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Minutes of the Third Meeting of the Joint Drafting Committee (JDC) fordrafting the Lokpal Bill held on 7.5.2011 (Saturday) at 16:30 hrs. in RoomNo.41, North Block.

The following were present:Ministers

(i) Shri Pranab Mukherjee, Ministerof FinanceChairperson(ii) Shri P. Chidambaram, Minister ofHome Affairs

(iii) Dr. M. Veerappa Moily, Minister ofLaw and Justice onvener(iv) Shri Kapil Sibal, Minister ofHuman Resource Developmentand Minister of Communicationand Information Technology. Representatives of Civil Society(i) Shri Shanti Bhushan, SeniorAdvocate Co-Chairperson(ii) Shri Anna Hazare(iii) Shri Justice N. Santosh Hegde(iv) Shri Prashant Shushan(v) Shri Salman Khursheed, Minister (v) Shri Arvind Kejriwalof Water Resources and Ministerof Minority Affairs.

2.he Chairman after extending a welcome to all the Membersrecalled the decisions taken during the last meeting for continuingdiscussions on the basic principles for the proposed Lokpal Bill. Hestated that the areas of agreement, could be excluded from furtherdiscussions, and that in other areas, further discussions would berequired. He also mentioned that the Members representing the CivilSociety were to reflect upon the suggestions made during the saidmeeting while the Government side was to respond to the documentpresented by the representatives of the Civil Society spelling out thebroad principles of the proposed Lokpal legislation. He thus called forviews/comments from the civil society

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3. During discussion on the confirmation of the Minutes of the lastmeeting, Shri Shanti Bhushan pointed to para 6.3 of the Minutes, andsaid that during the deliberations of the second meeting, he had soughtto convey exceptions in respect of such public servants for whomimmunity was provided "by the Constitution" and the word "law"appearing at page 4, sixth line of para 6.3, should be replaced with theword "Constitution". The Chairman agreed for suitable amendment tothe Minutes to that extent.

4. Shri Arvind Kejriwal referring to para 10.1 of the Minutes, relatingto the confidentiality aspect of the drafting exercise, requested that thesaid para may be deleted, as the Members of the Civil Society were allfor transparency of the process and placing of the deliberations inpublic domain. The Chairman clarified that since an agreement hadbeen reached on withholding of the deliberations from the public tillsubstantial progress was made, it was suggested by the Chairman torestrict the contents of the pare 10.1 of the Minutes to the aspect ofconfidentiality of the deliberations.ccordingly, para 10.1 of theMinutes may be read as under:- 'The Chairman also referred to theconfidentiality aspect of deliberations'. Subject to paras 3 & 4, theMinutes of the last meeting were confirmed and taken as accepted.

5. Shri Anna Hazare who was invited to offer his views, stressedupon the transparency aspect and submitted that the sovereign i.e. thepeople of India, should be kept informed of all the actions being takenby their representatives.he Chairman invited attention to thedeliberations of the first meeting to state that while there was no intentto hold back any information from the public, it was decided that for thesmooth functioning of the Committee, information may be disseminatedonly after certain progress was made and on periodic basis.6. The Chairman requested the Home Minister to present the viewsof the Government on the document containing basic principles forLokpal legislation as submitted by the Members of the Civil Society.

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7.1he Minister of Home Affairs at the outset clarified that he wouldbe spelling out the areas of clear agreement to the principles, and suchareas would thus be eliminated from further discussions.7.2ith respect to the first clause 1(a) of the principles relating to"financial independence and autonomy", the Minister of Home Affairsconveyed the agreement of the Government to the proposal of theexpenditure of the Lokpal being charged to the Consolidated Fund ofIndia (CFI) and not being voted in the Parliament. However, as regardsthe mode of determining the quantum of annual budgetary allocations,he suggested that this aspect may be put in a 'square bracket' forfurther discussions. He clarified that in respect of such areas put undera 'square bracket', there was likelihood of other possibilities whichcould be discussed and that in this case, it would be appropriate to lookinto the financial independence of existing institutions where thebudgetary allocations were charged to the CFI.

7 .3n the issue of "administrative independence" as reflected inclause 1(b) in the matter of control over staff, their strength, recruitment,and the process of recruitment, the Minister of Home Affairs expressed'in principle' agreement with the said postulate to suggest that the bestparallel which could be adopted in this case would be the administrativeautonomy of the Supreme Court of India.

7.4he next items (clause 2) taken up related to the "five year tenure"of the Chairperson and Members of the Lokpal, and the proposal oftheir " ineligibility from any Government appointment after completingsuch tenure in Lokpal". The Minister of Home Affairs conveyed theagreement of the Government on the said two issues.

