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The mischief in the rules

The refusal by two eminent jurists to join the Lokpal Search Committee is symptomatic of the credibility crisis that the United Progressive Alliance (UPA) regime faces in its last days. Even the process of putting in place an independent anti-corruption ombudsman has been engulfed in controversy, exposing the government to the charge that it is in an unseemly hurry to appoint the body before the expiry of its term. At the very first meeting of the Selection Committee, Sushma Swaraj, Leader of the Opposition in the Lok Sabha, objected to the inclusion of senior advocate P.P. Rao in the selection panel as the fifth member, and her objection was overruled. Senior advocate Fali Nariman declined to be on the Search Committee, voicing the fear that in the two-stage selection process, “the most competent, the most independent and the most courageous will get overlooked.” Retired Supreme Court judge, Justice K.T. Thomas, went through the Rules framed under the Lokpal and Lokayukta Act, and noted that the Search Committee’s recommendations were not binding on the Selection Committee, headed by the Prime Minister. Such controversies need not imply that the statutory framework for the Lokpal is substantively flawed; but when the finer points in the process that emerge after rules are framed appear loaded in favour of the ruling dispensation, the process itself becomes suspect.

When the much-delayed Bill was passed in Parliament in December 2013, there was a sense of relief that a reasonably sound law was in place. However, the government equipped itself with some potential filters while framing the rules. The process involves a Selection Committee that will appoint a Search Committee. Going by the rules, the search panel will scrutinise only applications forwarded to it by the Department of Personnel and Training. The rule circumscribes the Search Committee’s role to choosing names out of a list submitted by the government and blocks any independent nomination from the community at large. Further, the panel of names recommended by it need not be accepted by the Selection Committee, which is free to consider names from outside the panel too. Empowering the apex committee with the freedom to go beyond the recommendations may not be inherently wrong. However, the potential for mischief in confining the first stage to a government list and conferring wide discretion on the selection panel in the second stage may ultimately result in some deserving candidates being ignored or, worse, someone deemed inconvenient being deliberately disregarded. The government needs to shore up the credibility of the process; as an immediate step, it should revisit the rules and give a free hand to the Search Committee to do its job.

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