The appointment of the anti-corruption ombudsman has been hanging in balance since the Lokpal and Lokayuktas Act, 2013 which received Presidential assent on January 1, 2014 on the ground that the legislation provides that the Leader of Opposition (LoP) has to be in selection committee, but in present Lok Sabha, there is no LoP.

Referring to the key pre-requisite that LoP has to be there in Lokpal selection panel, the bench, headed by Chief Justice T S Thakur, said LoP is “dispensable” and things can proceed without LoP who can be replaced by the leader of the largest opposition party in the committee.

The apex court expressed disappointment when the Centre said the amendment to replace LoP with the leader of the largest opposition party in the proposed selection committee of Lokpal is pending with Parliament and asking it to clear would amount to “judicial legislation”. “Now we don’t have LoP for past the two-and-a-half years and it is likely that for the next two-and-a-half years, we would not have LoP.

“Since it is not likely to happen, there won’t be any LoP. Then will you allow the law to become redundant just because there is no LoP? An institution like this which is for probity in public life can’t be allowed to become redundant. This institution won’t work like this,” the bench, also comprising justices D Y Chandrachud and L Nageswara Rao, said.

Attorney General Mukul Rohatgi said as per the provision, the largest opposition party has to have a certain number of MPs in Lok Sabha to claim the post of LoP and the amendment is pending with Parliament. In Lok Sabha, the largest opposition party Congress has only 45 members and lacks the requisite 10 per cent of total 545 seats, giving rise to the requirement to amend the present Lokpal Act.

The law provides the selection of chairperson and members of Lokpal shall be through a selection panel consisting of the Prime Minister, Lok Sabha Speaker, LoP in Lok Sabha, Chief Justice of India or a sitting SC judge nominated by the CJI, an eminent jurist to be nominated by President of India on the basis of recommendations of first four members of selection committee.

The bench after considering the argument of senior lawyer Shanti Bhushan, appearing for NGO ‘Common Cause’, that it should interpret the Act to recognise the leader of the largest opposition party in place of LoP as mandated, said, “Don’t allow the Lokpal law to become a dead letter.”

The bench, which fixed the matter for hearing on December 7, asked Rohatgi to take instructions and said it may consider passing an order to include the leader of the largest opposition party in the panel.