Mukul Rohatgi backs 'criminal netas' bill, says it's an attempt to clean up politics

India Today

In an exclusive interview with India Today TV’s Managing Editor Marya Shakil, senior advocate and former Attorney General of India Mukul Rohatgi said the proposed Constitution Amendment Bill is an attempt to clean up the politics and the politicians of this country.

Transcript

00:00Let me go straight to former Attorney General and Senior Advocate of the Supreme Court,

00:04Mukul Rohadgi, who joins us live.

00:06Mr. Rohadgi, of course, there's a lot of political debate which is going on with regards to this

00:10bill, which is now before the Joint Parliamentary Committee.

00:14As a Senior Advocate, what are your thoughts on this legislation?

00:18Do you think it's draconian, as the opposition is saying?

00:20Or are you of the opinion that the intent with which this bill is being brought in

00:26is certainly in the right direction because it is about the clean-up of the political class in general?

00:34See, Maria, my first impression is that the legislation is an attempt to clean up

00:41the politics and the politicians of this country.

00:47There are a large number of cases where politicians are in jail

00:55and we saw in the case of Delhi that files were being signed in a jail or from a jail cell, etc.

01:03Now it is obvious that it is inconceivable that a government can be run from jail,

01:11that too, by an important minister or a chief minister.

01:13So, the law is welcomed and the law only says that if a person is in custody for 30 days or more,

01:28he will lose his ministership.

01:30Well, once he gets bail, he may have a right to come back as a minister

01:35should the chief minister want him back.

01:39So, it's really a temporary kind of a situation.

01:42It's not a permanent situation like saying that if you are in custody for more than 30 days,

01:47you are damned forever and you can never be an MLA or you can never be a minister.

01:52That would be draconian.

01:54But this is only a temporary kind of a situation of 30 days or 40 days.

02:00There is too much hullabaloo about it.

02:03And I don't think that, I mean, it's like making a mountain out of a mollet.

02:08Okay, Mr. Rahadvi, the opposition says that there have been multiple instances of misuse of agencies,

02:15the Enforcement Directorate, the CBI.

02:16And if you look at this data, which essentially says that there have been 13 instances of sitting ministers

02:22being detained by either the ED or the CBI.

02:26And most of them have ended up spending 30 days in jail.

02:32So, this essentially looks at some kind of legislation which is being brought in to politically target opposition

02:41because it gives a lot of power to the executive.

02:44And, you know, perhaps create some kind of anarchy in states to topple governments

02:50which have been democratically elected by the people.

02:54See, Maria, possibility of misuse does not make the law invalid.

03:04That is settled legal position.

03:06Now, if it is found that in some cases the ruling government is trying to put opposition ministers in jail, etc.

03:19Well, then you have courts, don't you?

03:21You can go to court and the court grants you bail.

03:25All opposition ministers or MPs or MLAs have got bail.

03:32And if I may dare say, once this 30-day rule is there, it would be legitimate to tell the court concerned,

03:41which is hearing a bail petition, that ask the court to decide it at the earliest

03:46so that the deadline of 30 days is not crossed,

03:49I mean, it would in fact help a detainee in trying to get an early hearing

03:55as opposed to, you know, the bail taking a few months or six months or eight months.

04:00This would be a weapon in his hand to ask the court to look at it at the earliest

04:07so that he does not, you know, suffer the guillotine of 30 days.

04:11I think that's the silver lining that one must look at.

04:16Of course, the intent here is that the governments should not function out of jail.

04:20The administrative functioning should not happen out of jail.

04:24But, sir, isn't this legislation a bit too harsh?

04:27Because the premise has always been that you are innocent until proven guilty.

04:32And detention and conviction are two very different things.

04:37I agree with you, Maria, but the problem in our country is

04:41that a conviction takes 10 years.

04:45And the disqualification to stand in an election is also based on a conviction.

04:51So the other end of the spectrum is that it will take 10 or 20 years for a conviction

04:56and then you can otherwise keep on, you know, being in active politics.

05:02That is also the other extreme.

05:04So you're going to find out some bio-media.

05:06I mean, I'm sure, you know, one could argue that 30 days would have become 60 days or 90 days.

05:11Maybe 90 days would have been more appropriate.

05:14But then you've got to draw this line somewhere.

05:18And 30 days by itself will not become illegal if the court feels that 60 or 90 is better.

05:23You know, you have to draw the line somewhere.

05:26Okay.

05:26And I mean, these are laws which are an attempt to clean up the system.

05:34Sometimes they may feel or look a little harsh.

05:37But of course, time will tell as in how they are interpreted and how they are put into use.

05:44And I mean, it can be changed later also.

05:47If it is found that it is acting absolutely harshly, parliament can change it.

05:52And also, please remember one thing.

05:55The law is there to stay unless it is changed.

05:59The current government is there till 2029.

06:03Who knows who will come in 2029?

06:06And if the opposition comes back and they, you know, try to get their back at the current ruling party,

06:14then the members of the ruling party will then face the front, no?

06:17It is not as if that the current government kind of will remain forever and ever.

