SECOND REPORT OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA ON ‘VARIOUS FACETS OF MISCONDUCT AND BASIC ATTRIBUTES OF STANDARDS OF CONDUCT/ BEHAVIOUR EXPECTED OF MEMBERS’ (FOURTEENTH LOK SABHA)
(Presented to the Speaker, Lok Sabha on 31 March, 2008) (Laid on the Table on ……… ………………)
LOK SABHA SECRETARIAT NEW DELHI
April, 2008/Vaisakha, 1930 (Saka) P&E (IC) No. 2
Price : Rs. 130.00
© 2008 BY LOK SABHA SECRETARIAT
Published under Rule 382 of the Rules of Procedure and Conduct of Business in Lok Sabha (Twelfth Edition) and printed by Jainco Art India, New Delhi-110 005. CONTENTS
PAGE
PERSONNEL OF THE COMMITTEE ...... (iii)
REPORT ...... 1
MINUTES OF SITTINGS OF COMMITTEE ...... 49
APPENDICES
I. Lists of Persons/Institutions/Foreign Parliaments to whom the questionnaire on various facets of misconduct and basic attributes of ‘Standards of conduct/behaviour expected of members’ was sent for eliciting their views ...... 61
II. Detailed Analysis of Responses to the Questionnaire...... 71
III. Responses received from various Persons/Institutions/ Foreign Parliaments to the Questionnaire ...... 95
(i) PERSONNEL OF THE COMMITTEE OF INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA* (14th Lok Sabha)
Shri V. Kishore Chandra S. Deo — Chairman
MEMBERS 2. Shri Gurudas Dasgupta 3. Shri Anant Gangaram Geete 4. Shri C. Kuppusami 5. Prof. Vijay Kumar Malhotra 6. Shri Shriniwas Patil 7. Shri Mohammad Salim 8. Shri Braja Kishore Tripathy 9. Shri Rajesh Verma 10. Shri Devendra Prasad Yadav 11.Prof. Ram Gopal Yadav
SECRETARIAT
1. Shri V.K. Sharma — Joint Secretary 2. Shri Ravindra Garimella — Deputy Secretary 3. Shri Ashok Sajwan — Deputy Secretary-II
*Constituted on 16 May, 2007.
(iii) SECOND REPORT OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA ON ‘VARIOUS FACETS OF MISCONDUCT AND BASIC ATTRIBUTES OF STANDARDS OF CONDUCT/ BEHAVIOUR EXPECTED OF MEMBERS’ (FOURTEENTH LOK SABHA)
I. Introduction and Procedure
I, the Chairman of the Committee to Inquire into Misconduct of Members of Lok Sabha, having been authorized by the Committee to submit the Report on their behalf, present this their Second Report to the Speaker on ‘Various facets of misconduct and basic attributes of standards of conduct/behaviour expected of members, definition of misconduct etc.’
2. The Committee held 9 sittings. The relevant minutes of these sittings form part of the Report and are appended hereto.
3. At their first sitting held on 18 May, 2007, the Committee held preliminary deliberations on the matter.
4. At their second sitting held on 29 May, 2007, the Committee after some deliberations, directed the Secretariat to prepare and circulate a note to the members of the Committee on various facets of misconduct.
5. At their third sitting held on 14 June, 2007, the Committee further deliberated upon the matter and directed the Secretariat to prepare a questionnaire in the matter and also a list of eminent persons, jurists and intellectuals to whom the questionnaire might be sent for eliciting their views.
6. At their fourth sitting held on 3 July, 2007, the Committee approved the questionnaire and the list of eminent persons, jurists and intellectuals to whom the questionnaire had to be sent for eliciting their views in the matter.
7. At their fifth sitting held on 6 November, 2007 the Committee took note of the analysis of responses received from various institutions/experts in the matter. 8. At their sixth sitting held on 23 November, 2007, the Committee considered and adopted the broad scheme of chapterisation of the proposed draft Report.
9. At their seventh sitting held on 22 January, 2008, the Committee further considered the matter.
10. At their eighth sitting held on 18 February, 2008, the Committee had further deliberations in the matter.
11. At their ninth sitting held on 19 March, 2008, the Committee considered their draft Report and adopted the same.
II. Facts
12. On 16 May, 2007 the Speaker, Lok Sabha constituted a Committee to Inquire into Misconduct of Members of Lok Sabha. The Speaker while constituting the Committee made the following observation:—
“I held a meeting with the Hon’ble Leaders of different parties on 15 May, 2007... I am thankful to all the Hon’ble Leaders for their very valuable suggestions…Hon’ble Leaders were unanimously of the view that a Committee of Members of Lok Sabha may be constituted to inquire into instances of misconduct including misuse of their privileges and facilities by Members of Lok Sabha.
I have, accordingly, decided to constitute a Committee consisting of the following members:—
1. Shri V. Kishore Chandra S. Deo — Chairman 2. Shri Gurudas Dasgupta 3. Shri Anant Gangaram Geete 4. Shri C. Kuppusami 5. Prof. Vijay Kumar Malhotra 6. Shri Shriniwas Patil 7. Shri Mohammad Salim 8. Shri Braja Kishore Tripathy 9. Shri Rajesh Verma 10. Shri Devendra Prasad Yadav 11.Prof. Ram Gopal Yadav
The Committee will inquire into cases of misconduct of Members of Lok Sabha including misuse of Parliamentary privileges and facilities by them as may be referred to it by the Speaker from 2 time to time and will recommend action, if any, to be taken in each case and submit the same to the Speaker.
The Committee may also, if it deems fit, look into the desirability of defining what acts would amount to misconduct on the part of a member and make suitable recommendations regarding action to be taken in cases of such misconduct.
The Committee is authorized to follow its own procedure consistent with the well-established principles of law and natural justice.
The Speaker will decide whether the Member or Members concerned in each case will be asked not to attend the House till a suitable decision is taken after the submission of the Report by the Committee.”
The information regarding constitution of the Inquiry Committee was also published in Bulletin Part-II dated 16 May, 2007 vide para No. 3647.
III. Questionnaire
13. The Committee decided to elicit opinion on various facets of misconduct and basic attributes of ‘standards of conduct/behaviour expected of members’ from eminent persons, jurists and intellectuals through a Questionnaire.
14. The following Questionnaire was approved by the Committee for eliciting views/opinions of eminent persons/institutions:—
Q.1 Do you think there is a need to codify as to what actions on the part of the members of Parliament would come under the category of misconduct? Q.2 What in your opinion should be the appropriate and comprehensive definition of misconduct vis a vis members of Parliament? Please give details of the acts which may come under definition of misconduct by members. Q.3 Should penal offences committed by members of Parliament also be construed as misconduct? Q.4 If answer to Question No. 3 above is ‘Yes’, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise? Q.5 If answer to Question No. 3 is ‘Yes’, should the proceedings for misconduct be initiated only after the commission of penal offences has been finally established in a court of law?
3 Q.6 What should be appropriate punishment if misconduct is proved?
Q.7 Do you think that it should be incumbent on the Political Parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct?
Q.8 Would it help if it is made mandatory for the concerned Political Parties to issue a certificate to the Presiding Officer of the respective House that none of their member is of doubtful integrity and will not indulge in any misconduct?
15. The above Questionnaire was sent to 60 eminent persons/ institutions* for eliciting their views/opinions. Responses were received in the matter from the following ten persons/institutions:—
(i) Shri Soli Sorabjee, Senior Advocate (ii) Shri P.P. Rao, Senior Advocate (iii) Shri Sushanta Roy, CEO, Media and Entertainment (iv) CNN IBN (v) ILS Law College (vi) Rajasthan Patrika (vii) The Indian Express (viii) Ministry of Law and Justice (ix) Shri Pranab Mukherjee, Leader of Congress Party (x) Shri Nakul Das Rai, Leader Sikkim Democratic Front
IV. Analysis of the replies to the Questionnaire 16. A question-wise analysis of the replies is as follows:— Qn. 1 Do you think there is a need to codify as to what actions on the part of members of Parliament would come under the category of misconduct? CNN IBN, ILS Law College, Pune, Ministry of Law and Justice, Shri Pranab Mukherjee, Leader of Congress Party and ‘The Indian Express’ are of the opinion that there is no need to codify what actions of members of Parliament would constitute misconduct as it would be very tough and impractical to list all the possible categories of misconduct. Shri Pranab Mukherjee elaborated by observing that misconduct is nothing but “conduct unbecoming of a Member of Parliament” not only in discharge of his parliamentary functions but
*For a list of persons/institutions please see Appendix.
4 also in the discharge of his public duties and probity of conduct in private life to the extent it impacts on the performance of his public duties. He was further of the view that what amounts to conduct “unbecoming of a Member of Parliament” depends on the facts and circumstances of the case. However, Shri Soli Sorabjee, and Shri P.P. Rao, Senior Advocates, Shri Sushanto Roy, CEO, Media and Entertainment Shri Nakul Das Rai, Leader SDF and ‘Rajasthan Patrika’ are of the view that it is desirable and necessary to codify such actions of members of Parliament which would amount to misconduct so that there is a deterrent for members and they know what they are not supposed to do.
Qn. 2 What in your opinion should be appropriate and comprehensive definition of misconduct vis a vis members of Parliament? Please give details of acts which may come under definition of misconduct of members.
CNN IBN, Shri P.P. Rao, Senior Advocate, Shri Sushanto Roy, CEO, Media and Entertainment and ‘The Indian Express’ sought to define the term ‘misconduct’. CNN IBN has proposed that the term ‘misconduct’ may include, misbehaviour on the floor of the House, viz, use of violence, anti-social behaviour, refusal to follow instructions, disruption of proceedings, breach of conduct rules, misuse or abuse of parliamentary office or of parliamentary privileges, commission of cognizable offences, use of public position for personal benefit, providing benefits to influence official actions, receipt of gifts above a certain value, misuse of privileges, financial conflict of interests and nepotism etc.
On the other hand, Shri Pranab Mukherjee, Leader of Congress Party, is of the view that it may be inappropriate to give comprehensive definition of ‘misconduct’, ILS Law College feels that any definition would have to be broad and illustrative. Shri Soli Sorabjee, Senior Advocate is of the view that it is not practicable to give any comprehensive and exhaustive definition of ‘misconduct’, but the same may include conflict of interests whilst voting on a motion in Parliament and other grounds which may impair the fitness and propriety of a member to occupy such an office etc.
Shri P.P. Rao, Senior Advocate has opined that ‘misconduct’ is generally understood to mean dishonest, immoral and unethical behaviour which constitutes contempt of the House inside or outside the House, but it is not easy to define ‘misconduct’ exhaustively.
Shri Sushanto Roy, CEO, Media and Entertainment has stated that the golden rule to follow is that when people in public life are in doubt whether a particular action is consistent with the standards
5 expected of them, the proper course is not to do it. The key issue is not only being fair but also seen to be fair, objective and completely above board.
According to ‘The Indian Express’, any act that is perceived to undermine the image of a people’s representative like corruption, conflict of interests, compromising public trust could be considered as ‘misconduct’.
According to ‘Rajasthan Patrika’, if there are allegations against a member of the House, the same should be inquired into and if he is found guilty, he should be punished.
Shri Nakul Das Rai, Leader SDF is inter alia of the view that definition of ethics is beyond legality. All such acts that are illegal under relevant laws entailing conviction constitute misconduct. The framework for code of conduct for members as recommended by Ethics Committee, Rajya Sabha could provide guidance in this regard.
Qn. 3 Should penal offences committed by members of Parliament also be construed as misconduct?
CNN IBN, ILS Law College, Ministry of Law and Justice, Shri Soli Sorabjee, Senior Advocate, Shri Pranab Mukherjee, Leader of Congress Party, Shri P.P. Rao, Senior Advocate, Shri Sushanto Roy, CEO, Media & Entertainment, ‘The Indian Express’ ‘Rajasthan Patrika’ and Shri Nakul Das Rai, Leader SDF all are unanimously of the view that penal offences committed by members of Parliament should also be construed as misconducts as the same in any case lower or tend to lower the prestige and dignity of the House, as members of Parliament are held in high esteem by the people.
Qn. 4 If answer to Question No. 3 is ‘Yes’, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise?
CNN IBN, Ministry of Law and Justice, Shri Sushanto Roy of Media & Entertainment, Shri Soli Sorabjee, Senior Advocate and Shri Nakul Das Rai, Leader SDF are of the opinion that no distinction should be made and both the offences must be covered under the category of ‘misconduct’. CNN IBN, however, felt that a distinction need be made between the two for the purpose of deciding the nature of inquiry, penalties and quantum of punishment. ILS Law College is of the view that penal offences are a separate category. Action taken by Parliament against a member will run parallel to laws of the country providing for criminal prosecution. These two spheres operate independent of each other.
6 However, ‘The Indian Express’ and Shri P.P. Rao, Senior Advocate, are of the view that there has to be a distinction between the penal offences committed by members and those committed otherwise. Shri Pranab Mukherjee, Leader of Congress Party is of the view that there is a fine distinction between the two, and if members of Parliament in discharge of their parliamentary duties commit penal offences, such conduct may amount to misconduct too and, therefore, come within the purview of Parliament. However, the benefit of privilege should not be extended to criminal acts including moral turpitude because the problem in both the cases is the jurisdiction available under different penal statutes to punish such members. There may be instances where the conduct of a member is so unbecoming that Parliament as a body has to protect its honour and dignity and ought not to wait for the verdict of a dilatory judicial procedure lest it may dilute the supremacy of Parliament.
Qn. 5 If answer to Question No. 3 is ‘Yes’, should the proceedings for misconduct be initiated only after the commission of penal offences has been finally established in a court of law?
ILS Law College is of the view that it is not necessarily so. It was opined that the case against the accused has to be proved beyond reasonable doubt, whereas in other areas, including the area of parliamentary privileges, the case against a person can be proved on the basis of preponderance of probabilities principle.
The Ministry of Law and Shri Pranab Mukherjee, Leader of Congress Party, Shri P.P. Rao, and ‘The Indian Express’ are of the opinion that the proceedings for misconduct should be started by the House as soon as the acts constituting the misconduct are brought to its notice. Shri P.P. Rao also opined that the House should not wait for the decision of the court. If the offence is not a trivial one, the least the House can do is to suspend the member from the membership of the House pending his trial in a court of law. Shri Sushanto Roy was of the view that the proceedings for misconduct should be initiated only after the commission of penal offences has been finally established in a court of law. Shri Nakul Das Rai, Leader SDF is of the view that proceedings of misconduct for penal offences should be initiated only after conviction by trial court.
Shri Pranab Mukherjee, Leader of Congress Party is also of the view that Parliament as a body can and should under extraordinary circumstances deal with delinquent members before final guilt is established in a court of law.
7 Shri Soli Sorabjee feels a finding by a competent criminal court should suffice for initiation of proceedings of misconduct. Mere pending of appeal should not come in the way of initiation of proceedings.
Qn. 6 What should be appropriate punishment if misconduct is proved?
There is unanimity of the view that misconduct, if proved, should be appropriately punished.
CNN IBN, Shri Pranab Mukherjee, Leader of Congress Party, Ministry of Law and Justice, Shri Soli Sorabjee and Shri P.P. Rao are of the view that if misconduct is proved, the punishment would depend upon the nature of misconduct, which could be admonition, reprimand, withdrawal of privileges/facilities for minor misconduct and suspension and expulsion for gross misconduct and other punishments as the House may deem appropriate. According to ILS Law College the appropriate punishment should be decided on the facts and circumstances of each case.
Shri Nakul Das Rai, Leader SDF is of the view that appropriate punishment could include censure, reprimand and suspension from the House for a specific period or only other penalty as considered appropriate.
Shri Sushanto Roy is of the view that as an act of misconduct goes against the basic tenet of democracy, hence, the punishment has to be exhaustive which might include termination of all financial benefits and facilities enjoyed by the erring members. On the other hand ‘Rajasthan Patrika’ is of the view that if a member is found to be indulging in any misconduct, he should be expelled and also punished according to penal codes. Further, he should also not be allowed to contest elections in future.
Qn. 7 Do you think that it should be incumbent on political parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct?
CNN IBN, ILS Law College, Shri Pranab Mukhejee, Shri P.P. Rao and ‘Rajasthan Patrika’ are of the view that political parties cannot be legally obliged to ask their delinquent members to resign from the membership. ILS Law College is nevertheless of the view that such a practice is morally and ethically viable for monitoring integrity in politics. Shri Pranab Mukherjee feels that such a decision should rest with Parliament.
8 Shri Sushanto Roy, ‘The Indian Express’ and Ministry of Law are of the opinion that ideally it should be incumbent on the political parties to ask their members to resign in such cases. Shri Soli Sorabjee is of the view that the recommendations of the Law Commission in its 170th Report envisage an internal disciplinary mechanism. However, if codified rules of conduct and ethics are made, a direction from the political party would be inconsequential and the erring member would be bound to resign, if found guilty of violating such rule. Shri Nakul Das Rai, Leader , SDF is of the view that Ethics Committee could advise the political party to ask the member for resigning from the membership of the House, if they have indulged in misconduct. However, it should be left to the collective conscience of the political party to accept the advice. Qn. 8 Would it help if it is made mandatory for the concerned political parties to issue certificate to the Presiding Officer of the respective House that none of their member is of doubtful integrity and will not indulge in any misconduct? CNN IBN, Ministry of Law and ‘Rajasthan Patrika’ have replied in affirmative. On the other hand, Shri Soli Sorabjee, Shri Pranab Mukherjee, Shri P.P. Rao, Shri Sushanto Roy, and ‘The Indian Express’ are of the view that though it may be an ideal situation but would be unrealistic and impracticable as political parties would not be keen on issuing certificate to such candidates as political parties at times may tend to be guided by expediency rather than values or political morality. Shri Nakul Das Rai, Leader , SDF while opining that misconduct is a personal issue, replied in negative. 17. The majority and minority views on four thrust areas of the Questionnaire, viz., (i) Need or otherwise to codify what acts constitute misconducts, (ii) definition of the term misconduct, (iii) the issue as to when should the proceedings be initiated in case of misconducts involving penal offences, and (iv) whether penal offences committed by members be construed as misconducts may be summed up as follows:- (i) Codification of misconducts Opinion is evenly divided on this issue One view is that there is no need to codify all actions of members of Parliament, commission or omission of which, could be said to constitute misconduct on the part of members. 9 On the other hand, there has also emerged a view that all such actions of members of Parliament which would amount to misconduct on their part need be codified.
(ii) Definition of term ‘misconduct’
Majority view
The term ‘misconduct’ needs to be defined. Some definitions have been proposed.
Minority view
(i) It would be inappropriate to give a comprehensive definition of the term ‘misconduct’. (ii) While opining that defining ‘misconduct’ comprehensively is a complex process, certain instances and illustrations which would be construed as misconducts have been listed.
(iii) Penal offences committed by members
A unanimous view has emerged that all penal offences should constitute misconducts.
(iv) Time when misconduct which is also a penal offence be taken cognizance of
Majority view
The House should take cognizance of such misconduct without waiting for the final outcome in the courts of law.
Minority view
Proceedings for misconduct should be initiated only after the commission of penal offences has been finally established in a court of law.
V. Observations
What is meant by Ethics?
18. As the remit of the Committee is to attempt a definition of unethical behaviour or misconduct and suggest a Code of Conduct for members, it seems to the Committee to be in order to first analyse and understand the extent and import of the word “ethics”.
19. Ethics, which in medieval English was referred to as “ethik”, in old French as “ethique”, in Latin as “ethice” and in Greek as “ethike” from “ethicos”, has been defined by Britannica Concise Encyclopedia
10 as a “branch of philosophy concerned with the nature of ultimate values and standards by which human actions can be judged right or wrong”. The Penguin Concise Columbia Encyclopedia defines ethics as “the study and evaluation of human conduct in the light of moral principles, which may be viewed as the individual’s standard of conduct or a body of social obligations and duties”. Ayn Rand, the famous novelist says “ethics is a code of values which guide our choices and actions and determine the purpose and course of our lives”. Ethics can also be defined as “standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefit to society, fairness or specific virtues....Ethical standards also include that enjoin virtues of honesty, compassion and loyalty.... Ethics also means.... the continuous effort of studying our own moral beliefs and moral conduct, and striving to ensure that we, and the institutions we help to shape, live up to standards that are reasonable and solidly based1 . The Second Administrative Reforms Commission in its Fourth Report2 has defined ethics as follows:— “Ethics is a set of standards that society places upon itself and which helps guide behaviour, choices and actions”. 20. Hon’ble Speaker, Eleventh Lok Sabha while speaking at the inauguration of the Ethics Committee of the Rajya Sabha on 30th May, 1997, had defined the term ethics as under:— “Ethics, by definition is a very broad expression. It is a matter of morals; of character and conduct; of rules of behaviour; of accountability and propriety. It is not a legalistic and technical matter to be enforced. It is a matter of uprightness and integrity to be voluntarily observed.” 21. It is clear from the above definitions that ethics may mean different things to different people. The Committee note that in late 1960s, when former Dean and President of Loyola University of Chicago, Sociologist Raymond C. Baumhart asked people what did ethics mean to them, some of the replies he got were as follows:— • “Ethics has to do with what my feelings tell me is right or wrong.” • “Ethics has to do with my religious beliefs.”
1 Paper on Ethics, Santa Clara University, USA. 2 January, 2007. 11 • “Being ethical is doing what the law requires.” • “Ethics consists of standards of behaviour our society accepts.” • “I don’t know what the word means.”
Baumhart, however, goes on to say that ethics is not feelings as feelings frequently deviate from ethical; it is definitely not religion because atheists are also ethical; ethics is not the same as following law because law may not be necessarily ethical, for example, slavery laws of pre-civil war of America and apartheid laws of South Africa; it is not even whatever the society accepts because behavior in a society can deviate from ethical.
So what does ethics mean?
22. The Committee feel that it may, perhaps, not be possible to give a comprehensive and all-encompassing definition of the term “ethics” as it is not simply a word; it rather represents the philosophy of life. The Committee, are however, convinced that there are definitely two aspects to ethics: the first involves ability to discern right from wrong, good from evil and propriety from impropriety; and the second involves the commitment to do what is right, good and proper.
Ethics, therefore, is not an idea to think and argue about; it is an action concept. Ethical principles are ground rules for decision making.
Ethics and Politics
23. Ethics is inextricably linked with politics. Gandhiji said “I have always derived my politics from ethics.... It is because I swear by ethics that I find myself in politics”.
