A bench headed by CJI TS Thakur said that Parliament, by not amending the law, cannot frustrate the mandate for appointment of Lokpal.
New Delhi: The Supreme Court on Wednesday expressed its disappointment over the Centre for not appointing Lokpal despite Parliament enacting a law in this regard in January 2014.
While the Centre said that the amendment bill is pending in Parliament to include the leader of largest opposition party, a bench headed by Chief Justice T S Thakur said that Parliament, by not amending the law, cannot frustrate the mandate for appointment of Lokpal.
The bench, also comprising Justices D Y Chandrachud and L Nageswara Rao, asked Attorney General Mukul Rohatgi as to why the court can't pass an order to include the leader of largest opposition party in the selection committee.
The bench posted the matter for further hearing on December 7 when the AG would come back with instructions.
Rohtagi told the bench that any order by the court in the present situation would amount to judicial legislation.
Senior advocate Shanti Bhushan appearing for an NGO, Common Cause, said that the Lokpal Bill has been passed after a long struggle and alleged that the government is not doing anything. "We don't have Lokpal even today, despite the Act being notified in 2014. Even jurist has not been appointed and the will of people is being frustrated. Do you require another Anna andolan?," Bhushan said.
He said that the apex court has to interpret the Lokpal Act to recognise the leader of the largest opposition party as the leader of the opposition (LoP).
Rohatgi said that as per the provisions, the largest opposition party has to have a certain number of MPs in Parliament to claim the post of the leader of the opposition.
He said therefore, the government is amending the Act to include the leader of the largest opposition party in the selection committee for appointment of Lokpal.
"The amendment bill is pending in Parliament and it will take some time to get passed. There can't be a pro-tem situation in this case," the AG said.
To this, Bhushan said that it is a political trick and no Lokpal will be appointed.
"There is a lack of political will. You can take my word. They will not pass this bill. The court should direct the first meeting of the committee to select the jurist," Bhushan said. The apex court said that the LOP is "dispensable and things can proceed without the LOP". If there is no LOP, then leader of the largest opposition party can be included in the selection committee, it said.
Rohatgi said, "That's what we have been saying. We have brought in the changes in the Act and the bill is pending before Parliament to include the leader of the largest opposition party in the committee."
Bhushan said that this problem has to be "solved or the political parties would frustrate the will of the people".
The senior advocate, while replying to the AG's contention that asking Parliament to pass the amendment bill would amount to judicial legislation, said that the court is not interfering with the functioning of the House.
"It is something which is outside Parliament and the court can pass directions with regard to that. It should direct that a time-bound meeting of the committee should be held," Bhushan said.
The court said, "Now we don't have an LOP for past two-and-a-half years and it is likely that for the next two-and-a-half years, we would not have the LOP.
"Since it is not likely to happen, there won't be any LOP. Then will you allow the law to become redundant just because there is no LOP? An institution like this which is for probity in public life can't be allowed to become redundant. This institution won't work like this," the court said.
To this, the AG asked why the court is assuming that Parliament will not pass the amendment bill. It was Parliament which favoured and passed the Lokpal bill, he said.
The bench said its an urgent situation and the institution like Lokpal should come up.
On May 9, the apex court had sought to know from the Centre what steps had been taken for the appointment of Lokpal as per the amended rules.
The bench was hearing a matter filed by Common Cause which sought a direction to the Centre to make the appointment of chairperson and members of Lokpal as per the amended rules framed under Lokpal and Lokayuktas Act, 2013.
The NGO in its plea filed through advocate Prashant Bhushan also sought a direction to the Centre to ensure that the procedure for selecting the chairperson and members of
Lokpal must be transparent as envisaged under the Act.
"The inaction of the government in making the appointment of Lokpal is arbitrary and unreasonable and hence, violative of Article 14 of the Constitution," the amended petition of the NGO had said.
It had also said that one of the ways to ensure total transparency in the selection process is that the panel of persons to be prepared by the search committee for consideration by the selection committee must be placed in public domain.