What is Corruption ? In spite of its prominence through the ages, corruption remains difficult to define. In India, even in 4th century B.C. ‘Corruption’ had been a key theme as reflected in Kautilya’s Arthashastra,[1] an ancient Hindu treatise on statecraft, economic policy and military strategy penned during the time. The U. N. Convention against Corruption (adopted 9 December 2003, entered into force 14 December 2005) - General Assembly Resolution defines- ‘Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish ’.[2]
Corruption is a multifaceted concept. There is no universally accepted definition of ‘corruption’ and there has been disagreement as to what specific acts constitute corruption as a conduct. A thorny and loaded term, it has been said that corruption is like an elephant – though it may be difficult to describe, it is generally not difficult to recognise when observed. A standard and oft-cited definition of corruption and universally accepted one is that it is constituted by ‘an act in which the power of public office is used for personal gain.’
Corruption is derived from the Latin verb rumpere, to break. According to this approach, corruption is where the law is clearly broken. This requires that all laws must be precisely stated, leaving no doubts about their meaning and no discretion to the public officials. A legal interpretation of corruption provides a clearly demarcated boundary between what is a corrupt activity and what is not. ‘If an official’s act is prohibited by laws established by the government, it is corrupt; if it is not prohibited, it is not corrupt even if it is abusive or unethical’. John A. Gardiner[3]
According to Black’s Law Dictionery Corruption means- Illegality; a vicious and fraudulent intention to evade the prohibitions of the law. The act of an official or fiduciary person who unlawfully and wrongfully uses his official position or character to procure some benefit for himself or for another person, contrary to duty and the rights of others. [4]
As per the Transparency International (TI); Corruption is operationally defined as the misuse of entrusted power for private gain or the use of public office for private gain. In other words, use of official position, rank or status by an office bearer for his/her own personal benefit. Therefore the corrupt behaviour would include, bribery, fraud, stealing the public resources, partiality/favouritism, seizure of public assets for private use, etc. Transparency International (TI) further differentiates between “according to rule” corruption and “against the rule” corruption.
Facilitation payments, where a bribe is paid to receive preferential treatment for something that the bribe receiver is required to do by law, constitute the former. The latter, on the other hand, is a bribe paid to obtain service.
According to Oxford Dictionary[5] Corruption means Dishonest or illegal behaviour, decomposition, moral deterioration etc. The Encyclopedia Americana gives a very broad definition of corruption as ‘the unsanctioned use of public/political resources and/or goods for non-public ends. The World Bank, in its attempt to define corruption, held it as ‘diversion of state revenues’. The characteristics of corruption give rise to a stylized equation following Klitgaard (1991):-
Corruption = Monopoly Power + Discretion – Accountability- Transperancy of decision –making.[6]
The causes of corruption are many and complex. Following are some of the causes of corruption : -
* Surfacing of political class whose interest is more self oriented rather than nation- oriented programmes and policies.
* Artificial scarcity created by the people with mala fide intentions damages the fabric of the economy.
* Corruption is caused as well as increased because of the change in the value system and ethical qualities of men who administer. The old ideals of morality, service and honesty are regarded as anachronistic.
* Tolerance of people towards corruption, complete lack of intense public uproar against corruption and the absence of strong public forum to oppose corruption allow corruption to reign over people.
* Vast size of population coupled with widespread illiteracy and the poor economic infrastructure lead to endemic corruption in public life.
* In a highly inflationary economy, low salaries of government officials compel them to resort to the road of corruption. Private sector software experts or IIM graduates draw a far handsome salary than what government secretaries draw.
* Complex laws and procedures alienate common people and make them hasitnant to ask for any help from government.
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* Election time is a time when corruption is at its peak level. Big industrialists fund politicians to meet high cost of election and ultimately to seek personal favour. Bribery to politicians buys influence, and bribery by politicians buys votes. In order to get elected, politicians bribe poor illiterate people, who are slogging for two times meal.[7]
Corruption affects India at all levels of Governmental decision –making. In 2013 India has ranked 94th out of 177 countries in Transparency International's Corruption Perceptions Index.[8] Corruption in India not only poses a significant danger to the quality of governance, but also threatens in an accelerated manner the very foundations of its democracy and statehood. The recent revelations of corrupt practices in defense purchases, Parliament horse trading and distribution of 2G Spectrum not only tend to undermine the security of the Indian state, but also fundamentally shake the people’s trust and belief in the Government of India and its institutions.
