How not to select the Lokpal

The Lokpal & Lokayuktas Act, 2013 finally came into effect on January 16, 2014. More than forty four years had elapsed since the first Lokpal Bill was passed by the 4th Lok Sabha and allowed to lapse, as the Rajya Sabha could not pass it before the dissolution of the former. The subsequent versions of the Bill could not progress even this far because the piloting governments demonstrated a lack of commitment to the concept of an overarching, independent integrity institution.

Had it not been for an unprecedented mass mobilization under the banner of India Against corruption, the 9th and 10th versions of the Lokpal Bill would not have been formulated by the UPA II Government in quick succession. It was only on account of an unrelenting public pressure that the Lokpal Bill was passed by the 15th Lok Sabha in December 2011 after a great deal of drama and eventually adopted with certain amendments by the Rajya Sabha two years later. The enactment, though deficient in several vital aspects, constituted a significant advance in the campaign against corruption.

Soon after the promulgation of the long-awaited Lokpal Act, the process of initial constitution of the Lokpal became mired in controversy, which could have been avoided if the Union Government had gone about the business of framing the rules to give effect to the Act with sincerity and honesty of purpose.

The Search Committee (Constitution, Terms and Conditions of Appointment of Members and the Manner of Selection of Panel of Names for Appointment of Chairperson and Members of Lokpal) Rules, 2014 notified on January 17, 2014 seek to undermine the independence of the institution by restricting the field of selection to the hand-picked nominees of the Government and giving undue advantage to senior bureaucrats, most of whom are likely to be members of the IAS, in appointment as non judicial members of Lokpal.

Such a blatant abuse of the device of delegated legislation had to be challenged. Common Cause, which has fought for the establishment of an independent and effective Lokpal since 1995, could not have allowed this crucial integrity institution to be crippled before its birth. Hence, a PIL for quashing the aforesaid Rules was filed in the Supreme Court on March 5, 2014. The Apex Court issued notice to the Union of India and listed the matter for hearing for May 5, 2014.

Meanwhile, driven by the urge to avoid future accountability for the serial scams that have defined its tenure, the lame duck UPA II government decided to kick start the process of nominating its hand-picked persons to the Lokpal. To this end, the Prime Minister decided to call a meeting of the Selection Committee during April 24-28, even though the Search Committee, which was to submit its recommendations to the Selection Committee, had not properly been constituted and the vires of the rules for selection of the chairperson and members of the Lokpal were under challenge. Hence, we moved an application for interim directions to foil the nefarious designs of the outgoing government on April 17. Our initiative put paid to the government plans to pack the Lokpal with its nominees. At the hearing on April 24, the Solicitor General assured the Court that the government would not take any immediate decision on the appointment of chairperson and members of the Lokpal. When the matter was taken up for hearing on May 5, the Court, having regard to the objections raised by the petitioner, particularly with respect to the impugned Rules, took on record the undertaking of the Solicitor General that the Government would re-examine the issue and make formal amendments in the Rules before proceeding further in the matter.

Let us hope that the new government will redraft the rules of selection in a transparent manner in accordance with the object and spirit of the law and thereafter appoint persons of impeccable credentials to the nascent institution of Lokpal, so that it may effectively discharge its role as the watchdog of probity in public life.

Our writ petition and application for interim directions as well as the order of the Court are extracted below.

-Editor

IN THE SUPREME COURT OF INDIA

(CIVIL WRIT JURISDICTION)

WRIT PETITION (CIVIL) No. 245 OF 2014

IN THE MATTER OF:

Common Cause: A registered society

Through its Director

Shri Kamal Kant Jaswal

5, Institutional Area

Nelson Mandela Marg,

Vasant Kunj, New Delhi-110 070 ...Petitioner

Versus

Union of India

Through its Secretary,

Ministry of Personnel, Public Grievance & Pensions,

Department of Personnel and Training,

North Block,

New Delhi-110 001 ... Respondent

WRIT PETITION IN PUBLIC INTEREST UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

To,

THE HON'BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON'BLE SUPREME COURT OF INDIA.

