Full transcript of Arun Jaitley's interview to NDTV on Lokpal Bill

New Delhi: Bharatiya Janata Party (BJP) leader Arun Jaitley spoke to NDTV in an exclusive interview ahead of Wednesday's all-party meeting at Prime Minister Manmohan Singh's residence on the Lokpal Bill. The meeting ended with the parties failing to reach consensus on the inclusion of the Central Bureau of Investigation (CBI) under the ambit of the Lokpal Bill.

Before the meeting, Mr Jaitley had told NDTV that he hoped that the leaders from various political reach a consensus on the contentious Lokpal Bill.

Here's the full transcript of Mr Jaitley's interview with NDTV's Barkha Dutt.

NDTV: In the evening today will be a crucial all-party meeting on the Lokpal Bill; the Government finally reaching out to the Opposition. Many people are wondering why this could not be done before. But will this day end with a consensus or are divisions still going to remain? Joining us now, Leader of the Opposition in the Rajya Sabha, somebody who shared that stage with Anna Hazare, who in a sense, we believe, has been a key architect of the BJP's dissent note, as well to that Standing Committee Panel on the Lokpal Bill. Mr (Arun) Jaitley, is this a day that you believe we are nearing, or within reach, of a political consensus?

Arun Jaitley: I don't know. But hopefully we should. Why I say we should, that there are certain issues on which parties on policy, ideology, have distinct perspectives. Now, I can't give up my ideology in order to compromise with the UPA. Neither can they. But here ideologies are not involved. Here what's involved is governance and good, sound principles of governance. The sound principle of governance is that everybody accepts that we have a lot of corruption within the system; political, bureaucratic, and so on. Citizens are harassed. You need answers. Now when the Lokpal movement started and this debate started, everybody felt that are you creating a fifth estate? Are you creating a monstrosity, which is a very powerful institution, and who will check it? Now, as the debate has progressed, there are certain ideas, which across the political system, people have started accepting. The Government accepted some in the Bill, the Standing Committee added a few more to it, left a lot of vitals to be undecided. And I think that it should neither be a game of one-upmanship nor a game of political confrontations, but we should all ask ourselves one question and try and answer it, which is the best possible way to have a strong Lokpal institution. A Lokpal institution which is strong, which is independent, and which is not capable of being misused.

NDTV: Before we get to the different aspects that are the source of contention, your decision to share that stage with Anna Hazare. The Congress has described it in many different ways. It said the BJP has become the B team of Team Anna. Others, even on stage, for example D Raja, were very upset when he started to speak in English and the crowds egged him on to speak in Hindi. He got quite upset. AB Bardhan made the point saying leave the details to the wisdom of Parliament. All of you did that. Was this a difficult decision for you or did you intuitively know that you were comfortable sharing that stage?

Arun Jaitley: Well, I must tell you that there are two kinds of very active groups who are involved in the process of this Lokpal movement. One is the Team Anna and the other is the Aruna Roy group. Now, over the years, I think, some of us have also matured. And I have decided not to have an indifferent or a hostile posture to these groups, irrespective of what their ideological moorings are.

NDTV: Because many of their ideological moorings are totally at variance with the BJP's ideological moorings.

Arun Jaitley: They are, they are, they are. But both the groups have been coming and discussing with us. They also have separate, distinct ideas on this issue. And I do believe that in some of these issues it is the principles that you are looking for and which is the best possible principle. So they have easy access. They come and visit us with an appointment. I've been listening to them. I've had a series of interactions with both the groups and frankly my own views have evolved as a result of the political interaction and the interaction with these groups. So I don't have an adversarial attitude, at least in this matter, with any one of these groups. Even before we went to the stage, and my Party President requested me to represent the party there, since the party was invited to send a representative, I knew the areas of agreement and the areas where we are not completely allied with each other. And therefore we've been sharing it.  And they also knew it. It is a transparent relationship. But I do know that they are also convinced that we are also pursuing a course towards a good, strong Lokpal. Now, once we did that, we go and explain the points of view. Now, at that stage we are invited to give what our party's broad perspectives are. As far as the nitty-gritties of the language are concerned, the Bill has certain issues which are very vital, which I call the atma of the Lokpal Bill. Those are issues you may not be able to compromise on. But there are incidental issues which are always on the drawing board, and the languages can vary, the perceptions can vary.

NDTV: Did all of you decide together that you would not get into the specifics in a public manner or was that a spontaneous response?

Arun Jaitley: I think it was a mix of both. That was a spontaneous response and there was a discussion on the stage going on that you can't have a yes or no response before a crowd, and therefore we've given our perception. Our perceptions are not radically different from yours. There may be areas of differences. We've understood your viewpoint and the rest must be left to Parliament, because neither you nor us ever dispute that the ultimate law has to be framed in Parliament. And therefore, since you've gone a lot forward, that a very large section of Parliament is supporting you on this legislation, on some issues there is unanimity. And therefore that's the forward movement of this whole political agitation which has been going on. And therefore we told them we've heard your views, you've heard our views, there is no fundamental difference, but there may be areas of difference, and we'll sort them out in Parliament now.