Lot can be gathered about the prevalence of corruption in ancient India from the text ‘Arthashastra’(c. 280 BC) by Kautilya who was a minister in the Kingdom of Chandragupta Maurya (324/321- 297 Before the Common Era). Artahshastra provides a list of 40 kinds of embezzlement. In all these cases, the concerned functionaries such as the treasurer (nidhayaka), the prescriber (nibandhaka), the receiver (pratigrahaka), the payer (dayak), the person who caused the payment (dapaka) and the ministerial servants (mantri-vaiyavrityakara) were to be separately interrogated.[9] In case any of these officials were to lie, their punishment was to be enhanced to the level meted out to the chief officer (yukta) mainly responsible for the crime. After the enquiry, a public proclamation (prachara) was to be made asking the common people to claim compensation in case they were aggrieved and suffered from the embezzlement. Thus, Kautilya was concerned about carrying the cases of fraud to their logical conclusion. The Arthashastra states that an increase in expenditure and lower revenue collection (parihapan) was an indication of embezzlement of funds by corrupt officials
The Arthashastra of Kautilya thus shows that the ancient system of governance and administration was quite contemporary in operational guidelines when dealing with corruption. It also quite convincingly demonstrates that corruption is not an exclusive feature of modern times alone. The fact that the menace has survived and thrived through the ages speaks volumes about its endurance. Governments of all historical eras have recognised its illegality and devised legal instruments to tackle the problem, but they have not been able to overcome its spread as well as acceptability in society.[10]
The various modern legislations to combat corruption in India are as follows:-
1. THE PREVENTION OF CORRUPTION ACT 1947 (Since repealed) :- The Prevention of Corruption Act 1947, which was probably the first exclusive legislation of India for combating corruption in public life, was repealed by the enactment of The Prevention of Corruption Act 1988.
2. THE PREVENTION OF CORRUPTION ACT 1988 (Act No. 49 of 1988) :- To deal with corruption amongst public servants, Indian Parliament enacted Prevention of Corruption Act 1988, replacing Prevention of Corruption Act 1947. The Prevention of Corruption Act 1988 was enacted to consolidate different anti-corruption provisions from various pieces of legislation under one umbrella and to make them more effective. It came into effect on and from the 9th day of September, 1988. It has incorporated within it, the Prevention of Corruption Act, 1947, The Criminal Law Amendment Act,1952 and sections 161 to 165A of The Indian Penal Code,1960 with minor modifications.
In Govt. of Andhra Pradesh and Ors. Etc. Etc. Vs. P. Venku Reddey,[11] The Court also observed- “ It cannot be lost sight of that the 1988 Act, as its predecessor that is the repealed Act of 1947 on the same subject, was brought into force with avowed purpose of effective prevention of bribery and corruption.” The Act of 1988 which repeals and replaces the Act of 1947 contains a very wide definition of 'public servant' in Clause, (c) of section 2 of the 1988 Act.
3. THE PREVENTION OF MONEY LAUNDERING ACT,2002 :-
The Prevention of Money Laundering Act, 2002 (PMLA) forms the core of the legal framework put in place by India to combat money laundering. PMLA and the Rules notified there under came into force with effect from July 1, 2005. The PMLA and rules notified thereunder impose obligation on banking companies, financial institutions and intermediaries to verify identity of clients, maintain records and furnish information to FIU-IND. PMLA defines money laundering offence and provides for the freezing, seizure and confiscation of the proceeds of crime.
4.THE FOREIGN EXCHANGE MANAGEMENT ACT 1999 :-
The Foreign Exchange Management Act,1999 (FEMA) has been introduced as a replacement for earlier Foreign Exchange Regulation Act (FERA). FEMA came into force on the 1st day of June,2000.
The main objective behind the Foreign Exchange Management Act,1999 (FEMA) is to consolidate and mend the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India.
FEMA is applicable to the all parts of India. The Act is also applicable to all branches, offices and agencies outside India or controlled by a person who is resident of India.
5. OFFICIAL SECRETS ACT,1923 :-
Official Secrets Act, 1923 was passed by the Legislative Council in April, 1923 which was twice amended in the years 1951 and 1967. The act was enacted with the object to protect the British executives in India from public accountability. British had the strategy to deal with all public affairs internally and allowed only the senior officers to explain the Government policy. The Indian version of the act was a mere duplication of the Official Secrets Act, 1889 of Britain.
