New Delhi: The Centre’s decision to include Mallikarjun Kharge, leader of the Congress in the Lok Sabha, as a “special invitee” to a meeting of the lokpal selection committee on March 1 tasked with finalising an “eminent jurist” member on the panel has not gone down well with anti-graft crusaders who have been demanding a proper law be formulated for allowing the leader of the single largest opposition party to attend these meetings since the power of a “special invitee” has not been specified as yet.

Incidentally, the meeting comes close on the heels of a Supreme Court hearing of a PIL in which the apex court had asked asked the secretary of the Department of Personnel and Training (DoPT) to file an affidavit about the “steps taken and proposed” by the Centre to appoint the lokpal.

PIL had raised issued of delay in appointment

Hearing a public interest litigation (PIL) filed in 2014 by NGO Common Cause, led by senior advocate Prashant Bhushan, the court had earlier this month taken into account the submission of attorney general K.K. Venugopal that a meeting between Prime Minister Narendra Modi, Chief Justice of India Dipak Misra, Lok Sabha speaker Sumitra Mahajan and leader of the largest party in opposition Mallikarjun Kharge has been convened on March 1 to discuss the appointment of a lokpal. The court also posted the matter for March 6.

However, following this hearing, Bhushan tweeted that the Centre had acted only after the threat of contempt of court was staring it in the face. He also pointed out that the Centre had been sitting on the Lokpal law for the last four years and ten months.

After sitting on Lokpal law w/o appointing Lokpal for 4 years & even 10 months after SC ordered govt to appoint Lokpal, govt says it will hold first meeting on 1st March, only after SC contempt threat. As scamsters like NiMo loot & scoot, PM says, he is chowkidar, Why Lokpal?! https://t.co/Ut9K5AuZr0 — Prashant Bhushan (@pbhushan1) February 23, 2018

In the wake of the multi-crore Nirav Modi-Mehul Choksi scam in Punjab National Bank, the Modi government has been facing flak for not walking the talk on corruption and delaying the appointment of a lokpal.

Addressing a public meeting in Karnataka, Congress president Rahul Gandhi on Monday lashed out at Prime Minister Modi for favouring the “super rich” and questioned why he had still not appointed a lokpal to fight corruption.

“In Gujarat, Modi ji did not implement lokayukta. It has been four years since he became prime minister… He did not implement lokpal even in Delhi,” he said in the rally.

Incidentally, citizens rights groups have also been urging the Centre to not delay the issue any further. In January this year, the National Campaign for People’s Right to Information had written a detailed letter to Modi, stating that the delay in the appointment ‘has created a strong perception that that your government does not wish to put in place an effective anti-corruption institutional framework’.

The NCPRI had noted with concern that while the lokpal law was passed by parliament in December 2013 and was notified in the gazette on January 1, 2014, not a single lokpal has been appointed till date. “The lokpal law was demanded by the people of the country as there was a need for an independent and empowered body to look into cases of corruption of public servants,” it had pointed out.

Absence of LoP in 16th Lok Sabha led to situation

The anti-corruption activist group said that the Act provides for a “selection committee comprising the prime minister, speaker of the house of the people, leader of opposition in the house of the people, the CJI or a judge of the Supreme Court nominated by the CJI, and an eminent jurist, as recommended by the chairperson and members (Section 4(1) of the Act).” But it noted that “despite the fact that there appears to be no legal barrier to prevent the recognition of a Leader of Opposition (LoP), in the 16th Lok Sabha no LoP has been recognised. As a result the selection committee under the LL Act has not be constituted and therefore no appointments have been made to the Lokpal”.

The letter had also pointed out that the Lokpal and Lokayuktas (Amendment) Bill, 2016, introduced by the current government in parliament in July, 2016, for immediate passage, had not included any provision to alter the composition of the selection committee (to provide that in the absence of a recognised leader of opposition, the leader of the single largest party/group in opposition in the Lok Sabha will be included in the selection panel).

A simple amendment to law was needed

“In the absence of a recognised LoP, to operationalise the LL Act, a simple amendment was required to the law to provide that in the absence of a recognised leader of opposition, the leader of the single largest party/group in opposition in the Lok Sabha will be included in the selection panel for appointing the Lokpal. However, the Lokpal and Lokayuktas (Amendment) Bill, 2016 introduced by your government in parliament in July 2016 for immediate passage did not include this provision to alter the composition of the selection committee,” the letter notes.

