Three cops held on corruption charges
Staff Reporter
NEW DELHI: Three policemen have been arrested by the Anti-Corruption
Branch of the Delhi Government on corruption charges.
The ACB received a complaint from a man alleging that ASI Jagat Singh
of the Jafarpur Kalan police station had been demanding money for
having helped his son get bail. It is alleged that on being promised
Rs.5,000 the policeman assisted the complainant’s son obtain bail.
Acting on the complaint, the ACB laid a trap and arrested the ASI when
he was allegedly accepting the money on Wednesday. It is learnt that
the ACB had received another complaint against the same policeman by
Balbir Singh alleging that he had been demanding money to book his son
under provisions attracting lesser punishment.
In another case, the police arrested Head Constable Ajay Maan, who was
posted at the Vivek Vihar police station, for allegedly demanding Rs.
50,000 from some persons to favour them in a case registered against
them.
The case had been registered on the basis of a complaint lodged by a
woman alleging that her landlord and some others had threatened her.
Ajay Maan, who was investigating the case, allegedly demanded a bribe
from the accused and was accepting Rs.15,000 at the factory of the
landlord when he was arrested. The complainants had also recorded
conversations with the policeman to gather evidence, sources said.
Ashok Bhadana, an S-on probation posted with the Karawal Nagar police
station, has been arrested for allegedly demanding and accepting a
bribe of Rs.1,000 from a person to file an “untraced” report in a
motorcycle-theft case. The three accused have been sent to judicial
custody.
http://www.hinduonnet.com/2009/11/21/stories/2009112157840400.htm
COVER STORY
Accounts of corruption
SINCE April-May 2008, the Central government has insisted that NREGA
wages be paid exclusively through savings accounts opened for workers
in nearby banks and post offices. A major public relations campaign
has tried to present this as a solution to corruption. So much so, the
progress of the NREGA is being measured in terms of the number of
accounts opened – an impressive 4.22 crore, according to a recent
statement by the Rural Development Minister’s office. This
extraordinary investment of energies must, however, be viewed with
caution. A recent social audit of the NREGA at Karon block in
Jharkhand’s Deogarh district showed that corruption persisted, at
times with the collusion of banks themselves.
Deogarh scam
Manchan Rajwar of Ranidih panchayat had no reason to suspect that his
NREGA account at the Deoghar-Jamtara Cooperative Bank had been
activated. Severely crippled, he had not worked at the site where his
name figured, nor signed any withdrawal slips. His passbook was blank.
However, an inspection of bank records (during a social audit in
October 2008) revealed that many transactions had been made over a
whole year. It turned out that middlemen were siphoning off NREGA
funds through his account in collusion with bank officials.
Similar tricks were played on many other workers in Ranidih, and also
in Ganjebari panchayat where they were paid through the post office at
Madankatta. The amounts moving through these accounts could add up to
as much as Rs.9,000 within 14 months for a single account.
Even where collusion is not as blatant as in Ranidih, making payments
through banks is fraught with vulnerabilities. First, little effort
has been made to integrate bank payments with other transparency
safeguards, such as payment of wages in public and regular updating of
job cards. In fact, there is a dangerous tendency to assume that these
safeguards are redundant when wages are paid through banks or post
offices.
In Dungarpur district in Rajasthan, the traditional safeguards worked,
and bank payments were – at least initially – a step back. Where bank
payments were in place, we found (in our May-June 2008 survey) that
job cards were not updated and that muster rolls were no longer read
out in public at the time of wage payments.
Second, bank payments have often increased delays in wage payments. In
Rajasthan, for instance, where wages used to be paid regularly,
teething problems with bank payments last summer caused delays of up
to 50 days. Such delays cannot be tided over by NREGA workers and must
be treated as a serious violation of the Act.
The combination of opaque procedures and delayed payments has created
new opportunities for middlemen. Many middlemen have privileged access
to panchayat- and block-level officials and are often the first to
know when wages have been credited. They then collect workers (both
real and fake) and escort them to the bank. There, a combination of
loans, coercion and (sometimes) monetary enticements is used to induce
workers to hand over the money they have withdrawn. At Karon block,
workers from Mahua Tand, Tekra and Ganjebari panchayats stated
publicly that this had happened. They had been paid in cash at the
rate of Rs.60-70 a day, while the stipulated minimum wage was Rs.