Politics is about governance and there is no gainsaying that democracy is the best form of governance. For effective functioning of representative institutions in a democracy, the elected representatives of the people should echo vox populi in those institutions. Needless to say that legislators have, therefore, the onerous responsibility of measuring up to the peoples’ expectations. Each and every act of a legislator which is not in line with the expected standards of behaviour, tends to tarnish his image as well as the image of his colleagues and that of the democratic institutions he represents. Hence, it is imperative that actions of legislators are guided by ethical values and noble ideals. Credibility and respectability of democratic institutions surely and squarely hinges upon the levels at which legislators measure up on the ethical barometer.
12 It is deplorable to note that in the present day self-seeking world, declining ethical mores are acquiesced as a practical reality in all walks of life and the legislative fraternity is no exception to this. Declining standards of ethical behaviour of Legislators 24. The Committee note that the constitution of an Inquiry Committee in 1994 in the United Kingdom under the Chairmanship of Lord Nolan, a distinguished Judge, “as a result of public disquiet about press reports questioning standards in public life”, was perhaps the first public acknowledgement by parliamentarians of declining standards of behaviour in public life. The remit of the Committee was “to examine current concerns about standards of conduct of all holders of public office, including arrangement relating to financial and commercial activities, and make recommendations as to any changes in the present arrangements which might be required to ensure the highest standards of propriety in public life”. 25. The Nolan Committee in its Report, presented in 1995, made observations and recommendations on a wide range of subjects. The Committee note with interest the following observations contained in the Report of the Nolan Committee:— “We cannot say conclusively that the standards of behaviour in public life have declined. We can say that conduct in public life is more rigorously scrutinised than it was in the past, that the standards which the public demand remain high, and that the great majority of people in public life meet those high standards. But there are weaknesses in the procedure for maintaining and enforcing those standards. As a result people in public life are not always as clear as they should be about where the boundaries of acceptable conduct lie. This we regard as the principal reason of disquiet. It calls for urgent remedial action.”3 26. Twelve years down the line, the Committee find themselves unable to share the perception of Lord Nolan that it cannot be said conclusively that standards of behaviour in public life have declined. Things appear to have changed for worse in the twelve years since Lord Nolan presented his Report, particularly in the context of parliamentarians and legislators world wide. According to World Bank Institute Working Paper of 2004 on “Legislative Ethics and Code of Conduct”:— “Voters’ dissatisfaction with parties, politics and politicians, indeed, how democracy works, increased.... when major corruption scandals were discovered in several established democracies. The discovery
3 Nolan Committee, 1995, Report 1.3.
13 of corrupt practices, corrupt officials and corrupt politicians had a profound impact on the political system of several countries, not only because it significantly affected electoral fortunes of several parties, but also and more importantly because it changed voters’ perception of the political system. Indeed, the fact that parties and politicians were not particularly accountable and responsive could be interpreted as a sign of the fact that democracy was not working very well. The lack of parties’ responsiveness, voters’ perceived loss of official efficacy and political corruption eroded the credibility of democratic politics and led to a widespread and mounting cynicism. A 1998 report noted that in Australia esteem for politicians is so low at present—and still declining—that voters are dealing with the problem by insulating themselves from it. They repeatedly talk of the need for leadership.... conversations about politics were characterised by a sense of bewilderment that things have got so bad; a sense of deep mistrust of politicians on both sides; a level of cynicism bordering on contempt. The situation was not very different in Canada where Donald H. Oliver observed that ‘there is little doubt that there is considerable public cynicism towards politics and politicians....the public has also become more distrustful of politicians in general.4 27. The Second Administrative Reforms Commission in its Fourth Report has observed:— “Corruption is so deeply entrenched in the system that most people regard corruption as inevitable and any effort to fight it as futile. This cynicism is spreading so fast that it bodes ill for democratic system itself.” 28. A USA Today/Gallop Poll conducted in 2006, suggested that lawmakers in the United States of America are worried about their image. Americans have deep concerns about corruption in Washington with 83% saying it is a “very” or “somewhat” serious problem. Nearly 7 in 10 said they had little or no confidence that Congress will strengthen its ethics rules.5 29. The Committee observe that the distrust of the public in their elected representatives cannot be said to be entirely misplaced. Instances of unethical behaviour by legislators in different parts of the world cited below are just a small indicator of the magnitude of the problem. 30. Eleven members of Parliament—10 from Lok Sabha and 1 from Rajya Sabha were expelled from the respective Houses—on 23 December, 2005 on the ground of acceptance of money for raising parliamentary questions. The matter came to light on 12 December,
4 The World Bank Institute Working Paper on Legislative Ethics and Code of Conduct, 2004 by Rick Stapenhurst and Riccardo Pelizzo. 5 Usatoday.com. 14 2005 after an expose on a television news channels showing members of Parliament accepting money for tabling notices of parliament questions. An Inquiry Committee constituted in Lok Sabha to inquire into these allegations recommended the expulsion of 10 Members from the 14th Lok Sabha. On 23 December, 2005 the Lok Sabha, accepting the recommendations made by the Inquiry Committee, adopted a motion expelling the ten members from the membership of Lok Sabha. The Rajya Sabha referred the matter to its Committee on Ethics which recommended expulsion of one member of Rajya Sabha from membership. On 23 December, 2005, Rajya Sabha adopted a motion expelling the member. In yet another expose, members of Parliament belonging to both Houses were shown by a television news channel as indulging in irregularities in sanctioning development works under the Members of Parliament Local Area Development Scheme. The Ethics Committee of Rajya Sabha recommended expulsion of one member. On 21 March, 2006, Rajya Sabha adopted a motion expelling the member from the membership of Rajya Sabha. A Committee of Lok Sabha constituted to inquire into the matter, recommended that four members of Lok Sabha be reprimanded and also suspended from the membership of the House for a specified period. on 20 March, 2006, Lok Sabha adopted a motion agreeing with the recommendation of the Committee. Another case of a member of Lok Sabha alleged to be involved in human trafficking presently stands referred by the Speaker, Lok Sabha to this Committee. The Committee have, however, deferred consideration of the matter as the member is presently in judicial custody. Another member of Lok Sabha was reprimanded and suspended for thirty sittings of the House on a motion adopted by the House on 30 August, 2007 to this effect in pursuance of the recommendations of this Committee for misuse by the member of his official air journeys and for wilfully suppressing truth from the Committee and giving false evidence before the Committee. 31. Though this is no solace, the Committee note that the situation in other countries is no better. In the U.S.A., a former Representative from California was convicted recently of receiving bribes. Another Representative from Texas had to step down as majority leader after a campaign finance indictment. A Representative from Ohio gave up Chairmanship because of ties with a former lobbyist.6 Two former Alaska law makers were arrested in 2006 accused of soliciting and accepting bribes from a private oil services company to pass a new oil-tax legislation. The lawmakers included a former Senate President.7
6 Usatoday.com. 7 Ukreuters.com. 15 32. Allegations of misuse of travel vouchers by members of Parliament in South Africa first surfaced in 2003. The alleged fraud included exchange of vouchers for cash, use of vouchers by family and friends and members holding shares and receiving financial benefits from travel agents that were involved. When two of the travel agents were closed down, forty members entered plea bargain. Members were convicted in March, 2005, with sentences ranging from Rand 40,000 or one years’ imprisonment to Rand 80,000 or three years in prison.8
Reprimands were subsequently administered on 29 March, 2007 in the House to the members who had entered into plea bargains with the State.9
33. Examples of unethical behaviour of legislators from other countries may be cited ad nauseum here but it is not the intention of the Committee to present a litany of instances of misdemeanours by legislators across the world. The Committee are of the view that it is a global phenomenon. It is also not as if this decline in standards of behaviour is perceivable only in legislators; it is perceivable in all walks of public life. Corruption is eating at the roots of all public institutions of developed as well as developing countries. The Committee would, however, like to confine their study to the declining ethical standards of legislators and the measures that have been taken or need to be taken to stem the rot before it is too late.
Need for Corrective Measures
34. James Madison has said:—
“The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place to take most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”10
35. The Second Administrative Reforms Commission, in its Fourth Report has observed:—
“The crux of ethical behaviour does not lie in bold words and expressions enshrined as standards, but in their adoption in action, in sanctions against their violations, in putting in place competent disciplinary bodies to investigate allegations of violations and impose sanctions quickly and in promoting a culture of integrity”.
8 Cited from Transparency International Global Corruption Report, 2006: 243 as appearing on 44 Anti-Corruption Resource Center website-www.44.no. 9 Parliament of Republic of South Africa—Announcement, Tabling and Committee Records. 10 The Federalist Papers, No. 57.
16 “.... Anti-Corruption interventions so far made are seen to be ineffectual and there is widespread public cynicism about them. The interventions are seen as mere posturing without any real intention to bring the corrupt to book. They are also seen as handy weapons for partisan, political use to harass opponents.”
“...... In the real world, both values and institutions matter. Values are needed to serve as guiding stars, and they exist in abundance in our society. A sense of right and wrong is intrinsic to our culture and civilization. But values need to be sustained by institutions to be durable and to serve as an example to others. Values without institutional support will soon be weakened and dissipated. Institutions provide the container, which gives shapes and content to values. This is the basis of all statecraft and laws and institutions. While incentives and institutions matter for all people, they are critical in dealing with the army of public servants—elected or appointed endowed with authority to make decisions and impact on human lives and exercising the power to determine allocation of resources. Public office and control over public purse offer enormous temptation and opportunity to promote private gain at public cost. Therefore, creation of institutions and designing of incentives are of utmost importance in promoting ethical conduct of public servants....”
According to Transparency International:—
“The legislature plays a key role in promoting good governance and curbing corruption and poor administration in all sectors of society. Citizens expect parliamentarians to serve out of conviction and a commitment to the public good, rather than for aspirations of personal power and the pursuit of private profit. In turn, they are conferred the legitimate authority to take decisions that determine the fortunes of both the State and its citizens.
Failure by parliamentarians to live up to these expectations can seriously undermine not only the trust citizens have in the ability of their elected leaders to act in the public interest, but also in the legitimacy of the State and its institutions....
Mechanisms are needed that tell parliamentarians in clear terms what is expected of them and what constitutes violation of public ethics. Such mechanisms, for instance code of conduct, need to be enforced and well publicized so that they serve to improve the accountability of Members of Parliament to Parliament and to the general public.”
17 36. It is not as if the legislatures across the world are not concerned over erosion of ethical values of their legislators. Serious efforts have already been made by some legislatures, while others are in the process of doing so, to ensure ethical conduct of their members. These efforts are visible either in the form of provisions incorporated in the Rules of Procedure/Standing Orders or through laying down and implementing Codes of Conduct or Ethical Behaviour and/or by constituting Ethics Committees.
37. The Committee observe that Codes of Conduct for members exist in a number of Parliaments as detailed below:—
(i) United Kingdom The First Report of the Committee on Standards in Public Life (the Nolan Committee) recommended that the House of Commons introduce a new code of conduct for members, an improved Register of Members’ Interest; and an independent Parliamentary Commissioner for Standards etc. Code of conduct together with the Guide to the Rules relating to the Conduct of Members was adopted by the House of Commons in July, 1996. The Seventh Report of the Committee on Standards in Public Life (the Neill Committee) recommended that the House of Lords adopt a code of conduct. The House of Lords Code of Conduct came into effect on 31 March, 2002. (ii) Australia On 21 June, 1995, ‘A Framework of Ethical Principles for Members and Senators’ was tabled in the House of Representatives and the Senate. An additional framework covering Ministers and Presiding Officers titled ‘A Framework of Ethical Principles for Ministers and Presiding Officers’ was also tabled. The Code of Conduct has not been adopted by the House of Representatives or the Senate to date. The conduct of members within Parliament is guided by the standing orders. (iii) Canada The office of Ethics Counsellor was created in June, 1994 and has responsibility of the Conflict of Interest and Post-Employment Code for Public Office Holders, the Lobbyists Registration Act and the Lobbyists Code of Conduct. There is, however, no Code of Conduct for Members of Parliament. 18 (iv) New Zealand There is no Code of Conduct for Members of Parliament. (v) United States Under the US Constitution (Article 1, Section 5) the House of Representatives and the Senate are responsible for establishing rules to govern the conduct of their members, as well as judging members who are alleged to have violated those rules. The Senate Select Committee on Ethics publishes a summary of the Code of Official Conduct (Senate Rules 34-43) and the Senate Ethics Manual. The House of Representatives Committee on Standards of Official Conduct has jurisdiction over rules and statutes governing the conduct of members while performing their official duties. The Code of Official Conduct (Rule XXIII) is found in the House of Representative Rules. (vi) South Africa There is a Code of Conduct for legislators. (vii) India The Committee note that insofar as India is concerned, barring a solitary instance in 1956, when a member of Lok Sabha was expelled from the membership of the House for canvassing support and making propaganda in the House on behalf of a business association in return for financial and other advantage, there had been practically no instances of unethical conduct by members till 2005. Consequently, therefore, the endeavours hitherto made in the country have been largely directed towards maintaining discipline and decorum in the House rather than on ensuring overall ethical conduct of members as would be apparent from the details given below.
38. The Presiding Officers’ Conference held at Gandhinagar in Gujarat in May, 1992, suggested convening of an All India Conference where, besides Presiding Officers, all those concerned with the business of the House whether in Government or in Opposition should be invited to deliberate on the issue of discipline and decorum in the legislatures.
39. A two day High Level Conference of Presiding Officers, Leaders of Parties, Ministers of Parliamentary Affairs, Whips, members and Senior Officers of Parliament and State Legislatures was, accordingly
19 held in the Central Hall of Parliament in New Delhi on 23 and 24 September, 1992. During the Conference, though the delegates deliberated at length on the issue of discipline and decorum and other related aspects for effective and orderly functioning of the parliamentary institutions, there was no consensus on the issue of the Code of Conduct. Ultimately, the Conference unanimously adopted a Resolution inter alia reiterating the responsibilities and duties of legislators; and suggesting that political parties evolve a Code of Conduct for their legislators and ensure its observance by them.
40. The Presiding Officers’ Conference held in New Delhi in October, 1996 deliberated upon the matter of conduct of members and adopted the following Resolution:—
“Conduct of the legislators inside and outside the House has come to be considered as a matter of very serious concern by the people in general. This has very grave implications for the dignity of the Legislatures and the future of the democracy. In this context, the constitution of Ethics Committees by Legislatures for ensuring basic standards of probity of the members should be examined with special reference to the establishment of such institutions by legislative bodies elsewhere in the world.”
41. At the Conference of Presiding Officers held at Chandigarh, on 28 and 29 June, 2001, the Presiding Officers deliberated on the “Need to evolve a Code of Conduct for legislators and steps to contain frequent adjournments of the Legislatures on account of interruptions.”
The Speaker, Lok Sabha while summing up the deliberations during the Conference inter alia observed that he proposed to convene a high level Conference of Presiding Officers, Leaders of Parties in Parliament and State Legislatures, Ministers of Parliamentary Affairs, Chief Whips and others to discuss measures to contain the trend of disorderly conduct by members and to effectively maintain discipline and decorum in the House.
42. Accordingly, Second High Level All India Conference of Presiding Officers, Chief Ministers, Ministers of Parliamentary Affairs, Leaders and Whips of Parties on the theme “Discipline and Decorum in Parliament and Legislatures of States and Union Territories” was organized in New Delhi on 25 November, 2001. The Conference expressed its concern that earlier efforts to curb what it called the “increasingly disturbing trend (of disorderly conduct in the House), have proved to be inadequate.” The Conference took serious note of this ominous trend and stated that the erosion of “the credibility of these representative institutions, also leads to public disillusionment with the very system of parliamentary democracy”.
20 The Conference unanimously adopted by its Resolution a complete code of conduct as also the procedure for dealing with complaints regarding breach of code of conduct and punishment for such breach. The Conference recommended that necessary changes be incorporated in the Rules of Procedure of Legislatures to facilitate implementation of the code of conduct. Some portions of the Code dealt with the general ethical principles which the legislators should abide by.
Ethics Committees in Parliament
43. The genesis of formation of Ethics Committees in Parliament can be traced to the resolution (para 40 above) adopted at the Conference held in New Delhi in October, 1996 which desired the legislatures to explore the possibility of constituting Ethics Committees. It is in pursuance of this resolution that endeavours for setting up of Ethics Committees in Indian Legislatures began in the right earnest.
44. The Committee of Privileges (Eleventh Lok Sabha) undertook the preliminary groundwork in this respect. After a detailed study, the Committee presented their report on ‘Ethics/Standards in Public Life, Privileges, Facilities to members and other related matters”. The pivotal recommendation in the Report was to rename the Committee of Privileges as Committee on Ethics and Privileges. This Report was presented to Speaker (Eleventh Lok Sabha) on 27 November, 1997. The Report which could not be laid on the Table of the House due to the dissolution of Eleventh Lok Sabha, was laid on the Table of the House during Twelfth Lok Sabha on 28 March, 1998 by the Secretary-General, Lok Sabha.
The recommendations made by the Committee of Privileges (Eleventh Lok Sabha) in their Ethics Report could not be considered due to premature dissolution of Eleventh and Twelfth Lok Sabhas. This unfinished task was taken up by the Committee of Privileges in Thirteenth Lok Sabha. After due deliberation, the Committee, without prejudice to the recommendations contained in the Ethics Report of their predecessor Committee, recommended in their First Report (presented to the Speaker, Lok Sabha on 4 April, 2000 and laid on the Table of the House on 18 April, 2000) that a separate Ethics Committee be constituted in Lok Sabha.
Constitution of Ethics Committee in Rajya Sabha
45. An Ethics Committee of Rajya Sabha was constituted on 4 March, 1997, which has the distinction of being the first Ethics Committee in India.
21 Constitution of Ethics Committee in Lok Sabha 46. During Thirteenth Lok Sabha, on 16 May, 2000, the Speaker (13th Lok Sabha) constituted a 15 member Committee on Ethics in Lok Sabha. Ethics Reports 47. The Committee of Privileges (11th Lok Sabha) and Ethics Committee of Lok Sabha and Rajya Sabha have submitted extensive reports on ethical norms and code of conduct and the measure for their implementation. The highlights of the Reports are as under:— Ethics Report of Committee of Privileges (11th Lok Sabha) 48. The Report of the Committee of Privileges (Eleventh Lok Sabha) on “Ethics, Standards in Public Life, Privileges, Facilities to members and other related matters” dwelt in detail upon the various aspects of parliamentary privileges, obligation of members to the electorate and need for laying down Code of Conduct and standards for members. Broadly speaking, this Report contained recommendations regarding disclosure of interest by members, Code of Conduct for members, Anti-Defection Law, Criminalisation of politics and broad parameters of procedure for dealing with these complaints. Ethics Committee (13th Lok Sabha) First Report 49. The Committee presented their First Report to the Speaker, Lok Sabha on 31 August, 2001. The Report was laid on the Table of the House on 22 November, 2001 and adopted by the House on 16 May, 2002. The Committee, inter alia noted that the norms of ethical behaviour for members have been adequately provided for in the Rules of Procedure and Conduct of Business in Lok Sabha, Directions by the Speaker and in the conventions which have evolved over the years on the basis of recommendations made by various Committees in their reports. The Committee also recommended inter alia that members should abide by the following general ethical principles, which are not based on any provisions in Rules/Directions/Conventions:— • Members must utilise their position to advance general well-being of the people. • In case of conflict between their personal interest and public interest, they must resolve the conflict so that personal interests are subordinate to the duty of their public office.
22 • Conflict between private financial/family interest should be resolved in a manner that the public interest is not jeopardized. • Members holding public offices should use public resources in such a manner as may lead to public good. • Members should keep uppermost in their mind the fundamental duties listed in Part-IV A of the Constitution. • Members should maintain high standards of morality, dignity, decency and values in public life.
The Committee recommended that it may be made mandatory for each member of Lok Sabha to disclose his/her income, assets and liabilities. For this purpose, members may be required to file a financial disclosure statement immediately after their election to the Lok Sabha. A “Register of Members’ Interests” may be maintained in the Lok Sabha Secretariat on the basis of information furnished by members. The Register should be treated as confidential and the information contained therein should be made available to any complainant only with the permission of the Speaker, Lok Sabha.
Second Report
50. In their Second Report presented to Lok Sabha on 20 November, 2002, the Committee, noting that since there were no provisions in the Rules of Procedure and Conduct of Business in Lok Sabha for Ethics Committee, felt that rules might be incorporated in the Rules of Procedure providing for constitution of a Committee on Ethics and laying down its functions etc.
The Committee also felt that there was no necessity for any further action on the recommendations made by them in their First Report with regard to financial disclosures and declaration of interests by members as that requirement had been fully met with the promulgation of the Representatives of the People (Amendment) Ordinance, 2002 [later enacted as the Representation of the People (Third Amendment) Act, 2002].
The Committee recommended that the Code of Conduct for Legislators which was unanimously adopted by the All India Conference of Presiding Officers, Chief Ministers, Leaders etc. on 25 November, 2001 at New Delhi may be suitably incorporated in the Rules of Procedure and Conduct of Business in Lok Sabha.
The Committee also recommended that appropriate rules may be incorporated in the Rules of Procedure laying down the procedure for making complaints relating to unethical conduct of a member.
23 Ethics Committee (14th Lok Sabha) First Report 51. The First Report of the Committee on Ethics was laid on the Table of the House on 25 August, 2006. The Committee inter alia recommended incorporation in the Rules of Procedure and Conduct of Business in Lok Sabha, of a new Chapter XXA relating to ‘Procedure for ethics complaints’. The Committee further recommended inclusion of new rules 316A to 316E which inter alia provide for the nomination of Committee on Ethics by the Speaker consisting of 15 members to oversee the moral and ethical conduct of members; examine every complaint relating to unethical conduct of a member referred to it and make such recommendations as it may deem fit; and frame rules specifying acts which constitute unethical conduct. As per the proposed Rules— (i) the Committee may also suo motu take up for examination and investigation matters relating to ethics, including those relating to unethical conduct by members wherever felt necessary and make such recommendations as it may deem fit; (ii) The report of the Committee may also state the procedure to be followed by the House in giving effect to the recommendations made by the Committee. Second Report 52. The Second Report of the Committee was laid on the Table of the House on 25 August, 2006. The matter dealt with the Report pertaining to a complaint against a member for unethical behaviour involving misuse of Car Parking Label issued to him. In view of the fact that there was no mala-fide intent on the part of the member and considering the clarification given by him and apology tendered by him, the Committee recommended that the matter may be treated as closed. Ethics Committee, Rajya Sabha. 53. The Ethics Committee of Rajya Sabha have presented eight reports so far. First to Fourth and Sixth Reports of the Committee wholly relate to ethical matters in general. First Report 54. In their First Report, which was presented to the House on 8 December, 1998 and adopted by the House on 15 December, 1999, the Committee observed and recommended as follows:— • It was mainly the responsibility of the political parties to prevent persons having criminal record entering political process and urged upon the political parties to regulate the conduct of their members.
