To insist 10% seat quota is essential for LoP blatant disregard to Parliamentary practice

By Venkatesh Nayak*
A reply has been reportedly sent by the Speaker of the Lok Sabha to the President of the Indian National Congress (INC) refusing to accept the latter’s claim to the chair of the Leader of the Opposition (LOP) in that House for the leader of its parliamentary party. In the age of the Right to Information Act, 2005 (RTI Act) the text of this communication, which amounts to making an important decision, is simply not available on any official website. Nor has the INC displayed the contents of this letter on its own website despite being declared a public authority under the RTI Act, apropos of the June 2013 order of the Central Information Commission (CIC). This decision has not been set aside by any court till date.

Reasons for the Speaker’s Decision

Although Section 4(1)(c) of the RTI Act requires the Lok Sabha Secretariat to voluntarily place in the public domain all relevant facts about important decisions taken by the Speaker, our access to reasons behind her decision is facilitated by media reports only. The Speaker is reported to have given three reasons for her decision to deny the LOP’s chair to the INC:
(a) Past precedents when the LOP’s chair was not given to parties which had less than 10% of the membership of the House (we do not know for sure which past instances were cited);
(b) The opinion of the Learned Attorney General of India sought by the Speaker on this issue – the contents of which are also not available in the public domain except through media reports – again supposedly relying on the 10% rule; and
(c) Directions of past Speakers on the issue of the LOP left the current Speaker with no discretion on this matter.
Some people have overenthusiastically appreciated this development in complete ignorance of the express will and intention of Parliament when it gave legal recognition to the LOPs’ office through a special statute in 1977. It is one thing to be politically partisan – that freedom is available for any person – but it is reprehensible and undesirable to twist the law by interpreting it in a manner that contradicts or negates the will of Parliament which represents the will of the people of India.

The Speaker’s Decision Appears to be Contrary to the Express Will and Intention of Parliament on this Issue

If the aforementioned reasons are truly contained in the Speaker’s reply to the INC, then with all due respect to her wisdom, it must be said that her decision may amount to a complete disregard for the express will of Parliament when it passed the Salary and Allowances of Leaders of Opposition in Parliament, 1977 (LOP Act) providing a clear definition of the term “Leader of Opposition”.
Section 2 of the LOP Act defines the phrase “Leader of the Opposition” as follows:”

In this Act, ‘Leader of the Opposition’, in relation to either House of Parliament means that member of the Council of States” (i.e., the Rajya Sabha) “or the House of the People” (i.e., Lok Sabha) “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.”
Section 2 is crystal clear: LOP must satisfy three tests – 1) LOP claimant must be a leader of a political party represented in the House; 2) that party must have the second greatest numerical strength in that House; 3) that party must be in Opposition to the Government. If these three tests are satisfied, then the Speaker must recognise that Leader as the LOP.
The issues raised by the Speaker amount to questioning the second test – greatest numerical strength – should this strength be linked to a minimum quota of seats in the Lok Sabha? A corollary to that query is whether this issue must be decided by referring to past precedents also.
In 1977 Parliament rejected the idea of fixing a quota for claiming the LOP’s chair decisively. The LOP Bill was tabled in the Lok Sabha on August 6, 1977. It was taken up or discussion two days later on August 8. HV Kamath, an MP of the Janata Party, and belonging to one of its constituents – the Jan Sangh, a previous avatar of the Bharatiya Janata Party (BJP) – moved amendment #15 to fix 1/6th as the quota of seats in the House required for any MPs to claim the LOP’s chair. In support of his amendment proposal, Kamath quoted the very same speech of GV Mavalankar, first Speaker of the Lok Sabha where a reference was made to the 10% seat requirement.
This amendment was decisively rejected by the Janata Party MPs who were in the majority in the then Lok Sabha. So the 10% requirement was weighed and measured and discarded by the Lok Sabha. To insist that 10% seat quota is essential to claim the LOP’s chair amounts to blatant disregard for the express intention of Parliament which represents the will of the people of India.
During the same discussion in the Lok Sabha, Samar Mukherjee, MP from the CPI(M) tabled amendment #23 seeking to introduce a requirement that the Speaker or Chairman recognise the LOP on the basis of past practices and conventions. He also cited past precedents where parliamentary parties were recognised as such only if they had 10% or more seats in either House of Parliament.
This amendment was also rejected by the Lok Sabha where the Janata Party was in a majority. So Section 2 of the LOP Bill was adopted by the Lok Sabha without any change. To insist that past precedents are binding on the Speaker while deciding the claim of a party to the LOP’s chair also amounts to complete willful disregard to the express intention of Parliament which represents the will of the people of India.
The Rajya Sabha passed the LOP Bill without any amendments on August 9.
So, given Parliament’s rejection of both the 10% requirement and the reliance on past precedents for recognising the LOP, in my opinion the Speaker has no option but to simply do a head count of the members of the party that has the largest number of MPs in the Lok Sabha after the BJP and recognise the leader of that party as the LOP. To this extent, the Speaker is true: There is no exercise of discretion involved when the numbers are crystal clear.

Can the Speaker’s Decision be challenged in Court?

A few days ago the media reported on some remarks attributed to the Chief Justice of India (CJI) while dismissing a Public Interest Litigation (PIL) suit seeking a direction to the Lok Sabha Speaker to recognise the Leader of the INC in the Lok Sabha as the LOP. The CJI is said to have remarked that the decision of the Speaker is not open to judicial review. If this is indeed true, with the greatest respect to the wisdom of the CJI and the Apex Court, I beg to differ on this issue for the following reasons:
(1) The explanation to Section 2 of the the LOP Act states that the decision of the Speaker to accord recognition to a member as LOP will be conclusive and final. This implies that the Court will have no power to review such a decision. However, that phrase cannot be stretched to cover a context where the Speaker’s decision is to deny a claim and, that too in the face of statutory provisions that are crystal clear in their meaning with due reference to the will and intention to Parliament as expressed during the debates on the LOP Bill. Any erroneous application of statutory provisions to decide on the rights of any party is open for judicial review. Error of application of law is a ground for invoking the court’s power of judicial review, although in a limited manner- the motives and rationale behind arriving at such a decision cannot be questioned in such a motion.
(2) While Article 105(2) of the Constitution grants immunity from prosecution for all MPs for anything done or said on the floor of the House, to the best of my knowledge that immunity may not extend to decisions taken in the Speaker’s chamber when the Lok Sabha is not in session.
In order to uphold justice and the rule of law, the Courts will have to step in to give a finding as to whether any law has been contravened.
So in my humble opinion any Opposition party, including the INC that wishes to challenge the Speaker’s decision, will have valid grounds to point out in its petition as to why that decision cannot be sustained in law. The primary ground will be complete disregard for the express will of Parliament in imbuing the term “Leader of the Opposition” with crystal clear meaning. A crystal clear statutory provision cannot be overridden by rules, precedents or directives.
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Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi