New Delhi: The Supreme Court on Wednesday pulled up the Centre over delay in appointment of Lokpal, saying it should not allow the law to become a "dead letter".
The apex court said that the Lokpal law that came into being after the nation-wide stir led by Anna Hazare cannot be made redundant just because the legislation was not amended to bring in the leader of the largest opposition party in the selection panel.
The appointment of the anti-corruption ombudsman has been hanging in balance since the The Lokpal and Lokayuktas Act, 2013 which received Presidential assent on 1 January, 2014 on
the ground that the legislation provides that the Leader of Opposition (LoP) has to be in the selection committee, but in present Lok Sabha, there is no LoP.
Referring to the key pre-requisite that LoP has to be there in Lokpal selection panel, the bench, headed by Chief Justice TS Thakur, said LoP is "dispensable" and things can proceed without LoP who can be replaced by the leader of the largest opposition party in the committee.
The apex court expressed disappointment when the Centre said the amendment to replace LoP with the leader of the largest opposition party in the proposed selection committee of Lokpal is pending with Parliament and asking it to clear would amount to "judicial legislation".
"Now we don't have LoP for past the two-and-a-half years and it is likely that for the next two-and-a-half years, we would not have LoP.
"Since it is not likely to happen, there won't be any LoP. Then will you allow the law to become redundant just because there is no LoP? An institution like this which is for probity in public life can't be allowed to become redundant.
This institution won't work like this," the bench, also comprising justices D Y Chandrachud and L Nageswara Rao, said.
Attorney General Mukul Rohatgi said as per the provision, the largest opposition party has to have a certain number of MPs in Lok Sabha to claim the post of LoP and the amendment is pending with Parliament.
In Lok Sabha, the largest opposition party Congress has only 45 members and lacks the requisite 10 percent of total 545 seats, giving rise to the requirement to amend the present Lokpal Act.
The law provides the selection of chairperson and members of Lokpal shall be through a selection panel consisting of the Prime Minister, Lok Sabha Speaker, LoP in Lok Sabha, Chief Justice of India or a sitting SC judge nominated by the CJI, an eminent jurist to be nominated by President of India on the basis of recommendations of first four members of selection committee.
The bench after considering the argument of senior lawyer Shanti Bhushan, appearing for NGO 'Common Cause', that it should interpret the Act to recognise the leader of the largest opposition party in place of LoP as mandated, said, "Don't allow the Lokpal law to become a dead letter."
The bench, which fixed the matter for hearing on 7 December, asked Rohatgi to take instructions and said it may consider passing an order to include the leader of the largest opposition party in the panel.
During an hour-long hearing, the court said that the requirement to have LoP in the selection panel can be dispensed with by replacing LoP with the leader of the largest opposition party.
It also said that there was an "urgent situation" and the institution like Lokpal should come up.
When Rohatgi said that the amendment Bill on the LoP issue is pending with Parliament, the bench said that the law cannot be frustrated by not amending the Act.
It also asked Rohatgi as to why the court cannot pass an order to include the leader of the largest opposition party in the selection committee.
On the other hand, Bhushan said that the Lokpal Act has been passed after a long struggle and the government is not doing anything.
"We don't have Lokpal even today, despite the Act being notified in 2014. Even jurist has not been appointed and the will of people is being frustrated. Do you require another Anna andolan?" he asked.
He said that the apex court has to interpret the Lokpal Act to recognise the leader of the largest opposition party as the leader of opposition (LoP).
Rohatgi, referring to the present legal provisions, said the government is amending the Act to include the leader of largest opposition party in the selection committee for appointment of Lokpal.
"The amendment bill is pending in Parliament and it will take some time to get passed in Parliament. There can't be a protem situation in this case," he said.
To this, Bhushan said that it is a political trick to ensure that no Lokpal is appointed.
"There is a lack of political will. You can take my word. They will not pass this bill. The court should direct the first meeting of the committee to select the jurist," he said.
The court then observed that LoP is "dispensable" and can be replaced by the leader of the largest opposition party in the selection committee".
Rohatgi said, "That's what we have been saying. We have amended the Act and is pending before Parliament to include the leader of the largest opposition party in the committee".
Bhushan then responded by saying that "this problem has to be solved or the political parties would frustrate the will of the people".
Responding to Rohatgi's contention that asking Parliament to pass the amendment would amount to "judicial legislation", Bhushan said the court is not interfering with the functioning
of the House.
"It is something which is outside Parliament and court can pass directions with regard to that. It should direct that the time-bound meeting of the committee should be held," he said.
When the court referred to the delay on the part of the legislature in amending the law, the AG said that the court should not assume that Parliament will not pass it.
On 9 May, the apex court sought to know from the Centre what steps have been taken for the appointment of Lokpal as per the amended rules.
The bench was hearing a matter filed by NGO Common Cause which sought a direction to the Centre to make the appointment of chairperson and members of Lokpal as per the amended rules framed under Lokpal and Lokayuktas Act, 2013.
The NGO in its plea filed through advocate Prashant Bhushan also sought a direction to the Centre to ensure that the procedure for selecting the chairperson and members of Lokpal must be transparent as envisaged under the Act.
"The inaction of the government in making the appointment of Lokpal is arbitrary and unreasonable and hence, violative of Article 14 of the Constitution," the amended petition of the NGO had said.
It had also said that one of the ways to ensure total transparency in the selection process is that the panel of persons to be prepared by the search committee for consideration by the selection committee must be placed in public domain.