HOW
FAR THE CIVIL SOCIETY WILL SUCCEED IN COMBATING CORRUPTION?
By
Dr. T. Padma., LLM., Ph D (Law)
kethepadma@gmail.com
“Just
as it is impossible not to taste the honey or the poison that finds itself at
the tip of the tongue, so it is impossible for a government servant not to eat
up, at least, a bit of the king’s revenue. Just as fish moving under water
cannot possibly be found out either as drinking or not drinking water, so
government servants employed in the government work cannot be found out (while)
taking money (for themselves).”
-Kautilya
Background
India inherited a
legacy of corruption from its ancient rulers[1] who always expected some gifts (in the form of the nazarana)
from their subjects. One of the important aspects of the employers’ function in
those days was to extract money from the common folks to enrich the treasury of
the rulers. Appointments to the key positions were made on family
considerations.
Most often, a
"prime minister's son succeeded his father, a governor's son the governor,
a judge's son a judge, a village headman's son the headman. Replacing relatives
in good positions, irrespective of merit, gained merit in the eyes of the
people".[2] Thus, nepotism as an evil was an acceptable concept
in those days and the vocabulary had no proper word for it.
Corruption in India is
also a legacy of the colonial system. As colonial governments were generally
regarded as alien and hence illegitimate, consequently cheating and deceiving
such an alien power was considered a fair game. The roots of political
corruption in developing states thus lie in the colonial order or native
tyrannical rule from which they have emerged as independent democratic states.
In colonial times, the government was carried on by the aliens, and the
citizens developed an attitude of irresponsibility and felt obliged to thwart
the government in every possible way, including cheating and other corrupt methods.
The cheating of foreign rulers in government came to be admired as a patriotic
virtue.
Before Independence
from colonial rule, corruption was nourished in a number of developing countries
by the colonial officials themselves, who encouraged it by accepting expensive
gifts, jewels, money, favours and undue hospitality from the influential elite
native groups to grant them undue favours either against other similar groups
or to individuals for their own private gains. However, it was during World War
II that the spectre of corruption raised its head when there was sudden
increase in administration, opportunities for corruption due to large scale
purchases and procurement of defence material and constructions, manipulation,
and intrigues of foreign financial and business powers.[3]
But when that colonial system was replaced by an independent democratic system,
the former attitude did not disappear at all, but has percolated down to the
post independence period with greater vengeance, and thus today cheating
government is not generally considered by many as any immoral act. The value
system of people in modern times has now declined to such a low ebb as makes
any exceptionally honest official behaviour appear as a pleasant surprise.
Consequently, in India,
corruption has become a social phenomenon. It is widespread and has increased
at a fantastic pace. There is hardly any area of activity that has remained
wholly free from the impact of corruption. In fact, corruption has now become
institutionalised and a commonly accepted way of life. In India, acceptance of
bribes, commissions, under-the-table payments, and gifts, by the politicians or
the bureaucrats are no longer frowned upon, and even subtle ways have been
discovered to create a legitimate veneer and consider these as a part of normal
life activities. In short, such an ethos has been created in the society that corruption
has ceased to be regarded as a crime any longer.