NDTV: What do you say to the Congress accusation that the Anna Hazare campaign is now Anna Hazare plus the Opposition versus the Congress?

Arun Jaitley: That is not fair.

NDTV: In other words, it's an anti-Congress movement..

Arun Jaitley: I must tell you...

NDTV: Rather than an anti-corruption movement.

Arun Jaitley: I must tell you that I've had this unusual experience of watching very closely the three anti-corruption movements that have taken place in India. I was an active participant in JP's movement..

NDTV: JP. Yes.

Arun Jaitley: JP relied on students and political parties. And therefore political parties were officially there. On the eve of the Emergency we had the political parties participating in a rally at the Ramlila Maidan, and two days before that he had a two day conference of political parties. I, as a student representative, had even attended that conference. Then when VP Singh, in post-1987, started this anti-corruption movement as a result of Bofors, and there was slowly a tactical tie-up between him and the BJP at that stage building up, I was quite active and we were active participants in that. So there was a political content in that. The Anna movement kept political parties as complete strangers.

NDTV: Initially.

Arun Jaitley: Initially, yes. The crowds are theirs, the mobilization is theirs, the programmes are theirs. The first approach they made to us is round two. Not Jantar Mantar but Ramlila Maidan, where they met us at Mr Advani's house to discuss the contents of the Lokpal Bill. And that's where some areas of convergence was reached. And this is the first time they have invited us officially. Therefore, it's their movement. It was started by them. It is run by them. The crowds, the management, the ideas are all theirs.

NDTV: Are you upset though that they keep saying "We have no support from the RSS", prompting your Party President to say "We will not go where we are not welcome"?

Arun Jaitley: You see, let's be fair to them. They said, in reply to the Congress repeatedly saying that "You are controlled by BJP and RSS", which is completely untrue. They have officially nothing to do either with the BJP or the RSS. They are an independent movement. They've been, it's an NGO, a citizen's movement in that sense. Individuals in their individual capacity can go. So if, let's say, five BJP workers and three CPM workers went to their rally it doesn't become a BJP-CPM function. In individual capacities they've said people have come. So put on the back foot against that allegation they say "No, no. We have nothing to do with them. It's our movement." But I've heard a lot of statements, particularly from Kiran Bedi, Arvind Kejriwal, which say "Ours is nothing to do with a political party. Individuals can come in their individual capacity if they so want."

NDTV: Let's go through some of the areas of contention. The Prime Minister, the inclusion of the Prime Minister now seems a virtual certainty. There are concerns now of what safeguards are needed. There has been a suggestion by some that any complaint against the Prime Minister should be referred to a full bench of Parliament, or rather Supreme Court, so that no frivolous complaints are made. Is that a way forward?

Arun Jaitley: Let me tell you. Inclusion of, universal inclusion, including the Prime Minister, is a non-negotiable essential..

NDTV: And it seems like the Government will have to surrender on that  

Arun Jaitley: Now, the safeguards can be a matter of negotiation.

NDTV: What do you believe the safeguards should be?

Arun Jaitley: Well, I really am not, we have suggested, you see, we had one experience in 2001 when the NDA Government brought the Lokpal Bill.

NDTV: Yes.

Arun Jaitley: It went to the Standing Committee. Somebody of the eminence of Mr Pranab Mukherjee headed the Standing Committee, and he said that the safeguard is going to be that public order and national security be kept out.

NDTV: Yes.

Arun Jaitley: So that's why we've been sticking to that position. Now, if the Government has a better formulation ..

NDTV: What about this proposal?

Arun Jaitley: Well, Supreme Court or a full bench of the Lokpal. I think that needs to be discussed, and maybe it gets discussed at the all-party meeting. Because ultimately the Supreme Court will be the appellate authority in the case of a prosecution or in the case of any action which is taken. Now should the appellate authority, the eventual appellate authority, be the sanctioning authority in the first instance? May raise certain conflict. So that requires to be discussed rather than decided on an impulse. Therefore, whether it is the Supreme Court or it is the full bench of the Lokpal, it is an area which can always be discussed, but the inclusion of the Prime Minster is an essential.

NDTV: And while in office, while in office?

