Lokpal JDC - Minutes of Meeting 5

8/4/2019 Lokpal JDC - Minutes of Meeting 5

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Minutes of the Fifth Meeting of the Joint Drafting Committee (JDC) fordrafting the Lok Pal Bill held on 30.5.2011(Monday) at 11:00 hrs. in RoomNo.41,North Block.

The following were present:

(i) ShriMinistersPranab

Representatives of Civil Society(i) Shri Shanti Bhushan, Senior

Advocate - Co-ChairpersonMukherjee,

Minister of Finance -Chairperson

(ii) Shri P. Chidambaram, Minister (ii) Shri Anna Hazareof HomeAffairs

(iii) Dr. M. Veerappa Moily, Minister (iii) Shri Justice N. Santosh Hegdeof Law and Justice - Convener

(iv) Shri Kapil Sibal, Minister of (iv) Shri Prashant BhushanHuman Resource Developmentand Minister of Communicationand Information Technology.

(v) Shri Arvind Kejriwal

2 The Chairman welcomed the members and recalled that the 40basic principles of the draft Lokpal Bill, as submitted by India AgainstCorruption (lAC), had beendiscussed to identify areas of agreement, andsquare bracket issues for isolation of areas where convergence of viewswas required to be achieved through discussions. There is now a needtoremove such square brackets, and to proceed for drafting such agreedprinciples in legal language.

3.1 Shri Anna Hazaresought the permission of the Chair to state thatduring the last one and a half months only a quarter of the issues hadbeen agreed upon. He expressed apprehension that valuable time wasbeing lost. He also commented on the present scenario where while the


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general populace was in a posltlon to access information through the RTIAct and apparent acts o f corruption had come to lig'ht, but theredressal/action against gUilty officials has not been enforced. He alsostated that the Judiciary was at par with the functionaries of theadministration and corruption being all pervasive, there was a need toinclude the Judiciary in thtJ purview of the Lokpal. It was stressed thatthe Judiciary should not be excluded from the proposed Lokpal Bill.

3.2 On the issue of public grievances he stressed that the public wasto be made aware of the time lines as regards various administrativetasks so that action could be taken for non-adherence to such time limits.He stated that effective administration was necessary for eradicatingcorruption. Shri Hazare also pointed out that corruption being a part ofthe system irrespective of the levels and it was the lower levels ofadministration against which people had maximum grievances, it wasimperative that lower functlonartes are not excluded from the proposeddraft legislation of the Lokpal,

3.3 Shri Hazare also conveyed his perception that major issues werebeing deferred and that only a month remained to finalise the draft LokpalBill. To illustrate he referred to the discussion held during the precedingmeeting on maximum sentence to be awarded in case of conviction wherelife imprisonment was being suggested as an effective deterrent tocorrupt officials, although the suggestion for Government's side is forlonger punishment. He WB!S of the view that substantive issues had notbeen taken up for discusston. He indicated that major issues like mergerof CBI and CVC with the Lokpal, bringing the Prime Minister under thepurview of the Lokpal, and inclusion of High Court and Supreme Courtjudges also within its jurisdiction were more vital and should bediscussed first. He also stated that the bill was required to be finalizedwithin the deadline laid down by the Government resolution.

4.1 The Chairman emphasized that the Government was committed tointroduce the Lokpal Bil! in the ensuing Monsoon Session of the


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Parliament and there was a concerted effort to meet the deadline of 30-06-2011for finalization of the draft legislation of the Lokpal. He also statedthat the basic principles had already been discussed, that a number ofthem had been agreed upon, and that on such areas of agreement thedraftsmen had already begun the drafting exercise. On the remainingissues, a convergence was required to be reached and such issues oflarger implication were required to bediscussed.

4.2 With regard to areas of concern it was pointed out by the Chairmanthat certain Constitutional principles needed to be looked at as theproposed legislation of the Lokpal was to be formulated within theexisting Constitutional framework. He also pointed out that if it wassuggested that the Lokpal was to be a single Institution to address tocorruption issues, say from the Block level to the highest level ofbureaucracy, it would imply setting up of a parallel Government. Suchestablishment, inclusive of local bodies, may require a hugeworkforce forindependent supervision and management, apart from the existingmachinery being placed at the disposal of the Lokpal, as was beingproposed.

4.3 The Chairman also referred to the issue of bringing the judiciarywithin the purview of the Lokpal,and pointed out that if the judiciary wasput under the control and purview of the Lokpal, it may not be possiblefor it to function independently. Such issues, he stated ought to bethought upon deeply. The Shri Shanti Bhushan confirmed applicability ofConstitutional provisions of article 226. The Chairman stated that theExecutive, Legislature and Judiciary had iits own system of functioningunder the constitutional schemeand this neededto be respected.

