http://www.hindustantimes.com/india-news/supreme-court-steps-in-says-leader-of-opposition-important/article1-1254935.aspx LoP row: SC gives govt two weeks to find solution HT Correspondents <http://www.hindustantimes.com/Search/search.aspx?q=HT%20Correspondents&op=auth>, Hindustan Times New Delhi, August 22, 2014 First Published: 11:59 IST(22/8/2014) | Last Updated: 08:12 IST(23/8/2014)
The Supreme Court on Friday waded into the row over the Congress being denied the post of Leader of the Opposition, suggesting that an LoP was needed for making key appointments like the Lokpal anti-corruption ombudsman. Advertisement The reproach from the country's top court underlines the increasingly cold relationship between the judiciary and the executive, coming as it does at a time when the BJP-led government is trying to change the law to have a say in judicial appointments. "The Leader of the Opposition also conveys the voice of the House. It represents a view different from that of the government. If there is no LoP, the decision would not be objective. Ultimately, a vacuum remains," said a bench headed by CJI RM Lodha. As the largest opposition party in the Lok Sabha with 44 seats, Congress has been demanding the LoP post, but citing advice from the government's top law officer, attorney-general Mukul Rohatgi, speaker Sumitra Mahajan earlier this week rejected the claim on the ground that it did not have the requisite 10% seats in the House. [image: http://www.hindustantimes.com/Images/popup/2014/8/2308pg1a.jpg] According to the Lokpal law, the selection panel for the position comprises the CJI, Prime Minister, Speaker, the LoP and an eminent jurist. Rohatgi contended in court that a vacancy in the selection panel -- read the LoP -- did not invalidate the appointment. *Read: Govt puts on hold new CIC's appointment in absence of LoP <http://www.hindustantimes.com/india-news/govt-puts-on-hold-new-cic-s-appointment-in-absence-of-lop/article1-1255199.aspx>* Justice Lodha would have none of that, saying: "The question is that this committee must be an effective committee and recommend objectively. Surely, a Leader of the Opposition is a very important component. As a matter of fact, very, very important for a very objective consideration." In fact, he added that the issue of LoP was relevant not only in the Lokpal law but also in other laws, and hinted that if the government did not resolve the issue within two weeks, it may give a wider interpretation to the term so as to include leader of the largest party. The court fixed September 9 to hear the matter, saying the legislation on Lokpal could not be put into cold storage. "It (selection of Lokpal) is a very important statutory process involving probity in public life. You have to tell us what options are left when confronted with a situation like this," the bench said. "We need to fast-track the process. Such an important legislation can't be frustrated. How does the concept work when there is no Leader of the Opposition?" This is not the first confrontation between the three-month-old Modi government and the Supreme Court. Earlier, there was a face-off over the government's refusal to appoint senior advocate Gopal Subramanium as an SC judge despite recommendations from a panel of top judges. On Friday, the court was considering a public interest litigation by Common Cause, an NGO that wants the selection process for the Lokpal scrapped on the grounds that it is "illegal and arbitrary". END ---------- Forwarded message ---------- From: Venkatesh Nayak <[email protected] <https://mail.google.com/mail/h/qv3j2xopvdo/?&v=b&cs=wh&[email protected]> > Date: 20 August 2014 13:57 Subject:Hon'ble Speaker's Decision To Keep the LOP's Chair Vacant May Amount to Disregard for Parliament's Express Intentions Dear all, The media has reported on the contents of a reply sent by the Hon'ble Speaker of the Lok Sabha to the President of the Indian National Congress (INC) refusing to accept the latter's claim to the chair of the Leader of the Opposition (LOP) in that House for the leader of its parliamentary party. In the age of the *Right to Information Act, 2005 *(RTI Act) the text of this communication which amounts to making an important decision is simply not available on any official website. Nor has the INC displayed the contents of this letter on its own website despite being declared a public authority under the RTI Act apropos of the June 2013 order of the Central Information Commission (CIC). This decision has not been set aside by any Court till date to the best of my knowledge. *Reasons for the Hon'ble Speaker's Decision according to Media Reports* Although Section 4(1)(c) of the RTI Act requires the Lok Sabha Secretariat to voluntarily place in the public domain all relevant facts about important decisions taken by the Hon'ble Speaker, our access to reasons behind her decision is facilitated by media reports only. The Hon'ble Speaker is reported to have given three reasons for her decision to deny the LOP's chair to the INC: a) Past precedents when the LOP's chair was not given to parties which had less than 10% of the membership of the House (we do not know for sure which past instances were cited); b) The opinion of the Learned Attorney General of India sought by the Hon'ble Speaker on this issue - the contents of which are also not available in the public domain except through media reports - again supposedly relying on the 10% rule; and c) Directions of past Speakers on the issue of the LOP left the current Speaker with no discretion on this matter. *Some people have overenthusiastically appreciated this development in complete ignorance of the express will and intention of Parliament when it gave legal recognition to the LOPs' office through a special statute in 1977. It is one thing to be politically partisan- that freedom is available for any person but it is reprehensible and undesirable to twist the law by interpreting it in a manner that contradicts or negates the will of Parliament which represents the will of the people of India.* *Hon'ble Speaker's Decision Appears to be Contrary to the Express Will and Intention of Parliament on this Issue* *If the aforementioned reasons are truly contained in the Hon'ble Speaker's reply to the INC, then with all due respect to her wisdom, it must be said that her decision may amount to a complete disregard for the express will of Parliament when it passed The Salary and Allowances of Leaders of Opposition in Parliament, 1977 (LOP Act) providing a clear definition of the term "Leader of Opposition". * Section 2 of the LOP Act defines the phrase "Leader of the Opposition" as follows:* "In this Act, "Leader of the Opposition", in relation to either House of Parliament means that member of the Council of States" (i.e., the Rajya Sabha) "or the House of the People" (i.e., Lok Sabha) "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 Chairman of the Council of States or the Speaker of the House of the People, as the case may be."