Meaning of the word ‘Corruption’
There is no universal definition of what constitutes a corrupt
behaviour. The definition of corruption and corrupt practices varies from
country to country. The World Bank and other multilateral institutions refer to
it as “the abuse of public office for
private gain[4]. It involves the seeking
or extracting of promise or receipt of a gift or any other advantage by a
public servant in consideration of the performance or omission of an act, in
violation of the duties required of the office. Mark Philip, a political
scientist, identified three broad definitions of corruption, viz., public
office centered, public interest centered and market centered.[5]
Judicial approach to Corruption
Corruption
in our country has a historical perspective of its own. In the case of State of
M.P. vs. Ram Singh[6],
the Supreme Court observed that “the menace of corruption was
found to have enormously increased by the First and Second World War
conditions. Corruption, at the initial stages, was considered to be confined to
the bureaucracy, which had the opportunities to deal with a variety of State
largesse in the form of contracts, licences and grants. Even after the war, the
opportunities for corruption continued as large amounts of government surplus
stores were required to be disposed of by public servants. As a consequence of
the wars, the shortage of various goods necessitated the imposition of controls
and extensive schemes of post-war reconstruction involving the disbursement of huge
sums of money which lay in the control of the public servants, giving them a wide
discretion, with the result of luring them to the glittering shine of wealth
and property”. The Court observed that “in order to consolidate and amend the
laws relating to prevention of corruption and matters connected thereto, the
Prevention of Corruption Act, 1947 was enacted which was amended from time to
time. In the year 1988 a new Act on the subject, being Act 49 of 1988, was
enacted with the object of dealing with the circumstances, contingencies and
shortcomings which were noticed in the working and implementation of the 1947
Act.” In the same case, the Supreme Court further observed :
“Corruption
is termed as a plague which is not only contagious but if not controlled,
spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS,
being incurable. It has also been termed as royal thievery. The socio-political
system exposed to such a dreaded communicable disease is likely to crumble
under its own weight. Corruption is opposed to democracy and social order,
being not only anti people, but aimed and targeted against them. It affects the
economy and destroys the cultural heritage. Unless nipped in the bud at the
earliest, it is likely to cause turbulence – shaking the socio-
economic-political system in an otherwise healthy, wealthy, effective and
vibranting society”.
In another significant judgment in Vineet Narain v. Union
of India.[7] the
Supreme Court has issued directions to make the CBI independent agency
so that it may function more effectively and investigate crimes and corruptions
at high places in public life which poses a serious threat to the integrity,
security and economy of the nation and to take necessary measures to prosecute
the guilty. Besides giving the statutory status to the Central
Vigilance Commission (CVC), the court directed that the Selection for
the post of Central Vigilance Commissioner shall be made by a Committee
comprising the Prime Minister, Home Minister and the leader of the Opposition
from a panel of outstanding civil servants and others with impeccable integrity
to be furnished by the Cabinet Secretary. The appointment shall be made by the
President on the basis of the recommendations made by the Committee. The matter was brought before the Court by way of public
interest litigation under Article 32 of the Constitution.
To avoid any controversy
in the selection of the Central Vigilance Commissioner, the Supreme Court has strengthened
the existing guidelines in P J Thomas case to avoid tainted persons being
appointed as head of the anti-corruption watchdog.
Public Perception of Corruption
Corruption in India has
passed through three different stages “(a) gaining legitimacy (b) widespread
indulgence, and (c) shameless defence”.[8]
Apart from other social and economic compulsions, it has grown due to a steep
fall in the standards of political leadership and an overall decline in the
moral and ethical standards in the society.
Thus corruption in
India has become a way of life in all fields of activities - more so in the
field of politics. It has not only gained a widespread legitimacy and
indulgence, but is now being defended shamelessly. Prime Minister Indira
Gandhi’s statement on corruption in the late 1960s that “It was a worldwide phenomenon” heralded that dawn of the first
stage of indulgence.
Corruption has now
became the hallmark of Indian politics and administration. Its tentacles spread
everywhere and tainted the reputation of even the Head of the Government. The
last few years have seen the emergence of shameless defence of corruption, when
attempts are being made to cover it up. Examples abound.
Thus corruption in
political life in India has assumed almost criminal proportions and has ceased
to provoke also shock and disgust as it would have three decades ago[9].
Corruption exists not only in the ruling party alone. But has also infected the
opposition and all other political parties in equal measures. Not even the
‘Left’ ensconced in its closely guarded precincts can claim to be immune to it.
Some of the popular parties of the regional level seem to be wallowing in
corruption totally unashamed and uninhibited. Inevitably, the administrative machinery
including the top bureaucrats in many places have practically adjusted
themselves to a corruption-laden regime. In fact corruption at the political
level goes hand in hand with corruption at the bureaucratic level.
Political corruption
has invariably resulted into a sustained and systematic politicisation of the bureaucratic
structure. It has liquidated the command and control structures of the
services, leading to indiscipline, inefficiency and unaccountability among the
ranks. Being used as tools for executing unlawful orders and as agents to
collect funds for their political masters, a progressively growing number of
employees in every sphere of functioning have amassed fortunes through
corruption. As a result of the politicisation of the administrative machinery, the
law-enforcing agencies have got mixed up with the very elements whose unlawful activities
they are expected to check and control. As the latter enjoy the patronage and protection
of politicians, a frightening triangular nexus has evolved between criminals, government
functionaries and politicians. In addition political instability and the
progressive decline in the values of the polity have over the years seen the
degradation of the Parliamentary system, damage to the functioning of the
Cabinet, disregard of the Constitution and the rule of law, and a continuing
erosion of the integrity of the civil service.
