A critical look at the Supreme Court decision regarding setting up the Lokpal
While amendments to The Lokpal and Lokayuktas Act, 2013 (LL Act) are languishing in Parliament, for the last three years, the Hon'ble Supreme Court of India has seemingly cleared the way for setting up the apex anti-corruption investigation and prosecution agency at the Centre. In the matter of Common Cause etc. vs Union of India and related matters [Writ Petition (Civil) No. 245 of 2014, judgement dated 27 April, 2017], the Apex Court has interpreted the law to show that the technical difficulties, which the Central Government was pointing out as an excuse for not setting up the Lokpal, are not insurmountable. The purpose of this email alert is to discuss crucial issues of law that have a bearing on the Selection and the Search Committees of the Lokpal. With the deepest respect to the wisdom of the Apex Court it must be said that Common Cause is likely to create more problems while seeking to resolve existing ones.
Background to the Lokpal Act implementation controversy
Readers will recollect that the enactment of a comprehensive anti-corruption law was one of the outcomes of a very vibrant people's movement led by the redoubtable Anna Hazare and others, during the initial years of this decade. The LL Act was both enacted and enforced in January 2014, towards the fag end of the United Progressive Alliance (UPA) regime. The Selection Committee for recommending candidates to the President of India for appointment to the Lokpal could not be constituted because an eminent jurist, the fifth member of this Committee, could not be found. While there was opposition to the candidature of at least one renowned senior advocate of the Apex Court, an eminent jurist turned down the invitation to serve on the Selection Committee. A few months later, a retired Justice of the Supreme Court refused to chair the Search Committee that would propose names to the Selection Committee for consideration. So the UPA went to elections without setting up the Lokpal.
The National Democratic Alliance (NDA) trounced the UPA and secured a comfortable majority in the Lok Sabha on the electoral plank of combating corruption. The Indian National Congress (INC)- the major partner in UPA could cobble up only 40 odd seats at the hustings - less than the quorum (10% i.e., 55 members) laid down for conducting the Business of the House. Despite staking its claim to the office of the LoP, the Hon'ble Speaker, Lok Sabha after a round of consultations, decided to reject the INC/UPA's claim to the office of the LoP.
Subsequently, in December, 2014, the NDA Government brought in a slew of amendments to the LL Act and related laws to iron out the difficulties, it claimed, the law in its original form posed. One of these proposals was to amend the provision relating to the LoP as a member of the Selection Committee and allow for the leader of the largest party in Opposition to become a member of the Committee, because there is no LoP in the 16th Lok Sabha. Almost a year later, in 2015, the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice gave its recommendations on these amendment proposals. Since then, the amendment proposals have never come up for discussion in the Lok Sabha- either due to disruption of the business of the House or because the amendment Bill simply did not figure on the List of Government Business, session after session. Now, the Hon'ble Supreme Court of India has lobbed the ball back to the Government's court to take action to set up the Lokpal.
Under several laws, the LoP is a member of the committee which selects or recommends candidates for appointment to high offices in the Central Information Commission, Central Vigilance Commission, the National Human Rights Commission and the Central Bureau of Investigation (CBI) amongst others. I had raised this issue soon after the relative strength of political parties in the Lok Sabha became clear after the May 2014 General Elections, particularly in the context of the appointment of the Lokpal.
Supreme Court's problematic prescription as the way forward
Thanks to multiple public interest litigation suits challenging some of the Rules made under the LL Act and also demanding the setting up of the Lokpal immediately, the Hon'ble Supreme Court of India has suggested the way forward for the Government to establish this apex anti-corruption investigating and prosecuting agency. The Apex Court's reasoning and directions in Common Cause may be summarised as follows:
As Section 4 of the LL Act is designed to prevent the decisions and the actions of the Selection Committee from becoming invalid merely on account of a vacancy on the Committee, the Court has said that even a truncated Selection Committee, in the absence of an LoP, can recommend to the Hon'ble President of India, names for appointment as the Chairperson and Members of the Lokpal. So the Selection Committee with the Prime Minister as the Chair and two members, namely, the Speaker, Lok Sabha and the Chief Justice of India or any Judge of the Apex Court that he may nominate, can go ahead with the selection process. On the face of it, the roadblock appears to have been cleared for setting up the Lokpal quicker than the Central Government's programme of pushing the pending amendments through the next monsoon of Parliament.