24 • While opining against subjecting the members of Parliament to the disciplinary authority of an agency outside the jurisdiction of the House, the Committee recommended making the Ethics Committee a permanent institution in the Rajya Sabha. • The Committee emphasized the need for holding elections to Rajya Sabha and Legislative Councils in States by open ballot, with a view to curbing cross-voting by some electors going against their party directions. • The Committee stressed upon the urgent need for considering issues such as revision of ceiling on election expenses, Corporate or State funding of political parties and its ramifications, foreign donations to political parties, etc. • The Committee suggested suitable measures for minimizing the role of money-power in elections. • The Committee also recommended a framework of a Code of Conduct prescribing certain do’s and don’ts for the members of Rajya Sabha. Second Report 55. In their Second Report, which was presented to the House on 13 December, 1999 and agreed to by the House on 15 December, 1999, the Committee proposed and recommended as under:— • Members should declare their assets and liabilities and those of their family members. •A “Register of members’ Interests” be maintained under the authority of the House. Register may be made available to the members for inspection on demand. In case member does not furnish the required information or furnishes information which is found to be incorrect in material respects, the Committee may report the matter to the House. • In the event of a proved unethical or other misconduct or a breach of the code, the Committee may recommend to the House the imposition of one or more of such penalties as censure; reprimand; suspension from the House for a specific period; or any other penalty considered appropriate by it. Third Report 56. The Committee in their Report which was presented to House on 12 August, 2002 and adopted on 9 December, 2003, recommended:— •A holistic view needs to be taken while dealing with the issues relating to decline in standards of behaviour of the members and that ethical questions cannot be dealt with by legislation alone. 25 • Emphasized the role of political parties and called upon the people not to elect persons with ‘dubious’ record to legislative bodies. • Emphasised the urgency to bring about the much desired though delayed electoral reforms for cleansing public life. • Called upon the Legislators of the States and Union Territories to set up Ethics Committees in their respective Houses.
Fourth Report
57. In their Fourth Report presented to the Houses on 14 March, 2005 and adopted on 28 April, 2005, the Committee inter alia recommended:—
• After initial declarations of assets and liabilities under sub-rule (1) of rule 3 of the Members of Rajya Sabha (Declaration of Assets and Liabilities) Rules, 2004, changes, if any, as on 31 March every year, may be notified within ninety days from that date, instead of ninety days of changes occurring as enumerated in sub-rule (2) of rule 3. • Members may furnish information regarding five pecuniary interests, viz., Remunerative Directorship, Regular Remunerated Activity, Shareholding of Controlling Nature, Paid Consultancy, Professional/Engagement. These interests may be registered in the “Register of Members’ Interest” under sub-rule (1) of rule 293 of the Rules of Procedure in the prescribed form. • Recommended that the Code of Conduct as enumerated in the First Report may be widely disseminated.
Fifth Report
58. This Report which was presented to House on 13 December, 2005, was a preliminary report in cash for query case wherein the member complained against was put under suspension till disposal of the matter.
Sixth Report
59. In their Sixth Report which was presented to the House on 15 December, 2005 and adopted on 21 march, 2006, the Committee inter alia adopted the procedure under sub-rule (3) of rule 293 for giving information contained in the “Register of Members’ Interests” to the general public.
26 Seventh Report
60. Committee’s Seventh Report was agreed to by the House on 23 December, 2005. The Committee recommended expulsion of the member complained against in cash for query case.
Eighth Report
61. In their Eighth Report agreed to by the House on 21 March, 2006, the Committee recommended expulsion of the member complained against in MPLADS case.
62. A slew of cases involving unethical conduct by members of the House that came to light post 2004 (referred to in para 30 above) has put an entirely different perspective on the problem of misconduct by members. No longer the problem is restricted to misconduct by members in the House; it has now assumed larger and more alarming proportions. Members are now increasingly accused of either misusing facilities and privileges available to them or indulging in unethical conduct taking undue advantage of their status and position as a member. Time is, therefore, ripe to address this problem in all seriousness.
The Committee are in agreement with the Committee on Ethics, Thirteenth Lok Sabha that there are adequate provisions in the Rules of Procedure and Conduct of Business in Lok Sabha, Directions by the Speaker, Lok Sabha and conventions that have evolved over the years to regulate the conduct of members inside the House. What is required, therefore, is an effective ethics regime to regulate overall ethical behaviour and conduct of members.
Need for Effective Ethics Regime
63. Minimizing misconduct by legislators requires creation of an ‘ethics regime’—a set of standards to govern the conduct of members and a system to administer those standards. ‘The problem is not that legislators are inherently corrupt, or will necessarily become so. Rather, the nature of their position requires legislators to continually face ethical dilemmas. Legislators must constantly decide among competing interests : national, constituency-based, political and personal. The conflict is amplified by the fact that most legislators simultaneously hold positions in the private sector, and as such are perpetually “changing hats” from one position to other. In addition, legislators are subject to intense scrutiny by the media, non-governmental organizations and the public at large. Given the environment, it is in the best interests of the legislators to develop a code of conduct and financial disclosure rules that guide difficult decisions and protect against false accusations. Over time, an ethics regime creates norms whereby proper conduct can become second nature. In sum, a
27 comprehensive and successful ethics regime can serve as a map by which legislators can navigate treacherous waters of political life.’11 It is important for legislators to have clear and unambiguously agreed, understanding of what is proper conduct and of what is not. This is the ground on which successful ethics regimes can be built.12 64. According to National Democratic Institute of International Affairs a comparative study13 done by them of twenty countries at all stages of democratic development “demonstrates that comprehensive ethics regimes generally comprise of three components: (i) general code of conduct outlining expected behaviour of legislators; (ii) formal and specific ethics rules detailing requirements necessary to fulfil such a code, including financial disclosure outlines; and (iii) a regulatory institution to enforce those rules and advise legislators on conduct issues.” Code of Ethics or Code of Conduct
65. Ethics regimes may be created by adopting code of conduct, code of ethics, ethics rules or guidelines. The question, however, arises, are code of ethics and code of conduct one and the same thing? If they are different, what is the difference? According to National Democratic Institute Research Paper,14 the major difference between them is that codes of conduct are general and codes of ethics are specific. It says “unlike ethics rules that dictate expected behaviour in great detail, codes of conduct are basic documents written in easily understood language that set forth broad goals and objectives that legislators seek to achieve”. In sum, the content of a code of conduct is general and its nature is aspirational, while the content of code of ethics is specific and its nature is prescriptive. Dr. Andrew Brien, Consultant, Australian Parliamentary Library, holds an entirely opposite view. He says, “Code of Ethics and code of conduct are often used interchangeably. There is, however, an important distinction. A code of ethics identifies those ethical principles and values that are regarded as the foundation of an organisation....such codes are usually aspirational, rather than prescriptive”. In contrast, “codes of conduct specify certain rules for behaviour, or standards to which a person’s behaviour must comply. They are more specific than codes of ethics, in terms of the actions prescribed and proscribed. They leave less to discretion; they are less aspirational and more prescriptive.”15
11 Legislative Ethics: A Comparative Analysis; Legislative Research Paper No. 4, 1999; National Democratic Institute for Internaitonal Affairs, USA. 12 The World Bank Institute Working Paper, Supra. 13 National Democratic Institute Working Paper, Supra. 14 National Democratic Institute Working Paper, Supra. 15 Parliament of Australia, Parliament Library Research Paper 2, 1998-99.
28 Ann Florini16 says that codes of ethics and codes of conduct can be either prescriptive or aspirational. According to Willa Bruce,17 “neither legislators nor the general public understand what a code of ethics really is...…….because of that confusion, many government entities have passed legislation that they erroneously call code of ethics”. But codes of ethics should not specify “sanctions for violation of their provisions.” The World Bank Institute Paper tries to resolve the issue as follows:— ‘Ethics codes ..……….. provide a set of standard for appropriate conduct for members of the profession that issues the code.……... Codes of conduct are quite different from codes of ethics. Codes of conduct are more concrete and practical than ethics codes for they represent executive orders or legislatively defined and enforceable behavioural standards with sanctions for violation.” 66. The Committee are inclined to agree with the above definition and are, therefore, of the view that codes of ethics can lay down ethical principles or guidelines for legislators but if those ethical principles have to be translated into ethical conduct, there ought to be a code of conduct rather than a code of ethical behaviour for legislators. Can Code of Conduct ensure Ethical Behaviour 67. Every human being seems to face, at some point of time in his life, the question ‘Why should I act ethically?’. The question becomes all the more nagging when he sees around him everybody else stepping across the line and gaining advantage. The argument is ‘What does it matter as long as I don’t get caught?’ Skip Moen says, “it may be a small indiscretion or a major infraction, but the thought process is the same. It is never a question of legitimacy. We all know that the.... action is not legitimate.... If legislation were a sufficient condition for ethical behaviour, we would all drive the speed limit all the time... But we routinely ignore the law based on a ‘risk factor’ assessment of the chances of getting caught.... Rules don’t matter when we think the risk is low.”18 Integrity Commissioner (Mr. Gregory Evans) of Ontario, Canada has observed:— “No administrative rules or codes of conduct are required to monitor the conduct of an honourable member, nor will they restrict the misbehaviour of the member who lacks requisite moral integrity.”
16 Ann Florini, “Business and Global Governance: The Growing Role of Corporate Codes of Conduct.” 17 Willa Bruce “Codes of Ethics and Codes of Conduct: Perceived Contribution to the Practice of Ethics in Local Government, Public Integrity Annual, CST & ASPA, 1996. 18 Skip Moen, Ph.D., Ethical Authority : It is not Legislation, secretsofsuccess.com. 29 According to Dr. Andrew Brien, the purpose of a code is not so much to control the behaviour of parliamentarians but to “set public standards by which the behaviour of parliamentarians can be assessed, provide a basis for assessing proposed actions and so guide behaviour, provide an agreed foundation for responding to behaviour that is considered unacceptable, and assure and reassure the community that the trust placed in parliamentarians is well placed.”
Are the Codes of Conduct then useless?
68. The Committee are also convinced that codes of conduct will not by themselves create honesty or integrity or stop legislators from betraying their public trust, if they have a mind to do so. Nobody has claimed that that is a code’s chief virtue.
The aim of the codes of conduct is to raise the standards of conduct of legislators by prescribing and proscribing behaviour as well as setting goals to aspire towards.
Codes are not merely cudgels; they are beacons.
Codes can, therefore, provide the foundation for the development of responsible and honourable action.
The Committee are, therefore, convinced that if an effective ethics regime has to be established in our legislatures, it is of paramount importance to have a code of conduct for legislators.
69. Before giving a thought to the form and content of the code of conduct, the Committee would like to briefly dwell upon the importance of resolving conflict of interest by legislators, provisions for which ought to invariably form an integral part of a code of conduct.
Conflict of Interest
70. “Throughout the world, people are increasingly angry with the ways in which public power has been manipulated for private profit. The messages we get from our national chapters in every corner of the globe is that they want to see clear and clearly understood conflict of interest rules...... ”19
Peter Eigen, Chairman, Transparency International
71. The fundamental principle of all governance is that public service is public trust. Legislators, being public servants, should, therefore, exercise their powers for the welfare of the people, that is, in public interest.
19 As quoted in Working Paper on “Conflict of Interest: Legislators, Ministers and Public Officials”, prepared by General Carney for Transparency International.
30 The United States Senate Code of Official Conduct contains the following declaration of policy:—
“The ideal concept of public office, expressed by the words ‘public office is a public trust’, signifies that the officer has been entrusted with public power by the people; that the officer holds this power in trust to be used only for their benefit and never for the benefit of himself or of a few; and that the officer must never conduct his own affairs so as to infringe on the public trust. All official conduct of Members of the Senate should be guided by this paramount concept of public office.”
72. The Committee, however, note that with ever-widening field of responsibilities and activities of modern-day legislators, it is becoming increasingly difficult to avoid conflict of interest. Legislators perhaps, face the widest range of potentially conflicting interests: representational, personal, pecuniary, non-pecuniary, etc.
According to International Association of Business and Parliament, “Advancing a system of parliamentary transparency is not an easy task. It requires members to disclose more information about their private life and interests. However, it is important to clarify that by becoming more transparent, Parliament creates new safeguards; insurance policies for those members who abide by principles, while reducing opportunities for misconduct and inappropriate behaviour.”20
73. The levels at which conflict of interest takes place has been discussed in great detail in Transparency International Working Paper on Conflict of Interest : Legislators, Ministers and Public Officials. The paper says:—
“Certain interests are personally inherent: as a resident of a town or province, as a parent, spouse or child, as a female or male, as indigenous or non-indigenous and so on. Other interests arise from representative role: as a member of the legislature, as a representative of his or her electorate and as a member of a political party. Further interests arise from outside activities: as a member of a non-political organisation, as a businessman, professional, farmer, grazier or employee. These wide ranging interests include, therefore, both pecuniary and non-pecuniary interests....
Representational interests raise their own peculiar difficulties. Which has primacy: the party, the electorate or the nation? ....Even within the electorate, the conflicting interests of the constituents need to be handled.”
20 Ten steps towards a Transparent Parliament, International Association of Business and Parliament, 2006.
31 Giving a classic example of conflict of interest, the Paper says:— “How does a legislator decide whether to support proposed legislation which restricts the logging of timber when faced with the following conflict of interest: his or her party supports a policy of environmental protection, a significant part of the electorate represented depends on forestry industry, and the legislator’s family operates a transport business in connection with that industry?” 74. The paper suggests that the personal interest is too remote from the public interest and there is always the risk that this interest will disturb the process of deciding what is in the best interest of the society as a whole. As for the other two considerations, it is not necessary to decide which is more important; it is necessary to resolve them by weighing the competing arguments which may entail reaching a compromise, for example to allow the forestry industry to operate within the ecologically sustainable development guidelines. 75. Maureen Maloney gives21 another twist to the problem while posing these queries : Should a legislator who is also a farmer abstain from voting on a legislative proposal for increased farming subsidies? If he abstains, what about the interest of his constituents? Should it make any difference if only a handful of big farmers will be benefited by the subsidy. If it should make a difference, is ethics relative to numbers? What should be the choice of the legislator if he is also one of the handful of farmers? What if he is not directly benefited but his relatives or close friends will be? These are very complex questions and it may perhaps not be possible to answer them in straightforward “yes” or “no”. 76. Professor Paul Finn summed up the dilemma succinctly when he appeared before the New South Wales Parliamentary ICAC Committee in 1992:— “We have to realise that public office is based on conflict between duty and interest. We would be deluding ourselves if we did not start on the premise that politics is concerned about compromise, partiality and self-interest behaviour. The problematic question is where on the spectrum does that behaviour become unacceptable?” 77. Despite different types of potential conflicts, the legislators must endeavour to always act in the public interest. Ethically that requires in each case, the exclusion of all irrelevant considerations. Which of those interests are ethically irrelevant depends on the risk each interest poses to the process of decision making. At the end of the day, the
21 Speech delivered at Inaugural Symposium of the Sheldon Chumir Foundation on “Ethics, Leadership and Government” in category in December, 2000.
32 obligation to act in public interest requires that precedence be given to the public interest over the private and personal interest.
78. The Special Joint Committee on Conflict of Interests of the 34th Parliament of Canada in its Report presented to the House in 1992, observed:—
“We are persuaded that conflicts of interest will arise; in itself there is nothing morally wrong or heinous about having a conflict of interest. What is important is not that a member insulates him or herself to avoid conflicts of interest arising, but that clear rules and procedures be established to ensure that the conflict is resolved in public interest....”
79. There is also a school of thought which says that legislators should arrange their private affairs so as to prevent conflicts of interests from arising. The Committee, however, feel that it is an ideal state of affairs that one may strive to achieve but it is easier said than done. The preventive approach sounds good but seems to be impractical. The Committee are in agreement with the recommendation of the Joint Committee of Canada that clear rules and procedures should be established to ensure that conflict is always resolved in public interest which, in the humble opinion of the Committee can only be ensured by making provisions to this effect in the code of conduct.
Code of Conduct—Form and Content
80. Convinced as the Committee are that there should be a code of conduct for legislators, the question that arises is: What should be the form and content of the code?
The Committee feel that form is not material as long as the code: (i) lays down guiding principles for ethical behaviour of legislators; (ii) defines in general and broad terms as to what acts would amount to misconduct; (iii) lays down guidelines for resolving conflict of interest; and (iv) provides for a mechanism for punishing legislators found guilty of misconduct.
81. The core issues the Committee considered in deciding upon the contents of the code of conduct were:—
• What should be the guiding principles of ethical behaviour? • Should misconduct be defined in the code? • If yes, what should be the appropriate definition of misconduct? • What types of conduct should come in the category of misconduct? 33 • Should penal offences committed by legislators also be treated as misconduct. • If a misconduct committed by a legislator also amounts to a penal offence, should the House take cognizance of the misconduct without waiting for the verdict of the court in respect of penal offence? • How should the conflict of interest issue be incorporated in the code of conduct? • Should there be an implementation mechanism for code of conduct? • What should be the punishment for misconduct?
Committee’s views on the above core issues have been detailed in succeeding paragraphs under the heading “Conclusions” and their proposals in the matter under the heading “Recommendations”.
VI. Conclusions
Guiding Principles of Ethical Behaviour
82. The First Report of the Committee on Standards in Public Life of U.K. lays down seven principles of public life, viz., Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership.
The Committee feel that the above mentioned seven principles cover almost the entire gamut of public life and, therefore, these should form part of code of conduct. The Committee would, however, like to add the principles of responsibility and public interest also to the above principles.
Definition of misconduct
83. Misconduct may be loosely defined as conduct that is not ethical or conduct unbecoming of a member of Parliament. However, the moment an effort is made to enumerate what actions or omissions on the part of a member would amount to misconduct, we are faced with a problem. In the first place, it may not be possible to give an exhaustive list of all such actions/omissions. Secondly, the ingenuity of human mind will always find new ways to bypass any set of rules or regulations.
The Committee are, therefore, of the considered view that it may not be prudent to try to give a comprehensive definition of misconduct in the code of conduct.
34 84. Misconduct may, however, be broadly defined as conduct unbecoming of a member of Parliament which may include acts of misuse and abuse by members of their powers, privileges and immunities or rights and facilities enjoyed by them by virtue of being a member or of their status and position as such member, either in discharge of their parliamentary duties or in discharge of their public duties. Whether acts done by members in their personal or private life should also be covered in the definition of misconduct has been discussed in succeeding paragraphs.
What type of conduct should come in the category of misconduct?
85. As already stated by the Committee, it may neither be possible nor prudent to give an exhaustive list of misconduct in the code. It is well known that all acts of a member can be broadly categorized as done (i) in performance of his parliamentary duties; (ii) in pursuance of his duties in public life; and (iii) in his private life. While there is no doubt in anybody’s mind that misconduct by a member while performing his parliamentary duties or in performance of his duties in public life should be covered under the code, the problem arises in respect of misconduct by a member in his personal life. The Committee note that the House of Commons (U.K.) Code of Conduct “applies to members in all aspects of their public life. It does not seek to regulate what members do in their purely personal and private lives”. It can, however, be argued that if a member indulges in misconduct in his personal life, he, besides bringing disrepute to himself, also indirectly denigrates the dignity of his colleagues and that of the institution of Parliament. For example, if a member is involved in a case of cheating, it has apparently nothing to do with his functions as a member or with his public life but the impression that is likely to be created in the minds of the people at large is that all members must be indulging in similar acts. The temptation to include such acts also in the category of misconduct is, therefore, very strong. The Committee, however, feel that they would be treading on a very treacherous ground if they were to recommend accordingly. If conduct, which is purely in the nature of a criminal or, for that matter a civil offence, having no nexus at all with the members’ parliamentary or public duties, is brought within the purview of misconduct, it is likely to give rise to serious complications. In the first place, it is likely to result in double jeopardy, as the member would be punishable under the law of the land as well as under the code of conduct. Secondly, the Committee/ House would be required to intervene in the matters of purely personal nature which, the Committee feel, would be entirely undesirable.
86. The Committee are, therefore, of the considered view that misconduct or misdemeanour committed by a member purely in his
35 personal capacity must not be treated as misconduct for the purpose of the code of conduct. The point as to whether and in what circumstances such conduct may come in the category of misconduct has been discussed in greater detail in the succeeding paragraphs.
Should penal offences committed by legislators be treated as misconduct?
87. As already stated by the Committee, the yardstick for deciding such questions should be whether in the course of committing the act, the member has misused or abused his powers, privileges or immunities or the rights and facilities enjoyed by him as a member or even his status or position as a member.
88. The Committee are of the view that if the factum of such misuse or abuse is established, any action – be it in the domain of member’s parliamentary duties, his public life or even his personal or private life – should be construed to be a misconduct and should be covered under the code of conduct. The rationale behind this line of thinking is that if a member in his personal or private life derives undue advantage of his powers, privileges, immunities, rights, facilities, position or status in committing an act of misconduct, he brings disrepute to his colleagues as well as to the institution of Parliament and he should, therefore, face the consequences of such action on his part.
Cognizance of misconduct by Parliament
89. The Committee faced a big dilemma while formulating their views on this issue. The Committee considered a scenario where a case comes up involving an alleged misconduct by a member, which also amounts to a criminal offence. In such a situation, there will be parallel inquiries against the member – one by the House or a Committee of the House for alleged misconduct and the other by the investigating agencies like police etc. for the criminal offence. It may be argued that any action against the member for alleged misconduct, under such circumstances, should be taken only after his guilt has been proved in the court of law. Argument in favour of such a course of action would be that a parliamentary committee may not have the means and expertise to investigate the case in the same manner as it is investigated by the police authorities and it would, therefore, be appropriate to await the outcome of the case in the court. But then this procedure in all probability would take a lot of time, in fact many years, which may go beyond the tenure of a Lok Sabha. Such a situation would give rise to an adverse impression among general public that this is a deliberate ploy by the fraternity of legislators to protect the legislators complained against from in-house action.
