SC dismissed a PIL to give Congress leader the post of the Leader of the Opposition
The Hon'ble Supreme Court recently dismissed a Public Interest Litigation (PIL) suit where a petitioner prayed for that the Indian National Congress Party's leader be given the post of the Leader of the Opposition (LOP) in the Lok Sabha. The Hon'ble Court is said to have made two observations while dismissing the petition:
a) The Court cannot examine the correctness of the decision of the Speaker of the Lok Sabha made on the Floor of the House through its power of judicial review; and
b) the Petitioner ought to have done his homework well before approaching the Court.
Well, some of us advocators of the rule of law believe in doing our homework to the best of our abilities (a bad habit from school days cultivated to escape punishment from the teacher for shoddy work) but first, it is important to recount the background to this issue.
What is the core issue?
Readers will remember, that upon being prompted by one of you, I have begun writing on this issue since May, immediately after the results of the General Elections to the 16th Lok Sabha were announced. Those views have been reported in both the print media and various blogs. I thank all of you who thought it fit to publicise my email alerts on this subject. I have tried to argue how the law could be interpreted to ensure that the LOP's chair does not remain vacant.
Simultaneously, some 'experts' who spent a career serving or watching Parliament also wrote about this issue explaining why no party qualified for the LOP's chair in the current Lok Sabha. Some have even suggested that the LOP's chair should remain vacant and that amendments be made to the laws that require the LOP to be a member of the committee mandated to select candidates for appointment to the Central Information Commission (CIC), the National Human Rights Commission and the yet to be constituted Lokpal, amongst others. A news story appearing in a leading English language daily today has reported on the dilemma of the National Democratic Alliance (NDA) over the selection of the next Chief Information Commissioner of the CIC in the absence of the LOP. Read the story at: http://timesofindia.indiatimes.com/india/With-no-leader-of-opposition-govt-in-a-spot-over-appointment-of-CIC/articleshow/40144197.cms
There is only one argument based on a laboured interpretation of the provisions of the applicable laws and precedents that proponents of the idea of keeping the LOP's chair vacant, have used. However it has two aspects-
a) that any party that lays a claim to the LOP's chair must have at least 10% of the seats in the Lok Sabha and
b) that the parliamentary conventions that have come into existence since the first Lok Sabha (constituted in 1952) alone should be used to determine this issue.
A corollary to this argument is that the issue can be decided only by the Speaker of the Lok Sabha in exercise of her discretionary powers subject to these parliamentary conventions.
The media has also reported on some contents of the ‘legal’ opinion that the Learned Attorney General of India (AGI) is said to have tendered to the Speaker of the Lok Sabha on this issue. While the opinion itself has not been released in the public domain officially even in the age of RTI, media reports indicate that the AGI’s opinion if accepted may result in the LOP's chair remaining vacant for the life of this Lok Sabha.
Results of some new homework done on the issue of the Leader of the Opposition
The argument in favour of filling up the chair of the LOP which I have been putting forth in various email alerts till date, is also based on one premise - namely, the interpretation of the definition of the term "Leader of the Opposition" given in Section 2 of The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 (LOP Act). The LOP means: the Leader of the party in Opposition to the Government which has the greatest numerical strength and recognised as such by the Speaker.
This definition is plain and simple but critics have pointed out that the Speaker's Directives #120-121 which stipulate 10% as the minimum strength for a group of MPs to be recognised as a Parliamentary Party will also have to be satisfied to stake a claim the chair of the LOP. This amounts to second guessing Parliament's intent behind the formulation of the definition of the LOP in this Act. None of these critics and perhaps not even the AGI may have gone into exploring Parliament's intention behind adopting the said definition. So how do we ascertain what Parliament had intended when it adopted this definition? Did it want the definition to be subject to any percentage of seats or any existing parliamentary practice or convention?
The mystery about Parliament's intent clears up not by taxing one's grey matter about interpretative preferences but by simply parting the veil of history and looking into the debate on the LOP Bill in Parliament. The LOP Bill was tabled in the Lok Sabha by the then Minister for Parliamentary Affairs and Labour, Mr. Ravindra Varma, on 6th August at 11:28am (see page 12 of the LS debates in the first attachment- corresponding to page 4 of the pdf file). The Bill was debated in detail in the House, two days later- on 8th August from 2:05pm to 4:59pm.
Mr. Hari Vishnu Kamath, MP, tabled amendment #15 which sought to fix 1/6th of the total membership of the Lok Sabha as the minimum number of seats that an Opposition Party must have to lay its claim to the LOP's chair. Mr. Kamath, MP, made a reference to the 10% requirement as stated by the first Lok Sabha Speaker- Mr. G V Mavalankar- while speaking in suppprt of his amendment proposal. He wanted to raise this limit from 10% to 1/6th of the membership of the House. This would have meant that a party with at least 80 seats alone could claim the LOP's chair. The Deputy Speaker who was presiding over the sitting of the House put amendment #15 to vote. This amendment was rejected by the House.