7.5 However, on the aspect of a "Member or Chairperson being noteligible to contest elections" (clause 2), the Minister of Home Affairssaid that the issue may be placed under a 'square bracket' fordiscussions as the proposed suggestion may require a Constitutional

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amendment. Sfiri Justice N. Santosh Hegde and the Co Chairmansought to clarify that disqualification for contesting elections may flowfrom statutory provisions and not necessarily the Constitution. TheMinister of Home Affairs stated that it was presently being identified asan area on which further discussions may be required.

7 .6s regards the principle enunciated at clause 3 relating to the"selection process" in respect of Members and Chairperson of theLokpal, the Minister of Home Affairs conveyed the agreement of theGovernment to the extent that such process should be participatoryand transparent through a broad based Selection Committee, which maybe assisted by a Search Committee. The initiation of the selectionprocess three months prior to any likely vacancy, as proposed videclause 4, was also agreed to.

7 .7owever, as regards "composition of such Selection Committeeand Search Committee", the Minister of Home Affairs suggested furtherdiscussions particularly with respect to the Constitutional Authoritiesbeing proposed to be a part of such Committees.

7 .8hile clarifying that the Government side did not have any strongviews one way or the other relating to the clause 5 relating to the"removal of Chairperson/Member of Lokpal", the proposed provisionneeded further discussions for refinement and clarity.7 .9he Minister of Home Affairs referring to the provision relating to"Jurisdiction" in clause 6(a) suggested putting of a 'square bracket' withrespect to "consideration of complaints against the Prime Minister" forfurther discussion. f;t)st Justice N. Santosh Hegde pointed out that eventhe draft bill formulated by the Government included such provision.The Minister of Home Affairs clarified again that 'square bracketing' ofan issue or phrase did not imply that the same was being negated butthat it required discussions which in this case were desirable in view ofsuggestions received from other segments of the society. He also

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stated that the Government was in agreement with the jurisdictionalpowers for investigation of complaints against Ministers and Membersof Parliament.

7.10 Further areas which were open to discussion related to"jurisdiction over bureaucrats and Judges of the Supreme Court andHigh Courts". In the case of former, it was felt that the same needed tobe circumscribed as bureaucrats may also include Class IV employeesand the intent of the proposed legislation was to tackle corruption in theupper echelons of the Government. With regard to latter, i.e. theJudges, other strong views had been received which needed to bediscussed.

7.11 Referring to the construction relating to the "investigation ofcomplaints and filing for prosecution", the Minister of Home Affairsstated that the term "file" needed to be qualified as to, upto what extentthe Lokpal could go and have a role, though the fact was that the matterhad to be taken to its logical conclusion but the role of the Lokpal wasrequired to be defined. Further, the provision (clause 10.4) alsoindicated that the action would culminate in "award of punishment". Hethus suggested that the same needed to be clarified as to whetherLokpal had the power to award punishment. The Co-Chairman and ShriJustice N. Santosh Hegde clarified that the Lokpal was not intended tobe the Judge, Jury and the Executioner,and awarding of punishmentwould lie within the domain of the court of competent jurisdiction.

7.12 The Minister of Home Affairs referring to the other component ofthe said clause 6(b) suggested that the powers of the Lokpal to "receivecomplaints against misconduct" may be 'square bracketed' suggestingthat there may perhaps be dissipation of powers of Lokpal if it was alsoentrusted with the task of consideration of complaints against allbureaucrats and to make binding recommendations for imposition ofpenalties under the Conduct Rules. Shri Kejriwal sought to clarify thatthe misconduct as indicated in the said provision related to areas where

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vigilance angle was involved, and that two parallel streams could flowfor prosecution and disciplinary action. The issue was flagged fordiscussion on explicitly defining "misconduct". At this point, theMinister of Human Resource Development pointed out that similarposition emanates in respect of the proposed powers for the Lokpal for"grievance handling", as the same may also not involve vigilance angle.

7.13 The Minister of Home Affairs inviting reference to the provisionsof clause 6 (c) relating to "complaints against any politician for his/herconduct inside Parliament" observed that the nature of complaint had tobe defined. He also indicated that the Houses of the Parliament alreadyhad a mechanism in place in the form of Ethics Committee and thePrivileges Committee to address any misconduct of the Members. Atthis point the Co-chairman sought to clarify that the provision, wouldaddress issues like 'cash for questions' or 'gratification of voting' in theHouse etc. The Ministers pointed out that a Member of Parliament isprone to be complained against even by his constituents or for beingnon-participative in proceedings etc., and thus the nature of complaintsneeded to be defined for which discussions were required for havingmore clarity on this issue. On this issue, it was clarified by Co-Chairmanthat Lokpal would be only making recommendations, and the decision ofthe Speaker/Chairman of the House would be final, and such authoritycould chose to disagree with the recommendations of the Lokpal.