86.40. In some cases, middlemen collude with the panchayat sevak to
inflate muster rolls, steer the inflated payments through people’s
bank accounts and pocket the difference.
New complications
Bank payments have also resulted in new complications. For instance,
banking procedures have not been publicised at all. Most workers do
not know how to operate bank accounts. This, in turn, increases their
dependence on intermediaries.
Another serious irregularity in many places is the opening of accounts
solely in the name of the male head of the family. This makes it hard
for women to keep their own wages. Other problems include extractions
from workers to open accounts; people without accounts being turned
away from worksites; workers having to spend time and money to
withdraw their wages when banks are far away; and staff shortages in
banks and post offices.
So far, the introduction of payments through banks has been little
more than a stampede for opening accounts. Crucial guidelines and
safeguards have been ignored. Consequently, the aim of ending
corruption in wage payments has not been achieved. This can only
happen when bank payments are combined with other transparency
safeguards, as has happened to some extent (with post office payments)
in Andhra Pradesh. Otherwise, as is already happening, new
vulnerabilities will get entrenched.
On the bright side, this experience has demonstrated the Centre’s
ability to enforce critical guidelines. This power could be used to
put in place a more comprehensive structure of vigilance and
transparency.
Anish Vanaik
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
http://www.hinduonnet.com/fline/fl2601/stories/20090116260102100.htm
COVER STORY
Banned but still there
CONTRACTORS are banned for work under the NREGA, but the survey found
that they were in fact involved at 27 per cent of the sample
worksites. The worst State in this respect was Jharkhand, where
contractors were found at more than half (57 per cent) the sample
worksites. A common excuse for this is the shortage of staff: gram
panchayats, the main implementing agencies for NREGA work, do not
exist in Jharkhand. In fact, it is the only State that has not held
elections to panchayati raj institutions since the 73rd and 74th
amendments to the Constitution.
The survey teams encountered contractors to varying extents in all the
States except Rajasthan. Often, they get a foot in the door on account
of delays in the flow of funds. When funds are delayed, contractors
step in to ensure timely payment to labourers and suppliers. In
return, they are given a free hand in forging muster rolls, job cards
and other NREGA documents.
Why is the involvement of contractors such a big issue? This question
has to be seen in the light of the unscrupulous character of most
contractors in rural India. They are there to make money, in a highly
competitive environment where cheating and exploitation is the way to
get ahead.
The semi-criminal, petty contractor, roaming around on a motorcycle,
wearing dark glasses and a scarf and chewing paan, is not a fictitious
Bollywood character – he is a familiar figure in most Indian
villages.
On a more serious note, the survey findings amply confirm that private
contractors are best kept at bay. This is so for at least three
reasons:
Corruption: Corruption levels tend to be higher where contractors are
involved. For instance, in a survey in Orissa in October 2007, we
found higher rates of embezzlement of wages at worksites managed by
contractors. Worksites with contractors were more likely to have
muster rolls with fake names. More than half (55 per cent) of the
wages did not reach the labourers concerned, whereas the figure was
low (25 per cent) for contractor-free worksites.
Exploitation: Contractors typically thrive by exploiting labourers –
making them work hard and paying them as little as possible. This
often goes hand in hand with harassment. For instance, 35 per cent of
the women working at contractor-managed worksites reported being
harassed. This figure is much lower (8 per cent) for contractor-free
worksites.
At one worksite in Surguja district (Chhattisgarh), women were
verbally abused for working too slowly; the contractor made them work
for 10 hours a day and turned away those who came late.
At another worksite, also in Surguja, the survey team noted: “The
women who complained about these work conditions were verbally abused
by the contractor, who also threatened to replace them with workers
from other gram panchayats. Our team learned from a worker that these
workers from other gram panchayats were paid at the rate of Rs.50 a
day.”
Accountability: It is easier to keep gram panchayats or Line
Departments’ employees on their toes than to hold private contractors
accountable. In fact, in our experience, contractors are very
difficult to “catch” even when there is proof of their mischief.
For instance, at Masmohna in Jharkhand’s Koderma district, the survey
team found conclusive evidence that a private contractor had cheated
NREGA workers and embezzled their wages. This evidence was presented
at a massive public hearing attended by three members of the Central
Employment Guarantee Council (on June 18, 2008) and confirmed again in
a detailed follow-up by the Koderma Sub-Divisional Officer (SDO).
