A Writ Petition (Civil) No. 245 of 2014 has been filed, requesting a declaration that Rule 10(1) and Rule 10(4)(i) of the Search Committee (Constitution, Terms and Conditions of Appointment ...
No Acts & Articles mentioned in this case
Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.245 OF 2014
COMMON CAUSE : A REGISTERED SOCIETY ...PETITIONER
VERSUS
UNION OF INDIA ...RESPONDENT
WITH
TRANSFERRED CASE(C) OF 2017
(Arising out of TRANSFER PETITION
(C) NO.1264/2014
WRIT PETITION(C) NO.673 OF 2015
TRANSFERRED CASE(C) NO.109 OF 2015
J U D G M E N T
RANJAN GOGOI, J.
1. Writ Petition (Civil) No.245 of 2014 has
been filed seeking a declaration that Rule 10(1) and
Rule 10(4)(i) of the Search Committee (Constitution,
Terms and Conditions of Appointment of Members and
the Manner of Selection of Panel of Names for
Appointment of Chairperson and Members of Lokpal)
Page 2 Rules, 2014 (hereinafter referred to as the “Search
Committee Rules”) framed under the provisions of
the Lokpal and Lokayuktas Act, 2013 (hereinafter
referred to as “the Act”) are ultra vires and for a
further direction to restrain the initiation of any
process of selection for appointment of Chairperson
and Members of the Lokpal under the provisions of
the aforesaid Search Committee Rules.
2. There is no manner of doubt that the
aforesaid grievance of the writ petitioner has been
taken care of by the Search Committee (Amendment)
Rules, 2014 which has deleted the following words in
sub-rule (1) of Rule 10:
“from amongst the list of persons
provided by the Central Government
in the Department of Personnel and
Training”
Sub-rule (4) of Rule 10 of the Search Committee
Rules has also been since deleted.
3. Notwithstanding the above, it is urged on
behalf of the writ petitioner that the provisions
of the Act are yet to be implemented and the
Page 3 Selection Committee/Search Committee under the Act
are yet to be constituted so as to further the
appointment of the Chairperson and Members of the
Lokpal.
4. As in the connected case i.e. Writ Petition
No.673 of 2015 filed by Youth for Equality the
prayers made are precisely to the above effect, we
have permitted the learned counsel for the writ
petitioner in Writ Petition (Civil) No.245 of 2014
to address the Court on the aforesaid issue also.
5. The reliefs sought in Transferred Case
No.109 of 2015 and in Transferred Case arising out
of Transfer Petition (Civil) No.1264 of 2014 are
same and similar to those made in Writ Petition
(Civil) No.245 of 2014.
6. Shri Shanti Bhushan, learned Senior
Counsel, who has advanced the lead arguments, has
submitted that the Act had been brought into force
on 16
th
January, 2014 by a notification issued in
the Official Gazette by the Government of India.
Page 4 Despite efflux of a long period of time the
provisions of the Act have not been implemented.
It is argued that though the version of the
official respondents is that certain provisions of
the Act need to be altered to make the provisions
thereof workable in a meaningful manner, the very
fact that the Amendment Bill [Lokpal and Lokayuktas
and Other Related Law (Amendment) Bill, 2014] has
been gathering dust from the date of its
introduction in the Parliament (18
th
December, 2014)
would sufficiently demonstrate the lack of
executive/legislative will to give effect to a
salutary enactment en-grafting a vital requirement
of democratic functioning of the Government,
namely, accountability of the political executive
and those in high echelons of public office, to an
independent body i.e. Lokpal. Shri Shanti Bhushan
has also urged that incongruities, inconsistencies
and inadequacies in the Act as perceived by the
respondents are primarily with regard to the
absence of a Leader of Opposition in the present
Page 5 House of People/Lok Sabha (hereinafter referred to
as “LOP”) who is also to act as a Member of the
Selection Committee under Section 4 of the Act.
This, according to Shri Bhushan, is a pretence
and/or sham inasmuch as by Section 2 of the Salary
and Allowances of Leaders of Opposition in
Parliament Act, 1977 (hereinafter referred to as
“the 1977 Act”) the term 'Leader of the Opposition”
is defined to mean as under:
“2.Definition.- In this Act, “Leader
of the Opposition”, in relation to
either House of Parliament, means that
member of the Council of States or the
House of the People, as the case may
be, who is, for the time being, the
Leader in that House of the Party in
opposition to the Government having
the greatest numerical strength and
recognised as such by the Chairman of
the Council of States or the Speaker
of the House of the People, as the
case may be.
