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Writ[e] & Talk | Ep 2 | The Road Not Taken: India’s Failure to Entrench Opposition Rights
Host: Mrs. Sayantani Bagchi
Speakers: Ms. Aishwarya Singh and Ms. Meenakshi Ramkumar
Mrs. Sayantani Bagchi: Hello everyone and welcome to the second episode of Writ and Talk by the Centre for Comparative Constitutional and Administrative Law from National Law University, Jodhpur. We are delighted to have you all back to continue this inquisitive journey. With the help of this podcast, the centre aims to build clarity of ideas and build discussion on Constitutional and Administrative Law as well as academia. The centre aims to interview authors in this long-form podcast to go into depth with the themes and arguments they have raised in their published articles as well as throughout their writing process. Over to your host Assistant Professor of Constitutional Law at NLU Jodhpur Mrs. Sayantani Bagchi.
Mrs. Sayantani Bagchi: I welcome all our listeners to the second episode of Write and Talk. We are immensely delighted to host Meenakshi Ramkumar and Aishwarya Singh who authored this brilliant paper on the right of the opposition highlighting how despite the significant role played by the opposition the concern towards entrenching opposition rights in India still remains on the fringes of constitutional deliberation. I welcome Meenakshi and Aishwarya.
Ms. Aishwarya Singh: Thank you so much Professor Bagchi for inviting us, it is a pleasure to join you on this podcast.
Mrs. Sayantani Bagchi: Thank you – thank you so much, okay – so I would request the authors to go ahead with the introduction of the paper because we all listeners, we intend to understand the trajectory that the authors have followed while writing this paper, what are the arguments that they have emphasized upon and how they have gone about writing this entire research paper. Over to you so if you could please briefly tell us what you have exactly dealt with.
Ms. Aishwarya Singh: Thank you, Professor Bagchi, so basically in this article we have tried to analyse the constitutional design of the parliamentary structures in India and South Africa. So, we have essentially done a comparative analysis. The reason we ended up using India and South Africa is because there are a lot of similarities between the two countries in the sense that both countries came up from a colonial past and have diverse societies and gone through conflicts. But there are also differences in the sense that how the Indian Constitution came into being versus how the South African Constitution came into being. In the South African one, the Constitution arrived as a result of negotiations and reconciliations between the two racial groups after the Apartheid, and in the Indian context, we had this one party essentially the Congress kind of leading the framing of the constitution.
So, in this context, we have analysed how both India and South Africa have taken two different roads to opposition rights where South Africa has kind of institutionalised the role of opposition in the Constitution text itself by kind of codifying certain opposition rights. The Indian Constitution chose not to do it and perhaps this single-party system that we had at that time, or the dominance of Congress did impact this decision. Also, I think at that time because of the context of partition I think there is some sense of a centralising bias that existed at that time. So that is why we have basically taken these two jurisdictions and what we have said in this article is that because there is a codification of opposition rights in South Africa, the courts are able to play a more proactive role because there is clarity on what these opposition rights are whereas, in India, there has been a debate on having judiciary review of legislative processes that comes into conflict with Article 122 of the Constitution which says that Parliamentary proceedings are not justiciable and also apart from that there have been instances where the Supreme Court has intervened or has kind of come up with these standards – that okay the court may intervene if something unconstitutional. But basically, the application of the rule or standards that the courts have developed have been throppled.
At one instance we have the Aadhaar Judgement, Puttaswamy II and we have the Ashish Shelar case. Our primary argument is that in the absence of codification of opposition rights, this reliance on courts to intervene whenever the dominant party in the Lok Sabha claims to rise to the opposition will not really do well for our parliamentary structures. Because, it is not actually strengthening the opposition or parliament as a deliberative body, rather it is just giving more powers to the judiciary to intervene in the political process which the judiciary might not always have the ability to do so this is basically what we have discussed in this article.
Mrs. Sayantani Bagchi: Yes, Meenakshi would you like to say a few words?
