Regulators’ appointment: Presence of Leader of Opposition not a must, says Govt

The Government will take recourse to a residuary provision in the Lokpal Act to snuff out the argument that the presence of a Leader of Opposition in the Lok Sabha is mandatory in the appointment of statutory watchdogs such as the Central Vigilance Commissioner, the Central Information Commissioner and, of course, the Lok Pal.

A top source in the Government told Business Line that the absence of a Leader of Opposition in the collegium that appoints the Chairman and Members of the Lok Pal has no bearing in the appointment process. “The Act itself provides for the vacancy in the collegium. The absence, or vacancy, makes no difference to the appointment process,” said the source. The argument, he said, stretches to other similar statutes, like the CVC and the CIC.

Section 4 of the Lokpal and Lokayuktas Act, 2013, concerning appointment of the Chairman and Members of the Lokpal, envisages the process of selection of a national ombudsman in Clause 1.

“The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of (a) the Prime Minister; (b) the Speaker of the House of the People; (c) the Leader of Opposition in the House of the People; (d) the Chief Justice of India or a Judge of the Supreme Court nominated by him; and (e) one eminent jurist as recommended by the Chairperson and Members,” reads the relevant provision.

However, as the Government source pointed out, it is followed by Clause (2), which says “no appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee.”

Indeed, the Act does not merely mention the “absence” of a member of the collegium. The word used is “vacancy” and the Government has come to interpret it literally. In other words, there will be no countervailing opinion and the Government will have a free run in the appointment of CVC, CIC, members of the Lok Pal as well as the Director of the Central Bureau of Investigation.

The CBI was sought to be given autonomous status last year, when its Director was appointed by a collegium similar to the Lokpal. Additionally, the CVC monitors all vigilance activities in the Central government.

The statutes have been created to fight corruption in public life and ensure accountability on the part of public officials, including the Prime Minister. The presence of the Leader of Opposition in all these panels has been deemed necessary to ensure autonomy and independent functioning of these watchdogs.

Indeed, it was Sushma Swaraj, in her authority as Leader of Opposition, who had in 2011 pointed discrepancies in the appointment of PJ Thomas as Central Vigilance Commissioner. Her opinion was upheld by the Supreme Court, which later struck down Thomas’s appointment.

According to Senior Counsel Rajeev Dhawan, the Government’s argument is “specious”.

“The existence of these statutes is to ensure a degree of credibility and faith in the watchdogs for the people. After Anna Hazare’s anti-corruption movement and months of debate on the Lokpal, the Government can’t now go back and say it will have the sole authority to appoint the Lokpal,” Dhawan said.

“The statute envisages a selection committee. You can’t not appoint a member to this committee and then take recourse in a provision to assert that there is a vacancy. I would consider it mala fide ,” Dhawan told Business Line .

COMMENT NOW