4.4 He further stated that the Government would have to pilot theLokpal Bill in the Parliament and would have to muster support of otherparties in the Parliament for passing of the Bill. Thus, political partieswere also required to be taken on board and their views were alsorequired to be taken into consideration so as to formulate a powerful


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legisllation acceptable to all quarters. Here-emphasizedthe commitmentto formulate a draft Lokpal Bill by 30-06-2011and for its introduction inthe Parliament in the Monsoon Session, Chairman did not rule out morefrequent meetings for achieving the said objective.

5.1 Shri Shanti Bhushan, at this stage referring to Shri Anna Hazare'sobservations stated that the progress in the drafting of the Lokpal Bill hadbeen slow, and a time line of 15-06-2011may be set for finalizing thegeneral principles, being followed by discussion on the draft legislation.

5.2 On the judiciary issue, as referred by the Chairman, he clarified thatthere was no question of interfering with the judiciary and that only powerfor investigation was being sought under the proposed Jan Lokpal Bill, ifa corruption angle was involved, and that the existing provisions of thelaw also did not exclude judges from the definition of 'public servant'under the Prevention of Corruption Act or the Code of CriminalProcedure.

5.3 Referring to the provisions of the UNCAC,the Shri Shanti Bhushanstated that the same allowed for expansion of the term "publicservant/official" and in this regard therewas a thought process to includearbitrators also within the purview of the Lokpal. He stressed that themain function of the Lokpal will only be investigation of corruptioncomplaints and sending the matter to the Court based on evidenceassimilated. Hehowever added that if the evidence is not incontrovertibleor substantive, then based on preponderance of probability, regulardepartmental action could be initiated by the Lokpal by drawing up achargesheet instead of leaving such action to be taken by theGovernment. He thus stated that only two Government functions werebeing proposed to be taken over by the Lokpal - investigation and takingof disciplinary action but only in corruption related misconduct. Healsostated that part of the CBI would thus have to be transferred to be underthe control of the Lokpal to carry out such investigations.


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5.4 The Chairman at this stage pointed out that it had been agreedupon that an independent investigation and prosecution wings wereproposed to be created for the Lokpal, though Shri Shanti Shushan wasof the view that transfer of a section of the CSI to the Lokpal may not bepracticable. The Chairman also raised a query as regards answerabilityto the Parliament if any questions are raised in the Parliament relating toany matter that the Lokpal may be seized of. Shri Arvind Kejriwalresponded to indicate that Lokpal itself would respond to such ParliamentQuestions. The Chairman clarified that it was a different matter to appearbefore a Parliamentary Committee as a witness but for responding toQuestions it was a different situation. Illustrating with the hel!pof presentposition with regard to the CSI and the CVC, it was stated that theMinister of Personnel, Public Grievances and Pension replies to suchquestions in the Parliament pertaining to the said organizations. ShriShanti Shushan stated that there had to be some Ministry as in the caseof Election Commission, Ministry of Law and Justice is the nodal Ministry.

5.5 The Chairman pointed out that Election Commission of India didnot have any dedicated machinery but only a secretariat and during thetime of elections, under the provision of article 324 of the Constitution,the entire State machinery was placedat the disposal of the Commissionfor a limited period. The position, he stated remained unchangednotwithstanding increased frequency of elections. He further stated thatcorruption was an everyday affair and placing of the major part of theGovernment machinery at the disposal of the Lokpal was unrealistic.

6. Justice N. Santosh Hegde suggested initiating clause by clausediscussions which found favour with the Committee. Shri Anna Hazareatthis stage pointed out that various judicial powers were vested in theadministrative officers which were not being exercised. Shri ArvindKejriwal sought to spell out the three steps to be taken i.e, discussion onthe basic principles; followed by the drafting exercise in pursuance of theagreed principles; and thereafter discussion on legal proposals soformulated. He suggested that it would be appropriate if by 10th June,


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2011, the basic principles were finalized. The Chairman stated thatultimate objective could be achieved by any methodology acceptable in atime bound manner.

, (A i-7.1 Shri Prashant Bhushan encapsu~ng the issues to be discussed andendorsing Shri Anna Hazare's concern, stated that the same includedjurisdiction of the Lokpal with respect to the Prime Minister and theJudiciary; including the CBI and CVCunder the control of the lokpal; andthe issues relating to grievance redressal. The Chairman suggestedaddition of the discussions on the definition of "misconduct".

7.2 The Shri Shanti Bhushan and Shri Arvind Kejriwal on the issue ofmisconduct clarified that the same was restricted to actions relating tocorruption matters investigated by the Lokpal and stressed that in suchcases powers of removal through Departmental action was proposed tobe vested in the Lokpal. The Chairman sought illustrations on the aspectand the Shri Shanti Bhushan stated that there may be instances wherethe evidence mayor may not provide sufficient justifications forprosecution. In case such evidence suggests preponderance ofprobability, Disciplinary action could be taken. Further, according to theShri Shanti Bhushan, there was also no reason why on the same materialconfirming a prima facie case for prosecution, parallel disciplinary actioncould not be taken for the removal of the suspect officer. The Chairmanalso pointed out that in the event of a case for prosecution being primafacie established and arrest of the accused officer, he could be placedunder suspension if such custody exceeded a period of 24 hours. TheShri Shanti Shushan however pointed out that in such cases generallysuch suspect officers were never dismissed. The Minister of HumanResource Development suggested that 'misconduct' may be defined inthe relevant rules. Shri Arvind Kejriwal stated that post investigation, thelokpal would also function as the disciplinary authority, to the limitedextent, on same set of facts on which prosecution is recommended.


