The Lokpal and Lokayuktas Act, 2013 was enacted 46 years after the idea was first mooted. Institution building is a challenging job. The best in terms of credibility, competence and fairness should be picked up for the appointment of four judicial members and four non-judicial members of Lokpal. It is regrettable that the outgoing UPA government is in a terrible hurry to make appointment on the eve of elections. For this purpose, it is cutting short procedures in order to ensure that an appointment is made. In the process, both legislative provisions and propriety are being violated. Let me elaborate in detail the violations which are taking place.
1. Violation of Section 4 (4) of the Act:
Section 4 (4) of the Act provides that “the Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and members of the Lokpal”. The Selection Committee has met only once that is on February 21, 2014. In the said meeting, I understand that members of the Search Committee were appointed. Instead of the procedure for selection being laid down by the Selection Committee, the Department of Personnel Training (DoPT), had taken out an advertisement on January 17, 2014 i.e. on a day that the Selection Committee had not been constituted, inviting applications for appointment as judicial and non-judicial members of the Lokpal. I had written to the Prime Minister on January 20 and January 30, 2014 in this regard. Though I had received two replies from the Prime Minister, they did not address my principal concerns. Even though the DoPT has no role under the Act, it has framed rules to assign itself a role. Under the Act, that role belongs to the Selection Committee and Screening Committee. In the present case, neither of the two have any role in issuing the advertisement or inviting applications or short listing the applicants. This entire functioning has been usurped by the DoPT.
2. Expecting eligible people to apply for the post:
In my letter to the Prime Minister on January 20, 2014 I had written that “the very idea of retiring or sitting judges of the highest court having to move applications for a post-retirement assignment is repugnant to the dignity of the office that they have held. Retired judges who lobby with the establishment with their CVs compromise their self-respect and dignity. A job-seeking judge may not be the best person to be appointed as a member of the Lokpal. In any case, whether applications are to be invited or not has to be decided by the Selection Committee”. The Government went ahead and invited applications by February 7, 2014. I know, for fact, several sitting judges have refused to apply because they felt it compromised their dignity and self-respect. However, some others have forwarded their applications to their Chief Justices for being forwarded for consideration. The advertisement expects sitting judges in Paragraph 15 to send a detailed statement giving the CV including work experience and other achievements. In Paragraph 16 it expects judges to give a detailed justification as to how the applicant fulfills the conditions for the post applied for. This justification has to be written within 200 words. Who decided this procedure? It is certainly not the Selection Committee or the Search Committee but the Minister in charge of DoPT. He has no role under this Act. However, the DoPT has usurped a role to itself.
3. Search Committee work discretion reduced by DoPT:
The rules framed are ultra vires the Act. Rule 10 of the Rules states that the Search Committee shall prepare a panel of names to be considered by the Selection Committee only from amongst the list of persons provided by the DoPT, Govt of India. The short list from amongst the applicants is being prepared only by the DoPT. The discretion of the Search Committee is being further reduced. It will only be involved in the clerical exercise of selecting the name from the shortlist prepared by the DoPT.
The media informs us, that one of the eminent members of the Search Committee, Shri Fali S. Nariman has declined to accept the honour of being on the Search Committee. Obviously, men of stature will not agree to become rubber stamps. The Government had decided to pack the Search Committee with its supporters. Amongst the names suggested for the Search Committee included the names of government lawyers. Thus only government lawyers from the legal fraternity and a de facto Congress spokesman from amongst the media were proposed on the Search Committee. Smt. Sushma Swaraj did not agree to these names. The Government should realize that an institution does not belong to one political party. The more fair and credible institutions we create, the better it will be for the system. Marginalizing the Search Committee or deciding to pack the Lokpal with ‘friendly names’ is not necessarily in the interest of the institution. The UPA has done enough damage to the CBI, CAG, PAC, JPC and the CVC. I hope, the Lokpal survives this assault.