With deepest respect to the wisdom of the Hon'ble Supreme Court, this well-intentioned interpretation creates serious problems and paves the way for establishing a precedent that is completely contradictory to the intention of the LL Act and the aspirations of the people who struggled for a strong anti-corruption law.
Explaining the legal nitty gritties involved in setting up the Lokpal
The Selection Committee cannot simply come into existence out of thin air with the enactment and enforcement of the LL Act. After the Hon'ble President of India gave his assent to the Lokpal Bill (which turned it into law after publication in the Official Gazette) and that law was brought into force through another Gazette notification two weeks later in January 2014, there is a third step that must be taken, in order to initiate the selection process. The Government must issue a formal Gazette notification stating that a Selection Committee comprising the Chairperson and members, as provided for in Section 4 of the LL Act is set up. Unless, such a notification is issued, the Selection Committee- whether whole or truncated, cannot be constituted, that is, it cannot be populated with the requisite members.
This legal requirement can be understood easily using the analogy of any house construction process by well-to-do segments of society. First comes the building plan- the design of the house in some detail- this is Section 4 of the LL Act which explains who shall chair and who else shall sit on the Selection Committee. Then comes the actual construction of the house using brick and mortar. This is the Gazette notification announcing that the Selection Committee has been set up. Only after the house is actually constructed can people move in to live there. This is the constitution of the Committee, in other words, the naming of individuals who will function as the Chairperson and the Members of the Selection Committee. Just as people cannot start living on thin air using only a building plan, without actually constructing the house, so also with the Lokpal Selection Committee. The Selection Committee must be first established and then constituted (by naming all individuals individuals who will sit on it). Another analogy from RTI can help explain this issue better. When the Central Information Commission was set up, the Government took two decisions initially- (i) establishing the CIC with one Chief Information Commissioner and three Information Commissioners and (ii) constitution of the selection committee with the Prime Minister as the Chair, the LoP as the second member and the Cabinet Minister for Home Affairs as the third member as provided for by Section 12(3) of the RTI Act. Only then did the task of considering suitable candidates actually begin. To the best of my knowledge a similar notification establishing the Selection Committee of the Lokpal is not available in the public domain, till date.
Apex Court's interpretation of the LL Act makes the Selection Committee and Search Committee Government-dominated in the short run and sets a bad precedent for the future.
While interpreting the LL Act, in Common Cause, the Hon'ble Supreme Court said, in the absence of the LoP, a truncated Selection Committee Chaired by the Prime Minister and with the Speaker of the Lok Sabha and the Chief Justice of India or a Justice of the Supreme Court he nominates can select the eminent jurist. The Apex Court gave its reasoning as follows:
"19...Under Section 4 of the Act, the Chairperson and Members of the Lokpal are required to be appointed by the President on the recommendations of a Selection Committee consisting of-
(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.
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. True, there is no specific provision akin to sub-section (2) of Section 4 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." [emphasis supplied]
In my humble opinion, a truncated Selection Committee without the LoP cannot select the eminent jurist as its fifth member even though it may appoint a Search Committee. The savings clause in Section 4(2), which the Hon'ble Supreme Court does not seem to have examined in adequate detail, is applicable only to the process of appointing the Chairperson or the Members of the Lokpal. It cannot be employed to validate the selection of the fifth member in the absence of the LoP. The eminent jurist must be selected by the Chairperson and the four members. In other words an LoP must be available to select the fifth member. This, in my humble opinion is the plain reading of the letter of the law.
Why is a plain reading of Section 4(1) of the LL Act important? That is because it is the only way to recognise the spirit behind the law- that the Lokpal selection process must not be government-dominated. In the absence of the LoP, the Chief Justice or his nominee justice will be reduced to a minority. The PM and the Speaker of the Lok Sabha being from the same ruling Alliance will get the jurist of their choice despite any objections that the third member may raise. Further, if the fifth member is approved by the PM and the Speaker, despite the objections of the CJI or his nominee Justice, the dominance of the Government in the Selection Committee would go up by one more vote. Subsequently, the composition of the Search Committee can also be engineered to become government-dominated.
