Anna misunderstood the meaning of fast: Sibal

Karan Thapar: Hello and welcome to Devil’s Advocate on a special interview with the Human Resource Development Minister Kapil Sibal on the Lokpal Bill and the critical differences between the government and Anna Hazare.

Kapil Sibal, let's in this interview take up the key critical question about the judiciary. Should it be under the ambit of the Lokpal? Many people believe that the government is against it. Is that the case? If so, why?

Kapil Sibal First of all, let's be very clear. I think we should have a law. Whether it’s the Lokpal or some other law, under which the judicial accountability, which makes the judiciary accountable not in the present form but in a different way.

Karan Thapar: That everyone accepts.

Kapil Sibal So we all accept that. Now the question is should it be under the Lokpal or should it under the judiciary accountability?

Karan Thapar: What is your answer?

Kapil Sibal My answer is that it should not be under the Lokpal.

Karan Thapar: Why?

Kapil Sibal I tell you, I tell you a fundamental reason. Let’s assume the Lokpal has control over the judiciary in terms of investigation and prosecution and assume in a given case the prosecutor of the Lokpal files a case against an accused and the judge doesn’t agree with the Lokpal on that particular case. Both in the terms of substance and even on bail. The judge will always be worried that I will be investigated by the Lokpal if I disagree.

Karan Thapar: So it will be a factor of intimidation?

Kapil Sibal No, it is against the substratum of all we stand for.

Karan Thapar: Plus there is circularity of authority.

Kapil Sibal Yeah, you can’t give that power of judiciary, when the judiciary has to be independent of every authority.

Karan Thapar: So this is a good reason why the judges needs to come under a separate bill, not the Lokpal.

Kapil Sibal Not the Lokpal because the prosecutor will control both the charge as well as the fate of the case and the judge will be worried.

Karan Thapar: Now at the moment there is a judicial standards and accountability bill in front of Parliament but the problem with the bill is it doesn’t address corruption of funds. The closest it comes is misbehavior, which you as well will accept, is only at best a tangential, an indirect way of covering corruption.

Kapil Sibal That is why we told the members of the Lokpal that you give us your suggestions and we will attempt incorporate those also in the judicial accountability.

Karan Thapar: I want to get you to repeat this because this is quite important. You have told the Anna Hazare team to give you their suggestion and you will incorporate those in the judiciary bill.

Kapil Sibal Might will incorporate that. We will look at the suggestion and will see if we can incorporate, if they are acceptable to us to incorporate in the judicial accountability bill.

Karan Thapar: So in fact you are extending the licence, the liberty or the rights given to these peoples not just to affect the Lokpal legislation but the judicial accountability legislation?

Kapil Sibal Not right. They can give us suggestions as anybody can give us suggestions informally and we will see if we can accommodate.

Karan Thapar: And the bottom line to this is that you are open to amending the judicial accountability bill to include corruption specifically.

Kapil Sibal Of course! See the point is we are very sincere in our efforts to deal with these issues.

Karan Thapar: Let me raise a second area where the Anna Hazare team believes that there is critical difference between the judicial accountability bill as it stands at the moment and the Lokpal bill. If that is over the question who would give sanction for a judge to be investigated? Under your judicial accountability bill it will come from the judge’s colleagues and friends sitting in the same court who because they know him could seek to be protective. Under the proposed Jan Lokpal bill the sanction will come from the seven-member bench that would be independent of the judge and therefore impartial.

Kapil Sibal Why is it independent of the judge?

Karan Thapar: Because it doesn’t concern his colleagues, it doesn’t concern his friends

Kapil Sibal But then you will be controlling the Supreme Court of India and various high courts in the states.

Karan Thapar: Surely the solution is to change the sanction mechanism in the judicial accountability bill. But can you change it?

Kapil Sibal Why not?

Karan Thapar: You are open to that?

Kapil Sibal We are of course open to that. We are open to anything that makes the system more accountable, the judiciary more accountable. We are very keen that the judiciary should be made more accountable. But it can’t be that unless you don’t bring the judiciary under the Lokpal we will go on fast, it can’t be that unless you do this we will abuse you. That is not acceptable.

Karan Thapar: In other words fasting is not the mechanism, fasting is not the correct way of pressurising the negotiation.

Kapil Sibal If fasting works, if Anna Hazare would have been in the Constituent Assembly who drafted the Constitution, there would have been no Constitution. Because look at the differences.

