Apex court, however, provides caveat, saying “amendments need to be carried out”

The Supreme Court on April 27 rejected the government’s argument that the Lokpal and Lokayuktas Act, 2014 should be kept in abeyance till relevant laws are amended, and said that the Act stands and there was no reason to not appoint a Lokpal. The apex court, though, kept a caveat in saying that the “Act is not in workable nature and amendments need to be carried out.”

The PIL being dealt with was filed by Common Cause—represented by senior advocate Shanti Bhushan—and sought to declare the provisions of Rule 10 (1) and (4) (i) of the Search Committee (Constitution, Terms and Conditions of appointment of members and the manner of selection of Panel of names for appointment of Chairperson and Members of Lokpal) Rules, 2014 ultra vires the Lokpal and Lokayuktas Act, 2014. It also sought to declare the Search Committee (Constitution, Terms and Conditions of appointment of Members and the Manner of Selection of Panel of Names for appointment of Chairperson and Members of Lokpal) Rules, 2014 illegal.

The case was being heard by the bench of Justices Ranjan Gogoi and Navin Sinha. All hearings had been completed in the last sitting of the bench, and on April 27 the judgement was given.

The Act has remained in limbo for a few obstacles in its path.

According to the counsel, no political party wanted the overarching presence of a powerful body to watch over their actions. Hence certain technical problems were brought to the fore. These were about the constituting the members and the Lokpal.

Attorney General Mukul Rohatgi had said nothing could be done till major amendments (20 of them proposed) were written into the Act. Rohatgi had also pointed out that while the court was supreme in its province, Parliament was supreme in its own.

Section 4 of the Lokpal Act speaks about appointment. The chairperson and member will be appointed by the President after consulting the Prime Minister, the Speaker, Leader of Opposition, Chief Justice of India or judge appointed and an eminent jurist.

The first step, therefore, would be “that the four members should come and meet and recommend an eminent jurist.” But “even the first step has not been taken,” Bhushan had said. Why? “What they say is that Leader of Opposition is not defined.”

It has remained a constitutional problem in the 16th Lok Sabha. Bhushan said: “The government case is that leader of the larger (second largest) party has less than 50 members in a 543-member Parliament, constituting not even 10 percent, hence that party (Congress) cannot be said to be the Opposition and hence cannot present a Leader of the Opposition.”

Bhushan’s solution was, “only way (to construe the Lokpal Act) was to have the Leader of Opposition” from the second-largest party in the Lok Sabha. “But because the politicians never wanted Lokpal, they strongly opposed it. However, once the law is in force, it should be operated and it is the duty of the court to make sure that the law is operated.”

He pointed out that since Mallikarjun Kharge is representing second-largest party as the Leader of Opposition anyway, so what was the problem in sitting down and choosing an eminent jurist/person?

Bhushan pointed out that “there is no intention (of the politicians) to have a Lokpal who will investigate the politicians, therefore they don’t want it. Lokpal is outside of the house and is not within the realm of the speaker’s power in the house.”

The court’s April 27 judgement forces the ball to roll and solutions have to be found for the appointments.

—By India Legal Bureau