Mann / Ethical Standards in Eradication/Controlling Corruption in Governance: A Critique
ETHICAL STANDARDS IN ERADICATING/CONTROLLING CORRUPTION IN GOVERNANCE: A CRITIQUE Dr. Jeet Singh Mann1 ABSTRACT Corruption has affected nations across the globe. No nation is immune from the impact of corruption. Menace of corruption has numerous faces which has posed assorted challenges throughout the world. The moot question that is bothering everyone, Is, how to be in command of giant of corruption. What should be modes or techniques to eliminate/control corruption? India has been ranked 94 by the Transparency International corruption Perceptions Index- 2012 and 2013; and 85 in 2014. Like other Countries, India is also struggling hard to control corruption. It is pretty sure that merely enacting legislations such as Lokpal, Judicial accountability and standards, citizens charters and other endeavours on transparency and accountability in governance, will not eliminate/control corruption from India, unless People are the change agents for elimination or controlling corruption from every field of governance. This research paper is an endeavour to examine and analyze the contribution of ethics in promoting good governance and controlling corruption in governance. Some remedial measures/suggestions also have been recommended to enhance ethical values to ensure transparency and accountability in public life and controlling corruption from public administration.
KEY WORDS: Corruption, Ethics, Governance, Accountability, Transparency,Reforms
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Associate Professor of Public Law, Director, Centre for Transparency and Accountability in Governance, National Law University Delhi
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1. INTRODUCTION According to the Transparency International’s Corruption Perceptions Index 2014 (TICPI), India has secured the 85th position (95 in 2011, 94 in 2012, 94 in 2013) in the index with a score of 38 on the scale of 100. The TICPIi has been determined taking into account the vital parameters such as corruption measurement tools, measuring transparency and other governance and development indicators 2 . Countries such as Denmark, Finland and New Zealand are the nations with minimum corruption. It is pertinent to mention that no country has a perfect score and more than 66% of nations have scored below 50 marks out of 100, which is indicating a grave corruption dilemma.3 It is observed from the TICPI that during last five years, India has not been able to obtain 50 marks in corruption measurement tools, transparency tools and other governance and development indicators, which are essential for the overall development and quality of governance of a nation. Corruption has not only affected human lives but also economy and quality of governance of every nation. The contemporary challenge that is posed to
2
Corruption remains a global threat, Global Ranking ; India At 94 With 36 Points http://cpi.transparency.org/cpi2013/results/ accessed on 30 Jan 2014 , The Corruption Perceptions Index is presented on a scale from 0 (highly corrupt) to 100 (very clean) The Worldwide Governance Indicators (WGI) project reports aggregate and individual governance indicators for 215 economies over the period 1996–2011, for six dimensions of governance: the Worldwide Governance Indicators measure six broad dimensions of governance: 1. Voice and Accountability (VA) – capturing perceptions of the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media. 2. Political Stability and Absence of Violence (PV) – capturing perceptions of the likelihood that the government will be destabilized or overthrown by unconstitutional or violent means, including politically-motivated violence and terrorism. 3. Government Effectiveness (GE) – capturing perceptions of the quality of public services, the quality of the civil service and the degree of its independence from political pressures, the quality of policy formulation and implementation, and the credibility of the government's commitment to such policies. 4. Regulatory Quality (RQ) – capturing perceptions of the ability of the government to formulate and implement sound policies and regulations that permit and promote private sector development. 5. Rule of Law (RL) – capturing perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence 3 Supra note 1
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each one of us, is, how to crush the menace of corruption from India. What can be the armaments to overcome/contain the evils of corruption? It is pretty sure that merely enacting legislations such as Lokpal, Judicial accountability and standards, citizens charters and other endeavours of transparency and accountability in governance, will not eliminate corruption from India, unless that is enforced by people determined to shun corruption in every field of life. The TICPI has recommended that nations are required to amalgamate anticorruption measures into all aspects of administrative actions. Further the Index emphasized that nations should also prioritise better rules on lobbying and political financing, make public spending and contracting more transparent, and make public bodies more accountable.4 It is submitted that moral values, which have been considered as essential physiognomies in the era of liberalization, privatization and globalization, can contribute significantly in ensuring transparency and accountability in governance, therefore resulting in reducing or eliminating corruption. The main objective of this research paper, which has been divided into six parts, is to examine and analyze the contribution of ethics in promoting good governance. Some remedial measures have also been suggested to augment ethical values to warrant transparency and accountability in every facets of governance therefore controlling/eliminating the giant of corruption from India.
