LAW RESOURCE INDIA

MPs , lobbyists: The dividing line

Posted in ACCOUNTABILITY, PARLIAMENT by NNLRJ INDIA on January 9, 2011
Indian Parliament Building Delhi India

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PUBLISHED IN THE TRIBUNE CHANDIGARH

As the matter has serious ramifications for parliamentary democracy, there is need for a national debate, says Subhash C. Kashyap

Union Minister of State for Environment and Forests (Independent charge) Jairam Ramesh recently wrote to the Lok Sabha Speaker and the Rajya Sabha Chairman raising some vital issues involving the conduct of Members of Parliament.

He complained that some of them were acting as lobbyists, either to promote the interests of their own concerns or for others. The Minister pointed out how his own Ministry was sought to be pressurised by some members to further certain interests. The matter has serious ramifications and calls for a national debate. That such things happen has always been widely suspected but the Minister’s allegations are vague, in very general terms and not actionable. If anything, they tend to further erode the falling respect and esteem of the people for their own elected representatives. It is very much like some academics and social activists alleging that all politicians are corrupt and source of all our societal ills.

Perhaps, the hangover of Mr Ramesh’s own academic past got the better of him to make such remarks. Unless the precise names are given and specific instances cited with proper documentation and evidence, no meaningful action can be expected to follow the Minister’s epistles to the Presiding Officers of Parliament.

In all fairness to the Members of Parliament and parliamentary institutions, the Minister must come forward with facts and details of the information in his possession so that appropriate action under the Constitution, laws and rules of the Houses can be initiated to ensure that our elected representatives – Members of Parliament – do not degenerate into serving their own personal or family business interests or becoming power brokers, middlemen, influence-peddlers, liaison men, commission agents or lobbyists for vested interests.

One view that is advanced and debated is that Members of Parliament work under tremendous pressure. They are approached by many people for help as their legitimate communication links with Parliament and the government. Often, the members have got to write to the Ministers. It should be entirely the responsibility of the Minister to have the matters examined and decisions taken on merits.

This would not be an appropriate approach. Communications from the Members of Parliament are entitled to due respect in the chambers of Ministers. But, that also casts a tremendous responsibility on the shoulders of the members. They should not blindly sign any missives to Ministers. As for members trying to directly influence government officials, that is entirely impermissible. In some quarters, it is advocated that in the context of economic liberalisation and free market policies adopted by us, lobbying should be accepted as an essential concomitant and legalised on the US pattern.

In the United States, for instance, almost every interest group has its lobbyist on the Capitol Hill to protect and promote its interests in the portals of the US Congress and in the government. The lobbyists have to be registered under the Registration of Lobbies Act. The lobbyists interact with the members of the Congress and build pressure groups to influence policy in the interest of their clients. Sometimes these pressure groups and lobbies play a more potent role in policy formulation, legislation and implementation than even the political parties. No wonder, the lobbyists in the US are some of the most highly paid people.

Here again, our situation in many respects and our polity are very different from the United States. In the context of vast sections of our people still suffering from poverty, backwardness and deprivation, it would not at all be possible in foreseeable future to have lobbyists for all interest groups. Any law permitting lobbying would only legitimise and promote some of the most unfair practices including payment of bribes and commissions. The lobbyists would become the middlemen. The dividing line between a lobbyist and a broker is very thin.

In our parliamentary system, several procedural devices are available to members to seek information from the Ministers and to raise matters of public importance in the parliamentary fora. Every member is a Member of Parliament of India. He cannot be confined to concerns of his constituency. He can raise matters of concern to any or every part of the nation and pertaining to the public interest of any section of the people.

However, if a Member of Parliament has any personal, direct or pecuniary interest in any matters coming up before the House or a Committee of which he is a member, he is expected to inform the Speaker/Chairman of his interest in advance of his taking part in the proceedings concerned.

Under Rule 255 in the Lok Sabha, objection may be taken to the inclusion of a member in a Committee on the ground that the member has a personal, pecuniary or direct interest of such an intimate character that it may prejudicially affect the consideration of any matters to be considered by the Committee.

