If it was needed at all, the supreme court has cleared the air. The Lokpal Act, it has ruled, is perfectly implementable even without the pending amendments. The interpretation from the apex court is welcome, but the government does not seem to be in any hurry to appoint the ombudsman in the first place.

A bench of justices Ranjan Gogoi and Navin Sinha on Thursday ruled on a petition from Shanti Bhushan, seeking the appointment of the long-awaited ombudsman. The ruling, however, is not likely to alter the situation.

To understand the situation, first a little bit of history.

The idea of Lokpal has been around since it was first proposed in 1966. A bill to set up an overarching anti-corruption mechanism was introduced in parliament at least three times, and each lapsed at the end of the term of the house. In 2011, amid a series of corruption scandals, Anna Hazare, supported by India Against Corruption and Arvind Kejriwal, mounted pressure on government to make hurry and pass a Lokpal bill, which already was under consideration.

With Hazare’s fast and thousands carrying out candle marches across the country, atmosphere was so surcharged that the UPA government was forced to introduce and pass the bill. At one stage, campaigners and supporters were so impatient that they wanted the Rajya Sabha to sit till late evening and pass the bill the same day.

The bill was eventually passed, and notified, and came into effect on January 16, 2014.

The selection committee – which would appoint the Lokpal and the members of the anti-corruption body – consists of the following people:

“(a) The Prime Minister – Chairperson;
(b) The Speaker of the House of the People – Member;
(c) The Leader of Opposition in the House of the People – Member;
(d) The Chief Justice of India or a Judge of the Supreme Court nominated by him – Member;

(e) One eminent jurist, as recommended by the Chairperson and members referred to in clauses (a) to (d) above, to be nominated by the President – Member.”

The then prime minister, Manmohan Singh, started the process. On the possible candidature of a particular judge, LoP in Lok Sabha Sushma Swaraj raised objections. The selection process was stalled, and soon it was the election time.

After the election results, as the top opposition party in the house, Congress, could not secure even ten percent seats, the new speaker decided against naming its leader “the leader of opposition”. That is fair, under a specific rule of parliamentary procedures, though some interpret the rules differently.

Not having a LoP would result in not having one member in several selection panels, meant to select CBI chief and so on. Thus, at least for the Lokpal Act, an amendment was necessary, to say “LoP or the leader of the largest party in the Lok Sabha”. That amendment, along with several amendments suggested by a parliamentary committee, forms a new bill: Lokpal Amendment bill and till that bill is passed, there can be no selection committee, and hence no Lokpal.

The government has shown no visible hurry to pass that bill. If anybody asks where is Lokpal, just say that it is not our fault if the Congress did not win even ten percent seats, and we are bringing a bill, it will come in due time.

If the government is really in a hurry to fight corruption, it can:

(1) Bring that bill, and the opposition is bound to support the move. In any case, the government has used all means at its command to pass several contentious pieces of legislation (remember Aadhaar – as money bill?). Indeed, the government rushed a Lokpal amendment in 2014 itself, to provide relief to bureaucrats in declaring assets before a given deadline.

(2) It can bring an ordinance. There have been a dozen-odd so far (including some thrice over on the same subject, like on land acquisition).

It is, then, a mystery why there is no Lokpal yet, when this government is known for its good governance skills and bold moves (think demonetisation) to fight corruption and so on.

The only bigger mystery is why the people who were once so impatient for a Lokpal that they could not wait a day are so patiently sitting quiet.

Let’s return to the supreme court ruling.

Hearing the petition, the court repeatedly rued the delay in setting up a Lokpal, and the attorney general repeatedly argued that how can there be a Lokpal when there’s no LoP – wait for the amendment, it is upto parliament, and parliament can’t be forced.

In Thursday’s ruling, the court has essentially said:

(1) The law as it stands is ‘eminently workable piece of legislation’

(2) There is no need to even wait for the amendments,

(3) The four members of the selection committee can go ahead and pick a Lokpal.

(4) In short: “There is no justification to keep the enforcement of the Act under suspension till the amendments”

 
Here is what the judgement says:

“The question is whether the Act, as it exists, sans the amendment proposed, is so unworkable that the Court should refuse enforcement thereof notwithstanding that the Act has come into force by Notification dated 16th January, 2014 issued under Section 1(4) of the Act. If the Act, as it exists, is otherwise workable and the amendment sought to be introduced by the Legislature is aimed at a more efficient working of some of the provisions of the Act, the wholesome principle that a law duly enacted and enforced must be given effect to will have to prevail and appropriate directions will have to be issued by the Court to the said effect.”

Also, crucially, “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 has a nuanced interpretation here: it says that, yes, “True, there is no specific provision” for a truncated selection committee to go ahead, “But the absence of such a provision, by itself, will not invalidate the constitution of the Search Committee by the truncated Selection Committee when the Act specifically ‘empowers’ a truncated Selection Committee to make recommendations for appointment of the Chairperson or Members of the Lokpal”.

In fact, “To hold otherwise would be self contradictory”.

This is where the situation stands: the court has told the government that you can proceed without an LoP and without the pending amendment.

But it is up to the government to do or not do what it can.

If the government was feeling itself tied up in any ethical dilemma, it should breathe easy.

To conclude, the ruling quotes justice Krishna Iyer:

“The pathology of our public law, with its class slant, is that an unmincing ombudsman or sentinel on the qui vive [on alert, on watch-out] with power to act against those in power, now or before, and offering legal access to the informed citizen to complain with immunity does not exist; despite all the bruited umbrage of political performers against peculations and perversions by higher echelons. Law is what law does, not what law says; and the moral gap between word and deed menaces people’s faith in life and law. The tragedy, then, is that democracy becomes a casualty.”