An Opposition Delayed Is Democracy Denied

The timely appointment of an officially recognised Leader of opposition is crucial for maintaining democratic polity. 

The need for the opposition has been conceded in parliamentary democracy. If there is no opposition, there is no democracy (Jennings 1959:15). The constant presence of a recognised opposition and the existence of party in opposition, with a programme within limits of possible public opinion, is a bulwark against tyranny, not only of a despot, but also of a fanatical majority (Lowell 1913: 97–98). The purpose of the opposition needs to be understood in this context. A constructive opposition can play a major role in building public opinion against erroneous policies and programmes of the incumbent government. 

In India, the first-past-the-post electoral system allows for both a narrow majority, and an overwhelming majority. A robust opposition is required to ensure democratic functioning when any single party is able to secure a large majority in Parliament. 
In 2014, no single opposition party was able to secure 10% of the Lok Sabha seats, because of which the Speaker of 16th Lok Sabha (LS), Sumitra Mahajan, denied the post of the leader of opposition (LoP) to the Congress. Despite repetitive demands from the Congress, which was still the single largest opposition party with 44 members in the LS, the decision was delayed, and ultimately declined. According to media reports, the Speaker’s decision relied on directions[1] and the past precedent.[2]  

Former secretary generals of the LS have held conflicting views when deciding on the leader of the opposition[3].  Along with some National Democratic Alliance (NDA) leaders, the media has also been responsible for propagating the 10% requirement theory. After the results of the 2019 general elections were declared, the NDA emerged victorious with a massive majority of 353 seats in LS. The Congress could only manage 52 seats, which left it just outside the ambit of the 55 seats it required to meet the 10% criteria.  However, there are no statutes or Speaker’s Directions that have specifically stated the 10% requirement for the post of LoP.

The Opposition in Other Democracies

In the Westminster tradition, parliamentary opposition began to emerge in 17th century. During the 19th and 20th centuries, the opposition in Britain was more or less institutionalised, and finally got statutory recognition in 1937. Since 1832, there has always been opposition in England (Ram 1996: 47). The Ministers of Crown Act, 1937, had a provision of an annual salary of £ 2,000 for the LoP. Interestingly, Canada and Australia had given legal status to the LoP in 1905 and 1920 respectively (Wilding and Laundy 1968: 420). In the United Kingdom Parliament, the official opposition is the party with the second-largest number of seats within the House of Commons, and its leader is the LoP. Section 10 (1) of the 1937 Act defines the LoP: “Leader of the Opposition means that member of the House of Commons who is for the time being the leader in that House of the party in opposition to His Majesty’s Government having the greatest numerical strength in that House.” Notably, it does not prescribe any specific numerical strength for the LoP. In Britain, the opposition is ‘Her Majesty’s Loyal Opposition’ and is treated to be a true institution, and also considered to be a potential government with a shadow cabinet. In the United Kingdom, opposition enjoys special rights and privileges, such as opposition days, opposition questions to the government, and also public funding for opposition groups. These institutional features give the opposition a greater sense of responsibility to the people.

Official Recognition for the Opposition

In 1977, the Janata government passed the Salary and Allowances of Leaders of Opposition in Parliament Act, which accorded statutory recognition, and salary and other privileges to the LoP. Section 2 of the Act defined clearly, and unambiguously who the LoP can be, and explained the procedure for identifying the LoP in both houses. The definition says: 

“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 recognized as such by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.”

The definition clause of the 1977 Act does not mention any 10% membership requirement at all. However, the ambiguity has been created from the General Direction 121 (conditions for party/group recognition) of the Speaker. Direction No121(c) stipulates one-tenth of the total number of members of the House as a requirement for the recognition of a party/group as opposition in Parliament. Here also, it should be noted that this direction is related to the recognition of a party in the House. Nonetheless, this position of recognition of parties according to the Directions of 120-121 had substantially changed after passing the Tenth Schedule of the Constitution (widely referred as Anti-Defection Law, 1985) and the Representation of People (Amendment) Act, 1988[4] (Malhotra 2001:359). 