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8. The Chairman sugg(~!;tedconfirmation of the minutes of the FourthMeeting of the Joint Draf~i:lg Commlttes. It was informed by somemembers that the said mil utes were yet to be fully perused by theMembers representing the Civil Society. The same were stated to havebeen issued on 27th May, 20111with 28th and 29th May, 2011 being closedholidays preceding today's meeting of 30-05-2011. After discussion, itwas proposed by the Chairman that in para 4.29 (line 11) the statementthat "it (the Lokpal) could take suo rnoto cognizance of such report" maybe deleted, as the matter was not suggested as in terms of the clause 6(a)of the basic principles of the draft l.okpal Bill. and the Lokpal wasrequired to act on complaints received by it. The said minutes may standcorrected to that extent. This was agreed to. It was also decided that therest of the minutes could by taken li p for confirmation in the nextmeeting.

9.1 Shri Arvind Kejriwal suggested that priority may be accorded todiscussions on the vision of the Lokpal Bill indicating that there weredifferences in perception of the vision of the Government side, and that ofthe representatives of the C.ivilSociety.

9.2 The Chairman pointeu out that there were only some jurisdictionalissues which needed to be discussed, and that by and large there were nomajor differences in the vision of the Lokpal, The jurisdictional aspectswhich required discussion related to inclusion of the Prime Minister, theJudiciary, Ministers and tl1""Bureaucrats under the purview of the Lokpal.It was stated that the Lokpa! as envisioned was to be an independentbody to tackle corruption at high places and should not dlsstpate itsenergy by addressing issues of trivia! and minor matters at lower levels.

9.3 With regard to the Prime Minister being brought under the ambit ofthe Lokpal, it was suggested by the Chairman that the Prime Minister maybe kept outside the purview of the l.okpat, being a keystone of theParliamentary structure of the nation. It was stated that any complaint


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against the Prime Minister would renderthe incumbent dysfunctional as itwould leadto an institutional instability.

9.4 As regards the Judiciary, it was stated by the Chairman that aJudicial Standards and Accountability Bill was already before theParliamentary Standing Committee, and the suggestions with regard toJudiciary as are being proposed, may be used for strengthening the saidBill. In this regard it-was stated that the same was necessary in view ofthe Constitutional scheme of things as envisioned by the framers ofConstitution. Under the scheme,the three wings of the Government - theExecutive, the Legislature and the Judiciary are separate. It wassuggested that the Judiciary is self regulated and should not be subjectto the Lokpal. It was further clarified that in so far as the Executive andthe Legislature were concerned, there was a certain amount ofinterdependency, but judiciary has remained independent for its effectivefunctioning.

9.5 With respect to the Bureaucracy, the Chairman, referring to theproposal of covering all functionaries from the village level to the highestexecutive, stated that this would overburden the Lokpal. It wassuggested that Lokpal should cover senior functionaries, who couldinfluence the Government's policy viz. officers of the rank of JointSecretary and above as also the Ministers. The Chairman also statedthat at the lower level, the inefficiency may be due to various other factorslike lethargy, lack of interest and tackling these issues may be left to behandled administratively. It was emphasizedthat that focus of the Lokpalshould be to tackle corruption at high places. The Chairman felt that itwas the highest authorities which needed to be brought, at the firstinstance, under the purview of the Lokpal. He also referred to theproposal of the Civil Society which recommended higher penalties forpersons holding higher posts, and said that it was necessary thatcorruption at higher levels is first addressed.


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9.6 The Chairman clarified that the Government was all for anindependent Lokpal both financially and administratively with full powersof investigation through a dedicated staff and also an independentprosecution wing. It was stated that it had already been agreed upon thatLokpal's recommendations to the Government would ordinarily bebinding. The suggestion as regards covering cases of "misconduct" hadalso since been clarified by the Members of the Civil Society that thesame would imply only such conduct which flowed out of the prosecutioncase relating to corruption.

9.7 With regard to bringing Public Grievances and drawing up of aCitizen Charter under the purview of lokpal, he clarified that theGovernment side had already agreed to the said suggestion to the extentthat continued non-deliverance of the stated objectives under the CitizenCharter was to be perceived as a deemedcorruption which could warrantintervention of the Lokpal.

10.1 Justice N. Santosh Hegde pointed out that the existing laws alsodid not prevent or preclude investigation and prosecution of sitting PrimeMinister. Referring to the 39th Constitutional amendment which wasstruck down by the courts and for such Constitutional amendment, thejustification included preventing perceived instability due to challengesfor appolntrnentsrejsctlons to the highest posts including the PrimeMinister.

