Who is Leader of the Opposition?

The Leader of the Opposition is that the politician who leads the official opposition in either House of the parliament of India. The Leader of the opposition is that the parliamentary chairperson of the party with the foremost seats after the govt party. The Leader of the opposition is a statutory post defined under the definition clause Section 2 of The Salaries and Allowances of Leader of Opposition in Parliament Act, 1977.

“Definition.—In this Act[2], “Leader of the Opposition”, in relation to either House of Parliament, means that member of the Council of States or the House of the People, 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 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.

Explanation.—Where there are two or more parties in opposition to the Government, in the Council of States or in the House of the People having the same numerical strength, the Chairman of the Council of States or the Speaker of the House of the People, as the case may be, shall, having regard to the status of the parties, recognize any one of the Leaders of such parties as the Leader of the Opposition for the purposes of this section and such recognition shall be final and conclusive”.

To claim the position of “official opposition” in either house of the parliament, a party has to secure 55 seats (10%) of the seats in Lok Sabha and 25 seats (10%) of the seats in Rajya Sabha (Mavlanker Rule).The Leader of the Opposition is recognized by the chairman of the Rajya Sabha or the speaker of Lok Sabha.

And it is also provide that the Leader of the Opposition in the House of Lok Sabha shall inducted as a member of the selection committee in the appointment of Central Vigilance Commissioner and Vigilance Commissioner, when no such Leader has been so recognized, include the Leader of the single largest group in opposition of the Government in the House of the People.[3]

Leaders of the Opposition in Lok Sabha & Rajya Sabha

The parliament had recognized no Leader of the Opposition until 1969. In Lok Sabha, the post was also vacant between 1980 and 1989 and at present, since 2014. In Rajya Sabha , the Leader of Opposition should satisfy three conditions, namely,

1.     he should be a member of the House

2.     of the party in opposition to the Government having the greatest numerical strength and

3.     be recognised by the Chairperson of the Rajya Sabha (Vice-president of India)

Current Leader of the Opposition in Rjya Sabha is Ghulam Nabi Azad from Party Indian National Congress from 8 June 2014 to till now.[4]

Main Content

During 16^th Lok sabha, the then Speaker was Sumita Mahajan, who refuse to recognize the congress party as leader of opposition. Last year in 2019, MP Adhir Ranjan Chowdhury was chosen by the Congress as its leader within Lok Sabha. The new appointed Speaker Om Birla has not appointed him as the Leader of Opposition. A petition has been filed in the Delhi HC seeking a direction to the Lok Sabha Speaker to appoint a Leader of Opposition for the 17th Lok Sabha contending that denying the second largest party the leadership in the parliament sets the wrong precedence and dilutes the democracy.

Brief history of opposition parties in India

For a healthy Parliamentary democracy it is always considered essential that there should be a strong opposition. But in India the position has been quite different. It may be said that for quite some time it was believed that opposition’s role is only negative but with the passage of time it is appreciated all over, that it has positive role to play in national politics. Hence one of the biggest parliamentary achievements of our country is that the role of the opposition has been formally recognized and given a due place in parliamentary system.

Post independence

After the independence of India, INC enjoyed great respect and confidence of the people. It was difficult to differentiate them from authority. When the first general elections were held in the country Congress under the leadership of Pt. Nehru swept polls both of the Centre as well as the States. By this time, however, Shyama Prasad Mukherjee founded Bhartiya Jana Sangh as an opposition party. The Socialists under Ashok Mehta and the Communists also began to oppose the Congress party on its policies and programmes. By 1962 elections the Communists, the Socialists, Swantantra Party and Bhartiya Jana Sangh had started making their dents.

Present status

The Congress has won 52 Lok Sabha seats in the just-concluded Lok Sabha election and remains the main Opposition party in the house. However, like the 16th Lok Sabha, the Congress has not qualified to have a Leader of Opposition in the 17th Lok Sabha. In the 16th Lok Sabha, the largest party in the Opposition, the Congress, had 44 seats. After careful consideration, it was decided not to recognise the party’s leader as LoP. Now, the matter needs to be revisited in the context of the 17th Lok Sabha.

