Why did the Centre appoint Lokpal? Because the Supreme Court was breathing down its neck

Bar & Bench March 21 2019

Almost six years after the Lokpal and Lokayuktas Act was passed, the Central government recently appointed members of the Lokpal, headed by former Supreme Court judge, Justice PC Ghose.

It has taken the Modi government nearly five years to finally appoint members to the anti-corruption body.

The fact that the government has been dragging its feet over the appointment of Lokpal members has been the subject of a case in the Supreme Court for the past few years.

Here is what happened in the Lokpal appointment case before the Supreme Court.

Conflicting opinions

In November 2016, the then Attorney General Mukul Rohatgi, arguing for the Central government, took the stand that it was the absence of a Leader of Opposition that was preventing the Centre from appointing a Lokpal.

The Supreme Court was hearing a PIL filed by Common Cause with regard to the appointment of the Chairperson and members of the Lokpal, as per the amended rules framed under the Lokpal and Lokayuktas Act, 2013.

This argument made by the Attorney General Mukul Rohatgi, however, appeared to contradict the legal opinion tendered by him in 2014. In his opinion, Rohatgi had stated that the provision in the Lokpal and Lok Ayuktas 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.

A Bench of Justices Ranjan Gogoi and Navin Sinha heard both sides of the story amidst allegations that the Centre was dragging its feet in the matter. The Bench reserved its order.

A workable legislation

In April 2017, the Supreme Court held that the Lokpal Act as it stood is a workable piece of legislation and the Central government need not wait for amending the Act to enforce its provisions. The Court effectively turned down the contention of the Centre that the Lokpal Act as it stands cannot be enforced without a Leader of Opposition.

Despite the same, no appointments were made to Lokpal for a year.

Date Supreme Court Hearing
November 24, 2016 Centre takes a stand that absence of a Leader of Opposition was preventing the Centre from appointing a Lokpal
April 27, 2017 Lokpal Act as it stands today is a workable legislation, Supreme Court passes Judgment
April 17, 2018 Attorney General KK Venugopal says process set in motion
May 15, 2018 Former AG Mukul Rohatgi appointed as Eminent Jurist to Lokpal Selection Panel
July 17, 2018 SC expresses hope that Search Committee will be set up soon
July 24, 2018 Supreme Court expresses dissatisfaction with Centre's affidavit in Lokpal matter
January 17, 2019 Shortlist Candidates for Lokpal by the end of February 2019, Supreme Court
March 7, 2019 SC directs Centre to communicate date for meeting of Selection Committee
March 19, 2019 Justice PC Ghose appointed as Lokpal

Contempt action

In April 2018, a year after the Supreme Court judgment, a contempt petition came to be filed against the Central government.

When this contempt petition came up for hearing, Attorney General KK Venugopal said that the process for appointment has been set in motion, and that an eminent jurist will be appointed to the Selection Committee soon.

In May 2018, Mukul Rohatgi was appointed as the eminent jurist of the Lokpal selection panel. This, despite the fact that as Attorney General, Mukul Rohatgi had argued that the Lokpal Act is not workable without a Leader of Opposition. Senior Advocate PP Rao had initially been appointed as the eminent jurist in the Committee. This post fell vacant after Rao had passed away.

Still searching

Subsequently, in yet another hearing in the Supreme Court in July 2018, Justice Gogoi said,

Let’s start on a positive note that the Search committee will be duly constituted".

In that hearing, Attorney General KK Venugopal expressed reservations, stating that if the process is hurried at this stage, it could be counterproductive.

However, Justice Gogoi’s positivity was short lived when he expressed displeasure after perusing the Centre’s affidavit. The Centre had submitted that while the Selection Committee had its scheduled meeting on July 19 in conformity with the rules, the Search Committee has not been appointed yet, and the same may be deliberated upon in the next meeting. It also informed the Court that the date for the next meeting is yet to be decided.

The Supreme Court, therefore, directed the Centre to file a detailed affidavit within four weeks; the Court also ordered that the same must include a time frame within which the Search Committee will be set up.

In February 2019, the Supreme Court laid down a time frame for shortlisting candidates who are to be considered for appointment to Lokpal. The Court directed the Search Committee to finish its deliberations and submit the names of shortlisted candidates by the end of February this year.

On March 7, 2019, Attorney General KK Venugopal told the Supreme Court that three panels of names have been sent to the Selection Committee in conformity with the Court’s last order.

Ten shortlisted names for Chairperson of Lokpal as well as names for judicial and non-judicial posts have been given to the Selection Committee, the Attorney General submitted.

The Court then directed the Centre to communicate to the Court as to when the Selection Committee will hold the meeting for the selection of the Chairperson and members of the Lokpal.

Advocate Prashant Bhushan asked the Court that the process of selection should be made transparent. To this end, he suggested that the shortlisted names be uploaded on the website. This request, however, was rejected by the Court.

And finally

The contempt petition had now reached its conclusion. There was no room or very little room for the Centre to escape contempt action from the Supreme Court, except to process the appointment.

So, long story short, the only reason the Centre has finally appointed members of the anti-graft ombudsman is because the Supreme Court forced its hand.