Karan Thapar: Either there wouldn’t have been a Constitution or Anna Hazare would’ve have fasted to death?

Kapil Sibal The point I’m making is, look at the divergences.

Karan Thapar: Let's not go there

Kapil Sibal Please let me complete Karan. There was so much divergence of opinion in the Constituent Assembly but we have a wonderful document and what did the Constitution make us say, you can have a wonderful document but ultimately it depends on the people who work it.

Karan Thapar: I accept the point that you are making. But let me sum what we have discussed so far over the judicial accountability bill versus the Lokpal issue regarding the judges. You personally and the government perhaps as a whole believes that the judicial accountability is a better way of handling the judges?

Kapil Sibal Yes.

Karan Thapar: But you are open to amending that bill to make it contingent, a) To include corruption b) to possibly change the sanction mechanism so that the Anna Hazare team feels it is a more adequate way of handling corruption.

Kapil Sibal We have a effective way of sanction.

Karan Thapar: Let's then come to a second big issue that is where the MPs, and I’m talking about their voting and their speaking within Parliament if it is a subject of controversy concerning corruption or bribery should be under the ambit of the Lokpal. On that issue what is the government’s position?

Kapil Sibal Government’s position is clear that it should not be under the ambit of the Lokpal. What happens inside the house, our speaker, the house should deal with it. We are very clear on that.

Karan Thapar: So here you have a clear position?

Kapil Sibal Yes.

Karan Thapar: Unlike the PM issue where you were open to being persuaded, as you said in an interview once, here you have a clear position.

Kapil Sibal I said we are open to different ways of handling that issue.

Karan Thapar: Absolutely, but here you have an clear position that no MPs must not be included?

Kapil Sibal No, no! MPs are included but on their conduct on two issues, voting and speech.

Karan Thapar: They should not be part of the Lokpal?

Kapil Sibal That is Article 105-2 of the Constitution that protects them and if there is any corrupt practice with reference to both voting and speech, it should be dealt with, must be dealt with through an effective mechanism but within the house and by the house.

Karan Thapar: But not under the Lokpal?

Kapil Sibal Not under the Lokpal.

Karan Thapar: Now let me put to you the repast that the Anna Hazare team would give, they have actually sent it in letters to Pranab Mukherjee and the Prime Minister, they have pointed out that several times in India’s 63-64 years of independence MPs have been accused of corruption, bribery for voting, bribery for asking question and although few have been expelled. Never has a single MP been charged, prosecuted and convicted on corruption and they feel it is essential that must have happened and it will only happen if the MPs are brought under the Lokpal.

Kapil Sibal We also feel it must happen and it must happen through the house, it has already happen. Remember the last time the cash has been displayed and the speaker has referred to the investigating agency.

Karan Thapar: But it hasn’t helped much further.

Kapil Sibal Why? It’s being investigated.

Karan Thapar: It’s being. That is the point

Kapil Sibal No, no! let's be clear on that..

Karan Thapar: It’s taken three years and the police investigation has finished.

Kapil Sibal No, no! There are lots of cases that takes three years to finish, that should be expedited, that should be dealt with, you should have a mechanism but there is no way we will allow Lokpal to investigate.

Karan Thapar: Let me put the re-post to that, that the Anna’s team makes and again they made it…

Kapil Sibal I responded to it.

Karan Thapar: Wait let me ask the question then you reply, Anna’s team reposted to that in their letters to Pranab Mukherjee and the PM, they said that almost three years has passed since the incident of 2008, the police is still investigating and they say why that investigation is slow because the police comes under the UPA. They say if the police would have under the Lokpal the investigation would have concluded, the prosecution would have followed.

Kapil Sibal It’s absurd. I think this is all again polemics that it comes under the UPA as we are controlling every investigation of this country.

Karan Thapar: So you are saying it is absurd?

Kapil Sibal It is absurd for the simple reason, take there is an allegation made against one of the members, one expert committee report saying one thing, other expert committee report say another thing, the UPA is in power, how did then two different agencies say different things? See, this is all polemics.

Karan Thapar: Let's come out of polemics…

Kapil Sibal What we need is an effective mechanism within Parliament to deal with misconduct for those two issues.

Karan Thapar: What steps are you taking to ensure that effective mechanism within Parliament will happen?