2. ETHICAL VALUES AND ERADICATION/CONTAINMENT OF CORRUPTION It is well identified that “corruption in any form destroys lives and communities, and undermines countries and institutions. It generates popular anger that threatens to further destabilise societies and exacerbate violent conflicts. It leads to failure in the delivery of basic services like education or healthcare. Corruption amounts to a dirty tax, and the poor and most vulnerable are its primary victims.”5 According to the Fourth Report of Administrative Reforms Commission 2007, “Ethics is a set of standards that society places on itself and which help guide behaviour, choices and actions. Standards do not, by themselves, ensure ethical behaviour; that requires a robust culture of integrity. The crux 4 5
Ibid Ibid
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of ethical behaviour does not lie in bold words and expressions enshrined as standards, but in their adoption in action, in sanctions against their violations, in putting in place competent disciplinary bodies to investigate allegations of violations and impose sanctions quickly and in promoting a culture of integrity”6. “Ethics is grounded in the notion of responsibility and accountability. In democracy, every holder of public office is accountable ultimately to the people. Such accountability is enforced through a system of laws and rules, which the elected representatives of the people enact in their legislatures. Ethics provides the basis for the creation of such laws and rules. It is the moral ideas of people that give rise to and shapes the character of laws and rules. Our legal system emanates from a shared vision of what is good and just”7. “The role of ethics in public life has many dimensions. At one end is the expression of high moral values and at the other, the specifics of action for which a public functionary can be held legally accountable. Any framework of ethical behaviour must include the such elements as codifying ethical norms and practices, disclosing personal interest to avoid conflict between public interest and personal gain, creating a mechanism for enforcing the relevant codes, and , providing norms for qualifying and disqualifying a public functionary from office.”8 It is pertinent to note that characteristics, such as, ethical values, integrity, sincerity, honesty and commitment, among people have an in-depth impact on the functioning of the state in every sphere of governance of the state like the judiciary, the executive and the legislature. It is seen that majority of people are under impression that government at any level has failed to check corruption at every level of administration. Whenever some instances of malpractice are reported, then people simply blame the State, that the state has not done anything to check corruption. At the same time we ignore our duties and responsibilities in countering corruption and ensuring transparency and accountability in governance. It is due to the fact that people, with sense of belongingness towards the nation, can make a lot of difference in development and quality of public administration of the nation.
