Lokpal and Parliamentary Conflicts of Interest

Lokpal and the Inherent Parliamentary Conflicts of Interest


While the ongoing Lokpal debate has had its twists and turns in recent weeks and months and provided, perhaps serendipitously, a great platform to unite the country as never before in recent decades, one aspect of this complex issue seems to have been overlooked. This has to do with the concept of conflicts of interest in public office. The apparently irreconcilable differences in approach in legislating for the institution of Lokpal between societal advocacies and the government of the day (and indeed virtually the entire population of parliamentarians as evidenced by the ambivalent views expressed by different shades of the political dispensation) can indeed be traced to this phenomenon.
Much has been said about the primacy of parliament and how only the parliament has the exclusive power to legislate and so on. There can be no disagreement on this issue. But while focusing on this obvious position (a no-brainer as many would think), this diversionary tactic has successfully stayed away from the fact that nothing stops the parliament from discussing various alternatives before zeroing in on a final version it can legislate. Listening to divergent views especially on such matters of serious import does not amount to any erosion of parliament’s suzerainty over legislative authority. Compare for example the approach adopted for corporate legislation: the government issued a Concept Paper, invited public comment, appointed an expert committee, drafted a bill which then went through a house committee for further scrutiny and is now awaiting plenary discussion and legislation by parliament. Did anyone feel parliamentary supremacy had been violated because of this listening exercise?
The problem with an issue like the Lokpal is that it seeks to address allegations of corruption at all levels including parliamentarians and that clearly is too close for the comfort of those who are charged with the legislating responsibility. This is the conflict of interest: is it reasonable to expect, in all fairness and given the normal rational human behavior, a group of people to do justice (and be seen as doing justice) to a legislation that could incriminate some or most of them at a future date? Some of the demands of civil society in their version of the Lokpal are easier made (since they are not the affected party) than conceded by the parliament (since they are more than likely to be adversely affected). Provisions in the government draft such as excluding the prime minister while in office, a time limit of seven years, punishments for “frivolous” allegations, exclusion of parliamentarians for matters in the House, control over appointment and removal of Lokpal members, and so on can easily be traced back to the protective instincts normal to anyone in similar circumstances.
How then to get out of this seemingly intractable logjam? Equity and ethics may provide a possible solution. Wherever there is a conflict of interest, it is customary for the conflicted party to formally disclose the conflict and then to recuse itself from any discussion or decision on the matter. Since Lokpal’s footprint of investigative authority extends to all members of parliament, they should all refrain from influencing this particular statute even though eventually it would have to be passed by the parliament. Who should then be drafting the legislation in this case? One could possibly entrust the job to an independent collegium of people, with the mandate that any of the conflicted parties should abstain from discussion and voting on matters concerning it. Typically, this group could consist of all constitutional authorities such as the Chief Justice of the Supreme Court, the Comptroller and Auditor General, the Chief Election Commissioner, the Chair of the Human Rights Commission, the Chair of Rajya Sabha and the Speaker of the Lok Sabha, the Prime Minister, the Leaders of the Opposition in the two Houses, and the Chief of Bureaucracy (such as say the Cabinet Secretary). This group may have an advisory body of experts to assist them. Legislation drafted by this Collegium should be put out for public comment for a reasonable period, say six weeks. Comments received should be discussed and voted upon by the Collegium. All the comments received and their acceptance or rejection with reasons should be posted on the Collegium’s web site immediately after their deliberations.
The final draft as approved by the majority (together with any dissenting notes) should be laid before the two houses which can then debate and approve the proposed bill with or without amendments. The only restraint on parliament would be that the houses may not dilute the bill provisions that directly affect them (because of the conflict of interest) but they can if deemed appropriate, further strengthen such provisions.
This approach will set a salutary convention which can be followed in all cases where the parliament finds itself in the position of a conflicted party. While this can be tried out in case of the Lokpal issue, it can be extended to others as well, for example, matters concerning MPs remuneration, attendance, and so on. In course of time other democracies around the world may even consider this as a best parliamentary practice to be universally followed. India can then be justly proud of setting international standards of parliamentary behavior rather than always “following” others.
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