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| Politicians, Constitutional experts hold contrary views | | CM's advisors and their powers | | Bashir Assad
Jammu, Feb 21: Political circles and constitutional experts are offering varying explanations to constitutionality of conferring minister status to Chief Minister's advisors. The State Accountability Commission (SAC) issued notice to Chief Minister last week after declaring the appointment of his advisors `political'.
Former Law Minister and renowned lawyer, Muzaffar Husain Baig, sees no wrong in appointment of advisors. However, is against conferring powers on them. "Government information is protected by oath of secrecy and moving government information or files through advisor is unconstitutional because the advisor is neither under oath nor does he have any powers under Rules of Business. " Advisors you can have but conferring powers of a minister of state in ultra constitutional", he said.
"Does he function outside the constitution or as a decision maker or as a part of bureaucracy" Baig wondered. If somebody is designate political advisor, Baig said, how can you send administrative and executive files to him?
The incumbent Law Minister and National Conference leader, Ali Muhammad Sagar believes there was nothing wrong in appointment of advisors or conferring powers on them. Pertinent to mention, legislation passed inn 2009 allows legislators to hold office of profit without getting disqualified.
According to CPI(M) leader, MY Tarigami the government order of appointing advisors to the chief minister is in contravention to the law by virtue of which the size of ministry has been limited to 25% of the total number of representatives in the lower house.
"This tantamounts to breach of the legislation which restricts the size of ministry to 25%. . Prior to this, there used to be a jumbo sized ministry which was a white elephant on state exchequer" said Tarigami adding further the appointment of advisors is something beyond the scope of the law for two reasons. First, unnecessary burden on state exchequer and second; they (advisors) are holding authority which goes against the spirit of law but also beyond the scope of constitution, Tarigami said.
By appointing advisors, said Tarigami, inroads are being made and the law is being encroached upon. "You are restricting the number of ministers to a certain limit on one hand but on the other hand you are conferring powers of ministers to the advisors and heads of about two dozen Boards/Corporations which is in total contravention to the law" added Tarigami.
National Panthers Party leader and former minister Harshdev Singh said "they are extra constitutional authorities. There is no law which confers the powers of a minister on a chairman or advisor, this is abuse of public exchequer and misuse of authority". He further said that SAC has rightly issued notices after it found a prime-facie case. "We welcome SAC for ordering a regular inquiry into it" he added.
PDP leader and MLC, Advocate Murtaza Khan while hailing SAC for issuing notice to the chief minister, said that in 2009 when Law Minister moved The Jammu and Kashmir (prevention and disqualification) amendment bill in the house seeking exemption of advisors to the chief minister from the list of holding office of profit, his party raised questioned the constitutionality of advisors.
"I am on record to have said that before seeking exemption for advisors from the list of holders of Office of Profit, the house should ponder as to whether appointment of advisors by chief minister is permissible within constitution", he said.
However, Law Secretary GH Tantray said that appointment of advisors was in accordance to the provisions of law enacted in 2009 by state assembly.
"The Jammu and Kashmir State Legislation (Prevention of Disqualification ) (Amendment) Act, 2009 clearly says that MLAs/MLCs including the advisors to the chief minister can hold office of profit without actually being disqualified from the membership of the house", said Tantray.
However, what is even more interesting is the point some constitutional experts raised while questioning the very constitutionality of 'Minister of State'.
"There is no such nomenclature like 'Minister of State' in our constitution, there is only Minister to State and deputy minister and no words like ' minister of state' in that, it is the designation beyond the scope of the constitution" said a constitutional expert.
He said that when the nomenclature of 'Minister of State' itself was beyond the scope of constitution where does the conferment of powers of a minister of state to advisors originate from. "There is Minister to the State means full-fledged Minister of cabinet rank and deputy minister does not need any explanation as the nomenclature itself speaks about his status and powers, minister of state is something borrowed from outside without actually referring to the constitution", added he.
Though there is another version that Council of Ministers in the state is an exact replica of the Council of Ministers at the Centre. They resemble in formation, function and role in the administration, however, we have our own constitution which needs to be respected. |
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