Corruption UPSC

Corruption UPSC

Common instances of collusive bribery

where both bribe giver and corrupt public servant benefit at immense cost to society. Instances – Awarding of contracts for public works and procurement of goods and services, recruitment of employees, evasion of taxes, substandard projects, collusive violation of regulations, adulteration of foods and drugs, obstruction of justice and concealing or doctoring evidence in investigation are all examples of such dangerous forms of corruption. As the economy is freed from state controls, extortionary corruption declines and collusive corruption tends to increase.

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Coercive Corruption

Coercive Corruption refers to a form of corruption in which the bribe giver becomes the victim of extortion, being compelled to make payments for a basic service. Failure to comply often results in delays and harassment for the victim.

To address this issue, an amendment is proposed for Section 7 of the Prevention of Corruption Act. This amendment introduces a special offense called ‘collusive bribery.’ Collusive bribery is defined as an offense where the transaction’s outcome or intended outcome leads to a loss for the state, the public, or public interest. In such cases, if it can be established that the public servant’s actions have caused harm to the state or the public, the court shall presume that both the public servant and the beneficiary of the decision committed an offense of ‘collusive bribery.’

For cases of collusive bribery, the proposed punishment should be twice as severe as that for other bribery cases. The existing law should be appropriately amended to reflect this.

Regarding the sanction for prosecution, Section 19 of the Prevention of Corruption Act mandates obtaining prior approval from the competent authority before proceeding with legal action. This provision aims to protect honest public servants from malicious or vexatious complaints. However, in practice, it has been observed that the sanctioning authorities sometimes shield dishonest officials. This provision appears to intend to provide ample protection to public servants during the legitimate discharge of their official duties.

Nevertheless, there is no need for such protection in cases primarily based on direct evidence, including:

1. The demand or acceptance of bribes.
2. The acquisition of valuable items without or with inadequate consideration.
3. Cases involving the possession of assets disproportionate to the known source of income.

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Corruption and its causes

Corruption takes on diverse forms, including instances where public servants seek money or favors, politicians misuse public funds, and corporations engage in bribery.

It permeates various sectors like business, government, courts, media, civil society, and affects different domains such as health, education, infrastructure, and sports.

Individuals implicated in corruption may span from politicians, government officials, and public servants to business individuals and members of the general public.

Corruption thrives in the shadows, aided by professional enablers like bankers, lawyers, accountants, and real estate agents, as well as through complex financial systems and anonymous shell companies.

Corruption displays adaptability and can transform in response to changes in regulations, legislation, and technological advancements.

Corruption can take many forms, and can include behaviours like:

• public servants demanding or taking money or favours in exchange for services,
• politicians misusing public money or granting public jobs or contracts to their sponsors, friends and families,
• corporations bribing officials to get lucrative deals.

The Costs of corruption

1. Political costs

Your freedom and rule of law.

2. Social costs

Your participation and even your trust in government.

3. Environmental costs

Your chance for a healthy environment and a sustainable future.

4. Economic costs

Your opportunity to build and grow wealth.

To Fight Corruption, We Must Embrace Transparency

Transparency is centered on understanding the individuals involved, their motivations, actions, and the extent of their influence. It involves revealing both explicit and implicit regulations, strategies, procedures, and behaviors. By promoting transparency, we empower the public to hold those in power responsible for the benefit of society.

Accessing and obtaining information is a fundamental human right that serves as a protective measure against corruption and fosters trust in those making decisions and governing public institutions. Nonetheless, transparency goes beyond simply providing information; it also involves ensuring that it is readily accessible, comprehensible, and usable for the general populace.

Causes of public sector corruption

Country size

According to studies conducted by Goel and Nelson (2010), research indicates that countries characterized by expansive geographical areas and low population densities may face a higher susceptibility to corruption. This is attributed to the challenges associated with effectively monitoring public officials across dispersed locations.

Resource curse

When the public sector holds exclusive control over the distribution and allotment of rights related to natural resources, it creates a conducive environment for corrupt practices to exploit economic opportunities. The Natural Resource Governance Institute emphasizes on its website that the concentrated and lucrative nature of industries such as oil, gas, and mining can give rise to political and private motivations that encourage rent-seeking behavior and the capture of institutions or the state. In fact, evidence reveals that numerous countries endowed with abundant natural resources often grapple with inadequate governance and widespread corruption (Natural Resource Governance Institute, 2019).

Country age

Countries that have recently gained independence or transitioned from authoritarian regimes to democratic systems might encounter higher levels of corruption. This could be attributed to factors such as underdeveloped governance systems or opportunities for rent-seeking arising from the privatization of state assets (Goel and Nelson, 2010). In the context of corruption, rent-seeking refers to the act of individuals increasing their share of existing wealth through the utilization of public resources, without contributing to the creation of new wealth for the state.

Political instability

Studies conducted by Lederman, Loayza, and Soares (2005) reveal a correlation between political stability and lower levels of corruption. Conversely, politically unstable environments are more prone to corruption. Specifically, during transitions to newly elected governments, the lack of stability is closely associated with corruption within the public sector. It is important to note that corruption can be attributed to partisan administration in certain countries. For an in-depth exploration of corruption, peace, and security.