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Fourth Report of 2nd Administrative Reforms Commission , Jan 2007 on “Ethics In Governance” , Para 1.1 7 Id, Para 2.2.1 8 Id, Para 2.2.3
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3. ETHICAL VALUES IN THE ERA OF COMMERCIALISATION, AND MATERIALISTIC WORLD ‘Success at any price, means or steps are irrelevant’ is the mantra for contributing corruption across the globe. In the era of Commercialisation and privatization and globalization, majority of people desire success at any cost and means are irrelevant for them, whether right or wrong or illegitimate or legitimate. Majority of us don’t want to wait in queue and often look for different means to avoid queue and systematic process of public administration. People in majority are also under impression that no favourable action will be taken, unless bribe is paid to public servants. Dishonesty, hypocrisy and opportunism are high on demand in the market of governance, because majority of people, with some exception, have lost ethical values. Honesty, sincerely, and integrity are hardly recognised and respected by market forces and modern society including public offices. Corruption exists because of some of us, who generate or breed or create demand for corruption and also supply unlawful consideration for corruption. People offer bribe to public servants for out of turn favor from them. Later they blame public servants and public administration system that public system is highly corrupt. Majority of us have strong faith in “Apni Jeb Bharo Baki Sab Maro” (let others go to hell, I should get everything). There is no standard and static behavior, but the conduct of people is determined according to the mindset of individuals occupying public offices. There exist is a wide gap between preaching and practicing. Majority of People preach something, do something differently and something else happen. Sycophancy and hypocrisy in public life, with a few exceptions, are flourishing in the era of Commercialisation and privatisation. Honesty and integrity are struggling to survive, because there is no demand for these antique values in modern society. Unprincipled behaviour or hypocoristic conducts may allow people to get some short term benefits, but in long term moral values ingrained with honesty and integrity; and hard work with commitment, will sail anywhere in the world. 3.1. SACRIFICE FOR THE SAKE OF PRACTICING ETHICAL VALUES An honest person has to struggle hard to survive his honesty from the clutches of dishonest and greedy people. People in public offices and otherwise are afraid of honest and sincere persons as these people are considered threat to maladministration and misuse of public offices.
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History has reiterated itself time and again, the agony of people with ethical values that have been paid by honest, sincere and committed people at the hands of immorality, dishonesty, arbitrarism of rulers in any forms of governance. Hundreds of honest and devoted right to Information or freedom of information activists have been killed for following the path of these moral values. A few public servants with credibility and uprightness have also been victimized by dishonest and corrupt politicians and other public servants for not adhering to their arbitrary exercise of powers in the operations of ministries across the nation. It is also evident from the judgment of the Apex Court in Shobhan Singh Khanka v State of Jharkhand9 that being an honest person is considered as a great threat to a dishonest person and an honest person has to pay for his honesty. It is apparent from the factual matrix of the case that the appellant, one of the members in the Interview Board for conducting Second Jharkhand Public Service Commission (JPSC) Civil Services Examination 2005; an eminent Professor of Management with so many laurels to his credit, was an expert on the Selection Board, duly appointed by competent authority from other state, who had not direct and indirect interest in the proceedings, had to undergo so much of monetary and psychology sufferings at the hands of corrupt activities of others. Appellant for no fault of his had to remain in prison for more than six months.10 It is pertinent to mention that truth always wins, but getting success against unethical values is a matter of long and constant struggles. If we want long term benefits for our future generation then we have to germinate the seeds of ethical values in our young generation and lead from the front to practice these values, against all odds. It is quite sure that hardships will be inevitable in any course of fight against corruption.
9
Criminal Appeal No. 592 of 2012 (Arising out of S.L.P. (Crl.) No. 7644 of 2011) Id Para 14 “we direct that in the event of arrest, the appellant shall be released on bail in connection with PS case No. 23 of 2010 corresponding to Special Case No. 23 of 2010, Vigilance PS, Ranchi, Jharkhand subject to the following conditions:(i) the appellant shall make himself available for interrogation as and when required; (ii) the appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) the appellant shall not leave India without the previous permission of the special court.” 10
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4. MORAL STANDARDS AND LACK OF SENSE OF BELONGINGNESS TOWARDS THE NATION Attitude and aptitude of public servants at any level of administration makes lot of difference in ensuring objectives of good governance. It is seen that Japanese and other East Asian Countries, have optimistic thoughtful and sense of belongingness towards their country, whenever they declare strike, they accelerate the rate of productions, which creates difficulties for the employer to manage such output. There is no cessation of work in case of any protest or strike against the states or employers in those countries. Where as in India, strike/protest against the state or employers means completeness cessation of work, everything is stopped, or absolutely no work. If anyone is not interested in such bandh or strike, then he/she is compelled to close his establishment by protestors. No protection is available to such a person who wants to protest against any bandh or strike. It has been observed that government properties have been destroyed or damaged during series of bandhs/protests by political parties. It is also pertinent to note that nobody is accountable for losses or damages to public and private properties during such events organised by people including political parties. Majority of people are ignorant of the fact that whenever losses or damages during any type of protest, to the public property, is caused, who pays for it. The said losses are paid by government out of pubic exchequer, which is public money generated from taxes paid by people. Any type of detrimental to public property would affect development of the nation and ultimately people suffer from that loss. Entire society has been affected by the facets of corruption in public administration. A Common man, with low earning capacity or below poverty line is mostly affected by rampant corruption. The same has also generated numerous conflicts in the society. As already noticed that corruptions have so many dimensions and have long term implications on any nation’s development and good governance.