36 90. The other course of action may be that the House/Committee may examine the matter without waiting for the outcome of the criminal case. However, an argument could well be advanced against this approach that investigation of the matter by the House or a Committee thereof, independent of the investigation by law enforcing agencies and subsequent decision by a court of law, is also fraught with serious ramifications. Let us imagine a situation where a House Committee looking into such a complaint recommends punishment like expulsion of the concerned member and thereafter House adopts a motion expelling the member. If subsequently, the concerned member is exonerated of the charges made against him by a court of law, such a member would not only have incurred financial loss, but more importantly his reputation would have been sullied, which is an irreparable loss for any public figure. It is the cardinal principle of jurisprudence that hundred guilty persons may go scot free but one innocent person should not be punished. Of late, the Media has been largely instrumental in bringing misdemeanours of members and others to public notice through what are commonly known as ‘sting operations’. Experience has, however, shown that all sting operations are not above board. Possibility of persons settling scores with political opponents and framing them with the help of unscrupulous media persons cannot be ruled out. Having regard to such dangers, it became all the more necessary for the Committee to tread very cautiously while formulating their views on this point.
91. The Committee, therefore, gave very serious consideration to this issue. After detailed deliberations, the Committee realised that the issue can be resolved only through exercising hard options. If a legislator has to pay the price of being a public servant in such situations, then so be it. The Committee, therefore, arrived at the conclusion that whenever a matter regarding misconduct of a member comes up, whether involving a penal offence or otherwise, it becomes imperative for the concerned legislature to which the member belongs to take cognizance of such misconduct with alacrity and promptitude and investigate the same. The Committee concedes that fears that such an investigation could lead to piquant situations as mentioned above are not totally misplaced. But the fears are not totally justified either. Experience has shown that though the Parliamentary Committees may neither have the expertise of an investigating agency like police nor the judicial acumen and training of a court, they certainly have the sagacity and wisdom in enough measure, and then some, to be able to follow rules of natural justice and to ensure that any action is recommended against the member only after his guilt has been proved beyond reasonable doubt. It needs to be emphasized here that thrust of an inquiry by a Parliamentary Committee into such matters is basically upon the moral and ethical aspect of the issue. Moral and 37 ethical offences need not necessarily constitute offences under the penal statutes and it is quite possible that perpetrators of such offences may escape punishment when tried in courts of law. For moral and ethical offences and conducts unbecoming of a member of Parliament the penal jurisdiction in fact lies only with the legislatures. The Committee are, therefore, firmly of the view that the matters regarding misconduct of members, even if they involve penal offences, need to be investigated independent of investigation by the law enforcing agencies. Conflict of Interest 92. The Committee have already discussed the matter in great detail. Swami Vivekanand has said: “That which is selfish is immoral, that which is unselfish is moral.” 93. It is well established parliamentary convention that a member having a personal, pecuniary or direct interest in a matter before the House is required, while participating in the proceedings, to declare the nature of interest. It is expected of a member, as a matter of propriety, to decide for himself whether by casting his vote in a division in the House on the matter, his judgement is likely to be deflected from the straight line of public policy by that interest. Rule 371 of the Rules of Procedure and Conduct of Business in Lok Sabha provides that vote of a member can be challenged on the ground of personal, pecuniary or direct interest and can even be disallowed by the Speaker if, in his opinion, it has been validly challenged. Rule 255 of the Rules provides that objection can also be taken to the inclusion of a member in a Parliamentary 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. In terms of provisions of this Rule, if the Speaker holds that the member in question has a personal, pecuniary or direct interest in the matter before the Committee, he ceases to be a member thereof forthwith, provided the proceedings of the sitting of the Committee at which such member was present are not in any way affected by the decision by the Speaker. In terms of provisions of Direction 52A of the Directions by the Speaker, Lok Sabha, where a member of a Committee has a personal, pecuniary or direct interest in any matter which is to be considered by the Committee, it is required of him to state his interest therein to 38 the Speaker through the Chairman of the Committee. Having considered the matter, the Speaker gives his decision which is binding. 94. The provisions have, however, not proved to be very effective in the absence of a Register of Members’ Interest. The Committee, therefore, feel that provisions relating to Register of Members’ Interest and guidelines to members for resolution of conflict of interest should find a place in the code of conduct. There is increasing feeling among people that members misuse their position for bettering their interests. The prevailing misgivings need to be dispelled. Though, as already mentioned, there are provisions in the Rules of Procedure and Directions by the Speaker to the effect that when a member of a Committee has a personal, pecuniary or direct interest in any matter which is to be considered by the Committee, it is required of him to declare the same, the Committee feel that these provisions need to be made more stringent. The Committee are of the view that a provision may be made to the effect that if a member has a personal, pecuniary or direct interest on any subject/ matter, he should not be nominated in the first place to the Departmentally Related Standing Committee, which normally examines such subjects/matters. Implementation mechanism for code of conduct 95. The Committee observe that there are conflicting views on the mechanism for code of conduct. One school of thought holds that the code of conduct should be implemented by an independent Commission or Institution. Others feel that discipline is internal to the legislature and therefore, a body like the Committee on Ethics or any other Committee may be constituted within the legislature to oversee the conduct of members. The main ground for criticism of the proposal to entrust the job of implementation to an independent commission is that members prefer to be judged by their peers rather than by outsiders. The main grounds for criticism of constituting committees of legislatures for the purpose is : (i) legislators turn into investigators and judges; (ii) legislators do not like to pass judgement upon colleagues and therefore, avoid being members of such committees; (iii) self-regulatory mechanism has little credibility with public; and (iv) committees can be partisan. 96. The Committee are, however, convinced that the best implementing mechanism for the code of conduct will be to entrust the job either to the Committee on Ethics or to some other Committee constituted for this specific purpose. 39 Punishment
97. The Committee are of the view that codes are useless unless there are penal provisions to act as deterrent.
98. The Committee had originally decided to recommend a Code of Conduct for members for adoption by Lok Sabha. They are, however, sadly disappointed with the response they received in the form of replies to the Questionnaire sent by the Committee Secretariat to sixty eminent persons and institutions in the country. The ten responses received constitute a paltry six per cent of total number to whom the Questionnaire was advanced.
99. While poor response from Leaders of political parties is understandable because this issue has always been an anathema to them, the lack of enthusiasm on the part of legal luminaries and particularly media persons—who are the most vociferous critics of declining ethical standards of legislators and do not let go of any opportunity of delivering homilies on the subject—in giving their valuable views and suggestion to the Committee, to put it mildly, is lamentable.
While a member indulging in misconduct tarnishes his image as well as his colleagues, the biggest hit is taken by the institution of Parliament and the political party of the member concerned.
100. The Committee, therefore, feel that any code to regulate the conduct of the members should also meet the approval of the majority of the political parties. There is also a practical aspect of the matter. If the code of conduct has to be made applicable to members, it would have to be adopted by the House. If there is no general consensus amongst political parties on the code, chances of its adoption in the House are very bleak. Since, as already stated, the response to the Questionnaire from the political parties has been very poor, the Committee are of the view that instead of suggesting a comprehensive code of conduct, they should recommend a broad framework of the code of conduct on which opinion of Leaders of political/legislature parties and others—if considered necessary—may be taken before giving it the final shape and adopting it. The Committee also feel that perhaps Leaders of political parties and others may feel more comfortable in formulating their views on a concrete code of conduct rather than on general questions (as were contained in the Questionnaire circulated by the Committee) on various aspects of ethical behaviour.
101. The Committee would like to conclude their observations by reiterating what they stated earlier (para 22 above). In the ultimate
40 analysis, ethics is a philosophy of life. Our moral values guide our behaviour and conduct. Either these values are inherent or we have to make conscious and concerted effort to imbibe and inculcate these values. Or else, these have to be enforced through a Codes of Conduct. Strict enforcement over a prolonged period of time may produce the desired result and ethical behaviour may become second nature.
In the end, the Committee would like to quote rule 4.1 of the South Africa Code of Conduct for Legislators which encapsulates the realistic context in which a code of conduct should be viewed:—
“No set of rules can bind effectively those who are not willing to observe their spirit, nor can any rule of law foresee all possible eventualities which may arise or be devised by human ingenuity. This code of conduct has been formulated in as simple and direct a manner as possible. Its success depends both first and last on the integrity and good sense of those to whom it applies. Therefore, where any doubt exists as to scope, application or meaning of any aspect of this code, the good faith of the member must be the guiding principle.”
Bertrand Russell has said:—
“Without civic morality communities perish; without personal morality their survival has no value.”
Swami Vivekanand has said:—
“Every successful man must have behind him somewhere, tremendous integrity, tremendous sincerity.”
Brihadaranyaka Upnishad says:—
“You are what your deep, driving desire is. As your desire is, so is your will. As your will is, so is your deed. As your deed is, so is your destiny.”
VII. Recommendation
102. The Committee accordingly recommend the following broad framework of a Code of Conduct for members of Lok Sabha, opinion on which may be elicited from Leaders of political/legislature parties and others—if considered necessary—so that the code may be adopted after due deliberation by those to whom it matters the most.
41 CODE OF CONDUCT FOR MEMBERS OF LOK SABHA
P R E A M B L E
This Code of Conduct is established to assist the Members of Lok Sabha to fulfil their parliamentary and public duties with honesty and dignity; uphold the highest ethical standards of conduct; maintain and enhance public confidence and trust in the integrity of each parliamentarian and the institution of parliament; perform their official duties and functions and arrange their private affairs in a manner that bears the closest public scrutiny—an obligation that may not be discharged by simply acting within the law; and to arrange their private affairs so that foreseeable real or apparent conflicts of interest may be prevented from arising, but if such a conflict does arise, to resolve it in a way that protects the public interest.
1. Short title
This code may be called the “Code of Conduct for Members of Lok Sabha”.
2. Definitions
In this Code, unless the context otherwise requires,—
“Committee” means the Committee on Ethics or any other Committee constituted for the purpose of examination and investigation of a complaint of misconduct against a member;
“Conflict of interest” means a situation in which a member has knowledge of his private pecuniary or non-pecuniary interest that is sufficient to influence the exercise of his public duties and responsibilities; or a situation in which a reasonably well informed person can have a reasonable apprehension that such a conflict of interest exists;
“House” means the House of the People (Lok Sabha)
“Material benefit” means a monetary benefit or a benefit of any other kind or in any other form;
“Member” means a member of the House of the People (Lok Sabha);
“Private interest” means pecuniary or non-pecuniary interests, other than those derived under an Act of Parliament, of a member, his spouse, his children, his relatives or friends;
42 “Public duty” means duties as a member inside or outside the House;
“Public interest” means the purpose which a member conscientiously believes to be most appropriate for the general welfare of the society;
“Register” means the Register of Members’ Interest maintained under para 8 of this Code;
“Registrable interest” means the pecuniary or non-pecuniary private interests of a member, his spouse, and his dependent children, and shall include—
(a) shares and other financial interests in a company or other corporate entity, (b) remunerated employment outside Parliament, (c) directorship or partnership, (d) consultancies, (e) sponsorships, (f) gifts and hospitalities from a source other than a family member, (g) any other benefit of material nature, (h) foreign travel, other than personal visits paid for by the member, business visits unrelated to the members’ role as a public representative or formal visits paid for by the State or the members’ party, (i) ownership and other interests in land and property, and (j) pensions.
“Secretariat” means the Lok Sabha Secretariat;
“Secretary-General” means the Secretary-General of the House of the People (Lok Sabha) and includes any person for the time being performing the duties of the Secretary-General;
“Speaker” means the Speaker of the House of the People (Lok Sabha).
3. General Ethical Principles : In carrying out their parliamentary and public duties, members shall observe the following general ethical principles of conduct:—
(i) Accountability : Members are accountable for their decisions and actions to public.
43 (ii) Honesty : Members have a duty to declare their private interest relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. (iii) Integrity : Members should not place themselves under any financial or other obligation to outside individuals or organizations that might influence them in performance of their duties as members. (iv) Objectivity : Members, while carrying out their personal duties, should make choices on merit. (v) Openness : Members should maintain as far as possible openness in their decisions and they should be ready to stand scrutiny of such decisions. (vi) Public Interest : Members should maintain and strengthen public’s trust and confidence in the institution of Parliament, by demonstrating the highest standards of professional competence, efficiency and effectiveness, upholding the Constitution and the laws of land and seeking to advance the public interest at all times. (vii) Responsibility : Members should ensure that their decisions conform to the principle of responsibility, that is, their decisions should not be reckless or negligent, but reflect a proper consideration of all relevant matters including the reasonably foreseeable consequences for those likely to be affected by them. (viii) Selflessness : Members should always take decisions in public interests. Their decisions should not be aimed at gaining financial or other material benefit for themselves, their family or friends. (ix) Leadership : Members should support and promote these principles by leadership and example.
44 4. Misconduct : Members shall not undertake any action that is unbecoming of members of Parliament or which involves misuse or abuse of the powers, privileges, immunities, rights or facilities enjoyed by them by virtue of being members or which involves misuse or abuse of their status or position as members either in discharge of their parliamentary duties or in discharge of their public duties or in their personal or private life.
5. Public Interest : Members, while performing their parliamentary or public duties, shall base their conduct on honest, reasonable and properly informed judgement about what will best advance the public interest and common good of the people.
6. Conflict of Interest : Members shall arrange their private affairs so as to prevent conflict of interest from arising.
7. Resolution of Conflict of Interest : Members, while performing their parliamentary and public duties, shall avoid conflict between their private interest and the public interest and resolve any conflict, should such a conflict arise between the two, at once and in favour of the public interest.
8. Registration and Declaration of Interests : Members shall fulfil consciously the requirements in respect of registration of their interests in the Register maintained for the purpose in the Secretariat and shall always draw attention to any relevant interest in any proceedings of the House or its Committees, or in any communication with Ministers, Government Departments or Executive Agencies.
9. Register of Members’ Interest : Every member shall furnish in the prescribed manner to the Secretary-General particulars of his registrable interests which shall be caused to be entered by the Secretary-General in the Register of Members’ Interest maintained in the Secretariat for this purpose.
10. Prohibition on voting : A member shall not vote on a question, in the House or a Committee of the House, in which he has a direct, pecuniary or personal interest.
11. Complaints : Complaints from members or from members of public, alleging that the conduct of a member is incompatible with this Code of Conduct, shall be addressed to the Speaker in writing and shall be accompanied by copies of documentary or other evidence relied upon by the complainant.
45 12. Procedure
(1) On receipt of a complaint, the Speaker shall cause copies of the complaint to be forwarded to the member against whom complaint has been made for furnishing his written comments within a specified period of time as may be prescribed. (2) On receipt of the written comments of the member, the Speaker may reject the complaint if, in his opinion, there is no merit in the complaint or, if he is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do, refer the complaint to the Committee for examination and investigation and making a report to him. (3) Speaker shall cause to be laid on the Table of Lok Sabha a copy of the Report of the Committee as soon as possible. (4) Action, if any, required to be taken on the Report of the Committee shall be taken on a motion adopted by the House.
13. Punishment : A member found guilty of having indulged in misconduct shall, on adoption of a motion by the House to that effect, be—
(i) Admonished; (ii) Reprimanded; (iii) Suspended from the service of the House and of the Committees of the House for a specified period; and/or (iv) Expelled from the House.
14. Punishment under the law of the land : Any punishment awarded by the House to a member found guilty of having indulged in misconduct shall be without prejudice to any legal action against the member if the misconduct also amounts to a penal offence.
NEW DELHI;V. KISHORE CHANDRA S. DEO, 19 March, 2008 Chairman, 07 Phalguna, 1929 (Saka) Committee to Inquire into Misconduct of Members of Lok Sabha.
46 MINUTES MINUTES OF THE FIRST SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS HELD ON FRIDAY, 18 MAY, 2007 IN COMMITTEE ROOM NO. 62, PARLIAMENT HOUSE, NEW DELHI
The Committee sat from 1200 hrs. to 1245 hrs.
PRESENT
Shri V. Kishore Chandra S. Deo—Chairman
MEMBERS
2. Shri Gurudas Dasgupta 3. Shri Anant Gangaram Geete 4. Shri C. Kuppusami 5. Prof. Vijay Kumar Malhotra 6. Shri Mohammad Salim 7. Shri Braja Kishore Tripathy 8. Shri Rajesh Verma 9. Shri Devendra Prasad Yadav
SECRETARIAT
1. Shri V.K. Sharma — Joint Secretary 2. Shri Ravindra Garimella — Deputy Secretary 3. Shri Ashok Sajwan — Deputy Secretary-II 4. Smt. Saroj Sharma — Under Secretary
2. At the outset the Chairman extended welcome to the members of the Inquiry Committee. The Committee, thereafter, held preliminary deliberations on the future course of action. The Chairman directed the Secretariat to have all the relevant documents/reports regarding conduct of members circulated to members of the Committee before the next sitting of the Committee to be held on 29 May, 2007 at 1130 hrs.
The Committee then adjourned.
49 MINUTES OF THE SECOND SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA HELD ON FRIDAY, 29 MAY, 2007 IN COMMITTEE ROOM NO. 53, PARLIAMENT HOUSE, NEW DELHI
The Committee sat from 1130 hrs. to 1230 hrs.
PRESENT
Shri V. Kishore Chandra S. Deo — Chairman
MEMBERS
2. Shri Gurudas Dasgupta 3. Shri Anant Gangaram Geete 4. Shri C. Kuppusami 5. Shri Mohammad Salim 6. Shri Braja Kishore Tripathy 7. Shri Rajesh Verma 8. Shri Devendra Prasad Yadav 9. Prof. Ram Gopal Yadav
SECRETARIAT
1. Shri Ashok Sajwan — Deputy Secretary-II 2. Smt. Saroj Sharma — Under Secretary
2. * * * * * *
3. The Committee then deliberated on the issue of misconduct of members. Members expressed their views.
The Chairman directed the Secretariat to circulate a note to the members of the Committee on various facets of misconduct well before its next sitting to be held on 14 June, 2007 at 11.30 hrs.
The Committee then adjourned.
*Omitted as paras relate to another case.
50 MINUTES OF THE THIRD SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA HELD ON THURSDAY, 14 JUNE, 2007 IN ROOM NO. 147, THIRD FLOOR, PARLIAMENT HOUSE, NEW DELHI
The Committee sat from 1600 hrs. to 1620 hrs.
PRESENT
Shri V. Kishore Chandra S. Deo — Chairman
MEMBERS
2. Shri Gurudas Dasgupta 3. Shri Anant Gangaram Geete 4. Prof. Vijay Kumar Malhotra 5. Shri Shriniwas Patil 6. Shri Braja Kishore Tripathy 7. Shri Devendra Prasad Yadav 8. Prof. Ram Gopal Yadav
SECRETARIAT
1. Shri V.K. Sharma — Joint Secretary 2. Shri Ashok Sajwan — Deputy Secretary-II 3. Smt. Saroj Sharma — Under Secretary
2. * * * * * *
3. The Committee then took up for consideration the Note circulated by the Secretariat on various facets of misconduct and basic attributes of ‘Standards of Conduct/Behaviour expected of members’. Members stated that as they needed some more time to study the Note, the matter might be discussed at the next sitting. The Chairman agreed and directed the Secretariat to prepare in the meantime a Questionnaire for eliciting views of eminent persons, jurists and intellectuals in the matter which might also be considered by the Committee at their next sitting.
The Committee then adjourned.
*Omitted as paras relate to another case. 51 MINUTES OF THE FOURTH SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA HELD ON THURSDAY, 3 JULY, 2007 IN COMMITTEE ROOM NO. 53, FIRST FLOOR, PARLIAMENT HOUSE, NEW DELHI
The Committee sat from 1130 hrs. to 1235 hrs.
PRESENT
Shri V. Kishore Chandra S. Deo—Chairman
MEMBERS
2. Shri Gurudas Dasgupta 3. Shri C. Kuppusami 4. Prof. Vijay Kumar Malhotra 5. Shri Shriniwas Patil 6. Shri Braja Kishore Tripathy 7. Shri Rajesh Verma 8. Prof. Ram Gopal Yadav
SECRETARIAT 1. Shri V.K. Sharma — Joint Secretary 2. Shri Ravindra Garimella — Deputy Secretary 3. Shri Ashok Sajwan — Deputy Secretary-II 4. Smt. Saroj Sharma — Under Secretary 2. * * * * * * 3. The Committee thereafter took up for consideration the questionnaire and background note on ‘Misconduct’ and basic attributes of ‘Standards of Conduct/Behaviour expected of Members of Parliament’. The Committee approved the questionnaire and the list to whom the questionnaire has to be sent for eliciting their views in the matter. (Appendix I & II). * * * * * The Committee then adjourned.
*Omitted as paras relate to another case.
52 MINUTES OF THE FIFTH SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA
The Committee sat on Tuesday, the 6 November, 2007 from 1130 hrs. to 1200 hrs. in Room No. ‘53’, Parliament House, New Delhi.
PRESENT
Shri V. Kishore Chandra S. Deo — Chairman
MEMBERS
2. Shri Gurudas Dasgupta 3. Prof. Vijay Kumar Malhotra 4. Shri Rajesh Verma
SECRETARIAT
1. Shri V.K. Sharma — Joint Secretary 2. Shri Ravindra Garimella — Deputy Secretary 3. Shri Ashok Sajwan — Deputy Secretary-II 4. Shri M.L.K. Raja — Under Secretary
2. The Committee deliberated further on the matter regarding various facets of misconduct and basic attributes of “Standards of Conduct/Behaviour expected of members”. The Chairman informed the Committee that there had been a very poor response to the questionnaire on the subject with only eleven replies being received. The Committee felt that since enough time had been given to the persons/institution to respond the Committee might proceed with the matter. The Committee considered the analysis of responses received from various persons/Institutions in the matter. The Committee directed the Secretariat that a draft Report on the matter might be prepared and circulated to members of the Committee before the same could be taken up for consideration at their next sitting scheduled to be held on 23 November, 2007.
The Committee then adjourned.
53 MINUTES OF THE SIXTH SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA
The Committee sat on Friday, the 23 November, 2007 from 1400 hrs. to 1430 hrs. in Room No. ‘147’, Parliament House, New Delhi.
PRESENT
Shri V. Kishore Chandra S. Deo—Chairman
MEMBERS
2. Shri C. Kuppusami 3. Shri Braja Kishore Tripathy 4. Shri Devendra Prasad Yadav 5. Prof. Ram Gopal Yadav
SECRETARIAT
1. Shri V.K. Sharma — Joint Secretary 2. Shri Ravindra Garimella — Deputy Secretary 3. Shri Ashok Sajwan — Deputy Secretary-II 4. Shri M.L.K. Raja — Under Secretary
The Committee took up further consideration of the matter regarding “Various facets of misconduct and basic attributes of ‘Standards of Conduct/Behaviour expected of Members’”. The Committee considered the note on the broad scheme of Chapterisation and format of Report of the Committee on the matter and after some deliberation approved the same. The Chairman requested the members to send their written suggestions in this regard, if any, so that the same could be incorporated in the Report.
The Committee then adjourned.
