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) 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
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 16th January, 2014 by a notification issued in the Official Gazette by
the Government of India. 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 (18th 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 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 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 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)(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 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 (12th 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
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 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, (6th 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 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 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 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 25th December, 2014 after it was introduced in the Lok Sabha
on 18th December, 2014. Thereafter, on 3rd 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 |Releva|Extent of |
| |concern |the Lokpal |Section |in the Bill |nt |Amendment |
| | |and | | |Clause|proposed |
| | |Lokayuktas | | | | |
| | |Act, 2013 & | | | | |
| | |Delhi | | | | |
| | |Special | | | | |
| | |Police | | | | |
| | |Establishmen| | | | |
| | |t Act, 1946 | | | | |
|1. |Composition|Prime |4(1) of |Prime |2(a)(i|Inclusion of |
| |of |Minister, |Lokpal |Minister, |) |Leader of |
| |Selection |Chief |and |Chief | |largest |
| |Committee |Justice of |Lokayukta|Justice of | |Opposition |
| | |India or |s Act, |India or | |Party in Lok |
| | |Judge of |2013 |Judge of | |Sabha in lieu |
| | |Supreme | |Supreme | |of Leader of |
| | |Court, | |Court, | |Opposition in |
| | |Speaker, Lok| |Speaker, Lok| |Lok Sabha in |
| | |Sabha, | |Sabha, | |Selection |
| | |Leader of | |Leader of | |Committee. |
| | |Opposition, | |largest | | |
| | |Lok Sabha | |Opposition | | |
| | |and eminent | |Party, Lok | | |
| | |jurist | |Sabha and | | |
| | | | |eminent | | |
| | | | |jurist | | |
|2. |Tenure of |No mention |4(1)(e) |Fixed tenure|2(b) |Limiting |
| |eminent |of tenure |of Lokpal|of three |- |tenure of |
| |jurist in | |and |years with | |eminent jurist|
| |Selection | |Lokayukta|no | |to single term|
| |Committee | |s Act, |renomination| |in the |
| | | |2013 | | |Selection |
| | | | | | |Committee |
|3. |Proceedings|Proceedings |4(2) of |No |2(b) |To validate |
| |of Search |not to be |Lokpal |invalidation|& |the |
| |and |invalidated |and |of |2(c) |proceedings of|
| |Selection |due to |Lokayukta|proceedings | |Search and |
| |Committee |vacancy in |s Act, |of Search | |Selection |
| | |the |2013 |and | |Committee in |
| | |Selection | |Selection | |the event of |
| | |Search | |Committee | |absence or |
| | |Committee | |due to | |vacancy of any|
| | | | |vacancy or | |member arising|
| | | | |absence | |therein in |
| | | | |therein. | |future. |
|4. |Rank of |Secretary to|10(1) of |Additional |3(a) |Rank reduced. |
| |Secretary |Government |Lokpal |Secretary to| | |
| |to Lokpal |of India |and |Government | | |
| | | |Lokayukta|of India | | |
| | | |s Act, | | | |
| | | |2013 | | | |
|5. |Rank of |Additional |10(1) of |Joint |3(b) |Rank reduced |
| |Director of|Secretary to|Lokpal |Secretary to| |by one level |
| |Inquiry and|Government |and |Government | | |
| |Director of|of India |Lokayukta|of India | | |
| |Prosecution| |s Act, | | | |
| |of Lokpal | |2013 | | | |
|6. |Disclosure |All Public |44(1) & |Public |6(a) |Immovable |
| |of assets |servants to |44(2) of |servants to | |assets |
| |and |declare |Lokpal |declare the | |acquired by |
| |liabilities|assets and |and |(i) | |the public |
| |by public |liabilities |Lokayukta|immovable | |servant |
| |servants |of self, |s Act, |assets | |whether in |
| | |spouse and |2013 |owned/ | |his/her name |
| | |dependent | |acquired/ | |or in the name|
| | |children in | |inherited by| |of any family |
| | |the manner | |the public | |member or any |
| | |provided | |servant in | |other person |
| | |under the | |his/her | |to be |
