Minister as party chief

Jagat Prakash Nadda’s elevation as the working president of the BJP indicates Amit Shah’s continuation as the party president at least for the time being. The home minister of the country also being the president of the ruling party poses serious questions of constitutional propriety as it could involve conflict of interest, in the larger sense of the phrase.

Time magazine journalist Olivia B Waxman recently wrote that “questions of profit in politics raised by Trump administration are older than (we) may think.” The linkage between the US President and his family business has been in the media gaze for quite some time on the ground of conflict of interest. The idea is rooted in profiteering and business interest.

As per Articles 102(1) and 191(1) of our Constitution, a legislator is precluded from holding an office of profit under the government. But, to put an end to the ethical dilemma of the persons at the helm of affairs and to ensure the sanctity of the decision-making process, the concept of conflict of interest should transcend the commercial sense and it should be taken as including political interest as well. The probity of governance requires stricter yardsticks. To quote M J Mafunisa, “a primary reason for concern about conflicts of interest is that they reduce public trust and confidence in the integrity and impartiality of the public functionaries.”

Article 74 of the Constitution speaks about the “Council of Ministers” at the Centre to “aid and advise” the President. A minister is appointed by the President on the advice of the prime minister, as per Article 75. It further implies that the minister should be a member of either House of Parliament at least within six months of assuming office.

This provision does not expressly bar the minister from acting as an office-bearer of a recognised political party. But it says that “before a minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule”.

The content of the oath or affirmation under the Third Schedule is more important than its form. It requires the minister for the Union to “bear true faith and allegiance to the Constitution of India as by law established.” The minister also needs to affirm that he/she “will faithfully and conscientiously discharge (the) duties as a minister for the Union.” More significantly, the oath should be an open declaration that the minister “will do right by all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will.”

Shah has taken this oath and is now functioning as the country’s home minister. But his continuation as president of the BJP clearly negates the intent and content of the oath. It is therefore possible to argue that there is an implied prohibition under Article 75 of the Constitution against a minister heading his political party. The office of the party president presupposes the existence of political interest for Shah.

The BJP being the richest political party can also have various economic interests as well. Administration of the “affairs of the Union” is to be done by the Council of Ministers who should be “collectively responsible” to the House of the people as per Articles 75 and 78 of the Constitution. This principle should equally apply to the state cabinets as well, since the scheme of Articles 164 and 167 dealing with the subject is more or less identical.

The double role now assumed by Shah will necessarily lead to conflict of interest. The violence in West Bengal is an illustrative case. As the Union home minister, Shah is expected to take a neutral and judicious position in the matter and the erring BJP leaders and workers in the state should be made to face the due process of law. The same is expected of Chief Minister Mamata Banerjee, too, as regards the miscreants belonging to her party.

Under the Seventh Schedule of the Constitution, though public order and the police come under the state list, the subjects of criminal law and procedure are in the concurrent list. In other words, law enforcement falls within the domain of the state government as well as the central government, in the manner provided by the Constitution. Curiously, the home minister at the Centre and the state’s chief minister are the official heads of the rival political parties who accuse each other for violence in the state.

Constitutional morality has to be the ideology of governance, both at the Centre and in the states. The dual personalities cannot meddle with the administration “in accordance with the Constitution and the law”. At a time when political parties function like corporate entities, the economic interest of the parties or those who run the parties also cannot be ruled out. That, too, can run counter to the notion of fairness expected from the public offices. The argument that there are precedents of dual position in other political parties does not justify the inherent irony.

British economist and Margaret Thatcher’s aide Tim Lankester remarked: “Societies need to guard against not just the actuality of conflict of interest intruding into official decision-making but also the perception that it may be doing so” (Conflict of Interest: A Historical and Comparative perspective, 2007).

Only when political corruption is properly conceived as a phenomenon not limited to financial transactions will we understand the issue in the correct perspective. In India, conflict of interest in high offices can lead to clear instances of abuse of power and political arbitrariness.

(The writer is a Supreme Court lawyer)