7.14 On the final clause no. 7 which postulates for doing away withprior permission for investigation and sanction for prosecution, theMinister of Home Affairs stated that the Government was not 'inprinciple' opposed to the proposal, and that once the jurisdiction ofLokpal is defined and agreed upon, there may not be any problem inadopting this principle. However, he suggested that a proviso mayhave to be built into this provision to reflect the exception in respect ofsuch cases where Constitutional or statutory immunity was providedfor. The Co-Chairman and Shri Justice N. Santosh Hegde submitted thatthe Constitutional immunity may stay but statutory immunities may have

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to go with Lokpal Bill having an overriding effect. This issue wasflagged for further discussion.

8.he Chairman after conclusion of the presentation of the Ministerof Home Affairs called upon the Co-Chairman to respond to theobservations and suggestions of the Government side.

9.1a) The Co-chairman referring to the clause 1(a) stressed that thediscussion at the highest level such as PM for determining the quantumof the budgetary requirements was imperative so that the functionalityof Lokpal was not compromised. The Minister of Human ResourceDevelopment suggested the model of the Supreme Court for itsapplicability in this area. The Chairman pointed out that the existingsystems in such cases where the expenditure was charged to theConsolidated Fund of India, including the case of Comptroller andAuditor General, had not caused any inconvenience to theseorganizations. Further referring to the practical aspect of existingcoalition politics the Chairman expressed apprehensions whereroadblocks could arise within the Government and complicate theissues. The Co-Chairman suggested an alternative to the effect thatafter discussions between the Chairman of the Lokpal with the FinanceMinister, it could be ensured that the institution is not starved for funds.

(b) The Minister of Law and Justice pointed out the statutoryprovision of section 13 of the Central Vigilance Commission Act, 2003which provided for such expenditure in respect of the Commission.These are charged and reflected in the Detailed Demand for Grants. TheMinister for Home Affairs also informed the Committee that there hadbeen no occasion where Supreme Court was denied funds requestedfor and the same had been the case in respect of other such institutionsviz. UPSC, C & AG, etc. Shri Justice N. Hegde however expressedapprehension that the case may be different for the Lokpal as it wouldbe having powers of investigation over the authorities competent toapprove such allocations. Secretary (Expenditure) who was present for

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the meeting clarified that in the case of proposals for budgetaryallocations for these institutions, the same are accepted in toto. ShriJustice N. Santosh Hegde however observed that the Civil Society wouldrevert back on the suggestion for applicability of the Supreme Court orUPSC model in this case.

9. 2he Co-Chairman confirmed the acceptance of the provisions ofclause 1(b) on which the Government side had expressed agreement.However, the Minister for Law and Justice supplemented that for controlover employees, it would be for the Lokpal to make rules and have suchpowers as are presently available to Supreme Court in this regard.

9.3a) The Co-chairman while referring to clause 2 observed thatthere was no dispute on the provision that the Chairperson andmembers shall not be eligible for appointment to any organization aftercompletion of the tenure in Lokpal. However, on the second componentof 'precluding Members and Chairman from contesting elections', hestated that the same is based on the premise that Lokpal is going toperform important functions, and people should have full confidence inits Members, who should have no affiliation with any political party afterdemitting the office.

(b ) The Chairman suggested that a pre-appointmentoath/undertaking may be considered in this respect. Shri Arvind Kejriwalexpressed that such undertaking would not have a statutory backing.The Minister for Human Resource Development stated that the issueneeded to be viewed in the light of provisions of Article 102 of theConstitution which speaks of disqualifications from being a Member ofthe Houses of the Parliament, which, inter alia, include the condition that"...if he is so disqualified by or under any law".

(c ) aid Justice N. Santosh Hegde referred to the concept ofholding of 'Office of Profit' which precludes membership of the House,and suggested that a similar provision could be made for Lokpal. Healso stressed that with the proposed legislation precluding such aspect

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thus would imply disqualification by law. The Minister of Home Affairspointed out that express provision for "Office of Profit" as a ground fordisqualification for membership of Houses of Parliament was enshrinedin the Constitution under Article 102(1)(a). Since the issue of Lokpalinvolved different dimensions, a Constitutional amendment may bewarranted. Further he stated that what was being recommended in theproposed legislation for Lokpal, involved prohibition rather thandisqualification, which needed to be looked into. At this stage, the Co-Chairman stated that in that event, the Lokpal may be considered forbeing accorded Constitutional status as had been recommended in thesecond ARC Report.