5. COMMITMENT AND DEDICATION OF PUBLIC SERVANTS AND CORRUPTION It has been observed that majority of public servants are not punctual while attending their official works. Public servants by virtue of employee of the State, have the privilege of coming late to office. Most of the public servants are casual in their operations, because of no personal accountability of the misconducts of public servants. The traditional principle of governance, i.e.,
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king can do no wrong, has been practiced by public servants in their dealings with public for delivering public services. Government employment is considered as a secured employment without doing anything workers gets payment and no accountability to anyone. Therefore they are highly arbitrary while exercise of their powers, especially at lower levels of administration such as land revenue departments’ public utilities departments, etc. Public servants in majority have an impression that they are the proprietor or owner of public officers. So they misuse the resources of public offices for personal gains. Most of the public servants are also under inscription that they are accountable to none. Such ambiance promoted by arrogance of powers generates corruption and loss of confidence or trust of public for serving poor and downtrodden strata of the society. The Second Report of Administrative Reform Commission 2007 has also vindicated the ground realities exist in public offices in India. According to the Report “Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally, but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it.”11
6. FINAL THOUGHTS "Ethics in governance would hold key to good governance in any society. If the King is immoral so will be his subjects”12. “Corruption has become a major governance challenge and there is no single remedy for fighting graft. The battle against it has to be fought at many levels. The designs of the programme should provide for more transparency and accountability. Systems and procedures which are opaque, complicated, centralized and discretionary are a fertile breeding ground for the evil of corruption." 13 The fundamentals of the rule of law have been confined to the statue book, because of lack of willpower and incompetency to enforce those ingrained 11
Supra note 6 The CBI Director A P Singh at the “First Interpol global programme on anti-corruption and asset recovery” The Times of India, (New Delhi) Feb 14 2012 available at accessed on 20 August, 2012 13 Ibid 12
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values of rule of law. Due to the incapability/reluctance of people, public servants have been able to manipulate and exploit public resources in the name of governance. People have lost faith on the governmental institutions due to non-recognition of moral and legal values by the state instrumentalities. 6.1. PREREQUISITES FOR THE SUCCESS OF ETHICS IN GOVERNANCE “Values are needed to serve as guiding stars, and they exist in abundance in our society. A sense of right and wrong is intrinsic to our culture and civilization. But values need to be sustained by institutions to be durable and to serve as an example to others. Values without institutional support will soon be weakened and dissipated. Institutions provide the container, which gives shape and content to values. This is the basis of all statecraft and laws and institutions. While incentives and institutions matter for all people, they are critical in dealing with the army of public servants, elected or appointed, endowed with authority to make decisions and impact on human lives and exercising the power to determine allocation of resources. Public office and control over public purse offer enormous temptation and opportunity to promote private gain at public cost. Therefore, creation of institutions and designing of incentives are of utmost importance in promoting ethical conduct of public servants”14. The significance of moral values has also been recognised across the world, which is evident from the international instruments such as the United Nations Convention Against Corruption 2003(UNCAC). The UNCAC under Article 8 lays down that there shall be a “Codes of conduct for public officials” for promoting integrity, honesty and responsibility among its public officials, in accordance with the fundamental principles of its legal system 15 . Further States shall endeavour to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable and proper performance of public functions.16 Ethical values in governance will not flourish unless some fertile ambiance is generated for its growth. Germination of seeds of ethics in governance is quite difficult due to the materialistic and commercialised World. It is also pertinent that Corruption will not comedown unless corrupt people are challenged and punished for wrongdoing, and honest and committed people are rewarded for their devotion toward the nation. Congenial and conducive atmosphere, by practicing and respecting moral values, are a prerequisite for 14
Supra note 6, Para no 1.5 Article 8(1) of the Convention 16 Article 8(2) of the Convention 15