Corruption Perception Index- Rankings by Transparency International
The
Transparency International is an international body founded in 1993 and
publishes Global Corruption Reports annually. It also publishes a Corruption
Perception Index (CPI). The Index refers to the rankings of various countries
from the least corrupt to the most corrupt. The latest report is of 2010 and it refers to
serious cases of corruption in several countries in the world, including India.
The
Corruption Perception Index (CPI) was first published by the Transparency
International in 1995. The Index for the year 2010 is based on several surveys
conducted in various countries. In a list of 187 countries for the year 2010, India stands at No. 87 with a
score of 2.33 out of 10.
Causes of corruption
Money is the root cause
of many evils like corruption, black marketing, smuggling, drug trafficking,
tax evasion. People are crazy for money. Majority wants to become rich and money has become the basic
goal. The more developed the nation, the more the standard of living of the
people. People want more money to cater to their needs and at a point of time
they don’t hesitate to have money from any source (black or white who cares). That
is how the concept of money laundering enters and prospers.
There are
many causes of corruption at both institutional and individual levels. Experts
of different specialities have highlighted various factors, e.g.,
decline in religious beliefs or in public morality, uncertainty in the
standards of appropriate behaviour, divergence between the formal and informal
rules governing behaviours in the public sector, value conflicts in the post
colonial settings where the standards and practices embedded within traditional
relationship differ from the institutions left behind by the departing colonial
power.
Of late, Corruption
in India has grown to alarming proportions because of policies that have
created enormous incentives for its proliferation, coupled with the lack of an
effective institution that can investigate and prosecute the corrupt. Under the
garb of liberalisation and privatisation, India has adopted policies by which
natural resources and public assets (mineral resources, oil and gas, land,
spectrum, and so on) have been allowed to be privatised without transparency or
a process of public auctioning. Almost overnight, hundreds of memorandums of
understanding (MoUs) have been signed by governments with private corporations,
leasing out large tracts of land rich in mineral resources, forests and water.
These allow the corporations to take away and sell the resources by paying the
government a royalty, which is usually negligible per cent of the value of the
resources.
Effects of corruption
It is an
established fact that corruption or corrupt practices have detrimental or
corrosive effects especially in developing countries. However, a debate on the
effect of corruption on economic development went on for long. One view is that
corruption may not be incompatible with development and at times may even
encourage it by serving as an effective method of cutting the red tape and
clearing projects for development. A bribe can be regarded as a market payment
to ensure that resources are allocated to those persons who are most likely to
use them efficiently.
The other
view maintains that corruption detracts from development because of its
undermining competitive processes, focusing on short term profits in place of
sustainable and broad based development. Further, as Gunnar Myrdal pleaded,
corruption creates incentives for officials to erect additional bureaucratic
obstacles with a view to increasing opportunities for more bribes.[10]
Thus, it is
clear that corruption exacts heavy economic costs, distorts the operation of
free markets and slows down economic development.
Besides
economic consequences, the rampant corruption tends to undermine the legitimacy
of state institutions and governments. When a public official pursues his own
interest without regard to the interest attached to his public function, the
balance of authority both among government entities and between the State and
the civil society is effectively damaged. If the general population assumes
that public officials are not bound by the restraints of their public
functions, it will be less likely to obey the laws of the society. In such a
situation, there is a need to combat corruption effectively because it is one
of the root causes of destabilizing the rule of law.
Corruption also
casts a negative influence on the efforts to deal with the incidence of
poverty. It has become a mechanism by which a neo-nich class has been developed
in many developing countries. It can affect morals by the ‘perversion’ or ‘destruction’
of integrity in the discharge of public duties by bribery or favour or the use
or existence of corrupt practices. Thus it destroys the ability of institutions
and bureaucracies to deliver services that society may expect thereby posing a
serious threat to the democratic institutions and the very existence of social
order. Corruption in defence purchase and contracts tends to undermine the very
security of the State.
