«-SK/YSR/1.00/1Z DR. ABHISHEK MANU SINGHVI (CONTD.): Incidentally, prior sanction under section 6A for Joint Secretaries and above was required to be ...»
DR. ABHISHEK MANU SINGHVI (CONTD.): Incidentally, prior
sanction under section 6A for Joint Secretaries and above was
required to be abolished by the Vineet Narain judgement. If I
recollect rightly, the NDA Government brought it back. But that
apart, this Bill, for the first time, abolishes the prior sanction apart
from abolishing all other sanctions under section 19 of the
Prevention of Corruption Act and under section 197, but section 6A
in particular. Incidentally, section 6A was perhaps not specifically abolished even in the Government Bill introduced earlier. But after the Report, it has been accepted and it is abolished.
Two, we have been talking in this country for 60 years that it is better to have some differentiation between investigation and prosecution. It creates better objectivity. Today, suppose I am an investigator. I come back to the CBI and tell my colleague sitting in the next room that this is my investigation, you please prosecute.
Collegiality means that he will normally prosecute on not such a good investigation. But separation of prosecution and investigation has been a progressive ideal of most systems. This Bill, for the first time, creates a separation, a Chinese wall. For Lokpal-referred investigations, the Lokpal shall prosecute. There is objectivity there.
Three, there is clearly, among others, in clause 25, a statement that the merits of the investigation of the CBI shall not be interfered with. But here comes an important point which the Leader of the Opposition made. The Leader of the Opposition was talking about the common law in England and India. The common law means judge-made law. That means the investigation process of the CBI or any investigating agency cannot and should not be interfered with. But there is no law which says that the statutory law cannot change the common law. Perhaps my friend has forgotten that. That is why we are considering in the Bill a specific provision which overrides and seeks to amend section 173. It, in fact, makes the charge-sheet or the closure report fileable by the Lokpal. The Lokpal is the one which will file the charge-sheet. On the one hand, you keep saying that the Lokpal should be important and it should be strong. On the other hand, when we provide for Lokpal-initiated investigation, that the whole control remains with the Lokpal, you start objecting.
Remember, the CBI deals with cases relating to murder and rape; it deals with those cases which do not fall in the category of prevention of corruption cases; it deals with economic offences; it deals with CBI-referred cases; it deals with High Court-referred cases; and it deals with the Supreme Court referred cases. These are not the cases we are considering. The CBI is separate for all of them. The cases we are considering are the Lokpal-referred investigation under the Prevention of Corruption Act. Well, in that case why should not the matter come back to the Lokpal to file a charge-sheet? We have amended section 173. Does any law say that Parliament, under the new Bill, cannot amend the common law?
Now I come to section 8A. And this is very interesting. One of the arguments is this. I always get mixed up whether the argument is from that person sitting outside or from the BJP. There are nuances of that. And there is a great overlap. One of the arguments of Team Anna and partly of the BJP is that you submerge the whole CBI under the Lokpal or give administrative control of the CBI to the Lokpal.
Let us look at this argument for a minute. Of course, they never thought of transferring any administrative control during the NDA regime. Today, everything in this country must be transferred.
Even the Selection Committee of the Prime Minister, the Chief Justice of India, and Leader of the Opposition is not enough. But we will come to that.
Let us look at this process. What is the argument? The argument is that you are actually not making the CBI subject to the control of the Lokpal. But, actually, in a large measure, you are. In this Bill, I have told you, the investigation report comes back and the Lokpal files the charge-sheet. The Lokpal has been transferred section 8A, power of the CVC, which is full supervisory jurisdiction over the CBI. That is also with the Lokpal. The Lokpal does the prosecution. Apart from actually putting the CBI under the Lokpal, we have given great control and power to the Lokpal over the CBI.
Unless they want to eliminate the identity of the CBI completely, there should be no objection.
My friend has an objection to the Selection Committee. Can I ask him which body in this country has a selection procedure where the Government nominees or at least those associated with the Government don’t have a slight majority?
MKS-SC/1.05/2A DR. ABHISHEK MANU SINGHVI (CONTD.): This far has less. One of his colleagues sits on the CVC selection, i.e. Prime Minister, Home Minister and Leader of the Opposition. They sit on the selection of the NHRC -- Prime Minister, Leader of the Opposition etcetera, etcetera. Is he now suggesting that for the first time in this country you must specifically create a law where the Government must be in a minority in selection?
DR. CHANDAN MITRA: Will you please yield for a minute?
DR. ABHISHEK MANU SINGHVI: No, no; please let me complete first....(Interruptions)...
MR. CHAIRMAN: He is not yielding, please....(Interruptions)...
DR. CHANDAN MITRA: Please yield.
DR. ABHISHEK MANU SINGHVI: No, no; it interrupts my flow.
You discuss it later on, please....(Interruptions)...
MR. CHAIRMAN: He is not yielding....(Interruptions)... Chandan Mitraji, he is not conceding....(Interruptions)...
SHRI V. HANUMANTHA RAO: Chandan Mitraji, when your turn will come, you can speak....(Interruptions)...
DR. ABHISHEK MANU SINGHVI: Therefore, you have, at least, five new systems here in this new Bill -- prosecution separated, all sanctions abolished, no influence during investigation under Section 25 or Clause 25, charge sheet to be filed by Lokpal, supervisory jurisdiction of 8A with the Lokpal and selection after changing the law, again, for your sake, by a very high-powered body. Now, if you do not trust people like the Chief Justice of India, the Speaker of Lok Sabha, all ex-officio, and if you say that there is a Government, sarkari selection, then, I think, fundamental restructuring of a democracy must come about because democracy answerable through Parliament must not select;
outsiders must select.
interesting. He says, “Administrative freedom or administrative control must be given to somebody else; to Lokpal in this case.” Sir, I hope, nobody in this country considers that CEC, CAG are sarkari bodies. I hope, somebody will concede that much.
