Can the Supreme Court force the Speaker of the Lok Sabha to recognise and name a Leader of the Opposition? This is the key question that emerges after Chief Justice R.M. Lodha’s query to the government on Friday, August 22, as to how the Lokpal would be appointed. The Lokpal law puts in place a selection committee, one of the members of which is the Leader of the Opposition in the Lok Sabha.
The Congress is using the Chief Justice’s remarks to renew its demand for the post of Leader of the Opposition. It has 44 members in the Lok Sabha. As per a ruling by the Speaker of the first Lok Sabha, in the 1950s, only the leader of a party that commands 10 per cent of the strength of the House can be recognised as Leader of the Oppo-sition. The Congress argues this formulation is outdated and the 10 per cent rule was arbitrary, not written in stone and merely the opinion of the Speaker at the time. As such, the current Speaker can amend it.
Indeed, the current Speaker can. She can raise the threshold to 12 per cent (65 seats), maintain it at 10 per cent (55 seats) or reduce it to eight per cent (44 seats). If she resorts to the last mechanism, the Cong-ress gets its wish. Yet, the point is that much of parliamentary practice is not rule-based and codified; it follows precedent and convention. That is why the 10 per cent norm has been adhered to by the Speaker.
Let us presume the current Speaker junks the 10 per cent precedent and goes for, say, eight per cent just to suit the Congress. What may happen in a subsequent Lok Sabha where, theoretically, the second-largest party may win only 35 seats or 6.5 per cent? Would the Speaker of that subsequent Lok Sabha be expected to reinterpret the principle yet again? Would the definition of who can take office as Leader of the Opposition become a dynamic and fluid phenomenon?
More so, if the Speaker has the right — as the Congress says she does — to amend the parameters for finding a Leader of the Opposition — what if she chooses to make the leader of the largest non-ruling post-poll alliance the Leader of the Opposition?
What if, as has been speculated ever since the 16th Lok Sabha was elected, the Trinamul Congress, the All-India Anna Dravida Munnetra Kazhagam and the Biju Janata Dal come together as a bloc and stake a claim to the post of Leader of the Opposition? Together they have 91 seats in the House.
Would the Congress still argue the Speaker is within her rights to change the norms to name a Leader of the Opposition? Alternatively, does the Congress want the norms to be changed only in a particular manner, to its convenience?
It needs to be emphasised that the Leader of the Opposition is a reference to a specific position in the Lok Sabha. It has a Cabinet status and gets certain perquisites, on the understanding that the party the person in question leads has won a significant (10 per cent as it happens) slice of parliamentary constituencies. This is qualitatively different from the leader of the largest party in Opposition, who still has a right to oppose and challenge the government, but without a Cabinet status and the associated perquisites.
The Supreme Court cannot force the Speaker of the Lok Sabha to appoint a Leader of the Opposition, or interpret or re-interpret the 10 per cent convention for her. That would create a constitutional conundrum and mean the judiciary is encroaching upon the autonomous domain of the legislature.
The issue returns to the selection of the Lokpal. The Lokpal is one of several (categories of) posts for which consultation and concurrence of the Opposition in the Lok Sabha is deemed desirable. The others include the Central Vigilance Commissioner, the Chief Information Commissioner and appointments to the higher judiciary by the National Judicial Appointments Commission (NJAC).
Most of the laws pertaining to these institutions were framed by the UPA government and made allowance for a Leader of the Opposition.
The NJAC law was framed by the current NDA government and made allowance for a Leader of the Opposition or the leader of the largest party in Opposition. In that sense, the Congress is paying for poor drafting of laws and for a lacuna left behind by its legal officers and its law minister.
The letter of the Lokpal law is clear enough. The Leader of the Oppo-sition, among others, needs to be part of the panel that chooses the Lokpal. The law also says that in case of a vacancy in the selection panel, the validity of the process will not be questioned and the selection and appointment of the Lokpal can still go ahead.
That is why, despite what the Congress says, the government is confident it can go ahead with the process of choosing a Lokpal, and that this would not be in breach of the Lokpal Act.
Yet, there is the point of the spirit of the law. It is possible, even to be recommended that a whole slew of legislations inappropriately or incompletely drafted by the UPA government be amended now to make room for the leader of the largest party in Opposition, or for a representative chosen by MPs in the non-treasury benches in some defined manner.
A voice for the Opposition in the selection of important authorities is necessary to the degree it can and will invest in such decisions a certain bipartisanship.
Two caveats remain. First, at the earliest, these legislative amendments can be made in the Winter Session of Parliament (of course an immediate, ordinance route can also be followed).
Can the selection of the Lokpal go ahead in the meantime? The government is in no doubt it can. Second, this invocation of the spirit of bipartisanship in the selection of key institutional figures is very different from the Congress attempting to inveigle for itself the Leader of the Opposition post in the Lok Sabha. That is simply not on.
The writer can be contacted at malikashok@gmail.com
