The Centre today told the Supreme Court that the appointment of Lokpal wasn’t possible in the current scenario as amendments regarding the definition of the Leader of Opposition (LoP) in the Lokpal Act was pending in the Parliament.
Appearing for the government in the SC, Attorney General Mukul Rohatgi submitted to a bench of Justices Ranjan Gogoi and Navin Sinha that there was no clarity on who the Leader of the Opposition is.
He noted that the Lok Sabha had declined to accept Congress leader Mallikarjun Kharge as the Leader of the Opposition and thus, Lokpal cannot be appointed until amendments are cleared by the Parliament.
The Congress, with 44 MPs, is the single largest party in the Lok Sabha after the ruling BJP which has 282 lawmakers. According to Parliament rules, the biggest opposition party in the House has to have at least 10 per cent of the total strength of the Lok Sabha to be eligible for the post of Leader of Opposition.
The strength of Lok Sabha is 545 including the two seats reserved for members of the Anglo-Indian community, thus a party needs at least 55 members for the post.
The Congress lacks requisite number of MPs, the AG said, adding that therefore, the Leader of Opposition post was not granted to it.
"Unless the proposed amendment making Leader of the Largest Opposition party as Leader of Opposition is passed by Parliament, the Lokpal can't be appointed," Rohatgi said.
The AG also informed the court that the Parliament was considering over 20 changes in the Lokpal law and the ‘judiciary cannot pass an order on how and when the amendments be passed’. He requested the court to refrain from passing an order.
After hearing the AG’s arguments, the Supreme Court said that it has reserved its verdict on a batch of pleas seeking directions to the Centre to appoint Lokpal as per the Lokpal and Lokayuktas Act, 2013.
"We have heard the arguments of all the parties. Judgement (is) reserved," the apex court said.
As per the Lokpal and Lokayuktas Act of 2013, the Leader of Opposition in the Lok Sabha will be part of the Lokpal selection panel.
Senior advocate Shanti Bhushan, appearing for NGO Common Cause, said that even though the Lokpal Bill was passed by the Parliament in 2013 and came into effect in 2014, the Lokpal is not being appointed by the government deliberately.
He said that the Lokpal Act mandates that the Lokpal should be appointed expeditiously.
On December 7, 2016, the Supreme Court had asked the Centre to place before it a copy of the report of a parliamentary standing committee suggesting amendments to the Lokpal law, and sought to know about the changes required to make the anti-graft ombudsman functional.
The apex court had on November 23 last year pulled up the Centre over the delay in appointment of Lokpal saying it should not allow the law to become a "dead letter".
The apex court had said that the Lokpal law that came into being after a nationwide stir led by Anna Hazare cannot be made redundant just because the legislation was not amended to bring in the leader of the largest opposition party in the selection panel.
Referring to the key pre-requisite that the Leader of Opposition has to be there in Lokpal selection panel, the apex court had said that the LoP is "dispensable" and things can proceed without the LoP who can be replaced by the leader of the largest opposition party in the committee.
The apex court had also expressed disappointment when the Centre said the amendment to replace the LoP with the leader of the largest opposition party in the proposed selection committee of Lokpal is pending with Parliament and asking it to clear would amount to "judicial legislation".
In the Lok Sabha, the largest opposition party Congress has only 45 members and lacks the requisite 10 per cent of total 545 seats, giving rise to the requirement to amend the present Lokpal Act.
The law provides the selection of chairperson and members of Lokpal shall be through a selection panel consisting of the Prime Minister, Lok Sabha Speaker, LoP in Lok Sabha, Chief Justice of India or a sitting SC judge nominated by the CJI, an eminent jurist to be nominated by President of India on the basis of recommendations of first four members of selection committee.
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 NGO 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.