By Karan Thapar

In established western democracies the Leader of Opposition is an important person. He or she is looked upon as the prime minister in waiting. In Britain, for example, Jeremy Corbyn’s questions are the dominant feature of Prime Minister’s Question Time. Both Theresa May and the press take them very seriously.

Sadly, in this respect, India is a very different democracy. Our problem starts with the fact we have no clarity over who should be the Leader of Opposition. So far as the law is concerned the answer is clear. However, several Speakers have muddled the issue and precedent only adds to the confusion. And now, because it suits the government, and, oddly enough, the Congress, it seems we could continue in this way.

The only legislation that refers to the Leader of Opposition is the Salaries and Allowances of Leaders of Opposition in Parliament Act of 1977. It says the Leader of Opposition is 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 House of the People.”

That’s crystal clear. Yet since 1984 we’ve been told to qualify for Leader of Opposition status a party has to have at least 10 per cent of the seats in the Lok Sabha. So where does that stipulation come from?

As P. D. T. Achary, a former Secretary General of the Lok Sabha, has pointed out it’s origin is a direction by Speaker Mavalankar in the 1950s. What’s forgotten is the direction had a very specific context. It was intended to distinguish ‘parties’ and ‘groups’ for the limited purpose of allotting seats, time for debates and rooms in parliament house. It was never intended as a condition for determining which party could claim leadership of the opposition.

However, even the mistaken belief this direction is a determining condition is overtaken by the 10th Schedule of the Constitution, passed in 1985, which contains the anti-defection provisions. This Schedule considers every party, irrespective of size, a ‘party’. Even a one-member party.

Alas, just as the law is clear, its interpretation by different Speakers is confusing and contradictory. In 1984 Balram Jakhar used the 10 per cent argument to deny the post to the Telugu Desam Party, then the second largest. In 2014 Sumitra Mahajan used the same argument for denying the position to Congress. I wouldn’t be surprised if Om Birla repeats that decision in 2019.

However, a few miles away, Speaker Goel of the Delhi Assembly, where the law determining the Leader of Opposition is the same as the Lok Sabha’s, conferred the status on the Bharatiya Janata Party even though it has only three members in a house of 70 i.e. less than 5 per cent.

Now, bizarrely, Congress has announced it doesn’t intend to claim the position. Randeep Surjewala says the party accepts it’s not entitled to even though the law says it is. Perhaps this is because it doesn’t want anyone else to have the post if Rahul Gandhi doesn’t take it.

Yet Congress could have strengthened its claim by presenting itself as leader of the UPA, a pre-poll alliance with 92 Lok Sabha MPs. If a pre-poll alliance with a majority can make a legitimate claim to form the government surely a pre-poll alliance with more than 10 per cent of the seats can make a legitimate claim to leadership of the opposition? But no one seems to have thought of this.

Let me end with a comment on Lok Sabha Speakers. They’ve played politics rather than act judiciously. That’s true of those who came from Congress as much as those from the BJP. On each occasion they undermined the democracy they were elected to protect. The fact is we need a formal Leader of Opposition and the stronger the government the more this is necessary. The Prime Minister’s sweet words of reassurance may be welcome but they’re not sufficient.