The controversy over External Affairs Minister Sushma Swaraj’s alleged intervention with the British government to aid former IPL chief Lalit Modi procure travel documents raises questions of conflict of interest and probity in the light of “self-imposed discipline” recommended for persons in high public offices by the Supreme Court in the Tansi land deal judgment of 2003.
The judgment, while acknowledging the “currents and cross-currents of political vicissitudes,” cautioned persons holding high elective offices from indulging in acts which leave them open to the charge of conflict of interest.
“Persons in public life are expected to maintain very high standards of probity and, particularly, when there is likely to be even the least bit of conflict of interest between the office one holds and the acts to be done by such persons, [they] ought to desist from indulging in the same,” the court recommended in the R. Saibharathi versus J. Jayalalithaa verdict of 2003.
The apex court said ethics was the essence of good governance. “Good ethical behaviour on the part of those who are in power is the hallmark of a good administration and people in public life must perform their duties in a spirit of public service rather than by assuming power to indulge in callous cupidity regardless of self-imposed discipline,” the judgment said.
Though the judgment dismissed the case against Tamil Nadu Chief Minister Jayalalithaa for lack of legal evidence, it observed that she must, however, atone by answering her conscience for raising suspicions of having bent rules and breached the spirit of the Code of Conduct to acquire public property for personal benefit.
The issue of ‘conflict of interest’, which comes under the principles of natural justice or ‘common sense justice’, is not codified.
In the judgment on Suresh Koshy George versus The University of Kerala of 1968, the apex court observed that the rules of natural justice are not embodied rules, but should be applied, according to the facts and circumstances of each case.
The state of mindIn the A.K. Kraipak case of 1969, the Supreme Court acknowledged that it was “difficult” to show whether a person was actually biased in mind when he showed favour to another. “It is difficult to prove the state of mind of a person,” the court observed. It also said a mere suspicion of bias was not enough to prove whether a person went the extra mile to help someone.
Forty years later, the court’s reasoning on bias in the A.K. Kraipak judgment was echoed by Justice T.S. Thakur in the IPL betting scandal case, involving former BCCI chief N. Srinivasan.
“The test is not whether bias was actually at work when a decision was taken. It is the reasonable likelihood of bias that determines whether the action can be faulted,” Justice Thakur wrote.