If the Speaker holds that the member, against whose appointment objection has been taken, has a personal, pecuniary or direct interest in the matter before the Committee, he shall cease to be a member thereof forthwith.

For purposes of this rule, the interest of the member should be direct, personal or pecuniary and separately belong to the person whose inclusion in the Committee is objected to and not in common with the public in general or with any class or section thereof or on a matter of state policy. There have been several instances where action has been actually taken by the Speaker.

Under Lok Sabha Rule 371, vote of a Member on the floor of the House may be challenged on the ground of personal, pecuniary or direct interest in the matter. The Speaker shall decide whether the vote of the member should be disallowed.

Norms of Parliamentary Decorum and Etiquette to be followed by Members are contained in the code of conduct which is part of the Rules of the House (Rules 349 to 359 and Directions 115A and 115C, Lok Sabha). But, this largely covers the members conduct in the matter of the maintenance of parliamentary decorum in the proceedings of the House.

Besides, under the law of parliamentary privileges flowing from Article 105 of the Constitution, any misconduct in the presence of the House or a Committee thereof, including that by members themselves, constitutes contempt of the House. Members found guilty of such contempt can be punished by admonition, reprimand, suspension from membership for a particular period, commitment to prison or even expulsion from the House.

Members generally are expected to conduct themselves in a manner that they maintain the dignity of the House to which they belong and not to indulge in any conduct unbecoming of Members of Parliament or inconsistent or derogatory to the dignity of the House. Thus, it is considered the duty of each member to refrain from any course of action prejudicial to his privilege of freedom of speech in the House. It is irregular for a member to enter into any contractual agreement with an outside body, controlling or limiting his complete independence and freedom of action in Parliament.

The extent and amplitude of the words “conduct of a member” have not been defined exhaustively, but it is within the powers of the House in each case to determine whether a member has acted in an unbecoming manner or has acted in a manner unworthy of a Member of Parliament.

Thus, even though the facts of a particular case do not come within any of the recognised heads of breach of privilege or contempt of the House, the conduct of a member may be considered by the House as unbecoming and derogatory to the dignity of the House.

The first such case which is often cited occurred as early as in 1951 during the Provisional Parliament period. The House decided on September 24, 1951, that the conduct of a member (H.C. Mudgal) in undertaking to canvass “support” and to make “propaganda in Parliament” on behalf of the Bombay Bullion Exchange, in return for financial or business advantages, was “derogatory to the dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its Members”. The House by a resolution determined that Mudgal deserved expulsion from the House.

During the Eighth Lok Sabha (1985-89), 96 notices of questions relating to drug manufacturing companies, their products and formulations for different dates were received from seven members. From the format, language and typing of those questions, it appeared that the source of all of them was the same and they appeared to be rather sponsored questions to lobby for or against certain multinational drug companies.

The questions, instead of asking information, gave information and no public interest appeared to be involved. It also appeared that the medium of question procedure was being abused and, therefore, was violative of Rule 43 (1). All these notices were disallowed.

Again, a large number of questions relating to drug manufacturing companies, their products and formulations from almost the same set of members were received. Except a few which were found admissible on merit and were accordingly admitted, all other questions were disallowed. Some of the members represented against disallowance of their questions. These members were asked to see the Speaker. Only one member turned up. He was told by the Speaker to desist from accepting questions from private companies indiscriminately and without personal scrutiny.

More recently, during the Fourteenth Lok Sabha period, in a sensational expose on camera, ten Members of Lok Sabha and one Member of Rajya Sabha were shown on TV as accepting money for asking questions in Parliament. Acting swiftly, the Chairman of Rajya Sabha suspended the member and referred the matter to the Ethics Committee of the House. The Lok Sabha Speaker asked the ten MPs not to attend the House till the matter was settled and he appointed a Special five-member Committee. Within a week, the two committees reported – both holding the members guilty and recommending expulsion from their respective Houses. On December 23, 2005, motions were passed in the two Houses expelling all the 11 members from their respective Houses for conduct lowering the dignity and credibility of Parliament.

