Corruption - Rau's IAS

Meaning of corruption

The word ‘corrupt’ is derived from the Latin word ‘corrupt us’, meaning ‘to break or destroy’.

It can be grand corruption involving persons in high places and retail corruption touching the everyday life of common people.

Factors responsible for corruption over-centralization

A large number of functionaries between the citizen and final decision-makers makes accountability diffused and the temptation to abuse authority strong. For a large democracy, India probably has the smallest number of final decision-makers. Local Government is not allowed to take root and power has been concentrated both horizontally and vertically in a few hands.

Why corruption is wrong

It shows a betrayal of trust
It amounts to an abuse of power
It is a violation of the rights of the subjects
Vitiates the role modelling role of government officials.

Effects of Corruption on the System

Snowballing: corrupt behaviour tends to grow into bigger ones.
Contamination: it tends to infect other colleagues.
Revelation: corruption by media may dilute the public trust.
Radiation: corruption in any organ of the organisation damages the reputation of the whole organisation.

Features of Corruption in India

National Commission to review the working of the constitution’s consultation on PROBITY IN GOVERNANCE identified features of corruption in India-

Corruption in India occurs majorly upstream, not downstream. (Corruption at the top level)
Corruption money in India has wings, not wheels (smuggling corrupt money abroad)
Corruption in India often leads to promotion, not prison.
Corruption in India is the main reason behind inequality.

Reasons for corruption in India

2^nd ARC identifies three main reasons

Colonial legacy
Enormous asymmetry of power in our society
Overregulation

Other reasons

Changing values and desires
Economic causes
Lack of strong public opinion against corruption
Complicated and cumbersome procedures and working
Inadequate laws to deal with corruption
Undue protection is given to civil servants under Article 311
The collusion of politicians, business and bureaucracy.

2^nd ARC Recommendations for Legal Reforms

Enlarging the scope of corruption under the Prevention of Corruption Act:

Gross perversion of the Constitution and democratic institutions amounting to a wilful violation of oath of office.
Abuse of authority unduly favouring or harming someone.
Obstruction of justice.
Squandering public money

Recommendations to Deal with collusive corruption

An offence could be classified as ‘collusive bribery’ if the outcome or intended outcome of the transaction leads to a loss to the state, public or public interest.

The court shall presume that the public servant and the beneficiary of the decision committed an offence of ‘collusive bribery’.

The prior sanction should not be necessary for prosecuting a public servant who has been trapped red-handed or in cases of possessing assets disproportionate to the known sources of income.

The Prevention of Corruption Act should be amended to ensure that sanctioning authorities are not summoned and instead the documents can be obtained and produced before the courts by the appropriate authority.

The Presiding Officer of a House of Legislature should be designated as the sanctioning authority for MPs and MLAs respectively.

The requirement of prior sanction for the prosecution now applicable to serving public servants should also apply to retired public servants for acts performed while in service.

Making civil servants liable for loss

In addition to the penalty in criminal cases, the law should provide that public servants who cause loss to the state or citizens by their corrupt acts should be made liable to make good the loss caused and, in addition, be liable for damages. This could be done by inserting a chapter in the Prevention of Corruption Act.

Fixing a time limit for various stages of trial

A legal provision needs to be introduced fixing a time limit for various stages of the trial. This could be done by amendments to the CrPC.

Constitutional measures

Suitable amendments are effected to Article 105(2) and 194(2) of the Constitution to provide that the immunity enjoyed by Members of Parliament and MLAs does not cover corrupt acts committed by them in connection with their duties in the House or otherwise

Articles 310 and 311 of the Constitution should be repealed and Suitable legislation to provide for all necessary terms and conditions of services should be provided under Article 309, to protect the bona fide actions of public servants taken in the public interest; this should be made applicable to the States. Necessary protection to public servants against arbitrary action should be provided through such legislation under Article 309

Institutional Recommendations to curb corruption

There should be Loka Yukta at all three levels of government with full autonomy and adequate powers along with its cadre with its recruitment and training facilities.

The Anti-Corruption Bureaus should be brought under the control of the State Vigilance Commission.

Modern techniques of investigation should also be deployed like electronic surveillance, video and audio recording of surprise inspections, traps, searches and seizures.

A reasonable time limit for the investigation of different types of cases.

Recommendations related to social infra to curb corruption

Citizens’ Charter should be made effective by stipulating the service levels and also the remedy if these service levels are not met.
Citizens may be involved in the assessment and maintenance of ethics in important government institutions and offices
Reward schemes should be introduced to incentivise citizens’ initiatives.
School awareness programmes should be introduced, highlighting the importance of ethics and how corruption can be combated.
Legislation along the lines of the US False Claims Act should be enacted, providing for citizens and civil society groups to seek legal relief against fraudulent claims against the government. This law should have the following elements:
Any citizen should be able to bring a suit against any person or agency for a false claim against the government.
If the false claim is established in a court of law, then the person or agency responsible shall be liable for a penalty equal to five times the loss sustained by the exchequer or society.
The loss sustained could be monetary or non-monetary in the form of pollution or other social costs. In case of non-monetary loss, the court would have the authority to compute the loss in monetary terms.
The person who brought the suit shall be suitably compensated out of the damages recovered.
It is necessary to evolve norms and practices requiring proper screening of all allegations/complaints by the media, and taking action to put them in the public domain.
The electronic media should evolve a Code of Conduct and a self-regulating mechanism to adhere to a Code of Conduct as a safeguard against salaried action.
Government agencies can help the media in the fight against corruption by disclosing details about corruption cases regularly.
Operational guidelines of all developmental schemes and citizen-centric programmes should provide for a social audit mechanism.

Systemic Recommendations to curb corruption

Reduce monopoly

Each Ministry/Department may undertake an immediate exercise to

to reduce ‘monopoly’ to ensure competition.

Restructuring Centrally Sponsored schemes

Some Centrally Sponsored schemes could be restructured to provide incentives to states that take steps to promote competition in service delivery.

Single window

There is a need to bring simplification of the methods and adopt a ‘single window’ approach, minimizing hierarchical tiers, stipulating time limits for disposal etc.

Positive silence

The principle of ‘positive silence’ should be used, wherever permissions/licenses etc are to be issued, there should be a time limit for processing of the same after which permission, if not already given, should be deemed to have been granted. However, the rules should provide that for each such case the official responsible for the delay.

Integrity pacts

There should be encouragement of the mechanism of integrity pacts.

Annual Performance Report

In the Annual Performance Report of each officer, there should be a column where the officer should indicate the measures he took to control corruption in his office and among subordinates.

Online complaint tracking system

Online complaint tracking system and there should be an external, periodic mechanism of ‘audit’ of complaints in offices having a large public interface.

Capacity building in the anti-corruption agencies.

The utilisation of public fund
Principles of the utilisation of public fund
Law fulness
Accountability
Openness and transparency
Value for money
Sustainability of funding relationships
Fairness
Integrity
Ethical issues involved in the utilisation of public funds
Bailout for business
Running loss-making PSU using public money
Resource distribution across the sectors of health, education etc
Helping others even when our peoples are hungry
Spending money on space missions while people are hungry

Measures Taken to tackle corruption

Prevention of corruption act 1988

What crimes are punished by this law?

When a public servant accepts money or gifts over and above their salary, in return for favouring a person in their official duty.
When a public servant accepts gifts from a person with whom they have a business or official relationship without paying them.
When a public servant is guilty of criminal misconduct such as regularly accepting bribes to favour people during their official duty.
If any person accepts money or gifts in return for influencing the public servant by using his connection or through illegal or corrupt methods, this person can also be punished.
Any person helping the public servant commit these crimes can also be punished.
According to the recent amendment in the act a person offering a gift or a bribe will also be punished
Amendments in 2018. Under the amended Section 8, the offence of giving a bribe has been explicitly recognised.
Protection of Honest Bureaucrats (Amendments in Sections 13, 17A and 19): These clauses are amended to protect the decision makers’ decisions, in the case of Bonafede’s decisions which might result in losses to the public fund.
Whistle Blowers Protection Act 2014

The objectives of such an act, generally, are:

To ensure accountability amongst the public servants by encouraging people not to turn a blind eye to corrupt practices taking place around them and report it to the concerned authority
To protect the whistle-blowers from dismissal and victimization and to protect his/ her identity.

Salient features of WBPA, 2014:

In defining who a whistle-blower is, the law goes beyond government officials who expose corruption they come across in the course of their work. It includes any other person or non-governmental organisation.
It has provisions to conceal the identity of the whistle-blower.
It affords protection against victimisation of the complainant or anyone who renders assistance in an inquiry.

The PBPT Act 1988 defines a “benami transaction” as any transaction in which property is transferred to one person for a consideration paid or provided by another person. The PBPT Act 2016 is an improvement over the 1988 Act on several fronts such as:

It amends the definition of Benami transactions to add other transactions which qualify as benami, such as property transactions where:
The transaction is made under a fictitious name,
The owner is not aware of or denies knowledge of the ownership of the property, or
The person providing the consideration for the property is not traceable.