54 MINUTES OF THE SEVENTH SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA
The Committee sat on Tuesday, the 22 January, 2008 from 1500 hrs. to 1630 hrs. in Room No. ‘53’, Parliament House, New Delhi.
PRESENT
Shri V. Kishore Chandra S. Deo — Chairman
MEMBERS
2. Shri Mohammad Salim 3. Shri Braja Kishore Tripathy 4. Shri Devendra Prasad Yadav 5. Prof. Ram Gopal Yadav
SECRETARIAT
1. Shri V.K. Sharma — Joint Secretary 2. Shri Ravindra Garimella — Deputy Secretary 3. Shri Ashok Sajwan — Deputy Secretary-II 4. Shri M.L.K. Raja — Under Secretary
The Committee took up consideration of the matter regarding “Various facets of misconduct and basic attributes of ‘Standards of Conduct/Behaviour expected of Members’ ”. The Chairman observed that complaints with regard to unethical conduct of members might also amount to a criminal offence. He elicited views of the members whether in case of such an eventuality, the action against the member for his misconduct might be initiated after his guilt had been proved in a court of law or proceedings for misconduct might be initiated against him without waiting for the outcome of the court case.
Members expressed their views. After some deliberation, the Committee were of the view that whenever a matter regarding unethical conduct of a member comes up which also involves a penal offence, it becomes imperative for the Legislature to which the member belongs, to take action against the member without waiting for the outcome of the criminal case.
55 The Committee were also of the view that the term misconduct might be understood to mean misuse of rights privileges and facilities available to members but it would not be practicable to define the term comprehensively. The definition of term ‘misconduct’ might be kept open ended while laying down some general principles governing ethical behaviour of members.
The Committee, thereafter, directed the Secretariat to draft the Report accordingly.
The Committee then adjourned.
56 MINUTES OF THE EIGHTH SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA
The Committee sat on Monday, the 18 February, 2008 from 1130 hrs. to 1200 hrs. in Room No. ‘53’, Parliament House, New Delhi.
PRESENT
Shri V. Kishore Chandra S. Deo — Chairman
MEMBERS
2. Shri C. Kuppusami 3. Shri Braja Kishore Tripathy 4. Shri Devendra Prasad Yadav 5. Shri Vijay Kumar Malhotra
SECRETARIAT
1. Shri V.K. Sharma — Joint Secretary 2. Shri Ravindra Garimella — Deputy Secretary 3. Shri Ashok Sajwan — Deputy Secretary-II 4. Shri M.L.K. Raja — Under Secretary
At the outset, the Chairman welcomed the members of the Committee to the sitting. The Committee then took up for consideration the draft report on the subject—“Various facets of misconduct and basic attributes of Standard of Conduct/Behaviour expected of Members”. And after some deliberation, the Committee, in view of the fact that responses from many of the leaders of various political parties have not been received and in view of the importance obtaining considered views of various political parties, have decided to seek the responses once again, within a time limit of one month.
The Committee then adjourned.
Verbatim record of the proceedings was kept.
57 MINUTES OF THE NINTH SITTING OF THE COMMITTEE TO INQUIRE INTO MISCONDUCT OF MEMBERS OF LOK SABHA
The Committee sat on Wednesday, the 19 March, 2008 from 1530 hrs. to 1600 hrs. in Room No. ‘147’, Parliament House, New Delhi
PRESENT
Shri V. Kishore Chandra S. Deo — Chairman
MEMBERS
2. Shri Gurudas Dasgupta 3. Shri Anant Gangaram Geete 4. Shri C. Kuppusami 5. Shri Mohammad Salim 6. Shri Braja Kishore Tripathy 7. Shri Rajesh Verma 8. Prof. Ram Gopal Yadav
SECRETARIAT
1. Shri V.K. Sharma — Joint Secretary 2. Shri Ravindra Garimella — Deputy Secretary 3. Shri Ashok Sajwan — Deputy Secretary-II 4. Shri M.L.K. Raja — Under Secretary At the outset, the Committee took up for consideration the Draft Second Report on the matter “Various facets of misconduct and basic attributes of standards of conduct/behaviour expected of members”. During deliberation the Hon’ble Chairman proposed that a definition clause could be added to the ‘code of conduct for members of Lok Sabha’ as recommended in the Report. Members agreed to the proposal and adopted the Report. 2. The Committee, then, authorized the Hon’ble Chairman to finalise the Report and present the same to Hon’ble Speaker. 3. *** *** *** The Committee then adjourned.
*Omitted as paras relate to another case.
58 APPENDIX I LISTS OF PERSONS/INSTITUTIONS/FOREIGN PARLIAMENTS TO WHOM THE QUESTIONNAIRE ON VARIOUS FACETS OF MISCONDUCT AND BASIC ATTRIBUTES OF ‘STANDARDS OF CONDUCT/BEHAVIOUR EXPECTED OF MEMBERS’ WAS SENT FOR ELICITING THEIR VIEWS LIST OF PERSONS/INSTITUTIONS TO WHOM THE QUESTIONNAIRE ON VARIOUS FACETS OF MISCONDUCT AND BASIC ATTRIBUTES OF ‘STANDARDS OF CONDUCT/BEHAVIOUR EXPECTED OF MEMBERS’ WAS SENT FOR ELICITING THEIR VIEWS
1. Principal, The Government Law College, Mumbai, Maharashtra 2. CEO, Sahara TV, C-2, C-4, Sector-11, Noida, Uttar Pradesh 3. Shri Baleshwar Yadav, MP & Leader of National Loktantrik Party in Lok Sabha 217, North Avenue, New Delhi-110001 4. Shri K. Chandrashekar Rao, MP & Leader of Telangana Rashtra Samithi in Lok Sabha 23, Tughlaq Road, New Delhi-110001 5. Shri L.K. Advani, MP, MP & Leader of Opposition in Lok Sabha, 30, Prithviraj Road, New Delhi-110001 6. Shri T.R. Andhyarujina, Senior Advocate, B-5/17, Safdarjung Enclave, New Delhi-110029 7. Shri Fali S. Nariman, Senior Advocate, F-21-17, Hauz Khas Enclave, New Delhi-110029 8. Dr. Abhishek Manu Singhvi, Senior Advocate, Supreme Court of India B-106, Neeti Bagh, New Delhi-110049 9. Shri Ashok H. Desai, Senior Advocate, Supreme Court of India B-111, Defence Colony, New Delhi-110024
61 10. Shri Soli J. Sorabjee, Former Attorney-General of India & Senior Advocate, Supreme Court of India, A-128, Neeti Bagh, New Delhi-110049
11. Shri K. Parasaran, Former Attorney-General of India & Senior Advocate, Supreme Court of India, R-20, Greater Kailash-I, New Delhi-110048
12. Shri K.K. Venugopal, Senior Advocate, Supreme Court of India, A-144, Neeti Bagh, New Delhi-110049
13. Shri K.P. Unnikrishnan, Former Member of Parliament, GF A6, Khelgaon Marg, Gulmohar Park, New Delhi-110049
14. Shri Asaduddin Owaisi, MP & Leader of All India Majlis-E-Ittehadul Muslimeen in Lok Sabha, 34, Ashoka Road, New Delhi-110001
15. Shri Rajeev Dhavan, Senior Advocate, Supreme Court of India, A-131, New Friends Colony, New Delhi-110065
16. Prof. Nomita Aggarwal, Dean & Head of Department, Faculty of Law, University of Delhi, Delhi-110007
17. Dr. Ashok K. Chauhan, President, Amity Law School, Delhi
62 18. The Principal, ILS Law College, Law College Road, Pune-411004 19. The Registrar, National Law School of India University, Nagarbhavi, Bangalore-560072 20. Shri A. Surya Prakash, Journalist, 170, National Media Campus, Gurgaon-122002 21. Shri M.V. Pylee, Honorary Director General, Asian Institute of Development & Entrepreneurship, Cochin, Kerala 22. Editor & Publisher, Business Standard, Nehru House, 4, Bahadur Shah Jafar Marg, Delhi 23. CEO, CNN-IBN, Global Broadcast, News Ltd., Express Trade Tower, Plot 15-16, Sector-16A, Noida, Uttar Pradesh 24. Chancellor, Symbiosis Law College, Pune, Maharashtra 25. Editor, Hard News, 145, Gautam Nagar, New Delhi-49 26. Editor, Jan Satta, A-8, Sector 7, Noida, Uttar Pradesh 27. Group Editor, Jan Satta, E-55, Sector 8, Noida, Uttar Pradesh 28. Editor, Dainik Bhaskar, Doctor’s Lane, Gole Market, New Delhi-110001
63 29. Editor, Rashtriya Sahara, 1st Floor, Gopal Das Bhawan, 28, Barakhamba Road, Connaught Place, New Delhi-110 001
30. Editor, Rajasthan Patrika, Rajasthan Patrika Pvt. Ltd., JN Marg, Jaipur, Rajasthan
31. Editor, Dainik Jagran, F-21, 22, 23, Sector 8, Noida, Uttar Pradesh
32. Editor-in-Chief, The Asian age, S-7, Green Park, Main Market, Delhi-110016
33. Editor-in-Chief, The Hindu, Kasturi Building, 859-860, Annasalai, Chennai-600002
34. Editor-in-Chief, The Times of India, 7, Bahadur Shah Jafar Marg, New Delhi-110002
35. Editor-in-Chief, The Hindustan Times, Hindustan Times House, 18-20, Kasturba Gandhi Marg, Connaught Place, New Delhi-110001
36. Editor & Managing Director, The Statesman, 4, Chowringhee Square, Kolkata, West Bengal-700001
37. Editor-in-Chief, The Telegraph, 6, Praful Sarkar Street, Kolkata-700001
38. Mid Day Multimedia Ltd., Penisula Centre, Dr. S.S. Rao Road, Parel, Mumbai-12
39. Editor-in-Chief, The Tribune, The Tribune House, Sector-29C, Chandigarh
40. Editor-in-Chief, Indian Express, 9-10, Bahadur Shah Zafar Marg, New Delhi-110002
64 41. Editor-in-Chief & Managing Director, The Pioneer, Line House, 2nd Floor, 3, Bahadur Shah Zafar Marg, Delhi-02 42. Star News, A-37, Sector-60, Noida, Uttar Pradesh 43. CEO, Aaj Tak, Videocon Tower, E-1, Jhandewalan Extension, New Delhi 44. Zee TV, Continental Building, 135, Dr. Anne Besent Road, Worli, Mumbai 45. CEO, NDTV, Arachana Complex, GK-I, New Delhi-48 46. Km. Mamata Baanerjee, MP & Leader of National Trinamool Congress in Lok Sabha, C-4, MS Flats, B.K.S. Marg, New Delhi-110001 47. Shri Sukhdev Singh Dhindsa, MP & Leader of Shiromani Akali Dal in Lok Sabha, 12, Pt. Pant Marg, New Delhi-110001 48. Shri Anant Gangaram Geete, MP & Leader of Shivsena in Lok Sabha, B-401, M.S. Flats, BKS Marg, New Delhi-110001 49. Ms. Mehbooba Mufti, MP & Leader of Jammu & Kashmir Peoples Democratic Party in Lok Sabha, AB-83, Shahjahan Road, New Delhi-110001 50. Shri W. Wangyuh, MP & Leader of Nagaland Peoples Front in Lok Sabha, B-102, MS Flat, B.K.S. Marg, New Delhi-110001 51. Shri L. Ganesan, MP & Leader of MDMK in Lok Sabha, 48, Lodhi Estate, New Delhi 52. Shri P.C. Thomas, MP & Leader of Kerala Congress in Lok Sabha, B-702, New MS Flats, B.K.S. Marg, New Delhi-110001 65 53. Shri Nakul Das Rai, MP & Leader of Sikkim Democratic Front in Lok Sabha, 197, North Avenue, New Delhi-110001 54. Shri Basudeb Acharia, MP & Leader of CPI(M) in Lok Sabha, 21, Ashoka Road, New Delhi-110001 55. Shri K. Yerrannaidu, MP & Leader of Telugu Desam Party in Lok Sabha, 9, Safdarjung Road, New Delhi-110003 56. Shri Subrata Bose, MP & Leader of All India Forward Bloc in Lok Sabha, 15, North Avenue, New Delhi-110001 57. Dr. Arun Kumar Sarma, MP & Leader of Asom Gana Parishad in Lok Sabha, 68, South Avenue, New Delhi-110001 58. Shri Joachim Baxla, MP & Leader of Revolutionary Socialist Party in Lok Sabha, 22, Mahadev Road, New Delhi-110001 59. Shri Vanlalzawma, MP & Leader of Mizo National Front in Lok Sabha, 22, South Avenue, New Delhi-110001 60. Prof. M. Ramadass, MP & Leader of Pattali Makkal Katchi in Lok Sabha, 177, North Avenue, New Delhi-110001 61. Shri Nakul Das Rai, MP & Leader of Sikkim Democratic Front, 197, North Avenue, New Delhi-110001
66 LIST OF FOREIGN PARLIAMENTS TO WHOM THE QUESTIONNAIRE ON VARIOUS FACETS OF MISCONDUCT AND BASIC ATTRIBUTES OF ‘STANDARDS OF CONDUCT/BEHAVIOUR EXPECTED OF MEMBERS’ WAS SENT FOR ELICITING THEIR VIEWS Clerk of the House, House of Representatives, Parliament House, Canberra, ACT 2600, Australia Clerk of the Parliaments, United Kingdom: House of Lords, Westminster, London SW1A0PW, United Kingdom Clerk of the House of Commons, United Kingdom: House of Commons, Westminster, London SW1A0AA, United Kingdom CNZM, QC, Clerk of the House of Representatives, New Zealand Parliament House, Wellington 6001 , New Zealand Secretary to Parliament-South Africa, PO Box 15, Cape Town 8000, South Africa Clerk of the House of Commons, Canada: House of Commons, Parliament Buildings, 111, Wellington Street, Ottawa, Ontario K1A A6, Canada Clerk of the Senate and Clerk of the Parliaments, Canada: Senate, Parliament Buildings, Center Block, Room 185-S, Ottawa, Ontario, Canada Office of the Clerk House of Representatives, H-154, The Capitol, Washington D.C., 20515-6601, U.S.A. Secretary of the Senate, S-312, The Capitol, Washington D.C., U.S.A. 67 APPENDIX II DETAILED ANALYSES OF RESPONSES TO THE QUESTIONNAIRE REPLIES FROM VARIOUS INSTITUTIONS/PERSONS ON DEFINITION AND CATEGORIES OF MISCONDUCT
Sl.No. Reply received from Comments
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Q. No. 1 Do you think there is a need to codify as to what actions on the part of the members of Parliament would come under the category of misconduct?
1. CNN IBN Non-enactment of a law codifying the definition of ‘misconduct’ was a conscious decision of our founding fathers and lawmakers. There is no need to codify the definition of ‘misconduct’ per se there is enough legislative convention in this regard. Codification will only invite unnecessary litigation resulting in conflict between legislature and judiciary, which, in turn, would only denigrate the majesty of both the institutions. However, it would be useful to set broad guidelines in this regard. 2. ILS Law College, Pune “Misconduct” is not the term that needs to be defined as Article 105 does not refer to this. Also the term misconduct used in other laws for other purposes. The use of this term in other laws needs to be distinguished from the misconduct as a part of breach of privilege and contempt which has to be decided by the Parliament on the facts of each case. 3. Janata Dal (United) No specific reply has been furnished. 4. Ministry of Law and Article 105 of the Constitution of India Justice provides for the privileges of Houses of Parliament and the members of Parliament. Besides this there are statutory provisions, rules of Procedure and Conduct of Business in the Houses of Parliament which contain such privileges and also there are precedents of British House of Commons and
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conventions which have grown in this country. Privileges presuppose the existence of some duties to be performed by the members of the Parliament. In the performance of their duties, they have to follow certain set of rules commonly known as code of conduct. Many countries have the code of conduct for their Legislators. U.S.A., U.K., Australia and Zimbabwe are a few to name. In India in 1997 Rajya Sabha set up an ethics committee with a view to overseeing the moral and ethical conduct of its members and to examine the cases referred to it with reference to their ethical and other misconduct. In its first Report the committee has proposed a code of conduct for members consisting of fourteen broad principles and guidelines which the members should abide in their dealings. The code of conduct was adopted in 1999 and was reiterated in 2004. Since there is already a code of conduct regulating the conduct of the legislators, there is no need to codify as to what actions of the members of Parliament should constitute misconduct.
5. Ministry of Parliamentary Minister will reply at the time of Affairs presentation of Report in the House or consideration of it by the House.
6. Shri Soli Sorabjee, Yes. A codified rule of misconduct would Senior Advocate impart certainty about what constitutes misconduct. It would enable members to be aware of any commission or omission of theirs that may be found against them as misconduct. Such a codified category of misconduct would also improve the standards of probity and rectitude in public life, which would then set the standards for other public offices.
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7. Shri Pranab Mukherjee, Though there may be some justification in Minister of External Affairs formulating guidelines, it would neither be and Leader of Congress prudent nor perhaps possible to codify such Party actions on the part of Members of Parliament that would come under the category of misconduct. Misconduct is nothing but “conduct unbecoming of a Member of Parliament” not only in the discharge of his parliamentary functions but also in the discharge of his public duties and probity of conduct in private life to the extent it impacts on the performance of his public duties. What amounts to conduct “unbecoming of a Member of Parliament” depends on the facts and circumstances of the case, the context in which the conduct is being scrutinized and the prevailing environment. Codification is perhaps not the way to move forward. 8. Shri P.P. Rao, Senior It is desirable and necessary to codify what Advocate action on the part of the members of Parliament would constitute misconduct so that the Members know what they should not do. 9. Shri Sushanto Roy, CEO, Each and every action of the Parliament is Media & Entertainment under scanner. To ensure that there is fair assessment of what is good conduct and what is bad there is need to codify as to what action come in the purview of misconduct. The guiding principles while codifying these actions has to be that members of parliament purely act on behalf of the people they represent. 10. The Indian Express It will be tough and impractical to list all the possible categories of misconduct. Ethics Committee of the House can decide if a particular act amounts to misconduct. 11. Rajasthan Patrika Each and every action of Parliament is under scanner. To ensure what constitutes good conduct and bad conduct there is a need to codify the same. Misconduct should also include actions where the member has
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been found guilty by the courts of law also. Such members should not be allowed to enter the Parliament. 12. Shri Nakul Das Rai, MP Yes, there is an urgent need to codify the and Leader of Sikkim actions that come under the category of Democratic Front misconduct by members of Parliament. Countries including United Kingdom, have already adopted code of conduct and such codes are being developed by Parliaments of other Countries as well. Such codes will provide a framework for do’s and don’ts for members and expects them to act ethically and with integrity.
Q. No. 2 What in your opinion should be appropriate and comprehensive definition of misconduct vis a vis members of Parliament? Please give details of the acts which may come under definition of misconduct of members?
1. CNN IBN Acts which may come under the definition of ‘misconduct’ may include (i) Misbehaviour on the floor of the House, use of violence, anti-social behaviour, refusal to follow instructions of the Chair, disruption of proceedings in an unparliamentary manner, etc., (ii) Misuse or abuse of parliamentary office or of parliamentary privileges, (iii) Breach of conduct rules, (iv) Commission of cognizable offence under any law in force, and (v) Commission of all kinds of offences that may be broadly covered under the term ‘white collar offences’. 2. ILS Law College It is not advisable to enact a law on defining contempt of Parliament. Any definition in this sphere will have to be broad and illustrative and can be a part of the rules of each House of Parliament. 3. Janata Dal (United) No specific reply has been furnished.
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4. Ministry of Law and Defining proper conduct is a complex Justice process. As such, ethics rules tend to be extremely detailed in order to minimize misunderstandings about what constitutes acceptable behaviour and what will amount to misconduct. Politicians may experience many conflict of interest scenario. However, the regulation of MP’s interests is not primarily about conflict of interest; it is about pecuniary interest i.e. benefits that have a monetary value. Some of the instances of misconduct may be as follows:— (i) use of public position to obtain personal benefit; (ii) providing benefits to influence official actions; (iii) use of confidential government information; (iv) receipt of gifts above a certain value; (v) receipt of fees or money for asking questions in Parliament; (vi) misuse of privileges allowed as such member; (vii) financial conflicts of interest; and (viii) nepotism. In our view it would not be appropriate to give a comprehensive definition of misconduct as the same would be subject to the interpretation by the Court. Instead the Houses of Parliament may determine as to what acts would constitute misconduct. 5. Ministry of Parliamentary Minister will reply at the time of Affairs presentation of Report in the House or consideration of it by the House. 6. Shri Soli Sorabjee, It is not practicable to give an exhaustive Senior Advocate or comprehensive definition of misconduct. Some illustrations of misconduct can be
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(a) conflict of interests whilst voting on a motion in Parliament; (b) other grounds which impair the fitness and propriety of a member continuing to occupy such an office. Other examples of misconduct could include (a) findings by a competent tribunal or a court of corrupt practices or of criminal conduct involving moral turpitude; (b) other conduct which is unbecoming of a member of Parliament for example, rowdy and disorderly behaviour in the House, indulging in abusive language and obscene gestures during the proceedings and repeated interruption and other acts disrupting the work of Parliament. 7. Shri Pranab Mukherjee, It may be inappropriate to give a Minister of External comprehensive definition of ‘misconduct” of Affairs and Leader of Members of Parliament. Congress Party 8. Shri P.P. Rao, The world ‘misconduct’ is generally Senior Advocate understood to mean behaviour which is regarded as immoral or unethical. The meaning of the words ‘misconduct’ and ‘misconduct in office’ given in Black’s Law Dictionary 6th Edition is extracted below. “Misconduct”, A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willfully in character, improper or wrong behaviour; its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence but not negligence or carelessness. Term “misconduct” when applied to act of attorney, implies dishonest act or attempt to persuade court or jury by use of deceptive or reprehensible methods. “Misconduct in office. Any unlawful behaviour by a public officer in relation to
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the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act..” It is not easy to define ‘misconduct’ exhaustively. In the context of Members of Parliament ‘misconduct’ may mean any act which shows lack of integrity, lack of respect for the House or its Presiding Officer and lack of concern for the dignity and authority or conduct which unreasonably obstructs transaction of business of the House. ‘Misconduct’ being a wider concept than ‘contempt’ acts which constitute contempt of the House or a breach of the privileges of the House also fall within its ambit. Unseemly conduct in the House or outside the House in public amounts to misconduct. In addition to the definition of the word ‘misconduct’, instances in which the House has, in the past, admonished or otherwise punished its members for misconduct may be given in a Schedule to the Rules for the guidance of the members. 9. Shri Sushanto Roy, Any appropriate and comprehensive CEO, Media & definition of misconduct would mean Entertainment contravention of the founding principles governing the life and times of members of Parliament in a functional democracy. The golden rule to follow is that when a people in public life are in doubt whether a particular action is consistent with the standards expected of them, only proper course not to do it. The key issue is not only being fair but also seen to be fair, objective completely above board. 10. The Indian Express Any act that is perceived to undermine the image of a people’s representative, instances of corruption and conflict of interest, compromising public trust can be considered misconduct.
