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'You can't put a gun to govt's head to pass a law'
Justice A P Shah, former chief justice of the Delhi high court, shares his thoughts on the current situation surrounding the Lokpal bill and Team Anna with rediff.com's Toral Varia.
It has been 11 days since Anna Hazare has been fasting. Team Anna is adamant that the government meets their demands. Your views.
It is my view that you cannot get a law passed by putting a gun to the government's head. You cannot seek to reform the democracy by undemocratic means. I feel that the methods of Anna Hazare's campaign are highly undemocratic. They are wrong.
Parliament should follow its own procedures. Its alright now that the Prime Minister has made some concessions in Parliament that the Jan Lokpal Bill will be discussed.
No individual or the group can say that, they would dictate terms to Parliament. According to me putting deadlines is a serious breach of democratic norms.
Let the bill be fully debated. All the versions of the bill should be discussed and debated before the standing committee. That's the correct way of doing things. I am sure all the right thinking people are of the same opinion. Even the political parties have now realized that there is a need to pass a strong lokpal bill.
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'Anna cannot take an extreme position'
Do you think Anna Hazare should break his fast now?
It is high time Hazare breaks his fast. According to me, if there is an impasse then Kiran Bedi, Arvind Kejriwal and Team Anna should only thank themselves because they are very adamant and obstinate. They are simply asking for their version of the draft to be passed as a law. That's absolutely unacceptable.
Are you of the opinion that it's now Team Anna-versus-Anna's-own-health kind of a situation?
It's a cause of concern that for everyone.
Hazare's colleagues don't understand that fight against corruption is not over even if the Lokpal Bill is passed. What about reforms in electoral laws, police reforms etc? Hazare will have to fight on all these issues.
And if they call themselves Gandhians, they should adopt some strategy. Hazare cannot take an extreme position, saying that he would break his fast only after his conditions are accepted and met with.
'Anna's Lokpal is not accountable to anyone'
Do you think that setting up a Lokpal will create another huge channel for corruption? why?
Of course, Jan Lokpal, as contemplated by Team Anna, is a giant bureaucratic machine with some 15,000 employees and without any modicum of accountability.
Anna Hazare's Lokpal is not accountable to anyone. Within Jan Lokpal, an employee can be removed with the investigation of the Supreme Court, but beyond that there is absolutely no accountability of this Lokpal.
According to me, this very idea of creating a Lokpal with this kind of a set up is completely undemocratic.
Moreover, the Jan Lokpal seeks enormous powers from wire tapping to contempt of court, to revoking leases, to suspending employees etc. So this kind of power is unprecedented in any democratic country.
'Anna and his team are not above the Constitution'
Do you think creation of a Lokpal is the medicine to cure corruption in this country?
It is my view that creating some super powerful body is not going to help eradicate corruption.
Anna Hazare is not civil society and civil society is not Anna Hazare. So one group or one individual cannot claim that he represents the entire civil society.
And therefore they cannot say that they represent the people and therefore people are above Parliament.
Certainly, Hazare and his team are not above the Constitution. We are governed by parliamentary democracy. Our democracy has survived for 63 years and it doing great. It's the only democracy in the region which is doing well.
Look at the other democracies in the region. It is the citizens of this country who have preserved this country's democratic institutions.
Anna Hazare and his team's fight against corruption is fully justified, I support his fight against corruption and a strong Lokpal, but he cannot say that Parliament should adopt the law in as proposed by him. That's not acceptable.
'Government has mishandled the situation very badly'
What is your understanding of the way in which things are moving ahead both from the government's front?
According to me, this is not a good precedent at all.
What has happened in the last 10 days, the government in the process the credibility of the Prime Minister has been severely affected. He has been attacked from all quarters.
And in any case, the government has mishandled the situation very badly.
It has completely misread the situation. I am not sure if the PM has got any sound advisors or not. First they attack the person carrying out the agitation, and then they want to cajole him and show great respect to him.
So this kind of blowing hot and cold has not really helped the government.
'Team Anna is behaving in a complete unreasonable manner'
And what about Team Anna?
I honestly do not think that Team Anna understands the meaning of an agitation in this country.
According to me, Hazare's campaign has already achieved great success. See everyone is now talking about corruption.
He has succeeded in bringing the issue of corruption on the national agenda. Every right thinking person in this country wants a good law and a stronger Lokpal.
But apart from that, there is a clear indication that people are frustrated with corruption and that they want to fight a corrupt system and corrupt people.
That itself is a great achievement. And all political parties for the first time unanimously agree that there is a need for a strong Lokpal. This is a success of Hazare's agitation.
But my making rigid demands Team Anna is behaving in a complete unreasonable manner.
'The Jan Lokpal Bill is very defective'
What is your view on the Jan Lokpal Bill as drafted by Team Anna?
The Jan Lokpal Bill is very defective and there are serious anamolies in it. It has to be debated and properly modified. There are other alternative views on the Bill also.
One of the contentious issues is about lower employees below grade A. If you bring all of them into one single body, then that body will collapse under its own weight because it will virtually impossible for the Lokpal to monitor all the 42 lakh employees of the central government and public sector undertakings and some other bodies.
What a solution according to you?
There has to be an entirely separate mechanism for looking into the complaints of corruption by the lower employees.
My view is that class IV employees should be completely kept out. In the sense that the class IV will be governed by the present laws such as the Prevention of Corruption Act, Indian Penal Code etc.
But between class IV and up to class IV, those employees should be monitored by the by the CVC, which is already in existence. So instead of dismantling the CVC, it should be an authority over those employees.
The CVC act, though, needs to be amended. There is a provision in the CVC act that the government can issue directions to the CVC and the CVC cannot act contrary to those directions. That provision must go. The CVC should also be provided with investigating machinery, with the power to file a FIR.
'With safeguards, the PM would come in Lokpal's ambit'
What is your take on the inclusion on of the Prime Minister under the purview of Lokpal?
I don't think that even the Prime Minister's Office would be a problem because there seems to be almost a consensus.
The Congress seems to have accepted that the PM should be brought under the ambit of Lokpal.
But I feel that it should be with some safeguards because his role vis a vis the national security and political intelligence should not be questioned by the Lokpal.
And secondly, I feel it should be by the 2/3 majority of the Lokpal body and they should take prior sanction of the President, and the President in granting sanction will not be guided by the advice of the Council of Ministers but independently take the decision.
And also the prime minister should not be held vicariously liable for the decisions of his ministers. So with these safeguards, I feel that the prime minister would come in the ambit of the Lokpal.