‘Needed: a single, empowered Lokpal to fight corruption’

Vidya Subrahmaniam in THE HINDU

Santosh Hedge, Prashant Bhushan have drafted alternative bill

Existing system “flawed,” the probe being divided among multiple, ineffective agencies

Draft aims to bring whistleblower protection within Lokpal ambit

New Delhi: Santosh Hedge, Lokayukta of Karnataka, and Prashant Bhushan, Supreme Court lawyer, have drafted an alternative Lokpal bill — there have been several official versions — with the aim of replacing the existing, mutually exclusive anti-corruption agencies with a single, autonomous apex body empowered to investigate and prosecute politicians, bureaucrats and judges.

The draft bill also aims to bring whistleblower protection, currently in the form of a separate bill, within the ambit of the Lokpal.

The draft bill, recently released to the media by the non-profitable NGO, Parivartan India, has been sent to the Prime Minister and the Chief Justice of India. In identical letters, dated December 1, to Manmohan Singh and Justice S.H. Kapadia, Arvind Kejriwal of Parivartan and other signatories described the existing system of investigating corruption as deeply flawed what with the task being divided among multiple, ineffective agencies.

The letters pointed out that while the Central Vigilance Commission (CVC) and the Comptroller and Auditor-General of India (CAG) were independent, they were rendered toothless, being advisory bodies that were invariably overruled by the government in power. On the other hand, the Central Bureau of Investigation (CBI) was dependent on the government for permission to investigate and prosecute. The CBI lawyers were appointed by the Law Ministry and they reported to it. This explained the demand for Supreme Court-monitored investigation into the 2G spectrum scam.

The letters said this led to a situation where the “high and mighty” never got punished while the poor were harassed for petty crime in police stations. “In view of this state of affairs, we need a total overhaul of the anti-corruption delivery system,” the signatories said.

The draft bill proposes a single, autonomous Lokpal combining within it the powers and mandate of the CBI and the CVC and with jurisdiction over politicians, bureaucrats and judges. Besides being able to independently initiate investigation and prosecution without prior permission from any other agency, the body will act as an appellate authority in respect of public grievances linked to bribery.

The whistleblowers, currently under the supervision of the CVC, will also come under the protective purview of the Lokpal. The members and the chairperson of the Lokpal, 11 in all, will be selected by a transparent and participatory process and any complaint of wrongdoing against a member will be required by law to be investigated and acted upon within a month through a transparent process. In the event that the charges are upheld, the loss to the exchequer by the officer’s wrongdoing will be recovered.

Explaining why whistleblowers were brought under the draft bill, Mr. Kejriwal said they mostly reported political corruption. “But because they are under the CVC, which has no jurisdiction over politicians, they have no effective protection and many of them live in danger. The draft bill aims to rectify this unfortunate situation.”


‘The tapes should be for the purpose of the department concerned. They cannot be put in the public domain’

Sansad Bhavan, parliament building of India.

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Veerappa Moily: After I took over, we have cleared as many as 64 bills, in addition to promulgating laws. It is said that justice delayed is justice denied, but I have gone one step further to say, justice denied is justice buried. I held a national consultation with all the chief ministers, the law ministers of the states, Supreme Court judges, the Chief Justice of India and all the high court chief justices and other senior judges. After that, we adopted a policy, a deliberate conscious policy, that we should reduce pendency of court cases, right from the subordinate courts to the Supreme Court. An average of 15 years should be reduced to three years. We have taken decisions on policy changes, with a focus on human resource development and leverage of ICT technology. All of them need appropriate funding. We also put the condition that a state litigation policy, in consonance with the national litigation policy, will have to be evolved by each state government, otherwise we will not release funds. There is no point just blaming the judiciary unless we empower it or allow it to build the capacity, both with regard to the physical infrastructure and the processes and many of the reforms. You cannot put the reform packages in a strait-jacket.

Coomi Kapoor: On the Radia tapes, questions are being asked about how an individual’s phone could have been tapped in this fashion for two consecutive months. Being a legal expert, is this the normal way to go about or is this an aberration?

It is an aberration. I don’t think it is a normal way and particularly the leak which has taken place. Sometimes, tapping is done but the manner in which it was leaked is something that needs investigation.

Shekhar Gupta: Was your ministry’s opinion sought into the investigation of the leak?

Till now, I have not found any reference made to the law ministry.

Coomi Kapoor: But the general public is a little confused. The Income Tax asked for permission to tap phones, but they had not used that information in years. Now that it has appeared in the media, it has been given to the CBI.

Now it is a matter for investigation and a matter for concern.

Shekhar Gupta: How serious is this leak?