Ms. Meenakshi Ramkumar: So, in terms of how we actually started writing this piece itself, so at the time we were writing this piece the issue of opposition rights was quite topical because there was an ongoing dispute at the Central Level with the Rajya Sabha and the suspension of certain members of Parliament and then there were deliberations in the public domain on you know how we can better safeguard interests of the opposition in the parliament. Subsequently, in the state of Maharashtra, we had seen a similar instance occur. The Supreme Court had stepped in around that time in the case that Aishwarya was talking about. Essentially what we noticed when we read the judgement and the judgement had come out in January was the use of provisions from Part III of the fundamental rights aspect of Articles 14 and 21 instead of actually looking at institutional solutions to safeguard the rights of the opposition parties in the parliament. So that’s where our thought process started to – you know we started to think about how you can conceive these structural conceptions of safeguarding oppositional rights and we started looking at other jurisdictions to see how they have done it. IDEA International had conducted a study a while back on protecting opposition rights and recognising the leader of the opposition and so we were looking at that study and that’s when it struck us to see the South African Model and then compare the South African Model with the Indian Model and then see and also understand came to these different solutions or this different provisions in the constitution to deal with opposition rights. I think Aishwarya explained the two jurisdictions very clearly, so I think yeah nothing further to add on that.
Mrs. Sayantani Bagchi: Alright so here in the concluding part while I was reading this paper, there is a very interesting thing that you have pointed out where you write that “in the face of the powerful majority in the parliament the opposition may be able to block the agendas of the ruling party then whether there is any benefit in institutionalising rights of the opposition”. Then to answer this you have also written that the opposition can stand as a wall between the majority rule and the tyranny of the majority. So, I am very curious about understanding if they are some objectively identifiable ways to actually consolidate this particular position that the opposition has in India because it is pretty much scattered and there’s no clear-cut recognition neither in the constitution nor anywhere else or even informally when it comes to the conventions as well. We do not see any clear-cut protection being given to the opposition so are there any set of identifiable standards that you can talk about here?
Ms. Aishwarya Singh: Yes, Professor Bagchi one thing that struck us while we were, you know, writing this paper was one way to look at it is through a constitutional amendment which is a legal process but apart from that if you have to sort of, you know, call out values of the constitution and use those values to understanding the need for recognising the need and importance of the opposition to protect those values that our Constitution enshrines and then using those values as a sort of conceptual framework to then start recognising this opposition informally or judicial norms but that may not be sufficient, you may still need some level of statutory or constitutional backing to ensure that it is actually protected through the opposition in Parliament. Values of the Constitution and use those values and sort of understanding the need was recognizing the need and importance of the opposition to protect those values that our Constitution enshrines and then using those values as a sort of conceptual framework to then start recognizing these oppositions at least informally or through judicial norm but that may not be sufficient, you may still need some level of statutory or constitutional backing to ensure that it actually those values are protected through the opposition in parliament.
Mrs. Sayantani Bagchi: Okay, Okay! Thank you so much. So, moving on to the next question so in your paper, you have talked about how the opposition keeps the majority in check which is definitely the job of the opposition, so recently as we have seen that there has been active discourse on increasing representation of vulnerable communities in the legislature especially during the farmers' protests and the Anti-CAA protests, so do you believe that such a proposition is beneficial for the democratic setting and if so, do you believe that there is a space to include this particular change?
Mrs. Sayantani Bagchi: Yes, Prof. Bagchi, one thing that may be important to note is globally, we see this trend right now where you can say representative democracy is in a crisis and some of the reasons or sort of some of the indications of this is you can see low voter turnouts, you can see larger distrust in politicians and sort of lack of accountability from politicians towards its electorate, right, and often these crisis or sort of representative democracy being in crisis is something that we do see time and again in history and globally as a phenomena not particular to the Indian jurisdiction but it’s sort of cyclic thing that we do notice and somewhere maybe these stems from the very features of representative democracy itself and political theory scholars like Nadia Urbinati and Mark Warren have sort of identify some of these features that could be problematic and that sort of first feature of ideal representative democracy that they highlight is that representation is sort of understood as a principal-agent relationship where essentially the principals are the electorate and they are electing their agents to acting their interests and, sort of another feature that they highlight is that so the electoral mechanism what they are supposed to do in a representative democracy is ensure that there are some level of interaction and some responsiveness between the principal and agent between elections and it shouldn’t be that the principal-agent relationship is something or you see interactions between these two actors only at the time of elections.
