A flawed waiver

Published : May 06, 2011 00:00 IST

SHARAD PAWAR, ICC president and Union Minister for Agriculture. Here, he is at the Wankhede stadium of the Mumbai Cricket Association, of which he is president, inspecting renovation work ahead of the April 2 Word Cup final. - PTI

SHARAD PAWAR, ICC president and Union Minister for Agriculture. Here, he is at the Wankhede stadium of the Mumbai Cricket Association, of which he is president, inspecting renovation work ahead of the April 2 Word Cup final. - PTI

The Cabinet decision to give the ICC a Rs.45-crore tax exemption is vitiated by Sharad Pawar's dual role as ICC chief and Union Minister.

THE celebrations over our richly deserved victory in the World Cup final on April 2 should not be allowed to deflect attention from a gross impropriety committed on March 31 by the president of the International Cricket Council, Sharad Pawar, at the meeting of the Union Cabinet, in which he participated as Minister for Agriculture. At this meeting, the Cabinet decided to give the ICC a tax exemption to the extent of a whopping Rs.45 crore, leaving the nation poorer by that amount.

The exemption was granted under Section 10(39) of the Income Tax Act, 1961. The exemption is granted on a case-by-case basis and, like any executive action, is open to challenge by a petition filed in the public interest. The merits are less relevant than the gravity of the constitutional wrong. That Pawar left it to his party colleague, Praful Patel, Minister for Heavy Industries, to do the talking does not diminish his lapse or conceal his complicity. The voice is Jacob's voice, but the hands are the hands of Esau (Genesis, 27: 22). Praful Patel was, as ever, more royalist than his king.

Involved here is a clear case of conflict of interest between a Minister's duties and responsibilities and his private interests and commitments; be they even to a sports body and not to a commercial concern. It is equally clear that there was no deception or deceit. Sharad Pawar did not have to declare his position as president of the ICC formally or for the record. It was known to all. The point is that he had no business to be present at the Cabinet meeting on March 31, which discussed the tax waiver, let alone espouse the ICC's case at the meeting through a known proxy.

A Union Minister's oath of office, prescribed by the Third Schedule of the Constitution, binds him to discharge his duties as Minister without fear or favour, affection or ill will. It is humanly impossible for a Minister to abide honestly by the oath if the Minister has an institutional tie to an outside body that makes claims to taxpayers' money.

As Sir Ivor Jennings wrote in his classic, Cabinet Government: The most elementary qualifications demanded of a Minister is honesty and incorruptibility. It is, however, necessary not only that he should possess this qualification but also that he should appear to possess it (third edition, page 106).

This fundamental was elaborated in 1937 by the distinguished lawyer Sir John Simon in the House of Commons on behalf of the Prime Minister: In the first place, it is plain that in no circumstances must a man who holds the position of a Minister ever allow himself to be in such a situation that his public duty will conflict with his private interests. The second principle is that no man should allow himself to occupy any portion of the time which he is bound to devote to his public duties in a disregard of his public duties, and pursuing any private interest whatever, whether it is in playing golf or in the nature of business.

The third principle is that inasmuch as the secrets of the government are specially in charge of Cabinet Ministers, no Minister, and particularly, no Cabinet Minister, must in any circumstances put himself in a position where he is not able to be the complete guardian of those secrets in that there is any possibility of any private interests being served through a knowledge of those secrets (324 H.C Debates Ss., 1220).

Unless the rules are observed there is every danger, as a Minister put it, of the government Bench becoming a sty for guinea pigs.

On February 25, 1952, Prime Minister Winston Churchill put on the table of the House of Commons an eight-para set of Rules on Ministers' Private Interests. They are not limited to commercial interests but, like Simon's formulations, cover every private interest, sports included. They bear quotation in extenso:

1. It is a principle of public life that Ministers must so order their affairs that no conflict arises, or appears to arise, between their private interests and their public duties.

2. Such a conflict may arise if a Minister takes an active part in any undertaking which may have contractual or other relations with a government department more particularly with his own department. It may arise, not only if the Minister has a financial interest in such an undertaking, but also if he is actively associated with any body, even of a philanthropic character, which might have negotiations or other dealings with the government or be involved in disputes with it. Furthermore, Ministers should be free to give full attention to their official duties, and they should not engage in the activities which might be thought to distract their attention from those duties (see the writer's Ministers' Misconduct, 1973. See page 381 for the full text. Emphasis added, throughout).