The Congress demanded an amendment to the relevant laws to allow the single-largest party in the Opposition to send its legislative party leader to attend meetings of key appointment panels. Amendment was made with regard to the appointment of the CVC and also the CBI director but the Lokpal Act was not modified to bring the single-largest Opposition party on board if it did not secure 10 per cent seats in the Lok Sabha.

Significance of Leader of the Opposition

Leader of the Opposition plays an important role in providing practical criticism of the ruling party. Consultation of the leader of the Opposition also required at the time of important appointments. There is a great responsibility of office of the Leader of the Opposition. It is also said that Leader of Opposition are called as the ‘Shadow Prime Minister’. The Leader should be ready to take over if the government falls in any adverse circumstance. In case of vacant position of such Leader of the Opposition, It will weaken India as the Opposition will not be able to put up a unified front against the ruling party. The leader of the opposition plays an important role in bringing cohesiveness and effectiveness to the oppositions functioning in policy and legislative work. It also helps in bringing neutrality to the appointments like institution of accountability and transparency such as CVC, CBI, Lokpal, CIC, etc. The other role of the leader of Opposition is to watch for the violation of rights of minorities. They can also demand debates on such crucial issues, when the government is trying to slide away without parliamentary criticism. Therefore, the Leader of the Opposition must be familiar with all the mechanism of working of ruling government and all the tricks of skilled parliamentarian. All in all the main function of the opposition part is to check policies during question hour, provide fair criticism , has right to check expenditure, attract media and press and act as monitor over ruling party. All these power are given under constitution. Public Accounts Committee is there whose chairmen are none other than Leader of the Opposition to check the expenditure of the ruling party.

Last year in Rafale case, Rahul believed Rafale was a scam and perhaps as he claimed in different public rallies in the run-up to the Lok Sabha election in 2019. This belief landed Congress Party in big problem which is evident from the result of the election also because there was no proper fact or report to support their statement. But in February, 2019 the Comptroller General of India (GAC) pointed out several issues with NDA’s deal that could make the government sweat. There are several such examples which shows the significant role of leader of opposition in our Indian government.

 Reforms requires in Leader of the Opposition

No matter whosoever gets the majority, the Leader of the Opposition is critical to effective functioning of the opposition in the Parliament. Now that there is a law recognizing the Leader of the Opposition, passed by the Parliament, it has to be enforced and it can’t be overlooked or undermined, no matter what the flexibility or ambiguity that exist in the legal framework. There arises a drag when no party in opposition can secures 55 or more seats. In such situations, the numerically largest party in the opposition should have the right to have a leader recognized as leader of the opposition by the speaker.

Conclusion

Under India’s almost unique system of state, the Leader of an Opposition features very special responsibility towards the Parliament and to the state. During circumstances like foreign danger or also in matters affecting the security and safety of the realms the Leader of the Opposition plays an vital role in the ruling Government. While he remains a critic he must during a sense be, a partner and even a buttress of the Govt to which he is opposed. This dual responsibility he must discharge with fidelity.

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India is a country of religious pluralism and cultural diversity. This largest democracy is combination of 28 full-fledged States and 8 Union Territories at present. The Hindu religion is predominant in many of these constituents. Its followers share almost 80% in a country population of 1028 million[2]. Then 138 million Muslims of India with a predominant sunni majority are the second largest community[3], then 24 million, the Christians with a predominant catholic majority are country’s third largest community[4], the Sikhs with a total population of 19 million next to them are Buddhists 8 million followed by 4 million Jains scattered all over the country[5]. Other than these 6 million, Zoroastrian, Jewish and Baha’i groups and number of tribal faiths prevailing over certain part of the country whose separate religious entity is recognized by state law[6].

Religion under Indian Constitution

India is a secular state as mentioned under Preamble[7] of the constitution. The term ‘secular’ was added by 42^nd Constitutional Amendment Act of 1976. However, as the supreme court said in 1974, although the words ‘secular state[8]’ were not expressly mentioned in the constitution , there could be no doubt that constitution-makers wanted to establish such a state and accordingly Article 25-28 (guaranteeing the fundamental right to freedom) have been included in the constitution.