Arun Jaitley: You see, while in office is extremely important. It is important for two reasons. The political answer is you can't say "The Prime Minster appears to be questionable at a given point of time but we must suffer him for the full term and proceed against him only after he ceases to be.3" I don't think that is in the interest of the country. There is a constitutional and a legal answer to this. Which is, the substantive laws under which corruption is punished is the Penal Code and the Prevention of Corruption Act. The Prime Minister has no immunity under those acts. Under CrPC he has no immunity. But by creating a special investigative mechanism through the Lokpal route, the procedural law will give you immunity from the substantive law. This is unheard of. So I don't think constitutionally also it is sustainable.

NDTV: Now this is the area that I think will see some resolution, the Citizen's Charter. The Grievance Redressal Bill, approved now formally by the Cabinet, but Anna Hazare says that the sense of the House resolution had promised that the Lokpal would have jurisdiction. Now you know that one of the formulas that has emerged, in fact, from the BJP, is that perhaps the Lokpal could have a right of appeal over the citizens.

Arun Jaitley: I'll tell you, in fact I'll answer your next question along with it, because the answer is common, lower bureaucracy and Citizen's Charter. Now the answer to both these questions is that when you came out with a sense of the House resolution, or a statement by Mr Pranab Mukherjee, which can be said that this is the sense of the House, and both Houses of Parliament approved it by thumping the desk, and that resolution is sent by the Government to Shri Anna Hazare and Anna Hazare gives up the fast. It's not a commitment made by Parliament to Anna Hazare, it's made to the whole country. We have to be honest to ourselves. After saying that lower bureaucracy and group C and D will come under the Lokpal, can we now do violence to ourselves by saying "Under the Lokpal actually means outside the Lokpal but a good mechanism"? Now I don't think that's logical. But fortunately the sense of the House resolution gives you a certain amount of flexibility

NDTV: Because it said "appropriate mechanism".

Arun Jaitley: Because it is said "appropriate mechanism". Therefore whichever formulation you go, it must be a strong formulation, it must be under the Lokpal. The appropriate mechanism, whether it is my dissent notes mechanism or it is some other mechanism, can always be a matter of discussion.

NDTV: And do you believe that a workable one is to give the Lokpal the eventual jurisdiction?

Arun Jaitley: That's one formulation we have suggested that let's say for Citizen's Charter. You create a Citizen's Charter in the Lokpal bill, create a mechanism for working it out, and provide some appeal to the Lokpal. So it remains under the Lokpal and this become a supervising authority.

NDTV: And the lower bureaucracy, which is said to be included. How do you address concerns that you are creating a monolithic body that cannot look after this scale of offices?

Arun Jaitley: Well, according to me, there are two answers, because the "appropriate mechanisms" gives you flexibility. You can do it directly under the Lokpal and increase the size of the staff available with the Lokpal. That is the first option. There is an alternate option that some people are suggesting, that it could be a delegatable function of the Lokpal, with an appeal provided to the Lokpal. As I said, you can have different kinds of appropriate mechanisms, but those mechanisms must eventually come under the Lokpal, because that's a solemn assurance you have given. Today to say that, "My assurance is unworkable", I don't think will do good to the credibility and image of the Indian Parliament.

NDTV: Let's come to the most contentious area, which may actually hold up a peace resolution on this, the CBI. Now we know, and have been reporting, that the CBI and Team Anna have been in back channel talks. We know that the CBI has expressed serious reservations about some of the provisions it's read in the Standing Committee. I heard you on stage, and my sense was, what you were suggesting was administrative jurisdiction under the Lokpal but investigative autonomy with CBI?

Arun Jaitley: See, why I insist on investigative autonomy, and there I disagree with some of the suggestions that the Standing Committee has made. You see, one of the fundamental principles of investigation that we have followed in this country, and that's based on the British model where Lord Denning had said, and that's quoted in the Vineet Narain judgement related to CBI ..

NDTV: Related to the appointment of the CBI director, yes.

Arun Jaitley: That "No Minister of the Crown or a Commissioner of Police can tell the constable whom to prosecute, whom not to prosecute or whom to investigate, whom not to investigate". The principle being, investigation leads to a finding where prima facie a person is culpable or not culpable. And therefore, he has to independently apply his mind, he owes a duty only to the law. Therefore, any kind of formulation in which the investigation is vitiated, either by interference or by influence, governmental or otherwise, is not proper. The fundamental principle is that you must disassociate CBI from the Government. Otherwise, what will happen? You'll create a great Lokpal institution, Lokpal will only take a prima facie view or a preliminary inquiry, refer the matter to CBI and CBI will determine whether somebody is culpable or not, and if CBI is controlled by the Government, the Lokpal will become a toy that all supporters of Lokpal can play with. We've got a Lokpal but the investigative agency which is the investigating arm of the Lokpal is under Government control.

NDTV: It's quite clear that the CBI ...

Arun Jaitley: Therefore, the CBI has to get out of Government. The appointment mechanism of CBI Director, its Director Prosecution must be independent of the Government. And you must have an independent mechanism place right on top. The third, the investigations of the CBI in consonance with the principle which I've just stated, should not be interfered with. The CrPC does not allow any interference.