| | |Act within | |name, in the| |declared. |
| | |30 days of | |name of any | |Movable assets|
| | |the Act | |member of | |of only public|
| | |coming into | |his/her | |servant to be |
| | |force to | |family or in| |declared. |
| | |their | |the name of | | |
| | |Competent | |any other | | |
| | |Authority | |person; (ii)| | |
| | |and to file | |movable | | |
| | |Annual | |property | | |
| | |Return of | |owned/ | | |
| | |movable and | |acquired/ | | |
| | |immovable | |inherited by| | |
| | |assets and | |him/her and;| | |
| | |liabilities | |(iii) Debts | | |
| | |of self, | |and other | | |
| | |spouse and | |liabilities | | |
| | |dependent | |incurred by | | |
| | |children as | |him/her | | |
| | |on 31st | |directly or | | |
| | |March by | |indirectly. | | |
| | |31st July of| |Such | | |
| | |that year to| |declaration | | |
| | |the | |to be made | | |
| | |Competent | |to Competent| | |
| | |Authority | |Authority | | |
| | |which is to | |under Act/ | | |
| | |be put in | |Rules/ | | |
| | |public | |Regulations | | |
| | |domain by | |governing | | |
| | |31st August | |their | | |
| | |of that | |appointment/| | |
| | |year. | |election. | | |
| | | | |The | | |
| | | | |Competent | | |
| | | | |Authority to| | |
| | | | |publish the | | |
| | | | |declaration | | |
| | | | |filed by | | |
| | | | |public | | |
| | | | |servant in | | |
| | | | |prescribed | | |
| | | | |manner by | | |
| | | | |31st August | | |
| | | | |of that | | |
| | | | |year. | | |
|7. |Seat of |New Delhi |16(f) of |NCR of Delhi|4 |To facilitate |
| |Lokpal | |Lokpal | | |setting up of |
| | | |and | | |Headquarters |
| | | |Lokayukta| | |in the NCR of |
| | | |s Act, | | |Delhi. |
| | | |2013 | | | |
|8. |Eligibility|Rank of |4BA OF |Indian Legal|9(a) |Makes the |
| |Criteria of|Director of |DSPE Act,|Service | |eligibility |
| |Director of|Prosecution |1946 |Officer | |criteria more |
| |Prosecution|is Joint | |eligible to | |stringent. |
| |(DoP) of |Secretary to| |be appointed| |Allows only |
| |CBI |Government | |as Special | |officers with |
| | |of India | |Public | |legal |
| | | | |Prosecutor. | |background to |
| | | | |In absence | |head the |
| | | | |of such | |prosecution |
| | | | |officer, an | |wing of the |
| | | | |advocate | |Central Bureau|
| | | | |having at | |of |
| | | | |least 15 | |Investigation |
| | | | |years of | | |
| | | | |practice, | | |
| | | | |and | | |
| | | | |experience | | |
| | | | |in handling | | |
| | | | |Government | | |
| | | | |cases | | |
| | | | |relating to | | |
| | | | |offences | | |
| | | | |related to | | |
| | | | |economic | | |
| | | | |offences and| | |
| | | | |corruption. | | |
|9. |Difference |No provision| 4BA of |To be |9(b) |New provision.|
| |of opinion | |DSPE Act,|settled by | | |
| |between | |1946 |Attorney | | |
| |Director, | | |General for | | |
| |and | | |India whose | | |
| |Director of| | |decision | | |
| |prosecution| | |would be | | |
| |of CBI | | |binding | | |
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 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 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 3rd December, 2015. In the hearing of the cases that took place on
28th 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 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 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 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
amendment proposed, is so unworkable that the Court should refuse
enforcement thereof notwithstanding that the Act has come into force by
Notification dated 16th 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 enforced must be given effect to will have to prevail and
appropriate directions will have to be issued 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 appropriate to quote hereinbelow.
“Just as Parliament is not expected to use unnecessary
expressions, Parliament is also not expected to express itself
unnecessarily. Even as Parliament does not use any word without
meaning something, Parliament does not legislate where no
legislation is called for. Parliament cannot be assumed 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 important, the context is no less important.”
