LAW RESOURCE INDIA

‘Genuine movement’

Posted in ANNA HAZARE CAMPAIGN, CONSTITUTION, CORRUPTION, DEMOCRACY, FUNDAMENTAL RIGHTS, GOVERNANCE, JAN LOKPAL by NNLRJ INDIA on September 6, 2011
Arun Jaitley

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VENKITESH RAMAKRISHNAN & AJOY ASHIRWAD MAHAPRASHASTA IN THE FRONTLINE

Interview with Arun Jaitley, BJP leader and Leader of the Opposition in the Rajya Sabha.

THE interventions in the monsoon session of Parliament by Arun Jaitley, the Leader of the Opposition in the Rajya Sabha, have been rated as “masterly” by a large number of seasoned Parliament-watchers. During the course of these interventions, which saw him make important observations on the legal and constitutional dimensions of the issues relating to corruption and the Lokpal Bill, the Bharatiya Janata Party leader also adopted the role of an “in-depth political analyst and visionary” who had cast off the limitations of a “narrow, sectarian politician”. In this interview to Frontline, Jaitley elaborated on these interventions and delineated his understanding of the future course of action on issues such as the Lokpal Bill. Excerpts:

Parliament has conceded three points raised by Team Anna on the Lokpal Bill, and the Standing Committee is going to look at the provisions of the Bill. What will be the broad road map on the issue?

Logically, all issues and viewpoints on which parliamentary consensus was built up after the recent debates will be placed before the Standing Committee. The committee should hold extensive public consultations and come out with a report expeditiously so that the final draft, with amendments, can be approved by the Cabinet. Hopefully, the government will introduce the amended Bill in the winter session.

What is the BJP’s position on the Lokpal issue?

There are two underlying principles that should guide the issue. There should be wide scope for government offices coming under the Lokpal’s jurisdiction. It should be a strong, independent Lokpal. The judiciary should have an alternative mechanism, where I prefer the National Judicial Commission. The appointment mechanisms should be completely independent; not excluding the government, but the government should not be able to be dominate or control it. So it should be an institutional mechanism. And it should be a mechanism where we are able to eventually bring in various other institutions. The institution of Lokpal should follow fair procedures. For instance, we should be able to bring in [under its purview] civil servants who work in state instrumentalities.

The only other factor that should be taken into consideration is that the Lokpal Bill should be consistent with constitutional requirements. There are four areas that need to be stressed in this connection. One, when you deal with the judiciary, you have to keep it independent of the executive. Therefore, the mechanism for the judiciary should be separate and not executive-centric.

Two, the principles of federal polity enshrined in the Constitution should not be affected by the Lokpal Bill. The Centre pressing for Lokayuktas in the States can compromise the federal principles of the Constitution. For instance, can the Centre legislate on a law dealing with State bureaucracy? My prima facie view is that with regard to some criminal law procedures, the Centre can, but not with regard to disciplinary and inquiry procedures against the State bureaucracy. The Centre can at best pass an enabling law under Article 252 of the Constitution [Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State] or a model law, but not a binding law. The States will have to do it. Therefore, the fight against corruption should not compromise the federal principles. I have already spoken about the issue to Team Anna.

Three, in relation to the conduct of the Members of Parliament inside the House, the Bill should be consistent with Article 105 of the Constitution [power and privileges of the Houses of Parliament and of the members and committees].

Four, in relation to who takes disciplinary action – those who hold a civil post in the Central and State governments have protection under Article 307; that constitutional protection should not be affected.

Now, having covered all these areas, we can say that the Prime Minister should be covered but we can exclude certain functions; functions predominantly in the areas of public order and national security.

There is a suggestion that the functions of intelligence agencies relating to external affairs should not be covered. These are issues that should be fine-tuned by the Standing Committee.

