Kapil Sibal, let me start with a simple question. How serious are your differences with Anna Hazare and his team? Are they irreconcilable or can they be bridged?
Kapil Sibal: I think no difference in the course of any dialogue are irreconcilable. I think that's a position the government takes and that's, I hope, the position that the others will take.
Karan Thapar: So if they are not irreconcilable, you are saying that each of the differences can be bridged?
Kapil Sibal: Well absolutely. Negotiations are about bridging differences. Negotiations are not about increasing differences or taking hard positions.
Karan Thapar: Now, Anna Hazare's team has gone on record to say that the government has been unresponsive, that they haven't taken up the issues that they have raised seriously. Infact, Arvind Kejriwal specifically says that of the 71 points raised with you only 15 have been addressed, 56 have either been ignored or forgotten.
Kapil Sibal: No, we are addressing each point they wish us to address. We have never, sort of, said we will not address these issues. But, while we were addressing certain issues they raised certain fundamental issues and they said they want a discussion on those fundamental issues first. That's how the other points were not addressed.
Karan Thapar: So, in other words, the fact that certain 56 points that they raised were not addressed is because they themselves brought up other issues at that step?
Kapil Sibal: Yes, exactly. They said first you address us on this, this and this, okay. We said alright we'll do that.
Karan Thapar: Now it emerges, from comments made by both sides, that when on the 30th of June a draft of the Bill is sent to the Cabinet, there will either be two drafts or there will be a single draft with two clauses on each of the contentions.
Kapil Sibal: There will be no two drafts. You see there are areas of agreement so the text of the drafts will reflect that area of agreement. Where in particular clauses there is a disagreement, the two alternatives will be set out.
Karan Thapar: Well, where there are areas of disagreement, the two alternatives clauses, a ministerial clause and Anna Hazare's team's clause. Now, I put it to you, given that is going to the Cabinet, what is the likelihood that the government will reject the clause submitted by its ministers in preference to the clause suggested by Anna Hazare?
Kapil Sibal: That's really not an issue that the Cabinet will debate, and I hope that they will take both points submitted into account and debate it.
Karan Thapar: But, can they take both points into account when they are polar opposite points?
Kapil Sibal: Well they might not be polar opposite points. They may be small areas of differences in drafting and stuff like that. I mean, I don't think we can predicate all that and say, look, the Cabinet will reject what they have said or accept what they have said. This is something that will be open to debate.
Karan Thapar: But you're saying to me that there is a serious possibility that the Cabinet may choose the point the point that Anna's Team has drafted , rather than one which five ministers have drafted?
Kapil Sibal: I can't say, there is a serious possibility. We will put both points of view and we will have a discussion in the Cabinet.
Karan Thapar: Now, your next meeting is on the 20th, between the 20th and the 30th when you have to submit the bill to the Cabinet, there are just 10 days. Do you believe it's possible that the serious differences and I'll come to the differences in a moment's time, but do you believe it's possible that those serious differences can be resolved in an amicable and mutually acceptable way?
Kapil Sibal: First of all, differences are meant to be resolved in a negotiation.
Karan Thapar: But, they often aren't.
Kapil Sibal: Well, if they are not, then they are not. Because if you have a difference in principle or a different concept, I mean, it depends on what your concept of a Lokpal Bill is, and if that doesn't fit into the concept of the five of us sitting there, well then, there is a serious issue of principle, and hence, there will be differences. But, we will try and resolve as much as possible, depending on what position they take. But, as far as we are concerned, we are open.
Karan Thapar: I can't understand you correctly. You will try and resolve as much as possible, you have an open mind, but, as you've also said, there are serious differences, you don't want to minimize the fact that there are serious differences…
Kapil Sibal: Ofcourse there are very serious differences.
Karan Thapar: And therefore, there's a good possibility that many of those differences will continue upto and after the 30th?
Kapil Sibal: It's possible.
Karan Thapar: Now Anna Hazare has already said that if the Bill that's submitted in to Parliament in the monsoon session is not acceptable to him, he will resume his fast at Jantar Mantar on the 16th of August.
Kapil Sibal: It is not for me to comment on that. What Anna Hazare ji does, you know depending on his perception of whether we have accepted it or not, is something for him to decide. I mean it's not for me to comment on that.
