INDIAN JUDICIARY & EXECUTIVE CORRUPTION: A CRITICAL ANALYSIS
Dissertation submitted in part fulfilment for the requirement of the Degree of
LL.M.
Submitted By Supervised By
TANMAY JAIN PROF. (DR.) J.S. MANN
NATIONAL LAW UNIVERSITY
DELHI (INDIA)
2019 DECLARATION BY THE CANDIDATE
I hereby declare that the dissertation titled “INDIAN JUDICIARY AND EXECUTIVE CORRUPTION: A CRITICAL ANALYSIS” is the outcome of my own work carried under the supervision of Prof. (Dr.) J.S. Mann, Professor of Law, National Law University, Delhi.
I further declare that to the best of my knowledge the dissertation does not contain any part of work, which has not been submitted for the award of degree either in this university or any other institutions without proper citation.
TANMAY JAIN
Place: New Delhi 76LLM18
Date: 22nd May 2019 National Law University, Delhi
ii
CERTIFICATE OF SUPERVISOR
This is to certify that the work reported in the LL.M. dissertation entitled “Indian
Judiciary and Executive Corruption” submitted by Tanmay Jain at
National Law University, Delhi is a bona fide record of his original work carried out under my supervision.
(Signature of Supervisor)
Prof. (Dr.) J.S. Mann
Professor of Law, National Law University, Delhi
Place: New Delhi
Date: 23rd May, 2019
iii
ACKNOWLEDGEMENT
I would like to express my most sincere regards and gratitude to my respected supervisor, Prof. (Dr.) Jeet Singh Mann for his constant help, guidance and encouragement throughout the tenure of this Dissertation. His valuable suggestions and discussions have been instrumental to the success of this work. This work would not have been feasible without his rigorous guidance. I further wish to express my gratitude to the entire NLU-D family especially Prof. (Dr.) Ranbir Singh (Vice-Chancellor, National Law University, Delhi) and Prof. G.S. Bajpai (Registrar, National Law University, Delhi) for providing all the infrastructure and facilities required for completion of this research. I would also like to thank the library staff of the National Law University, Delhi for their constant support.
I extend heartfelt thanks to all my friends for their constant inputs and guidance in this endeavour. Special thanks to my parents and family members who have always supported in all my endeavours. I acknowledge and thank the scholars whose work is used for completion of this dissertation.
TANMAY JAIN
76 LLM 18
iv
LIST OF ACRONYMS & ABBREVIATIONS
ADR Association for Democratic Reforms
AIR All India Reporter
BJP Bhartiya Janata Party
CAG The Comptroller and Auditor General of India
CBI Central Bureau of Investigation
CPI Corruption Perception Index
CriLJ Criminal Law Journal
CTR Current Tax Reporter
CVC Central Vigilance Commission
DLT Delhi Law Times
DPC CAG’s (Duties, Powers and Conditions of Services) Act, 1971
EPW Economic & Political Weekly
HC High Court
MPs Members of Parliament
MLAs Members of Legislative Assembly
PCA Prevention of Corruption Act, 1988
SC The Supreme Court of India
SCALE Supreme Court Almanac
SCC Supreme Court Cases v. Versus
v
LIST OF CASES
1. Association for Democratic Reforms and Anr v Union of India and Ors, Writ Petition(Civil) No. 333 of 2015 (Dated April 12, 2019) 2. Centre for PIL v Union of India, 2011 (3) SCALE 148. 3. Common Cause A Registered Society v Union of India, AIR 1996 SC 2638 4. Common Cause & Ors v Union of India & Ors, (2018) 9 SCC 382. 5. K.C. Sareen v CBI, (2001) 6 SCC 584 6. L K Advani v Central Bureau of Investigation, 66 (1997) DLT 618. 7. Lily Thomas v Union of India, AIR 2013 SC 2662 8. Mahender Chawla v Union of India, 2018 (15) SCALE 497. 9. Manohar Lal Sharma v Principal Secretary, (2014) 9 SCC 516. 10. Nand Ram Bagri v Jai Kishan & Ors, 200 (2013) DLT 402. 11. Parkash Singh Badal v State of Punjab, (2007) 1 SCC 1. 12. Prakash Singh v Union of India, (2008) 8 SCC 1. 13. Rekha Sharma & Ors v Central Bureau of Investigation, 218 (2015) DLT 1. 14. S.P. Gupta v Union of India, AIR 1982 SC 149. 15. Sanjiv Kumar v State of Haryana (2005) 5 SCC 517. 16. Shrivardhan Mohta v Union of India, (2019) 307 CTR 396. 17. State of Karnataka & Ors v Selvi J Jayalalitha and Ors, (2017) 6 SCC 263. 18. State of Uttar Pradesh v Raj Narain, AIR 1975 SC 865. 19. State of West Bengal & Ors v Committee for Protection of Democratic Rights, West Bengal & Ors, (2010) 3 SCC 571. 20. State (Through CBI) v Lalu Prasad Yadav & Ors, RC Case No 64(A)/1996 Pat (23.12.2017-CBI court). 21. Subramaniam Swamy v Union of India, AIR 2014 SC 2245. 22. Vineet Narain v Union of India, (1998) 1 SCC 226.
vi
TABLE OF CONTENTS
TITLE PAGE NUMBER
DECLARATION BY THE CANDIDATE ii
CERTIFICATE OF SUPERVISOR iii
ACKNOWLEDGMENT iv
LIST OF ACRONYMS & ABBREVIATIONS v
LIST OF CASES vi
CHAPTER-1
INTRODUCTION 1
1.1.LITERATURE REVIEW 4
1.2.RESEARCH OBJECTIVES 4
1.3.RESEARCH QUESTIONS 5
1.4.SCOPE OF STUDY 5
1.5.HYPOTHESIS 5
1.6.OPERATIONAL CONCEPTS 5
1.7.LIMITATIONS OF THE RESEARCH 6
1.8.SIGNIFICANCE OF THE STUDY 6
1.9.RESEARCH METHODOLOGY 6
1.10. SCHEME OF THE RESEARCH 7
CHAPTER-2
HISTORY & NATURE OF EXECUTIVE CORRUPTION IN INDIA 8
2.1. HISTORICAL BACKGROUND IN INDIA 9
2.2. FEATURES OF INDIAN EXECUTIVE CORRUPTION 11
vii
CHAPTER-3
CAUSES AND CONSEQUENCES OF EXECUTIVE CORRUPTION 15 ON INDIAN DEMOCRACY
3.1. CAUSES OF EXECUTIVE CORRUPTION IN INDIA 16
3.2. CONSEQUENCES OF EXECUTIVE CORRUPTION 18
CHAPTER-4
INDIAN LEGAL & INSTITUTIONAL FRAMEWORK FOR 21 CURBING CORRUPTION
I. Indian Penal Code, 1860 22
II. Prevention of Corruption Act, 1988 22
III. Prevention of Money Laundering Act, 2002 23
IV. Right to Information Act, 2005 23
V. Whistleblowers Protection Act, 2011 24
VI. Black Money (Undisclosed Foreign Income and Assets) and Imposition 25 of Tax Act, 2015
4.1. INSTITUTIONAL FRAMEWORK AGAINST CORRUPTION 26
I. CENTRAL BUREAU OF INVESTIGATION 27
II. CENTRAL VIGILANCE COMMISSION 29
III. COMPTROLLER AND AUDITOR GENERAL 30
CHAPTER-5
ROLE OF INDIAN JUDICIARY IN PREVENTING CORRUPTION 32 BY POLITICAL EXECUTIVES
5.1. SUPPORT FOR CITIZENS’ RIGHT TO TRANSPARENCY 33
5.2. EXPANDING PROSECUTION SCOPE UNDER PCA 34
5.3. CONVICTION IN TEACHERS RECRUITMENT SCAM 34
5.4. FIGHT AGAINST MISFEASANCE IN PUBLIC OFFICES 35
viii
5.5. REMOVAL OF TAINTED OFFICIAL FROM ANTI-CORRUPTION BODY 36
5.6. FODDER SCAM CASE 36
5.7. ENSURING EFFECTIVE PROTECTION TO WITNESSES 37
5.8. WEEDING OUT LEGAL LOOPHOLE UNDER RPA 37
5.9. REMOVAL LEGAL PROTECTION ON CORRUPT BUREACRATS 38
5.10. ELECTORAL BONDS CASE 39
CHAPTER-6
CONCLUSION 40
6.1. HYPOTHESIS TESTING 41
6.2. RESEARCH FINDINGS 42
6.3. SUGGESTIONS & RECOMMENDATIONS 43
BIBLIOGRAPHY 46-51
ix
CHAPTER 1
INTRODUCTION
,
“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 organized crime, terrorism and other threats to human security to flourish. This evil phenomenon is found in all countries—big and small, rich and poor—but it is in the developing world that its effects are most destructive. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a Government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development.”1 -Kofi Annan These words by former General Secretary of the United Nations Organization lucidly depicted the dangers of Corruption over our society & legal system. Indian Democracy is considered as Liberal democracy whose institutions functions & conforms to the principles & ideals of the Indian Constitution.2 One of its ideals is the principle of good governance which can be ensured by a responsible government. In order to attain the good government, the nation should possess the following things: Free & fair electoral process; Transparent working of all government institutions at every level; Effective & timely delivery of public services which serve socio-economic needs of public Rule of law which is defined by clear authority devolution & precise legal rights, Strict enforcement of citizens’ legal rights; and Strong legal provisions to enhance rights of downtrodden sections of the society.3
1S.L. GOEL, RIGHT TO INFORMATION AND GOOD GOVERNANCE, 5, (2007). 2RAMESH THAKUR, THE GOVERNMENT AND POLITICS OF INDIA (COMPARATIVE GOVERNMENT AND POLITICS), 327 (1995). 3Supra at note 1 1
However, such principles don’t work in isolation especially when there is wide dissonance between the preaching of good governance ideals & its practical realities at grassroots level. In the present scenario, various political scams have not only damaged the reputation of Indian democracy but also abet discrimination against public interest due to irregularity & mismanagement in public duty by governments & its officials. Corruption in India is quite pervasive in nature which can be symbolized by her 78th ranking in the Corruption Perception Index (CPI), prepared by the Transparency International (TI).4 In this dissertation, the researcher presents a critical analysis of corruption in India by executive branch of government & the role of Indian judiciary to counter it. The historical analysis of political corruption in India suggests that it has quite deep roots from the times of her independence in 1947 & has dynamically evolved from time to time at expense of good governance. Political corruption shouldn’t be underestimated compared to other forms of corruption but rather treated as serious threat to Indian democracy. Since Indian politicians are public’s elected representatives whose decisions play a major role in determining citizens’ lives through their actions as government & policy making, any kind of involvement in corruption on their part shakes public faith in the democratic state itself.5 Even Indian courts have emphasized upon raising public awareness over candidates’ criminal track record while contesting polls.6 Such vile developments naturally lead to loss of public faith in their representatives and the entire polity itself which is not good for Indian democracy. Unless voters doesn’t exercise their voting rights properly & the Election Commission act strict against candidates over indulging in corrupt practices under Section 8 of the Representation of Peoples Act, 1951 (RPA), any hopes of tackling political corruption would be quite dim.7 When it comes to legislative measures & institutions for preventing corruption, India has plenty of such laws & agencies. The most important of them is the Prevention of Corruption Act, 1988 while the latest one is Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 which is the initiative of present central government. However, their practical impact against corruption is quite limited in nature which is further muddled
4Scroll Staff, India ranks 78 among 180 countries in transparency international index on corruption in 2018, SCROLL, (January 30, 2019), Available at https://scroll.in/latest/911337/india-ranks-78-among-180-countries- in-transparency-internationals-index-on-corruption-in-2018 (Last visited on May 8, 2019). 5Eran Vigoda Gadot, From Responsiveness to Collaboration: Governance, Citizens and the Next Generation of Public Administration 62, PUBLIC ADMINISTRATION REVIEW, 527, 528-529 (2002). 6Nand Ram Bagri v Jai Kishan & Ors, 200 (2013) DLT 402 (Delhi High Court) 7M L AHUJA, ELECTORAL POLITICS AND GENERAL ELECTIONS IN INDIA, 1952-1998, 35 (1998). 2 due to various legal loopholes & lack of co-operation among different law enforcing agencies.
1.1. LITERATURE REVIEW: As far as statutory provisions & law enforcing agencies on combating corruption is concerned, India doesn’t face any shortage but rather suffers from their weak performance which is showcased through shoddy picture of political corruption at the highest levels of Indian polity in present times. Anti-corruption laws which lack clarity & agencies without independence to take strict action against political leaders ensure that neither corrupt leaders are afraid of law nor public is convinced about abilities of Indian legal system in preventing political corruption.
Involvement of higher echelons of our polity in corruption cases highlights the degrading political morality on gradual basis in India which should be worrying fact among masses & policymakers alike. However, on detailed reading of existing literature on political corruption in India, one would observe that they do not adequately focus on role of executives in political corruption but rather deal with factors abetting corruption at administrative levels & their impact on public life. Without knowing the extent of executives’ role in abetting corruption in India, no amount of legal solution can get rid of corruption in India. Many of India’s present laws on preventing corruption actually empower political leaders to misuse them under their positions as head & ministers of Central and State governments. It is imperative to raise awareness among public over these ignored aspect of political corruption i.e. executive corruption.
For the purpose of this dissertation, the researcher has examined both the primary & secondary sources of the information regarding the subject matter which includes analysing the relevant statutory provisions on anti-corruption in India such as Prevention of Corruption Act, 1988, Indian Penal Code, 1860, etc for in-depth scrutiny of literature on political corruption. Moreover, the researcher has further examined the functioning of two central institutions i.e. CBI & CVC for critical analysis of India’s institutional framework against corruption involving members from the executive branch of governance.
