lokpal jdc - minutes of meeting 7

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Minutes of the seventh Meeting of the Joint Drafting Committee (JDC)for drafting the Lok Pal Bill held on 15.06.2011 (Wednesday) at 16:30 hrs.in Room No.41, North Block.

The following were present:

Ministers(i) Shri Pranab Mukherjee, Minister

of Finance - Chairperson

Representativesof Civil Society(i) Shri Shanti Shushan, Senior

Advocate- Co-Chairperson

(ii) Shri P. Chidambaram, Minister ofHomeAffairs

(ii) ShriAnnaHazare

(iii) Dr. M.VeerappaMoily, Minister of (iii) Shri Justice N.SantoshHegdeLawandJustice - Convener

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

(v) Shri Salman Khursheed, Minister (v)Shri Arvind Kejriwalof Water Resources and Ministerof Minority Affairs.

2.1 The Chairman welcomed the members of the Joint DraftingCommittee to the seventh meeting of the Committee. He stated that inthe first five meetings, the 40 basic principles circulated by therepresentative of the Civil Society were discussed and on some of them,there was agreement; some principles were agreed but required furtherdiscussions; some principles were agreed but required rephrasing andon some principles where there was divergence of views requiringfurther discussions. The Chairman further stated that in the meeting of30th May 2011, he had informed that he would be writing to the ChiefMinisters and Leaders of the Political Parties seeking their views on thesix major issues identified where there was divergence of views. Hefurther informed that responses from 22 Chief Ministers and 6 PoliticalParties had been received and were placed on the Website of the/1~-)I : ( 1 ( / / .


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Department of Personnel and Training. In most of the replies, it wasstated that they would give their suggestions only after the final draftBill for Lokpal is ready. The Chairman impressed upon the Committeethat there is a need to first draft the Bill and then only seek the views ofother stakeholders including political parties and State Governments.He further stated that in case of divergence of views, a final proposalcarrying the viewpoints of both sides should be prepared.

2.2 Referring to the letter dated 7th June, 2011 written by Shri ShantiShushan, Co-Chairman, the Chairman stated that as the issues raisedtherein were being discussed in the meeting itself, there was no need tosend a separate reply to it. Further, Chairman referred to a letter (copy ofthe same was circulated to the members) written by Shri SalmanKhurshid, Minister of Water Resources and Minister of Minority Affairsas Member of JDC, wherein he has raised certain issues and requestedthat Civil Society colleagues be persuaded to reflect upon these aspectswith an open mind. He again emphasized that the Committee has tocomplete the draft Bill by 30th June, 2011 50 that it can be introduced inthe Lok Sabha during the coming Monsoon Session of the Parliament.The Chairman therefore, suggested that the Committee should focus onfinalizing the basic principles so that drafting of the Bill can becompleted by the Ministry of Law on the basis of these principles.2.3 At this stage, Minister of Human Resource Development referringto the media reports wherein the members of Civil Society reportedlyhave levelled allegations/made insinuations against the governmentsrepresentatives on the JDC, sought clarification from the members ofthe Civil Society on the basis of such allegations. Shri Arvind Kejriwalstated that there had been utterances from both the sides. Minister ofHuman Resource Development insisted that the members of civilsociety should clarify the basis of such allegations and give instances.Thereupon, Shri Anna Hazare said that the Civil Society and theGovernment were not separate and both were working to bring LokpalBill which is required for the progress of this nation. He then referred to


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the allegations made against Shri Shanti Bhushan. The Chairmanintervened and asked how the Committee was concerned with theseallegations. Shri Prashant Bhushan said that none of them had madeany specific charge against any Member of the Committee. TheChairman again clarified that in so far as the function of this Committeewas concerned, the government side was trying its best to cooperateand to ensure timely completion of the task at hand and these issueshave nothing to do with the functioning of the Committee. The DraftingCommittee would continue to do its job and provide a strong and soundLokpal Bill and urged the Committee to complete its job.2.4 Shri Arvind Kejriwal stated that he was completely in agreementwith the views of the Chairman and further stated that he was disturbedby his statement in Kolkata that the Prime Minister and Judiciary cannotbe brought within the purview of Lokpal. The Chairman stated that whathe said was they were trying to arrive at a consensus and werecommitted to introduce the Bill in the Monsoon Session. But so far aspassage of the Bill is concerned, it depends upon the Parliament, whichis supreme. He said that he had repeatedly made it clear that his partydoes not have requisite number of members in both the Houses ofParliament for smooth passage of this important Bill. Therefore, thegovernment's commitment is to introduce the Bill in the Parliament,thereafter it will be subject to the normal legislative process.