Karan Thapar: Except for the fact that if he goes on a fast you could end up facing a second critical crisis.
Kapil Sibal: I don't know, I don't want to speculate on any of those things. Let's get through the present hurdle of drafting a strong Lokpal Bill for the people of this country.
Karan Thapar: So, this is a hurdle for the future and you want to tackle them one by one?
Kapil Sibal: We will see when the hurdle comes, if at all it comes, we'll see.
Karan Thapar: Lets then come to the Lokpal Bill itself and lets start by asking you about what concept or model of Lokpal you have in mind? Let me point out, that Anna Hazare's team has made it clear that they want an independent, powerful Lokpal; one which can investigate, one which can prosecute, one which can recommend and in some cases enforce punishment, and also redress grievance. What sort of Lokpal does the government have in mind?
Kapil Sibal: First of all there is no dispute between us on the fact that there should be an independent Lokpal outside the government. Not only that, there should be a separate investigating agency under their control, outside the government. Not only that, they should be entitled to prosecute people. Not only that, for public servants, there should need not be any sanction. These are huge areas of agreement, which have not been placed before the public domain. So, we want an independent Lokpal Bill, with a separate investigating agency, with a separate prosecution agency under the control of the Lokpal and no public servant will require any sanction, if the Lokpal decides to prosecute. So these are huge areas of agreement.
Now, the question is, one, the extent of the area that the Lokpal wishes to occupy. Should it be leviathan, in other words, they say that you should cover every central government employee. Now, if the number of central government employees, I maybe right or wrong, is about 4 million about 40 lakhs, so what kind of structure will you need? How many officers, do you need? How will that structure be kept in check? And, this is your parallel structure outside the government, should you have a parallel structure outside the government answerable to nobody? And, if you want to cover state government employees, that's another 8 million, so you are really covering 1 crore 20 lakh employees in the government through a Lokpal. How will that happen? Now, this is a huge area of concern for us. I am just telling you the structure. Our structure is let's limit it, because by and large people are concerned with corruption at high places, because all the alleged scams that have taken place are in respect of corrupt people, you know, at high places. Let's deal with that. There are existing machineries for others, lets strengthen thos machineries.
Karan Thapar: Let me then pick up on the thought that you said that the governments point is lets limit it so that it is viable, they are trying to expand it and make it a leviathan. Firstly, what class of officer, do you think, it will have jurisdiction over? Joint Secretary and above or all government employees, in the governments view?
Kapil Sibal: that's something again, we can negotiate.
Karan Thapar: So, you have an open mind?
Kapil Sibal: Ofcourse we have an open mind. But, it should not be. See, it should not be something that is not manageable. Ultimately, where will you get the investigating agency from Karan? Either the existing, we are not going to get from heaven! The existing investigating agency, part of them will have to be transferred to them until they recruit fresh people. Where will you get the prosecuting agencies? From the existing, right? So all those people will be from the existing structure. Let me just post the question. If the existing structure is corrupt, and everybody in the existing structure is corrupt, which is their premise, then how will they suddenly become pure, merely because they are transferred?
Karan Thapar: All of this suggests that government is inclined to limited to Joint Secretary and above, not Joint Secretary and below.
Kapil Sibal: I didn't say that.
Karan Thapar: But, it suggests that.
Kapil Sibal: it doesn't suggest that. You are just saying that. All I am saying is, how does such a parallel system work?
Karan Thapar: We will leave that for a moment, I will come to that in a moments time. But, fist of all, on this question of what class of officer, give me a clear answer, what is the government's thinking? Joint Secretary and above or all government employees?
Kapil Sibal: I said to you, that's negotiable.
Karan Thapar: Okay, so you have an open mind?
Kapil Sibal: Yes. I've said that already.
Karan Thapar: Now Anna Hazare and his team also want the Lokpal to have control and supervision over the CVC and the Anti Corruption wing of the CBI. Is that part of your thinking?
Kapil Sibal: Well that's another issue that needs to be discussed. Should the CBI be entirely under their control, the CVC entirely or merged with them? That's another big issue.
Karan Thapar: So you have an open mind again here?
