ibnlive » Politics » News

Jul 10, 2011 at 08:36pm IST

Independence of judiciary is important: Jaitley

Karan Thapar: Hello and welcome to Devil's Advocate. Where does the Bharatiya Janata Party (BJP) stand on the key aspects of the Lokpal? That is the critical issue I should discuss with the leader of the Opposition and Rajya Sabha, former Law Minister Arun Jaitley. Arun Jaitley earlier this week you published an article on Lokpal on the BJP website. Does this represent your party's official position or only your personal view point?

Arun Jaitley: Well, it indeed represents my party's official position. We have had a considerable amount of discussion within the party and this represents in substance on some of the important issues what the consensus in the party is about.

Karan Thapar: Now, earlier this morning I interviewed Nitin Gadkari, the president of the BJP, and he says that these are simply your personal views, that the BJP hasn't decided its view points on these issues and will only make it public after the government has given the bill in Parliament.

Arun Jaitley: No, no! Officially we will be making our stand public on the bill after the bill has made public, on the draft prepared by the ministers. This is the reaction we have prepared with in the party.

Karan Thapar: So this is what you think of the draft prepared by the ministers?

Arun Jaitley: Ministers.

Karan Thapar: Alright let's discuss your article and some of the issues that you have raised. To begin with there are issues to do with the jurisdiction of the Lokpal. You say that the Prime Minister must be brought under the ambit of the Lokpal but with certain exclusions. Does this mean that you don't accept the argument that bringing the Prime Minister under the Lokpal would hobble him and would create a political instability?

Arun Jaitley: You see, since 1968, when the first Lokpal bill was introduced in Parliament, we've now had almost four and a half decade of discussion on the subject. The last three, four bills which have been introduced, with or without exceptions had the Prime Minister real provision in the Lokpal bill. The final was after a considerable discussion in the NDA government, the 2001 bill was introduced. Prior to that the 1998 bill, both of which had a similar provisions. And I think the NDA bill to which all of us were a party, there was a considerable amount of discussion, in fact the standing committee tactically approved it and which had a provision that there are some aspects of the prime ministerial functioning, particularly the ones which relate to national security, which relate to maintenance of public order, where you must leave the Prime Minister out because these are very sensitive areas for the country itself and you can't have any institution probing them. But that apart, there are many functions which are purely commercial or political in character.

Karan Thapar: Except that what is the logic of these collusions because if you choose to leave the public or the national security or as you said to the Times of India in an interview, also foreign affairs out that if there was to be a repeat of Bofors, the issue couldn't be examined by the Lokpal at all.

Arun Jaitley: No, I don't think taking a kickback on a deal is national security. In fact, even during the Bofors case it was almost clear, just because what you're purchasing is weapons and not trucks, it's not national security.

Karan Thapar: The Prime Minister could argue that it affects foreign affairs, it affects national security, that would be an argument that could work against your interest.

Arun Jaitley: No, I'm afraid that's not an acceptable argument. National security would be something when you're dealing with insurgency, when you're dealing with cross-border terrorism, when you're dealing with strategic areas.

Karan Thapar: What about foreign affairs?

Arun Jaitley: I think the journalists understood. We've been sticking to those two phases, some aspect of these may be covered under foreign affairs and therefore, if the government wants to expand this area for some reason, we are in fact willing to have a discussion on this. But an absolute immunity to the Prime Minister, for instance, I've given two illustrations - he receives kickbacks on a commercial deal, he bribes to get a majority in Parliament. Now should such areas be excluded as far as the Lokpal Bill or the investigation against corruption is concerned.

Karan Thapar: Except for the fact that what you've come up with is a sort of half-way house. Cover the Prime Minister under the Lokpal, but have excuses, that to me suggests that it's a compromise that gives the worst of both worlds. You've neither perfect scrutiny nor immunity.

Arun Jaitley: It's a perfectly responsible position. Everybody is accountable for corruption. The higher the office you hold, the higher should be the standards of accountability, but in larger national interests, there could be areas of national security or public order where you could exclude the Prime Minister for an enquiry.

Karan Thapar: Except for the fact that those two heads alone and if you have foreign affairs and sometimes you suggest you will, then those three heads have so many subjects that come under them that allegations of corruption are bound to come up and if they do...

Arun Jaitley: I think you can't expand commercial aspects to be included in these areas. These areas are specific and those in the government know that these areas are clearly defined.

Karan Thapar: You're sure that this is not a messy compromise, the worst of both worlds?

