'Our Democracy Is On Trial'

The debate in Rajya Sabha as a response to the finance ministers statement was initiated by the BJP's leader of opposition

We have just heard a detailed Statement from the hon. Finance Minister on the entire background of the negotiations, leading up to the present situation. We have also just witnessed a great amount of enthusiasm in this House, with a very large cross-section of Members wanting to participate in this debate. This, Sir, itself is an evidence of the sense of responsibility which Members of Parliament really have in responding to the challenges as they emerge before the country. Sir, in the last two weeks, on events arising out of Shri Anna Hazare’s fast, this is, actually, the third debate. The first one, I must concede, was confrontationist on the day when Shri Anna Hazare was, unfortunately and regrettably, arrested by the Government. In the second debate earlier this week, we debated with a great sense of maturity, as to how to deal with this larger problem of corruption and graft in Indian society. It was a little less confrontationist. Today, really, the maturity of all of us and our democracy is on trial. There is a popular agitation or movement going on in the country, which has sent to us a message, very loud and clear, that people of this country are no longer willing to accept the present status quo. The present status quo is that corruption in many areas has almost become a way of life. People in higher positions have a tendency to get away. There are cover ups. They have various instruments and technicalities available to them, where accountability norms are not very high. And, there are low areas of society where the average man has to confront with corruption really almost as a way of life.

We discussed all these areas two-three days ago and therefore I don’t intend to repeat them. Sir, in the course of this entire agitation and the debate that it has thrown up in the last few weeks, we have also heard some not so- complimentary statements made about Parliament and MPs. I would only urge my colleagues that our sense of maturity must compel us not to be provoked by anyone of them. It is our actions and how we respond to them which will be the best response of Indian democracy to all these statements which are made. When we decide it -- and today we are not legislating, we are only deciding the basic parameters of what should be the kind of integrity-institution in India, which is the Lokpal, and, we are also deciding as to which are the areas which must come within its scope and which should be kept outside -- I think we must be guided by two basic principles. The first is, the time has now come to raise the bar of accountability in Indian society. Routine structures have not succeeded till date. They have not responded to the enormity of the challenge that we face. And, the second is that when we think in terms of a scheme as to how to deal with it, we don’t overreact or go in for knee-jerk reactions where we find solutions which are not consistent with our constitutional scheme. Therefore, even though I don’t think that in this case we are legislating in haste, we must remember that we must be guided predominantly by two vital considerations which are : the need for probity and the need to coexist with the constitutionalism as far as India is concerned.

Sir, the whole concept of a Lokpal was first borne out when the Administrative Reforms Commission in 1966 had recommended the establishment of a Lokpal and a Lokayukta Bill. In fact, it is very little known that at that time the Bill was actually introduced in 1968 by none other than Shri Y.B. Chavan and while introducing the Bill, the Statement of Objects and Reasons was that the efficiency and integrity of public services should be kept in mind. So, this whole question of Citizens Charter or public grievances is not a new concept which is being brought into the system today. This was a part of the concept which was recommended by the Administrative Reforms Commission way back in 1966, and, in the 1968 Bill – 1st May, 1968 to be precise – which Mr. Y.B. Chavan introduced, this concept was very much there. It had two concepts and that perhaps may help Mr. Pranab Mukherjee to find an answer to the questions he has raised before us. Public grievances were a part of it; the concept of Lokayukta in the States was also a part of that 1968 Bill. It is not something which has now been taken out of the hat and suddenly we are confronted with it. In fact, in the report which Mr. Pranab Mukherjee himself authored in 2001 as the Chairman of the Standing Committee, there is an important Preface which I must read to my distinguished colleagues here. It says, “The term “Lokpal” – and I am quoting from the Report – is the Indian version of “Ombudsman.” Ombudsman is a Swedish term meaning ‘one who represents someone else.’ In other words, the term means, ‘a grievance-man.’ Ombudsman is an official who is appointed to investigate complaints against administration. More specifically, he is an officer who investigates complaints of citizens of unfair treatment meted out to them by Government Departments and suggests remedies thereof, if he finds that the compliant is justified.”

