| Tackling corruption – will it become easier now? | |||
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By: Ganesh Sovani February 14, 2007 Views expressed here are author’s own and not of this website. Full disclaimer is at the bottom. 
Feedback(The author is an Advocate at the Bombay High Court) If one were to describe corruption, it can best be described in the simplest way as ‘use of a public office, for a private gain’! Quite sadly, since independence, no serious effort has ever been made by anyone to tackle the menace of corruption in our country, which has been by now virtually institutionalized all over the country. The report prepared by Berlin (Germany) based NGO, ‘Transparency International’ puts India at 69th place in 1999, at 72nd place in 2002 and at 83rd place in 2004 in terms of Corruption Perception Index amongst 176 members of the United Nations. This dipping of India’s rating with the passage of time is quite alarming for the country. On the other hand countries like Singapore, Australia, Denmark, Norway, Sweden, etc. which have phenomenal per capita income or the GDP growth rate, if compared with India are perceived to be the least corrupt countries in the world, thereby giving a credence to a mathematical theory that the corruption is disproportionate to progress. Lesser the corruption, more progress and higher the corruption, lesser the progress! According to N.C. Vittal, the former Central Vigilance Commission chief, the enormity of corruption in India is so high that the black money which accounts 40% of our Gross Domestic Product (GDP) is sustaining life blood of corruption in our country. The CVC itself came into existence in 1964 upon the recommendation of Santhanam Committee which was appointed in the wake of Mundhra Scandal during the Nehruvian era ! Till Apex Court delivered its verdict in Hawala Case, CVC was merely playing as an advisory role. But this verdict conferred upon a statutory status to the CVC and it also derived the powers of a supervisory role over the functioning of the Central Bureau of Investigation & Directorate of Enforcement as well, which are entrusted with the investigation of large number of cases involving financial irregularities. In his excellent paper captioned ‘Corruption & the Rule of Law’, Mr. N.C. Vittal says it is our electoral process, which is mainly responsible for starting a vicious cycle of corruption in our country. He exemplifies his proposition theory by saying that the political corruption leads to the bureaucratic corruption, which in turn leads to business corruption and finally culminate into the criminalization of politics’. Our defective electioneering system is such that the dons like Shahabuddin, Vikas @ Pappu Yadav from Bihar and Rajju Bhayya from UP could easily get elected with thumping majority while being in jail as under trial prisoners. Thanks to both money and muscle powers which they have amassed over the years, due the political patronage which they have enjoyed in their respective states and perhaps in Delhi as well. Although the findings of the Vora Committee appointed during the tenure of late P.V. Narasimha Rao as the prime minister to find out politicians – criminal nexus submitted its report almost a decade ago, no concrete initiative has been taken by the successive ministries at Center to seek its implementation. Even Lal Krishna Advani, who was on the forefront in demanding the Vora committee findings, more particularly its annexure enlisting the list of criminals enjoying the political patronage be made public, when Inder Kumar Gujral and Deve Gowda were PM, hardly took any firm step in acting upon the Vora Committee’s recommendations, when BJP led NDA government came into power. As a matter of fact, the BJP literally invited the wrath of the media when its then general secretary Pramod Mahajan roped in UP’s most infamous don D.P. Yadav in early 2004 prior to fourteenth Parliamentary poll. Finally outburst of the BJP in media finally led to dislodging of D.P. Yadav whose tenure lasted for barely four days in a party, which is often trumpeted for moralistic values and principles. The independence scenario indicates that the political parties over the years are benevolent while fielding in mafia dons in various kinds of elections due their ability to win and also the amount of funds they can infuse into the party. In return, the political parties offer them both patronage and protection from not being harassed, if not of being convicted. According to the survey published by India Today couple of years ago, out of 5,539 candidates who contested 2002 Uttar Pradesh assembly elections, 965 were having serious criminal records. It further mentioned that 39 members of 12th Parliament constituted after 1996 general election had were implicated in serious criminal offences like murder or dacoit, or rape cases. This figure had further swollen to 72, after 1999 Parliamentary elections. The principle reason for criminals entering politics is for deriving a sphere of influence which would ultimately help in dropping and / or delaying the criminal cases which they are facing. These days, if any criminal is finding it difficult to be in political fray, then his close relatives are encouraged to don the political mantle. Arun Gawali’s daughter, who would be contesting the Mumbai’s municipal corporation election from Agripada municipal ward, at the age of twenty six is having assets worth Rs. 35 lakhs! Has anyone including our over enthusiastic media has a courage to question her source of income ? Certainly not ! One hardly recollects any single step by the central government or even a recommendation made by any political party having national level presence, whereby a serious effort or thought has been made or given by it to eradicate the evil of corruption which has now reached to frightening proportions in all spheres of our life. Shashi Tharoor, an Indian diplomat on UN mission, in his classic book ‘From Midnight to the Millennium’ (Arcade Publishers, New York) suggests that “the permit-license-quota Raj” a concept fostered during Jawaharlal Nehru’s period gave to birth to the concept of bureaucratic corruption in India and goes on to add that rot was more set in when Indira Gandhi took over the premiership of the country. What happened during Rajiv Gandhi’s tenure when Bofors scandal rocked the nation is now a part of the history. However, we have amongst us Rajiv Shukla , journalist turned