That is what we have to find out. Even if some information is asked for, it should be for the purpose of the department concerned. It cannot be put in the public domain.

Nistula Hebbar: Coming back to Andhra Pradesh, are we going to see a deputy chief minister from Telangana very soon?

We have already gone on record that there will soon be a deputy CM from the Telangana region. There was a gentleman’s accord which was agreed to at the time of the agitation. We are implementing that now.

Swaraj Thapa: Recently, when the PM’s affidavit was filed in the Supreme Court with regard to the 2G scam, the Attorney General replaced the Solicitor General. Can you shed some light on why this change took place?

There is a separation of powers. There is a certain autonomy and independence enjoyed by the each of the two—the DoPT (Department of Personnel and Training) and the DoT (Department of Telecom). That’s why we divided, separated the matter, otherwise there could have been a conflict of interest. The CBI is represented by one advocate, the DoPT is represented by the Attorney General and the Solicitor General continued to appear for the DoT.

Coomi Kapoor: Some in your own party say that the law ministry showed a lack of coordination between its law officers. For example, the Solicitor General at one stage argued even for the CBI.

That is what we have stopped. We thought that it is not appropriate.

Maneesh Chhibber: During the hearing in the 2G spectrum case, as well as the appointment of the CVC, the Supreme Court bench has been making some observations on the government and later denying them. Even on the CVC, they have cast aspersions on the government. Does something need to be done to curb this tendency?

They have explained that in the course of an argument, they sometimes provoke. Sometimes it depends on the circumstances, sometimes they get provoked. I can understand that because I have been a criminal lawyer. We always put all sorts of inconvenient questions to a witness and sometimes the judges will say, ‘Don’t put this question’. Sometimes the best comes out of a witness or an advocate if he is provoked. Some judges think that that is the way to elicit the truth. I don’t think too much should be made of this. Ultimately, the merit of the case is important.

Unni Rajen Shanker: Why is your government adamant on not setting up a JPC on the 2G issue?

Yes, there is a demand for a JPC. Whenever you want that, it has to be conceded by the government or the House. Have you seen a debate on the floor of the House to justify the demand for a JPC?

Raj Kamal Jha: What is the argument against holding a JPC?

In a parliamentary democracy, it is for the people to come to a conclusion on this. That conclusion will be reflected by the treasury bench, the government. Parliamentary debate is meant for the entire nation and ultimately a national consensus is evolved. That basic elementary step has not been taken. JPC formation is the prerogative of Parliament.

Nistula Hebbar: Going into the winter session, corruption scandals have hit the government. Do you think it is possible for the government to recover its reputation?

There is nothing to suppress, nothing to hide, nothing to brush under the carpet. In the Supreme Court, we said that if the court wants to monitor the CBI investigation into the 2G issue, we are ready. We are not shutting out the discussion. We are being very transparent in our representations before the Supreme Court. We are open on this.

Nistula Hebbar: In terms of public perception, how are you going to rescue the reputation of the government?

What is the public perception? Making allegations does not amount to public perception. And the Congress party and our government have acted when there has been a public perception. The chief minister of Maharashtra stepped down, the telecom minister stepped down. I don’t want to get into the merit of the 2G spectrum issue, but the issue of a JPC came up when we were in the Opposition. Did the government of the day agree to a JPC then?

D K Singh: What do you think of the SC observations on P J Thomas? Do you think that after the strictures, it has become untenable for him to continue?

That matter is in the Supreme Court. The SC observation is there. Ultimately, the government will formulate its own policy.

Maneesh Chibber: Do you have any plans to check the phenomenon of ‘uncle judges’, judges whose kith and kin practise in high courts?

The Judicial Standards and Accountability Bill has been cleared by the Cabinet and most probably, I will present the Bill before the Lok Sabha. That will take care of many of these things. It will then go to the parliamentary standing committee.

Manu Pubby: Do you mean to say that Jagan’s exit from the Congress will make no difference to you at all in Andhra Pradesh?

Everyone who wants to quit the party thinks that the entire world will collapse. We have our right or wrong self assessments. I don’t want to get into those details because he was with us sometime ago. The organisation is above an individual and ours is a big organisation. We have a very stable government and a very stable party. And it is not that easy to destabilise our party in Andhra Pradesh.

Swaraj Thapa: In Karnataka, every political leader is alleging that the other side denotified more land. Even Congress leaders have been facing these allegations.

In Karnataka, it is an open record that you purchase government land and denotify it. In the present case, the Chief Minister’s son or relatives took land for Rs 20 lakh and sold it for Rs 200 crore. This kind of transaction can take place only in Karnataka.