The basic idea of the institution of Lokpal has been borrowed from the concept of the Ombudsman in countries such as Finland, and Norway, The First Lokpal bill was introduced in 1968. But the Bill lapsed.

In 2011 massive public protests led to the proposal of Jan Lokpal’s bill under the leadership of anti-corruption crusader Anna Hazare, Finally, the Lokpal and Lokayuktas Act 2013 was passed that came into force in January 2014.

Various States such as Rajasthan, Bihar, Karnataka and others have also adopted/ enacted this legislation and established the office of Lokayukta at the state level.

A Lokpal can enquire into offences under the Prevention of Corruption Act, 1988 (PCA) committed by:

the PM with specified safeguards,
current and former Union Ministers,
current and former MPs,
group A, B, C, and D officers,
employees of a company, society or a trust set up by an Act of Parliament, or financed or controlled by the central government.
employees of an association of persons that
has received funding from the government and have an annual income above a specified amount; or
have received public donations and have an annual income above a specified amount or received foreign funding above Rs 10 lakh a year.
An inquiry against the PM has to be held in-camera and approved by a 2/3rd majority of the full bench of the Lokpal. The PM cannot be investigated if the complaint is related to international relations, external and internal security, public order, atomic energy and space.
The Lokayuktas shall have jurisdiction over the CM, Ministers, MLAs, all state government employees and certain private entities (including religious institutions).
The Lokpal’s inquiry wing is required to inquire into complaints within 60 days of their reference.

On considering an inquiry report the Lokpal shall

order an investigation;
initiate departmental proceedings; or close the case and proceed against the complainant for making a false and frivolous complaint.

The investigation shall be completed within 6 months. The Lokpal may initiate prosecution through its prosecution Wing before the Special Court is set up to adjudicate cases. The trial shall be completed within a maximum of two years. The Bill specifies a similar procedure for Lokayuktas.

Information sharing and transparency in government (RTI):

Information sharing refers to the proactive disclosure of information about government policies and functioning by the government to the public at large. In other words, it implies public access to closely held government information.

Transparency refers to designing government processes such that government actions and decisions are not hidden from public view.

Benefits of transparency

Right
Check on favouritism
Check for fraud
Accountability
Equal opportunity

Grounds for checking on information sharing

Security
Privacy

RTI Act 2005

Section- 2 (f): “Information” means any material in any form, including Records, Documents, Memos, e-mails, Opinions, Advice, Press releases, Circulars, Orders, Logbooks, Contracts, Reports, Papers, Samples, Models, Data material held in any electronic form and information relating to any private body which can be accessed by a Public Authority under any other law for the time being in force.
Section- 2(j): “Right to Information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to:
- Inspection of work, documents, and records;
- Taking notes, extracts or certified copies of documents or records;
- Taking certified samples of material;
- Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or any other device.

What is Public Authority?

“Public authority” means any authority or body or institution of self-government established or constituted—

by or under the Constitution;
by any other law made by Parliament/State Legislature.
by notification issued or order made by the appropriate Government, and includes any—
- body owned, controlled or substantially financed;
- non-Government organisations are substantially financed, directly or indirectly by funds provided by the appropriate Government.
Section 4 of the RTI Act requires suo motu disclosure of information by each public authority. However, such disclosures have remained less than satisfactory.
Section 8 (1) mentions exemptions against furnishing information under RTI Act.
Section 8 (2) provides for disclosure of information exempted under the Official Secrets Act, 1923 if a larger public interest is served.
The Act also provides for the appointment of Information Commissioners at the Central and State levels. Public authorities have designated some of its officers as Public Information Officers. They are responsible to give information to a person who seeks information under the RTI Act.
Period: In the normal course, information to an applicant is to be supplied within 30 days from the receipt of the application by the public authority.
- If the information sought concerns the life or liberty of a person, it shall be supplied within 48 hours.
- In case the application is sent through the Assistant Public Information Officer or it is sent to the wrong public authority, five days shall be added to the period of thirty days or 48 hours, as the case may be.

Unintended benefits of RTI

Better public service delivery
Reminds public servants about their duty

Challenges in the implementation of RTI

Demand side challenges

Lack of awareness
Psychological barrier
Inability to draft an application

Supply-side challenges

Non-cataloguing
Lack of training
Attitude of secrecy

Way forward Role of a civil servant to promote the spirit of RTI

Proactive disclosure
Public access to the file
Information day
Public awareness
Dedicated RTI section
E- RTI