PRIME MINISTERS STATEMENT ON THE LOKPAL CAMPAIGN AND ANNA HAZARE ARREST

Manmohan Singh, current prime minister of India.

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Following is the text of the statement made by the Prime Minister, Dr. Manmohan Singh in the Lok Sabha today:

Hon’ble Speaker,

It is my painful duty to report to this House certain events that took place yesterday in New Delhi.

 Hon’ble Members are aware that after extensive consultations and discussions, including deliberations in a Joint Drafting Committee and a meeting of all political parties represented in Parliament, the Government has introduced a Bill in the Lok Sabha on the setting up of Lok Pal. The Bill has been referred to the Standing Committee concerned.

Notwithstanding the introduction of the Bill, Shri Anna Hazare and his supporters have persisted with their demand that the Jan Lok Pal Bill drafted by Shri Anna Hazare should be introduced in Parliament and that the Jan Lok Pal Bill should be the Bill that must be passed by Parliament. In support of this demand, Shri Anna Hazare had announced some time ago that he would undertake an indefinite fast beginning August 16, 2011.

On August 2, 2011, an application was made to Delhi Police by an organisation called India Against Corruption for permission to hold a month-long fast beginning August 16, 2011 at New Delhi. Delhi Police held discussions with the applicants in order to identify a suitable place and to formulate the conditions under which the permission could be granted for holding a fast at that place. Eventually, on August 13, 2011, Delhi Police informed the applicants that permission would be granted for the protest at Jai Prakash Narayan Park, near Ferozshah Kotla, subject to permission being granted by the land owning agency and subject to certain conditions.

 Delhi Police also informed the applicants that they would have to give an undertaking to abide by the conditions.

However, on August 15, 2011, the organisers refused to accept six of the conditions, including the condition that the protest fast would be limited to three days. Hence, Delhi Police informed the applicants that, since they had declined to accept some of the conditions and refused to give the undertaking to abide by all the conditions, permission would not be granted to hold the protest fast at Jai Prakash Narayan Park. Prohibitory orders under section 144 CrPC were also imposed on August 15, 2011 in and around Jai Prakash Narayan Park and some other areas.

On the evening of August 15, 2011, Shri Anna Hazare, through public statements, made it clear that he and his supporters would converge at Jai Prakash Narayan Park and defy the prohibitory orders under section 144 CrPC. Yesterday morning, Delhi Police reviewed the situation. Delhi Police came to the conclusion that it was clear that Shri Anna Hazare and his supporters would commit a cognizable offence and there was a likelihood of a breach of peace. Hence, Shri Anna Hazare and six others were arrested, as a preventive measure, under section 151/107 CrPC. They were taken to the Delhi Police Officers’ Mess at Alipur Road and, subsequently, produced before a Magistrate. Delhi Police did not seek the police remand of the arrested persons. The Magistrate offered to release the arrested persons on their personal bonds subject to the condition that they would undertake not to violate the prohibitory orders. However, Shri Anna Hazare and others refused to give such an undertaking or furnish personal bonds. Hence, the Magistrate remanded the arrested persons to 7 days’ judicial custody.

Meanwhile, during the course of yesterday, about 2,603 persons were detained in Delhi when they were proceeding to or were in areas where prohibitory orders under section 144 CrPC were in force. All of them were released later in the evening yesterday.

Late yesterday evening, Delhi Police received information that Shri Anna Hazare intended to move the Supreme Court challenging the orders of Delhi Police. Delhi Police also received information that the petition was likely to be mentioned before the Supreme Court on Wednesday, i.e. today, for urgent hearing. Since there were reasonable grounds to believe that Shri Anna Hazare had opted to seek legal remedies, Delhi Police did not apprehend any imminent breach of peace or imminent disturbance to tranquillity if the arrested persons were released. Hence, Delhi Police moved the Magistrate concerned to review his earlier order and the Magistrate was pleased to release Shri Anna Hazare and the other arrested persons at about 7 p.m. yesterday. The jail authorities informed Shri Anna Hazare and others that orders for their release had been received. However, Shri Anna Hazare and others (except one) declined to leave the jail premises unless the Government gave an undertaking that they would be permitted to hold their protest fast at Jai prakash Narayan Park without any condition.