Also, the researcher has examined various media reports on political corruption which deal with involvement of ministers in financial scams. Regarding the current subject matter, the researcher is not aware of any specific research project/assignment by any researcher on
3 the title which makes the present dissertation unique in itself for focussing upon the role of executive branch of government in promoting cancer of corruption in India.
If left unchecked, corruption has grave consequences for the nation which could lead to political instability, weakening economic growth & destroy administration.8 For better understanding of multi-faceted problem like political corruption, one has to understand the political & legal reasons which enhance it through omissions & commissions. The worrying high numbers of scams & scandals involving politicians describes the rampant prevalence of corruption at the highest level of policy making. There is need for considering corruption especially its political variant as major threat akin to terrorism & communalism. Therefore, it is important to critically analyse the political & legal system of our nation regarding corruption which could be used in suggesting measures & its effective enforcement through Indian judiciary.
Right to good governance has been recognized to certain extent through provisions of Indian Constitution of 1950. However, these rights get blatantly violated when the head of government indulges in arbitrary decision making in lieu of enriching few cronies or gaining patronage from vested interests at expense of public interest. Such malpractices by executive members of our polity harm the democratic ethos of our society along with material losses of property & even lives through scams & scandals. Failure to curb corruption at the highest level of government leads to inefficiency in social welfare schemes which merely abet violation of socio-economic rights of downtrodden sections of Indian society.
This dissertation has not only examined the present legal and institutional framework pertaining to prevention of corruption in India but also highlights the practical relevance of law which should help in preventing the executive corruption in India with the help of court cases from the Indian Supreme Court & other lower courts.
1.2. RESEARCH OBJECTIVES: 1) To study the historical roots of political corruption in India. 2) To identify the reasons & impact of political corruption on Indian democracy. 3) To analyse the working of existing legislative anti-corruption laws and institutional framework in India.
8J.C. SCOTT, COMPARATIVE POLITICAL CORRUPTION, 10, (1972). 4
4) To evaluate the potential role of Indian courts in tackling political corruption through judicial review. 5) To provide suggestions and highlight the need for effective legal mechanism against political corruption.
1.3. RESEARCH QUESTIONS: 1) What factors aid the executive in conducting malpractices at policy making process in India? 2) How corruption by highest decision makers does affect Indian democracy? 3) What are the legal & institutional frameworks in India to prevent corruption by political executives? 4) How can Indian judiciary curb executive corruption through judicial review?
1.4. SCOPE OF STUDY: The researcher has dealt with the selective decisions of the Indian Supreme Court & other High Courts for the period from 1990 to present era. Furthermore, the researcher has also focused upon studying of Indian statutory provisions on anti-corruption for the purpose of the dissertation.
1.5. HYPOTHESIS: 1. Collusion between members of government, bureaucrats & private sector abet executive corruption. 2. The present legislative & institutional framework for curbing corruption hardly equips the state adequately to prevent corruption in India. 3. Judicial review contributes a major role in tackling corruption in public life.
1.6. OPERATIONAL CONCEPTS: 1. Executive Corruption-It refers to illegal & unethical activities within the functioning of government by the executives such as bribes, undue influence, forgery, etc. It also means non-responsive attitude towards public interests caused by conflict of interests between private & public advantages.9 2. Executive- It refers to executive branch of government which includes the former & current heads of government & their ministers at Central & State governments.
9Paul P Van Riper, Personnel Administration in Government, 10, INDUSTRIAL AND LABOR RELATIONS REVIEW, 643, 644 (1957). 5
3. Anti-Corruption Laws- It includes specific legislative provisions to combat corruption such as Prevention of Corruption Act, 1988, Foreign Exchange Management Act, 1999, Prevention of Money Laundering Act, 2002, Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, etc. 4. Public Interest Litigation (PIL) - It refers to filing of petitions by an individual or group of people before the Indian Supreme Court & High Courts under Article 32 & 226 of the Indian Constitution respectively.
1.7. LIMITATIONS OF THE RESEARCH: Despite the careful preparation of the research, the researcher is aware of the following limitations with respect to the research:
1. The study is limited to analysing the loopholes of present anti-corruption laws in India & doesn’t deal with other jurisdictions. 2. It is limited to studying only functioning of federal anti-corruption agencies for purpose of analysing the institutional framework against corruption in India. 3. The researcher has examined only selective case-laws of the Indian Supreme Court & other High courts while there are various other cases of many jurisdictions on issue of political corruption which have not been analysed by the researcher.
1.8. SIGNIFICANCE OF THE STUDY: The significance of the present study is to determine the efficiency of anti-corruption laws in India & examine the legal loopholes which abet political corruption in India. The ultimate objective of the anti-corruption laws is to create disincentive for dishonest public officials to indulge in corrupt practices & if the laws fail to do that, it is important to examine the factors which led to their failures so as to modify them for their strict implementation in India.
Also, presence of weak anti-corruption laws in India merely lead to fruitless litigations which further hampers the legal rights of affected persons. With the help of this research, the researcher would try to highlight the scope of judicial intervention through judicial review to curb corruption.
1.9. RESEARCH METHODOLOGY: To achieve the objectives of the present study, the researcher has relied upon adopting the doctrinal method to examine & analyse the undertaken problem. It involves studying various secondary sources such as case-laws, acts, reports, notifications, etc which would 6 help in determining the loopholes in Indian Anti-corruption laws. Sources like books, journals and articles on various jurisdictions which deal with tackling corruption through legal means are also looked into briefly.
The researcher has also collected various decisions from the Indian Supreme Court and other courts to examine the judicial approach towards combating political corruption. Through this dissertation, the researcher aims at exploring the scope of judicial interventions in curbing corruption at the top level of Indian polity.
1.10. SCHEME OF THE RESEARCH: The present study is divided into six chapters:
1. Chapter 1 introduces the research topic & help in further acquainting with factors which create obstacles in India’s fight against corruption. It would also lucidly explain the objectives, research methodology & framework of the present study. 2. Chapter 2 deals with the historical analysis of executive corruption in India & depicts its salient features. 3. Chapter 3 would talk about the causes & impact of executive corruption on the functioning of Indian democracy. 4. Chapter 4 deals with studying of present legislative measures in India to curb corruption such as Prevention of Corruption Act, 1988, Indian Penal Code, 1860, Prevention of Money Laundering Act, 2002, etc. It would also analyse the legal loopholes faced by various anti-corruption agencies such as Central Vigilance Commission (CVC) & Central Bureau of Investigation (CBI). 5. Chapter 5 focuses on studying of various case-laws on political corruption of the Indian Supreme Court & other High Courts which would help in analysing the jurisprudential approach over combating executive corruption & examining the potential role of judicial review in preventing good governance violations by our political elites through executive corruption. 6. Chapter 6 concludes the present study & focuses on the recommendations & suggestions given by the researcher regarding measures to prevent executive corruption.
7
CHAPTER 2
HISTORY & NATURE OF EXECUTIVE CORRUPTION IN INDIA
Today, though the scourge of corruption is adversely affecting governance at every levels of government around the world, the term corruption hasn’t yet universally defined till now. Various scholars & organizations have interpreted the term ‘corruption’ depending on the players involved and nature of patronage granted in lieu of subverting legal norms. According to World Bank, corruption refers to misusing public office for private gains.10 However, we need to clearly understand the term “Executive Corruption” in order to examine its causes and impact on our democracy which further determine the nature of solution for tackling it especially the judicial perspective.
According to Black’s law dictionary, the term “executive” refers to the branch of government responsible for carrying out the laws into effect & securing their due observance & an informal designation for the chief executive officer of a nation.11 Also, it defines “corruption” as an act of official person who wrongfully uses his position or character to procure some benefit for himself or another person, contrary to duty & rights of others.12 The characteristic of corrupt activities committed by executive heads of state/government are summarized in following words:13
Executive Corruption is quite perceptual in nature for it depends on context, individual, culture or political environment. Every nation has its own experience of political corruption at hands of executives which determines their practices, attitude and work performance. It is totally related to power since the institutional position & discretionary authority allows the executive to take favourable decisions which influence the market and
10Arun K Agarwal, Corruption in Historical Perspective: A case of India, 68, THE INDIAN JOURNAL OF POLITICAL SCIENCE, 325-336, 326, (2007). 11Black’s Law Dictionary, 245 (10th Ed, 2014). 12Black’s Law Dictionary, 143 (10th Ed, 2014). 13FRANCES BURKE & WILLIAM L. RICTHER, COMBATING CORRUPTION, ENCOURAGING ETHICS: A PRACTICE GUIDE TO MANAGEMENT ETHICS, 81-90 (2007). 8
other conditions. Greater the opacity in policy making process, greater is the chances of corruption from executive leaders of a nation. Executives commit corrupt activities in a deliberate and covert manner where the acts done in official role eventually ends in personal gain for themselves & their supporters.
The definitions provided by Transparency International on Grand Corruption & political corruption also lucidly describe the real nature of executive corruption. It defines the term ‘Grand Corruption’ as acts committed at the highest levels of government which distort policies or central state functioning for benefiting leaders at expense of public good.14 Similarly, political corruption is referred as abuse of political positions through manipulation of policies, institutions & procedural rules in the allocation of resources and financing by executive elites to sustain their privileges.15 Thus, the above discussion clarifies the definition of the term executive corruption which would be used in analysing the historical & present nature of corruption by executive elites in India.
2.1. HISTORICAL BACKGROUND IN INDIA
While the references to corruption and extortion in India were found even during ancient eras, the present form of executive corruption can be traced to the beginning of British Raj in India in which the European merchants paid bribes to princely states’ officials in lieu of trade benefits.16 The victory of East India Company (EIC) in Battles of Plassey & Buxar not only laid down the foundations of British Empire in India but also began rise of various malpractices by executive for personal enrichment which continued even after independence. In British era, corruption was quite rampant and ferocious in nature due to grave rapacity of its rulers like Robert Clive, etc. In the words of eminent historian, P.E. Roberts, British administrators at every level were guided by ‘spirit of plunder’ & passion for rapid accumulation of wealth.17 These words clearly described the levels of corruption in British rule which even scared the members of House of Commons to such extent that Lord William Pitt Chatham, a British statesman opined:
14 https://www.transparency.org/what-is-corruption#define (Last visited on May 21, 2019). 15Id. 16S.S. GILL, THE PATHOLOGY OF CORRUPTION, 34 (2000). 17P.E. ROBERTS, HISTORY OF BRITISH INDIA, 148 (1967). 9
"Without connexions, without any natural interest in the soil, the importers of foreign gold have forced their way into Parliament by such a torrent of corruption as no private hereditary fortune could resist18 The major method of executive corruption during British rule was extortion which was practiced by every law agencies working under colonial regime such as police, revenue collecting agents, etc.19 These circumstances naturally led to delegitimizing of government actions & long term acceptance for corruption against government among Indian society.20 Thus, corruptive practices become part of India’s social life even before her independence in 1947.21 Post independence, India not only incorporated the British Parliamentary System for administrative purpose as well as historical evil of corruption. During Nehruvian era, India witnessed major scams such as Jeep Scandal22, Corruptive practices that occurred at all levels of Government in British India continued into modern India. India’s first prime minister, Jawaharlal Nehru, was more honest than the British colonial government, but unfortunately he overlooked corruptive activity in his administration and thus “legitimized it in politics.” Indira Gandhi, the third Prime Minister of India, used corrupt practices to undermine those political figures and movements that opposed her and to ensure her electoral victory,23 During the 1960s, corruption remained at the level of folklore, while in the period of 1980 & 1990s it moved into the heart of national provincial political institutions. The sequence of events which culminated in the present situation began before the national general elections in April and May 1996.24 Following the revelations of the Hawala Scandal of widespread payments for favors to leading politician’s bureaucrats by a businessman, the incumbent Prime Minister Shri. P.V. Narasimha Rao dismissed some leading members of his own cabinet who are under investigation.25 Since India’s independence, corruption scandals have engulfed Chief Ministers, Central ministers, Supreme Court Justices, and even Prime Ministers. In fact, even today,
18 Supra at note 17, p. 163. 19 Id. 20 Id. 21 M V PYLEE, CONSTITUTIONAL GOVERNEMENT IN INDIA, 125, (1960). 22YOGESH ATAL & SUNIL K. CHOUDHARY, COMBATING CORRUPTION: THE INDIAN CASE, 101- 102 (2014). 23Stanley A. Kochanek, Briefcase Politics in India: The Congress Party and the Business Elite, 12, ASIAN SURVEY, 1279, 1278-1301 (1987). 24 Id. 25Gurharpal Singh, Understanding Political Corruption in Contemporary Indian Politics, 3, POLITICAL STUDIES XLV, 626-38 (1997).
