Challenges in the path of stamping out the evil of corruption are but formidable. Black money, an outright ominous end product of the whole gamut of corruptions, has come to account for 40 per cent of the Gross Domestic Products (GDP).[xii] Unverifiable reports simultaneously suggests that unscrupulous industrialists, scandalous politicians and corrupt officers have since put in about US$ 1500 billion in their private foreign accounts, which they have quite necessarily been misappropriating from time to time. The worse that the matter more often than not languishes on one excuse or the other for unimaginable period, which provides uncalled for sanctuary the perpetrators. One of the hurdles constituted of immunity provisions. One could now see silver lining after the “prior sanction provision” under Section 19 of The Prevention of Corruption Act – 1988 has been blown away and Section 197 Cr P C made redundant.
There is a saving grace that the world view of an average Indian is averse of vices. The broad masses of the people have a simple task to ask for transparency, accept the verdict as the rule of the game what they otherwise do in the name of their fate, burn the real life demon what they do with the mythological ones and last but not the least, get to zero tolerance for the perpetrators beyond all bounds of personal links and likes. Operational side of the campaign calls for making the institutions of democracy efficient. It will handle much of the nexus of political, bureaucratic and criminal elements in the country.
Tuesday, January 26, 2010
Framework of the Control Mechanism and the Slip Points
Discussions, as such, bear out abiding and ever increasing nature of the phenomenon. It also speaks of its unmistakable resilience to most, if not all statutory and legal safeguards in place. It is both about the political and bureaucratic actors, who tend to transgress their oath of honesty and integrity. It is symptomatic of multi level chinks in the framework of the control mechanism. In over all perspectives, it speaks of system fragility to face onslaughts of individual as much as organized orgies.
The existing check points against political operatives constitute first, the public platform of elections. The second and subsequent check points constitute of provisions of mid course intermediate and final corrections, available with the two respective houses of the Legislature at the national and provincial levels. There are then scores of statutory independent bodies including the judiciary to call the shots. Notwithstanding, there is in place the institutions of Lokpal and Lokayuktas to get to investigate and redress public grievances about corruption, favouritism and official indiscipline in administrative machinery. There impeachment provisions in respect of certain set of functionaries as well.
There are then service and/ or profession disciplining authorities in the case of bureaucrats, professionals and business persons.[ix] This is besides well set common laws. The Government of India, notwithstanding, has set up the Central Vigilance Commission (CVC) to advice the government, government institutions and departments in planning, executing and reforming their vigilance works. The CVC, in turn, has taken a number of steps including the task of interfacing with people at large through a website to get to the broad and specifics of the inside out to perform its charters.[x] Council for Clean India (CFCI), an initiative of the CVC, has been in vogue for nearly decade to get much of the catalysts on one platform to work for prevention of the dreaded evil of corruption.[xi]
The slips in the system, notwithstanding, rule the roost. One of the discernible symptoms of the phenomenon constitutes of disproportionate assets (DA), which, literally, goes along as a rule in proportion to the level of authority in decision making. The change phenomenon, both in quantitative and qualitative terms, tend to exemplify a case of one time locale specific cottage industry of delinquent action assuming subsequently the form and shape of all pervasive heavy industry with ancillaries all over the country. The perpetrators, in particular the political persons, tend to enact phoenix. Even while indicted and prosecuted, they hold potentials to romp back in public life, using different tantrum.
The existing check points against political operatives constitute first, the public platform of elections. The second and subsequent check points constitute of provisions of mid course intermediate and final corrections, available with the two respective houses of the Legislature at the national and provincial levels. There are then scores of statutory independent bodies including the judiciary to call the shots. Notwithstanding, there is in place the institutions of Lokpal and Lokayuktas to get to investigate and redress public grievances about corruption, favouritism and official indiscipline in administrative machinery. There impeachment provisions in respect of certain set of functionaries as well.
There are then service and/ or profession disciplining authorities in the case of bureaucrats, professionals and business persons.[ix] This is besides well set common laws. The Government of India, notwithstanding, has set up the Central Vigilance Commission (CVC) to advice the government, government institutions and departments in planning, executing and reforming their vigilance works. The CVC, in turn, has taken a number of steps including the task of interfacing with people at large through a website to get to the broad and specifics of the inside out to perform its charters.[x] Council for Clean India (CFCI), an initiative of the CVC, has been in vogue for nearly decade to get much of the catalysts on one platform to work for prevention of the dreaded evil of corruption.[xi]
The slips in the system, notwithstanding, rule the roost. One of the discernible symptoms of the phenomenon constitutes of disproportionate assets (DA), which, literally, goes along as a rule in proportion to the level of authority in decision making. The change phenomenon, both in quantitative and qualitative terms, tend to exemplify a case of one time locale specific cottage industry of delinquent action assuming subsequently the form and shape of all pervasive heavy industry with ancillaries all over the country. The perpetrators, in particular the political persons, tend to enact phoenix. Even while indicted and prosecuted, they hold potentials to romp back in public life, using different tantrum.
Intensity of Corruptions and the Intervening Factors
While few and far between, the instances of one or the other kind of the three sets of corruption in the Indian public office did come up even during the early years of independence. A.D Gorwala Report (1951) and Santhanam Committee Report (1964) pointed fingers at the integrity of ministers and civil servants. The reports speak of relative tolerance and shielding of the miscreants. Enriching themselves through illegitimate means, practicing nepotism and securing good jobs and business options for their children and relatives and reaping other advantages inconsistent with any standard of purity then constituted common refrain among the deviants. Factors at work included a web of restrictive rules and regulation regime in face a general resource and opportunity crunch in the economy and rise of power brokers, who, at one end, served as necessary link between the system and the clientele, and thus, bore mantle of legitimate go between and on the other end, created system glitch to transparent transactions. In the bargain, discretionary powers at different ends of power centers, subject to corruptibility quotient of the individual player and accountability glitch in the system, turned out to be the fountain head of corrupt practices in governance.
Indian state and its institutions were then in a nascent state. However, the responses were quite straight and stringent. While not exhaustive, the system response to some of the often quoted corruption cases of the era such as Jeep Scandal (1948), Mudgal case (1951); LIC-Mundhra deals (1957); Partap Singh Kairon case (1964); and, Biju Patnaik case (1965) stand testimony.
The Jeep Scandal, so to say, related to V.K Krishna Menon, the then Indian High Commissioner UK. The Indian army had placed orders for procurement of 155 Jeeps worth Rs 8 millions. They were to be used in then troubled Hyderabad and Kashmir regions. The Indian army had placed services of a Brigadier, which he bypassed and instead outsourced through an agent, Cleminsan. While the roadworthiness of the Jeeps in question was certified by Lloyds, the sulking Indian Army made an issue in accepting, and the opposition, in particular those who were ranged against the then Prime Minister Pt Jawaharlal Nehru blew it out. Even as the Jeeps remained on road for over a decade, V.K Krishna Menon, one of the most austere political people of the time, suffered the insinuation.
H.G Mudgal, a Member of Parliament, accepted Rs 1000 each on two occasions in his dealings with Bullion Merchant Association. On receiving complaints, the then Prime Minister first approached Speaker G.V. Mavalankar for a thorough parliamentary enquiry. A member of Lok Sabha wanted reference of the case to the Privilege Committee. The Speaker did not find it workable. The Prime Minister moved a resolution for appointment of an Ad-hoc Committee of the Parliament to go into the issue, which found his conduct "derogatory to the dignity of the House and inconsistent with the standards of member of Parliament”. He was formally expelled from the House.
LIC-Mundhra deal remains a legend by its own right. It was the first financial scandal of independent India. With his connections, Haridas Mundhra, a Kolkata based industrialist and stock speculator, got Life Insurance Corporation (LIC) to invest Rs. 1.24 crores (US$ 3.2 millions) in the shares of his six troubled companies such as Richardson Cruddas, Jessops & Company, Smith Stanistreet, Osler Lamps, Agnelo Brothers and British India Corporation. The investment was done under governmental pressure and bypassed the LIC’s investment committee, which was informed of this decision only after the deal had gone through. In the event, LIC lost most of the money. The irregularity was brought to the notice of the Lok Sabha by the ruling party member Feroze Gandhi, the son-in-law of the then Prime Minister. The matter was disposed in record 24 day inquiry by one-man Committee of Justice MC Chagla. Haridas Mundhra was sentenced to imprisonment. The Committee found the Finance Minister T.T Krishnamachari constitutionally responsible. He subsequently resigned. The Committee recommended trial of Finance Secretary, H. M. Patel, along with two LIC officials, L S Vaidyanathan for suspected collusion. The incident turned to be the harbinger for the coming up of statutory Central Vigilance Commission to play a pivotal role looking into the phenomenon.
Partap Singh Kairon was Chief Minister of Punjab from 1956 to 1964. While he is credited for much of the developments the state achieved, the controversy about his corrupt actions in promoting the economic interests of his sons, relatives and cohorts transcended beyond the epoch of the first Prime Minister of India. In close contrast to all other cases that found logical end, his assassination in February 1965, just two months after he resigned after being indicted by the S.R Das Commission, closed the chapter.[v] The case of Orissa Chief Minister Biju Patnaik did not as well have a logical end.. After a long time, charges of corruption against him were investigated by HR Khanna Commission. He was indicted for awarding government contract to his privately held companies and was forced to resign.
There were some lesser known cases of corruption of the kind in the early years of independence. They included: Cycle Imports scandal (1951); BHU Funds scandal (1956); and, Teja Loans case (1960). S.A. Venkataraman, the then Secretary, the Union Ministry of Commerce and Industry was proceeded against and later jailed for accepting a bribe in lieu of granting a cycle import quota to a company. BHU fund scandal was then first of its kind in an educational institution. The employees had misappropriated Rs 5 millions. Once found guilty by the court of laws, the perpetrators had to under go imprisonments. Shipping magnate Jayant Dharma Teja took loans worth Rs 20.2 millions to establish the Jayanti Shipping Company. In 1960, the authorities discovered that he was actually siphoning off money to his own account, after which Teja fled the country.