Swaraj Thapa: Such allegations were there earlier too.

Let there be an inquiry. Who is preventing it? But what is surfacing today with CM Yeddyurappa is unprecedented. It is not a mere transaction. It is a well-documented transaction of corruption.

N P Singh: Why is there hesitation about implementing the death penalty?

There is no such hesitation. It is not a political thing, it is a humanitarian thing. All over the world, how many people are hanged? In our country, the last hanging took place about 15-20 years ago.

N P Singh: Take the Kasab case. Are you satisfied with the way it is being handled?

The case has seen the quickest justice delivery system ever in the country. Thereafter, he has the right to appeal. Just because he belongs to another country, we cannot cut short the process of the law. This is a democracy. We have a judiciary which is independent. We cannot impose the will of the state or the central government. To hang this man, not to hang that man—it is not done like that.

D K Singh: What is the Congress’s approach to Justice Soumitra Sen’s impeachment? Are you going to vote for it?

In a matter like impeachment, you cannot attribute it to one party’s stand or the other. It should be above the party.

Coomi Kapoor: What has been the loss due to the logjam in Parliament, apart from the financial losses?

It is unfortunate. The nation has been deprived of a healthy debate. Many bills have not been passed which need to be passed. Timely action has to be taken. After all, the responsiveness on the part of the government is reflected through the parliamentary proceedings—that has been shut out for now.

Transcribed by Maroosha Muzzaffar

Undermining Parliament won’t do

Indian Parliament Building Delhi India

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Neither the Opposition nor the Government has the right to disrupt the session over any issue, says Subhash C. Kashyap

in recent weeks, we have witnessed so many scandals in high places to the tune of lakhs of crores of public money that we must bow our heads in shame. Disturbingly, the 2G spectrum allocation, the Commonwealth Games, the Adarsh Society and the Niira Radia tapes reveal only the tip of the iceberg. Much more is hidden below the surface.

Parliament, as the supreme representative institution of the people, ought to take serious note of the challenges to our polity posed by the giant scamsters. Members rising above party lines should have deliberated upon ways to quickly identify and punish the guilty and devise systemic reforms to prevent recurrence of such scams.

From day one, the winter session of Parliament has been rendered dysfunctional. The only business it transacted during three weeks was a sham and a disgrace. Supplementary Demands and Appropriation Bills for thousands of crores were passed without any debate by a voice vote amid din. There could be no better evidence of the low levels to which the MPs’ respect for Parliament and public money has descended. The basic issues of large-scale corruption have receded to the backstage and much of the focus is on the long logjam.

The Opposition members were united in demanding a Joint Parliamentary Committee (JPC) for examining the three big scams. They are firm on disrupting Parliament unless this was agreed to. The government is equally firm on its stand that the Public Accounts Committee (PAC) is the appropriate forum for deliberating on financial accounts and the report of the Comptroller and Auditor-General (CAG). In any case, all matters could be discussed in Parliament. The government also offered a CBI probe under the Supreme Court’s supervision.

The Minister of Parliamentary Affairs says that the JPC demand is purely political and illogical. First, if the demand is political, its rejection by the government was equally so. Secondly, Parliament is primarily a political institution meant inter alia for debating political issues. ‘Political’ cannot mean unreasonable or illegitimate. Thirdly, there were compulsions of coalition politics. Some problems arose when for government formation in case of a hung Lok Sabha, a price had to be paid to coalition partners/ supporters, bargains had to be struck and the price demanded had to be paid in the form of creamy portfolios like Telecom.

In such a situation, corruption is inbuilt in government formation. It was known to the Prime Minister and others. It was understood and accepted as unavoidable in the best interests of power polities. Even former Telecom Minister A. Raja’s resignation became possible only after counter pressure and promise of support from a rival provincial satrap.

The Opposition felt that the JPC canvas could be vast while PAC probe would be limited in nature and the Ministers could not be summoned before it. As for the CBI inquiry under the Supreme Court, it was very legitimately wondered how the government could make such an offer or interfere with juridical functions and court’s discretion.

The Opposition asked what was so sinister about demanding a JPC probe. After all, during the NDA regime in 2001, a JPC was quickly conceded by the Prime Minister to probe the Stock Market Crash Scam and related issues. Former Finance Minister Yashwant Sinha, P. Chidambaram and Manmohan Singh as also the Finance Secretary appeared before the JPC. A report was made and its recommendations were largely accepted.

The Opposition disowned responsibility for making Parliament dysfunctional. It asserted that it was the government’s job to make Parliament function. But, as a logical conclusion, it would mean the use of disciplinary powers of the Presiding Officers and the Houses and suspension of members obstructing the proceedings and committing breach of parliamentary privilege and contempt of the Houses.

