Classical Insights and Current Practices
The Perennial Base of Sound Administration
Drawing upon the spiritual roots of India, going back thousands of years to the Vedanta and Upanishads, Swami Vivekananda gave a call for the regeneration of India'Arise, awake and stop not till the goal is reached' (uttishtatha jagrata prapya varannibhodhata).
Sri Aurobindo carried on that spiritual tradition and showed how human beings can rise above themselves. He identified the basic purpose and significance of life as follows: The earliest preoccupation of man in his awakened thoughts and, as it seems, his inevitable and ultimate preoccupation'for it survives the longest periods of skepticism and returns after every banishment'is also the highest that his thought can envisage. It manifests itself in the divination of godhead, the impulse towards perfection, the search after pure truth and unmixed bliss, the sense of a secret immortality. The ancient dawns of human knowledge have left us their witness to this constant aspiration. Today we see a humanity satiated but not satisfied by the victorious analysis of the externalities of nature preparing to return to its primeval longings. The earliest formula of wisdom promises to be its last'God, Light, Freedom, Immortality.
Mahatma Gandhi again drew his inspiration from the spiritual strength of India. His technique of satyagraha was based on the concept of ahimsa. This was the major strategy to throw out the British whose vast empire was at one time such that the sun never set on it. In Rabindranath Tagore we have another spirit of renaissance, this time in the field of art, spanning literature, language, painting and music. All of them symbolized the spirit of Indian renaissance, drawing upon our ancient roots or classical insights to tackle the problems of modern life.
In a way, they also reaffirm the other optimistic message of Hinduism so beautifully enunciated in the third chapter of the Gita:
Yada yada hi dharmasya glanir bhavati bharata /
Abhyuthanam adharmasya tadatmanam srujamyaham//
Paritranaya sadhunam vinashayacha dushkritam /
Dharma samsthapanarthaya sambahvami yuge yuge //
(When evil tries to triumph over good, the divine comes again and again in every epoch to protect the good and punish the evil.)
It is obvious that our Indian culture does not believe in the pessimistic projection of the second law of thermodynamics, which says that we always go from order to disorder and that entropy is always increasing. I shall explore the issue of classical insights and current practices with a view to seeing whether the four eminent men can inspire us with ideas v about how we can tackle our current problems for better ethics in public administration.
History has two fascinating aspects. The first is the perennial chain of changes as it marches through time. The second is the presence of certain constant features. These include values that are the basis of moral or ethical conduct. Some have tried to identify the common dynamics underlying history. Many have traced the onward march of history from different angles. Arnold Toynbee saw in history the continuous recurring theme of challenge and response. A civilization progresses if it is able to rise and meet the challenge it faces and decays if it fails. There is a process of growth, achievement and then decay. Alvin Toffler looked at the technological changes in terms of generations and the pace of change. He discovered that the pace of change itself is becoming so fast that in the twentieth century mankind started experiencing what he called 'future shock'. Communists look at the march of history in terms of dialectical materialism.
Indian culture has had a head start in understanding the fascinating aspects of human life. The Vedanta and the Upanishads represent our ancient seers' continuous search for knowledge founded on realization. They achieved great leaps forward in perception because of their mystic powers. We are the fortunate inheritors of a great tradition, the Vedantic tradition, which looks at life in this world and tries to find its underlying meaning. The quintessence of Vedanta has a dual dimension. The Rigveda lays down the dual purpose of human life: atmano mokshartham jagat hitayacha. We look forward to the emancipation of our souls through welfare of the world. Vivekananda had adopted this mantra while launching the Ramakrishna Order.
Sri Aurobindo is one of the brightest stars in this rich Indian tradition of spiritual development. The Vedantic concept of self-realization was articulated beautifully by Sri Aurobindo as follows:
Existence is not merely a machinery of Nature, a wheel of law in which the soul is entangled for a moment or for ages; it is a constant manifestation of the Spirit. Life is not for the sake of life alone, but for God, and the living soul of man is an eternal portion of Godhead. Action is for self-finding, for self-fulfillment, for self-realization and not only for its own external and apparent fruits of the moment or the future.