10 there is still a pending investigation by the CBI regarding a claim against the former Prime Minister, Rajiv Gandhi, alleging that he and his associates received a bribe of 65 million rupees in exchange for awarding a Government contract worth billions of rupees.26 Executive corruption in India extends past traditional boundaries and into the electoral process. As in many countries, costs of electoral campaigns are escalating in India, and not surprisingly, once in power, officials intend to keep their positions. As the amount of funding for campaigns increases, so does the risk of corruption.27 Since 1969, Indian corporations have been prohibited from giving money to campaigns. Consequently, illegal and corruptive backing has become the major source of such funds. Even worse, argues one scholar, “while politicians do raise funds to further their personal fortunes, the bulk of the amounts garnered illicitly by them is undoubtedly taken by the party for election purposes. In a sense, this is worse than the corruption of an individual. The following discussion is on whether executive corruption is deep rooted in the society and the role played by certain factors in feeding the vice of corruption. The social values cherished by a society depend on the conditions prevailing in the society at a given point of time. If corruption flourishes in a society today it is because in a system of governance where for majority of the public, corruption is the only way by which they could make a meaningful living in the country.28 This can be taken care of by tackling the issue of changes in the system. The moral claims of the rulers to rule, the quality of political leadership, and the viability of political values or style constitute the broad contextual factors of corruption. Machiavelli stated that “even the best of individual can be bribed by a little ambition and avarice and he is viewed corruption as the decay of the capacity of the citizens and officials of the state to sub-ordinate the pursuit of private interests to the demands of the common good or public interest.”29
2.2. FEATURES OF INDIAN EXECUTIVE CORRUPTION
The first feature of executive corruption in our nation is constant pampering of political cronies at state exchequer for ensuring their loyalty towards the party leader, who is also the
26 YOGESH ATAL & SUNIL K. CHOUDHARY, COMBATING CORRUPTION: THE INDIAN CASE, 107 (2014). 27 MILAN VAISHNAV, WHEN CRIME PAYS: MONEY AND MUSCLE POWER IN INDIA, 267, (2014). 28 Id. 29 Supra at note 8. 11 head or member of the government. The trend which started from Indira Gandhi era has only magnified to a huge extent in present day scenario. Since then the power elite in India has been improvising newer and newer techniques of political corruption. The party in power maintains its routine of supporters, sympathizers, workers, leaders and stooges etc., at the cost of the public exchequer. Scores or defeated legislators, hundreds of loyal and defunct leaders, and lakhs of mercenaries who cannot be otherwise accommodated within the mainstream of political processes are offered assignments, positions, opportunities within the educational system, agricultural cooperative movement, foreign missions, standing committees and commissions, public bodies, etc., and distribution of export permits, licensers for bus routes, fair price shops, milk depots, quotas, contracts for supplies of essential commodities, constructional work, canteens etc.
There is the widespread practice of providing several benefits at concessional rates to the relatives of people in power. For instance, the political elite get timely and sometimes prior information about the availability of residential plots and agricultural land under developmental schemes etc, in collusion with bureaucracy, they grab land and other assets sometimes with the help of new legislation, sometimes by the use of administrative machinery, and sometimes by fraud. In the name of relief work or social action, the politicians and their affiliates use state power and position to collect funds for philanthropic bodies and trusts, etc. these funds become the basis of political patronage to acquire political support. The power elite also resort to political blackmail, such as threats of nationalization or state takeover, etc., in order to wrest political support and extract funds. A sinister form of corruption has been introduced by a leader, to threaten to use charges of corruption against opponents or competing or dissenting political leaders and to squeeze loyalty and conformity. Parties in power manage to enhance the price of certain farm products and industrial produce or to offer economic concessions to the business interest in return for financial support. The second feature of executive corruption in India involves misuse of legal position for fringe personal benefits. For instance, free personal services not normally permitted for official duties, i.e., to supply women, transport, health, requirements, to expedite action on cases pending in ministries, shopping spree, foreign visits, to get jobs for their relatives, etc., to get promotions, to run periodicals, to raise questions in the legislature on payment etc.30
30SURESH KOHLI, CORRUPTION IN INDIA: THE GROWING EVIL, 82 (1975). 12
Besides, money power, which has become the mother’s milk of India polity, antisocial forces have managed to ensconce themselves in the political parties and acquired a very important place in our polity. The party, the administration and the leaders cannot afford to displease them - specially the unemployed youth who act as their storm troopers during elections and in other critical situations. In a fundamental sense, of course, the moral values condition the political parties. Nevertheless the problem of political corruption cannot be tackled in relation to moral transformation of the entire citizenry. The political the social and the psychic frame of reference of the people, particularly that of the power elite, must be considered. Today, Indian politics has become an obsession for few elites who consider it as a profitable enterprise instead of means for serving public interest which naturally promotes executive corruption from the very beginning. Another important feature is the penetration of anti-social elements into political parties. They function as private armies of the local bosses. In this area the example set by one party is readily imitated by others, ostensibly to combat the onslaught of the opposite party. The political leaders generally start taking help of such elements which later develops into intimacy between these elements and the law and order machinery; thereafter they start dominating political scene at lower levels, thus introducing an element of terrorism in the general political activity.31 The development of such situations is visible in various areas of the country today. This has alarming political implications. It is one of the crucial causes of increasing alienation of the common man and the youth from our political system. The big business and big farmers and big industrialists too have entrenched themselves behind a set of leaders whose antecedents are not suspected by the people.32 Generally the political leaders and workers in India have no independent sources of income.33 Politics as such is their whole time vocation. This state of affairs is exploited cleverly by the vested interest in different ways at different levels. For instance, businessmen, and industrialists sponsor and bring up potential leaders in the parties. The process is sometime subtle and sometime crude. It has been seen that members of the same family of an industrialist support different persons in different parties.34 Lastly, the high rates of Scams and scandals committed by higher levels of government showcases the level of India’s executive corruption where the elite and
31 MILAN VAISHNAV, WHEN CRIME PAYS: MONEY AND MUSCLE POWER IN INDIA, 352, (2014). 32Id. 33Id. 34Supra at note 28, p.358. 13 politically and economically powerful, manipulate the system in such a way that money is siphoned off game. Networking ensures that they are not caught or if the scandals are exposed they neither lose money nor their positions. The cancerous spread of corruption has almost adversely affected every aspect of life and our political system is not untouched by it. The recipe for political success today is a mixture of MMI (money, muscle and influence). Politicians are regarded as inefficient crooks who sacrifice community interest for private purposes and hood wink citizens. Criminalization is proving to be the fallout of widespread political corruption. The Mafia works hands in glove with the demagogues and police seen to be in helpless situation incapable of catching influential criminals. The judiciary, too, let go the convicts due to lack of solid evidence. Corrupt finds his devious ways and means for his black deeds. Major scandals involving high level public officials have shaken the Indian public service in recent years, with politicians and public servants regularly caught accepting bribes or mismanaging public resources. Corruption in the Indian stings is seen through political angles. Every political party sees corruption at the other side of the fence without caring to see things under its very nose.
14
CHAPTER 3
CAUSES & CONSEQUENCES OF EXECUTIVE
CORRUPTION ON INDIAN DEMOCRACY
The malpractices under executive corruption is quite different from other forms of corruption simply because it is committed by head of governments & their ministers through misusing their powers in arbitrary manner for advancing vested interests. The conventional wisdom on executive corruption is that such individuals hardly ever found guilty by investigating agencies & even in cases of exceptions, they got scot free thanks to their familiarity with weak legal mechanism of their country. Apart from inadequate statutory provisions, there are other political & legal factors which abet corruption at the hands of executives.
When it comes to scams & scandals, India has witnessed various deplorable cases of executive corruption in the past seven decades of her independence. On detailed reading of court rulings & newspaper articles, one could easily trace out the modus operandi of executive corruption in India which mainly includes forgery, cheating, opaque decision making, etc. During elections, politicians promise to eradicate corruption & even win elections due to alleged involvement of their political opponent in scams but the ground reality is that it reduces to mere ritualistic lip service which went unheeded once elections are over. Many political parties gave tickets to candidates with criminal record which is only increasing with every election. According to ADR, the number has increased to 13% for the ongoing Lok Sabha election of 2019.35 Political parties are ready to ignore serious criminal or corruption charges of a candidate for party ticket selection provided he/she has greater chance of winnability.36 Under such circumstances, candidates with long track record of corruption
35Tribune News Service, 13% candidates in 2019 election face serious criminal charges: ADR, THE TRIBUNE, (May 13, 2019), https://www.tribuneindia.com/news/13-candidates-in-2019-election-face-serious-criminal- charges-adr/772440.html (Last visited on May 16, 2019). 36 ET Online, A criminal candidate has double the chances of winning, ECONOMIC TIMES, (March 26, 2019), https://economictimes.indiatimes.com/news/elections/lok-sabha/a-criminal-candidate-has-double-the-chances- of-winning/articleshow/68573567.cms?from=mdr (Last visited on May 17, 2019). 15 become members of executive in form of ministers & head of government at State & Central level, thus encouraging executive corruption at the very stage of government formation.37
3.1. CAUSES OF EXECUTIVE CORRUPTION IN INDIA For better understanding the factors behind corruption at the executive level, one has to realize various causes which traces their origins to political, legal & social circumstances. While India has number of anti-corruption laws to tackle corruption of all sorts, mere legislative solutions would be inadequate for curbing executive corruption when many of them provide wide powers to the executives for subverting & misusing it to their own advantages. In fact, the past failures of our legal system in convicting executive offenders for corrupt practices conducted during their reign emboldens others at every level to indulge in malpractices without fearing wrath of law.
Some of the reasons for increasing executive corruption in India are as follows:
1. Legal loopholes: Most of our anti-corruption laws gave procedural advantages to the incumbent governments regarding their application in corruption cases. Since almost every case of executive corruption involves greater role playing of public servants such as bureaucrats & police officers, generally, one would expect the law to facilitate their prosecution with help of judiciary. However, Section 19 of PCA does the reverse of it by preventing courts from taking cognizance of offences under PCA against public servants without sanction from the competent authority i.e. State & Central Governments.38 2. Slow disposal of corruption cases: It is rightly said that justice delayed is justice denied and same is happening against India’s fight against corruption when it comes to impact of case pendency on corruption cases. More than 6,000 cases registered under Prevention of Corruption Act are still pending before various courts in which around 209 are pending for more than twenty years while more than thousand cases are still ongoing from past ten years.39 In fact, man power shortage & filing of false cases further aggravates the delay in corruption case disposal.40 Delays in imposing
37LORRAINE SMITH PANGLE, THE POLITICAL PHILOSOPHY OF BENJAMIN FRANKLIN, 130 (2007). 38 Sanjiv Kumar v State of Haryana (2005) 5 SCC 517 39PTI, CVC concerned over slow disposal of corruption cases in courts, THE INDIAN EXPRESS (May 18, 2019), https://indianexpress.com/article/india/cvc-concerned-over-slow-disposal-of-corruption-cases-in-courts- 4613219/ 40Team PGurus, Corruption Cases takes years in India, PGURUS, (May 19, 2019) https://www.pgurus.com/corruption-cases-takes-years-in-india/ 16
penalty against people convicted in corruption cases leads to mocking of entire legal system & fuelling perception about offenders taking corruption charges lightly.41 3. Lack of effective punishment: A contributory factor to the growth of corruption in India is that the cases relating to corruption are often handled in a casual and clumsy manner. Those in hierarchy vested with disciplinary powers shirk duty and so unwillingness to use their powers against corrupt practices. This may be due to different reasons like political or trade union pressure, vested interests or sheer ineptitude in handling criminal investigation. The result is that the corrupt are rarely caught and even if caught are let off with minor or no politics. The Government officials entrusted with the responsibility of dealing with corruption does it in a most inefficient and lethargic manner and this suits the political leadership which patronizes executive corruption. 4. Dilative administrative procedures: Cumbersome administrative procedures and practices are other major causes of executive corruption in India. Most of our legal system trace their origins to colonial era which mainly aimed at subjugating people like slaves which is clearly misfit with pro-individual ideals of a welfare state, enshrined under the constitutional provisions. The IPC, the main instrument for controlling crime and administering criminal justice, was enacted in 1860. The organization and functions of the police are governed by the India Police Act of 1861. The Indian Evidence Act came into force in 1872. Fundamental Rules and Supplementary Rules, etc, were framed in the twenties when the government’s financial transactions and commitments were simple. The focal point of colonial justice was the individual and the protection of individual property rights whereas the emphasis of a welfare state is on the right of the society and social justice. 5. Political support: The fact that many of our politicians are involved in corruption cases shows the extent of political corruption especially the executive variant in India. From this fountainhead of corruption flow various streams of corrupt practices which plague the political economic and social activities in the country. The post- independence political leadership has risen from the grassroots level in the form of regional, caste, linguistic and other protest movements. They have transformed the nature of politics and administration. Amoral politics, self-aggrandizement, disregard of the constitutional norms in the pursuit of power, political survival at any cost is
41https://www.keralakaumudi.com/en/news/kerala/general/no-point-in-just-about-corruption-55076 (Accessed on May 19, 2019- 15:27 PM) 17
their rules of the game. They interfere with the administration of justice and have bent bureaucracy to do their bidding.