2.5 Shri Shanti Bhushan stated that the newspapers have quoted thatin Kolkata the Chairman of JOC said that the audio recordings of themeetings of the JOC had been put on the website, but none of therecordings had .been placed on the website. The Chairman clarified thatMinutes of the proceedings were available on the website. The Co-Chairman insisted that the audio recordings should also be put on thewebsite. Minister of Human Resource Development requested theMembers of the Civil Society not to make statements against them andthe Government. Shri Shanti Shushan took up the issue of the CDcirculated in the press. Minister of Human Resource Development said

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that it had nothing to do with the JOC and the Chairman also supportedthis viewpoint.

2.6 The Members of the Civil Society stated that it was reported thatin the last meeting, i.e the sixth meeting held on 6th June, 2011, certaindecisions were taken. The Chairman clarified that discussions wereheld on the clauses of the Bill but the Minutes were not circulated tomembers who did not attend. However, if the representatives of the CivilSociety so desired, these Minutes would be circulated. At this stage,Shri Arvind Kejriwal asked whether they could have the audiorecordings of the deliberations of the meetings of the JOG. TheChairman stated that proceedings of the meetings were recorded andMinutes of the proceedings were prepared. Minutes of one meeting areconfirmed after discussion in the next meeting and then taken as final.Shri Arvind Kejriwal stated that as equal member of the Committee theyshould have access to the recordings. He further stated that these maynot be put up on the website but a copy be given to them. To this,Minister of Water Resources responded that the representatives of theCivil Society must trust the government side and the recordings arethere, minutes are there; if there is conflict, it can be checked. Hefurther stated that the moment these recordings are released, there maybe unsavory and unpleasant questions. He further stated that effortswere there to have a meaningful dialogue for preparation of a strongLokpal.

3. Shri Anna Hazare stated that the civil society wanted a strongLokpal Bill. He cited the problems and the prevalent corruption beingfaced by the common person in the villages. He stated that corruptionwas increasing. A number of issues have been put under the squarebracket and there was divergence of views. Shri Arvind Kejriwal againtook up the issue of video recording of the proceedings of theCommittee. The Chairman requested the JOC to continue discussionson the substantive issues so as to complete its job.

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4.1 Shri Arvind KejriwaI referring to the vision of the Lokpal Bill statedthat if the 11 members of the Lok Pal will have quasi judicial powers,then how these members could take decisions if it is deluged withthousands of complaints. He suggested that the Lokpal should havepowers like C8DT, and should act as supervisory body and there shouldbe a delegations to subordinate officers within the structure of theLokpal to deal with such cases.

4.2 The Chairman stated that 40 basic principles have been discussedand a number of issues have already been agreed to. Those principleswill have to be put in the legal language. Justice N. Santosh Hegdestated that every investigating officer cannot be equivalent to quasijudicial officer. He stated that a policeman collects the information,collates it, and case is placed before the judge. Shri Shanti Shushanstated that every investigating officer would not be given quasi judicialpower. If the investigating officer comes to the conclusion that the caseis proved in a criminal case, the chargesheet is sent to the court.Simultaneously, since the conclusion has been reached by theinvestigating officer, on that basis the person could be punishedadministratively by a person holding higher position. He stated that theregulations should provide the level in each case, by whom this powerwould be exercised.

4.3 Shri Arvind Kejriwal stated that for imposition of penalties, basedon the investigation, there are two lines of action. First, the case goesfor trial before appropriate court, and second is administrative penaltiesby way of disciplinary proceedings. The Lokpal will have a panel ofretired officers, who will perform this function. Justice N. SantoshHegde stated that even today, in the PC Act, the inquiry is conducted,and based on the inquiry, prosecution is initiated thereafter. Furtherparallel departmental proceedings are held under the CCS (CCA) Rules.In the proposal of the civil society, this function of departmentalproceedings will be performed by the representative of the Lokpal. The/ ~ ~ "


