Minutes of the First Meeting of the Joint Drafting Committee (JDC) for drafting the Lok Pal Bill

held on 16.4.2011 (Saturday) at 11:30 hrs. in Room No. 41, North Block.

The following were present:

1 Shri Pranab Mukherjee Chairperson 1 Shri Shanti Bhushan - Co Chairperson Minister of Finance 2 Shri P. Chidambaram, Minister of Home Affairs 3 Dr. M. Veerappa Molly Convener Minister of Law and Justice 4 Shri Kapil Sibal, of Minister Development Communication Technology 5 Shri Salman Khursheed, Minister of Water Resources and Minister of Minority Affairs 5 Shri Arvind Kejriwal 4 Shri Prashant Bhushan Human and and Resource of Minister Information 2 Shri Anna Hazare

3 Shri Justice N. Santosh Hegde

2.

Before commencement of the meeting Shri Prashant Bhushan circulated the

draft copies of the Jan Lokpal Bill [version 2.2].

3.

The Finance Minister and Chairman of the JDC welcomed all present and

mentioned that joint drafting of a bill is a unique experiment which had not been attempted before in the Government. The Chairman elucidated the legislative process in vogue and pointed out that public opinion is generally obtained by the Select/Standing Committees of the Parliament at a later stage i.e. after the draft legislation is introduced in the Parliament and referred to such Committees. At that point of time. witnesses are called and views of general public are sought. considered and deliberated upon by the Committee before it finalizes its Report. The said Report is placed before the Parliament for enactment of the law with suggestions or modifications.

3.1

The Chairman pointed out that this was the first instance that even at the

drafting stage a section of the Society has been made a part of the drafting process,

-2and hoped that the outcome of such exercise would be positive. Inviting attention to the Gazette Notification of the Government (April 8, 2011), the Chairman stated that the Joint Drafting Committee is to evolve its own procedure for carrying out the exercise of drafting the Lokpal Bill, while pointing out that the Parliamentary and Government Committees had their own laid down procedures. The Chairman further stated that before the actual drafting of the Lokpal Bill, the objectives and principles have to be spelled out first, followed by the scope, application, jurisdiction, functions and powers of Lokpal.

3.2

Stressing that the joint exercise of drafting a Bill is a new experiment, the

Chairman sought the views of the representatives of the Civil Society on the procedure to be adopted and also as to how the Committee should go about the exercise. It was emphasized that the intent of the Government is to introduce the Lokpal Bill in the Monsoon session of the Parliament and thus a calendar had to be drawn up for scheduling meetings of the Committee and while so doing, also keeping in view the fact that the Ministers had their own responsibilities to be discharged. The promptness of the Government to call for the meeting within a week of the constitution of the Committee underlines the importance being accorded to the said exercise. The Chairman specifically requested Shri Anna Hazare to spell out the procedural aspects as were expected by his group to be adopted for the drafting process.

4.

Shri Anna Hazare stated that there were three major factors necessitating the

adoption of the Jan Lokpal Bill. The first - the increasing corruption in the country. He stated that corruption has impeded development programmes and the actual beneficiaries are receiving very little out of funds earmarked for development. These funds need to percolate to the actual beneficiaries, especially in rural areas. The outlook of the Committee should be towards the upliftment of the society and progress of the nation and at the same time the gap between the rich and the poor should be narrowed. Shri Hazare further stated that it is not being contended that the Lokpal will provide 100% guarantee of doing away with corruption, but if the bill is properly drafted, it will put a break on corruption to a large extent. The draft Jana Lokpal Bill formulated by his group would provide justice to the common man.

4.1

Shri Hazare stressed upon transparency in drafting the bill in government

business by adopting improved technology in the form of 'video conferencing' for the

-3deliberations of the Joint Drafting Committee. He also stated that the deliberations of the meetings of the JDC should not be kept secret and people should be aware, and participate in such discussions. On the specifics of the draft legislation, he stated that his group had already

4.2

formulated a comprehensive draft (version 2.2 of Jana Lokpal Bill) and areas which are acceptable may be excluded from discussion and aspects where reservations/doubts existed could be discussed. 5. Shri Shanti Bhushan, Co- Chair for the JDC endorsed the suggestion of Shri

Anna Hazare for enabling deliberations of the Committee to be made available to the public. He stated that the advantage of such procedure would be to involve the public in legislative process. He drew a parallel with the proceedings in Parliament. Shri Shanti Bhushan referred to India's signing of the United Nations

5.1

Convention Against Corruption (UNCAC) in 2005 and pointed out that India is yet to ratify the same when most of the countries including Pakistan had done so. He mentioned that the Convention did not merely deal with bribery but also delved on what a participatory government could do to combat corruption. He cited the Foreword and some articles of the Convention. As regards who should be put within the ambit of the Lokpal Act, Shri Shanti Bhushan stated that the UNCAC defined the "public official" as any persons who holds a legislative, executive, administrative or a judicial post. He pointed out that the Prevention of Corruption Act, 1988 also includes Judges in the definition of "Public Servants". Referring to article 6(2) of the UNCAC Shri Shanti Bhushan stated that a totally

5.2

independent body is the soul of the matter and thus its members must be selected with care so that people could repose faith in them. Further inviting reference to article 13(1) of the Convention, Shri Shanti Bhushan stated that it referred to the participation of society in its fight against corruption. The public may be involved in the decision making process and the contribution and participation of the public could be encouraged by use of technology through hosting the decision on the website and eliciting comments.

