Arun Jaitley, Leader of Opposition (Rajya Sabha) : The Lokpal and the Lokayukta Act was finally passed in 2013. It received Presidential assent in early January 2014 and has since been notified. The Department of Personnel and Training has issued a detailed advertisement inviting applications for filling up of the post of Chairman and Members of the Lokpal. The proforma application form as also the rules and eligibility conditions have been displayed along with the advertisement.
Who has initiated this process? From the advertisement it is clear that it is the Department of Personnel and Training which has initiated this entire process and invited the applications for the posts. On a reading of the Act as passed by both Houses of the Parliament the said department has no authority to call for such applications.
Section 4 of the Act deals with the appointment of the Members of the Lokpal. There is a Selection Committee comprising of the Prime Minister, the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Chief Justice of India or a Judge nominated by him and one eminent Jurist to be appointed by the other four members. Admittedly, till date the four members of the Selection Committee have not met. In the first instance these four members will have to meet and consider the names for appointment of the fifth member. Once all the five members are in place this Selection Committee shall, for the purposes of preparing a panel of the Members of the Lokpal constitute a Search Committee. The Search Committee shall comprise of at least 7 persons who are drawn from different disciplines. This Search Committee will search appropriate names for appointment as the Chairperson and Members of the Lokpal.
Section 4(4) states that the Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and Members of the Lokpal. From amongst the persons recommended by the Search Committee, the Selection Committee will recommend persons for appointment. It is entitled to consider even the persons not recommended by the Search Committee. Of the eight persons to be appointed at least four have to be persons with a judicial background. The Chairperson would ordinarily be a person who is or has been the Chief Justice of India or a Judge of the Supreme Court.
As of today, the Selection Committee has not been constituted. Obviously, there is no Search Committee. The Selection Committee has not even formulated the procedure under which it will appoint the Members and Chairperson of the Lokpal. For such eminent positions where a person who is a former Chief Justice of India or a Judge of the Supreme Court, job applications may not be necessary as the constituency of the persons from whom the selection has to be made is narrow. In any case, whether an advertisement is to be issued or otherwise can only be decided by the Selection Committee. The executive government has no role to perform in this. Notwithstanding this position, the Department of Personnel and Training has usurped the power of the Selection Committee which is still to be fully constituted. It has issued an advertisement inviting applications for the said posts. The very idea of sitting or retired Judges of the highest court having to move applications for a post-retirement assignment is repugnant to the dignity of the office that they have held. Retired judges who lobby with the Establishment with their CVs compromise their self-respect and dignity. A job seeking Judge may not be the best person to be appointed as a member of the Lokpal. In any case, whether applications are to be invited or not has to be decided by the Selection Committee. The Union Government is wholly alien to this power. The advertisement issued in this regard is contrary to the provisions of the Act. I intend to write to the four members of the Selection Committee who are nominated by designations, namely the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India and the Leader of Opposition in Lok Sabha that their function has been usurped by the Department of Personnel and Training. The advertisement which is illegal requires to be withdrawn.