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Chairman enquired whether instead of the Government departmenttaking disciplinary action, it would be the person entrusted by theLokpal to undertake the exercise. To this, Shri Arvind Kejriwal repliedthat it would be so only in respect of corruption cases. Justice N.Santosh Hegde stated that in the present set up in Karnataka when afterinvestigations, the matter is sent to the government, therecommendations of the Lokayukta are never implemented. Shri ShantiBhushan stated that their proposal contemplates that these functionswill be performed by the Lokpal. Thereupon, the Chairman stated thatthere would be two wings in the Lokpal, one investigating wing, and theother prosecution wing. Whether a person is guilty will be decided bythe court. In between, as per the present practice, if the person isarrested, immediately he is put under suspension. He further stated thatthe proposal of the civil society envisages that the person be dismissedeven before the court judgment. To this, Justice N. Santosh Hegdestated that this is happening even now. Shri Arvind Kejriwal stated thatin the departmental proceedings, it is preponderance of probabilitywhereas in the court of law, it is to be proved beyond doubt.

4.4 Shri Anna Hazare stated that if corruption is to be stopped, thenpowers are required to be decentralized. He cited the example of Rightto Information Act to drive his point. Minister of Law and Justiceenquired whether the civil society proposes to delegate these powers.Justice N. Santosh Hegde stated that there will be separate authority forthis purpose. Again, Minister of Law and Justice desired to know fromthe representatives of civil society how this can be done under Article311 of the Constitution. To this, Shri Shanti Bhushan replied that as perArticle 311(1) of the Constitution, no person shall be dismissed orremoved by an authority subordinate to that by which he was appointed.Hestated that a lower authority cannot dismiss him; rather this would bedone by a higher authority. Minister of Human Resource Developmentstated that that could not be done even if the other authority is higher,and this action had to be taken by the appointing authority. Shri-:j/


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Prashant Bhushan stated that the recommendations of the Lokpalshould be binding on the Government. Minister of Human ResourceDevelopment stated that this would imply that the powers of theappointing authority are taken away. Minister of Law and Justice statedthat the appointing authority has to apply its mind before arriving at adecision. Therefore, the recommendations cannot be made bindingwithout amending Article 311 of the Constitution. However, Shri ShantiBhushan still maintained that if a particular authority which is higher,has made recommendations, there might not be a problem in making therecommendations binding on the Government. This was followed bydiscussions by the Members of the Committee wherein various issuessuch as consuttatlons with the UPSC under Article 320(2)(c) of theConstitution, and its role in such matters were deliberated. However, nounanimous view emerged in this regard.

4.5 The Chairman observed that there are areas where there isdivergence of views, and besides the members of the JOC, there areother actors whose views are also required to be taken into account. Ifthere are no agreement on certain issues, both viewpoints would bereflected in the draft. He further observed that the representatives of thegovernment side are of the view that to make binding therecommendations of the Lokpal would require amendment to Article 311and 320 of the Constitution and for amending the Constitution 2 /3 rdmajority in Parliament in supporting such amendment is required, whichthe present government is lacking. Shri Arvind Kejriwal stated that theCommittee should confine itself to drafting a good law, and what theParliament would do is not in the hands of the members of theCommittee.

4.6 Minister of Law and Justice raised a question as to whether theproposed Bill will be a simple legislation or a Constitutional amendment.The mandate of the Committee is to prepare only a draft legislation andnot to amend the Constitution. The Chairman stated that the

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representatives of the Civil Society have their views and their views canbe included in the draft,

5.1 Taking forward the discussions, Minister of Home Affairs statedthat the aim is to set up an independent authority to find out whether aperson is guilty or not. After following the principle of natural justice,the Lokpal will come to the conclusion whether the person is guilty ornot. Hence, there is no conflict at all. If the person is guilty, one line ofaction will be to send the case for prosecution, and the other is to takedisciplinary action as per the findings of the investigations. Hewondered on the presumption that the appointing authority will not takeany action according to the rules after such recommendations areforwarded to the Government. Minister of Home Affairs was of the viewthat these powers cannot be given to the l.okpal. The fundamentalpower of the Lokpal to find a person guilty of corruption is unfettered.Shri Shanti Bhushan wanted to know as to whether in allrecommendations for punishment in departmental cases, upse isconsulted. Shri Arvind Kejriwal stated that cve makesrecommendations but its recommendations are never acted upon.Minister of Home Affairs informed that in his capacity earlier as FinanceMinister and now as Home Minister, he never disagreed with therecommendations of the cve. The recommendations of the Lokpal willbe sent to the appointing authority that will have to take action within aspecified time, and if the appointing authority disagrees with therecommendations of the Lokpal, it has to give reasons for the same.Shri Prashant Bhushan expressed his reservations in this regard andstated that in many cases, the recommendations of the eve are notaccepted. Minister of Home Affairs stated that the powers of theappointing authority cannot be given away and this can be done only byamending the Constitution. Shri Shanti Bhushan stated that theviewpoints of both sides should be reflected in the proposal.