And the third sort of thing they highlight, sort of feature of ideal representative democracy is Universal Adult Franchise to ensure that there is political equality. However, as we notice, in representative democracy, just having Universal Adult Franchise is not going to ensure political equality, right, because you do have interests of the minority, vulnerable, marginalized groups that will not be represented adequately because of the majoritarian system on which our representative democracy thrives so often, there are sort of avenues that you can think of to bring in better representation of these marginalized vulnerable group and two possible ways to think about is Proportional Representation and Quotas or Reservations. When it comes to Proportional Representation, the Constitutional Assembly shot it down and said that it is too complex system for the Indian context and therefore we cannot adopt it. And when it came to reservations, they left that as an open space for us to think about because, under Article 330, you do have reservation for Schedule Caste/Scheduled Tribe members but with joint electorate. Now, this feature of joint electorate was actually criticized by some members of the Constituent Assembly like S. Nagappa for instance. He had mentioned, he actually reiterating one of Ambedkar’s earlier iterations which he made as a demand during around the Poona Pact of 1932, and what Nagappa says is that just having reservation with a joint electorate has two problems, first, the candidate may not actually be representing the community that they seek to represent and, two, there will not be an accountability to the SC/ST electorate because if you had to look at it in principal-agent relationship, if you have a joint electorate, the agent is representing not just the SC/ST community but also other community who have voted in that constituency so what Nagappa actually suggested that could be done was apart from just ensuring that the candidate has majority of votes in that particular constituency, the candidate would also have to secure 35% votes from the SC/ST community so sort of a measure to ensure that there are some level of accountability to the electorate that they are seeking to represent through this reservation process. But, once again, that was shot down so all that we are left with is reservations in a joint electorate system, so you do have space to sort of ensure there is a better representation of marginalized vulnerable communities through this reservation provision. However, there are issues in terms of looking at representation only as representation in Parliament without actual decision-making power or ability to be able to influence policy in law-making so another sort of – we can think of – alternative ways or mechanism in which we can include these marginalized and vulnerable groups to ensure that there is more substantial participation in lawmaking through public participation forums and there are so many innovations around us globally when it comes to ensuring better public participation, for example, if you take the context in Ireland and the context is citizen assemblies and when these citizen assemblies are sort of formed to ensure there is deliberation and participation of various communities, what ends us happening is you are able to carry out an exercise of consensus building even on contentious issues like abortion, they were able to garner that a sort of public will and consensus building to be able to push the government to act in a certain manner so if we can design alternative institution then I am sure a sound deliberation and participation from marginalized and vulnerable communities and we can build consensus – then I feel that alternative avenue is something that we could explore and may serve as a very sound and robust method of representation for marginalized communities.
Mrs. Sayantani Bagchi: Okay! Thank you so much Meenakshi for your answer. Now coming to another important facet that you have highlighted here and that is you have talked about the limitations imposed on the Rajya Sabha and how its constitutional standing and the legislative power it enjoys are less as compared to the Lok Sabha and how that kind of affects the standing of opposition so do you think that such a setup is primarily detrimental to the democratic interests of our country and if so, do you think that any other model, let’s say, something like that of the US Model where the houses enjoy more or less similar powers, that would be a better way for the legislative bodies to be structured to ensure mass democracy so what’s your take on this?
