BY: K.C. MITTAL
The Salary and Allowances of Leaders of Opposition in Parliament Act nowhere prescribes a 10 per cent minimum strength as a criterion.
Subhash C. Kashyap, former secretary general, Lok Sabha, in ‘Opposition without a head’ (IE, May 29) expressed the view that, for being a “recognised party” in the House, 10 per cent minimum strength is required. As such, a member of the House belonging to a political party, even when it holds greatest numerical strength, is not entitled to leader of opposition (LoP) status in the absence of a 10 per cent strength. The debate may be a little premature, but since a public perception is being built, we need to understand the issue.
The LoP, apart from House duties, has many statutory functions to discharge in selections to high office. In the appointments of the Lokpal or judges, if the constitutional amendment is carried out, the LoP plays a crucial role. The underlying idea is to involve the opposition in major government decisions. The question is who the LoP can be and whether a 10 per cent strength is mandatory. With due respect, the view expressed by some experts is not legally tenable.
Their emphasis on Direction 121(c) by the speaker of the Lok Sabha, prescribing 10 per cent strength as one of the conditions for the LoP, is an arbitrary interpretation. Such a direction can beissued by the speaker only to regulate a matter not specifically covered by an act or the rules, and if the field is occupied, any such direction is unenforceable. In the case of the LoP, the field is occupied by a statutory provision, namely the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977, which will override any direction contrary to the spirit of the act. That being the position, Direction 121(c) is of no consequence.
It must be understood that this act nowhere prescribes a 10 per cent minimum strength as a criterion for the LoP — rather, it mentions the “greatest numerical strength” as the dominant requirement. Some amount of confusion is created because of the use of the words, “recognised as such by the speaker”. Does this mean that the speaker can ignore the greatest numerical strength and pick a party having less numerical strength in comparison to the one with the biggest number? Such a situation is difficult to comprehend.
Everyone seems to be missing the meaningful explanation added to the definition of the LoP in the basic act, which has never been amended. Imagine a situation where the numerical strength of two parties is the same. The power is then given to the speaker to recognise any one of the leaders of such political parties as the LoP. His decision is final and conclusive but in the case of the “greatest numerical strength”, there is no scope for doubt. Why is such confusion being created in the minds of the public?
The terms “LoP”, “recognised party”, “recognised group” and “legislature party” are used in different legislation and the 10th Schedule of the Constitution in different contexts. Let there be no overlap to create confusion. In 1998, a separate legislation was enacted by Parliament, the Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998. A party having a strength not less than 30 and no more than 54 members in the Lok Sabha would be known as a “recognised group”.
A party having a strength of not less than 55 members in the House would be a “recognised party”. It has no application to the LoP but provides for facilities to the leaders and chief whips of recognised parties and groups in Parliament. By the 10th Schedule of the Constitution, which deals with the disqualification on the ground of defection, even a lone member of a political party in the House would have a “legislature party” by their name.
Kashyap does not dwell on the matter of who else the LoP could be, if not the opposition party with the greatest number and on what basis. Certainly it cannot lead to a limbo. How can appointments be made or other statutory functions discharged in the absence of an LoP or through an illegally appointed LoP? Such a situation will open the floodgates of litigation. In a democracy, the opposition can never be without a head.
The writer is an advocate and secretary, AICC