6. THE RIGHT TO INFORMATION ACT,2005 :-
The Right to Information Act, 2005 was passed by Parliament on 15 June 2005 and it has come into force w.e.f. 12 Oct 2005 all over India (except the state of Jammu & Kashmir who has her own law in this regard). The RTI Act is a comprehensive legislation that would confer statutory rights on citizens for seeking information from public authorities. The Act is expected to usher in a new era of governance and promote more transparency and accountability.
According to former Attorney General Soli Sorabjee, "Lack of transparency was one of the main causes for all pervading corruption and Right to Information would lead to openness, accountability and integrity."
7. THE INFORMATION TECHNOLOGY ACT,2000 :-
This is an Act to provide recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper based methods of communication and shortage of information, to facilitate electronic filing of documents with the government agencies and further to amend the Indian Penal Code 1860, The Indian Evidence Act, 1872, The Banker’s Books Evidence Act,1891 and The Reserve Bank of India Act,1934 and for matters connected therewith or incidental thereto.
The Information Technology Act, 2000, came into force with effect from 17th October, 2000. It has been amended in 2008 and the Amended Act is effective from February 5, 2009. The Rules under the Amended Act have also been framed, which became effective from October 27, 2009.
Recently in a landmark judgement on 24 th March,2015, the Supreme Court of India has held Sec.66A of the Act as unconstitutional. (Shreya Singhal Vs. Union of India)
8. CENTRAL VIGILANCE COMMISSION ACT,2003 :
It was set up by the Govt. of India in February, 1964 on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam, to advise and guide Central Government agencies in the field of vigilance. The Ordinance of 1998 conferred statutory status to the CVC. The Bill was re-introduced in 1999 and remained with the Parliament till September 2003, when it became an Act after being duly passed in both the Houses of Parliament.
9. DELHI SPECIAL POLICE ESTABLISHMENT ACT (XXV of 1946) [12]:
The organization known as the Special Police Establishment (S.P.E.) was created under a Deputy Inspector- General of Police by the Government of India, in 1941, by an executive order. The functions of the S.P.E. were to investigate cases of bribery and corruption in transactions with which the War and Supply Department of the Government of India was concerned. The superintendence of the S.P.E. was vested in the then War and Supply Department. Towards the end of 1942, the activities of the S.P.E. were extended to include cases of corruption in the Railways also, presumably because the Railways were strategically concerned with the movement and supply of war material.
The Central Bureau of Investigation (CBI) was established vide Resolution No. 4/31/61-T, dated 1st April, 1963 of the Ministry of Home Affairs, Government of India under the Delhi Special Police Establishment Act.
10. THE JUDGES (INQUIRY) ACT,1968 :- This act was enacted for the main purpose of controlling corruption and nepotism in Indian Judiciary. The Preamble of the act says that this is “ An Act to regulate the procedure for the investigation and proof of the misbehavior or incapacity of a judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith.”
11. THE LOKPAL AND LOKAYUKTAS ACT,2013 :
The Lokpal Act, is an anti-corruption Act of Indian Parliament in India which "seeks to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functioneris and for matters connecting them".
The bill was tabled in the Loka Sabha on 22 December 2011 and was passed by the house on 27 December 2011 as The Lokpal andLokayuktas Bill, 2011. The bill was passed in the Rajya Sabha on 17 December 2013 after making certain amendments to the earlier Bill and in the Lok Sabha on 18 December 2013. The Bill received assent from President on 1 January 2014 and came into force from 16 January 2014.
Though beside this there are several state laws regarding Lokayuktas in some of the States of our Country which are already in force :-
22. Assam Lokayukta and Upalokayuktas Act,1985
23. Bihar Lokayukta Act,1973
24. Delhi Lokayukta and Upalokayukta Act,1995
25. Haryana Lokayukta Act,2002
26. Himachal Pradesh Lokayukta Act,2001
27. Karnataka Lokayukta Act,1984
28. Kerala Lokayukta Act,1999
29. Rajasthan Lokayukta and Upalokayuktas Act,1973
30. Uttar Pradesh Lokayukta and Upalokayuktas Act,1975.
12. WHISTLE BLOWER’S PROTECTION ACT,2011 :
Whistle Blowers Protection Act, 2011 is an Act of the Parliament of India which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects and offices. The wrongdoing might take the form of fraud, corruption or mismanagement. The Act will also ensure punishment for false or frivolous complaints.