There are other questions, too. Such as whether the entire bureaucracy should be covered and whether it should be entirely under the Lokpal. I think we would like the entire bureaucracy to be accountable. But the government has said there can be a splitting of functions in which the lower bureaucracy can come under the Central Vigilance Commission. There is a third proposal, that the lower bureaucracy can be put under a CVC, which in turn could be monitored by the Lokpal.

Should MPs be covered? Yes, obviously, but what they say inside the House, protected by the privileges of Article 105, should not be covered. These are issues of workability and accountability, which the Standing Committee can look into keeping the major principles in mind.

I have objected to only one point that is found in both the Bills [the Jan Lokpal and the government’s Bill], that is, the bugging of telephones. This can compromise national security. It violates personal liberty. I hope the Standing Committee will consider this.

The idea of attaching property of those charged with corruption has also raised objections.

There are already laws in some States that address this issue. There is a law of 1945 called Criminal Law Amendment Ordinance. The principle behind attaching property is that you cannot profit out of corruption. The court can attach corrupt money, not an executive authority, and use it for national development. The money should not wither away or you should not be able to dispose of the corrupt money. Proceeds of narcotics and smuggling money are invested in the state. Why not in the case of corrupt money? Bihar has brought this law. Other States are following suit.

There is a view that the BJP has spoken in different voices, especially with regard to the Jan Lokpal Bill.

The positions I have enunciated in Parliament are the party’s positions.

 Several votaries of the Jan Lokpal Bill hold the view that the existing anti-corruption laws are completely faulty and inefficient. Do you agree?

I think to say they are completely faulty may not be correct. They are a bit lax, a bit liberal, and capable of misuse. At times the law works, at times it does not. Seeing the enormity of corruption, you do not see so many people punished. A Lokpal may not be able to eliminate corruption but the fear of the Lokpal and of being tried under a fair mechanism may certainly be some kind of a deterrent.

Do you think this movement has created an unprecedented public sensibility?

I think this movement was genuine. No major parties participated. Sympathisers and workers did join it, but in their capacity as citizens. It was genuinely a citizens’ movement. It had a lot of goodwill. Such kind of consciousness is a positive development in India.

Do you subscribe to the view that such protest methods are symbolic of bypassing representative democracy?

I do not think it is fair to say that they were bypassing [representative democracy]. They were not saying they had the power to legislate, and not Parliament. Yes, they did bring pressure on Parliament. But we should treat them as a pressure group. They have the right to campaign and we have an obligation to listen to them. I think the government did not have a game plan. I have spoken to Team Anna at least three times. And on most issues, I have found its stand to be extremely reasonable, and after a little diversion we have converged on the same opinion. On the question of excluding certain functions of the Prime Minister, we are of the same view. Regarding the judiciary, we are of the same opinion also.

 There is a feeling in many quarters that the political class as a whole has lost the moral authority in the context of the movement.

I do not think this is fair. You see, there is a campaign against the political class. The campaign is also against Parliament. I still believe that there are still a large number of good and honest people in various political parties. There are aberrations also. But there is still a space for decency and ethics in politics and that space is being encouraged by such strong public opinion. There is no reason to be cynical. But if you pick up each one of the debates in Parliament in this session, I can tell you some of the debates have been exemplary. For instance, if you see the debate on the day Anna Hazare was arrested, or on the Lokpal Bill, or the impeachment debate, the quality has been very good. The fact is that if private television channels feel that the debates are bringing them TRPs and they cut out to Parliament for speeches, that itself means that people are interested. The stronger the public opinion, the more the viewership of parliamentary speeches, both in the electronic and the print media.

Provocative statements are being made against Parliament. We must not be vindictive in our actions even then. We should not make angry reactions or get provoked. What we do on the issues will be our response to the people. Even without this movement, States such as Madhya Pradesh, Bihar, Uttar Pradesh, Punjab and Himachal Pradesh have brought out Citizens’ Charters. This is a significant response and this is the way it should be.

http://www.frontline.in/stories/20110923281901400.htm

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