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PRASHANT BHUSHAN, a member of Team Anna and a Senior Advocate of the
Supreme Court, has been a vociferous critic of the government's Lokpal
Bill at every stage. He answers, in an interview to Frontline, questions
raised by Members of Parliament during the recent debate on the Lokpal
Bill in the Lok Sabha and the Rajya Sabha and enunciates the challenges
ahead of the movement for an effective Lokpal. Excerpts:
The government's Lokpal Bill makes an attempt to separate the
investigative and prosecution functions in criminal justice
administration. Such separation has been considered a desirable goal in
itself.
The Lokpal, in our Bill, is essentially an investigative body with some
incidental powers of recommending disciplinary action and freezing of
assets. It does not enjoy any judicial powers, and the final decisions
about conviction, sentencing, confiscation will be taken by the courts. I
don't agree that separation of prosecution and investigation is
desirable. What I agree with is that investigation and prosecution
should not be under the control of the political executive. Both should
be under an independent body – same body or two different bodies.
Probably better that it should be controlled by the same body.
The assumption that our Bill frees the Lokpal of any control is wrong.
The Lokpal under our Bill is the most accountable institution in the
world. First, it is mandated to function with complete transparency,
meaning that every detail or every investigation must be put out on a
public website immediately after the investigation. Secondly, the CAG
[Comptroller and Auditor General] is required to do an annual and
financial audit of the Lokpal. Thirdly, every member of the Lokpal is
accountable to the Supreme Court, and any citizen can move the Supreme
Court to get any member of the Lokpal suspended or removed. And, of
course, it [Lokpal] is subject to judicial review of the High Courts or
the Supreme Court like every other institution. Anybody can go to court
to stop its investigation or challenge its decisions.
A December 2011 independent research study conducted by the Law and
Governance Faculty of the Bangalore-based Azim Premji University has
analysed the functioning of the Karnataka Lokayukta model over a period
of nearly two decades. It has concluded that the Lokayukta has failed to
achieve its primary purpose of securing criminal conviction of corrupt
officials. It has also shown that the vesting of investigative powers in
the Lokayukta and the merging of the State's anti-corruption bureau
with it have not resulted in proactive Lokayukta action against
corruption.
The reason for the unsatisfactory results of the working of the
Karnataka Lokayukta is the inadequate investigative machinery provided
to it as well as the inadequate number of judges dealing with charge
sheets filed by the Lokayukta, resulting in gross delays in
investigation as well as trials. Also, the investigative machinery under
the Lokayukta is still that of the government, which retains
administrative control over it.
I have not read this research study, but I know that the State Lokayukta
is not satisfactory, and in my view these are the reasons.
It is another matter that there should be some vetting of the charge
sheet to be filed by the prosecution in order to see whether it is
proper or not, whether it is called for or not. Somebody other than the
Investigating Officer [IO] should vet that charge sheet. Thereafter,
there should be coordination between the investigators and the
prosecution because the investigator has to provide all the evidence and
the prosecutor has to put that evidence before the court. That is why
in most countries there is no separation.
Prosecutors should be independent of the government. Today,
investigation is under the government. When you free investigation from
the government, it is not necessary that prosecution must be separated.
Today, the government is influencing the prosecution. In the 2G case,
every day the government is interfering with the investigation through
the Director of Prosecution [who is an officer of the Law Ministry] or
the CBI.
Section 25 of the government's Bill recognises the independence of
the investigator from the government. Even the Supreme Court has
acknowledged in the Vineet Narain (hawala) case that the government's
administrative and financial control over the CBI is legitimate. If the
administrative control is transferred to the Lokpal, how will you ensure
ministerial responsibility to Parliament for the functioning of the
CBI?
This business of supervisory jurisdiction is actually meaningless
because it does not allow the Lokpal to interfere with investigation.
So, what can the Lokpal do?
I have had discussions with two successive CVCs [Central Vigilance
Commissioners], P. Shankar and Pratyush Sinha, about this. The CVC also
has supervisory jurisdiction over the CBI. Both the former CVCs said
that the maximum that they could do was to ask the CBI to register an
FIR. Thereafter, they could not tell the CBI what to investigate, how to
investigate, whether to investigate.
In the 2G case, on our complaint, the CVC asked the CBI to register an
FIR. The CBI registered the FIR and sat on it for two years until the
Supreme Court started monitoring the matter. The CVC couldn't do
anything to push them. Control is exercised through administrative
powers of transfers, promotions, postings, and disciplinary control.