Now, 'ombudsman' was a Scandinavian concept and, coincidentally, on 3rd April, 1963, then an Independent young Member of the Lok Sabha, Dr. L.M. Singhvi, in the course of his participation in a debate for having an ombudsman in India, attempted to find out what the Indian equivalent could be, and this word 'Lokpal' was added to our vocabulary, the Hindi vocabulary, by Dr. L.M. Singhvi who translated this word. Now, it is a coincidence that his very distinguished son, Dr. Abhishek Manu Singhvi, now has to prepare the final draft of this Bill. I am sure, he will keep in mind the great heritage, not only his personal, but also of this concept, and strengthen this Bill in order to maintain this very strong heritage as far as this Bill is concerned. In fact, the senior Dr. Singhvi defined the term 'Lokpal' or the 'Lokayukta', which he had coined, as 'the Indian model of ombudsman for the redressal of public grievances'. Now, that answers one of the questions we have squarely raised today, as to what should be the width of the activities as far as the Lokpal in India is concerned.

Now, this Bill, which was first introduced by Shri Y.B. Chavan, was actually passed by the Lok Sabha in 1969 -- this fact is mentioned very rarely in our present discourse -- but because of the split in the Indian National Congress then, the Lok Sabha was dissolved soon thereafter and the Rajya Sabha could not pass this Bill. Otherwise, this country would have had, but for that split of 1969, a Lokpal Act way back in 1969-70, and the entire series of events which have taken place in the last few months would have been really unnecessary because we would have gone about strengthening this institution from day to day.

Sir, I said that we must not legislate in haste. I do not think we are legislating in haste. We worked on nine different drafts of this Bill in 42 years. Democracy cannot be so lethargic a system that it takes 42 years to really develop a consensus as to what a Bill should be. We have almost discussed and debated every aspect of the Bill. Whether the Prime Minister must be covered by the Lokpal or he must not be covered by the Lokpal, and so on, are areas which we have sufficiently covered and, I think, the time has now come when this whole concept of Lokpal at the Centre, as an effective institution, and Lokayukta in the States became a hard reality as far as India is concerned.

Sir, before I come to the specifics, I think, today's debate is not, and should not, be on generalities. The Finance Minister, in his opening statement, has said that earlier there were six questions which he had posed to political parties and now there are three questions which need to be addressed by each one of us so that the sense of the House can be taken. Therefore, the need for today's debate is not that we express ourselves in generalities and just say, 'India needs a Lokpal and it must be a strong and effective Lokpal'. When it comes to the specifics and the nuts and bolts of what those provisions of the Lokpal should be, we skip that part of the debate. I think, today, all of us have to respond to this challenge which the Indian society is posing before us, and that is the strength of Indian democracy. We have to respond to each one of these questions which have been raised, not merely by the civil society but by the people at large today. We must not unnecessarily get into a position that there is the situation of Parliament versus civil society.

Sir, there are two basic principles that we have to keep in mind when we legislate. In any developing society, in any mature society, there will be a role for civil society.

