Probity in Public Life – Whither Standards?

Probity in Public Life –
Whither Standards?

Corruption has become a staple of Indian discourse of all hues and at all levels. It has become all pervasive and rampant. Everybody talks of it; but nobody seems to be really concerned about it. No critical observer of the Indian scene will disagree with the conclusion that along with bureaucratic red-tape it constitutes the most formidable obstacle to India’s emergence as an economic superpower, if one were to accept policy waffles, wobbles and flip flops as unavoidable handicaps of a democratic polity. On the International Corruption Index, India brings up the bottom of the ladder in the company of countries with whom it would not otherwise like to be associated. Corruption in India has become a cancer eating into the vitals of the Indian polity and economy. Therefore, tackling it brooks no delay nor complacency and vacillation.

What should we do? Where do we start? A vast apparatus to combat corruption has indeed been erected both in the States and at the Centre. But it is targeted and focused mainly on the permanent bureaucracy. Arrangements to deal with corruption and malfeascence at the political level had been, at best, tentative and half hearted. It is necessary to appreciate, in this context, that eradication of the evil of corruption has to be a top down process and not bottom up. If the political leadership of Government is dishonest there is no way that the bureaucracy can be insulated from corruption. Transparent and simple procedures combined with the use of the latest technology at ground interface between the government and the ordinary citizen will no doubt reduce harassment and corruption in relation to the mundane concerns of the latter; but they can’t improve the fiscal affairs of the State and the productive efficiency of the economy. Probity of the political leadership is a sine-qua-non for the sustained growth, prosperity and well being of any nation.

Unfortunately, the principle of jurisprudence that a person is presumed to be innocent till he is proved guilty in a court has been invoked, adnauseam, to not only shield politicians whose reputation is under cloud, but to allow them, unfettered, to handle the affairs of the state in responsible positions of power and authority. Ignorance of law on the part of the ordinary citizen has been used to obfuscate and evade the issue of corruption in high places. To clarify the law of the land, presumption of innocence relates to a criminal offence and not to misconduct and malfeascence in public affairs or even inefficiency and negligence.

To illustrate, a Government servant, entrusted with the custody of a large amount of money, may have misappropriated the money. While it may not be possible to establish the criminal offence of misappropriation in a court of law, the Government servant can still be held responsible for causing serious monetary loss to the state on the circumstances of the case and removed (or even dismissed) from service. An engineer may have deliberately or by default permitted the construction of a substandard and defective irrigation dam or building. It may not be possible to get him convicted in a court on charges of corruption but the facts and circumstances of the case could provide complete justification for axing him from service. A Tax official may have connived with leakage of revenue for return favours in the future. Such conduct may not provide the ingredients of a criminal case even while constituting enough basis for exit from government employment. Thus, while it may be difficult to establish direct culpability, an irrefutable inference of constructive responsibility could be drawn.

These examples, even if they relate to government servants only, should help to make the distinction between what constitutes criminal misconduct and conduct which amounts to wrong doing, in violation of well recognised principles of probity and is therefore considered unbecoming of a person charged with public duties and responsibilities. To preserve such a distinction and to enable the state to deal with the errant behavior of corrupt officials, without necessarily having to haul them to a criminal court in each case, a set of rules, popularly known as ‘Conduct and Discipline Rules’, had been framed by the Governments at the Centre and in the States. For a criminal offence, the standard of proof, for holding a person guilty is that of being beyond the shadow of all doubt of an ordinary and prudent person. In a disciplinary case, the standard is one of preponderance of probability thrown up by the facts and circumstances of the case. It has been accepted by the highest court of the land that the facts and circumstances surrounding a case of misconduct by a Government servant may not warrant a conviction in a criminal court but could still justify his dismissal from service.

A related aspect of this distinction is that while innocence is presumed till a verdict of guilt is handed down by a court, an acquittal by court doesn’t necessarily confirm such presumption of innocence. An acquittal may have been warranted by insufficiency of evidence to satisfy the standard of proof for criminal conviction described above. It can be due to benefit of doubt given to the accused on the nature of evidence. It can also be an honourable acquittal which alone will justify the presumption of innocence even after acquittal. That is why the principle of jurisprudence cited acknowledges the possibility-indeed the necessity, of a hundred guilty persons escaping punishment to ensure that not a single innocent person is convicted.

It may be argued that politicians and the like, engaged in public affairs, are not government servants and therefore criminal conviction can be the only bar to their continued involvement with such public affairs. Here again, there is a blanket of public ignorance which needs to be lifted. In relation to corruption, government servants only were originally considered to be public servants by virtue of the provisions contained in Section 21 of the Indian Penal Code which prescribed the nature of remuneration as the determinant of who is a public servant. Till the prevention of Corruption Act 1947 which adopted this definition in Section 21 of Indian Penal Code, came into being, corruption among government servants was dealt with under Sections 161 to 165 A of the Indian Penal code, and later, in conjunction with the Criminal Law Amendment Ordinance 1944 which was promulgated to deal with the rising level of corruption in government as a result of world war II purchases. Owing to the narrow ambit of the definition of Public Servant Under Section 21 of Indian Penal Code, the prevention of Corruption Act 1947 was found inadequate to deal with public figures who are not government servants. Therefore, under a new and comprehensive Act brought on the statute book in 1988, in response to the growing evil of political corruption, the definition of public servant was enlarged to cover various public functionaries including MsLA and MsP. The nexus was changed from the nature of remuneration to discharge of public duty. This has put public persons elected to representative institutions of governance on par with government and quasi-government servants.

It is by now clear that even the revised Anti Corruption Law has not provided an adequate answer to the needs of probity in public life for the simple reason that in accordance with the juris prudential principle cited earlier it lets off far more persons than it punishes. (A hundred guilty may escape lest a single innocent person is punished). What is worse, public figures have been taking shelter under the presumption of innocence during the pendency of criminal trial to continue in office or assume new offices of public duty and responsibility. Having thus held on to public office, they spare no device that ingenuity can contrive and the loop holes in procedural law afford, to procrastinate, prolong and frustrate the trial till it becomes in-fructuous.

The obvious remedy to this state of affairs, is to draw a parallel with the government servants who are also public servants on the principle that what applies to the goose should also apply to the gander. In the case of a government servant, gross impropriety or serious misconduct, irrespective of whether it warrants a criminal prosecution or only departmental disciplinary action, is met with suspension from service. He is thus rendered “hors de combat” or put out of further mischief to public interest, till his case is decided either in court or in the disciplinary enquiry. Even where the court acquits a government servant, he is liable to removal from service on the basis of evidence which may not be enough to return verdict of guilt but is sufficient to uphold the charge of grave misconduct or gross negligence in the discharge of duty.

Since government servants have long tenures of employment, such disciplinary provisions as suspension, dismissal etc., had to be incorporated in the ‘Discipline and Conduct Rules’ governing them to protect public interest. In the case of public representatives elected to Legislative Assemblies, Parliament, Local Self Government Institutions etc., and who have short fixed tenures, conventional wisdom has been that public will take notice of acts of mis demeanour and malfeascence on the part of their elected representatives and teach them an appropriate lesson at the next election which can’t be far away. But Indian experience has shown that, for a variety of reasons, outside the scope of discussion, this doesn’t seem to happen at all. Therefore there is a compelling need to devise in relation to elected public representatives measures parallel to ‘Discipline and Conduct Rules’ applicable to government servants. These could be embodied in the form of a general code of conduct on the lines of the election code of conduct and can be accorded the status of a secondary legislation so that they have the force of law.

Analogous to suspension from service in the case of government servants, a bar to holding a public office during the pendency of an enquiry into ones conduct can be raised in respect of a public figure already elected to a representative institution. In respect of those seeking election or reelection, any such enquiry could act as a disqualification to contest till the outcome of the enquiry. Even as it is, similar provisions exist in respect of MsLA, MsP etc., who have incurred the penalty of disqualification from courts adjudicating on election petitions, but have appealed to higher courts against such verdict. Pending the disposal of the appeal, superior courts have barred MsLA and MsP from voting etc., without depriving them of their elected status or emoluments.

