Monday, May 19, 2014

Guest Post: A Response Regarding the 10% Rule

--> [This is a guest post from H.R. Vasujith Ram, Third Year, BA LLB (Hons.), The West Bengal National University of Juridical Sciences, Kolkata]

Several rumours have been floating around in the media (see here and here) that the 16th Lok Sabha will not have a Leader of the Opposition, since no party in the opposition has managed to bag at least 54 (or 1/10th) the seats in the 2014 elections. In this regard, there was a guest post on Law and Other Things, arguing that the 1/10th Rule is simply a canard. This blog offers a slightly different perspective.

The Leader of the Opposition in the Lok Sabha is statutorily recognized by the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 (‘The Act’). The Act provides for certain privileges, allowances and facilities to be accorded to the said Leader of the Opposition. In addition, the Speaker also provides privileges and facilities to the Leader.

S. 2 of the Act defines ‘Leader of the Opposition’:

Definition :—In this Act, “Leader of the Opposition”, in relation to either House of Parliament, means that member of the Council of States or the House of the People, as the case may be, who is, for the time being, the Leader in that House of the party in opposition to the Government having the greatest numerical strength and recognised as such by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.

Explanation .—Where there are two or more parties in opposition to the Government, in the Council of States or In the House of the People having the same numerical strength, the Chairman of the Council of States or the Speaker of the House of the people, as the case may be, shall, having regard to the status of the parties, recognise any one of the Leaders of such parties as the Leader of the Opposition for the purposes of this section and such recognition shall be final and conclusive.

It is quite clear that there is no such statutory prerequisite of having at least 1/10th the seats. The guest post surveys the abovementioned enactment as well as the The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998 along with the Directions by the Lok Sabha Speaker (8th edn.) and the Rules of Procedure and Conduct of Business in Lok Sabha, coming to the conclusion that the said rule is a media creation.

However, S. 2 of the definition states that leader of the opposition is the leader of the party i) in opposition with the greatest numerical strength and ii) recognized by the Speaker. According to the Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, a recognized party in the Lok Sabha is one which has at least 54 seats. Further, as per Rule 121 of the Directions by the Speaker [issued] under Rule 389 of the Rules of Procedure and Conduct of Business in Lok Sabha, one of the conditions for ‘recognition’ of a Parliamentary Party is that its strength must be at least equal to the quorum mandated for a sitting of the House, i.e., at least 1/10th of the strength of the House. Therefore, this may be the genesis of the 1/10th Rule.

In Karpoori Thakur vs State Of Bihar, the petitioner whose party had 42 seats in the Assembly was declared as the Leader of the Opposition. However, following a split in the party which reduced its strength to 31 seats (less than 1/10th of the strength of the Assembly), the petitioner’s recognition as the Leader of the Opposition was cancelled. This was challenged on the basis of S.2 of the Bihar Legislature (Leaders of Opposition Salary and Allowances) Act, 1977, which is reads similar to S.2 in the abovementioned parallel statute for the Parliament. The Respondents had two counter-arguments. First, was on the grounds of maintainability, since A. 212 provides that:

(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

While the Court noted the distinction between illegality and unconstitutionality vis-a-vis “irregularity of procedure”, it did not decide on the question of maintainability, and proceeds on the basis of an assumption of that it is maintainable. The second counter was based on S. 2 itself. To reiterate, S. 2 provides the conditions to be declared as the Leader of Opposition: (i) he should be leader of a party having the greatest numerical strength, and (ii) he should be recognised as such by the Speaker [note the presence of "and" in S. 2].  It was argued that the second aspect of recognition by the Speaker is independent of the first aspect, i.e., merely having the greatest numerical strength, and further, that recognition is usually accorded if the the party concerned has one-tenth of the numerical strength of the House. The Patna High Court accepted this argument and held that the Speaker’s decision is not on the basis of anything mentioned in the Act, but on the basis of established practice. Since the established practice was followed, there was no question of any illegality or unconstitutionality.

The decision in AK Subbaiah v Karnataka Legislature Secretariat may also be noted. The petitioner contended that “as per the Rules and the convention of the House it is only that party in the Opposition which has got 1/10th of the effective strength of the House alone [which] is entitled to have one of its Members recognised as a Leader of the Opposition”, and therefore the recognition of the Respondent, whose party did not have 1/10th of the seats, is invalid. The Court squarely held, “the question as to who should be recognised as the Leader of the Opposition is a question which squarely lies within the jurisdiction of the Speaker and it is for him and him alone to decide.” This emphasises the discretion of the Speaker.

From the above cases, the takeaways are as follows: i) Reading Karpoori Thakur and AK Subbaiah together, even though an opposition party may have the highest numerical strength, it is the Speaker’s discretion to recognize a leader of that party as the Leader of the Opposition - the prevailing convention being the 1/10th rule (emerging from established practice), ii) While irregularity of procedure in the Parliament cannot be called into question in a Court (A. 122), it is unclear if the non-selection of the Leader of the Opposition whose party has less than 1/10th the seats is merely an irregularity of procedure (since Karpoori Thakur assumes maintainability).

As the blog mentioned above lists, in the last few years, the Leader of the Opposition now plays an important role in the selection of several crucial statutory bodies such as the CVC, NHRC, Lokpal, etc. In case of the appointment of CIC and CVC, the respective provisions in the statutes (S. 12(3) of the Right to Information Act, 2005 and S. 4 of The Central Vigilance Commission Act, 2003) state that when there is no recognized Leader of the Opposition, the Leader of the single largest group in opposition to the ruling Government may be the ‘Leader of Opposition’. This is an acknowledgement that there need not necessarily be a recognized Leader of the Opposition.

However, since there is no such provision in case of appointments at the NHRC and Lokpal, it is important that there be a recognized Leader of the Opposition – especially since the respective statutes state that the appointments cannot be challenged on grounds of vacancy in the selection committee. One may note that the Lok Sabha had no Leader of the Opposition until 1969. But in 1984, in the 8th Lok Sabha, the Telugu Desham Party (TDP) had only 30 seats, but had the highest numerical strength among all political parties in opposition. Despite the numbers, P Upendra of the TDP was recognized as the Leader of the Opposition.
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