Explanation.-- Where there are two or
more parties in opposition to the
Government, in the Council of States
or in the House of the People having
the same numerical strength, the
Chairman of the Council of States or
the Speaker of the House of the
People, as the case may be, shall,
having regard to the status of the
parties, recognise any one of the
Page 6 Leaders of such parties as the Leader
of the Opposition for the purposes of
this section and such recognition
shall be final and conclusive.
Shri Bhushan submits that the aforesaid
provision could have been easily adopted by the
Government of India to clarify the situation in the
event any ambiguity is felt. Shri Bhushan has
specifically pointed out to the Court the
provisions of Section 62 of the Act which enables
the Government of India to so act. As such an
exercise was not undertaken within a period of two
years as required, the time frame therefor, is now
over. Shri Bhushan has pointed out that for
reasons which are not known, the respondents are
not interested in implementing the provisions of
the Act. Therefore, necessary directions should be
issued by the Court and appropriate orders need to
be passed.
7. Supporting the arguments made by Shri
Shanti Bhushan, Shri Gopal Sankaranarayana, learned
counsel for the writ petitioners in Writ Petition
(Civil) No.673 of 2015 has drawn the attention of
Page 7 the Court to the relevant provisions of the other
statutes, namely, Right to Information Act, 2005,
Central Vigilance Commission Act, 2003, etc. to
point out that in all the aforesaid statutes it has
been provided that in case there is no LOP
available, it is the Leader of the Party in
Opposition to the Government, which has the
greatest strength of Members, who is deemed to be
the Leader of the Opposition. It is also pointed
out by the learned counsel that under Section 4(2)
of the Act the appointment of the Chairperson or a
Member of the Lokpal shall not be invalid merely on
account of any vacancy in the Selection Committee.
It is, therefore, urged that even in the absence of
the LOP it is open for the Selection Committee to
proceed with the constitution of the Search
Committee. Same would be the position with regard
to the appointment of the eminent jurist who is
required to be appointed as a Member of the
Selection Committee by the other Members of the
Selection Committee enumerated under Section 4(1)
Page 8 (a) to (d) of the Act. The absence of the LOP,
therefore, need not detain the constitution of the
Selection Committee and the discharge of functions
by the Committee.
9. It is further argued by the learned counsel
that as legislative action is not forthcoming to
give effect to the provisions of the Amending Bill,
this Court should read down the provisions of
Section 4(1)(c) of the Act to understand that the
LOP mentioned in the said provisions of the Act
means the leader of the single largest opposition
party in either House of Parliament. Reading down
of the provisions of the statute, in the above
manner, would be justified to give effect to the
statute. In this regard, reliance has been placed
on the following observations contained in
paragraph 26 and 46 of the decision of this Court
in Vipulbhai M. Choudhary vs. Gujarat Coop. Milk
Mktg. Federation Ltd.
1
which are extracted below:
“26. Where the Constitution has
conceived a particular structure on
(2015) 8 SCC 1
Page 9 certain institutions, the legislative
bodies are bound to mould the statutes
accordingly. Despite the
constitutional mandate, if the
legislative body concerned does not
carry out the required structural
changes in the statutes, then, it is
the duty of the court to provide the
statute with the meaning as per the
Constitution. “The job of the Supreme
Court is not to expound the meaning of
the constitution but to provide it
with meaning”[Walter Berns,
‘Government by lawyers and judges’,
Commentary, June,1987, 18.] The
reference obviously is to United
States Supreme Court. As a general
rule of interpretation, no doubt,
nothing is to be added to or taken
from a statute. However, when there
are adequate grounds to justify an
inference, it is the bounden duty of
the court to do so.
“…It is a corollary to the general
rule of literal construction that
nothing is to be added to or taken
from a statue unless there are
adequate grounds to justify the
inference that the legislature
intended something which it
omitted to express”[Maxwell on The
Interpretation of Statues (12
th
Edn.) 33.].
According to Lord Mersey in Thompson
(Pauper) v. Goold and Co.[[1910] A.C.
409. (HL]: (AC p.420)
“...It is a strong thing to
read into an Act or Parliament
Page 10 words, which are not there,
and in the absence of clear
necessity, it is wrong to do”.
In the case of cooperative societies,
after the Ninety Seventh Amendment, it
has become a clear or strong necessity
to do the strong thing of reading into
the legislation, the constitutional
mandate of the cooperative societies
to be governed as democratic
institutions.
