 "Appoint Lokpal at earliest, no need to wait for better law: SC to Centre")
There is no justification to keep the enforcement of Lokpal Act suspended till the proposed amendments, including on the issue of the Leader of Opposition in Lok Sabha, are cleared by Parliament, the Supreme Court said today.
The apex court said the Act was an eminently workable piece of legislation and it "does not create any bar to the enforcement of the provisions".
It said the amendments proposed to the Lokpal and Lokayuktas Act 2013, and the views of the Parliamentary Standing Committee, were attempts at streamlining the working of the Act and does not constitute legal hindrances or bars its enforcement as it stands today.
"We, therefore, conclude by quoting Justice Krishna Iyer in reference, the Special Courts Bill, 1978 and holding that the Act as it stands today is an eminently workable piece of legislation and there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out," the bench said.
The NGO had sought the immediate appointment of Lokpal in the country.
Senior advocate Shanti Bhushan, appearing for NGO Common Cause, had argued that even though the Lokpal Bill was passed by Parliament in 2013 and came into effect in 2014, the Lokpal was not being appointed by the government deliberately.
Attorney General Mukul Rohatgi, appearing for the Centre, had said the Lokpal cannot be appointed in the current scenario, as amendments regarding the definition of the Leader of the Opposition (LOP) in the Lokpal Act was pending before the Parliament.
Rohatgi also submitted that there can be no direction to the Legislature to frame any law or amend the existing law or complete a legislative exercise within any time frame.
To this, the bench said the parliamentary wisdom of seeking changes in an existing law by means of an amendment lies within the "exclusive domain of the legislature and it is not the province of the court" to express any opinion on the exercise of the legislative prerogative in this regard.
It said that section 4(2) of the Act 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," the bench said.
The bench, which also highlighted the unique character and importance of the Act in the contemporary world, said,"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."
It said there is no specific provision akin to section 4 (2) of the Act insofar as the constitution of the Search Committee by a truncated Selection Committee is concerned.
"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. To hold otherwise would be self contradictory," it added.
The bench said the proposed amendment to Section 4(3) of the Act would be clarificatory and will not amount to an attempt to cure a shortcoming in the Act which is proving to be an inhibition in law to the appointment of Chairperson or members of the Lokpal.
"The view of the Parliamentary Standing Committee with regard to the expediency of the Search/Selection Committee taking decisions when vacancy/ vacancies exists/exist is merely an opinion with which the Executive, in the first instance, has to consider and, thereafter, the legislature has to approve.
"The said opinion of the Parliamentary Standing Committee would therefore not be sacrosanct. The same, in any case, does not have any material bearing on the validity of the existing provisions of the Act," it said.
The bench said any interference by the court, at this juncture, would negate the basic constitutional principle that the "legislature is supreme in the sphere of law making".
"The constitutional doctrine of separation of powers and demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed to be completed without any intervention of the court," it said.
"Reading down a statute to make it workable in a situation where an exercise of amendment of the law is pending will not be justified either. A perception, however, strong of the imminent need of the law en-grafted in the Act and its beneficial effects on the citizenry of a democratic country, by itself, will not permit the court to overstep its jurisdiction. Judicial discipline must caution the court against such an approach," it said.
The bench also dismissed a petition by NGO Just Society to declare as ultra vires some of the provisions of the Lokpal Act, saying there was no merit in it.
The petition challenged the provisions on the ground that the Chief Justice of India or his nominee Judge of the Supreme Court, under Section 4(1)(d) of the Act, is a mere member of the selection committee and the opinion rendered by either of them has no primacy in the matter of selection of Chairperson and members of the Lokpal.
The bench, however, said if the legislature in its wisdom had thought it proper not to accord primacy to the opinion of the Chief Justice or his nominee and accord equal status to the opinion rendered by the Chief Justice or his nominee and treat such opinion at par with the opinion rendered by other members of the selection committee, it does not see how such legislative wisdom can be questioned on the ground of constitutional infirmity.
"It is not the mandate of the Constitution that in all matters concerning the appointment to various Offices in different bodies, primacy must be accorded to the opinion of the Chief Justice or his nominee," it said.
