Trial by fire

As the joint drafting committee begins work on the Lokpal Bill, its civil society members face challenges from various quarters.

in New Delhi

AS the leader of the five-member civil society group within the 10-member joint drafting committee to prepare the new Lokpal Bill, Anna Hazare finds himself in an unenviable position. After his successful agitation for equal participation for civil society in the legislative exercise to create the first Lokpal at the Centre, people expect him to set high standards of probity for his team, even though it will have a short tenure (ending on June 30) and a limited agenda. Allegations casting aspersions on civil society members on the committee, even if they relate to the past, make them defensive and distract them from the committee's task.

Anna Hazare himself was prudent enough to ignore the allegation of financial impropriety against him. The Maharashtra government instituted a commission of inquiry under Justice P.B. Sawant in September 2003 to inquire into allegations of corruption and maladministration against a few State Ministers and Anna Hazare, who had led a campaign against them. The commission's report, submitted on February 22, 2005, concluded: The expenditure of Rs.2.20 lacs from the funds of the Hind Swaraj Trust [a trust which Hazare runs] for the birthday celebrations of Shri Hajare was clearly illegal and amounted to a corrupt practice (page 365).

Sections of the media highlighted this in the days after Hazare's recent campaign. But his close confidant, Swami Agnivesh, described this in a television programme as a mistake rather than an instance of corrupt practice; some observers considered it too technical to cast aspersions on Hazare's personal integrity. In 2005, Hazare had challenged the State government to take action on the report, but the government chose to ignore it. Hazare did not offer any fresh explanation on the subject after the recent campaign.

The other civil society members on the drafting committee had a harder time. The presence of former Union Law Minister Shanti Bhushan and his son Prashant Bhushan, also an eminent public interest lawyer, on the committee invited sharp criticism. Many observers questioned whether the civil society component of the committee was inclusive at all and whether the inclusion of both the father and the son in the committee pointed to a dearth of legal talent in the country.

The civil society members of the committee have asked the government to include among its nominees a member from the opposition parties and someone representing Dalits to make it more inclusive. But they were unwilling to accept similar advice and let their own side reflect the diversity of views within civil society on an effective Lokpal Bill.

At a press conference in New Delhi, film-maker Mahesh Bhatt, historian K.N. Panikkar and activist Shabnam Hashmi questioned the selection of non-government members on the committee, claiming it was not a true representation of civil society. They said the government had chosen the easy option by succumbing to Hazare's demands. To this, Arvind Kejriwal, a key member of the Hazare team, claimed that both the Bhushans had played a key role in drafting the Jan Lokpal Bill and were tough negotiators. This was the reason, he added, the government tacitly opposed their inclusion in the committee and wanted the smear campaign against them to succeed.

The campaign against the Bhushans has, by far, been the dirtiest. On April 13, some media organisations received from an anonymous source a CD containing a purported telephonic conversation between the erstwhile Samajwadi Party leader Amar Singh and S.P. chief Mulayam Singh Yadav, and between Mulayam Singh Yadav and Shanti Bhushan. The purport of the conversation was to suggest that Shanti Bhushan had told Mulayam Singh Yadav that Prashant Bhushan could fix a particular Supreme Court judge for Rs.4 crore.

Bhushans' defence

In his defence, Prashant Bhushan released the reports from two renowned forensic laboratories, the Hyderabad-based Truth Labs and the United States-based Sound Evidence headed by George Papcun. These reports found that most parts of Mulayam Singh Yadav's speech on the CD were copied from a conversation that had taken place between Amar Singh and Mulayam Singh Yadav in 2006. On the basis of spectrograms, the reports established that there were multiple signs of editing and gaps in Shanti Bhushan's purported speech in the conversation. Words/phrases have clearly been edited/lifted from many different conversations and stitched/spliced together, the reports found, according to Prashant Bhushan.

