The Supreme Court bench comprising the Chief Justice, T.S.Thakur, and justices D.Y.Chandrachud, and L.Nageswara Rao, today grilled the Attorney General, Mukul Rohatgi, on why the Court could not interpret the Lokpal and Lokayuktas Act, 2013, in a manner to make it functional, till Parliament could amend the Act.
Amidst Rohatgi’s reservations that such a move would mean that the Court is legislating, the bench asked if the Court could interpret the Act, to reflect the pending amendment, as it would then be consistent with the Government’s intentions.
Earlier, senior advocate, and former Union Law Minister, Shanti Bhushan, representing the petitioner, Common Cause, made a fervent plea to the bench to ínterpret the Act, to bring Lokpal into existence expeditiously, as the political class has not shown any interest in carrying out the necessary amendments to the Act, to make it functional.
Saying that the Act was passed in 2013 after a long anti-corruption crusade led by Anna Hazare, Shanti Bhushan asked in a high-decibel voice, which stunned everyone in the Court: “Do we need another Anna Andolan to bring Lokpal into being?”
The bench, which was in sympathy with Shanti Bhushan’s emotional appeal, asked the Attorney General, the reasons for the delay of three years, in carrying out the necessary amendment to the Act.
The Lokpal and Lokayuktas Act, 2013 received the President’s assent and formally came into force on January 16, 2004. Yet, it has not been duly constituted because the selection committee, comprising the Prime Minister, the Speaker of the Lok Sabha, Leader of Opposition, Chief Justice of India or a sitting Supreme Court judge nominated by him, and a jurist nominated by the President on the basis of recommendations of the first four members, could not meet even once.
The committee could not meet because there is no recognised Leader of the Opposition in the Lok Sabha, who enjoys the support of at least 10 per cent of the strength of the House, as per the existing provisions of the Act. As Congress- which emerged as the largest single party after the BJP in the last elections - secured only 44 Lok Sabha seats in the 2014 general elections, it could not get the status of the Opposition Leader, in the 543-member House.
The Act needs to be amended for the purpose of facilitating the leader of the largest single party in the Opposition, to become the member of the Selection Committee. Although the Government has agreed to amend the Act, it has not yet materialised so far, as it has clubbed this amendment with other proposed changes, and referred it to the Parliamentary Standing Committee, The Committee submitted its report in December last year, approving the proposed amendment.
Rohatgi told the bench that the Government would soon take a view on the proposed amendment, and sought time till December 7, to take instructions from the Government, on whether the bench could interpret the provision and pass an interim order, till Parliament amends the Act, to facilitate the leader of the single largest party in the opposition to participate in the selection committee meetings to select Lokpal members.
The hour-long hearing saw the bench asking the AG many questions, which saw him initially opposing the Court’s move to interpret the Act, to finally seeking more time to consult the Government on this.
The CJI told the AG : “Assuming this is not the first time, and a successor to Lokpal has to be appointed, the institution has to work, and the Court can read it in a manner to let the institution work. It can’t become redundant.”
The AG asked the bench why we should assume that Parliament is not interested in amending the Act. “It is a matter of time”, he said.
Citing the three year delay, the bench agreed with Shanti Bhushan that an ordinance could have been brought, if he process of amending the law is likely to take time.
When the AG said he has to find out from the Government on the question of Ordinance, the CJI said: “Why give scope to misgivings? This is a step in the interest of the institution. Why should the Government drag its feet? If we interpret the Act, it will be consistent with your stand on the amendment of the Act. After all, you have amended four other Acts on similar lines.”
The AG then promised to get back to the bench by December 7.
Earlier, Advocate Gopal Sankaranarayanan, intervened and told the bench that it could read down the provision in the Act, to make the leader of the largest single opposition party, become a member of the Selection Committee. This was staunchly opposed by the AG..
Shanti Bhushan explained that as the Act does not deal with the internal functioning of Parliament, there is no bar on the Court’s power to interpret the Act. “This is a matter outside the House”, and Lokpal Act does not say that the recognition by the Speaker of the Leader of the Opposition, is necessary, he said.
Although Shanti Bhushan requested an early hearing tomorrow itself, the bench adjourned it to December 7, accepting the AG’s suggestion to grant the Government sufficient time.
Read the Order here.
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