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 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. To hold otherwise would be self
contradictory. The amendment to Section 4(3), as proposed, would,
therefore, be clarificatory and will not amount to 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
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 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 9th 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 8thof June, 2011. As a
policy of Zero tolerance against Corruption, the Bill seeks to
establish in the country, a more 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 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
-----------------------
[1] (2015) 8 SCC 1
[2] (2003) 8 SCC 250
[3] AIR 1987 SC 1454 : (1987) 3 SCC 279
[4] AIR 1979 SC 478 : (1979) 1 SCC 380
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) 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
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 16th January, 2014 by a notification issued in the Official Gazette by
the Government of India. 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 (18th 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 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 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 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)(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 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 (12th 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
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 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, (6th 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 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 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 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 25th December, 2014 after it was introduced in the Lok Sabha
on 18th December, 2014. Thereafter, on 3rd 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 |Releva|Extent of |
| |concern |the Lokpal |Section |in the Bill |nt |Amendment |
| | |and | | |Clause|proposed |
| | |Lokayuktas | | | | |
| | |Act, 2013 & | | | | |
| | |Delhi | | | | |
| | |Special | | | | |
| | |Police | | | | |
| | |Establishmen| | | | |
| | |t Act, 1946 | | | | |
|1. |Composition|Prime |4(1) of |Prime |2(a)(i|Inclusion of |
| |of |Minister, |Lokpal |Minister, |) |Leader of |
| |Selection |Chief |and |Chief | |largest |
| |Committee |Justice of |Lokayukta|Justice of | |Opposition |
| | |India or |s Act, |India or | |Party in Lok |
| | |Judge of |2013 |Judge of | |Sabha in lieu |
| | |Supreme | |Supreme | |of Leader of |
| | |Court, | |Court, | |Opposition in |
| | |Speaker, Lok| |Speaker, Lok| |Lok Sabha in |
| | |Sabha, | |Sabha, | |Selection |
| | |Leader of | |Leader of | |Committee. |
| | |Opposition, | |largest | | |
| | |Lok Sabha | |Opposition | | |
| | |and eminent | |Party, Lok | | |
| | |jurist | |Sabha and | | |
| | | | |eminent | | |
| | | | |jurist | | |
|2. |Tenure of |No mention |4(1)(e) |Fixed tenure|2(b) |Limiting |
| |eminent |of tenure |of Lokpal|of three |- |tenure of |
| |jurist in | |and |years with | |eminent jurist|
| |Selection | |Lokayukta|no | |to single term|
| |Committee | |s Act, |renomination| |in the |
| | | |2013 | | |Selection |
| | | | | | |Committee |
|3. |Proceedings|Proceedings |4(2) of |No |2(b) |To validate |
| |of Search |not to be |Lokpal |invalidation|& |the |
| |and |invalidated |and |of |2(c) |proceedings of|
| |Selection |due to |Lokayukta|proceedings | |Search and |
| |Committee |vacancy in |s Act, |of Search | |Selection |
| | |the |2013 |and | |Committee in |
| | |Selection | |Selection | |the event of |
| | |Search | |Committee | |absence or |
| | |Committee | |due to | |vacancy of any|
| | | | |vacancy or | |member arising|
| | | | |absence | |therein in |
| | | | |therein. | |future. |
|4. |Rank of |Secretary to|10(1) of |Additional |3(a) |Rank reduced. |
| |Secretary |Government |Lokpal |Secretary to| | |
| |to Lokpal |of India |and |Government | | |
| | | |Lokayukta|of India | | |
| | | |s Act, | | | |
| | | |2013 | | | |
|5. |Rank of |Additional |10(1) of |Joint |3(b) |Rank reduced |
| |Director of|Secretary to|Lokpal |Secretary to| |by one level |
| |Inquiry and|Government |and |Government | | |
| |Director of|of India |Lokayukta|of India | | |
| |Prosecution| |s Act, | | | |
| |of Lokpal | |2013 | | | |
|6. |Disclosure |All Public |44(1) & |Public |6(a) |Immovable |
| |of assets |servants to |44(2) of |servants to | |assets |
| |and |declare |Lokpal |declare the | |acquired by |
| |liabilities|assets and |and |(i) | |the public |
| |by public |liabilities |Lokayukta|immovable | |servant |
| |servants |of self, |s Act, |assets | |whether in |
| | |spouse and |2013 |owned/ | |his/her name |
| | |dependent | |acquired/ | |or in the name|
| | |children in | |inherited by| |of any family |
| | |the manner | |the public | |member or any |
| | |provided | |servant in | |other person |
| | |under the | |his/her | |to be |