The situation, in subsequent decades, witnessed a sea change, in particular in the mode, scope and end results. The political class and the civil servants literally came to operate in a sort of network orgies in contrast to individual aberrations during the early years. There are individual political players, in certain cases the political entity of their affiliations, who once vowed to fight pitched political battles with no holds barred to expose and eradicate corruptions in high places, carried out and let their kin to pursue the same course. Much the same could be said about the bureaucracy.[vi]
For a variety of reasons, in 1970’s, despite outcry of a different order, the number of corruption cases, then making headlines in substance, were just handful. The case of public sector Indian Oil Corporation (IOC), which awarded contracts worth Rs 20.2 millions for supply of petroleum products at constant price in an epoch of falling prices to a Hong Kong based said to be non-existent Kuo Oil Co in 1976 is one onstance. Political storm, nevertheless took place on couple of other occasions.[vii]
1980s brought a spate of cases, the major ones were: Antulay Trust scandal (1981), Lakhubhai Pathak cheating scandal (1983) Bofors Pay-Off (1986), HDW Commissions (1987), and St Kitts Forgery (1989). Things were little different in 1990’s. Counts went up. Airbus Scandal (1990); Solanki Exposé (1992); Securities Scam (1992); Indian Bank Rip-off (1992); Hawala scandal (1993), Sugar Import (1994); JMM Bribes (1995); Lakhubhai Pathak Paper Pulp Contract Bribery (1996); Telcom Scam (1996); Urea Deal (1996); and Coffingate (1999). The notable cases during the first decade of the new millennium included: Tehelka Sting (2001); Stock Market Scam (2001); Home Trade Scam (2002); Stamp Paper Scam (2003); Oil-for-Food Scandal (2005); Cash for Query (2005) ; MPLADS Scam (2005) Human Trafficking Forged Passport Scam (2007); Cash for Votes Scam (2008) and Satyam Computers (2008).
The list is not comprehensive. They are nor representative of different sets of orgies. There are quite a large number of exposes, both in all India and state level cases, some of which are being tried inconclusively as matters of disproportionate assets (DA). Leave aside glaring faults in the surveys of some of the professional bodies in bracketing India vis-à-vis different countries in regional and global perspectives on the basis of ill defined corruption perception index (CPI), the sweep of the phenomenon is simply astounding and tend to affect millions of people in their every day lives.[viii] The bureaucratic core to the phenomenon is much more virulent. It figures grand, middle or petty on the scale of 10 in different situations, depending on levels of control in the transaction of individual job. Levels of transparency figuring respectively nil, least and quite reckonable again on the scale of 10, depending on the levels of absoluteness with quantum of discretions in decision making go in chartering the orgies.
Indian state and its institutions were then in a nascent state. However, the responses were quite straight and stringent. While not exhaustive, the system response to some of the often quoted corruption cases of the era such as Jeep Scandal (1948), Mudgal case (1951); LIC-Mundhra deals (1957); Partap Singh Kairon case (1964); and, Biju Patnaik case (1965) stand testimony.
The Jeep Scandal, so to say, related to V.K Krishna Menon, the then Indian High Commissioner UK. The Indian army had placed orders for procurement of 155 Jeeps worth Rs 8 millions. They were to be used in then troubled Hyderabad and Kashmir regions. The Indian army had placed services of a Brigadier, which he bypassed and instead outsourced through an agent, Cleminsan. While the roadworthiness of the Jeeps in question was certified by Lloyds, the sulking Indian Army made an issue in accepting, and the opposition, in particular those who were ranged against the then Prime Minister Pt Jawaharlal Nehru blew it out. Even as the Jeeps remained on road for over a decade, V.K Krishna Menon, one of the most austere political people of the time, suffered the insinuation.
H.G Mudgal, a Member of Parliament, accepted Rs 1000 each on two occasions in his dealings with Bullion Merchant Association. On receiving complaints, the then Prime Minister first approached Speaker G.V. Mavalankar for a thorough parliamentary enquiry. A member of Lok Sabha wanted reference of the case to the Privilege Committee. The Speaker did not find it workable. The Prime Minister moved a resolution for appointment of an Ad-hoc Committee of the Parliament to go into the issue, which found his conduct "derogatory to the dignity of the House and inconsistent with the standards of member of Parliament”. He was formally expelled from the House.
LIC-Mundhra deal remains a legend by its own right. It was the first financial scandal of independent India. With his connections, Haridas Mundhra, a Kolkata based industrialist and stock speculator, got Life Insurance Corporation (LIC) to invest Rs. 1.24 crores (US$ 3.2 millions) in the shares of his six troubled companies such as Richardson Cruddas, Jessops & Company, Smith Stanistreet, Osler Lamps, Agnelo Brothers and British India Corporation. The investment was done under governmental pressure and bypassed the LIC’s investment committee, which was informed of this decision only after the deal had gone through. In the event, LIC lost most of the money. The irregularity was brought to the notice of the Lok Sabha by the ruling party member Feroze Gandhi, the son-in-law of the then Prime Minister. The matter was disposed in record 24 day inquiry by one-man Committee of Justice MC Chagla. Haridas Mundhra was sentenced to imprisonment. The Committee found the Finance Minister T.T Krishnamachari constitutionally responsible. He subsequently resigned. The Committee recommended trial of Finance Secretary, H. M. Patel, along with two LIC officials, L S Vaidyanathan for suspected collusion. The incident turned to be the harbinger for the coming up of statutory Central Vigilance Commission to play a pivotal role looking into the phenomenon.
Partap Singh Kairon was Chief Minister of Punjab from 1956 to 1964. While he is credited for much of the developments the state achieved, the controversy about his corrupt actions in promoting the economic interests of his sons, relatives and cohorts transcended beyond the epoch of the first Prime Minister of India. In close contrast to all other cases that found logical end, his assassination in February 1965, just two months after he resigned after being indicted by the S.R Das Commission, closed the chapter.[v] The case of Orissa Chief Minister Biju Patnaik did not as well have a logical end.. After a long time, charges of corruption against him were investigated by HR Khanna Commission. He was indicted for awarding government contract to his privately held companies and was forced to resign.