1. That the Petitioner is filing the present writ petition in public interest under Article 32 of the Constitution to question the entire selection process of Chairperson and Members of the Lokpal, which process has been initiated under "the Search Committee (Constitution, Terms and Conditions of appointment of members and the manner of selection of Panel of names for appointment of Chairperson and Members of Lokpal) Rules, 2014" framed under "the Lokpal and Lokayuktas Act, 2014". The entire selection process is vitiated mainly on the following grounds:

(i) Rule 10 (1) of the said Rules, in so far as it provides that the Search Committee shall prepare a panel of persons to be considered by the Selection Committee for appointment of Chairperson and Members of the Lokpal, from amongst the list of persons provided by the Central Government, directly runs counter to the very object of having an independent Lokpal and the provisions of the said Act;

(ii) Rule 10 (4) (i), where it provides that non-judicial members of Lokpal, apart from having special knowledge and expertise of not less than twenty-five years in matters relating to anti-corruption policy, public administration, vigilance or law, must have held or must be

holding the post of Secretary to the Government of India or any equivalent post thereto under the Central Government or a State Government, travels beyond the scope and ambit of the Lokpal Act since Section 3 (3) (b) of the said Act, while selecting Non-judicial members of the Lokpal from persons having special knowledge and expertise of anti-corruption policy, public administration, vigilance or law, does not limit the field of selection to retired and serving Secretaries to the Government of India and holders of equivalent posts in the state governments, most whom belong to the Indian Administrative Service;

(iii) The said Rules framed vide notification dated 17th January, 2014 are illegal since the mandatory provision of Section 61 of the said Act requiring any Rule or Regulation framed under the said Act to be laid before each House of Parliament for a total period of thirty days has not been complied with; and

(iv) At least four sitting judges of this Hon'ble Court are reported to have expressed their willingness for being considered for the post of judicial members of the Lokpal. Their candidature, even though permitted under clause (3) of Section 3 of the Act, will seriously compromise the independence of judiciary which is a part of the basic feature of our Constitution, since the Government, which is the biggest litigant before this Hon'ble Court, will be processing and considering the names of the judges of this Hon'ble Court for appointment as judicial members of the Lokpal.

(v) A practicing Senior Advocate has been appointed as one of the members of the Selection Committee as jurist under Section 4 (1) (e) of the Act. This will lead to a serious conflict of interest since he appears as an advocate before this Hon'ble Court, and is likely to appear before those judges who are reported to be applying for the said posts.

Hence, the Petitioner is filing the present writ petition seeking declaration that the aforementioned provisions of the said Rules are ultra viresthe said Lokpal Act and also seeking the annulment of the entire selection process of the Lokpal initiated under the said Rules since it is illegal, arbitrary and violative of Article 14 of the Constitution.

The Petitioner is a registered society bearing registration no. S/11017.

Since the issue involved in the present writ petition is of urgent nature and the very Rules framed by the Government are being challenged, the Petitioner has not directly approached any authority before filing of the present writ petition. The documents relied upon in the present writ petition, being newspaper reports and the Act and the Rules framed under the said Act, are already in the public domain.

Introduction of the Petitioner

2. The Petitioner Society was founded in 1980 by Late Shri H. D. Shourie as a public interest organization dedicated to articulation of the common problems of the people. The Petitioner Society has been in the forefront of the campaign for governance reforms and probity in public life and has filed several public interest petitions before this Hon'ble Court as well as the Hon'ble Delhi High Court. It has been campaigning for the establishment of a credible institutional framework for combating corruption in public life. In 1995, the Petitioner Society filed a public interest petition, WP (C) 26 of 1995, in this Hon'ble Court, seeking the establishment of an independent Lokpal at the central level and the reinforcement of the institution of Lokayukta at the state level. Although the PIL has yet to be decided, it has had significant outcomes, commencing with the unprecedented imposition of a penalty of Rs. 50 lakh on the former

Petroleum Minister, Capt. Satish Sharma, for the abuse of his discretionary powers. In August 2008, at the instance of the Bench, the Petitioner Society filed an additional affidavit, delineating the essential features of the institutions of Lokpal and Lokayukta. Two years later, this blueprint formed the starting point of the Jan Lokpal Bill, which served as the rallying point for India's biggest popular mobilization for combating corruption.