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5.2 Minister of Human Resource Development stated that the quasijudicial power can be vested with the Members of the Lokpal, andcannot be delegated to the lower functionaries of the Lokpal. Minister ofHome Affairs observed that the Lokpal is envisaged as a highlyempowered body to tackle corruption in high places. The corruption atlower level must be rooted out, and some matters can also be sent to theLokayuktas. He further stated that the Lokpal would be a body of highlyqualified people who are selected carefully, and more or less wouldhave powers equal to the judges of Supreme Court as far as corruptionis concerned. The Supreme Court or the High Courts do not delegatetheir powers to the Registrar or lower functionaries because thesepowers are to be exercised by the Courts, and for that, different benchesare constituted. Since the Lokpal would be a highly empoweredauthority, it will set up its benches. But if the powers are delegated tolower authority, it would be creating a mirror image of the existingsystem. Hence, these powers cannot be delegated. Shri ShantiBhushan stated that they are not creating the mirror image of theSupreme Court. The experience all over the world over is that thesefunctions must be performed by a body which is independent of thegovernment. These are administrative function, and quasi judicialfunctions. Minister of Human Resource Development questioned as tohow the same set of people when working under the Lokpal will not becorrupt. Minister of Home Affairs observed that Lokpal will hold inquiry,and based on the findings, the case will go for prosecution ordepartmental proceedings or both.

5.3 Shri Prashant Bhushan was of the view that it would be moreappropriate if the power is exercised by the Lokpal because there isconflict of interest. He further stated that in order that the machinery ofthe Lokpal does not become corrupt, they have proposed severalchecks. First, all the proceedings will be put up on the website. Second,the complaint against the Lokpal will be made to the Supreme Court.Third the orders of the Lokpal will be subject to judicial review, and

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fourth, in so far as the officers under the Lokpal are concerned, therewill be independent complaints authority which will be independent ofthe Lokpal. Minister of Home Affairs observed that it implied that therewould be administrative machinery of the Lokpal, and enquired from themembers of the Civil Society as to what would be the its size? ShriArvind Kejriwal stated that the total staff strength would be 10-15thousand. The Chairman wanted to know the basis of this calculationssince as per the proposal of the Civil Society to cover every village andall the government employees, a huge number of staff of Lokpal wouldbe required. Shri Shanti Shushan observed that as soon as publicservants are punished and sent to jail, the corruption will go down andthe requirement of staff in Lokpal will reduce. However, as pointed outby Minister of Home Affairs, this is not so as a number of people arebeing punished every month and still crime does not stop. He informedthat there are about 4 million central government employees, and thereare hundreds of officers to deal with all the cases of corruption. For 4million employees, the kind of machinery required to deal with thecorruption cases is enormous. If the power is given to another authorityto hold investigations, inquiry etc. by creating a separate structure, itwould not be a better one than the existing system. It would be areplication of the present system, and merely oversight by the Lokpalwill not make any change. Minister of Human Resource Developmentwas of the view that if such a parallel authority is created, theconsequences will be far more serious and the system of Governancemay be paralyzed. The Chairman questioned the feasibility of having ahuge structure and expenditure for the parallel body advocated by therepresentatives of the Civil Society.

5.4 Minister of Home Affairs emphasized that it is the corruption athigh places which is disturbing. As pointed out by Shri Anna Hazare,corruption at lower level is also required to be tackled. The Lokpal, byand large, should confine to corruption in high places. Shri Shant;Shushan was of the view that the power should be given to Lokpal. He

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further questioned as to why only 11 members of the Lokpal could lookinto the complaints, and why the lower officers of Lokpal could not lookinto them. The Chairman stated that these members of Lokpal would bepersons of high integrity selected by a very careful and due process ofselection and the same confidence cannot be reposed in othersubordinate staff. Minister of Home Affairs stated officers in theGovernment are appointed by following a selection process throughUPSC, selection committees, opes, etc. and questioned the assumptionthat people appointed by Lokpal would be honest, and the peopleappointed by the government are not be so.