They are hard realities; they will exist. Some of them may take positions which seem a little excessive which may not be implementable. But then we must realize that their role is one of being a campaigner or a crusader or a flag-bearer on several issues. They rise, try and compel the decision-makers to change their views and come on track with their kind of opinion. We have the option of agreeing with them; we have the option of not agreeing with them. The second principle we have to bear in mind is -- and nobody can dispute this -- that Indian Parliament is supreme when it comes to law making. Laws cannot be made anywhere else except in the Indian Parliament. So, even when pressure groups build up pressures in the society, we must concede to them the right to build up pressures but not be provoked by them; we must not lose our sense of rationality as to what we are to accept and what we are not to accept and we must legislate keeping in mind the basic principles and the values of Indian society both from our conditions, both from our administrative experiences, experiences of our democracy as also our constitutional values. And this is what we are going to endeavour today. What we must not do is to engineer a kind of a confrontation either between Parliament and civil society or Government and civil society. The maturity of Indian polity is that we must not allow ourselves to get provoked and, therefore, we must still keep all rationality in mind and, therefore, legislate accordingly as far as these principles are concerned. Sir, there are several questions that hon. Finance Minister had raised, and I hold his statement. I first come to the original six questions that he had raised. One of the questions he says is, "Should a single Act provide for a Lokpal in the Centre and Lokayukta in the States?" I think you have to answer this question keeping two factors in mind. There is a need for a strong Lokpal in the Centre and there is a need for a strong Lokayukta in the State. The appointment of Lokayukta in States will not be made by the Centre. It will only be made by the mechanism as far as the States are concerned. So, that mechanism must be a State mechanism. Under no circumstances must Centre be seen as appointing or interfering in the Lokayukta of the States. Now, the recent incidents have actually brought a bad name to the institution of Lokayukta where in one of the States we find that the elected Government is completely bypassed and a Lokayukta is appointed. ...(Interruptions)... Once these kinds of events take place, then a question will arise in various minds 'Is someone going to use or misuse the institution to fix his political opponents?' Once we succeed in conveying that -- and recent events have conveyed that -- that probably will lead to the death of the Lokpal institution even before it is created because its credibility will be gone and the purpose of its creation will be defeated. So, we must refrain from doing that and not treat this as an adversarial exercise. What is a Lokpal or a Lokayukta supposed to do? When a complaint comes that some public servant or a Minister or a civil servant has indulged in a misconduct, he has to examine the evidence. He then has to peruse the evidence and decide whether it is a case of misconduct, whether it is a criminal offence or an offence which involves an administrative action. This requires assessment of evidence. Assessment of this evidence can be done by people who have a fair mind. Anybody whose appointment is brought in with a motive or anybody who is not wellversed in the art of assessing evidence, whose investigative or judicial or quasi-judicial abilities are suspect will not be able to do that. Therefore, when we appoint these, we must bear in mind that you need it in both the places. Your Government ....

Intervention by Pranab Mukherjee:

I would like to add that the responses which we got from various Chief Ministers, not all, say that they would like to have their own law of appointing the Lokayukta.

I would like to be clarified by an eminent lawyer like Shri Arun Jaitley whether we can make a Central law which will have its overbearing effect on the State, or, whether we can make a model law which the State may accept or may not accept. But, here, I entirely agree with you that Lokayukta or Lokpal will have to be established by the laws made by the Legislature - in case of Centre, by the Parliament; in case of State, by the State Assemblies. If you kindly clarify it, I will be happy.

Arun Jaitley resumes: I think this debate is going to be more candid and upfront than most debates we have had in the Parliament. It is a question which is concerning us also because here, there is a conflict between two principles which arise. The first is that we need higher standards of probity. But, while trying to achieve that, do we compromise with the federal structure? That is the conflict. How do we reconcile it? And, I must straightaway say that I share this concern with the hon. Finance Minister. Various groups of civil society, including members of team Anna, have met us and had detailed discussions with us. Now, if Lokayukta of the State is going to have some powers in the criminal law, their view is that under List III, which is the Concurrent List, Entry 1 and 2, these powers may actually be with the Centre. But, then the Lokayukta’s powers are not only restricted to that. It may also go across to taking action against the civil servants and employees of the State Government. So, when you deal with employees of the State Government, who makes a law – the Central Legislature or the State Legislature? Therefore, when I put this question to them, they were also concerned with this fact that we don’t want to create a law which may tomorrow be struck down as violation of a federal polity in India because under List II, Entry 41, State Public Services and State Public Service Commission is entirely within the domain of the States. Therefore, any antecedent fact to the State Service, which is action against them, inquiries against them, which the Lokayukta of a State may do, they fall within the domain of the State Legislature. Therefore, one possible option is that you can legislate on areas where the Central Legislature has jurisdiction. Where you find that the Central Legislature has no jurisdiction, you have two options - either you leave that part to the States or under article 252, with the consent of two States, the Central Legislature can bring an enabling law. It will be binding on those two States, and then, every other State, which passes a Resolution accepting it, it will be applicable to those States. It will become a model law which will be applicable to each one of the States. So, it is an enabling law under article 252 which can be really brought in by the Central Legislature. Both options are available to you. Therefore, when you negotiate with various groups in the civil society, with opposition parties and finally, when Dr. Singhvi’s Standing Committee goes into this, I am sure they will have the best of legal advice as to what areas fall within the Central domain and what falls within the State domain so that we are not compromising, in any way, with federalism. But, at the same time, we are able to lay down the highest norms as far as the accountabilities are concerned.

