‘Do not insist on forcing us to do something that goes against the oath of our office’

Raj Ghat, Delhi is a memorial to Mahatma Gandh...

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INDIAN EXPRESS

Vandita Mishra: The Anna Hazare movement has been gaining momentum. In your interaction with MPs, do you see a shared sense of siege because of what is happening right now?

There is near unanimity in the country and amongst parliamentarians that corruption is a national issue. However, there is equal unanimity amongst parliamentarians that the way forward to address corruption is not to call into question the entire constitutional edifice where parliamentary supremacy in the matter of law-making is non-negotiable. In a republic inspired by Mahatma Gandhi, you can’t completely ignore the constitutional means for addressing a national malaise. But you should address corruption in a way consistent with the sanctity of our Constitution.

Coomi Kapoor: Are you saying unconstitutional means are being used? All they are doing is building up public opinion so that parliamentarians take into account the views of the public for this long delayed Bill.

The right to dissent, the right to protest and the right to mobilise opinion is given and it is respected and accepted. This is the reason why Anna and his team are fasting at Ramlila Maidan. In fact, the state is making all arrangements to facilitate the protest. What is an issue is the inclination to put a gun to the government’s head and say this is the Bill that you must legislate into law and you must do so by such and such time irrespective and in derogation of the established procedure of law-making as per the Constitution. How can you, in the name of advancing a laudable national objective, completely negate the permissible means under your Constitution? Now the argument is that we, the people of India, come first in the Constitution, therefore, everything else is subservient to the will of the people. Even with this I have no quarrel. But how do you determine the will of the people? The Constitution ordains that you determine the will of the people after every five years through an election. If you insult the collective judgment of the people of India, you are not advancing democracy. This is my view as a citizen of this country, as a constitutionalist, as a lawyer. The Constitution is intended to be a bulwark against the impulses of transient majorities. Majorities will come and go but the Constitution is supposed to be an enduring edifice.

Dilip Bobb: The general impression is that the government is now employing delaying tactics. How do you convince them that you are with them and not against them?

Let me tell you what this government has done so far: it’s not as if PM made his appeal for the first time last Tuesday–he used every opportunity to say that any peaceful contestation can be the subject of a debate. He has said, let us have a stronger Lokpal Bill based on a larger political consensus. He said he was not against the protest, he was concerned about Anna’s health. But don’t insist on forcing us to do something against the oath of our office. As a duly-elected government, we are voted into power and we want to uphold the Constitution of India. In the parliamentary process of law-making, the Standing Committee is a time-tested process which has produced very good legislation. Today, the atmosphere in the country is such that there is an earnestness to push for Lokpal as an instrument to remove corruption. But to say, do it by tomorrow and discount the Standing Committee procedure, to say that you want a bill to be rammed through in a manner that tomorrow somebody can ask why we have consciously ignored contrary views–that’s where we have issues. The same Constitution that gives me the right to the validity of my views, gives to the other the right to contest those views. But if you insist on deadlines, you are negating the first principle on which this republic is founded. What prevents another group from saying they will sit at Rajpath? If the government starts to buckle on issues of principle, the government will have no right to ask the citizens to comply with the law.

Coomi Kapoor: But the government has buckled, firstly by making Anna Hazare a member of the official drafting committee. Then you said the PM has to be out of the Lokpal and you buckled on that too. There has been a series of retractions from the government which shows that things are not that hard and fast.

There are give and take situations but there has never been a negation of an express constitutional stipulation. There is no bar on the Standing Committee to take into consideration the Jan Lokpal Bill.

Coomi Kapoor: But earlier the government had said it was not possible?

The difference is in what was being said by the Anna camp–that the Standing Committee should discuss “our” Bill. The process of law is that the Cabinet prepares a format which goes to Parliament, and that Bill is presented to the Standing Committee. There is no precedent for anyone insisting that the government takes only their Bill; if the government agrees with their Bill, it can present it to the Standing Committee as its own–there is no difficulty in that. But to tell us to disown our own Bill and to discuss only ‘your’ Bill amounts to law-making being outsourced to people who, as per the Constitution, cannot be the lawmakers. And the day you make a deliberate departure from the expressly stated and incontrovertible stipulation of the Constitution, you violate your oath of office. No government worth its name can consciously negate the fundamental principles of the Constitution.

Maneesh Chhibber: You said you can’t outsource lawmaking to anybody. So what is the National Advisory Committee (NAC) doing?

NAC is doing nothing other than submitting its suggestions. Name one law which NAC has insisted upon, the manner in which Anna Hazare is insisting. I cannot recall NAC ever insisting on anything.

Pradeep Kaushal: Why did you outsource drafting of the Lokpal Bill to the committee where half the members were from civil society?

It was a limited decision made in order to ensure that their views were fully taken on board. There is no constitutional or legal bar to not associate somebody with the draft. The bar is on the Bill we eventually bring before Parliament. After the drafting committee came to a conclusion, the ministers accepted some of Hazare’s suggestions and did not accept others. Then they presented the Bill to the Cabinet, which, in turn, endorsed it to make it a government Bill. That was presented before Parliament. We associated with these people purely to make sure that they had a full say in giving their inputs while the members of the government in that committee were formulating the draft.

Vandita Mishra: People say the government’s case is being made on too many legal, technical grounds and there is not enough of a political input.

Political issues are responded to politically as the PM has done last week. It is a political response of a sensitive and responsive PM who is concerned about the way things are developing, about the health of Anna Hazare. Legality and politics are not mutually exclusive to the extent that lawyers are able to backseat constitutional and legal issues and package them as part of the political response. I don’t see any inconsistency or mutual exclusivity between the two

Vandita Mishra: But what is the single largest source of hostility to the government?

My sense is that people tend to think we are not with them in the fight against corruption. As time has gone by and as the debate is put in the correct perspective, it is clear that this is a choice between the right ends and the right means. People are tending more and more to agree with our perspective. The letter PM wrote and the public appeal made earlier to Anna Hazare to give up his fast were intended as a decisive signal to bring the national discourse back from an idiom of confrontation to an idiom of rational discourse and dialogue.

Maneesh Chhibber: Would you agree that Anna Hazare’s arrest was a wrong move?