Directions Redundant after the Anti-Defection Law

According to the Constitutional Law of 1985 (Tenth Schedule), irrespective of the numerical strength of the party, even a single member of a political party in the House is deemed to have a recognised legislature party. Therefore, the criteria for recognition of a party are explicit and clear, and they are not based on the provisions of the Directions of the Speaker. In the light of Tenth Schedule, the well-established precedent, and practice of according recognition to a party has significantly changed. Parliamentary systems follow precedents and practices till the enactment; as soon as these are codified into law, such precedents or directions become redundant. According to the official source, “Practice and Procedure of Parliament” (Kaul and Shakdher 1968), Directions of 120 and 121, which were meant for the recognition of political parties and party groups in Parliament, were no longer operational. However, the numerical strength in the House still continues to be significant for legislature parties only to enjoy certain functional facilities such as granting amenities and services by the Speaker (Malhotra 2001: 360). After all, the Speaker’s Directions or precedents cannot override or contradict any existing statutes or constitutional provisions. The matter of deciding the LoP is conclusively within the ambit of the Speaker of LS. According to the 1977 law, the Speaker could confer the LoP status to the leader of the single largest party in opposition to the ruling party or alliance. Though the Speaker has declined LoP, as a matter of fact, the decision can be challenged in court. 

The vote share of the 2019 NDA government is 44.2% (with a seat share of 353 out of 543 seats) whereas the vote share of all the opposition parties combined is 55.8% (seat share being 190). In terms of vote share, the combined popular support was therefore for the opposition, not for the ruling government.[5] And it is significant how this large section is legitimately represented in a representative democracy. An official or designated opposition is to be seen as an authorised instrument for a cogent representation. 

The Opposition in Practice

The opposition in India, has always been fragmented, and poorly organised, ever since the first Parliament in 1952. The opposition continues to be a divided force, and according to Rajani Kothari (1973), remains short-lived, and shows a lack of sustained and purposive institution-building. The overall result is a broader sphere of oppositional activities which, however, fails to aggregate into an effective force, and consequently often giving rise to frustration and anaemic behaviour (Kothari 1973). Since the 1952 General elections, as the dominant party[6], the Congress had a huge majority in the LS till the 1971 election[7].  Prior to the 1977 election, except for a brief one year period (December 1969 – December 1970), there was no official opposition in the LS. The Congress hegemony in Parliament was broken for the first time in 1977 election after Emergency. The Congress was reduced to 154 seats in LS, and thereafter, except two elections in 1980 and 1984[8],  the party never managed to get a simple majority to form the government. From 1977, an official LoP had customarily been appointed till the 15th LS in 2014 (with the exception of the 7th and 8th LS in 1980 and 1984 respectively)[9].

Though the NDA government and some of its leaders propagated the 10% theory, and kept the post of LoP vacant, the Congress can still be a member of the selection committees of the Central Vigilance Commission (CVC), and the Central Information Commission. In the absence of LoP in the LS, both the CVC and right to information (RTI) have provisions of exception prescribing that the leader of the single largest party in opposition can sit in the selection committee. But, unlike the CVC and RTI, the selection committee of the National Human Rights Commission (NHRC) and the Lokpal require the LoP from LS. In the latter, no exception clauses are provided as in the CVC and RTI acts. 

What is to be done in cases when the single largest party in opposition, is unable to secure the LoP, as has happened in the 16th LS? One possibility is that the Speaker could have appointed someone from the combined United Progressive Alliance, or recognised a similar claim by the other opposition parties combined (All India Anna Dravida Munnetra Kazhagam, All India Trinamool Congress and Biju Janata Dal). If there is no such provision in the law for the appointment of the LoP, the speaker could advise the government to bring in amendments to accommodate an inclusive opposition. The Page Committee, which was set up in 1967 (along with the other recommendations for the effective functioning of Parliament/legislatures), recommended that the leader of the largest recognised opposition party, whether a ‘regular party’ or ‘party composed of different parties or groups,’ should be given the post of LoP (Malhotra 2001: 144). There is scope yet to follow up on this provision.

If the new Lok Sabha Speaker follows their predecessor’s decision without a thorough re-examination of the statutory position of the LoP, the Congress party will not be given the official position of LoP in the 17th Lok Sabha. 
Prime Minister Narendra Modi, in his victory speech at the BJP headquarters, has said that his government wants to move ahead with everyone, even their opponents. For the Congress, there is hope yet to be lawfully assigned the role of LoP.

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