Second Administrative Reforms Commission

FOURTH REPORT SECOND ADMINISTRATIVE REFORMS COMMIssION “You must be the change Second Administrative Reforms Commission you wish to see in the world.” Government of India Mahatma Gandhi 2nd Floor, Vigyan Bhawan Annexe, Maulana Azad Road, New Delhi 110 011 e-mail : [email protected] website : http://arc.gov.in JANUARY 2007 GOVERNMENT OF INDIA SECOND ADMINISTRATIVE REFORMS COMMISSION FOURTH REPORT ETHICS IN GOVERNANCE JANUARY 2007 PREFACE “As human beings, our greatness lies not so much in being able to remake the world - that is the myth of the atomic age - as in being able to remake ourselves” Mahatma Gandhi The Mahatma’s vision of a strong and prosperous India - Purna Swaraj - can never become a reality if we do not address the issue of the stranglehold of corruption on our polity, economy and society in general. Governance is admittedly the weak link in our quest for prosperity and equity. Elimination of corruption is not only a moral imperative but an economic necessity for a nation aspiring to catch up with the rest of the world. Improved governance in the form of non-expropriation, contract enforcement, and decrease in bureaucratic delays and corruption can raise the GDP growth rate significantly. The six perceived governance quality measures, each an aggregate of a number of sub-measures, are: voice and accountability; absence of political instability and violence; government effectiveness; reasonableness of the regulatory burden; the rule of law; and the absence of graft. Of these, the last two are the most directly significant in the context of ethical governance. ‘Rule of law’ measures whether crime is properly punished or not; enforceability of contracts; extent of black market; enforceable rights of property; extent of tax evasion; judiciary’s independence; ability of business and people to challenge government action in courts etc. ‘Absence of graft’ measures relative absence of corruption among government, political and bureaucratic officials; of bribes related to securing of permits and licences; of corruption in the judiciary; of corruption that scares off foreign investors. There is a perception that the public services have remained largely exempt from the imposition of penalties due to the complicated procedures that have arisen out of the Constitutional guarantee against arbitrary and vindictive action. Those Constitutional safeguards have in practice shielded the guilty against the swift and certain punishment for abuse of public office for private gain. A major corollary has been the erosion of accountability. The huge body of jurisprudential precedents has crowded out the real intent of Article 311, and created a heap of roadblocks in reducing corruption. Such a provision is not available in any of the democratic countries including the UK. While the honest have to be protected, the dishonest seem to corner the full benefit of Article 311. Hence there is need for a comprehensive examination of the entire corpus of administrative jurisprudence to “You must be the change you wish to see in the world.” rationalise and simplify the procedures. One of the indicators of lax enforcement is delay in sanctioning Mahatma Gandhi prosecution of a delinquent by the competent authority. Reference may be made to the Annual Report of the Central Vigilance Commission for the year 2004. Out of 153 cases for sanction, 21 cases were pending for more than 3 years, 26 cases between 2-3 years, 25 between 1-2 years. The departmental enquiries are soft-pedalled either out of patronage or misplaced compassion. Integrity is much more than financial honesty. Public office should be treated as a Napoleon who said, ‘Law should be so succinct that it can be carried in the pocket of the trust. There are two facets to corruption: (1) the institution which is highly corrupt; coat and it should be so simple that it can be understood by a peasant’. (2) individuals who are highly corrupt. There is a need to work on public profiteering and also value to be attributed to the services rendered by officers. Interlocking accountability While it may not always be possible to establish the criminal offence of is a process by which evaluation could be done easily and accountability ensured. misappropriation in a court of law, the Government servant can still be removed from service for causing serious monetary loss to the State. An engineer may have deliberately Building trust and confidence requires an environment where there is a premium on permitted the construction of a defective irrigation dam or building. It may not be possible transparency, openness, boldness, fairness and justice. We should encourage this. to get him convicted in court on charges of corruption but he could be removed from service on grounds of incompetence. A tax official may have connived to allow the leakage Clearly, the absence of rules is not the problem. One cannot mandate honesty. The of revenue for return favours in the future. Such conduct may not