I have already said that if I had been in-charge of the situation on the ground, I would not have sent Anna Hazare to Tihar jail. I think the right course would have been to notify a place like a guesthouse to detain him on a preventive basis. I think things moved too fast and these nuances got lost.

Dilip Bobb: What is your personal stand on the issues of the Lokpal covering PM, the bureaucracy and the judiciary?

Constitutionally, it is completely impermissible. How do you expect the government to consider these demands? On the judiciary: we have a constitutional procedure to discipline judges. As for PM, he has repeatedly said he has no problem being under the ambit of the Lokpal. But it is not as if this PM is the only PM under contemplation. What is under contemplation is the office of the PM, who has been described as the keystone of the Cabinet arch. And if the keystone is disturbed, the arch collapses. It is my personal view that no prime minister should be subjected to a system of inquiry or prosecution where immediately on the receipt of a complaint, the entire regime is triggered. It is not the absence of laws that have prevented prosecution of PMs. We have had two PMs who have been prosecuted even without the Lokpal. We are being unfair to those honest officers in the government who actually prosecuted PMs and former PMs. It is not because of the absence of laws that corruption in the country is growing, It is because of the general decline in the moral fibre of most people that the country is going down.

Maneesh Chhibber: Very recently, the government removed CBI from under the RTI. Is that probity?

I believe the reason for keeping CBI out of RTI is ensure the integrity of the investigation as the accused can use RTI to get information about what stage the investigation is at, which might destroy the integrity of the investigation.

Raj Kamal Jha: This is hypothetical but if the same debate had happened under UPA-I, do you think you would have been on a stronger wicket than UPA-II under the shadow of CWG and 2G? What role has that shadow played in the current discourse?

I do agree that the atmosphere created in the country with allegations related to 2G and other issues have had an impact, consciously or unconsciously, on the sentiments of the people, and the sentiments of the lawmakers, even the judiciary. In fact, we are all impacted at a certain level–and rationality and objectivity sometimes become the casualty. I saw this phenomenon in the indictment of Justice Sen.

Coomi Kapoor: Did the prevailing atmosphere influence the views of parliamentarians who were not in favour of Justice Sen’s impeachment?

I believe, as a lawyer and not as a parliamentarian, that in a criminal case, two views are possible and if the prosecution has not proved its point to the hilt, the benefit of the doubt must go to the accused. That is not to say that the same principle applies when we have debates on issues such as this in Parliament. The parliamentarians, in their collective wisdom, took a view that the judgment would advance the cause of substantive justice for a cause.

Kaushal Shroff: The Jan Lokpal Bill states that seven members should approve any investigation against the PM, of whom at least four would be judicial members. Wouldn’t they understand the gravity of the issue involved and the repercussions of investigating a PM?

The fundamental issue is the environment in which our democracy operates. The imminent possibility of a mala fide prosecution or investigation into the conduct of the prime minister in the discharge of his extremely critical duties can have the effect of destabilising governments. This is the view that is taken by those who dispute the necessity of the PM in the Lokpal. There are others who believe that there are sufficient safeguards to see an abuse of the law doesn’t take place. If Parliament in its wisdom decides to put the PM under the Lokpal, so be it. But there are two strong views and somebody has to decide which view must prevail. Which is that instrumentality in the scheme of our constitutional order which takes the final call? Parliament, in its collective judgment, where all shades of political opinion are reflected.

Vandita Mishra: Some people in your party say Rahul Gandhi should step into the Anna Hazare negotiations.

Rahul Gandhi enjoys a preeminent position in the party. He has a very incisive instinct on many issues. His counsel is always available to the party. As the Congress general secretary, he doesn’t have to ask anyone before intervening. For all you know, he may be involved in giving his advice in the manner he deems fit. It is his call how to intervene, when to intervene and on what issues to intervene.

Sourabh Jyoti Sharma: Transparency International Report 2010 says the judiciary is the second most corrupt institution in India after the police. Do you want to bring a stronger Judicial Accountability Bill in Parliament?

The Judicial Accountability Bill will be brought before Parliament. The government remains committed to it. There is a broad consensus on it. We need to ensure that there is an adequate mechanism to deal with allegations of lack of probity in the judiciary.

Sourabh Jyoti Sharma: What is your view, as a lawyer, on the collegium system of judicial appointment?

On judicial appointments, the experience has been mixed. I don’t think the collegium system has always achieved the desired results.

Unni Rajen Shanker: Many people are talking for the government in the media. Are you being briefed before you talk?

There is so much information on the issues at hand, we almost drink, eat and breathe these issues. The senior people who go on TV channels do have their own perception of what is required to be said and if there is a doubt in their minds, they are always free to seek clarification.

Vandita Mishra: What is the feedback your parliamentarians are getting from the ground, from outside big cities like Delhi? Do they face the same outrage or is there a distinction to be made?

Nobody disputes that the issue of corruption has caught the imagination of the country. The point of contestation is how does the nation together move forward in a direction that will minimize the scourge of corruption and show that the fundamentals of our body politic are not constantly being eroded by this menace. It is a great tragedy that the current UPA leadership of Sonia Gandhi and Manmohan Singh known for their deep commitment to probity in public life should have to bear the brunt in a very unjust and a very unfair manner just because an atmosphere in the country has been created where the responsibility for all that is wrong lies with the government. Look at the series of initiatives the government has taken on corruption: has anyone else take such corrective measures?

When did a serving minister go to jail, when did we send the top bureaucrats to jail? It is said this was done because Supreme Court wanted it to be done. Who went to Supreme Court and asked, through CBI that the Supreme Court monitor the investigations so that the people of India should not think anybody was being protected? We must at least be given credit for vigorously pursuing the cases of corruption. The proof of the pudding is in its eating. Judge me not by what I say but by what I do and this government has taken conscious, purposive and strong action where strong prima facie cases of corruption have been an issue. One more thing; these are the people who have been behind bars for the last several months and whose bail applications have not been granted. As a lawyer I ask myself, is bail the rule and jail an exception or jail the rule and bail an exception? As early as 1977, Justice Krishna Iyer said bail is the rule as it subserves the cause personal liberty and jail in an exception. You must jail only those people who are hardened criminals who can pervert and thwart the course of justice. I sometimes wonder whether someone can be denied liberty merely because the atmosphere is in favour of hanging those without convicting them. At another level, there are proposals that nobody can contest an election if there is a charge of a criminal offense against him. It is said this is the best way to eliminate criminals from politics.