Arun Jaitley: Well, I think this idea has evolved after a 43-year debate and in the last 15 to 20 years, this idea actually gained substance. So parliamentary committees have approved it, legislations introduced by the government had this provision, it's nothing new that we're saying.

Karan Thapar: All right, let's then come to the second area where there is controversy over the jurisdiction of the Lokpal. You believe, and I take it that this is now your party's viewpoint as well, that judges should be covered not by the Lokpal, but by the National Judicial Commission, but the problem is that under the National Judicial Commission, the majority of people to whom they'll be accountable will be fellow judges. You want to escape from judges judging judges, you're retaining the same problem.

Arun Jaitley: No, I think you must understand the position of judiciary within Indian democracy. Independence of judiciary is extremely important to which we are now adding accountability of judiciary.

Karan Thapar: But accountability to judges only.

Arun Jaitley: The present arrangement is that only judges judge judges, that's the in-house mechanism. The exception area is impeachment where Parliament judges judges, but that's the rarest of rare cases. Now over the last two decades, a reasonable thought has matured, the Left has been saying it, many other parties have been saying it. In fact I had introduced a constitutional amendment in Parliament in 2003, but only with regard to appointments, which said you have a body which has a somewhat primacy to the judicial institution, but, which has a representative of the government which may have a representative of an eminent citizen through an appointment mechanism and therefore, these people rarely should constitute the appointment mechanism. Today, I've suggested that normal cases of judicial indiscretions or misdemeanors should also be included in this, so that this becomes the integrity institution as far as the judiciary is concerned.

Karan Thapar: Except for the fact...

Arun Jaitley: I don't want a situation where executive judges judges, I don't want a situation where exclusively the judges judge the judges, now this is a combination that again has evolved over a debate in the last 20 years and you have many political parties in India which support this.

Karan Thapar: Can I interrupt, I've given you a lot of time to answer that at length, the problem with the mechanism that you're suggesting to the National Judicial Commission is that you have a vast majority of members who are judges, only two non-judges, the Law Minister and a watchdog person, an eminent person from the society. Once again judges are judging judges.

Arun Jaitley: I'll tell you. Some important retired judges met me just now. In the course of a discussion they said that we want to suggest an alteration to the whole proposal, and instead of one, you have two eminent citizens. Fair enough. I've also in my article said that the composition can be a matter of debate. But I'm one of those who believe that a National Judicial Commission must necessarily give primacy to the judicial institution, but have participation of others also.

Karan Thapar: But if the participation of others is only a minority and the participation of judges is the vast majority which is what everyone seems to suggest and so does your article, then the problem is this, the sanctioning authority to grant permission for an investigation of a sitting judge will be his colleagues, his friends. They will bend to his side in his favour.

Arun Jaitley: Once the National Judicial Commission comes to a particular finding, you can vest that authority by a legislation in the National Judicial Commission itself.

Karan Thapar: I'll tell you why this is not satisfactory because as Prashant Bhushan has repeatedly said - there are innumerable allegations of corruption against judges, but the Chief Justice of India has only in a small handful cases has given permission for investigation. The same will apply here. Judges will protect judges.

Arun Jaitley: Therefore, don't suggest a remedy which is worse than a problem. Don't get a government dominated Lokpal to start judging judges, still have a balanced National Judicial Commission and vest the power of granting a sanction with the same commission.

Karan Thapar: Can you then ensure that the National Judicial Commission doesn't have a majority of sitting judges, but perhaps only 50 per cent?

Arun Jaitley: I think the composition of a National Judicial Commission could be a matter of discussion, could be a matter of improvement over the suggestions I've given. In fact, in my article I've suggested that we should be open to improvement in suggestions as regards the composition, I'm willing for it, but a time has now come to constitute a National Judicial Commission because judicial independence and judicial integrity is something which the country must always be with.

Karan Thapar: And you've conceded that the composition can be debated and perhaps you also concede that perhaps 50 per cent of the National Judicial Commission should be non judges.

Arun Jaitley: I'm not getting into percentages at the moment, but I quite agree that the composition can be a matter of discussion and even imporovement.

Karan Thapar: Let's then come to the third area where the jurisdiction of the Lokpal is being contested and debated. The question is should the behaviour of the MPs in terms of their voting and their speaking within Parliament, if the shadow of corruption comes over it, fall under the ambit of the Lokpal. Where do you and your party stand on that?

