On Friday, the Supreme Court issued an ultimatum to the Centre while hearing a petition challenging the selection process for the Lokpal bill: either break the stalemate over the Leader of the Opposition in Parliament within four weeks, or it will decide the matter as it deems fit. The question of who shall be the LoP was not before the court, but was raised because it is crucial to the appointment process of many significant constitutional positions, in bodies such as the National Judicial Appointment Commission, the Public Accounts Committee, the Central Vigilance Commission, Central Information Commission, National Human Rights Commission.
On August 19, Bharatiya Janata Party’s Sumitra Mahajan, Speaker of the Lok Sabha, ruled that the Congress, the secon- largest party, was not eligible to appoint the LoP since it had only 44 seats. Ten percent of the total strength of the House is needed to stake a claim, which is conventionally pegged at 55 seats – the Lok Sabha has 543 seats.
Mahajan was acting on the advice of the Attorney General, who based his opinion on past practice – during Jawaharlal Nehru’s tenure as Prime Minister there was no Leader of Opposition – and rules framed by GV Mavlankar, the first Speaker of the Lok Sabha. In 1956, Mavlankar put in place the “10% rule” that is at the heart of the current controversy.
Why the 10% rule is contentious
The dispute arises because all the rules regarding the functioning of the Houses of Parliament are not cast in stone. Rulings and provisions by various authorities overlap and even collide. There are Constitutional prescriptions, as well as legislation targeting specific aspects over the years. In addition, a great deal of Indian Parliamentary practice, procedure and privilege derives from the conventions followed by the Houses of Parliament in England, with modifications appropriate to India if needed.
On a number of occasions, the Supreme Court has ruled on how such practices are to be adapted in India. These judgments have counted as binding precedent. But the simple truth is that all of this does not matter in the LoP case, because conventions and prior practice only come into play in the absence of any specific legislation. But LoP issue was legislated upon more than three decades ago, something that the Attorney General and Speaker have ignored by pointing to Nehru and Mavlankar.
Section 2 of the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 defines the LoP as the leader chosen by “the party in opposition to the Government having the greatest numerical strength”. It is quite clear, then, that the second-largest party in the House – which today is the Congress – is empowered to nominate the Leader of the Opposition. The statute makes no mention of the relative strength of the nominating party.
Nor has the matter been addressed in subsequent legislation.
The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998, which details the mechanisms for the recognition of leaders of various Parliamentary parties and groups, also does not say anything about the 10% rule.
In a 2010 compilation of Parliamentary rules, entitled Directions by the Lok Sabha Speaker, paragraphs 120-122 deal with conditions for the recognition of different parties and groups. There is no mention of the 10% rule, or relative seat strengths, there. The relevant provisions speak only of the party that has accumulated the largest number of seats after the one that forms the government.
Direct contravention
It is evident that the Speaker’s decision is in contravention of something that has been unambiguously expressed in Indian law. The Constitution positions the Speaker as the neutral head of the House, eschewing, to the degree possible, political loyalty so as to maintain Parliamentary neutrality.
As the Constitutional scholar Philip Laundy puts it, “a Speaker is, or should be, one of the trustees of a nation’s liberties. On his fair interpretation of the rules of procedure depends the protection of the rights of the members. In protecting these rights he is protecting the political freedom of the people as a whole.”
It seems unlikely that the Supreme Court will be allowed to decide who is recognised as the LoP.
First, the Court has already taken a stand on the matter itself. On August 8, it dismissed a public interest litigation challenging the Attorney General’s opinion in the matter, saying that it was premature, and that the judiciary would not be drawn into an essentially political question.
The second reason goes back to 2006, to an epic showdown between the legislature and judiciary. 11 BJP MPs had been expelled from the Lok Sabha after being found guilty of accepting bribes to raise questions in Parliament. They challenged the Speaker Somnath Chatterjee’s decision in the Supreme Court. But Chatterjee convened an all-party meeting where it was unanimously decided that it was the exclusive prerogative and privilege of the House to decide on disciplining its own members. The expelled MPs nonetheless went to the Supreme Court, which ruled against them.
Where there’s a will
The longer the impasse over recognising a Leader of the Opposition runs, the greater the danger it poses to the reputation of the Parliament in India. While the LoP is an important position, there is the greater consideration of subversion of the immutable Constitutional values of transparency and accountability.
It is with this in mind that the Supreme Court could go ahead and make a decision on the matter in the next hearing of the Lokpal selection petition. Let us return again briefly to the fallout of the expulsion of the 11 BJP MPs.
In its 2007 judgment in the case of Raja Ram Pal, one of the disqualified MPs, the Supreme Court held that although the Parliament is supreme, unlike Britain, in India it does not have unbridled powers to ride roughshod over Constitutional principles and values. If there is evident illegality or the actions of any Parliamentary authority seem to have been driven by the purpose of subverting fundamental Constitutional values, it is incumbent upon the judiciary, sentinel of the Constitution, to intervene. The judgment drew strength from the 1964 decision of seven Supreme Court judges that unequivocally upheld the judiciary’s power to scrutinise the Speaker and Houses’ actions.