Facts of the case:

3. After a protracted struggle and a long wait for a credible, independent institution to deal with high level corruption, the Lokpal and Lokayuktas Act, 2013 (1 of 2014) (herein after referred as The Act) was passed by the Parliament on 18th December, 2013.The provisions of the said Act have come into force by virtue of the Central Government Gazette Notification S.O. 119 (E) dt 16th January 2014.

4. As per Section 3 (3) of the Act,

" a person shall be eligible to be appointed

(a) as a Judicial Member if he is or has been a Judge of the Supreme Court or is or has been a Chief Justice of a High Court;

(b) as a Member other than a Judicial Member, if he is a person of impeccable integrity and outstanding ability having special knowledge and expertise of not less than twenty-five years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management."

Further, Section 4 of the Act provides for the selection process of the Lokpal.

"4. (1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of

(a) the Prime MinisterChairperson;

(b) the Speaker of the House of the PeopleMember;

(c) the Leader of Opposition in the House of the PeopleMember;

(d) the Chief Justice of India or a Judge of the Supreme Court nominated by himMember;

(e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses (a) to (d) above, to be nominated by the PresidentMember.

..............................................................................................

(3) The Selection Committee shall for the purposes of selecting the Chairperson and Members of the Lokpal and for preparing a panel of persons to be considered for appointment as such, constitute a Search Committee consisting of at least seven persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management or in any other matter which, in the opinion of the Selection Committee, may be useful in making the selection of the Chairperson and Members of the Lokpal:

Provided that not less than fifty per cent.of the members of the Search Committee shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women: Provided further that the Selection Committee may also consider any person other than the persons recommended by the Search Committee."

Pursuant to the above, the Respondent, i.e. the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training vide its notification dated 17th January 2014 invited applications for filling up one post of Chairperson and eight posts of Members in the Lokpal. The above mentioned notification of 17th January 2014 seeking applications clearly stated the eligibility conditions as prescribed in the Act.

5. Meanwhile, on 17th January itself, in exercise of the powers conferred by sub-section (1) read with clause (b) of sub-section (2) of section 59 of the Lokpal and Lokayuktas Act, 2013 (1 of 2014), the Government issued a notification No. G.S.R. 31(E), called the Search Committee (Constitution, Terms and Conditions of Appointment of Members and the Manner of Selection of Panel of Names for Appointment of Chairperson and Members of Lokpal) Rules, 2014 (hereinafter referred as The Rules).

6. Rule 10 of the said rules prescribe the manner for preparation of panel of names by the Search Committee. As per sub rule (1) of Rule 10, the Search Committee shall prepare a panel of persons to be considered by the Selection Committee for appointment as the Chairperson and Members of the Lokpal, from amongst the list of persons provided by the Central Government in the Department of Personnel and Training.

It is submitted that the aforesaid Rule has not only curtailed the zone of consideration of the candidates since Section 4(3) of the Act does not put any such restrictions but has also defeated the very object of creating an independent institution like the Lokpal.

