Leader of Opposition: Democratic Necessity or Speaker’s Discretion?

“Opposition in a democratic House is a great necessity. It is an indispensable condition of all democratic institutions. We propose to all ourselves, and we propose to make our country, a ‘democratic, sovereign republic’. If we cannot ensure any opposition, we should rather call the constitution that of an ‘undemocratic, sovereign republic’. It is the essence of democracy that there should be effective opposition.¹ “

– Naziruddin Ahmad, Member, Constituent Assembly.

Introduction:

The Westminster Model and the Role of the Opposition:

In the Westminster model of parliamentary democracy, the government is primarily accountable to the opposition. The opposition serves two critical functions: first, to extract accountability from the government for its policies in parliament, where they are debated and defended in an official adversarial environment; and second, to be prepared as a “government-in-waiting,”² prepared to assume power when the electoral mandate shifts. The Leader of the Opposition is the official spokesman of the minority or minorities and to that end he zealously watches any encroachment on their rights.³ A robust opposition is essential for a functioning democracy, serving as a counterbalance to the ruling party. By challenging decisions, offering alternative perspectives, and questioning policies, it ensures that governance remains transparent, participatory, and free from authoritarian tendencies.⁴

Judicial Recognition of the Opposition’s Role:

Further, the Hon’ble Supreme Court observed that the Leader of the Opposition plays a significant role in ensuring accountability in a democracy. The Court highlighted that an effective opposition is fundamental to the functioning of a parliamentary system.⁵ Similarly, in R.S. Nayak vs. A.R. Antulay⁶, the Supreme Court emphasized the necessity of an opposition in maintaining democratic checks and balances. The Court stated that denying the opposition a legitimate role could undermine legislative oversight and accountability.

The Constitutional and Legislative Framework Governing the Leader of Opposition

Indian Constitution unlike that of South Africa⁷, Mauritius⁸, Barbados⁹, Sri Lanka,¹⁰ has not institutionalized the opposition¹¹. However, the Constituent Assembly did engage in an elaborate debate over whether the post of leader of the opposition (hereinafter ‘LoP’) should be constitutionally recognized.¹² Z.H. Lari, a member of the Constituent Assembly, proposed amendment of draft Article 85¹³ to grant the LoP a salary equivalent to a cabinet minister, arguing that formal recognition and adequate pay would empower an effective, dedicated opposition to hold the government accountable. This proposal was ultimately rejected, with critics contending that the amendment was unnecessary, as the Constitution did not prohibit providing a salary to the LoP, and as such a provision could be enacted later on. Additionally, it was argued that a position cannot be created “willy-nilly” by creating a post and attaching remuneration to it.

The ‘Mavalankar Rule’ and Numerical Threshold for Recognition

It was only after the enactment of the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977¹⁴ that formal recognition was granted to the position of LoP. The Act defined the LoP as the head of the largest opposition party, provided that they were recognized as such by the Speaker or Chairman.¹⁵ However, the Act did not specify the minimum numerical strength required for such recognition.

Direction 121(c)¹⁶, issued under Rule 389¹⁷ of the Rules of Procedure and Conduct of Business in Lok Sabha, 2019 establishes that a party must hold at least one-tenth of the total seats in the House to be recognized. This requirement aligns with the quorum needed to conduct a session of the House.¹⁸ This long-standing parliamentary convention requiring an opposition party to hold at least 10% of the total seats, was first introduced by G.V. Mavalankar¹⁹, the first Speaker of the Lok Sabha in 1952, and is referred to as the ‘Mavalankar’s Rule.’

However, in cases where no party meets this 10% requirement, the position of LoP remains vacant. This occurred in 1967 and 1971, when the Swatantra Party and the CPI(M) were denied the role of LoP in Lok Sabha despite being the largest opposition parties. The first official LoP was appointed only in 1977, when the Congress, as the largest opposition party, secured 154 seats, surpassing the required 10%. In contrast, in 1980 and 1984, the Janata Party with 31 seats and the Telugu Desam Party with 30 seats were denied recognition due to their failure to meet the numerical threshold. More recently, the Congress Party failed to secure the necessary 55 seats in both the 2014 and 2019 Lok Sabha elections, leaving the opposition leader’s position vacant. Before 2014, the office of the LoP had not remained vacant since 1989.²⁰

Speaker’s Discretion in Recognizing the Leader of Opposition:

There have also been instances where opposition parties were formally recognized and LoPs their member appointed despite failing to meet the 10% seat requirement—reinforcing that the authority to grant such recognition rests solely with the Speaker/Chairman, irrespective of seat percentage garnered.

At the state level, the Dravida Munnetra Kazhagam (DMK) in Tamil Nadu (2016) and the Jharkhand Mukti Morcha (JMM) in Jharkhand were granted official recognition despite failing to meet the 10% threshold, reinforcing the discretionary power of the Speaker or Chairman in granting such status.