Although I am not sure, in an appropriate moment, we will also be told, perhaps, by the BJP, or by those sitting outside, that even CAG and CEC are sarkari bodies. They are totally independent in action and in concept in the Constitution. Does the CEC has administrative control somewhere? Or does the CVC say, ‘Today, I want to pay my Deputy CEC the salary of a Cabinet Secretary?
Because I am independent, I will pay him Cabinet Secretary’s salary!’ Who is the controlling cadre authority of the CEC? The Law Ministry. Who is the controlling cadre authority of the CAG?
The Ministry of Finance. Who is the controlling authority, administrative authority of the UPSC? The DoPT. Now do you want to create a body? This is common for everybody. That does not mean that every day, they sit on their head and they say, ‘you can’t discharge your constitutional functions.’ Just because of the lust, just because you want to earn a few brownie points outside or just because of some State elections, you want to fundamentally alter the structure of this country! That administrative authority will not lie any where. Now, this is very important. Why does the administrative authority lie with Law Ministry, Finance Ministry or DoPT? It lies because when the Minister gets up in the House and seeks sanction for funds on the Consolidated Fund of India, he seeks sanction for funds on the Consolidated Fund of India for the CAG. The Finance Minister does that. The Law Minister does it for CEC. He is the political executive answerable to Parliament. He replies to questions. Today, for any of these authorities, do the Civil Service Rules apply or not? Is a CAG officer subject to the Civil Service Disciplinary Rules? Obviously, he is. Suppose he wants to travel abroad. Let us take a better example, my friend, the Leader of the Opposition, more familiar with, the Supreme Court. I hope, you remember this, just about six months ago, if I remember, Secretary in the Ministry of External Affairs rejected the travel plans of three Supreme Court Judges. He wrote on the file, “According to me, this Conference is not necessary to be attended by these three Judges of the Supreme Court because the administrative Ministry for travel abroad, for all other people also, is the MEA.” If the CAG wants to travel abroad, he has to bring in within his budget and he has to seek two clearances – a political clearance an administrative clearance. A political clearance is necessary. Whether somebody can go and represent somebody abroad, an administrative clearance is necessary. And he can’t decide to do what he likes, with the money! Now do you want a system where administrative control is not vested with the Minister
administrative control with a Minister who does not get up and seek the Consolidated Fund of India funding? Are we talking of anarchy just because it suits you? I would implore my friend that we are together on this; in a short-term experienced concept, please don’t destroy institutions.
DR. ABHISHEK MANU SINGHVI (CONTD.): There is a method in the madness what we have in India. There is a huge method.
That method in the madness does not exist in our neighbouring countries. But we should be proud and not destroy it merely because of the expediency of one particular Bill. These are our systems which have endured the test of time. I can give you several examples. For example, the Chief Election Commissioner of India wants to have an MoU with the Chief Election Commissioner of Pakistan even for a very salutary and desirable object. He is not a law unto himself. We have several senior exbureaucrats in this House today. He has to go and seek permission from somewhere, whether it is the Ministry of External Affairs or some other Ministry, because you can’t do things without an anchor. Incidentally, if you had checked, you would have come to know that the CBI, except Joint Director and above, selects almost everybody and transfers them on its own. Only some of the senior ones require consent. I believe, Sir, with great respect, that it is highly exaggerated that in every case Ministries are interfering with our institutions. Yes, we have had a record over the last 20 years that in some cases, certainly as much in your side and as much in our side, the CBI might have been interfered with. But this is a highly exaggerated notion that Mr. Narayanasamy’s Ministry or the Minister is sitting in the CBI Office every day and monitoring the investigation. Today is an age with media, 24 x 7, entering our bed
institutions on theoretical tilting and windmills and imaginary apprehensions?
Let us turn, Mr. Chairman, Sir, with your permission, to a very important issue of article 253. With great respect, I would like to submit that I would have thought that this issue would not arise.
Perhaps, this issue has been raised only because my friend wants to play Narad Muni. He believes that he must play Narad Muni to the galleries because some of our friends on our side will get provoked by him when he talks of federalism.
Now, I am going to tell you something very interesting. The night before last, I went through the Constituent Assembly debates and I am going to prove in a minute that, perhaps, my friends in the BJP and the Leader of the Opposition are telling us that they are wiser than our Founding Fathers. Our Founding Fathers discussed that the State autonomy was very important. Then they created not one, not two, not three, not four, but six inroads into it, right from article 249 to article 253. They said that for higher national interest, you have to have provisions where affirmatively Parliament is given power to have an inroad, where Parliament is given power by our Constitution. My friend is telling us that there is an assault on federalism. One of our lawyer colleagues wrote an article two days ago that it was an assault on federalism. When I tell you what happened in the Constituent Assembly debates you will realise that article 253 itself was, as it is, put there. Then -- I will give the name
-- a Joint Memorandum was moved saying, at least, make it clear that “We shall only do it if it is obligatory upon international treaty to do it”. Mr. B.N. Rao, the Constitutional Advisor, got up and said,
important for Indian federation. It is important for national interest”. So, article 253 is a Constitutionally decided national interest provision. How can it be an assault on federalism? The two are contradictory. I will just give you the details in two minutes.
Yes, List-II is inviolate. I will come to the arguments about Entry
41. With great respect to my learned friend -- I really admire his legal knowledge --that is a wrong argument. But that apart, List-II is important. Federalism is important. But just consider the articles which start from 249, forget article 253 for a minute.