JOURNAL OF LAW & LEGAL REFORM VOLUME 1(4) 2020 605

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Published by Postgraduate Program, Master of Laws, Faculty of Law, Universitas Negeri Semarang, Indonesia

RESEARCH ARTICLE

CONFLICTING INTERESTS OF LEGISLATORS IN
INDIA: AN EXPLORATORY STUDY

Deb Zyoti Das1, Bhanu Singh Rohilla2

1,2 Himachal Pradesh National Law University, India

 debdas350@gmail.com

CITED AS
Das, D. Z., & Rohilla, B. S. (2020). Conflicting Interests of Legislators in India: An

Exploratory Study. Journal of Law and Legal Reform, 1(4), 605-616.

https://doi.org/10.15294/jllr.v1i4.39867

ABSTRACT

Law governs society and evolves with it as time progresses. The process of evolution is
a complex, continuous and an integrated cycle of different, moving spheres of life.
With the evolution of society, there arises a need for laws to govern the new behaviors
generated by such evolution. Hence, law-making bodies such as parliaments of
countries and states move and aspire to regulate; and mold the behavior of their
subjects and citizens in order to avoid, resolve and suppress chaos and maintain the
proper and smooth functioning of the society at hand. Persons involved in the law-
making process are also party to the society and hence influenced by their circles and
spheres of society. The interests of a particular legislator could be varied enough to
put a significant effect on the piece of legislation he is working on that will, in future
most probably guide the whole nation. With the party based Indian politics, it
becomes more difficult for a legislator to serve the interests of the nation before the
command and interests of the political party that the Legislator represents. It is thus
imperative for us to understand the difficulties and constraints that a legislator face
when he drafts or prepares Legislation or is involved in a law-making process. This
article explores and describes the scenario in India elaborately.

Keywords: Conflict of Interest; Legislator; Political Party; Indian Politics

Journal of Law and Legal Reform (2020), 1(4), pp. 605-616.

DOI: https://doi.org/10.15294/jllr.v1i4.39867 ISSN (Print) 2715-0941, ISSN (Online) 2715-0968

Submitted: 15 June 2020, Revised: 20 June 2020, Accepted: 8 July 2020

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TABLE OF CONTENTS

ABSTRACT …………………………………………………………………………. 605

TABLE OF CONTENTS ………………………………………………………….. 606

INTRODUCTION …………………………………………………………………. 606

INDIAN SETUP ……………………………………………………………………. 607
I. READING 1 ………………………………………………………………….... 607
II. READING 2 ……………………………………………………………………. 607
III. READING 3 ……………………………………………………………………. 608
LEGISLATIVE DRAFTING & LEGISLATORS ……………………………….. 608
CONFLICT OF INTERESTS ……………………………………………………... 610
CONCLUSION …………………………………………………………………….. 615

REFERENCES ……………………………………………………………………... 616

INTRODUCTION

Law governs society and evolves with it as time progresses. The process of evolution is

a complex, continuous and an integrated cycle of different, moving spheres of life.

With the evolution of society, there arises a need for laws to govern the new behaviors

generated by such evolution. Hence, law-making bodies such as parliaments of

countries and states move and aspire to regulate; and mold the behavior of their

subjects and citizens in order to avoid, resolve and suppress chaos and maintain the

proper and smooth functioning of the society at hand.

Persons involved in the law-making process are also party to the society and

hence influenced by their circles and spheres of society. The interests of a particular

legislator could be varied enough to put a significant effect on the piece of legislation

he is working on that will, in future most probably guide the whole nation. With the

party based Indian politics, it becomes more difficult for a legislator to serve the

interests of the nation before the command and interests of the political party that the

Legislator represents. It is thus imperative for us to understand the difficulties and

constraints that a legislator face when he drafts or prepares Legislation or is involved

in a law-making process.

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INDIAN SETUP

It is a well-known fact that Laws are made for the social needs, improvement of

society and to remove illegal practices and other social problems. In India, our

Constitution provides the law-making procedure in the Indian Parliament or

Legislation. The primary function of the Parliament is to make, new laws and to revise

or abrogate existing laws. However, sometimes the laws are subject to Judicial

Review.

The process of drafting Legislation gets started with the need for any new law

or need of amendment in any existing law. It may be done by the Government or by

people’s groups who are living in society and who can swell public awareness in

regards to the entail of law.

