New Delhi, Aug. 19: Lok Sabha Speaker Sumitra Mahajan has decided not to grant leader of Opposition status to the Congress following legal opinion that cited the 10 per cent rule to be eligible for the post.

The Congress has 44 MPs in the 543-member House, 11 fewer than what it needs to qualify for the status under this rule framed by G.V. Mavalankar, independent India’s first Lok Sabha Speaker.

The decision not to grant the status followed attorney general Mukul Rohatgi’s advice last month. The law officer had said the party seeking the status of leader of Opposition must have at least 1/10 of the total number of seats in the House, which works out to 55 seats in the 16th Lok Sabha. As the Congress does not have the requisite strength, it cannot stake claim to the post.

Mahajan also cited precedents, saying several Houses in the past didn’t have a leader of Opposition for lack of requisite strength enjoyed by any Opposition party.

Congress leader in the House Mallikarjun Kharge expressed disappointment but refused to spell out the future course of action without consultations with the leadership.

Other Congress leaders who spoke off the record conceded that the Speaker’s decision couldn’t be challenged in the Supreme Court, which has indicated its reluctance to interfere in the dispute.

The court had dismissed a public interest petition, saying the Speaker’s decision was not open to judicial scrutiny.

The Congress had submitted a memorandum to the Speaker signed by 60 members to support its claim, but Mahajan said a Speaker had to go by rules.

“The Speaker does not have any personal discretion. A Speaker is supposed to follow rules. I have to go by rules. There are ‘Directions of the Speaker’ which mandate 10 per cent strength for a party in the Lok Sabha to be recognised as leader of the Opposition. If anybody wants a change in them, then a committee can be formed to look into them. But I need to follow the rules. I cannot do anything on this,” she said yesterday.

The Congress had built its case on a law that was enacted in 1977. The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977, defines the leader of Opposition as “a member of the Council of States (Rajya Sabha) or the House of the People (Lok Sabha), as the case may be, who is, for the time being, the leader in that House of the party in opposition to the government having the greatest numerical strength and recognised as such by the chairman of the Council of States or the Speaker of the House of the People, as the case may be”.

There is no mention of a 10 per cent criterion.

Some Congress leaders still believe the Speaker’s ruling can be challenged in court. Others said they would rather use the decision to convey the message that the Narendra Modi government was not democratic and that a new legal scheme had overtaken the 10 per cent criterion.