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Truncated legal opinion ensured 16th Lok Sabha wouldn't have LoP

By Venkatesh Nayak*
Earlier this week, I explained why the Hon’ble Supreme Court’s discovery of the way forward to appoint the Lokpal using a truncated Selection Committee, minus the Leader of the Opposition (LoP) in the Lok Sabha, unintentionally facilitates the government’s domination over the selection process. Here, I share information obtained under The Right to Information Act (RTI Act) about the decision of the Hon’ble Speaker, Lok Sabha to keep the position of the LoP vacant.

How the office of the Leader of the Opposition, Lok Sabha was kept vacant in 2014

In Common Cause vs Union of India and related matters [Writ Petition (Civil) No. 245 of 2014, judgement dated 27 April, 2017] the judgement records the explanation offered by the Attorney General of India (AGI) for the LoP vacancy as follows:
“10. In reply, Shri Mukul Rohatgi, learned Attorney General has submitted that in the present case the Congress Party had claimed the post of LOP in the present Lok Sabha. However, the said claim was rejected by the Hon’ble Speaker on the ground that as per parameters of parliamentary convention and practice, the Congress Party does not have the requisite 10% strength of the total membership of the House of the People i.e. Lok Sabha to be entitled to have its leader in the Lok Sabha to be recognized as the Leader of the Opposition. Shri Rohatgi in this regard has relied upon a publication of the Lok Sabha Secretariat which is to the following effect:
‘At present, there is no recognized Leader of Opposition in Lok Sabha.’
11. Shri Rohatgi has submitted that the provisions of the 1977 Act” [The Salaries and Allowances of Leaders of Opposition in Parliament Act] “cannot, by itself, constitute to be a part of the Act in question. It is submitted that the implementation of the provisions of the Act was attempted but certain difficulties arising from some inadequate and inconsistent provisions thereof came to the fore which necessitated the Amendment Bill” [The Lokpal and Lokayuktas and Other Related Laws (Amendment) Bill, 2014]. “Referring to the Bill, the learned Attorney General has submitted that the Bill seeks to comprehensively amend different provisions of the Act to facilitate the smooth working of the institution brought into force under the Act.”
What this judgement does not record is the fact that the AGI’s opinion formed the basis of the Hon’ble Speaker’s decision to not recognise anybody as LoP in the 16th Lok Sabha.
In an Op-ed piece published in a leading English language daily, Mr. P D T Achary, former Secretary General of the Lok Sabha, has asked why the Apex Court did not question the reasons for keeping the LoP’s position vacant, when the law clearly states how the LoP must be selected.
The file notings including the AGI’s opinion obtained under the RTI Act reveal the inside story. Further, when compared with the official record of parliamentary debates on the law relating to the slaries and allowances of LoPs from 1977, the AGI’s opinion appears to be poorly researched and untenable.

Lok Sabha Secretariat put up both arguments: Why the LoP should be or not be recognised

Copies of the official records and file notings supplied by the Lok Sabha Secretariat (LS Sectt.) under the RTI Act reveal that the Indian National Congress (INC) staked its claim to the office of the LoP, before the Hon’ble Speaker, in June 2014. The Table Office of the LS Sectt. started the discussion on file regarding this claim and presented two views which are summarised below:
The first view was that the the Salaries and Allowances of Leaders of Opposition in Parliament Act,1977 laid down the procedure for appointing the LoP. Only two conditions needed to be satisfied for a successful claim to this office, namely:
a) the claimant party should be in Opposition to the Government; and
b) the party should have the greatest numerical strength amongst all parties in opposition. If these conditions are fulfilled, then the Speaker is to recognise the leader of the Party as the LoP.
The second view was that the requirement of numerical strength of 10% of the total members of the Lok Sabha is mandatory for a party claiming the position of the LoP. The LoP Salaries and Allowances Act must be read along with The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities), Act, 1998 which provides that the numerical strength of the party to be reckoned as a “recognised party” should not be less than 55 members. Further, Directions 120-121 of the Speaker (from pre-independence era) require that for recognising a Party as such in the House it must have a strength equal to the quorum of the House (55 in the present context).
The LS Sectt. pointed out that the LoP was of critical importance for selecting candidates for appointment to the Central Information Commission, Central Vigilance Commission, the National Human Rights Commission and the Central Bureau of Investigation (CBI). The recommendation was to take a considered decision on the basis of examination of these divergent views about the INC’s claim to the office of the LoP.
In July, 2014, the discussions moved towards obtaining the opinion of the AGI. Meanwhile the INC submitted detailed arguments to the Hon’ble Speaker, Lok Sabha in support of its claim to the office of the LoP.

