Daily PT Capsule Jun 15

Appointment of Parliamentary Secretary

President Pranab Mukherjee has refused to give his assent to proposed legislation that sought to protect, with retrospective effect, 21 Aam Aadmi Party MLAs from disqualification for occupying additional posts deemed unconstitutional, given their status as elected representatives.

The Delhi government had appointed them as Parliamentary Secretaries but the move was challenged on the ground that they occupied offices of profit and were being extended benefits over and above those allowed by the Representation of the People Act, 1951.

According to the order, yet to be communicated to the Delhi government, the 21 MLAs have to demit the office of Parliamentary Secretary. This even as the Delhi government maintained that the refusal of the President’s assent did not have any effect on their membership of the Delhi Assembly.

Analysis

What is a Parliamentary Secretary? – A parliamentary secretary is a member of a Parliament in the Westminster system who assists a more senior minister with his or her duties.  A Parliament Secretary often holds the rank of Minister of State and has the same entitlements and is assigned to a government department.  Manipur, HP, Mizoram, Assam, Rajasthan, Punjab, Goa are some of the states where MLAs have been appointed Parliament Secretaries by the Government.

Various petitions in the High Court have challenged the appointment of Parliament Secretary, arguing that the post is in contradiction to Article 164 (1A) of the Constitution which provides for limiting the number of Ministers in the State Cabinets to 15 per cent of the total number of members of the State Legislative Assembly.

Because a Parliament Secretary often holds the rank of Minister of State, the Calcutta High Court, in June 2015, quashed the appointment of 24 Parliamentary Secretaries in West Bengal dubbing it unconstitutional. Similar action was taken by the Bombay High Court in 2009 for the appointment of two Parliamentary Secretaries in Goa and by the Himachal Pradesh High Court in 2005 for the appointment of eight Chief Parliamentary Secretaries and four Parliamentary Secretaries in the State. In May 2015, the Hyderabad High Court stayed the appointment of Parliamentary Secretaries in Telangana. The matter is sub judice in Punjab and Haryana.

What is the allowed limit in Delhi? – The number of Cabinet Ministers in Delhi cannot exceed 10 per cent of the total 70 seats – that is seven – as per Article 239(A) of Constitution. As of now, only one Parliamentary Secretary to the Chief Minister is authorised.

What are the important judgements regarding the post? – In 2005, in Citizen Rights Protection Forum vs Union of India and Others (decided on 18 August, 2005), the Himachal Pradesh High Court quashed the appointment of Chief Parliamentary Secretaries and Parliamentary Secretaries.  It held that ‘(Parliamentary Secretaries) are usurpers of public office since their appointments did not owe their origin to any constitutional or legal provision, they having been appointed by person(s) not vested with the power of appointment’.

Is the position an office of profit? – ‘Office of profit’ is not defined in the Constitution. However, in past judgments, the Election Commission has noted “what constitutes an office of profit under the Government is now well established by a catena of judgments of the Supreme Court.”

Five tests have been laid down:

(i) whether the government makes the appointment;

(ii) whether the government has the right to remove or dismiss the holder;

(iii) whether the government pays remuneration;

(iv) what the functions of the holder are; and

(v) does the government exercise any control over the performance of these functions.

The Delhi government argues that as Parliamentary Secretaries are not eligible for any remuneration or perks from the government the post should be exempt from the office of profit.

Source: TheHindu, PRS

Scientists to use robots to study monsoons

In a bid to more accurately predict Indian monsoons scientists from Britain and India will release underwater robots into the Bay of Bengal. Researchers will also fly a plane carrying scientific equipment over the bay to measure the atmosphere as part of the study of the monsoon.

Better forecasting will improve the livelihoods of India’s more than 200 million farmers and agricultural labourers, who are reeling from devastating drought.

The robots, which have computers onboard and look like miniature yellow submarines, will spend a month moving through a southern section of the bay, to measure temperature, salinity and currents.

Source: TheHindu

Climate change impact on Australian rodent

Australian Great Barrier Reef rodent  may be the first mammal to have been driven to extinction due to climate change. Extensive searches for the Bramble Cay melomys, a small rat-like animal, have failed to find a single specimen from its only known habitat on a sandy island in far northern Australia.

Researchers said the key factor behind the extinction was ocean inundation of the low-lying cay, likely on several occasions, over the last decade which resulted in dramatic habitat loss. The Melomys rubicola, considered the Great Barrier Reef’s only endemic (found nowhere else) mammal species, was first discovered on the cay in 1845 by Europeans who shot the “large rats” for sport. But the last known sighting, by a professional fisherman, was in 2009.

Source: TheHindu

RCEP trade agreement  pitfalls

Regional Comprehensive Economic Partnership (RCEP) negotiations have been taking place in which India is also involved. But according to Médecins Sans Frontières (MSF)  a non profit India will no more remain ‘the pharmacy of the developing world’ if the proposals in the pact are adopted.

MSF Access Campaign and other civil society organisations are pushing for the removal of harmful intellectual property provisions that could potentially increase drug costs by creating new monopolies and delaying the entry of affordable generics in the market.

Intellectual property text being discussed at the RCEP negotiations shows Japan and South Korea have made several “alarming” proposals that go beyond the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights. Two of the most worrying are the demands for ‘Data Exclusivity’ and ‘Patent Term Extensions’.

Analysis

What is Data Exclusivity? – Data exclusivity is a form of legal monopoly protection for a drug, over and above the patent protections. This is given expressly to compensate for the investment made during clinical trials. It implied that regulators cannot approve a similar drug with similar data for the next five years, delaying the entry of generic, affordable versions.

What is Patent term extension? – Patent term extensions are given to compensate the company for delays in processing patent applications. A company gets a 20-year patent monopoly on a drug from the date that the application is filed. Sometimes processing these applications takes time and the companies get only 13 years instead of 20. A patent term extension will give another five-year monopoly to the innovator company, again delaying the entry of generic drugs in the market.

What is RCEP? – Regional Comprehensive Economic Partnership (RCEP) is a proposed free trade agreement (FTA) between the ten member states of the Association of Southeast Asian Nations (ASEAN) (Brunei, Burma (Myanmar), Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand, Vietnam) and the six states with which ASEAN has existing FTAs (Australia, China, India, Japan, South Korea and New Zealand).

Source: TheHindu

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