Yet, in the first information report (FIR) lodged against the
culprits, which is supposed to be based on this very inquiry, the
contractor’s name is missing. He apparently has the “protection” of
the local Member of the Legislative Assembly.
Patronage
Many contractors enjoy the patronage of political leaders (and return
this favour by funding election campaigns). This nexus of corruption
and crime, which also involves corrupt bureaucrats, has been the bane
of public works programmes for many years.
The NREGA seeks to break this nexus and replace it with a transparent
and accountable system where panchayati raj institutions are in
charge. If this new system is to see the light of day, contractors
have to be kept at bay.
Jean Dreze and Reetika Khera
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
http://www.hinduonnet.com/fline/fl2601/stories/20090116260101400.htm
Cover STORY
All is not well with the wells
OCTOBER 2008: The fields of Mahua Tand in Jharkhand’s Deogarh district
are full of wheat. Farmers and field hands are busy irrigating their
lands. The rains have not been very helpful this year, and pumpsets
and wells are the saviours of crops. Our social audit team is
inspecting two NREGA projects in Mahua Tand, both involving the
construction of a well on private land – a common type of NREGA work
in Jharkhand.
The well constructed by Taufique Zarra reminds the team of the tragic
Tapas Soren episode. In the short video recording of his last words
(available at www.youtube.com), Tapas Soren testifies that a corrupt
government machinery had driven him to take his own life. He had tried
to construct a well on his own land under the NREGA but was unable to
cope with the frequent demands for bribes. A helpless and distraught
Tapas set himself ablaze at the Collector’s office in Hazaribagh to
highlight his plight and warn others about this trap. But Taufique,
unaware of Tapas’ fate, fell into the same trap.
Taufique hails from a below-poverty-line (BPL) family and his sole
source of income is the little agricultural land he owns. In the
absence of a reliable source of irrigation, he is often at the mercy
of unpredictable rain. Having heard that wells can be constructed on
the land of BPL families under the NREGA, Taufique applied. Soon
enough, he was informed that if he could pay Rs.2,500, a well would be
allotted to him, he said. The NREGA mandates that a shelf of works be
prepared in the gram sabha, but no such attempt was made in Mahaua
Tand.
He said he paid the bribe and the well was sanctioned, and he became
both the beneficiary and abhikarta (manager) of the project. As an
abhikarta Taufique signed an agreement with the government and was in
charge of executing the work. He was to fill the muster rolls,
purchase materials and oversee the worksite. He also had to pay
workers’ wages and for materials as the work progressed, but funds
were often delayed and depended on his ability to pay the
“PC” (percentage, a term for illegal commissions) to government
functionaries. The PC had to be given in cash before the bill for his
payment was passed, he alleged. Taufique took a loan of Rs.20,000,
sold a buffalo and mortgaged his land to arrange for the PC and the
construction costs.
For Taufique, this well was a chance to escape poverty but today, he
says, he is struggling to make ends meet. Luckily, Taufique was not
driven to suicide. But the whole PC system did push him into a web of
indebtedness. Maybe for every Taufique who survives this gamble, there
is a Tapas Soren who may not.
Kamayani Swami
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
http://www.hinduonnet.com/fline/fl2601/stories/20090116260101700.htm
ESSAY
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 self-
determination 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.
C. Raj Kumar is a visiting research fellow at the Faculty of Law,
Meiji Gakuin University, Tokyo. He has been a Rhodes Scholar at the
University of Oxford and a Landon H. Gammon Fellow at the Harvard Law
School.
Volume 19 - Issue 19, September 14 - 27, 2002
India's National Magazine
from the publishers of THE HINDU
http://www.hinduonnet.com/fline/fl1919/19190780.htm
ESSAY
Corruption and human rights - II
C. RAJ KUMAR
The constitutional quest to develop human rights against corruption
goes beyond demanding that the government respect the rule of law.
The concluding part of a two-part article.
THE pronouncements of various states in recent years give enough
evidence to show that there is universal condemnation of corrupt
practices by public officials and a general interest in cooperating to
suppress them. The parties to the Criminal Law Convention expressly
acknowledge that "corruption threatens the rule of law, democracy and
human rights, undermines governance, fairness and social justice,
distorts competition, hinders economic growth and endangers the
stability of democratic institutions and moral foundations of
society" (Council of Europe, Preamble to the Criminal Law Convention
on Corruption, 2000). In the 1994 Summit of the Americas Declaration
of Principles and Plan of Action, the heads of state of 34 nations of
the southern hemisphere linked the survival of democracy to the
eradication of corruption. "Effective democracy," they declared,
"requires a comprehensive attack on corruption as a factor of social
disintegration and distortion of the economic system that undermines
the legitimacy of political institutions".
