Who will be the leader of the Opposition in the new Lok Sabha?

Nothing turns on the hair-splitting argument that the Congress does not have 55 seats because that is not a legal requirement to be the single largest legislature party in Opposition in the Lok Sabha, says Venkatesh Nayak.

The billion-rupee question at the moment seems to be, who will be Leader of the Opposition in the 16th Lok Sabha?

Retired secretaries general of the Lok Sabha have expressed conflicting views based on their interpretation of relevant laws and directions of the Speaker.

I have delved into the subject and have put forward the following additional arguments in support of my view that the political party with the largest representation in the Lok Sabha which is not part of the National Democratic Alliance will and must be the principal opposition party and consequently its leader, the Leader of the Opposition.

The pre-1998 situation

Prior to the enactment of the Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act in 1998, the issue regarding who would be the LOP was decided solely by the Speaker of the Lok Sabha under the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977.

The Speaker had the power to recognise an MP as LOP if he was the elected leader of the single largest party in Opposition in the House. If two political parties of similar numerical strength in the House laid claim to that post, the Speaker had the discretion to recognise one of their leaders as LOP taking into consideration the status of such parties.

What 'status' means is not defined in this law. It may have meant whether the parties were recognised as national or state-level political parties. There could be other considerations as well. This is why leaving such discretion with the Speaker made sense.

What happened (or did not happen) in 1998?

The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, was enacted in 1998 in order to lay down the criteria for recognising parliamentary parties and groups based on their respective numerical strength and also to allot them facilities such as room, a telephone and a stenographer in the parliamentary premises.

Now a bunch of MPs will be recognised by the Speaker as a parliamentary party only if it has a strength of at least 55 members. Groups of 30-54 MPs claiming allegiance to a single political party would be recognised as parliamentary groups.

Read with Directions 120-121 of the LS Speaker, this extends to issues such as allotment of seats in the Lok Sabha and allotment of committee rooms for the MPs to meet and discuss issues in Parliament.  

The purpose of this law, in my humble opinion, is nothing more than providing such facilities to leaders of such parties and groups. It does not extend to the issue of making a decision about the LOP or which party should be recognised as the principal opposition party in either House of Parliament. 

Please note that the 1998 law does not state that it overrides the 1977 law simply because, the purposes of the two enactments are very different. So technically speaking, the 1998 law did not touch the field covered by the 1977 law at all.

When the 1998 law is applied to the 16th Lok Sabha, the Bharatiya Janata Party (and not the National Democratic Alliance) will be the only recognised parliamentary party and the Indian National Congress, the All India Anna Dravida Munnetra Kazhagam and the All India Trinamool Congress will be the only recognised parliamentary groups. Due to shortfall in numbers, none of the other legislature parties will get either status.

What does the Tenth Schedule say?

The basic law relating to defection of MPs from one political party to another in Parliament or state legislatures and their subsequent disqualification or otherwise was inserted in the Constitution through the 52nd amendment, in 1985. The Tenth Schedule to the Constitution, as amended subsequently, contains this law. Para 1(b) defines a "legislature party" as follows:

“Legislature party”, in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions;"

Para 2 contains the grounds on which an MP may be disqualified for defection from his/her 'legislature party'. Para 4 contains some exceptions to the disqualification provisions in case of merger of legislature parties or their breakaway groups. 

It must be noted that under the Tenth Schedule to the Constitution, legislature parties always stand in a clear and established relationship with the original political parties that they represent in Parliament. Para 1(c) defines original political parties as follows:

“Original political party”, in relation to a member of a House, means the political party to which he belongs for the purposes of subparagraph (1) of paragraph 2;"

Sub-para (1) of Para (2) refers to the political party on whose ticket an MP contested the elections to Parliament. There is no recognition or reference to pre-poll or post-poll alliances of parties nor is there any reference to the LOP in the Tenth Schedule.

So the umbilical relationship between the political party outside Parliament and its elected representatives forming the 'legislature party' within the Lok Sabha is undeniably established in the Tenth Schedule. 

A mere statute of Parliament cannot override constitutional law. A legislature party does not stop representing its parent political party simply because it does not have the requisite numbers in Parliament or legislature. In effect a legislature party is a sub-set of the larger political party it represents in Parliament.

The purpose of the Tenth Schedule is pure and simple -- laying down the relationship between a political party outside Parliament/state legislature and the respective legislature parties in Parliament and also the law to combat unethical defection of MPs from one party to another.

Inference drawn from a combined reading of these laws

The following inferences can be drawn from a combined reading of these legal provisions:

a) The Indian National Congress, despite being a parliamentary group, will still be a 'legislature party' for the purpose of the Tenth Schedule to the Constitution;

b) In terms of numbers of seats, the INC will still be the single largest party in Opposition in the Lok Sabha. 

c) Ergo, the INC's leader's claim to the office of the LOP will only be legal and legitimate as per the definition of LOP given in The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977.

As for Directions 120-12 contained in the Directions of the Speaker, experts on the subject have this to say: 

‘However, during the deliberations in the Janata Dal case under the Tenth Schedule to the Constitution, the provisions of the Tenth Schedule to the Constitution came in for in-depth scrutiny.

‘In the context of the breakaway groups that emerged due to splits in the legislature parties in the Lok Sabha, a view came to be established that accord of recognition to political parties came within the sole domain of the Election Commission of India.

‘Consequently, from the Eleventh Lok Sabha onwards, while legislature parties continue to enjoy certain functional facilities on the basis of their numerical strength in the House, the practice of according recognition by the Speaker in terms of Directions 120 and 121 was done away with.’ (emphasis provided and footnote omitted).

(See G C Malhotra (ed.) M N Kaul and S L Shakder's Practice and Procedure of Parliament, fifth Edn., Lok Sabha Secretariat, New Delhi, 2004, p. 360).

Indeed, the Election Commission has recognised the Congress as a national political party. Its members in the 16th Lok Saha constitute its 'legislature party' and also the principal opposition party. Due to their numerical strength, their leader can legitimately stake a claim to the LOP's office irrespective of anything contained in Directions 120-121 of the Speaker or the Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998. 

Nothing turns on the hair-splitting argument that the Congress does not have 55 seats because that is not a legal requirement to be the single largest legislature party in Opposition in the Lok Sabha. 

Hypothetically speaking, if the ruling party/alliance had secured 542 of the 543 seats, the lone member of the Opposition would still be a legislature party and also its leader for the purpose of the Tenth Schedule, unless he/she won the seat as an independent candidate. So he/she would still legitimately stake his/her claim to the office of the LOP.

I have said enough. Now let us wait for the Speaker's decision.

Image: Congress president Sonia Gandhi and vice president Rahul Gandhi.

Venkatesh Nayak is Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative.