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Monday, May 9, 2011

(Published in Sify.com on 10 May, 2011, retrieved from http://www.sify.com/news/the-lokpal-bill-will-come-the-question-is-in-what-form-imagegallery-national-lfjx2Iccgec.html)


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In an exclusive interview with Nandini Krishnan on the eve of the third meeting of the Lokpal Bill drafting committee, Karnataka Lokayukta and a member of the civil society panel, Justice Santhosh Hegde speaks about the meetings held so far, issues that could cause friction within the joint drafting committee, and, with characteristic humour and irreverence, explains the finer points of the provisions in the proposed draft.



When you last spoke to us, a few months ago, you spoke of how the Lokpal Bill has been pending for over four decades. Are you surprised at the sudden momentum in this direction?


I’m not surprised. I expected it in the sense that every government wants to prove that it is more honest than the previous government. Right? Therefore, they make a sham attempt to create the institution called Lokpal.


And it has been attempted seven times before, in 42 years. The first Lokpal draft Bill was prepared in 1968, and in between, intermittently, they are preparing it.


But it’s not been brought before the Parliament. They generally give an impression to the people that they are very serious about creating this institution of Lokpal.


Are you optimistic this time round, or do you think it’s yet another sham attempt?


This time, for the first time, the civil society has become involved, and so there is a sort of pressure on the government to have a Bill which is not only for namesake, but also an effective one.


Because of Anna Hazare, the government has had to involve the members of the civil society also in the discussion. We have already met twice, and three more meetings are scheduled before the 30th of May.


And I’m optimistic that the Bill will come, but the question is, in what form? Because we can only discuss, and beyond that, we cannot do anything about it.


But the response that was shown to Anna Hazare’s movement, I’m sure, has had some effect on the government; therefore, it will not be a skeletal Bill. We’ve drafted a Bill which we’re using for the purpose of our input, and we’ll also persuade the government to draft a proper Bill.


At the press conference after the second meeting, there seemed to be a lot more harmony between the two sections of the draft committee. Has there been a definite, conscious move in this direction, or is it that everyone has reconciled themselves to the situation?


Well, I think that’s happened after a statement was released by Mr. Pranab Mukherjee just on the eve of the second meeting.


You know, before that, all sorts of dirt was being thrown on the members of the Jan Lokpal committee to denigrate them, and it had created some sort of a friction. But that statement of Mr. Pranab Mukherjee has cleared the air quite a bit.


But I must say that from both the meetings now, nothing substantive has been achieved. The relations have been very cordial, and we hope the cordiality will continue when arguments on the exchange of views also takes place.


As you put it, a lot of dirt was thrown on the civil society members. You yourself came close to resigning, and people were calling for the Bhushans’ resignation too. Do you think, as a unit, a panel that puts dignity ahead of power is equipped to deal with politicians, whose entire profession is built around manipulation and tactical moves?


Well, let me tell you it was a deliberate attempt, there’s no doubt about that, and right now, the atmosphere is somewhat cleared because we have not heard anything since the last provocation which caused me to say I will resign.


But, they have been able to divide the civil society. There are various views being expressed by members of the civil society, asking why only these five have been chosen, why not someone else, and that too, some people have some stigma attached to them and all that, knowing very well that these are all campaigns that started after the committee was announced.


The fact that the committee will be announced, and the committee will go ahead and have discussion with the government was known at least ten days before this vilification campaign started.


More so, the Bill was being drafted sometime in February-March, and it was well known that some group of society is preparing a draft Bill. Then, most probably, most of the active civil society groups felt ‘why should we get into it?’ But when Anna Hazare’s fast changed the whole complexion, I think some differences have risen in the civil society, because of some motivation on various sides


We are hoping to get everybody possible into the discussion, and then put our views before the government, and then let us see what will happen.


Are you satisfied with the constitution of the panel? You were asking for the Leader of the Opposition to have a place in the drafting committee, and that demand was turned down.


Well, this is the stage of just drafting the Bill. It’ll go to Joint Parliamentary Committee, where Leaders of the Opposition and other members of the Parliament, chosen by the Speaker and the Rajya Sabha Deputy Chairman will discuss it. Thereafter it will go to the regular Parliament and both the Houses, where there will be open discussion. So it isn’t a problem.


So would you say you’re satisfied with the government’s attitude to the formation of the committee?


Our grievance is that it was projected as if the group of civil society people are hijacking the legislative system itself by drafting a Bill and holding a gun to the head of the Parliament, saying “You approve this Bill.” No.


The reason is this – you see, what is the purpose of having a democratic system which applies to even legislature? They are the people’s voice, isn’t it? Those who represent us in Parliament are representing the constituents.

Now, normally when an important issue comes up for discussion before the Parliament, it used to be the old parliamentary practice for the elected members to talk to the constituents ­– maybe not all, but at least those who are interested in having a discussion. They carried their views and presented it before the Parliament.


Today, neither does the Member of Parliament meet his voters, nor does he himself talk to Parliament. On the 23rd of December 2008, 17 Bills were passed in 12 minutes without discussion. What this indicates is that there is no true legislature practice at all. These are bulldozing tactics of the government, and being in Opposition or otherwise, you allow this to go through!


And the same thing would have happened here because the ruling party members, as well as the members of the opposition are hurt by this Bill. Therefore we said, ‘look here, you just listen to us at least. My representative is not listening to me; at least you listen to us. We are not saying whatever we feel should be accepted. You place it before the Parliament and let them discuss it.’


We can let the public know what the government’s proposal is, what the proposal of the people’s group is, and what has been decided by the government. So let the people at least know what is happening. That is our attempt, nothing more than that.


You spoke of how the Lokayukta should have the power to investigate cases independently, without having to wait for a complaint. In the case of the draft Bill available on the site lokpalBillconsultation.com, the provision for the Lokpal to have this power is conditional, in that the corruption must cause public grievance. Don’t you think it has to be worded more strongly?


No, not necessary at all. Because that’s exactly what is there in the Karnataka Lokayukta also. It says suo moto investigation can be taken up if the Lokayukta, after being satisfied and recording his satisfaction that there is prima facie case, wants to. Therefore, it is not every action of the government that will give room for investigation, whether suo moto or after complaint by somebody. It will have to be first scrutinised to see whether there is material to proceed, whether there has been any misconduct. If it is so, then yes, the Lokpal can investigate.


Do you think the government will agree to this provision without raising objections?


(Laughs.) You’re asking an impossible question. Impossible, in the sense, I can answer it very easily, but well, it is our attempt to persuade the government to yield. But as the Bill is really likely to hurt the government, and the people governing, it isn’t that easy for us to do.


In the draft Bill, the committee has said: “While investigating any offence under Prevention of Corruption Act 1988, they shall be competent to investigate any offence under any other law in the same case.” But why restrict themselves to that particular case?


Well, I’ll tell you what. Lokpal is not meant for investigating murder, assault, theft, and things like that. It can’t be done. There is a separate law, a separate investigation agency, a separate code – the Indian Penal Code.


But since it is a crime which involves public servants, a separate organisation is necessary for our contention. In Karnataka, you know, it’s the Lokpal. Of course, Karnataka Lokpal has a police force of its own. Now this police force, when it comes from the main police force to the Lokpal, doesn’t lose its power of investigation over other crimes. When other crimes seem to crop up, we ourselves go to the jurisdictional police and get it done.


But in the course of investigation of a Prevention of Corruption offence, if you find forgery, if you find theft of documents, if you find various other acts which are connected to corruption, but not under the Prevention of Corruption Act 1988 – let’s say it’s under another act, or the IPC – then that investigating agency which is in charge has the power to investigate.


As a former Supreme Court Justice yourself, who is aware of the status of the judiciary, as well as the way in which such power has been abused – the PF scam for instance – do you believe the higher echelons of the judiciary should be brought under the ambit of the Lokpal?


Yes, we have recommended that, and we feel that should be the case. There is a difference of opinion with regard to that. Two former Chief Justices have said no, it’s not good, because the Judges Accountability Act is coming, and why should there be another check over the judiciary.


But let me tell you one thing. Till the judgment in Veeraswamy’s case came from the Supreme Court, all the superior court judges, and all the other judges, were liable to be investigated under the Prevention of Corruption Act, if there is a complaint.