Now the question arises as to who will conduct enquires into allegations of corruption against elected representatives. The present practice of entrusting such enquires to the anti corruption agencies having jurisdiction over government servants etc., doesn’t seem appropriate for many reasons which need not be enumerated here. India has already toyed with institutional arrangements like the Lokayukth in the States. At the Center there has been a proposal since a long time to legislate for the creation of the office Lok Pal. To our knowledge there is no political party which has opposed the institution of Lok pal in principle. In practice, however, the necessary legislation is always on the burner, raising serious doubts as to the sincerity of the political establishment in having such an institution. As for the Lokayukths in States, their jurisdiction has been severely circumscribed to convert them into some kind of grievance redressal authorities.

The urgent need is to bring on the statute book as early as possible a comprehensive Act for the constitution of Lok Pal at the Center and Lokayukths in the States with adequate jurisdiction to cover all elected representatives including the Prime Minister and Chief Ministers. All allegations of wrong doing against public figures should be probed into only by these Institutions who will also recommend, in the event of the allegations being found to have substance, whether a criminal prosecution is warranted. It will be left entirely to the Lok Pal or Lok Aykths as the case may be, to decide on the modalities and procedures of such probes, which will be made under their direct supervision. They can go the Public Prosecutor route which is in vogue in the US or create their own investigating machinery as has been done in some states in India. During the pendency of such enquires and criminal prosecutions, if instituted thereafter, the concerned persons should be barred from holding any public office. This will automatically create in them a vested interest to cooperate with the enquiry/prosecution and clear themselves of the allegations if they are truly innocent. If the enquiry finds substance in the allegations, the code of conduct can be automatically invoked to slap appropriate disqualifications against holding public office. Criminal prosecutions may be contemplated only in manifest cases of serious criminal misconduct. The jurisdiction of these institutions should be confined to corruption in public life and not extend to criminal prosecutions against public figures involved in political action in the form of mass protest, demonstrations, strikes etc.,

The burden of this discussion is that the standard for probity in public life should be not conviction in a criminal court but propriety as determined by suitable independent institutions, specifically constituted for the purpose. Having adopted the West Minister model of parliamentary form of governance, India has given a deliberate go by to the various conventions guiding England which doesn’t have a written constitution. Political corruption is said to have been rampant even in England during the 18th and 19th centuries. But such stringent conventions of propriety have been evolved over time to govern the conduct of public representatives in England that cabinet ministers are forced to resign at the slightest whiff of scandal or wrong doing. Ministers in Tony Blair’s government have had to resign on such minor improprieties like a telephonic call to the concerned to fast track the issue of a visa for the ‘nanny’ of the minister’s child or the grant of British citizenship to a generous contributor to the construction of a ‘millennium’ project started by the Government.

It is heartening to note that the action taken by both the Houses of Parliament against their members involved in the “Cases for Questions” scandal brought out by a sting operation is a clear and path setting vindication of the proposition made and explained above. The lesson conveyed by Parliament is that there are remedies for corruption and related misdemeanor other than criminal prosecution and conviction in court.

India had missed its opportunity of setting such high standards of public conduct at the time of Independence and immediately thereafter. On the other hand, it has slid so low, through continuous cynicism and persistent ambivalence (Pratap Singh Kairon and Biju Patnaik being exceptions proving the rule) as to rank near the bottom of the International Corruption Index. We need to reverse the slide by prescribing stringent standards of probity in public life instead of providing shelter to public figures of suspect integrity behind the argument of not having been convicted in a court. As was emphasised by Prime Minister Dr. Man Mohan Singh himself some years ago, during an inner party discussion, the standard should be one of not only Caesar but even Caesar’s wife being above suspicion. Or should we be reconciled to the most minimum standard as one respected political leader, fond of humour even at his own expense, quipped in private “These are days of common minimum programmes”.