Kapil Sibal We have taken steps.

Karan Thapar: What?

Kapil Sibal We can ensure the mechanism in the house that the sanction will be given the moment the ethics committee comes to the conclusion that there is a criminal offence that has been committee.

Karan Thapar: But have you taken steps to ensure that?

Kapil Sibal The fact that on the last occasion Somnath Chatterjee referred this matter straight to the investigating agency shows that there are steps been taken. And there is a constitutional amendment remember this, that will require another constitutional amendment.

Karan Thapar: And the constitutional amendment is the one that you don’t have votes to secure. I understand. Let me sum up what we have discussed so far both on part as well as on the earlier part, you have a clear position but you have differences that are key or lack of agreement which is also key over the concept, over the PM, over the judiciary and a sharp difference over the treatment of the MPs. Arvind Kejriwal has publicly said what the government is interested in is not a Lokpal but a ‘jokepal’, Prashant Bhushan has been kind, he said he only want something that is symbolic not substantic. How do you respond to that judgment on you?

Kapil Sibal Do you really wish me to respond on that Karan?

Karan Thapar: I do.

Kapil Sibal Well I don’t wish to respond to remarks like that. If they are serious about negotiation they better come to the table and negotiate and stop all this.

Karan Thapar: You mean that?

Kapil Sibal I mean that. This abuse, this insult should stop. It’s time to be serious about the law which both want and which the country needs. The country is tired and sick of corruption and let us be serious about giving the country a strong Lokpal bill and the way forward is not to abusive, the way forward is trivialise it by calling it a jokepal.

Karan Thapar: I want to approach the whole subject differently or as I tantalisingly said perhaps deviously. I want to ask whether the government made a critical mistake conceding to the joint drafting committee and has the government mishandled fast-unto-death. Do you need to think how you handled such tactic?

Kapil Sibal I don’t think in the circumstances it was a mistake.

Karan Thapar: Let me tell you why the people think it is mistake. You, the government are elected to rule in the name of, you have a mandate to make the laws. Anna Hazare and their team are not elected, some people say they are self selected but by placing them in the joint drafting committee, first of all you placed them on par with the government. Was that sensible?

Kapil Sibal Well you know quite frankly as the nations move forward and the circumstances change, we need to change attitude as well. So, the circumstances the government was in at that point of time I don’t think it was a mistake to include them in the joint drafting but I don’t think it should be a precedent.

Karan Thapar: Well it is very interesting a) you say there shouldn’t be a precedent and b) you say, in the circumstances. You are justifying it because of the circumstances. Let me put this to you, you have given people who have no elected mandate, people who are probably self selected, a right in determining, influencing or advising how the legislation happens. That is the prerogative Parliament and the government has. How do civil society members come in?

Kapil Sibal No, that always happens. Let's assume they were not the part of the Lokpal drafting committee, they were still entitled to come to Parliament and give their views before the standing committee and would still be entitled to be heard and their views would be considered.

Karan Thapar: Absolutely, but this not where they are stopping that’s why I asked the question. They are not advising, they are not criticising, they are insisting what they want.

Kapil Sibal No no, that is for us to decide.

Karan Thapar: They are now suggesting a referendum as a way of overtaking government’s opposition, they are threatening another fast-unto-death. You have given them a platform for each to do it.

Kapil Sibal Quite frankly we are at the moment concerned about the drafting of the Lokpal bill. Any other measure if they take outside the drafting will be dealt with.

Karan Thapar: Except for the fact that you provided them the platform to take those measures?

Kapil Sibal I don’t think we have provided them the platform. They have the platform, there is free speech in this country but the fact of the matter is, situations like this should be carefully looked at.

Karan Thapar: In fact the truth is that this platform wasn’t first provided to Anna Hazare and his team. It was first provided almost five years ago to the NAC. There you have people who are unelected, who don’t have great representation behind them and they were drafting bill, recently they drafted the communal violence bill earlier they have done the RTI, they have done the right to food bill. In fact the right to food bill is even influencing the way the government determines this bill. Here they have no mandate from anyone, you set the precedent with the NAC.

Kapil Sibal Well there is nothing wrong with that. I think we should hear the voice of the civil society, we are willing to hear the voice of the civil society but the members of the NAC don’t go to Jantar Mantar for a fast. Thank god for that and therefore there is a big distinction between the two. They give us inputs that they get from the civil society, they help us draft legislation. We love inputs from the civil society.