There is no substantive role of religion in the affairs of the State, but also there is no ban on allowing it a ceremonial role in State functions. There are various dimension of religion which can be stipulated from our Indian Constitution. The availability of freedom of religion is given to persons who include citizens as well as foreigners. Another dimension is types of State on the basis of religion, there are three types State,

1.      Religious / Theocratic State – Such state endorses a particular religion or in other words there is a State sponsored religion and the state is pro-religion and devout state, for example- Saudi Arabia

2.      Irreligious/ Agnostic State – Such state does not believe in God or religion. So it an anti- religion state. People of this state are atheist , for example – USA

3.      Secular /tolerant State – Such state gives equal respect and recognition to all religions. Such state is neutral and people are tolerant , for example – India

There are two types of secularism,

1.      Negative Secularism & Positive Secularism.

In negative secularism the state erects a wall of separation between itself and god. Such state disregards religion and all religious doctrines. For example- USA .And in positive secularism the state is only concerned with the relation of man to man and not relations of man to god, it is left to individual conscience. Such state shows reverence and respect towards every religion equally. For example- India. Our Indian constitution embodies the positive concept of secularism i.e., all religions in our country (irrespective of their strength) have the same status and support from the state[9].

In a leading case, the SC state that secularism is “more than a passive attitude of religious tolerance; it is a positive concept of equal treatment of all religions,” asserting at the same time that “when the State allows citizens to profess and practise religion it does not either explicitly or impliedly allow them to introduce religion into non-religious and secular activities of the State”[10]

It is mentioned under our Indian Constitution[11] that person has Freedom of Conscience it means inner freedom to mould ones relations with God, other human beings and living creatures. & Right To Freely –

-PROFESS RELIGION- It means to declare freely and openly one’s religion. No person can be ex-Communicated from a particular religion[12] but conversion to any religion should be for a bona fide purpose and should be motivated by genuine faith in the religion[13],

-PRACTISE RELIGION-It means to follow the religion and following customs, rituals and ceremonies associated with the religion. Muslims do not have a fundamental right to sacrifice animals on Bakrid[14]. Right to worship does not include right to worship at any particular place[15],

-PROPOGATE RELIGION-It means the right to disseminate and publicise the tenets and doctrines of one’s religion. Right to propagate religion does not include right to forcible conversion because this would impinge upon other person’s freedom of conscience[16].

But this is not an absolute right under article 25 this also comes with restrictions as

 HEALTH PUBLIC-such as restriction on use of loudspeakers for Azaan,

ORDER- such as Relocation of mosque due to constant clashes in the area was held to be valid,

MORALITY – such as Jain monks can be prohibited from moving naked in public places, &

OTHER FUNDAMENTAL RIGHTS- such as restricting women’s entry in temples, mosques etc.

Emerging concept of secularism

EARLIER TREND

Religious Neutrality -This is said to convert into apathy and indifference – it reduces the role of state to a mere mechanical role.

PRESENT TREND

Religious Plurality- Now the shift is towards pluralism i.e. making one section of citizens professing a particular religion understand and respect the religious beliefs of other section of citizens.

CASE – ARUNA ROY V. UNION OF INDIA (NEW EDUCATION POLICY CASE)[17]

The new education policy which proposed the school curriculum to include lessons about major religions and their core beliefs was held to be in line with the concept of secularism – this would actually promote secularism and pluralism.

CASE – SANTOSH KUMAR V. SECRETARY, MINISTRY OF HRD[18]

Compulsory teaching of Sanskrit in schools was held to be constitutionally valid on the ground that Sanskrit is the mother of all Aryan languages.

Conclusion

India is a unique State, believing in secularism and yet preserving its spirituality through constitutional provisions, legislation, State policy and judicial pronouncements. Maintaining a rational balance between secularity and religiosity, accommodating religious sensitivities of the people to a reasonable extent, avoiding religion-based discrimination among the citizens as far as possible, and endeavoring to put them on a par regardless of religious affiliation, are the basic features of religion-state relations in India. God and Caesar both have a place under the constitutional and legal set up of the country, but the scope of “what belongs to God” remains wider in India than in most other professedly secular societies.

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Section 32 (1) of Indian Evidence Act, 1872 makes relevant and admissible evidence a Dying Declaration i.e., a statement made by a person who is dead and statement relates to cause of a death or to the circumstances of transaction resulting in his death.

