Module 6: Alcoholism, Drug Abuse and Corruption

Transcription

1 Module 6: Alcoholism, Drug Abuse and Corruption Lecture 40: Legislation and Combating Corruption Legislation Prevention of Corruption Act, 1947 Finding that bribery and corruption among public servants had considerably increased during and after Second World War and many unscrupulous officers had amassed huge wealth, and the existing provisions of the IPC and the CrPC were inadequate to tackle this problem, the Prevention of Corruption Act, 1947 was passed. In the Criminal Procedure Code, offences relating to public savants are not cognizable, but the 1947 Act made it obligatory for the court to make certain presumption of guilt against the accused. The 1947 Act shifted the burden of proof from the prosecution to the accused. The investigation against the accused was to be made by an officer not below the rank of Deputy Superintendent of Police. The 1947 Act declared such corrupt acts as offences as taking bribe, misappropriation, obtaining a pecuniary advantage, possessing assets disproportionate to income, and abusing official position. However, the authority for prosecution was vested only in the department authorities and not in the Central Bureau of Investigation. The Act, of course, has been a measurable failure in reaching its target. As we know that corruption has increased out of all proportions. Prevention of Corruption Act, 1988 In order to bring all relevant legal provisions relating to the practice of corruption, the central government introduced the Prevention of Corruption Act, The act consolidated the provisions of the Prevention of Corruption Act, 1947, some sections of the Indian Penal Code, the Criminal Procedure Code, and the Criminal Law Act, The sole idea was to bring all relevant provisions in single Act. The 1988 Act enlarged the scope of the term public servant and included a large number of employees within its ambit. The term 'Public Servant' was not defined under the PCA, 1947 and the Act adopted the definition of the term under sec. 21 of the Indian Penal Code. The PCA of 1988 provides a wider definition in the Act itself under clause (c) of sec. The salient Joint initiative of IITs and IISc Funded by MHRD Page 1 of 8

2 aspects of the new definition is that it puts emphasis on public duty and not on the Authority remunerating. The definition is enlarged so as to include the office-bearers of the registered co-operative societies receiving any financial aid from the Government, or from a Government corporation or company, the employees of universities, public service commission s and banks etc. The Act also defined public duty as duty that is dined for the benefit of the State, the public or the community at a large. In this context State would mean as a corporation established by or under a Central, Provincial or State Act and an authority or a body owned controlled or aided by the Government company as defined in Sec. 617 of the Companies Act,1956. Besides the employees of the central government and the union territories the employees of public undertakings, nationalized banks, office-bearers of the cooperative societies of the central and the state governments receiving financial aids, employees of the University Grant Commission (UGC), vicechancellor, professors and scientists in institutions receiving financial aid from the central or the state governments or even from the local authorities have all been declared as public servant. However, MPs and MLAs, even though performing public duties have been kept out of the ambit of the act. The Act covers all the corrupt acts as covered by the 1947 Act (bribe, misappropriation, obtaining pecuniary advantage, possessing assets disproportionate to income, etc.). The Act extends to whole of India except Jammu and Kashmir and applies to all citizens, whether living in country or outside it. If the offence against the public servant is proved in the court, it is punishable with imprisonment of not less than six months but extending to a maximum period of five years. Six months imprisonment is thus mandatory and the courts have no discretion in this regard. If the public servant is found committing offence habitually, he/she is to be punished with imprisonment of not less than two years but not more than seven years, and also fine. Apart from this a committee on prevention of corruption was appointed by the Government of India in 1960 under the chairmanship of K. Santhanam. This committee gave its report in The recommendations pertained to various aspects of corruption. It was on the basis of the recommendations of this committee that the Central Vigilance Commission was set up in 1964 for looking into the cases of corruption against the central government and other employees. The central government has set up the Joint initiative of IITs and IISc Funded by MHRD Page 2 of 8

