Transparent Governance: Elimination of Corruption
Corruption has been widespread concern for all democracies over the world. It has been prevalent for centuries together. Corruption has stretched its tentacles far and wide, from the womb to the tomb, from the maternity hospital to the cemetery. However, there is no one-size-fits-all solution to the problem of corruption. Promoting a transparent and open government is the best approach to combat corruption. Participatory democracy requires administrative transparency and accountability as a sine qua non. Transparency is the milestone of Good Governance. Only when the public has access to information can there be transparency. The free flow of information is essential to the health of a democratic society. Several laws exist to allow the free flow of information and to promote transparent and open government in order to lessen the problem of corruption. The notions of transparency, statutory bodies for fostering openness, the problem of corruption, numerous legislations, law commission findings, and international treaties to combat corruption are discussed in this article.
I. Introduction
Transparency is one of the most crucial features of good administration. It entails allowing the general public access to the activity of public administration authorities. Transparent administration pertains to administrators operating clearly also with people informed of the conclusions they are adopting. Openness, Accountability and Honesty define Government transparency. Transparency is about shedding light on rules, plans, processes and actions of the government2. "Corruption encompasses behaviours and attitudes of public servants, whether policymakers or bureaucrats, in which they inappropriately and purposefully enrich themselves, as well as those linked with them, by exploitation of the immunity granted to them"3. The Asian Development Bank also defines corruption on the same terms as Transparency International. It is defined by the UNDP as "misuse of entrusted power for personal advantage". Transparency is important because it curbs corruption, promotes good governance, improves public policy.
II. Transparency-tool for controlling corruption
Anti-corruption initiatives rely heavily on transparency. Because corruption undermines effective governance, leads to resource misallocation, affects public and private sector growth, and distorts public policy, transparent governance is crucial to local governments and the populations they serve. Corruption can only be controlled if the government, public sector, and private sector work together to ensure transparency. Every country's main priority should be to eliminate corruption. "Corruption is stated as a condition that is not only usually fatal, but also spreads quickly if left unchecked; it is incurable unless swiftly addressed as soon as humanly possible, it is probable to provoke turmoil in an otherwise balanced, wealthy, efficacious, and pulsating community," the Supreme Court said in State of M.P. v Ram Singh4.
III. Laws to prevent corruption
According to Transparency International's Corruption Perceptions Index 2018, India ranks 78th out of 180 nations. According to this assessment, India scored 41 out of 100 scores. There are various laws in India to prevent corruption.
Prevention of Corruption Act:
The primary anti-corruption statute in India was the Prevention of Corruption Act 1988. This Act was amended in the year 2018– The Prevention of Corruption (Amendment) Act 2018. Receiving any 'undue benefit' by public workers, as well as offering such undue advantage to others, is now illegal under this new law. Section 2(d) of the new Act defines 'Undue advantage'. The most famous case under the Prevention of Corruption Act is Ved Prakash Gautam v. Delhi Development Authority5, popularly called the 'DDA case'. In this case, Ved Prakash Gautam, a former Assistant Director of Delhi Development Authority(DDA), was convicted under sections 7 & 13(2) of the prevention of corruption Act for taking bribes from two authorities workers in exchange for their transfer. He was sentenced to 3 years imprisonment and a fine amount of 25,000 rupees.
Prevention of Money Laundering Act, 2002:
This Act was passed in 2002, and it criminalizes 'money laundering'. Section 2(p) of the Act describes 'Money laundering', but it is defined under section 3 as "direct or indirect attempts to knowingly assist or become party to, or real participation in a process or action involving the 'proceeds of crime,' such as concealment, ownership, acquisition, or use, as well as projecting or claiming it as unattained property". This Act was recently revised in 2018, and it now adds 'fraud' under the Companies Act as one of the offences that would be subject to this Act's applicability.
Black Money (Undisclosed foreign income & assets) and Imposition of Tax Act 2015:
The purpose of this Act is to target undeclared earnings and assets that have been stored overseas by resident Indians and may have been obtained by criminal means, such as corruption. This enactment leviers penal rates of tax on any undisclosed asset or income held abroad by a person resident in India and penalizes individuals for non-disclosure of foreign income or assets, intentional attempt to avoid paying taxes, refusal to file required returns.
The Fugitive Economic Offenders Act, 2018:
This Act was recently enacted on July 31, 2018, for preventing the offenders accused of economic offences from evading prosecution within the country. This Act is aimed at fugitive economic offenders for whom an arrest warrant has been issued for specific predicate economic offences involving Rs.100 crores and who have either fled the nation to escape criminal prosecution or are already in the country or are abroad and reuse to return to face criminal prosecution.
