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The Supreme Court has held that the Lokpal Act as it stands today is a workable piece of legislation and the Central government need not wait for amending the Act to enforce it’s provisions.
The Court has effectively turned down the contention of the Centre that the Lokpal Act as it stands today cannot be enforced without a Leader of Opposition.
The Centre had stated before the court that amendments to the Act have been initiated to make it workable without a Leader of Opposition.
The judgment was delivered by a Bench of Justices Ranjan Gogoi and Navin Sinha in a PIL filed by NGO Common Cause with regard to the appointment of the chairperson and members of the Lokpal.
The primary bone of contention in the case has been the interpretation of who the ‘Leader of Opposition’ in the Lok Sabha would be. During the hearing, Chief Justice TS Thakur had asked the Central government as to why the appointment continues to be held up.
Attorney General Mukul Rohatgi had submitted that in the current scenario, there was no Leader of Opposition in Lok Sabha. He had gone on to state,
“The Lok Sabha has declined to accept Mr. Kharge as the Leader of the Opposition.”
His argument was that it was the absence of a Leader of Opposition which was preventing the Central government from appointing a Lokpal. Rohatgi had argued that the Selection Committee to select Lokpal comprised of five persons of which one is the Leader of Opposition. The process of appointment of Lokpal had hit a roadblock because there is no Leader of Opposition in Lok Sabha. He had also said that the Centre has moved a bill to amend the Act to remove the roadblock and the same is pending in Parliament.
He had also maintained that in the current session of the Parliament, the budget was a priority and the Lokpal issue might possibly be taken up in the monsoon session.
Senior Advocate Shanti Bhushan, who appeared for the petitioner, had disagreed. He had noted in his opening address that,
“There is no intention to have an independent body like the Lokpal, which can investigate ministers.”
Bhushan had also mentioned that in a case where a law, despite being passed, was not remotely operative, it was the constitutional duty of the courts to intervene.
Interestingly, a Legal Opinion tendered by Rohatgi to the Lok Sabha Secretary General in 2014 had revealed a starkly opposite stand by him.
In his opinion, Rohatgi has stated that the provision in Lokpal and Lok Ayukata Act of 2013 which provides that vacancies in Selection Committee will not invalidate appointments to statutory bodies, covers the situation where Leader of Opposition does not exist.
The Court in its judgment made it clear that the absence of Leader of Opposition in the Selection Committee will not make appointment of Lokpal invalid.
“Sub-section (2) of Section 4 makes it clear that the appointment of Chairperson or a Member of the Lokpal will not become invalid merely because of the reason of any vacancy in the Selection Committee. If, at present, the LOP is not available, surely, the Chairperson and the 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. We also do not see any legal disability in a truncated Selection Committee to constitute a Search Committee for preparing a panel of persons for consideration for appointment as the Chairperson and Members of the Lokpal and also for such a truncated Selection Committee to make recommendations to the President of India for appointment of the Chairperson and Members of the Lokpal.”
The Court held that the amendments proposed to be introduced are for streamlining the Act and would not constitute a legal bar for the enforcement of the provisions of the Act.
“A consideration of the other provisions of the Act in respect of which amendments have been proposed….and the views of the Parliamentary Standing Committee in this regard which are available in its report, in our considered view, are attempts at streamlining the working of the Act and in no way constitute legal hindrances or bars to the enforcement of the provisions of the Act as it stands today.”
The Court, therefore, concluded the following:
“We, therefore, conclude by quoting Justice Krishna Iyer In Reference, the Special Courts Bill, 19784 and holding that 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.”
Read the judgment below.