Monday, August 11, 2014

Guest Post: Situating the Opposition--The Hypocrisy of Misrepresentative Government

Guest post by M. S. Ganesh and Venkatesh Nayak. M. S. Ganesh is Senior Advocate, Supreme Court of India and Venkatesh Nayak is with the Commonwealth Human Rights Initiative, New Delhi.


Somebody is not telling the truth. That is not an option. Or else somebody is profoundly innocent of constitutional law, praxis, conventions and Acts of Parliament. Ignorance of law is no excuse either.

The current imbroglio on situating the Opposition and its Leader in the Lok Sabha is a pernicious and diabolic undermining of representative democracy by those in – and with – Government. Potentially it is the Fourth Reich: it would take the Svast out of Svastika.

The reported opinion of the Attorney General to the Lok Sabha Speaker’s Office is that the Leader of the Opposition (LOP) can emerge only from a party that has a numerical strength of one tenth of the total membership of the House (See Kaul and Shakdher, Practice and Procedure of Parliament, 5th edn., 2001). The sole authority cited for this opinion is a parliamentary precedent established by a ruling / direction of the Speaker way back in 1956. However, these authors point out that “from the Eleventh Lok Sabha onwards, … the practice of according recognition by the Speaker in terms of Directions 120 and 121 was done away with” (id. at page 360).

In any event, the opinion of the Attorney General is confuted by (a) the constitutional provisions, (b) the parliamentary debates, (c) the enacted statute and (d) constitutional convention as codified and crystallised in that regard.

The Constitutional Provisions
Article 118(1) empowers each House of Parliament to “make Rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business”.

It is under this explicitly qualified sanction that the Rules of Procedure and Conduct of Business in the Lok Sabha have been framed. Clearly, these Rules cannot override or be antithetical to a law enacted on the subject by Parliament itself.

The Rules of Procedure do not deal with the recognition of the LOP by the Speaker. Rule 389 merely provides that all matters not specifically provided for in the Rules and all questions relating to the detailed working of these Rules shall be regulated in such manner as the Speaker may, from time to time, direct. Necessarily, even these omnibus residuary powers have to be read “subject to the provisions of this Constitution”.

The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 (LOP Act) is traceable to Entries 73 and 74 of the Union List in the Seventh Schedule of the Constitution. Entry 73 deals with salaries and allowances of Members of Parliament (MPs) while Entry 74 deals with the powers, privileges and immunities of each House and of its Members. It would be futile and ludicrous to contend that the Speaker can ordain and observe a parliamentary practice at odds with a law enacted by Parliament. Moreover, the constitutional principle is that the donee of a limited power cannot enlarge it into an unlimited one by the exercise of that power.

The Parliamentary Debates
The Statement of Objects and Reasons of LOP Bill explicitly declared: “Having regard to the important role of the Leader of the Opposition in a Parliamentary Democracy, it is considered that the Leaders of Opposition in the House of the People and the Council of States should be accorded statutory recognition and given salary and certain other facilities and amenities to enable them to discharge their functions in Parliament”.

The definition of the LOP in the Bill made a pointed departure from prevailing parliamentary practice / the Speaker’s Directions. It confined its scope to “the party in opposition to the Government having the greatest numerical strength”, and did not relate that strength to the total membership of the House at all.

In the ensuing debate in the Lok Sabha (without any demur in the Rajya Sabha), Hari Vishnu Kamath (Janata Party) moved amendment #15 to specify that the strength should be not less than one sixth  of the total membership of the House. The amendment was put to vote and negatived.

Alternatively, Samar Mukherjee (CPI-M) sought amendment #23 that the Opposition Party must be one “recognised as such by the convention and practice of the Parliament”. That amendment too was put to vote and negatived. In the result, Section 2, as it stands today was adopted (L S Debates, Vol. VI, August 8th 1977 at cc 105-108)

It is of some moment that many Members in these debates belonged to a previous avatar of the present ruling party.

The LOP Act
Section 2 defines LOP to mean that Member who is, for the time being “the Leader in the House of the party in opposition to the Government having the greatest numerical strength and recognised as such by … the Speaker…”.  With such explicit statutory language, there can be no implied recognition or prescription of a quota, as suggested in some quarters that ought to know better. Besides, Kaul and Shakder point out: “[T]he Speaker has only those powers which are given to him by the House or the Rules. He cannot start a new procedure of his own” (op. cit., page 122).

The Constitutional Convention
Once a convention is codified and crystallised, in a statute, the enactment prevails. It cannot be coloured and obfuscated by extraneous considerations. The Speaker’s Directions nos. 120 and 121 regarding recognition of a parliamentary party / group invoked are wholly irrelevant to the terms and operation of the LOP Act.

A leading English authority was convinced that: “[N]o matter how entrenched constitutional safeguards may be, in the final analysis it is the strength of character, personal integrity and depth of commitment to the principles of independence and the impartial representation of the public interest, on the part of holders of the office of Attorney General which is of supreme importance… It is these kinds of situations that induce widespread disillusionment with the ideals associated with democratic government” (John Ll. J. Edwards, The Attorney General, Politics and the Public Interest, 1984, page 67).


It is moot whether the desiderata have been met. The alternative is to write a new canon – DisMay’s Parliamentary Practice.
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