3 following four department as anti-corruption measures: First, Administrative Vigilance Division (AVD) in the Department of Personnel and Training, second, Central Bureau of Investigation (CBI), third, Domestic Vigilance Units in the ministries/departments/public undertaking/nationalizes banks, and fourth and the last Central Vigilance Commission (CVC). Combating Corruption Historical evidence shows that attempts to curb corruption are about as old as corruption itself (Riley, 1998:132). In recent years, anti-corruption rhetoric has been on the rise among governments in both the North and the South, often as lip-service response to the increasing media attention and activism of civil society, as well as from actions taken by some international agencies to fight corruption (Kaufmann, 1999). This does not mean that no country and institution have undertaken serious efforts against corruption. But there are many whose commitment to addressing the problem is rather dubious. It is therefore important to be aware of the fact that the fight against corruption can present few success stories. The only clear-cut successes have been Hong Kong and Singapore, both city-states that had fairly authoritarian governments when they initiated their anticorruption efforts. A few other countries, including Italy and Uganda, have made inroads on corruption but have by no means destroyed the problem. Uganda, for instance, has in recent years improved its ranking in the corruption index, but remains below even Africa s gloomy average. The lack of successful anti-corruption campaigns is partly due to limited knowledge related to causes, effects and cures of corruption, and partly because the distant past appears to be more important than current polices in many countries. There is now fairly strong empirical evidence that the process of successful economic development reduces corruption considerably in the long run, but little in the short run. The mechanism through which this works, however, is not yet clarified. One possibility is through a rationalisation of public and private roles and spread of education, which makes abuses harder to conceal (Treisman, 2000). So far, the World Bank is the organisation that has developed the broadest and most elaborated set of policies aimed at reducing corruption. According to the World Bank, corruption is a symptom of deep- Joint initiative of IITs and IISc Funded by MHRD Page 3 of 8

4 seated economic, political and institutional weaknesses. Consequently, to curb fiscal corruption it is essential to focus on its causes and rationale. Huther and Shah (2000) mention four dimensions of World Bank policy: Preventing fraud and corruption in World Bank projects. Mainstreaming a concern for corruption in the organisation. Lending support to international efforts to curb corruption. Helping countries that request assistance to fight corruption. While first and third are dimensions focusing on the World Bank as an organisation although relevant for most international aid organisations, third is clearly focused on corruption as a general policy issue. The World Bank s work for bringing forth information about corruption and initiate public discussions on corruption issues is likely to assist in any conceivable anticorruption policies. However in case of India, given the dire consequences of corruption, it is quite evident that it needs to be explicitly taken into account in India s overall development strategy. The absence of institutions and legislations crafted to combat corruption is not the problem in India given the wide range of anti-corruption related steps taken in the past six decades, however significant gaps still remain between the policy and practice. Existing anti-corruption interventions are mostly punitive in nature. For integrity to become embedded in public life, it is important that India shifts from this punitive approach to a more holistic preventive and participatory approach. Moreover, a tendency has set in where the fight against corruption is seen as the job of a few anti-corruption agencies, whereas in reality it is the responsibility of every citizen and organisation. Therefore, there is a need for a single comprehensive strategy that harmonises the efforts of withal stakeholders to fight corruption and sets an agenda for collective action. Hence, a comprehensive approach to fill this gap, an approach that targets the root causes of corruption, while strengthening detection and enforcement mechanisms, and introducing systemic reform is the need of the day. In doing so, it is important to acknowledge that corruption is a reflection of both social and political values as well as weak institutions. Given the entrenchment of corruption in Indian society, for any strategy against corruption to be successful, sustained commitment from all actors of society, including political leaders, various Joint initiative of IITs and IISc Funded by MHRD Page 4 of 8

5 government agencies, civil society, media, the private sector and the common man, will be imperative. It has been widely recognized that a realistic strategy to combat corruption needs to be a participatory one that enlists input in devising, as well as, cooperation in implementing, from these various actors. There is also need to focuses on the importance of values and ethics and the role of education and awareness, so as to bring in the citizen as a key player in the fight against corruption. Strategy to address political corruption Political parties should adopt a code of ethics and vigorously enforce it. Personal integrity should be given due weightage while enlisting members or giving tickets for election. These are mandatory minimum measures for establishing credibility of the political institutions. Political parties should avoid conflict of interest while nominating members to public offices like ministers, chairmen or member of parliamentary committees. Commitment to maintaining integrity in governance and combating corruption should be made a key election manifesto by all parties. Simultaneously the electorate should also be educated and made aware to give due weightage to this manifesto and the integrity of candidates while casting their vote in elections. Modalities for state funding for elections need to be worked out at the earliest. Contributions to the state fund could be given tax exemptions. Meanwhile indirect public subsidies like tax credits and free media time on state media could be offered to parties combined with fairly strong regulations on intra-party governance, transparency, accountability of public and party funds. Norms for disclosure of source and amount of funding received by parties should be strengthened. Annual financial statements and income and expenditure of the political parties should be made public. This would also foster a culture of transparency and democracy within political parties. Political executive should move towards transparent and participative policy making. Joint initiative of IITs and IISc Funded by MHRD Page 5 of 8