Among the plethora of
reasons for failure to combat corruption, it is concluded that the more
important ones are the inadequate and inefficient enforcement mechanisms, lack
of political will, and more importantly the cultural context of social
tolerance and easy forgiveness. Any outrage that is there is largely confined
to rhetoric, not action. Despite some helpful developments such as the newly
conferred freedom of information, active investigative media and engaged civic
groups, reasons for optimism appear to be minimal. The need seems to be a
serious effort to develop sound norms by changing the societal culture, which
places the premium on the shoulders of political parties.
The crucial question
then is why corruption in India abounds despite numerous institutional
arrangements and a plethora of legislation. Could it be due to the impossible
human nature, as Kautilya observed above?
Suggestions
to Curb Corruption
1) Ombudsman Mechanism: Recommendations to curb
corruption are made ad infinitum but
no concrete steps are taken. For example, appointment of a Lokayukta
(Ombudsman) was recommended by the first Administrative Reforms Commission in
1969 and is repeated nearly forty years later by ARC-2 in 2007 as nothing
happened since the first recommendation. Only a shallow debate goes on whether
the office of the Prime Minister be subjected to the authority of such an
Ombudsman.
The draft Jan Lokpal bill seeks to
create an institution that will be largely independent of those it seeks to
police, and which will have effective powers to investigate and prosecute all
public servants (including Ministers, MPs, bureaucrats, judges and so on) and
others found guilty of corrupting them. Since corruption involves misconduct
and gives rise to grievances, the draft proposes that the Lokpal will supervise
the machinery to pursue disciplinary proceedings against government servants
(the Vigilance Department) as well as the machinery to redress grievances.
Thus, misconduct by government servants, and grievances, will come under the
ambit of an independent authority rather than the government - where the
machinery has become ineffective due to conflicts of interest.
2) The
emphasis so far has been mostly not so much on correcting the reasons for
corruption as is the effort to deal with the practices and outcomes of
corruption. There are only two basic reasons for corruption viz., ‘need and greed’. The prevalence of
administrative corruption could perhaps be ameliorated to an extent by better
pays for civil servants. Indeed, in March 2008, the Sixth Pay Commission
recommended hefty pay raises all over, and one might hope that this could
alleviate need, at least at the bottom end. But then there is ample evidence
that even in the higher paying nations corruption is prevalent leading one to
conclude that it is simply a matter of size, not that of kind which is
translated as greed. But greed is a part of prevailing cultural norms, and it
becomes a habit when no stigma is attached. The capacity for tolerance
attributed to Indians as part of their culture has profound impact here. Except
for rhetoric and the occasional nodding of heads, no outrage is seen, much less
serious implementation of anti-corruption measures. The Santhanam Committee
aptly observed thus: "In the long run,
the fight against corruption will succeed only to the extent to which a
favourable social climate is created."
3) The
duality in Hindu life leads the same person proclaim a “holier than thou”
attitude but often indulge in the most debased life. And the liberal, almost
amoral, attitude that appears to have taken hold since economic liberalization
in 1990 only encourages this life style further. While deriding the
all-pervasive corruption intellectually and certainly rhetorically, people are
all out on an acquisition binge. Thus nothing positive and constructive emerges
to stem the general rot.
4) The
very laws, rules and regulations to curb corruption are themselves corrupted
insofar as they are not often followed strictly in their spirit, or in fact followed
only in the letter on occasion. If at all, they are applied selectively and in
some places as a matter of show, and in other cases as a means of vendetta. H.
L. Mansukhani correctly concluded that the Prevention of Corruption Act turned
out to be a "puerile piece of legislation."
5) Paradoxically,
sometimes the very Rule of Law and the various rights guaranteed to the civil
servants in the name of assuring their neutrality and accord protection from
harassment have been found to come in the way of bringing the errant to book.
As noted, Article 311 of the Constitution of India (requiring permission of the
appointing authority to prosecute) proved to be a major hurdle.