3.2. CONSEQUENCES OF EXECUTIVE CORRUPTION Corruption cases involving higher echelons of polity not only undermines democracy & impedes on good governance of our nation but also reflects the defects in governing procedures which could further leads to harm on other fronts as well. Ministers facing corruption cases weakens rule of law as well as raises doubts over legitimacy of decisions taken by the executives in various policy matters. The present trends of criminalization in Indian politics, rampant corruption at every level of government functioning, etc have emboldened by the fact that the elite guilty of such malpractices were never adequately punished for their crimes. Unchecked executive corruption serves as speed-breaker of economic growth, violates poor’s socio-economic rights & adversely affects our policies. Some of these consequences are as follows:
1. Weakening economic growth: Political corruption by heads of governments or their ministers damage their nation’s economic structure through arbitrary policies & divesting public investment for personal gains. Under this malaise, the deliberate involvement of bureaucrats & private corporates further muddle the governance quality & creates huge pressure on governments’ budgets. Due to this inflated business costs, market distortion takes place on the share market, leading to greater economic instability. Analysts have contended that nations with lower corruption levels gain greater foreign investment compared to their higher corrupt counterparts & since India is still a developing nation, any decrease in investments due to poor reputation on curbing corruption gives bad omens for her future. Moreover, executive corruption creates uncertainty for entrepreneurs because the public officials have an option to extract bribes from the venture should it prove profitable which increases their risks & lowers their returns. All these developments lead to demoralization among business community for conducting business in India without resorting to illegal practices. 2. Disproportionately harms poor’s economic interest: Corruption does not affect all members of a society equally. The poor suffer relatively more from corruption in two ways. First, bribe payments may represent a higher percentage of their income than similar payments by the rich. In this sense, corruption acts as a regressive tax—lower
18
income households carry a larger burden than higher-income ones. Second, corruption causes the delivery of public services, for example, health care and education, to deteriorate. Such a deterioration affects the poor more than the rich first, because they may have to pay a bribe to receive the services and second, because they depend more on such services. Corruption may also allow the rich to pay fewer taxes than required by law. 3. Widens economic inequality: The economic activities are so affected that they go against the national interest. Quality of products and services goes down and nation is forced to accept what is offered. There is a slowdown of nation’s endeavour to achieve intellectual superiority or supremacy. Disparity increases both in economic conditions and in social relationships among different groups. Few people become immensely rich and majority becomes very poor. Exploitation of different groups excavates. Material gains being the only objective, means used are considered amoral. Propagation of drugs and other evils in the society and making profit out of it do not appear wrong to this amoral and secular leadership. Political corruption affects the society as whole such as rise in prices, scarcity of goods and services, emergence of consumerism, change in life styles, decline in values, low level of morality and ethics in professions, the war time controls, regulations, red-tapism in public administration, low wages for civil servants, lower expected punishment for corrupt persons, middlemen’s vested interest in spreading misinformation that nothing gets done without bribing the officials, rapid commercial and entrepreneurial expansion. 4. Creates mockery of rule of law principles: Executive Corruption disregards rule of law and political corruption breeds injustice. Whereas the basic human rights of the common man are under constant threat and jeopardy, judicial decisions are found to have been based on the extent of bribes transacted between the parties rather than on the innocence or guilt of the parties. Powerful parties misuse police investigations & arrests for settling scores against political opponents and protecting their cronies from legal actions Commenting on the socio-political consequences of corruption, the Supreme Court of India observed in the judgment cited above that corruption in a civilised society was a disease like cancer. If not detected in time it was sure to turn the polity malignant leading to “disastrous consequences”. The apex court said a socio-political system
19
exposed to such a dreaded communicable disease was likely to crumble under its own weight.42 5. Damages political legitimacy: Corruption directly decays country’s governance and the way of national life. The degree of disaster depends upon the magnitude of political corruption, economic costs and political legitimacy. The legitimacy of state administration will be guillotined at the lack of service and public confidence in the state administration wanes. Therefore, democratic institutions are not necessarily threatened by isolated incidents of political corruption. They may even be strengthened if the cases of political corruption are properly dealt with. Systematic and endemic political corruption may nevertheless endanger any democratic system. Illegal campaign contributions and the bribery of politicians can undermine democratic systems. Even though payoffs from wealthy individuals and firms benefit campaign committees, political parties and voters not the personal bank accounts of politicians, the discretionary impact of secret, illegal payments can be large. Payoffs are often made to obtain legislative or regulatory favours. Their effectiveness however depends up on the organization of legislative and executive processes. Corrupt firms and individuals will focus on obtaining individual and firm specific favours. Elections are not sufficient to check payoffs. Other means of public oversight are necessary to keep government must establish explicit policies to limit corrupt incentives.
Executive corruption attacks democracy by excluding people from decisions that affect them. The excluding people with legitimate rights to participate amounts to duplicitous actions. We primarily hide actions when we fear others will disapprove of their consequences. Corruption is like a virus always around to infect a political system anywhere in the world and make it sick. If it has its full play without any resistance or check, it would eat into the vitals of the system and eventually destroy it. When political corruption is entrenched, political activity is dominated by a monopolistic organization or faction that maintains its power in part through corruption and reaps large rewards from it. Where many factions compete for power, it is difficult to build and maintain a disciplined following: supporters have many political alternatives, and competitors may buy them off.43
42 C RAJ KUMAR, CORRUPTION AND HUMAN RIGHTS IN INDIA: COMPARATIVE PERSPECTIVE ON TRANSPARENCY AND GOOD GOVERNANCE, 167, (2011). 43 D NARASIMHA REDDY, CRIME, CORRUPTION AND DEVELOPMENT, 47 (2001). 20
CHAPTER 4
INDIAN LEGAL & INSTITUTIONAL FRAMEWORK FOR
CURBING CORRUPTION
“Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions.” -Justice K.T. Thomas44
This observation by former Supreme Court judge summarizes the dangers of unchecked corruption which could be disastrous for our nation. In the context of executive corruption, the term ‘public servants’ can be referred to MPs, MLAs, ministers & heads of Central and State government. Any misfeasance on their part not only demoralize public faith in our justice system but also emboldens officials at other departments of government to indulge in corrupt activities without any fear of law or shame. Laws are often considered as the powerful tool of the sovereign rulers to crush the menace of corruption especially the one involving political executives at the top. Some of India’s present legislations on anti- corruption are as follows:
44 K.C. Sareen v CBI, (2001) 6 SCC 584.
21
I. Indian Penal Code, 1860 In the pre-independence period, the IPC was the main tool for combating corruption in public life. It had a chapter regarding ‘Offences by Public Servant’ under Section 161-165 of the Code which dealt with punishing public servants for corruption. However, its scope of the term ‘public servant’ is quite limited which can be referred from the text of the provision itself. Moreover, most of IPC sections aimed more at preventing bureaucratic corruption than executive corruption which proves that the penal code is too archaic & ill-equipped to prevent corruption of any sort, let alone the executive one at present times.
II. Prevention of Corruption Act, 1988
To deal with corruption amongst public servants, Indian Parliament enacted Prevention of Corruption Act 1988, replacing Prevention of Corruption Act 1947. It was enacted to consolidate different anti-corruption provisions from various pieces of legislation under one umbrella and to make them more effective & 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, 1860 with minor modifications. The PCA inter alia, widened and enlarged the scope of the definition of a ―public servant; enhanced penalties provided for offences in earlier laws; incorporated the provisions of freezing of suspected property during trial; mandated trial on a day-to-day basis, prohibited the grant of stay on trial; etc and is divided into five (V) Chapters and 31 Sections. Section 2(c) of the Act provides a broad definition of Public Servant to include any person who is required to perform a public duty within the purview of the term Public Servant.45 Public Duty has been defined in Section 2(b) as a duty in the discharge of which the State (State includes a corporation established by or under a Central or State Act, or an authority or a body owned controlled or aided by a Government company), the public or the community at large has an interest.46 Section 7 of PCA provides that anyone who accepts or obtains or agrees to accept or attempts to obtain from anyone any gratification (in the form of money or otherwise) for favour or disfavour shall be punished with imprisonment for not less than six months (term of
45 PAUL COHEN AND ARTHUR MARRIOTT QC, INTERNATIONAL CORRUPTION, 218, (2010). 46 Id. 22 imprisonment may extend to five years).47 Section 19 of this Act provides that for prosecuting a serving Public Servant under this Act, sanction of the authority competent to remove him viz. Central Government or State Government or any other authority.
III. Prevention of Money Laundering Act, 2002 Often considered as leading legal tool for preventing money laundering, the act excludes customs, excise, income tax, etc within its ambit. In this law, the Director of Financial Intelligence Unity (FIU) & Director (Enforcement) have been equipped with exclusive powers to investigate money laundering cases.48 Despite its stringent provisions, the law fails to achieve its objectives for following reasons: It excludes private persons from its ambit for the purpose of prosecution. The task of implementing the act is exclusive domain of the Union government which conflicts with Law & order issue(State government’s constitutional domain), leading to lack of co-ordination among law enforcing agencies for proper investigation of money laundering cases. While India had signed Mutual Legal Assistance Treaties (MLAT) with 37 nations, the act becomes inapplicable against those nations which had not yet signed MLAT with India. This enables the corrupt executive elites to stash illicit wealth in those tax havens such as Cayman Islands, Bermuda, etc.49
IV. Right to Information Act, 2005
A democratic set up requires three basic aspects i.e. accurate information, equal and effective participation of all citizens in day to day governance, transparency and accountability on part of those in public offices.50 Democracy means elected representatives and informed choice is possible only on the basis of facts known and information available. Modern democracy include a wider and more direct concept of liability- a concept that goes farther the traditionally well established principle of responsibility of the executive to the
47 PAUL COHEN AND ARTHUR MARRIOTT QC, INTERNATIONAL CORRUPTION, 218, (2010). 48 Anirban Bhattacharya and Bharat Chugh, All you need to know about the law relating to money-laundering in India, MONDAQ, (May 2, 2017) http://www.mondaq.com/india/x/589978/Money+Laundering/All+You+Need+To+Know+About+The+Law+Re lating+To+MoneyLaundering+In+India (Last visited on May 17, 2019). 49PTI, India signs tax info exchange pact with Saint Kitts, THE HINDU BUSINESS LINE, (November 22, 2017) https://www.thehindubusinessline.com/economy/India-signs-tax-info-exchange-pact-with-Saint-Kitts-amp- Nevis/article20909777.ece (Last visited on May 17, 2019). 50S.P. SATHE, RIGHT TO INFORMATION, 67, (2006). 23 legislature in a parliamentary democracy. Increasingly, the trend is towards the facts, in terms of standards of performance and service delivery, of public agencies to the citizen groups they are required to serve from time to time. Such answerability is possible only when public has access to information relating to the function of those agencies. In 2005, the new right to Information Act was passed. The Right to Information Act, 2005 is improved version of the Right to Information Act, 2002. The law lays down the architecture for accessing information, which is simple, easy, time bound and inexpensive. There will be severe penalties for dereliction to provide information or affecting its flow. In fact, it laid obligation on agencies to reveal information suo moto, thus degrading the cost of access.51 A major forward step is that the law now extends to all public authorities in the states and Union territories.52 However, cases of laying down penalty upon shamed government officials are low but this has worked tremendously. The Right to Information Act, 2005 is boon to the citizens of India.
V. Whistleblowers Protection Act, 2011
Though the Law Commission of India (LCI) recommended drafting of whistleblower protection law in their report53, the grassroots movement towards its formation could gathered pace only after brutal murder of famed whistleblower Mr. Satyendra Dubey.54 Enacted in 2011, the salient features of the act were:
Whistleblowers are empowered to make complaints on corruption under PCA, wilful misuse of power & legally recognized offences committed by public servants; Making false complaints would result in punishment upto two years of imprisonment & Rs. 30,000/- fine. Without whistleblower’s written consent, his/her identity shall not be revealed. Non enquiry of a complaint against officials whose names were either not mentioned in the complaint or found to be false. The proceedings of the act are judicial in nature.
51Supra at note 47. 52Id. 53 Law Commission of India, 179th Report on the Public Interest disclosure and Protection of Informers, (2001), http://lawcommissionofindia.nic.in/reports/179rptp1.pdf (Last visited on May 17, 2019). 54Ushinor Majumdar, It’s not worth having whistleblowers in India today, OUTLOOK, (August 17, 2017) https://www.outlookindia.com/magazine/story/its-not-worth-having-whistleblowers-in-india-today/299245 (Last visited on May 17, 2019). 24
The Act suffers from several weaknesses which create reasonable doubts regarding its ability to protect whistleblowers in corruption cases especially the ones involving high profile political leaders which are as follows:
Its scope is limited to government officials & doesn’t cover individuals from private sector. This is quite a major flaw because many of scams & scandals committed by political executives involve active participation of private players.55 The act doesn’t cover reporting of offences committed by the Prime Minister of Chief minister which makes the law completely useless against fighting executive corruption.56 The recent amendments which deal with preventing complaint filing on matters related to ‘national security’ merely defeat the purpose of the provision.57 Section 11 of the Act doesn’t define terms such as victimization which leaves ambiguity & possible chances of misuse by executives to settle scores with political opponents. The burden of proof regarding submitting documentary proof by the whistleblower in lieu of protection under Section 5(4) of the Act creates chilling effect on potential whistleblowers since many of initial evidence on corruption are mostly based on hearsay or circumstantial evidence.58 The act lacks provisions for filing of anonymous complaints
VI. Black Money (Undisclosed Foreign Income and Assets) & Imposition of Tax Act, 2015
Enacted in 2015, the objectives of the act were to curb black money & impose stringent punishment for offenders with imprisonment upto 10 years who stash their assets in tax havens outside India. Its’ major feature is the “One-Time Compliance Scheme” (OTCS)
55 Shishir Tripathi, The case of Whistleblowers and their protection, GOVERNANCE NOW, (July 15, 2015), https://www.governancenow.com/news/regular-story/the-case-of-whistleblowers-and-the-laws-to-protect-them (Last visited on May 17, 2019). 56Id. 57Id. 58Supra at note 38. 25 under Section 59-72 of the Act which allow people with undisclosed offshore assets to disclose the information in lieu of exemption from prosecution albeit with payment of 30% tax and 90% penalty on such tax (Section 60 & 61). Though, the Union Government was able to recover approximately Rs. 70, 000/- crores of black money through this act59, there are certain issues with the act which seems inadequate to handle executive corruption:
The provisions don’t provide immunity for declaration as legally admissible for the purpose of proceedings under PMLA. In its absence, there are reasonable chances of misuse against disclosers which create chilling effect in such cases involving political executives as possessors of such assets.60 By excluding Non-Resident Indians (NRIs), the Act had virtually allowed offenders to retain their ill-gotten wealth in abroad by taking help of former.61 Powerful executives are likely to use this loophole to save their stashed assets by making their relatives or friends as NRIs & transferring those assets.