On December 16, 1996, the United Nations General Assembly acting on a
recommendation of the Economic and Social Commission, adopted the U.N.
Declaration against Corruption and Bribery in International Commercial
Transactions. The declaration highlights the economic cost of
corruption and bribery and points out that a stable and transparent
environment for international commercial transaction is essential in
all countries for the mobilisation of investment, finance, technology,
skills and other resources across national borders. In the
declaration, member-states pledged to make the bribing of foreign
public officials a criminal offence in an effective and coordinated
manner, and to deny tax deductibility on bribes paid by any private or
public corporation or individual of one member-state to any public
official or elected representative of another country.
M. LAKSHMAN
The Supreme Court of India. In the Indian context, corruption distorts
the principle of equality before the law and equal protection of the
law, which is enshrined in the Constitution.
Corruption was also the subject of a 1997 U.N. General Assembly
Resolution entitled Action Against Corruption. The resolution
underscored the General Assembly's concern about the serious problems
posed by corrupt practices to the stability and security of societies,
the values of democracy and morality, and to social, economic and
political development. Professor Ndiva Kofele-Kale has argued that an
emerging customary law norm that treats corruption as a crime under
international law draws strong support from the following: 1.
Consistent, widespread and representative state practice proscribing
and criminalising corruption; 2. The widespread condemnation of acts
of corruption as reflected in the preambles of multilateral anti-
corruption treaties and in declarations and resolutions of
international organisations; 3. Pronouncements by states in recent
years that evidence a universal condemnation of corrupt practices by
public officials; 4. A general interest in cooperating to suppress
acts of corruption; and 5. The writings of noted publicists
recognising corruption as a component of international economic
crimes. Based on these factors, he has argued that there is a strong
case for treating corruption as a crime under international law with
individual responsibility and punishment attached to it.
As much as I agree with Prof. Kale on the fundamental thesis of
recognising corruption as an international crime and thereby
suggesting the development of a fundamental human right to a
corruption-free society, I would like the development of this human
right to be observed within the context of the states' constitutions.
Thus, it is desirable that the constitutions of nation states have
express provisions to recognise the fundamental human right either to
a corruption-free society or to corruption-free service, which would
enable national judiciaries to play a catalytic role in enforcing
these rights. This proposal may be seen in the context of developing
constitutional and legislative measures, which are necessary to ensure
probity in governance in nation states. Thus, the question of the
constitutionalisation of the right to corruption-free service with
specific reference to India would be examined within the framework of
protecting and promoting human rights and better governance.
Towards recognising a fundamental right to corruption-free service
As early as 1964, the Santhanam Committee, which was set up to examine
the increasing menace of corruption in the administration, observed
that the "tendency to subvert integrity in the public services instead
of being isolated... is growing into an organised, well-planned
racket". If anything, it has grown much larger and become even better
organised since this report was prepared. Granville Austin has said
that the Indian Constitution is first and foremost a social document.
Thus, when those who drafted the Constitution included the chapters on
fundamental rights and directive principles of state policy, they
hoped and expected that these would give strength to the pursuit of
the social revolution in India. Fundamental rights of the Constitution
are in general those rights of citizens, or those negative obligations
of the state not to encroach on individual liberty.
Although the fundamental rights primarily protect individuals and
minority groups from capricious, prejudicial, state action, three of
the articles are designed to protect the individual against the
actions of other private citizens. Article 17 abolishes
untouchability; Article 15(2) lays down that no citizen shall suffer
any disability in the use of shops, restaurants, wells, roads and
other public places on account of his religion, race, caste, sex or
place of birth; Article 23 prohibits forced labour, which, although it
had been practised by the state, was more commonly a case of landowner
versus peasant struggle.