NDTV: By the Government, I understand. But should the Lokpal have jurisdiction over the CBI's investigations?

Arun Jaitley: I'm coming to that. That the investigation is an independent function. The administrative superintendence, as the grey area which you said that, I thought the grey area is the administrative superintendence as I call it, and administrative control as Team Anna calls it. I don't see a world of difference between the two words. The two are in fact negotiable, in my view, in the circumstances, they are interchangeable. Therefore, administrative decisions with regard to CBI, not interference with investigation, can move and should move from either the Government or the CVC to the Lokpal. So, the entire anti-corruption mechanism is, investigative agency becomes independent of the Government, the appointments are independent of the Government, their budgets as a part of the General Budgets. There can be a separate head sanctioned by the Parliament and their administrative superintendence/ control, I keep the two words as variable, is now with the anti-corruption mechanism which is the Lokpal.

NDTV: But Team Anna wants the jurisdiction to be extended to the administrative functions as well.

Arun Jaitley: I doubt that. That's not my understanding. That's not my understanding at all.

NDTV: Let me ask you, the proposal. One of the formulas is to separate the prosecution from the investigation.

Arun Jaitley: I think it's a good proposal.

NDTV: You think it could work?

Arun Jaitley: Why I think it's a good proposal. Because we've seen a lot of cases where investigations can cook up evidence, can create false evidence, can either exonerate people or inculpate people unnecessarily. The Prosecutor is not like a Judge, but he falls a little short of being something in that direction. He must now apply his mind independently and not merely be a spokesman for the investigation. Well, I can't put up a court. He owes a duty to the Court. That is the kind of institution that we have to create. That the Prosecutor has the independence to say, "Well, this evidence has come. I don't think this evidence inspires my confidence." Therefore, the Director of Prosecution must not merely be a Joint Secretary of the Law Minister sent by the Government of India on deputation. He should be selected by an independent process. He should appoint independent prosecutors. It's only then that we will be able to create a mechanism in which there is some kind of independence and purity maintained.

NDTV: The CBI has objected to two of the proposals. One is that the preliminary inquiry, is in a sense, done by the Lokpal. And the second is that the Lokpal has final say on the closure report.

Arun Jaitley: Well, I think, on the second, that's not a Team Anna recommendation. That is an Abhishek Singhvi recommendation.

NDTV: Abhishek Singhvi recommendation. Yes.

Arun Jaitley: I think that there is some merit in what the CBI says. For the reason, if you go by the principle that it is at discretion of the investigating officer. That others can't tell you whom to prosecute, whom not to prosecute. As far as interference is concerned, I have already said it really should not be done. As far as preliminary inquiries are concerned, this is an area which can be discussed between the experts, from the Government, civil society groups, Opposition in Parliament, as to what kind of mechanism debate. If we are going to create some kind of mechanism, within the Lokpal, which can do a preliminary inquiry, let them do it. If we are not going to create that, let that be done by CBI, but the Lokpal, before referring the matter to CBI, will always have to take a prima facie view, whether it is a frivolous case or it is a case which deserves a preliminary inquiry. You have three stages. The Lokpal takes an independent view, prima facie view, conducts an independent inquiry itself or through CBI, that can be worked out, and then gives the investigation to the CBI, which becomes an investigative arm but in its investigative function, functions autonomously. As far as administrative superintendence or control is concerned, transfers, postings, you don't put, people in the CBI. All that is then decided through a mechanism, which is at an arm's length distance from the Government.

NDTV: Let me end by asking you, there is an all-party now, but has the Government reached out to the Opposition through back channels, informally, to try and create consensus?

Arun Jaitley: Well, let me tell you, it would not be fair of me to disclose the contents of our discussions. Parliament is in session. We meet and speak to people in Government almost by the day. These are informal discussions.

NDTV: But you've had a complaint earlier of them not reaching out. Have they been trying more this time?

Arun Jaitley: Well, it's minimum, but I can't say that in this case we haven't spoken, we have.

NDTV: And do you see the contours of an agreement like happened with the sense of the House was reached?

Arun Jaitley: I think, I think..

NDTV: Where you were actively involved.

Arun Jaitley: Well, I think it's moving towards, in a direction where, from the news reports that I get, I don't know the view the Government has taken where some of the issues seem capable of resolution. But I think the two sticking points will be the independence of the investigative agency and its purity in the matters of investigations, and an independent methodology of selection of the Lokpal.

NDTV: And do you believe we will see the Lokpal in this Winter Session?

Arun Jaitley: I hope we do.

NDTV: And if the Session needs to be extended?

Arun Jaitley: Well, I think these are flexible things. These are not things on which the Opposition or Government should act on prestige.