"(b) “legislature party”, in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 orparagraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions;"
Para 2 contains the grounds on which an MP may be disqualified for defection from his/her 'legislature party'. Para 4 contains some exceptions to the disqualification provisions in case of merger of legislature parties or their breakaway groups.
It must be noted that under the Tenth Schedule to the Constitution, legislature parties always stand in a clear and established relationship with the original political parties that they represent in Parliament. Para 1(c) defines original political parties as follows:
"(c) “original political party”, in relation to a member of a House, means the political party to which he belongs for the purposes of subparagraph (1) of paragraph 2;"
Sub-para (1) of Para (2) refers to the political party on whose ticket an MP contested the elections to Parliament. There is no recognition or reference to pre-poll or post-poll alliances of parties nor is there any reference to the LOP in the Tenth Schedule.
So the umbilical relationship between the political party outside Parliament and its elected representatives forming the 'legislature party' within the Lok Sabha is undeniably established in the Tenth Schedule. A mere statute of Parliament cannot override constitutional law. A legislature party does not stop representing its parent political party simply because it does not have the requisite numbers in Parliament or Legislature.In effect a legislature party is a sub-set of the larger political party it represents in Parliament.
The purpose of the Tenth Schedule is pure and simple - laying down the relationship between a political party outside Parliament/State Legislature and the respective Legislature Parties in Parliament and also the law to combat unethical defection of MPs from one party to another.
Inference drawn from a combined reading of these laws:
The following inferences can be drawn from a combined reading of these legal provisions:
a) The INC, despite being a Parliamentary Group, will still be a 'legislature party' for the purpose of the Tenth Schedule to the Constitution;
b) In terms of numbers of seats, the INC will still be the single largest party in Opposition in the Lok Sabha.
c) Ergo, the INC's leader's claim to the office of the LOP will only be legal and legitimate as per the definition of LOP given in The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977.
As for Directions 120-12 contained in the Directions of the Speaker (see attachment) experts on the subject have this to say:
"However, during the deliberations in the Janata Dal case under the Tenth Schedule to the Constitution, the provisions of the Tenth Schedule to the Constitution came in for in-depth scrutiny.
In the context of the breakaway groups that emerged due to splits in the Legislature Parties in the Lok Sabha, a view came to be established that accord of recognition to political parties came within the sole domain of the Election Commission of India.
Consequently, from the Eleventh Lok Sabha onwards, while Legislature Parties continue to enjoy certain functional facilities on the basis of their numerical strength in the House, the practice of according recognition by the Speaker in terms of Directions 120 and 121 was done away with." (emphasis supplied and foot note omitted)
(See G C Malhotra (ed.) M N Kaul and S L Shakder's, Practice and Procedure of Parliament, fifth Edn., Lok Sabha Secretariat, New Delhi, 2004, p. 360)
Indeed the Election Commission has recognised the INC as a National Political Party. Its members in the 16th Lok Saha constitute its 'Legislature Party' and also the Principal Opposition Party. Due to their numerical strength, their leader can legitimately stake a claim to the LOP's office irrespective of anything contained in Directions 120-121 of the Speaker or The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998. Nothing turns on the hairsplitting argument that the INC does not have 55 seats because that is not a legal requirement to be the single largest legislature party in Opposition in the Lok Sabha.
Hypothetically speaking, if the ruling party/alliance had secured 542 of the 543 seats, the lone member of the Opposition would still be a legislature party and also its leader for the purpose of the Tenth Schedule unless he/she won the seat as an independent candidate. So he/she would still legitimately stake his/her claim to the office of the LOP. I have said enough. Now let us wait for the Speaker's decision.