ARE PRESENT LAWS ADE QUATE TO COMBAT CORR UPTION? WHAT MEASURES SHOULD BE IMPLEMENTED TO ER ADICATE IT?

-FATIMA ANSARI, GOVERNMENT LAW COLLEGE, MUMBAI. ...it's dollars and cents, nickels and dimes; war and peace, it's nickels and dimes, what's clean?1

INTRODUCTION: If we cannot make India corruption-free, then the vision of making the nation develop by 2020 would remain a dream.2 It is essential that the three pillars of democracy Legislature, Judiciary and Executive are strong in structure, pure in form and uncorrupted and unblemished in conduct highlighted Dr. Kalam. Nothing can be truer for corruption like the strong gravitational pull is thwarting the take off of Indias success jet. CORRUPTION (DEFINITION): Corruption is defined as something forbidden by the law, as certain acts by arbitrators, election or other officers, trustees; an act done with intent to gain an advantage not consistent with official duty and the rights of others.3 The word corrupt does not necessarily include an element of bribe taking. It is used in a much larger sense as denoting conduct which is morally unsound or debased...The word corruptly was not synonymous with dishonestly or fraudulently but was much wider...it even

1 2 3

All My Sons, Arthur Miller J. Venkatesan, Kalam calls for corruption-free society, The Hindu Jan 27, 2004. Chandrachud, Y V Justice Concise Law Dictionary, 2008 Wadhwa Nagpur

included conduct which was neither fraudulent nor dishonest if it was otherwise blameworthy or improper.4 GENESIS: On account of the enforcement of policies of prohibitions and restrictions corruption became a regular occupational activity that then developed a structure to sustain itself. Just as the National Prohibition Act of the 1920s, in America, gave rise to gangsters such as Al Capone and Johnny Torrio, similarly the License Raj in India between 1947-1990 provided atmosphere for corrupt syndicates to flourish. This problem of criminalisation of politics and of the nexus among criminals, politicians and bureaucrats was brought out by the former Union Home Secretary, N.N. Vohra, in a report submitted in October 1993.5

COMBATING CORRUPTION: There have been numerous mechanisms devised and laws enacted to combat corruption; for example, establishment of the Delhi Special Police Establishment (DSPE) prior to independence and the creation of an Administrative Vigilance Division (AVD) in the Home Ministry in 1955. Vigilance officers were appointed in each ministry to enquire into charges of corruption. A Committee on Prevention of Corruption was appointed in 1962 under K. Santhanam for examination and recommendation of remedial measures. It led to the establishment of the Central Vigilance Commission independent of ministerial control in 1964. The Central Bureau of Investigation, created in 1963, incorporated the DSPE as the Investigation and Anti-Corruption Division.6

4 5 6

S. Dutt v. State of U.P., AIR 1966 SC 523. A mighty challenge, a feeble response, The Hindu, Thursday, Jul 18, 2002 Gill, S. S., The Pathology of Corruption, New Delhi: Harper Collins, 1998

THE INDIAN PENAL CODE (SECTION 21: PUBLIC SERVANT): It has been observed historically that public servants have been the biggest perpetrators of corruption as they have the maximum opportunity to subvert the law with institutional impunity. The IPC dealt with this menace under ss 161 to 165 of the Code. These provisions were deleted when the Prevention of Corruption Act, 1947 was enacted which was subsequently replaced by Prevention of Corruption Act, 1988. However, the definition of public servant under s 21 of the Code governs offences still punishable under the Code. A public servant disobeying law with intent to cause injury to a person can be imprisoned for up to 3 years if he frames, prepares or translates an incorrect document or electronic record.7 The offence is committed if a government servant falsifies public records relating to the number or value of trees, as a result of which there is loss to the state.8 If a public servant legally bound not to engage in trade, does so, he can be punished with imprisonment up to 3 years; being engaged as an apprentice is not, however, engaging in trade even if the apprentice is remunerated.9 However, the definition of public servant under the IPC is not exhaustive. A person employed under M. P. Electricity Board is a public servant under Prevention of Corruption Act, 1988 under sec 81.10 PREVENTION OF CORRUPTION ACT, 1988 Accordingly to give more teeth to the laws dealing with corruption the PCA of 1988 widened the definition of public servant to cover persons receiving remuneration from the

7 8

Section 167, IPC, 1860. Under s 29 A of the Code , read with s 2 (t) of the Information Technology Act, 2000 Dattajirao Patil v State of Maharashtra 1971 3 SCC 410; Krishana Patil v State of Maharashtra AIR 1973 SC

1385.
9

State of Gujarat v Maheshwar Thakkar AIR 1980 SC 1167. Naresh Kr. Madan v State of M P AIR 2008 SC 385.