45...The constitutional
provisions have to be
construed broadly and
liberally having regard to the
changed circumstances and the
needs of time and polity”[The
Constitutional Bench decision
in State of W.B. v.Committee
for Protection of Democratic
Rights, (2010) 3 SCC 571,
p.591, para 45: (2010) 2 SCC
(Cri) 401]
* * *
46. In the background of the
constitutional mandate, the question
is not what the statute does say but
what the statute must say. If the Act
or the Rules or the Bye-laws do not
say what they should say in terms of
the Constitution, it is the duty of
the court to read the constitutional
spirit and concept into the Acts. …
“In so far as in its Act Parliament
does not convey its intention clearly,
expressly and completely, it is taken
to require the enforcement agencies
Page 11 who are charged with the duty of
applying legislation to spell out the
detail of its legal meaning. This may
be done either- (a) by finding and
declaring implications in the words
used by the legislator, or (b) by
regarding the breadth or other
obscurity of the express language as
conferring a delegated legislative
power to elaborate its meaning in
accordance with public policy
(including legal policy) and the
purpose of the legislation”[Bennion on
Statutory Interpretation by Francis
Bennion, (6
th
Edn.)136].”
10. In reply, Shri Mukul Rohatgi, learned
Attorney General has submitted that in the present
case the Congress Party had claimed the post of LOP
in the present Lok Sabha. However, the said claim
was rejected by the Hon’ble Speaker on the ground
that as per parameters of parliamentary convention
and practice, the Congress Party does not have the
requisite 10% strength of the total membership of
the House of the People i.e. Lok Sabha to be
entitled to have its leader in the Lok Sabha to be
recognized as the Leader of the Opposition. Shri
Rohatgi in this regard has relied upon a
publication of the Lok Sabha Secretariat which is
Page 12 to the following effect:
“At present, there is no
recognized Leader of Opposition in
Lok Sabha.”
11. Shri Rohatgi has submitted that the
provisions of the 1977 Act cannot, by itself,
constitute to be a part of the Act in question. It
is submitted that the implementation of the
provisions of the Act was attempted but certain
difficulties arising from some inadequate and
inconsistent provisions thereof came to the fore
which necessitated the Amendment Bill. Referring to
the Bill, the learned Attorney General has
submitted that the Bill seeks to comprehensively
amend different provisions of the Act to facilitate
the smooth working of the institution brought into
force under the Act.
12.It will be necessary at this stage to take note
of the salient features of the Amendment Bill along
with a very brief description of the other
amendments of the different provisions of the Act
which is presently pending legislative
Page 13 consideration. The principal amendments which will
require a specific notice are those contained in
Section 2 of the Amendment Bill seeking to amend
Section 4 [clause (c) and clause (e) of sub-section
(1); sub-section (2) and sub-section (3)] of the
Act in the manner stated below:
“2. In the Lokpal and
Lokayuktas Act, 2013 (hereinafter
referred to as the principal Act)
in section 4,-
(a) in sub-section(1),-
(i) for clause (c), the following
clause shall be substituted,
namely:-
'(c) the Leader of Opposition
recognised as such in the House of
the People or where there is no
such Leader of Opposition, then,
the Leader of the single largest
Opposition Party in that House –
Member.';
(ii)after clause (e), the
following proviso shall be
inserted, namely:-
'Provided that the eminent
jurist shall be nominated for a
period of three years and shall
not be eligible for
re-nomination.';
(b) for sub-section (2), the
following sub-section shall be
substituted, namely:-
'(2) No appointment of a
Page 14 Chairperson or a Member or the
nomination of an eminent jurist
shall be invalid merely by reason
of any vacancy or absence of a
Member in the Selection
Committee.';
(c) in sub-section (3), after
the second proviso, the following
proviso shall be inserted,
namely:-
'Provided also that no
appointment of a person in the
Search Committee or the
proceedings of the Search
Committee shall be invalid merely
by reason of any vacancy or
absence of a Member in the
Selection Committee or absence of
a person in the Search Committee,
as the case may be.'
13. The Amendment Bill was referred to the
Parliamentary Standing Committee on 25
th
December,
2014 after it was introduced in the Lok Sabha on
18
th
December, 2014. Thereafter, on 3
rd
December,
2015, the report of the Parliamentary Standing
Committee was submitted. The following extract
from the report would indicate the relevant
Sections in respect of which amendments have been
proposed and the extent thereof.