The Act was approved by the Cabinet of India as part of a drive to eliminate corruption in the country's bureaucracy and passed by the Lok sabha on 27th December 2011. The Bill was passed by Rajya Sabha on 21 February 2014 and received the President’s assent on 9 May 2014.
Judgements and PRECEDENTS :- . Corruption is an obvious existence in all the three pillars of Indian democracy and as such the process of minimization of the same has to be sustaining, continuous and dynamic. We have to remember that each and every case of corruption has to end with a proper legal procedure and hence the final verdict has to come from a court of law. As such the role and the trends of interpretation by the various Indian Courts specially the Supreme court of India is worth analyzing.
In DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN SINGH AND ANR.[13] Justice Ashoke Ganguly as His Lordship then was observed inter-alia …. “Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law…..”
In the most recent and probably in one of the biggest landmark judgement, on 27th September,2013, in Writ Petition (Civil) No. 161 of 2004, PEOPLE’S UNION FOR CIVIL LIBERTIES & ANR. Vs. UNION OF INDIA & ANR….The Hon’ble Supreme Court of India discussed and analysed the right of the electorate “not to vote” any of the candidate in any particular election, if according to him/ her none of the candidates contesting worth voting.
Finally going another step further to cleanse the Indian Politics from corruption and criminalisation, the Supreme court on 10th day of July,2013 struck down sub section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the Constitution. In Writ Petition (CIVIL) No. 490 OF 2005, LILY THOMAS Vs. UNION OF INDIA & ORS. the Hon’ble Supreme Court of India held that chargesheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before. A Bench of Justices A.K. Patnaik and S. J. Mukhopadhaya struck down as unconstitutional Section 8 (4)[14] of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. [15]
Corruption is an intractable problem. It can only be controlled, but can not be totally eliminated. It may not be possible to root out corruption completely at all levels but it is possible to contain it within tolerable limits. Honest and dedicated persons in public life, control over electoral expenses and candidature could be the most important prescriptions to combat corruption. Corruption has a corrosive impact on our economy. It worsens our image in international market and leads to loss of overseas opportunities. Corruption is a global problem that all countries of the world have to confront, solutions, however, can only be state and region specific. The people have tolerated corruption for so long. The time has now come to root it out from its roots.
[1] “Just as fish moving under water cannot possibly be found either as drinking or not drinking water, so government servants employed in the government work cannot be found (while) taking money (for themselves)” – Chanakya [Arthashastra, Chapter IX, “Examination of the Conduct of Government Servants” in Book II, “The Duties of Government Superintendents”]
[2] United Nations Office on Drug and Crime – United Nations Convention Against Corruption, V.04-56160—September 2004—2,000
[3] John A. Gardiner, “Defining Corruption,” Corruption and Reform, Vol. 7, no. 2 (1993): 111–124
[4] Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.
[5] Compact Oxford Reference Dictionary,2001
[6] Corruption In a Nutshell Part 1 - a formula for Corruption By VIKRAM KARVE, Vikram Karve 10/06/2012 10:59:00 PMhttp://karvediat.blogspot.in/2012/10/corruption-in-nutshell-part-1-formula.html
[7] Essay on Causes of Corruption and Its Remedies by Sanjeet at 12:41 P.M. , 24/10/2010 (http://essay-sanjeet.blogspot.in/2010/10/essay-on-causes-of-corruption-and-its.html)
[8] See more on - http://cpi.transparency.org/cpi2013/results/
[9] http://www.idsa.in/issuebrief/CorruptioninAdministrationEvaluatingtheKautilyanAntecedents_TarunKumar_121012
[10] Corruption in Administration: Evaluating the Kautilyan Antecedents --- Tarun Kumar-- October 12, 2012
11 Section 31 in The Prevention Of Corruption Act, 1988 says : Omission of certain sections of Act 45 of 1860.- Sections 161 to 165A (both inclusive) of the Indian Penal Code shall be omitted, and section 6 of the General Clauses Act, 1897 (10 of 1897.), shall apply to such omission as if the said sections had been repealed by a Central Act.
[12] Constitution and organization of CBI from http://cbi.nic.in/aboutus/manuals/Chapter_1.pdf
[13] [2012] INSC 73 (31 January 2012)
[14]. Sec.8 (4). - Notwithstanding anything 8[in sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
[15] MPs, MLAs to be disqualified on date of criminal conviction, The Hindu, July,11,2013.
photo - https://pixabay.com/illustrations/no-corruption-stop-corruption-4650589/
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