Large unique projects

In a study conducted by Locatelli et al. (2017), the researchers examined various forms of corruption and identified project types that are particularly susceptible to corrupt practices. Their analysis indicates that “large unique projects” involving significant public involvement, specifically publicly funded projects without prior precedents to offer guidance, are more prone to corruption compared to smaller and more routine projects.

Failure of governance

According to Shah (2006), corruption within the public sector is a consequence of governance failures. These failures can stem from several factors, including substandard management practices, a lack of accountability, strained relations between the government and citizens, an insufficient legal framework, limited transparency in public sector processes, and inadequate dissemination of information. Insufficient training leading to a lack of competence and capacity also contributes to governance shortcomings.

Conflicts of interest

The Organisation for Economic Co-operation and Development (OECD, 2003) defines a conflict of interest as a situation where public officials have personal interests that could improperly influence their performance of official duties, thereby conflicting with their public responsibilities. An example of a conflict of interest is the occurrence known as the “revolving door,” where public officials secure lucrative positions in the private sector after leaving their public service roles, potentially leveraging their connections for the benefit of private companies (Ferguson, 2017). These “private interests” that can give rise to conflicts of interest may include holding directorships in companies,

Issues in Political Reforms

Revamping Political Finance: Political parties often rely on private donations as their source of funding. Across the globe, different countries have adopted various models for state funding of political parties and electoral processes.

1. Minimalist Approach: In this model, the state partially subsidizes election-related expenses, typically through specific grants or state-provided services. This approach is seen in countries like the UK, Ireland, and Australia.
2. Maximalist Approach: Some nations opt for a comprehensive state funding system, where public funding supports not only elections but also various party activities. Countries such as Sweden and Germany follow this approach.
3. Mixed Patterns: Many countries employ mixed funding patterns that involve partial reimbursements for election-related expenses, often on a matching grant basis. France, the Netherlands, and South Korea are examples of this approach.

The Representation of the People Act, 1951 in India places restrictions on election expenditures. The ban on company donations to political parties was imposed in 1969 but later lifted by an amendment to the Companies Act in 1985.

The Dinesh Goswami Committee on Electoral Reforms, established in 1990, recommended limited, in-kind support for expenses like vehicle fuel, microphone hire charges, and electoral roll copies. Simultaneously, it proposed a prohibition on company donations.

Recommendation: To curtail illegitimate and unnecessary election expenses, it is advisable to introduce a system of partial state funding for electoral activities.

Tightening of Anti-defection Law

Reforming Political Processes: Addressing political corruption and ensuring ethical conduct in politics is essential for upholding the integrity of the political system. Several key recommendations can help achieve these objectives.

1. Preventing Defections: The 91st Amendment to the Constitution in 2003 significantly strengthened anti-defection provisions. It mandates that lawmakers who switch parties must resign their legislative positions and seek re-election. This has made defections virtually impossible and is a crucial step toward cleaner politics. Recommendation: The disqualification of members due to defection should be determined by the President/Governor on the advice of the Election Commission.
2. Disqualification Criteria: In addition to current disqualifications related to heinous crimes, corruption charges should lead to disqualification if framed by a judge/magistrate after prima facie evidence. To prevent misuse, only cases filed within six months before an election should lead to disqualification. Recommendation: Amend Section 8 of the Representation of the People Act, 1951, to disqualify individuals facing charges related to grave offenses, including corruption.
3. False Declarations: False declarations made before election authorities should be considered an electoral offense under Section 31 of the Representation of the People Act.
4. Publication of Party Accounts: Political parties must maintain accurate financial records, which should be audited annually. These audited accounts should be made accessible to the public.
5. Coalition Ethics: An ethical framework should be established to prevent opportunistic changes in coalition partnerships between elections. If parties in a coalition realign midstream with others outside the coalition, members of those parties should seek a fresh mandate from the electorate. Recommendation: Amend the Constitution to ensure this ethical standard.
6. Chief Election Commissioner Selection: A collegium, led by the Prime Minister and including the Speaker of the Lok Sabha, Leader of the Opposition in the Lok Sabha, Law Minister, and Deputy Chairman of the Rajya Sabha, should recommend candidates for the Chief Election Commissioner and Election Commissioners. This would ensure a more comprehensive selection process.
7. Timely Election Petition Resolution: Election petitions should be resolved within six months, as stipulated in the Representation of the People Act. Special Election Tribunals, comprising a High Court Judge and a senior civil servant with electoral experience, should be established at the regional level to expedite the disposal of election petitions and disputes. Recommendation: Implement these reforms under Article 323B of the Constitution.

These recommendations aim to strengthen democratic processes, promote transparency, and uphold the principles of ethical and fair governance.