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ensuring success of ethics in governance for long term. Researcher has suggested the following recommendations for the purpose of revival of ethical values to ensure transparency and accountability in public administration and controlling corruption. 6.1.1. Personal Accountability of Public Servant for Corruption ‘The fundamental principle in a democracy is that all persons holding authority derive it from the people; in other words, all public functionaries are trustees of the people. With the expansion of the role of government, public functionaries exercise considerable influence over the lives of people. The trusteeship relationship between the public and the officials requires that the authority entrusted to the officials be exercised in the best interest of the people or in ‘public interest’.17 According to the well-established principles of vicarious liability of the state that state shall be liable for the tortious act or omission of public servants. Public exchequer will be used to make payment to victims in that case. Why public money should be wasted for such default of public servants? It is recommended that these wrongful losses should be recovered from the specific public servants who are responsible for the act or omission. In order to promote quality governance and control corruption in public offices, it is necessary that public servants should also be made liable to public for corruption and misuse of public resources. 6.1.2. Emotional Quotient as an Essential Qualification The additional criteria for selection of a public servant in form of Emotional Quotients such as integrity, honesty, sincerity, devotion to public service and sense of belongings towards nation should be added to the eligible criteria for selection to a public post. A person with these values can serve the nation and people by performing his duties and responsibilities devotedly. A Specific examination at the time induction of an employee, to assess the parameters of ethical values, should also be conducted for public appointments. Performances of honest and committed public servants should also be publicly respected and rewarded to their services. 6.1.3. No Immunity to Dishonest and Corrupt Public Servants There are certain immunities and privileges such as prior sanction for initiating criminal proceeding under Section 19718 of Cr PC 1973, Section 1919 of the Prevention Corruption Act, 1988, Section 8020 of the CPC 1908, 17
Supra note 6, Para 2.2.2 Section 197 : Prosecution Of Judges And Public Servants: 19 Section 19 : Previous Sanction Necessary For Prosecution: 18
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and the Constitution of India, 1950, provided to public servants, should be done away in cases of corruption breach of trust of responsibility and failure to promote public interest for good governance. A Corrupt public official should not be allowed to take shelter under these immunities, which should be available to honest and devoted employees of the state, only. It is evident from the reported judgments of the Apex Judiciary and instances, that these protections have been misused to protect the interest of corrupt public servants. Information which is exempted under the Section 821 of the Right to Information Act, 2005 should also be disclosed in case of corruption and violation of human right cases as has been done in case of section 2422 of the RTI Act, 2005. These proposed initiatives will not only expose the corrupt public servants but also ensure the transparency and accountability in functioning of the nation. 6.1.4. Zero Tolerance against Corruption “In a vast majority of cases of bribery, the citizen is a victim of extortion and is compelled to pay a bribe in order to get a service to which he is entitled. Experience has taught most citizens that there is a vicious cycle of corruption operating and they often end up losing much more by resisting corruption. Delays, harassment, lost opportunity, loss of precious time and wages, uncertainty and, at times, potential danger of loss of life or limb could result from resistance to corruption and non-compliance with demands.”23 Zero tolerance against corruption can ensure not only promotion of ethical values but also minimization, if not elimination, of corruption. The same is vindicated by Hong Kong’s experience in eliminating corruption. Therefore the honesty and sincerity with devotion towards nation should be appreciated and rewarded. Names of those officials should also be provided in public domain, on the web site of the relevant public institution. Casual attitude or approach of the society on controlling corruption in governance will not be helpful in long term. 6.1.5. Police Reforms for fair and free selection and control Many committees and commissions on free and fair recruitment and operations of police forces have recommended for implementation of police reforms. Police forces have lost their credibility due to variety of reasons 20
Section 80: Prior Notice Section 8 provides for exemption of 10 subject matters from being disclosed. 22 Section 24 stipulates the non application of the RTI Act, 2005 to some institutions/ organizations engaged in security and intelligence as specified under Schedule II of the Act. 23 Supra note 6 Para 1.13 21