Mr. Samar Mukherjee a CPI-M MP moved amendment #23 which sought to insert a provision in the Bill requiring the Speaker to recognise the LOP as such according to the convention and practice of Parliament. This amendment was also put to vote and rejected by the House (see page 105 onwards corresponding to page 17 of the pdf file. All other amendments moved by these and other MPs were also put to vote and rejected by the House. No amendments were tabled in the Rajya Sabha when it took up the LOP Bill for consideration on 9th August (Rajya Sabha debates are in the 2nd attachment). The Rajya Sabha passed the LOP Bill the same day. In short Parliament considered the LOP Bill as tabled by the Government and gave its approval without changing anything in it.
So the official record of the debates in the Lok Sabha and the Rajya Sabha make Parliament's intention behind the definition of the 'LOP' as clear as a crystal (a la Tom Cruise in the Hollywood flick- A Few Good Men). The single largest party in opposition to the Government can legitimately claim the LOP's chair. There is in my mind no room for any doubt. This record of Parliament's intention also makes it clear that the Speaker has no discretionary powers in this matter. Section 2 of the LOP Act itself explains that discretionary powers will arise only if there are two opposition parties of similar numerical strength and both lay a claim to the LOP's chair. Then the Speaker is required to make a decision having regard to the status of the contending political parties.
While ordinary mortals like me cannot access these debates from Parliament's library when Parliament is in session, the archives at the Nehru Memorial Museum and Library are of invaluable assistance. I thank the staff for providing me access to these parliamentary records within a short time of making a request.
Other constitutional implications of this issue
Not being trained in law formally, I requested Senior Advocate of the Supreme Court, Mr. M. S. Ganesh to help me understand the implications of parliamentary conventions and practices. The constitutional implications of this issue along with these historical facts are condensed in an article which he very generously agreed to write with me. I thank friends who maintain the popular blog:"Law and Other Things" for publishing this article online when four leading national English language dailies in India either did not have enough space for that article or found it too technical and academic to publish when we approached them. I dare not summarise Mr. Ganesh's arguments on the constitutional implications of this issue due to my own intellectual inadequacy. Readers may go through the article accessible at this link: http://lawandotherthings.blogspot.in/2014/08/guest-post-situating-opposition.html
Some ironies manifest themselves when the veil of time is parted
Mr. H V Kamath MP who moved several amendments to the LOP Bill, was a member of the Jan Sangh- a component of the Janata Party which came to power in 1977. Earlier he was a member of the Constituent Assembly which put together the Constitution for India. Strangely, his own colleagues in the Janata Party voted against all of his amendment proposals. The amendment moved by the CPI-M MP to recognise parliamentary practice and convention was also voted out by none other than the Janata Party of which- to repeat- the Jan Sangh was a member. Readers will note that the Jan Sangh is a previous avatar of the Bharatiya Janata Party (BJP) which is the single largest party in the Lok Sabha today and whose supporters and ideologues are doing their best to keep the LOP's chair vacant. So the change of stand about how the LOP's chair must be filled up, is difficult to understand unless one links it to political shenanigans aimed at scoring brownie points.
The role of the AGI in giving an opinion to any constitutional authority in the country also must be seriously interrogated here. This is the second instance that I am aware of where the AGI appears to have given an opinion without covering all aspects of an issue. The first example that I learnt of was the opinion tendered by the AGI under the previous Government that was seeking to exclude the Central Bureau of Investigation from the obligations transparency under the RTI Act. Without wanting to insult the wisdom of the person who was AGI then, it must be said that opinion (which was RTIed by citizens and also leaked to the media) read like a brief written by a lawyer hired by the CBI to argue only for its interests. The public interest imperatives of keeping the CBI squarely within the RTI Act were simply not dealt with in that opinion. The official text of the current AGI's opinion on the LOP issue is not available in the public domain. If media reports are true, then this opinion also seems to have been tendered without considering all aspects of the LOP issue described above. Any AGI when appointed becomes the fist law officer of the Government of India. His/her retainership fees and office facilities are paid for by the taxpaying citizens of this country. He/she speaks for the citizens of this country when he/she appears in any court. It is obvious that citizen taxpayers like me should expect an AGI to tender an opinion keeping the public interest in mind and not become an agency, willingly or unwittingly, of partisan political interests.
All eyes and ears are now focused on the Hon'ble Speaker's next move.