Why is code of conduct not being applied to NDA ministers on India Foundation board?

Nirmala Sitharaman, Jayant Sinha,M. J. Akbar, Suresh Prabhu

The code bars ministers from even being on advisory boards, but four ministers continue to advise the India Foundation, and the Cabinet Secy is silent.

When I was elected to the Lok Sabha in April 2009 and invited to join the UPA government, I was coming off not just an extensive United Nations career but a short stint in private life, during which I had served a number of institutions in an advisory capacity. No sooner had I taken up my MoS position in the Ministry of External Affairs than a request came from the PMO, asking me to inform them of all such commitments and affiliations.

I duly listed them in a memo to the Cabinet Secretary. There were nine such positions in all, mostly a legacy of my earlier international life. They included serving on the Board of Trustees of my last alma mater, the Fletcher School of Law and Diplomacy; as an honorary adviser to the International Committee of the Red Cross; as a fellow of the New York Institute of the Humanities; and as the patron of an Indian school in Dubai. Within a few days the CabSec, K.M. Chandrasekhar, called. I would have to resign from all of them.

When I expressed curiosity, since these were unremunerated advisory positions in prestigious institutions whose activities and principles were totally compatible with those of the Government of India, the Cabinet Secretary sent over a document that explained his request. This was the Code of Ethical Conduct for the Council of Ministers, adopted decades earlier – I believe in the 1950s – and most recently reissued in the 1970s. The code required ministers to relinquish not only their business activities, if any, but also affiliations to other institutions, including charitable ones.

I accepted without demur, but sought further clarification of the way in which the code was interpreted. The Cabinet Secretary was frank: no minister of the government ought to risk being associated with an institution’s action or position by the mere fact of his association with it. This applied to charitable and philanthropic bodies too, even those engaged in a social purpose with which the Government of India had no problem. After all, my extending my patronage to one school would put me in an invidious position vis-à-vis other schools; serving as the trustee of one institution could imply favouritism in relation to other institutions.

And even if the position were honorary, he pointed out, if those institutions did any fund-raising to conduct their work, the presence of a minister’s name on their masthead could be misused. If someone donated money to a charity in which a minister was involved, for instance, there could be the expectation of a quid pro quo from the minister in his official capacity. Even if the minister refused to provide any favours in return, the mere perception could be damaging. A member of the Council of Ministers, he explained, had to be above any suspicion of a conflict of interest, however trivial.

The key provision of the code in this respect was article 3.1, which forbade a minister to “personally, or through a member of his family, accept contribution for any purpose, whether political, charitable or otherwise”; and denied him the right to “associate himself with the raising of funds”. There was in fact a loophole, though: a minister could be associated with such efforts “for the benefit of a registered society, or a charitable body, or an institution recognised by a public authority”. Exceptions would have to be authorised by the Prime Minister.

I did not seek an exception. It was clear that on Dr Manmohan Singh’s watch, his Cabinet Secretary was going to be a strict constructionist. I duly resigned from all my positions, informing the institutions concerned that my appointment as a minister required me to do so.

This was why I was all the more curious when a controversy arose over four ministers (Nirmala Sitharaman, Suresh Prabhu, Jayant Sinha and M.J. Akbar) serving on the board of the India Foundation, a body closely associated with several luminaries of the ruling establishment. Like me, as foundation head Shaurya Doval pointed out, they had been associated with the foundation before they became ministers. Unlike me, however, they had not been asked to resign.

It is not my place to question the Cabinet Secretary’s performance of his own duties. But the basic issue arises: has the Prime Minister of India granted his ministers an exemption from the rules of the code to continue serving the India Foundation? Was this explicitly sought and approved through the Cabinet Secretary? And if not, has the government in effect abandoned its own code – and with what authority?

The issue of conflict of interest is in fact a fairly simple one. In the classic definition, a conflict of interest arises from “a set of circumstances that creates a risk that professional judgement or actions regarding a primary interest will be unduly influenced by a secondary interest”. The primary interest of any minister is, of course, meant to be his ministerial responsibilities. Conceivably the ministers concerned could argue that there is nothing in the work of the India Foundation that would influence their professional work as ministers. But what about the other way around?

When the India Foundation raises funds for its conferences, publications and other activities, doesn’t the presence on its masthead of a pair of ministerial names prompt donors to be more forthcoming than they might be to another foundation? When they invite foreign dignitaries to attend their events, is it not possible that these foreigners accept because they are attracted by the possibility of proximity to these ministers? And is ethically right for the India Foundation to benefit in these ways from the association with it of ministers who are being paid by the Indian taxpayer?

Dr Manmohan Singh and his Cabinet Secretary had one kind of answer; it seems Narendra Modi and his PMO have another.

In a country where we tend to be obsessed with corruption scams in multiple crores, this kind of ethical dispute may seem somewhat precious, the political equivalent of the old theological dispute about how many angels can dance on the head of a pin. But in a polity where there’s a desperate need to uphold the standards we do have, it is only fair that the issue should be faced. The Code of Conduct for ministers, after all, has not been modified; it still figures on the MHA website. Shouldn’t it, then, be applied?

Read ‘In defence of India Foundation: An issue-wise rebuttal of allegations’ by Raghav Pandey.