Imran Ali vs Union Of India & Anr
2015 Latest Caselaw 335 Del

$~9
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 5745/2014
       IMRAN ALI                                    ..... Petitioner
                  Through: Mr. Mohit Chaudhary, Ms. Damini
                            Chawla, Advs. with Petitioner in
                            person.
                       Versus
    UNION OF INDIA & ANR                       ..... Respondents
                  Through: Mr. Sanjay Jain, ASG with Mr. Anil
                            Soni, Ms. Saakshi Agrawal and Mr.
                            Noor Anand, Advs. for UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                          ORDER

% 14.01.2015

1. This petition under Article 226 of the Constitution of India, filed as a

Public Interest Litigation (PIL) by an Advocate impleading, (i) Union of

India (UOI) through the Principal Secretary, Department of Legal Affairs;

and, (ii) the Speaker of Lok Sabha only as the respondents thereto, seeks

issuance of (a) a writ of mandamus commanding the respondents to follow

mandate of law by recognizing Leader of Opposition in the 16th Lok Sabha;

and, (b) a writ of certiorari quashing the directives issued by the Speaker

putting rider in nature of caveat in Section 2 of the Salary and Allowances

of Leaders of Opposition in Parliament Act, 1977.

2. The petition is prefaced on newspaper report dated 20th August, 2014

to the effect that the Speaker of the 16th Lok Sabha has refused to appoint /

recognise any person as Leader of Opposition because no opposition party

was able to secure 55 seats in the Lok Sabha. It is pleaded:

(i) that the petition is filed so as to strengthen the institution of

democracy and avoid politicization in appointing or recognizing

mandatory post of Leader of Opposition at whims of Ruling Party and

to declare that no custom or precedent is above the law;

(ii) that various legislations like the Protection of Human Rights

Act, 1993, the Central Vigilance Commission (CVC) Act, 2003, the

Right to Information Act (RTI), 2005 and the Lokpal and Lokayuktas

Act, 2013 mandate the participation of Leader of Opposition, while

making decisions on appointments etc.;

(iii) that the post of Leader of Opposition received statutory

recognition through the Salary and Allowances of Leaders of

Opposition in Parliament Act;

(iv) that after Lok Sabha Elections, 2014, Bhartiya Janta Party

(BJP) has the largest number of seats i.e. 282 and is the Ruling Party

of the Nation;

(v) that on 6th June, 2014, Ms. Sumitra Mahajan was elected as

Speaker to preside over the 16th Lok Sabha;

(vi) that in the elections, Congress has emerged as the second

largest party securing 44 number of seats in the elections;

(vii) that Congress being the oldest and having ruled this country

with alliances since past ten years, is a party having status which as

per Section 2 of the Salary and Allowances of Leaders of Opposition

in Parliament Act is relevant, while recognizing Leader of

Opposition;

(viii) that the importance of the office of Leader of Opposition goes

to the fundamentals of democratic process in the society, so as to rule

out any kind of arbitrariness and / or favouritism by a Ruling Party;

(ix) that though leader of opposition does not have any Veto for any

process but still has been granted and recognised to have a voice

towards a particular concern; various enactments have recognised the

value and input of Leader of Opposition while making important

policy decisions by the Government; Leader of Opposition has been

empowered to participate in decision making at various levels

including appointment(s) at senior level;

(x) that however the Speaker of the 16th Lok Sabha, instead of the

test of the greatest numeral strength provided for in the Allowances of

Leaders of Opposition in Parliament Act, imposed the test of 10% of

the seats in the Parliament for recognizing the Leader of Opposition;

such a rider imposed by the Speaker has led to the scenario where

only upon having 55 seats would the leader of a particular party

qualify to be recognised as the Leader of Opposition;

(xi) that since in the present Lok Sabha no opposition party has 55

seats, the Speaker has chosen not to recognise anyone as the Leader

of Opposition.

3. The petition though listed in the past was adjourned from time to

time; we have today heard the counsel for the petitioner on the aspect of

entertaining the petition.

4. We have at the outset enquired from the counsel for the petitioner, as

to where is the provision for appointment of the Leader of Opposition in the

Lok Sabha. It may be mentioned that though the enactments aforesaid refer

to the Leader of Opposition, but proceed on the premise that there is a

Leader of Opposition and do not provide for appointment of Leader of

Opposition.

5. The counsel for the petitioner states that there is no law or even

provision in the Constitution of India for the post of Leader of Opposition.

He however contends that the post of Leader of Opposition is essential for a

democracy to function.

6. We have next enquired from the counsel for the petitioner, as to what

is the necessity and role of the Leader of Opposition under our Constitution.

7. The counsel argues that the office of the Leader of Opposition is

necessary, since appointments under the Protection of Human Rights Act,

CVC Act, RTI Act and Lokpal and Lokayuktas Act have to be made with

the concurrence / recommendation inter alia of the Leader of Opposition.