There were some lesser known cases of corruption of the kind in the early years of independence. They included: Cycle Imports scandal (1951); BHU Funds scandal (1956); and, Teja Loans case (1960). S.A. Venkataraman, the then Secretary, the Union Ministry of Commerce and Industry was proceeded against and later jailed for accepting a bribe in lieu of granting a cycle import quota to a company. BHU fund scandal was then first of its kind in an educational institution. The employees had misappropriated Rs 5 millions. Once found guilty by the court of laws, the perpetrators had to under go imprisonments. Shipping magnate Jayant Dharma Teja took loans worth Rs 20.2 millions to establish the Jayanti Shipping Company. In 1960, the authorities discovered that he was actually siphoning off money to his own account, after which Teja fled the country.
The situation, in subsequent decades, witnessed a sea change, in particular in the mode, scope and end results. The political class and the civil servants literally came to operate in a sort of network orgies in contrast to individual aberrations during the early years. There are individual political players, in certain cases the political entity of their affiliations, who once vowed to fight pitched political battles with no holds barred to expose and eradicate corruptions in high places, carried out and let their kin to pursue the same course. Much the same could be said about the bureaucracy.[vi]
For a variety of reasons, in 1970’s, despite outcry of a different order, the number of corruption cases, then making headlines in substance, were just handful. The case of public sector Indian Oil Corporation (IOC), which awarded contracts worth Rs 20.2 millions for supply of petroleum products at constant price in an epoch of falling prices to a Hong Kong based said to be non-existent Kuo Oil Co in 1976 is one onstance. Political storm, nevertheless took place on couple of other occasions.[vii]
1980s brought a spate of cases, the major ones were: Antulay Trust scandal (1981), Lakhubhai Pathak cheating scandal (1983) Bofors Pay-Off (1986), HDW Commissions (1987), and St Kitts Forgery (1989). Things were little different in 1990’s. Counts went up. Airbus Scandal (1990); Solanki Exposé (1992); Securities Scam (1992); Indian Bank Rip-off (1992); Hawala scandal (1993), Sugar Import (1994); JMM Bribes (1995); Lakhubhai Pathak Paper Pulp Contract Bribery (1996); Telcom Scam (1996); Urea Deal (1996); and Coffingate (1999). The notable cases during the first decade of the new millennium included: Tehelka Sting (2001); Stock Market Scam (2001); Home Trade Scam (2002); Stamp Paper Scam (2003); Oil-for-Food Scandal (2005); Cash for Query (2005) ; MPLADS Scam (2005) Human Trafficking Forged Passport Scam (2007); Cash for Votes Scam (2008) and Satyam Computers (2008).
The list is not comprehensive. They are nor representative of different sets of orgies. There are quite a large number of exposes, both in all India and state level cases, some of which are being tried inconclusively as matters of disproportionate assets (DA). Leave aside glaring faults in the surveys of some of the professional bodies in bracketing India vis-à-vis different countries in regional and global perspectives on the basis of ill defined corruption perception index (CPI), the sweep of the phenomenon is simply astounding and tend to affect millions of people in their every day lives.[viii] The bureaucratic core to the phenomenon is much more virulent. It figures grand, middle or petty on the scale of 10 in different situations, depending on levels of control in the transaction of individual job. Levels of transparency figuring respectively nil, least and quite reckonable again on the scale of 10, depending on the levels of absoluteness with quantum of discretions in decision making go in chartering the orgies.
India’s fighting Corruption Menace
Corruption has come to make headlines more often now than ever. Political elite acquired notoriety much before the dawn of independence.[i] It is not again just the treasury benches. The dynamics of corruption transcend gender, social and economic dimensions and closer to Gunnar Myrdal’s electrifying description of “folk lore of corruptions. Public perceptions, in its generality, hold bureaucrats, business persons, NGOs, and last but not the least, criminals as critical perpetrators of the phenomenon. There are then strikingly rich, articulate and connected set of professionals, who make, mend and mar every public debate, discourse and decision but have lent helping hands as agent provocateurs.[ii]
There is literal dearth of micro study to portray of an all pervasive account of the scenario. While conceptually handicapped in more than one respect, the Corruption Perception Index (CPI), brought out by Transparency International (TI), does capture a panoramic view of the malaise. There is an unspoken truth in the findings that the citizens pay bribes to avail essential public services for their survival.[iii] Of the two sets of “need based” and “basic” services, the former has been seen as more corrupt. The need based services primarily cover income tax, police and judiciary. Monopolistic nature provisioning of these services stand at the root of the problem. Basic services include health and education. The citizens have choice to opt out for competitive private owned and run institutions. However, the poor have no choice. Notwithstanding, as a large part of public spending on welfare and development programmes do not reach the target group. Of many a manifest outcome of the phenomenon, the low benefit quotient of programmes and project have had abiding adverse impacts on the socio-economic life of the people.
