Corruption In India

Even after 62 years of india's independence , the plight of commonman has worsened. Corrupt public servants , corrupt judges , corrupt police , etc are proving to be parasites leading 5-star lifestyles at taxpayer's expense. They in their greed for money , bribe are aiding & abetting terrorists , separatists , naxalites, underworld mafia , etc covertly & overtly , backstabbing our motherland. These corrupt public servants are more cruel than Jalianwallah Bagh butcher General Dyer of british army. If Mahatma Gandhi was alive today , he would have been disgusted with the present way of democratic government , functioning of public servants & would have died heart broken. If our freedom martyrs like sri.Bhagath Singh or Sri. Madan Lal Dingra or Sri.Subhash Chandra Bose would have been alive , they would have given a befitting reply to this corrupt police , corrupt judges , public servants. Whenever , a commonman raises his voice for justice , he is silenced in various ways by the criminal nexus. The said criminal nexus has previously tried to silence me in many ways including attempts to murder , closure of newspaper etc. Corruption and human rights The human right to corruption-free service - some constitutional and international perspectives. C. RAJ KUMAR The first part of a two-part article. IN his book Taking Rights Seriously Ronald Dworkin argued: "The institution of rights against the government is not a gift of God, or an ancient ritual, or a national sport. It is a complex and troublesome practice that makes the government's job of securing the general benefit more difficult and more expensive, and it would be a frivolous and wrongful practice unless it served some point. Anyone who professes to take rights seriously, and who praises our government for respecting them, must have some sense of what that point is. He must accept, at the minimum, one or both of two important ideas. The first is the vague but powerful idea of human dignity. The second is the more familiar idea of political equality." Thus, his argument is that a person has a fundamental right against the government only if that right is necessary to protect his or her dignity or standing as one who is equally entitled to concern and respect. AFP Inside a government office. Corruption in India not only poses a significant danger to the quality of governance but also threatens in an accelerated manner the very foundations of its democracy and statehood. In India, corruption attacks the fundamental values of human dignity and political equality of the people and hence there is a pressing need to formulate a fundamental human right to corruption-free service. The development of a fundamental human right to a corruption-free society will be observed initially from an international perspective so as to elevate the violation of this right to the status of an international crime. This would provide the comparative basis to elevate the right to corruption-free service to the status of a fundamental right within the framework of the Indian Constitution. One of the definitions of the term corruption is "giving something to someone with power so that he will abuse his power and act favouring the giver". Another definition is "the offering, giving, soliciting or acceptance of an inducement or reward, which may influence the action of any person". It includes bribery and extortion which involve at least two parties, and other types of malfeasance that a public official can commit alone, including fraud and embezzlement. The appropriation of public assets for private use and the embezzlement of public funds by politicians and bureaucrats have such clear and direct adverse impact on India's economic development that their costs do not warrant any complex economic analysis. Corruption and its impact on governance in India Corruption affects India at all levels of governmental decision-making and in the distribution of state largesse. India is ranked 72nd out of 91 countries in the Corruption Perception Index, 2001, prepared by Transparency International (TI). Corruption in India not only poses a significant danger to the quality of governance, but also threatens in an accelerated manner the very foundations of its democracy and statehood. The recent revelations of corrupt practices in defence purchases and related contracts not only tend to undermine the security of the Indian state, but also fundamentally shake the people's trust and belief in the Government of India and its institutions. The mid-1960s are perceived to be the great divide in the history of governance administration in India. It paved the way for the blurring of the Gandhian and Nehruvian era of principled politics and the emergence of a new system of politics that began to tolerate and even encourage dishonesty and corruption. The scams and scandals of the 1990s revealed that among the persons accused of corruption were former Prime Ministers, Chief Ministers, Governors and even members of the judiciary. India's experience with corruption has shown that laws, rules, regulations, procedures and methods of transaction of government business, however sound and excellent they are, cannot by themselves ensure effective and transparent administration if the political and administrative leadership that is entrusted with their enforcement fails to do so and abuses its powers for personal gain (Sunil Sondhi, 2000).

Gunnar Myrdal has described Indian society as a "soft society". According to him, a soft society is one that does not have the political will to enact laws that are necessary for its progress and development and/or does not possess the political will to implement the laws, even when made, and one where there is no discipline. He has stressed that if there is no discipline in society, no real or meaningful development or progress is possible. Corruption and indiscipline survive on each other's willingness to accommodate, tolerate and provide encouragement. Corruption affects governance in a significant manner and it is anti-poor. For instance, a substantial portion of foodgrains, sugar and kerosene meant for the public distribution system (PDS) and for welfare schemes for the poor, including the Scheduled Castes (S.C.s) and the Scheduled Tribes (S.T.s), goes into the black market. Hardly 16 per cent of the funds meant for the S.T.s and the S.C.s reach them (Consultation Paper on Probity in Governance, National Commission to Review the Working of the Constitution, 2001). The rest are misappropriated by members of the political and official classes and unscrupulous dealers and businessmen. Like other social evils, the problem of corruption brings out numerous responses. As a lawyer, my response would inevitably involve changes in the laws and in this case an amendment to the Constitution. While I propose this amendment, I am mindful of the inherent weaknesses of any law or legal response if the enforcement mechanism is weak - that would only amount to paying lip service to the law. This may be the case with several other laws, mostly criminal laws that are already in place to punish the corrupt, or for that matter the case of anti-terrorism laws, which are available in plenty even as the present government enacted the Prevention of Terrorism Act. Corruption has flourished in India because of the drawbacks of the criminal justice system. We see more and more examples of acquittals in corruption cases. Several corruption-related cases filed in India in the recent past were poorly founded upon, were backed by incomplete and inefficient investigation, and were followed by delayed trials that resulted in morally ill-deserved but legally inevitable acquittals. Human right to a corruption-free society under international law It has been argued that the struggle to promote human rights and the campaign against corruption share a great deal of common ground. A corrupt government that rejects both transparency and accountability is not likely to respect human rights. Therefore, the campaign to contain corruption and the movement to protect and promote human rights are not disparate processes. They are inextricably linked and interdependent and both the elimination of corruption and the strengthening of human rights require a strong integrity system (Laurence Cockcroft, TI Working Paper, 1998). Having said that, it needs to be borne in mind that this generalised system of linkage need not be applicable in all situations. Hence it should not be presumed that the fight against corruption is synonymous with the struggle to enforce human rights. For example, in the Corruption Perception Index for the year 2000, Singapore was considered to be the eighth least corrupt country. This was largely the result of systematic anti-corruption measures initiated from the top tier of the administration. At the same time, Singapore is hardly known for its progressive position on human rights. On the other hand, there is evidence to suggest that whilst the human rights situation in Central America and many parts of Latin America and certainly India has been improving steadily, the incidence of corruption has also been increasing. It may be argued that there is sufficient state practice to support a claim for an international customary law to prohibit corruption in all societies. That is, a case can be made for the right to a corruption-free society as a fundamental human right; a right that should be recognised as a component part of the right to economic selfdetermination and the right to development (Ndiva Kofele-Kale, 2000). To start with, it will be useful to examine the present international regime and the legal framework that has been developed to fight corruption. An international legal regime to combat corruption There has been a burgeoning field of law-making at both the national and international levels on the subject of corruption. The leading global and regional organisations spearheading this movement, including the United Nations, the World Bank, the International Monetary Fund (IMF), the Council of Europe, the European Union (E.U.), the Organisation of American States (OAS), the Organisation for Economic Co-operation and Development (OECD), the Global Coalition for Africa (GCA), and the International Chamber of Commerce, have articulated anti-corruption policies and strategies. The concerted drive at the multilateral level to confront the problem of corruption has given birth to a number of anti-corruption legal instruments, which together constitute the current international legal regime to combat corruption. Such enthusiastic law-making activity began with the 1995 European Union Convention on the Protection of the European Communities' Financial Interests and its two additional protocols. This was followed by the 1996 Inter-American Convention Against Corruption and the 1997 OECD Convention on Bribery of Foreign Public Officials in International Business Transactions, and ended with the 1999 Council of Europe Criminal Law Convention on Corruption. Ironically, while the E.U. is the flag-bearer in law-making activities, it is worth noting that Francois Mitterrand, Helmut