* Section 2 is crystal clear: LOP must satisfy three tests - 1) LOP claimant must be a leader of a political party represented in the House; 2) that party must have the second greatest numerical strength in that House; 3) that party must be in Opposition to the Government. If these three tests are satisfied, then the Speaker must recognise that Leader as the LOP. The issues raised by the the Hon'ble Speaker amount to questioning the second test - greatest numerical strength - should this strength be linked to a minimum quota of seats in the Lok Sabha? A corollary to that query is whether this issue must be decided by referring to past precedents also? *In 1977 **Parliament rejected the idea of fixing a quota for claiming the LOP's chair decisively * The LOP Bill was tabled in the Lok Sabha on 6th August 1977. It was taken up or discussion two days later on 8th August. Mr. H V Kamath an MP of the Janata Party and belonging to one of its constituents - the Jan Sangh- a previous avatar of he Bharatiya Janata Party (BJP) moved amendment #15 to fix 1/6th as the quota of seats in the House required for any MPs to claim the LOP's chair. In support of his amendment proposal, Mr. Kamath, MP quoted the very same speech of Shri G V Mavalankar, First Speaker of the Lok Sabha where a reference was made to the 10% seat requirement. This amendment was decisively rejected by the Janata Party MPs who were in the majority in the then Lok Sabha. *So the 10% requirement was weighed and measured and discarded by the Lok Sabha*. *To insist that 10% seat quota is essential to claim the LOP's chair amounts to blatant disregard for the express intention of Parliament which represents the will of the people of India.* *Parliament **decisively **rejected the idea of recognising the LOP on the basis of past precedents* During the same discussion in the Lok Sabha, Shri Samar Mukherjee, MP from the CPI(M) tabled amendment #23 seeking to introduce a requirement that the Speaker or Chairman recognise the LOP on the basis of past practices and conventions (same pages of 1st attachment). He also cited past precedents where parliamentary parties were recognised as such only if they had 10% or more seats in either House of Parliament. This amendment was also rejected by the Lok Sabha where the Janata Party was in a majority. So Section 2 of the LOP Bill was adopted by the Lok Sabha without any change. *To insist that past precedents are binding on the Speaker while deciding the claim of a party to the LOP's chair also amounts to complete willful disregard to the express intention of Parliament which represents the will of the people of India.* The Rajya Sabha passed the LOP Bill without any amendments on 9th August. I am unable to send the scanned copies of the text of the Parliamentary debates on the Bill due to the 8MB limit in this discussion group. *So, given Parliament's rejection of both the 10% requirement and the reliance on past precedents for recognising the LOP, in my opinion the Hon'ble Speaker has no option but to simply do a head count of the members of the party that has the largest number of MPs in the Lok Sabha after the BJP and recognise the Leader of that party as the LOP. To this extent, the Hon'ble Speaker is true, there is no exercise of discretion involved when the numbers are crystal clear.* *Can the Hon'ble Speaker's Decision be challenged in Court?* A few days ago the media reported on some remarks attributed to the Hon'ble Chief Justice of India (CJI) while dismissing a Public Interest Litigation (PIL) suit seeking a direction to the Lok Sabha Speaker to recognise the Leader of the INC in the Lok Sabha as the LOP. The CJI is said to have remarked that the decision of the Speaker is not open to judicial review. if this is indeed true, with the greatest respect to the wisdom of the CJI and the Apex Court I beg to differ on this issue for the following reasons: 1) The explanation to Section 2 of the The LOP Act states that the decision of the Speaker to accord recognition to a member as LOP will be conclusive and final. This implies that the Court will have no power to review such a decision. However that phrase cannot be stretched to cover a context where the Speaker's decision is to deny a claim and that too in the face of statutory provisions that are crystal clear in their meaning with due reference to the will and intention to Parliament as expressed during the debates on the LOP Bill. Any erroneous application of statutory provisions to decide on the rights of any party are open for judicial review. Error of application of law is a ground for invoking the court's power of judicial review, although in a limited manner- the motives and rationale behind arriving at such a decision cannot be questioned in such a motion. 2) While Article 105(2) of the Constitution grants immunity from prosecution for all MPs for anything done or said on the floor of the House, to the best of my knowledge that immunity may not extend to decisions taken in the Speaker's chamber when the Lok Sabha is not in Session. *In order to uphold justice and the rule of law, th**e Courts will have to step in to give a finding as to whether any law has been contravened.* *So in my humble opinion any Opposition party including the INC that wishes to challenge the Hon'ble Speaker's decision will have valid grounds to point out in its petition as to why that decision cannot be sustained in law. The primary ground will be complete disregard for the express will of Parliament in imbuing the term "Leader of the Opposition" with crystal clear meaning. A crystal clear statutory provision cannot be overridden by rules, precedents or directives.* *The views expressed in this email alert are personal. **Kindly circulate this email widely.* Thanks *Venkatesh Nayak* *Programme Coordinator* *Access to Information Programme* *Commonwealth Human Rights Initiative* *B-117, 1st Floor, Sarvodaya Enclave* *New Delhi- 110 017* *Tel: +91-11-43120201/ 43180215* *Fax: +91-11-26864688* *Skype: [email protected] <https://mail.google.com/mail/h/qv3j2xopvdo/?&v=b&cs=wh&[email protected]> * *Website: www.humanrightsinitiative.org <http://www.google.com/url?q=http%3A%2F%2Fwww.humanrightsinitiative.org&sa=D&sntz=1&usg=AFQjCNHLDHJkBL-Glbyh_bu8xjjBMI9tyg>* -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. 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