The second question you have raised before the political parties is whether the Prime Minister should be brought within the purview of the Lokpal. Now, we have heard sufficiently both the arguments. The first argument was that India is too large a country. The Prime Minister holds a very sensitive position. The Prime Minister must be kept out of the Lokpal purview because the Prime Minister will be only accountable to the Parliament and the Parliament is always entitled to remove the Prime Minister. But, there are two drawbacks in this argument. The first drawback is that under ordinary law, both your Prevention of Corruption Act, Indian Penal Code and all other penal laws apply to the Prime Minister as much as they apply to any citizen of India. So, any public servant is bound by them. The Prime Minister is also under the purview of those laws. An ordinary police officer, where a complaint is made, or a CBI officer, today can investigate an offence against the Prime Minister. When you are creating a special procedural mechanism of a Lokpal, you want to suspend the operation of the substantive law, Indian Penal Code or Prevention of Corruption Act, by saying that this procedure will not apply to the Prime Minister.

That probably does not have much merit and the Government’s draft, therefore, must be seriously reconsidered. The Government’s draft must be seriously reconsidered because when you say that the Prime Minister will be held accountable only after he ceases to be the Prime Minister, then, the crux of your argument will be that if we find that there is a Prime Minister who is guilty of corruption, we must continue to suffer because of him and hold him accountable only when he ceases to occupy his office. Now, I don’t think that the world’s largest democracy can afford an experimentation of this kind, and, therefore, a more rational approach on which a larger consensus is emerging today is, you hold the Prime Minister within the purview of this law. People have suggested that there is 2001 Bill formulation, which was approved by Shri Pranab Mukherjee as the Chairman of the Standing Committee. There are several functions of the Prime Minister, which should really not be a matter of scrutiny, namely, his functions relating to intelligence, his functions relating to public order, his functions relating to national security. Maybe, tomorrow, you can include his functions relating to foreign policy. Now, I don’t have a complete list as to what can be included and what can be excluded. It is for the Standing Committee to really work on it. You can keep some areas out where larger public interest is involved in keeping them out but today it will be very difficult to sustain an argument that the Prime Minister must only be held responsible after he ceases to be the Prime Minister.

You asked us as to what should be the mechanism for Supreme Court and High Court judges. At the moment, there are two mechanisms for Supreme Court and High Court judges. One is the in-house mechanism, which is a mechanism which has worked in some cases; not worked in some cases, and, the alternative mechanism is impeachment. We have discussed this two weeks ago in the course of proceedings for removal of a Judge of a High Court, where I had mentioned, and, I see that as a popular sense of the House, that there is a need to create a National Judicial Commission both to deal with grievances and complaints and also to deal with matters of appointments.

The Government’s approach, which appears from your statement, is that you want a Judicial Accountability Bill. The civil society is saying that if you want it, please strengthen it. Now, whether you call it a National Judicial Commission or the Judicial Accountability Bill, we have to bear in mind one basic principle that the executive must not interfere in the independence of judiciary. But, at the same time, the task of appointing Judges and judging Judges cannot be left to Judges alone, and, therefore, your original Bill, as was introduced in the Parliament by Mr. Moily, the erstwhile Minister, left it to the Judges alone. Therefore, the present system, which is the in-house mechanism, will become a statutory mechanism. It won’t improve the situation. So, unless you are able to seriously consider, and, I suggested to my friends in the civil society who had met us, that it is an important institutional reform, which is required. Therefore, this reform may not be possible in four or ten days. If you have a Lokpal Bill and the House shows concern, we must seriously think of a mechanism like the National Judicial Commission itself, and, I must say in all fairness to the flexibility and approach which the members of this group, including the Team Anna, had, on each one of the issues when we shared our concern with them, their response was quite reasonable.