S.No.Area of Provision in Relevant Provisions in RelevantExtent of
Page 15 concern the Lokpal and
Lokayuktas
Act, 2013 &
Delhi Special
Police
Establishment
Act, 1946
Section the Bill Clause Amendment
proposed
1. Composition
of Selection
Committee
Prime
Minister,
Chief Justice
of India or
Judge of
Supreme Court,
Speaker, Lok
Sabha, Leader
of Opposition,
Lok Sabha and
eminent jurist
4(1) of
Lokpal and
Lokayuktas
Act, 2013
Prime
Minister,
Chief Justice
of India or
Judge of
Supreme Court,
Speaker, Lok
Sabha, Leader
of largest
Opposition
Party, Lok
Sabha and
eminent jurist
2(a)(i)Inclusion of
Leader of largest
Opposition Party
in Lok Sabha in
lieu of Leader of
Opposition in Lok
Sabha in
Selection
Committee.
2. Tenure of
eminent
jurist in
Selection
Committee
No mention of
tenure
4(1)(e) of
Lokpal and
Lokayuktas
Act, 2013
Fixed tenure
of three years
with no
renomination
2(b)
-
Limiting tenure
of eminent jurist
to single term in
the Selection
Committee
3. Proceedings
of Search and
Selection
Committee
Proceedings
not to be
invalidated
due to vacancy
in the
Selection
Search
Committee
4(2) of
Lokpal and
Lokayuktas
Act, 2013
No
invalidation
of proceedings
of Search and
Selection
Committee due
to vacancy or
absence
therein.
2(b)
&
2(c)
To validate the
proceedings of
Search and
Selection
Committee in the
event of absence
or vacancy of any
member arising
therein in
future.
4. Rank of
Secretary to
Lokpal
Secretary to
Government of
India
10(1) of
Lokpal and
Lokayuktas
Act, 2013
Additional
Secretary to
Government of
India
3(a) Rank reduced.
5. Rank of
Director of
Inquiry and
Director of
Prosecution
of Lokpal
Additional
Secretary to
Government of
India
10(1) of
Lokpal and
Lokayuktas
Act, 2013
Joint
Secretary to
Government of
India
3(b) Rank reduced by
one level
6. Disclosure of
assets and
liabilities
by public
servants
All Public
servants to
declare assets
and
liabilities of
self, spouse
and dependent
children in
the manner
provided under
44(1) &
44(2) of
Lokpal and
Lokayuktas
Act, 2013
Public
servants to
declare the
(i) immovable
assets owned/
acquired/
inherited by
the public
servant in
his/her name,
6(a) Immovable assets
acquired by the
public servant
whether in
his/her name or
in the name of
any family member
or any other
person to be
declared.
Page 16 the Act within
30 days of the
Act coming
into force to
their
Competent
Authority and
to file Annual
Return of
movable and
immovable
assets and
liabilities of
self, spouse
and dependent
children as on
31
st
March by
31
st
July of
that year to
the Competent
Authority
which is to be
put in public
domain by 31
st
August of that
year.
in the name of
any member of
his/her family
or in the name
of any other
person; (ii)
movable
property
owned/
acquired/
inherited by
him/her and;
(iii) Debts
and other
liabilities
incurred by
him/her
directly or
indirectly.
Such
declaration to
be made to
Competent
Authority
under Act/
Rules/
Regulations
governing
their
appointment/
election. The
Competent
Authority to
publish the
declaration
filed by
public servant
in prescribed
manner by 31
st
August of that
year.
Movable assets of
only public
servant to be
declared.
7. Seat of
Lokpal
New Delhi 16(f) of
Lokpal and
Lokayuktas
Act, 2013
NCR of Delhi 4 To facilitate
setting up of
Headquarters in
the NCR of Delhi.
8. Eligibility
Criteria of
Director of
Prosecution
(DoP) of CBI
Rank of
Director of
Prosecution is
Joint
Secretary to
Government of
India
4BA OF
DSPE Act,
1946
Indian Legal
Service
Officer
eligible to be
appointed as
Special Public
Prosecutor.
In absence of
such officer,
an advocate
having at
least 15 years
of practice,
and experience
in handling
Government
9(a) Makes the
eligibility
criteria more
stringent.
Allows only
officers with
legal background
to head the
prosecution wing
of the Central
Bureau of
Investigation
Page 17 cases relating
to offences
related to
economic
offences and
corruption.
9. Difference of
opinion
between
Director, and
Director of
prosecution
of CBI
No provision 4BA of
DSPE Act,
1946
To be settled
by Attorney
General for
India whose
decision would
be binding
9(b) New provision.