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11. Rajasthan Patrika If there are allegations against a member in the House the same should be inquired into and if the accused or the person who has levelled allegations if found guilty he should be punished. 12. Shri Nakul Das Rai, Definition of ethics is beyond legality. MP and Leader of Perhaps the minimum denominator of ethics Sikkim Democratic Front is legality. All such acts that are illegal under relevant laws with provisions for conviction, therefore, constitute misconduct. The Ethics Committee of Rajya Sabha in its First Report submitted on 1.12.1998 has listed 14 points under para 28 that serve as framework for code of conduct for members. Apart from this misconduct could include actions that lead to advancing private interest of self or others based on information received in course of parliamentary duty and responsibility. Q. No. 3 Should penal offences committed by members of Parliament also be construed as misconduct?
1. CNN IBN Yes. 2. ILS Law College Penal Offences are a separate category. These can be construed as misconduct if committed by a member. In this situation the action taken by the Parliament against a member in the exercise of privileges and power too punish for contempt will run parallel to the laws of the country providing for criminal prosecution. These two spheres operate independent of each other. MPs like any other citizens may be prosecuted for offences by appropriate courts and also they can be punished for the contempts by the respective House. Also Representation of People’s Act, 1951 read with Article 102 of the Constitution provides for the effect of criminal conviction on the tenure of MPs. 3. Janata Dal (United) No specific reply has been furnished.
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4. Ministry of Law Parliamentarians are held in high esteem by and Justice the people. They are supposed to be highly disciplined, self regulated and trend setting persons. It is unthinkable for a person of that stature to indulge in criminal activities leading to penal consequences. Members of Parliament as peoples representatives are looked at by people as their role models and ones who are guiding their destiny, have, therefore to be beyond the realm of any kind suspicion. Any action of an M.P. which lowers the dignity of the House of which he is a member, be it a penal offence, should be construed as misconduct. 5. Ministry of Parliamentary Minister will reply at the time of Affairs presentation of Report in the House or consideration of it by the House. 6. Shri Soli Sorabjee, Yes, if there is a clear finding of breach of Senior Advocate criminal law by a tribunal or a court and the offence committed is serious and involves moral turpitude. 7. Shri Pranab Mukherjee, Penal offences committed by a member of Minister of External Parliament clearly amount to misconduct, Affairs and Leader of but the offence must be such that it involves Congress Party moral turpitude and not minor offences, which occasionally are committed in the course of political agitation and activities. The existing constitutional and statutory provisions should prevail. 8. Shri P.P. Rao, Senior Yes. Commission of a penal offence by a Advocate Member of Parliament amounts to misconduct of a grave nature. If the offence is committed within the precincts of the House, a more serious view needs to be taken by the House. 9. Shri Sushanto Roy, There is strong merit in ensuring that each CEO Media & and every member of Parliament behaves Entertainment in completely above board both on the floor of the House and outside it. There is reason
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to fairly argue that penal offences committed by members be construed as misconduct only when they are convicted. 10. The Indian Express Yes. 11. Rajasthan Patrika Misconduct should also include if a member comes in the well of the House. Similarly acts of violence and use of unparliamentary language or damage to the property of the House should also come under the purview of misconduct and such members should immediately be suspended. 12. Shri Nakul Das Rai, Yes. MP and Leader of Sikkim Democratic Front Q. No. 4 If answers to question No. 3 in ‘Yes’, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise?
1. CNN IBN Both must be covered under the definition of ‘misconduct’. However, a distinction may be made between the two for the purpose of deciding the nature of inquiry and penalties/punishment could be different. 2. ILS Law College Penal Offences are a separate category. These can be construed as misconduct if committed by a member. In this situation the action taken by the Parliament against a member in the exercise of privileges and power too punish for contempt will run parallel to the laws of the country providing for criminal prosecution. These two spheres operate independent of each other. MPs like any other citizens may be prosecuted for offences by appropriate courts and also they can be punished for the contempt by the respective house. Also Representation of People’s Act, 1951 read with Article 102 of
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the Constitution provides for the effect of criminal conviction on the tenure of MPs. 3. Janata Dal (United) No specific reply has been furnished. 4. Ministry of Law and There should be no distinction between Justice penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise rather they should be awarded exemplary punishment for committing such offences. Breaking laws, to be sure, is wrong for everybody, but it is ten times more so when it involves law makers. Moreover, as people’s representatives, they are also people’s leaders. It is this that makes exemplary punishment vital. On three occasions in the recent past, instances of the misuse of parliamentary privilege by MPs have come to light. The first is the cash- for-questions scam of December 2005. The second involved kickbacks in the use of the MPLAD funds. The most recent one was the misuse of diplomatic passports to make money through human trafficking. The punishment in the first two cases was neither a deterrent nor exemplary was borne out by the fact that MPs were emboldened enough to indulge in human trafficking. They must have observed what action was taken by the Parliament as a collective, against the miscreants in the earlier cases. Of course, it is entirely possible that some of them were already indulging in illegal activities. It was, therefore, of considerable benefit to them not to impose too strict a punishment. The net result of the manner in which punishment was meted out and the quantum of punishment itself was such as to be perceived by future offenders as an encouragement rather than a discouragement to break the law. What is even more interesting is to see how the
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quantum of punishment has been decreased for the next instance. In the cash-for- questions case there was a great deal of indignation and those caught were expelled. In the second case, the kickbacks from MPLAD funds, a brief suspension was awarded. The message was clear: (a) the probability of getting caught was low with the cloak of parliamentary privilege; (b) even if one is eventually caught, one can get away at least for the first four or five attempts; (c) there is always the possibility that even after being caught. Parliament is unlikely to do anything that is seriously damaging to one’s self-interests. When committees are set up for reviewing the privileges of parliamentarians, the committee members should naturally review the need to have privileges like diplomatic passports and body searches at airports, the MPLAD funds, and so on, but more importantly, there is a need to provide deterrent and exemplary punishment for the criminal activities of MPs. Those in these committees know this but they still need to be reminded that even today the majority of our leaders are law-abiding and patriotic. It is the few who are giving Parliament a bad name. Think of the vast multiplier advantages of effective deterrent. Punish one and a thousand others will become law-abiding. What a relief for law enforcement agencies that would be. How much more effective can they become in the discharge of their duties if their crimes are reduced a hundred-fold? At the same time, care should be taken to remember that a very large majority of MPs are the finest people one can imagine. 5. Ministry of Parliamentary Minister will reply at the time of Affairs presentation of Report in the House or consideration of it by the House.
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6. Shri Soli Sorabjee, No. The benefit of privilege should not be Senior Advocate extended to criminal acts including moral turpitude. 7. Shri Pranab Mukherjee, The distinction between penal offences Minister of External committed by members while misusing Affairs and Leader of privileges/facilities available to them and Congress Party those committed otherwise is based on the fine distinction that if Members of Parliament in the discharge of their parliamentary duties and functions misuse their privileges/facilities and in the process commit penal offences, then such conduct may amount to misconduct and therefore within the purview of Parliament and that penal offences committed without reference to their parliamentary privileges/facilities is misconduct which is death with by procedures available under respective penal statues. The problem is that under both these instances, the conduct is “unbecoming of a Member of Parliament” and jurisdiction is available under respective penal statues to punish the delinquent Member of Parliament. But there may be instances where the conduct is so unbecoming that Parliament as a body has to protect its honour and dignity and ought not to wait for the verdict of a dilatory judicial procedure. Parliament’s supremacy in this regard must not be diluted. 8. Shri P.P. Rao, Yes, distinction should be made. Offences Senior Advocate committed while misusing the privileges/ facilities of the House will be of immediate and direct concern of the House warranting swift initiative to be taken by the House itself for dealing with the issue. 9. Shri Sushanto Roy, An offence is an offence. There should be CEO Media & no distinction between the two. Actually, Entertainment harsher punishment in case of penal offences committed by members while misusing the privileges/facilities available to the members of Parliament.
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10. The Indian Express Yes. 11. Rajasthan Patrika The responsibility of maintaining peace and order in the House should be with the Marshall. He should have powers to evict any member from the House with the information of the Speaker. 12. Shri Nakul Das Rai, MP Yes, the penal offences committed by and Leader of Sikkim members while misusing the privileges/ Democratic Front facilities available to them need to be separately examined by the Privileges and Ethics Committee. Q. No. 5 If answer to Question No. 3 is ‘Yes’ should the proceedings for misconduct be initiated only after the commission of penal offences has been finally established in a court of law?
1. CNN IBN This is for the legal experts to answer. 2. ILS Law College Not necessarily. Standard of proof in criminal matters under the law of crimes is very strict. Prosecution has to establish a clear picture of guilt, in other words, the case against the accused has to be proved beyond reasonable doubt. Whereas in other areas, including the area of parliamentary privileges, the case against a person can be proved on the basis of preponderance of probabilities principle. 3. Janata Dal (United) No specific reply has been furnished. 4. Ministry of Law and The proceedings for misconduct should be Justice started as soon as the acts constituting the misconduct are brought to the notice of the House and it should not wait till the decision of the court comes where the facts are incontrovertible and nobody has any doubt about the involvement of the Member of Parliament in such acts. Of course it is for the police to investigate the case, produce evidence before a court of law and get him convicted. While the trial will take
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time, the MP’s presence in the House will be a disgrace to the august body. As for a precedent, Parliament had at the first available opportunity expelled those members who had shocked the nation when they were caught on camera acceptation money for asking questions in the House. It would be recalled that the members concerned are yet to be tried and convicted in a court of law. Yet the Supreme Court upheld Parliament’s decision to expel them when they questioned it there. In other words, Parliament is empowered to expel members who in public perception have lowered the dignity of the House by their unbecoming act. 5. Ministry of Parliamentary Minister will reply at the time of Affairs presentation of Report in the House or consideration of it by the House. 6. Shri Soli Sorabjee, A finding by a competent criminal court Senior Advocate which is categorical should suffice for initiation of proceedings of misconduct. Mere pending of appeal should not come in the way of initiation of proceedings. 7. Shri Pranab Mukherjee, Whether or not one makes the distinction Minister of External as reflected in Question No. 4, Parliament Affairs and Leader of as a body can and should under Congress Party extraordinary circumstances deal with delinquent Members of Parliament before final guilt is established in a court of law. 8. Shri P.P. Rao, Not necessary. The House need not wait till Senior Advocate the Member is convicted of the offence committed by him by a Court of Law. If the offence is not a trivial one, the least, the House can do is to suspend his membership of the House pending his trial in a Court of Law. The House should not depend on the political parties in matters concerning misconduct of its members. The House itself should take proper action. In
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the case of serious misconduct, the House can expel the Member concerned after due inquiry. 9. Shri Sushanto Roy, Yes, the proceedings for misconduct be CEO Media & initiated only after the commission of penal Entertainment offences has been finally established in a court of law. 10. The Indian Express No. The verdict will be challenged and case could drag on for years. Here, the Ethics Committee should meet and take decision in the matter. 11. Rajasthan Patrika If any member or a former member is in jail in connection with any criminal case his membership should be terminated and he should not be allowed to contest the elections. 12. Shri Nakul Das Rai, MP Proceedings of misconduct for penal and Leader of Sikkim offences should be initiated only after Democratic Front conviction by the trial court. Q. No. 6 What should be appropriate punishment if misconduct is proved?
1. CNN IBN If misconduct is proved, the punishment would depend upon the nature of misconduct, which could range from admonition or reprimand to withdrawal of privileges/perks for minor misconduct and from suspension to expulsion for gross misconduct. 2. ILS Law College The appropriate punishment should be decided on the facts and circumstances of each case. 3. Janata Dal (United) No specific reply has been furnished. 4. Ministry of Law and A variety of penalties are found among the Justice various legislatures. Broadly speaking, they can be characterized as follows: — Criminal-type sanctions: Imprisonment, Fines, etc.
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— Legislative sanctions: Exclusion (permanent or temporary), loss of seniority, etc. — Stigmatisation: Reprimand, censure, admonishment, etc. Criminal-type sanctions probably require the procedural safeguards of the Courts. Legislative sanctions, by contrast are probably best implemented by members of the legislature itself; like wise stigmatization is probably best served by one’s colleagues. It is hard to draw a distinction between the terms ‘censure’, ‘admonishment’. ‘reprimand’, etc. These terms are very much culturally specific. It may be possible to separate the jobs of judging the offence and determining penalties, so that complaints were investigated by a judicial body (with judicial safeguards), but that the legislature itself decided on the sanction. In the UK the Neill Committee on Stands in Public Life recommended that appeals in serious case of (non-criminal) misconduct should go to a senior judge sitting alone, but return to the Parliamentary Select Committee for penalties [Sixth Report of the Committee on Standards in Public Life (2000) cm 4557-I]. 5. Ministry of Parliamentary Minister will reply at the time of Affairs presentation of Report in the House or consideration of it by the House. 6. Shri Soli Sorabjee, This would depend upon the gravity of the Senior Advocate offence. The punishment may range from temporary suspension of the delinquent member to expulsion from the House. 7. Shri Pranab Mukherjee, Appropriate punishment depends upon the Minister of External gravity of the offence and must be left to Affairs and Leader of the discretion of Parliament. Congress Party
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8. Shri P.P. Rao, The measure of punishment depends upon Senior Advocate the nature and gravity of misconduct proved. The punishment may range from admonishing to expulsion from the House. And in case of misconduct which is also an offence, in addition it may be reported to the police to facilitate prosecution of the Member. 9. Shri Sushanto Roy, The punishment has to be two fold: one to CEO Media & reprimand the erring member and second Entertainment to act as a deterrent against any future act of misconduct. The argument in favour of double jeopardy is invalid. An act of misconduct goes against the basic tenet of the democracy hence punishment has to be exhaustive. This might include termination of all financial benefits and perks enjoyed by the erring member in his capacity of being the people’s representative on the floor of the House. 10. The Indian Express Ethics Committee should decide on the quantum of punishment according to the nature of the offence committed. 11. Rajasthan Patrika If a member is found in having indulged in any misconduct, he should be expelled and also be punished according to the penal codes. He should also not be allowed to contest elections in future. 12. Shri Nakul Das Rai, MP Appropriate punishment could include and Leader of Sikkim censure, reprimand, suspension from the Democratic Front House for a specific period or any other penalty considered appropriate by the Committee. Q. No. 7 Do you think that it should be incumbent on political Parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct?
1. CNN IBN No, there cannot be any per se rule of the kind. It may create anomaly. For instance,
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in a case where the House thinks that a reprimand is enough punishment for such misconduct but the member has to resign because of such a rule, even though in the opinion of the House, he has been sufficiently punished. It is, therefore, best to let each political party decide for itself. 2. ILS Law College Political parties cannot be legally obliged to ask their members to resign from the membership, but such a practice is morally and ethically viable for integrity in politics. 3. Janata Dal (United) No specific reply has been furnished. 4. Ministry of Law and Ideally it should be incumbent on the Justice political parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct. However, even if the political parties do not ask the incumbent to resign, the House has the power to take action against such erring incumbent. 5. Ministry of Parliamentary Minister will reply at the time of Affairs presentation of Report in the House or consideration of it by the House. 6. Shri Soli Sorabjee, The recommendations of the Law Senior Advocate Commission in its 170th Report envisage an internal disciplinary mechanism. However, if codified rules of conduct and ethics are made, a direction from the political party would be inconsequential and a member would be bound to resign, if held/found guilty of violating such Rule. 7. Shri Pranab Mukherjee, The answer to Question No. 7 is in the Minister of External negative. Political parties cannot be asked Affairs and Leader of to make delinquent members resign. That Congress Party should be the decision of Parliament as a body and not be left to political parties. 8. Shri P.P. Rao, The House need not depend on the political Senior Advocate parties at all in the matter of dealing with
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the misconduct of Members of the House. The House itself, should exercise its powers to deal with cases of misconduct of its Members and thereafter, leave it to the good sense of political parties to ask their members to resign from the membership of the House, if the nature of misconduct warrants such a course, in a given case. 9. Shri Sushanto Roy, Yes, it should be incumbent on the political CEO Media & parties to ask their members to resign from Entertainment the membership if they are found indulged in any such activities of misconduct. This is critical to the dignity of the House. 10. The Indian Express Yes, that is the ideal solution. However, in penal offences, there may be debates about the nature and motive of cases and it will be too optimistic to expect parties to disown their MPs. 11. Rajasthan Patrika Action should be taken by the House itself. Political parties may perhaps not be able to do anything. 12. Shri Nakul Das Rai, The Ethics Committee could advise the MP and Leader of Political Party to ask the member for Sikkim Democratic Front resigning from the membership of the House if he has indulged in misconduct. However, it should be left to the collective conscience of the Political Party to accept the advice. Q. No. 8 Would it help if it is made mandatory for the concerned Political Parties to issue certificate to the Presiding Officer of the respective House that none of their member is of doubtful integrity and will not indulge in any misconduct?
1. CNN IBN This is too general, but any certificate would instill a sense of responsibility. 2. ILS Law College No useful purpose can be served from this. These certificates can have no effect on criminal proceedings or actual misconduct
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of MPs. Further, such provision to supply certificates can be abused for political purposes. 3. Janata Dal (United) No specific reply has been furnished. 4. Ministry of Law and Political parties are responsible for the Justice selection of the candidates to fight the election on their ticket. In fact it is the political parties only who decide as to who are going to be the representatives of the people in the Parliament. If the concerned Political parties are made to issue a certificate to the Presiding Officer that none of their members is of doubtful integrity, then they will take utmost care while selecting the candidates. As of now they are concerned only with the results of the election and not with stuff they are sending to the Parliament in the process. The issuance of such a certificate shall make them realize that they will have to carry the responsibility of the person they are certifying with such certificate. 5. Ministry of Parliamentary Minister will reply at the time of Affairs presentation of Report in the House or consideration of it by the House. 6. Shri Soli Sorabjee, It would be unrealistic and impracticable. Senior Advocate Political parties would not be keen on issuing certificate of doubtful integrity. 7. Shri Pranab Mukherjee, Political parties should not be asked to Minister of External hazard the issuance of a certificate Affairs and Leader of vouchsafing for the integrity of its members Congress Party since acts of doubtful integrity are normally committed clandestinely without the knowledge of political parties. 8. Shri P.P. Rao, I am not in favour of involving the political Senior Advocate parties, the political parties being what they are. As it is there is no law to ensure proper functioning of political parties consistent with transparency and accountability. At
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times political parties may tend to be guided by expediency rather than values or political morality. No useful purpose will be served by making it mandatory for the concerned political parties to issue a certificate of integrity to its members. 9. Shri Sushanto Roy, This is an ideal situation but practically CEO Media & achievable. Mandatory character certificates Entertainment by political parties to the presiding officers of the respective Houses might prove counter productive and result in the loss of credibility should a member actually act otherwise. There is room though to bring in early rigorous checks and balances run the risk of failing should the individual member decide to act on his or her own losing sight of the sole objective of his being on the floor of the House. 10. The Indian Express I don’t think it will help. No political party will ever say that its members are of doubtful integrity. So such an exercise is likely to end up as a meaningless ritual. 11. Rajasthan Patrika Of course there will be a moral pressure on the political parties. 12. Shri Nakul Das Rai, The misconduct is a personal issue. The MP and Leader of Political Party should not be asked to give Sikkim Democratic Front a certificate to the Presiding Officer of the respective House certifying integrity of the member and stating that he/she shall not indulge in any misconduct.
92 APPENDIX III RESPONSES RECEIVED FROM VARIOUS PERSONS/INSTITUTIONS/ FOREIGN PARLIAMENTS TO THE QUESTIONNAIRE RESPONSE FROM CNN, IBN
RESPONSE TO THE QUESTIONNAIRE ON MISCONDUCT AND BASIC ATTRIBUTES OF “STANDARDS OF CONDUCT/ BEHAVIOUR EXPECTED OUT OF MEMBERS” DATED 11.7.2007 RECEIVED FROM LOK SABHA SECRETARIAT
1. Do you think there is a need to codify as to what actions on part of members of Parliament would come under the category of misconduct? No. We think non-enactment of a law codifying the definition of “misconduct” on part of members of Parliament was a conscious decision of our founding fathers and law makers. There is no need for a codification of the definition of “misconduct” per se as there is enough legislative convention in this regard. Codification will only invite unnecessary litigation consequently resulting in a conflict between the Legislature and the Judiciary which may only denigrate the majesty of both these institutions. However, it would certainly be useful to provide for broad guidelines in this regard as well as guidelines to regulate the use of corresponding parliamentary privileges. 2. What, in your opinion, should be the appropriate and comprehensive definition of misconduct vis-a-vis members of Parliament? Please give details of pacts which may come under the definition of “misconduct”. As stated in response to the first query, there is no need to codify the definition of “misconduct” vis-a-vis members of Parliament. However, acts which may come under the definition of “misconduct” could include: 1. Misbehaviour on the floor of the House (use of violence, anti-social behaviour, refusal to follow instructions from the Chair, disruption of proceedings in an unparliamentary manner, etc.). 2. Misuse or abuse of parliamentary office or of parliamentary privileges. 3. Breach of conduct rules. 4. Commission of cognizable offences under any law for the time being in force. 5. Commission of all kinds of offences that may be broadly covered under the term “white collar offences”. 95 3. Should penal offences committed by members of Parliament also be construed as misconduct?
Yes, please refer to response to the second query above.
4. If the answer to question No. 3 above is ‘Yes’, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise?
Both must be covered under the definition of “misconduct”. However, a distinction may be made between the two for the purpose of deciding the nature of inquiry and the penalties/ punishment could be different.
5. If the answer to question No. 3 is ‘Yes’, should the proceedings of misconduct be initiated only after the commission of penal offences have been finally established in a court of law?
This is a question for legal experts to answer.
6. What should be the appropriate punishment if misconduct is proved?
In case misconduct is proved, the punishment would depend upon the kind of misconduct. The punishment could range from admonition or reprimand to withdrawal of privileges/ perks for minor misconduct and from suspension to expulsion for gross misconduct.
7. Do you think it should be incumbent on political parties to ask their members to resign from membership of the House if they are found to have indulged in any misconduct?