IV. United nations convention against corruption 2005
The United Nations Convention Against Corruption is the most significant globally binding treaty against corruption. So far, the agreement has been signed by 140 countries and ratified by 95 countries. This treaty has also been ratified by India. The goal of this convention, according to Article 1, is to "promote and enhance measures to prevent and combat corruption more effectively and efficiently". The only legally binding worldwide anti-corruption weapon is this convention.
V. Criminalization of politics
The biggest concern in the political environment is the criminalization of politics. People with criminal backgrounds become politicians and elected representatives, and it poses a great threat to the nation as democracy is placed in the hands of these criminals. Statistics states that nearly 50% of Members of Lok Sabha have criminal cases pending against them. Around 233 MPs have declared criminal charges against themselves out of the 539 winners assessed in the Lok Sabha elections 20196. It is not healthy for a democracy like India, and in turn, it breeds corruption. There were various committees to study about criminalization of politics. They are as follows:-
Vohra Committee Report:
This was submitted by the former Indian Union Home Secretary N.N. Vohra in October 1993. This committee investigated the topic of political criminalization in India, as well as the relationship between criminals, politicians, and the bureaucracy. This committee was formed to investigate the 12 bomb bombings that rocked Bombay on March 13, 1993. "In the larger cities, real estate is the main source of income, and this money power is used to build up contacts with bureaucrats and politicians, and to expand activities with impunity, as well as to develop a network of muscle power, which is also used by politicians during elections," according to the report. This study revealed the truth about politicians who were involved in organized crime, and as a result, it was not allowed to be published.
Padmanabhaiah Committee Report:
In January 2000, the Ministry of Home Affairs established the Padmanabhaiah committee on police reforms. The committee claims that "police criminalization cannot be separated from political criminalization" since "corruption is the primary basis of both politicization and criminalization of the police." The criminalization of politics has created and promoted a culture of impunity, allowing the wrong kind of officer to get away with his commission and omission crimes.
Central Vigilance Commission-Outcome of Santhanam Committee:
It was founded as a government organization in February 1964 to combat governmental corruption. It was founded in response to Shri K. Santhanam's Committee on Corruption Prevention's recommendations. It is a self-governing body with just Parliament as its only source of accountability. The Central Vigilance Commission Act was passed by Parliament in 2003, giving it Statutory Status. The preamble of the Act states that the main object of this Commission is to "inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act,1988 by certain categories of public servants of the Central Government, corporations, Government companies, societies and local authorities owned or controlled by Central Government" The CVC is a 3 member body consisting of the Central Vigilance Commissioner7 (Chairperson) and two Vigilance Commissioners as its Members.
VI. Ways to prevent the criminalization of politics
i. Bringing greater transparency in campaign financing will make it less attractive for political parties to involve gangsters and goons and curb the criminalization of politics.
ii. Another way is to bring the political parties finances under the Right to Information Law.
VII. Laws to achieve transparency
A Whistle-blower is a person who exposes wrongdoing, fraud, corruption or mismanagement. This might be a government employee who discloses corruption within the government, or it could be a private sector employee who reports unethical activities within the corporation.
Whistle Blower Protection Act, 2014:
It was passed by the Indian Parliament on February 21, 2014, but this Act is yet to be in operation. The NHAI Scam8specially paved the way for the Whistleblowers Protection law in India. Many whistleblowers were murdered, and a series of cases were filed. Some of the famous cases are the M Shanmugam Manjunath case 2005, Narendra Kumar case 2012, Lalit Mehta case 2008, SP Mahantesh case, Satish Shetty case 2010, Rinku Singh Rahi case, V. Saseendran case and D.K. Ravi case 2015. The Parliament thought that it was extremely necessary to enact a law to give protection to whistleblowers, and thus, this Act was passed.
VIII. Law commission reports on disclosure of information
14th law commission report 1958, 154th law commission report 1996, 178th law commission report 2001 speaks about the disclosure of information."Good faith whistleblowers represent the highest ideals of public service and challenge abuses of power", according to the 179th report on Public Interest Disclosures and the Protection of Informers. They put loyalty to the test using the greatest moral values, but they prioritize allegiance to the country over devotion to individuals, groups, or governments.
Nolan Committee Report:
This is a famous committee that led to the evolution of whistleblowing legislation in the U.K. This was set up in 1994 and was chaired by Lord Nolan, who recommended that all local authorities, government departments, non-departmental public bodies should institute codes of practice on whistleblowing to enable concerns to be raised confidentially inside and outside organizations. "Effective whistleblowing is, therefore, a critical component in any plan to address improper behaviour at all levels of an organization", according to the Committee's Tenth report9. It acts as a symbol of more open company culture as well as a tool for good governance—the committee's recommendations for best practices in whistleblowing agreements.
IX. Information – a weapon against corruption
Information is one of the greatest weapons against corruption. Because free and guaranteed access to information allows individuals, the media, and law enforcement authorities to utilize official documents to discover examples of corruption and maladministration, It is crucial in the fight against corruption and the management of its consequences. Increased openness enhances the likelihood of uncovering corrupt activities, which can serve as a deterrent to future misconduct10.
