Do AG Mukul Rohatgi’s submissions in Lokpal contradict his 2014 legal opinion?

Murali Krishnan November 24 2016
mukul rohatgi

A petition in the Supreme Court of India concerning the appointment of a Lokpal caught the attention of main stream media yesterday. In the course of arguments, the Centre took the stand that it was the absence of a Leader of Opposition which was preventing the Central government from appointing a Lokpal.

The submissions made by Attorney General Mukul Rohatgi yesterday, however, appear to be contradicting the legal opinion tendered by him in 2014. On July 23, 2014 the Attorney General had submitted a legal opinion on recognising the Leader of Opposition in the Lok Sabha.

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. This opinion is in direct conflict with submissions made by the Attorney General yesterday.

Rohatgi, has, however, accepted that errors had crept into the opinion given by him in 2014 since the focus in that opinion was on recognition of Leader of Opposition and not Lokpal.

The hearing

When the case concerning appointment of Lokpal had come up for hearing yesterday, Chief Justice TS Thakur had asked the Central government as to why the appointment continues to be held up.

Rohatgi had replied that the Selection Committee to select Lokpal should be comprised of five persons of which one is the Leader of Opposition. This process had hit a roadblock because there is no Leader of Opposition in Lok Sabha. He also said that the Centre has moved a bill to amend the Act to remove the roadblock and the same is pending in Parliament.

However, the issue is squarely covered by his opinion tendered to the Lok Sabha Secretary General in 2014.

The Legal Opinion of 2014

The opinion (full text available below) discusses four statutes wherein the Leader of Opposition (LoP) has a role to play – The Protection of Human Rights Act of 1993, the Central Vigilance Commission Act of 2003, the Right to Information Act of 2005, and the Lokpal and Lokayuktas Act of 2013.

The opinion first deals with the two statutes which expressly contemplate a situation when there is no LoP.

Excerpts from the opinion given by Rohatgi read as follows:

“Two of the above four Acts, i.e. the CVC Act, 2003 and RTI Act, 2005 clearly contemplate a situation where there is no Leader of Opposition in Lok Sabha ie. when no member has been appointed as such. In such cases, it is provided in both the Acts that if no Leader of Opposition is recognised, then the leader of the single largest Group in opposition in Lok Sabha will be included in the place meant for Leader of Opposition in the Selection Committee.”

However, unlike the above statutes, the Lokpal Act and the Human Rights Act do not have an express provision to that effect. But Rohatgi says that despite that the selection shall not be rendered invalid merely on account of vacancy.

“However, all the four Acts provide that the selection shall not be rendered invalid under any of the Acts merely on account of vacancy of any member in the committee.” (Emphasis supplied)

This aspect of the Act had also come up during the hearing yesterday with Senior Advocate Shanti Bhushan insisting that the Lokpal Selection Committee can meet, and select the members, as the Act permits meeting even if there are vacancies.

Rohatgi had, however, countered the same stating that the vacancy referred to in the Act refers to "casual vacancy", when a leader of the opposition or any other member is unable to attend a meeting due to some exigency, and not a vacancy due to the non-appointment of LoP.

However, once again the legal opinion given by him clearly contradicts this stance. In his opinion, Rohatgi has set out the query posed to him which precisely covers the issue of absence of LoP.

"Query (v) – Whether the relevant provision of the Protection of Human Rights Act, 1993, CVC Act, 2003, RTI Act, 2005 and Lokpal and Lokayuta Act, 2013 which envisage a role for LoP in Lok Sabha in respect of appointments to statutory authorities viz. NHRC, CVC, CIC and Lokpal would mandatorily necessitate the appointment of LoP irrespective of other considerations?”

Answer - No"

Regarding the play on the term ‘vacancy’, Rohatgi has, indeed stated in his opinion that as far as Lok Ayukta Act is concerned, vacancy due to “lack of appointment shall be treated as casual vacancy”. However, this does not mean that a vacancy due to non-appointment shall not be covered by the Act and only casual vacancies will be covered.

This is again clear from another query which he has answered as follows:

“Query (vii) – Will the provision in all the said four statutes to the effect that a vacancy in selection/ search committee would not invalidate appointments to the said statutory bodies/ authorities contemplate situations where a Leader of Opposition may not necessarily exist?

Answer – Yes”

Attorney General speak

Bar & Bench spoke to Attorney General Mukul Rohatgi who, after studying the opinion given by him two years back, said,

"The real focus in that opinion was whether the Speaker is obligated to recognise the leader of an opposition party which has less than 1/10th of the total members of the house. I had answered that in the negative." 

Regarding his response on the query pertaining to Lokpal, Rohatgi said that an error had crept in, since the focus in that opinion was on the issue of recognition of Leader of Opposition by the Speaker.

"Sometimes, it does happen that when the focus is on one issue, errors creep in", he said. 

What next?

Rohatgi stated yesterday that the amendment to correct the roadblock is in process. With the winter session of the Parliament underway, it remains to be seen whether this two-year old legal opinion tendered by Rohatgi would come back to bite the government.

The next hearing in the case is on December 7.

Read the 2014 legal opinion below.