Rather than lending strength to the original law, the letter had also accused the Centre of diluting the 2013 law through this amendment Bill “by doing away with the statutory provision to publicly disclose the assets and liabilities of spouses and dependent children of public servants.”

Recalling that the attorney general had informed the court that an amendment to alter the composition of the selection committee was pending in parliament, the letter had noted that even a truncated selection committee could appoint the lokpal.

‘A truncated selection committee can appoint Lokpal, but not the best option’

“Recognising its limitation in terms of being able to direct the legislature to pass the amendment, to ensure that there is no further delay in the implementation of the Lokpal law, the court held that under Section 4(2) of the law, a truncated selection committee (without the LoP) could appoint the Lokpal,” the letter said.

But now as it has come to light that the meeting on March 1 is being convened to finalise the ‘eminent jurist’ member on the panel as this can be done by the other members of the panel only – namely the PM, Lok Sabha Speaker, LoP in the Lok Sabha and the CJI – the activists have been left wondering in what capacity the leader of the largest party has been invited without changing the law and what powers would be exercised in the meeting. Besides, Kharge, the minister of state in the Prime Minister’s Office Jitendra Singh has also been invited as a special invitee.

The word going around is that once the jurist is appointed, another meeting would be called for authorising the search committee to prepare a panel of names to be considered for appointment as chairperson and members of the Lokpal.

‘Exercise being conducted on whim of PM’

However, Anjali Bharadwaj of NCPRI questioned the manner in which the entire exercise was being conducted and charged that it was being done more on the whims of the Prime Minister than in accordance with law.

“The law says the the LoP should be a member of the selection committee but this government has not recognised anyone as that, which according to us is wrong. They could have easily recognised the leader of the single largest opposition party as the leader of the opposition. But if they were not doing so, then the right thing to do would have been to bring about a change in the law to allow such a leader to sit in the selection committee meeting.”

Bharadwaj said that though the Supreme Court had stated that even if there was a vacancy in the selection committee, it could still appoint a Lokpal as per the law, it would have been better had the Centre amended the law to allow the leader of the largest party to be a member of the selection committee. “The only correct way would have been to either appoint Kharge as LoP or to have changed the law that the leader of single largest party would sit in the selection committee. But if I do not do any of those things and still invite Kharge as a special invitee then where is the law to support it,” she asked.

After the Modi government took over in 2014, the Lok Sabha Speaker had denied LoP status to Congress citing “rules” and based on a ruling by the country’s first speaker, G.D. Mavalankar, who had ruled that an opposition party has to secure a minimum of 10% of the seats for 55 seats to get LoP status. Congress managed to win only 44 seats in the 16th Lok Sabha.

Bharadwaj said that to maintain the integrity of an institution like lokpal, it should be ensured that it is not the government that decides who would head it. “For then the government can give the post to its own.” But she said the government wants to give an impression of fairness in the dealings as otherwise the activists would be up in arms and allege bias in the appointments. So, just to pre-empt that, the Centre is saying Kharge should just come and sit. But he does not have any real powers.”

She also questioned why the government was not operating in a legal framework. “The Supreme Court had only said that section 4 of the Lokpal law says that even if there is a vacancy in the selection committee, the selection will not be null and void. Which means that technically as on date there is a vacancy in the selection committee. Since the leader of opposition has not been recognised, what would be the role of Kharge?” she asked.

The activist said the leader of opposition is supposed to play an important role. “Why do we want the leader of opposition to sit there? It is so that if the government is ham-handedly trying to appoint their own people, the leader of opposition can oppose that and say “No, I will not allow that to happen”. When former Delhi Police commissioner B.L. Bassi was being pushed for the post of Central Information Commissioner after his superannuation, Kharge had opposed his appointment via a letter. He had dissented to the choice saying that since Bassi had stood by the Centre, it cannot push his case. As a result Bassi could not be appointed.”

‘Would Kharge have any real power’

Bharadwaj wondered “if today the Centre decides to make a tainted Gujarat IPS officer the lokpal then would Kharge be able to oppose the name with equal force? What will be the legal procedure then? Does he have any real powers. The Centre has not spelt out any powers for the special invitee. Would he be allowed to see the vigilance reports and documents of the candidates? Would he be able to cast a valid vote?” Unfortunately, she said, none of these aspects have been spelt out.