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including rampant corruption and political interference into the functioning of police forces. The first question is that why majority of police forces are involved in corrupt activities and have failed to maintain law and order for a common man. Corruption starts from the recruitment process and continues till the completion of service of police personnel. It is also true that there are some exceptions to that observation. Politicians have also been misusing police forces for their personal interests. It is very difficult for an honest person to survive with the honesty in police forces. Wrongful or unlawful orders of politicians and other corrupt officials, are also required to be followed by each one in police forces, any kind of disobedience is punished heavily. Therefore police forces should be out of clutches of political control. Reforms pertaining to selection, proper training/ education of police men, transparency and accountability in the functioning of administration and other reforms are necessary for crackdown on maladministration and corruption of police forces. It is also suggested that the Anti-Corruption Department of police forces should only be manned by police officers with impeccability integrity and honesty and proven records of quality performances. 6.1.6. Election Reforms: Election of Best Suitable Person for good governance Politicians have considered politics as a good long term investment to exploit the resources of the nation, without any fear of any action and accountability. Scams after scams involving thousands of millions rupees have been unearthing the involvement of corrupt politicians at any levels of governance. It has been observed form the past reported instances, involving politicians that politics have largely contributed to corruption in India. Honest and committed people are reluctant to enter into politics due to various reasons. Therefore it becomes necessary that best suitable person with moral values and devotion towards people rather serving individual interest should be allowed to represent people. The Former Chief Justice of Supreme Court Justice J S Verma in the judgment of Gadakh Yashwantrao Kankarrao v E. V. Alias Balasaheb Vikhe Patil 24, while espousing the cause, has reiterated the need of reforms in 24
1994 1 SCC 682; Justice J S Verma
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election and election of the best person to serve the nation, in the following words. “For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country. This can best be achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates. It is also necessary that the impact of money power which has eliminated from electoral contest many men of undoubted ability and credibility for want of requisite financial support should be able to reenter the field to make the people's choice meaningful. This can be achieved only if elections are contested on a positive vote and the comparison is between the merits and abilities of the contestants without the influence of power and pelf and not between their comparative demerits and the support of money power. Apart from the other adverse consequences, the growing influence of money power has also the effect of promoting criminalisation of politics.”25 It is also emphasized that characters or conducts of candidates during elections are not taken seriously by the voters due to caste, religion, or regionalism or otherwise which has led to lowering ethical standard. There is no dearth of good people who can serve the nation in any capacity. People should support good representatives and discard bad, opportunistic and criminals from representation of the state. It is important to emphasize that the performance and quality of governance of democracy depends up on the quality of the elected representatives.26 It is prayed that people should elect honest, hard worker and committed people as their representative who is really committed to people’s causes and not for monetary benefits and greedy for powers. People have to come out of caste, religion and party politics to improve the quality of governance. People must elect a true representative to protect and promote larger public interests and not individual interests.27 25
Id, Para No 15 Ibid 27 Dr Rajendra Prasad,President, Constituent Assembly of India, 26th November, 1949 before putting the motion for passing of the Constitution on the floor: “If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution 26
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6.1.7. Right to Recall of Corrupt and Dishonest Elected Representatives of people Right to recall is a vital mechanism calculated to facilitate voters disappointed with corrupt and dishonest elected representatives to substitute him prior to the finishing of his tenure of office. Unlike direct democracy practiced by some western nations, our Constitution does not empower the people to recall the elected representatives if they fail to come up to people’s expectations. Proponents of the recall maintain that it provides a way for citizens to retain control over corrupt elected officials who are corrupt and not representing the best interests of their constituents, or who are unresponsive or incompetent. Why corrupt politicians should be allowed to bled public exchequer for stipulated terms of 5 years? The largest democracy of the world cannot be said to be the most effective democracy in the world. Pitfalls of the Indian democracy can also be set right by putting electorate in power to recall corrupt and dishonest representatives. It is recommended that the people should be empowered to replace corrupt and dishonest elected representative especially at municipal, and panchayat, levels, during the currency of the tenure of such representative. It will have some deterrent effect, even if not utilized, on the elected representatives and would compel them to work for people. What should be the frame work of right to recall and its amplitude is another issue of further research? 