Similarly, on the conduct of Members of Parliament, on the one hand, you need to check graft and corruption, but on the other hand, you cannot interfere with the privacy of the House. And, therefore, there is a Constitutional mandate in article 105 that if an MP misconducts within a House, a Member of Parliament is liable for action. After all, have we not removed from Membership the Members who have taken Rs. 5,000/-? We removed eleven Members who took only Rs. 5,000/-. Had it been a case of a Government servant, somebody would have said that it was a very small offence; we could reduce his rank or give him some other punishment rather than throwing him out of his job.” Sir, we removed elected representatives for compromising to the extent of Rs. 5,000/-, and, therefore, there is no presumption that the House, when it comes to the probity in relation to the in-house conduct, does not take action.

As far as any impropriety outside the House is concerned, surely, no Member of Parliament can claim any immunity under Article 105. Therefore, the response really would be to a major issue that we include conduct outside the House, as it is included today, and any law we make should be subject to the provisions of Article 105. You said, “What happens to Government servants? Who has a right to take action because of Article 311”? I have put to the members of the civil society who met us and I got an impression that they are agreeable that the powers of the Lokayukt or the Lokpal could be powers of recommending action. Ultimately, protection of Article 311 is that there is a procedure prescribed by which a person holding a civil post in the Union or the State can be removed. There is a procedure prescribed as to who can do it. Now, that Constitutional provision cannot be violated by the Lokpal Act. Therefore, the Lokpal Act is necessarily subject to those Constitutional requirements. There is a serious question and I would only urge that a cross-section of opinion should be examined.

Sir, we have made the suggestions and we have tried to persuade, because this is not an adversarial issue, that any Lokpal Bill must necessarily be compatible with Constitutional values. Therefore, it can’t violate Article 105; it can't violate Article 311. This is the reasoning. I am sure, they are also very mature people, they understand the significance of what we are saying.

Sir, the sixth question which you had raised was: Can quasijudicial powers be delegated? Now, this is the question which will require a serious examination. I am sure, there are going to be mixed opinions on this because delegation of quasi-judicial and judicial power ordinarily does not take place. But whether it can, in an inquiry process, take place or not; or the power of inquiry can be delegated to the special officers created, this is an area which can be a matter of legislative drafting and which can be worked out.

Sir, you have, towards the end, said that the object of the discussion today is to really address us on three basic questions which are available. I don’t think anyone of us should really shy away from responding to those questions because we have a freedom of expression as far as this House is concerned. Our object, while addressing those questions, has to be two-fold – the first has to be that India must get a strong and effective Lokpal and the second is that the current political impasse must get over and Shri Anna Hazare should be requested and persuaded to give up his fast. Whether all employees of the Central Government should be covered by Lokpal or should be split into two?

I think it is a procedural matter. It is not such a major matter that it can break our options to a breaking point. The fact is that all employees and all public servants must be accountable. When we want even the Prime Minister of this country to be accountable, why must we really say that because somebody within the Government is a junior employee should not be accountable? Now what will be that accountability mechanism? You have various options. We have said that please bring them within the Lokpal. Some other civil society groups -- I got some papers from them – have suggested that if you want a vigilance mechanism, put it under the administrative control of the Lokpal. They suggested an alternative mechanism yesterday. Various kinds of flexibilities are available to you. But the overall overarching supervision of the Lokpal would remain there with regard to all employees of the Central Government. And we think there is considerable merit in accepting that suggestion.

As far as the option of Lokayukta institution in the States is concerned, I have already said that if you find that some areas are not within the domain of the Central Legislature, you can have an enabling law and leave the option with the States. The last question is: Do we need a grievance redressal mechanism? Sir, we certainly do need a grievance redressal mechanism.

