Confidential AG opinion told Lok Sabha speaker in 2014: LoP can't be appointed on the basis of 1977 law

Sumitra Mahajan, Mukul Rohatgi

By A Representative
Information obtained under the Right to Information (RTI) Act has revealed that Lok Sabha speaker Sumitra Mahajan banked on what has been described as “truncated” opinion of the Attorney General of India (AGI) while rejecting the claim of the Indian National Congress (INC) for Leader of Opposition (LoP) in the lower house in 2014.
Marked “confidential”, the AGI, Mukul Rohatgi, in his “opinion” to the Lok Sabha speaker on July 23, 2014, seeks to bank on the ruling of the first Lok Sabha speaker, GV Mavlankar, in order to point out how, till 1969, which included the “entire tenure of Pandit Jawaharlal Nehru, and thereafter”, there was no LoP.
Rohatgi quotes Mavlankar’s "directions" to say that the LoP should have the strength “equal to the quorum required in for constituting a sitting of the House, which is one-tenth of the total number of the members in the Lok Sabha.”
Based on this, says Rohatgi, in the sixteenth Lok Sabha, constituted in May 2014, the largest opposition party, the INC, with just 44 members of Parliament MPs), did not have the “quorum” – 10 per cent of the Lok Sabha strength, 55 MPs.
Rohatgi argues, based on this "historical perspective", the speaker is “not obliged to recognize any members of the largest opposition party in the Lok Sabha as LoP in case the said party doesn’t the strength equal to one-tenth of the quorum required for a sitting in the House.”
At the same time, the RTI reply reveals, Rohatgi sets aside the Salary and Allowances of Leaders of Opposition Act, 1977, which defines LoP. 

The Act calls LoP as “member of the Council of States (Rajya Sabha) or the House of the People (Lok Sabha), as the case may be, who is, for the time being the Leader of the House of the party in opposition to the government having the greatest numerical strength, and recognized as such by the chairman of the Council of States or the Speaker of the House of the People, as the case may be.”
Rejecting the 1977 Act’s definition, Rohatgi argues, “It is obvious from the definition of LoP… that the recognition of a member as such is not governed by this Act, but such a member has to be recognized by the speaker.” 

He adds, “In other words, the issue of recognition of a member of the House as LoP is outside the purview of the Salary and Allowances of the Leader of Opposition in Parliament Act, 1977.”
Based on this, Rohatgi says, the “speaker need not recognize a member of the largest opposition party in Lok Sabha as the LoP if the largest opposition party does not have strength equal to the quorum required for a sitting of the House.”
Senior RTI activist Venkatesh Nayak, who obtained the “confidential” information from the Lok Sabha secretariat, says, what Rohatgi does not take into account is, “Parliament rejected the idea of fixing a quota for claiming the LOP's chair decisively” in 1977.
Says Nayak in an email alert to Counterview, after the the Salaries and Allowances of LoPs Bill was tabled in the Lok Sabha on August 6, 1977, "HV Kamath, an MP of the Janata Party and belonging to one of its constituents -- the Jan Sangh -- a previous avatar of the BJP moved amendment 15 to fix one-sixth as quota of seats in the House required for any MPs to claim the LoP's chair.”
“In support of his amendment proposal, Kamath quoted Mavalankar, where a reference was made to the 10 per cent seat requirement. This amendment was decisively rejected by Janata Party MPs who were in the majority in the then Lok Sabha”, Nayak says.
“So the numerical strength argument was weighed, 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”, Nayak, who is with the Commonwealth Human Rights Initiative, argues.