That is the real control over the CBI. Through that the government is
able to influence the investigation.
The Supreme Court has not said that administrative control of the CBI
must remain with the government. In the Vineet Narain case, the court
felt that supervisory jurisdiction was good enough. But the court did
not realise that it would actually be meaningless. The Supreme Court
wanted to free the CBI from the interference of the government. But the
model that the court decided [on] was clearly unworkable. The only way
of freeing the CBI would be to remove it from the administrative control
of the government and put it under the administrative control of an
authority that is independent of the government, like the Lokpal.
There are many institutions which have no accountability to the
government. You can give accountability to Parliament, but that does not
mean there has to be accountability to government.
The judiciary has 100 times the powers of the Lokpal. But the
accountability of the high courts and the Supreme Court is zero. They
are not mandated to function transparently. Effectively, the government
has no control over the judiciary. In practice, even Parliament has no
control over the judiciary because we have seen that impeachment of
judges is impractical. The power of the Lokpal is only to do criminal
investigation of one kind, which is of corruption. Even in the police,
the SHO [station house officer] has more powers than the Lokpal. The SHO
can investigate every crime. The Supreme Court can not only order an
investigation [initiated by the Lokpal], but stop it. Even high courts
can do that. Take the Election Commission or the CAG. They are not
accountable to the government.
There are many authorities under the Constitution which are not
accountable to the government but are accountable to the Supreme Court.
Similarly, the Lokpal would have been accountable to the Supreme Court.
In fact, we [in the Jan Lokpal Bill] have fixed two other
accountabilities of Lokpal. One, it will have to function transparently.
No other institution is mandated to function transparently. Second, it
will be subjected to an annual audit, performance and financial audit,
by the CAG. No other institution is like that.
It is pointed out that as the government's Bill gives the power of
superintendence and direction of the cases to the Lokpal, this will
enable the Lokpal to intervene and ask for a change of IO if it feels
that any IO is being influenced in the investigation by an indirect
carrot or stick.
The Lokpal under the government's Bill can't ask for that. The Lokpal
has been given the right to ask any investigating agency, not merely the
CBI, to investigate. If you look at the Bill carefully, the Lokpal can
send a case to the Enforcement Directorate or the State police.
Everywhere, there is the same problem. All these organisations are
administratively controlled by the government.
But why can't we assume that since the Bill gives the Lokpal
supervisory powers over the investigating agencies, the Lokpal can check
any abuse of administrative control over them by the government?
This supervisory jurisdiction was vested with the CVC for seven years.
The CVCs said they consulted former CJIs, including Justice J.S. Verma
[who had delivered the Vineet Narain judgment], regarding this
supervisory jurisdiction and what it meant. They told us that the CVC
could not do that [check misuse of administrative control by the
government]).
Just because the former CVCs did not exercise their supervisory
powers fully because of flawed advice from a former Chief Justice,
should this become the precedent for the Lokpal?
Well, it is an open question whether the CVC can check the
government's interference with the CBI or not. If it can, than it is
good. It is something that can be examined. All that I am saying is,
make it explicit in the Lokpal Act that it can do all these things.
Rather than leave it to inferences?
Of course. What is administrative control? It is precisely this, that
the government can change the Investigating Officer, transfer him, deny
him promotions, that it can write his confidential reports. Vest this
administrative control with the Lokpal. What is the problem? After all,
administrative control of all Election Commission staff is with the
E.C., not with the government.
The question of federalism and the perceived encroachment on States'
rights have proved to be the Achilles' heel of the government's Bill and
the Jan Lokpal Bill. How do you think this can be resolved?
It is clear that there is no question of federalism here. This whole
argument that the Lokayukta being there in the Bill will interfere with
federalism is totally misplaced. The Constitution has three lists – the
Union List, the State List and the Concurrent List. This subject – pith
and substance of this legislation – is essentially criminal law and
criminal procedure because corruption investigation and prosecution are
aspects of criminal law and procedure.
These are both Items 1 and 2 in the Concurrent List. Therefore,
Parliament has equal right to legislate. Parliamentary legislation on
this will supersede the State legislation. Even otherwise, since this
law is to implement the U.N. Convention against Corruption, it comes
under Article 253 of the Constitution, under which only the Union has
the right to legislate. In any case, both the Union and the States have
the right to legislate since it is in the Concurrent List.
So, is Leader of the Opposition in the Rajya Sabha Arun Jaitley wrong
in arguing against the use of Article 253 by the government?
Jaitley is totally wrong because he says that State civil services are
in the State list. But the Bill doesn't deal with State civil services.