But it is a dangerous path to follow. We have a great law and a great legal architecture but we also know that laws are abused. It is easy to have a false charge against someone in a mofussil town. Years of reputation built in public affairs, a man’s political career can be destroyed. The answer to the criminalization of politics is not in riding roughshod over fundamental principles that are intended to safeguard your liberties and your inalienable rights embedded in the Constitution. Let us not tinker with the fundamental principles of our republic on account of impulses of the moment. All constitutions are designed to secure the nation against intensities of the momentary impulses. If you tinker with the Constitution, you will never be able to restore its integrity.

Vandita Mishra: The burden of your argument is that there is an atmosphere in the country and the government is an unfortunate victim of that atmospehere. Would you not admit to a single mistake the government has made in contributing to this atmosphere? Has the absence of Sonia Gandhi made a difference?

Sonia Gandhi’s absence is deeply felt at all critical moments and even otherwise both in the party and in the government. Her presence, her guidance, her sage counsel and advice has been a great source of strength to the UPA government and Congress. I will be the last person to say this government, or any government, is infallible. There could be a bona fide error of judgment like sending Anna Hazare to Tihar Jail. Governments do make mistakes but as long as they are bona fide and are redressed and corrected, I think the benefit of doubt must remain with the government.

People throw out governments when they don’t find their explanations convincing. The choice is not between a perfect government and an imperfect government, the choice is between a bona fide governance and misgovernance.

Transcribed by Chinki Sinha & Geeta Gupta

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Lokpal legislation and statutory procedures

JAN LOKPAL CAMPAIGN

JAN LOKPAL CAMPAIGN

ERA SEZHIYAN  IN THE HINDU

A resolution passed in Parliament may have limitations when it comes to implementation

In the context of the ongoing moves on the Lokpal Bill issue, it has to be noted that a resolution of either House of Parliament, even when it is passed by a division, has limitations with regard to implementation by government. There are three types of resolutions: one is the kind that, when passed, the government will have to implement statutorily; the second type can control the procedure of the House; the third type may be an expression of the opinion of the House.

For instance, when a Bill on appropriation of grants is passed by the Lok Sabha and considered by the Rajya Sabha, it gives statutory authority to the government to withdraw amounts from the Consolidated Fund to meet the specific purpose for which Parliament makes the grant.

Article 123 of the Constitution provides that if both Houses pass a resolution disapproving an Ordinance promulgated by the President, it shall be mandatory to cease to operate it. Under Article 356, the Proclamation of President’s Rule issued for a State should be approved by Parliament through a resolution; otherwise it will cease to operate. Resolutions moved by private members are generally meant to express an opinion; even if passed it is not mandatory that the government implements it.

About the impact of a resolution passed by the UK Parliament, Erskine May states: “Every question, when agreed to, assumes the form of either an order or a resolution of the House… By its resolution, the House declares its own opinions and purposes.”

In Law of the Constitution, Dicey says: “On this basis, the resolutions of a House may be divided into the following three categories: (1) Resolutions which have statutory effect, (2) Resolutions which the House passes to control its own proceedings and (3) Resolutions which are mere expressions of opinion by the House.”

Rule 171 of Lok Sabha: A resolution may be in the form of a declaration of opinion, or a recommendation; or may be in the form so as to record either approval or disapproval by the House of an act or policy of government, or convey a message; or commend, urge or request an action; or call attention to a matter or situation for consideration by government; or in such other form as the Speaker may consider appropriate.

Practice and Procedure of Parliament by Kaul & Shakdher states: “Resolutions may be broadly divided into three categories:

“Resolutions which are mere expression of opinion of the House: Since the purpose of such a resolution is merely to obtain an expression of opinion of the House, the Government is not bound, as convention has it, to give effect to opinions expressed in these resolutions. It entirely rests on the discretion of the Government whether or not to take action suggested in such resolutions.

“Resolutions which have statutory effect: The notice of a statutory resolution is given in pursuance of a provision in the Constitution or an act of Parliament. Such a resolution, if adopted, is binding on the Government and has the force of law.

“Resolutions which the House passes in the matter of control over its own procedure: The House by such a resolution evolves sometimes its own procedure to meet a situation not specifically provided for its Rules. It has the force of law, but its validity cannot be questioned in a court of law.”

In Parliament, Ivor Jennings writes: “Private Members’ Motions then are part of the technique of propaganda. They enable the opinion of the House to be taken. The ‘opinion’ need not be representative for the attendance may be small.”

On August 10, 1978, N.K.P. Salve moved a motion in the Rajya Sabha for the appointment of two Commissions of Inquiry to look into corruption charges against the family members of the Prime Minister and the former Home Minister. This writer opposed it, for under the Commissions of Inquiry Act a motion passed by the Lok Sabha has statutory effect, and the government has to implement it. A motion passed in the Rajya Sabha was only a recommendation to be considered by the government at its discretion. However, the Rajya Sabha adopted the motion 104 to 78.

Over the next few days, the Opposition demanded the early appointment of a House committee or the Commissions of Inquiry. The Rajya Sabha Chairman asked this writer for a note, which was submitted on August 12. On August 17, Chairman B.D. Jatti gave his ruling: “Two courses, therefore, seem to be open to the government, namely, either they should seek the guidance and advice from a committee of the members of Rajya Sabha, or forthwith appoint two separate Commissions of Inquiry. I am of the opinion that in terms of the Motion, the question of appointment of a Committee by me would depend on the indication from the Government as to which one of the two alternatives in the Motion is acceptable to the government.”

L.K. Advani, the Leader of the Rajya Sabha, accepted the ruling and promised that the government would carefully consider the recommendations of the motion. There the matter ended.

Regarding a statute for the establishment of the Lokpal, the government prepared on August 4, 2011 ‘The Lok Pal Bill, 2011′ according to the Rules of Procedure and practices, and along with the President’s Recommendation under Article 117(1) and (3). This Bill was referred to the Parliamentary Standing Committee on August 8; it was required to send its report in three months. The committee advertised on August 20 inviting views/suggestions within 15 days. These have to be sent by September 4, and the committee may examine them and submit a report by November 3.

However, the agitation by Anna Hazare and the civil society team has created an urgent and critical situation. It may not be possible for the government to send on the Jan Lokpal bill or the bills propounded by others. Unless the government has made clear and satisfactory decisions on the points raised by the civil society team, the situation could go out of control.