Disqualification of membership

Article 102 of the Constitution lays down specific circumstances under which a person can be disqualified for membership in either House of Parliament. These disqualifications are:

1. Holding an Office of Profit: Members of Parliament are disqualified if they hold any office of profit under the Government of India or any State government, unless Parliament has exempted certain offices from disqualification.
2. Unsound Mind: If a competent court declares an individual of unsound mind, they are disqualified from holding parliamentary membership.
3. Citizenship and Allegiance: Anyone who is not a citizen of India, has voluntarily acquired foreign citizenship, or acknowledges allegiance or adherence to a foreign State is disqualified.
4. Disqualification under the Tenth Schedule: Membership disqualification also applies if a person falls under the disqualifications listed in the Tenth Schedule of the Constitution, which pertains to anti-defection laws.
5. Disqualification by Parliamentary Law: Under this provision, Parliament can enact laws specifying further disqualifications. However, no such law has been enacted thus far.

Given recent events, including the expulsion of some Members of Parliament, it is advisable to establish a comprehensive framework for disqualification criteria.

Recommendation: Enact appropriate legislation under Article 102(e) of the Constitution to comprehensively outline the conditions for disqualification of parliamentary membership. States should also enact such legislation under Article 198(e).

Ethics in Public Life: Ethics forms the foundation of responsibility and accountability in public office. Public officials, in a democracy, are ultimately accountable to the people, and ethics guide the creation of laws and rules.

The Nolan Committee on Standards in Public Life in the United Kingdom identified key principles for public officials:

• Selflessness: Officials should make decisions solely in the public interest.
• Integrity: Officials should avoid financial or other obligations that could influence their official duties.
• Objectivity: In public business, choices should be based on merit.
• Accountability: Officials must be accountable for their decisions and actions and subject themselves to appropriate scrutiny.
• Openness: Transparency is crucial, and officials should provide reasons for decisions while limiting secrecy only when the public interest demands it.
• Honesty: Officials must disclose private interests related to public duties and manage conflicts in the public’s interest.
• Leadership: Public officials should lead by example, promoting these principles.

Ethics and responsibility go hand in hand in the public sector, ensuring that public authority is exercised in the best interests of the people.

International approach

Various countries have, from time to time, addressed the issue of prescribing a Code of Conduct/Ethics for its Ministers, legislators and civil servants.

There is a Ministerial Code in UK, in the US Senate a Code of Conduct and in Canada a ‘Guide for Ministers’. In Belize, the Code of Conduct for public functionaries is prescribed in the Constitution itself

Ethical framework for fighting corruption

In the pre-independence era, the Indian Penal Code contained a section on ‘Offences by Public Servants,’ which provided the legal framework to prosecute corrupt public servants.

The Prevention of Corruption Act of 1947 introduced a new offense, ‘Criminal misconduct in the discharge of official duty,’ with enhanced punishment (ranging from a minimum of 1 year to a maximum of 7 years). This act also stipulated that the statement by a bribe-giver would not subject them to prosecution.

The Criminal Law (Amendment) Act of 1952 increased the punishment specified under Section 165 of the IPC from two to three years. Section 165A was inserted, mandating that all corruption-related offenses should be tried only by special judges.

Subsequent amendments in 1964 included expanding the definition of ‘Public Servant’ under the IPC, broadening the definition of ‘criminal misconduct,’ and making the possession of assets disproportionate to a public servant’s known sources of income an offense. Section 5(A) was also amended to empower State Governments to authorize officers of the rank of Inspectors of Police to investigate cases under the Act.

The Prevention of Corruption Act of 1988 introduced several salient features, including a broader definition of ‘Public Servant,’ the concept of ‘Public Duty,’ and the requirement that all cases under the Act be tried only by Special Judges. Proceedings of the court were mandated to be held on a day-to-day basis with stringent penalties. Immunity for bribe-givers, investigations by an officer of the rank of DySP, and access to bank records were retained.

In alignment with anti-corruption policies set by the United Nations Convention, it was recommended that the Prevention of Corruption Act should classify the following as offenses:

1. Gross perversion of the Constitution and democratic institutions, amounting to a willful violation of the oath of office.
2. Abuse of authority that unduly favors or harms someone.
3. Obstruction of justice.
4. Squandering public money.

Recommendations

Several recommendations are proposed to improve the existing legal framework:

1. Prior sanction for prosecuting a public servant should not be necessary if the individual has been apprehended in the act of corruption or in cases where they are found to possess assets disproportionate to their known sources of income.
2. Amendments to the Prevention of Corruption Act are needed to eliminate the requirement for sanctioning authorities to appear in court. Instead, documents related to the case should be obtained and presented before the courts by the appropriate authority.
3. To expedite the process, the Presiding Officer of a House of Legislature should be designated as the sanctioning authority for Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs).
4. The requirement of prior sanction for prosecution, which currently applies to serving public servants, should also be extended to retired public servants for actions committed during their service.
5. Significant delays in obtaining sanction for prosecution from the government often result in corrupt officials escaping legal consequences. To address this, the Commission suggests that, at the Union Government level, a specialized Empowered Committee should be responsible for processing sanctions. This committee should consist of the Central Vigilance Commissioner and the Departmental Secretary to the Government, streamlining the process and expediting justice.

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