Maintaining that it would not let Lokpal become “a dead letter” or “redundant”, the Supreme Court Wednesday questioned the Central government why it has not appointed the anti-corruption ombudsman in the last two years if it was really concerned about checking corruption and bringing probity in public life. A bench led by Chief Justice of India T S Thakur observed that the law to have Lokpal was passed after a prolonged struggle by civil society and it must become functional regardless whether the incumbent government wants it or not.
Seeking a deadline from Attorney General Mukul Rohatgi on when the institution would become functional, the bench asked him: “Was it not to be considered as an emergent situation by the government that despite the Lokpal Act becoming a reality in 2014, there is no Lokpal in place? If it is about cleansing the system, which you say this government is concerned about, then why in the last two years you could not make this work? We will not allow a situation where an institution like Lokpal becomes redundant.”
The bench, also comprising Justices D Y Chandrachud and L Nageswara Rao, said what weighed on its mind is that the government was harping on an argument that since there was no recognised leader of opposition (LoP) in Lok Sabha, selection process for Lokpal would have to wait until necessary amendments are brought about in the law to substitute LoP with the leader of the single largest party in opposition.
“If that be the argument, you are not going to have an LoP in the next two and half years…so if the law is also not amended, then will you allow a statute as important as this become unworkable? What bothers us is that will you let the whole Act become redundant only because there is no recognised LoP?” it asked the AG.
Under the Lokpal and Lokayukta Act 2013, notified in 2014, the selection of Lokpal is to be conducted by a committee comprising the PM, Lok Sabha speaker, Leader of Opposition in Lok Sabha, CJI or a SC judge, nominated by him and an eminent jurist.
Meanwhile, appearing for PIL petitioners, senior advocate Shanti Bhushan and advocate Gopal Sankarnarayanan pointed out that the government has already amended various other statutes, including those for selection of Chief Vigilance Commissioner, CBI chief and Chief Information Commissioner, to substitute LoP with the leader of the single largest party in opposition. Urging the bench to read down the Lokpal Act so that the selection process could begin immediately, the lawyers contended that no political party wants a Lokpal and hence the amendment would never become a reality, thereby frustrating the long-drawn struggle against corruption in public life.
Following this submission, the bench posed a volley of questions to the AG, questioning the intent of the government in having a Lokpal. “If you could do (amend LoP) it for four other enactments so conveniently, what is the problem in doing it for this Act? You claim you are committed to appointing a Lokpal and you have also moved an amendment to this effect so in our opinion, you should welcome a judgment from this court if that expedites everything,” it told Rohatgi.
But the AG said that it would tantamount to the court legislating, which was the Parliament’s role. “But you are not legislating…if Lokpal is meant to be an institution to bring probity in public life and bring down corruption then it must be working regardless whether the government wants it or not or whether amendments have been cleared. This court will read down the related provision to see that it becomes functional. We will not allow a situation where an institution like Lokpal becomes redundant,” it said.
The bench added: “We think that instead of giving an impression that you are dragging your feet, you should come forward and invite an order from the court so that Lokpal starts working. Why do you want people to have a misgiving that government is not interested in having a Lokpal. Ideally, you should do it yourself (by amending the law). But what you have done conveniently in four other enactments, you are not doing it here so accepting your own position, we should have no difficulty in reading down the statute.”
The AG resisted an order from the court, saying amendment in a law was within the ambit of the Parliament and that he was not in a position to commit a time frame for the amendment to be passed. At this, the bench asked him to take proper instructions from competent authorities and revert on December 7.