THE SUPREME Court ruled on Thursday that the Lokpal could be appointed even in the absence of a Leader of Opposition in the Lok Sabha. Stating that the Lokpal and Lokayuktas Act, 2013 is an “eminently workable piece of legislation”, the court said “there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out”.
Under the Act, the Lokpal has to be appointed by a selection committee comprising the Prime Minister, Lok Sabha Speaker, Leader of Opposition in the Lok Sabha, Chief Justice of India or his nominee, and an eminent jurist. But since the Congress does not have the required 10 per cent of the total seats in the Lok Sabha, it has been denied the Leader of Opposition’s status.
“If, at present, the Leader of Opposition is not available, surely, the chairperson and 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,” held a bench of Justices Ranjan Gogoi and Navin Sinha.
The bench maintained that the government does not need to wait for the law to change so that the position of Leader of Opposition in the selection committee can be substituted with the leader of the single largest party in the Opposition.
Responding to the PILs filed by NGOs Common Cause and Youth For Equality, Attorney General Mukul Rohatgi had earlier told the bench that the Act was being amended to make the necessary substitution. He said the Lokpal selection process would begin when the amendment is passed by Parliament.
But senior lawyer Shanti Bhushan and advocate Gopal Sankaranarayana, who represented the NGOs, had claimed that the government was delaying the amendment since it did not want a Lokpal. They said the government had already amended various other statutes, including those for selection of Chief Vigilance Commissioner, CBI chief and Chief Information Commissioner, to make the change with regard to Leader of Opposition.
In December, the apex court had asked the government whether it would make the change on its own, or if it should read down the Lokpal Act to give a place to the leader of the single largest opposition party in the selection committee. The court had observed that it would not let the Lokpal become “a dead letter” or “redundant”.
However, the bench declared on Thursday that the government could appoint the Lokpal right away without waiting for the law to change. “The Act, as it stands today, is an eminently workable piece of legislation and there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out,” it said.
Reacting to the court’s ruling, Congress leader in Lok Sabha Mallikarjun Kharge told The Indian Express that the government could have issued an ordinance if it wanted the Lokpal to become functional. He expressed concern that after the SC ruling, the government could appoint anyone, without consulting the Opposition.
The court also held that there was no “legal disability” for the selection committee — without the Leader of Opposition — to constitute a search committee to prepare a panel of persons for consideration for appointment as the chairperson and members of the Lokpal.
“…absence of such a provision (in the Act), by itself, will not invalidate the constitution of the search committee by the truncated selection committee when the Act specifically ‘empowers’ a truncated selection committee to make recommendations for appointment of the chairperson or members of the Lokpal. To hold otherwise would be self-contradictory,” said the bench.
The bench also held that there was no “constitutional infirmity” in the Lokpal Act if it had not given primacy to the opinion of the Chief Justice of India as a member of the selection committee. “It is not the mandate of the Constitution that in all matters concerning the appointment to various offices in different bodies, primacy must be accorded to the opinion of the CJI or his nominee,” said the bench as it dismissed a petition that questioned the validity of a provision in the Act in this regard.
About a recommendation by a parliamentary standing committee in 2015 to replace the Leader of Opposition with the “Leader of largest Opposition Party”, the court said this was “merely an opinion” which has to be first considered by the Executive, and then approved by the Legislature. “The said opinion… would therefore not be sacrosanct. The same, in any case, does not have any material bearing on the validity of the existing provisions of the Act,” it said.
The court said that various other recommendations of the committee were aimed at streamlining the operation of the Act. “Such attempts cannot halt the operation and execution of the law, which the Executive in its wisdom has already given effect to and has brought into force by resorting to the provisions of Section 1(4) of the Act,” it held.