Karan Thapar: What happens now when they insist on a referendum because they can’t reach an agreement. What happens if they go back on fast?

Kapil Sibal I don’t think they understand what a referendum is.

Karan Thapar: But they seems to be carrying sizable sections of the country with them, that is the problem for you.

Kapil Sibal Has there ever been anywhere in the world a referendum on the bill? Do they know what a referendum is?

Karan Thapar: Mr Sibal the point you forgetting is that they are carrying sizable section of the country with.

Kapil Sibal I don’t think so. Do you think 5000 people gathered in a crowd of 1.2 billion people is sizable.

Karan Thapar: The media is almost entirely behind Anna Hazare that is why the government panicked.

Kapil Sibal The media has a role to play and you know that. let me not say much about the media in this issue.

Karan Thapar: Let's come to a second issue that is connected to the first. Does the government in light of the way you handled Anna Hazare’s fast, Baba Ramdev’s fast and I include in Chandrashekhar Rao’s fast over Telangana issue in 2009, do you need to rethink on how you handle future fast-unto-death and remember Anna Hazare may be launching another on August 16.

Kapil Sibal We will see. I don’t want to comment on that as and when that happens, we will see.

Karan Thapar: I’m not asking how you handle it, I’m asking whether you have learnt any critical lessons about how to handling it?

Kapil Sibal As I said don’t worry about it. The government is looking at the situation and will be on top of the situation.

Karan Thapar: I tell you why people do worry about it because in fact there were three fast that UPA 2 has had to handle Chandrashekhar Rao’s fast in 2009, Anna Hazare in April this year and Baba Ramdev’s in June this year and in all three incidents the government panicked and in all three incidents the government with hind sight will accept, if not in public, that its issue response was wrong. Can you learn from that?

Kapil Sibal Don’t worry about it. We all learn as the democracy moves forward, we all learn when we legislate, we all learn when we take decisions on the executive side, in my ministry everyday is a learning process. We all learn and with the experience we have we deal with the future issues. So I don’t think people of this country should be worried.

Karan Thapar: When you say we all learn are you therefore accepting you made mistakes

Kapil Sibal I said we all learn at every stage, I’m not accepting anything; you can’t put words in my mouth. I’m accepting nothing. I say learn learning is a wise way of moving forward. We will move forward. Don’t worry about it and the people of this country should not be concerned.

Karan Thapar: Let me quote to you what BR Ambedekar said in 1949. He said that the time has come for the civil disobedience, satyagrahas and fast unto deaths should be forgotten .

Kapil Sibal Absolutely.

Karan Thapar: He called them the grammar of anarchy.

Kapil Sibal Absolutely.

Karan Thapar: Do you agree with him?

Kapil Sibal No! I certainly say fasts are not meant to be used. Fast is a process of self purification. It is not meant as an act of aggression. Unfortunately people have misunderstood, including Anna Hazare as to what the real meaning of a fast is.

Karan Thapar: Let me put this to you, there were fasts in the 60s in the beginning and there were fasts at the end of the 60s. The government of the day was strong enough to say to them if you fast you fast unto death, if die you die and both died.

Kapil Sibal This happened in England as well.

Karan Thapar: Absolutely. But do you have the strength and the courage to behave the same way?

Kapil Sibal Wait and watch Karan. Why do you want me to respond to these issues when they are all speculated.

Karan Thapar: Wait and watch?

Kapil Sibal Yes, this all you are saying is speculated.

Karan Thapar: That suggests if next time around there is any fast unto death the government’s behaviour will be different.

Kapil Sibal I never said such a thing. I said wait and watch. The government will respond in a way that is appropriate as and when such a thing happens. This question is entirely speculated.

Karan Thapar: I’m not sure whether are you being strong or you are just wriggling out on giving an answer.

Kapil Sibal No no, I’m not wriggling around. I have given you an answer if you don’t understand the meaning of it is upto you.

Karan Thapar: So the answer is wait and watch?

Kapil Sibal The answer is wait and watch.

Karan Thapar: The problem is the country is waiting and watching.

Kapil Sibal Don’t worry, the country will watch.

Karan Thapar: Alright Kapil Sibal the country will watch, the country will observe and hopefully this time around the country says the government did the right this. Thank you.

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