THE LEADER OF THE OPPOSITION (SHRI ARUN JAITLEY): Sir, 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 Hazares 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 dont intend to repeat
them.
1
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 dont overreact or go in for
knee-jerk reactions where we find solutions which are not consistent
with our constitutional scheme. Therefore, even though I dont 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
2
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 1
st
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
3
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
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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
5
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
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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.
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 well versed 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.
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
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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 isthat under List III, which is the Concurrent List, Entry 1 and
2, these powers may actually be with the Centre. But, then the
Lokayuktas 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 dont 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
8
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. Singhvis 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
9
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 Governments
draft, therefore, must be seriously reconsidered. The Governments 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 dont think that the worlds 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 dont 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.
10
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 Governments 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 wont 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
11
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
12
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 by this
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 cant
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 dont 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
13
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 isnot 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.
14
i- i-| | liin rin| r l - ii i | i-n |, l
-n c -r| i i| ii i r| l-i| - -i-i- li--- ini r ni -n
n| rin| r| ; ii -i, lri r, ri i i
r| l n|i | r r i l -n i -ii i | r, i
i | r| -ri, ; ii ri l-| i- i i- i-| |
grievances l- l i i ii l r i n i; lii|
i- i ~i ni r ni l i | ~-| nn| r i|
i - li ri r| - -ini r l ii i ; i i i
i r r, ;l n i| ; i - i ni r ii | l- si
- rini|
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
whistleblowers protection. They want whistleblowers to be given
protection under the Lokayukta or the Lokpal. I dont think in principle
15
there can be any difficulty as far as this factor is concerned. There is a
grievance that punishment to complainants is very harsh.
n lii i; i-| liin ini r i r lii| i-
iln rini r ni i i ri in| r, l lii| | i - r i
n complaint nn ln| r ni i-| | i ii r| r in ni
| i r| -n ni r l ; i i i - r|r| i; oversight
r; r l i - r- i iii ii ilr|
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
Ministers 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
16
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 cant 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
17
and display that sense of resilience and are able to resolve these issues
which are confronting us.
Thank you very much.
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