The Speaker's power to recognize the Leader of Opposition is based on prevailing practice and convention, not solely on the Bihar Legislature (Leaders of Opposition Salary and Allowances) Act, 1977. The practice in India is to recognize a Leader of Opposition only if their party has one-tenth of the total membership of the Assembly.

NAGENDRA PRASAD SINGH, J.

1. The controversy in this writ application is as to whether the cancellation of recognition of the petitioner as the leader of opposition in the Bihar Legislative Assembly was valid and legal. It is an admitted position that earlier the Speaker of the said Assembly had recognised this petitioner as Leader of Opposition. The decision of the Speaker was communicated to the petitioner under letter dated 1-7-1980, a copy whereof is Annexure-2 to the writ application. In that communication it was mentioned that as the petitioner was the leader of a party which had the strength of 42 in the Assembly which had the greatest numerical strength of a party in opposition, the Speaker was declaring the petitioner as the leader of opposition in the Assembly. It appears that later there was a split in the party of which the petitioner was the leader and the strength of the party of which the petitioner remained the leader was reduced to 31. The impugned communication dated 4-10-1982 was issued on behalf of the Speaker saying that as the number of the members in the Assembly of the party of which the petitioner was the leader had been reduced from 42 to 31, the recognition of petitioner as leader of opposition was being cancelled. A copy of the impugned communication is Annexure-1 to the writ application.

2. There is no dispute that the party of which the petitioner is the leader has still the largest numercial strength on the opposite side in the Assembly. According to the petitioner, till the party in opposition of which he is the leader commands the greatest numerical strength in the Assembly, the Speaker has to continue to recognise him as the leader of the opposition.

3. The State of Bihar and the Speaker, Bihar legislative Assembly are the respondents to this writ application. The Speaker has not entered appearance, but counter-affidavit has been filed on behalf of the State of Bihar. Learned Additional Advocate General, who appeared for the State of Bihar, informed the Court that the Speaker has notice about the date of hearing of this writ application. This statement has been noted in the order dated 4-12-1982 of this court.

4. On behalf of the respondent-State the main objection has been raised regarding the maintainability of this writ application in view of Article 212 of the Constitution of India which bars any enquiry regarding the validity of any proceeding in the Legislature of State by court. While justifying the action of the Speaker on merit it has been stated on behalf of the State that for being designated as leader of opposition the person concerned should not only be the leader of a party which has the greatest numerical strength but the party in question must have one-tenth strength of the total members in the Assembly. So far as the Bihar Legislative Assembly is concerned, the total number of the members being 325, any party in opposition the leader of which is to be recognised as the leader of opposition must have at least 33 members.

5. In Parliamentary form of Government the importance of opposition has been long recognised. In England, where the Parliamentary form of Government was evolved, at a very early stage the necessity of an official opposition by the largest minority party which should be prepared in the event of resignation of the Government to assume office was recognised. With this object in view, the leader of such opposition party and some of his principal colleagues form a group popularly known as a "shadow cabinet", each member of which is given a particular activity. Realising the importance of the office of the leader of such opposition party, the leader of the opposition was allowed certain privileges and ultimately a statutory recognition was accorded. In India, because of so many separate parties in opposition, on many occasions there has arisen problem in recognising a leader of opposition in the Parliament as well as in the Assembly of the different States. H