10

government, or local authorities, or corporations established under a central or a state act, such as a liquidator, receiver or commissioner.11 The offences specified under the act are: taking gratification, which need not be pecuniary, in respect of an official act, taking gratification to influence a public servant or to exercise influence with a public servant. 12 To establish the offence, it is irrelevant whether the public servant would be able to do what he promised or intended to do.13 The offence of criminal misconduct is presumed to have taken place if the public servant or a person on his behalf, is in possession of resources or property disproportionate to his known source of income derived from lawful sources.14 This presumption is vital in view of the difficulty in practice of proving acceptance of gratification, but can be rebutted by the public servant establishing his innocence on the balance of probabilities; he need not do so beyond reasonable doubt.15 He must show that the income was derived from lawful sources.16 The prosecution is not required to compute his known sources of income for his entire service, and it is sufficient if a 10-year period is taken, though earlier income, if established, can be taken into consideration.17 It was because of this act that the former Medical Council of India President, Ketan Desai, J. P. Singh and doctors Sukhwinder Singh and Kanwaljit Singh of Patiala-based Gyan Sagar Medical College were arrested for allegedly accepting bribe to give permission to a Punjabbased medical college to recruit a fresh batch of students without having the requisite infrastructure.

11 12 13 14 15 16 17

Sec 2 (c): government company means a company so defined by s 617 of the Companies Act, 1956. Sections 7-9. Chaturdas Bhagwandas Patel v State of Gujarat AIR 1976 SC 1497 Section 13. State of Maharashtra v Wasudeo Ramchandra Kaidalwar AIR 1981 SC 1186. P Nallammal v State AIR 1999 SC 2556. State of Maharashtra v Wasudeo Ramchandra Kaidalwar AIR 1981 SC 1186.

Nonetheless, huge power has been vested in the Central and State Government in the form of appointment of Special Judges, granting of previous sanction for prosecution of public servants. Moreover, provisions of Article 311 have come in the way of bringing the corrupt civil servants to book. Article 311 would require a revisit, Indias Law Minister M Veerappa Moily said at a national seminar on Fighting Crime related to Corruption Further, the PCA act does not define corruption, but lists offences of bribery, other related offences and penalties. Consequently the Act would be open to misuse and abuse in certain cases. RIGHT TO INFORMATION ACT, 2005: The most effective check on corruption would be where the citizen has the right to take the initiative to seek information from the state, and thereby to enforce transparency and accountability. This would enhance the quality of participatory political democracy. Although the right to information is implicit in the Constitution of India the dominant culture of the executive has been one of secrecy and resolute denial of access to information. Demystification of rules and procedures and pro-active dissemination of relevant information amongst the public serves as a very strong safeguard against corruption. To this end the RTI Act empowers ordinary citizens to exercise far greater control over corrupt and arbitrary exercise of state power. It increases transparency and takes away excuses provided under the Official Secrets Act, 1923 and the Freedom to Information Act, 2000 to evade accountability. It grants citizens access to government information and a mechanism to control public spending. RTI act requires government officials to furnish information requested by citizens or face punitive action and provides for computerisation of services. This along with the various central and state government established vigilance commissions has considerably reduced corruption and has opened up avenues to redress grievances.

In a recent case the finance ministry under-secretary Jagbir Sigh Phaugat said while deeming a settlement between the Central Bank of India and whistleblower Abhijit Ghosh illegal that The agreement debars Ghosh from his constitutional rights of freedom of press and no one can debar a person form invoking the provisions of the RTI act.18 LOKAYUKTA (OMBUDSMAN): Ombudsman means representative. S/he investigates and addressees complaints reported by individual citizens. In consequence representing interests of the public and facilitating public participation. S/he provides a relatively easier mechanism for grievance redressal and makes it more convenient for ordinary citizens to report corruption. The major advantage of Ombubsman is his/her neutrality. However, the ombudsman system relies heavily on the selection of an appropriate individual for the office, and on the cooperation of at least someone from within the apparatus of the state. Lokayuktas are based on the Ombudsman in Scandinavian countries. The Government of India has designated several ombudsmen (sometimes called Chief Vigilance Officer or CVO) for the redressal of grievances and complaints from individuals in the banking, insurance and other sectors being serviced by both private and public bodies and corporations. There was a public outcry against corruption, existence of widespread inefficiency and unresponsiveness of administration to attend to reported complaints. As a result the 1966 report of the first Administrative Reforms Commission, headed by Morarji Desai suggested the appointment of Lokpal at the Centre and Lokayukta at the State level to remove general discontent among the people and to ensure public confidence in the efficiency and integrity of public services. 19 Second Administrative Reforms Commission, headed by Veerappa Moily, deliberated