The paper, in its perspective, deliberates over the institutional response and efficacy of the system to handle the problem of corruption. The assumptions include: First, the phenomenon of corruption in Indian public life crept despite the Indian Statute and the age old social value system . Second, the outgrowth and sustenance much less perpetuation and oblique social acceptance of the phenomenon draw on a variety of factors, some of which are universal while others quite exclusive to India; Third, the glitch in the organization and management of public utility services, law enforcement mechanism and check and balance system stand at the back of much of delinquent behaviour of different actors in the game; and, Fourth, a web of visible/invisible watchdogs, operating through and from the sanctum sanctorum of social, cultural and spiritual institutions in close coordination with legal system to instil transparency, integrity and accountability in the attitude and practices at large hold real and ultimate answer to the menace. The paper, in its perspective, sequentially focuses on: Forms of Corruption and the Milieu; Intensity of Corruptions and the Intervening Factors; Control Mechanism and the Slip Points; and, Challenges and the Saving Grace.
Forms of Corruptions and the Milieu
Strange and yet true - the Indian public life is severely infested with the phenomenon of corruption. In his disquiet, the late Prime Minister Rajiv Gandhi saw symptoms of “institutionalization of corruption” as an outcome of “corrupting of institutions” right in 1985. “The failure to deal with corruption”, said he,” has bred contempt for the law”. This is there despite the age old wisdom of the land and present day statutory organizational framework of governance of the nation squarely provides for zero tolerance.[iv] However, the new developments in the socio-economic organization of the nation, in particular the importance of material existence and a number of glitches in the operating system and procedure, seem to have gone into creating aberrations.
Forms of corruptions, taking place in India, qualify much of what scholarship in the field otherwise tend to suggest. The phenomenon, as elsewhere relates to abuse of “public office for private gains”. In all such events, as the TI elaborates, the public servants, be it politicians or civil servants undertake improper and unlawful means to enrich themselves or those close to them, by virtue of extraordinary power of discretion handed down to them. Arnold J. Heidenheimer spoke of three types of corrupt behaviour: First, the public office centered; Second, the market centered; and, Third, the public power centered. In the case of public centered corruptions, the perpetrators ordinarily violated public trust placed in their office. The delinquent behaviour included bribery, nepotism and misappropriation. In market centered corruptions, the officials look upon their authority to maximize personal gains by dispensing public benefits. Quite in the same vein, where it related public power centered corruptions, the officials tend to violate common interest that provides direct or indirect benefits to the perpetrators in the last go. Pioneering Indian contributors to the concern add up to corrupt business persons, corrupt non-governmental organizations (NGOs) and criminals in the category of persons while.. As public servants remain the fountain heads of violations, the Heidenheimer typology remains sacrosanct.
There is literal dearth of micro study to portray of an all pervasive account of the scenario. While conceptually handicapped in more than one respect, the Corruption Perception Index (CPI), brought out by Transparency International (TI), does capture a panoramic view of the malaise. There is an unspoken truth in the findings that the citizens pay bribes to avail essential public services for their survival.[iii] Of the two sets of “need based” and “basic” services, the former has been seen as more corrupt. The need based services primarily cover income tax, police and judiciary. Monopolistic nature provisioning of these services stand at the root of the problem. Basic services include health and education. The citizens have choice to opt out for competitive private owned and run institutions. However, the poor have no choice. Notwithstanding, as a large part of public spending on welfare and development programmes do not reach the target group. Of many a manifest outcome of the phenomenon, the low benefit quotient of programmes and project have had abiding adverse impacts on the socio-economic life of the people.
The paper, in its perspective, deliberates over the institutional response and efficacy of the system to handle the problem of corruption. The assumptions include: First, the phenomenon of corruption in Indian public life crept despite the Indian Statute and the age old social value system . Second, the outgrowth and sustenance much less perpetuation and oblique social acceptance of the phenomenon draw on a variety of factors, some of which are universal while others quite exclusive to India; Third, the glitch in the organization and management of public utility services, law enforcement mechanism and check and balance system stand at the back of much of delinquent behaviour of different actors in the game; and, Fourth, a web of visible/invisible watchdogs, operating through and from the sanctum sanctorum of social, cultural and spiritual institutions in close coordination with legal system to instil transparency, integrity and accountability in the attitude and practices at large hold real and ultimate answer to the menace. The paper, in its perspective, sequentially focuses on: Forms of Corruption and the Milieu; Intensity of Corruptions and the Intervening Factors; Control Mechanism and the Slip Points; and, Challenges and the Saving Grace.
Forms of Corruptions and the Milieu
Strange and yet true - the Indian public life is severely infested with the phenomenon of corruption. In his disquiet, the late Prime Minister Rajiv Gandhi saw symptoms of “institutionalization of corruption” as an outcome of “corrupting of institutions” right in 1985. “The failure to deal with corruption”, said he,” has bred contempt for the law”. This is there despite the age old wisdom of the land and present day statutory organizational framework of governance of the nation squarely provides for zero tolerance.[iv] However, the new developments in the socio-economic organization of the nation, in particular the importance of material existence and a number of glitches in the operating system and procedure, seem to have gone into creating aberrations.
Forms of corruptions, taking place in India, qualify much of what scholarship in the field otherwise tend to suggest. The phenomenon, as elsewhere relates to abuse of “public office for private gains”. In all such events, as the TI elaborates, the public servants, be it politicians or civil servants undertake improper and unlawful means to enrich themselves or those close to them, by virtue of extraordinary power of discretion handed down to them. Arnold J. Heidenheimer spoke of three types of corrupt behaviour: First, the public office centered; Second, the market centered; and, Third, the public power centered. In the case of public centered corruptions, the perpetrators ordinarily violated public trust placed in their office. The delinquent behaviour included bribery, nepotism and misappropriation. In market centered corruptions, the officials look upon their authority to maximize personal gains by dispensing public benefits. Quite in the same vein, where it related public power centered corruptions, the officials tend to violate common interest that provides direct or indirect benefits to the perpetrators in the last go. Pioneering Indian contributors to the concern add up to corrupt business persons, corrupt non-governmental organizations (NGOs) and criminals in the category of persons while.. As public servants remain the fountain heads of violations, the Heidenheimer typology remains sacrosanct.
