In a move to make this Act workable, the apex court has told the government that the Lokpal can be appointed even if there is no Leader of the Opposition in the Lok Sabha

~By Venkatasubramanian

Five years ago, when Anna Hazare began an indefinite fast to urge the then UPA government and the political class to pass a legislation to create a Lokpal, it galvanised people across the country. The hasty passage of the Lokpal and Lokayuktas Act in parliament in 2013 brought an end to Hazare’s agitation even though it did not help the ruling Congress itself at the hustings. One would have expected that those who succeeded the UPA would make the Lokpal a reality considering the potential it had to make and un-make governments and keeping in view the lessons of contemporary history.

With both the political class and social movements turning their back on the Lokpal issue, it required two NGOs—Common Cause and Youth for Equality—to file PILs in the Supreme Court to seek its direction on making the Lokpal start functioning. The Supreme Court bench of Justices Ranjan Gogoi and Navin Sinha after hearing the petitioners and the government for three successive years, delivered its judgment on April 27 and observed that the Lokpal and Lokayuktas Act, 2013 is a perfect legislation. It further said there is no hurdle to implement it. So, why did the political class drag its feet on implementing this Act?

After the passage of the Act in parliament, it was brought into force by a notification issued in the Official Gazette on January 16, 2014. The outgoing UPA government rightly avoided appointing the members of the Lokpal as general elections were round the corner. Strangely, the BJP government which came to power in 2014, also avoided taking steps to appoint members of the Lokpal, citing a technical requirement on who could be members of the selection committee.

The Court held: “If, at present, the Leader of the Opposition is not available…the Speaker of the Lok Sabha and the Chief Justice of India…may proceed to appoint an eminent jurist….”

Under Section 4 of the Act, the chairman and members of the Lokpal shall be appointed by the president after obtaining the recommendations of the selection committee. This committee should consist of the PM as the chairperson, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a judge of the Supreme Court nominated by the CJI and one eminent jurist, as recommended by the chairperson and the other members.

The Act makes it clear that no appointment of a chairperson or a member shall be invalid merely by reason of any vacancy in the selection committee. It has to constitute a search committee consisting of at least seven persons of standing and having special knowledge and expertise in matters relating to anti-corruption policy, public administration, vigilance, policy making, finance, law and management or in any other matter. The Act requires that not less than 50 percent of the members of the search committee shall be from among SCs, STs, OBCs, Minorities and women.

As per the results of the 2014 general elections, the Congress does not have the requisite 10 percent strength of the membership of the Lok Sabha for its chief to be recognised as the Leader of the Opposition. Therefore, the government proposed an amendment to the Act saying that where there was no Leader of the Opposition, the Leader of the single largest Opposition party in the House would be a member of the selection committee. Another amendment proposed is that an eminent jurist shall be nominated for a period of three years and shall not be eligible for renomination. Yet another one proposed that no appointment of a chairperson or a member or the nomination of an eminent jurist shall be invalid merely by reason of any vacancy or absence of a member in the selection committee.

These proposals left the Lokpal Act in deep freeze. The Bill carrying these amendments was referred to the Parliamentary Standing Committee on December 25, 2014, after it was introduced in the Lok Sabha. The Committee took almost a year to submit its report on December 3, 2015. The Committee had suggested that the Search and Selection Committees should not take any decision unless their vacancies are filled up, and recommended suitable provisions in the Bill to ensure filling up of such vacancies at the earliest. But the Committee approved the provision that the leader of the single largest opposition party be granted the status of the Leader of the Opposition for the purpose of the membership of the selection committee.

The government claimed to the Court that the report of the standing committee has been under its scrutiny for more than a year, and it will be considered in the Monsoon Session of parliament this year. It told the Court that there could be no direction to parliament to frame any law or to amend the existing one or to complete a legislative exercise within any time frame.

The Court said the Lokpal Act could be workable despite the pendency of the amendment bill in parliament. It held that the Act, as it exists, is otherwise viable, and the amendment sought to be introduced by parliament only aimed at a more efficient working of some of the provisions of the Act. “A law duly enacted and enforced must be given effect to,” the Court held. It reasoned: “If, at present, the Leader of the Opposition is not available, surely, the Chairperson and the other two Members of the Selection Committee, namely, the Speaker of the Lok Sabha and the Chief Justice of India or his nominee may proceed to appoint an eminent jurist as a Member of the Selection Committee under Section 4(1)(e) of the Act.”

The Court further held that the opinion of the Parliamentary Standing Committee against Selection and Search Committees performing their roles despite vacancies, is not sacrosanct, and does not have any material bearing on the validity of the existing provisions of the Act.

The Court’s moral exhortation will hopefully end the stalemate on making Lokpal a reality sooner than later.