10.2 He further stated that under the draft Lokpal Bill, only a power toinvesti.gatecorruption charges relating to the Prime Minister was beingsought, and that the Prevention of Corruption Act, 1988 also did notexclude the Prime Minister from its definition of a "Public Servant". Thus,he stated that even as of now, it was possible to initiate and carry outsuch investigation. A Sub-Inspector is empowered to file a charge sheetbefore a court of law in such a situation. Further, he painted out that thedraft Lokpal Bill of the Government also did not exclude the PrimeMinister from its purview.


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11 The Minister of Human ResourceDevelopmentsuggested that suchcontentious issues may be deferred for discussion at a later stage and inview of paucity of time, there should be an effort to crystallize areas ofagreement, indicating that such agreement could be reached on 90% ofthe issues.

12.1 The Slui Shanti Bhushan pointed out that as per the existing legalprovisions, the Judges were also public servants, but in view of the apexcourt's decision in Veeraswamy'scase, no FIRcould be filed without theprior approval of the Chief Justice of India. The proposed Lokpal Bill, hestated, offered greater protection in such cases. He expressed concernover the extent of corruption in the judiciary. He was of the view thatjudicial corruption was more serious and Judges should be included inthe purview of the Lokpal.

12.2 Healso stated that the Lokpal comprising of people of standing putin place through a distinguished Selection Committee, would rather besubstituting a Sub-Inspector of Police and that there should not be anyobjection to it with respect public servant of any standing. He alsoreferred to the tenets of the United Nations Convention AgainstCorruption to state that it envisaged establishment of an independentagency, and the Prime Minister and Judges were to be included in theambit of the Lokpal. He stressed that the domestic law, post ratificationof the Convention by India, had to be in line with the provisions of theConvention.

12.3 Shri Arvind Kejriwal added that the corruption was required to betackled at the grass root level also and for that purpose, the setting up ofLok Ayuktas, at the State level was proposed on the lines of the Centraland State Information Commissions for the RTI Act. The Lokpal wouldexist at the Centre's level and Lok Ayuktas at the State levels. TheChairman clarified that the Parliament could pass the Lokpal legislationbut on the issue of Lok Ayuktas, the State Governments had to be

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consulted for their assent. TheShri Shanti Shushan however, counteredthat the lokpal legislation was to bs part of the Concurrent list where theUnion Government could legislate and such a law would override theState legislations once the President assented to such legislation. It wasclarified that under the proposed set up, there would be one Centrallokpal and 29 State level lok Ayuktas. Shri Arvind Kejriwal pointed outthat there could be national subjects like NHAI,Ports etc where there maybeoverlapping.

13.1 The discussion shifted on to the aspect of conduct ofParliamentarians inside Parliament vis-a-vis the court decisions in theJMM bribery case. The views expressed by the members of the CivilSociety suggested that Constitutional amendment may be made toinclude corruption related issues of Parliamentarians in the domain of thelokpal even if such conduct took placewithin the House.

13.2 The Chairman stated that if the Speaker referred such matter to thelokpal, there may not be any objection to lokpal carrying out theinvestigation and making recommendations to the Speaker. It waspointed out that the Speaker's decision with regard to conduct of aMember is a considered decision based on discussions with variousgroups. It was also indicated that Constitutional amendment toincorporate concept suggested by the Civil Society may perhaps bedifficult. The Chairmanalso stated that there was an inherent mechanismavailable within the legislature to check such misconduct which iseffective. The proposed suggestion of the Civil Society was driven bypublic perceptions, which, he stated, were high at present. Suchperceptions were not constant and could change with time. He stressedthat there was enough r,egulatorymechanism which was not being used,and there was a needto effectively apply the same.

13.3 Shri Arvind Kejriwal sought to know as to whether there had beenany criminal trial even if a strong prima facie case existed to supportcorruption angle. It was confirmed by the Chairman that such cases


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existed. The Shri Shanti Bhushan stated that MPs were also publicservants and the misdemeanors in their cases came to light only throughsting operations, and there was no other way to collect evidence orcarrying out investigation. He also observed that in majority of casessuch Membersare not punished.

13.4 Referring to the JMM case, Shri Prashant Bhushan indicated thatonly the bribe giver could be prosecuted and not the receiver, and thusno FIR could be lodged against the MP. It was thus being proposed thatthrough a statutory provision such power of investigation in such casesmay be vested in the Lokpal. The Chairman pointed out that theprivileges of the MPs were critical areas particularly in view of theconstitutional structure relating to his voting rights and his participationin discussions in the Parliament. It was observed that exercise of a votein the Parliament by a Member was a free act and recognizing that, nowhip had been issued for voting for formation of new States, Hindu CodeBill etc. Hestated that if such proposal were to be accepted there couldbe complaints and the parliamentary system could be weakened andfunctioning of the House is likely to be affected. The Chairman statedthat the said views were his personal views as an individual member ofthe Committee, and suggested that Ministers may place their respectiveviews before the Committee.

