Last month, the Government and the Supreme Court ‘clashed’ yet again, this time the apex court expressing deep reservations over the continuing delay in the appointment of a Lokpal.
The journey to the Lokpal Act has been long and full of struggle and frustration.
- The idea was first mooted, according to some reports, back in 1963, and it came before Parliament during the early period of the same decade. Shanti Bhushan, who represents ‘Common Cause’ (NGO who filed the petition for it’s early appointment) now and is in the forefront of the campaign for an early appointment of the bill, proposed the first ‘Jan Lokpal’ Bill in 1968. It passed muster in the Lok Sabha but couldn’t in the other House.
- Thereafter, various ‘Bills’ were introduced – two in the seventies; two in the mid-to-late 1980s; two in the 1990s, and three in the 2000s, leading to the 2013 Act.
- It took the nationwide anti-corruption agitation led by Anna Hazare, to make Parliament pass the Bill, which eventually came to be known as the Lokpal and Lokayuktas Act, 2013.
Delay in Appointment
- The bone of contention lies in the composition of a panel to select the Lokpal.
- The Lokpal and Lokayuktas Act, 2013, specifies that the Lokpal is to be appointed by the President of India on the recommendations of a selection committee comprising the Prime Minister, Speaker of the Lok Sabha, Leader of Opposition (LoP) in the Lok Sabha, Chief Justice of India or a judge nominated by the Chief Justice of India, and one “eminent jurist”.
- The LoP has an official and statutory status on the basis of the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977.
- While the Act says the leader of a party with the greatest numerical strength, and who is recognised by the Speaker of the Lok Sabha, can be considered as an LoP for all practical purposes, a formal recognition can be given only if that leader’s party has secured at least 10 per cent of the total seats in the Lok Sabha.
- In the 2014 Lok Sabha election, the Congress emerged as the single largest opposition party but its tally fell short of the 10 per cent of the total seats’ requirement. In effect, therefore, and formally, there has been no LoP.
Thus, the composition of the panel to select a Lokpal got mired in technicalities.
In order to address the issue of having a LoP not recognised formally in the Lok Sabha, in the panel designated to appoint a Lokpal, the Government did introduce in the Lok Sabha the Lokpal and Lokayuktas and Related Law (Amendment) Bill, 2014. The Bill seeking amendments to the 2013 Lokpal Act, which will enable the leader of the single largest party in the Lok Sabha — even if that person does not enjoy the formal recognition of LoP — is before Parliament. As is usual in contentious cases, the Bill had been referred to a parliamentary committee for further study and to elicit suggestions from members cutting across party lines that represent the panel.
Where does the problem lie?
The issue, however, is, that it is now two years since this initiative was taken, but there has been little visible progress. Perhaps the Supreme Court’s intervention will accelerate the process of appointment. The Government will have to answer the court when the matter comes up for hearing in the coming weeks and months.
What did the court observe?
- The court observed that “The Lokpal institution must become functional. Whether or not Parliament wants, the court can make it functional.” Hence, the court showed scepticism on part of the Parliament and Executive in particular to bring Lokpal into reality since it passed the litmus test in Parliament in 2013.
- The Bench also found Shanti Bhushan’s contention “logical”, that the court must interpret the 2013 law to mean that the “leader of the Opposition to also mean the leader of the largest opposition party in the Lok Sabha.
- There appears to be an element of judicial overreach when the court says it will make the Lokpal functional if Parliament and the Government fail to do so. At the same time, it is also true that both Parliament and the Government have to speed up the process of appointing a Lokpal.
The Way Forward
It becomes imperative for the Government and Parliament to expedite the process of establishing the Lokpal. After all, without a Lokpal in place, any amendment to the 2013 law has no meaning. Getting an amendment to include the leader of the single largest party in the Lok Sabha to be part of the selection panel, approved, should not be an issue since there is a broad consensus among the major political parties on the need for an early selection of a Lokpal.
There is a broad consensus for an early appointment of Lokpal. Debates in Parliament have ended; the ombudsman Act has been passed; those who opposed it have been shown to be in a minority; and, the only work remaining is the selection of a Lokpal. There isn’t much scope for excuses, either from the Government or Parliament. Hence, the Parliament should seize the opportunity and enact Lokpal amendments to remove the technicalities. This would save the country from another round of Judiciary v/s Executive debate.