06:23Governments have a tendency of change.

06:26In 5, 10, 15 years, governments change.

06:29So, it is not as if it is only a one-way traffic.

06:31The same thing will come to bite them back.

06:34So, that is how it is.

06:35Of course, you know, the government, as it presented the bill,

06:41it is saying that this is a significant reform aimed at curbing criminalization of politics.

06:46And if we were to look at the statement of reason, an object,

06:51a minister facing serious criminal charges if arrested and detained

06:55could undermine constitutional morality, principles of good governance,

06:59and erode the people's trust vested in him.

07:02But will this truly help in tackling the criminalization of politics, Mr. Rohadgi,

07:09given the high number of MPs and MLAs we have in the parliament

07:16and also in assemblies across the country who have criminal cases against them?

07:20See, Maria, according to me, having a law saying that only on conviction,

07:29an MP or an MLA is going to be disqualified,

07:34I think that is also too relaxed or lacks a position.

07:41Keeping in view, as I told you,

07:42that a normal trial may take five or ten years

07:45and then even a judgment of conviction can be,

07:50in rare circumstances, suspended by the higher court.

07:53And then you can jolly well carry on for 10, 20, or 25 years.

07:57According to me, keeping in view the long delays in our system

08:01and reaching the end of the road of conviction,

08:04taking so long,

08:05maybe one needs to have a look at the election law

08:09and find an intermediate point

08:13at which the disqualification will occur.

08:18It could well be framing of a charge,

08:22post a charge sheet by the competent court

08:25in an offense punishable with seven years or more,

08:29something like that,

08:30so that the taint of the disqualification

08:36or the fear of the law...

08:38I mean, if you are going to look only at a conviction

08:41after 10 years or 15 years,

08:44then there is no fear of the law.

08:47You know, everybody in this country

08:48violates traffic signals with impunity,

08:51but the same person who travels and goes abroad

08:54and drives a car in the U.S.,

08:57he will dare not violate a traffic signal

09:00because of harsh and swift penalties.

09:03Therefore, you need to have the fear of the law.

09:07You need to have a re-look at the whole system.

09:09Not only this law which is coming.

09:13These are all knee-jerk reactions.

09:15Look at revamping the entire criminal justice system

09:18where it can't take 10 years for a trial.

09:21You know, I think the debate should be more

09:24on the larger issues

09:25than only looking at this aspect of the law.

09:30Let me sum up this conversation with you,

09:33Mr. Rohadgi, with my last question.

09:36The opposition is saying

09:37that this bill distorts parliamentary democracy.

09:41You are of the opinion

09:41that there is a need for a larger debate.

09:44What are the key aspects, do you think,

09:46which should be debated?

09:47To me, the larger debate, as I said,

09:52is revamping the criminal justice system.

09:56The government has taken one step

09:58in that direction

10:00by revamping our criminal laws,

10:03procedural and substantive,

10:05by trying to bring in Indian notions

10:10of justice and criminality and crimes.

10:14Because we were following 150-year-old

10:16British notions of criminality.

10:18That is a welcome step.

10:20But that step has not really,

10:23in my humble opinion,

10:25addressed the point

10:26that the trials take an interminable

10:29long period of time.

10:32Our courts are clogged.

10:33I see it every day.

10:37And the real problem is

10:38that the prosecuting agency

10:40and the investigative agency

10:42is one and the same,

10:44namely the police.

10:46Imagine a police sub-inspector

10:48who is investigating a crime,

10:52who is also doing police duties,

10:55who is also writing a police diary,

10:59and he is also looking after

11:01the prosecution in the court

11:04by going to the prosecution council

11:06or the lawyer,

11:08getting the witnesses,

11:09trying to see that they are examined.

11:11You can't have three or four roles into one.

11:14In many countries,

11:15the roles are separate.

11:16So you have to start from that.

11:18You must have a separate prosecution agency

11:20specialized,

11:22a separate investigative agency specialized,

11:24and a normal police

11:26for policing affairs

11:27in the city or on the roads.

11:30You start with that.

11:31And then try and tell the court

11:34that we are swiftly investigating.

11:37I can tell you,

11:38Maria,

11:38that I am doing cases

11:40where investigation is not complete

11:42for 10 years,

11:4412 years.

11:45Okay.

11:46If you can't complete investigation

11:48in 10,

11:4912 years,

11:50you are going to start

11:52framing of a charge

11:54after 10 years.

11:55God knows how many witnesses

11:57are available,

11:57how many are alive,

11:59how many will remember

12:00what happened.

12:02So therefore,

12:03you know,

12:03it's a complete pitfall.

12:06You have to start

12:07from the beginning,

12:08strengthen up,

12:09shore up the system,

12:10and then only

12:11there will be some fear

12:12of the law.

12:13And then all these laws

12:14will fall into place.

12:16That's what you have to do.

12:18All right,

12:19Mr. Mukul Rohadgi,

12:20always a pleasure

12:21speaking to you, sir.

12:22Thank you for speaking

12:23to India today.

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