Ms. Aishwarya Singh: So, I think before I start answering this question, I think it is a feature of the Commonwealth Parliamentary system where you have like a strong lower house and then you have upper chambers or upper house which functions mostly as this body which kind of scrutinize or deliberates on the proposal of the lower house but doesn’t really have any push backs against proposal that have come up through the lower house. And this is the same situation in UK where House of Lords also kind of exercises only suspensive veto over the proposals of the lower house especially if there are so in the part of manifesto of a ruling party, then the House of Lords is not going to block it. I think this is the Salisbury convention. And then you have these other parliamentary acts which kind of say that you know that House of Lords can basically exercise suspensive veto where they can only send legislation back for reconsideration and then when it comes back to them, then they have to kind of approve it so they can just delay or prolong the legislation. So, what I’m trying to say is that this is not a feature of the Indian system but actually common in other commonwealth parliamentary systems as well and I think the reason for that is since we talked about change how the Rajya Sabha has been structured in terms of its powers to have better mass democracy so in that way I think the issue here is that the Rajya Sabha has never thought to be this body which embodies mass democracy. It is actually the lower house, typically considered in commonwealth parliamentary systems to be an embodiment of the democratic will and because of that the upper chambers or upper houses don’t really have so much of power, so to say, because they do not enjoy that much of democratic legitimacy and in context of India the Rajya Sabha is indirectly elected, so is not elected directly by the people, so I think, these are the reasons why the upper chambers or upper houses lack that kind of power which the lower houses might have and the US is an interesting example because it has perhaps one of the strongest upper houses or the Senate. Senate was also indirectly elected before but now after constitutional amendment it is elected by the people so now it enjoys more democratic legitimacy, so I think that is one of the reasons why the US Senate has more powers as opposed to these upper houses and other commonwealth jurisdictions which do not have such democratic backing so to say, and I think, the other reason why the Senate is more powerful is because of the strong federal character of US political system where states have come together to form this Union, but in India, we do have a slight unitary bias wherein the Union is holding the states kind of together so because of these reasons the Rajya Sabha does not enjoy the powers that Lok Sabha would but Rajya Sabha does play a very important role which is that it is a deliberative body acts as a check on the Lok Sabha because many times the composition of Rajya Sabha because it a permanent body does not mirror the composition of Lok Sabha in terms of who is in majority, who is the dominant party in the Rajya Sabha because the Rajya Sabha is more fragmented because of these different regional parties, and different states and you have more multi parties having different blocks in Rajya Sabha so because of that I think, the point is that there is an institutional design that is widely chosen to decide the kind of house we chose to do and it does make sense and if we take that as baseline that we are in your parliamentary system and this is a parliamentary central chamber where the Union has more of a centralising role as opposed to the US system which has a Presidential federal system, then we can make kind of sense of these differences. I think, the issue lies in not allowing the Rajya Sabha to function as it should which is where you have this dubious classification of money bills and you do not allow debates to actually take place in the Rajya Sabha and allow proposals to just pass without having a proper voting on them which is through voice votes and due to these issues, the Rajya Sabha has been compromised so to say and it has been going on for a long time, it is not just unique to the times that we live in but I think just ensuring the constitutional safeguards are there, the powers that the Rajya Sabha does have, to delay a legislation, to debate on a legislation, to allow a legislation that has been passed by the Lok Sabha to lapse, these are the things that we are not allowing to happen generally, so I think, that’s where the fault lies and it might not be alright to implement the US model because it's situated in a very different context and a very different section of a political system.
Mrs. Sayantani Bagchi: Alright. Thank you so much Aishwarya for this answer. Also, with regard to this particular power that is vested in the leader of the house, particularly the speaker, so you have mentioned in your article that the power to recognise the opposition leader vests with the Speaker and that for two consecutive terms, the leader of the opposition has not been appointed. So, what role do you think is the position of the Speaker, like, who has been given various discretionary powers which is often used to further the agenda of the party in the powerplay that is mentioned in your paper? So do you think there is a change in the process and how do you wish to bring about this change, especially in the leader of the opposition, who according to you, serves, or is placed in a very vulnerable position, and interestingly, as you have mentioned is not even appointed for two consecutive terms at a stretch. So how do you think this can be addressed?
