Waiting for the Lokpal to Become Functional

Late last month, the Government and the Supreme Court ‘clashed’ yet again, but this time not on the selection of judges. The apex court expressed deep reservations over the continuing delay in the appointment of a Lokpal. It was so agitated that it virtually threatened to take over the functions of Parliament and the Government in the matter. Hearing a petition moved by an NGO, Common Cause, a three-judge Bench headed by Chief Justice of India TS Thakur told the Government, “The Lokpal institution must become functional. Whether or not Parliament wants, the court can make it functional.” Responding to the warning, a startled Attorney General Mukul Rohatgi said, “Why should the Supreme Court assume that Parliament does not want the Lokpal to become functional? Parliament had enacted the law in 2013. Now it is dealing with the amendment. If the Supreme Court passes an order, it would amount to judicial legislation.” Common Cause counsel Shanti Bhushan was, of course, thrilled with the mood of the justices. He drove home his point by saying the Government was engaged in political trickery to render the Lokpal redundant and that the court could surely “pass a judgement clarifying the position”.

The CJI-headed Bench was effectively questioning both Parliament and the Government on the delay. It said, “The law was notified in January 2014. Already two-and-a-half years have passed. Why should the process remain stalled? Instead of inviting a judgement from the Supreme Court, why can’t the Government bring an Ordinance to speed up the selection process? Why should the Government give the impression that it is not interested in Lokpal? Why should there be any dilly-dallying?” 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. The court’s observations drew sharp reactions on social media, with one comment as follows: “OK, …. Why don’t you unilaterally rule on the uniform civil code, and then next appoint a Prime Minister of your choice?” 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 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.

This is not a unique situation, though. The first five Lok Sabha editions between 1952 and 1977 didn’t have a LoP, when the Congress hegemony was complete and the opposition benches, as good as empty. Ironically, the first formal LoP was from the Congress, after the party was relegated to the opposition benches following its rout in 1977 in the aftermath of the Emergency. Now, the 2014 result has thrown up many interesting arguments, some of which have played out in the courts. In early 2015, the issue was discussed in the Delhi High Court, when a petition seeking directions to the Union Ministry of Law and Justice and the Speaker to appoint a LoP in the Lok Sabha, came up before the judges. A two-judge Bench asked: “Is there any provision in our system of democracy that says a Leader of Opposition is mandated?” The Government’s counsel, an Additional Solicitor General, opined that there was no such compulsion. He said, “The view that the Speaker is under obligation to recognise the LoP, is a complete myth.” He added that the law governing the salaries and allowances of a LoP recognises the leader as a member of a party with the largest numerical strength in the House. However, this clarification does not resolve the issue of having a formally recognised LoP in panels such as that for the selection of a Lokpal. The petitioner in the Delhi High court case argued that the Central Vigilance Commission Act, the Lokpal Act, and other such legislations, needed the presence of a LoP, and that haziness over the issue cannot be allowed to linger.

It would be unfair to claim that the Government or the Parliament has been dragging its feet on the issue, although it can be said that things could have moved faster in the last more than 24 months. 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. It seeks to amend the 2013 Act as well as the Delhi Special Police Establishment (DSPE) Act of 1946. The proposed amendment provides for the leader of the single largest part in the Lok Sabha to be part of the selection panel to appoint a Lokpal in the absence of a recognised LoP. The amendments to the DSPE Act offer eligibility criteria for the Director of Prosecution to head the Directorate of Prosecution to investigate cases. It says that an officer from the Indian Legal Services, of the rank of Joint Secretary and eligible to become a Special Public Prosecutor, may be appointed as Director of Prosecution. In the absence of such a candidate, an advocate with a minimum of 15 years of experience in handling cases of corruption, money laundering etc, may be appointed.

The latest position, therefore, is that 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. The problem, however, is, that it is now two years since this initiative was taken, but there has been little visible progress. This should come as a surprise to many people who have been following the issue, because, besides the Congress, most other political parties too have been supportive of the 2013 Act and of the need to have an autonomous ombudsman to check corruption and ensure transparency and accountability in high public places. 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.

This is more so when the Government and Parliament have shown alacrity in amending other portions of the Lokpal Act recently. In July this year, the Lok Sabha approved an amendment to the Act, to allow extension of time given to public servants, trustees and board members of non-governmental organisations (NGOs) that receive Government funding over one crore rupees or have foreign funding of more than Rs. 10 lakh, to declare their assets and those of their spouses. The amendment was made to Section 44 of the Act. The matter then went to the parliamentary panel which had cleared the Act in the first place. Several Members of Parliament had earlier demanded that the provision of a time-limit should be altogether scrapped. The eventual amendment was passed by a voice vote in the Lok Sabha, with Congress leader in the House, Mallikarjun Kharge, whole-heartedly supporting it on behalf of his party. And while members of the Trinamool Congress and the Communist Party of India (Marxist) objected to the ‘haste’ in which the amendments were cleared, they were not principally opposed to them. On its part, the Government assured the opposition parties that the amendments were needed for the Act’s effective implementation.