6.2. FOUNDATION OF SENSE OF BELONGINGNESS AND DEVOTION TOWARDS THE NATION It is very pertinent to mention that the public money funds all public works including transportation, electric generation, road construction, buildings and other public properties. If public property is damaged due some protests or strike then it is the directly or indirectly detrimental to the interests of pubic. The need of the hour is to discontinue unwanted dharna, protest, strike, bandh which not only paralyse public life but also cause losses to public resources. cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas…We can only hope that the country will throw up such men in abundance”.
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People must have sense of responsibility and belongings towards the state property which is supposed to be protected from any misuse and destruction from any aggression. 28 People should support administrative agencies in performance of public works. Public servant and public should be mutually accountable in ensuring transparency and accountability in governance. There is a need to frame a specific legislation to determine the responsibility of leader of any political party or civil societies or any form of associations for the loss of life and properties caused during any kinds of strike, dharna, or protest. Damages caused during such public unrest should also be recovered from the properties of the people involved including political leaders. The combination or association of people and public servants, working together, can serve the nation better for curbing misuse/abuse of public resources. Both the stakeholders of public governance are complimentary and supplementary to each other in insuring transparency and accountability in governance. People should be proud of the nation and work for the advancement of India. Public should ignore cast, religions hindrances and promote and protect the national interests. 6.3. EXEMPLARY PUNISHMENT INCLUDING ATTACHMENT OF PROPERTY FOR BRIBERY AND CORRUPTION Corruption has been growing because people have been breeding and promoting it. One of the fundamental principles of demand and supply is that if there is a demand for something then supply shall exist and if there is not demand there would not be any supply. If people stop bribing and strictly abide by process of law, though it may be very difficult at the initial stage but later it will pay rich dividend for generations, then public servants would not dare to misuse the resources of the nation. “There are several cases of collusion between the bribe giver and corrupt public servant. In such cases of collusive corruption, both parties benefit at immense cost to society. Awarding of contracts for public works and procurement of goods and services, recruitment of employees, evasion of taxes, substandard projects, collusive violation of regulations, adulteration of foods and drugs, obstruction of justice and concealing or doctoring evidence in investigation are all examples of such dangerous forms of corruption. As the economy is freed from state controls, extortionary corruption declines and collusive corruption tends to increase. We need to fashion strong and effective instruments to deal with this growing menace of 28
The Constitution of India: Fundamental Duties Article 51A Clause (i) to safeguard public property and abjure violence
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collusive corruption, which is undermining the very foundations of our democracy and endangering society”29. The Supreme Court of India in the leading case of Delhi Development Authority v Skipper Construction Co Pvt Ltd30 has also reiterated the same. The Supreme Court opined that: “Someone has acquired property by defrauding the people and if it is from that the persons defrauded should be restored to the position in which they would have been but for the said fraud, the Court can make all necessary orders.”31 The Report of Law Commission of India in its 166th Report, 1999”32 has also recommended the enactment of specific enactment for seizure of property of corrupt public servants. A bill titled ‘The Corrupt Public Servants (Forfeiture of Property) 33 was introduced for consideration of the Government in February 199934, but that bill lapsed later. The Prevention of Corruption (Amendment) Bill 2013 has included a specific provision on confiscation of properties of public servants involved in corruption. The Proposed Bill in accordance with the UNCAC, 2003 has also included briber within the ambit of the Prevention of Corruption Act, 1988. The same has been recommended by the 2nd Administrative Reforms Commission Jan 2007 It is recommended that both briber and bribe should be punished for their defaults and such trial should be completed within one year. Properties of the public servants involved in corruption should also be confiscated and should also be utilized for public purposes. This will set an example for others to strictly act according to the rule of law.