Meanwhile, reports suggested that the Central Forensic Science Laboratory (CFSL) in New Delhi found the CD genuine and without breaks in recording. Prashant Bhushan questioned why the CFSL ignored the reports of Truth Labs and Sound Evidence showing the exact positions of editing signatures and some of the gaps in Shanti Bhushan's speech. In any case, he said, both the CFSL report and a so-called report by a government laboratory describing the CD as genuine were not in the public domain and, therefore, beyond scrutiny.

Shanti Bhushan did not deny that the CD carried his voice. But he added that forensic reports showed that bits and pieces from different conversations appeared to have been spliced together to create his speech. Shanti Bhushan also denied that he had met Amar Singh, as Amar Singh claimed on the CD.

In a case before the Supreme Court, Prashant Bhushan is seeking the public disclosure of Amar Singh's 2006 tapes. He has alleged that Amar Singh, by fabricating the CD involving the Bhushans, has aimed to make the Supreme Court judge concerned recuse himself from hearing the 2G scam case, and the Amar Singh tape case. To substantiate this allegation, Shanti Bhushan has filed a criminal contempt petition in the Supreme Court and sought an independent investigation into the conspiracy behind the fabrication of the CD.

Sections of the media also sought to raise the issue of the allotment of farmland in Noida to Shanti Bhushan and his son, Jayant Bhushan, a senior advocate in the Supreme Court, by the Uttar Pradesh government. The Bhushans have claimed that the land was allotted under a regular scheme floated by Noida. It was for farmland plots of 10,000 sq. metres on which a farmhouse of up to 15,000 square feet was allowed to be constructed. It was not specified as to where in Noida the plots would be allotted. The Bhushans applied for the plots in March 2009. In May 2009, the authorities in Noida called them for an interview to verify the means of finance. In January 2010, the Bhushans received a letter from Noida saying a plot in Sector 165 had been reserved for them and that the allotment letter would be issued to them separately. In January this year, they received the allotment letters, giving the rate as Rs.3,500 per sq m.

Media reports on the transaction insinuated that the Bhushans received the allotment because Jayant Bhushan was arguing the Noida park case against the State government in the Supreme Court, and the allotment was aimed to silence him. On December 3, 2010, the Supreme Court held in this case that the Noida park project was not on a forest area but it imposed certain conditions because of its proximity to the Okhla Bird Sanctuary. One of the conditions was that permanent construction in the park area should not exceed 25 per cent of the total land area. Jayant Bhushan had argued the case in favour of the petitioner, who had challenged the construction of the Rs.650-crore park, citing violation of environmental norms. The court had stayed the construction until the delivery of judgment.

The Bhushans admitted that there were no criteria for the allotment of farmland that could be found either in the advertisement or in the subsequent brochure of the scheme. They said that if the allotments were found to be questionable, they would readily surrender their plots. The Bhushans argued that the Noida park case might be the reason for the delay and the poor location of allotment to them.

Meanwhile, another allegation against the Bhushans pertained to evasion of stamp duty payable by them in the valuation of a property in Allahabad. In 1966, Shanti Bhushan entered into an agreement to purchase a house in Allahabad, where he had grown up, for a consideration of Rs.1 lakh. However, the sale deed could not be executed because the 99-year lease granted by the government in favour of the owner had expired and was pending renewal. When the lease deed was renewed and the property was converted into freehold, the Bhushans demanded execution of the sale deed, which was refused by the owner. Thereafter, a compromise was arrived at between the Bhushans and the owner: the owner agreed to sell a major portion of the property to the Bhushans for Rs.1 lakh, provided that the remaining portion of 4,317.78 square yards (one square yard is nine square feet) was left with the owner to sell independently to others. The sale deed was executed in 2010 on the basis of a mutual agreement between the parties.

