UPA Bulldozer Faces Lokpal Legal Roadblock
By Vinod Mathew
Published: 09th Mar 2014 07:28:47 AM
The UPA government may have failed in promulgating many ordinances, but it seems to be in a tearing hurry to constitute Lokpal and appoint all the other members before its term is over.
It has been a sordid saga of hits and misses, more of the latter than the former, since the UPA government decided to rush through the setting up of the first Lokpal that would bring under its ambit the offices of the Prime Minister and others. According to reliable sources, the Department of Personnel has decided to move ahead as it feels the government doesn’t need any clearance from the Election Commission for it because the process for the selection of Lokpal and other members was started before the poll announcement. There are others who claim that the EC has already given the green signal.
Even as the likes of Fali Nariman and Justice K T Thomas declined to join the Lokpal search committee, raising questions about the formation of the Lokpal, lawyers in two southern states have moved court seeking to review of selection mechanism. Their objection appears to be that a caretaker government can’t appoint and constitute a Constitutional institution which is likely to probe and scrutinise the decisions of the incumbent government. With the announcement of polls, the government move to continue with its decision raises doubt about intention.
According to sources in the PMO, the Prime Minister is likely to call a meeting of selection to nominate new members in place of Nariman and Thomas. But Sushma Swaraj, leader of Opposition, is yet to give her consent for the next meeting.
Lawyers in Kerala and Tamil Nadu reiterate that there is no concerted move against Lokpal; the buzz in the legal circles here is that a similar petition would soon be filed, this time before the Bombay High Court. While the Kerala High Court directed the respondent to file a counter-affidavit within a month and made an oral observation that the Attorney General of India should be heard since it was a constitutional issue, the Madras High Court (Madurai Bench) issued notice to the Centre asking it to file a counter-affidavit within two weeks.
Speaking to The Sunday Standard, Justice Thomas said, “With two of us out of the search committee, I see some difficulty in the selection committee under the chairmanship of Prime Minister and with Speaker of the House and Leader of Opposition among others meeting to replace us. My stance is there is no need for a search committee at all as its search is limited to a list provided by the selection committee. Also, the selection committee can consider any person other than those recommended by the search committee, in which instance there is no provision for these names to be sent back to the search committee. It is meaningless.”
It was his stand that when the offer to chair the search committee was made to him, he did not peruse the rules minutely, but did so after hearing that Nariman had recused himself from the panel.
Petitioner in person, Swaminathan put things in perspective, saying, “The Lokpal Act is ultra vires the Indian Constitution. Some of its rules are ultra vires the Act and the Constitution. Some of us have started contemplating a situation where these two cases and any others that may get filed on this are withdrawn and transferred to the Supreme Court. Think of the irony if judges who are applicants for Lokpal postings get to adjudicate the case.” Legal eagles argue that the government should have protected the independence of judiciary by keeping the judges out of the search committee and let the search committee offer the posts. Even the provision of expecting application from the sitting judges could have been avoided by the government. Since Supreme Court has best judicial minds with impeccable integrity the search committee would have faced any difficulty in spotting the best amongst them. According to DoPT sources, there are at least four Supreme Court judges amongst the 300 who are being considered for the appointment. However, the government has to cross many hurdles before it succeeds in its plans. The PM will have to call another meeting of selection to find replacements for Thomas and Nariman.
What UPA Wants
The UPA government is in a hurry to constitute Lokpal and appoint all members before its term is over. The Department of Personnel has decided to move ahead on the premise that it doesn’t need any clearance from the Election Commission, amid claims the EC has already given the green signal.
What the plea says
Petitioner Swaminathan in his plea, said, “Under section 3(2)(a), the Lokpal can be the sitting CJI or a sitting Supreme Court judge. Strangely, Section 4(1)(d) requires the sitting CJI to be on the Selection Committee or nominate a judge of the SC. Sections 3(2)(a) and 4(1)(d), when read together vitiate the selection process. This unfortunately results in the sitting CJI to be a candidate who offers himself for selection and his own nominee is on the selection committee. Conversely, the CJI may be on the selection committee and he is required to select his own colleague for the post of Lokpal. These two provisions are contrary to elementary principles of administrative law, rules of natural justice and violates Article 14.”
“Inclusion of the CJI or a judge of the SC nominated by the CJI in the committee for selection of chairperson and members of Lokpal will result in the judiciary becoming part of the executive, which will have far reaching consequences. It is therefore submitted that Section 4(1)(d) of Act 1 of 2014 will take away the independence of the judicial institution, when it forms part of a selection committee, the selection of which is to be made by the executive. The inclusion of CJI or a judge of the SC nominated by him in the selection committee for appointment of chairperson and member of the Lokpal is therefore against the basic structure of the Constitution,” the petition points out. It adds: “Any person including the CJI or judges of SC if had given their curriculum vitae to be scrutinised by the search committee, they cannot be considered as persons as eminence and cannot discharge their constitutional function in terms of oath they have taken and decide matters in relation to the Union while awaiting appointment by executive.”
Feb. 17: Lawyer P Subair Kunju files writ petition against Union of India before Kerala High Court challenging provisions of Lokpal and the Lok Ayukta Act 2013.
Feb. 27: Eminent jurist Fali S Nariman declines offer from PMO to be part of the search committee to select Lokpal.
March 3: Former SC judge Justice K T Thomas refuses offer to head search committee.
March 5: G R Swaminathan, a lawyer, files petitions in Madras High Court, to exclude CJIs or a SC judge from the Lokpal selection committee and to nullify constitution of the search committee.
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