Whole Bill diluted'

Prashanth Bhushan: "TheLokpal under our Bill is the most accountable institution in the world."-P.V.SIVAKUMAR

Interview with Prashant Bhushan, Senior Advocate and member of Team Anna.

PRASHANT BHUSHAN, a member of Team Anna and a Senior Advocate of the Supreme Court, has been a vociferous critic of the government's Lokpal Bill at every stage. He answers, in an interview to Frontline, questions raised by Members of Parliament during the recent debate on the Lokpal Bill in the Lok Sabha and the Rajya Sabha and enunciates the challenges ahead of the movement for an effective Lokpal. Excerpts:

The government's Lokpal Bill makes an attempt to separate the investigative and prosecution functions in criminal justice administration. Such separation has been considered a desirable goal in itself.

The Lokpal, in our Bill, is essentially an investigative body with some incidental powers of recommending disciplinary action and freezing of assets. It does not enjoy any judicial powers, and the final decisions about conviction, sentencing, confiscation will be taken by the courts. I don't agree that separation of prosecution and investigation is desirable. What I agree with is that investigation and prosecution should not be under the control of the political executive. Both should be under an independent body same body or two different bodies. Probably better that it should be controlled by the same body.

The assumption that our Bill frees the Lokpal of any control is wrong. The Lokpal under our Bill is the most accountable institution in the world. First, it is mandated to function with complete transparency, meaning that every detail or every investigation must be put out on a public website immediately after the investigation. Secondly, the CAG [Comptroller and Auditor General] is required to do an annual and financial audit of the Lokpal. Thirdly, every member of the Lokpal is accountable to the Supreme Court, and any citizen can move the Supreme Court to get any member of the Lokpal suspended or removed. And, of course, it [Lokpal] is subject to judicial review of the High Courts or the Supreme Court like every other institution. Anybody can go to court to stop its investigation or challenge its decisions.

A December 2011 independent research study conducted by the Law and Governance Faculty of the Bangalore-based Azim Premji University has analysed the functioning of the Karnataka Lokayukta model over a period of nearly two decades. It has concluded that the Lokayukta has failed to achieve its primary purpose of securing criminal conviction of corrupt officials. It has also shown that the vesting of investigative powers in the Lokayukta and the merging of the State's anti-corruption bureau with it have not resulted in proactive Lokayukta action against corruption.

The reason for the unsatisfactory results of the working of the Karnataka Lokayukta is the inadequate investigative machinery provided to it as well as the inadequate number of judges dealing with charge sheets filed by the Lokayukta, resulting in gross delays in investigation as well as trials. Also, the investigative machinery under the Lokayukta is still that of the government, which retains administrative control over it.

I have not read this research study, but I know that the State Lokayukta is not satisfactory, and in my view these are the reasons.

It is another matter that there should be some vetting of the charge sheet to be filed by the prosecution in order to see whether it is proper or not, whether it is called for or not. Somebody other than the Investigating Officer [IO] should vet that charge sheet. Thereafter, there should be coordination between the investigators and the prosecution because the investigator has to provide all the evidence and the prosecutor has to put that evidence before the court. That is why in most countries there is no separation.

Prosecutors should be independent of the government. Today, investigation is under the government. When you free investigation from the government, it is not necessary that prosecution must be separated. Today, the government is influencing the prosecution. In the 2G case, every day the government is interfering with the investigation through the Director of Prosecution [who is an officer of the Law Ministry] or the CBI.

Section 25 of the government's Bill recognises the independence of the investigator from the government. Even the Supreme Court has acknowledged in the Vineet Narain (hawala) case that the government's administrative and financial control over the CBI is legitimate. If the administrative control is transferred to the Lokpal, how will you ensure ministerial responsibility to Parliament for the functioning of the CBI?

This business of supervisory jurisdiction is actually meaningless because it does not allow the Lokpal to interfere with investigation. So, what can the Lokpal do?

I have had discussions with two successive CVCs [Central Vigilance Commissioners], P. Shankar and Pratyush Sinha, about this. The CVC also has supervisory jurisdiction over the CBI. Both the former CVCs said that the maximum that they could do was to ask the CBI to register an FIR. Thereafter, they could not tell the CBI what to investigate, how to investigate, whether to investigate.