Kapil Sibal: Well, ofcourse. We are saying to them that yes you can have a separate investigative agency but you don't necessarily have to destroy the CBI. Therefore, you can have two agencies.
Karan Thapar: But what if they say that it makes better sense for the Anti Corruption Wing of the CBI and the CVC, as a whole, to be under the Lokpal, are you open to that?
Kapil Sibal: We are discussing it. This is one of the issues we need to discuss. We didn't reach that stage of discussion in the last meeting because we were discussing the structure.
Karan Thapar: so, as yet it's not a sticking point, it needs to be discussed?
Kapil Sibal: It has to be discussed.
Karan Thapar: Now infact, Anna Hazare's team goes one step further. Their concept of the Lokpal extends beyond corruption to redressal of grievances. Is the government open to that?
Kapil Sibal: That's a big issue. For example, the proposition that they put forward is the following - if there is a government servant who is being investigated and ofcourse we say fine you investigate him, you file a chargesheet against him through your investigating agency and prosecute him, we are at one with you, any public servant, any government servant; then they say if we find that we should have departmental proceedings against him, we (government) should be having that power to decide on the punishment and the procedure.
Karan Thapar: That's not acceptable to you?
Kapil Sibal: What we are saying is, we asked them as to why they want that, they said because if we give it to the government , the government will not act. So, we said, why don't we think of an alternative, namely, once you prosecute him, once you chargesheet him, you can ask the government to proceed against him departmentally and we can put a clause in the law saying that the government shall proceed against him within a time frame. Right? So that takes care of your concern that the government will not act against him. And we say that once the Lokpal, which is an 11 member committee, chooses to issue a chargesheet against a government servant, which government dare not proceed against him?
So these are all issues that, and we have, as you know, we are adjusting our positions and changing and responding to their concerns.
Karan Thapar: There's no doubt that you're adjusting, you're trying to accommodate, you're discussing. But to sum up, it does seem that on this critical issue of the concept of the Lokpal, you have differences, fairly sizeable differences, over whether redressal of grievances should be part of it, you have an open mind but no agreement…
Kapil Sibal: No, only government servants only.
Karan Thapar: Government servants only…
Kapil Sibal: Yes
Karan Thapar: You have an open mind, but no agreement over the CVC and the Anti Corruption Wing of the CBI, you have an open mind but no agreement over the question of whether Joint Secretary and above or all government. So, on concept alone, which is the critical key core, there are sizeable areas where there are joint decisions and there are areas where there are differences.
Kapil Sibal: Absolutely. There is a huge difference, there is a critical, you know area where there is complete divergence. Let me give you the example of the government servant, lets take it a little forward. Under the present Constitution, the government servant is protected under 311, he's also protected under Article 320 sub article 3(c), what does it say? It says, "when the government moves forward with any departmental enquiry, the punishment has to be decided by the UPSC, whether he should be reduced in rank or whether he should be dismissed or removed." That power will have to be taken…
Karan Thapar: Anna Hazare's thinking would mean that the Constitutional protection would have to be amended
Kapil Sibal:Yes, so, now this is a very difficult position. And the Chairman explained to that look we are a coalition government
Karan Thapar: We can't amend the Constituion
Kapil Sibal: We don't have absolute majority, so we can't give you any assurances here.
Karan Thapar: On that point, can I interrupt to say, you are suggesting that things that require constitutional amendments would be difficult to accept. But you have attempted constitutional amendments over the Women Reservation Bill, it hasn't succeeded but you've done it and you've tried it. Why not also have the same attitude here?
Kapil Sibal:See, now there are two issues. One, if we agree in principle then only we move forward on the constitutional amendment.
Karan Thapar: So that agreement in principle is still missing?
Kapil Sibal: Yes that agreement is still missing.
Karan Thapar: Alright
Kapil Sibal: But even if we agree in principle, this requires constitutional amendment.
Karan Thapar: And therefore I am going to sum up this part by saying that on this key core issue what sort of Lokpal are the two of you looking at. There are key differences and there are also key areas where there is no agreement as yet.
Kapil Sibal: But I must state, I mean as you will see from the record and from what I am telling you, that we are moving forward.