7. As per Rule 10(4) of the said rules,

" In case of persons falling under clause (b) of sub-section (3) of section 3 of the Act, such persons having special knowledge and expertise of not less than twenty-five years in matters relating to,

(i) anti-corruption policy, public administration, vigilance or law and such persons must have held or must be holding the post of Secretary to the Government of India or any equivalent post thereto under the Central Government or a State Government;

(ii) finance including insurance and banking, and management and such persons must have held or must be holding the position of Chairman, Managing Director or Chief Executive Officer of a Public Sector Undertaking or of a relevant private institution of comparable status, and

who have attained outstanding achievements or acquired eminence in the fields aforesaid:………"

The above mentioned provisions further restrict the zone of consideration only to such persons who are holding, or have held, the post of Secretary to the Government of India. Further, it travels beyond the scope and ambit of the Lokpal Act since Section 3 (3) (b) of the said Act, while selecting Non-judicial members of the Lokpal from persons having special knowledge and expertise of anti-corruption policy, public administration, vigilance or law, does not limit the field of selection to retired and serving Secretaries to the Government of India and holders of equivalent posts in the state governments, most whom belong to the Indian Administrative Service. Hence, this provision is discriminatory qua individuals from other services and backgrounds.

8. On 12.02.2014, it was reported in the Economic Times that apparently at least four sitting judges of this Hon'ble Court have expressed their willingness for being considered for the posts of the judicial members of the Lokpal.

9. Further, as per section 61 of the Act,

"every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation."

Both the houses of Parliament were in session from 5th of February to 21st of February 2014. As per the bulletin issued by Lok Sabha, the rules were tabled on 12th February 2014. As per the bulletin issued by Rajya Sabha, the rules were tabled on 13th February 2014. It is apparent that the said Rules were laid before each House of Parliament for less than 30 days, since both the houses were adjourned sine die after 21st February.

On 12th February, 2014, Mr. P. P. Rao was appointed as one of the members of the Selection Committee under Section 4 (1) (e) of the Act as a jurist.

10. Subsequently, on 20.02.2014, the Lokpal Selection Committee constituted a Search Committee headed by Justice K T Thomas and comprising eight members from the fields and the categories of persons specified in sub-section (3) of section 4 of the Act, namely, eminent jurist and senior advocate FaliS Nariman; the former Chief Election Commissioner, S. Y. Quraishi; the Principal of Lady Shri Ram College, Delhi, MeenakshiGopinath; educationist MrinalMiri; the former Chief Secretary of Andhra Pradesh, Kaki Madhava Rao; and senior journalist and Rajya Sabha Member, H.K. Dua.

11. On 25th February, 2014, Mr. FaliNariman refused to accept the offer of being appointed as one of the members of the Search Committee since, considering the selection process adopted by the government, he feared that "the most competent, the most independent and most courageous will get overlooked."

12. On 3rd March, 2014, Justice K. T. Thomas also declined to accept the offer of the Chairperson of the Search Committee on thesame ground as Mr. FaliNariman. Justice Thomas in his letter to the Government as published in the media categorically states;

"When I went through the Rules I have come to realize that the work of the Search Committee is to pick out names of persons from the list provided by the Central Government (Department of Personnel and Training). The Search Committee cannot make any independent search to find out the most deserving persons to be included in the panel. Once the Search Committee gives the panel it is for the Selection Committee to select the persons for appointment as members of the Lokpal. In doing so the Selection Committee is not bound to take any one from the panel prepared by the Search Committee as could be discerned from the second proviso to Section 4(3) of the Act.

I wonder why there should be a Search Committee at all, much less, the arduous work to be undertaken by the members of such a Committee when the Selection Committee itself can decide on who should be the members of Lokpal."

13. Therefore, the Petitioner is filing the present writ petition seeking declaration that the aforementioned provisions of the said Rules are ultra vires the said Lokpal Act and also seeking the annulment of the entire selection process of the Lokpal initiated under the said Rules. The Petitioner has not filed any other writ petition for the same relief before any other court of this country.

That the present writ petition is being filed on the following grounds amongst others:

GROUNDS

A. Because Rule 10 (1) of the aforesaid Rules, in so far as it provides that the Search Committee shall prepare a panel of persons to be considered by the Selection Committee for appointment of Chairperson and Members of the Lokpal, from amongst the list of persons provided by the Central Government, directly runs counter to the very object of having an independent Lokpal and the provisions of the said Act. This will defeat the very purpose of having the Lokpal since the Search Committee cannot make an independent search to find out the most deserving persons to be included in the panel. The members of the Lokpal so selected cannot be independent from the Government since the Search Committee is bound to choose from the list provided by the Central Government. This provision is arbitrary and violative of Article 14 of the Constitution.