If there is no resolution on the matter in a month’s time, the Supreme Court might well go back on its reluctance to enter the political thicket.
Saurav Datta manages SCOIblog , an initiative of Vidhi Centre for Legal Policy, Delhi.
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On August 19, Bharatiya Janata Party’s Sumitra Mahajan, Speaker of the Lok Sabha, ruled that the Congress, the secon- largest party, was not eligible to appoint the LoP since it had only 44 seats. Ten percent of the total strength of the House is needed to stake a claim, which is conventionally pegged at 55 seats – the Lok Sabha has 543 seats.
Mahajan was acting on the advice of the Attorney General, who based his opinion on past practice – during Jawaharlal Nehru’s tenure as Prime Minister there was no Leader of Opposition – and rules framed by GV Mavlankar, the first Speaker of the Lok Sabha. In 1956, Mavlankar put in place the “10% rule” that is at the heart of the current controversy.
Why the 10% rule is contentious
The dispute arises because all the rules regarding the functioning of the Houses of Parliament are not cast in stone. Rulings and provisions by various authorities overlap and even collide. There are Constitutional prescriptions, as well as legislation targeting specific aspects over the years. In addition, a great deal of Indian Parliamentary practice, procedure and privilege derives from the conventions followed by the Houses of Parliament in England, with modifications appropriate to India if needed.
On a number of occasions, the Supreme Court has ruled on how such practices are to be adapted in India. These judgments have counted as binding precedent. But the simple truth is that all of this does not matter in the LoP case, because conventions and prior practice only come into play in the absence of any specific legislation. But LoP issue was legislated upon more than three decades ago, something that the Attorney General and Speaker have ignored by pointing to Nehru and Mavlankar.
Section 2 of the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 defines the LoP as the leader chosen by “the party in opposition to the Government having the greatest numerical strength”. It is quite clear, then, that the second-largest party in the House – which today is the Congress – is empowered to nominate the Leader of the Opposition. The statute makes no mention of the relative strength of the nominating party.
Nor has the matter been addressed in subsequent legislation.
The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998, which details the mechanisms for the recognition of leaders of various Parliamentary parties and groups, also does not say anything about the 10% rule.
In a 2010 compilation of Parliamentary rules, entitled Directions by the Lok Sabha Speaker, paragraphs 120-122 deal with conditions for the recognition of different parties and groups. There is no mention of the 10% rule, or relative seat strengths, there. The relevant provisions speak only of the party that has accumulated the largest number of seats after the one that forms the government.
Direct contravention
It is evident that the Speaker’s decision is in contravention of something that has been unambiguously expressed in Indian law. The Constitution positions the Speaker as the neutral head of the House, eschewing, to the degree possible, political loyalty so as to maintain Parliamentary neutrality.
As the Constitutional scholar Philip Laundy puts it, “a Speaker is, or should be, one of the trustees of a nation’s liberties. On his fair interpretation of the rules of procedure depends the protection of the rights of the members. In protecting these rights he is protecting the political freedom of the people as a whole.”
It seems unlikely that the Supreme Court will be allowed to decide who is recognised as the LoP.
First, the Court has already taken a stand on the matter itself. On August 8, it dismissed a public interest litigation challenging the Attorney General’s opinion in the matter, saying that it was premature, and that the judiciary would not be drawn into an essentially political question.
The second reason goes back to 2006, to an epic showdown between the legislature and judiciary. 11 BJP MPs had been expelled from the Lok Sabha after being found guilty of accepting bribes to raise questions in Parliament. They challenged the Speaker Somnath Chatterjee’s decision in the Supreme Court. But Chatterjee convened an all-party meeting where it was unanimously decided that it was the exclusive prerogative and privilege of the House to decide on disciplining its own members. The expelled MPs nonetheless went to the Supreme Court, which ruled against them.
Where there’s a will
The longer the impasse over recognising a Leader of the Opposition runs, the greater the danger it poses to the reputation of the Parliament in India. While the LoP is an important position, there is the greater consideration of subversion of the immutable Constitutional values of transparency and accountability.
It is with this in mind that the Supreme Court could go ahead and make a decision on the matter in the next hearing of the Lokpal selection petition. Let us return again briefly to the fallout of the expulsion of the 11 BJP MPs.
In its 2007 judgment in the case of Raja Ram Pal, one of the disqualified MPs, the Supreme Court held that although the Parliament is supreme, unlike Britain, in India it does not have unbridled powers to ride roughshod over Constitutional principles and values. If there is evident illegality or the actions of any Parliamentary authority seem to have been driven by the purpose of subverting fundamental Constitutional values, it is incumbent upon the judiciary, sentinel of the Constitution, to intervene. The judgment drew strength from the 1964 decision of seven Supreme Court judges that unequivocally upheld the judiciary’s power to scrutinise the Speaker and Houses’ actions.
If there is no resolution on the matter in a month’s time, the Supreme Court might well go back on its reluctance to enter the political thicket.
Saurav Datta manages SCOIblog , an initiative of Vidhi Centre for Legal Policy, Delhi.