Arun Jaitley: In my article I've not expressed a view but my personal opinion, since the party has not expressed an opinion on this, is as far as conduct within the House is concerned, you've asked a particular question, you've delivered a particular speech, these are all matters in areas of parliamentary sovereignty, the authority to judge them is only Parliament and no other agency, but, having said this, I'm one of those who believe that the JMM judgement of the Supreme Court is a wrong judgement.

Karan Thapar: And for the audience's sake it is the judgement that exonerates in a sense the bribe taker, but punishes the bribe giver.

Arun Jaitley: That apart, and I had even expressed a view at the time of cash-for-votes scam as far as 2008 was concerned, bribery outside the House is not a proceeding inside the House.

Karan Thapar: Except for the fact that the reason why the bribe taker was exonerated is because it was associated with his voting inside the House, and because that has immunity, corruption was not applied.

Arun Jaitley: Therefore, bribery outside the House, itself, as far as an MP is concerned is an independent offence.

Karan Thapar: But what about the reflection of the bribery outside the House in the behaviour of the MP inside. Should that not be counted?

Arun Jaitley: According to me, if there is a receipt of an unlawful remuneration outside the House, irrespective of the purpose for which it has been received, it's an offence under the Prevention of Corruption Act.

Karan Thapar: You seem to be in other words saying that the immunity that the MP is granted under 105(2) wouldn't apply if there is a link between what he does inside the House with bribery outside the House.

Arun Jaitley: Well even if there is a link, the act outside the House is an independent offence complete by itself. Somebody gives me money outside parliamentary premises, at my residence let us say, that itself is an offence.

Karan Thapar: Are you, therefore, also saying that if you cannot link what happened inside the House with something that happens outside the House, any act of alleged corruption inside the House is not going to be under the ambit of the Lokpal?

Arun Jaitley: Any corruption inside the House for reasons of parliamentary sovereignty has to be within the jurisdiction of Parliament.

Karan Thapar: Can I tell you why people would find that difficult to accept? Many people say that the principal source of political corruption are MPs. They need vast sums of money well above the legal limit to win elections and then when they win, there is an enormous compulsion to make up what they had to spend.

Arun Jaitley: Therefore the remedy with the people is to vote the MPs out.

Karan Thapar: But that remedy is not in people's hands.

Arun Jaitley:The remedy of the law is to prosecute the MP for receiving that illegal gratification outside the House. What the MP speaks inside the House it's only the Speaker or the Chairman of the House, which can have an authority, not a third party.

Karan Thapar: And at all costs, you're going to keep the Lokpal out of that sphere?

Arun Jaitley: According to me, my feeling of what the political parties and the MPs feel, and ultimately they are the ones who legislate, that what MPs speak inside the House, no democracy will ever accept.

Karan Thapar: In other words, MPs will act and vote to protect themselves inside the House.

Arun Jaitley: No, MPs will vote to protect parliamentary sovereignty.

Karan Thapar: That's the one way of putting it, the other is to protect themselves.

Arun Jaitley: No, I'm conceding the other half, that if they receive money outside, that's actionable by a Lokpal or by an agency.

Karan Thapar: Mr Jaitley, you also have a serious concern about the appointment procedure for the Lokpal. The five ministers' draft sets up a committee which is predominantly political with a fair representation of the Opposition as well, but you find that objectionable. Now I put this to you, since you're a politician yourself, why do you object to politicians dominating the committee, one would think you would welcome that?

Arun Jaitley: No, I have no difficulty with politicians being on the appointment panel. But my difficulty is that the government ministers' bill is loaded in favour of the government. In order to give a numerical edge to the government, they've put people like cabinet secretary, a scientist. Now what does a scientist have to do with the appointment of the Lokpal.

Karan Thapar: We might be being unfair on the scientist. He may not necessarily vote for the government.

Arun Jaitley: A scientist may be a very great man, he makes a great contribution to the country, but he's certainly not concerned with the appointment of a Lokpal.

Karan Thapar: So it's inappropriate rather than something on the side of the government. Would you be happier if the representation on this committee from the Opposition was greater but the political dominance remained?

Arun Jaitley: I have no difficulty with that combination. These are all matters of discussion, you can work out via media, but government domination on this committee will destroy the credibility and legitimacy of the Lokpal.

Karan Thapar: Anna Hazare's team has a very different response to the five ministers' committee. They say that political dominance, which you accept is something they find difficult to swallow, they want instead, people like the CAG and the CEC. Would that be acceptable to you?