5.3

Shri Shanti Bhushan also referred to various provisions of the draft legislation

(Jana Lokpal Bill) as formulated by his group. It provides that wherever Lokpal finds

-4any irregularity meriting investigation, it would initiate such action and its role would be restricted to the investigative aspect culminating into framing of a charge sheet to be placed before the Court of the Special Judge as constituted under the Prevention of Corruption Act. The trial would be as per the existing system in place. However, the Bill proposed a time bound completion of investigation as well as of the trial. To address the delay at trial stage due to lack of adequate number of courts, the Lokpal may be empowered to make assessment of requirement of such courts and recommend setting up of additional courts which the Government would be obliged to constitute.

5.4

Shri Shanti Bhushan mentioned that in the Jan Lokpal Bill (version 2.2) powers

have been proposed for the Lokpal to annul/rescind contracts where there has been corruption. Similarly, the delinquent may be denied the fruits of corruption by identification and confiscation of assets acquired by such unfair means with recovered assets being pooled back for developmental projects. Shri Shanti Bhushan stated that for effective functioning, the Lokpal had to be

5.5

independent and its investigation should not be influenced. It is envisaged that the Lokpal would be free from any external control. The constitution of the Lokpal is proposed to be comprising of ten members and a Chairperson, which would perform through benches comprising of 2-3 members. Under the latest version of the Jana Lokpal Bill, the Lokpal is to be selected by a Selection Committee comprising of the Prime Minister, Leader of the Opposition in the Lok Sabha, two youngest judges of the Supreme Court, two youngest Chief Justices of the High Courts, Comptroller & Auditor General and the Chief Election Commissioner. Keeping in view the onerous responsibilities of such constitutional appointees it was also proposed that the initial scrutiny be entrusted to a Search Committee (Instead of a public advertisement proposed earlier). 5.6 Shri Shanti Bhushan also stated that it is proposed that the Lokpal will draw up

a citizen's charter of rights for all organisations in a phased manner. The Lokpal will also have powers to punish the non-performers in cases of delay in grievance redressal. He suggested that the Lokpal should be given a constitutional status as recommended in the Second Report of the ARC.

-56. Chairman suggested that the first meeting of the JDC was to focus on

procedure to be adopted and that salient features may be considered while discussing the draft proposals in subsequent meetings. Shri Justice N. Santosh Hegde was requested to present his point of view. Justice Hegde however stated that his views would be placed before the Committee when the provisions are discussed and that he would contribute at that stage based on his experience.

7.

Shri Prashant Bhushan endorsed the submissions of Shri Shanti Bhushan as

regards the broad principles of the draft legislation and indicated that the draft had already seen 12 versions in the past 6-7 months based on desirability and inputs being received, and it was hoped that the draft could still be improved upon. He stated that public consultations on the Bill were necessary for evolving a refined version. He endorsed the suggestion of hosting the bill on the website and also suggested five regional consultations for gathering public opinion. Shri Arvind Kejriwal clarified that Shri Anna Hazare's reference to video

8.

conferencing in fact, implied videography/recording of the proceedings of the Committee. The Chairman at that stage assured that the Government was all for introducing transparency in the process. Shri Kejriwal stressed upon the need for public consultation and offered help for sifting of inputs received. He reiterated the proposal of Shri Prashant Bhushan for 5 Regional Consultations, and suggested involving the NGOs in obtaining public feedback. He also suggested that the Government may consider their present draft and convey its objections, if any, 2-3 days prior to the next meeting. He requested that an interpreter may be provided to Shri Anna Hazare for interpreting discussions in Hindi. The Chairman then invited the Union Ministers present to respond to the

9.

suggestions/views of the Civil Society members. The Minister of Water Resources addressing the Committee (in Hindi) stated

10.

that this was only a preliminary discussion and not many views could be offered. He stated that the Government was all for, reaching out to the people, however, this can be done only after the committee firms up its views on specific issues. He clarified that he was not against transparency but a conclusive stage needed to be arrived at in deliberations before we go to the people. He assured that the all members of the Committee had a common objective namely to create an institution that helps

-6eradicate corruption, even if methodology may be different. As such, the Committee should not provide room for misinterpretation or projection of a disagreement between members at intermediate stages. Referring to the UNCAC, he pointed out that many actions had already been concluded or were at advanced stage of consideration by the Government viz. Right to Information Act, Judicial Accountability Bill etc. These need to be kept in mind. The Minister of Human Resource Development congratulated the Group led

11.

by Mr Hazare for reviewing their draft of the Bill, and pointed out that the earlier versions carried many aspects which were prima facie objectionable. He also endorsed transparency and in this regard conveyed the intent of the Government to carry out discussions with other stakeholders also. He stated that the Committee had to decide as to how to involve others so that their views could also be considered. The chalking out of procedure or the option of use of website for inviting opinion of people could be considered at an appropriate stage. Referring to the atmosphere where doubts could arise about intentions, he stated that the possibility of aggressive reactions which would vitiate the atmosphere while drafting the Bill could not be ruled out. He expressed positive intent for regional consultations but also pointed out that many other draft legislations including the legislations drafted by the Government at different points of time should not be overlooked. He stated that the Government and the Civil Society were now on the same platform and were not adversaries and all disagreements had to be sorted out in a constructive and progressive manner within the Committee. He also suggested that next meeting may be held after a fortnight and thereafter there may not be any objection to day to day meetings. 12. The Law Minister stressed upon the Government's commitment to introduce

the bill in the ensuing Monsoon Session of the Parliament. Referring to the mandate of the GoM and the time limit of 60 days to inter alia consider the Lokpal Bill, it was stated that attempt had to be made to ensure laying down of modalities/procedures in a time bound manner. He also stated that while the Civil Society was refining its version of the draft Bill, the Government had also convened several meetings to evolve and shape a comprehensive legislation. Principles required for drafting a Bill had to be laid down by consensus before discussion on the specific provisions. The number of representations and suggestions received on the subject also had to be considered and the Committee had to take a view on them. Such eminent persons/group/jurists making suggestions also were to be provided a slot by the

-7Committee for due discussion and thus a road map was required to be prepared. On the aspect of transparency he stated that within the Committee there may be disagreements, but there is a need to guard against possible distortion of such issues by the media which could impede reaching a consensus. He again stressed that time was of essence and the exercise needed to be concluded expeditiously. 13. The Home Minister suggested that the Committee had been constituted to

achieve an objective and proposed adopting an orderly approach in the drafting exercise as any draftsman would do. He stated that the process should be to outline the Statement of Objects and Reasons first, then to move to scope and application of the proposed legislation. This would logically lead to defining the powers and functions of the Lokpal followed by all necessary and incidental provisions to make Lokpal effective. He also stressed upon the requirement of provision for protection of action taken in good faith. The initial process should focus on the content and thus a procedure needed to be evolved where first few meetings could be devoted for evolving the content of the Bill. Thereafter he suggested that the specific provisions could be borrowed, modified from other laws/drafts or drafted. He pointed out that the work of the Committee would be judged by others. After drafting the Bill, the first stage would be obtaining Cabinet's approval, followed by Parliamentary approval including scrutiny by the Standing/Select Committees. The Act would have to stand the test of judicial scrutiny and even face public opinion. The Home Minister stated that irrespective of the outcome, there will be areas open to criticism as nobody's work was above criticism but the Committee had to focus on as how best a legislation providing strong legislative measures to check corruption could be evolved. Home Minister suggested that the content of the bill may be discussed first rather than straight away resorting to clause by clause discussions. 13.1. Referring to the suggestion for videographing of the deliberations of the Committee he stated that while it was an attractive argument the down side could be that if every word, every change of view, every question is made public there may be a case where a completely uninformed or motivated person may cause deviation from the basic task of drafting as motives can be attributed which each member would then only be reacting/responding to. This would distract from the basic task of drafting the Bill. He suggested that only after a conclusive stage is reached, the issue could be made public at periodic interval while the Committee continues doing its job.

-814. The Chairman thanking everybody for their valuable contributions indicated

that the two issues that needed to be resolved are: (i) Whether deliberations should be recorded and how? ( ii)How opinion from the larger section of the Society is to be obtained? 14.1 He clarified that the deliberations of the committee were being recorded. He suggested that the intervening period of around two weeks before the next meeting could be utilized for obtaining suggestions. He stated that the Department of Personnel and Training would collate, analyse and examine such suggestions. All suggestions and records including the drafts already formulated will be sent in the form that these have been received, to the Members, before the next meeting, for exchange of views thereon. He again enlightened the Committee of the process adopted by the Standing Committees for seeking views of the General public and stated that after such deliberations the views were firmed up through consensus and rarely there are notes of dissent. He 14,,f also stressed that the format of the Bill had to be adopted and for that initially, the SORs had to be formulated. 14.2 The Chairman stated that all present had a common objective and that this platform was being watched by lot of people with lot of interest. Thus the information was required to be shared but stage by stage. In this regard it was suggested by the Chairman that the Press may be briefed after the Meeting by Shri Anna Hazare/Shri Prashant Bhushan and Shri Kapil Sibal to project a unified approach to the drafting of the Bill.

14.3 Concluding the discussions, the Chairman stated that it has been decided that (i) recording of the deliberations may be prepared for each meeting, (ii) functioning and progress of the Committee may be made public on periodic basis to share major decisions, (iii )general principles for formulation of the Bill may be evolved in the next meeting, (iv)the next meeting to be held on 02-05-2011.

15.

The meeting ended with vote of thanks.