After the requirement of law, the concerned Ministry drafts a ‘bill’ which is

containing the desired law. This Bill is disseminated to other relevant ministries for

modifications and changes they deem fit in it. It is also induced to the public to take

comments from the people. The draft is reappraised to subsume any modifications or

changes and is then whetted by Law Ministry, after that it presented to the Cabinet

for approval. When the Cabinet approves the Bill, it is introduced in either House of

the Parliament. Now there are 3 Readings of the Bill in both the houses, i.e., Lok Sabha

and Rajya Sabha.

I. READING 1

In First Reading, a bill is introduced in Parliament. Maybe the Intro is opposed and

consider for the voting in the House, but it very rarely happens that any debate is

taken place during this stage. However, members may oppose the Bill if there is any

sufficient ground to oppose. For example, If the Bill openly violates the Constitution

of India.

II. READING 2

After the introduction of the Bill, the presiding officer in Lok Sabha and Chairman in

Rajya Sabha, may refer the Bill to the standing committee for examination and take

suggestions from that Committee like Committee of Environment and forest has

invited suggestions on Civil Liability on Nuclear Damage Bill, 2010. Then it may be

sent to the joint select committee of the two houses and circulated for eliciting public

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opinion. During second reading members may amend the Bill based on standing

committee recommendations. However, the Government is not bound to accept

recommendations.

III. READING 3

During third reading (passing) the House votes on the redrafted Bill. If passed in one

House, it is sent to the second House where it goes through second and third readings

again. The other House may reject the Bill and may the deadlock happened.

Conditions of deadlock, may be happened cause of several reasons, such as:

1) One House passed the Bill, and the other rejected.1

2) When one House passes the Bill and other houses also passed but with an

amendment and that amendment is rejected by the first House.2

3) When more than six months have elapsed from the date on which the Bill was

received by the other House without the Bill being passed by it.3

4) When the deadlock happens, a joint sitting of both the houses is organised, and

majority votes dissolve that.4

After both houses of Parliament pass a Bill, it is sent for the President’s assent.

He has the right to seek info about the Bill and also have the power to return the Bill

to the Parliament for reconsideration. However, the President can send a bill for

reconsideration only one time. If both the houses of the Parliament passes the Bill

again, the President is bound to give his assent.5

After assenting of the President, the Bill is notified as an act and brought into

force. The rules and regulations are made by executives who implement the act and

are tabled in Parliament for consideration. Also, if any demerit seems in the act, then it

is sent for Judicial Review.

LEGISLATIVE DRAFTING & LEGISLATORS

Legislative drafting is a difficult, delicate art. It is the art of expressing in concise and

clear language the ideas of other people. It is difficult enough to express one’s own

1 Article 108 (1) a
2 Article 108 (1) b
3 Article 108 (1) c
4 Article 108
5 Article 111

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ideas. It is much more difficult to express other people’s ideas. The difficulty is all the

greater when there is a doubt about the person whose ideas one is required to express.

Whose ideas do a legislative enactment express? Controversy, if not confusion,

commences with this question. Are they the ideas of the Minister-in-charge of a

particular Bill or the officer of the Ministry who instructs the draftsman or the

collection of heterogeneous people constituting the legislature? Purists would at once

point to the legislature. In legal theory, a statute always expresses the intention of the

legislature. However, like all theories, this one is far removed from facts. It becomes

crystal clear if we understand the mechanism of modern law-making. How is a Bill

prepared? A legislative proposal is first conceived in the Secretariat. Sometimes the

idea of the proposal emanates from the Minister himself. The proposal is examined in

the administrative Ministry, but it is very rarely that, as required by the rules, a

detailed memorandum of the proposal is prepared.

Generally, the officer in the administrative Ministry concerned with the

legislative proposal rushes to the draftsman and asks him to produce a Bill. The

draftsman insists upon precise instructions, but there is no time for such petty details;

oral discussions follow. The draftsman produces some kind of Bill, hoping that he has

correctly understood the instructions given to him. His instructors harbor the same

hope. The Bill is then rushed through the legislature for want of time. Sometimes it

emerges from the legislature in practically the same form in which it was introduced.

The rule that law expresses the intention of the legislature applied in the good old

leisurely days when laws were few, and the legislators had the time to scrutinize the

laws carefully before passing them. In these days, laws are not made. They are

manufactured.

The draftsman of today is supposed to prepare the maximum of laws within

the minimum of time. To express the intention of some anonymous, mythical person

whose identity is not easily established and to express that intention in language so

clear that not only a reasonable man understands but a malicious man cannot

misunderstand it. Says one judge, “This statute is so confused that it could not have been more

confused, if confusion had expressly been aimed at.” Lord Macmillan said about one section of

the Trademarks Act that it was, “couched in the language of fuliginous obscurity.”

Legislator and law-makers are generally the employees of the concerned

Ministry charged with the responsibilities of drafting the Bill or are elected

representatives of constituencies. In India, legislators or law-makers do not get any

credit for the Bill drafted by them, and hence the job is often referred to as an

“unthankful job.” The job is not easy; many a time, legislators and law-makers are

faced with challenges of conflicting interests and constraints. While drafting a piece

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of Legislation, they at the same time need to be aware of the current responsibilities

vested in them, the portfolios they represent, the constituency that they represent, the

interests of their political party and also the public interests of the country at large.

The question thus arises: What should be the attitude of the Legislators in deciding the legislative

policy of any Bill proposed to be introduced in Parliament. They are supposed to take into

consideration all the conflicting interests and then decide the matter in the public interest.

CONFLICT OF INTERESTS

The different functions and responsibilities of legislators and law-makers give rise to

different conflicts of interest. Accordingly, the articulation of appropriate standards of

conduct and their supporting mechanisms must take these constraints into account.

Probably legislators face the widest range of potentially conflicting interests:

personal, representational and other private pecuniary and non-pecuniary interests.

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 the representative role: as a member of the legislature, as

representative of the electorate and as member of a political party. Further interests

arise from outside activities as a member of a non-political organization, as a

businessman, professional, farmer, grazier, or employee. These wide-ranging interests

include, therefore, both pecuniary and non-pecuniary interests. Yet, despite all these

potential conflicts, the Legislator must endeavor to act only in the “public

interest.”
The obligation to act in the public interest requires that precedence be given to

the public interest at stake over the private and personal interests of the official.

Representational interests raise their peculiar difficulties. For example, it raises the

question of primacy between the party, the electorate and the nation. The UK Code of

Conduct for Members of the House of Commons acknowledges at least two of these

representational interests in Part II:

“Members have a general duty to act in the interests of the nation as a
whole; and a special duty to their constituents.”

One such recent example is THE GOODS & SERVICE TAX, which illustrates

the conflict of primacy between the duty to the nation and the political parties.

Legislators & Law-makers putting aside the political issue of sovereignty of the states

and the Centre came forward and introduced the GST. Legislators from different

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parties and constituencies set aside their differences and acted for the greater good of

the country. This ratifies the UK Code of conduct that the duty to act in the interests

of the nation as a whole is supreme. The GST bill was passed by all the political

parties reaching a consensus and not only from the parliamentary majority.

Indeed, it can be said that the primary function of a legislator is to reconcile

these competing representational interests. This is what renders the position so

onerous. At this point, cultural differences may accord different roles to legislators.

For example, in societies, a legislator might be expected to represent particular groups

who supported his or her election. Whereas in other societies, this might be viewed as

unethical or unclear.

Professor Paul Finn summed-up the position before the New South Wales

Parliamentary ICAC Committee in 1992:

“We have to realize that public office is based on a 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 behavior. The problematic question is where on the spectrum, does
that behavior becomes unacceptable?”

Most discussion of conflict of interest focuses on the advancement of pecuniary

interests. Indeed, at times a conflict of interest is defined solely by reference to the

obtaining of a financial benefit. This narrow view of the conflict of interest avoids

having to deal with the wide range of non-pecuniary interests, such as membership of

a sporting, charitable, cultural, or environmental body or organization. Nevertheless,

these interests are just as capable of raising a real or apparent conflict of interest

which may distort government decision-making. Admittedly, there may often be a

readiness to make such disclosure since the official obtains no pecuniary benefit and

may revel in the disclosure of one’s charitable pursuits. Nonetheless, to ignore non-

pecuniary interests increases the likelihood of distortion of government decision-

making.

