The accusations against Rajasthan chief minister Vasundhara Raje, her son Dushyant Singh and external affairs minister Sushma Swaraj for allegedly aiding Lalit Modi by using public machinery highlights a key area of concern in the conduct of our legislators: conflict of interest. Also recall the controversy of parliamentarians Shyama Charan Gupta and Dilip Gandhi questioning the link between tobacco and cancer, though they have personal stakes in the tobacco industry. In 2010, Shashi Tharoor and Ashok Chavan had to quit after controversies arising out of conflict of interest. This begs the fundamental question: Does the conduct of our legislators reflect the sanctity of the position they hold?

A formal expression of the expected conduct from elected representatives can be found in the code of conduct for members of the Rajya Sabha and in the rules of procedure and conduct of business in the Lok Sabha. The committee on ethics (13th Lok Sabha) in its first report recommended that members abide by certain ethical principles which include, among many other things, a need to “maintain high standards of morality, dignity, decency and values in public life”. While a long debate can be conducted on the definition of morality, dignity, decency, and values, it can be unambiguously stated that the conduct of an elected representative that prioritises private benefit over public welfare is undignified, immoral and indecent. It not only deprives the public of the funds/resources that are appropriated for private concerns, but also seriously damages their faith in the institution that the legislator represents.

Situations of ‘conflict of interest’ arise not just in the mere existence of a conflict between the position a legislator holds as a public and as a private individual. It arises when the ideals of fair policymaking are compromised for the narrow benefit of a powerful few by abusing a public office and appropriating public resources for private interests. Managing situations of ‘conflict of interest’ reduces instances of corruption and nepotism in public life and can be achieved through mechanisms of disclosure, regulation and recusal.

Self-regulation in situations of conflict of interest is insufficient in preventing the abuse of a public office for private gains by a legislator. To expect that a legislator will abide by the guidelines of ethics without a system of disclosure and regulation is inconsistent with several instances of abuse over the years.

Disclosure

A system of disclosure of pecuniary interests is in place in the Rajya Sabha through the maintenance of a ‘register of interest’ which lists down the pecuniary/business interests of its members. The Association for Democratic Reforms (ADR) analysed the ‘interests’ of 211 members of the Rajya Sabha as on April 20, 2015. It was found that 124 of them had declared that they had no pecuniary interests whatsoever under any of the heads. There is currently no mechanism for scrutiny of these statements and no penalty in case of wrong disclosure. The pecuniary details provided in the register should be provided to the income tax authorities or other appropriate body for cross-checking with the income tax returns filed by MPs.

In its second report, the Committee on Ethics of the Lok Sabha (15th Lok Sabha) gave detailed recommendations on instituting a Register of Members’ Interest in the lower house and managing ‘conflict of interest’. These recommendations, however, have not been implemented as yet. A positive step towards improving disclosure norms and increasing transparency would be for the 16th Lok Sabha to implement these recommendations and maintain a Register of Interests.

Recusal and regulation

There is much to learn from the mechanisms of disclosure and recusal in place in several countries regarding conflict of interest. In the fourth paper of Legislative Research Series, the National Democratic Institute for International Affairs studied the laws for conflict of interest in countries over the world. According to the report, the ethics rules for the British House of Commons for example state that members are prohibited from taking any payment for speaking in the house. Nor are they allowed, for payment, to vote, ask a parliamentary question, table a motion, introduce a bill or move an amendment to a motion or bill or urge colleagues or ministers to do so.

In Australia, Canada and South Africa, legislators are prohibited from voting on any matter that may be construed as a conflict of interest. A similar prohibition on conflicts of interest was adopted by the Swedish parliament wherein a member “may not participate in the deliberations of the Chamber or be present at a meeting of a committee on a matter which concerns him [or her] personally or a close relative”.

In India, the principles laid down in the code of conduct for members of the Rajya Sabha state that members should never expect or accept any fee, remuneration or benefit for a vote given or not given by them on the floor of the house, for introducing a bill, for moving a resolution, raising a question or abstaining from asking a question or participating in the deliberations of the house or a parliamentary committee. The rules of procedure and conduct of business in the Lok Sabha prescribe that if the vote of a member in a division in the house is challenged on grounds of personal, pecuniary or direct interest in the matter to be decided, the speaker may examine the issue and decide whether the vote of the member should be disallowed or not and his decision shall be final.

These guidelines in India, however, lack a system of penalties and fines. On enforcement of norms to prevent instances of conflict of interest some countries have instituted regulatory commissions. Taiwan’s Control Yuan is a quasi-judicial government branch whose members are appointed by the Taiwanese president with the consent of the upper house. The Control Yuan decides if members have violated any disclosure provisions and, if so, may impose fines. If fines are not paid, the Control Yuan refers the matter to the courts. This system of penalties and regulation can be instated in India as well.

Independent scrutiny

Instances of conflict of interest in the Lok Sabha are referred, if at all, to the speaker. Some countries have instituted independent authorities to regulate disclosure, penalties and recusal in cases of conflict of interest. In Canada, the responsibility of administering the conflict of interest Act and the conflict of interest code for members of the house of commons lies with the conflict of interest and ethics commissioner who is an independent officer of Canada’s parliament. This helps bring out a non-partisan and neutral approach in settling disputes regarding conflict of interest issues.

The office in Canada:

• Provides confidential advice to public office holders and elected MPs about how to comply with the Act and the code,
• Reviews their confidential reports, on matters such as assets, liabilities and activities,
• Makes information available,
• Investigates possible contraventions,
• Reports to parliament.

Institutional mechanisms that are neutral and unbiased can be instated to enforce and regulate norms regarding conflict of interest. Taking a cue from countries like Canada in the establishment of neutral authorities such as this would go a long way in managing situations of conflict of interest.

In India, these situations can be resolved through sustained efforts at strengthening norms of disclosure of pecuniary interests coupled with regulatory mechanisms to enforce such norms. Most importantly, however, there is an imperative need to go back to the crucial guidelines as prescribed in the first report of the committee on ethics (13th Lok Sabha). That an MP needs to maintain the highest standards of moral integrity and dignity is obvious. The incidents in the recent past, however, reinforce the belief that these standards of ethical conduct for MPs cannot be left to self-regulation. It is high time that institutional mechanisms are instated to ensure that incidents of ‘conflict of interest’ are managed more efficiently. 

Samaddar is a researcher with the Association for Democratic Reforms (ADR).