Our Government acknowledges the right of citizens to hold peaceful protests. In fact, Delhi Police have allowed several such protests, but in each case appropriate conditions have always been imposed and the organisers were always required to give an undertaking to abide by all the conditions. Shri Anna Hazare and his supporters would have been allowed to hold their protest fast if they had accepted the conditions under which the permission was granted and had undertaken to abide by the conditions. Since they declined to do so, Delhi Police was obliged to refuse permission to hold the protest fast.

The Government wishes to stress that the issue before the nation is not whether a Lok Pal Bill is necessary or desirable. All of us in this House are agreed that a Lok Pal Bill must be passed as early as possible. The question is, who drafts the law and who makes the law? I submit that the time-honoured practice is that the Executive drafts a Bill and places it before Parliament and that Parliament debates and adopts the Bill with amendments if necessary. In the process of adoption of the Bill, there will be opportunities for Shri Anna Hazare and others to present their views to the Standing Committee to which this Bill has been referred by the Hon’ble Speaker. The Standing Committee as well as Parliament can modify the Bill if they so desire. However, I am not aware of any constitutional philosophy or principle that allows any one to question the sole prerogative of Parliament to make a law. In making a law on Lok Pal, the Government has faithfully adhered to the well-settled principles. As far as I am able to gather, Shri Anna Hazare questions these principles and claims a right to impose his Jan Lok Pal Bill upon Parliament.

I acknowledge that Shri Anna Hazare may be inspired by high ideals in his campaign to set up a strong and effective Lok Pal. However, the path that he has chosen to impose his draft of a Bill upon Parliament is totally misconceived and fraught with grave consequences for our Parliamentary democracy.

Our Government does not seek any confrontation with any section of the society. But when some sections of society deliberately challenge the authority of the Government and the prerogative of Parliament, it is the bounden duty of the Government to maintain peace and tranquillity. Delhi Police, as the authority charged with the responsibility, took the minimum steps necessary to maintain peace and tranquillity in the capital city. Inevitably, though unfortunately, it led to the arrest and subsequent release of Shri Anna Hazare and some of his supporters. I sincerely hope that the incidents of yesterday will not be repeated today or in the future.

I should also make it clear that the issue between the Government and Shri Anna Hazare is not one of different attitudes to fighting corruption. In my independence day address, I spoke at length about the need to deal effectively with corruption. I would like to assure the House that we are determined to provide a Government that is transparent, accountable and responsive at all times and determined to fight corruption. But as I said on 15 August at the Red Fort, there is no magic wand by which, in one stroke, we will get rid of menace the of corruption. We have to work simultaneously on several fronts. In my 15 August address, I have outlined some of the measures we intend to put in place to strengthen our fight against corruption. I invite all sections of this House to join hands with us to deal with the cancer of corruption.

 With respect to the events of yesterday, I will only say that a functional democracy must allow multiple voices to be heard. But differences of opinion must be resolved thorough dialogue and consensus. Those who believe that their voice and their voice alone represents the will of 1.2 billion people should reflect deeply on that position. They must allow the elected representatives of the people in Parliament to do the job that they were elected for.

India is an emerging economy. We are now emerging as one of the important players on the world stage. There are many forces that would not like to see India realize its true place in the Comity of Nations. We must not play into their hands. We must not create an environment in which our economic progress is hijacked by internal dissension. We must keep our mind focused on the need to push ahead with economic progress for the upliftment of the ‘aam aadmi’.

I appeal to all sections of this august House to ensure that the Government and its processes, and the Parliament and its processes function smoothly and effectively. There is no substitute for that. If some people do not agree with our policy, there will be a time when they will have an opportunity to present their points of view to the people of India.

I request all political parties to ensure that Parliament functions smoothly. There are very important legislative measures that are required to be passed. If we do not pass them, we will do great injustice to the people of India and in turn hurt the ‘aam aadmi’. We are willing to debate every issue in Parliament, and we have demonstrated that we are co-operating with the Opposition in every possible way to ensure that Parliament functions smoothly.

We as elected representatives of our people should do nothing to weaken our people’s faith in the capacity of our democracy, our institutions and our social ideals and values to overcome all difficulties. We should have faith that we can build a promising future for ourselves. Let us unite in that faith.”