Congress MP from Rajya Sabha who has wisdom in questioning the spending of Rs. 200 crores by the CBI for investigating Bofors scam which was barely to the tune of Rs. 65 crores! All this manifests how serious our political parties are in tackling the corruption. The blame for today’s scenario is squarely placed on the politicians who were once likened to a cancer by India’s election commissioner J.M. Lyngdoh. Their inherent corrupt mind sent, coupled with their opportunistic attitude, complete absence of moral restraint, least regard for the rule of law are regarded as mainly responsible for the sordid state of affairs of our country. One hardly recollects any famous (or infamous?) case or trial, where a politician has been sent behind the bars on the corruption charges ! Till this date, it had become virtually impossible in bringing any heavy weight politicians to the book without delay. Thanks to the kind of immunity which they have enjoyed by virtue of Section 19 of The Prevention of Corruption Act – 1988 from being prosecuted in absence of government sanction. The prosecutions of former TN chief minister J. Jayalalitha, of former Assam Chief Minister Prafulla Kumar Mohanta and that of Kerala’s former chief minister K. Karunakaran took several years to being as the sanction was not coming from those persons who were representing gubernatorial positions in these respective states, as they themselves were politicians once upon the time. The website of CVC once indicated that as many as thirty-five matters were awaiting prosecution sanction against central government employees by December 2005. This is sufficient to manifest lack of seriousness on the part of the incumbent government in tackling corruption. However, in an epoch making judgments of its kind, country’s Apex Court has now paved the way for both the expeditious and effective prosecution of both public servants and also the politicians who were until other day, enjoying a sort of an immunity for being put on trial on rampant corruption charges. While dismissing a group of petitions filed by former Punjab Chief Minister Prakash Singh Badal, Union Railway Minister Lallo Prasad Yadav, his wife & ex-Bihar CM Rabri Devi, former Kerala Chief Minister K. Karunakaran and former Punjab deputy chief minister Rajinderkaur Bhattal the division bench of Supreme Court consisting of Arijit Pasayat & S.H. Kapadia, has held that “the principle of immunity protects all acts of public servants has to perform in the exercise of in exercise of the functions of the government. However, where a criminal act is performed under the color of authority, but which in reality is for the public servant’s own benefit or pleasure, such acts shall not be protected under the doctrine of state immunity’’. The kind of protection which the bureaucrats and politicians have enjoyed over the years by virtue of Section 19 of The Prevention of Corruption Act – 1988, of ‘prior prosecution sanction’ now stands blown off with this landmark judgment. This in built provision was made to save the public servants from mischievous, bogus and / or vindictive prosecution and the kind of harassment which they undergo in the process. . As the prosecution sanction was not forthcoming, the public servants virtually enjoyed immunity from being tried. The SC ruling has now cleared a huge obstacle which had literally forestalled the prosecution of public servants. The manner in which the attorney general of the country, Milon Bannerji virtually took cudgels on behalf of BSP leader and former UP Chief minister Mayawati over Rs. 75 crore scam in Taj Corridor project manifest how the political leaders of alliance partners were being protected by the incumbent government in view of the political implications of the matter. Until the Supreme Court delivered a verdict in Hawala case confusion had prevailed whether the term or definition of ‘public servant’ was confined to bureaucrats alone, or it could also encompass politicians? But with the passing of the judgment in Hawala case on 18th December, 1997, the SC has clarified that “the political leaders as the members of Parliament, and legislatures and holding office like Ministers are also covered in the definition of public servant. Our Apex Court undoubtedly deserves kudos for clarifying that the protection enjoyed by the public servants under section 197 of Cr.P.C. can not be invoked by the politicians and / or public servants, as the act of ‘indulging or abetting corruption’ can not be construed as a part of official duties. However, this ruling has also kicked off a debate in the legal fraternity as to whether Section 197 of Cr.P.C. now stands redundant ! The latest ruling would definitely facilitate expeditious disposal of trials, in addition to transparent investigation of the matters, especially involving disproportionate assets! However, all depends upon the will of the people as well, as the society too has to come out of the shell in tackling such serious issues, which have huge bearing on the progress of nation. Unfortunately, the law abiding citizens in this country have lost their faith in the politicians as a result of which participation of the people in the governance has virtually not taken place. The verdict delivered by division bench of SC has sanctity of law as contemplated under Article 143 of the Constitution of India and it can be set aside only if overruled by a constitutional bench. However, ever since the Congress led UPA government has come into power an attempt is being made to rescind or set aside the judicial pronouncements by way passing a bill in Parliament. The sealing drive ordered by the Supreme Court to Municipal Corporation of Delhi is the case in the point. The controversy erupted in the wake of sealing of commercial establishments and shops operating from the residential localities for years together in Delhi is one of the biggest corruption scandals of its involving the politicians and the bureaucrat in country’s national capital. Unless, the middle class people and also the intellectuals join hands and come out from the shell, nothing can happen in this country, as the politicians are thriving over their years as the people from these classes do not turn out for the voting ! “Quo Vadis Indian democracy” ? (Author is a practicing advocate from Bombay High Court) Comments to this article can be sent at : ganesh_sovani@rediffmail.com Ganesh Sovani
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