6) There
is not only the absence of sound role models, but also an apparent lack of political
will to reform. Further, the current trend of coalition governments abet a
great deal of corruption. Pressured as they are to survive in office,
unscrupulous leaders resort to all sorts of illegal, amoral, and even
unconstitutional means. In an effort just to remain in office, coalition
governments have been succumbing to the pressures of their partners who have
learnt that they can get a lot of political mileage by simple threats of
withdrawal of their support, and by using, or attempting to use, legal and
Constitutional provisions as partisan tools. In a way, the coalition
governments are turning out to be hostages of pure partisan and personal
interests. The all-consuming effort of these governments appears to be no more
than keeping in office. It is worth mentioning what the ARC-2 said: “It is
generally believed that all these types of wilful abuse of office are on the
increase in our country at all levels and need to be firmly curbed if we were
to protect public interest and our democratic system. Otherwise, public
servants– elected or appointed– will be seen not as custodians of public
interest and sentinels of democracy but as opportunists working for personal
aggrandizement and pursuing private agenda while occupying public office.”
7) Even
when the corrupt are brought to book, at present there are no stricter laws to
punish the wrong doer besides the lack of expeditious disposal of cases due to
the slow investigative mechanism and a slower judicial process. Therefore, the draft Jan Lokpal Bill seeks to create an
institution that will be independent of those it seeks to police, and will have
powers to investigate and prosecute all public servants, and others found
guilty of corrupting them.
Conclusion
India did not invent
corruption, but it seems to excel in it. Preoccupation with the subject is
almost ancient. In the absence of effective institutions and the poor
application of laws, perhaps the most crucial element in combating corruption
is the social attitude towards corruption. As already noted, honesty cannot be
legislated. No amount of legal restrictions would help so long as the society
itself is lenient and tolerant. It is thus hard to decide which is the cause
and which is the effect: Is the society permissive, or is a corrupt regime corrupting
the society? The traditional Sanskritic usage, ‘yatha raja, tatha praja’ (as is the king, so is the populace) is
often cited to blame the regime. Contrarily, there is the cynical theory that
the people get the government that they deserve. Indeed, the top public leaders
have to set an example with the political parties taking the lead, and the
nation as a collective entity ought to show its intolerance, and give the
corrupt the boot. A clear and clean sweep of the polity, it appears, thus is
the task at hand. One cannot but wonder how much more developed India could
have been, if only the rot is stemmed.
Indians have always
valued a world beyond the material and have embraced spiritualism as a way of
life. Instances abound in our epics of good behaviour, of the triumph of good
over evil, of the wisdom of sages. Stories of the honesty, generosity and piety
of legendry kings such as Vikramaditya, are told to our children even today.
There is no reason why Ram Rajya cannot be attempted.
In modern India,
poverty, insufficiency and class conflicts are slowly giving way to a
confident, inclusive, empowered India. On the Transparency International’s
Corruption Index, India’s position has improved significantly, and hopefully
will continue to do so. The vigilance of our enlightened people and the civil
society will ensure this. The manner in which Anna Hazare's recent fast put
pressure on the Government, will definitely create an atmosphere to pass the
much awaited Lokpal Bill in the near future. The people of India, has now to
wait and see how far the proposed Lokpal Institution would be an effective
instrument to check the corruption.
--------------------------------------------------------------------------------------------------------
[Published
in Supreme Court Journal / Weekly
April’ 2011; PART-16
&
Published
in Andhra Law Times / Fortnightly
May, 2011;
Part – 10]
[1]
Corruption in Ancient India by Upendra
Thakur
[2]
Corruption in India by
Khushwant Singh
[3]
Corruption and Destiny of Asia
by Husein Altas.
[4] Financial Times September 16,
1997.
[5] Mark Philip, “Defining Political
Corruption” political studies, Vol.45 No.3, special issue 1997.
[6] State of
M.P. vs. Ram Singh; 2000 (5) SCC 88
[7] Vineet
Narain v. Union of India ; AIR 1998 SC 889
[8]
S.K. Sinha, “Combating Corruption: Need for Honest Political Leadership and
Reforms”, in Indian Express, November
17, 1993.
[9] Nikhil
Chakravarty, “Bofors, Big Bull and Corruption in High Places”, in Pioneer, June 16, 1993.
[10] Gunnar Myrdal, Asian Drama: an
inquiry into the Poverty of Nations, Vol.II, New York Pantheon, 1969.
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