Lokpal Breakpoint: Here's why Team Anna and govt fell out

At what point did the proceedings of the discussions between Team Anna members and the government representatives to draw up a draft Lokpal Bill break down? One can glean some clues from the audio recordings of the ninth – and last - meeting of the Joint Drafting Committee. Sure, there are a lot of procedural wranglings and discussions of legalistic microdetails, but the audiotapes give a clue to the fundamental difference between the government and Team Anna. The government’s case is that the Lokpal as envisaged by Team Anna is a “parallel agency”, a “parallel government” which “is accountable to nobody”. Team Anna puts up an admirable defence of its position. [caption id=“attachment_28434” align=“alignright” width=“380” caption=“Team Anna failed to convince the government representatives that the Jan Lokpal would not be a “superagency”. PTI”]  [/caption] Kapil Sibal is the one who articulates the government’s inhibitions most forcefully. Kapil Sibal: The problem is fundamentally this: that we are setting up through your… structure, we are setting up a parallel agency which is accountable to nobody. This is a big problem that we have… To which, Santosh Hegde respondes: “ It is accountable to the court.” Then there is a lively interaction between Sibal and Hegde. Kapil Sibal: What court? Who is going to complain to any court against any inspector? You find any complaints nowadays against any inspector? People are afraid. You see, this is the fundamental problem… Santosh Hegde: I can tell you I have faced three defamations in Prevention of Corruption Act… Kapil Sibal: Ordinary persons don’t dare complain against any enforcement agency. We all know that. This is the rule of… this country, we have seen it. That’s the fundamental issue. Shanti Bhushan then steps in to clarify the position from a legal perspective. He says: “The entire criminal law today, for investigation and after investigation, registration of a case for prosecution, never requires even an opportunity to an accused. This is for the first time that before you launch a prosecution, you are the accused person. The accused person will be heard by the court, not before by anybody. Every case, whether it is murder, even corruption case, the law requires after investigation when a chargesheet has been filed and as Justice Hegde has pointed out, the question of sanction doesn’t arise in case of Prevention of Corruption Act, because no corruption can be regarded as in the discharge of public duty… But Sibal keeps hammering away at the notion that Team Anna’s idea of a Lokpal is a “parallel government that is not accountable to anybody.” Kapil Sibal: What is the protection to a government servant (from) a parallel government that is not accountable to anybody? Today the executive is accountable. That’s the problem. Pranab Mukherjee then steps in seeking a clarification on whether the Lokpal, as envisaged under by Team Anna, will impose punishment of government servants right after investigation, even before t a trial. Pranab Mukherjee: Just one small clarification from your draft - Page 13C… functions of the Lokpal. After completion of investigation in any case involving an allegation of an act of corruption, to impose punishment of dismissal, removal or reduction in rank against government servants after giving them reasonable opportunities of being heard. That means here in this case even dismissal can take place after completion of investigation, not necessarily of the trial. Is that the meaning? Team Anna defends the provision, saying that even under current procedures, administrative action can be taken against accused government servants before the trial. Shanti Bhushan: It happens already… Pranab Mukherjee: No, no. I am not entering into argument. I just wanted to know that even before commencement of the trial, after the completion of the investigation to the extent dismissal of the public servant is possible? Arvind Kejriwal then explain the provision more clearly. Arvind Kejriwal: It happens today also. Today, the power to order dismissal after departmental enquiry lies with the department. The prosecution takes place parallelly in the court. The same powers are there. All that we are doing is transferring the powers from the department to the Lokpal. Salman Khurshid then seeks another clarification Salman Khurshid: One more question. The same person who comes to a conclusion that there is a fit case for prosecution, the same person comes to a conclusion that he should be removed… This again leads to a lively exchange with Team Anna members.. Shanthi Bhushan: Not the same person. The investigating officer won’t do it.. The investigating officer will send the matter to the Lokpal. The Lokpal will appoint a sufficiently high officer to make this inquiry afer giving him full (inaudible) only after this inquiry if he is satisfied. If he has done something - he has taken a bribe - he can dismiss him Arvind Kejriwal: We have introduced a concept of judicial officers : Retired judges, civil servants.. They can be hired by the Lokpal. He can form benches of such people. For senior people, the Lokpal himself will hear. For junior people, he will set up benches of such retired judges. Shanthi Bhushan: The investigating officer, after completing the investigation will come to the conclusion; is the charge proved, not proved? If he comes to the conclusion that it is proved, after getting the permission from the Lokpal he will launch a prosecution Salman Khurshid: Why permission? I’m just trying to understand this: if he goes to the Lokpal for permission, is he just a rubber stamp or does he apply his mind at that stage even peripherally? Meaning, almost the way automatic sanction was to be granted under the Supreme Court judgements, similarly the Lokpal will give automatic sanctions for prosecution or will apply his mind? Santosh Hedge: The very purpose is to apply his mind, not act as a post office. Salman Khurshid: If he’s going to apply his mind, Kapil’s point was he can’t apply his mind unless the other person is heard. The proceedings then continue in this same way. Listen to the entire exchange here. But it’s obvious that the gap between the government’s perception – that the Lokpal as envisaged by Team Anna was a superagency and a parallel government that was accountable to nobody – and Team Anna’s stand proved unbridgeable. This, in the end, was why the talks ended abruptly.