(Dr. Shashi Tharoor, a two-time MP from Thiruvananthapuram and the former Union Minister of State for External Affairs and Human Resource Development, is the author of 14 books, including, most recently, Pax Indica: India and the World of the 21st Century.)The controversy over whether the Congress Party should be awarded the formal position of Leader of the Opposition in the Lok Sabha hinges on both legal and political principle. Every parliamentary democracy has a Leader of the Opposition, a title accorded to the head of the largest single political formation not in the government - whatever its size. It is only in India that we have chosen to require a party to hold ten percent of the seats in the House before its chief can qualify for the honour. Those wedded to the letter of that rule (a directive, Rule 121, issued by Lok Sabha Speaker Mavlankar in the 1950s) argue that the Congress, with 44 seats in a House of 543, falls short of the ten percent number and so cannot put forward the Leader of the Opposition.
It's a peculiar argument, all the more so since the ten percent rule comes from a Speaker's directive, whereas the only law on the books that mentions the position is a law enacted a quarter of a century later, the "Salary, Allowances and Perquisites of the Leader of the Opposition in Parliament Act", 1977. This law never mentions ten percent or any other figure; it simply states that the status of Leader of the Opposition shall attach to the leader in the Lok Sabha of that party "having the greatest number" amongst parties not in Government. Common sense would suggest that this law supersedes a mere Rule; legal theory confirms that laws passed in Parliament trump directives issued by any individual authority, even a Speaker.
Ah, but there's a catch, say those who want to deny Congress the position. The 1977 law speaks of the party "having the greatest number", but adds, "and recognized by the Speaker as such". There's the rub: the Speaker, in granting that recognition, is bound, they argue, by the 1950s Directive that obliges her to do the ten percent math. Ergo, no Leader of the Opposition for the 9 percent Congress.
Those who make that argument are wrong. The law doesn't require the Speaker to be bound by the earlier Directive; in fact, it doesn't even mention that, or any other, Directive. In any case, a rule issued by a Speaker in the 1950s can always be changed by another Directive issued by a Speaker half a century later. The only way a Speaker is bound by that rule if she chooses to be bound by that rule. And such a choice, you can be certain, would be an implicitly political one.
But there's a further complication: various other laws passed since 1977 not only assume the existence of a Leader of the Opposition, but require the holder of such a post to participate in the implementation of key acts - the Human Rights Act of 1993, the Central Vigilance Commission Act of 2003, the Right to Information Act of 2005 and the Lokpal and Lokayuktas Act of 2013. The selection of a Lokpal or a CVC, for instance, is made by a committee that includes the Leader of the Opposition. A Speaker's Directive from the 1950s can't be allowed to dilute the intent of legislation written decades later - the intent being to ensure that, in our democracy, such key constitutional positions are only filled with the involvement of the democratically-elected opposition.
That's the heart of the matter. Reducing the issue to an argument amongst lawyers about the relative precedence of rules, directives and laws completely misses the spirit of the question at stake. We need a Leader of the Opposition because our democracy recognizes that an elected government, even one with an overwhelming majority like the BJP enjoys today, cannot fully reflect the wishes and feelings of all the people of our diverse nation.
The BJP came to power with 31% of the vote; it needs to pay heed to the views of the 69% that did not wish to see it in power. Those views are best reflected institutionally in the position of a formal Leader of the Opposition. The trappings that come with that position - Cabinet rank, a car, an office, staff - are not important, except inasmuch as they reflect the value attached to such a function in Indian democracy. The formal status of Leader of the Opposition honours our country's pluralist system far more than it honours the occupant of the post.
A final clincher: even insistence on the ten percent cut-off won't matter if you recognize that the United Progressive Alliance fought the election as a pre-poll alliance and won 60 seats on a common platform. All 60 UPA Lok Sabha MPs have signed a letter to the Speaker asking her to recognize their leader, Mallikarjun Kharge, as Leader of the Opposition. As the Delhi University students who deal with their own cut-offs might put it, it's really a no-brainer. All you need to do, Madame Speaker, is to say yes.
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