But there were critical voices too, especially from the outside. Many activists believe that the amendments have diluted the legislation. For instance, Anjali Bhardwaj of the National Campaign for People’s Right to Information (NCPRI), is of the opinion that the changes had “fundamentally diluted the Lokpal Act as it has done away with the statutory requirement of public servants to disclose the assets of their spouses and their dependent children”. She suspects that the Narendra Modi Government had no desire to implement the Act. “Had the Government been committed to tackling corruption, it would have also brought in an amendment regarding the composition of the selection committee.” However, the other side of the coin was reflected in the stand taken by the Confederation of Indian Industry (CII). The trade and industry body had petitioned the Government, saying that “unnecessary intervention will adversely create lot of disruption in the working of trusts, societies, association of persons, charitable and non-profit organisations”, and had asked for a review of Section 44 of the Act.

Given this, 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. The BJP-led NDA and the Congress together have the numbers to get the amendments approved by the required majority in both Houses of Parliament. After all, the Congress can claim authorship of the Act – though it cannot run away from the fact that it had been a reluctant author. The Act came into being during the Congress-led UPA Government, following a massive anti-corruption campaign launched by social activist Anna Hazare. The Congress-headed regime, then neck-deep in scandals of graft – from the irregular allocations of 2G Spectrum and coal blocks (both of which the apex court subsequently set aside) to the Commonwealth Games allegations, had thought it prudent to get the Lokpal Act as a damage-control exercise. The Bharatiya Janata Party, which rode to power in 2014 on an anti-corruption platform (and has lived up to its promise so far at least in Government dealings), can ill-afford to be perceived as being lukewarm to the establishment 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 now and is in the forefront of the campaign for an early Lokpal, proposed the first ‘Jan Lokpal’ Bill in 1968. It passed muster in the Lok Sabha but couldn’t in the other House. Thereafter, various ‘Lokpal 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’s important to mention here that the Lokpal had an excellent chance of becoming a reality in the 1970s during Indira Gandhi’s unchallenged reign as Prime Minister, and even more so in 1985, when the Congress led by Rajiv Gandhi had a brute majority in both Houses of Parliament. In 2011, by which time the Government of Manmohan Singh had been bludgeoned by the 2G Spectrum scam, and with other irregularities of massive proportions having happened right under his nose too tumbling out closets, a tentative though half-hearted attempt was made to shape up the Lokpal legislation. 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. While Hazare and his team were far from happy with the final shape of the enactment, others believed that a good beginning had been made and that drawbacks, if any, could be tackled as one went along.

It’s not just the ruling Congress over the years that waffled over the establishment of an effective anti-corruption ombudsman; certain political parties too have had reservations over the very concept of Lokpal. Back in 2012-13, even though the Samajwadi Party was in general favourably inclined towards the Congress-led dispensation, it had stated its unambiguous opposition to the Lokpal Bill. Senior Samajwadi Party leader Naresh Agrawal had said that “the acceptance of this institution (Lokpal) is to express disbelief in parliamentary democracy; this cannot be allowed to happen”. He had brushed aside the fact that one of his party’s senior leaders was part of the select committee on the issue, saying, that leader would have registered his protest at the meeting. Agrawal made it known that his partywas opposed not to certain provisions of the Bill but against the “whole Bill”.

The Samajwadi Party was not alone; the Lalu Prasad-led Rashtriya Janata Dal too had frowned upon the need to have an autonomous body, the Lokpal, to supervise the functioning of people in public positions. The party had agreed with every word that Samajwadi Party supremo Mulayam Singh Yadav had said, including the dire ‘warning’ to MPs that once the Lokpal came, there would be police raj. “Lokpal will not be in your hands. It will go into the hands of the police. Nothing can be done then against the police.” He expressed shock that all this was being done under the “pressure of just one man” (Anna Hazare).

Now, of course, all this is history. 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. Nobody wants the Supreme Court to be hyperactive in the matter, but the procedures that are needed to be activated by Parliament cannot remain in the sleeper mode for any longer.

(The writer is Opinion Editor of The Pioneer, senior political commentator and public affairs analyst)