(d ) While clarifying that there was a genuine doubt on this aspectwhich should not be construed as negation of the proposal of the CivilSociety, the Home Minister stated that the disqualifications as laid downby law related to the taint on a person which prevents him frombecoming a member of the House, and holding of a post of Lokpalcannot be considered to be bracketed in that category. He further addedthat even Supreme Court judges are eligible to contest for elections.

(e ) The Minister of Water Resources pointed out that the proposedsuggestion would imply that top people carrying the faith of the peoplewould be ineligible and excluded from becoming importantconstitutional functionaries inspite of their exemplary contributions.The Co-Chairman did not agree, and indicated that under the Lokpalsystem as Members and Chairman should not be aspirants for any postafter completion of the tenure.

9.4 (a) Referring to the submissions of the Government side asregards the constitution of the Selection Committee as envisaged inclause 3 of the suggested principles, the Co-Chairman stated that withthe composition involving four judges and equal number of non-judges,including the C&AG, CEC, the Prime Minister and the Leader of theOpposition, the Lokpal could be a body that would instill trust and

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confidence, and only in view of the onerous duties of the Members ofsuch Committee, it was desirable that it may be assisted by a SearchCommittee.

(b ) The Chairman, inviting attention to the current politicalscenario suggested rephrasing of the provision relating to "Leader ofOpposition" to indicate Opposition leader recognized in the House orthe Leader of the single largest party in the Opposition.hisformulation was acceptable to the representatives of the Civil Society.(c ) Shri Prashant Bhushan stated that selection process was to beparticipatory in nature and explained the methodology to be initiated.These are open advertisement spelling out the necessary criteria,including nominations by any citizen, a filtration exercise to be carriedout by the Search Committee for confining the number of candidates tothree times the number of vacancies, and seeking inputs/ feedback onsuch shortlisted candidates by putting the names in website. To aquery raised in this respect, he stated that the Selection Committeewould not be empowered to go beyond the said short list for finalizationof the selection, and that the selection of Members of Lokpal would bedone through consensus.

(d ) The Minister of Home Affairs put in a word of caution for suchhigh degree of transparency particularly at the stage of shortlisting ofthe candidates which may be prone to complications. He stated thatpublic involvement should be restricted upto the point of invitingnominations and thereafter the Search Committee comprising of peopleof eminence should be trusted to carry out their task for shortlisting.Otherwise such a mechanism may also prevent good people fromvolunteering for such assignment or backing out. This was supportedby the Minister of Human Resource Development who stated that theSelection Committee/Search Committee could be trusted to carry out thetask fairly.

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(e ) The Co-Chairperson pointing out the principles of democracy,was of the view that the principals and not their representatives oragents should take such decision, and opportunity may be given to thepeople where the real sovereignty lay.

(f) Shri Arvind Kejriwal while agreeing to the possibility of misuse,stated that inputs and feedbacks from any of the sources werenecessary, but such data may be retained and considered inconfidentiality by the Search Committee without being made public andsuggested that the issue may be flagged for discussions.

(g ) The Minister of Human Resource Development suggested thatthe Selection Committee could evolve its own procedure and system inthis regard. Shri Prashant Bhushan stressing upon the need for inputsfrom general public, illustrated the case of withholding selection of aSupreme Court Judge for want of full and correct information which wasnot before the Collegium of Judges.

(h ) The Minister of Home Affairs suggested that the Governmentwas on board for transparency in the selection process but ademarcation needed to be drawn to the extent thereof. The Co-Chairman conveyed that the Committees could consider such feedbackas confidential.

(i) The Minister of Law and Justice supporting the argument forthe process being transparent and participatory led the discussion tothe other component relating to the composition of Search Committee.Shri Arvind Kejriwal pointed out that retired Constitutional authorities,with unblemished record could be a member of the such Committee.He stated that selection of such committee would comprise of 5members ( former CAG/CECs) and they would co-opt five civil societymembers. The Minister for Law and Justice however suggested for amore broad based search committee.

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(k) The Minister of Home Affairs sought to know the rationale forsuggesting retired C&AG/CEC as members of Search Committee. ShriJustice N. Santosh Hegde stated that the same was proposed for thepurpose of identification and determining other members of theCommittee, and that if the principle of formation of such Committeewas agreed to, the composition could be discussed. Shri PrashantBhushan suggested an option that the constitution of the SearchCommittee could be left to the Selection Committee. The Minister ofHome Affairs supported the said suggestion and mentioned that theprovision may be circumscribed by laying down the specifics. TheMinister of Human Resource Development suggested that respectivedisciplines may be indicated rather than the individuals, and that suchprovision may be more illustrative.