Note that the Rules go beyond presence or participation in the Cabinet meeting where the Minister's outside interests come up for discussion. Rule 2 bars his very possession of that interest and his active part in any undertaking which might have dealings with a government department. It may be even of a philanthropic character; not that anyone in his senses would associate the ICC or its chief Sharad Pawar's exertions with philanthropy. It is for him to decide whether presidentship of the ICC leaves him free to give full attention to [his] official duties. Informed media comment mostly holds otherwise.

In 1945, the British government drew up a bible to guide Ministers on points of propriety. With typical British understatement it was entitled Questions of Procedure for Ministers. British passion for secrecy which we share fully preserved it as a secret document until its publication in May 1992 by Prime Minister John Major. Works on constitutional law cite it as an authority. It has clear rules on actual or apparent conflict of interest.

In May 1995 the Committee of Standards in Public Life, headed by Lord Nolan, a distinguished judge, said in its first report: The public is entitled to expect very high standards of behaviour from Ministers, as they have profound influence over the daily lives of us all. The example they set is closely scrutinised by the public and the media. As Vernon Bogdanor told us, it is from Ministers that standards in public life must flow.'

We believe that a response is needed to the increased media and public interest in standards of ministerial conduct. In principle this interest is welcome.

We recommend that the Prime Minister puts in hand the production of a document drawing out from QPM the ethical principles and rules which it contains to form a free-standing code of conduct or a separate section within a new QPM. If QPM is to remain the home for this guidance, we recommend that it is retitled Conduct and Procedure for Ministers' to reflect its scope.

The precise wording of the new guidance will be a matter for the Prime Minister. We believe, however that the following essential principles should be spelt out, supported where necessary by detailed rules, some of which already exist in QPM:

Ministers of the Crown are expected to behave according to the highest standards of constitutional and personal conduct. In particular they must observe the following principles of ministerial conduct:

.... Ministers must ensure that no conflict arises, or appears to arise between their public duties and their private interests (pages 47 and 49).

Rules of Procedure

Reflect for a moment on what the Rules of Procedure of the Lok Sabha provide on the effect of a disqualifying interest on membership of its committees. Rule 255 reads thus: Where an objection is taken to the inclusion of a member in a committee on the ground that the member has a personal, pecuniary or direct interest of such an intimate character that it may prejudicially affect the consideration of any matters to be considered by the committee, the procedure shall be as follows:

(a) The member who has taken objection shall precisely state the ground of his objection and the nature of the alleged interest, whether personal, pecuniary or direct, of the proposed member in the matters coming up before the committee.

(b) After the objection has been stated, the Speaker shall give an opportunity to the member proposed on the committee against whom the objection has been taken to state the position.

(d) After the Speaker has considered the evidence so tendered before him, he shall give his decision which shall be final;

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

Explanation For the purpose of this rule the interest of the member should be direct, personal or pecuniary and separately belong to the person whose inclusion in the committee is objected to and not in common with the public in general or with any class or section thereof or on a matter of state policy.

How much more stringent should be a disqualification for membership of the nation's highest executive body set up by the Constitution, the Council of Ministers? On any fair reckoning with the Rules and Sharad Pawar's frenetic activity over a time as president of the ICC, in all propriety and decency he ought to choose one of the two.

He will not, of course. But the Cabinet's decision on exemption of taxes to the ICC is vitiated by his dual membership. The rules as to bias apply to executive as well as quasi-judicial bodies. No court will, for instance, uphold a government's order for acquisition of a property if it is shown that one of its Ministers was interested in it. The Cabinet's waiver is bad in law and deserves to be quashed on a petition filed in the public interest.

Sign in to Unlock member-only benefits!
  • Bookmark stories to read later.
  • Comment on stories to start conversations.
  • Subscribe to our newsletters.
  • Get notified about discounts and offers to our products.
Sign in

Comments

Comments have to be in English, and in full sentences. They cannot be abusive or personal. Please abide to our community guidelines for posting your comment