There are many established parliamentary customs and conventions which a member has to make himself familiar with. These customs and conventions are based on the past precedents, the rulings of Presiding Officers and on the unrecorded traditions of Parliament. These are put together in a Handbook for Members of Parliament and inter alia include:

Information given to members in confidence or by virtue of their being members of Parliamentary Committees should not be divulged to anyone nor used by them directly or indirectly in the profession in which they are engaged, such as in their capacity as editors or correspondents of newspapers or proprietors of business firms and so on.

A member should not try to secure business from the government for a firm, company or organisation with which he is directly or indirectly concerned.

A member should not give certificates which are not based on facts.

A member should not unduly influence the government officials or the Ministers in a case in which he is interested financially either directly or indirectly.

A member should not receive hospitality of any kind for any work he desires or proposes to do from a person or organisation on whose behalf the work is to be done by him.

A member should not in his capacity as a lawyer or a legal adviser or a counsel or a solicitor appear before a Minister or an executive officer exercising quasi-judicial powers.

A member should verify the facts before proceeding to take action on behalf of his constituents.

A member should not elicit any official information in an unauthorised manner by inducing a government employee to give information to him which in the course of his normal functions he should not give, nor encourage any such person to speak to him against his senior officials on matters of public importance and policy.

A member should not write recommendatory letters or speak to government officials for employment or business contacts for any of his relations or other persons in whom he is directly or indirectly interested.

The Members of Parliament should not take action on behalf of their constituents on some insufficient or baseless facts or without verifying the veracity of facts nor should they allow themselves to be used as ready supporters of individual grievances. If the legislator feels that the cause is just and legitimate but the normal channels would get delayed justice, he can approach the civil servant concerned and bring the matter to his notice, but with decorum and in a manner not in any way amounting to pressurising or exercising undue influence.

The conduct of a member involving corruption in the execution of his office as a member is treated by the House as a breach of privilege. Thus, acceptance of any fee, compensation or reward in connection with the promotion of or opposition to any Bill, resolution or matter submitted or proposed to be submitted to the House or any Committee thereof is a breach of privilege. It would also be a breach of privilege and misconduct on the part of a member to enter into an agreement with another person for any reward to advocate and prosecute in the House the claims of such person.

The Handbook also provides details of the appropriate procedure for members communicating with Ministers, whom to write for seeking information, for complaining etc.

So far as the present missives by Minister Ramesh to the Speaker and Chairman are concerned, presumably, he would be asked to substantiate his allegations with specific references to the names of Members and details of their attempts to influence him or his Ministry officials.

If that is done, it would be a fit case for further action and can be referred to the Ethics Committee or the Privileges Committee of the House concerned or even a Special Committee may be constituted to inquire and report to the House.

The House can then discuss the report and decide upon appropriate action to be taken against the members found guilty of conduct unbecoming of Members of Parliament.

If any bribery or other corrupt practice violative of any law including the Indian Penal Code, the Prevention of Corruption Act etc. is involved, the members can also be hauled up by the law enforcement agencies of the state and proceeded against like any other citizen. In the new atmosphere of the dawn of some political will to take action, one can hope for the best and remain prepared for the worst.

In all fairness to the Members of Parliament and parliamentary institutions, the Union Environment Minister must come forward with details of the information in his possession so that appropriate action under the Constitution, laws and rules of the Houses can be initiated to ensure that our elected representatives – Members of Parliament – do not degenerate into serving their own personal or family business interests or becoming power brokers, middlemen, influence-peddlers, liaison men, commission agents or lobbyists for vested interests

If any bribery or other corrupt practice violative of any law is involved, the Members of Parliament can be hauled up by the law enforcement agencies of the state and proceeded against like any other citizen

The writer, a noted constitutional expert, is a former Secretary-General of the Lok Sabha

http://www.tribuneindia.com/2011/20110109/edit.htm#1

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