Kohl, Jacques Chirac and even Tony Blair are all under the cloud of graft allegations and inquiries. Indeed, these developments have resulted in countries across the world focussing on corruption and making some attempts to attack it nationally. However, these legal instruments have not gone far enough to deal with the global problem of corruption to the extent one would like them to. It is under these circumstances that a fundamental human right to a corruption-free society is being proposed, and concomitantly it is being argued that a breach of this right is a crime under international law. Corruption and its relevance for human rights and human development Human rights have indeed acquired a special position in the contemporary world because of the increasing tendency of national governments to include these rights in their respective constitutions as well as laws. This has resulted in several judiciaries around the world interpreting different human rights as a part of their own national

laws or for that matter as a part of the International Law, which their respective country has been a signatory to, through treaties and other conventions. Thus the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have acquired greater legitimacy in the last few decades as more and more nations have realised the importance of these human rights as instruments for better governance. Probity in governance is a sine qua non for an efficient system of governance and for socio-economic development. An important requirement for ensuring probity in governance is the absence of corruption. The other requirements may be effective laws, rules and regulations that govern every aspect of public life coupled with effective law enforcement and criminal justice systems. The right to a society free of corruption is inherently a basic human right because the right to life, dignity, equality and other important human rights and values depend significantly upon this right. That is, it is a right without which these essential rights lose their meaning, let alone be realised. As a fundamental right, the right to a corruption-free society cannot be discarded easily "even for the good of the greatest number, even for the greatest good of all" (Louis Henkin, The Age of Rights, 1990). It may be argued that the right to a corruption-free society originates and flows from the right of a people to exercise permanent sovereignty over their natural resources and wealth, that is, their right to economic self-determination, recognised in the common article of the ICPR and the ICESCR (Ndiva Kofele-Kale, 2000). Hence it may be argued that the state is in violation of the right to economic self-determination if it transfers in a corrupt manner the ownership of national wealth to select power-holders who happen to be influential in a society at a particular point of time. This violation by the state also results in a situation where people are denied individually and collectively their right to use freely, exploit and dispose of their national wealth in a manner that advances their development. The Declaration on the Right to Development, which stated unequivocally that the right to development is a human right, was adopted by the U.N. in 1986 by an overwhelming majority, with the United States casting the single dissenting vote. The Declaration has four main propositions: 1. The right to development is a human right; 2. The human right to development is a right to a particular process of development in which all human rights and fundamental freedoms can be fully realised, which means that the right to development combines all the rights enshrined in both the covenants and that each of the rights has to be exercised with freedom; 3. The meaning of exercising these rights consistently with freedom implies free, effective, and full participation of all the individuals concerned in decision-making and in the implementation of the process, and therefore the process must be transparent and accountable, and individuals must have equal opportunity of access to the resources for development and receive a fair distribution of the benefits of development (and income); and finally, 4. The right confers an unequivocal obligation on duty-holders - individuals within the community, states at the national level, and states at the international level. Nation states have the responsibility to help realise the process of development by initiating appropriate development policies. Other states and international agencies have the obligation to cooperate with the nation states to facilitate the realisation of the process of development. It is in this context that the fundamental right to a corruption-free society adds a new and necessary dimension to the right to development. No development process will have any meaning and relevance if corruption as an institutionalised process interferes with people's struggles to realise their right to development. Corruption as a universally recognised international crime Universal crimes are those crimes that a "state may participate in their repression even though they were not committed in its territory, were not committed by one of its nationals, or were not otherwise within its jurisdiction to proscribe and enforce". A crime of universal interest, that is, a crime under international law, can be characterised as such irrespective of its designation under domestic law (Principles of International Law Recognised in the Charter of the Nuremberg Trial and the Judgment of the Tribunal, Principle 1, 1950). This is what is meant by the principle of the supremacy of international law over national law, reaffirmed in the Draft Code of Crimes Against the Peace and Security of Mankind