How does a legislator decide whether to support proposed Legislation which

restricts the logging of timber when faced with the following conflict of interests:

1) his or her political party supports a policy of environmental protection,

2) a significant part of the electorate represented depends on a forestry industry; and

3) Legislator’s family operates a transport business in connection with that industry

The last consideration, a personal or private interest, should be declared and ought

to be given no more weight than that to be accorded to an assessment of the effect of

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the proposed Legislation on those ancillary industries likely to be affected. Why is

such a personal consideration ethically irrelevant? The reasons are:

1) the personal interest is too remote from the public interest; and

2) there is the risk that this interest will distort the process of deciding what is in the

best interests of society as a whole.

As for the other two considerations, it is not merely a case of deciding which is

the most important. Their resolution involves the weighing of the competing

arguments. This may entail the reaching of a compromise, for example, to allow the

forestry industry to operate within ecologically sustainable development guidelines.

A further potential conflict of interest is the elected representative’s interest in

being re-elected. Can a member of Parliament use one’s official position to improve the

chances of being re-elected? This raises the issue of Member of Parliament using his

office for political purposes of the party to which Legislator belongs, as distinct from

constituency matters. Several examples can be given in this respect, pointing out how

Legislators set aside public purpose or interest to sustain the narrow interest of

constituency or serve the interest of their political party.

During the voting procedure of the Goods & Service Tax in the Lower House,

Amendments were introduced that served the narrow interests of a particular

constituency or a class of people. Comments and suggestions such as, “If you make
the taxes 3/4th for the State and 1/4th for the Centre and the quorum required is

3/4th, then you are effectively ousting the Centre from any discussion on

taxation6” clearly shows the inclination of Law-makers to serve the interests of their
constituency first. It also delineates the usage of official positions to increase the

chances of getting re-elected.

One glaring example is a recent decision of the Delhi Government to allow

Certain categories of industries to function in the residential areas of National Capital

Territory of Delhi. This was in spite of the consistent stand taken by the Supreme

Court of India that these industries pollute the city Area, and the citizens are deprived

of pollution-free at resulting in endangering their health.

The main problem faced by the legislators in the state legislatures as well as in

Parliament is their attitude to support narrow social problems of their own ethnic

groups. In the Indian context: The Member of Parliament from Maharashtra will be

inclined to support the interest of his State in supporting or rejecting any legislation

tabled in Parliament. Likewise, the Members of Parliament from West Bengal, Odissa

or Uttar Pradesh will try to gain mileage in supporting the interest of their states

while deliberating on any legislation. It is this narrow interest of the Legislators that

6 Questions asked to Arun Jaitley at 7:02 PM.

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has become the subject-matter of great concern in passing and assessing Legislation in

Parliament or State Legislature because furtherance of a narrow interest of individual

State by legislators always conflicts with the interest of the nation as a whole. This

narrow outlook of the legislators is highlighted when Legislations such as the Value

Added Sales Tax (VAT) & the Goods & Service Tax (GST) came for consideration

before the state legislatures.

“Questions have been raised about sovereignty and authorities of
the State, are we surrendering that?7” – concerns of Legislators
during the discussion of reforming the tax regime of the whole country,
State eccentric!

The problem of solving demands of the States vis-à-vis the national interest of

the country is one of the most important aspects, which the Members of Parliament

and the State Legislatures have to consider in-depth. Solving of this problem demands

a better understanding of local conditions of all States, socio-economic upliftment of

States and also the possible barriers that may be created by particular Legislation

against the interest of a nation as a whole. There are several issues which assume great

importance with reference to the interest of the individual States. The practice of

manufacturing laws has led to large loopholes in the existing essential legislations,

that creates a disparity between the State and the Centre. For example, to mitigate the

loss of revenue for states on account of the introduction of GST, for the first five years,

a compensation cess was brought in under section 18 of the 101st Constitution

Amendment Act. This guarantee, however, has not been inserted in the Constitution.

A separate GST (Compensation to States) Act, 2017 was enacted, which provided,

under section 8, that:

“The compensation payable to a State shall be provisionally
calculated and released at the end of every two months period, and
shall be finally calculated for every financial year after the receipt of
final revenue figures, as audited by the Comptroller and Auditor-
General of India”.