18 19

Marpakwar, Prafulla, Bank-whistleblower deal illegal, TOI Dec 24, 2010. Information Booklet on the Institution of the Lokayukta and Up-Lokayukta, Maharashtra

extensively for elimination of corruption in the administration and the strengthening of the Lokpal and the Lokayukta in a two day National Colloquium on Ethics in Governance: Moving from Rhetoric to Results. An amendment to the Constitution has been proposed to implement the institution of Lokayukta uniformly across India as a three-member body, headed by a retired Supreme Court judge or high court chief justice, and including the state vigilance commissioner and a jurist or an eminent administrator as other members.

JUDICIARY VERSUS CORRUPTION: The Courts, especially the High Court under Art 226 and the Supreme Court under Art 32, have taken a firm stance against corruption in recent years and made several important rulings. Even the judiciary is not left alone to be above anti-corruption laws. The SC ruled that a judge of the Supreme Court or a High Court would be within the purview of the Prevention of Corruption Act as judges were public servant. The PCA requires a prosecution there under to be sanctioned by authority competent to remove the concerned public servant. Assessing these issues, the court ruled that the President of India would be the removing authority. To avoid executive interference in the judiciary, the court ruled that the President could sanction a prosecution only in consultation with the Chief Justice of India and if the CJI was involved, in consultation with other judges of the Supreme Court.20 When members of parliament of the 9th Lok Sabha introduced an impeachment motion against Justice Ramaswamy, the Speaker under the Judges (Inquiry) Act appointed a

20

K. Veeraswami v Union of India, 1991 SCC 3 655

committee to inquire into the allegations of judicial misconduct. The court ruled that an impeachment motion and proceedings related thereto were a constitutional matter covered under art 124(4) and survived the dissolution of the House.21 With regards public interest litigation which enables citizens to report corruption even by means of letters which in certain cases are even kept anonymous, the SC stated that Public Interest Litigation should not be Publicity Interest Litigation, Private Interest litigation or Politics Interest Litigation.22 In its zeal against corruption the SC has even held that the right to life was affected by municipal inaction and negligence.23 Concerning corrupt electoral practices the Supreme Court held that sec 123(3) of the Representation of People Act which prohibited appeal on grounds of religion as a corrupt electoral practice was a reasonable restriction and did not violate freedom of speech.24 The Supreme Court has expressed extreme distaste for corruption by observing that the ...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... 25

21 22 23 24 25

Sub-Committee on Judicial Accountability v Union of India 1991 4 SCC 699. Ashok Kumar Pandey v State of W.B. 2004 3 SCC 349. Municipality of Ratlam v Vardichand AIR 1980 SC 1622. Dr. R.Y. Prabhu v Prabhakar. Kunte, 1996 1 SCC 130 Lucknow Development Authority v M.K. Gupta AIR 1994 SC 787

CORRUPTION AT ITS ZENITH: The LIC Scandal: This was Indias first big financial scam. The scandal broke out in November 1957 when Feroze Gandhi asked the finance minister in Parliament, Had the new corporation [LIC] used the premium payments of India's 5,500,000 life-insurance policyholders to buy up shares at above-market prices in companies controlled by a notorious stock speculator named Haridas Mundhra?26 Then PM Jawaharlal Nehru appointed Justice M C Chagla as a one-man commission. Justice Chagla held that a transparent and public enquiry was a very important safeguard for ensuring that the decision will be fair and impartial and the hearings were concluded in just 24 days. As a result FM Krishanamachari had to resign and Mundhra was sentenced to 22years in prison. Although this commission was efficient in dealing with powerful persons, Mundhra was back in the Nehru cabinet in 1962 after a confidential report held that no moral turpitude was involved.27 COMMON WEALTH GAMES: On 28 July 2010, the Central Vigilance Commission reported irregularities in up to 14 CWG projects.28 There were also allegations of widespread corruption in various aspects of organising the games including procurement and awarding contracts for constructing the game venues.29 The PM Dr Manmohan Singh had promised in mid-August that corrupt officials will be given severe and exemplary punishment after the Games. The Government announced the formation of a special committee led by former Comptroller and Auditor General VK Shungloo. The committee has been given three months time to submit its