Corruption: Some more facts
The two sentences preceding the last two sentences of the Editorial ``Probing the allegations'' (March 19)read as under: ``Mr. Fernandes' lengthy and emotional defence on television is unconvincing because it fails to answer the fundamental questions. How the man he personally selected as his party's treasurer could brag of firing specific defence deals, why bundles of notes were accepted at his official residence from someone posing as an arms seller and how the Ministry he presided over could be so easily penetrated by middlemen and a couple of investigative journalists''.
Through these, you have conveyed to the readers through the editorial the astonishing piece of information that ``bundles of notes were accepted'' at the official residence of the Defence Minister - something which has not been reported. What has been shown in the tapes and reported in TheHinduis that Ms. Jaya Jaitly, Samata party president, was seen talking to the investigative journalists posing as arms dealers at the Defence Minister's official residence and at one time, when they offered a donation to the party, they were told to give it to the party office-bearer, Mr. Srinivasa Prasada.
Unlike in Mr. Bangaru Laxman's residence where bundles of notes were seen being accepted by him and put away, nowhere has it been seen or reported that bundles of notes passed hands at the Defence Minister's residence. Offer of money and its acceptance in so many words is one thing, actual delivery of bundles of notes and their acceptance is another.
Through these, you have conveyed to the readers through the editorial the astonishing piece of information that ``bundles of notes were accepted'' at the official residence of the Defence Minister - something which has not been reported. What has been shown in the tapes and reported in TheHinduis that Ms. Jaya Jaitly, Samata party president, was seen talking to the investigative journalists posing as arms dealers at the Defence Minister's official residence and at one time, when they offered a donation to the party, they were told to give it to the party office-bearer, Mr. Srinivasa Prasada.
Unlike in Mr. Bangaru Laxman's residence where bundles of notes were seen being accepted by him and put away, nowhere has it been seen or reported that bundles of notes passed hands at the Defence Minister's residence. Offer of money and its acceptance in so many words is one thing, actual delivery of bundles of notes and their acceptance is another.
History of CORRUPTION in India
Old-timers will have no difficulty in recalling the `jeep scandal' which erupted when the inimitable V. K. Krishna Menon was the Indian High Commissioner in Britain. Curiously, the scandal related to purchase of jeeps for the Indian Army.
When Krishna Menon's detractors assailed him, the Prime Minister, Jawaharlal Nehru, defended him by saying that the only scandal about it was that it had been called a scandal.
In the wake of the Chinese aggression in 1962, Nehru thundered in Parliament that not a blade of grass grew in those regions. However, V. K. Krishna Menon, then Defence Minister, stepped down from office but the Government continued in office. Even in the earlier infamous Mundhra LIC deal, the then Finance Minister, T. T. Krishnamachari, alone was asked to resign; the Government appointed the Justice Chagla Commission of Enquiry and chose to continue in office.
In the light of these standards of morality practised by the Congress party in the not too remote past, its call for the resignation of the Vajpayee Government on moral grounds is nothing but hypocrisy and duplicity put together.
The tactic of the Congress and other Opposition parties in obstructing and stalling the Parliament proceedings is only a foul means adopted to achieve what they cannot achieve by fair means, apart from being a grossly undemocratic way of rendering a duly-elected and constituted Parliament disfunctional.
When Krishna Menon's detractors assailed him, the Prime Minister, Jawaharlal Nehru, defended him by saying that the only scandal about it was that it had been called a scandal.
In the wake of the Chinese aggression in 1962, Nehru thundered in Parliament that not a blade of grass grew in those regions. However, V. K. Krishna Menon, then Defence Minister, stepped down from office but the Government continued in office. Even in the earlier infamous Mundhra LIC deal, the then Finance Minister, T. T. Krishnamachari, alone was asked to resign; the Government appointed the Justice Chagla Commission of Enquiry and chose to continue in office.
In the light of these standards of morality practised by the Congress party in the not too remote past, its call for the resignation of the Vajpayee Government on moral grounds is nothing but hypocrisy and duplicity put together.
The tactic of the Congress and other Opposition parties in obstructing and stalling the Parliament proceedings is only a foul means adopted to achieve what they cannot achieve by fair means, apart from being a grossly undemocratic way of rendering a duly-elected and constituted Parliament disfunctional.
NHRC GUIDELINES REGARDING ARREST
Need for Guidelines:Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty. Nevertheless the Constitution of India as well as International human rights law recognise the power of the State to arrest any person as a part of its primary role of maintaining law and order. The Constitution requires a just, fair and reasonable procedure established by law under which alone such deprivation of liberty is permissible.Although Article 22(1) of the Constitution provides that every person placed under arrest shall be informed as soon as may be the ground of arrest and shall not be denied the right to consult and be defended by a lawyer of his choice and S.50 of the Code of Criminal Procedure, 1973 (Cr. PC) requires a police officer arresting any person to “forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest”. in actual practice these requirements are observed more in the breach. Likewise, the requirement of production of the arrested person before the court promptly which is mandated both under the Constitution [Article22(2)] and the Cr. PC (Section 57] is also not adhered to strictly.A large number of complaints pertaining to Human Rights violations are in the area of abuse of police powers, particularly those of arrest and detention. It has, therefore, become necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest even while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation.