14. From the above, it is clear that Amendment
Bill seeks the inclusion of Leader of the largest
Opposition Party in Lok Sabha in the Selection
Committee, in lieu of LOP. The proposed amendments
also seek to limit the tenure of the eminent
jurist, as a Member of the Selection Committee.
There is also an explicit recital of the fact that
the absence of any Member of the Selection
Committee (or a vacancy in the post of any Member)
will not invalidate the recommendations of the
Selection Committee for appointment of the
Chairperson or Member of the Lokpal or the
appointment of the eminent jurist. Similarly,
appointment of a Member of the Search Committee or
the proceedings of the said Committee will not be
invalid by reason of either the absence of a Member
Page 18 of the Search Committee or a vacancy in the
Selection Committee. The other provisions of the
Act relate to certain incidental matters under the
Act, like, rank of Secretary to the Lokpal; rank of
Director of Inquiry and Director of Prosecution of
Lokpal; disclosure of assets and liabilities by
public servants; seat of Lokpal; eligibility
criteria for appointment of Director of
Prosecution; and the provisions relating to
resolution of difference(s) of opinion between the
Director and the Director of Prosecution of CBI.
15. While the Parliamentary Standing Committee
had made various recommendations in respect of the
proposed amendments, so far as the amendment
relating to substitution of the LOP by the Leader
of the single largest opposition party in the Lok
Sabha is concerned, the Parliamentary Standing
Committee had approved the proposed amendment.
Insofar as the discharge of functions by the
Search/Selection Committee in a situation where
Page 19 there exits a vacancy, the Parliamentary Standing
Committee is of the view that the Search/Selection
Committee should not take any decision unless the
vacancy in the Search/Selection Committee is filled
up. Rather, it is suggested that provisions should
be made in the Amendment Bill for filling up such
vacancy/vacancies at the earliest. The rest of the
recommendations of the Committee would not be very
material to decide the question arising in view of
the very nature of the subjects to which the same
relate, which would be evident from a cursory
glance of the subjects delineated above in the
Chart extracted from the report of the
Parliamentary Standing Committee.
16. As noticed, the report of the Parliamentary
Standing Committee is dated 3
rd
December, 2015. In
the hearing of the cases that took place on 28
th
March, 2017, Shri Mukul Rohatgi, learned Attorney
General for India has submitted that at present the
report of the Parliamentary Standing Committee is
under scrutiny of the Government and it is possible
Page 20 that the same may be taken up for consideration by
Parliament in the Monsoon Session of the current
year. Relying on several pronouncements of this
Court, Shri Rohatgi has submitted that there can be
no direction to the Legislature to frame any law or
to amend the existing law or to complete a
legislative exercise within any time frame. As
there can be no serious dispute on the above
proposition(s) of law it will not be necessary to
burden this order with a detailed reference to the
judgments relied on except to refer,
illustratively, to the judgment of this Court in
Common Cause vs. Union of India & Ors.
2
.
17. There can be no manner of doubt that 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. The framing of the
(2003) 8 SCC 250
Page 21 Amendment Bill; reference of the same to the
Parliamentary Standing Committee; the consideration
thereof by the said Committee; the report prepared
alongwith further steps that are required to be
taken and the time frame thereof are essential
legislative functions which should not be
ordinarily subjected to interference or
intervention of the Court. The constitutional
doctrine of separation of powers and the
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. Any other view and any
interference, at this juncture, would negate the
basic constitutional principle that the Legislature
is supreme in the sphere of law making. Reading
down a statute to make it workable in a situation
where an exercise of amendment of the law is
Page 22 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.
18. But that is not all; there is a further
question that would require an answer. The question
is whether the Act, as it exists, sans the amend -
ment proposed, is so unworkable that the Court
should refuse enforcement thereof notwithstanding
that the Act has come into force by Notification
dated 16
th
January, 2014 issued under Section 1(4)
of the Act. If the Act, as it exists, is otherwise
workable and the amendment sought to be introduced
by the Legislature is aimed at a more efficient
working of some of the provisions of the Act, the
wholesome principle that a law duly enacted and en -
forced must be given effect to will have to prevail
and appropriate directions will have to be issued
Page 23 by the Court to the said effect. Herein, we are
reminded of the observations of this Court in Utkal
Contractors and Joinery Pvt. Ltd. and Others vs.
State of Orissa and Others
3
which we find appropri -
ate to quote hereinbelow.
