The Allahabad High Court dismissed the petition filed by Lal Bihari Yadav leader of Samajwadi Party challenging Uttar Pradesh Government notification derecognizing him as the leader of opposition in the U.P Legislative Council.
The Division Bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla passed this order while hearing a petition filed by Lal Bihari Yadav.
This proceeding has been initiated under Article 226 of the Constitution of India by the petitioner seeking two fold reliefs;
(i) A direction has been sought in the nature of mandamus commanding the respondents to 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which the recognition of the petitioner as the leader of the opposition in Uttar Pradesh Legislative Council has been withdrawn; and
(ii) A direction has also been sought in the nature of Certiorari, seeking quashing of the said 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which the recognition of the petitioner as the leader of the opposition in Uttar Pradesh Legislative Council has been withdrawn.
Article 168 of the constitution of India provides for a Legislature in every state of the country. The same article mentions that where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council (Vidhan Parishad in Hindi) and the other as the Legislative Assembly (Vidhan Sabha in Hindi), popularly known as the upper house and lower house respectively.
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While all the states of India and even some union territories have Legislative Assembly, however the presence of Legislative Council is restricted to only a few larger states, including the state of Uttar Pradesh. As of now, there are six states which have legislative councils namely the state of Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana and the State of Uttar Pradesh.
The petitioner Lal Bihari Yadav is an elected member of the Uttar Pradesh Legislative Council since 2020 (Annexure-3 of the writ) and also a candidate of the political party, the Samajwadi party. The petitioner was recognized as a leader of the opposition in the Legislative Council (Vidhan Parishad) under section 2(h) of the Uttar Pradesh State Legislature (Members, Emoluments and Pension) Act, 1980 vide a letter dated 27.05.2022 issued by the Principal Secretary, Vidhan Parishad, Uttar Pradesh.
Apparently, no reason or any criteria have been mentioned in the said letter relating to the appointment of the petitioner as the “Leader of the Opposition” and the only reference made in the said letter is that the petitioner is being appointed as “Leader of Opposition” in terms of section 2(h) of the Act.
It is the case of the petitioner that as on 05.07.2022, the number of members of Samajwadi Party in Uttar Pradesh Vidhan parishad was 12 (Twelve) and it was decreased on 06.07.2022/ 07.07.2022 to 9 (Nine) and as such the petitioner’s recognition as leader of opposition was withdrawn, which according to the petitioner was illegal, unconstitutional and in an arbitrary manner, without affording any opportunity of hearing. Thus, the petitioner has approached the court under the writ petition.
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Mohd Arif Khan, Senior Advocate assisted by K.K Pal for the petitioner, Counsel appearing for the Petitioner while explaining the definition of “Leader of Opposition” as found in section 2(h) of the Uttar Pradesh Legislative Council, 1980, sought to draw pari-materia reference to the meaning of a leader of opposition in the houses of Indian Parliament.
According to him, the leader of opposition is a statutory post and is defined in the salaries and allowances of leaders of opposition in parliament Act, 1977 as the leader of the numerically biggest party in opposition to the government and as such recognised by the Speaker/Chairman.
The Counsel has also drawn reference of definition of leader of opposition as defined in section 2(b) of the Gujarat Assembly (Leader of Opposition) salary and allowances Act, 1979 to contend that even in the said Act, the leader of the opposition has been defined to mean the member of the assembly who is for the time being the leader in the assembly of the party in opposition to the state government having the greatest numerical strength in the assembly.
Gaurav Mehrotra, counsel appearing for the respondents has vehemently opposed the writ petition and filed a Convenience Compilation/ primary point of Arguments.
Mehrotra has resisted the writ filed by the petitioner on several grounds. However, the fulcrum of his argument was basically on four points namely (i) Jurisdiction/power and authority of the Chairman of the Uttar Pradesh Legislative Council to recognize / derecognize the Leader of Opposition; (ii)The writ petition being not maintainable against the impugned order dated 07.07.2022; (iii) Merits of the Impugned order dated 07.07.2022; (iv) Petitioner cannot claim the position of leader of opposition as a matter of right and opportunity of hearing.
The Court said that,
In the understanding of the Court, our Constitution while defining “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. The mention of the phrase “Parliament of India and Legislature of the state” has special significance. From time-to-time controversy has arisen as to whether the Legislature while exercising its functions under the Constitution is subject to judicial scrutiny by courts. On behalf of the Legislature, it has been always asserted that it has the inherent right to conduct its affairs without interference from any court of law and it is the sole Judge of its own procedure as being sovereign in its own sphere.
However, now in view of a series of judgments of the Apex Court it is almost established that the Legislature in India is not a sovereign body uncontrolled and with unlimited powers and in many respects their actions can be a matter of judicial scrutiny.
The Court further said that,
In this facts & circumstances, apparently Section 2(h) of the Uttar Pradesh State Legislature (Members’ Emoluments and Pension) Act, 1980 defines ‘Leader of Opposition’ as the member of the Assembly or the Council who is for the time being recognized as such by the Speaker, or the Chairman, Deputy Chairman or Parliamentary Secretary. What is the scope of the power of the Speaker while recognising a person as the leader of opposition?
In the Act there is no indication as to what factors have to be taken into consideration by the Speaker or the chairman for the purpose of recognition. In fact, none of the sections of the Act in terms imposes any duty on the Speaker or the chairman to recognise any Leader of Opposition. This court has already referred to the different provisions of the Act. Its sole object is to make provisions for payment of salary, allowances and certain other benefits to the leader of opposition. With that object in view, the Act gives the definition of leader of opposition.
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 opposition. The power of recognition of any such leader by the Speaker is not to be exercised under this Act. 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 on the basis of the practice prevailing and, therefore, has to follow the other requirements of such practice and convention.
Thus, in the considered view of the court, whenever the Speaker recognises any person as a leader of opposition he does so on the basis of precedent or practice of the Legislature in question, keeping in view at the same time, the definition in the Act, If the basis of recognition is not the Act in question but the practice prevailing then he has to follow the practice of recognising the leader of an opposition party which has not only the greatest numerical strength as required by the definition in the Act, but has also one-tenth of the total membership of the House. In that event, it is difficult to hold that the impugned decision is illegal or unconstitutional.
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“In view of the discussion and the prevailing law, the petitioner does not have an inalienable right to be appointed or to continue as Leader of Opposition. The Uttar Pradesh State Legislature (Members’ Emoluments and Pension) Act, 1980 does not prescribe any mechanism for recognising a leader of opposition. 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. The rules provide for discretion of the Respondent no1 (Chairman /Sabhapati U.P Legislative Council Vidhan Bhawan Lucknow) to recognize and/or de-recognise a Leader of Opposition. The reliance of the Respondent no 1 on rule 234 of the Rules of Procedure and Conduct of Business Rules, 1956 is a fair & judicious exercise of discretion in derecognising the petitioner as leader of opposition and is also in conformity to the precedent and practise of the legislative council.
Accordingly, for all the aforesaid reasons, we do not find any infirmity or violation of constitutional provisions in the impugned order dated 07.07.2022″, the Court observed while dismissing the petition.