Karan Thapar: absolutely, you've said that once before. Some would say you are moving forward so incrementally that its not satisfactory. But leave that aside, lets take a break. I want to come back and raise with you the jurisdiction of the Lokpal. Should it cover the Prime Minister? What about the Judiciary? What about MPs? Those are other areas where there are key differences between you and Anna Hazare. All of that in a moments time.
Karan Thapar: Welcome back to Devil's Advocate, in a special interview with Human Resource Development Minister Kapil Sibal.
Kapil Sibal, lets come to the jurisdiction of the Lokpal. First of all, in the governments mind, should the Lokpal cover the Prime Minister?
Kapil Sibal: Well, first of all, the issue of the government deciding one or the another is not risen yet. Today, we are talking about 5 individuals on our side, 5 individuals who are representative of Anna's group, discussing whether or not the PM should be covered. The government will only decide when it goes to the Cabinet.
Karan Thapar: Well absolutely. But what is the view of the 5 ministers?
Kapil Sibal: Well I've said to you, there are 4-5 possibilities. There may be even more.
Karan Thapar: I won't let you repeat those possibilities because Mr Chidambaram did so at the press conference on Thursday. Those are the 4 possibilities, but does the government have a preferred answer?
Kapil Sibal: No, no, this what we are going to discuss.
Karan Thapar: No, but you're going to discuss it with them, what about the within the government? Doesn't the government, within itself, have an answer?
Kapil Sibal: Even within the government, we feel that prima facie, the Prime Minister should not be covered. But at the same time we want to make sure that if the Prime Minister demits office, when the Prime Minister demits office, he should not be protected from prosecution.
Karan Thapar: Just to repeat, prima facie your position is the Prime Minister, while in office, should not be covered, but when the Prime Minister demits office there should be no reason why at that point he should be covered.
Kapil Sibal: That's my point exactly. So, you see its not about individuals, its not about Dr Manmohan Singh, its about the institution.
Karan Thapar: Except, can I put this to you, it emerges that earlier points, the Prime Minister himself, Pranab Mukherjee, Mr Chidambaram, Dr Moily, all have supported the case of the Prime Minister in office should be covered.
Kapil Sibal: That's not correct.
Karan Thapar: Well that was pointed out by Anna Hazare's team in a letter to the Prime Minister.
Kapil Sibal: That's factually incorrect. We have explained it.
Karan Thapar: No one countered it.
Kapil Sibal: No, we countered it. We had countered it in the meeting itself. What we said was that was a draft given by the Law Ministry without inter-ministerial circulation. There was no view of the government, even the Human Resource Ministry did not comment on that draft. It was draft prepared as happens in several places. So to say that, that was the view of the government or that Mr Mukherjee the Finance Minster or the Home Minister supported it, is completely incorrect.
Karan Thapar: Just to clarify, what you're saying is that the draft Lokpal Bill circulated by the Law Ministry at the end of 2010 is only the view of the Law Ministry, it is not the view of the government and therefore, you are also saying if that draft bill also suggested that in a limited way the Prime Minister should come under the Lokpal, that's not the governments view?
Kapil Sibal: That certainly not was the governments view. Even at that time there was no governments view.
Karan Thapar: And, at the moment, the governments view, such as it is, is prima facie the Prime Minister should be excluded?
Kapil Sibal: Prime facie, yes. This is subject to discussion because even in that draft there was a condition.
Karan Thapar: When you say subject to discussion
Kapil Sibal: We will talk about it, try and convince the Anna Team.
Karan Thapar: Is there room for them to try and change your mind?
Kapil Sibal: I don't know, why not.
Karan Thapar: So, you could end up with the Prime Minister being covered?
Kapil Sibal: Absolutely, those possibilities are all open. See, we are entitled to put forward our considered view point, but our considered view point may not be acceptable to them, and they may well persuade us. But the point is, the way forward is not to say if you don't agree with me, I will go on fast. That's not the way.
Karan Thapar: The most important thing you've indicated is that, infact, at the end of the day, although prima facie you believe the Prime Minister shouldn't be covered, you can be persuaded and you could end up agreeing to the Prime Minster being covered. That is an open possibility?
