Why the 17th Lok Sabha can and should have a leader of opposition—even with only 52 Congress MPs

On 19 June, the BJP politician Om Birla was elected as the speaker of the 17th Lok Sabha. If the actions of the previous speaker are any indication, it is unlikely that Birla will recognise a leader of opposition. Sonu Mehta/Hindustan Times Getty Images
25 June, 2019

On 18 June, the Congress appointed Adhir Ranjan Chowdhury, a five-time member of parliament from West Bengal, as leader of the party in the lower house of parliament. The next day, Om Birla, the Bharatiya Janata Party’s candidate for the position of speaker of the 17th Lok Sabha, was elected almost unanimously. But despite Chowdhury’s appointment, the Congress decided not to stake claim for the post of Leader of Opposition in Parliament, or LOP, in the Lok Sabha. If the actions of Sumitra Mahajan, the previous speaker, are any indication, Chowdhury is unlikely to receive the official recognition.

During the entire term of the 16th Lok Sabha, Mahajan refused to recognise an LOP, arguing that the Congress, which was the single largest party in the opposition, did not have the requisite numbers to nominate any candidate for the post. The Congress had won 44 seats in the 2014 Lok Sabha elections, and Mahajan argued that a party must secure at least 10 percent of the total number of seats—or 55 seats—for a member to be appointed the LOP. Mahajan refused to recognise the Congress leader Mallikarjun Kharge as the LOP on this ground, and it is expected that Birla will use the same logic to deny the position to Chowdhury, given that the Congress has once again fallen short of the number, winning only 52 seats in this year’s general elections.

Mahajan’s actions, however, had no legal sanctity. While the 10-percent rule did govern parliamentary procedure for over two decades post Independence, the power of the speaker to recognise an LOP and the rules to determine that decision underwent an important change in 1977. That year, a law enacted by parliament empowered the speaker to recognise a leader of the largest party in opposition as the LOP. But both the previous and the current speaker appear to have ignored this 42-year-old law, and India’s democratic politics is suffering for it.

The 10-percent rule originated following the formation of the first Lok Sabha in 1952. The rules governing the Lok Sabha procedure empower the speaker of the house to issue “Directions” to conduct business in the lower house. In 1956, GV Mavalankar, who was the speaker at the time, first introduced the 10-percent rule to Indian parliamentary politics through Directions 120–123. The directions concern the recognition of an LOP, and basically list the requirements for an association of members to be recognised as a parliamentary “party.” Among others, these included a condition that the association should have the minimum strength necessary to constitute quorum in the Lok Sabha—or one-tenth of the total number of seats, as prescribed by the Constitution.

Mavalankar’s contribution must be considered in the context of his beliefs. He was a vocal proponent of a two-party democracy, and had once remarked that “democracy will never grow on proper lines unless there are the fewest number of parties, possibly not more than two major parties.” While the 10-percent direction is feasible in a two-party system, its application in a country with as varied a political spectrum as India and with multiple national and regional parties thriving together is questionable.

It is also important to distinguish between the rules governing the lower house of parliament—known as the Rules of Procedure and Conduct of Business in Lok Sabha—and the directions issued by a speaker. The former are mandatory and framed by a Rules Committee, comprising the speaker and members from major political parties, whereas the latter are more in the nature of guidelines, and issued unilaterally by the speaker. The speaker derives all her powers either from a law passed by the parliament or from the Rules of Procedure. Her powers to issue directions also come from the Rules. As a necessary corollary, once a certain power of the speaker is amended through a law, the source for that power can no longer be located in a direction. In view of that, following a 1977 law, the 10-percent direction no longer holds legal validity.

For several years after Independence, the 10-percent direction prevailed, and depending on the number of seats secured by each party, these were accordingly granted or denied the status of parliamentary party. The 1969 elections marked the first Lok Sabha that included a formally recognised opposition party, after a faction that split from the Congress, the Congress (Organisation), became the first non-ruling party to secure more than one-tenth of the total number of seats. But in 1977, the direction lost its significance following the enactment of the Salary and Allowances of Leaders of Opposition in Parliament Act that year.

This Act introduced the first official definition of the position of Leader of Opposition, because neither the Constitution nor the Rules of Procedure had previously recognised the post. It defined the LOP as the leader of a party in opposition to the government having the greatest numerical strength and recognised as such by the speaker, or the chairperson, in case of the Rajya Sabha. The Act also provides for the salary, allowances and other statutory facilities to be provided to the LOP. It further notes that in a situation where there are two parties with the identical strength, the speaker must recognise the leader of either one as an LOP. The Act makes no reference whatsoever to the 10-percent direction, which had by then been in operation for over two decades. The writing on the wall ought to have been clear—the speaker was to now derive her power to recognise the LOP from this Act and not the directions. In effect, the 1977 act meant that a speaker did not have the power to deny the LOP status to a leader of a party having the greatest numerical strength even if their numbers were below the 55-seat mark.