On disciplinary matters, the Lokayukta has only the power to recommend.
Ultimately, the decision has to be taken by the State government. And
that is only an incidental power arising out of the corruption
investigation. So, the test which is applied is what is the pith and
substance in this law? Is it a law which deals with State civil
services? Or does it deal with criminal investigation? Obviously, it
deals with criminal investigation.
So, is it correct to deal with the Lokpal legislation under Article 253 or as an item under the Concurrent List?
Both are correct.
Is Jaitley correct in arguing that the government ought to have
invoked Article 252 of the Constitution (Power of Parliament to
legislate for two or more States by consent and adoption of such
legislation by any other State) to enact the Lokpal legislation?
The government need not invoke Article 252 at all. The one amendment
which the government accepted defeats the whole object. [The amendment
says that the Bill, once passed, shall be applicable to States only if
they give their consent to its application]. In fact, the government has
diluted the whole Bill by allowing the States to decide when to apply
this Bill. It means that the States will never decide to apply the Act.
If Parliament has the will, it can do it. It will show that the BJP is also against a strong Lokpal Bill.
You have been a strong supporter of deepening participatory democracy
by legitimising referendums on important issues. Do you think
referendums can aid legislation and policymaking? If something impinges
on secularism and democracy, for example, is it advisable to go in for
referendums? There are certain non-negotiables such as the basic
features of our Constitution. If a piece of legislation or a policy
measure aims to advance such a basic feature, and if public opinion is
in favour of abandoning our commitment to such basic features, what
happens? On the Lokpal issue, nobody is sure about public opinion on the
many intricacies of the Bill. How could the government go by the
results of privately conducted opinion surveys?
If a referendum impinges on secularism or democracy, that referendum
will not be constitutional. If the referendum is for making a law, that
law cannot be against the Constitution. If the referendum is for making a
policy, that policy cannot be against any law. If the referendum is for
amending the Constitution, even that cannot be against the basic
structure of the Constitution.
Only those referendums can be held which are constitutional and which
are for effectuating something permitted by the Constitution.
Secularism and democracy are parts of the basic structure. If the
referendum is for amending the Constitution's basic features, that
referendum will be unconstitutional. If nobody is sure what the public
opinion wants, we can test it out. The government could have gone in for
a referendum. This [Lokpal] was a good case.
There are too many nuances in this debate. How would the public understand these in a referendum?
You can ask a neutral body like the Election Commission to identify
which are the contentious issues and ask it to frame the questions in a
neutral and fair manner. One contentious issue was the selection
committee [to choose the Lokpal members]. There were three or four
different options, and the people could have been asked to vote on them.
What will be the relevance of Parliament if we have to go in for a referendum to resolve every issue?
But Parliament is not deciding according to the will of the people. This
kind of parliamentary democracy is not allowing governance by the will
of the people. People do not want SEZs [special economic zones], yet in
five minutes Parliament passes the SEZ Act. People did not want the
nuclear deal, but the government goes ahead to pass the nuclear deal.
Parliamentary democracy is not part of the basic structure. We can
change it. Democracy is the basic structure. What form of democracy, we
can always change by amending the Constitution. If we find that
parliamentary democracy is not resulting in the will of the people being
carried out, then we can change that. They [the MPs] get elected by use
of money power…. So, this form of democracy has shown itself to be very
imperfect and defective.
What road will Team Anna take in the coming weeks? What, according to
you, have been its strategic errors and what correctives should it
take?
I would say that in the last few months we neglected the ground-level
work of communicating with the people. Our workers and volunteers were
not organised by us, so to say, to communicate all these issues to the
people. We need to spend more time on grass-roots communication and
mobilisation. Then, we need to develop a long-term perspective and a
broader vision about the functioning of democracy and some of the other
key issues in the country.
You have said all political parties do not want a strong Lokpal. Can
it be said that it is because the Lokpal addresses the symptoms rather
than the root cause, which is electoral and corporate corruption. In
other words, a strong Lokpal may not achieve much, given the aberrations
in our electoral system.
Political parties do not want a strong Lokpal because they have a vested
interest, conflict of interests, in the matter. Most of them would be
adversely affected by the enactment. They are not worried about the root
cause. Of course, the government Bill, like the Jan Lokpal, includes in
its ambit corporate bribe-givers. In our Bill, we have said that if a
corporate is involved in corruption, then five times the loss caused to
the government should be recovered. That means for every act of
corruption, the corporate accused would virtually be bankrupted.
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