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Effective Lokpal not in sight

People determined to root out corruption

by Justice Rajindar Sachar (retd) IN THE TRIBUNE

AS expected, the government and Anna Hazare’s team have disagreed on vital points relating to the institution of Lokpal. The question of inclusion of Prime Minister within the ambit of the Lokpal is being falsely blown out of proportion by government apologists. The Prime Minister, though head of the government, is only the first among equals. In a democratic country, a political vacuum does not arise as the Cabinet has a collective responsibility. Also, our past experience does not show that all our Prime Ministers have been angels. Serious credible accusations have been made against them. The regret always was that in the absence of an independent mechanism like the Lokpal to enquire into these allegations, the ruling party was able to successfully scuttle any honest independent enquiry.

Prime Minister Manmohan Singh has in public consented to being included within the jurisdiction of the Lokpal as had his predecessor A.B. Vajpayee — the supposed concern of the ministers is puerile, being more loyal than the king.

The stand of ministers for the exclusion of Prime Minister is so incongruous when it is noted that the Standing Committee on Law and Justice, headed by Congress spokesperson Jayanthi Natarajan, has said that the Bill should cover Prime Minister also.

This cynicism is increased when we find that Mr Digvijy Singh, the self- proclaimed alter ego of Mr Rahul Gandhi, supports the Lokpal having jurisdiction over the Prime Minister — people are legitimately hoping that Mr Gandhi would also indicate his position on a matter which is causing such a division in society.

The suggestion to exclude the Prime Minister is sought to be justified by ministers by taking the puerile plea that the Prime Minister continues to be under the jurisdiction of the Prevention of Corruption Act. It is surprising that ministers are comfortable for the Prime Minister being prosecuted at the report of junior police officials but not at the instance of a high-powered body like the Lokpal. Is this not the unspoken premise that under the Corruption Act the CBI will have to get sanction from the government? But which subordinate will dare to sanction the Prime Minister’s prosecution? For heaven’s sake, do not play joke with the people and be reminded of what John Adams, one of the founding fathers of the US Constitution, said, “The people have a right, an inalienable, indisputable, indefeasible, divine right to that most dreaded and envied kind of knowledge — I mean, of the character and conduct of their rulers.”

Another laughable justification by ministers is that the exemption will not be applicable after the Prime Minister has remitted office — this is like locking the stable after the horses have run away. Incidentally, even the discredited toothless draft Lokpal Bill, 2010, included the Prime Minister and members of Parliament.

The inclusion of the higher judiciary consisting of judges of the Supreme Court within the purview of the Lokpal is undesirable. I am conscious of the shame that some in the higher judiciary have polluted the institution. I am only suggesting a separate National Judicial and Accountability Commission. Call it the Lokpal (Judicial) Commission with the same powers as the Lokpal. This will serve the purpose and still keep the distance between the executive and the judiciary as mandated by the Constitution.

The rhetoric of Mr Kapil Sibal challenging anyone to give an example that “which PM in office anywhere has been prosecuted in the world”, I am sorry at this ignorance. Possibly, this is due to Mr Sibal not being assisted by his usually competent juniors who were with him when he was appearing in courts. Now, possibly, he is being ill served by his public relations officer — otherwise he would have been told that the present Prime Minister of Italy is being prosecuted before a magistrate on charges of corruption, having mafia links and deviant sexual behaviour. In France, proceedings were started against the then President Chirac for misappropriation of public money. Also in Israel, a former President has been sentenced to imprisonment for his deviant sexual behaviour by a magistrate.

The near contempt of the masses protesting at the scourge of corruption is shown by Mr Sibal comparing Anna Hazare to “Pied Piper of Hamlin”. Mr Sibal cautiously did not complete the story because those who were said to have followed the Pied Piper were rats, and following the Piper they just drowned in the sea. I need not comment on such crude and insulting comparison of the masses who are waging a struggle against corruption.

The government’s spurious claim by purporting to project Parliament as the real sovereign is fallacious. Dicey, the British constitutional authority, says, “Electorate is, in fact, the sovereign of England and the conduct of the legislature… should be regulated by understandings of which the object is to secure the conformity of Parliament to the will of the nation.”

