The amendments to the Lokpal and Lokayuktas Act, 2013, which have been languishing in Parliament for the last three years look to have been cleared with the Supreme Court on 27 April clearing the way for setting up the apex anti-corruption investigation and prosecution agency at the Centre.

However, legal experts and civil society activists have reservations about the apex court’s interpretation.

The LL Act was both enacted and enforced in January 2014 towards the fag end of the UPA regime. However, the Selection Committee for recommending candidates to the President for appointment to the Lokpal could not be constituted because an eminent jurist, the fifth member of this committee, could not be found.

Responding to multiple public interest litigations demanding the setting up of Lokpal immediately, the Supreme Court has suggested the way forward for the government to establish it. According to the Apex court’s reasoning and directions, “Tthe Selection Committee with the Prime Minister as the Chair and two members, namely, the Speaker, Lok Sabha and the Chief Justice of India or any Judge of the Apex Court that he may nominate, can go ahead with the selection process.”

Activists, however, believe that this well-intentioned interpretation is contradictory to the intention of LL act.
Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI) said, “With the deepest respect to the wisdom of the Hon'ble Supreme Court, this well-intentioned interpretation creates serious problems and paves the way for establishing a precedent that is completely contradictory to the intention of the LL Act and the aspirations of the people who struggled for a strong anti-corruption law.”

Explaining the legal nitty gritty involved in the selection of Lokpal, Nayak said, “The Selection Committee cannot simply come into existence out of thin air with the enactment and enforcement of the LL Act. The government must issue a formal gazette notification stating that a Selection Committee comprising the chairperson and members, as provided for in Section 4 of the LL Act is set up. Unless such a notification is issued, the Selection Committee, whether whole or truncated, cannot be constituted, that is, it cannot be populated with the requisite members.”

Nayak added that despite its best intention, the Supreme Court has ended up giving exactly what the government wants ~ a dominating position throughout the selection process ~ from the search committee to the selection committee of the Lokpal.