In the 2G case, on our complaint, the CVC asked the CBI to register an FIR. The CBI registered the FIR and sat on it for two years until the Supreme Court started monitoring the matter. The CVC couldn't do anything to push them. Control is exercised through administrative powers of transfers, promotions, postings, and disciplinary control. That is the real control over the CBI. Through that the government is able to influence the investigation.

The Supreme Court has not said that administrative control of the CBI must remain with the government. In the Vineet Narain case, the court felt that supervisory jurisdiction was good enough. But the court did not realise that it would actually be meaningless. The Supreme Court wanted to free the CBI from the interference of the government. But the model that the court decided [on] was clearly unworkable. The only way of freeing the CBI would be to remove it from the administrative control of the government and put it under the administrative control of an authority that is independent of the government, like the Lokpal.

There are many institutions which have no accountability to the government. You can give accountability to Parliament, but that does not mean there has to be accountability to government.

The judiciary has 100 times the powers of the Lokpal. But the accountability of the high courts and the Supreme Court is zero. They are not mandated to function transparently. Effectively, the government has no control over the judiciary. In practice, even Parliament has no control over the judiciary because we have seen that impeachment of judges is impractical. The power of the Lokpal is only to do criminal investigation of one kind, which is of corruption. Even in the police, the SHO [station house officer] has more powers than the Lokpal. The SHO can investigate every crime. The Supreme Court can not only order an investigation [initiated by the Lokpal], but stop it. Even high courts can do that. Take the Election Commission or the CAG. They are not accountable to the government.

There are many authorities under the Constitution which are not accountable to the government but are accountable to the Supreme Court. Similarly, the Lokpal would have been accountable to the Supreme Court. In fact, we [in the Jan Lokpal Bill] have fixed two other accountabilities of Lokpal. One, it will have to function transparently. No other institution is mandated to function transparently. Second, it will be subjected to an annual audit, performance and financial audit, by the CAG. No other institution is like that.

It is pointed out that as the government's Bill gives the power of superintendence and direction of the cases to the Lokpal, this will enable the Lokpal to intervene and ask for a change of IO if it feels that any IO is being influenced in the investigation by an indirect carrot or stick.

The Lokpal under the government's Bill can't ask for that. The Lokpal has been given the right to ask any investigating agency, not merely the CBI, to investigate. If you look at the Bill carefully, the Lokpal can send a case to the Enforcement Directorate or the State police. Everywhere, there is the same problem. All these organisations are administratively controlled by the government.

But why can't we assume that since the Bill gives the Lokpal supervisory powers over the investigating agencies, the Lokpal can check any abuse of administrative control over them by the government?

This supervisory jurisdiction was vested with the CVC for seven years. The CVCs said they consulted former CJIs, including Justice J.S. Verma [who had delivered the Vineet Narain judgment], regarding this supervisory jurisdiction and what it meant. They told us that the CVC could not do that [check misuse of administrative control by the government]).

Just because the former CVCs did not exercise their supervisory powers fully because of flawed advice from a former Chief Justice, should this become the precedent for the Lokpal?

Well, it is an open question whether the CVC can check the government's interference with the CBI or not. If it can, than it is good. It is something that can be examined. All that I am saying is, make it explicit in the Lokpal Act that it can do all these things.

Rather than leave it to inferences?

Of course. What is administrative control? It is precisely this, that the government can change the Investigating Officer, transfer him, deny him promotions, that it can write his confidential reports. Vest this administrative control with the Lokpal. What is the problem? After all, administrative control of all Election Commission staff is with the E.C., not with the government.

The question of federalism and the perceived encroachment on States' rights have proved to be the Achilles' heel of the government's Bill and the Jan Lokpal Bill. How do you think this can be resolved?

It is clear that there is no question of federalism here. This whole argument that the Lokayukta being there in the Bill will interfere with federalism is totally misplaced. The Constitution has three lists the Union List, the State List and the Concurrent List. This subject pith and substance of this legislation is essentially criminal law and criminal procedure because corruption investigation and prosecution are aspects of criminal law and procedure.

These are both Items 1 and 2 in the Concurrent List. Therefore, Parliament has equal right to legislate. Parliamentary legislation on this will supersede the State legislation. Even otherwise, since this law is to implement the U.N. Convention against Corruption, it comes under Article 253 of the Constitution, under which only the Union has the right to legislate. In any case, both the Union and the States have the right to legislate since it is in the Concurrent List.

So, is Leader of the Opposition in the Rajya Sabha Arun Jaitley wrong in arguing against the use of Article 253 by the government?