6 Strategy to address administrative corruption Rules, regulations and procedures governing delivery of service and benefits to citizens should be simplified and made citizen friendly. A mission mode exercise should be achieved to achieve this. Exercise should be undertaken to identify the number of submission and approval points involved in activities relating to delivery of public services. Progress in simplification of procedures should be monitored annually in terms of the reduction in processing time and reduction in submission/approval points. Improve service delivery by adopting an action plan for improving standards of public service through benchmarking. Innovative and localised solutions should be promoted with the involvement of civil society organisations. Transparency to be maintained in policy making and drafting of regulatory norms. Proactive disclosure system by government agencies should be implemented. Government decision making and implementation to be made more participative. To fight large scale corruption in Panchayati Raj Institutions, a separate vigilance apparatus with citizen s participation should be formed. Use of citizens charter should be made mandatory. The charter with clearly laid down information about services, government officials responsible for the delivery, timelines, penalty clauses and grievance redressal in case of non-compliance should be prominently displayed in the public domain. Strategy to discourage private sector participation in corruption There is need for transparent and participative policy making in place of closed door policy especially with regard to grant of licences, auction of public assets, award of large public contracts and in formulating regulatory norms. After the finalisation of a policy and before its implementation, opportunity should be given to all stakeholders to review, debate and contest the policy to ensure fair play. There is also need for Strengthening the independence and integrity of regulatory bodies. Conflict of interest in appointment to regulatory bodies should be avoided. Appointment to regulatory bodies should be free from the patronage system and should be based on merit, past performance, domain knowledge and integrity. Performance and effectiveness of regulatory bodies in ensuring level playing field in their sector of operation should be reviewed periodically by oversight bodies and the report presented to Parliament. Concerns of integrity and ethics Joint initiative of IITs and IISc Funded by MHRD Page 6 of 8

7 should be integrated into the corporate governance instruments. Corporate governance should be strengthened through regulation and creation of education and awareness among investors. The most important measure is to recognise the offering of bribe as an offence. Both solicitation as well as offering of bribe should be made punishable by bringing out suitable legislation. India is few of the countries which has not done so. Until this is achieved there would be no deterrence, disincentive for the private sector to desist from corruption. At the same time Private sector should realise that corruption is against the long term interest of business as it distorts the market and increases the cost of doing business. The private sector should therefore work for a corruption free market based transaction system. Strategy to encourage citizens to resist corruption There is need of Capacity building of citizens and citizens group to enable them stand up against corruption through conduct of training by Government. Citizens should be empowered to resist corruption by enabling them to report solicitation of bribes in vulnerable service delivery activities like PDS, registration of property, municipal services, health schemes etc. The system of hotlines should be introduced for this purpose so that prompt action is taken on the complaints. The system should be regularly monitored as a high priority activity by the Vigilance Commissions both at the centre and the state. Citizen committees at the service delivery points like hospitals, schools, hostels etc. should be introduced. Citizen committees should also take up inspection of quality of works. Citizens, citizen s group or civil society organisations should keep vigil over government service delivery by making use of the provision of transparency and social audit to expose corruption. Strengthening of media In order to introduce transparency in the working of the media organisations, the owners, proprietors and editors should be asked to disclose their financial, political and other interests which can have a bearing on the objectivity of the organisation. Secondly, the news organisations should also give a disclosure about their major advertisers. They may do so by posting such information on their websites every quarter. Media should not focus only on the negative aspect that is corruption cases of sensational nature but also Joint initiative of IITs and IISc Funded by MHRD Page 7 of 8

8 organize debates, discussions on corruption and create awareness among citizens. There is also need of Developing an ethical code of conduct for media organizations. Social action against corruption Campaign to educate and create awareness in society against the evil of corruption should include media campaign as well as outreach activities. Education is the foundation of a morally sound society. Lesson on ethics should be included in the curriculum of schools. Children should be taught to achieve their goals for earn money though rightful means to be taught in middle school. References Huther, J. and A. Shah (2000): Anti-corruption policies and programs: A framework for evaluation, World Bank Policy Research Working Paper, No. 2501, December. Kaufmann, D (1999): Anti-corruption strategies: Starting afresh? Unconventional lessons from comparative analysis in Stapenhurst and Kpundeh (eds.) Curbing Corruption. Toward a Model for Building National Integrity. Washington D.C.: EDI Development Studies. Riley, Stephen R. (1998): The political-economy of anti-corruption strategies in Africa, The European Journal of Development Research, 10 (June): pp Treisman, Daniel (2000): The causes of corruption: a cross national study, Journal of Public Economics, vol. 76, pp Joint initiative of IITs and IISc Funded by MHRD Page 8 of 8