Now, in the Veeraswamy case, what they said is, ‘no, no, judges are not public servants in that sense, but at the same time, they are not free to be involved in corruption. Therefore any investigation against a superior court judge, i.e. belonging the Supreme Court and the High Court, can be initiated only with the prior permission of the Chief Justice of India.’


That is a judge-made law, not a legislative enactment. Prior to that, right through the history, even during the British times, they were liable to investigation. Anyway, by their own judgment, they protected themselves.


Now what we’re saying is that the protection against frivolous complaint should be there, not only for them, but for higher ministers, and people in higher positions also, but that will be done by the Lokayukta or Lokpal. They will do the investigation, and if they find something, they will proceed, not otherwise. Otherwise, quite often, their name gets sullied, and we can’t have that happening for all these people with a halo!


How about the Prime Minister? Are you in agreement with the ‘Caesar’s Wife’ theory that he’s been putting forward to insure himself against investigation?


He didn’t use the plural when he used the word ‘wife’. He should have made that clear because Caesar has many wives, which is what caused the problem! (Laughs) Anyway, that’s beside the point. He’s been included not only in our Bill, but also in their Bill; they have included him as having to be subject to the Lokpal’s investigation.


Are there any particular points of conflict between the two versions of the Bill – the civil society panel’s and the government panel’s?


Huge difference between the two. The Bill they have drafted gives jurisdiction to the Lokpal only to investigate the members of the Parliament, military and the Prime Minister, but not the officials of the Central Government. Now, under the rules of business, all the decisions of the government are taken by the Cabinet, and executed by bureaucracy. So tomorrow, they shouldn’t say ‘I have not done anything; it is the Secretary who has done it.’ That’s why we want the entire Central Government bureaucracy to be brought within the jurisdiction.


How have the members of the government panel reacted to this demand?


Well, there has been no reaction at all. They are just asking our views to find out how serious we are, I suppose, but maybe from the next meeting onward, we’ll actually start exchanging thoughts. Up to now, it has only been a one-way explanation, from our side.


On the one hand, there has been a sort of deadline set, with an announcement being made that June 30 has been set as a target date for the draft Bill. At the same time, politicians have been trying to bring in delays, with Mayawati saying a Dalit should be included on the panel etc. Are you worried that they may be trying to squeeze the discussions into a narrow time slot, and push through a weak Bill?


No, no, we will never allow that. Ultimately, the decision is that of the government. We can only take the water to the horse, or bring the horse to the water; you cannot make it drink. But we’ll try our best.


Letting loose red herrings like Dalits should be there on the panel or women should be there, minorities should be there, backwards should be there...I mean, we are not a Constituent Assembly! (Laughs) We are only having a five member committee, and if we go by these demands, we’ll have to increase it to fifty members at least.


They have got to be a little more realistic in these matters. Shabana Azmi said ‘ohhh, there is no lady on the panel!’ I offered to leave the panel, and give my place to a lady. I really did not want to be there, because I have only three months left here, and I have a lot of work to do.


Then suddenly, Mayawati said ‘why should I fall behind Shabana Azmi? After all, she is going to contest from Uttar Pradesh!’ So she said ‘no, no, a Dalit should also be there’. Then in Karnataka, one group met and said there should be a weaker section, blacker section, whiter section, everything...all that, I don’t think we can take seriously.


I think Mr. Kejriwal had a witty answer to that, saying the government can fit in all these people on their panel, if they want to.


What do you mean, Kejriwal said that?! (Laughs) Kejriwal has violated my copyright on that line! It was I who said ‘yes, yes, they are necessary, but let them be on the government’s side’. (Laughs)


Well, the government is trying to bring in more stringent rules about telephone tapping, right after that exposed a huge scam. Doesn’t this seem rather ironic to you, when they’re making all the right noises about fighting corruption?


(Laughs) It’s like in my state, it’s always said by the No. 1 administrator that “Karnataka is the most honest state”, irrespective of how it looks otherwise! Anything which is done, is done entirely in public interest, you know! (Laughs)


Which are the provisions of the Jan Lokpal Bill that you’re most worried about, in terms of getting through, but which may counter friction?