Recently, Calcutta High Court held that the prosecution under Black Money Act during pendency in penalty proceedings under Income Tax Act, 1961 does not amount to double jeopardy.62
4.1. INSTITUTIONAL FRAMEWORK AGAINST CORRUPTION When it comes to anti-corruption bodies institutions, India has various agencies at both the central & state level. However we would be looking at the federal/central agencies for understanding their workings & loopholes within the system which prevent them from carrying out their duties effectively with respect to their political bosses. In absence of robust mechanism, no amount of anti-corruption laws can reduce corruption in India irrespective of its quality and perpetrator of corrupt activities. These observations were in sync with the
59 Mudit Kapoor, Report Card: Modi Government’s fight against black money, INDIA TODAY, (August 3, 2018), https://www.indiatoday.in/india/story/report-card-modi-government-s-fight-against-black-money- 1303933-2018-08-03 (Last visited on May 17, 2019). 60 PTI, Loopholes in black money bill can lead to harassment: Assocham, ECONOMIC TIMES, (May 6, 2015), https://economictimes.indiatimes.com/news/politics-and-nation/loopholes-in-black-money-bill-can-lead-to- harassment-assocham/articleshow/47178892.cms (Last visited on May 17, 2019). 61 BI India bureau, Wealthy Indians are exploring ways to hide black money. Know How, BUSINESS INSIDER, (May 13, 2015), https://www.businessinsider.in/wealthy-indians-are-exploring-ways-to-hide-black-money- know-how/articleshow/47265648.cms (Last visited on May 17, 2019). 62Shrivardhan Mohta v Union of India, (2019) 307 CTR 396 26 opinion by the constitutional bench of the Indian Supreme Court’s opinion while examining the constitutionality of Section 6A of DSPE Act, 1946 in following words:
“Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.”63
I. CENTRAL BUREAU OF INVESTIGATION The Central Bureau of Investigation or CBI is the leading investigation agency of the Central Government & derives its investigation powers from the Delhi Special Police Establishment Act, 1946.64 Its complaint mechanism is quite similar to CVC in which the cases falling within its purview & need further verification requires permission from the competent authority (Central/State Government) while cases outside CBI’s ambit are provided to the concerned department.65 Moreover, both the Indian Supreme Court & the High Courts have power to order CBI for conducting investigations which explains the strategy of filing PILs before courts by civil society organizations for attacking executive corruption.66 Placed under the Ministry of Personnel, Pensions and Grievances, CBI comprises of three divisions:
Investigation and Anti-Corruption Division- It deals with investigating corruption charges against political leaders as well as frauds committed by public servants from Central government. Special Crime Division-Involves in cases of murder, terrorism, rape, kidnapping, etc. Economic Offences Divisions- Handle cases related to financial frauds, smuggling of contraband items, etc.67 Though these divisions have the power to investigate corruption in every branch of central government while require permission from the State governments to investigate state
63Subramaniam Swamy v Union of India, AIR 2014 SC 2245. 64 PAUL COHEN AND ARTHUR MARRIOTT QC, INTERNATIONAL CORRUPTION, 216, (2010). 65Id 66Id. 67Supra at note 33. 27 level cases.68 In 2010, the Indian Supreme Court reduced the state governments’ powers over granting permission to CBI for investigating corruption cases at state level, thus enlarging latter’s powers regarding investigation against state level political executives.69 This often results in CBI’s overreach which not only damages centre-state relations (Especially between governments led by different parties at Centre & state levels)70 but also faces accusation of working for Central government’ political interests.71 In fact, CBI was castigated by the Indian Supreme Court as ‘caged parrot’ for its shoddy conduct while investigating the CoalGate scam.72 These developments are one of the symptoms which reflect CBI’s pathetic conviction record with mere 3% convictions on corruption cases.73 In fact, the recent internal clashes among CBI leadership74, poor track record over handling high profile corruption cases75 & tendency to abide by their political superiors at Central level to ‘reduce pressure’ on political allies76 highlights the need for structural reforms which empower CBI to act freely over investigating corruption cases involving both Central & state level politicians.77
68Id. 69State of West Bengal & Ors v Committee for Protection of Democratic Rights, West Bengal & Ors, (2010) 3 SCC 571. 70 Shoaib Daniyal, Scroll Explainer: How Andhra Pradesh and West Bengal barred the CBI from their states, SCROLL, (November 18, 2019), https://scroll.in/article/902519/scroll-explainer-how-andhra-pradesh-and-west- bengal-barred-the-cbi-from-their-states (Last visited on May 19, 2019). 71 D Shyam Babu, The CBI and the rules of political combat, THE HINDU, (January 7, 2019), https://www.thehindu.com/opinion/lead/the-cbi-and-the-rules-of-political-combat/article25926694.ece (Last visited on May 16, 2019). 72TNN, CBI a ‘caged parrot’, ‘heart’ of coalgate report changed: Supreme Court, THE TIMES OF INDIA, (May 8, 2013), https://timesofindia.indiatimes.com/articleshow/19952260.cms?utm_source=contentofinterest&utm_medium=te xt&utm_campaign=cppst (Last visited on May 16, 2019). 73A.M. Jigeesh, Why does CBI have a conviction rate of just 3%?, THE HINDU BUSINESS LINE, (January 8, 2018), https://www.thehindubusinessline.com/news/national/why-does-cbi-have-a-conviction-rate-of-just- 3/article9935407.ece (Last visited on May 20, 2019). 74ET Online, The War inside CBI: Why Alok Verma and Rakesh Asthana are at each other’s throats, ECONOMIC TIMES, (October 23, 2018) https://economictimes.indiatimes.com/news/et-explains/the-war- inside-cbi-why-alok-verma-and-rakesh-asthana-are-at-each-others-throats/articleshow/66333104.cms (Last visited on May 20, 2019). 75PTI, Not just 2G, CBI failed judicial scrutiny in other cases, THE WEEK, (December 22, 2017), https://www.theweek.in/news/india/not-only-in-2g-cbi-failed-judicial-scrutiny-in-other-cases.html (Last visited on May 20, 2019). 76Prashant Bhushan, Is CBI the handmaiden of the government, THE HINDU, (July 14, 2017), https://www.thehindu.com/opinion/op-ed/is-cbi-the-handmaiden-of-the-government/article19272931.ece (Last visited on May 20, 2019). 77Manoj Joshi, View: It’s time to reform the CBI, ECONOMIC TIMES, (October 24, 2018), https://economictimes.indiatimes.com/news/politics-and-nation/view-its-time-to-reform-the- cbi/articleshow/66338206.cms?from=mdr (Last visited on May 20, 2019). 28
II. CENTRAL VIGILANCE COMMISSION Following Santhanam Committee’s recommendation for an independent institution to check corruption,78 it was established in 1964 whose major tasks were monitoring vigilance activities under the Central Government with respect to the planning, executing, reviewing & reforming their vigilance work.79 Accountable only to the Parliament, it deals with handling vigilance matters, anti-corruption measures & CBI’s activities under CVC Act, 2003 & CVC is also empowered to conduct enquiry regarding application of PCA against certain groups of public servants.80 In 1998, the Indian Supreme Court directed the Union Government to confer statutory status on CVC81 which was obliged by the Parliament through enacting the Central Vigilance Commission Act of 2003.82 Comprising of three members i.e. the Chairperson and two other vigilance commissioners, CVC also handle technical matters regarding construction works with help of its wing for technical examiners.83 Despite such features, CVC faces certain issues which hamper its anti-corruption activities:
Transforming CVC from its original single body to group of three vigilance commissioners leads to lack of unanimity in its decisions & serves constant confusion over its stance in various matters.84 Moreover it makes the corrupt offenders belonging to executive branch of government and bureaucrats to approach individual vigilance commissioner for influencing CVC’s outcomes which reeks of TN Seshan incident.85 Also, there is lack of transparency regarding its appointment since the lack of public notice from the government allow only few selected individuals who have linkages to government i.e. IAS officers for the post of vigilance commissioners. This contention was raised before the Indian Supreme Court to challenge the recent appointments of Mr. K.V. Chaudhary & T.M. Bhasin which was later upheld by the Apex Court.86 Unlike CAG & CBI, CVC lacks investigating powers & is often considered as recommendatory body whose suggestions are subject to the government’s will over
78 http://www.cvc.nic.in/sites/default/files/scr_rpt_cvc.pdf (Last visited on May 20, 2019). 79 PAUL COHEN AND ARTHUR MARRIOTT QC, INTERNATIONAL CORRUPTION, 215, (2010). 80Id. 81Vineet Narain v Union of India, (1998) 1 SCC 226. 82Supra at note 48, p.215. 83Id, p. 216. 84 D.S. Soman, Hobbling the CVC, THE HINDU BUSINESS LINE, (December 21, 2000), https://www.thehindubusinessline.com/2000/12/21/stories/042155so.html (Last visited on May 18, 2019). 85 Id. 86Common Cause & Ors v Union of India & Ors, (2018) 9 SCC 382. 29
abiding them. This often allows the executive government to either ignore its recommendations87 or take huge delays for its implementation-Both situations create mockery of CVC before the common man regarding its ability to work as an independent watchdog.88 Its lacks jurisdiction over state governments which excludes them from attacking executive corruption involving state chief ministers & his/her ministers. Further, manpower shortage depletes CVC’s ability to overseer huge government departments such as works department.89 Due to its limited powers with exception to disciplinary proceedings, CVC is often ridiculed as toothless tiger that failed to check corruption at highest echelons of government, let alone attacking corruption at other levels of administration.90
III. COMPTROLLER AND AUDITOR GENERAL Articles 148 to 151 of the Indian Constitution talk about the office of Comptroller and Auditor General or CAG which is considered as guardian of public purse.91 Due to its constitutional status & independent from Parliamentary & executive control, it had acted as active watchdog over government financial matters & severally attacked both central92 & state governments such as Uttar Pradesh93, Karnataka94, Andhra Pradesh95, etc for corruption over irregular allocations of public resources. Furthermore, revelation of major scams such as
87Rahul Tripathi, Red-flagged 50 cases of alleged corruption, nepotism but no state action: CVC, INDIAN EXPRESS, (April 24, 2017), https://indianexpress.com/article/india/central-vigilance-commission-red-flagged- 50-cases-but-no-govt-action-says-cvc-in-report-corruption-nepotism-high-handedness-4625573/ (Last visited on May 18, 2019). 88Archana Mishra, Vigilance is not an attractive work to do, GOVERNANCE NOW, (July 10, 2017), https://www.governancenow.com/views/interview/vigilance-is-not-an-attractive-work-to-do-pratyush-sinha- cvc-central-vigilance-commission (Last visited on May 18, 2019). 89Id. 90India Today Team, Toothless Tigers, INDIA TODAY, (November 26, 2010), https://www.indiatoday.in/magazine/the-big-story/story/20101206-toothless-tigers-744900-2010-11-26 (Last visited on May 19, 2019). 91 Deepika Reddy, Importance of CAG, TELANGANA TODAY, (April 24, 2017), https://telanganatoday.com/importance-of-cag (Last visited on May 19, 2019). 92 BS Reporter, Meet Vinod Rai, the Man who gave a number to the spectrum scam, BUSINESS STANDARD, (December 23, 2017), https://www.business-standard.com/article/economy-policy/2g-verdict-meet-vinod-rai- the-man-who-gave-a-number-to-the-spectrum-scam-117122001235_1.html (Last visited on May 15, 2019). 93 Nelanshu Shukla, Irregularities worth Rs 97,000 crores under Akhilesh Government, INDIA TODAY, (September 21, 2018), https://www.indiatoday.in/india/story/irregularities-worth-rs-97-000-crore-under- akhilesh-yadav-government-cag-1345811-2018-09-21 (Last visited on May 15, 2019). 94Vijesh Kamath, CAG finds big lapse in Karnataka govt land grant, DECCAN HERALD, (December 18, 2018), https://www.deccanherald.com/state/cag-finds-big-lapse-grant-govt-708721.html (Last visited on May 20, 2019). 95M Suchitra, CAG exposes land scam in Andhra, DOWN TO EARTH, (July 4, 2015), https://www.downtoearth.org.in/news/cag-exposes-land-scam-in-andhra--37920 (Last visited on May 10, 2019). 30
CoalGate, 2G Spectrum scam, etc during tenure of Mr Vinod Rai as CAG96 showed CAG’s potential in strengthening India’s fight against executive form of corruption. However, there are certain loopholes over its working which doesn’t adequately challenge executive corruption in following words:
Sections 14,15, 19(3) & 20(1) of the CAG’s (Duties, Powers and Conditions of Services) Act, 1971 (DPC) severally curtails its power over authorities through high focus on prior government sanction(Unlikely to happen if the accused persons is key link to the political executive on the scam’s modus operandi) & excluding local bodies & public private partnerships (PPP) from CAG’s audit. It is merely an examining agency which prepares detailed reports on financial dealings of the Central & State government but cannot enforce their own reports. This often leads to danger of its entire report getting rejected by political executives in toto. CAG is often accused of creating negative impression against administration through fault-finding which causes deep frictions between executive/legislature & the CAG. In case of non-cooperation from state government departments, CAG cannot work effectively to audit budgetary details even if there was possibility of exposing financial irregularities during its auditing process.97 Finally, Section 18 of the DPC Act doesn’t provide timeline for releasing its reports & other details which create opacity over crucial policy making by the executives at both the Central and State level.