Arun Jaitley: No, I think we can consider all this in the course of any serious discussions which take place. But please remember, we in India have CAGs and CECs who are also appointed only by the government, and the Prime Minister of India.

Karan Thapar: Look at the behaviour of Vinod Rai, look at the behaviour of the last six CECs.

Arun Jaitley: We've had some great CAGs and CECs. We've also had some people occupying such offices which is reasonably pliable. Therefore, as a concept government nominees on this committee can't be 60 per cent as the government draft has said. Therefore, what the civil society's representatives are saying, what the government is saying, I think you have to work out a via media wherein the government domination doesn't exist, there are other sections of representation, so that you can get the best from the system, who can be the members of the Lokpal.

Karan Thapar: Okay, I understand that. Let's now come to the issue of deadline. Anna Hazare has said that if the Bill is not passed by August 15, he will launch another dharna. Do you believe that the bill can be passed within two weeks of presentation of Parliament?

Arun Jaitley: Realistically it appears difficult because, the legislative mechanism is that if the government introduces this bill in Parliament, and government in all likely may introduce something very similar to what the ministers have suggested, with or without some alterations, a bill of this kind, logically would go to the parliamentary standing committee.

Karan Thapar: Is that essential in this case?

Arun Jaitley: You see, a standing committee can be waived, but in a landmark legislation, which is so vital to the system, it is in larger public interest that the standing committee considers it.

Karan Thapar: And, therefore, if the standing committee is essential, are we talking about the passage not happening till the winter session?

Arun Jaitley: What most political parties felt in the all-party meeting is that you must introduce it immediately, get the standing committee to work immediately, it may be difficult to pass it in the monsoon session, but obviously pass it by the winter session.

Karan Thapar: Is there in fact a deadline that you would like to set, even if it slips to the winter session, it must be passed by January 1.

Arun Jaitley: I think there must be an honest endeavour to have a complete holistic discussion and debate, introduce it in the monsoon session, and positively pass it in the winter session.

Karan Thapar: Will the deadline of January 1, 2012?

Arun Jaitley: I don't want to give a deadline to Parliament, because it's not fair to do that. But that should be an honest endeavour unless something very unusual happens.

Karan Thapar: Now, let's come to this question of fast. Anna Hazare has said that if the bill that the government tables in the Lok Sabha is not acceptable to him, he will launch a fast on August 16, but given that what really counts is not the bill that's tabled in Parliament, but the bill that Parliament passes which could be very different to what the government tables. Is it right to launch a fast?

Arun Jaitley: Well, I think members of the civil society and others should be assured that the bill which is eventually passed at that time is very different from what was introduced, because India has a practice of standing committees which is very similar to the American practice where the real serious, serious discussion took place, and in 9 cases out of 10, standing committees return a unanimous reward. A lot of suggestions are incorporated, compromise drafts are prepared.

Karan Thapar: Which the government then has to accept.

Arun Jaitley: And which the Opposition also forces, and today you have a composition of both houses of Parliament where the strengths are very evenly matched.

Karan Thapar: Absolutely! So I'll repeat my question. If, therefore, Anna Hazare plans to launch a fast, if he doesn't like what the government has tabled, ignoring the fact that what Parliament passes would be very different, would you support a fast that he launches?

Arun Jaitley: Well, I think I would like to merely say this that civil societies do bring pressures on government and establishments.

Karan Thapar: But will you support a fast?

Arun Jaitley: Well, I'll have to see the context. If the government does nothing and somebody is protesting, he may well claim a right to protest. But if, this matter is moving as per the schedule, then I'm sure as a responsible leader of the civil society, he'll also reconsider it.

Karan Thapar: He should also reconsider it?

Arun Jaitley: Well, I think it'll depend on what the intention of the government is. I can't advise the civil society to protest or not to protest, but I do hope that the government moves in the direction of an independent effective Lokpal, and civil societies then retain some element of patience.

Karan Thapar: One last question , can Anna Hazare insist that he must get everything he wants and if he doesn't he'll go and fast?

Arun Jaitley: Well, I think the civil society groups are essentially pressure groups for their own conviction.

Karan Thapar: But can they insist on everything they want?

Arun Jaitley: They may normally not get everything, but they are entitled to put their pressures on the systems so that the system acts. You can't take away the right to campaign and crusade away from the civil society, you may not necessarily agree with everything they want.

Karan Thapar: All right Arun Jaitley, a pleasure talking to you.

Arun Jaitley: Thank You.