Another heresy put forth against the holding of protest meetings by people to force the government to pass worthwhile legislation is that it is undemocratic and the only resort people have is to try to persuade the legislators to pass a particular law, and if they do not agree, then they should try their chance during elections. This is sheer heresy and negated by the Supreme Court (1960) in Dr Lohia’s case, who was arrested for asking farmers not to pay the increase in canal water rates to the UP government.

Ordering the release of Dr Lohia, the court said, “We cannot accept the argument of the learned Advocate-General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set-up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order. If this argument without obvious limitations be accepted, it would destroy the right to freedom of speech, which is the very foundation of democratic way of life.”

A restrained approach by the government alone can prevent a collision with the masses, who are determined to vigorously pursue their struggle for an effective Lokpal.

The writer is a former Chief Justice of the Delhi High Court.

http://www.tribuneindia.com/2011/20110704/edit.htm#4

Lokpal bill and the Prime Minister

A cropped Manmohan Singh version of File:IBSA-...

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ANIL DIVAN IN THE HINDU

When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

The Indian citizenry is up in arms against corruption at the highest levels of government. Anna Hazare‘s movement has caught the people’s imagination. The former President, A.P.J. Abdul Kalam, has pitched in and called upon the youth to start a mass movement against corruption under the banner “What can I give?” (The Hindu, June 27, 2011).

According to a CRISIL report (The Hindu, June 29, 2011), inflation has caused the Indian public to be squeezed to the extent of Rs. 2.3 lakh crores. According to the Comptroller and Auditor General of India (CAG), the estimate of loss to the exchequer owing to the 2G spectrum scam is Rs. 1.22 lakh crores. That corruption is a disease consuming the body politic is a fear expressed by dignitaries in India over many years. As far back as 1979, Justice V.R. Krishna Iyer observed in a judgment in his inimitable style: “Fearless investigation is a ‘sine qua non’ of exposure of delinquent ‘greats’ and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum.”

Mark the words: fearless investigation by an independent investigative agency against delinquent ‘greats’. A good Lokpal bill has to be nothing less.

It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny. It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.

The Constitution

Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers. Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only “during his term of office.”

So what is the principle behind such immunity being given? The line is clearly drawn. Constitutional heads who do not directly exercise executive powers are given immunity as heads of state. Active politicians such as Ministers, who cannot remain aloof from the hurly-burly of electoral and party politics, ethical or unethical, honest or corrupt, are not given any immunity. They are subject to penal laws and criminal liability.

The basic structure of the Constitution clearly denies immunity to the Prime Minister.

Internal Emergency

During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers. She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.

The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha. The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.

The Bill sought to amend Article 361 by substituting sub-clause (2) thus: “(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act.”

The attempt to give life-time immunity from criminal proceedings for acts done during and even prior to assuming office, of the President, the Governor and additionally the Prime Minister, did not materialise.

Foreign jurisdictions

In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced. In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.

The following are some of the main arguments against bringing the Prime Minister under the Lokpal’s scrutiny. The first one runs thus: “The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don’t need him covered under Lokpal.” This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.

What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister’s Office (PMO). Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the ‘political suspects’ themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government’s prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI’s anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.

Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government. Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?

Thirdly, it is argued that bringing the Prime Minister under the Lokpal’s scrutiny would mean a parallel government being put in place. This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.

William Shakespeare wrote: “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries.” There is a tide in the affairs of this country and there is a great opportunity to promote good governance through a powerful and independent Ombudsman. India’s economic reforms, for which the Prime Minister deserves approbation, should not be derailed at the altar of scams and corruption. Will his leadership ride on the tide of fortune and take the country forward to greater heights?

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. E-mail: abdsad@airtelmail.in)

http://www.thehindu.com/opinion/lead/article2148073.ece

Justice V.R. Krishna Iyer, former Judge of the Supreme Court, writes in the context of the article by Anil Divan headlined ‘Lokpal bill and the Prime Minister,’ published on July 1:

Lord Acton, the great British jurist, rightly said: “Power tends to corrupt and absolute power corrupts absolutely.” The Prime Minister is the custodian of the considerable state power. He has to be under public scrutiny.

