Leader of Opposition is a Statutory Position, the ‘10% Rule’ is Not Founded in Law

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The Wire, June 01, 2019

The leader of the opposition is one of the key parliamentary functionaries whose role, though not defined in any rule, is of very great importance in the functioning of a legislature. He or she is invariably a senior leader representing the main opposition party in the legislature.

In the British parliament, the leader of opposition is referred to as the ‘shadow prime minister’, so called because he or she is always in a state of readiness to take over the government if the incumbent government falls. There, the leader of opposition forms a shadow cabinet too. Thus, the role of this parliamentary functionary under the Westminster tradition is not only to oppose and criticise the government, but also to take the responsibility of forming an alternate government should it become possible to do so in the event of the fall of the existing one.

Now that the new Lok Sabha has been constituted, the question as to whether there will be a leader of the opposition has become live once again. During the last Lok Sabha, which was dissolved a few days ago, the speaker refused to recognise a leader of the opposition even though the Congress was the largest party in the opposition.

The leader of the opposition in the houses of Indian parliament is a statutory post. This post is defined in the Salaries and Allowances of Leaders of Opposition in Parliament Act, 1977 as simply the leader of the numerically biggest party in opposition to the government and recognised as such by the speaker/chairman:

2. Definition.—In this Act, “Leader of the Opposition”, in relation to either House of Parliament, means that member of the Council of States or the House of the People, as the case may be, who is, for the time being, the Leader in that House of the party in opposition to the Government having the greatest numerical strength and recognised as such by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.
Explanation.—Where there are two or more parties in opposition to the Government, in the Council of States or in the House of the People having the same numerical strength, the Chairman of the Council of States or the Speaker of the House of the People, as the case may be, shall, having regard to the status of the parties, recognise any one of the Leaders of such parties as the Leader of the Opposition for the purposes of this section and such recognition shall be final and conclusive.
The procedure for recognising the leader of the opposition is well laid down. On a request being made by the numerically largest party in the opposition that its designated leader be recognised as the leader of the opposition, the speaker, after the request is examined by her or his secretariat, accords recognition to that person.

The point to note here is that the statute gives the numerically largest party in the opposition the right to have a leader recognised as leader of the opposition by the speaker.

In the new Lok Sabha, with 52 members, the Congress is the largest party in the opposition, and is therefore the rightful claimant to this post under the law. There is no ambiguity about it as the law is absolutely clear on this point.

It is, therefore, very surprising to hear from the media that the Congress will not get the post of the leader of opposition this time too since its strength in the Lok Sabha is less than 10% of the total number of MPs in the house. As we saw above, the law does not contain any such condition.

Since the leader of the opposition is a statutory post, one needs to only look into the concerned law to find out who can become the leader of the opposition and how he or she is to be recognised etc. There is no room for ifs and buts, under the Salaries and Allowances of Leaders of Opposition in Parliament Act, 1977, the duty of the speaker is to recognise the eligible person as leader of the opposition.

When a request comes from the largest party in opposition, the speaker is legally bound to recognise the leader of that party as the leader of the opposition.

Since the speaker is performing a statutory duty in recognising the leader of the opposition, she or he cannot exercise any discretion in the matter. This needs to be underlined again: No power of discretion is vested in the speaker in the matter of recognising the leader of the opposition.

Recognising a member of the house as leader of opposition is not a political or arithmetical decision, but a statutory decision. The speaker has to merely ascertain whether the party claiming this post is the largest party in the opposition.

When the law is clear, why is there still this confusion and disinformation on the subject?

Way back in the 1950s, the speaker started the practice of recognising parliamentary parties as ‘parties’ and ‘groups’ for the limited purpose of allotting seats in the house, time for participating in the debates, rooms in Parliament House etc.

He issued a direction under which a party is recognised as such only if it had 10% of the strength of the house. A party which had less than 10% members was categorised as a ‘group’. But there was no reference to the leader of the opposition in the above direction. It would appear that the people who administered the house rules and directions acted under the erroneous belief that only a party having 10% members can claim the post of leader of opposition.

Whatever the origin of this practice, there was no scope for confusion after the enactment of the Salaries and Allowances of Leaders of Opposition in Parliament Act in 1977. That law made the post of leader of the opposition a statutory post, governed by the statute. Directions or rules made by the speaker cannot override a law made by parliament.

In any case, after the enactment of the 10th Schedule of the constitution which brought in anti-defection provisions, every party – irrespective of the number of members it has in the house – is considered a ‘party’. Even a one-member party is a party in the house. Thus, the categorisation of parliamentary parties as ‘parties’ and ‘groups’ by the speaker became irrelevant and hence this practice became obsolete.

Therefore, to say that the Congress cannot claim the post of leader of the opposition because it does not have at least 10% of the membership of the house is devoid of any merit. This opinion reflects an ignorance of the law.

It is extremely surprising that professional journalists also exhibit such ignorance when they deal with this issue. Any party which is numerically the biggest in the opposition is entitled to claim this post.

In the new Lok Sabha, since the Congress is the biggest party in the opposition with 52 members, it is entitled to claim the post of the leader of opposition and cannot be denied that.

In the Delhi assembly, the only opposition party, namely the Bharatiya Janata Party, got the post of leader of the opposition although it had only three members in an assembly of 70 members. Speaker Ram Niwas Goyal acted under the Leader of Opposition in the Legislative Assembly of the National Capital Territory of Delhi (Salaries and Allowances) Act, 2001, which has a provision identical to the central law.

The Delhi speaker was absolutely right in recognising a member of the three-member legislature party of the BJP as leader of the opposition as that party, being the numerically biggest party in opposition to the AAP government in the assembly, was legally entitled to the post.

Recognising a member of the house as leader of opposition is a statutory decision. No political consideration can be brought into it.

This news can also be viewed at: https://thewire.in/

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