| | |Act within | |name, in the| |declared. |
| | |30 days of | |name of any | |Movable assets|
| | |the Act | |member of | |of only public|
| | |coming into | |his/her | |servant to be |
| | |force to | |family or in| |declared. |
| | |their | |the name of | | |
| | |Competent | |any other | | |
| | |Authority | |person; (ii)| | |
| | |and to file | |movable | | |
| | |Annual | |property | | |
| | |Return of | |owned/ | | |
| | |movable and | |acquired/ | | |
| | |immovable | |inherited by| | |
| | |assets and | |him/her and;| | |
| | |liabilities | |(iii) Debts | | |
| | |of self, | |and other | | |
| | |spouse and | |liabilities | | |
| | |dependent | |incurred by | | |
| | |children as | |him/her | | |
| | |on 31st | |directly or | | |
| | |March by | |indirectly. | | |
| | |31st July of| |Such | | |
| | |that year to| |declaration | | |
| | |the | |to be made | | |
| | |Competent | |to Competent| | |
| | |Authority | |Authority | | |
| | |which is to | |under Act/ | | |
| | |be put in | |Rules/ | | |
| | |public | |Regulations | | |
| | |domain by | |governing | | |
| | |31st August | |their | | |
| | |of that | |appointment/| | |
| | |year. | |election. | | |
| | | | |The | | |
| | | | |Competent | | |
| | | | |Authority to| | |
| | | | |publish the | | |
| | | | |declaration | | |
| | | | |filed by | | |
| | | | |public | | |
| | | | |servant in | | |
| | | | |prescribed | | |
| | | | |manner by | | |
| | | | |31st August | | |
| | | | |of that | | |
| | | | |year. | | |
|7. |Seat of |New Delhi |16(f) of |NCR of Delhi|4 |To facilitate |
| |Lokpal | |Lokpal | | |setting up of |
| | | |and | | |Headquarters |
| | | |Lokayukta| | |in the NCR of |
| | | |s Act, | | |Delhi. |
| | | |2013 | | | |
|8. |Eligibility|Rank of |4BA OF |Indian Legal|9(a) |Makes the |
| |Criteria of|Director of |DSPE Act,|Service | |eligibility |
| |Director of|Prosecution |1946 |Officer | |criteria more |
| |Prosecution|is Joint | |eligible to | |stringent. |
| |(DoP) of |Secretary to| |be appointed| |Allows only |
| |CBI |Government | |as Special | |officers with |
| | |of India | |Public | |legal |
| | | | |Prosecutor. | |background to |
| | | | |In absence | |head the |
| | | | |of such | |prosecution |
| | | | |officer, an | |wing of the |
| | | | |advocate | |Central Bureau|
| | | | |having at | |of |
| | | | |least 15 | |Investigation |
| | | | |years of | | |
| | | | |practice, | | |
| | | | |and | | |
| | | | |experience | | |
| | | | |in handling | | |
| | | | |Government | | |
| | | | |cases | | |
| | | | |relating to | | |
| | | | |offences | | |
| | | | |related to | | |
| | | | |economic | | |
| | | | |offences and| | |
| | | | |corruption. | | |
|9. |Difference |No provision| 4BA of |To be |9(b) |New provision.|
| |of opinion | |DSPE Act,|settled by | | |
| |between | |1946 |Attorney | | |
| |Director, | | |General for | | |
| |and | | |India whose | | |
| |Director of| | |decision | | |
| |prosecution| | |would be | | |
| |of CBI | | |binding | | |
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 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 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 3rd December, 2015. In the hearing of the cases that took place on
28th 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 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 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 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
amendment proposed, is so unworkable that the Court should refuse
enforcement thereof notwithstanding that the Act has come into force by
Notification dated 16th 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 enforced must be given effect to will have to prevail and
appropriate directions will have to be issued 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 appropriate to quote hereinbelow.
“Just as Parliament is not expected to use unnecessary
expressions, Parliament is also not expected to express itself
unnecessarily. Even as Parliament does not use any word without
meaning something, Parliament does not legislate where no
legislation is called for. Parliament cannot be assumed 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 important, the context is no less important.”
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 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. To hold otherwise would be self
contradictory. The amendment to Section 4(3), as proposed, would,
therefore, be clarificatory and will not amount to 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
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 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 9th 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 8thof June, 2011. As a
policy of Zero tolerance against Corruption, the Bill seeks to
establish in the country, a more 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 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
-----------------------
[1] (2015) 8 SCC 1
[2] (2003) 8 SCC 250
[3] AIR 1987 SC 1454 : (1987) 3 SCC 279
[4] AIR 1979 SC 478 : (1979) 1 SCC 380