Thus the state, in addition to obeying the Constitution's (negative)
injunctions against interfering with certain of the citizen's
liberties, must fulfil its positive obligation to protect the
citizen's rights from encroachment by society (Granville Austin,
1966). It is this negative injunction and positive obligation within
the scheme of fundamental rights that needs to be built upon while
evaluating the impact of corruption on governance administration in
India. In India, corruption has scuttled the realisation of
fundamental rights, discouraged any scope for the development of
egalitarianism, and thereby significantly hindered the process of
achieving a social revolution. This has resulted in liberty becoming
the privilege of a few who happen to hold economic, bureaucratic,
judicial or political power. "The struggle for career advancement,"
said former Secretary to the Government of India R.C. Dutt, "is
greatly influenced by the surrounding moral atmosphere of the struggle
for existence of different classes and groups in society...(This) has
provided ample opportunities for corruption, and indeed for collective
self-aggrandisement at the expense of the poor". P.N. Haksar thought
"our civil services... are committed first of all to themselves and
their nuclear family...(and beyond this to) making secure the future
of our sons, daughters...and if possible... the members of our sub-
caste, caste, community and region".
The concept of identifying corruption as a cause and an effect of poor
governance and the resultant violation of human rights is a recent
phenomenon. Its massive impact on the legitimacy of all institutions
in India needs to be examined thoroughly. This observation rests on
the argument that when the government of a country fails or neglects
to curb or contain corruption, that government fails to fulfil its
obligation to promote and protect fundamental human rights in the
country. Nihal Jayawickrama, executive director of Transparency
International ("Corruption - A Violator of Human Rights", 1998),
argues that the three important ways by which corruption affects human
rights are: 1. Corruption perpetuates discrimination; 2. Corruption
prevents full realisation of economic, social and cultural rights; and
3. Corruption leads to the infringement of several civil and political
rights.
I may add that in the Indian context corruption distorts the principle
of equality before the law and equal protection of law, which is
enshrined in the Constitution. It is clearly understood both from a
legal and constitutional interpretation and from the plethora of
judicial decisions in India that the principle of equality and non-
arbitrariness is the "brooding omnipresence" (Justice P.N. Bhagwati in
Maneka Gandhi vs Union of India) of the Indian Constitution.
Corruption not only perpetrates injustice, resulting in the breakdown
of the governance machinery, but also violates the fundamental rights
that are guaranteed to citizens. Conversely, it may be argued that the
present proposal to include the right to corruption-free service as a
part of the scheme of fundamental rights might strengthen the other
rights, including the right to equality and the freedoms that are
enshrined in other portions of Chapters III and IV of the
Constitution.
Interestingly, Article 11(2) of the Constitution of Eritrea provides
that "all administrative institutions shall be free from corruption,
discrimination and delay in the delivery of efficient and equitable
public services". Even though this provision hardly guarantees a
fundamental right to corruption-free service, the fact that
"corruption" in administration has been constitutionally proscribed
sets the right tone for the corruption discourse. However, developing
countries like India need to think hard as to how to tackle corruption
legally and, in this case, constitutionally. The Indian judiciary has
progressively developed and expanded the scope of fundamental rights
to include a plethora of rights, mostly, within the ambit of the
"right to life" provision in Article 21 of the Constitution. A classic
case in point is the initial judicial recognition of a fundamental
right to education, through a creative interpretation that the right
to life includes the right to education. It brought home the most
valuable argument that life without education indeed amounts to
vegetative existence.
The role the Indian judiciary has played in expanding the 'right to
life' concept to include numerous economic and social rights, which
were hitherto considered merely policy guidelines in the form of the
directive principles of state policy, is amazing. The judiciary was
able to justify all the rights that we claim today to be part and
parcel of fundamental rights. It has resulted in the legislature
bringing a constitutional amendment making the right to education a
fundamental right.
But when it comes to corruption, the judiciary in India has not been
able to develop in clear terms any fundamental right to corruption-
free service for the citizens. Article 14 of the Constitution
guarantees equality before the law and equal protection of laws to all
Indian citizens. Further, it may be argued that corruption directly
violates the protection guaranteed under the equality clause, because
a corrupt public servant discriminates against a person who does not
bribe him as opposed to a person who bribes him. This isolated
incident of discrimination gets institutionalised into an all-
pervasive phenomenon, thereby violating the equality clause.