The apex court said the Act was an eminently workable piece of legislation and it "does not create any bar to the enforcement of the provisions".
It said the amendments proposed to the Lokpal and Lokayuktas Act 2013, and the views of the Parliamentary Standing Committee, were attempts at streamlining the working of the Act and does not constitute legal hindrances or bars its enforcement as it stands today.
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A bench of Justices Ranjan Gogoi and Navin Sinha allowed a batch of petitions filed by NGO Common Cause and others and said such attempts for amendment cannot halt the operation and execution of the law which the executive in its wisdom has already given effect to and has brought into force by resorting to the provisions of the Act.
"We, therefore, conclude by quoting Justice Krishna Iyer in reference, the Special Courts Bill, 1978 and holding that the Act as it stands today is an eminently workable piece of legislation and there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out," the bench said.
The NGO had sought the immediate appointment of Lokpal in the country.
Senior advocate Shanti Bhushan, appearing for NGO Common Cause, had argued that even though the Lokpal Bill was passed by Parliament in 2013 and came into effect in 2014, the Lokpal was not being appointed by the government deliberately.
Attorney General Mukul Rohatgi, appearing for the Centre, had said the Lokpal cannot be appointed in the current scenario, as amendments regarding the definition of the Leader of the Opposition (LOP) in the Lokpal Act was pending before the Parliament.
Rohatgi also submitted that there can be no direction to the Legislature to frame any law or amend the existing law or complete a legislative exercise within any time frame.
To this, the bench said the parliamentary wisdom of seeking changes in an existing law by means of an amendment lies within the "exclusive domain of the legislature and it is not the province of the court" to express any opinion on the exercise of the legislative prerogative in this regard.
It said that section 4(2) of the Act 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," the bench said.
The bench, which also highlighted the unique character and importance of the Act in the contemporary world, said,"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."
It said there is no specific provision akin to section 4 (2) of the Act insofar as the constitution of the Search Committee by a truncated Selection Committee is concerned.
"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. To hold otherwise would be self contradictory," it added.
The bench said the proposed amendment to Section 4(3) of the Act would be clarificatory and will not amount to an attempt to cure a shortcoming in the Act which is proving to be an inhibition in law to the appointment of Chairperson or members of the Lokpal.
"The view of the Parliamentary Standing Committee with regard to the expediency of the Search/Selection Committee taking decisions when vacancy/ vacancies exists/exist is merely an opinion with which the Executive, in the first instance, has to consider and, thereafter, the legislature has to approve.
"The said opinion of the Parliamentary Standing Committee would therefore not be sacrosanct. The same, in any case, does not have any material bearing on the validity of the existing provisions of the Act," it said.
The bench said any interference by the court, at this juncture, would negate the basic constitutional principle that the "legislature is supreme in the sphere of law making".
"The constitutional doctrine of separation of powers and demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed to be completed without any intervention of the court," it said.
"Reading down a statute to make it workable in a situation where an exercise of amendment of the law is pending will not be justified either. A perception, however, strong of the imminent need of the law en-grafted in the Act and its beneficial effects on the citizenry of a democratic country, by itself, will not permit the court to overstep its jurisdiction. Judicial discipline must caution the court against such an approach," it said.
The bench also dismissed a petition by NGO Just Society to declare as ultra vires some of the provisions of the Lokpal Act, saying there was no merit in it.
The petition challenged the provisions on the ground that the Chief Justice of India or his nominee Judge of the Supreme Court, under Section 4(1)(d) of the Act, is a mere member of the selection committee and the opinion rendered by either of them has no primacy in the matter of selection of Chairperson and members of the Lokpal.
The bench, however, said if the legislature in its wisdom had thought it proper not to accord primacy to the opinion of the Chief Justice or his nominee and accord equal status to the opinion rendered by the Chief Justice or his nominee and treat such opinion at par with the opinion rendered by other members of the selection committee, it does not see how such legislative wisdom can be questioned on the ground of constitutional infirmity.
"It is not the mandate of the Constitution that in all matters concerning the appointment to various Offices in different bodies, primacy must be accorded to the opinion of the Chief Justice or his nominee," it said.