29
Supra note 6 AIR 1996 SC 2005 31 Id, Para 31 32 The Law Commission of India 166th Report, Feb, 1999 33 Supra Note 6 , Para 3.4.9 page No. 76 : “The Commission is of the view that for confiscation of the property of a public servant convicted for possession of disproportionate assets, the law should shift the burden of proof to the public servant who is convicted. The presumption, in such cases, should be that the disproportionate assets found in the possession of the public servant were acquired by him though corrupt means and a proof of preponderance of probability should be sufficient for confiscation of property. These requirements are adequately met in the draft Bill proposed by the Law Commission.” 34 The relevant provision of the Bill reads as “where any person holds any illegally acquired property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the Central Government in accordance with provisions of the Act” 30
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Mann / Ethical Standards in Eradication/Controlling Corruption in Governance: A Critique
6.4. CITIZENS CHARTER ON ETHICS IN GOVERNANCE FOR PUBLIC INCLUDING PUBLIC SERVANTS There is no dearth of talents in India. But due to non-recognition of those talents and prevailing corruption, those talents are compelled to migrate outside India for serving other nations. India has also not come out of foreign colonial psyche, where people in public offices still believe in that Indian lack talents. The same has led to over dependence of India on foreign technology and expertise. Protection and appreciation of committed public savants and people are prerequisites for promoting transparency and accountability in governance and controlling corruption. Every person should perform his/her duty and responsibility with commitment and honesty according to law for the betterment of the nation and future generations. Firstly, there is need to sensitize people about the significance of ethical in governance of the nation and it benefits to common men. Education system should provide intellectual and moral development of young generation. Courses on moral values or ethical values should be included in primary and secondary schools. Secondly, citizen’s charter for people and public servants in ensuring good governance should be framed to regulate their conducts in delivering quality goods and services in a time bound frame. According to the researcher, the following ethical values, by shunning hypocritical behavior for greed of any kind, as a sacrifice for holy war of nation against the corruption, should be preached and practiced by every person:. a) Taking and giving bribe is condemned publicly. b) Honesty, sincerity and devotion in performances of every public servant. c) Respect for mankind irrespective other erroneous considerations. d) Not to destroy public property. e) No unnecessary bandh or strike, or forced strike to paralyze public life. f) Respect for others and do for betterment of others, without caste, religion, or regions. g) Casting vote in favor of best suitable person.
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h) Participate in public life for espousal moral values. i) Commitment for transparency and accountability in governance at any level of administration. j) Cooperation and coordination with public authorities in enforcing moral values and discarding corrupt activities. k) Exposing people involved in corruption, without any bias, for national developments.
CONCLUDING REMARKS According to the father of nation Shri Mahatma Gandhi that “You must be the change, You wish to see in the world” is a strong mantra for elimination of corruption. The moral of the massage is that we must change ourselves then the desired change will automatically happen. We have to immaculate ourselves before blaming others for any wrongful action such as making bribe to any administrative authority for asking some undue favour. There should not any gap between preaching and practicing moral values in public life. We have to improve ourselves to overcome our unethical practices then the nation will grow automatically. Because, a nation grows with its honest, sincere and committed people. “We, the People of Republic of India, Pledge To undertake to shun bribery in any form, from India, by adhering to the Principles of Ethics in every sphere of life”
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