8. We have then enquired from the counsel for the petitioner that if he is

unable to show anything for this Court to mandate the appointment of the

Leader of Opposition and if the grievance is that without there being any

provision requiring appointment of Leader of Opposition, the statues

aforesaid provide for involvement of Leader of Opposition in appointment

to be made thereunder, whether not the petitioner should be challenging the

provisions of the said statutes, insofar as providing for the participation of

the Leader of Opposition in appointments to be made thereunder, rather than

seeking appointment of the Leader of Opposition.

9. No answer has been forthcoming.

10. The counsel for the petitioner has however drawn our attention to

Article 118 of the Constitution of India providing for making of the rules for

regulating the procedure and conduct of business in each House of the

Parliament. He has then invited attention to the Rules Of Procedure and

Conduct of Business in Lok Sabha, Rule 389 whereof titled 'Residuary

Powers' enables the Speaker to regulate the manner in which the matters not

specifically provided for in the said Rules are to be conducted. Attention is

next invited to the Directions stated to have been issued by the Speaker in

1956 under the Rules and Clause 120 whereof provides that the Speaker

may recognise an association of members as a Parliamentary Party or Group

for the purpose of functioning in the House and making the decision of the

Speaker in this regard final and to Clause 121 thereof laying down the

condition inter alia of having a strength equal to the quorum fixed to

constitute for sitting in the House for recognition of such an association. It

is argued that the Speaker has wrongly invoked the said Rules to hold that a

party not having the strength equal to the quorum fixed to constitute a sitting

of the House, even if having the maximum number of seats amongst the

parties in opposition, cannot nominate the Leader of Opposition.

11. However, when we enquired, as to how the said provisions also

mandate the appointment of the Leader of Opposition, again no answer is

forthcoming.

12. Per contra, the learned ASG appearing on advance notice has

contended, (a) that this is not the first Lok Sabha in which none has been

appointed / recognised as the Leader of Opposition; instances of earlier Lok

Sabhas which also did not have the Leader of Opposition are given; (b) that

the contention of the petitioner that the appointment of the Leader of

Opposition is necessary for making appointments under the Protection of

Human Rights Act, CVC Act, RTI Act and the Lokpal and Lokayuktas Act

is also not correct, inasmuch as all the said Statutes provide that any

selection made thereunder would not be invalid for the reason of any

vacancy in any of the offices required to participate in appointment

thereunder; (c) that the amendment to the effect that leader of the single

largest party shall be deemed to be the Leader of Opposition has already

been carried out in the CVC and the RTI Act and is underway in the Lokpal

and Lokayuktas Act and Delhi Special Police Establishment Act, 1946; (d)

similar amendment is also proposed in the Protection of Human Rights Act;

(e) that the Speaker is not bound to recognise anyone as the Leader of

Opposition; (f) attention is invited to the Leaders And Chief Whips Of

Recognised Parties and Groups In Parliament (Facilities) Act, 1998,

particularly to Section 2(b) thereof to contend that thereunder also only a

party having a strength of not less than 55 members in the House is eligible

to be recognised; and, (g) that the petition is liable to be dismissed

summarily for the reason of, in para 14 thereof having made reckless

allegations against the high office of the Attorney General for India and

which is indicative of the petition being not bona fide and having been filed

with a political agenda.

13. The counsel for the petitioner being unable to satisfy us that there

exists any mandate under the Constitution or under any law for appointment

of a Leader of Opposition and the only reason urged for the necessity of

appointment of a Leader of Opposition having been not substantiated, we

are not inclined to entertain this petition. Merely because a petition is filed

in public interest does not absolve the petitioner from making out a case for

the same to be entertained. Merely because a petition is filed in public

interest does not entitle the petitioner to, instead of discharging his onus, ask

the Court to conduct a roving and fishing enquiry, particularly in the present

facts. Reference in this regard can be made to para 13 of Narmada Bachao

Andolan Vs. State of Madhya Pradesh (2011) 7 SCC 639. We therefore

refuse to entertain this petition.

14. We may record that though the counsel for the petitioner read out to

us a few lines from para 22 of the dicta of the Supreme Court in B.P.

Singhal Vs. Union of India (2010) 6 SCC 331 inter alia to the effect that

the doctrine of pleasure in a democracy does not mean a licence to act

arbitrarily, capriciously or whimsically but was unable to state as to what is

the context thereof to the present controversy. The counsel also referred to

paras 97, 101 and 111 of Kihoto Hollohan Vs. Zachillhu 1992 Supp. (2)

SCC 651 to contend that tool of judicial review can be exercised over the

actions of the Speaker of the Lok Sabha but since we are not entertaining

the petition, we do not feel the need to enter into the said question.

15. The petition is accordingly dismissed. However, since the said

dismissal is owing to the petitioner having been unable to make out a case

and since the petition was filed in public interest, we clarify that the

dismissal of this petition would not constitute a precedent in an appropriate

and properly framed and argued matter, even if claiming the same reliefs.

16. Though considerable time of this Court has been taken but we are

refraining from imposing costs.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J.

JANUARY 14, 2015 'bs'