CORRUPTION
THE ASSASSIN OF RULE OF LAW IN INDIA
by Shiladitya Goswami1
“Corruption is like a hidden tiger in the bushes, waiting to pounce on the deer (rule of law), catch it by the neck and finally strangulate it to death. Unless the tiger is caged it will continue to wreak havoc.”
Medicine
equipment Scam (Rs 5000 crores), Wakof Scam (Rs 1600 crores), Fodder scam (Rs
1000 crores), Share scam (Rs 1000crores), Bofor Scam (Rs 65 crores)*.2 These
are some mind-boggling facts of corruption in India, but beware, this is
only the tip of the ice burg. Today whenever we enter in a discussion about
the factors hampering the development of our country, we without fail
mention the word ‘corruption’. So, what does corruption mean? Abuse of
public power for private gains is described as corruption3.
But this appears to be too simplistic an explanation of corruption. In fact
it is a multi-faceted evil, which gradually kills a system. Another
definition of corruption is dishonest or illegal behaviour, especially of
people in authority4.
To understand the far-reaching effects of corruption, it is important here
to mention the observations of the Supreme Court in a recent judgment. The
apex court in
Sri Ram Singh’s Case5 observed
that,
“Corruption in a civilised society is like cancer, which if not detected in time is sure to malignise the polity of the country leading to disastrous consequences. It is termed as a plague, which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but also aimed and targeted at them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence social, economic, and political system in an otherwise healthy, wealthy, effective and vibrating society”.
Further the article substantiates on the concept of rule of law. The essence of rule of law is equality before law or equal protection of law and protection from arbitrary exercise of power by the State. For a democratic government, the rule of law is the basic requirement, and for the maintenance of rule of law, there must be an independent, impartial and independent judiciary. It has been held that the rule of law is a basic feature of the Constitution and cannot be taken away even by an amendment of the Constitution.6 Rule of law has been enunciated in a manner, which provides that the State shall not deny to any person equality before law or the equal protection of laws.
Coming to the crux of the matter the article is an attempt to understand ‘how corruption is the assassin of rule of law in India’? To understand the gravity of the situation it is important to understand the following aspects.
Perspective of Indians
India has repeatedly been tagged as one of the most corrupt nations in the study of world phenomenon of corruption. Unfortunately, this fact has hardly disturbed any of us at all and we do not seem to care as to what others think of us, as long as the existing systems and practices would allow us to make money and get things done by hook or crook. Today corruption has become part of our social psyche and behaviour. People often approach someone known to them for favours, knowing fully that it is not legally due to them. Further, a person who has acquired wealth through unfair means is often accorded the same, if not higher, status in Indian society as that given to persons of excellence.
The most disquieting aspect of the widespread corruption in India is the fact that it is not any more confined to the polity only but it has firmly gripped populace, due to greed or due to so called compulsion.
Often citizens are not even aware that their practices can be classified as corrupt. “The increase in corruption runs contrary to the orthodox theory that corruption should decline with economic development. It seems that this happens because with economic development and liberalization, the number of needs do not remain constant but multiply. Thus, around ten years back adequate food; sufficient clothing, shelter and a transistor might have been considered to be essential for an average urban dweller. Now we need to add a television, a phone and a motorized vehicle to the list.”7
Ironically India is still considered to be a very religious country and it’s still widely believed that religion is the basis of Indian life, thoughts and actions. But are religious ethos not contrary to corruption and dishonest practices?
Today Indians have turned a deaf ear to the sounds of guilt, which the conscience undoubtedly echoes when they get involved in corrupt practices.
Rot in the pillar
The Shamit Mukerjee scandal shocked our conscience and lead to the questioning the ‘sanctity’ of the higher Indian judiciary.
The judiciary is a pillar of rule of law. Unless its house is in order, it cannot exercise effective control over the Executive and the Legislature. The judiciary is accountable to the citizens, and has on so many occasions emerged as the knight in shining armor for the weak and oppressed.
Corruption at any level is damaging, however it has a debilitating effect at the grassroots level of the judicial system. A former Chief Justice of India, in course of his tenure, was frank enough to admit that there was corruption in the ranks of the judiciary to some extent, mostly at the lower levels.”8 Anti-corruption laws such as the Prevention of Corruption Acts, 1947 and 1988, have not really succeeded in checking corruption. The constitutional provision for impeachment of judges of High Courts and of the Supreme Court is impracticable, leading to rampant corruption in the judiciary and undermining its credibility. The reason for this situation is not difficult to make out as the judiciary enjoys enormous powers without much accountability.
The disease of judicial corruption has, therefore to be tackled by other methods before it assumes epic proportions.
The need for an alternative method of getting rid of judges of doubtful integrity is urgently needed, it is possible to fight corruption in the judiciary, only if changes are made in the Constitution for premature retirement of public servants in public interest on the ground of doubtful integrity regardless of the length of service put in. The power to retire will have to be in the hands of the judiciary itself to maintain its independence. The view expressed by the Supreme Court in O.P. Bhandari v. ITDC Ltd. (1986)9 suggests that such a provision will be valid.
Getting rid of the undesirable elements alone is not enough. The most deserving candidates must fill up the resultant vacancies by amending the rules of recruitment at the entry point. The first few national law universities have changed the face of legal education in India, leading to many positive results. To improve the quality of justice at the level of subordinate judiciary, there needs to be reform in the training imparted to aspiring judges. To encourage the toppers to go in for a judicial career, a system of quick promotions should be introduced, the basis of which should be merit, performance and especially integrity.