Dying Declaration is an exception to Hearsay Rule of Evidence. As a general rule hearsay evidence is excluded and the best evidence is given in every case [Myers v DPP][1]. Section 60 of Indian Evidence Act, 1872 also declares that evidence in all cases must be direct. However, Dying Declaration creates an exception to this rule and the objective behind making Dying Declaration relevant in spite of it being a hearsay , can be found in the maxims – “NEMO MORITRUS PROESUMITUR MENTICE” which means that a person will not meet his maker without a lie in his mouth.

Dying Declaration is permissible on the principle of necessity as the person whose statement is offered is either dead or not available and no better evidence can be had.

 The general principle on which this species of evidence is admissible is that these are declaration made in extremity, when the party is at the point of death, when every hope of this world is gone, when motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth [R v Woodcock][2]

In the above case it was observed that ‘it is situation so solemn considered by the law , as creating an obligation equal to that which is imposed an obligation equal to that which is imposed by an oath administered in a court of justice’.

Essential element for invoking Sec.32 (1)

ü There should be a statement oral/written of a person who is dead.

ü The statement have been made as to cause of his death or as to any circumstances of the transaction which resulted in his death

ü The cause of that person death must be in question i.e., it must be in fact in issue.

ü It is not necessary that when the statement were made the person was or wasn’t under an expectation of death what matters is that the person making the statement must eventually die.

ü Dying Declaration will be relevant whatever may be the nature of proceeding i.e., under section32 (1) in civil as well as criminal proceedings

The testimony of an ordinary witness is an admissible as evidence only when other party is given the opportunities to cross examine such witness. This opportunity of cross examination is not possible under section 32(1) because the person making the statement is dead

However, by virtue of sec 158 IEA the statement can be contradicted or the credibility of the maker of the statement can be impeached in the same manner as that of an ordinary witness

A statement would be relevant under sec. 32(1) only when the death of a person making statement is proved. This is provided under section 136 IEA which state that if the fact proposed to be true is one of which evidence is admissible only upon proof of some other fact. Such last mentioned fact must be proved before evidence is given of the fact first mentioned. This implies if Dying Declaration has to be proved then party proving Dying Declaration will have to first prove the death of a person. Death has to be proved and even be presumed under section 107 & 108 IEA.

Corroboration of Dying Declaration

The S.C in Atbir v. Govt. (NCT of Delhi)[3] has summed up the legal proceedings governing dying declaration.

ü  The dying declaration can be sole basis of conviction if it inspires full confidence of the court.

ü  The court should be satisfy that the deceased was in a fit state of mind at the time of making the statement and it was not the result of tutoring, prompting or imagination.

ü   When the court is satisfied that the declaration is true and voluntary it can base its conviction without any further corroboration.

ü  It can be laid down an absolute rule of law that Dying Declaration cannot firm the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

ü  Merely because a Dying Declaration doesn’t contain all the details as to the accordance it is not rejected.

ü  If after careful scrutiny the court is satisfied that it is true and free from any error and coherent as well as consistent. There shall be no legal impediment to make it the basis of conviction even if there is no corroboration.

Difference between English Law & Indian Law in Dying Declaration

1.      In India, Dying Declaration is relevant. Whether the person who made it was or wasnot at the time when the statement was made under expectation of death. However. In England the statement would be relevant as Dying Declaration only when it has been made in a settled, hopeless expectation of eminent death.

2.      In England, the admissibility of Dying Declaration is confined to homicidal cases only. This is not position in India and it would be relevant whatever the charge may be provided the cause of death comes under inquiry.

3.      In England, a Dying Declaration is relevant in Criminal Proceeding only; in India it is relevant in civil as well as criminal proceedings.

Conclusion

No doubt, Dying Declaration is an important piece of evidence to guide the courts in the onerous task of finding the truth. That’s why it is an exception to hearsay rule. And it is permissible on the principle of necessity. Such an important piece of evidence must carry sufficient weight as to the truthfulness of the contents therein. Thus, courts suggested for due caution and if the statement stands to meet the parameters there is enough scope to rely upon it. Section 32(1) of the Act has been intelligently designed in such a manner as to cover any eventuality in respect of a statement which happens the last words of a person who directly perceived the offender.

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