in Article 2. Additionally, action taken with respect to crimes of universal interest must come with adequate safeguards to protect the rights of the accused; for instance, the prohibition against double jeopardy and non-retroactivity. Where the principle of double jeopardy seeks to safeguard the accused from arbitrary judicial treatment under the criminal justice system, the doctrine of retroactivity seeks to uphold the fundamental objective of criminal law, which is to prohibit and punish and to deter the conduct of what is considered sufficiently serious in nature to justify characterisation as a crime. An international crime must satisfy the principle of aut dedere aut judicare, which places any state in whose territory the alleged accused is present under an obligation to extradite or prosecute him or her. The basic purpose of this principle, which is found in all anti-bribery conventions, is "to ensure that individuals who are responsible for particularly serious crimes are brought to justice by providing for the effective prosecution and punishment of such individuals by a competent jurisdiction". But the question remains as to whether the term corruption as used in this article meets the exacting standards of an international crime as laid down in the Nuremberg Charter and the Draft Code of Crimes, which entails individual responsibility. Under the Draft Code of Crimes, a prohibited conduct qualifies as a crime if it is of such a character as to threaten international peace and security. That is, it must be seen as a crime of exceptional gravity or extraordinary magnitude and of sufficient seriousness to justify the concern of the international community (Ndiva Kofele-Kale, 2000). The plethora of efforts made by international institutions at various levels to curb corruption prove that there is a consensus all over the world that in the developing countries corruption hinders economic growth and scuttles development in a direct and tangible manner. At the most, it may be argued that there is a lack of political will to engage, and suggest innovative and effective solutions to attack, the problem of corruption so that changes are seen in the not-so-distant future.

It may be useful to refer to the fact that corruption has long been prohibited by the laws and constitutions of most states - in the old democracies of Western Europe and North America, the new democracies of Central and Eastern Europe, Asia, and Africa. Interestingly, it is expressly prohibited in the constitutions of Haiti, Nigeria, Paraguay, Peru, the Philippines and Sierra Leone, to mention a few. The gravity of the problem may be understood by examining the work of various special tribunals and commissions of inquiry that have been set up in several countries to probe into and try cases of corruption by public officials. These developments worldwide undoubtedly provide enough arguments for the international community to develop a consensus to treat corruption as a crime punishable under international law.

Role of Lokayukta in combating Corruption and Mal-administration and measures for strengthening these Institutions.

Nowadays, corruption is internationally recognized as a major problem in society, one capable of endangering the stability and security of societies, threatening social, economic and political development and undermining the values of democracy and morality. International cooperation is indispensable to combat corruption and promote accountability, transparency and the rule of law. In its widest connotation, corruption includes improper or selfish exercise of power and influence attached to a public office due to the special position one occupies in public life. The developing countries like India face this problem. Throughout the fabric of public life in the developing countries runs the scarlet thread of bribery and corruption. Corruption hurts the public directly and tragically, particularly as it penalizes the honest and rewards the dishonest among them. Corruption and mal-administration impose a great strain on democracy and we all know that corruption is the end product of a process of administration and is preceded by mal-administration. To live in a society which pursues good governance practices is today a basic human right. The quality of an individual citizen's life is materially affected by both the decisions taken by government and the manner in which those decisions are implemented. A just and civil society requires a system of government which whilst operating within the rule of law provides for a wider recognition of the need for accountability to citizens on whose behalf government undertakes its responsibility. The traditional role of Ombudsman provides an effective accountability mechanism, which is now in place in more than 100 countries. The role of Lokayukta is necessary in providing a mechanism which can balance the fundamental requirement that governments must be able to govern but with appropriate accountability "Good Government"-- is expected to contain a number of key components: political legitimacy for the state through democratic elections and transfer of power, and an effective political opposition and representative government; accountability through transparency and the provision of information; separation of powers; effective internal and external audit; effective means of combating corruption and nepotism; official competency, such as trained public servants; realistic policies and low defence expenditure; human right as indicated by freedom of religion and movement; impartial and accessible criminal justice systems; and the absence of arbitrary government power. Good government is also seen as an essential condition toward