Of the 10 Lokpal Bills introduced so far at the Centre, five were by Congress governments and the rest by non-Congress governments. The major difference among them was the exclusion of the Prime Minister by the former and the inclusion by the latter in the ambit of the Lokpal Bill. But none of them demands a constitutional amendment for the establishment of a Lokpal. A constitution amendment may require still more time; the legislatures of not less than half the States would have to ratify it, as required under the Article 368(2). This will take months.

Karnataka example

If there is a will, there is a way to enact an effective Lokpal Act even under the statutory procedures available. The Karnataka Lokayukta Act of 1985 enacted by the Ramakrishna Hegde government provided for a Lokayukta to investigate and report on allegations or grievances relating to the conduct of public servants including the Chief Minister; Ministers and members of the legislature; all officers of the State government; chairman, vice-chairman of local authorities, statutory bodies or corporations established by or under any law of the State legislature, including cooperative societies, persons in the service of local authorities, corporations owned or controlled by the State government, a company in which not less than 50 per cent of the shares are held by the State government, societies registered under the State Registration Act, cooperative societies and universities established by or under any law of the legislature.

Where, after investigation into a complaint, the Lokayukta considers that the allegation against a public servant is prima facie true and makes a declaration to that effect, and the declaration is accepted by the competent authority, the public servant concerned, if he is a Chief Minister or a Minister or a member of State legislature, shall resign his office. If he is any other non-official, he shall be deemed to have vacated his office, and, if an official, shall be deemed to be under suspension, from the date of acceptance of the declaration.

If, after investigation, the Lokayukta is satisfied that the public servant has committed a criminal offence, he may initiate prosecution without reference to any other authority. Any prior sanction required under any law shall be deemed to have been granted.

Any effective government in a functioning democracy worth its name should anticipate a problem before it becomes a crisis and solve a crisis before it lands the government and the country in a catastrophe.

(The author is an eminent parliamentarian.)

LOK PAL BILL CAMPAIGN : Prime Minister speech in the Lok Sabha debate on Corruption

Manmohan Singh, current prime minister of India.

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Following is the text of Prime Minister Dr. Manmohan Singh’s uncorrected speech in the Lok Sabha on corruption:

PRIME MINISTER : Hon. Speaker Madam, I am very happy that at long last, the House had a debate on the issue of corruption. I thank all the Members who participated in this debate.

Madam, that corruption is a major national issue is something a matter about which there is unanimity in the country. That we should collectively work to find credible approaches, credible solutions to deal with this scourge is also a matter, which unites all sections of thinking public opinion in our country.

Madam, I share that perception; and on behalf of our Government, I would like to assure this august House that in the two and A half years of period that is left to us, we will do everything in our power to clean the system of this country.

Madam, Dr. Murli Manohar Joshi is not here. Yesterday, he made a powerful speech and he turned into a personal attack on me as if I am the fountain head of corruption and that I have knowingly connived at corruptions of some of my colleagues.… (Interruptions)

MADAM SPEAKER: Nothing else will go on record.

PRIME MINISTER : Madam, I consider it beneath my dignity to enter into an argument on issues which are before the PAC, issues which are in our courts. In my seven years as Prime Minister even when the Opposition Members have accused me of many crimes, I have never used harsh language in describing the conduct of any Member of this House.

Madam, I would like to assert before this House that I have a public life in the service of this country for nearly 41 years. In these 41 years of my public life, 20 years in Parliament I have tried to serve this country to the best of my ability.

I, as Finance Minister, inherited an economy with bankrupt treasury, with foreign exchange reserves totally exhausted, with credit worthiness of our country seriously in doubt. We turned around that economy. We have ensured that this economy, the bankrupt economy that we inherited, has become one of the fastest growing economies of the world.

Madam, whatever the Members of the Opposition may say, the fact is that India is respected all over the world. I think that is because of the inherent strength of our economy, of our polity, of our democratic system but at the margin, in these seven years or as earlier as Finance Minister, I did make a small contribution in my own way to enhance the prestige of this country, and therefore, while charges are leveled against me, it hurts but I am not going to convert this forum into a forum for accusation one way or the other. All I can say is that if any wrongdoing has been done by me, I invite the Leader of the Opposition to look at my property which I may have accumulated in the last 41 years, my members of my family … (Interruptions)

I would accept the verdict of the Leader of the Opposition if they find that I have used public office to amass wealth for myself or for any member of my family.

Madam, in the course of seven years as Prime Minister, I may have made mistakes. Who is above making mistakes? To err is human but to accuse me of evil intentions, of conniving at corruption is a charge I firmly repudiate.

Madam, this is not an occasion to trade allegations to and fro and I am not going to deal with this matter as the matter is before the court or before the various Committees of Parliament and they will come with their own conclusions. I would, however, like to say that corruption is a multifaceted problem. Therefore, we, as a nation, have to find practical, pragmatic means but effective means to tackle it, and this is not merely the responsibility of the Central Government. The State Governments are responsible for over 50 per cent of the total national spending and the conduct of the State Governments, which is the one way people come in contact with Government, is essentially the responsibility of the States. There is anger in the country. There is anger about the misuse of public offices.

Therefore, both at the Centre and the States, it is our obligation to clean up the system of governance to reforming and to ensure that we leave behind for our children and grand children a system of public administration which is capable of meeting the challenge of the 21st Century. I commit our Government to doing precisely that. In my address to the nation from the ramparts of the Red Fort, I listed a number of areas where in the next couple of months I would like our Government to take initiative and I stand committed to whatever I promised from the ramparts of the Red fort.

Madam, corruption sources are numerous. Until the early 90s, the biggest single source of corruption was the licensing system, the industrial licensing system, the import controls and the foreign exchange controls. The liberalisation that we brought about has ended that part of this corruption story.

Another major part of corruption was the rates of taxation which were so exorbitant that people were tempted to enter into corrupt practices to reduce their tax liabilities. We have, I venture to suggest, ourselves and the successor Governments worked hard to simplify to streamline the taxation system and on balance there is less scope for corruption as far as taxation matters are concerned. Even though I recognise that a residual element is still there and we have to work together through various mechanisms, including goods and services tax which is now in public domain and, which is, I believe, an obligation which our country must fulfil if it wants to move forward. But, there are many other areas where corruption still persists. We have to tackle this problem from various angles.