B. Because this Hon'ble Court in a catena of judgments like General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav (1988) 2 SCC 351, ADM (Rev.) Delhi Administration vs. Shri Ram (2000) 5 SCC 451, Sukhdev Singh vs. Bhagat Ram (1975) 1 SCC 421, State of Karnataka vs. H. Ganesh Kamath (1983) 2 SCC 402etc. has held that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. The Rule making authority cannot use the power beyond the scope intended by the legislature. In the present case, Rule 10 (4) (i), in so far as it provides that non-judicial members of Lokpal, must have held or must be holding the post of Secretary to the Government of India or any equivalent post thereto under the Central Government or a State Government, travels beyond the scope and ambit of the Lokpal Act since Section 3 (3) (b) of the said Act, while selecting Non-judicial members of the Lokpal from persons having special knowledge and expertise of anti-corruption policy, public administration, vigilance or law, does not conceive of eligible filed of selection limited to a certain category of bureaucrats which is dominated by the IAS. The insertion of the aforesaid clause is also arbitrary and discriminatory qua persons from other services or fields without any reasonable basis or classification and hence, it violates Article 14 of the Constitution.

C. Because this Hon'ble Court in the case of CPIL vs. UOI, (2011) 4 SCC 1 while dealing with the appointment of the Central Vigilance Commissioner adversely commented upon the act of the government in limiting the zone of consideration only to the Civil Servants even though the parent Act does not prescribe so and therefore, held that in future the zone of consideration shall not be limited to only civil servants. To quote from the judgment;

"87. The 2003 Act came into force on and from 11-9-2003. In the present case we find non-compliance with some of the provisions of the 2003 Act. Under Section 3(3), the Central Vigilance Commissioner and the Vigilance Commissioners are to be appointed from amongst persons: (a) who have been or who are in all-India services or in any civil service of the Union or in a civil post under the Union having requisite knowledge and experience as indicated in Section 3(3)(a); or

(b) who have held office or are holding office in a corporation established by or under any Central Act or a Central Government company and persons who have experience in finance including insurance and banking, law, vigilance and investigations.

88. No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service. We therefore direct that:…………..

(ii) In future the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It shall not be restricted to civil servants.…."

D. Because the aforesaid Rules suffer from illegality since the mandatory provision of Section 61 of the Act requiring any Rule or Regulation framed under the said Act to be laid before each House of Parliament for a total period of thirty days has not been complied with. In the present case, the said rules were laid in Lok Sabha and Rajya Sabha on 12.02.2014 and 13.02.2014 respectively, and Parliament was adjourned sine die on 21.02.2014.

E. Because non-compliance of the mandatory provision of Section 61 of the Act clearly shows that the rules have been framed in a hurry; that the process of selection has been rushed through and that no opportunity was provided to Parliament to scrutinize the correctness of the rules. This clearly indicates a mala fide intent on the part of the Government to subvert the process of law and select pliable and un-deserving persons for the crucial institution of Lokpal. Strangely, there has been little political resistance on such an important matter, though the leader of the Opposition is part of the Selection Committee which chooses the members of the Search Committee, and the rules were available to all the Members of Parliament from 12th/13th February when the same were tabled in the respective houses.

F. Becauseat least four sitting judges of this Hon'ble Court are reported to have expressed their willingness for being considered for the post of judicial members of the Lokpal. Theircandidature, even though permitted under clause (3) of Section 3 of the Lokpal and Lokayuktas Act of 2013, will seriously compromise the independence of judiciary which is a part of the basic feature of our Constitution since the Government, which is the biggest litigant before this Hon'ble Court, will be processing and considering the names of the judges of this Hon'ble Court for appointment as judicial members of the Lokpal.

