Updated: April 29, 2017 12:05:50 am
The Supreme Court order on Thursday on the appointment of the Lokpal has extremely disquieting implications. The Lokpal can be appointed, the apex court has said, under the Lokpal and Lokayuktas Act, 2013, without waiting for an amendment that would substitute the position of the Leader of Opposition in Lok Sabha with the leader of the single largest opposition party on the selection committee — there is no LoP in the current House, since the Congress does not have the required 10 per cent of the total LS seats. “There is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out”, the court has said.
To be sure, the court’s urgency is understandable. The idea of an anti-corruption body and ombudsman to look into allegations against all categories of public servants, administrators and legislators, even the prime minister, has been in the air for more than five decades now. Following the Anna agitation of 2011 that invested a new political urgency in the issue of corruption, Parliament passed the 2013 Act. And yet, four years on, it is still to be implemented. Indeed, it is time for a Lokpal in India. But equally, it is crucial that the institution should be fair and independent, that it should rise above partisan political interests and be insulated from government interference — and be seen to be so too. In this context, the presence of the LoP on the selection committee, alongside the PM, LS Speaker, Chief Justice of India or his nominee and an eminent jurist, is enormously important. It is an assurance, real and symbolic, of the institution’s autonomy from the ruling regime. Now, the court’s decree that the LoP is dispensable to the appointment process signals that it is ready to set aside those considerations and, in the process, willing to relegate the principle of separation of powers that is so fundamental to a constitutional democracy. Such a signal from the court on the Lokpal is particularly disappointing given the court’s own battle — protracted and still ongoing — to ringfence the judicial appointments process from governmental control.
The court is well within its rights to be fierce and uncompromising on protecting judicial independence, and even more so in a moment when the political executive is more powerful than it has been in recent times. Today, the institutional balance is especially fragile and particularly vulnerable to tilting under pressure towards the powerful and the majoritarian. It is all the more inexplicable, and disheartening, then, that the court should be keen to push through a Lokpal without assuring itself and others that the anti-corruption body’s independence and impartiality is clearly embedded in its institutional design.
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