Sushma Swaraj Owes the Public an Explanation

Swaraj’s silence on the conflict of interest weakens her case of being ethically immaculate, writes Saurav Datta.

Sushma Swaraj finds herself in her tight spot. But her silence on the matter will only inflict further damage (Photo: Reuters, Lalit Modi’s instagram account)

Should it be about the personal or the public? Should one question Sushma Swaraj and her husband Swaraj Kaushal’s personal friendship with Lalit Modi and ask why she, while holding the post of the Leader of Opposition, requested his assistance (or if one is less charitable, “sought his favour”) in securing her nephew’s admission to a law programme in Sussex University?

Or, would it be better, strategically, to bring up that old chestnut — “conflict of interest”, and interrogate Swaraj on the links, if any, between her lawyer daughter, Bansuri’s professional engagement and her decision to “request” the UK government to show some “humanitarian concern” for Modi’s plight? 

Lalit Modi with wife Minal in Spain (Courtesy: Lalit Modi’s instagram account)

The first path mentioned above has its merits, no doubt, but because there isn’t any tangible proof of nepotism, it runs the risk of generating more mudslinging and obfuscatory, indignant counterattacks than something more substantial.

The second one, on the other hand, places one on stronger ground because now documentary evidence has emerged of Swaraj’s daughter, who was representing Modi in his passport impoundment case before the Delhi High Court, being privy to the official communication and parleys between the governments of India and the United Kingdom. The email trail shows that Bansuri Swaraj was copied the exchange between her mother, Modi and Keith Vaz, a British Labour MP who had the power and authority to secure a favourable outcome for the cricket baron-turned fugitive.

Impropriety or Conflict of Interest?

Not unsurprisingly, Swaraj and her backers in the government have maintained a studied silence on this issue, although the arguments on all other grounds have been assertive, and even combative.

A possible reason for that could be the fact that there isn’t any legally defined definition of “conflict of interest” which would apply to such a situation. There are rules applicable to judges, and MPs’ and MLAs’ pecuniary interests, among other things, but absolutely nothing on this intriguing nature of possible nepotism, which, could have had a bearing on the legal outcome of Modi’s case before the high court.

Proving the existence of a possible, proximate link would be fraught with fervid speculation, and might also invite charges of criminal contempt of court. This void doesn’t absolve Sushma though, because the thorny issue of institutional integrity remains.

Personal integrity has for long been touted by the purveyors of influence, or wielded as both sword and shield by the valiantly righteous to ward off probing questions into the ethics of their decisions. In 2011, P J Thomas, named as an accused in the palmolein scam (which took place when he was food secretary in Kerala in the early 90s) took the same plea before the Supreme Court.

The Congress government, despite being aware of this fact, appointed Thomas as the Central Vigilance Commissioner (CVC) – the head of India’s top integrity and anti-corruption institution. Two NGOs which do path-breaking work in public accountability challenged this appointment in court.

In its judgment, the court propounded a new, and much-needed concept – that of “institutional integrity.” It said that even if a person was a paragon of virtue in his personal life, the moment he holds public office, he must conduct himself in a way in which not only should his decisions be fair, but also that no one should have even an iota of doubt about their fairness. The ethics of the institution should prevail over the personal conduct and values of the person, the court held.

It’s pertinent that Sushma had vehemently opposed Thomas’s appointment, contending that even if he was yet to be proved guilty, or even face trial, it didn’t behove a tainted person to besmirch the institution of the CVC.

Conflict of Interest and Unethical Behaviour

There is precedent of a Supreme Court judge recusing himself from a case in similar circumstances. In 2009, Justice R V Raveendran declined to be on the Bench hearing the Anil and Mukesh Ambani dispute because his daughter was an associate in AZB & Partners, a law firm representing the elder of the two brothers. Although his daughter was not in the legal team before the court, the judge decided to uphold the highest traditions of public integrity.

Many would say that ministers shouldn’t be held to the same levels of scrutiny as Supreme Court judges, because the latter’s roles, functions and perception in the public eye are fundamentally different. Gérard Carney, constitutional law expert in Australia, has a strong counter to this contention. In his seminal work Members of Parliament: Law and Ethics, he shows how corruption and conflict of interest are linked.

According to Carney, all cases of corruption involve a conflict of interest, but the reverse doesn’t hold true. A case of corruption involves a clash between an official or minister’s public and private interests and usually a financial benefit is sought or obtained at the expense of public interest. Conflict of interest, which might not always involve monetary rewards or returns, is not a crime, but a manifestation of unethical behaviour.

The Prevention of Corruption Act criminalises bribery but doesn’t touch the kind of infraction Swaraj has evidently indulged in. Should that prevent the External Affairs Minister from at least giving a public explanation for her actions? Especially to do justice to her past record — of being one who never ceased to champion public integrity?