14.1 The Minister of HumanResourcesDevelopment stated that generalprinclplas of the proposed Lokpal Bill were required to be firmed up insuch a manner that they were consistent with the Constitutionalframework which had been envisioned by the Constituent Assembly. Hestated that the proposed legislation should not be deficient on thataccount. Observing that independence of the three wings of theGovernment was the leitmotif of the existing framework, and all the threewings were differently accountable inspite of separation of functions, hestressed that the intent is not to form a parallel government to address tothe issues of corruption.


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14.2 Referring to the powers of departmental action, he stated thatConstitutional provisions in the form of articles 309-311existed and wereto be respected. The Union Public Service Commission was also aConstitutional body and what was required that such bodies andadministrative authorities work ideally and the provisions of the LokpalBill should not hamper or abrogatetheir Constitutional rights and duties.

14.3 He expressed apprehension that the bureaucracy may lose itscapacity to offer its views independently and fearlessly and theirfunctioning may be restrained. He also stated that the Lokpal should notinterfere with the policy matters and its operations should facilitateprosecution in case corruption areas are identified. He also pointed outthat the Government machinery would remain the same, but would nowbe differently accountable, thus affecting the administration. The Ministerof Human Resources Development also sounded a word of cautionstating that if after Lokpal being in placecorruption subsisted, then therewould be no other recourse.

14.4 On the specific issue of exclusion of the Prime Minister, he pointedout that proof of culpabifity or otherwise would come at a later stage afterinvestigation and during such period a thought was required to be givento his standing in the public eye, his international standing etc. Hestatedthat in such cases, the Prime Minister could not survive any onslaughtfrom the Opposition which may not allow him to function leading to theParliamentary system collapsing. The Minister of Human ResourcesDevelopment suggested that the Prime Minister may be allowed to servehis term, and thereafter investigation and prosecution could follow.

14.5 He also raised the issues relating to Defence personnel, which heviewed should be kept outside the purview of the Lokpal as there wasalready a system of Court Martial in place to address misconducts.Justice N. Santosh Hegde pointed out that the proposed draft Lokpal Billtook into reckoning only matters relating to defence procurement. ShriArvind Kejriwal stated that the provisions of DSPEAct did not make any

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distinction with regard to nature of cases and thus there was no reasonfor exclusion of the Prime Minist~r or the Defence personnel from theambit of the Lokpal.

14.6 The Minister of Human Resource Development referring to thejudiciary, stated that the issue was more a procedural issue than ajurisdictional issue. He stated that substituting the Chief Justice with theLokpal would disturb the balance. He stated that the procedural issueswere being proposed to be set right through the Judicial AccountabilityBill to bring about a more transparent process for accountability ofJudges. He stated that the remedy did not lie in supplantingConstitutional autonomy of the Judiciary.

14.7 With regard to the Members of Parliament, the Minister of HumanResource Development stated the issue here also was procedural as theSpeaker had the powers to check misconduct of the Members. ShriPrashant Bhushan again referring to the JMM case stated that suchaction by the Speakerwould not lead to prosecution. It was stated by theMinister of Human Resource Development that Speaker could pass asentence. Further, it was also required to be decided as to whether theSpeaker and the Vice President would also be under the purview of theLokpal.

15.1 The Minister of Law and Justice observed that there were certainfundamental differences on the vision and clarity needs to beachievedonconceptualization of the Lokpal. He stated that the First and SecondReports of the Administrative Reforms Commission and the SanthanamCommittees Reports could be referral points to discuss the foundationand build the edifice. He was of the view that discussions should notpercolate to micro levels at this stage.

15.2 It was observed by the Minister for Law and Justice that theproposals as are being discussed envisage revisiting of variousConstitutional provisions and raised the question as to whether the


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Committee did have such a mandate for revamping of the Constitution.Hestated that the framers had env~5ionedthree independent wings of theGovernment with separate powers and in view of the discussions on theproposals, the approach was being directed towards reconstruction ofthe Constitution which was beyond the mandateof the Committee. It wassuggested that questions may be framed and answers may be soughtfrom others to throw open such fundamentals in the open.

16.1 The Minister of Home Affairs, taking the floor observed thatcorruption was a serious issue which had impacted the public mind andthe government was committed to do all that is possible to respond to thesituation but it was ambitious to assume that Lokpal could be an answerto all notwithstanding that it is envisioned to be made a powerfulinstituti 0n.

16.2 The Minister of Home Affairs thus suggested that the focus of theLokpal should be corruption at high places rather than such powerfulinstitution dissipating its energies on petty issues of corruptions of lowerfunctionaries like the Patwaries for which Lokpal may not be theappropriate authority unless in a case the lower functionaries were to beidentified as part of a chain.16.3 He stated that it was not an inadvertent error on the part of theframers of the Constitution that the three wings of the Government wereenvisaged as independent with inherent mechanism for self regulation.The Minister of Home Affairs stated that all the wings of the Governmentwere independent subject to various checks and balances. Hewas of theview that the Lokpal could be accorded authority for investigation inmost of the cases, and there could be other investigation authority aswell.