the wider goal of good governance. Described as the "use of political authority and the exercise of control over society and the management of its resources for social and economic development", good governance encompasses the "nature of functioning of a state's institutional and structural arrangements, decision-making processes, policy formulation, implementation capacity, information flows, effectiveness of leadership, and the nature of the relationship between rules and the ruled". Those who have tried to live as moral men in an immoral society have generally given way, sooner or later, under agonizing pressures of legitimate ambition which can only be achieved through illegitimate means- the pressure from family obligations, the slow insidious pressures of a society in which material success is adulated and where material failure is ruthlessly mocked, the pressure of increasing defeatism, or realization that public opinion stigmatizes the transgressor so lightly, and that so little seems to be gained by trying to swim against the tide. In view of the cumbersome and curious procedures and practices in the Government departments the anxiety on the part of the common man to avoid delay has encouraged practice of paying speed money. This has become a fairly common type of corrupt practice particularly in matters relating to the grant of licensees and permits. Very often the bribe giver does not wish to get anything done unlawfully, but just wants to speed up the movement of files and communications from department to department. Certain sections of the staff have got into the habit of not doing anything in the matter till they are suitably rewarded. Besides being a most objectionable corrupt practice, this custom of 'speed money' has become one of the most serious cause of delay and inefficiency and no work culture. Deliberate delay in the movement of papers by petty officers in Government offices in the hope of collecting 'speed money' is one way of frustrating honest citizens. Frequently enough the dishonest contractors and suppliers who, having obtained the contract by undercutting, want to deliver inferior goods or get the approval for sub-standard work, and for this purpose are prepared to

spend a portion of their ill-earned profits. Tax evasion, malpractices in the share market and in the administration of companies, monopolistic controls, under invoicing or over- invoicing, hoarding, profiteering, sub-standard performance of contracts of constructions and supplies, evasion of economic laws, bribe, election offences, malpractices, are some examples of white collar crime. Behind this sordid picture of conditions is a fine network of details about the techniques adopted in the process of corruption. while small people might give bribes to get small favours there are large contractors and other anti-social sharks who consciously follow corrupt practices to further their greedy designs. Thus the honest taxpayers pay their legitimate dues, pay the extra taxes to make up for the tax-evader, and also pay interest on tax-evader's investment in loans. It amounts to penalizing honesty and rewarding dishonesty. There is yet another temptation to which some officials succumb, namely, to use their public office as a means of making money in an allied private business in which they are engaged. Doctrinaire attempts to regulate public morals is yet another root of corruption. Prohibition is one source which provides the police with immense opportunity for corruption. The more the laws the greater the opportunities for making easy money. A second set of social cause of corruption can broadly be described as lack of personal virture or a sense of morality. Corruption is a consequence of the way of life of our acquisitive society, where people are judged by what they have rather than what they are. The possession of material goods seems to have become the sine qua non of life. There inevitably results a scramble for acquisition of glittering prizes, irrespective of the means adopted. The lack of vigilance by the people has also contributed to the growth of corruption. The best means to combat corruption, even in terms of the cost for society, is prevention. Effective prevention can thus reduce the extent and the costs of penal action. Public awareness and tolerance and the effective role of the mass media would be of great help. The role of the mass media in uncovering corruption cases and in building anti-corruption awareness is important for both the prevention and the investigation and control of corruption. Good governance cannot be said to be the exercise of power without accountability. The exercise of power should never be absolute in any system, that will lead inevitably to corruption. What is needed is balance between the ability to govern effectively and the processes by which those who govern are held to account. Good governance requires having confidence in the system by which we are governed and trust in those to whom as individual citizens we delegate through the ballot box the responsibilities and burdens of governing. The unlimited, unbridled and unchannelized powers exercised by political leaders in democrative setup as Heads of the department is also responsible to a very great extent for mal-administration and corruption. The said powers should be curtailed and political intervention be reduced in public administration. The so called red tapeism in bureaucracy requires proper tapering. The rules and procedure of administration should be simplified and made transparent. The administrative processes in all matters in which citizens are directly involved should be simplified and classified. The most important element in combating corruption is