Apex Court rejects "primacy of opinion" argument
In a related matter, where the constitutionality of the LL Act was challenged on various grounds, the Hon'ble Supreme Court ruled, on the same day as it did in Common Cause, that Parliament had not thought it fit to include a provision to accord primacy to the opinion of the Chief Justice of India or his nominee Justice on the Selection Committee, for recommending candidates for appointment, as Chairperson and Members of the Lokpal. In the matter of Just Society vs Union of India [Transferred Case (C) No. 25/2015] which was decided along with Common Cause the Apex Court held as follows:
"3. The fact that primacy of the opinion of the Chief Justice or his nominee is accorded by certain statutes by use of the expression “in consultation”, which expression has been understood by judicial opinion to confer primacy to the opinion of the Chief Justice, the absence thereof in the Act, by itself, will not render Section 4(1)(d) Every public authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons. thereof ultra vires the basic structure of the Constitution. 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, we do 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. Whether such primacy should be accorded or not is for the legislature to decide and if the legislative opinion engrafted in the present Act is in contrast to what is provided for in other Statute(s), such legislative intention, by itself, cannot be understood to be constitutionally impermissible." [emphasis supplied]
While ruling so, the Apex Court refused to go into the legality of the procedure for appointing the eminent jurist as the fifth member of the Selection Committee almost implying that the other high constitutional functionaries on the Committee can be trusted to do the right thing.
When the Apex Court's rulings in Common Cause and Just Society are read together, it becomes crystal clear that in a truncated Selection Committee, the Chief Justice of India or his nominee Justice will undoubtedly be reduced to a minority as the opinion of the CJI or the nominee Justice will not hold primacy in the Selection process. On the other hand, if the Selection Committee is constituted after the amendments to the LL Act are approved by Parliament, the Government will not be able to dominate the Selection Committee. Theoretically, it will be reduced to a minority of two with the LoP, the CJI or his nominee Justice and the eminent jurist forming a majority, in all likelihood. It was this idea of preventing the domination of the Government in the Lokpal selection process that the people's movement against corruption fought hard for and eventually succeeded in convincing the political establishment to accede to this demand.
Unfortunately, despite its best intentions, the Hon'ble Supreme Court has ended up giving exactly what every government wants- a dominating position throughout the selection process- from the Search Committee to the Selection Committee of the Lokpal. This does not augur well for the Lokpal as an institution. It is also likely to set a bad precedent for future Governments to use truncated committees to select candidates for appointment in the Lokpal. For example, if the four members cannot agree on the name of the jurist who should be recommended for appointment as the fifth member, or if there is a tie between two potential candidates for that position, the Prime Minister as the Chair of the truncated Selection Committee could in theory go ahead with setting up the Search Committee citing Common Cause as the legal basis for so doing. Or the Prime Minister may use a casting vote and push for the recommendation of a pliable candidate as the fifth member of the Selection Committee (although there is no express provision permitting a casting vote for the Chair in the LL Act for now, this would seem to be a tactical thing to do to overcome any opposition from the CJI or his nominee Justice).
Readers may look upon my interpretation as bordering on cynicism and lack of trust in the Government to do the right thing. Well, this was exactly the flavour of public opinion during the people's movement for the Lokpal law that ensured, the design of a Selection Committee should be such that it would not be dominated by the government of the day. People wanted to make a clean break from past experiences of political appointments to high offices in anti-corruption agencies such as the CBI and the CVC. A quick glance at the raging debate on these issues as reported by the media will prove me right. Unfortunately, nowhere in the two judgements analysed above, is the consequence of the implementation of the Apex Court's way forward discussed in detail. An essential requirement of making a judicial determination of any issue is what the picture will look like when the Court's ruling will be implemented. The means adopted must justify the end and not the other way round- as Gandhiji used to say.
It now seems like a better idea to wait for the Lokpal amendments to pass muster through Parliament, during this monsoon session. To paraphrase an old saying in Kannada- "the delay in establishing the Lokpal, that citizens have put up with, has been elephantine in magnitude, will it be difficult to swallow its tail", now that the Government has assured the Apex Court that the Lokpal amendments will be taken up in the monsoon session of Parliament? (Kannadigas will recognise this saying as - "aane nungidavarige baala hecche?")
There is another dimension to this whole issue- what the Government of India and the Attorney General of India (AGI) said to the Apex Court about the absence of the LoP in the Lok Sabha. In the next installment of my email alert on this subject, I will share the file notings from the Lok Sabha Sectt. and the "legal opinion" tendered by the AGI on this issue to the Speaker, Lok Sabha- all obtained under the RTI Act, along with Parliamentary debates from 1977 on the LoP issue. The purpose of placing these documents will be to show how the Speaker did not receive wholesome advice before she took the decision not to recognise anybody as LoP in the Lok Sabha.