G. Because a practicing Senior Advocate has been appointed as one of the members of the Selection Committee as a jurist under Section 4 (1) (e) of the Act. This will lead to a serious conflict of interest, since he appears as an advocate before this Hon'ble Court and is likely to appear before the sitting judges who are reported to be applying for the posts in the Lokpal. Considering the fact that at least four sitting judges of this Hon'ble Court have apparently expressed their willingness for being considered for the post of the Chairperson or judicial members of the Lokpal, the appointment of a practising Senior Advocate as one of the members of the Selection Committee as jurist under Section 4 (1) (e) of the Act vitiates the entire selection process since it suffers from a serious conflict of interest.

In view of the aforementioned facts and circumstances, this Hon'ble Court may be pleased to:

PRAYERS

a) Declare the provisions of Rule 10 (1) and (4) (i) of the Search Committee (Constitution, Terms and Conditions of appointment of members and the manner of selection of Panel of names for appointment of Chairperson and Members of Lokpal) Rules, 2014 ultra vires the Lokpal and Lokayuktas Act, 2014;

b) Declare the Search Committee (Constitution, Terms and Conditions of appointment of Members and the Manner of Selection of Panel of Names for appointment of Chairperson and Members of Lokpal) Rules, 2014 illegal;

c) Issue a writ of certiorari or any other writ or direction of similar nature to quash the entire selection process for appointment of Chairperson and Members of the Lokpal initiated under the aforesaid Rules framed under the Lokpal and Lokayuktas Act, 2014; and

d) Pass any other order or direction as this Hon'ble Court may deem fit and proper.

PETITIONER

THROUGH COUNSEL FOR THE PETITIONER

PRASHANTBHUSHAN

DRAWN BY: ROHIT KUMAR SINGH

I.A. No. 2 of 2014 in CW (P) No. 245 of 2014

APPLICATION FOR DIRECTION ON BEHALF OF THE PETITIONER

1. The Petitioner is moving the present application in order to seek urgent interim directions from this Hon'ble Court in view of the latest communication by the Prime Minister vide letter dated 11.04.2014 to all the members of the Selection Committee to indicate their availability between the 24th and the 28th April, 2014 so that a meeting of the Selection Committee could be held to appoint the Chairperson and Members of the Lokpal.

2. The present writ petition was filed questioning the selection process of Chairperson and Members of the Lokpal initiated under "the Search Committee (Constitution, Terms and Conditions of appointment of members and the manner of selection of Panel of names for appointment of Chairperson and Members of Lokpal) Rules, 2014". One of the main grounds of the challenge to the selection process was the fact that certain provisions of the said Rules are ultra vires the parent Act and also illegal, arbitrary and violative of Article 14 of the Constitution. The impugned provisions of the Rules and the grounds of challenge are recapitulated below.

(vi) Rule 10 (1) of the said Rules, in so far as it provides that the Search Committee shall prepare a panel of persons to be considered by the Selection Committee for appointment of Chairperson and Members of the Lokpal from amongst the list of persons provided by the Central Government directly runs counter to the very object of having an independent Lokpal and the provisions of the said Act; and

(vii) Rule 10 (4) (i), in so far as it provides that non-judicial members of Lokpal, apart from having special knowledge and expertise of not less than twenty-five years in matters relating to anti-corruption policy, public administration, vigilance or law, must have held or must be holding the post of Secretary to the Government of India or any equivalent post thereto under the Central Government or a State Government, travels beyond the scope and ambit of the Lokpal Act, since Section 3 (3) (b) of the said Act, while selecting Non-judicial members of the Lokpal from

persons having special knowledge and expertise of anti-corruption policy, public administration, vigilance or law, does not limit the field of selection to retired and serving Secretaries to the Government of India and holders of equivalent posts in the state governments, most of whom belong to the Indian Administrative Service.

3. Further, it is because of these illegal and arbitrary provisions of the said Rules that Hon'ble Justice K. T. Thomas, who was offered the post of the Chairperson of the Search Committee, and Mr. Fali Nariman, who was selected as one of its members, declined to accept their respective offers and that no one has so far been appointed in their places. The Search Committee is still headless.