Ms. Meenakshi Ramkumar: I’ll take that up, Prof. Bagchi. So just before I start on the process of appointing a leader of the opposition, let’s just take a step back to take a look at what the role of the leader of the opposition is, very briefly. So, many democracies that are sort of modelled on the Westminster system have something called a shadow cabinet. So, essentially just as you have the Prime Minister and the Prime Minister’s cabinet, you also have their counterpart that is the leader of opposition and the shadow cabinet consist of senior opposition members of the parliament. So, essentially, what the role of this shadow cabinet is to express the opposition policy with respect to particular portfolios. So, for example, in the Canadian perspective, if you had to look at it, you can see that opposition spokespersons of sorts who are called critiques. So, if you have a minister of national defence, the minister of national defence essentially shadows by defence critique. So, as the name gives an idea, the role of the defence critique is to yes, criticise or critique policies of government vis-a-vis defence and also to scrutinise the activities of the government in that particular area, that particular portfolio. But that is not the only job of the defence critique. So, what essentially the shadow cabinet is doing is also, it is like this alternative government in waiting. So, when the government loses its majority in the Parliament, and this shadow cabinet is able to prove a majority in parliament, they sort of take over. In India, we do not follow this strict system of shadow cabinet, per se, we have recognised the leader of the opposition in the Parliament since the get-go, and while this leader of the opposition is not a constitutional office, up until 1977, it wasn’t a statutory office either and the leader of the opposition was merely appointed under a directional office of speaker. The first speaker actually that came up with this directional order, GV Mavalankar and what this order among other things said was that the leader of the largest party in the opposition would be appointed as the leader of the opposition provided that the party had a strength that is one enough to constitute the quorum for sitting of the house or is 1/10th the total membership of the house. Now, because of this rule, until 1969, there was no leader of the opposition in the parliament. It was only in 1969, that first leader of the opposition was appointed. Subsequently, in 1977, you had statutory recognition of the leaders of opposition in the salaries and allowances of the leader of the opposition in the Parliament Act. In this Act, essentially, the Leader of Opposition was defined to be “a member of either the Rajya Sabha or the Lok Sabha, who was a leader of the opposition party having the greatest numerical strength and recognized by either the Speaker or Chairman of the Rajya Sabha or the Lok Sabha, as the case maybe”. So, the fact is that it is not just enough that the Leader of Opposition was a leader of the party with the greatest numerical strength in the opposition but was also required to be recognized by the Speaker or the Chairman of either house of the parliament, as the Leader of Opposition and that is where the discretion lies.
And, because this discretion lies, what has happened is even after this statutory provision, sort of recognizing the later opposition, the Speaker still relied on the directional order of having the 10% rule. So, even subsequently, between 1980 and 1989, once again, the Leader of Opposition was vacant in the parliament because of this particular rule.
Now, while this discretion is there, while clearly, the Speaker has the discretion to follow the directional order or not follow that, it would seem prudent that in particular circumstances, in today’s situation where you are required to have fifty-five members and a party has only fifty-two members, with those just those three seats, you could have claimed to have easily waived this requirement, in lieu of the larger constitutional values that you seek to protect, by having this Leader of Opposition, which is the rule of law, accountability, transparency, which are all values entrenched in our constitutional system.
But unfortunately, because there is no constitutional provision, there is no means of pushing the Speaker to even exercise this discretion. It’s not just this simple. In Canada, however, interestingly, I think it was in British Colombia, if I’m not wrong, in the 1930s, they had a similar provision with regard to recognizing Leader of Opposition and the recognized opposition party had actually lost a seat after a bye-election, which actually resulted in another party becoming numerically superior in the opposition in the house. But the Speaker determined that for the sake of convenience, the official opposition would not change. So, clearly, here the Speaker had exercised some level of discretion in sort of, considering larger requirements of the functioning of the parliament and democratic society, as a whole, in making that decision, while the same was not able to push in the Indian context because of lack of constitutional provision that can even give some level of justiciability for requiring a Leader of Opposition, in the first place.
If you look at the South African context, under Section 57(2)(d) of the South African Constitution, it says that the rules formulated by the National Assembly must include the recognition of the leader of the largest opposition party in the assembly, as the Leader of the Opposition. So, the rules pretty much use similar language. It says that the leader of the largest opposition party in the assembly will be recognized as the Leader of Opposition, as contemplated in the Constitution itself.