9. 5he Co-Chairman confirmed acceptance of the clause 4 relating toadvance action for filling up of vacancies.9.6. (a) On the issue relating to removal of Members and Chairpersonof Lokpal, it was explained by the Co-Chairman that the process mightemanate from a complaint submitted to the Supreme Court, which wouldorder a time bound investigation. The Minister of Home Affairs soughtclarification as to whether the process of impeachment was beingsuggested. Shri Justice N. Santosh Hegde responded to in the negative.The Co-Chairman supported the proposal by indicating that suchstatutory provisions existed as in the case of Prasar Bharati was noteffective.

(b) Shri Prashant Bhushan while responding to the Minister ofHome Affairs's observation with respect to Prasar Bharati, added thatthe impediment in such statutes was that the Government had to initiatecomplaint. This is being corrected in the proposed Lokpal Bill so thatsuch complaint could be made by any citizen. He further stated that if aprima facie case exists, trial could be held under the Judges Inquiry Act,and based thereupon, the Supreme Court could recommend removal.

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He also pointed out that provisions being suggested for the Lokpal,including those for removal of its Chairman and Member were akin toConstitutional provisions under Articles 317 and 319 relating to theUPSC except for the fact that the complaint in this case is proposed to

be triggered by any citizen rather than the Government.

(c) The Minister of Human Resource Development suggested thatthe provision could be circumscribed by allowing for filtration offrivolous complaints which could be considered to be dismissed at theinitial stage, or by introduction of a mechanism as proposed in theJudges Accountability Bill where such complaints were not required tobe referred to .the Bench directly, but are required to be consideredinitially by a Committee. The Minister of Home Affairs also pointed outthat where selection was being finalized after so much care with acredible selection procedure, the probability of such a situationwarranting removal of Chairperson or Members may be rare, but aprovision needed to be in-built to address to the complex questionsrelating to the mechanism of consideration of complaints, and thatdraftsmen could take a note for appropriately reflecting the intent of theobservations made by the Committee which could be further discussed.

9.7he Chairman at this point suggested for skipping of thediscussions in respect of jurisdiction of Lokpal due to paucity of timeand requested the civil society for moving forward to discuss othersimpler matters.9.8a) The Co-chairman at this juncture raised the issue relating toexclusion of judges from the purview of the Lokpal Bill. The Minister ofHome Affairs indicated that in the wake of other views, including thoseof two former Chief Justices of India, the matter could be debated lateron, based on which the Committee shall make recommendations. Hementioned that the Government side was neither for or against anyproposal, and its role was confined to formulate a strong and soundlegislation after due deliberations. The Chairman assured that thisissue would be discussed in detail.

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(b) Shri Prashant Bhushan stated that there was no statutoryimpediment in taking action against a Judge. However, referring to theVeeraswamy case, he stated that the power to allow investigation lay inthe hands of the Chief Justice which could be used at his discretion. Healso mentioned that with respect to the provisions in the proposedLokpal Bill, the apprehensions were misplaced, as the suggestedprovisions provided a greater safeguard and guarantee for protection.The Minister of Human Resource Development pointed out that theremay be other Constitutional implications which needed to be looked intoand discussed viz. whether the power for prosecution could be locatedoutside the judiciary. The Co-Chairman pointed out that the concept ofself regulation had failed, and there had been instances where ChiefJustices, in order to protect the image of the institution, protected theJudges.

9.9 The Co-Chairman confirmed the acceptance of the views of theGovernment side in respect of clause 7 of the principles relating to non-requirement of prior permission/sanction for investigation/prosecutionsubject to inclusion of a proviso in consonance with the definedjurisdiction.

10 .hri Arvind Kejriwal suggested for inclusion of the issue relatingto Lok Ayukta during the next meeting. The Chairman stated that thebasic principle of seeking the views of the State Governments wasrequired to be taken, and on this, he sought the views of therepresentatives of the Civil Society as to whether such action could betaken. A point was raised relating to Constitutional provisionsempowering the Union to legislate in respect of the States under theConcurrent List, with the Co-Chairman also pointing out that the UpperHouse represented the States. The Minister of Human ResourceDevelopment pointed out that though being part of the Concurrent List,in the case of Right to Education Act, the State Governments wereconsulted as stakeholders. Accordingly, the Chairman confirmed that

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action would be taken to consult the State Governments in respect ofthe provisions relating to the Lok Ayuktas.

The meeting ended with vote of thanks.

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