In fact, in 1968, a parliamentary sub-committee, known as the committee of presiding officers, submitted a report recommending that the “Leader of the largest recognised Opposition Party (whether a regular party or a party composed of different parties or groups) should be recognised as the Leader of the Opposition.” The 1977 Act appears to have followed the recommendations of the report, which also stated that the LOP should be provided with a distinct salary, office, and secretarial staff.

The 10-percent direction lost further significance in 1985, after the parliament inserted the 10th Schedule to the Constitution and Section 29A to the Representation of the People Act, 1951. The combined effect of these two changes was that the power to recognise a political party was now vested solely with the Election Commission of India. Following these amendments, even if there was a sole member in the Lok Sabha from a political party that was recognised by the ECI, it would now be formally recognised as a legislative party in the Lok Sabha. Thus, after these two changes, the application of directions was limited to issues of functional utility, such as selection of speakers from a party, allotment of seats, provision of parliamentary papers, et cetera. The direction requiring a political party to secure one-tenth of the total Lok Sabha seats was no longer in force, since the Election Commission was not curtailed by such requirements. Therefore, it is odd that Mahajan, as the speaker of the 16th Lok Sabha, revived a practice that was done away with more than a decade earlier.

For her decision, Mahajan had also relied on curious advice tendered by Mukul Rohatgi, who was then the attorney general of India. Rohatgi, after going through the directions and the 1977 Act, stated in an opinion submitted to the Secretary General of the Lok Sabha that the “issue of recognition of a member of the House as Leader of Opposition is outside the purview of the Salary and Allowances of Leaders of Opposition in Parliament Act.” In the advice, the attorney general took note of the fact that the Act provides a definition for the LOP, and that she must be “recognized as such” by the speaker, but misread the provision to say that the Act did not supersede the directions. Rohatgi went on to recommend that the 1977 Act is not conclusive on the issue of recognition of LOP, and that the directions continue to prevail.

The soundness of the arguments advanced by the attorney general is questionable not merely on the weak legal reasoning and flawed interpretation of the 1977 Act, but also on precedents set by speakers in the past. During the second term of the United Progressive Alliance government, in 2010, the speaker Meira Kumar recognised the BJP leader Sushma Swaraj as the LOP and stated in the Lok Sabha that she was doing so “in terms of Section 2 of the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977.” Though the BJP had secured 116 seats in the 2009 general elections, the speaker expressly stated that her powers to recognise the LOP came from the 1977 Act, and not the directions. This is also reflected in an information booklet published by the Rajya Sabha Secretariat in July 2018, which notes that “leaders of the Opposition in the Lok Sabha and the Rajya Sabha are accorded statutory recognition” through the 1977 Act.

In fact, Ram Niwas Goel, the Delhi legislative assembly speaker, had even accorded the BJP politician Vijender Gupta recognition as the LOP in the state assembly despite the party having only three members in a house with a full strength of 70. In doing so, Goel also relied on Delhi’s corresponding law to the 1977 Act—the Leader of Opposition in the Legislative Assembly of the National Capital Territory of Delhi (Salaries and Allowances) Act, 2001.

The recognition of a Leader of Opposition in the Lok Sabha is not just imperative for a healthy democracy, it also has practical implications. In 2018, Youth for Equality, a non-governmental organisation,, filed a public-interest litigation in the Supreme Court pleading that wherever an appointment committee for posts such as the director of the Central Bureau of Investigation, the Central Vigilance Commissioner and the Lokpal requires a leader of opposition, it should be construed to mean the leader of the largest party in opposition. The petitioners argued that critical appointments were getting delayed in the absence of a recognised LOP in 16th Lok Sabha.

In a 2014 case before the Delhi high court on a similar cause, the central government had submitted that necessary amendments for the inclusion of the leader of the largest opposition party had already been made in the CVC and RTI Act, and that the amendments to the acts governing the CBI and Lokpal were “underway.” But this has not happened so far, and a Lokpal was appointed only in March 2019. Mallikarjun Kharge boycotted the Lokpal selection committee’s meetings because he was invited to participate as a “special invitee” with no powers, since he was not recognised as the LOP.

The law clearly supports the right of the Congress to stake a claim for the LOP post—but perhaps owing to their experience in the 16th Lok Sabha, the party has stated that it will not be claiming the post. As a result, it looks unlikely that there will be a leader of opposition in the 17th Lok Sabha. In June this year, two advocates—Manmohan Singh Narula and Sishmita Kumari—filed a PIL in the Delhi high court seeking the enforcement of the 1977 act.

Indeed, the question on whether the decision of the speaker is final on matters of parliamentary procedures is still not settled conclusively—especially if that decision ignores a statutory provision, such as the 1977 Act. It remains to be seen how the court will respond to the PIL, but a leader of opposition would be crucial for the 17th Lok Sabha to raise the bar from its predecessor on how parliament ought to be conducted.