5.5 Minister of Law and Justice referred to principle no. 31 relating toCitizens Charter and public grievances, circulated by therepresentatives of the Civil Society which had been agreed but requiredfurther discussions. He said that the representatives of the Civil Societyare diluting their principle by proposing a parallel hierarchy. Theproposal of civil society would amount to rewriting the entiregovernment process, and to taking away the accountability of theadministration. In the end, there was no convergence of views betweenthe representatives of the government side and the representatives ofthe Civil Society.5.6 Shri Anna Hazare stated the common man is facing corruption ineveryday life. He posed the question that as to what should be done totackle corruption at grass root level. Minister of Home Affairs stated thecitizens charter has been agreed to, and timelines are to be provided forvarious services/activities. If the matters are not settled within thegiven timeline, it will be a case of deemed corruption, and will go toLokpal or the Lokayuktas as the case may be. Shri Prashant Bhushanwas of the view the Lokpal will collapse because 11 members cannotdeal with all the complaints and that's why they are proposing that these11 members will exercise some powers themselves, but will mainly besupervising the machinery under them. However, there was nounanimity on this issue.


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5.7 The Chairman again stated that where there is a divergence ofviews, both the versions will be reflected in the draft. After theCommittee finishes its work, the draftsman will prepare the draft.Thereafter, as he had promised to the Chief Ministers and the Leaders ofthe Political Parties, there would be discussions with them. He askedthe representatives of the Civil Society to prepare their draft, give thepoints on which there is divergence of views, and then the governmentwill prepare the Cabinet Note. Justice N. Santosh Hegde enquiredwhether it is agreed that the Lokpal will have all India jurisdictions andcan utilize the facilities of other institutions. Then it should be left to theinstitution how one could exercise its power. Minister of HumanResource Development stated that it has to be provided in statute how itwill exercise its power.

5.8 Shri Shanti Bhushan stated that Lokpal will frame its own rulesand regulations. Parliament has the power to approve or disapprovethese, and the regulations will have to be sent to the House.

5.9 Shri Arvind Kejriwal again took up the staff strength of the Lokpalstating that it would be around 15,000. The Chairman observed that itdepends on the scope of the Lokpal. Justice N. Santosh Hegde desiredto know from where the infrastructure for Lokpal would come. TheChairman stated that Lokpal will have independent infrastructure. Somehas to be created at central level, and some at state level. Shri ShantiShushan wanted to know the strength of the machinery dealing with thecorruption matters. He further stated that the Lokpal would prepare itsbudget but the amount of the budget of the Lokpal will not exceed 0.25%of the GOP. Minister of Law and Justice was of the view that this shouldbe left to the Lokpal. The Chairman stated that the budget of the Lokpalwould be charged to the Consolidated Fund of India. This has alreadybeen agreed to and it should not be reopened as there is a need toprogress further on issues still not settled.

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6. Thereafter, the Chairman asked the representatives to give theirown draft formulations on the proposed Lokpal Sill. Shri Arvind Kejriwalstated that the government side may first give its draft formulation andthen they will give their views. Thereafter, he stated that it seemed thatthe government had taken a decision on most of the issues. TheChairman stated that the representatives of the Civil Society had earliergiven their draft and identified 40 basic points which had beendiscussed. The area of agreement, disagreement etc. are known to thecivil society. The Committee wanted to put them in to legal language.Shri Arvind Kejriwal then stated that they had given 31 additional points.The Chairman observed that on the basis of 40 basic principles,discussions had been held, and some of which were agreed to. Theseprinciples are to be put in to legal language. There are six major issues,on which the civil society may given their version and government sidewill give its version. Shri Shanti Shushan again stated that first thegovernment side should prepare its draft and the civil society wouldthen suggest changes. Minister of Home Affairs stated the civil societyhad already given their views on bringing judges under the ambit of theLokpal and the government side had also given its views. Both theversion would be discussed, and if there is no agreement, both theversions would be put in the draft. Shri Prashant Bhushan stated thatthere are 31 additional suggestions and they would be incorporatingthem in their version. Shri Shanti Shushan also said that they woulddraft their version. Shri Arvind Kejriwal stated that there were largenumber of points on which there is a fresh thinking, and they wouldamend Jan Lokpal Bill and bring it in the next meeting.

7. It was decided that the next meeting of the Joint DraftingCommittee will be held on 20th June, 2011at 11.00 AM.

B . The meeting ended with a vote of thanks by the Chairman.

lokpal jdc - minutes of meeting 7

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