[Translated from Hindi:] A common man often has this complaint: I applied for a ration card but did not get it even six months after applying for it. Or: I am harrassed when I visit the transport department. Now many states have made their own rules, such as Madhya Pradesh or Bihar. The other day Satishji said that Uttar Pradesh has started it, that Punjab is doing it. Many states have started making Citizens' Charter and laws dealing with the common man's grievances. And these laws also include penalties for how to punish the officials who do not follow the charter. So I think that just as states are making these laws, the centre too should think about making such a law as it will be good for administration. [Translation Ends. Back to English]

It will be a good step to say that every department of the Government has a charter. This is how grievances of the citizens are to be addressed. If somebody applies for a ration card or a licence or some other permission, 15-30 days should be the period under which it should be disposed of. And if somebody does not dispose of his application within that period, then he will be taken to task for it. It will improve the quality of administration and governance. There is no reason why it can become a politically adversarial group amongst any one of us or between us and the members of the civil society who are suggesting it. It is a step towards good governance and we must really come out with a procedure which is fair and which appears to be effective.

Sir, there are many other small issues which have been raised. The Government in principle has accepted it. In fact, Shrimati Jayanthi Natarajan headed the Standing Committee which had recommended whistleblower’s protection. They want whistleblowers to be given protection under the Lokayukta or the Lokpal. I don’t think in principle there can be any difficulty as far as this factor is concerned. There is a grievance that punishment to complainants is very harsh. [Translated from Hindi:] If somebody makes a complaint against them and an official is found corrupt, he would be punishment. But it's a light punishment, whereas if the complaint is found to be wrong, the complainant gets a heavier punishment. This seems to be a justified complaint. It seems that while making this law, somewhere, there has been an oversight and we all should think again about it. [Translation Ends. Back to English]

There is one subject where I want to sound a little discordant note. We are creating an institution where we say that the Prime Minister should be included in it, every Chief Minister should be there, and every Minister should be there. And MPs, Secretaries of the Government of India, and the Cabinet Secretary would be covered by this law. There is a suggestion that the authority will be entitled to tap phones of these people if it receives a complaint. I think in the last few years, we have been making a mockery out of our democracy by really making phone-tapping in this country to be virtuous. How can somebody tap the Prime Minister’s phone? The argument is that it is being tapped because there may be an evidence of bribery. Well, there are thousands of conversations which Ministers or the Home Minister or the Finance Minister or a Chief Minister may be having with the Prime Minister. He may be discussing something with the Secretary, RAW. He may be discussing something with the Director, IB.

He may be discussing something with regard to other serious matters with the Army Chief or the Foreign Secretary. Are we going to create institutions which are now entitled to start tapping phones of even the Prime Minister, Ministers and other senior functionaries? We have a judgment of the Supreme Court which is a very well considered judgment. We have provisions in the Indian Telegraph Act that only to the extent it involves national security or it involves prevention of commission of some serious offence, you can do it. I think this power should be exercised with great caution because in the process of creating an anti-graft institution, we should not compromise with any tenets of Indian democracy which allows institutions to start interfering to this effect. When members of the civil society met us, I conveyed to them that this is one area where I would beg to disagree with them even while supporting them on most other areas that they have said and they must seriously reconsider a proposal where an authority which covers the Prime Minister and other senior functionaries of the State is not entitled to start bugging their telephones. We can’t make a virtue out of this and this is one area where I am sure the drafting committee will make a serious issue. Finally, Sir, I have two points. You have asked us on these three specific questions in order to resolve the impasse. I think, there is considerable merit in including the entire bureaucracy. There is considerable merit in either enabling or otherwise, subject to the legal advice you get, going ahead with establishment of Lokayukta in the States. And there is also considerable merit – in fact, there is far greater merit – in having a grievance charter or a mechanism as far as the country is concerned.

Finally, Sir, one great strength of Indian democracy is that we have protests, we have crisis, we have confrontations, but then, we also have a great sense of resilience. We show an extraordinary amount of maturity in resolving every crisis and emerging stronger out of any crisis. I am sure that today would be a very important day for us when we show and display that sense of resilience and are able to resolve these issues which are confronting us.

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