Therefore I have clearly expressed the view that if power is to be subject to public investigation and scrutiny, he has to be within the ambit of the Lokpal Bill and cannot be exempted from it. Likewise, our judiciary is the watchdog of the Executive. People look up to the judges to ensure that the Executive does not misbehave. The judiciary must be accessible to every citizen who has a grievance against the robed brethren. When Parliament resorts to misconduct and violates the Constitution, people appeal to the judges for a remedy. In this view, the judges are sublime and must have control over the Executive and the parliamentary process. Both these instruments are under the Lokpal’s proposed jurisdiction. There is no case of exemption of these authorities. I am sorry that some high Chief Justices have expressed a different view. I disagree. The greatest menace before India today is that the judiciary itself is corrupt and no action is being taken. There must be a militant, active nationwide movement against corruption. A powerful instrument must be set up for this if the confidence of the people is to be preserved.

The judiciary and the Prime Minister shall be under the Lokpal. The Lokpal itself must be of the highest order and should be plural in number. The Prime Minister and the judiciary shall be like Caesar’s wife: above suspicion.

Manmohan ignored ruling on CAG’s rights

Manmohan Singh, current prime minister of India.

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THE HINDU

In 2005, Madras HC said watchdog could brief media

In questioning the propriety and legality of the Comptroller and Auditor-General holding a news conference on its 2G report, Prime Minister Manmohan Singh ignored not only past precedents but also a court ruling upholding the CAG’s right to do so. In his interaction with a group of editors on Wednesday, Dr. Singh criticised the press meet held by the CAG in early January after the report on 2G spectrum irregularities was tabled in Parliament. He said: “It [has] never been in the past that the CAG has held a press conference. Never in the past has the CAG decided to comment on a policy issue. It should limit the office to the role defined in the Constitution.”

But a 2005 judgment of the Madras High Court, upholding the right of CAG and its functionaries to brief the media on the contents of reports prepared by them and presented before the relevant Legislature, leaves no ambiguity on this count. In P.G. Narayanan vs CAG (W.P.No.23408 of 2004 [2005] RD-TN 714), the High Court dismissed the contention of the petitioner, an MLA belonging to the ruling AIADMK, that the Tamil Nadu Accountant-General had ‘misused his authority’ by going to press on an audit report pertaining to the State. The court noted that the CAG had stated in his affidavit “that specific instructions have been given by him to all the Accountant-Generals (Audit) of the States to explain the salient features of the Audit Report to the Press to make the public know about the same after the Audit Report is placed before the respective Legislative Assemblies.”

The veiled criticism by the Prime Minister of the institution of the CAG reflects the unease within the government over the recent CAG reports raising questions of serious irregularities in several deals. The example of the CAG report on the telecom spectrum policy, which gave different estimates for the notional loss to the exchequer on the 2G front, illustrates the point best.

Besides questioning the correctness of the CAG in interacting with the media, Dr. Singh raised two other issues related to the institution. The Prime Minister said the CAG had no jurisdiction to examine issues on policy matters and also contended that the supreme audit institution of the country should take into account the ‘uncertain’ environment under which the government is compelled to take decisions.

“We live in a world of uncertainty and ex-post whether it is the Comptroller and Auditor-General, whether it is a parliamentary committee then they analyse post facto. They have a lot more facts which were not available to those who took the decision … We take decisions in a world of uncertainty and that’s the perspective I think Parliament, our CAG and our media must adopt if this nation is to move forward.” CAG sources declined to respond to the Prime Minister’s comments.

But speaking to The Hindu in the past, they rejected the allegation that the 2G report went beyond their mandate in any way.

Can Lokpal be investigator, prosecutor, jury and judge?

DHANANJAY MAHAPATRATIMES OF INDIA

Just 70 days ago, the UPA government succumbed to the pressure exerted by Team Anna, which posed as civil society being supported by advocates and actors, ex-babus, bloggers and twitteratti, swamis and social activists. The high decibel show at Jantar Mantar numbed the government’s political and constitutional thinking. Foxed by the red herring of Team Anna’s popularity, the Manmohan Singh government quickly agreed for a joint committee to draft the Lokpal Bill only to realise that the taste of the pudding is in its eating. Public placating of Team Anna was easy, but translating their exasperating demands into a bill was legally excruciating.