And, if you look at, for instance, the Pakistan context for appointment of Leader of Opposition, their rules of procedure require a submission made by the opposition, nominating a member as the Leader of Opposition and essentially, this member would be a member would be the leader of the party of the greatest numerical strength. So, this, once again, while the appointment is still made by the Speaker, there is some level of push to the Speaker to act in certain direction, which is lacking in the current framework in the Indian context.
So, this is an example of how because of deficient constitutional rules, what is essentially happening is you are excluding the opposition at a time when you are actually, because of the small size opportunities need to recognize the Leader of Opposition to ensure that there is democratic dialogue and deliberation in the parliament. And so, in order to avoid such situation, I think, it should be made clear, because we have only a statutory provision now, in the statutory provision that there is no minimum number of members to support the Leader of Opposition, and also, be actually sound in tandem with the anti-defection provision in Schedule X, because a party to be recognized as a party in the parliament, doesn’t need to have a certain numerical strength. So, in that case why the opposition party then have an additional burden to show that I am an opposition party by having a certain number of seats? So, I think this is a change that can be made statutorily, until we do think of other mechanisms to recognize the Leader of Opposition.
Mrs. Sayantani Bagchi: Thank you so much Meenakshi. Now, we will come to the last question of ours and we have two parts to this question. Now, you have talked about the institutionalization of the opposition’s position in the political process. What we intend to know is that is it possible to have or to produce a taxonomy of constitutional provisions that would create regimes of opposition rights at a global level. So, is that something that is a feasible idea? Also, the second part of the question is while reading your paper, we have understood that there is some kind of reluctance that you have shown towards accepting unwritten doctrines as a mechanism to institutionalize the opposition rights. Now, because the parliamentary form of government that we follow in India has a huge bearing, I mean, it draws a lot of inspiration from the Westminster models, where unwritten doctrines play a huger role, so, do you think unwritten norms can play a role in establishing or entrenching the position of the opposition in India, or is it better that we go for codified constitutional texts or amendments in the constitutions or explicit statutory recognition? What according to you should be the right way in institutionalizing the opposition rights?
Ms. Meenakshi Ramkumar: Professor Bagchi, I’ll take the first half of the question. So, just with regard to the taxonomy of the constitutional provisions at a global level, so, I think we can look at some examples of constitutions which do have entrenched opposition rights, sort of framework, and obviously to start off with is a sort of a very broad-brush idea, value-based conception that’s there in the South African Constitution. If you look at Article 57 of the Constitution, it clearly states that any rules or orders that are made regarding the conduct or business of the National Assembly, they will be made with due regard to the values of representative and participative democracy, accountability, transparency and public involvement. So, this is very broad-brush, sort of way of entrenching it and what this gives the courts an opportunity to at least do is to, interfere when these rules do not adhere to these values because they are required to adhere to these values from a constitutional perspective.
There are other conceptions of how we can entrench opposition rights in a constitution and is done through various mechanism. One way is ensuring representation in parliamentary committees. Now, this is also done in a broad-stroke way in the Constitutions of Malta and Madagascar, for instance, they say that the representation in the parliament should be represented or should, sort of be encapsulated even in the composition of parliamentary committees. Similarly, you have provisions for a committee of inquiry, where for instance, the Constitution of Georgia which allows investigatory commissions to be established by one-fifth of the members of parliament with approval of one-third members of parliament, to be launching inquiries against the government.
And there is another concept of appointments in fourth branch and integrity institutions, which is there in the Indian context as well, but it hasn’t been constitutionalized. Some constitutions, in fact, even give some form of veto provisions, where for example in Sweden, if there is a legalisation affecting fundamental rights, about just as few as ten members of parliament among three hundred and forty-nine members of parliament, can stall that legislation for a period of one year. And another very interesting form is in a way giving credence or a sort of deference to the judicial mechanism, is where some countries allow a certain legislative minority to refer a certain bill to a constitutional court or its equivalent for ruling on its constitutionality and this is there in the Constitution of France, for instance.
But when we’re thinking of all of these designs, we’ll have to be careful of one, the context and borrowing from these countries cannot be done blindly – it needs to be done after evaluating what’s the possibility and feasibility of implementing that in the Indian context. And then you’d also have questions of the thick and thin, in the sense, how elaborate should these mechanisms be in the Constitution or can you make it broad brush and then ensure that there is sub-constitutional statutory or executive rules that are sort of culling out the details of the skeletal framework that is there in the Constitution.