Unlike the UK or Canada, where the Leader of the largest opposition party is automatically designated as the Leader of Oppositio²¹, the Indian Parliament favours the discretion of the Speaker. As the presiding officer²², the Speaker serves as a chief spokesperson, embodying the consensus of the House. The Rules of Procedure and Conduct of Business in Lok Sabha, 2019, framed under Article 208²³, enlist duties and responsibilities, granting the Speaker broad discretionary powers. Maintaining order in the House is a Speaker’s fundamental duty, and as its official delegate, the Speaker regulates debates, determines the admissibility of questions, motions, and amendments, without bias. Disciplinary measures, such as suspension of members or adjourning proceedings, are intended solely to maintain order and not to serve political interests. The Speaker’s authority is rooted in the principle that an impartial presiding officer is essential for the smooth and democratic functioning of the legislature. The rules assume that the Speaker will act with strict neutrality and fairness, as any arbitrary exercise of power would compromise the integrity of the House.²⁴ Constitutional safeguards protect the Speaker’s autonomy, preventing judicial interference in parliamentary affairs.²⁵

Judicial Scrutiny and Challenges to LoP Recognition:

The Hon’ble Supreme Court has clarified that this immunity is not absolute. In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha²⁶, a Constitutional Bench observed that Articles 122 and 212 do not provide immunity to proceedings that suffer from illegality or unconstitutionality. Further, the principle of exclusive cognizance of Parliament’s internal proceedings which provides immunity from judicial scrutiny, would not be applicable in India as the Indian Constitution is supreme, not the Parliament.

While courts have generally refrained from interfering in legislative matters, there have been instances where they were called upon to adjudicate disputes regarding the LoP’s recognition.

In Imran Ali v. Union of India,²⁷ a Public Interest Litigation (PIL) was filed before the Delhi High Court, seeking appointment of a Leader of Opposition in the Lok Sabha, after the Congress Party failed to secure 10% of the total number of seats (winning only 55 seats). It was argued that the Speaker’s refusal to appoint a LoP violated democratic principles and impacted statutory appointments, including those under the Lokpal Act 2013, Central Vigilance Commission Act 2003, and Right to Information Act 2005, where the LoP’s role was crucial in selection committees. The Court, however, dismissed the petition, ruling that the appointment was neither a constitutional nor statutory mandate, but subject to the Speaker’s discretion. It further noted that parliamentary laws already provided mechanisms to address the absence of an opposition leader in selection committees and that judicial review does not extend to internal legislative matters unless in cases of illegality. Notably, it was specified that the ruling does not set a precedent, leaving room for future challenges on valid grounds.

Similarly, in Lal Bihari Yadav v. Chairman, UP Legislative Council,²⁸ the Allahabad High Court upheld the withdrawal of Leader of Opposition recognition from the Samajwadi Party leader after the party’s strength fell below the required threshold. The Court reaffirmed that Article 212 of the Constitution limits judicial interference in legislative proceedings unless illegality is demonstrated and that appointment of a Leader of Opposition was not a constitutional right but a matter of the Speaker’s discretionary power as per Section 2(h)²⁹ of the Uttar Pradesh State Legislature (Members’ Emoluments and Pension) Act, 1980. Upholding the 10% quorum rule, citing Rule 234 of the UP Legislative Council’s Procedure and Conduct of Business Rules, 1956, which requires a minimum of 10 members to conduct business³⁰, the court found the withdrawal of the LoP, to be justified.

The Contemporary Debate: Vote Share vs. Numerical Strength:

Recently, former Chief Minister Y.S. Jagan Mohan Reddy preferred a writ of Mandamus³¹ before the Hon’ble A.P High Court seeking enforcement of Section 12B³² of the A.P Payment of Salaries & Pension & Removal of Disqualifications Act, 1953, directing his appointment as the LoP. This raises significant questions concerning the interpretation and application of the Mavalankar Rule. One critical aspect is not considering the electoral outcome in recognizing the Leader of the Opposition. In the 2024 elections, while the winning party secured a vote share of 45.60%, YSRC Party obtained 39.37%, yet managed to secure only 11 seats (6% of the total seats). Should numerical strength alone dictate the recognition of the LoP, or should a significant vote share prompt a reconsideration of the existing approach?

The Way Forward: Strengthening the Opposition’s Role in Democracy:

While numerical strength has traditionally dictated opposition recognition, there is merit in reconsidering the criteria to account for a significant vote share. A democratic system must reflect the voices of its electorate beyond seat distribution alone. A high vote share, even if not translating into proportional seats, signifies substantial public support. This discrepancy, often caused by electoral design, should not diminish the legitimacy of the opposition.³³ Given these considerations, adopting a more inclusive approach that recognizes vote share alongside seat count would better uphold democratic values and strengthen parliamentary accountability. Thus, while legal frameworks may currently emphasize numerical strength, a balanced approach incorporating vote share would enhance democratic representation, reinforcing the opposition’s ability to function as a credible check on the government.