16.4 Citing the example of the Tenth Schedule of the Constitutionrelating to defection where the courts stepped in to confirm that suchchecks and balanceswork. Similar experienceemerged from the Sommai

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judgement which restrained the executive from dismissing theGovernment. He also stressed th.'&tnothing could however be run solelyon judgements of courts and parliamentary debates, and each wing hadits functions and was accountable in its own way. The executive isaccountable every day for its acts but at the same time it hadindependence and autonomy as any other wing. He stated that ifsomething was wrong then it needed strengthening of the regulatorymechanism be it in the Judiciary.

16.5 With respect to the MPs, he referred to the constitutionalprovisions of article 105(2)and 105(3)allowing freedom of speech to theMPs and stated that with respect to such rights, the conduct of the MPinside the House could not be subjected to the ambit of the lokpal. It wasstated that with every speech or a vote an allegation may be attached andthat such acts of the MP were part of the privileges. The conduct of theMember outside the Parliament, he stated, was agreed to be within thepurview and domain of the Lokpal. Thus to strengthen the Parliamentarysystem and the Judiciary, the authority of the lokpal, it was suggested,may not beextended to such areas.

16.6 Further referring to a quote by Sir Winston Churchill, the Minister ofHome Affairs, stated that of the various forms of Government democracywas bad but others were worse. He stated that it was the system whichneeded to be reformed and that Lokpal could not be a panacea for all illsand that it had to hone its focus on areas of corruption in high places.

16.7 The Minister of Home Affairs also pointed out that shifting of theCSI under the umbrella of the Lokpal would deny the Executive of its owninvestigative wing for taking care of other issues. He clarified that he wasfor a powerful investigative wing for the Lokpal, as also a full fledgedprosecution wing, but without denuding the powers of the executive.

16.8 With respect to the issue of authority of the Lokpal to takedisciplinary action he questioned as to what powers would, in that event


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be left with the executive and as to why, in such a scenario, a lowerfunctionary like the UDe obey th~"directions of the Secretary indicatingthat such a situation could adversely dilute effective administration. Hestated that creation of an investigation wing for the Lokpal should notimply that similar wing could not be available with the executive, and thatboth could co-exist. Referring to a Karnataka Lok Ayukta matter, hepointed out that in one case the Government appointed a Commission ofInquiry leading to a conflicting situation, which neededto be avoided.

16.9 The Minister of Home Affairs thus encapsuled his views by stating0 :;: -that eBI and cve would be continue to be with the executive though the

Lokpal could have a separate investigation wing. The Prime Minister maybe kept outside the purview of the Lokpal as he is answerable to theParliament and that in a gross and extreme case, the President can take aview on his/her dismissal. Judges may also be kept outside the purviewof the lokpal and whatever was being suggested/proposed in respect ofthe judiciary could be transferred to the Parliamentary StandingCommittee which is seized of the Judicial Accountability Bill. In thisregard he stated that there was an anomalous situation as all the ordersof the Lokpal were subject to judicial review and scrutiny under articles32/136/226, and with Judges being answerable and subject to Lokpal,there is likelihood that no judge would have the courage to go against thelokpal and such a situation needed to be avoided. The other Act(Judicial Accountability Bill) needed to be strengthened. He confirmedthat on the issue of Public Grievances and the Citizen's charter theGovernment had already expressed agreement with the issues beingdeemed to be carrying a corruption angle at some stage/point.

16.10 Finally, he stated that in this matter, the consultation with theStates was necessary and that Political parties were also required to beconsulted, emphasizing that the Lokpal Bill was an important tool, but notthe only solution to address the issue of corruption, and multiplemeasures were required to betaken in parallel.


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17.1 The Shri Shanti Shushan confirmed that there was no intent todisturb the Constitutional frarnew ark except for powers being vested inthe lokpal to remove a Government servant as an administrativemeasure, for which amendment'toarticle 311of the Constitution would berequired. He again invited attention to the UNCAC to stress upon theneed of an independent agency, more so because the existingfunctionaries may have vested interest in protecting their colleagues. Hestated that a uniform approach was required for all public functionaries atall levels. Referring to the proposed Jan Lokpal Bill, he stated that thesame did not envisage transfer of any powers of the judiciary or theParliament to the Lokpal. He further stated that what was conceived tobe part of the executive, will be discharged through an independent bodyby a separate mechanism so that the Government could not interfere insuch matters.