No. There cannot be any per se rule of the kind. It may create anomaly, for instance, in a case where the House thinks that a reprimand is enough punishment for such misconduct but the member has to resign because of such a rule, even though in the opinion of the House, he has been sufficiently punished. It is, therefore, best to let each political party decide for itself.
8. Would it help if it is made mandatory for the concerned political parties to issue a certificate to the Presiding Officer of the respective House that none of their member is of doubtful integrity and will not indulge in any misconduct?
This is too general, but any certificate would instil a sense of responsibility.
96 RESPONSE FROM ILS, LAW COLLEGE
REPLY TO QUESTIONNAIRE DATED JANUARY 22.1.2007
1. Yes. Powers, privileges and immunities available to Parliament serve a broad purpose of ensuring that MPs function without fear or bias. An ethical and effective Parliament being the envisaged objective.
2. Yes. Considering the current position of law, the scope for abuse of privileges is wide. Time and facts have also shown how privileges have been held to protect certain gross illegalities. The facts in P.V. Narsimha Rao v. State, AIR 1998 SC 2120 are an illustration in this context. It is to be remembered that all organs of State are bound by the Constitution, so is Parliament in all its functions.
3. The wide protection given to MPs by privileges is definitely capable of being misused against the people of the country, particularly against the Fundamental Rights of people.
4. Yes, the fact that no law has codified the privileges is clearly interpreted as a deliberate inaction, enabling Parliament to operate in a sea of vagueness, but vagueness is desirable here.
5. Codification of privileges is not advisable.
6. A codified law can be challenged on minute details, considering that such a law will be bound by the mandate of all Fundamental Rights (see Article 13). However, a broad definition of either contempt or privilege is necessary in today’s context. Without a codified law, the courts are entitled to review only the gross illegalities or violations of the Constitution.
7. Refer to answer for question 6.
8. Extending the protection of privileges to political functions of MPs is not permissible. The privileges are intended to protect the dignity of Parliament. Political functions are to be distinguished from parliamentary functions as Parliament is the platform to debate on the issues of governance. Privileges are intended to preserve the dignity of Parliament as a democratic institution. Therefore there is no need for broadening the content of parliamentary privileges on the lines suggested in Q. 8.
97 9. A definition of contempt of a House of Parliament will have to be broad by its inherent nature. The contempt of a House has to be interpreted in the context of the facts in each case. In view of this position the criticism that the definition of contempt of a House is vague and unspecific is not justified.
10. The power to punish for contempt has already been provided for under Article 105(3) of the Constitution. There can be no doubt that Parliament is the supreme legislative body of the country. The Constituent Assembly Debates reveal that Article 105 was enacted so as to grant all necessary and ancillary powers for an effective Parliament. However, it must be noted that the Constitution is equally clear that the Court is the final interpreter of the Constitution.
11. The scope for judicial review has been limited by Article 122 of the Constitution but the same does not protect acts in defiance of the Rule of law. The Supreme Court has recognised this distinction in accepting that procedural irregularities cannot be interfered with, while illegalities or unconstitutionalities in the exercise of contempt/privilege powers of the Parliament can be set aside.
12. Principle of separation of powers does not present the Judiciary from performing its constitutional duty of interpreting the Constitution and keeping the organs of State within their legal bounds. Judiciary has been well within its legitimate limits in interpreting the legal/constitutional limits of the contempt powers/privileges of the Parliament. Judicial activism by itself cannot be termed as “transgression” of borders of judicial review.
13. The Constitution of India is supreme in our country. It created the Executive, the Legislature and the Judiciary. While doing so, the separation of powers was imbibed. The organs of the State have been empowered with wide powers. The mere exercise of these powers by the organs of the State is not confrontation but a working example of what the Constitution’s makers intended to be the role of each organ. The organs of the State must work harmoniously with each other under the auspices of the Constitution itself. One must not consider recent history as a clash of powers but as a legitimate consequence of our Constitution and its history.
98 REPLY TO 2ND QUESTIONNAIRE DATED 10.9.2007
1. “Misconduct” is not the term that needs to be defined as Article 105 does not refer to this. Also, “misconduct” is a term used by other laws for other purposes. The use of this term in other laws needs to be distinguished from misconduct as a part of breach of “privilege” and “contempt” which has to be decided by Parliament on fact of each case. 2. Again, “misconduct” in the context of Parliament is not a term that needs to be defined. Any definition if thought necessary, in this sphere, will have to be broad and only illustrative. It is not advisable to enact a law on defining contempt of Parliament, but such a broad and illustrative definition can be a part of the rules of each House of Parliament. 3. Penal offences are a separate category. These can also be construed as misconduct if committed by an M.P. In this situation the action taken by the Parliament against an M.P. in the exercise of privileges and the power to punish for contempt will run parallel to the laws of the country providing for criminal prosecution. These two spheres operate independent of each other. Thus MPs like an ordinary citizen may be prosecuted for offences by appropriate courts and also they can be punished for contempt by the respective House. Also Representation of People’s Act, 1951, read with Article 102(e) of the Constitution, provides for the effect of criminal convictions on the tenure of MPs. 4. Refer to No. 3. 5. Not necessarily. Standard of proof in criminal matters under the law of crimes is very strict. Prosecution has to establish a clear picture of guilt, in other words, the case against the accused has to be proved beyond reasonable doubt. Whereas in other areas, including the area of parliamentary privileges, the case against a person can be proved on the basis of preponderance of probabilities principle. 6. The appropriate punishment should be decided on the facts and circumstances of each case. 7. Political parties cannot be legally obliged to ask their members to resign from the membership, but such a practice is morally and ethically viable for integrity in politics. 8. No useful purpose can be served from this. These certificates can have no effect on criminal proceedings or actual misconduct of MPs. Further, such provision to supply certificates can be abused for political purposes.
99
3034820
Phones: 3034628
3034828
JANATA DAL (UNITED) IN PARLIAMENT
Ref. No. ………… 4, Parliament House, New Delhi-110001
Dated 20.8.2007
To,
Shri V.K. Sharma Joint Secretary, Lok Sabha Secretariat Parliament House Annexe, New Delhi
Sub. : Questionnaire on various facets of misconduct and basic attributes of ‘Standards of Conduct/Behaviour expected of Members’ Ref. : Your Office Letter No. 1/2/07/P&E (IC) dated 12th July, 2007
Sir,
I wish to inform you that the members of the Janata Dal (U) in Parliament are of the opinion that the Member(s) who has covered the long journey from social work to Parliament an very well understand the meaning of misconduct even though some undesirable situation prevails then rules of misconduct and ethics are sufficient to deal with. Despite of the situation regarding misconduct, our members always remain conscious for the prevailing rules and ethics, but over and above our member maintains his or her awareness for the rules.
Further, the present rules/regulations/conventions are good enough for the time being. This was the outcome of the meeting convened on 16.8.2007, by the undersigned.
Sd/- (Prabhunath Singh), Leader, Janata Dal (United) in Parliament.
100 RESPONSE FROM MINISTRY OF LAW AND JUSTICE
LEGISLATIVE DEPARTMENT
Question No. 1.—Do you think there is a need to codify as to what actions on the part of the members of Parliament would come under the category of misconduct?
Answer. Article 105 of the Constitution of India provides for the privileges of Houses of Parliament and the members of Parliament. Besides this there are statutory provisions, Rules of Procedure and Conduct of Business in the Houses of Parliament which contain such privileges and also there are precedents of British House of Commons and conventions which have grown in this country.
2. Privileges presuppose the existence some duties to be performed by the members of the Parliament. In the performance of their duties, they have to follow certain set of rules commonly known as code of conduct. Many countries have the code of conduct for their Legislators. U.S.A., U.K., Australia and Zimbabwe are a few to name.
3. In India in 1997 Rajya Sabha set up an ethics committee with a view to overseeing the moral and ethical conduct of its members and to examine the cases referred to it with reference to their ethical and other misconduct. In its first report the committee has proposed a code of conduct for members consisting of fourteen broad principles and guidelines which the members should abide in their dealings. The code of conduct was adopted in 1999 and was reiterated in 2004.
4. Since there is already a code of conduct regulating the conduct of the legislators, there is no need to codify as to what actions of the members of Parliament should constitute misconduct.
Question No. 2.—What in your opinion should be the appropriate and comprehensive definition of misconduct vis-a-vis members of Parliament? Please give details of the acts which may come under definition of misconduct by members.
Answer. Defining proper conduct is a complex process. As such, ethics rules tend to be extremely detailed in order to minimize misunderstandings about what constitutes acceptable behaviour and what will amount to misconduct. Politicians may experience many conflict of interest scenario. However, the regulation of MP’s interests is not primarily about conflict of interest. It is about pecuniary interest
101 i.e. benefits that have a monetary value. Some of the instances of misconduct may be as follows:—
(i) use of public position to obtain personal benefit; (ii) providing benefits to influence official actions; (iii) use of confidential government information; (iv) receipt of gifts above a certain value; (v) receipt of fees or money for asking questions in Parliament; (vi) misuse of privileges allowed as such member; (vii) financial conflicts of interest; and (viii) nepotism.
2. In our view it would not be appropriate to give a comprehensive definition of misconduct as the same would be subject to the interpretation by the Court. Instead the Houses of Parliament may determine as to what acts would constitute misconduct.
Question No. 3.—Should penal offences committed by members of Parliament also be construed as misconduct?
Answer. Parliamentarians are held in high esteem by the people. They are supposed to be highly disciplined, self regulated and trendsetting persons. It is unthinkable for a person of that stature to indulge in criminal activities leading to penal consequences. Members of Parliament as people representatives are looked at by people as their role models and ones who are guiding their destiny, have, therefore to be beyond the realm of any kind of suspicion. Any action of an M.P. which lowers the dignity of the House of which he is a member, be it a penal offence, should be construed as misconduct.
Question No. 4.—If the answer to question 3 above is yes, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise?
Answer:— There should be no distinction between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise rather they should be awarded exemplary punishment for committing such offences. Breaking laws, to be sure is wrong for everybody, but it is ten times more so when it involves law makers. Moreover, as people’s representatives, they are also people’s leaders. It is this that makes exemplary punishment vital. On three occasions in the recent past instances of the misuse of parliamentary privilege by MPs have come to light. The first is the cash-for-questions scam of December 2005. The second involved 102 kickbacks in the use of the MPLAD funds. The most recent one was the misuse of diplomatic passports to make money through human trafficking.
2. The punishment in the first two cases was neither a deterrent nor exemplary was borne out by the fact that MPs were emboldened enough to indulge in human trafficking. They must have observed what action was taken by the Parliament as a collective, against the miscreants in the earlier cases. Of course, it is entirely possible that some of them were already indulging in illegal activities. It was, therefore, of considerable benefit to them not to impose too strict punishment. The net result of the manner in which punishment was meted out and the quantum of punishment itself was such as to be perceived by future offenders as an encouragement rather than a discouragement to break the law. What is even more interesting is to see how the quantum of punishment has been decreased for the next instance. In the cash-for-questions case there was a great deal of indignation and those caught were expelled. In the second case, the kickbacks from MPLAD funds, a brief suspension was awarded.
3. The message was clear: (a) the probability of getting caught was low with the cloak of parliamentary privilege (b) even if one is eventually caught one can get away at least for the first four or five attempts; (c) there is always the possibility that even after being caught, Parliament is unlikely to do anything that is seriously damaging to one’s self-interests.
4. When committees are set up for reviewing the privileges of parliamentarians, the committee members should naturally review the need to have privileges like diplomatic passports and body searches at airports, the MPLAD funds and so on but more importantly, there is a need to provide deterrent and exemplary punishment for the criminal activities of MPs. Those in these committees know this but they still need to be reminded that even today the majority of our leaders are law-abiding and patriotic. It is the few who are giving Parliament a bad name.
5. Think of the vast multiplier advantages of effective deterrent. Punish one and a thousand others will become law-abiding. What a relief for law enforcement agencies that would be. How much more effective can they become in the discharge of their duties if their crimes are reduced a hundred-fold? At the same time care should be taken to remember that a very large majority of MPs are the finest people one can imagine. 103 Question No. 5.—If the answer to question 3 is yes should the proceedings for misconduct be initiated only after the commission of penal offences has been finally established in a court of law?
Answer:—The proceedings for misconduct should be started as soon as the acts constituting the misconduct are brought to the notice of the House and it should not wait till the decision of the court comes where the facts are incontrovertible and nobody has any doubt about the involvement of the Member of Parliament in such acts. Of course it is for the police to investigate the case, produce evidence before a court of law and get him convicted. While the trial will take time, the M.P.’s presence in the House will be a disgrace to the august body. As for a precedent, Parliament had at the first available opportunity expelled those members who had shocked the nation when they were caught on camera accepting money for asking questions in the House. It should be recalled that the members concerned are yet to be tried and convicted in a court of law. Yet the Supreme Court upheld Parliament’s decision to expel them when they questioned it there. In other words, Parliament is empowered to expel members who in public perception have lowered the dignity of the House by their unbecoming act.
Question No. 6—What should be appropriate punishment if misconduct is proved?
Answer—A variety of penalties are found among the various legislatures: Broadly speaking, they can be characterized as follows:
— Criminal-type sanctions: Imprisonment, Fines, etc. — Legislative sanctions: Exclusion (permanent or temporary), loss seniority, etc. — Stigmatisation: Reprimand, censure, admonishment, etc.
Criminal-type sanctions probably require the procedural safeguards of the Courts.
Legislative sanctions, by contrast are probably best implemented by members of the legislature itself; likewise stigmatization is probably best served by one’s colleagues. It is hard to draw a distinction between the terms ‘censure’, ‘admonishment’, ‘reprimand’, etc. These terms are very much culturally specified.
It may be possible to separate the jobs of judging the offence and determining penalties, so that complaints were investigated by a judicial body (with judicial safeguards), but that the legislature itself decided on the sanction. In the UK the Neill Committee on Standards in Public 104 Life recommended that appeals in serious cases of (non-criminal) misconduct should go to a senior judge sitting alone, but return to the Parliamentary Select Committee for penalties [Sixth Report of the Committee on Standards in Public Life (2000) cm 4557-I].
Question No. 7.—Do you think that it should be incumbent on political parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct?
Answer—Ideally it should be incumbent on the political parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct. However, even if the political parties do not ask the incumbent to resign, the House has the power to take action against such erring incumbent.
Question No. 8.—Would it help if it is made mandatory for the concerned Political Parties to issue a certificate to the Presiding Officer of the respective House that none of their members is of doubtful integrity?
Answer—Political parties are responsible for the selection of the candidates to fight the election on their ticket. In fact it is the political Parties only who decide as to who are going to be the representatives of the people in the Parliament. If the concerned Political parties are made to issue a certificate to the Presiding Officer that none of their members is of doubtful integrity, then they will take utmost care while selecting the candidates. As of now they are concerned only with the results of the election and not with stuff they are sending to the Parliament in the process. The issuance of such a certificate shall make them realize that they will have to carry the responsibility of the person they are certifying with such certificate.
105 MINISTRY OF PARLIAMENTARY AFFAIRS (Research & Conference Section)
Subject: Questionnaire on various facts of misconduct and basic attributes of “Standards of Conduct/Behaviour expected of Members”.
Will Lok Sabha Secretariat please refer to their U.O. Note 1/2/07/P&E (IC) dated 13.7.2007 addressed to PS to Hon’ble Minister of Parliamentary Affairs on the above cited subject.
2. It is stated that once the Committee finalizes its views on the matter and presents its Report to the House, the Hon’ble Minister of Parliamentary Affairs will have to respond on behalf of the Government and in view of the same, it is felt that it would be appropriate if he indicates his views at a later stage.
3. This has been seen by the Hon’ble Minister of Parliamentary Affairs.
Sd/- (Santosh Prabha) Deputy Secretary to the Govt. of India Tel : 23034746
Lok Sabha Secretariat (Shri V.K. Sharma, Jt. Secretary), 21, Parliament House, New Delhi M.P.A. U.O. No. F 5(1)/2007-R&C dated 23.8.2007
106 RESPONSE FROM SHRI SOLI J. SORABJEE, SENIOR ADVOCATE
Q. 1 Do you think there is a need to codify as to what actions on the part of the members of Parliament would come under the category of misconduct? Ans. Yes. A codified rule of misconduct would impart certainty about what constitutes misconduct. It would enable members to be aware of any commission or omission of theirs that may be found against them as misconduct. Such a codified category of misconduct would also improve the standards of probity and rectitude in public life, which would then set the standards for other public offices. Q. 2 What in you opinion should be the appropriate and comprehensive definition of misconduct vis a vis members of Parliament? Please give details the acts which may come under definition of misconduct by members. Ans. It is not practicable to give an exhaustive or comprehensive definition of misconduct. Some illustrations of misconduct can be (a) conflict of interests whilst voting on a motion in Parliament; (b) other grounds which impair the fitness and propriety of a member continuing to occupy such an office. Other examples of misconduct could include (a) findings by a competent tribunal or a court of corrupt practices or of criminal conduct involving moral turpitude; (b) other conduct which is unbecoming of a member of Parliament for example, rowdy and disorderly behaviour in the House, indulging in abusive language and obscene gestures during the proceedings and repeated interruption and other acts disrupting the work of Parliament. Q. 3 Should penal offences committed by members of Parliament also be construed as misconduct? Ans. Yes, if there is a clear finding of breach of criminal law by a tribunal or a court and the offence committed is serious and involves moral turpitude. Q. 4 If answer to Question No. 3 above is ‘Yes’, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise? 107 Ans. No. The benefit of privilege should not be extended to criminal acts including moral turpitude.
Q. 5 If answer to Question No. 3 is ‘Yes’, should the proceedings for misconduct be initiated only after the commission of penal offences has been finally established in a court of law?
Ans. A finding by a competent criminal court which is categoric should suffice for initiation of proceedings of misconduct. Mere pending of appeal should not come in the way of initiation of proceedings.
Q. 6 What should be appropriate punishment if misconduct is proved?
Ans. This would depend upon the gravity of the offence. The punishment may range from temporary suspension of the delinquent member to expulsion from the House.
Q. 7 Do you think that it should be incumbent on the political parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct?
Ans. The recommendations of the Law Commission in its 170th Report envisage an internal disciplinary mechanism. However, if codified rules of conduct and ethics are made, a direction from the political party would be inconsequential and a member would be bound to resign, if held/found guilty of violating such Rule.
Q. 8Would it help if it is made mandatory for the concerned political parties to issue a certificate to the Presiding Officer of the respective House that none of their member is of doubtful integrity and will not indulge in any misconduct?
Ans. It would be unrealistic and impracticable. Political parties would not be keen on issuing certificate of doubtful integrity.
108 PRANAB MUKHERJEE MINISTER OF EXTERNAL AFFAIRS, INDIA
No. 7088/EAM/2007 3rd August 2007.
Dear Shri Achary,
I am writing with reference to Letter No. F. No. 1/2/07/P&E (IC) dated 12th July 2007, enclosed with which was a Questionnaire on various facets of misconduct and basic attributes of “Standards of Conduct/Behaviour expected of Members”.
I am pleased to forward herewith the response of the Indian National Congress to the above mentioned questionnaire for further appropriate action at your end.
With regards,
Yours sincerely,
Sd/- (Pranab Mukherjee) Shri P.D.T. Achary, Secretary-General, Lok Sabha, 18, Parliament House, New Delhi.
Copy with a copy of enclosure forwarded to Shri V.K. Sharma, Joint Secretary & In-charge of Legal Cell (VK), Lok Sabha Secretariat, 21 Parliament House, New Delhi.
Sd/- (Anil Verma) PS to EAM
109 RESPONSE TO THE QUESTIONNAIRE
1. Do you think there is a need to codify as to what actions on the part of the Members of Parliament would come under the category of misconduct? Ans. Though there may be some justification in formulating guidelines, it would neither be prudent nor perhaps possible to codify such actions on the part of Members of Parliament that would come under the category of misconduct. Misconduct is nothing but “conduct unbecoming of a Member of Parliament” not only in the discharge of his parliamentary functions but also in the discharge of his public duties and probity of conduct in private life to the extent it impacts on the performance of his public duties. What amounts to conduct “unbecoming of a Member of Parliament” depends on the facts and circumstances of the case, the context in which the conduct is being scrutinized and the prevailing environment. Codification is perhaps not the way to move forward. 2. What in your opinion should be the appropriate and comprehensive definition of misconduct vis a vis Members of Parliament? Please give details of the acts which may come under definition of misconduct by members. Ans. In the context of the above, it may be inappropriate to give a comprehensive definition of “misconduct” of Members of Parliament. 3. Should penal offences committed by Members of Parliament also be construed as misconduct? Ans. Penal offences committed by a Member of Parliament clearly amount to misconduct, but the offence must be such that it involves moral turpitude and not minor offences, which occasionally are committed in the course of political agitation and activities. The existing constitutional and statutory provisions should prevail. 4. If answer to Question No. 3 above is “Yes”, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise? Ans. The distinction between penal offences committed by members while misusing privileges/facilities available to them and those committed otherwise is based on the fine distinction that if
110 Members of Parliament in the discharge of their parliamentary duties and functions misuse their privileges/facilities and in the process commit penal offences, then such conduct may amount to misconduct and therefore within the purview of Parliament and that penal offences committed without reference to their parliamentary privileges/facilities is misconduct which is dealt with by procedures available under respective penal statutes. The problem is that under both these instances, the conduct is “unbecoming of a Member of Parliament” and jurisdiction is available under respective penal statues to punish the delinquent Member of Parliament. But there may be instances where the conduct is so unbecoming that Parliament as a body has to protect its honour and dignity and ought not to wait for the verdict of a dilatory judicial procedure. Parliament’s supremacy in this regard must not be diluted. 5. If Answer to Question No. 3 is “Yes”, should the proceedings of misconduct be initiated only after the commission of penal offences has been finally established in a court of law? Ans. Whether or not one makes the distinction as reflected in Question No. 4, Parliament as a body can and should under extraordinary circumstances deal with delinquent Members of Parliament before final guilt is established in a court of law. 6. What should be appropriate punishment if misconduct is proved? Ans. Appropriate punishment depends upon the gravity of the offence and must be left to the discretion of Parliament. 7. Do you think that it should be incumbent on the Political parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct? Ans. The answer to Question No. 7 is in the negative. Political parties cannot be asked to make delinquent members resign. That should be the decision of Parliament as a body and not be left to political parties. 8. Would it help if it is made mandatory for the concerned political parties to issue a certificate to the Presiding Officer of the respective House that none of their member is of doubtful integrity and will not indulge in any misconduct? Ans. Political parties should not be asked to hazard the issuance of a certificate vouchsafing for the integrity of its members since acts of doubtful integrity are normally committed clandestinely without the knowledge of political parties.