26 27

INDIA: The People's Premiums Mar. 03, 1958 TimeMagazine Commissions never work, says HC, TOI 26 Dec, 2010 28 CVC finds irregularities in several CWG projects, The Economic Times 2010-07-28.
29

NDTV India (2010-07-31). Corruption scandal hits 2010 Games, organisers deny charges

report.30 This probe will be in addition to the Central Bureau of Investigation, Enforcement Directorate, and Central Vigilance Commission investigations already underway. In connection with the investigations the CBI raided the residences and offices of Suresh Kalmadi on 24th Dec 2010. However, coming months after corruption in the Games was established, the raids appeared to be a largely symbolic exercise.31 ADARSH HOUSING SOCIETY: The High Court observed that land proposed for housing Kargil heroes solely had only two heroes as its members and 40-odd defence members. The rest of the 103 members are either serving or retired senior IAS officers or their family members and MPs, MLA, MLCs and other political leaders.32 The society is also alleged to have violated the Indian environment ministry rules.33 Construction had been on for five years and 27 floors had come up before the first letter was issued to the building. Is it that wisdom suddenly dawned on the government and defence ministry? asked senior counsel Janak Dwarkadas. Additional solicitor-general Darius Khambata said action was delayed since five different GOCs between 2005 and 2009 were all members of the society.

MEASURES NEEDED TO ERADICATE CORRUPTION: NEED FOR HIGHER OFFICIALS TO PLAY THE LEADERS IN A REFORM MOVEMENT Freedom and power bring responsibility. That responsibility rests upon this assembly said Nehru while addressing the Constituent Assembly.

30 31 32 33

CWG: Probe panel to report in 3 months, TOI, Oct 16, 2010. Finally, CBI raids homes, offices of Kalmadi and aides, TOI, 25 Dec, 2010. Defence forces must come clean: says court, TOI, 25 Dec, 2010. Pachouly, Manish (9 November 2010). Didnt give eco clearance. Hindustan Times

Clearly responsibility has been forgotten. The nexus between corrupt politicians and bureaucrats is underscored by scams such as the Animal Husbandry (fodder) scam in Bihar (in which the former Chief Minister, some ministers, legislators and several bureaucrats were charge sheeted by the C.B.I.), Urea scam (involving the son and a relative of the former PM Narasimha Rao), Coal scam in Tamil Nadu (involving the then CM Ms Jayalalitha), Telecom scam (involving the Union Telecom minister), the 2G Spectrum scam and so on. If the most powerful in this nation practice corruption on a daily basis then it is only natural for the common man to follow in the leaders footsteps. It is as if corruption is rewarded and the honest are penalized for straying from the correct corrupt norms. UP-TO-DATE USER FRIENDLY LAWS: As the corrupt grow to become powerful and ingenious archaic laws shrink to become powerless and insipid. Seeing that major instruments for controlling crime were enacted in the nineteenth century, such as the Indian Penal Code, 1860 and the Indian Evidence Act, 1872 it is no surprise that corruption is on the rise. Moreover our administrative procedures resemble a cumbersome labyrinth. To combat corruption effectively overlapping laws should be reduced and simplified to a manageable and publicly understood size. Office procedures should be cut down and levels of hierarchy reduced. Instead of the prevalent method which drives one from pillar to post a transparent and simple system should be evolved. Parliament and state legislatures should have no items under the concurrent list; instead all items under the state list or the central list so that problems of jurisdiction do not occur. JUSTICE WITHOUT DELAY: Justice delayed is justice denied holds more weight in corruption cases. Due to inordinate delays the accused often evades punishment since a long time span has an adverse effect on