“Just as Parliament is not expected to
use unnecessary expressions, Parlia -
ment is also not expected to express
itself unnecessarily. Even as Parlia -
ment does not use any word without
meaning something, Parliament does not
legislate where no legislation is
called for. Parliament cannot be as -
sumed to legislate for the sake of
legislation; nor can it be assumed to
make pointless legislation. Parliament
does not indulge in legislation merely
to state what it is unnecessary to
state or to do what is already validly
done. Parliament may not be assumed to
legislate unnecessarily. Again, while
the words of an enactment are impor -
tant, the context is no less impor -
tant.”
19. To answer the question posed above, the
provisions of the Act, as it exists, may now be
noted. Under Section 4 of the Act, the Chairperson
and Members of the Lokpal are required to be
appointed by the President on the recommendations
AIR 1987 SC 1454 : (1987) 3 SCC 279
Page 24 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
Page 25 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. To
hold otherwise would be self contradictory. The
amendment to Section 4(3), as proposed, would,
therefore, be clarificatory and will not amount to
Page 26 an attempt to cure a shortcoming in the Act which
is proving to be an inhibition in law to the
appointment of the Chairperson/ 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.
20. A consideration of the other provisions of
the Act in respect of which amendments have been
proposed, as indicated in the Chart extracted
above, and the views of the Parliamentary Standing
Committee in this regard which are available in its
report, in our considered view, are attempts at
Page 27 streamlining the working of the Act and in no way
constitute legal hindrances or bars to the
enforcement of the provisions of the Act as it
stands today. In this regard, all that the Court
would like to say and observe is that such attempts
at achieving better results in the working of any
statute is a perpetual and ongoing exercise
dictated by the experiences gained on the working
of the act. Such attempts 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
Section 1(4) of the Act.
21.At this stage it may not be out of context to
notice the stated objects and reasons for the
Legislation which highlights its unique character
and importance in the contemporary world.
“The need to have a legislation for
Lokpal has been felt for the quite
some time. In its interim report on
the ‘Problems of Redressal of
Citizen’s Grievances’, submitted in
1966, the Administrative Reforms
Page 28 Commission, inter alia, recommended
the setting up of an institution of
Lokpal at the Centre. To give effect
to this recommendation of the
Administrative Reforms Commission,
eight Bills on Lokpal were introduced
in the Loka Sabha in the past.
However, these Bills had lapsed
consequent upon the dissolution of the
respective Loka Sabha; except in the
case of 1985 bill, which was
subsequently withdrawn after its
introduction.
India is committed to pursue the
policy of ‘Zero Tolerance against
Corruption’. India ratified the United
Nations Convention against Corruption
by deposit of Instrument of
Ratification on the 9
th
of May, 2011.
This Convention imposes a number of
obligations, some mandatory, some
recommendatory and some optional on
the Member States. The Convention,
inter alia, envisages that State
Parties ensure measures in the
domestic law for criminalization of
offences relating to bribery and put
in place an effective mechanism for
its enforcement. The obligations of
the Convention, with reference to
India, have come into force with
effect from the 8
th
of June, 2011. As a
policy of Zero tolerance against
Corruption, the Bill seeks to
establish in the country, a more
Page 29 effective mechanism to receive
complaints relating to allegations of
corruption against public servants,
including, Ministers, Members of
Parliament, Chief Ministers, Members
of Legislative Assemblies, public
servants and to inquire into them and
take follow up actions. The bodies,
namely, Lokpal and Lokayuktas which
are being set up for the purpose will
be constitutional bodies. This setting
up of these bodies will further
strengthen the existing legal and
institutional mechanism thereby
facilitating a more effective
implementation of some of the
obligations under the aforesaid
Convention.”
22. We, therefore, conclude by quoting Justice
Krishna Iyer In Reference, the Special Courts Bill,
1978
4
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 pathology of our public law, with
its class slant, is that an
AIR 1979 SC 478 : (1979) 1 SCC 380
Page 30 unmincing ombudsman or sentinel on the
qui vive with power to act against
those in power, now or before, and
offering legal access to the informed
citizen to complain with immunity does
not exist; despite all the bruited
umbrage of political performers
against peculations and perversions by
higher echelons. Law is what law does,
not what law says; and the moral gap
between word and deed menaces people’s
faith in life and law. The tragedy,
then, is that democracy becomes a
casualty.”
23. For the aforesaid reasons, the writ
petitions and the transferred cases shall stand
allowed as indicated above.
....................,J.
(RANJAN GOGOI)
....................,J.
(NAVIN SINHA)
NEW DELHI
APRIL 27, 2017
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