The Attorney General’s Opinion was against recognising INC’s claim to the LoP

On 23 July, 2014, the AGI tendered his opinion (document marked confidential) on the basis of the brief sent by the LS Sectt. The main arguments of the AGI are summarised below for the sake of brevity:
1) The power to recognise a Parliamentary Party or Group for functioning in the House is solely of the Speaker and his or her decision is final. Speaker’s Directions 120-121 set the precedent for the exercise of such power.
2) The provisions of The Salaries and Allowances of Leaders of Opposition in Parliament Act,1977 which contain the definition of the LoP do not govern the procedure for recognising a Member of the House as the LoP. So the issue of recognising the LoP is outside this 1977 law.
3) The Lokpal and Lokayuktas Act, 2013 and the Protection of Human Rights Act, 1993 do not say what becomes of the selection process of the Lokpal and other Members or the Chairperson and other Members of the National Human Rights Commission, if there is no recognised LoP to sit on the selection committee. This is unlike the RTI Act and the laws governing the CVC where the leader of the single largest party in opposition to the government would automatically become a member of the selection committees, if there is no LoP. So, it was argued that these two laws actually contemplate a situation where there may not be a recognised LoP in the Lok Sabha.
So, given these and some other related grounds, the AGI opined, the Speaker need not recognise any member as the LoP if his or her party does not have the numerical strength equal to the quorum of the Lok Sabha (i.e., 55 members).
On 14th August, 2014, a day before India celebrated its 67th year of independence, the Hon’ble Speaker, Lok Sabha sent a letter to the Chairperson of INC/UPA saying it was not possible to accede to her request to appoint Mr. Mallikarjun Kharge, MP as the LoP.

What is problematic with the AGI’s advice?

1) Unlike what the AGI said, a plain reading of the definition of the “Leader of Opposition” clearly indicates that it also contains the procedure for appointing the Lop. Section 2 of the Salaries and Allowances of the LoPs Act, 1977 reads as follows:
“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 “explanation” underlying the definition of LoP in the 1977 Act clearly indicates the procedure that the Speaker Lok Sabha must adopt in order to appoint an LoP, if two parties of similar numerical strength stake their claims. So in my humble opinion, it would be fallacious to argue that the main definition does not contain the procedure for recognition of the LoP when one party in Opposition with the highest numerical strength stakes its claim. This is implied by the very letter of the law and its interpretation need not be twisted into the shape of rocket science. It is unfortunate that the Hon’ble Speaker took the AGI’s advice on this point at face value without re-examining the definition of LoP in the 1977 Act.
2) Whether it is legitimate and correct to place reliance on Directions 120-121 of colonial vintage can be countered by examining the debates on the Salaries and Allowances of LoPs Bill when it was tabled in the Lok Sabha.
In 1977 Parliament rejected the idea of fixing a quota for claiming the LOP’s chair decisively
The Salaries and Allowances of LOPs Bill was tabled in the Lok Sabha on 6th August 1977. It was taken up or discussion two days later, on 8th August. Mr. H V Kamath an MP of the Janata Party and belonging to one of its constituents – the Jan Sangh- a previous avatar of he 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, Mr. Kamath, MP quoted the very same speech of Shri G V 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 numerical strength argument was weighed, 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.
Parliament decisively rejected the idea of recognising the LOP on the basis of past precedents
During the same discussion in the Lok Sabha, Shri 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 and 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 9th August.
So, in light of this evidence, the opinion tendered by the AGI appears to be “truncated” as it does not take into account the context of the debate on the Salaries and Allowances of LoPs law. Records obtained under the RTI Act also do not indicate any attempt from the Speaker’s office or the Lok Sabha Sectt. to cross verify facts from their own records about what was debated in the Lok Sabha.
Had a thorough research on the issue been undertaken by the AGI or his colleagues or his subordinates or any of the favourite “think tanks” of the Government (which are putting forth outlandish arguments in the Aadhaar case), there would have been no need to amend Section 4(1) of the Lokpal and Lokayuktas Act. The Lokpal could have been set up and made operational by now. Unfortunately, this much-needed institution is yet to be born, thanks to the game of one-upmanship being played in the political establishment.
Although the official records, file notings and the AGI’s opinion were obtained under RTI in 2015, I was waiting for the opportune moment to make them public. There cannot be a more appropriate time than the present for so doing.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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