96VINOD RAI, NOT JUST AN ACCOUNTANT: THE DIARY OF THE NATION’S CONSCIENCE KEEPER, 153-209, (2014). 97 Amit Arora, CAG unable to audit key welfare schemes as Mamata government refuses to share data: RTI, INDIA TODAY, (October 5, 2018), https://www.indiatoday.in/india/story/cag-unable-to-audit-key-welfare- schemes-as-mamata-government-refuses-to-share-data-rti-1356228-2018-10-05 (Last visited on May 17, 2019). 31
CHAPTER 5
ROLE OF INDIAN JUDICIARY IN PREVENTING
CORRUPTION BY POLITICAL EXECUTIVES
Due to several corruption scandals involving members from executive & legislative branches of government, public had almost lost their faith in their elected representatives & the entire democratic system itself. However, there is still hope for redemption through judicial intervention which is reflected in high hopes for judiciary among our masses.98 Through their activist approach regarding application of judicial review in public policy matters, both the Supreme Court & High Courts can play a major role in restraining executives’ powers & its arbitrary exercise. This contention can be strengthened by the fact that while public perception of executives’ involvement in corrupt activities fuelled public protests99 & even rise of political forces such as Arvind Kejriwal led Aam Aadmi Party (AAP)100 & huge win of Narendra Modi led BJP in 2014 Lok Sabha election.101
This urge for probity in public life and developing contempt for executive corruption can be utilized in a better manner with the help of judiciary through PILs. Since 1990s, the Indian Supreme Court has become a battleground of anti-corruption struggle on account of civil society organizations such as Common Cause, ADR; etc brought anti-corruption litigation especially the ones dealing with irregularities in public resource allocation by both central & state governments.102 In fact, before Modi’s huge win in 2014, the period of weak coalition governments proved boon for judicial activism since the courts can take strict action against corruption committed by high profile politicians while both executive & legislative were suffering from poor perception over their failures to curb corruption especially
98 Special Correspondent, Political parties most distrusted, Army, Judiciary win’s people’s trust says study, THE HINDU, (March 27, 2019), https://www.thehindu.com/news/national/political-parties-most-distrusted- army-judiciary-win-peoples-trust-says-study/article26647338.ece (Last visited on May 18, 2019). 99 Sumantra Banerjee, Anna Hazare, Civil Society and the State, 26, ECONOMIC AND POLITICAL WEEKLY, 12 (2011). 100 Mandakini Devasher Surie, Corruption in India and the rise of Aam Aadmi Party, ASIA FOUNDATION, (January 22, 2014), https://asiafoundation.org/2014/01/22/corruption-in-india-and-the-rise-of-the-aam-admi- party/ (Last visited on May 18, 2019). 101Dharmendra Kumar Singh, Explaining the Modi wave, REDIFF, (June 6, 2014), https://www.rediff.com/news/column/explaining-the-modi-wave/20140606.html (Last visited on May 18, 2019). 102B.N. KIRPAL, SUPREME BUT NOT INFALLIABLE: ESSAYS IN THE HONOUR OF THE SUPREME COURT OF INDIA, 159 (2001). 32 executive corruption.103 However, the recent developments in our jurisprudence on executive corruption through detailed studying of case-laws suggest that the rise of full majority government hardly acted as deterrent to Indian courts over giving anti-corruption rulings.
Also, the Indian Constitution had equipped our courts to deal with such situations with help of various provisions such as Article 32/226 (Writ Petitions), 136(Special Leave Petition), 141(Binding effect of SC ruling), etc. These constitutional measures helped our Apex Court to become meaningful venues for activism against executive or grand corruption. Not only had it tried to reduce executive’s arbitrary exercising of powers in appointing heads of anti-corruption institutions but also plugged legal loopholes regarding prosecuting offenders under Anti-corruption laws to a certain extent. In fact, the case-laws described in this chapter of the dissertation would not only highlight the judicial fight against executive corruption but also help in understanding the roadmap for future legal innovation to tackle executive corruption. Here is the list of the landmark judicial pronouncements regarding measures for curbing executive corruption:
5.1. SUPPORT FOR CITIZENS’ RIGHT TO TRANSPARENCY It is well known fact that powerful executives are biggest opponents of accountability & transparency who resort to abuse of power for safeguarding their ill-gotten wealth, power & privileges.104 However, our courts have acted as bulwark against this tendency of political executives through pro-transparency decisions.
In State of Uttar Pradesh v Raj Narain105, the Apex Court held that the citizens’ fundamental right of speech would remain incomplete without having complete information on public policy. Similarly, the importance of accountability for preserving Indian democracy was emphasized by the Constitutional Bench of the Indian Supreme Court in S.P. Gupta v Union of India.106 These decisions led to commencing of three-decade old struggle for
103NIRAJA GOPAL JAYAL AND PRATAP BHANU MEHTA, THE OXFORD COMPANION TO POLITICS IN INDIA, 80, (2010). 104M. Steve Fish, Katherine E Michel and Staffan I. Lindberg, Legislative Powers and Executive Corruption, 5- 6, VARIETIES OF DEMOCRACY INSTITUTE,(2015), https://www.v- dem.net/media/filer_public/50/aa/50aa46d9-35e9-4367-a3fb-f9e918bbde0b/v- dem_working_paper_2015_7.pdf(Last visited on May 19, 2019). 105AIR 1975 SC 865 106AIR 1982 SC 149 33 accountability in our democratic system which culminated into the enactment of RTI Act in 2005.107
5.2. EXPANDING PROSECUTION SCOPE UNDER PCA The meaning of the term “Public Servant” under IPC was expanded to the minister, chief minister and Prime Minister in the landmark case of M Karunanidhi v Union of India108 which could be later referred under Section 2(c) of PCA as well. This inclusive interpretation for applying PCA to Members of Parliament & Legislative Assembly was widely supported by other high courts through their decisions in L K Advani v Central Bureau of Investigation109 & Habibulla Khan v State of Orissa & Anr.110
The Indian Supreme Court endorsed expanding the prosecution scope to MPs, MLAs, & executive members of the government at Central & State level in their landmark decision of P.V. Narasimha Rao v State (CBI/SPE)111 under Section 2(c) of the Prevention of Corruption Act, 1988. Similarly, in Parkash Singh Badal v State of Punjab112, the Apex Court rejected the appellant’s contention that the provisions of PCA especially Section 8 & 9 of the act are not applicable to MPs & held that the term “whoever” covers any public servant who takes gratification as motive or reward for inducing public officials through corrupt & illegal means.
5.3. CONVICTION IN TEACHERS RECRUITMENT SCAM In Rekha Sharma & Ors v CBI113, the Delhi High Court upheld the 2013 ruling of CBI court regarding sentencing former Haryana CM Om Prakash Chautala, his son Abhay Chautala & 53 others over illegal recruitment of 3,206 teachers during his reign. Also, called as Junior Basic Trained (JBT) teacher scam, the accused arbitrary changed the original recruitment list & replacing it with new list comprising of candidates who paid bribes worth Rs. 4 lakh & had inflated interview marks.114 When revealed by an IAS officer, this lead to CBI inquiry in 2003 which led to accused’s conviction for forgery & violating PCA
107Leonid Peisakhin, Transparency and Corruption: Evidence from India, 55, JOURNAL OF LAW AND ECONOMICS, 132, 129-149 (February 2012). 108AIR 1979 SC 898. 109 66 (1997) DLT 618.. 110 1993 CriLJ 3604 (Orissa HC). 111AIR 1998 SC 2120. 112(2007) 1 SCC 1. 113218 (2015) DLT 1. 114https://www.indiatoday.in/india/story/what-is-the-teachers-recruitment-scam-152255-2013-01-22 (Last Visited on May 12, 2019). 34 provisions.115 The Delhi HC observed the adverse effect of bribe-influenced arbitrary policy making on citizens’ basic rights such as Education in following words:
Education is a tool, which can be skillfully used by competent teachers to model the youth (our most precious human resource) in their formative years, to enable them to become productive citizens in future and herald India to epitome of success. Yet the instant case demonstrates how the process of appointing competent teachers was also vilified and not spared from the malaise of corruption. Such scams not only result in dissemination of poor quality education to the millions of children; who are bound to suffer, but also unfairly deprive the competent participants in such selection processes an opportunity to gain public employment and meaningfully serve the country. Public confidence is bound to get shaken, resulting in frustration/anxiety amongst the youth; who eagerly await the scarce employment opportunities, giving further impetus to the culture of corruption. (Paragraph 502)
It was later upheld by the SC in 2015 where the Division bench dismissed the appellants’ appeal against Delhi HC ruling.116 This case is classic example of how political corruption plays with citizens’ future merely to enrich few powerful individuals & helps in tackling corruption in public life.
5.4. FIGHT AGAINST MISFEASANCE IN PUBLIC OFFICES In Common Cause A Registered Society v. Union of India117 the allotments of retail outlet for petroleum products (the petrol pumps), by Capt. Satish Sharma was challenged as applications not been officially received by the Petroleum Ministry. There is no receipt - entry on any of the applications, as if all the applicants have approached the Minister directly. There is nothing on the record to indicate that the Minister kept any criteria in view while making the allotments. It is also not clear that how the applicants came to know about the availability of the petrol pumps, no advertisement being made to invite the applications. Moreover, allotments could be made only on two grounds, i.e., poverty and unemployment, and it is not clear how the minister has selected the allottees out of millions of poor and the unemployed in this country. Thus, all the allotments had been made in arbitrary and discriminatory manner.
115https://www.firstpost.com/politics/why-chautala-is-in-jail-all-you-need-to-know-about-jbt-scam-590338.html (Last Visited on May 12, 2019). 116Ashok Kini, SC dismisses appeals by Chautalas: Former CM to spend 10 years in jail, LIVELAW, (August 4, 2015), https://www.livelaw.in/sc-dismisses-appeals-by-chautalas-former-cm-to-spend-10-years-in-jail/ (Last visited on May 12, 2019). 117AIR 1996 SC 2638 35
5.5. DISPROPORTINATE ASSETS CASE The grave impact of corruption by authorities on public life can be understood through the pithy observation made by the division bench of the Indian Supreme Court in following words:
“Corruption is a vice of insatiable avarice for self-aggrandizement by the unscrupulous, taking unfair advantage of their power and authority and those in public office also, in breach of the institutional norms, mostly backed by minatory loyalists. Both the corrupt and the corrupter are indictable and answerable to the society and the country as a whole. This is more particularly in re the peoples' representatives in public life committed by the oath of the office to dedicate oneself to the unqualified welfare of the laity, by faithfully and conscientiously discharging their duties attached thereto in accordance with the Constitution, free from fear or favour or affection or ill-will. A self-serving conduct in defiance of such solemn undertaking in infringement of the community's confidence reposed in them is therefore a betrayal of the promise of allegiance to the Constitution and a condemnable sacrilege. Not only such a character is an anathema to the preambulor promise of justice, liberty, equality, fraternal dignity, unity and integrity of the country, which expectantly ought to animate the life and spirit of every citizen of this country, but also is an unpardonable onslaught on the constitutional religion that forms the bedrock of our democratic polity”118
This landmark decision not only upheld CBI trial court’s ruling for convicting former Tamil Nadu CM Jayalalitha (Posthumous), VK Sasikala and others for possessing disproportionate assets above their income but also weakened the 10% margin rule for assessing disproportionate assets under PCA (A technical criteria which served ratio decidendi for Karnataka High Court’s decision for overruling the lower court decision). Spanning over two decades, the lengthy process & accused’s delaying tactics depicts the need for speedy trial for adjudicating corruption cases involving political authorities as well as empowering law enforcing agencies.119
5.6. FODDER SCAM CASE The conviction of Lalu Prasad Yadav, former CM of Bihar in 2017 by CBI trial court shows the shining example of judicial intervention against political corruption.120 Accused of
118State of Karnataka & Ors v Selvi J Jayalalitha and Ors, (2017) 6 SCC 263 119T.S. Subramaniam, A Trial of two Decades, FRONTLINE, (March 17, 2017), https://frontline.thehindu.com/politics/a-trial-of-two-decades/article9563902.ece (Last visited on May 13, 2019). 120State(Through CBI) v Lalu Prasad Yadav & Ors, RC Case No 64(A)/1996 Pat (23.12.2017-CBI court) 36 embezzling funds for animal fodder through fraudulent transactions (Later known as Fodder scam)121, the CBI trial court had found Lalu Prasad Yadav, his predecessor Jagannath Mishra & 48 other politicians & IAS officers guilty of forgery & corrupt activities under provisions of PCA & IPC and sentenced them to five years imprisonment122 which is getting accumulated to 14 years through convictions in separate cases of fodder scam.123
5.7. ENSURING EFFECTIVE PROTECTION TO WITNESSES Any prosecution of corruption cases involving political leaders would be ineffective if the state fails to provide sense of security to the witnesses or their families. Considering the high potential of intimidation/influencing the witnesses by offenders linked with political patronage, it is very important to provide equal protection for the witnesses involved in such cases which the Indian Supreme Court had tried to address by recently approving the Witness Protection Scheme, 2018 by the Union Government.124 It not only involves surveillance tactics for quick receipt of threat indication against witnesses but also takes care of their financial concerns through establishing of Witness Protection Fund.125 This would be quite handy for strengthening witness protection along with Whistleblowers Protection Act, 2011.
5.8. WEEDING OF LEGAL LOOPHOLE UNDER RPA
The date of 10th July 2013 will always be remembered as a red-letter day in our constitutional law history for this day, the Indian Supreme Court nullified the provision of Section 8(4) of the Representation of People’s Act, 1951 in its landmark judgment in Lily Thomas v Union of India & Ors126 which was a major legal stumbling block between the ideals and reality of our democracy.