Very many. Right now, I may not be able to elaborate on that. There are some drastic provisions there. One is that the sentence has been enhanced to life imprisonment, and a minimum term brought in. One good thing is that we have sort of given room for proportionality of sentences with respect to the office you hold – higher officers should be given harsher punishment than the lower-level officers. There are many that I may not be able to immediately recapitulate.


What are your views on Chief Economic Advisor Kaushik Basu's suggestion that for 'harassment bribes', the giving of bribes shouldn’t be punitive for the bribe-giver? Do you think bribe-taking may actually come down if the bribe giver and bribe taker are not treated as partners in crime anymore?


Right now, under the Indian Penal Code, the bribe-giver is also an offender only if he gives it voluntarily. There are two types of corruption. One is collusive corruption, which is mostly at the higher levels. You give money, and you get big contracts – like 2G. Then, both should be punished. But after 1988, if the bribe-giver does it voluntarily, then yes, he is considered to be in the wrong. But if he becomes a victim of a demand for a bribe, then he is not liable to be punished at all. So that provision is there anyway. But the burden of proof will be on him.


A clause that seems a bit worrying is that the Lokpal may not investigate a matter in which there has been an inordinate or inexplicable delay. But, sometimes, it can happen that people are not sure what steps to take, or are scared of consequences, or may not have had anyone to turn to. At least in the initial days of the Lokpal’s functioning, don’t you think this should be waived?


See, the investigation will be undertaken at the discretion of the Lokpal. The delay is always considered with the background of the facts of the case. Supposing it came to light only just now, then it is entertained and investigation.


That is how even the legal set-up considers delays. For example, there is a certain time limit for an appeal to be filed in a case. But supposing a man does not know the judgment has been passed against him for ten years, then he can go to the higher court and say ‘look here, I haven’t got any notice of this. I haven’t been told, and it hasn’t appeared anywhere. I came to know of it only recently, so it isn’t a delay.’


So the provision is there, and it is for the Lokpal to interpret in the fairest manner.


As Lokayukta, you have been on the verge of resigning on more than one occasion. Are there any concrete measures that you would like to see implemented so that the Lokpal avoids similar frustrations?


It’s very difficult to lay down all the pros and cons, you know, because that changes with time. When I resigned last time and it became big news, they were trying to interfere with the investigation of certain iron ores which were seized by us, and which were stolen by some big people.


They tried to suspend an officer at the instance of a minister. When my appeal to the government did not work, I said I cannot function in this manner, so I resigned, and then the Chief Minister said ‘how can I stop him from resigning, I’m a small man, so if he wants to resign, let him resign.’ But then, things changed with the public reaction. Ultimately the party boss came along with the Chief Minister to my house to ask me to withdraw the resignation.


So, you never know what situation could ignite a person’s decision to come out. These are not things which can be foreseen.


After the initial discussions, is there anything you’re wary about?


Nothing, because nothing has happened in the two meetings, except exchanging pleasantries. (Laughs)


And, is there anything you’re particularly happy about?


Yeah. The attitude of the committee from the side of the government. We cannot afford to have an aggressive attitude, and they have not yet exhibited that either so far. Let us hope that continues!


There were some media reports a few days ago, saying that you intend to join Baba Ramdev in a fast against corruption?


(Laughs) I’ve denied it. I’ve also given my reasons why, in that I’m holding a public office, and I can’t take the time off to go and fast, you know! Secondly, my food habits are such that I can’t afford to fast! (Laughs)


So Baba Ramdev’s statement was, umm, rather premature. Perhaps after my retirement, I could have sat with him for a few minutes and shown my face to the people! But not now, I can’t do it now. (Laughs)

But I’ve said any movement against corruption will have my support. As a matter of fact, Baba Ramdev met me in Goa. Don’t think I’m being arrogant when I say he met me. I had hurt my leg, and I was not in a position to go to his ashram, and he said he would come and meet me.


At that point of time, he didn’t ask me to sit in on a fast with him. So it was a surprise when the media asked me. Let me confirm, though, I’m not sitting on a fast with anybody. I didn’t sit on the fast with Anna. If at all there was anyone I should have fasted with for a few hours, it should be Anna! 

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