17.2 The Shri Shanti Bhushan also stated that since ElectionCommission, Supreme Court, and the UPSC,were separate independentagencies, on the same lines, the Lokpal could be brought into existence,with limited powers of investigating, and it was open to the Parliament toprovide for a separatemechanism for its functioning. Referring to a PrivyCouncil decision of 1949 which opined that Government could notinterfere in investigations, though outcomes were subject to judicialreview. He again stated that a higher authority is being proposed in theform of Lokpal for investigating such matters vis-a-vis the existingposition of such power being vested in a lower functionary as per thePrevention of Corruption Act and the Code of Criminal Procedure Code.He sought to know what possible objections could be there when thesame work force was proposed to be redeployed and other powers of thewings of the Government would subsist.17.3 The Chairman clarified that there were no two opinions aboutsetting up of an independent machinery with independent wings forinvestigation and prosecution, but the issue was relating to beingpragmatic and confining the role of the Lokpal to the higher echelons.

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The Minister of Home Affairs also stated that the Members of the CivilSociety had agreed to the pO:};'iion that Government would not bedeprived of its Investigating aqency, The Chairman painted out thatjurisdiction and issues like conduct of MPs in the Parliament were issueswhich could have serious repercussions, and consultation with politicalparties would be required for their views. As regards Judiciary, the viewswere not being objected to but itwas proposed to makesuch suggestionsas part of the Judicial Accountability Bill, which is now underconsideration of the Parliament.

18.1 Justice N. Santosh Hegde stated that the discussions pointedtowards a need for a strong Lokpal but at the same time views had beenexpressed as regards exclusion of the Prime Minister and the Judiciary asalso the lower functionaries of the executive. This hardly left anyoperating area for the Lokpal. He also stated that the JudicialAccountability Bill did not provide for corruption or prosecution aspectsbut referred only to 'misbehavior'. Justice Hegde thus stated that itimplied that Lokpal would hardly have any functions. Healso pointed outthe recommendations of the First Report of the Administrative ReformsCommission and stated that the object of overseeing good governancewas also recommended to be withii"l the purview of the Lokpal and thusthe lower functionaries could not be excluded from the purview of theLokpal. He further stated that the Prevention of Corruption Act did notmakeany distinctions and exceptions, but now the import and meaning ofthe law is being restricted to a specific class.

18.2 The Minister of Home Affairs at this stage pointed out that themechanism of Grievance Redressai as suggested had beenaccepted andat some point, actions of the functionaries including the lowestfunctionary would be deemedas a matter of corruption where the Lokpalcould step in, and further that the suggested levels also could bediscussed to be brought down in other cases.

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18.3 He further clarified the Government stand to be in sync with theproposals made to state that on'j one exception was being proposedfrom the executive i.e. the Prime Minister who would also be accountableonce he concludes his term. With regard to the Judiciary, theGovernment did not propose to exclude accountability of Judges fromcorruption related matters, but was concerned about the proceduralaspects for which strengthening of the Judicial Accountability Bill wasbeing proposed, to put in placean equally efficient mechanism within theJudicial set up. Further for MPs only two actions were suggested forbeing excluded and these are guaranteedby the Constitution - the rightto speech and vote and for all other actions outside the Parliament theGovernment had agreed to the suggestions of the Civil Society. TheMinister of Human Resource Development endorsing the views of theMinister of Home Affairs also proposed exclusion of Defence personnelfrom the purview of the Lokpal,

19.1 Shri Prashant Shushan stated that neither the Constitution nor thelaws provided any immunity to the Prime Minister. Hestated that if a caseis madeout, the investigations hao to be carried out. On the observationthat a cloud would be created and that it would make it difficult for thePrime Minister/Government to function, he stated that presently also theCSI could initiate investigation but practically the same cannot be and isnot done.

19.2 With respect to self regulation by the various institutions hereferred to the provisions of '(he UNeAe which recommended anindependent institution so as to resolve inherent conflicts of interest. Heargued that the position emanating in respect of the Judiciary in view ofthe Veeraswamy's judgment would also be resolved, as an institutionindependent of the Executive i.e. the Lokpal would be empowered toinvestigate such matters and the dttution and conflict of interests withinthe judicial fraternity could also be nullified. With respect to theprovisions of article 105 of the Constitution, he stated that the same didnot provide immunity for corruption related matters and suggested that if

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a corruption angle was involved, the act could be placed in the domain ofthe Lokpal.

20.1 The Chairman stated that contours of the proposed Lokpal Bill hadto be drafted within the Constitutional framework and that the canvasscould not be enlarged by the Committee. He also clarified that it was notbeing proposed that the Prime Minister may be given total immunity buthis exclusion was being suggested till he held the office. The Chairmanalso stated that the test of the legislation would be at its implementationstage, and a workable legislation 'Afhich can be put in practice had to beformulated and the canvass, had to be compressed from practical point ofview. He stated that there would be initial teething problems which will berequired to be addressed at a later staqe and that we should proceed on abroad consensus reached and on areas where there is convergence ofideas.

20.2 He stated that the issues relatinq to the Judiciary needed to beexamined and on other issues, St.ate Governments and Political Partiesmay be requested to furnish their views for being discussed in the nextmeeting. He assured sharing of such views with the members of the CivilSociety.