All the efforts made by the troubleshooters and party managers at all-party luncheon meetings have failed to break the deadlock and evolve a compromise. This was a clear failure of political and floor management skills of the government. The Speaker’s last ditch effort, too, failed.

Clearly, both the government and the Opposition are equally responsible for the ugly impasse. There was an unnecessary, illegitimate and irrational tug of war in the name of the people. But the people are nowhere in the picture. As usual, on both sides, political considerations and calculations of gain and loss have the upper hand. Perhaps, there is an unsaid long-term political concern before the government and the Opposition. Both are eyeing the 2014 general elections. The Opposition would like to drag the matter on through the JPC device and the Congress feared a repeat of what happened to it after the JPC on Bofors.

The people are appalled and dismayed at the shameful levels and reach of corruption involving the UPA-II government headed by Prime Minister Manmohan Singh and advised by the all powerful National Advisory Council. But the Opposition has done precious little to explain to ‘we, the people’ why it insisted on disrupting the proceedings of both Houses. The government also has failed to convince the concerned citizens about the justification, if any, for its unrelenting opposition to conceding the near-unanimous Opposition demand. It is also feared that deliberate dilly dallying on the JPC demand would help one to fudge records and buy and manage evidence. As Parliament has been paralysed, some of the talking was being done through blogs or television channels. The people needed to be informed about parliamentary processes, relevance and respective merits of parliamentary committees. Friends from the media kept enquiring this writer about the difference between a JPC and PAC.

It would have been better to use Parliament to talk to the people and educate them through debates about the arguments of both sides. The Opposition leaders could place all the facts and arguments most forcefully and plead for the appointment of a Joint Committee of the two Houses. The government side could also justify its stand. The people could then form their opinion though in a parliamentary system while the Opposition has the right to have its say, the government, so long as it is in majority, has its way.

Parliament is the chief communication link between the government and the people. Close contact and an intimate rapport between the two is the quintessence of parliamentary democracy. Parliament belongs to the people and not to MPs or parties. People must have access to Parliament. Unfortunately, there is a tremendous disconnect between the two. Things get worse when both Houses do not function and are shut against the people.

If the Opposition was anxious to question the Prime Minister and nail his responsibility, the Lok Sabha was the more effective and legitimate forum than a JPC. However, in a JPC, proceedings are in camera. Interestingly, the nomenclature JPC finds no mention in any constitutional or legal provisions or in the Rules of Procedure and Conduct of Business in the two Houses of Parliament. The term gained currency during and after the inquiry into the Bofors scandal in 1987.

The device of parliamentary committees is intended to assist the Houses of Parliament in the efficient discharge of their functions. There are two types of Parliamentary Committees in India: Standing Committees and Ad hoc Committees. Standing Committees are constituted by the House or the Speaker every year or from time to time and are permanent in nature. Ad hoc Committees are appointed for a specific purpose.

Standing Committees include the Financial Committees and Departmentally Related Committees. Ad hoc committees may be Select or Joint Committees or those constituted to report on specific matters. A committee which consists of members of both Houses is a Joint Committee. The Standing Financial Committee called the Public Accounts Committee is also a joint committee inasmuch as the Rajya Sabha MPs are also associated with it. All the Departmentally Related Standing Committees are Joint Committees.

Both Houses of Parliament have inherent powers to appoint special committees under special circumstances to examine and inquire into specific issues and report to the Houses. Apart from the Standing Committees, Ad hoc joint committees of both Houses have been constituted from time to time on various matters. Technically, these were JPCs. It is, therefore, not correct to say that the JPC on Bofors was the first JPC or that there have been only four JPCs so far. Also, it is incorrect to say that the four JPCs were total failures. A committee can only inquire and make recommendations. It is for Parliament to discuss them and for the government to accept them and take appropriate action.

After Bofors, the nomenclature JPC has in practice come to connote an ad hoc joint committee of both Houses formed for inquiring into a specific scandal of financial wrong doing. A distinctive feature of such committees is their investigatory role. Of the oft-cited four such investigative committees in the past, the first was in 1987 on the Bofors scandal. After crusading for it and blocking Parliament for long, the Opposition boycotted the JPC on the ground that it was packed by Congress members. Even though the Opposition boycotted the JPC on Bofors, its inquiry led to mass resignation of Opposition members and ultimately the change of the government. The Union Cabinet itself was split with V.P. Singh putting himself up as an anti-corruption Messiah.

