Allahabad High Court: In a proceeding initiated by member of the UP Legislative Council- Lal Bihari Yadav, under Article 226 of the Constitution of India for commanding the respondents to quash and stay the operation of the impugned notification dated 07.07.2022, by which the recognition of the petitioner as the leader of the opposition in Uttar Pradesh Legislative Council has been withdrawn, Attau Rahman Masoodi and Om Prakash Shukla, JJ. has held that the reliance of the Chairman on Rule 234 of the Rules of Procedure and Conduct of Business Rules, 1956 (‘the Rules’) is a fair & judicious exercise of discretion in derecognising Lal Bihari Yadav as leader of opposition and is also in conformity to the precedent and practise of the legislative council. Further, Lal Bihari Yadav do not have an inalienable right to be appointed or to continue as Leader of Opposition and the Chairman of the Vidhan Parishad was not bound to be guided only with the criteria of recognising the leader of an opposition party, which has the greatest numerical strength.
It was the case of the petitioner that on 05.07.2022, there were 12 members of Samajwadi Party in UP Vidhan parishad, and after a day it was decreased to 9, and petitioner’s recognition as ‘leader of the opposition’ was withdrawn, which was illegal, unconstitutional and done in an arbitrary manner, without affording any opportunity of hearing.
The Court framed the following questions for consideration:
1) What is the scope of interference by this Court under Article 226 of the Constitution in a case of recognition/derecognition of leader of opposition?
Lal Bihari Yadav submitted that the order of the Chairman of the Legislative Council of derecognised the petitioner as the Leader of Opposition in the Legislative Council is not maintainable as the same is barred by the provision contained in Article 212 of the Constitution of India.
The Court placed reliance on Delhi Laws Act, 1912, In Re, 1951 SCC OnLine SC 45, Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184, and observed that, ‘State’ in Article 12 of the Constitution has included not only the ‘Government’ but also the ‘Parliament’ of India and ‘Legislature’ of each of the States. Further, it is almost established that Legislature in India is not an uncontrolled sovereign body and with unlimited powers; and in many respects their actions can be matter of judicial scrutiny. Also, judicial scrutiny regarding exercise of legislative privileges is constricted, but not altogether barred and although, there is complete immunity from judicial review in matters of irregularity of procedure, however the same is not correct for issues relating to allegation of gross illegality or violation of constitutional provisions.
Further, it placed reliance on Powers, Privileges and Immunities of State Legislatures, In re, (1965) 1 SCR 413, and viewed that Article 212 of the Constitution bars an enquiry in respect of any proceeding in the Legislature on the ground of any alleged irregularity of procedure, however, if the procedure followed, is unconstitutional or illegal then the jurisdiction of the court to examine the validity of a proceeding based on such procedure has not been ousted. Thus, there is no absolute bar on the jurisdiction of any courts.
Therefore, as Lal Bihari Yadav has challenged the impugned notification not only on the grounds of irregularity, but also on the ground of violation of principle of natural justice and Jurisdiction of the Chairman/ Speaker of the Legislative Council to derecognize a leader of opposition in the Council, thus, the power of judicial will not be barred by Article 212 of the Constitution.
2) Whether the chairman of the Legislative Council has power to de-recognise and/or recognise the Leader of Opposition?
The Court observed that the U.P. State Legislature has framed the U.P. Rajya Vidhan Mandal (Neta Virodhi Ki Suvidhayan) Niyamvali, 1981, wherein Rule 3(2) provides that if the Chairman of the Legislative Council derecognizes a leader of opposition or if the aforesaid statutory posts otherwise fall vacant, the salary would be payable on the very next day. Thus, de-recognition is not foreign to the said Act as the seat of leader of opposition may fall vacant due to various reasons, including the decrease in the numerical strength of the members of the opposition party.
Further, Section 2(h) of the UP-State Legislature (Members’ Emoluments and Pensions) Act, 1980 (‘the Act’) enables, but do not make it incumbent upon the Speaker or Chairman to recognize a member as Leader of Opposition. However, Rule 3(2) of the U.P. Rajya Vidhan Mandal (Neta Virodhi Ki Suvidhayan) Niyamvali, 1981, makes it evident that the Chairman or the Speaker has been given the power and authority to derecognize a Leader of Opposition. Hence, the respondent has neither exceeded jurisdiction nor has he exercised authority not vested in him to derecognize Lal Bihari Yadav. It was also observed that the power conferred by Section 2(h) is a discretionary power and is like any other statutory power to be exercised bona fide and in reasonable manner
Moreover, it was observed that the impugned order, wherein reliance has been placed on Rule 234 of the Rules does not suffers from any legal infirmity, since the quorum to transact business in the U.P. Legislative Council is 10 and apparently the strength of the opposition party has fallen to 9, therefore, such an opposition party alone would not be able to transact any business in the Legislative Council, and as soon as the respondent was satisfied that the strength of the opposition party in the Council has fallen below 10 i.e., the minimum number required to complete the quorum to enable the opposition party alone to transact business in the Council, Lal Bihari Yadav was de-recognized by the impugned order.
3) Whether the petitioner has a right to be appointed as a Leader of Opposition, merely as being the leader of the numerically largest party in opposition in the Legislative council?
The Court placed reliance on Imran Ali v. Union of India, 2015 SCC OnLine Del 6707 and observed that their does not exists any mandate under the constitution for appointment of leader of opposition, and merely because Lal Bihari Yadav is the leader of the numerically largest party in opposition in the legislative council does not gives him an inalienable right to be recognized as a leader of opposition, and the onus is on him to make a case for himself. Further, there is no provision in the Act which enjoins any mechanism or mandates the Speaker to recognise the leader of a party having the greatest numerical strength, to be the leader of the opposition, if the Speaker recognises any person who is the leader of a party in opposition having greatest numerical strength as the leader of opposition, he is doing so based on the practice prevailing and, therefore, has to follow the other requirements of such practice and convention.
It was viewed that whenever the Speaker recognises any person as a leader of opposition it is on the basis of precedent or practice of the Legislature, keeping in view the definition in the Act, but if the basis of recognition is not the Act, but the practice prevailing, then the Speaker must follow the practice of recognising the leader of an opposition party which has not only the greatest numerical strength as required by the Act but has also one-tenth of the total membership of the House. Thus, it was held that the impugned decision is illegal or unconstitutional.
[Lal Bihari Yadav v. Chairman U.P. Legislative Council, Writ Petition (Civil) No. 4493 of 2022, decided on 21-10-2022]
Advocates who appeared in this case:
Counsel for Petitioner: – Advocate Krishan Kanhaya Pal;
Advocate Pooja Pal;
Counsel for Respondent: – Advocate Gaurav Mehrotra.