The Supreme Court was hearing a writ petition filed by D D Thaisii, Congress MLA from Manipur, who sought for disqualification of these 12 MLAs on the ground that they were holding the posts of Parliamentary Secretaries, which amounted to “offices of profit”. The bench posted the matter to Thursday, November 11.
TFM Desk
Governor of Manipur cannot delay taking a decision on the opinion given by the Election Commission of India (ECI) regarding the disqualification of 12 BJP MLAs of Manipur Assembly in the “office of profit” issue, observed the Supreme Court orally on Tuesday.
A bench comprising Justices L Nageswara Rao, BR Gavai and BV Nagarathna made this observation after noting that the Governor is yet to take a decision on the opinion furnished by the Election Commission on January 13, 2021.
The bench was hearing a writ petition filed by D D Thaisii, Congress MLA from Manipur, who sought for disqualification of these 12 MLAs on the ground that they were holding the posts of Parliamentary Secretaries, which amounted to “offices of profit”.
According to LiveLaw, senior advocate Kapil Sibal, appearing for the petitioner, submitted that the Governor cannot keep the decision pending. He highlighted that the term of the assembly was expiring within a month.
The Constitutional Authority bound by the Election Commission cannot say that he will not convey the opinion. If he’s not conveying, he’s not discharging his constitutional obligation. 1 month will pass & the game will be over. We’re entitled to know what the opinion is…. We should know what the Constitutional Authority is doing in the country,” Senior Counsel added.
We agree with you…he cannot skip away the decision”, Justice Rao, the presiding judge of the bench, said.
Senior Advocate Rajeev Dhavan, appearing for the Election Commission of India, relied on Article 192 of the Constitution of India to submit that the opinion of the Election Commission is binding on the Governor. “Opinion of EC is binding on the Governor. Only 1 month is left. You cannot challenge the decision of the Governor. You cannot attack the opinion of the EC,” Senior Counsel further submitted.
Justice Rao said that there are instances where the Court has nudged Governor to take time-bound decision. The judge referred to the case of Rajiv Gandhi assassination case convict Perarivalan, where the Tamil Nadu Governor was asked to take a decision on the recommendation made by the State Government for remission of his sentence. The counsel representing the State Government sought for adjournment saying that the Solicitor General of India was engaged before another bench,
“You can’t make this petition infructous by taking adjournments, only one month is left…..nobody representing the state!”, Justice Rao expressed displeasure. Though the matter was passed over to 2 PM, the Solicitor General did not make appearance. The SG’s colleague informed that his hearing before the other bench was going on. Therefore, the bench posted the matter to Thursday, November 11.
The bench issued notice to the Secretary of the Governor on an application filed by the petitioner seeking the production of the Governor’s decision before the Court.
What is the case about?
Soon after coming to power in 2017, the BJP-led state government appointed 12 MLAs — eight from BJP, three from Naga People’s Front and one independent. They are L Susindro (Khurai AC), N Indrajit (Kshetrigao AC), L Rameshwor (Keirao AC), Th Satyabrata (Yaiskul AC), H Dingo (Sekmai AC), Dr S Ranjan (Konthoujam AC), S Subashchandra (Naoriya Pakhanglakpa AC), K Robindro (Mayang Imphal AC), Leishiyo Keishing (Phungyar AC), Khasim Vashum (Chingai AC), Awangbow Newmai (Tamei AC), and Asab Uddin (Jiribam AC).
They resigned from their posts later in 2017 soon after their appointment was challenged in the court.
While the law relevant to office of profit bars MPs and MLAs from holding a position under the government, the 12 MLAs held positions of parliamentary secretaries under an exemption granted by two laws passed in the last decade.
These were the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012, and the Manipur Parliamentary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018.
Both Acts ceased to exist after the Manipur High Court pronounced them invalid and unconstitutional in a judgment on September 17, 2020.
After the HC declared these Acts void ab initio, the Congress had approached governor Najma Heptulla seeking disqualification of the 12 MLAs on account of holding the position of parliamentary secretaries, which qualified as ‘office of profit’ after the HC ruling.
The governor had sought the EC’s views on the matter in October last year.
In a letter to Heptulla in January this year, the EC is learnt to have opined that since the Acts mentioned above were in force at the time they held the office, the MLAs could not be disqualified for holding office of profit retrospectively.
In December last year, a delegation of Congress leaders had also appealed to the EC to decide the matter of disqualification of 12 Manipur legislators in the office of profit case.
Arguing that the case of the Manipur MLAs called for disqualification, Congress leaders had made a reference to the Supreme Court order dated July 26, 2017 in the case of Bimalangshu Roy vs the state of Assam, according to which appointing elected representatives of the land as parliamentary secretaries violates the law.
The EC, in 2018, had recommended the disqualification of 20 Aam Aadmi Party MLAs, who were also holding the position of parliamentary secretaries, on account of office of profit.
However, the Manipur BJP MLAs case is different since there was a protection granted to them in law earlier, which was subsequently declared unconstitutional.