- (1.) Heard learned Counsel for the parties as well as learned Mr. Sachin Kumar, Practicing Advocate in the Jharkhand High Court who has been allowed to become party Respondent in his personal capacity vide order dated 22.06.2011.
(2.) The Petitioner has challenged the notification dated 08.04.2011 issued by the Ministry of Law and Justice through its Legislative Department under the signature of the Secretary of the Ministry of Law and Justice by which the Government of India has constituted a Joint Drafting Committee to prepare a draft of Lokpal Bill. The petitioner, as citizen of India, has filed writ petition in his individual capacity though he is a practicing Advocate practicing in the Jharkhand High Court but has moved this writ petition in his personal capacity in purported public interest and it is submitted that the impugned notification dated 08.04.2011 has been issued in violation to the constitutional provision under Article 77 as it has not been issued in the name of the President of India and further by this notification which, according to the learned counsel for the petitioner, has been issued only because of the pressure generated by one person Mr. Anna Hazare and with the aid of several other persons by which the Government of India is succumbed down to the pressure generated by the team of said individual and inspite of the fact that several proposals for Lokpal bill were taken up for consideration at the instances of even former Prime Ministers like in the year 1968 from office of the then Prime Minister Smt. Indira Gandhi and then in the year 1988 from the office of the then Prime Minister Sri Atal Bihari Bajpeyi. The Government of India not only issued the notification dated 08.04.2011 in violation to the constitutional provision of Constitution of India but also violated the basic principles of law by ignoring the rules framed by the Parliament itself as well as the procedure prescribed by Her Excellency the President of India under Article 77(3). Learned counsel for the petitioner drew our attention to the various provisions of the Constitution as well as the Rules of Business and Manual of the Parliamentary Procedures published by the Government of India to show that there is a set procedure for preparation of the legislation and the legislation can be by moving a bill : i) By Government as Government Bill; ii) A private bill which can be moved by the members of Parliament. iii) A bill by any citizen of India. Learned counsel for the petitioner relied upon Rule 64 of Rule of Procedure and Conduct of Business in Lok Sabha as well as Rule 65, 67, 160 and 161 the Rules relating to the constitution of the Committee etc. and submitted that these Rules cover the entire field of preparation of the proposed legislation and the constitution read with these rules prescribed full procedure for enacting a law. It is submitted that the Parliament is the Supreme body in the Constitution of India with executive head, the President of India and by virtue of Article 77 the Government can do its own executive action only by expressing it in the name of the President of India and not otherwise. According to learned counsel for the petitioner, the Prime Minister and Ministers themselves are nobody in the Constitution of India to do any act as per their own wish, whim or decision unless it is a decision taken in accordance with law and rules and regulations framed thereunder and by following the procedure as given in the Constitution of India. Even the extent of the executive power of the Government of India is only within the scope of Article 73 of the Constitution of India and as per Article 74, Council of Ministers is to aid and advice the President of India and even the President of India, as per Clause 1 of Article 74 is required to act in accordance with the advice of the Council of Ministers. The Article 78 prescribes the duties of the Prime Minister in respect of the furnishing of information to the President which includes to communicate the President all decisions of the Council of Ministers relating to administrative affairs of the Union and even for proposals of legislation which is apparent from Sub Clause 1 of Article 78. The Article 107 under the heading of 'Legislative procedure' provides provision as to introduction and passing of the bills excluding the money bills for which separate procedure has been prescribed under the same heading of 'Legislative Procedure'. The Article 118 empowers the Parliament to make rules for regulating special provisions for prescribing its own procedure and the conduct of its business therefore the rules of business framed by the Parliament are in exercise of Parliament's rule making power under Article 118 and therefore these rules are only followed for preparing a law or even for preparing the proposal for law. Then Article 122 prohibits the courts' interference in any proceeding in the Parliament and therefore, according to learned counsel for the petitioner, this matter of illegally preparing of the draft bill for Lokpal is required to be challenged by the petitioner at this stage only asonce the Lokpal Committee, framed under this impugned notification, submits its proposal and it is placed before the Parliament in accordance with law, then the courts shall not have jurisdiction to enquire into the proceedings of the Parliament meaning thereby to enquire into the proposal which may be submitted in purported exercise of power under the impugned notification dated 08.04.2011.
(3.) Learned counsel for the petitioner, in addition to the above legal grounds, submitted that the members in the committee have been selected arbitrarily and that too merely because of the pressure generated by a few persons and that pressure was so strong upon the Government and Government succumbed to the pressure to prepare the bill in such short period of less than two months whereas the bills were infact submitted in the Parliament for consideration of the representatives of the public, have not been considered in three decades and that is sufficient indication of the generation of pressure by the individuals upon the Government and Government succumbing to the pressure of individuals. It is also submitted that not only this but the Government succumbed to the extent that in place of giving representation to the members of the public, if they wished to give entry in the process of legislation to the public then merely selecting somepersons from an agitating group and that too in the name of individual by describing them as "five nominees of Shri Anna Hazare (including himself)". It has been made clear that the persons nominated in the said committee are only persons or the nominees of one person and not the public representatives. Advancing his argument, learned counsel for the petitioner further submitted that the real representation of the public are the elected persons, elected by the public and for specific purpose to enact the laws for the public in the country and those representatives are the members of the Lok Sabha and each individual member has right to move a bill and propose a legislation and a law can be enacted by the decision taken by the Parliament therefore, by bypassing the process of enacting law as provided by Constitution of India, new process has been evolved by issuing the notification dated 08.04.2011. It is also submitted that, if such process is accepted by the Government, then there may be possibility that not only some antisocial elements but even a person, enemy of the country may also be nominated in such committee of making legislation. In substance, it is contended that by notification virtually legislative powers have been given to the committee and it may be difficult for the Government in not accepting the recommendation made by the committee. However, learned counsel for the petitioner was more emphatic in submitting thatit is not a committee constituted to give suggestion only but it is a committee constituted "to prepare the proposed legislation" as it is apparent from Clause 8 of the notification in question.;