Conclusion:

The role of the Opposition in a parliamentary democracy is not merely ceremonial. While the Indian Constitution does not institutionalize the Opposition, historical practice and legislative provisions have shaped its evolving stature. The Speaker’s discretion in recognizing the Leader of Opposition underscores a parliamentary tradition that values flexibility but also raises concerns about consistency in upholding democratic principles. Judicial pronouncements have largely deferred to legislative autonomy while acknowledging that parliamentary decisions must not transgress constitutional boundaries.

As contemporary political dynamics shift, rigid adherence to numerical thresholds need to be reconsidered. The essence of democracy lies not just in majoritarian rule but in ensuring that popular opinion is represented in governance. Recalibration of criteria for recognition, to accommodate significant vote shares would reinforce the Opposition’s role as a custodian of democracy. A democracy without a robust opposition risk diminishing the very principles it seeks to uphold—deliberation, dissent, and dialogue.

References

1. Volume 8, Para 8.88.42, Constituent Assembly Debates, (May 20, 1949),
   https://www.constitutionofindia.net/debates/20-may-1949/.
2. Jeremy Waldron, Political Theory: Essays on Institutions, 101-102 (Harvard University Press 2016).
3. Lok Sabha Secretariat, Practice and Procedure of Parliament (7th ed. 2016).
4. Moumita Saha Roy, Role of Opposition in Indian Politics: A Study in The Context of Present Scenario, 2 The Academic 994, 994-1008 (2024).
5. K.K. Aboo vs. Union of India,AIR 1965 SC 267.
6. 1984 AIR 684
7. Constitution of the Republic of South Africa, 1996 § 57(2)(d)
8. Constitution of The Republic Of Mauritius, 1968 § 73.
9. The Constitution of Barbados, 1966 § 74.
10. The Constitution of The Democratic, Socialist Republic Of Sri Lanka, 1978, Art. 41A.
11. Meenakshi Ramkumar & Aishwarya Singh, The Road Not Taken: India’s Failure to Entrench the Rights of the Opposition, 6 CALJ 55 (May 2022).
12. Supra Footnote 2.
13. Incorporated as Article 106 in the Constitution of India, 1950.
14. Salary and Allowances of Leaders of Opposition in Parliament Act, 1977, Act No. 33 of 1977.
15. The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977, § 2, No. 33, 1977.
16. In recognising a Parliamentary Party or Group the speaker shall take into consideration the following principles: (c) shall have at least a strength equal to the quorum fixed to constitute a sitting of the House, that is one-tenth of the total number of members of the House, See Lok Sabha Secretariat, Questions Procedure and Directions, 1st ed. (2022).
17. Residuary Powers – All matters not specifically provided for in these rules and all questions relating to the detailed working of these rules shall be regulated in such manner as the Speaker may, from time to time, direct.
18. Lok Sabha Secretariat, Directions by the Speaker of Lok Sabha, Parliament of India (Lok Sabha) (Apr. 2019).
19. A. Agarwal, Role of Opposition in the Indian Parliament: Active, Dormant, or Dead?, SSRN (June 27, 2023).
20. Mukul Rohatgi, Recognition of Leader of Opposition in Sixteenth Lok Sabha, Off. Att’y Gen. India ¶ 5 (July 23, 2014).
21. J.C. Courtney, Recognition of Canadian Political Parties in Parliament and in Law, 11 Can. J. Pol. Sci. 1 (1978).
22. Article 93, Constitution of India, 1950.
23. 208. Rules of procedure – (1) A House of the Legislature of a State may make rules for regulating subject to the provisions of this Constitution, its procedure and the conduct of its business. (2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature for the corresponding Province shall have effect in relation to the Legislature of the State subject to such modifications and adaptations as may be made therein by the Speaker of the Legislative Assembly, or the Chairman of the Legislative Council, as the case may be. (3) In a State having a Legislative Council the Governor, after consultation with the Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may make rules as to the procedure with respect to communications between the two Houses.
24. S. L. Shakdher, Powers and Functions of Speaker: With Particular Reference to Developments in Some States.
25. Article 212, Constitution of India, 1950.
26. (2007) 3 SCC 184.
27. W.P. (C) No. 5745/2014, Delhi High Court.
28. W.P. (C) No. 4493 of 2022, Allahabad High Court.
29. ‘Leader of Opposition’ means the member of the Assembly or the Council who is, for the time being, recognized as such by the Speaker, or the Chairman, as the case may be.
30. Supra Footnote 14.
31. W.P. No. 15968 of 2024, A.P. High Court.
32. Section 12B. Application of provisions relating to Minister to the Leader of Opposition. – 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 1Andhra 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, recognize 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.
33. Nemtoi, G. (2022), The Parliamentary Majority in Contrast to the Opposition. European Journal of Law and Public Administration.