the evidence in a case. The average time for disposal of cases is from 10-20 years. Even if a verdict is obtained enforcement still remains a problem. A very blatant example of the incompetence of the judiciary is that in November 1999, a sessions judge in Bombay himself approached Chotta Shakeel for his assistance in recovering 40 Lakh that he was owed by a chit fund. 34 The judiciary has a key role in ensuring that political and administrative power is used in accordance with law and everyone is held accountable for corruption. Expressing concern over the huge pendency of cases in courts, the former President Dr. Kalam said it was time that information and communication technology was used in legal dispute resolution at the grass root level. The high cost of litigation and the long distance a litigant had to travel to reach a court of law are the two biggest impediments in the easy access to justice. Laws need to be simplified so that a litigant did not spend 10 years in court; he said adding that the alternative dispute redress mechanism had to be strengthened to ensure speedy justice. The Attorney-General, Soli Sorabjee had expressed that senior lawyers volunteer to serve as a judge for an ad hoc period of six months to reduce the backlog and streamline the justice delivery system.35 Only if assured that justice will be imparted and enforced will people approach the judiciary with corruption cases. And only if it is believed that one cannot get away scot free will corruption cease. Or else isnt it straightforward to pay/receive a sum definitely less than the money and years spent in the court?

34 35

Mehta, Suketu, Maximum City, pg 256 J. Venkatesan, Kalam calls for corruption-free society, The Hindu Jan 27, 2004.

CIVIL PARTICIPATION: In a democracy people need to be vigilant and ensure that their rights are well safeguard and not trampled upon. The Report Card methodology developed by the Public Affairs Center in Bangalore is an innovative instrument to expose corruption in public service.36 Delhis Common Cause has dragged corrupt officials to the courts through public interest litigation. The Mazador Kisan Shakti Sangathan in Rajasthan has done commendable work in making public information regarding development projects in the state which has lead to exposure of bureaucratic corruption. MKSS also fought corruption through the methodology of jan sunwais or public hearings. Satyagrah, launched by S. D. Sharma, Vice-Chairman of the Transparency International-India is a movement against political corruption and for efficient and honest governance. NGOs could point out corrupt practices and inform the CVC about disproportionate assets against whom raids can be undertaken by the CBI and the Income Tax Department.37 The Government too has become aware of the need to encourage public participation. At a Conference of Chief Ministers of Indian States in May 1997, the Department of Administrative Reforms and Public Services evolved an Action Plan on Effective and Responsive Administration based on responses from experts, officials, voluntary agencies, media, citizens groups, etc. A core group was formed for the monitoring of Citizens Charter by identified Ministries with substantial public interface.38 The development of interactive

36 37 38

Guhan, S. and Samuel Paul, eds Corruption in India: Agenda for Action New Delhi: Vision Books, 1997 Vital, N. Personal Interview, June 2000. Kashyap, Subhash C., ed, Crime and Corruption to Good Governance New Delhi: Uppal, 1997.

web sites such as used by the Central Vigilance Commission facilitates public involvement in implementation of anti-corruption strategies. Moreover, the private sector has taken initiatives such as http://5thpillar.org that is promoting the use of Zero Rupee Notes to fight corruption by shaming the officials who ask for bribe, the Jaago Re! One Billion Votes from Tata Tea that has changed its focus to fighting corruption and nobribe.org that advocates the use of direct and regular measurement of corruption to force the hands of the leadership into dealing with corruption related issues. LAW AND JUDICIAL COMMISSIONS SUGGESTIONS SHOULD BE IMPLEMENTED The recommendations of various commissions should have effective follow-up action. The National Law Commission in December 2001 as per its 179th report wanted to formulate a law to protect the whistleblowers who play critical role in reducing corruption. Statutory protection for whistleblowers and victim protection should be enacted. Also, the Corrupt Public servants (Forfeiture of Property) Bill as suggested by the Law Commission should be enacted without further delay. The Benami Transactions (Prohibition) Act, 1988 should also be implemented. Judicial commissions have exposed the callousness of public administrationbut refusal by the executive and the legislature to implement the recommendationshas rendered them toothless says activist Teesta Setalvad. However, senior counsel Yusuf Muchala believes that they remain unimplemented often because there isnt sufficient vigilance in civil societyThey [people] and the media, need to be vigilant and demand accountability.

CONCLUSION: The most important tool to combat corruption is our changed psyche. Corruption is rampant as corruption is not looked upon as an offence but as as an everyday ordinary occurrence.

Society does not condemn corruption. In fact our social environment provides favorable breeding ground for corruption. It took centuries of scientific experimentation and research to defy the forces of gravity. It requires monumental thrust to defy the forces of corruption and propel India up into the shining glory that it aspires to attain.