Why is There a Controversy Over Jagan Demanding the Leader of Opposition Post?

A big controversy has erupted in Andhra Pradesh over the recognition of YS Jagan Mohan Reddy as Leader of the Opposition (LoP). While the ruling National Democratic Alliance (NDA) maintains that he cannot claim the position as the number of seats that his party (YSR Congress) won is less than 10 percent of the strength of the Assembly, Jagan wrote a letter to the Speaker urging him to accord LoP status to him, asserting that there is no such rule to disallow him.

What do the practice and procedure of the legislature say about this issue?

In his letter to the Speaker of the Andhra Pradesh Legislative Assembly, Jagan argued that he should be accorded the LoP status despite his party getting only 11 seats out of 175.

In a paradoxical situation, Jagan, while chief minister, had pooh-poohed Chandrababu Naidu on the defection of a few MLAs, because then Naidu would have lost LoP status. Jagan was referring to the same so-called mandatory 10 percent strength condition that is now being used against him.

Notwithstanding the pusillanimity of politicians, the constitutional and legal position on the subject needs to be clarified. Politicians can change their stance to suit the political context, but the interpretation of the law remains sacrosanct.

As Jagan also referred in his letter to the Speaker of the Assembly who has to accord the LoP status as per the statute, the term Leader of the Opposition under the Explanation provided under Section 12-B of the Andhra Pradesh Payment of Salaries and Pension and Removal of Disqualifications Act, 1953, is defined as under:

12-B: The provisions of this Act shall apply in relation to the holder of Office of the Leader of Opposition in the Andhra Pradesh Legislative Assembly or in the Andhra Pradesh Legislative Council, as they apply in relation to a Minister. Provided that where there are two or more parties in opposition to the Government, in the Andhra Pradesh Legislative Assembly or in the Andhra Pradesh Legislative Council having the same numerical strength, the Speaker of the Andhra Pradesh Legislative Assembly or the Chairman of the Andhra Pradesh Legislative Council as the case may be shall having regard to the status of the parties, recognise any one of the Leader of such parties as Leader of the Opposition for the purpose of the section and such recognition shall be final and conclusive.

Explanation: In this Act, the term "Leader of the Opposition" in the Andhra Pradesh Legislative Assembly or in the Legislative Council means that a member of either 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 Speaker of the Assembly or the Chairman of the Legislative Council, as the case may be.

But Minister for Legislative Affairs P Keshav questions on how a law relating to the salaries of legislators be the basis for defining the criterion of the LoP.

But, Practice and Procedure of Parliament, authored by MN Kaul and SL Shakdher and edited by the former Secretary General of Lok Sabha PDT Achary (sixth edition) on page 150 says as follows: The leaders of the Opposition in Lok Sabha and Rajya Sabha are now accorded statutory recognition under the Salary and Allowances of Leaders of Opposition in Parliament act 1977.

Thus, the Speaker has no discretion in this regard, as asserted by PDT Achary. The Speaker’s discretion comes into the picture only in the absence of law.

But, the ruling coalition, as enunciated by P Keshav on its behalf, relies on the Speaker’s directions issued in the 1950s (Direction 121).

Kaul and Shakdher mention these directions on page 381 under the conditions of recognition which state as follows.

The principles enunciated in the directions by the Speaker provide that an association of members who propose to form a parliamentary party in the Lok Sabha must satisfy the following:

They should… at least be able to command a strength which would enable them to keep the house i.e. their number should not be less than the quorum fixed to constitute a sitting of the House, which is one-tenths of the total membership.

But, those directions were not issued for recognition of the Leader of the Opposition. They were essentially meant for recognition and categorisation of parliamentary parties/groups for the sake of providing them certain facilities in Parliament like, the seating, allocation of time and rooms in the premises.

Subsequently, Parliament enacted the Salary and Allowances of Leaders of Opposition in Parliament Act 1977. This law, for the first time, defined the term "Leader of the Opposition" as the leader in that house of the party in opposition to the government having the greatest numerical strength and recognised as such by the presiding officer of the said house.

Thus, section 12 (B) of the Andhra Pradesh Act also has similar wording in this regard. This enactment supersedes the directions issued by the Speaker. However, the enactment of the Tenth Schedule has rendered the categorisation of parties into Parties and Groups by the presiding officer of the concerned house simply irrelevant.

In Practice and Procedure of Parliament by Kaul and Shakdher, which is considered by everyone as the bible of parliamentary procedures, on page 385, under the section Position After the Coming Into Force of the Tenth Schedule, it says as follows:

After the coming into force of the Tenth Schedule to the constitution with effect from 3 March 1985 and Representation of People (Amendment)Act 1988(which introduced section 29A providing for the compulsory registration of political parties), the concept of recognition of parliamentary parties groups by the Speaker on the basis of the numerical strength of a party in the house.

For the purpose of the Tenth Schedule, all the members of the House belonging to a particular political party would be deemed to belong to the legislature party of that party in the House irrespective of its numerical strength. Even a lone member of a political party in the house would, therefore, have a legislature party by that name.

Therefore, defining the Leader of the Opposition based on directions issued by the Speaker in the 1950s, that too, for a different purpose ( categorising as parties and groups) without taking into cognisance the changed position after the enactment of the Payment of Salaries and Pension and Removal of Disqualifications Act and the enactment of Tenth Schedule is an erroneous assumption.

In fact, the doctrine of pari materia used in the interpretation of statutes demands that the concept of Leader of the Opposition should be understood by taking into account all that is concerned, like the Speaker’s Direction 121 issued in the 1950s, the Payment of Salaries Act of 1977, the Anti-defection Law in the Tenth Schedule of the Constitution, and the amended Representation of People’s Act.

More than the statutes and provisions, what is of greater significance is that the spirit of Parliamentary democracy envisages the Opposition leader as the head of a shadow cabinet and represents the view counter to that of the government. The significance of this cannot be obliterated at the altar of political expediency, no matter which political party or parties are in question.

In his opinion on recognition of the LoP in the 16th Lok Sabha as sought by the Secretary-General, Mukul Rohatgi, the then Attorney General, also argued for the mandatory 10 percent strength for LoP recognition. Apart from relying on Speaker’s Direction 121, he also refers to the Central Vigilance Commission Act 2003 and the Right to Information Act 2005. These acts contemplate a situation where there is no Leader of Opposition in the Lok Sabha.

Mukul Rohatgi, therefore, argues that Parliament was aware that there could well be a situation where the Speaker does not recognise any Leader of Opposition, in view of the strength of the largest parliamentary party in the House being less than the quorum required for the sitting of the house.

But, such inferences linking an aspect of all too different acts with the question under study amount to arriving at a predetermined conclusion rather than making a sound argument based on the facts and logic. This author is forced to conclude so with due regard to the legal luminary.

Thus, after a perusal of the concerning provisions of the enactments and the role envisaged for the Opposition leader in a parliamentary democracy, any narrow interpretation may serve a political partisan purpose but would be tantamount to a travesty of democratic practices.

(Prof K Nageshwar is a senior political analyst, faculty member of Osmania University, and a former MLC. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)