There are Central Government programmes administered by the State Governments but there are leakages. Therefore, we must find ways and means of reforming the system of public administration so that these leakages can be plucked. Malfunctioning of public distribution has been widely commented upon. We must, therefore, devise new methodologies to ensure that Public Distribution System will be free of malpractices. This is an obligation which we can discharge only with full collaboration with the State Governments and discharge we must. But I would like this House to endorse the reform of the Public Distribution System, where the ordinary people come in contact with Government machinery or meeting the basic needs of existence of livelihood, is cleaned up.

Madam, yet another source is, where Government contracts are given in a manner which creates suspicion that something is going wrong. Therefore, we need a Public Procurement Act, as some other countries have, to streamline our contracting mechanisms in a manner in which there will be less scope for corruption in future.

Madam, in certain areas, greater competition itself will reduce the scope for corruption. But, we still know that there are areas of infrastructure where competition can at best be only limited. There is scope for regulation. We have, in the last couple of years, put in place regulatory mechanisms, but the functioning of these regulatory mechanisms, especially with regard to the management of the infrastructure, is something which requires attention. That is yet another area where we must find ways and means to streamline the regulatory system, so that there is less scope for corruption.

I could go on. But I do not want to repeat what I said from the ramparts of the Red Fort. The House has my assurance that we will work in full public glare to fulfil what we have promised. I have set up a group under Shri Pranab Mukherjee to look at the scope for reducing the amount of discretion that ministers have at the Centre. This group has made some important suggestions. They will be considered by the Cabinet and we will put in place a mechanism to reduce the scope for misuse of discretionary power or to eliminate discretionary power wherever it can be done without detriment to public interest or achievement of public good.

Madam, it is in the context of corruption that the last few weeks have seen momentous developments. Shri Anna Hazare has gone on fast. His plea is that we should adopt the Jan Lokpal Bill that has been drafted by them. The background of this whole exercise is well known to this august House. We have sittings together with the five representatives of Shri Anna Hazare, including himself, who met with our five representatives and a large measure of agreement was reached with regard to the shape of the Lokpal Bill that we should have. On certain matters there was disagreement and that disagreement could not be resolved and therefore we have referred that matter for consideration of the All Parties Committee and the said consensus was that the Government should come with its own version of the Bill and various Parties would then reflect on what to do with that Bill. We discharged that obligation. We submitted that Bill to Parliament. It has now been referred to the Standing Committee.

This Standing Committee can consider all options and we can find ways and means of ensuring that the Bill that has been prepared by Shri Anna Hazare is given due consideration by this Committee. Also, along with this, there are other ideas. There is Dr. Jayaprakash Narayan’s group which produced a Bill; there are ideas which have been mentioned in a paper by Shrimati Aruna Roy. All these matters can be discussed, debated and a consensus can be built up in the Standing Committee. We are open to all suggestions. We will work with all sections of this House to have a Lokpal, who is strong, who is effective and about which there is a national consensus.

We have produced a Bill which reflects the thinking of our Government. But we are open to persuasion and we have an open mind and when we discuss this Bill, whether in Parliament or in the Standing Committee, we will work with a single minded devotion to ensure that we leave behind for posterity a Lokpal Bill which does credit to our concerns for meeting the challenge of corruption. Madam, yesterday there was a very good meeting of all political parties. All political parties agreed that we should request Shri Anna Hazare to give up his fast and that we should find ways and means to ensure that ideas reflected in the Jan Lokpal Bill are given adequate consideration in parliamentary processes and that we should come forward with a strong, effective Bill which has the broad support of the country as a whole. I commit our Government to working with all sections of the House to realise this dream. Therefore, I urge all Members of the House to join me in making an appeal to Shri Anna Hazare that he has made his point. It has been registered with us. I respect his idealism. I respect him as an individual. He has become the embodiment of our people’s disgust and concern about tackling corruption. I applaud him, I salute him. His life is much too precious and therefore, I would urge Shri Anna Hazare to end his fast.

We will find effective ways and means of discussing the Jan Lokpal Bill along with the Government version of the Bill along with Shrimati Aruna Roy’s Bill, along with the ideas in the paper that Dr. Jayaprakash Narayan has submitted. All ideas should be discussed, debated so that we have a Bill which is the best possible Bill, which will help us to deal with the problem of corruption.

Madam, it has been mentioned to me that Shri Anna Hazare and his colleagues are very keen that their Bill should be discussed in the Parliament. I have not thought over this matter in great depth, but a thought comes to me that perhaps we could have a debate in this House on all the Bills that are in the public domain and have a discussion what are the weak points of various Bills and what are the strong points of various Bills and at the end of that debate, send the whole record for consideration of the Standing Committee of the Parliament. I have a feeling that this will meet the point that Shri Anna Hazare and his colleagues have been making that Parliament must have a chance to give its views on their Bill before sending it to the Standing Committee and therefore, I submit to this august House that this is one via media which will respect the parliamentary supremacy and, at the same time, enable Parliament to take on board ideas contained in the Lokpal Bill drafted by Shri Anna Hazare and his colleagues. Madam, I conclude by appealing to all sections of the House to join in appeal that I have made to Shri Anna Hazare that his life is much too precious. We would like him to live a long life and a happy life in the service of our people. He has registered his point. Therefore, we respectfully request him to end his fast. I think that if we do it, then this would be a befitting finale to this very constructive debate on corruption and in tackling it that has taken place in this House since yesterday.”

LOK PAL CAMPAIGN: For a strong and effective Lokpal

PRAKASH KARAT

PRAKASH KARAT

By PRAKASH KARAT IN THE HINDU

The Anna Hazare fast has seen an outpouring of support across the country. The government Lokpal Bill is unacceptable. A fresh Bill is needed for an effective Lokpal. There has been an outpouring of support all over the country in favour of the fast conducted by Anna Hazare for the Jan Lokpal Bill. The agitation has found support predominantly from the urban middle classes and a substantial section of youth belonging to the strata. There is no doubt that since the first hunger strike launched by Anna Hazare in April, the anti-corruption movement has gained momentum.