Right to Information Act in achieving transparency:
The Right to Information Act of 2005 established a foundation for openness in the operation of the Indian government and its many institutions. Right to information11 is a statutory right, and it has been defined under section 2(j)12of this Act. The RTI Act was a useful instrument for improving transparency since it allowed citizens to request information from any government agency within a certain time limit. The Central Information Commission (section-12) and State Information Commission (section-15) acts as the hub for transparency as they are the statutory bodies to hear complaints and appeals13 under this Act. In Indira Gandhi v. Raj Narain14, the Court held that "The main protection against tyranny and corruption is the obligation of authorities to explain and justify their activities". In Kuldip Nayar v. Union of India15, C.J. Y.K.Sabharwal held that "Secrecy becomes a source of corruption – Sunlight and Transparency have the capacity to remove it."
Lokpal and Lokayuktas Act, 2013:
The Lokpal and Lokayuktas Act, 2013, is a recent law that establishes corruption ombudsmen known as 'Lokpal' at the federal level and 'Lokayuktas' at the state level, both of whom are independent of the executive arm of government. These committees have been given the authority to examine charges of corruption against public officials, including offences under the PCA, such as allegations against the Prime Minister and other Central Ministers, members of Parliament, and other public officials. Further, public servants are required to declare that assets are held by them together with their spouse and dependent children on an annual basis. However, the government has failed to nominate a 'Lokpal,' and the legislation's provisions have yet to be effectively implemented.
X. Conclusion
Governance is more than fighting corruption. Corruption of the state and its institutions hinders the full realization of human rights. The current state of India's economy is a monument to corruption. Where corruption is the one factor that has sabotaged the whole economic development process. The average person is the most prevalent victim of corruption. Issues like human rights violations, corruption, criminalization of politics, lack of transparency and accountability are some of the greatest challenges of good governance. Human rights are the source of good governance. When human dignity is violated, civilization suffers a setback. We have effective laws but implementing them is difficult because our nation itself is in the hands of corrupted politicians. So, achieving good governance with a corrupted free nation is a major question.
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XI. References
1. Prevention of Corruption (Amendment) Act, 2018
2. Prevention of Money Laundering Act, 2002
3. Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act, 2015
4. The Fugitive Economic Offenders Act, 2018
5. U.N. Convention Against Corruption 2005
6. https://www.transparency.org/
7. https://wwwtradingeconomics.com/india/corruptionrank/
8. https://www.indiatoday.in/elections/loksabha-2019-criminalrecords
9. https://www.unodc.org/whistleblowing/
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Footnotes
- Author is an Advocate at Madras High Court, India
- As defined by Transparency International found on https://www.transparency.org/what-is-corruption last accessed on 7th december 2019 at 8 PM. ↩
- ibid ↩
- (5) SCC 88 ↩
- Judgment dated 13.02.2015 ↩
- https://www.indiatoday.in/elections/loksabha-2019-criminal records last accessed on 7th December at 9PM ↩
- According to Section 4 of CVC ACT 2003, The Prime Minister is the Chairperson and the minster of Home affairs and the Leader of the opposition in House of People are the other two members ↩
- Satyendra Dubey was an Indian engineering service (IES) officer assigned to the National Highways Authority of India in Koderma, Jharkhand, in the year 2003. The Indian government, led by Atal Bihari Vajpayee, has begun work on the Golden Quadrilateral project, which would connect all of India's main cities by four and six lane motorways. At this time he was responsible for the expansion of Aurangabad-Barachatti section of NH2. He discovered that Laursen & Toubro had taken contract from Indian government and passed it to smaller contract mafias who were incapable of handling such a large scale project. Apart from that, he saw that correct process and quality were not followed when the roads were being built. He wrote to his senior officials and when they failed to respond he immediately reported the matter directly to the then Prime Minister Mr.Atal Bihari Vajpayee office. He requested that his identity to be kept secret. But PMO officials circulated his letter along with the details of his identity among the bureaucracy. It turned out to be fatal threat to him. Accordingly a year later on November 27,2003, he was murdered in Gaya, Bihar. ↩
- Tenth report getting the Balance Right Implementing Standards of Conduct in Public Life January 2005 ↩
- As noted in Transparency International’s Global Corruption Report 2003. ↩
- Article 19 of UDHR also speaks about right to seek and receive information. ↩
- As per section 2(j)of RTI Act 2005, Right to information includes “the right to inspection of work, documents, records; taking notes , extracts or certified copies of documents or records; taking certified samples of material and obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device”. ↩
- Section 19 of the Act speaks about appeal provision. ↩
- AIR 1975 SC 2299 ↩
- AIR 2006 SC 3127 ↩