The second JPC was formed in 1992 to investigate the Securities Stock Scam involving Harshad Mehta and other brokers. Parliament was largely paralysed for two weeks before the JPC was conceded. The third was set up in 2001 to investigate the Shares scam involving Ketan Parekh, banks and corporate Houses. From March 13, 2001, Parliament was paralysed for nine days after the Tehelka expose. In April, after another week of adjournments, the Opposition Congress demanded a JPC. On the issue of irregularities in defence purchases during the Kargil conflict, it again demanded a JPC. These demands were rejected. The political parties demand JPC when in the opposition and oppose it when in the government.

A joint committee may be appointed on a motion adopted by the two Houses and may contain the names of its members. It may also be appointed by the Speaker of Lok Sabha and the Chairman of the Rajya Sabha after mutual consultation. Members of some Standing Committees including the Public Accounts Committee are elected according to the system of proportional representation by means of single transferable vote. This may be so even in the case of some ad hoc committees. But even if the committees are constituted by the presiding officers, proportional representation of parties is kept in view and the numbers in committees represent the party position in the Houses, i.e. by and large the ruling party or parties remain in majority in the committees as well. In case of the PAC, by convention, the Chairman has been from the Opposition since 1967.

The Comptroller and Auditor-General of India is an independent audit agency. To the extent that the executive is accountable to Parliament in financial maters, the CAG works as the watchdog on behalf of Parliament. Parliament’s effective functioning depends largely on the CAG’s assistance who is considered its friend and guide.

In the present case, the CAG had done his job and his report was laid before the two Houses. It had unearthed a major scam and pointed out blatant and substantial irregularities causing a loss of Rs 1.76 lakh crore to the public exchequer. Without a public and transparent auction, the 2G spectrum licences were given away to companies with doubtful credentials in 2008 at throwaway prices by former Telecom Minister A. Raja. Two companies which had bought the licences for Rs 1500 and Rs 1600 crore, after a few weeks, sold their stakes for Rs 12,000 crore!

In parliamentary committees, the effort always is to function on non-party lines. Decisions are taken unanimously or by consensus but the rules provide for all questions at any sitting of a committee being taken “by a majority of votes of the members present and voting.” On crucial issues involving party susceptibilities, therefore, it would not be easy for the Opposition to have its way against the government. It may be, therefore, wrong for the Opposition to believe that they would be able to compel the presence of the Prime Minister or other Ministers before the JPC. The majority in the committee may overrule such suggestions. Also, under the rules, the question may be “referred to the Speaker whose decision shall be final.”

In the PAC, a minister is not called before it to give evidence or for consultation in connection with the examination of accounts. A minister may appear before it if the Chairman agrees. Also it can be so arranged between the Speaker, the Committee Chairman and the minister concerned that he appears on his own.

If the Opposition can be convinced that it should not appear to be stalling the proceedings of the House and the government realises that it need not be seen as avoiding inquiry, there may be a way out of the present impasse whereby the concerned ministers and even the Prime Minister may appear before the PAC. The committee can also go beyond the CAG report and take suo motu notice of allied issues. This would only require an initiative and a promise from the Prime Minister himself.

The Opposition had a golden opportunity to draw maximum political advantage by providing good leadership, clean citizen-friendly governance and inclusive politics. They could make corruption a major issue and launch a massive campaign against it through speeches in Parliament instead of disrupting it and sipping coffee in the Central Hall.

Meanwhile, the Supreme Court has asked the CBI counsel not to beat about the bush when illegality was prima facie evident. It has castigated the CBI for tardy investigation and asked why Mr A. Raja and then Telecom Secretary P.J. Thomas (currently the Chief Vigilance Commissioner) have not been questioned. It has also questioned the legitimacy of Mr Thomas’ appointment on the ground of pending charges against him and his controversial role as Telecom Secretary.

The saddest part of the current debate in the media and among the pro-establishment pseudo-liberal intellectuals is that there is no willingness to call a spade a spade and condemn wrong doing. Cheating by those in power is countered and defended by pointing fingers at similar cheating by the Opposition parties when they were in power. Party ‘A’ accuses Party ‘B’ of swindling public money and vice versa. The blame game continues while the losers are we, the aam admi.

The Opposition pressure, the Supreme Court’s observations and the public outcry against corruption are beginning to impact the government inasmuch as notices have at last been issued to companies asking them why their 2G spectrum licences should not be cancelled. If Mr Thomas doesn’t quit voluntarily, there may be a strong case for seeking annulment of his appointment as mala fide and ab initio illegal and void.

The ultimate question is whether the political class — the largest beneficiaries of corruption — has at last realised that enough is enough and the people won’t accept the sordid state of affairs anymore.

The writer, a noted constitutional expert, is a former Secretary-General, Lok Sabha