effective and speedy punishment. The judicial system has failed and we will have to think alternative method by which the effective punishment could be achieved. It has been realized that the departments are slow in efficiency or with the desire to protect corrupt officials in going slow in departmental action. In this information age where information is so readily available to, and shared with the world, we may be witnessing growing pressure upon the historical contract between a nation state and its citizens, particularly in countries with democratic traditions or moving towards democratisation. Increasing accessibility to information and at greater speed, coupled with a powerful and free news media, is extending the expectation of what that historical contract entails. The power relationship in most states- the power balance between governor and governed- is perceived to be shifting dramatically away from those seeking to wield authority in the name of the state and in favour of the individual citizen. Codes of ethics and integrity testing are of great importance in developing a civic sense of respect for institutions and human rights. Procedures for auditing by independent internal as well as external bodies is of paramount importance in preventing corruption. The prime need is a common standard of morality- by for the most important corruptive. Re-organization of vigilance departments is required. This department is mainly intended to investigate and punish corruption and the misuse of authority by individual members of the services under the Government. However, there is no organic relation between the Administration vigilance Division and the Vigilance Officers of various departments. The press has played a significant role in uncovering the cause of corruption and in mobilizing public opinion against such practices. Elsewhere too, it has done a great deal to publicize cases of proved corruption or allegation of corruption. But it has not played its legitimate role of probing administration. Voluntary organizations in this country have not yet come into the field of helping people with their complaints. We have to mobilize ultimately public opinion and public involvement in the fight against corruption. That is where the NGOs can play an effective role. The NGOs should take each department and find out that what are the rules and regulations which breed corruption and come up with the suggestion.

Mal-administration is root cause of every wrong in governance. There appearance to be no justification why even routine matters are not disposed of especially when, there is no consideration of any discrimination or any legal impediment involved. Providing channels for ventilation of grievances is bound to have a very sobering effect on an erratic administration. It lies with the public, which should be prepared to put up a stiff fight against it. For every corrupt official, there are hundreds of members of the public wanting to make use of him and to feed him. A society that does not attach any stigma to the corrupt man can hardly be rid of such ignoble men. Ombudsman throughout the world, by whatever name they are described, have established themselves as an effective instrument of public accountability. We can be proud of the part we and our predecessors have had in meeting that purpose and should endeavour to make this authority more meaningful and effective. Effectiveness of Lokayukta is related to his primary objective: to ensure that the constitutional state is maintained, that public authorities respect citizens' rights and laws and that administrative problems are corrected (eliminate formalities, reduce delays, revise discretionary decision-making processes….). Consequently, this mission is divided in to two parts: monitoring and correcting, if necessary, public authorities' behaviour. This is why the Lokayuktas effectiveness, or his success in getting his recommendations implemented by public authorities, relies on his ability to make public authorities accept and understand his recommendations. His purpose is to resolve conflicts, which he must make public authorities aware of. This is why he ensures that public authorities are aware of his intervention criteria, the general scale according to which he evaluates the government's administrative behaviour. He makes his general intervention policies public, the population, public authorities and media are better able to understand the rationale for any possible recommendations that he could make in a case under his scrutiny, no matter the nature of the investigation. Suggestions which would go long way in achieving the said goal. 1. Public awareness 2. Media /press play significant role in covering the cases of corruption and in mobilizing public opinion against such practices as also creates awareness for preventive measures. 3. Deterrent, effective and speedy punishment. 4. Re-organization of vigilance departments and to be attached with Lokayukta organization. 5. Empowering public through transparency in administration. 6. Accountability-speedy fixation of 7. Reducing political intervention in public administration 8. Mechanization of offices- Computerization and Automating of procedures to provide citizen related information as also eliminate opportunities of corruption. 9. Public officials- disclosures of assets, liabilities and income returns. 10. Mobilize public opinion and public involvement and NGOs may play a vital role. 11. Simplification of rules and Procedures. 12. Simplifying and classifying of administrative procedure in all matters in which citizens are directly involved. 13. Enacting and freedom of information law. 14. Identical powers and functioning of Lokayuktas in all states.