Similarly, Article 19 gives Indian citizens the fundamental right to
practise any business or profession. In India, public servants who
hold positions of power and authority use their discretion to grant or
deny permission to start business enterprises. The corrupt public
servant often justifies such action by arguing (to himself) that he
has the right to a share in the profit of the professional or the
businessperson (N. Vittal, Central Vigilance Commissioner of India,
2000). Thus, the equality clause in Article 14 and the freedoms
provided in Article 19 lose their meaning and relevance owing to the
institutionalisation of corruption at every level of the citizens'
interaction with the government.
There is an urgent need for a constitutional reform in the form of an
amendment to the Constitution to include the fundamental right to
corruption-free service. This is not to suggest that the mere
inclusion of a fundamental right would result in an immediate success
in the struggle to prevent corruption; it would, however, be a
significant step in the right direction. It would open up several
avenues for lawyers, judges, non-governmental organisations and
parliamentarians to mobilise public opinion on the subject. The
importance of the subject should not be underestimated as all our
goals, ideals and aspirations of constitutional democracy rests on the
legitimacy of the state as an institution to deliver the goods. The
kind of corruption that is prevalent in India and other developing
countries fundamentally threatens this structure. One hopes that the
legislature will take the lead in this matter. I guess we are not far
from the day when the Supreme Court of India would read Articles 14
(equality), 19 (freedoms) and even 21 (life) coupled with the
directive principles of state policy that relate to good governance
and sound public administration and conclude that Indian citizens
indeed have a fundamental right to corruption-free service.
This is not to suggest that the lawmakers should actually wait to
bring a constitutional amendment so as to include corruption-free
service as a fundamental right. But experience has shown that in the
area of law reform in India, the judiciary has indeed taken the lead.
By way of constructive judgments, it has instructed as to what the law
is or rather what the law ought to be. The parliamentarians have
followed it up after adequate pressure from the civil society and the
populace. Vittal supports the view that corruption-free service should
be made a fundamental right by including such a provision in the
Indian Constitution. His arguments are based on the fact that
corruption-free service must become a fundamental right of every
citizen in India, as that is a basic necessity for good governance. He
supports the view of the United Nations Development Programme (UNDP)
that good governance is indeed a universal human right and that the
right to good governance should be part of fundamental rights.
Thus, the inclusion of the right to corruption-free service as a
fundamental right would result in not only our recognising that
corruption affects good governance, but also delineating the principle
that the citizenry have a right to demand governance without
corruption and if it is not given to them, they will be able to
approach a court of law through the use of writ jurisdiction.
The possible objections to the inclusion of such a right would mostly
come from those who are against the judiciary taking up the role of
governance in India. It is worth noting that in so many ways the right
to corruption-free service in so many ways is not very different from
other fundamental rights that the judiciary has evolved through
creative and progressive interpretation.
Subodh Mohite, Member of Lok Sabha, introduced a private ` Bill in the
winter session of Parliament in 2000 for the inclusion of a new
Article 17A in the fundamental rights chapter by which the citizen
will be entitled to get corruption-free service from the state. It is
anybody's guess as to what happened to the proposal. I would have
liked the National Commission to Review the Working of the
Constitution, which recently submitted a good report, to have proposed
such an inclusion in the chapter on fundamental rights. Despite the
recommendations of the Commission to deepen and expand the scope of
fundamental rights within the Constitution, I am of the view that
corruption-free service ought to have been made a fundamental right,
and this would have added practical meaning and increased the
relevance of the recommendations.
Thus, the constitutional quest to develop human rights against
corruption goes beyond demanding that the government respect the rule
of law. Even where the rule of law may be respected, the
humanitarianism of human rights under the Indian Constitution cannot
fall short of a tireless search to increase the level of
constitutional protection beyond the negative requirement of
disciplining the state to achieve equality, promote egalitarianism and
uphold dignity. The fundamental human right to corruption-free service
would be justified even within the Dworkinian scheme of taking rights
seriously, if we are able to develop a theoretical argument that
corruption affects equality and dignity. And hence the right to
corruption-free service is part of the human rights jurisprudence that
struggles to protect the dignity of Indians, who are entitled to equal
treatment, concern and respect.
C. Raj Kumar, Lecturer at the School of Law, City University of Hong
Kong, was a Rhodes Scholar at the University of Oxford and a Landon H.
Gammon Fellow at the Harvard Law School..
Volume 19 - Issue 20, October 12 - 25, 2002
India's National Magazine
from the publishers of THE HINDU
http://www.hinduonnet.com/fline/fl1920/stories/20021011008607500.htm
...and I am Sid Harth