4. The present writ petition came up for hearing for the first time before this Hon'ble Court on 31.03.2014 when notice was issued with a returnable date on 05.05.2014. It is submitted that during the said hearing a pointed question was put by this Hon'ble Court to the Learned Solicitor General, who appeared for the Union of India, as to whether any step was at all being taken by the Central Government towards the selection of the Lokpal and its members. In response to the said query, the Learned Solicitor General made a categorical statement in the open court that the Government was not doing anything in so far as the selection of Lokpal and its members was concerned. In view of this categorical statement by the Learned Solicitor General, this Hon'ble Court did not pass any interim order, but was pleased to make an oral observation that if the petitioner were to come across any such development, it would be at liberty to approach this Hon'ble Court for interim directions.

5. It is submitted that despite the fact that the Rules under which the Chairperson and Members of Lokpal are to be appointed are under challenge in the present writ petition and that this Hon'ble Court has already issued notice and fixed the 05.05.2014 as the next date of hearing, the Government is pushing ahead with the process of appointment of the Chairperson and Members of the Lokpal. The petitioner has come to know that on the 11.04.2014, the Hon'ble Prime Minister addressed a letter to all the members of the Selection Committee containing the following statement.

"As you know, the Lokpal and Lokayuktas Act, 2013 is a very important piece of legislation that has come into force with effect from 16 January, 2014. I hope you would agree with me on the need to appoint the Chairperson and Members of Lokpal as early as possible so that the institution can begin functioning. For moving forward with the selection process for appointment to these positions, it is essential that a meeting of the Selection Committee is convened early. I would, therefore, request you to indicate dates between 24 and 28 April, 2014 when you will be available for a meeting of the Selection Committee."

6. It is submitted that the latest move by the Government to proceed with the appointment of the Chairperson and members of the Lokpal, even while this Hon'ble Court is seized of the issue of the validity of the Rules framed under the Lokpal Act, is not only highly improper but also illegal and arbitrary. The Government is going ahead with the selection process in spite of serious flaws in the rules of selection, which are under challenge. Justice K. T. Thomas and Mr. Fali Nariman, who were offered the post of the Chairman and member of the Search Committee, respectively, have already declined to accept the offers on these very grounds. The unseemly haste with which the process of selection is being rushed through by the Central Government, which is on its last legs as the Lok Sabha Election is underway, clearly indicates a mala fide intent on the part of the Government to subvert the process of law and appoint pliable and undeserving persons to the crucial institution of the Lokpal.

PRAYERS

In view of the aforementioned facts and circumstances, this Hon'ble Court may, during the pendency of the present writ petition, be pleased to:

a) direct Respondent No. 1 to put the entire selection process for appointment of Chairperson and Members of the Lokpal, initiated under the aforesaid Rules framed under the Lokpal and Lokayuktas Act, 2014, in abeyance; and

b) Pass any other order or direction as this Hon'ble Court may deem fit and proper.

PETITIONER

THROUGH COUNSEL FOR THE PETITIONER

PRASHANT BHUSHAN

ORDER OF THE SUPREME COURT OF MAY 5, 2014

RECORD OF PROCEEDINGS

(With appln(s) for stay and directions)

Date: 05/05/2014 This Petition was called on for hearing today.

UPON hearing counsel the Court made the following

O R D E R

Having regard to the objections raised by the petitioner, particularly with regard to Rules 10(1) and 10(4)(i) of the Search Committee (Constitution, Terms and Conditions of appointment of members and the manner of selection of Panel of Names for appointment of Chairperson and Members of Lokpal) Rules, 2014 (for short, `Rules'), Mr. Mohan Parasaran, learned Solicitor General, submits that the Government will re-examine the issue and make formal amendments in the Rules and only thereafter proceed further in the matter.

Let the matter be listed on July 4, 2014.

(Rajesh Dham) (Renu Diwan)

Court Master Court Master