Office of
the Leader of Opposition and the 10% Rule
The post is a brief part of the paper published in Economic and Political Weekly, Volume 49, Issue 37,
2014 (September 13) accessible at http://www.epw.in/commentary/10-rule-and-lop.html.
Introduction
The conclusion of 16th General Elections with
the Bhartiya Janata Party securing a clear majority with 282 seats,[1]
and forming an NDA Government at the Centre, led to a great deal of interest in
seats secured by other parties.[2]
That interest is astonishingly with respect to a legal question as to whether
the Congress party that secured the next highest number of seats in the Lok
Sabha,[3]
i.e. 44 can provide for a leader of opposition on its own, since it is debated
that the requirement to make a leader of opposition requires a minimum of 10%
seats of the lower house to be secured by a political party. The office of
Leader of opposition is not a Constitutional office in the sense that it has
not been created by the Constitution and owes its existence to Parliamentary
convention according to which he is Leader of the largest recognized opposition
party in the House.[4]
In this blog, I would analyse the decision of the current speaker on the
issue and whether the previous conventions are relevant in light of an express
provision.
I. Indian Central Law Pertaining to Leader
of Opposition
Until 1969, the practice followed in
the Rajya Sabha was to call the Leader of the party in Opposition having the
largest number of the members as the Leader of the Opposition, without
according him any formal recognition, status or privilege.[5]
Prior to the 1977 General Elections to the Lok Sabha, except for a brief spell
of one year (December 1969- December 1970), there had been no official
‘Opposition’ in the sense the term is used in the parliamentary system of
Government.[6]
But since the enactment of Salary and Allowances of Leaders of Opposition in Parliament
Act 1977 (hereinafter “the Act”), the Leaders of the Opposition in the Rajya
Sabha and the Lok Sabha are now accorded statutory recognition and given salary
and certain other facilities and amenities,[7]
which defines “Leader of
Opposition” as that member of the Lok Sabha or Rajya Sabha as the case may be,
who is for the time being the Leader in that House of the party in opposition
to the Central Government having (a) the greatest numerical strength and (b) recognised
as such by the Speaker of the House of People or the Chairman of the Council of
States as the case may be.[8]
II. Speaker’s Decision
The address the issue, the speaker of the current Lok
Sabha Sumitra Mahajan decided that the appointment to the position of the
leader of opposition requires the 10 percent rule.[9]
The Speaker is right in noting the precedents of 1980 and 1984 Lok Sabha, which
did not have a leader of opposition, since the second largest party in 1980
being the Lok Dal (Janata Secular) and in 1984 being the Telegu Desam Party
secured 41 and 30 seats respectively.
Can
Conventions Supersede the Statutory Provision
The decision of the speaker raises another question that
can the above- mentioned instances be termed as conventions and what would be
their scope in the presence of the express provisions of the Act? Conventions are
non- legal rules regulating the way in which legal rules shall be applied.[10]
In Supreme Court AoR Association,[11]
the Court explained the scope of convention (in context of the Constitution) as
to fill up the gaps, solve problems of interpretation since a great deal may be
left unsaid. Therefore, conventions are to supplement the legislation for
convenience,[12]
and cannot supplant it, and holding tradition of 10 percent rule to be mandatory
is tantamount to supplanting the express provision of greatest numerical strength
in the Act, since in case there is less than 10 percent MPs of largest
opposition, the greatest numerical strength provision is rendered redundant.
Conclusion
While the central law defining the ‘leader of
opposition’ is specific with respect to who is to be accorded such status, it
is submitted the argument that there is 10 % rule is not substantiated by any
such inference from these laws. The Leaders and Chief Whips of Recognized
Parties and Groups in Parliament (Facilities) Act 1998 does not explicitly
mention about any such 10% rule and the fixed minimum number to required to
accord the status of a ‘recognized party’, i.e., 55 has nothing to do with the
definition of leader of opposition in the Act 1977. The Act crystallizes what
the framers of the Constitution contemplated that the provision of salaries can
be made whenever the need for opposition is recognized. The provision of
recognition by the speaker is pertinent to be satisfied, but it is submitted
that the satisfaction of the 10% rule is something that may be merely, at most,
a convention not binding on the Speaker, which in light of the necessity of
opposition in Assemblies should be not adhered to.
It is submitted
that (a) if the speaker is allowed the power to recognize, then it can not
allow leader of opposition to be selected even if the largest minority has more
10% seats and (b) allowing such power to speaker to be exercised undermines the
qualification of maximum minority, so that even if the party is the largest
minority it still cannot be recognized. In my view, the recognition of speaker
is only to put an official authorization to the selection of the leader of the
opposition and as seen in the debates to the Constituent Assembly, where no one
objected to there being a leader of opposition but preferred that the Parliament
can provide for Salaries to them in future. So, the Act 1977 cannot be meant to
only provide for salaries and not recognize the requirement for a leader of
opposition.
In the words of Mills, “there is the greatest difference
between presuming an opinion to be true, because, with every opportunity for
contesting it, it has not been refuted, and assuming its truth for the purpose
of not permitting its refutation.”[13]
Since, it is the duty of governments, to form opinions to take actions, the
only way they can know that their opinion is right is if complete liberty of
contradicting and disproving the opinion is given and is there is any error it
can be corrected only by discussion and debate, for the purposes of which the
office of Leader of opposition assumes extreme importance.
[1] http://eciresults.nic.in/, accessed
on 26th May 2014 at 2:51 PM.
[2] http://timesofindia.indiatimes.com/home/lok-sabha-elections-2014/news/Taking-a-dig-at-Congress-Modi-says-non-NDA-parties-may-have-to-form-alliance-for-opposition-status/articleshow/35270766.cms,
accessed on 24th May 2014 at 12:03 PM.
[3] http://eciresults.nic.in/, accessed
on 26th May 2014 at 2:51 PM.
[5]
http://rajyasabha.nic.in/rsnew/council_state/council_state.asp, accessed on 26th May 2014 at 6:51 PM.
[6]
http://164.100.47.132/LssNew/our%20parliament/Folder01.pdf, accessed on 26th May 2014 at 7:51 PM.
[9]
http://timesofindia.indiatimes.com/india/Speaker-rules-out-leader-of-opposition-post-for-Congress-in-Lok-Sabha/articleshow/40447372.cms,
accessed on 23rd August 2014.
[10]
Prof. K.C. Wheare, “The Statute of
Westminster and Dominion Status” (4th edition).
[11] Supreme
Court Adovcates on Record Association and Ors. v. Union of India, JT (1993)
5 SC 479.
[12] SR
Bommai and Ors v UOI, AIR 1994 SC 1918,
¶ 311.
[13] John Stuart Mill, ‘On Liberty’, Chapter 2.
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