Kapil Sibal: All possibilities are. Our worry is basically the following, and Karan I want to put this up front, Anna Hazare is like the Pied Piper, the tune is lilting and people are upset with corruption, just as the government is. We want to deal with corruption. But those who follow him, though they say corruption should be dealt with, don't know what the Lokpal Bill is. And that's really is the problem.
Karan Thapar: I understand that, the country doesn't know the details. But leave that aside, lets come back to the issue of the Prime Minister. In his letter to the Prime Minister dated the 13th of June, Shanti Bhushan, the co-chairman, made a very telling point. He said there is no civilised country that we are aware of where the had of government is immune from corruption investigations. And I put it to you, at the end of the day; do you want India to be an exception?
Kapil Sibal: This is not an issue at all. The head of the government will not be not subjected to investigation, the question is when. For example, if the President of the United States is subject to investigation not by the Lokpal, not by any ombudsman.
Karan Thapar: I am talking about the Prime Minister, lets talk about that.
Kapil Sibal: The President is the head of government.
Karan Thapar: The executive head of the government is the Prime Minister.
Kapil Sibal: Which Prime Minister has been prosecuted while in office in any part of the world? Please give me an example.
Karan Thapar: So, you are disputing this point?
Kapil Sibal: Which Prime Minister has been prosecuted anywhere in the world? Please tell me. So let's not be polemical about these things. We are talking about an institution.
Karan Thapar: Let me put this to you, Anna Hazare's teams has said that recently the government has tried to ratify the UN Convention on Corruption. Clause 2 A of the convention requires that all public officials should be subject to the jurisdiction of any anti corruption mechanism, public official includes the Prime Minister.
Kapil Sibal: Right
Karan Thapar: So you accept that?
Kapil Sibal: Ofcourse, but it says subject to your laws.
Karan Thapar: Absolutely, but why would you devise the law leaving the Prime Minister out?
Kapil Sibal: No, its says subject to your eternal laws. This is all subject to domestic laws. In other words, we can have a procedure, where the Prime Minister is subject to prosecution, under a domestic law, which allows an outside agency to do it. But, that International Convention doesn't say that you can't have a law of this nature.
Karan Thapar: Just so that we leave the audience with a certain measure of clarity, I want to repeat what you said at the beginning, before we began to dispute comments made by the Anna Hazare team. What you said is prima facie, the government is disinclined to bring the Prime Minister on the Lokpal, but you have an open mind, you can be persuaded to the contrary and it is possible that at the end, you might be persuaded to include the Prime Minister, perhaps in a limited way, perhaps in a full way, but that is an open possibility.
Kapil Sibal: All possibilities are open. And even if we have a point of view which is part of the draft, the Cabinet can say no.
Karan Thapar: Absolutely.
Kapil Sibal: Our Prime Minister has publicly stated "I don't mind if I am included". He has publicly stated. But we are not concerned with individuals; we are concerned with the institution. If in a situation, if there is a war, if there is some decisions to be taken, because the nature of Indian democracy is such that at a drop the hat the opposition in this country will want to destabilise the government as we've been seeing.
Karan Thapar: Lets keep out of that. The main point I want to end this first interview on is that you have an open mind, prima facie you think the Prime Minister shouldn't be included but at the end of the day you could be persuaded to the contrary,
Kapil Sibal: We have an open mind and we have been actually addressing all of Anna Hazare's issues with that open mind. Unfortunately, we haven't got reciprocity there.
Karan Thapar: Well, let's not make this contentious. Let's end on that positive note that you have an open mind on the Prime Minister and that is newsworthy, the government could end up agreeing to the Prime Minister being a part of the Lokpal.
Kapil Sibal: You are putting words in my mouth, I said we have an open mind on discussing all issues. Prima facie we think that the institution should be excluded.
Karan Thapar: But you can be persuaded?
Kapil Sibal: Anybody can be persuaded if there is a good argument.
Karan Thapar: So let's end interview 1 on that point. Let's leave it there. I want an interview 2 which would go out on Sunday to talk to you about whether the Judiciary should be included? Whether MPs should be included? And I want to bring up a different point. Or maybe I am saying a somewhat devious point. Join me on Sunday to find out exactly what it is. But for today, goodbye, stay well.
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