Why the First Lokpal Took Office Only in 2019

Held on the amendment. The Court declined to interfere. The introduction of a Bill, its consideration by the Standing Committee, the report and the further steps and their timing are essential legislative functions which should not ordinarily be subjected to interference by the Court. The constitutional doctrine of separation of powers and the demarcation of the respective jurisdictions of the Executive, the Legislature and the Judiciary meant that the amendment exercise then under way must be allowed to be completed without intervention. Any other view would negate the basic constitutional principle that the Legislature is supreme in the sphere of law making, and reading down a statute to make it workable while an amendment of the law is pending would not be justified either.

Held on the Act as it stands. That was not the end of the matter. The further question was whether the Act as it exists, without the proposed amendment, is so unworkable that the Court should refuse enforcement notwithstanding that it had been brought into force by notification of 16 January 2014 under section 1(4). If the Act is otherwise workable and the amendment is aimed only at more efficient working of some of its provisions, the wholesome principle that a law duly enacted and enforced must be given effect to will have to prevail, and appropriate directions must be issued. The Court concluded, quoting Krishna Iyer J in the Special Courts Bill reference, by holding that the Act as it stands today is an eminently workable piece of legislation and that there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out.

Why it matters. It settles that the absence of a Leader of the Opposition does not disable the Selection Committee, because section 4(2) provides that a vacancy does not invalidate an appointment; and it states the more general principle that a Government may not decline to work an Act it has itself brought into force on the ground that it would prefer to amend it. It is also a careful statement of the limits of judicial intervention in the legislative process, and can be cited for both propositions.

What happened afterwards

The Amendment Act came in 2016, but it did not touch section 4. Act 37 of 2016 substituted section 44, the declaration of assets, and amended section 2(1)(k), and chapter 190 reads that. The section 4 amendments the Court was told were pending were not carried.

The Selection Committee met and constituted a Search Committee. Justice Pinaki Chandra Ghose was appointed the first Chairperson of the Lokpal and was sworn in on 23 March 2019, with eight Members appointed at the same time, four judicial and four non-judicial.

Five years and two months separate the commencement of the Act from the swearing in of the institution it created.

What the episode shows, and how to use it in an answer

On the Act. Section 4(2) was drafted for exactly this situation and was ignored for three years. A statute can contain its own answer to an objection and still be stalled by the objection, because a provision only works when somebody acts on it.

On the institution. The delay is the strongest single piece of evidence for the argument in chapter 320: an ombudsman depends on the goodwill of the executive it exists to check, and the appointment stage is where that dependence is sharpest. Compare the Central Vigilance Commission, which existed from 1964 and was working within a year of the Santhanam Committee's report, and the difference is that nobody in Government was reluctant to have it.

On judicial review. The Court's two holdings sit in tension and it is worth saying so. It would not direct Parliament on the amendment, and it did direct that the existing Act be worked. The line it drew is between the making of a law, which is the legislature's, and the enforcement of a law already made, which is the executive's duty and reviewable. That distinction is worth carrying into any question about the separation of powers.

On section 63. The Centre took five years over its own Lokpal. It is difficult for a Union that missed its own appointment by five years to press States that missed the section 63 deadline of 15 January 2015, and the practical uniformity of State compliance has been correspondingly patchy. Chapter 240 sets out where the States stand.

A worked example

A student is asked in an examination: "The Lokpal and Lokayuktas Act 2013 is a dead letter. Discuss."

Do not simply agree. Set out the sequence.

Step one, the facts. In force 16 January 2014. First Lokpal sworn in 23 March 2019. Five years and two months.

Step two, the reason offered. No recognised Leader of the Opposition in the Sixteenth Lok Sabha, and a pending amendment Bill.

Step three, the answer in the Act itself. Section 4(2): no appointment invalid merely by reason of any vacancy in the Selection Committee.

Step four, the authority. Common Cause v. Union of India (2017), (2017) 7 SCC 158: the Act as it stands is an eminently workable piece of legislation and there is no justification for keeping its enforcement under suspension pending amendment; but the Court will not interfere with the legislative process of amendment itself.

Step five, the assessment. The delay is evidence of institutional reluctance and not of a defect in the statute, because the statute anticipated the difficulty. The genuine structural criticisms lie elsewhere: no investigating force of its own, no jurisdiction over grievances, section 46 without a whistleblower statute beside it, and a body dependent on Government panels for its staff. Chapters 130, 330 and 200 supply those.

Quick revision

In force: 16 January 2014, by S.O. 119(E). First Lokpal sworn in: 23 March 2019, Justice Pinaki Chandra Ghose, with eight Members.

The obstacle asserted: no recognised Leader of the Opposition in the Sixteenth Lok Sabha, so section 4(1)(c) could not be satisfied; and a pending amendment Bill substituting the leader of the single largest opposition party.

The answer in the Act: section 4(2), a vacancy in the Selection Committee does not invalidate an appointment.

Common Cause v. Union of India (2017), (2017) 7 SCC 158: the Court would not interfere with the pending amendment, the making of a law being an essential legislative function; but the Act as it stands is an eminently workable piece of legislation and there is no justification to keep its enforcement under suspension pending amendment.

The section 4 amendments were never carried. Act 37 of 2016 substituted section 44 instead.

Test yourself

1. Why was no Lokpal appointed between 2014 and 2019? The Government's position was that the Selection Committee under section 4(1) could not be completed because the Sixteenth Lok Sabha had no recognised Leader of the Opposition, no opposition party having reached the one tenth of the total strength by which recognition is given, and that a Bill to amend section 4 so as to substitute the leader of the single largest opposition party was pending before Parliament.

2. State the two holdings in Common Cause v. Union of India (2017), (2017) 7 SCC 158. First, that the Court would not interfere with the pending exercise of amending the Act, because the introduction of a Bill, its consideration and the steps and timing thereafter are essential legislative functions and the doctrine of separation of powers requires that the legislature be supreme in the sphere of law making, so that reading the statute down while an amendment was pending would not be justified. Second, that the Act as it stands is an eminently workable piece of legislation and that there is no justification for keeping its enforcement under suspension until the proposed amendments are carried out, because a law duly enacted and brought into force must be given effect to.

3. Which provision of the Act answered the objection, and how? Section 4(2), which provides that no appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee. The absence of a Leader of the Opposition is a vacancy in the Committee, so the Committee could constitute the Search Committee, nominate the eminent jurist and recommend appointments notwithstanding it.

4. What line does the case draw on judicial intervention? Between the making of a law and the enforcement of one already made. The Court will not direct a legislature on whether or when to amend a statute, because that is an essential legislative function. It will require that a statute already enacted and brought into force be given effect to, because that is the executive's duty and is reviewable.

5. Is the delay evidence that the Act is defective? Answer with reasons. No. The Act anticipated the very difficulty asserted, in section 4(2), and the Supreme Court so held. The delay is evidence of institutional reluctance to work the Act rather than of a defect in its drafting. The genuine structural criticisms are elsewhere: the absence of an investigating force of its own, the exclusion of grievances, the coupling of closure with prosecution of the complainant under sections 20(3)(c) and 46 without a whistleblower statute in force, and dependence on Central Government panels for the Lokpal's own staff under section 10.