provide the ingredients rule of law can only defeat the perverse mind. However, it cannot defeat the perversity of of a criminal offence but can lead to his exit from service. the heart. In to the words of Aleksandr Solzhenitsyn: “The line separating good and evil passes not between states nor between classes… but through the middle of every human The standard for probity in public life should be not only conviction in a criminal heart”. We have no destinies other than those we forge ourselves. He who administers court but propriety as determined by suitable independent institutions specifically government by means of his virtues may be compared to the Pole star which keeps its constituted for the purpose. We have broadly copied the British model of governance. place and all other stars turn towards it. When the ruler himself is right, the people Ministers in Tony Blair’s government have had to resign on such minor improprieties as naturally follow him in his right course. If governance is by men who are derelict, the a telephone call to the concerned person to fast track the issue of a visa for the ‘nanny’ of governed will suffer. We have to keep in mind Plato’s injunction: the Minister’s child or the grant of British citizenship to a generous contributor to a cause supported by the Government. Such principles were upheld and pronounced by “The punishment suffered by the wise who refuse to take part in government, Jawaharlal Nehru in the Mudgal case in which the said Lok Sabha Member was expelled is to suffer under the government of bad men” by Parliament on 24th September, 1951 even when the Member volunteered to resign. The Mudgal case is often cited as the noblest example of the early leadership’s efforts at Good governance must be founded on moral virtues ensuring stability and harmony. setting high standards of conduct in parliamentary life. Confucius described righteousness as the foundation of good governance and peace. The art of good governance simply lies in making things right and putting them in their We need to reverse the slide by prescribing stringent standards of probity in public right place. Confucius’s prescription for good governance is ideally suited for a country life instead of providing shelter to public figures of suspect integrity behind the argument like India where many of our present day players in governance do not adhere to any of their not having been convicted in a court. The standard should be one of not only the principle and ensure only their own interests. conduct of Caesar’s wife but of Caesar himself. Confucius emphasizes the righteousness for life and character building. This is in The solution to the problem of corruption has to be more systemic than any other conformity with Dharma or righteousness as taught by all religions in the world and issue of governance. Merely shrinking the economic role of the state by resorting to preached in Buddhism very predominantly in its fourth noble truth. He also emphasizes deregulation, liberalization and privatization is not necessarily the solution to addressing that man himself must become righteous and then only there shall be righteousness in the problem. Prevalent institutional arrangements have to be reviewed and changes made the world. This is comparable with what Gandhiji said, “Be the change you wish to see in where those vested with power are made accountable, their functioning made more the world”. transparent and subjected to social audit with a view to minimize discretionary decisions. All procedures, laws and regulations that breed corruption and come in the way of efficient So, in the ultimate analysis, it is a question of ethics. Ethics is a set of standards that delivery system will have to be eliminated. The perverse system of incentives in public helps guide conduct. One of the problems is that the present codes of conduct are not life, which makes corruption a high return low risk activity, need to be addressed. In this direct and to the point. They are full of vague sermons that rarely indicate prohibitions context, public example has to be made out of people convicted on corruption charge directly. For formulating a code of ethics, it would be useful to keep in mind the advice of and the legal process in such cases has to be expedited. This hopefully, will also address Government of India the growing permissiveness in the society, in the more recent times, to the phenomenon Ministry of Personnel, Public Grievances & Pensions of corruption. In addition, with changes in economic policy regime, regulatory bodies Department of Administrative Reforms and Public Grievances that guide and monitor the functioning of the relevant economic agents, lay down the rules of conduct in the interest of consumers and devise such practices that help in efficient Resolution functioning of the system, will have to be established in many sectors of the economy New Delhi, the 31st August, 2005 that are now being opened up.

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