Though the Congress has now stressed that the government will not succumb to Team Anna’s pressures, the draft prepared by both sides, despite their inherent disagreements, has one thing in common. Representatives of both Team Anna and government have perceived more or less a Lokpal who will investigate, prosecute and then change cloaks to stand as jury and judge. This all-rolled-into-one power centre is abhorrent to any democratic system of governance, which gets its legitimacy from a fair system of justice delivery.

Why did the government first succumb to Team Anna, then criticise it and now question its representatives’ character? Does it reflect the vacillating mindset of the two power centres — the PM and the Congress president? Why did ministers rush to discuss with Team Anna on the one hand while on the other, a senior party leader publicly criticised the move? He also went around saying it was time for a young PM?

Manmohan Singh will celebrate his 80th birthday on September 26 next year. Rahul Gandhi will turn 42 in June 2012. Singh has not contested a Lok Sabha election, a victory in which transforms a candidate into a people’s representative. Rahul has won twice from Amethi. It is difficult to judge Singh’s feelings on the vacate-the-chair talk from within Congress circles when he is perceived to be engaged in finding solutions to the most trying situations, both political and social. But what must be worrying the PM and the entire political class is the confrontational build up between the representatives of people and the ‘civil society’ to garner space in the legislative arena in the name of participatory democracy.

Can self-proclaimed representatives of civil society be recognised as harbingers of new legislative framework when the Constitution recognises only the Parliament and Assemblies as law-makers? In the early 1970s, the famous Keshavananda Bharati case was argued before a 11-judge bench of the Supreme Court on Parliament’s power to amend the Constitution. The Indira Gandhi government had argued that a political party enjoying two-thirds support in both Houses of Parliament could delete all provisions.

The bench’s shock and dismay forced the government to mould its arguments, “Though legally, there is no limitation to the amending power, there are bound to be political compulsions which make it impermissible for Parliament to exercise its amending power in a manner unacceptable to the people at large.” The apex court in Keshavananda case [1973 (4) SCC 225] said, “The strength of political reaction is uncertain. It depends upon various factors such as political consciousness of people, their level of education, strength of political organisation in the country, the manner in which mass media is used and finally, the capacity of the government to suppress agitation.

“Hence, people’s will to resist an unwanted amendment cannot be taken into consideration in interpreting the ambit of the amending power. Extra-legal forces work in a different plane.” The SC refused to accept the argument saying it was difficult to fathom the depth and weight of people’s wish when it came to change in law. In the present context, people are exasperated by the level of corruption, but is it their wish to have a all-in-one Lokpal? Are extra-legal forces true reflectors of the people’s wish and will?

http://timesofindia.indiatimes.com/india/Can-Lokpal-be-investigator-prosecutor-jury-and-judge/articleshow/9007025.cms

Threshold Population to Determine Status of Minority

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LAW RESOURCE INDIA NEWS

The Government has said that no policy regarding threshold percentage of population beyond which a community can no longer be called a religious minority has been laid down. Giving this information in written reply to a question in the Parliament recently, the Minister for Minority Affairs, Shri Salman Khurshid said that the provision for declaration of a religious minority community is provided under Section 2 (c) of the National Commission for Minorities Act, 1992. Under this provision the Government of India, Ministry of Welfare vide a Gazette notification dated 23.10.1993 had declared five communities as Minority Communities which are as under:

(1) Muslims
(2) Christians
(3) Sikhs
(4) Buddhists
(5) Parsis (Zoroastrians)

Shri Khurshid informed the House that Supreme Court in the case of T.M.A Pai Foundation Vs. State of Karnataka, reported in AIR 2003 SC-2003, had laid down that for the purpose of determining a minority, the unit will be State and not whole of India. The Hon’ble Supreme Court in CA No.4370/99 (Bal Patil & Another Vrs Union of India) held, inter alia, that statistical data showing that a community is numerically a minority cannot be the sole criterion; the declaration as minority has to be done on consideration of social, cultural and religious condition of that community. A review petition filed by Shri Bal Patil was considered by the Supreme Court on July 9, 2010 and referred to a larger bench and is pending before the Supreme Court for final hearing.

Undermining Parliament won’t do

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A TRIBUNE CHANDIGARH SPECIAL

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

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