This kind of legal exemption was widely misused by our political leaders who used it as protective tool by convicted MPs and MLAs so as to shield themselves from disqualification
121Alok Gupta, Lalu Yadav convicted in fodder scam, DOWN TO EARTH, (July 4, 2015), https://www.downtoearth.org.in/news/lalu-yadav-convicted-in-fodder-scam-42313 (Last visited on May 12, 2019). 122 Sanjay Sahay, Bihar’s former CMs Lalu Prasad, Jagannath Mishra and 48 others convicted in fodder scam, sentenced to five years, LIVELAW, (January 24, 2018), https://www.livelaw.in/bihars-former-cms-lalu-prasad- jagannath-mishra-48-others-convicted-fodder-scam/ (Last visited on May 12, 2019). 123 Sanjay Sahay, Lalu Prasad sentenced to 14 years imprisonment in fodder scam case, LIVELAW, (March 24, 2018), https://www.livelaw.in/lalu-sentenced-14-years-imprisonment-fodder-scam-case/ (Last visited on May 12, 2019). 124Mahender Chawla v Union of India, 2018 (15) SCALE 497 125V. Venkatesan, Landmark Order for protection of Witnesses, FRONTLINE, (December 6, 2018), https://frontline.thehindu.com/dispatches/article25678242.ece (Last visited on May 12, 2019). 126AIR 2013 SC 2662 37 and contest in elections. Section 8(1) set down a number of offences, under which a convicted person is disqualified for 6 years, which include certain electoral offences, offences under the prevention of Corruption Act, 1988, etc. Section 8(2) lists out other offences, for which disqualification will occur only when the punishment is of 6 months or more. Section 8(3) is a residuary provision, where any person convicted for two or more years is disqualified for six years. The then provision of Section 8(4) ensured that the MPs and MLAs can still continue to remain elected, even if they are convicted, provided that within three months of conviction, the convicted person has filed an appeal or revision against such conviction.
5.9. REMOVING LEGAL PROTECTION ON CORRUPT BUREACRATS
Generally, senior bureaucrats have played a major role in enabling executive corruption through their know-how of the administrative system.127 For getting deep information about the factual matrix of scams committed by political executives, it is necessary for law enforcement agencies to seek enquiry against such bureaucrats. However, Section 6A of DSPE Act created hurdles in this aspect since they had to procure prior sanction from the competent authority. In the case of Subramaniam Swamy v Union of India128, the Indian Supreme Court held the provision as unconstitutional on grounds of Article 14 of Indian Constitution. Removal of legal exemption from officers of Secretary Level & above indicates the intention of our courts to curb executive corruption since it would allow CBI to freely conduct enquiry against such bureaucrats. As then Chief Justice Lodha opined
“This provision on the face of it is not valid. It grants absolute protection to corrupt officers from prosecution. They don’t need a shield like this merely because they are likely to be harassed.”
The Bench pointed to the discrimination that was caused between Central Government Officers working at the level of Joint Secretary and above and the same level officers working in the States. The Court said that corrupt persons ought to be treated equally under
127S.K. DAS, PUBLIC OFFICE, PRIVATE INTEREST: BUREAUCRACY AND CORRUPTION IN INDIA, 187, (2000). 128AIR 2014 SC 2245 38 the Prevention of Corruption Act and warned of serious consequences if any inquiry is hampered now.
5.10. ELECTORAL BONDS CASE Opaque electoral funding is often considered as one of the major factor behind political corruption in India.129 The recent introduction of electoral bond by Modi government through Finance Act, 2017 has been quite controversial considering it promotes opacity through hiding donors’ identities.130 It has been challenged before the Supreme Court of India & its order to seek information regarding beneficiaries of electoral bonds would be relevant in analysing the implications of electoral bonds over electoral funding in India.131
129T.K. Arun, First clean up political funding to mount a credible attack on corruption, ECONOMIC TIMES, (December 14, 2016), https://economictimes.indiatimes.com/blogs/cursor/first-clean-up-political-funding-to- mount-a-credible-attack-on-corruption/ (Last visited on May 12, 2019). 130Kaushik Deka, Political Funding: Who pays for the party, INDIA TODAY, (November 9, 2018), https://www.indiatoday.in/magazine/the-big-story/story/20181119-political-funding-who-pays-for-the-party- 1384158-2018-11-09 (Last visited on May 13, 2019). 131Association for Democratic Reforms and Anr v Union of India and Ors (12.04.2019-SC). 39
CHAPTER 6
CONCLUSION
“ Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up, at least, a bit of the king’s revenue. Just as fish moving under water cannot possible be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out taking money” Kautilya, 300 BCE132
Democracy has no place for corrupt activities by political elites especially when its harshest impact happens on the poorest of our society. While executive corruption affects the entire nation as a whole, it generally discourages citizens to live honest lives while empowers corrupt public official to do their political bosses’ bidding without fear of law. Blatant abuse of entrusted power by political leaders as heads & members of government at both Central & state level for sake of power & wealth deteriorated the health of governance. It is a poison which thrives on opacity in decision making & strengthens cynicism among masses133 in ability of Indian democracy to transform their lives from slaves during colonial era to modern citizens of a welfare state.134
Present day corruption at executive level of government in our country is product of collusion between politicians, bureaucrats, crony businessmen and mafia which was rightly described by former Chief Vigilance Commissioner, N Vittal in following words as Neta, Babu, Lala & Dada.135
132C RAJ KUMAR, CORRUPTION AND HUMAN RIGHTS IN INDIA: COMPARATIVE PERSPECTIVE ON TRANSPARENCY AND GOOD GOVERNANCE, 1, (2011). 133Jagdeep S. Chhokar, Electoral Reforms: Need for Citizens’ involvement, 36, ECONOMIC AND POLITICAL WEEKLY, 3979, 3977-3980 (2001). 134Gautam Bhatia, The Constitution of India was not just a founding document. It had a radically transformative vision, Scroll.in, (March 4, 2019) Available at https://scroll.in/article/914555/the-constitution-of-india-was-not- just-a-founding-document-it-had-a-radically-transformative-vision (Last visited on May 4, 2019). 135N BHASKARA RAO, GOOD GOVERNANCE: DELIVERING CORRUPTION-FREE PUBLIC SERVICES, 258 (2013). 40
Like an insidious plague, corruption harms the nation at various stages from slowing down economic growth to encouraging human rights & socio-economic inequalities which further fuel other problems such as Naxalism.136 It further accelerates towards destroying the very ideals of good governance, democracy, etc when revelations of various scams & scandals involving political leaders from the highest levels of government highlight the deplorable state of our democracy due to politicians’ distorting behaviour.
2.3. HYPOTHESIS TESTING After critically analysing the current legal & institutional framework for preventing corruption along with examining the historical analysis of executive corruption in India, the hypothesis formulated by the researcher have been tested and proved in following words-
1. On detailed study of the historical background of executive corruption in India post independence in forms of scams & its impact on Indian democracy under Chapter 2 & 3 respectively explains the role of collusion among politicians, bureaucrats & others in abetting executive corruption which proves the first hypothesis. 2. As per the finding of Chapter 3 & 4, many of our anti-corruption laws were found too weak to act effectively against corruption committed by executive members of polity. Moreover, ambiguity over key definitions among various statutes also indicates absence of clarity required in India’s legal fight against executive corruption. These observations prove the second hypothesis. 3. The judgments of the Indian Supreme Court & other Indian courts in high profile corruption cases along with their rulings on different matters from removing legal loopholes in various statutory provisions to taking a firm stand against arbitrary actions by the executive in appointing members of anti-corruption bodies justifies the public trust in Indian judiciary for curbing corruption in India especially from the highest levels of governance. These present-day developments with respect to judicial approach on executive corruption prove the third hypothesis on positive impact of judicial intervention against executive corruption.
136 Sonali Beeraka, The Naxalite Movement-The Politico-Economic Perspective, INDIANFOLK, (November 25, 2018), https://www.indianfolk.com/naxalite-movement-politico-economic-perspective-edited/ (Last visited on May 20, 2019). 41
2.4. RESEARCH FINDINGS Corruption involves ethical & moral deviation for personal enrichment through misusing public office. This conventional view lucidly describes the entire objective & modus operandi of executive corruption where it differs from other forms of corruption is that the perpetrator is the ultimate law maker who has powers to make future laws which placed them at advantageous position. Without the involvement of private businessmen & active collusion of bureaucrats, it is quite difficult for executive to keep the details of corruption under the carpet. It is an indicator of governance quality & determines the abiding of good governance principles. Therefore, on the basis of detailed study on various aspects of executive corruption, here are the following findings-
1. While the present legal mechanism seems adequate enough to tackle corruption on paper, the practical application of these laws has been quite shoddy in nature especially in high profile corruption cases involving powerful chief ministers. 2. The major anti-corruption of India i.e. PCA has very limited jurisdiction which is inadequate while investigating executive corruption cases. Considering the high role of private parties, their exclusion from act’s scope hampers the overall legal fight against corruption at the top. 3. The Indian judiciary had tried to plug legal loopholes over providing immunity in criminal matters with success which depict the pro-active approach of our court on executive corruption. 4. Delays in case disposal reduces the stringent aspect of punishment under current legal provisions since it provides offenders adequate time to intimidate/bribe witnesses or influence the case rulings to their advantage. 5. Present form of PCA has pro-executive bias when it comes to prosecuting civil servants only by seeking permission from competent authority (Central/State Government) which reeks of clear conflict of interest with respect to prosecution against accomplice bureaucrats & major culprit (Executive). 6. The absence of adequate witness protection scheme discourages the whistleblowers to raise voice against their political superiors in corruption cases. This issue can be addressed through recent ruling of the Indian Supreme Court (Mahender Chawla case). 7. The scope of anti-corruption has been limited over various jurisdictions. While some exclude private parties for prosecuting under corruption cases, other laws restrict their
42
application to India only which allows the offender to keep their illegal gains outside India for better legal protection. These inconsistencies hamper promoting public interest through judicial review or law enforcing agencies’ work. 8. Corruption at the top levels of governance reflects the poor political morality which is hardly a sign of ideal democracy. 9. Executive corruption cases can be effectively prosecuted through greater probity in administrative working which is possible through independent agencies. 10. Many of our anti-corruption institutions’ working are highly controlled by executive which not only restraints them on cases involving their executive superiors but also keeps their investigations vulnerable to charges of partisanship.
2.5. SUGGESTIONS & RECOMMENDATIONS Following are the recommendations for strengthening our political & legal system against executive corruption-
1. The threshold of government sanction for prosecuting civil servants under Section 19 of PCA should be reduced through amendments. Also, Section 21(12) of the Act should be applicable to private persons as well since many of linkages to executive corruption involve private businessmen & their accomplices. 2. The time period for appointing heads of anti-corruption institutions such as Lokpal, CVC, etc should be fixed since one of the major causes for delay in disposing corruption cases is delay in their appointment on the part of Central/State governments. 3. CBI & CVC should be provided constitutional status akin to CAG for encouraging effective investigation on political corruption cases involving executive heads of governments.137 4. The efficiency of Whistleblower Protection Act, 2011 could be boosted through effective application of recent Witness Protection Scheme in Mahender Chawla case to deal with intimidation threats by powerful political executives against witnesses/whistleblowers in corruption cases. 5. To increase chances of speedy disposal of corruption cases, courts should be allowed to widely use Section 6 of PCA which empowers them for trying case in summary manner.
137Manohar Lal Sharma v Principal Secretary, (2014) 9 SCC 516 43
6. The law on conflict of legislative interest should be drafted by the Parliament on an immediate basis so as to regulate the workings of elected officials in public office. 7. Political parties’ practice of selecting candidates with corruption and criminal record for party ticket138 should be enforced through courts & the Election Commission of India (ECI). 8. State funding of elections should be done to reduce role of illicit money in political funding system in which a National Electoral Fund can be set up where all donors could contribute in transparent manner.139 9. The Supreme Court guidelines on police reforms in Prakash Singh case140 should be strictly enforced so as to make police independent from political pressure while investigation corruption cases. 10. Discretionary powers of ministers & bureaucrats should be minimized through detailed drafting of laws regarding their function & duties. 11. To improve transparency in executives’ working, relevant documents regarding their decisions should be posted online which would reduce opacity in decision making by executive branch of government. 12. Modern technology should be vigorously used for investigating corruption cases. Social media postings should be considered as prima facie proof of assessing disproportionate assets & surveillance by law enforcement agencies.141 Moreover, computerizing every activity related to public services would not only help in providing quick information to the consumers but also encourage tracking their working to deter corrupt politicians from siphon funds. 13. Shortage of judges should be effectively addressed to prevent case pendency. Due to low ratio between judges & people142, case pendency has become a deplorable fact in our legal system which serves as tool for executive offenders to manipulate corruption cases in their favour.
138Jagdeep S. Chhokar, Black Money and Politics in India, Vol 51, ECONOMIC AND POLITICAL WEEKLY, 93, 91-98 (2017). 139G Sampath, The danger of Electoral Bonds, THE HINDU, (November 21, 2017), https://www.thehindu.com/opinion/op-ed/the-danger-of-electoral-bonds/article20602008.ece (Last visited on May 20, 2019). 140Prakash Singh v Union of India, (2008) 8 SCC 1. 141 ZeeBiz Team, Showing off to Social Media? Government is spending Rs 1000 to tax you down, ZEE BUSINESS (March 31, 2019), https://www.zeebiz.com/india/news-income-tax-department-project-insight-to- track-tax-thieves-evaders-92388 (Last visited on May 21, 2019). 142 PTI, India has 19 judges per 10 lakh people: Data, THE HINDU BUSINESSLINE, (September 24, 2018) https://www.thehindubusinessline.com/news/india-has-19-judges-per-10-lakh-people-data/article25030009.ece (Last visited on May 21, 2019). 44
14. To raise legal awareness on corruption at executive level, teaching “Corruption” as law subject should be mandatory in the syllabus for all law courses at the undergraduate level. 15. The role of civil society against fighting executive corruption can be enhanced through filing PILs for allowing our courts to intervene against this cancer which was seen in various case-laws mentioned under Chapter 5 of the dissertation.