Right, Aishwarya, do you want to take the second half of the question?
Ms. Aishwarya Singh: Yeah! So, I’ll take the second half of the question. In our article, we have argued that there is a need to codify opposition rights and we have primarily done it for the reason that, we see that in the absence of codified constitutional provisions, any judiciary-created doctrines – right now we have the standard of judicial interventional legislative process if it suffers from gross illegality or if it violates any constitutional provisions, so that is the standard that we have. But again, it is also kind of a vague standard and that is why you have this uneven application. That’s why we argue that the need for codification, so that you don’t have, you know, this application of this judicial – and because the application of this standard could be arbitrary, it could be completely dependent on the judge in question. And in some ways, it could also violate this idea of separation of powers between the judiciary and the legislature, if such a standard is applied too broadly.
So, in that way, we feel that it is also important – and you brought up UK – it is also important to codify such opposition rights because we don’t really have this established idea of conventions that the political actors should follow, you know while conducting themselves in Parliament, as opposed to the UK. And these conventions in the UK have a constitutional status. Although they are not judicially enforceable, I mean that’s generally the understanding – that’s what Dicey, who first wrote about them said, they are not judicially enforceable, but still, they are kind of universally followed and you know if a political actor does not follow them, he’s kind of side-lined politically – he or she is side-lined politically. Because we do not have these constitutional conventions and what we have is a big-sea constitution, you know that some scholars use these definitions of having ‘big-sea’ constitutions which are these – there is this one legal document which kind of contains all the constitutional provisions as opposed to the UK, which could be characterized as a country having a small-sea constitution where they do not have this one single document that contains all constitutional rules. So, in a country where you do have a big-sea constitution, I think it is useful for the constitutional provisions to clearly specify, you know, what sort of rights are given to the opposition in the country.
And other than that, it is also important that you know, the Constitution does not become a text which just interpreted by the Court, but it should also be a text which the other organs of the State follow and understand. So, if there is no codification of the rights and duties in the Constitution itself on how the majority party is supposed to behave, on how the opposition is to behave, then it would be very difficult to ensure some sort of compliance by the political actors of these rules. It’s very much possible that the Court may say something but the legislature or the political actor may just get around it or not really follow it. And this kind of over-reliance on courts to act as a check on the political processes is also kind of misplaced because the Court is not doing that, which is also not its job. It’s not a question of enforcing fundamental rights, political actors are supposed to be. If the court is not intervening in something like that, then what you want is that the political actors are empowered, themselves, to protect their rights and this sort of codification is important.
And the public will also know that these rights are something which the Constitution itself provides. What we have right now is a very scattered governance of the legislative process. You have some Speaker directions, you have some rules of conduct, the business of Lok Sabha, then you have this statute which recognizes the leader of opposition. This kind of context – there’s not clarity on whether a sort of conduct is actually violative of the Constitutional ideal. So, that’s why I think it’s important to have this codification of these rights.
Mrs. Sayantani Bagchi: Alright, so we come to an end of this discussion, and I think this was absolutely brilliant. And this discussion has come at an opportune time because when it comes to opposition rights, we’ve seen number of times that even within the Parliament and outside the Parliament – the opposition after years of indifference, the opposition has reacted in a different manner. And also, the approach adopted towards the opposition, even that is something very very difficult to analyse. Because there has not been any consistency – the concern has been majorly that of indifference. So, of course, generally, when we see the protests and the disruptions within the Parliament – of course, these things are pretty much alarming and as a result of this we see that the opposition has found its place before the media 24x7 trying to cover these stories. So, generally, you know, that is something which is very unfortunate because opposition is constructively accommodated within the political domain, the political space. I think that would contribute the most towards building democracy, in its true term. So, thank you once again, Meenakshi and Aishwarya, for sharing the absolutely intriguing insights with all of us. We all have enjoyed the session thoroughly, thank you once again.