The
Present Part of the Post deals with the Case Laws, Constitutional Assembly
Debates and The Much Cited Directions of the Speaker in 1956 (famously the ‘Malvankar 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. with an addition of addressing the Speaker's directions 120 and 121 made in 1956.
Some Relevant Cases on the Issue of Leader of Opposition in High Courts
In the case of AK
Subbaih v. Karnataka Legislature Secretariat,[1] the
Karnataka High Court held that convention of having a leader of opposition whose
party has secured minimum 1/10th of the effective strength of the House,
is for the House to continue to adhere to or depart from it and the Court will
have no jurisdiction to entertain any petition regarding this issue.[2] In
the case of the Kailash Nath Singh v.
Speaker,[3]
the Allahabad High Court opined that even in the absence of the any guideline on
how to accord the recognition to member as a leader of the opposition, it must
be done as per the prevailing practice and convention. In this case, petitioner
was selected to be the leader of opposition when his party secured 92 seats.
But due to a split in the party, two groups were formed, where the group with
more number of members voted for respondent no. 2 to be selected as the leader
of the opposition. The Speaker recognized the respondent no. 2 to be the new
leader of opposition. The Court held that the principle adopted by the Speaker that
the party in opposition with the largest numerical strength can chose a leader
of opposition, was consistently followed by him when the recognized the
petitioner and then respondent no. 2 as leader of oppositions and hence the
speaker acted within his jurisdiction.
The Patna High Court was presented with the
issue as to whether there is requirement of 10% rule. § 2 of the Bihar Legislature
(Leaders of Opposition Salary and Allowances) Act 1977 that required for a
person to be leader of opposition to be (i) leader of a party having the
greatest numerical strength, and (ii) be recognised as such by the Speaker. The
Court held that if the Speaker recognises any person who is the leader of a
party in opposition having greatest numerical strength as the leader of
opposition, he is doing so on the basis of the practice prevailing and,
therefore, has to follow the other requirements of such practice and
convention, since there is no provision in the Act which enjoins the Speaker to
recognise the leader of a party having the greatest numerical strength, to be
the leader of opposition.[4]
Constitutional Debates on
Requirement of Leader of Opposition
During the Constitutional
Assembly Debates one Mr. Z.H. Lari proposed an amendment to Draft Article 86,
which dealt with the allowances to the members of legislatures after the
commencement of the constitution, that the Leader
of the Opposition should be entitled to get salary payable to a Minister
without Cabinet rank.[5]The
speaker had highlighted the importance of the leader of the Opposition, that such person shall make the party
government realize that they have to face public opinion whenever they take policy
and administrative decisions by contending the opposing views and the amendment
moved must be crystallized in the constitution to erode the psychological
impression that there is only one party rule.
No member whether it spoke for or against
the amendment argued that there is no need of opposition. In fact, the reason
why the amendment was not accepted is because (i) the opposers[6]
thought that merely recognizing the ‘leader of opposition’ does not mean that
it shall be able to organize a party on its own, (ii) there is no embargo on
the Parliament in future to provide for salary to the leader of opposition and
recognize a leader of opposition, if it deems it fit to do so in future.[7]
It is clear that objection (i) does not
imagine the situation where the leader of opposition is selected from a party
in minority in the assembly (which is the current practice), rather it thinks
of a leader of opposition being recognized firstly, then, that leader would organize
a party in opposition and objection (ii) is upheld by the enactment of the Act
1977.
Malvankar Rule and its
Binding Value
There has been much citing here of the directions 120 and 121 framed by the speaker GV Mavlankar in 1956 to hold the binding value of 10 % requirement for the post of leader of opposition. Apart from the fact that post- these directions there is
an express statute in context of Leader of Oppositions in 1977, not expressly
crystallizing the 10% requirement, after the addition of Tenth Schedule and
since the 11th Lok Sabha, there is no need of speaker’s recognition
of parliamentary parties and groups since that was accorded on the basis of an
ascertained minimum strength in the Parliament.[8] So, it
is submitted that now the directions of 120 and 121 are not in practice and any
party with even a single MP can be a parliamentary party in the Parliament.
Conclusion
It is submitted that the decisions of the High Court would not be helpful
since in the (i) Subbaiah case no provision was produced, while the (ii) Kailash Nath
case had a provision that had defined the Leader of opposition as the Member of the Assembly who is for
the time being recognized as such by the Speaker but did not provide for any
other criteria for according such recognition, (para 17 of the case) and
(iii) Kapoori case, 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.
[1] ILR 1993 Karnataka 1137.
(Full Bench)
[3] AIR 1993 All 334.
[4] Karpoori
Thakur v. State of Bihar and Anr., AIR 1983 Pat 86, ¶ 11.
http://164.100.47.132/LssNew/constituent/vol8p5.html,
accessed on 28th May 2014 at 9:54 AM.
[6] Shri T.T. Krishnamachari, Dr. Ambedkar and
Shri M. Ananthasayanam Ayyangar.
[7] Constitutional Assembly Debates, Vol VIII,
Friday, the 20th
May 1949.
[8] Kaul and Shakdher, “Practice and Procedure
of Parliament”, 6th edn.,
2008, p.
386.
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