Today, corruption at the top levels of government has become menace in our nation which has already reached dangerous levels. Just like wars cannot be left for generals’ handling alone, similarly governance is too serious to be left only in the hands of political leaders. The role of executive corruption in disrupting Indian democracy needs to be highlighted as well as calls for public attention to raise voice against malpractice of enriching vested interests at cost of ignoring public interest. Therefore, it is imperative that the masses should realize their duty & call out the political parties to bring reforms at legal, administrative & political level for reducing executive corruption. The research endeavoured aims at providing practical suggestions for comprehensive improvement in our polity.
45
BIBLIOGRAPHY
BOOKS:
1. BLACK’S LAW DICTIONARY, 10th Ed, THOMSON WEST PUBLICATIONS, (2014). 2. B.N. KIRPAL, SUPREME BUT NOT INFALLIABLE: ESSAYS IN THE HONOUR OF THE SUPREME COURT OF INDIA, OXFORD UNIVERSITY PRESS (2001). 3. C RAJ KUMAR, CORRUPTION AND HUMAN RIGHTS IN INDIA: COMPARATIVE PERSPECTIVE ON TRANSPARENCY AND GOOD GOVERNANCE, OXFORD UNIVERSITY PRESS, (2011). 4. D NARASIMHA REDDY, CRIME, CORRUPTION AND DEVELOPMENT, DEEP & DEEP PUBLICATIONS, (2001). 5. FRANCES BURKE & WILLIAM L. RICTHER, COMBATING CORRUPTION, ENCOURAGING ETHICS: A PRACTICE GUIDE TO MANAGEMENT ETHICS, 2nd Ed, ROWMAN & LITTLEFIELD PUBLICATIONS, (2007). 6. J.C. SCOTT, COMPARATIVE POLITICAL CORRUPTION, 3rd Ed, PRENTICE- HALL INC, (1972). 7. LORRAINE SMITH PANGLE, THE POLITICAL PHILOSOPHY OF BENJAMIN FRANKLIN, JOHN HOPKINS UNIVERSITY PRESS, (2007). 8. MILAN VAISHNAV, WHEN CRIME PAYS: MONEY AND MUSCLE POWER IN INDIA, YALE UNIVERSITY PRESS, (2014). 9. M L AHUJA, ELECTORAL POLITICS AND GENERAL ELECTIONS IN INDIA, 1952-1998, MITTAL PUBLICATIONS, (1998) 10. M V PYLEE, CONSTITUTIONAL GOVERNEMENT IN INDIA, 2nd, S. CHAND PUBLISHERS, (1960). 11. N BHASKARA RAO, GOOD GOVERNANCE: DELIVERING CORRUPTION- FREE PUBLIC SERVICES, SAGE INDIA, (2013). 12. NIRAJA GOPAL JAYAL AND PRATAP BHANU MEHTA, THE OXFORD COMPANION TO POLITICS IN INDIA, OXFORD UNIVERSITY PRESS, (2010). 13. PAUL COHEN AND ARTHUR MARRIOTT QC, INTERNATIONAL CORRUPTION, SWEET & MAXWELL PUBLICATIONS, (2010).
46
14. P.E. ROBERTS, HISTORY OF BRITISH INDIA, 3rd Ed, OXFORD UNIVERSITY PRESS, (1967). 15. RAMESH THAKUR, THE GOVERMENT AND POLITICS OF INDIA (COMPARATIVE GOVERNMENT AND POLITICS), RED GLOBE PUBLISHERS, (1995). 16. SURESH KOHLI, CORRUPTION IN INDIA: THE GROWING EVIL, CHETANA PUBLICATIONS, (1975). 17. S.K. DAS, PUBLIC OFFICE, PRIVATE INTEREST: BUREAUCRACY AND CORRUPTION IN INDIA, OXFORD UNIVERSITY PRESS, (2000). 18. S.L. GOEL, RIGHT TO INFORMATION AND GOOD GOVERNANCE, DEEP & DEEP PUBLICATIONS, (2007). 19. S.P. SATHE, RIGHT TO INFORMATION, LEXISNEXUS BUTTERWORTHS, (2006). 20. S.S. GILL, THE PATHOLOGY OF CORRUPTION, HARPER COLLINS INDIA PUBLICATIONS, (2000). 21. VINOD RAI, NOT JUST AN ACCOUNTANT: THE DIARY OF THE NATION’S CONSCIENCE KEEPER, RUPA PUBLICATIONS, (2014). 22. YOGESH ATAL & SUNIL K. CHOUDHARY, COMBATING CORRUPTION: THE INDIAN CASE, ORIENT BLACKSWAN PRIVATE LIMITED, (2014).
STATUTES:
1. The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 2. The Constitution of India, 1950 3. The Delhi Special Police Establishment Act, 1946 4. The Indian Penal Code, 1860 5. The Prevention of Corruption Act, 1988 6. The Prevention of Money Laundering Act, 2002 7. The Right to Information Act, 2005 8. The Whistleblower Protection Act, 2011
47
ARTICLES:
1. Arun K Agarwal, Corruption in Historical Perspective: A case of India, Vol 68, THE INDIAN JOURNAL OF POLITICAL SCIENCE, 325-336, 326, (2007). 2. Eran Vigoda Gadot, From Responsiveness to Collaboration: Governance, Citizens and the Next Generation of Public Administration, 62, PUBLIC ADMINISTRATION REVIEW, 527, 528-529 (2002). 3. Gurharpal Singh, Understanding Political Corruption in Contemporary Indian Politics, 3, POLITICAL STUDIES XLV, 626-38 (1997). 4. Jagdeep S. Chhokar, Black Money and Politics in India, Vol 51, ECONOMIC AND POLITICAL WEEKLY, 93, 91-98 (2017). 5. Jagdeep S. Chhokar, Electoral Reforms: Need for Citizens’ involvement, Vol 36, ECONOMIC AND POLITICAL WEEKLY, 3979, 3977-3980 (2001). 6. Leonid Peisakhin, Transparency and Corruption: Evidence from India, Vol 55 No.1, JOURNAL OF LAW AND ECONOMICS, 129-149, (2012). 7. M. Steve Fish, Katherine E Michel and Staffan I. Lindberg, Legislative Powers and Executive Corruption, 5-6, VARIETIES OF DEMOCRACY INSTITUTE,(2015), 8. Paul P Van Riper, Personnel Administration in Government, Vol 10, INDUSTRIAL AND LABOR RELATIONS REVIEW, 643, 644 (1957). 9. Stanley A. Kochanek, Briefcase Politics in India: The Congress Party and the Business Elite, Vol 27 No. 12, ASIAN SURVEY, 1278-1301 (1987). 10. Sumantra Banerjee, Anna Hazare, Civil Society and the State, Vol 46, No. 26, ECONOMIC AND POLITICAL WEEKLY, 12-18 (2011).
MEDIA WEBLINKS:
1. https://asiafoundation.org/2014/01/22/corruption-in-india-and-the-rise-of-the-aam- admi-party/ 2. https://www.business-standard.com/article/economy-policy/2g-verdict-meet-vinod- rai-the-man-who-gave-a-number-to-the-spectrum-scam-117122001235_1.html 3. https://www.downtoearth.org.in/news/cag-exposes-land-scam-in-andhra--37920 4. https://www.downtoearth.org.in/news/lalu-yadav-convicted-in-fodder-scam-42313 5. https://www.deccanherald.com/state/cag-finds-big-lapse-grant-govt-708721.html
48
6. https://economictimes.indiatimes.com/blogs/cursor/first-clean-up-political-funding-to- mount-a-credible-attack-on-corruption 7. https://www.businessinsider.in/wealthy-indians-are-exploring-ways-to-hide-black- money-know-how/articleshow/47265648.cms 8. https://economictimes.indiatimes.com/news/et-explains/the-war-inside-cbi-why-alok- verma-and-rakesh-asthana-are-at-each-others-throats/articleshow/66333104.cms 9. https://economictimes.indiatimes.com/news/elections/lok-sabha/a-criminal-candidate- has-double-the-chances-of-winning/articleshow/68573567.cms?from=mdr 10. https://economictimes.indiatimes.com/news/politics-and-nation/view-its-time-to- reform-the-cbi/articleshow/66338206.cms?from=mdr 11. https://economictimes.indiatimes.com/news/politics-and-nation/loopholes-in-black- money-bill-can-lead-to-harassment-assocham/articleshow/47178892.cms 12. https://www.firstpost.com/politics/why-chautala-is-in-jail-all-you-need-to-know- about-jbt-scam-590338.html 13. https://www.governancenow.com/views/interview/vigilance-is-not-an-attractive- work-to-do-pratyush-sinha-cvc-central-vigilance-commission 14. https://www.governancenow.com/news/regular-story/the-case-of-whistleblowers-and- the-laws-to-protect-them 15. https://frontline.thehindu.com/dispatches/article25678242.ece 16. https://frontline.thehindu.com/politics/a-trial-of-two-decades/article9563902.ece 17. https://www.thehindubusinessline.com/news/india-has-19-judges-per-10-lakh-people- data/article25030009.ece 18. https://www.thehindu.com/opinion/op-ed/the-danger-of-electoral- bonds/article20602008.ece 19. https://www.thehindu.com/opinion/lead/the-cbi-and-the-rules-of-political- combat/article25926694.ece 20. https://www.thehindu.com/opinion/op-ed/is-cbi-the-handmaiden-of-the- government/article19272931.ece 21. https://www.thehindu.com/news/national/political-parties-most-distrusted-army- judiciary-win-peoples-trust-says-study/article26647338.ece 22. https://www.thehindubusinessline.com/news/national/why-does-cbi-have-a- conviction-rate-of-just-3/article9935407.ece 23. https://www.thehindubusinessline.com/2000/12/21/stories/042155so.html
49
24. https://indianexpress.com/article/india/cvc-concerned-over-slow-disposal-of- corruption-cases-in-courts-4613219/ 25. https://indianexpress.com/article/india/central-vigilance-commission-red-flagged-50- cases-but-no-govt-action-says-cvc-in-report-corruption-nepotism-high-handedness- 4625573/ 26. https://www.indianfolk.com/naxalite-movement-politico-economic-perspective- edited/ 27. https://www.indiatoday.in/india/story/cag-unable-to-audit-key-welfare-schemes-as- mamata-government-refuses-to-share-data-rti-1356228-2018-10-05 28. https://www.indiatoday.in/magazine/the-big-story/story/20181119-political-funding- who-pays-for-the-party-1384158-2018-11-09 29. https://www.indiatoday.in/india/story/report-card-modi-government-s-fight-against- black-money-1303933-2018-08-03 30. https://www.indiatoday.in/magazine/the-big-story/story/20101206-toothless-tigers- 744900-2010-11-26 31. https://www.indiatoday.in/india/story/what-is-the-teachers-recruitment-scam-152255- 2013-01-22 32. https://www.keralakaumudi.com/en/news/kerala/general/no-point-in-just-about- corruption-55076 33. https://www.livelaw.in/bihars-former-cms-lalu-prasad-jagannath-mishra-48-others- convicted-fodder-scam/ 34. https://www.livelaw.in/sc-dismisses-appeals-by-chautalas-former-cm-to-spend-10- years-in-jail/ 35. https://www.livelaw.in/lalu-sentenced-14-years-imprisonment-fodder-scam-case/ 36. https://www.outlookindia.com/magazine/story/its-not-worth-having-whistleblowers- in-india-today/299245 37. https://www.pgurus.com/corruption-cases-takes-years-in-india 38. https://www.rediff.com/news/column/explaining-the-modi-wave/20140606.html 39. https://scroll.in/latest/911337/india-ranks-78-among-180-countries-in-transparency- internationals-index-on-corruption-in-2018 40. https://scroll.in/article/914555/the-constitution-of-india-was-not-just-a-founding- document-it-had-a-radically-transformative-vision 41. https://scroll.in/article/902519/scroll-explainer-how-andhra-pradesh-and-west-bengal- barred-the-cbi-from-their-states 50
42. https://timesofindia.indiatimes.com/articleshow/19952260.cms?utm_source=contento finterest&utm_medium=text&utm_campaign=cppst 43. https://www.tribuneindia.com/news/13-candidates-in-2019-election-face-serious- criminal-charges-adr/772440.html 44. https://www.theweek.in/news/india/not-only-in-2g-cbi-failed-judicial-scrutiny-in- other-cases.html 45. https://www.zeebiz.com/india/news-income-tax-department-project-insight-to-track- tax-thieves-evaders-92388
REPORTS:
1. K Santhanam Committee Report, 1963. 2. 179th Law Commission of India Report on the Public Interest disclosure and Protection of Informers, 2001.
WEBSITES:
1. https://adrindia.org/ 2. https://books.google.com/ 3. http://www.cvc.nic.in/ 4. https://www.jstor.org/ 5. https://www.livelaw.in/ 6. https://www.manupatrafast.com/ 7. https://www.scconline.com/ 8. https://www.transparency.org/country/IND 9. https://www.transparency.org/what-is-corruption#define
51