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Arguments in SC bring out the vicious cycle in which the Lokpal and Lokayuktas Act, 2014 is stuck

By Sujit Bhar

The Lokpal and Lokayuktas Act, 2014 has remained in limbo, on paper for three years. Nothing has moved in the direction of achieving this. The entire process has moved in a vicious cycle, and there seems to be no way out of this.

This pitiful situation was brought to the Supreme Court bench of Justices Ranjan Gogoi and Navin Sinha on March 28 through a PIL submitted by NGO Common Cause, represented by senior advocate Shanti Bhushan.

The ticklish problem, according to the counsel, was that none of the political parties wanted the presence of a body with the powers of oversight and incorporating penal provisions, placed above its head. Not even the basic step has been taken in this direction.

Attorney General Mukul Rohatgi
Attorney General Mukul Rohatgi

The technical problem lay in constituting of the members and the terms and conditions therein.

The basic idea was explained by Bhushan in his submission, though later Attorney General Mukul Rohatgi presented the government’s point of view, from which it seemed that the vicious cycle would be repeated till major amendments (20 of them proposed) are written into the Act. Till then, this hangs in the balance and, as Rohatgi pointed out, the court is supreme in its province, while parliament was supreme in its own province.

The fight remains a stalemate.

Bhushan, in his submission, pointed out that this Act was passed by Parliament in 2013 “after a very long struggle. And on January 16, 2014, it was in force, and yet after three years, the Lokpal has not been appointed. Section 4 of Lokpal Act speaks about appointment. The chairperson and member will be appointed by the president after consulting with the prime minister, the speaker, leader of opposition, CJI or judge appointed, and an eminent jurist.”

The provinces are clear and clearly demarcated. Separation of powers clearly suggests that court is final in its province and parliament is final in its province. Once the law is passed then your Lordship can scrutinize it, no problem there. But until the law is passed it is in parliament’s domain

Attorney General Mukul Rohatgi in Supreme Court

He explains that 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.”

Why? “What they say is that Leader of Opposition is not defined.”

The Leader of the Opposition issue

This has remained a constitutional problem in the 16th Lok Sabha. Bhusan said: “The government’s 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.”

He went on to elaborate his feelings as a senior member of the judicial system himself. “Why was this Lokpal Bill conceived?” he asked. And then explained: “The police is under the chief minister, the CBI is under the central government, therefore when the allegations against politicians are made, neither CBI nor the police remain independent institutions. Therefore the Lokpal was created, following an international treaty that said that in case of corruption charges (among politicians) there should be an investigation by independent authority.”

The prayer of the counsel was: “Your Lordship may give a time-bound direction today that within the first two weeks, the first meeting of the four persons to select an eminent jurist should be completed, so that the Constitution of Select Committee is finished.”

He said: “I am afraid there is no rule of law in the country. My submission is that no amendment is required. Your Lordship can construe the definition of Leader of Opposition (LoP) with the help of the 1977 Act… In 2005 it was provided that if leader of opposition is not clear then the leader of the single largest party (second largest after the ruling party) will be considered. In last one-and-a-half years 87 bills have been introduced in Rajya Sabha and Lok Sabha, but only two—this Lokpal Bill and one Electricity Amendment Act—have not been touched.”

He pointed at a precedent regarding the LoP nominee. He said: “Kharge has already assumed that position (of LoP) during the appointment of CBI Director and CVC.”

There was also talk about Lokayukta. When one of the petitioners brought to the notice of the bench that only 12 states have formed and instituted a Lokayukta, Justice Gogoi said: “We will look into [the] Lokayukta [issue] later.”

The double posting issue

Another small but critical question pointed out by Bhushan was: “What is the procedure and criteria of an eminent jurist?” He asked whether the Chief Justice of India should be part of it when it ought to be an independent authority? How can someone sit as a judge of this institution (Supreme Court), asked Bhushan “when he has already shown his willingness to be a Lokpal?”

20 amendments proposed

Rohatgi said: “Fundamentally, it is the question of whether in current scenario Lokpal can be implemented. Our position is that this Act, as it stands, has many lacunae and we have proposed 20 amendments which are lying in the House.”

He also pointed out: “In the Lok Sabha there is no LoP. The Congress party wanted a LoP, but the Speaker rejected the proposal. The Act that they refer to says that the LoP should be recognized by the chairman. The Speaker has declined to make Kharge the LoP. There is bound to be a notification if you are LoP or cease to be a LoP. No notification is found here.

“LoP should be from the party which has more seats than the quorum of the house that is 1/10 of the house. Therefore, Kharge is the leader of the party, but he is not a LoP. This is not a case of casual vacancies. It has happened in the past that there has been no LoP for two Lok Sabhas,” Rohatgi pointed out.”

Rohatgi then pointed to the vicious cycle again. “An eminent jurist cannot be selected because we don’t have LoP, and therefore the procedure cannot be completed,” he said, reading from the Standing Committee report.

The amendments are in process and to change LoP to the leader of the largest party needs a large scale amendment and that is what is going on.

Separation of powers

Rohatgi also pointed out: “This is a matter of Parliament. There is separation of powers and court has nothing to do with it. Once the law is made then court can look into it, but for now it is in process of being enacted.”

The Attorney General then presented an alternative scenario: “The provinces are clear. Parliament cannot ask the court tomorrow whether this case is not being disposed of or whether when and how a particular case is being dealt with. Similarly, courts cannot enter the province of the Parliament [saying] that this bill should be passed in two minutes or that bill should be passed in one year.

“Therefore the provinces are clear and clearly demarcated. Separation of powers clearly suggests that court is final in its province and parliament is final in its province. Once the law is passed then your Lordship can scrutinize it, no problem there. But until the law is passed it is in parliament’s domain,” he said.

Justice Gogoi, lightening the discussion, asks Rohatgi: “On a lighter side, I want to know whether you support it or oppose it?”

To that Rohatgi gave a diplomatic reply, saying: “I would refrain from answering it.”

Bhushan pointed out that the Act contemplated that it should be enforced within reasonable time. “And if it is not done the court has undoubted power to issue a writ of mandamus. Your lordship should also take into consideration Section 62 with respect to Lokayukta where the centre has the power to appoint a chairperson. If they had the intention to appoint they could have exercised this power. Therefore, it leaves [it up to] the court to interpret what LoP actually means. No amendment is required.  It is for your Lordships to interpret. And only reasonable argument is that the leader of the largest party should be the LoP.”

Arguments were concluded, the judgment has been reserved.

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