On September 29, 2010, two months before the execution of the sale deed, the Bhushans filed a copy of the deed and asked the Allahabad Collector to determine what stamp duty would be payable at the time of execution of the sale deed. Since the Collector did not make any such determination, and the sale deed had to be executed by November 29, 2010, the Bhushans paid the higher of the two methods of duty calculation. Meanwhile, the Bhushans received a notice from the authorities fixing April 28 or May 5 for the finalisation of the stamp duty and mentioning Rs.1.33 crore as the approximate stamp duty payable. The Bhushans insist that it was not a notice for evasion of stamp duty, but an invitation by the Collector to help him to determine the appropriate stamp duty payable. The Bhushans have promised to pay the legally applicable stamp duty.

The notice from the Collector to the Bhushans coincided with the expose of this transaction by Congress general secretary Digvijay Singh, who questioned their continuance in the drafting committee. The Bhushans' rivals in the legal profession also sought their exit from the committee as, in their view, these allegations pointed to serious improprieties. However, the Bhushans' friends in civil society vouched for their integrityand urged them to continue on the committee.

The Karnataka Lokayukta and another civil society member of the drafting committee, Santosh Hegde, also came under attack. Digvijay Singh asked why the State Lokayukta had not been effective in curbing corruption at the highest level in Karnataka. Hegde took it as an accusation of defending the corrupt and contemplated quitting the drafting committee, blaming the political class as a whole for its reluctance to enact a strong Lokpal Bill. However, other civil society members on the committee prevailed on him not to quit. Digvijay Singh later denied that he had accused Hegde of defending the ruling party in Karnataka.

While Hegde was well within his rights to protest against Digvijay Singh's remarks, observers were surprised that he contemplated quitting because of them. After all, Hegde took pains to factually challenge Digvijay's claim of ineffectiveness of the Lokayukta. He said that he had not allowed the State government to refer the complaint against the Chief Minister to an inquiry commission, which would have taken it out of the Lokayukta's jurisdiction, and that the inquiry into the complaint was not yet complete.

The ethical standards that should govern the conduct of civil society members continue to be debated. Hegde indicated that if the allegations against the Bhushans had come out before the composition of the committee, they would not have been nominated. While he did not support the demand for the Bhushans' exit, he himself set a higher moral standard for himself by suggesting that he would have quit if he faced similar allegations after nomination to the committee. Others on the committee, however, felt the Bhushans must continue and that the allegations against them could be probed separately by an independent body. They did not think that the Bhushans would compromise their independence of judgment because of these allegations.

The five civil society members appeared to tide over the challenges to their personal integrity after Anna Hazare and Congress president Sonia Gandhi exchanged letters expressing their support for a strong Lokpal Bill and their opposition to any kind of smear campaign against the committee members. The five members, however, were greeted with substantive criticism of the revised Lokpal Bill, which they circulated to facilitate a nationwide consultation before the second meeting of the committee scheduled on May 2.

The consultation organised by the National Campaign for People's Right to Information (NCPRI) cautioned against relying too much on the proposed Lokpal Bill. Instead, it recommended a basket of measures to address problems of governance including grievance redress and corruption. The Lokpal Bill could only be one of those measures aimed at building and strengthening existing institutions and processes, it said.

Another consultation, held under the banner of Citizens for Public Accountability in the capital, brought out the divergence of views on the Lokpal Bill. The participants, who included two former Chief Justices of India, M.N. Venkatachaliah and J.S. Verma, were critical of the draft Jan Lokpal Bill's provision enabling the Lokpal to investigate complaints against judges of the higher judiciary, especially when the latter would be empowered to probe charges against the Lokpal itself. According to them, the proposed Judicial Standards and Accountability Bill must take care of complaints against the higher judiciary. However, the civil society representatives on the committee (except Anna Hazare) feel that the JSA Bill could take care of the professional misconduct of the judges, while the Lokpal could investigate complaints of criminal misconduct against them. The differences on this are far from resolved.

Besides, the revised Jan Lokpal Bill has elicited intense criticism from some experts on some of its major provisions. The openness with which the committee considers these misgivings will determine how the Bill evolves.