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 state it was recognised 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. With this object in view, the leader of such opposition party and some of his principal colleagues from 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. However, the Parliament has by statutes granted certain statutory benefits like salary, official residence, to the leader of opposition in the House.
In this connection, reliance could be placed on the case of Bradlaugh v. Gossett 1883 L.R.Q.B.D. 217. where it was pointed out that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the Statute-law which has relation to its own internal proceedings. It was emphasised that what is said or done within the walls cannot be enquired into in a Court of law. In that case the House of Commons had forbidden one of its members from taking his seat in the House which was being challenged while upholding the right of the Parliament, reference was made to Blackstone’s saying. “The whole of the law and custom of Parliament has its origin from this one maxim, ‘that whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates, and not elsewhere’.”
The Constitution of India 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. 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 always it has been asserted that it has inherent right to conduct its affairs without interference from any outside body; it is the sole Judge of its own procedure being sovereign in its own sphere. However, now in view of series of judgments of the Supreme Court it is almost established that Legislature in India is not a sovereign body, uncontrolled with unlimited powers in the same sense as the British Parliament is; the functions of such Legislatures in India are hedged in by limitations of a written Constitution which distributes power between Legislature, Executive and Judiciary and in many respects their actions can be matter of judicial scrutiny. In re-Article 143, Constitution of India and Delhi Laws Act (1912) etc. AIR 1951 SC 332 it was observed as follows:
…the principal point of distinction between the British Parliament and the Indian Parliament remains and that is that the Indian Parliament is the creature of the Constitution of India and its powers, rights, privileges and obligations have to be found in the relevant Articles of the Constitution of India. It is not a sovereign body, uncontrolled with unlimited powers.
However, even the Indian Constitution indicates the sphere which is beyond the scrutiny by the Courts. Article 212 of the Constitution is one such limitation on the power of the Court. Article 212 of the Constitution is as follows:
(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.
On a plain reading of aforesaid Article 212 of the Constitution it will appear that framers of the Constitution have barred an-enquiry in respect of any proceeding in the Legislature on the ground of any alleged irregularity of procedure. If the procedure followed is unconstitutional or illegal then the” jurisdiction of the Court to examine the validity of a proceeding based on such procedure has not been ousted. This aspect of the matter has been examined by the Supreme Court in the well known reference under Article 143 of the Constitution of India and the opinion is reported in In the matter of: Under Article 143 of the Constitution of India, ; where while considering the scope of Article 212 it was pointed as follows:
Article 212(1) seems to make it possible for a citizen to call in question in the appropriate Court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from any illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a Court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.