111 P. P. R A O Senior Advocate
Chamber: Residence: 82 Lawyers Chambers, ‘Park View’ 143 Sector-15A, Supreme Court Compound Noida-201 301 New Delhi-110 001 Code No. 95120 (From Delhi) Phones : 23386929, 23382250, 23388730 0120 (Other than Delhi) Fax : 23782494 Phones : 2511655, 2511715 Mobile : 9811152510 Fax : 2511775 e-mail:[email protected] in [email protected] Fax 011-23012862 21 July 2007
Shri V.K. Sharma Joint Secretary Lok Sabha Secretariat Parliament House Annexe New Delhi-110 001
Sub: Questionnaire on various facets of misconduct and basic attributes of ‘Standards of Conduct/Behaviour expected of Members’
Ref : Your letter F. No. 1/2/07/P&E (IC) dated 12 July 2007
Dear Sir,
My response to the questionnaire is as follows:
Q 1. It is desirable and necessary to codify what actions on the part of the members of Parliament would constitute misconduct so that the Members know what they should not do.
Q 2. The word ‘misconduct’ is generally understood to mean behaviour which is regarded as immoral or unethical. The meaning of the words ‘misconduct’ and ‘misconduct in office’ given in Black’s Law Dictionary 6th Edition is extracted below. “Misconduct. A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour; its synonyms are misdemenaour, misdeed, misbehaviour, delinquency, impropriety, 112 mismanagement, offence, but not negligence or carelessness. Term “misconduct” when applied to act of attorney, implies dishonest act or attempt to persuade court or jury by use of deceptive or reprehensible methods.....”
Misconduct in office. Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act....”
It is not easy to define ‘misconduct’ exhaustively. In the context of Members of Parliament ‘misconduct’ may mean any act which shows lack of integrity, lack of respect for the House or its Presiding Officer and lack of concern for the dignity and authority or conduct which unreasonably obstructs transaction of business of the House.
‘Misconduct’ being a wider concept than ‘contempt’, acts which constitute contempt of the House or a breach of the privilege of the House also fall within its ambit. Unseemly conduct in the House or outside the House in public amounts to misconduct. I suggest that in addition to the definition of the word ‘misconduct’, instances in which the House has in the past admonished or otherwise punished its members for conduct considered unworthy of a member may be given in a Schedule to the Rules for the guidance of the Members.
Q 3. Yes. Commission of a penal offence by a Member of Parliament amounts to misconduct of a grave nature. If the offence is committed within the precincts of the House, a more serious view needs to be taken by the House.
Q 4. Yes, distinction should be made. Offences committed while misusing the privileges/facilities of the House will be of immediate and direct concern of the House warranting swift initiative to be taken by the House itself for dealing with the issue.
Q 5. Not necessary. The House need not wait till the Member is convicted of the offence committed by him by a Court of Law. If the offence is not a trivial one, the least, the House can do is to suspend his membership of the House pending his trial in a Court of law. The House should not depend on the political parties in matters concerning misconduct of its members. The House itself should take proper action. In the case of serious misconduct, the House can expel the Member concerned after due inquiry.
113 Q 6. The measure of punishment depends upon the nature and gravity of misconduct proved. The punishment may range from admonishing to expulsion from the House. And in case of misconduct which is also an offence, in addition it may be reported to the police to facilitate prosecution of the Member.
Q 7. The House need not depend on the political parties at all in the matter of dealing with the misconduct of Members of the House. The House itself, should exercise its powers to deal with case of misconduct of its Members and thereafter, leave it to the good sense of the political parties to ask their members to resign from the membership of the House, if the nature of misconduct warrants such a course, in a given case.
Q 8. I am not at all in favour of involving the political parties, the political parties being what they are. As it is there is no law to ensure proper functioning of political parties consistent with transparency and accountability. At times political parties may tend to be guided by expediency rather than values or political morality. No useful purpose will be served by making it mandatory for the concerned political parties to issue a certificate of integrity to its members.
Sd/- Yours faithfully, P. P. Rao
114 RESPONSE FROM CEO, MEDIA AND ENTERTAINMENT
Q 1. Do you think there is need to codify as to what actions on the part of the members of Parliament would come under the category of the misconduct? A 1: This is an era of intense public probity. A public figure has reason to celebrate this unique occasion where the general public truly lauds any good act conducted by the members of Parliament. The expectations from public servants are always on the rise. The common man on the street seeks empowerment through the representative he or she sends to Parliament. The common man wants his or her representative to be completely above board. This means that each and every action of the members of Parliament is under the scanner. To ensure there is a fair assessment of what is good conduct and what is not there is need to codify as to what actions on the part of the members of Parliament would come under the category of the misconduct. The guiding principle while codifying these actions has to be that members of Parliament purely act on behalf of the people they represent. Any action taken by the members of Parliament in contravention of this basic principle would obviously be under the lens. Ideally though there should be no reason to expect any misconduct given the unprecedented faith and responsibility the Indian public invests in its members of Parliament. Q 2. What in your opinion should be the appropriate and comprehensive definition of misconduct vis a vis members of Parliament? Please give details of the acts that may come under definition of misconduct by members? A 2: The broad guiding principles under which the members of Parliament are expected to act are: they act purely as the empowered representative of the people who elect them; members act in a manner that they not only maintain the dignity and sanctity of the Parliament but also enhances it; and above all they (members) are accountable to both Parliament and the people’s court for their overall conduct and behavior. Any appropriate and comprehensive definition of misconduct accordingly would mean contravention of either of these founding principles governing the life and times of members of Parliament in a functional democracy. The golden rule to follow is that when people in public life are in doubt whether a particular action is consistent with the standards expected of them, the only proper course is not to do it. The key issue is not only being fair but also being seen to be fair, objective and completely above board.
115 Q 3. Should penal offences committed by members of Parliament also be construed as misconduct?
A 3: This is fairly debatable. While there is strong merit in ensuring that each and every member of Parliament behaves completely above board both on the floor of the House and outside, defining penal offence at the outset as a misconduct might give rise to some serious repercussions on the polity. The recent penchant for courting the judiciary at the slightest pretext (at times with unsubstantiated and motivated charges) is a potential danger area. There is reason to fairly argue that penal offences committed by the members of Parliament be also construed as misconduct only when they are convicted. It might be perhaps a good idea to mount fast track courts to ensure expeditious trial of penal charges leveled against any member of the Parliament. This is perhaps the best possible solution to ensure fairness without losing sight of the key objective of justice being done.
Q 4. If answer to Question No. 3 above is ‘yes’, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise?
A 4: An offence is an offence in the first place. There should be no distinction between the two. Actually it might make fairer sense to provide for harsher punishment in case of penal offences committed by members (only after they are convicted for the offence) while misusing the privileges/facilities available to the members of Parliament. A privilege is available to the members of Parliament to be able to better serve the common man on the street.
Q 5. If answer to Question No. 3 is yes, should the proceedings for misconduct be initiated only after the commission of penal offences has been finally established in a court of law?
A 5: Yes, the proceedings for misconduct should be initiated only after the commission of penal offences has been finally established in a court of law.
Q 6. What should be appropriate punishment if misconduct is proved?
A 6: The punishment has to be two-fold: one to reprimand the erring member and second to act as a deterrent against any future act of misconduct. The argument in favor of double jeopardy is invalid. An act of misconduct by the member of Parliament goes against the very basic tenet of the Indian democracy hence punishment is in order
116 both at the hands of the court as also the Parliament. The extent of punishment has to be exhaustive. This might include termination of all financial benefits and perks enjoyed by the erring members in his capacity of being the people’s representative on the floor of the House.
Q 7: Do you think it should be incumbent on the political parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct?
A 7. Yes, it should be incumbent on the political parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct. This is critical to ensure that the dignity and sanctity of the Parliament remains intact. The Indian public would indeed laud any such move for it would publicly demonstrate the political will to rise to the expectations of the people of the country.
Q 8. Would it help if it were made mandatory for the concerned political parties to issue a certificate to the presiding officer of the respective House that none of their member is of doubtful integrity and will not indulge in any misconduct?
A 8: This is an ideal situation but may not be practically achievable. Mandatory character certificates by political parties to the presiding officers of the respective Houses might prove counter productive and result in loss of credibility should an individual member actually act otherwise. There is room though to bring in early rigorous checks and balances at the induction level. But the truth of the matter is that all checks and balances run the risk of failing should the individual member decide to act on his or her own losing sight of the sole objective of his being on the floor of the House.
117 RESPONSE FROM THE INDIAN EXPRESS
Questionnaire
Q 1. Do you think there is a need to codify as to what actions on the part of the members of Parliament would come under the category of misconduct?
Ans. I think it will be tough and impractical to list all the possible categories of misconduct. The Ethics Committee of the House can decide if a particular act amounts to misconduct.
Q 2. What in your opinion should be the appropriate and comprehensive definition of misconduct vis a vis Member of Parliament? Please give details of the acts, which may come under definition of misconduct by members.
Ans. Any act that is perceived to undermine the image of a people’s representative instances of corruption and conflict of interest compromising public trust can be considered misconduct.
Q 3. Should penal offences committed by members of Parliament also be construed as misconduct?
Ans. Yes.
Q 4. If answer to Question No. 3 above is ‘yes‘, should a distinction be made between penal offences committed by members while misusing the privileges/facilities available to them and those committed otherwise?
Ans. Yes.
Q 5. If answer to Question No. 3 is ‘yes’ should the proceedings for misconduct be initiated only after the commission of penal offences has been finally established in a court of law?
Ans. No. The verdict will be challenged and the case could drag on for years. Here, the ethics committee should meet and take decision on the incident/case.
Q 6. What should be appropriate punishment if misconduct is proved?
Ans. The ethics committee should meet decide on the quantum of punishment according to the nature of the offence committed.
118 Q 7. Do you think that it should be incumbent on the Political Parties to ask their members to resign from the membership of the House if they are found to have indulged in any misconduct?
And. Yes, That’s the ideal solution. However, in penal offences, there may be debates about the nature and motive of cases and it will be too optimistic to expect parties to disown their MPs.
Q 8. Would it help if it is made mandatory for the concerned Political Parties to issue a certificate to the Presiding Officer of the respective House that none of their member is of doubtful integrity and will not indulge in any misconduct?
Ans. I don’t think it will help. No political party, I presume, will ever say its members are of doubtful integrity. So such an exercise is likely to end up as a meaningless ritual.
119 ⁄UÊ¡SÕÊŸ ¬ÁòÊ∑§Ê } •ÄÃÍ’⁄U wÆÆ| •ÊŒ⁄UáÊËÿ ‚ê¬ÊŒ∑§ üÊË ªÈ‹Ê’ ∑§Ù∆UÊ⁄UË ¡Ë ∑§Ù ¬˝Á·Ã •Ê¬∑§ ¬òÊ ÁŒŸÊ¢∑§ vÆ Á‚Ãê’⁄U wÆÆ| ∑§ ∑˝§◊ ◊¥, ‚¢’¢ÁœÃ Áfl·ÿ ¬⁄U ‚¢ˇÊ¬ ◊¥ ©UŸ∑§ ÁfløÊ⁄U ¬˝SÃÈà „ÒU– ß‚ Áfl·ÿ ∑§Ù ‹∑§⁄U ‚◊ÿ-‚◊ÿ ¬⁄U ©UŸ∑§ mÊ⁄UÊ ‚ê¬ÊŒ∑§Ëÿ ∑§ M§¬ ◊¥ ¬˝SÃÈà ÁfløÊ⁄UÙ¥ ∞fl¢ ⁄UÊ¡SÕÊŸ ¬ÁòÊ∑§Ê mÊ⁄UÊ Á∑§∞ Áfl‡Ê· ¬˝ÿÊ‚Ù¥ ∑§Ë ∑§Á≈¢Uª˜‚ ÷Ë ‚¢‹ÇŸ „Ò¥U– ‚ÊŒ⁄U „U./- ‚È∑ȧ◊Ê⁄U fl◊ʸ Á«Uå¬Ë ∞Á«U≈U⁄U v. ŒÈ⁄UÊø⁄UáÊ ∑§Ê ◊Ë’ Á∑§‚Ë ÷Ë ‚Ê¢‚Œ ∑§Ê ‚¢‚Œ ∑§ •ãŒ⁄U ÿÊ ’Ê„U⁄U ∞‚Ê •Êø⁄UáÊ Á¡‚‚ ¡ŸÃÊ/‚¢‚Œ •ÊÒ⁄U Œ‡Ê, Á∑§‚Ë ∑§Ë ÷Ë ¬˝ÁÃc∆UÊ ∑§Ù •ÊÉÊÊà ‹ªÃÊ „UÙ– ‚Ê¢‚Œ ‹ÊπÙ¥ ◊ÃŒÊÃÊ•Ê¥ ∑§Ê ¬˝ÁÃÁŸÁœ „UÙÃÊ „ÒU, ß‚Á‹∞ Á‚flÊÿ •¬ŸË √ÿÁÄêà ¬˝ÁÃc∆UÊ ∑§ ©U‚∑§ ¬Ê‚ •¬ŸÊ ∑ȧ¿U ÷Ë Ÿ„UË¥ „UÙÃÊ „ÒU– ¡’ Ã∑§ fl„U ‚Ê¢‚Œ „ÒU, •ÊÒ⁄U “¬Ífl¸” ÷Ë „UÙ ¡Ê∞ Ã’ ÷Ë ©U‚∑§ ‚ÊÕ “•◊È∑§ ˇÊòÊ ∑§ ¬˝ÁÃÁŸÁœ” ¡È«∏UÊ ⁄U„UÃÊ „ÒU– ∞‚ ◊¥ ©UŸ∑§Ê √ÿÁÄêà •ÊøÊ⁄U-ÁfløÊ⁄U •ÊÒ⁄U ‚¢‚Œ ◊¥ ©U‚∑§Ë ¬⁄U»§Ù⁄U◊¥‚ ‚’ ∑§‚ı≈UË ¬⁄U ⁄U„UÃË „ÒU– ÿÁŒ fl„U ‚¢‚Œ mÊ⁄UÊ ’ŸÊ∞ Á∑§‚Ë ÷Ë ÁŸÿ◊ ∑§Ê ©UÀ‹¢ÉÊŸ ∑§⁄UÃÊ „ÒU, øÊ„U fl„U ‚¢‚Œ ◊¥ •¬Ÿ ÁfløÊ⁄UÙ¥ ∑§Ë •Á÷√ÿÁÄà ¬⁄U „UË „UÙ ÃÙ ©U‚ ¬⁄U ∑§Ê⁄¸UflÊ߸ „UÙŸË øÊÁ„U∞– ÿÁŒ Á∑§‚Ë ÷Ë ⁄UÊ¡ŸÃÊ ∑§Ù, Á∑§‚Ë ÷Ë ∑§Ù≈¸U Ÿ Á∑§‚Ë ◊Ê◊‹ ◊¥ ŒÁá«Uà Á∑§ÿÊ „ÒU ÃÙ fl„U ŒÈ⁄UÊø⁄UáÊ ∑§Ë üÊáÊË ◊¥ ◊ÊŸÊ ¡Ê∞ •ÊÒ⁄U ©U‚ ⁄UÊ¡ŸÃÊ ∑§Ê ‚¢‚Œ ◊¥ ¬˝fl‡Ê ⁄UÙ∑§ ÁŒÿÊ ¡Ê∞– w. ÿÁŒ ‚¢‚Œ ◊¥ Á∑§‚Ë ÷Ë ‚ŒSÿ ¬⁄U ∑§Ù߸ •Ê⁄UÙ¬ ‹ªÃÊ „ÒU ÃÙ ©U‚∑§Ë ¡Ê¢ø „UÙŸË øÊÁ„U∞– ¡Ù ÷Ë ª‹Ã ¬ÊÿÊ ¡Ê∞, øÊ„U •Ê⁄UÙ¬ ‹ªÊŸ flÊ‹Ê ÿÊ Á¡‚ ¬⁄U •Ê⁄UÙ¬ ‹ªÊ „ÒU, ©U‚ ‚¡Ê Á◊‹ŸË øÊÁ„U∞– x. Á∑§‚Ë ÷Ë ‚ŒSÿ mÊ⁄UÊ •¬ŸË ‚Ë≈U ¿UÙ«∏U∑§⁄U fl‹ ◊¥ •ÊŸ ∑§Ù ŒÈ⁄UÊø⁄UáÊ ∑§Ë üÊáÊË ◊¥ ◊ÊŸÊ ¡Ê∞– ß‚Ë Ã⁄U„U •Ê¬‚ ◊¥ „UÊÕʬÊ߸, •÷º˝ ÷Ê·Ê ∑§Ê ßSÃ◊Ê‹ ÿÊ Á»§⁄U ‚ŒŸ ∑§Ë ‚ê¬ÁûÊ ∑§Ù ŸÈ∑§‚ÊŸ ¬„È¢UøÊŸ ∑§Ù ÷Ë ŒÈ⁄UÊø⁄UáÊ ◊ÊŸÊ ¡Ê∞ •ÊÒ⁄U ‚¢’¢ÁœÃ ‚ŒSÿ ∑§Ù ÃÈ⁄¢Uà ÁŸ‹Áê’à Á∑§ÿÊ ¡Ê∞– ‚⁄U∑§Ê⁄UË ‚ê¬ÁûÊ ∑§ ŸÈ∑§‚ÊŸ ¬⁄U ‚¡Ê ∑§Ê ¬˝ÊflœÊŸ „UÙ– y. ‚ŒŸ ◊¥ ÿÁŒ ∑§Ù߸ ©U¬º˝fl „UÙÃÊ „ÒU ÃÙ fl„UÊ¢ ‡ÊÊ¢Áà √ÿflSÕÊ ’ŸÊ∞ ⁄UπŸ ∑§Ë Á¡ê◊ŒÊ⁄UË ¬Í⁄‘U Ãı⁄U ¬⁄U ◊ʇʸ‹ ∑§ ¬Ê‚ ⁄U„U– ©U‚ ÿ„U •Áœ∑§Ê⁄U „UÙ Á∑§ fl„U ‚ŒŸ ∑§ •äÿˇÊ/ ‚÷ʬÁà ∑§Ù ‚ÍøŸÊ Œ∑§⁄U ‚¢’¢ÁœÃ ‚ŒSÿ/‚ŒSÿÙ¥ ∑§Ù ‚ŒŸ ‚ ’Ê„U⁄U ÁŸ∑§Ê‹ ‚∑§– z. ∑§Ù߸ ÷Ë √ÿÁÄà øÊ„U fl„U flø◊ÊŸ/ÁŸflø◊ÊŸ ‚Ê¢‚Œ „UË ÄÿÙ¥ ŸÊ „UÙ ÿÁŒ Á∑§‚Ë •Ê¬⁄UÊÁœ∑§ ◊Ê◊‹ ◊¥ ¡‹ ◊¥ „ÒU ÃÙ Ÿ ∑§fl‹ ©U‚∑§Ë ‚ŒSÿÃÊ ‚◊Êåà ∑§⁄U ŒË ¡ÊŸË øÊÁ„U∞ ’ÁÀ∑§ ©U‚ ¡‹ ◊¥ ⁄U„Uà øÈŸÊfl ‹«∏UŸ ∑§Ë ¿ÍU≈U ÷Ë Ÿ„UË¢ „UÙŸË øÊÁ„U∞– {. Á∑§‚Ë ÷Ë Ã⁄U„U ∑§Ê ŒÈ⁄UÊø⁄UáÊ Á‚h „UÙŸ ¬⁄U ‚Ê¢‚Œ ∑§Ë ‚ŒSÿÃÊ ‚◊Êåà „UÙ ¡ÊŸË øÊÁ„U∞– •ãÿ Œá«U ∑§ÊŸÍŸ ∑§ ◊ÈÃÊÁ’∑§ Á◊‹Ÿ „UË øÊÁ„U∞– •ÊÒ⁄U ¬ÈŸ— øÈŸÊfl ‹«∏UŸ ∑§Ë ¿ÍU≈U Ÿ„UË¥ „UÙŸË øÊÁ„U∞– |. ‚¢‚Œ ∑§Ù ‚Ëœ „UË ∑§Ê⁄¸UflÊ߸ ∑§⁄UŸË øÊÁ„U∞– ⁄UÊ¡ŸËÁÃ∑§ Œ‹ ‡ÊÊÿŒ „UË ∑ȧ¿U ∑§⁄U ¬Ê∞¢– }. ŸÒÁÃ∑§ Œ’Êfl ÃÙ ’ŸªÊ „UË–
120 Nakul Das Rai Ranipool Bazar, Member of Parliament Gangtok-737135, East Sikkim (Lok Sabha) Phone : (03592) 250014, 251856 Member: Standing Committee 197, North Avenue, Petroleum & Natural Gas New Delhi-110 011 Phone : (011) 23092474
February 28, 2008
Dear Shri Sharma ji,
I am writing this letter to you with reference to our letter No. 1/2/07/P&E (IC) dated 20th February, 2008 and I am giving my opinion and suggestions of ‘Standards of Conduct/Behaviour expected of Members’ are as under:—
1. Yes there is an urgent need to codify the actions that come under the category of misconduct by Members of Parliament. Countries including United Kingdom, have already adopted code of conduct and such codes are being developed by Parliaments of other countries as well. Such codes will provide a framework for do’s and don’ts for members and expects them to act ethically and with integrity.
2. Definition of ethics is beyond legality. Perhaps the minimum denominator of ethics is legality. All such acts that are illegal under relevant laws with provisions for conviction therefore constitute misconduct. The Ethics Committee of Rajya Sabha in its first report submitted on 01.12.1998 has listed 14 points under para 28 that serve as framework for code of conduct for members. Apart from this misconduct could include actions that lead to advancing private interest of self or others based on information received in course of Parliamentary duty and responsibility.
3. Yes.
4. Yes the penal offences committed by members while misusing the privileges/facilities available to them need to be separately examined by the Privileges and Ethics Committee.
5. Proceedings of misconduct for penal offences should be initiated only after conviction by the trial court. 121 6. Appropriate punishment could include censure, reprimand, suspension from the House for a specific period or any other penalty considered appropriate by the Committee. 7. The Ethics Committee could advise the Political Party to ask the member for resigning from the membership of the House if they have indulged in misconduct. However, it should be left to the collective conscience of the Political Party to accept the advice. 8. The misconduct is a personal issue. The Political Party should not be asked to give a certificate to the Presiding Officer of the respective House certifying integrity of the member and stating that he/she shall not indulge in any misconduct.
With regards,
Yours sincerely,
Sd/- (NAKUL DAS RAI) Shri V.K. Sharma, Joint Secretary, Lok Sabha, New Delhi.
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