective of restricting the number of cabinet ministers and preventing unnecessary expenditure. So, even if a bill has been passed by a state Assembly, it is still contrary to the constitutional mandate. This is exactly the issue in Assam where a bill has been passed, and it is pending before the courts. The Bengal bill too can be challenged in courts,” Rodrigues told The Telegraph today.

A crucial question is whether the parliamentary secretaries “of the rank and status” of ministers of state can be counted as ministers or not. If the answer is in the affirmative, it will mean that the appointment of any parliamentary secretary will break the 15 per cent limit for Bengal.

The Goa judgment has dealt with this matter in no uncertain terms.

The judgment reads: “The restriction on the size of the council of ministers thus must not be unsettled by any indirect method when it is directly impermissible. Quando aliquid prohibetur ex directo, prohibetur et per obliquum (When anything is prohibited directly, it is prohibited also indirectly)….”

The court added: “It would not be permissible to… adopt an indirect method to defeat the golden figure stated by giving it a different nomenclature of ‘parliamentary secretary’ when, in fact, and, in terms of logical prudence, and even in terms of law, they would be ministers. Description of de jure parliamentary secretary, de facto is minister….”

The judges then reached a conclusion that can resonate on the Bengal firmament. “…All this leads to an irresistible conclusion that they are, in fact, ministers,” the 108-page Goa judgment reads.

Based on Rodrigues’ public interest litigation, then high court Chief Justice Swatanter Kumar and Justice N.A. Britto had set aside the appointment of two MLAs as parliamentary secretaries.

But a senior Bengal lawyer said the bill passed yesterday might stand the Mamata government in good stead on one count. The Bombay High Court bench had repeatedly asked the then Goa chief minister (Digambar Kamat of the Congress) from where he drew the power to administer the oath of secrecy to the parliamentary secretaries in the absence of a supporting law.

If the Bengal decision reaches the courts and a similar question comes up there, the state can point to the bill. Besides, unlike Bengal, Goa had made the appointments first and later issued the notification.

Rodrigues feels that the Bengal government should have waited for the outcome of the Assam case in the Supreme Court before pursuing the bill.

Whether Mamata accepts his Christmas invitation or not, Rodrigues will be busy in the immediate aftermath. His petition questioning the exclusion of the Goa governor from the Right to Information Act is scheduled for a hearing in the Supreme Court on January 3.