The attitude of the United Progressive Alliance government and its failure to tackle corruption, have fuelled widespread anger. First, the government is seen as being complicit in corruption. This has been the most corrupt government in the history of independent India. The paradox of a “clean” Prime Minister heading such a government has sunk into the consciousness of the urban middle classes.

The manner in which Ministers in the government defended the corrupt practices indulged in as a part of the 2G spectrum allocation, stating that there was zero loss of revenue for the government, confirmed the fears of many people that this government, steeped in corruption as it is, cannot take any meaningful action on this front. In all the cases – whether it be those related to the allocation of 2G spectrum or the conduct of the Commonwealth Games – agencies independent of the government, that is, the Supreme Court of India or, the Comptroller and Auditor General, were the ones that spurred the Central Bureau of Investigation into action to investigate and prosecute the guilty.

The problem has been compounded by the government’s act of introducing a Lokpal Bill that is weak and ineffective. The Prime Minister is excluded from the purview of the Lokpal. The method of appointment of the Lokpal will not make it an independent authority. A Lokpal set up under the provisions of this Bill would be unable to act independently. There are no provisions for the Lokpal to act against corporates and business enterprises that indulge in corrupt practices in relation to the government.

Secondly, the UPA government and the Congress leadership were in the dock for the manner in which Anna Hazare and his colleagues were arrested on the morning of August 16, even before the hunger strike was launched. The irony of a corrupt government putting an anti-corruption crusader in Tihar jail was not lost on the people. The brazen attack on the democratic rights of citizens to protest peacefully, isolated the government among the people and inside Parliament.

The ruling party decried the Hazare-led movement as an attack on Parliament and democratic institutions. Its leaders claimed that since the government has introduced a Bill in Parliament, any agitation against it is an attack on Parliament. This is specious reasoning. Political parties and citizens’ organisations have the right to oppose and agitate against any bill introduced in Parliament. The Left parties and the trade unions have opposed many bills which were anti-working class, and organised protest actions and struggles against them. Strikes have taken place against proposed legislation that seeks to liberalise the financial sector in the areas of insurance and banking.

Even the Congress opposed the Prevention of Terrorism Bill that was introduced in Parliament in 2002 by the Bharatiya Janata Party-led government. The Congress continued to oppose the legislation even after its enactment, and demanded its withdrawal.

Corruption has become a major issue and people are increasingly becoming conscious and determined to fight it. But there is need for a proper understanding of the causes for the rampant corruption that has affected all spheres of public life. The Communist Party of India (Marxist) has set out its understanding of the present malaise of corruption, the causes and the effects.

In the last two decades, with the advent of liberalisation and the neo-liberal policies, high-level corruption has become institutionalised. The neo-liberal regime has led to an exponential rise in corruption. Much of this corruption stems from the big business-ruling politician-bureaucratic nexus which has been established.

We have seen how, in the seven years of the UPA government and the earlier six years of the NDA government, policy-making has been suborned to serve the interests of big business; how privatisation and the loot of natural resources are facilitated by this nexus in operation; how the UPA government has pandered to big business – Indian and foreign – by putting in place policies and mechanisms to facilitate the transfer of resources such as land, minerals, natural gas and so on to business barons. The neo-liberal regime has affected the political system with big capital holding sway. Increasingly, politics is being converted into a business, and business is conducted through politics.

The fight against high-level corruption, therefore, requires a multi-pronged effort. There has to be an effective Lokpal authority; there has to be electoral reforms to curb money power for politics; there has to be a distinct mechanism to curb corruption in the higher judiciary through separate legislation; there has to be firm measures to unearth black money and crack down on those who have stashed away illegal money abroad in tax havens. Above all, the features of the neo-liberal regime, which encourage accumulation of capital through corrupt means and facilitate the loot of natural resources by big business, should be ended.

The main source of support for the Hazare-led movement is the urban middle class. Many of them were supporters of the liberalisation policies and the reforms ushered in by the Manmohan Singh government. Now plagued by corruption, they want a messiah to get rid of the corruption that constantly affects their daily life. They would like corruption to end, while maintaining the economic regime that has conferred certain benefits on them. Hence they are unable to see the organic link between the neo-liberal policies and the corruption that has been engendered.

The middle class propensity to be anti-political, to blame all politicians and to hold Parliament in contempt, are all on display in the Anna Hazare movement. The constant harping against all political parties and the setting of unilateral deadlines for Parliament to act have raised apprehensions about their intent and commitment to democratic values. This has only detracted from the rightness of the cause and the popular support it has evoked.

There is legitimate anger against the plutocracy that has come to dominate the political system. But this plutocracy and the corrupt nexus cannot be fought by targeting political parties and concentrating fire only on the petty corruption that citizens face in their daily lives. Given the amorphous nature of the movement that has gathered around Anna Hazare, the right-wing forces, including the corporate media, seek to support and direct the movement away from the focus on the fountainhead of corruption. There is a constant masking of the real causes of corruption in society. In a poll conducted by the Centre for the Study of Developing Societies, published recently in The Hindu, to a question ‘who is the most corrupt,’ 32 per cent of those surveyed said government employees were the most corrupt; 43 per cent said elected representatives were the most corrupt; and only 3 per cent thought businessmen and industrialists were the most corrupt. This is the dominant opinion among the middle classes.

In every major corruption scandal in the recent period, there was big business or corporates involved in the act of corrupting public servants – whether they were Ministers or civil servants. In the irregularities involved in the 2G spectrum allocation, the Commonwealth Games and the Krishna-Godavari basin gas contract, the hidden hand of big business exists. The government’s Lokpal Bill does not address this issue at all. The Jan Lokpal bill at least has clauses providing for the cancellation of contracts, and imposition of penalties on business found to have been illegally obtained by them. But the thrust of the anti-corruption movement, by and large, misses this main factor.

While a set of measures has to be taken to tackle the problem of corruption, right now the issue is the setting up of a strong Lokpal authority. The government’s Lokpal Bill has been rejected by large sections of the people; and it is not acceptable to most of the Opposition parties. In such a situation, the government should retract from its stand.

After eight days of the fast by Anna Hazare, the government has bowed down to public pressure and initiated talks with the representatives of the Hazare group. This is a welcome development. Hopefully, this will lead to a fresh or modified bill that can pave the way for an effective Lokpal.

(Prakash Karat is the general secretary of the Communist Party of India – Marxist.)