21.1 Justice N. Santosh Hegde raised the issue of provision in theGovernment draft which provideo for inclusion of the Prime Minister inthe ambit of the Lokpal stating that it may be clarified as to what causedchange of views on this issue when the Government itself had proposedsuch a provision in its 2010 draft.

21.2 The Chairman and Members, of the Government side explained thatsuch inclusion was also qualified and that due to change in groundrealities relating to political positioninq in view of coalition politics in theParliament, this was being suqqested. It was also clarified that the saiddraft had not reached the Cabinet for its approval and as such had notattained finality.

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22.1 Shri Prashant Bhushan ~;~il1ted out that Justice Venkatachalaiah,Justice Krishna Iyer and Justice Verma had formulated a draft legislationas re'gards the Judicial Accountability Bill which had been submitted tothe Government, and the same was not made public. The Ministersconfirmed that they also did not have access to such draft. The Ministerof Law and Justice however confirmed that the with regard to the presentJudicial Accountability Bill before the Parliamentary Standing Committee,discussions had taken place with the said Justices and that their viewshad been incorporated in the BilL

22.2 Shri Prashant Bhushan pointed out that the present bill onlyreferred to "misbehavior" and further that it envisaged two Committees ofJudges including a retired Judge to adjudicate on such issues and thishad created a conflict of interest. Further he stated that the said Bill didnot refer to the corruption aspect. He also stated that self regulation injudiciary was not workable. Referring to the provisions of the proposedLokpal Bill he stated that independence of the Judiciary was notsuggested to be compromised, and the authority of investigation by anoutside agency should not imply intruding into the independence of thejudiciary. He elaborated to state that with Jan L.okpal Bill, the decision toinitiate investigation had to be decided by a 7 member Committee of theLokpal which would include four Judicial Members.

22.3 The Chairman pointed out that the powers available with theSupreme Court could not be withdrawn and all the inputs relating to theJudiciary for improving the Judicial Accountability Bill could be providedto the Parliamentary Standing Committee. Similarly privileges of the MPsin Parltament also could not be compromised. The Co-Chairperson andJustice N. Santosh Hegde suggested that corruption issues could beexcluded from such powers with the Judiciary or the Legislature only forthe purpose of investigation being allowed to be carried out by theLokpal, and emphasized that after ratification of the UNCAC there couldnot be any departure from its provisions. The Minister of Home Affairs


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pointed out that a Constitutional protection was available in the form ofarticle 124and the provisions ofihe Lokpal Bill had to be consistent withthe Constitutional provisions. Hestated that such matters have to go tothe House and the accountability of the judiciary was implicit, and couldbe madeexplicit.

23.1 Shri Arvind Kejriwal {~lisedthe issue of parallel investigation by CBIand the Lokpal. In this regard it was clarified, that it had been agreedupon that once the Lokpai was seized of the investigation, the role of theother investigating aqencies would cease.

23.2 He also raised the Issue relating to the Bureaucracy and theproposed Public Grievance mechanism. The Minister of Horne Affairsstated that only a practical view was required to be taken and that theviews as expressed did not imply that Lokpal would not have anyjurisdiction. A stage had to be identified to be reached with relation to apublic grievance when a case of deemed corruption issue needed to beformulated, and similarly a cut off needed to be identified for the level ofofficers upto which the focus (If the Lokpal needed to be honed so as tosave the time and energy ct the Lokpal. Shri Arvind Kejriwal pointed outthat at the State level there was a proposal for setting up of Lokayuktas.Hestated that for the next r ' l>E!etmg the basic vision of the lokpal neededto be discussed to narrow down the areas of divergence. Shri AnnaHazarewas of the view that Lokpal Bill would bring about a change aspresently government flH ds were not being fully expended ondevelopment work, and with a unified single authority being in place theexpenditure on rnanaqernenractivities would be considerably curtailed.The Minister of Human Res;ourceDevelopment sought the views of theChair for briefing the Pressand it was expressed that a general statementmay be made indicating working towards reaching convergence on areasof disagreement. However, the Co-Chairperson was of the view that thepublic may be made aware of such areas of disagreement and it wasdecided that the Presswould bebriefed independently by both the sides.


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24. The Chairman proposed the dates of the next two meetings as 6thand 10th June, 2011. Shli t'\cj; ~'iilai suggested that during the ensuingmeeting the differences that had emanated may be taken up fordiscussion first. The Chairman listed out such areas - relating toexclusion of the Prime WHniste' r , the Judiciary, indicating that the samewould be part of the discusslous on the jurisdiction of the lokpal andexcluding the MPs to the ei - :Hmt of their dghts of Voting and speech in theParliament as provided for by article 1D5(2)of the Constitution. It wasclarified that for all other matters outside the House, they (MPs)would bewithin the ambit of the l.okpa'. He also suggested formulation of aquestionnaire for being hosted on the website, and seeking views of theStates and Political Parties statinq that the inputs would be shared withthe members ofthe Civil S(1c~ety.

25. The meeting endedwith vote of thanks by the Chairman.

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Lokpal JDC - Minutes of Meeting 5

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