The phenomenon of conflicts of interest was in the news recently for the right reasons, when Swadeshi Jagaran Manch (SJM) organised a roundtable on “Conflicts of Interest in Public Policy”. Professionals from law, economics, media, nutrition, anthropology, medicine, research, social work, human rights, public health, people’s movements and politics took part in this. The meeting presented and discussed the concepts and definitions of the situation of conflicts of interest. Examples of revolving door dominated the discussions. A concrete example of revolving door is when a head of India’s national health mission joined a vaccine advocacy group-GAVI, and a retired joint secretary of Ministry of Women and Child Development joined as an advisor to a foundation floated by a biscuit manufacturer.
“Duty of Loyalty”, is a phrase used in corporate law to describe a fiduciary’s “conflicts of interest”, according to which the fiduciaries must put the corporation’s interests ahead of their own. Similarly, government officials/representatives can be considered to be in a position of trust due to their duty of loyalty towards the country’s citizens. They are obliged to work in the interest of the public, which pays for them, or has brought them to power.
Conflicts of interest situations may influence or even appear to influence the conduct of government servants, or decisions/recommendations of the governance institutions meant for public good. It becomes even more serious when corporate sector or their lobbyists are directly or indirectly involved in such situations. No wonder the Rajya Sabha’s department-related Standing Committee on Personnel, Public Grievances, Law and Justice, Government of India in its 69th Report recommended that conflict of interest be included under bribery.
There are several available definitions of conflicts of interest. It is defined as a set of circumstances that creates a risk that professional judgment or actions regarding a “primary interest” will be unduly influenced by a “secondary interest”. The West’s Encyclopaedia of American Law defines conflict of interest as “a term used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically pecuniary”.
Conflicts of interest situations can be institutional or personal. It can stem from financial or other interests, including post-employment opportunities or during public-private partnerships, and in situations when institution’s secondary financial interests or those of its senior officials poses risks to the integrity of the institution’s primary interests and missions; when public officials take policy decisions based on their personal interest; when representatives of food manufacturing companies sit on scientific panels to evaluate research and to set food standards; when food (including junk food) manufacturers or front organisations take on the task of educating children about healthy foods and nutrition; when vaccine manufacturers or their front agents/organisations that lobby for introducing new vaccines, sit on public health committees/boards nationally or internationally; when the “regulators” partner with “to be regulated” and to develop policy for the people; when politicians sit on the parliamentary committees dealing with sectors they are doing business in; when legislators alleged to have committed criminal offences develop a law to curb criminalisation of politics; when judges join political outfits; when public servants including bureaucrats and elected representatives of the people, after leaving public service, work for the companies they used to regulate, potentially using their experience and contacts to get decisions made in the favour of the company or organisations lobbying for a particular interest; when public servants join private players serving the same sector; and when public regulatory bodies accept the evaluation done by companies producing genetically modified seeds calling their own products as “safe”.
With the growing abundance of PPPs in the public policy sector, especially noted in the health and nutrition policies, it involves complex relationships among various actors. Unless it is logically identified through objective tools and managed, it is likely to be overlooked compromising public interest in favour of “interested” partners only to have negatively impact on public health. The RTI has revealed that several ministries in the Central or state governments don’t have any guidelines or rules to abide by for identification (prevention) or managing conflicts of interest. Some states don’t even understand what it is.
Is it not a clarion call for having such rules and tools?
While the Constitution of India, Article 246, Schedule 7-List III Concurrent List item 12, provides for oath, the Rajya Sabha’s Standing Committee on Personnel, Public Grievances, Law and Justice, Government of India recommended that conflict of interest be included under bribery, and in July 2014, Prime Minister Narendra Modi also called for a law on conflict of interest within his 17-point agenda.
But the issue remains to be addressed.
If there is will, India can learn from global standards available for identifying and managing conflict of interest. The Organisation for Economic Co-operation and Development (OECD) provides guidance and tools to identify, prevent and manage conflicts of interest, and Article 5.3 of the WHO Framework Convention on Tobacco Control guides on the protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry. These tools are useful. Let NITI Aayog develop the rules and tools for India and ministry of personnel implement these.
At the roundtable, declaration of interest and management of revolving doors was thought to be urgent, with a focus on health and nutrition. The group also recommended immediate notification for declaration/registration of interest at any government meetings of any sector, including meetings of the expert committees/working groups/task forces etc., set up by the governments or by others concerned. Let NITI take the lead in development of a framework for reporting such situations. If there is conflict of interest, appropriate remedial action should be applied like recusal. Such a practice could change the way we govern. To be transparent, minutes of any meetings of the public servants with concerned players and private sector should be made public immediately through its web sites. The group also thought that that conflicts of interest could be prevented through a longish cooling off period of five years, and recommended that ministry of personnel issues a “notification” with immediate effect.
As a long-term strategy, Government of India should bring a Bill in Parliament to identify, prevent and manage conflicts of interest in policy development.
Dr Arun Gupta is a senior paediatrician, working as regional coordinator Asia for International Baby Food Action Network (IBFAN). IBFAN is a Right Livelihood laureate 1998.