Source: http://www.thehindu.com/opinion/lead/article2393469.ece?homepage=true

JAN LOKPAL BILL- ALL PARTY MEETING APPEAL TO SHRI ANNA HAZARE TO END FAST

Anna Hazare - Delhi

Image by vm2827 via Flickr

This meeting of all parties in Parliament requests Shri Anna Hazare to end his fast. The meeting was also of the view that due consideration should be given to the Jan Lokpal Bill so that the Final Draft of the Lokpal Bill provides for a strong and effective Lokpal which is supported by a broad national consensus.

Justice Verma writes to Prime Minister on the Jan Lokpal Bill

JUSTICE J S VERMA IN THE INDIAN EXPRESS

I write this letter with some hesitation about a matter of great national significance, succumbing to the constant pressure of many eminent citizens with the background of considerable public service and experience of governance at the highest level. Naturally, they are disturbed as I am, as you must be most of all, by the urgent need to prevent the clear and present danger of the prevailing unrest crossing a Rubicon, by taking steps to end the imbroglio.

As the head of the government, you alone can, and have to, perform this onerous task. With the commitment of “We, the People of India” to a democratic polity, I am sure, the people also clamour for a peaceful solution.

The nation is focused on the urgent need to combat corruption at all levels, which most affects the common man in every aspect of daily life. The demonstration of their anger on the streets is sufficient evidence that remedial measures cannot be delayed. The rule of law, which is the bedrock of democracy, is in peril. No referendum is needed to know that the nation is unanimous on the necessity of taking prompt remedial measures, which is the prime responsibility of the government, to be discharged with the aid of citizens doing their duty. The people’s participatory role in governance is the justification for the public outcry against corruption and the inordinate delay in taking remedial steps.

The prime need of your government, therefore, is to convince the people of the government’s equal commitment on this behalf. This can be done only by you, and none else! The malaise of a lack of political will and an erosion of individual rectitude, which is the foundation of national character, has to be arrested and reversed. This, too, can be done only by you!

Anna Hazare has rendered yeoman national service by mobilising public anger against corruption, and by identifying the causes of the malaise that needs to be cured. The next important step now is to decide on the way forward, and to move in that direction. Not merely curative or punitive, but preventive measures also have to be taken. Obviously, this can be done only in a congenial environment, with the government engaging with all sections of civil society, and donning a thinking cap. It is the government’s responsibility to create this environment by gaining the confidence of all of civil society.

No one has, rightly, doubted that the final act of enacting legislation has to be performed by the legislature; and then the law has to be faithfully implemented by the executive under constant public gaze and judicial scrutiny. This is, undoubtedly, our constitutional scheme, to which everyone is committed.

What is the way forward now, at this stage?

It is unnecessary, in this context, to reiterate my views on some of the contentious issues relating to the jurisdiction of the proposed Lokpal and the contents of the existing drafts of the bill. Substantially, they are already in the public domain. I confine this letter to my suggestions for your consideration about the way forward. These suggestions have crystallised after due reflection, and also consideration of the responses of some equally concerned eminent citizens. These are stated hereafter.

Mr Prime Minister, after your government constituted a joint committee with a few members of the civil society to draft the Lokpal bill, the logical corollary of that decision has to be accepted. This means that the views of the entire civil society must be presented by your government, along with the government’s draft, to Parliament for consideration during the debate on the bill. In an “inclusive” democracy, which undoubtedly our republican democracy is, every section of civil society, and every individual, has a participatory role in governance, including policy-making. The demand of Anna Hazare to send to Parliament the draft bill prepared by his team cannot, therefore, be denied. This I say, notwithstanding my differences with some points in that draft, and the mode of his protest.

This procedure has to be equally applied to the views and drafts of other sections of civil society, including individuals, if any, offering any serious suggestions. I am also of the view that the government needs to hold a few national consultations to give all sections of civil society an opportunity to participate in the exercise by offering their views for due consideration during the debate in Parliament. This exercise must be performed within a reasonable time.

Accordingly, the drafts already prepared by sections of civil society and in the public domain, namely, those by the Anna Hazare team, the Aruna Roy team and the Jayaprakash Narayan team may be presented to Parliament as the first step in this direction, to end the imbroglio. The additional views, offered in national consultations, can follow. This is the logical corollary of your government’s decision to involve civil society in the preparation of the draft Lokpal bill. Having commenced that process, it cannot be arrested midway or after part performance.

May I also suggest, in all humility, that this plan of action (if approved by you) needs to be conveyed by you directly to the nation in a broadcast through the active 24×7 media, which is busy these days disseminating information only on this issue, for its due impact.

The writer is a former Chief Justice of India  express@expressindia.com

The government against satyagrahas, then and now

Though Gandhi never called himself a Hindu nat...

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ERA SEZHIYAN IN THE HINDU

The events that marked the supreme authority of the British regime in India are now being blatantly followed by the United Progressive Alliance government. But time is running out.The term ‘satyagraha’ (satya is truth, and agraha is firmness) was coined by Gandhiji to designate his struggle of ‘passive resistance.’ He initiated it in South Africa during his agitations from 1894 onwards against the oppressive British regime there.

As president of the Congress in 1924, Gandhiji transformed the party into a fighting organisation, and launched several satyagraha agitations to involve people in constructive programmes. The Calcutta Session of the party (in December 1928) gave an ultimatum to the British government that unless Dominion status was given to India by December 31, 1929, the Congress would launch a Civil Disobedience Movement. When no favourable response was received, at midnight on December 31, 1929, the Indian National Congress issued the Declaration of Independence, or Purna Swaraj. The party’s Working Committee gave Gandhiji the responsibility to launch the first act of civil disobedience.

Salt satyagraha

Gandhiji chose to begin with a satyagraha against the Salt Tax imposed by the British. The Salt Act of 1882 gave the British the monopoly on the manufacture of, and collection of tax on, salt. Several leaders including Jawaharlal Nehru, the Congress president at that time, had felt that there were more important issues to be taken up as a part of the demand for full independence. But Gandhiji felt that the salt tax was a richly symbolic choice since salt was something that was used by nearly everyone in India. He believed that the protest would dramatise the demand for Purna Swaraj in a way that would be meaningful to even the least Indian.