Jaitley is totally wrong because he says that State civil services are in the State list. But the Bill doesn't deal with State civil services. On disciplinary matters, the Lokayukta has only the power to recommend. Ultimately, the decision has to be taken by the State government. And that is only an incidental power arising out of the corruption investigation. So, the test which is applied is what is the pith and substance in this law? Is it a law which deals with State civil services? Or does it deal with criminal investigation? Obviously, it deals with criminal investigation.

So, is it correct to deal with the Lokpal legislation under Article 253 or as an item under the Concurrent List?

Both are correct.

Is Jaitley correct in arguing that the government ought to have invoked Article 252 of the Constitution (Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State) to enact the Lokpal legislation?

The government need not invoke Article 252 at all. The one amendment which the government accepted defeats the whole object. [The amendment says that the Bill, once passed, shall be applicable to States only if they give their consent to its application]. In fact, the government has diluted the whole Bill by allowing the States to decide when to apply this Bill. It means that the States will never decide to apply the Act.

If Parliament has the will, it can do it. It will show that the BJP is also against a strong Lokpal Bill.

You have been a strong supporter of deepening participatory democracy by legitimising referendums on important issues. Do you think referendums can aid legislation and policymaking? If something impinges on secularism and democracy, for example, is it advisable to go in for referendums? There are certain non-negotiables such as the basic features of our Constitution. If a piece of legislation or a policy measure aims to advance such a basic feature, and if public opinion is in favour of abandoning our commitment to such basic features, what happens? On the Lokpal issue, nobody is sure about public opinion on the many intricacies of the Bill. How could the government go by the results of privately conducted opinion surveys?

If a referendum impinges on secularism or democracy, that referendum will not be constitutional. If the referendum is for making a law, that law cannot be against the Constitution. If the referendum is for making a policy, that policy cannot be against any law. If the referendum is for amending the Constitution, even that cannot be against the basic structure of the Constitution.

Only those referendums can be held which are constitutional and which are for effectuating something permitted by the Constitution.

Secularism and democracy are parts of the basic structure. If the referendum is for amending the Constitution's basic features, that referendum will be unconstitutional. If nobody is sure what the public opinion wants, we can test it out. The government could have gone in for a referendum. This [Lokpal] was a good case.

There are too many nuances in this debate. How would the public understand these in a referendum?

You can ask a neutral body like the Election Commission to identify which are the contentious issues and ask it to frame the questions in a neutral and fair manner. One contentious issue was the selection committee [to choose the Lokpal members]. There were three or four different options, and the people could have been asked to vote on them.

What will be the relevance of Parliament if we have to go in for a referendum to resolve every issue?

But Parliament is not deciding according to the will of the people. This kind of parliamentary democracy is not allowing governance by the will of the people. People do not want SEZs [special economic zones], yet in five minutes Parliament passes the SEZ Act. People did not want the nuclear deal, but the government goes ahead to pass the nuclear deal.

Parliamentary democracy is not part of the basic structure. We can change it. Democracy is the basic structure. What form of democracy, we can always change by amending the Constitution. If we find that parliamentary democracy is not resulting in the will of the people being carried out, then we can change that. They [the MPs] get elected by use of money power. So, this form of democracy has shown itself to be very imperfect and defective.

What road will Team Anna take in the coming weeks? What, according to you, have been its strategic errors and what correctives should it take?

I would say that in the last few months we neglected the ground-level work of communicating with the people. Our workers and volunteers were not organised by us, so to say, to communicate all these issues to the people. We need to spend more time on grass-roots communication and mobilisation. Then, we need to develop a long-term perspective and a broader vision about the functioning of democracy and some of the other key issues in the country.

You have said all political parties do not want a strong Lokpal. Can it be said that it is because the Lokpal addresses the symptoms rather than the root cause, which is electoral and corporate corruption. In other words, a strong Lokpal may not achieve much, given the aberrations in our electoral system.

Political parties do not want a strong Lokpal because they have a vested interest, conflict of interests, in the matter. Most of them would be adversely affected by the enactment. They are not worried about the root cause. Of course, the government Bill, like the Jan Lokpal, includes in its ambit corporate bribe-givers. In our Bill, we have said that if a corporate is involved in corruption, then five times the loss caused to the government should be recovered. That means for every act of corruption, the corporate accused would virtually be bankrupted.