How corruption is hampering the rule of law in India
Democracy means rule of law and it is the primary duty of the government to ensure that the rule of law is obeyed. Wherever rule of law is broken, corruption and injustice will flourish. Every unpunished crime will give birth to a thousand new crimes, creating conditions of anarchy. Corruption corrodes the values people cherish and projects the State as predatory and unjust. Corruption tends to undercut the legitimacy of the State and make a mockery of the rule of law. What is most disturbing is that the public services, which are generated through the money paid by a vast majority of the population, are truly enjoyed only by a few. In brief, a predictable consequence of corruption is the diversion of services and staff attention from the haves and have not’s.
Corruption, which springs from the basic human tendency of greed, distorts the whole process of law at each stage:
“The first stage in the dynamics of the rule of law is the framing of the rules and laws. The basic defect in the manner in which the candidates are elected to the legislature has its impact on the law making. Corruption distorts not only the composition of the legislatures but also the process of law making and implementation.
The second stage in the dynamics in the rule of law is implementation. The implementation of the rule of law can be seen from three different angles. The first relates to the implementation of the rule of law so far as basic law and order is concerned. The second relates to the set of economic offences. The third relates to implementation of social legislation. “It is here we find many examples of how the process gets distorted by the culture of corruption.
The third stage in the dynamics in the rule of law is interpretation of law by the judiciary. It is observed that some of the recent initiatives taken by the Supreme Court, especially in matters relating to elections have brought home the fact that the judiciary can play an effective role in ensuring that the real spirit of democracy is observed and the citizen rights are not tampered with.”10
Due to corruption, the very constitutional institutions, which are supposed to protect and uphold liberty and rule of law, turn against them. Therefore to the majority of Indians, the only way left is resorting to the local mafia, who are more than willing to dispense rough and ready justice for a price, leading to criminalisation of Indian society.
Rule of law and access to justice are the very essence of a modern democracy and without them we can not call ourselves a great democracy in any sense.
The parties to the Criminal Law Convention expressly acknowledge that “corruption threatens the rule of law, democracy and human rights, undermines governance, fairness and social justice, distorts competition, hinders economic growth and endangers the stability of democratic institutions and moral foundations of society” (Council of Europe, Preamble to the Criminal Law Convention on Corruption, 2000).
So just as predator kills the pray, Corruption kills Rule of Law therefore wherever corruption exists rule of law has no place there.
Fighting Corruption
To fight corruption, honest political leadership is a must as a first step. Those holding positions of consequence should not compromise with the aspects of good governance for the sake of holding the chair for a few numbers of days more. And secondly opening the economy to investors around the world can provide the needed capital and should reduce government control. Fresh ideas and entrepreneurial spirit has to replace the beauracratic government control for a wealthier society. Another essential component of anti-corruption strategy is the strict enforcement of the principle of accountability at all levels. In India decisions regarding public matters are taken at various levels of government in which discretionary power may be involved but there is general lack of accountability in administration.
The judiciary has a key role in ensuring that political and administrative power is used only in accordance with law and every one is held accountable for wrongdoing or misuse of authority. Further delay is one of the major causes of corruption. Therefore to reduce or control corruption it is necessary to eliminate such delays.
Even though efforts like the CBI’s nationwide raid on 7th April 2005 and Prevention of Corruption Act, Indian Penal Code and the Wireless Act are laudable, but it is clearly evident that it is not enough.
Our anti-corruption strategies should be made keeping in mind the following three points:
(i) Simplification of governmental hierarchy keeping accountability in focus; (ii) greater transparency and empowerment of the public and (iii) effective deterrence and punishment. In this strategy citizen participation has a key role.
Conclusion
Corruption is like a hidden tiger in the bushes, just waiting to pounce on the deer (rule of law), catch it by the neck and finally strangulate it to death. It has seeped into every stream of India’s life-blood. India is not a country endowed with surplus resources. Even in normal circumstance the share of the poor is itself very low, but when corruption comes into the picture just imagine what is left for the poor. So, corruption more than anything else aggravates the rich and poor divide. Further, corruption is an assault on consciousness. So,is it not wise to have a clean conscience and enjoy freedom from anxiety and all kinds of worries?
Corruption is the murderer of Rule of Law, unless corruption is jailed and eventually hanged, the future of this country is not bright. Contrarily, if the amount of resources that are lost every year in corrupt practices are used in the developmental work of the nation then it is not difficult to imagine where India can reach.
1. Student, II year, NLIU (National Law Institute University), Bhopal.
2. Virat Teja Varanasi, Facts and figures about INDIAN CORRUPTION, Yahoo! Groups (jbietstudents), Tue May 17, 2005.
* Rajiv Gandhi has been absolved of the allegations.
3. World Bank Report 1997
4. Oxford Advanced Learners Dictionary, sixth edition, 2000, Oxford University Press 2002, edited by Salley Wehmeir
5. State of Madhya Pradesh v. Shri Ram Singh, AIR 2000 SC 870.
6. Indira Nehru Gandhi v.Raj Narain, AIR 1975 SC 2295, see also S.P. Gupta v. Union of India, AIR 1982 SC 149.
7. Sidhartha Mishra, Evaluating the state of Indian governance, NCAER Industry briefs, 21st October 2003.
8. P.P Rao, Combating corruption in the judiciary, PUCL Bulletin, July 2003.
9. 1993 (SC – 2) – GJX - 0316 - Sc.
10. Shri N. Vittal, former Chief Vigilance Commissioner, Government of India said while delivering the sixth lecture of the series on “Corruption and the Rule of Law” on 17th July 2004.