PRE-ARREST The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafides of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest. [Joginder Kumar's case- (1994) 4 SCC 260).Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case. After Joginder Kumar's pronouncement of the Supreme Court the question whether the power of arrest has been exercised reasonably or not is clearly a justiciable one.Arrest in cognizable cases may be considered justified in one or other of the following circumstances:(i) The case involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law.(ii) The suspect is given to violent behaviour and is likely to commit further offences.(iii) The suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested.(iv) The suspect is a habitual offender who, unless arrested, is likely to commit similar or further offences. [3rd Report of National Police Commission] Except in heinous offences, as mentioned above, an arrest must be avoided if a police officer issues notice to the person to attend the police station and not leave the station without permission. (see Joginder Kumar’s case (1994) SCC 260). The power to arrest must be avoided where the offences are bailable unless there is a strong apprehension of the suspect absconding . Police officers carrying out an arrest or interrogation should bear clear identification and name tags with designations. The particulars of police personnel carrying out the arrest or interrogation should be recorded contemporaneously, in a register kept at the police station.
ARREST As a rule use of force should be avoided while effecting arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person being arrested, visible or otherwise, is avoided. The dignity of the person being arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost. Searches of the person arrested must be done with due respect to the dignity of the person, without force or aggression and with care for the person’s right to privacy. Searches of women should only be made by other women with strict regard to decency. (S.51(2) Cr.PC.) The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law repeatedly explained and mandated in judgment of the Supreme Court in Prem Shanker Shukla v. Delhi Administration [(1980) 3 SCC 526] and Citizen for Democracy v. State of Assam[(1995) 3 SCC 743].As far as is practicable women police officers should be associated where the person or persons being arrested are women. The arrest of women between sunset and sunrise should be avoided.Where children or juveniles are sought to be arrested, no force or beatings should be administered under any circumstances. Police Officers, may for this purpose, associate respectable citizens so that the children or juveniles are not terrorised and minimal coercion is used.Where the arrest is without a warrant, the person arrested has to be immediately informed of the grounds of arrest in a language which he or she understands. Again, for this purpose, the police, if necessary may take the help of respectable citizens. These grounds must have already been recorded in writing in police records. The person arrested should be shown the written reasons as well and also given a copy on demand. (S.50(1) Cr.PC.)The arrested person can, on a request made by him or her, demand that a friend, relative or other person known to him be informed of the fact of his arrest and the place of his detention. The police should record in a register the name of the person so informed. [Joginder Kumar's case (supra)].If a person is arrested for a bailable offence, the police officer should inform him of his entilement to be released on bail so that he may arrange for sureties. (S.50(2) Cr.PC.)Apart from informing the person arrested of the above rights, the police should also inform him of his right to consult and be defended by a lawyer of his choice. He should also be informed that he is entitled to free legal aid at state expense [D.K. Basu's case (1997) 1 SCC].When the person arrested is brought to the police station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of this right. Where the police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in a register. The female requesting for medical help should be examined only by a female registered medical practitioner. (S.53 Cr.PC.)Information regarding the arrest and the place of detention should be communicated by the police officer effecting the arrest without any delay to the police Control Room and District / State Headquarters. There must be a monitoring mechanism working round the clock.As soon as the person is arrested, police officer effecting the arrest shall make a mention of the existence or non-existence of any injury(s) on the person of the arrestee in the register of arrest. If any injuries are found on the person of the arrestee, full description and other particulars as to the manner in which the injuries were caused should be mentioned in the register, which entry shall also be signed by the police officer and the arrestee. At the time of release of the arrestee, a certificate to the above effect under the signature of the police officer shall be issued to the arrestee.If the arrestee has been remanded to police custody under the orders of the court, the arrestee should be subjected to medical examination by a trained Medical Officer every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. At the time of his release from the police custody, the arrestee shall be got medically examined and a certificate shall be issued to him stating therein the factual position of the existence or nonexistence of any injuries on his person.
POST ARRESTThe person under arrest must be produced before the appropriate court within 24 hours of the arrest (Ss 56 and 57 Cr.PC).The person arrested should be permitted to meet his lawyer at any time during the interrogation. The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the Government. The place must be accessible and the relatives or friend of the person arrested must be informed of the place of interrogation taking place. The methods of interrogation must be consistent with the recognised rights to life, dignity and liberty and right against torture and degrading treatment.
ENFORCEMENT OF GUIDELINES1. The guidelines must be translated in as many languages as possible and distributed to every police station. It must also be incorporated in a handbook which should be given to every policeman.2. Guidelines must receive maximum publicity in the print or other electronic media. It should also be prominently displayed on notice board, in more than one language, in every police station.3. The police must set up a complaint redressal mechanism, which will promptly investigate complaints of violation of guidelines and take corrective action.4 The notice board which displays guidelines must also indicate the location of the complaints redressal mechanism and how that body can be approached.5. NGOs and public institutions including courts, hospitals, universities etc., must be involved in the dissemination of these guidelines to ensure the widest possible reach.6. The functioning of the complaint redressal mechanism must be transparent and its reports accessible.7. Prompt action must be taken against errant police officers for violation of the guidelines. This should not be limited to departmental enquiries but also set in motion the criminal justice mechanism.8. Sensitisation and training of police officers is essential for effective implementation of the guidelines.