On March 2, 1930, Gandhji wrote to Lord Irwin, the Viceroy, offering to stop the march if 11 demands were met, including a reduction in land revenue assessments, an end to the enormous exploitation of the people, and the misuse of public funds by the British. Gandhiji added: “If my letter makes no appeal to your heart, on the eleventh day of this month I shall proceed with such co-workers of the Ashram as I can take, to disregard the provisions of the Salt Laws. As the Independence Movement is essentially for the poorest in the land, the beginning will be made with this evil tax.”

The Viceroy’s reply simply expressed the opinion that Gandhiji was “contemplating a course of action which is clearly bound to involve violation of the law and danger to the public peace.” Gandhiji selected the first batch of 78 satyagrahis, all members of the Sabarmati Ashram. On March 6, Sardar Vallabhbhai Patel set out to make arrangements in the villages and regions through which the Dandi March would pass. On March 7, Sardar Patel was arrested as he was about to address villagers at Kheda; he was sentenced for three months. There was speculation that Gandhiji and the satyagrahis too might be arrested.

On March 12, at 6.30 a.m., Gandhiji started off with his satyagrahis on the Dandi March. After covering 241 miles in 24 days, they reached Dandi on April 5. A large number of journalists from India and abroad had camped there. For them, Gandhiji wrote a short note: “I want world sympathy in this battle of Right against Might — Dandi, M.K. Gandhi.” On the morning of April 12, Gandhiji raised a lump of salt in his hand and declared: “With this, I am shaking the foundation of the British Empire.” He then boiled it in sea water, producing salt illegally. Gandhiji’s satyagraha became a mass satyagraha throughout India. Then, the government resorted to repressive laws. Jawaharlal Nehru was arrested on April 14, and was sentenced to six months’ imprisonment under the Salt Act. On April 28, C. Rajagopalachari was arrested, to be sentenced to six months’ rigorous imprisonment after he and his satyagrahis entered the Coromandel coast at Vedaranyam.

While these leaders were being arrested, Gandhiji was going to other places near Dandi to defy the salt law. The climax of the campaign came when Gandhiji was arrested on May 4, 1930. He was resting at the Karadi Camp three miles from Dandi. At midnight, the District Magistrate, along with several police officers armed with pistols and 30 policemen bearing rifles, entered the room. Gandhiji asked about the charges under which he was being arrested. The Magistrate said it was under Regulation 28 of 1927 which allowed imprisonment without trial. At 1.20 a.m. the police put him in a lorry on the way to Yerwada Jail in Poona.

Gandhiji’s arrest and internment led to hartals and strikes across in India, and there were sympathetic demonstrations all over the world. On May 12, a second batch of satyagrahis led by Abbas Tyabji was arrested. On May 21, Sarojini Naidu and Manilal Gandhi were arrested; some 2,500 satyagrahis being led by them were beaten ruthlessly by 500 policemen commanded by British officers. In this action, four persons were killed; more than 300 persons were hospitalised with severe injuries. Still the satyagrahis observed absolute non-violence and discipline.

Reports on Gandhiji’s campaign during the Dandi March appeared each day in 1,350 newspapers across the world. Time magazine declared him Man of the Year, commenting on his march to the sea “to defy Britain’s salt tax as some New Englanders once defied the British tea tax.” The Press Ordinance promulgated by the Irwin regime caused 67 Indian newspapers and 55 printing presses to be shut down. Over 80,000 Indians were jailed without trial under the Salt Law.

The civil disobedience movement continued until early 1931. The rest is part of the political history of India — from the Gandhi-Irwin Pact leading to the Second Round Table Conference, to the Quit India Movement, and the emergence of independent India.

The Salt Satyagraha challenged the very existence of the British regime in India. Sir Charles Innes, who was a provincial Governor, wrote thus about the events of 1930 struggle: “England can hold India only by consent. We cannot rule it by sword.” It is true that the 1930 Salt Satyagraha was not successful with respect to many of its aims and demands. However, it was a historic turning point: thereafter every political move on the part of the Congress was to assert Purna Swaraj as the basic demand.

Hazare’s satyagraha

The events that marked the supreme authority of the British regime in India — and the stupid atrocities committed by it — are now being blatantly followed by the United Progressive Alliance government.

Anna Hazare’s movement has become a symbolic protest against the most corrupted government of free India. At least, Lord Irwin’s government arrested Gandhiji under a primitive Salt Act after the event. The high lords of the UPA government, living in the ivory towers of power and authority, sent the police to arrest a person who was planning to observe a peaceful agitation — without rhyme or reason. It was a mockery of governance to arrest a person in the morning and to order him to go out 12 hours later.

While Gandhiji invited openly the press in India and abroad to support his ‘battle for Right against Might,’ the UPA government, creating crisis after crisis, blames the media for every discord that is created.

Demand for ombudsman

During the Lok Sabha Debates on Demands for Grants of the Ministry of Law on April 3, 1963, Law Minister A.K. Sen said on the demand for an Ombudsman in India that it was a matter for the Prime Minister to decide. However, he observed: “In this country, my own view is that to make it effective, a constitutional provision should be made, as of the Election Commissioner or of the Comptroller and Auditor General. I think that if you really want to set up an effective organisation like Ombudsman with over-riding powers and spreading over the entire field of governmental activity, you will have to give him some constitutional position.”

The Lokpal Bill was introduced in May 1968. When it was considered on August 13, 1969 in the Lok Sabha, S.M. Joshi said: “Prime Minister Jawaharlal Nehru speaking at the AICC at Jaipur on 3 November 1963 said that the system of Ombudsman fascinated him; for the Ombudsman had overall authority to deal with charges even against the Prime Minister and confidence of all.”

As far as I know, that is the only remark on the subject recorded in Parliament Debates. None from the government side contradicted that statement.

While it is desirable to establish Lokpal as a constitutional authority, I feel that the government and the civil society team should come around to some sort of a bill. Hitherto the members of the public who have been supporting Anna Hazare have been non-violent and disciplined. In the event of a critical situation arising, things could turn ugly. After some time, amendments could be brought in to make the legisaltion more effective.

If UPA-II is certain of the support of Parliament and the people to its position on the issue, let it go to the electorate, or conduct a referendum on the specific issue of the Lokpal Bill.

(Era Sezhiyan is an eminent parliamentarian and author.)

http://www.thehindu.com/opinion/op-ed/article2389518.ece