Given it is almost three years since the Lokpal and Lokayuktas Act was passed, it is not surprising the SC has pulled up the government for not appointing a Lokpal—its argument that appointing a Lokpal requires there to be a Leader of Opposition Party (LoP) is a thin one. For one, the government has amended other procedures—such as the one to appoint the CBI and CVC chiefs—that also require the LoP to be part of the selection committee; in each case, the requirement has been replaced with the leader-of-the-largest-opposition- party. And since the government had in any case moved an amendment to the Lokpal Act to do the same, it could have ensured early passage in Parliament if it was serious. Also, sub-section 2 of Section 4 of the Act says “no appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee”.
Given how the Lokpal seeks to create a parallel mechanism of oversight, it is more likely the government is uncomfortable with it. When the Lokpal was originally being pushed by activists like Anna Hazare, some of the powers proposed were truly draconian. For instance, the Lokpal could, after investigation, “order cancellation or modification of a licence or lease or permission or contract or agreement, which is the subject matter of investigation”—while that may have looked desirable, this ran parallel to the court-led judicial system. Much of this was sorted out when passions cooled and these powers were removed, but the Act still has big flaws. For one, both the central government and the Lokpal having jurisdiction over employees is a serious problem—more so at a time when, in order to ensure genuine decision-making does not suffer, the government is planning to amend the Prevention of Corruption Act. Critics will argue the Lokpal is desirable as it ensures CBI is out of the control of the government, but the issue is more complex. The CBI comes under the CVC which is an autonomous body like the EC and the CAG—if CBI cannot function under an autonomous body, what is the guarantee it will under a Lokpal—the myth of the Lokpal/Lokayuktas functioning has, in any case, been dented with seven people in the Kartataka Lokayukta accused of corruption/extortion and the Karnataka High Court, on Wednesday, refusing to quash criminal proceedings against the former Lokayukta. But unless the government repeals the Lokpal Act—difficult in these surcharged times—it simply has no choice but to appoint a Lokpal, and hope for the best.