Now what happens if the Union does not release compensation cess at the end

of every two months? A dispute ensues. Under Article 279A (11) of the Constitution,

the GST Council must establish a mechanism to adjudicate between the Centre and

7 Questions asked to Arun Jaitley at 6.50 PM

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one or more states. However, even in the recently concluded 39th GST Council

meeting, no steps were taken to create such a dispute resolution mechanism.

Certain people severely assailed the decision to form a new railway zone in the

Railway Minister Constituency within three weeks of assumption of office by him.

Supreme Court, however, held that formation of a new railway zone to meet the

demands of backward areas is not by itself inconsistent with efficiency. More so,

when it fulfilled the further criteria as to increase in traffic load and accessibility, the

contention that efficiency would increase only if it could reduce the cost of

administration and increase revenue was rejected.8 The decision was in the interest of

overall interest of nation and people, and Members of Parliament, as well as

Legislators, should rise above the party interest and take a considered view and

should have supported the move.

In such a situation, it becomes imperative that the Members of Parliament and

State Legislators come out of their narrow party interest and vote in furtherance of

passing a Legislation which will be beneficial to all and would serve the interest of the

citizens of the nation and should not be parochial to the interest of the individual

State. The tendency of legislators to function as agents for a party or narrow interest

of their constituencies rather than as trustees for people have often created voids in

assessing and passing of legislative enactment.

Legislations are an advanced instrument of quick social change. It affects the

State, the executive judiciary and the people of the country. The modern law-makers

tend to confer more and more powers on the executive authority as Parliament. The

Legislators have no time to assess the details of the Legislation and its effect on day-

to-day working or life of the people Broadly speaking, legislative background or

theory of any Legislation involves the study of the characteristic features essential to

law and common to legal systems. It also involves an analysis of the basic elements of

any legislation that distinguish it from other forms, rules and standards that cannot be

described as legal systems.

The Executive Authority, as well as Legislators, as a part of constitution

machinery, is duty-bound to resolve the problems of coordination between the three

wings of democracy, namely, Executive, Judiciary and Parliament. There has to be a

convergence of practices and opinions not only on the need for a solution to the

problem faced by the people but also evolving a broad solution meeting the hardship

faced by the people. The authority must see that the intended Legislation meets the

objective of the greatest good of greatest numbers as enunciated in article 39 of the

Constitution of India. Article 39 directs the Indian Federal and State Governments

8 Federation of Railway Officers Association v. Union of India, (2003) 4 SCC 289

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that the State shall direct its policy towards securing adequate means of livelihood

and that the ownership and control of material resources of the come are so

distributed as best to subserve the common good.9

CONCLUSION

In present world, Legislation is more potent than a hand-held weapon. While a

weapon kills or destroys one or a few at a time, a wrong act of the Parliament or faulty

Legislation can kill the livelihood of millions and take the country gushing into a

downward spiral of democracy. It can be well established that it is essential that any

discussion of safeguarding the integrity of legislators occur in a positive atmosphere

which recognises the privilege and honour which attaches to those vested with the

public trust. No assumption should be made that all who occupy the public office lack

integrity. Instead, the desire should be to assist those in public office vested with that

awesome responsibility to act always in the public interest.

Most mechanisms dealing with conflict of interest in relation to legislators and

law-makers attempt to avoid or minimize a conflict of interest arising. In the hope

that these avoidance mechanisms work, less reliance is placed on mechanisms which

resolve a conflict of interest when one arises. But, we need more of mechanisms that

resolve a conflict when it arises, as the former does not solve the issue, it just tends to

postpone it whereas the latter permanently clear the road of legislators and thus truly

enables them to perform their duties in the interest of their nation.

The issue becomes not what the officials can get away with, but can they

justify their conduct for the interest of the nation? Essentially, it is another aspect of

accountability and responsibility.

9 Article 39. Certain principles of policy to be followed by the State: The State shall, in particular,

direct its policy towards securing
(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
(b) that the ownership and control of the material resources of the community are so distributed

as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and

means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of children are not

abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment

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REFERENCES

Civil Liability on Nuclear Damage Bill, 2010

The UK Code of Conduct for Members of the House of Commons

Personal Interview with Arun Jaitley at 7:02 PM.

Personal Interview with Questions asked to Arun Jaitley at 6.50 PM

the Constitution. A separate GST (Compensation to States) Act, 2017

Federation of Railway Officers Association v. Union of India, (2003) 4 SCC 289

Article 279A (11) of the Constitution, the GST

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