PRE-ARREST The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafides of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest. [Joginder Kumar's case- (1994) 4 SCC 260).Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case. After Joginder Kumar's pronouncement of the Supreme Court the question whether the power of arrest has been exercised reasonably or not is clearly a justiciable one.Arrest in cognizable cases may be considered justified in one or other of the following circumstances:(i) The case involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law.(ii) The suspect is given to violent behaviour and is likely to commit further offences.(iii) The suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested.(iv) The suspect is a habitual offender who, unless arrested, is likely to commit similar or further offences. [3rd Report of National Police Commission] Except in heinous offences, as mentioned above, an arrest must be avoided if a police officer issues notice to the person to attend the police station and not leave the station without permission. (see Joginder Kumar’s case (1994) SCC 260). The power to arrest must be avoided where the offences are bailable unless there is a strong apprehension of the suspect absconding . Police officers carrying out an arrest or interrogation should bear clear identification and name tags with designations. The particulars of police personnel carrying out the arrest or interrogation should be recorded contemporaneously, in a register kept at the police station.
ARREST As a rule use of force should be avoided while effecting arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person being arrested, visible or otherwise, is avoided. The dignity of the person being arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost. Searches of the person arrested must be done with due respect to the dignity of the person, without force or aggression and with care for the person’s right to privacy. Searches of women should only be made by other women with strict regard to decency. (S.51(2) Cr.PC.) The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law repeatedly explained and mandated in judgment of the Supreme Court in Prem Shanker Shukla v. Delhi Administration [(1980) 3 SCC 526] and Citizen for Democracy v. State of Assam[(1995) 3 SCC 743].As far as is practicable women police officers should be associated where the person or persons being arrested are women. The arrest of women between sunset and sunrise should be avoided.Where children or juveniles are sought to be arrested, no force or beatings should be administered under any circumstances. Police Officers, may for this purpose, associate respectable citizens so that the children or juveniles are not terrorised and minimal coercion is used.Where the arrest is without a warrant, the person arrested has to be immediately informed of the grounds of arrest in a language which he or she understands. Again, for this purpose, the police, if necessary may take the help of respectable citizens. These grounds must have already been recorded in writing in police records. The person arrested should be shown the written reasons as well and also given a copy on demand. (S.50(1) Cr.PC.)The arrested person can, on a request made by him or her, demand that a friend, relative or other person known to him be informed of the fact of his arrest and the place of his detention. The police should record in a register the name of the person so informed. [Joginder Kumar's case (supra)].If a person is arrested for a bailable offence, the police officer should inform him of his entilement to be released on bail so that he may arrange for sureties. (S.50(2) Cr.PC.)Apart from informing the person arrested of the above rights, the police should also inform him of his right to consult and be defended by a lawyer of his choice. He should also be informed that he is entitled to free legal aid at state expense [D.K. Basu's case (1997) 1 SCC].When the person arrested is brought to the police station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of this right. Where the police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in a register. The female requesting for medical help should be examined only by a female registered medical practitioner. (S.53 Cr.PC.)Information regarding the arrest and the place of detention should be communicated by the police officer effecting the arrest without any delay to the police Control Room and District / State Headquarters. There must be a monitoring mechanism working round the clock.As soon as the person is arrested, police officer effecting the arrest shall make a mention of the existence or non-existence of any injury(s) on the person of the arrestee in the register of arrest. If any injuries are found on the person of the arrestee, full description and other particulars as to the manner in which the injuries were caused should be mentioned in the register, which entry shall also be signed by the police officer and the arrestee. At the time of release of the arrestee, a certificate to the above effect under the signature of the police officer shall be issued to the arrestee.If the arrestee has been remanded to police custody under the orders of the court, the arrestee should be subjected to medical examination by a trained Medical Officer every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. At the time of his release from the police custody, the arrestee shall be got medically examined and a certificate shall be issued to him stating therein the factual position of the existence or nonexistence of any injuries on his person.
POST ARRESTThe person under arrest must be produced before the appropriate court within 24 hours of the arrest (Ss 56 and 57 Cr.PC).The person arrested should be permitted to meet his lawyer at any time during the interrogation. The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the Government. The place must be accessible and the relatives or friend of the person arrested must be informed of the place of interrogation taking place. The methods of interrogation must be consistent with the recognised rights to life, dignity and liberty and right against torture and degrading treatment.
ENFORCEMENT OF GUIDELINES1. The guidelines must be translated in as many languages as possible and distributed to every police station. It must also be incorporated in a handbook which should be given to every policeman.2. Guidelines must receive maximum publicity in the print or other electronic media. It should also be prominently displayed on notice board, in more than one language, in every police station.3. The police must set up a complaint redressal mechanism, which will promptly investigate complaints of violation of guidelines and take corrective action.4 The notice board which displays guidelines must also indicate the location of the complaints redressal mechanism and how that body can be approached.5. NGOs and public institutions including courts, hospitals, universities etc., must be involved in the dissemination of these guidelines to ensure the widest possible reach.6. The functioning of the complaint redressal mechanism must be transparent and its reports accessible.7. Prompt action must be taken against errant police officers for violation of the guidelines. This should not be limited to departmental enquiries but also set in motion the criminal justice mechanism.8. Sensitisation and training of police officers is essential for effective implementation of the guidelines.
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