Another concept that has been cherished through the long history of our cultural and spiritual existence is the concept of welfare of all human beings: bahujana sukhaya bahujana hitayacha'the welfare of the many and the happiness of the many. In fact, this concept of the happiness of the many had also been integrated into the area of public administration as the basic principle. Kautilya says in his Arthashastra: 'In the happiness of his subjects lies the king's happiness, in their welfare his welfare. He shall not consider as good only that which pleases him, but treat as beneficial to him whatever pleases his subjects'.
Praja sukhe sukham rajyaha prajanamcha hitehitam
Natma priyam hitam rajnaha prajanam cha hitam priyam.
This ancient wisdom is also reflected in other languages. Two thousand years ago, Tiruvalluvar in Tamil Nadu spelt out in 1,330 verses the three purusharthas of existence, dharma, artha and kama. In the chapter on artha, like Kautilya'sArthashastra, he also dealt with the characteristics of a well-run administration or shall we say the ethics of good administration. For instance, when talking about the responsibility of a king, Tiruvalluvar says: Mural saithu kapatrum mannavan makkalkku iraiyentru vaikkapadum (the king who administers justice and protects his people will be considered God). The responsibilities of running the administration have also been spelt out by others who have looked into the concept of good administration.
If there is one principle that is fundamental to ethics in administration in India, it is the principle of dharma, the principle of doing the right things, the principle of justice. The Brihadaranyaka Upanishad points out the basic principle that the responsibility of the king is to protect dharma. This is because it is only by protecting dharma do all citizens get equal opportunities and the weak not exploited and harassed by the strong.
Tadetat kshatrasya kshatram yaddharmaha tasmaddharamatparam nasti atho abaliyan baliyamsamanshamsate dharmena yatha ragna evam.
Justice M. Rama Jois in his Sri Bhavrao Devras Lecture Series gave a talk entitled 'Reforming Our Polity on the Basis of Dharma'. In this talk he provided valuable insights into the concept of dharma. This is what he said:
From most ancient times, as a part of Dharma, one of the ideals placed before individuals was that for a higher or greater interest, lower or personal interest should be subordinated. This idealism is incorporated in a verse in Hitopadesha. It reads, 'Subordinate the interest of an individual for the sake of the family, of the family to subserve the interest of the village, of the village in the interest of the state, of all worldly interest in order to attain eternal bliss'.
Tyajedekam kulasyarthe gramasyarthe kulam
tyajet gramam janapadasyarthe aatmarthe prithivim tyajet. (Mitralabha, 150)
Replacing the last, which is concerned with the other world by the words,rashtrarthe swartham tyajet, we get a systemic framework to be followed in the nation's interest.
Dharma is a Sanskrit expression of widest import. There is perhaps no corresponding word in any other language. It would also be futile to attempt to give any definition to that word. It can only be explained. Mahabharata, that great epic acclaimed as manava kartavya sastra (code of duties of human beings), contains a discussion on this topic. On being asked by Yudhishthira to explain the meaning and scope of dharma, Bhishma, who had mastered the knowledge of dharma, replied thus:
Tadrisho ayam anuprashno yatra dharmaha sudurlabaha
Dushkamha pralisankhyatum tatkenatra vysvasyathi
Prabhavarthaya bhutanam dharmapravachanam kritam
Yasyat prabhavasamyuktaha sa dharma iti nischayaha. (Shanti Parva, 109-9-11)
(It is most difficult to define dharma. Dharma has been explained to be that which helps the upliftment of living beings. Therefore, that which ensures the welfare of living beings is surely dharma. The learned rishis have declared: that which sustains is dharma.)
Verse 59.58 in Karna Parva of the Mahabharata eulogizes dharma in the following words:
Dharanat dharma mityahu dharmo dhara-yate prajaha
Yat syad dharanasamyuktam sa dharma iti nischayaha.'
(Dharma sustains the society, dharma maintains social order, dharma ensures well-being and progress of humanity, dharma is surely that which fulfils these objectives.)
Jaimini, the author of celebrated Purvamimamsa and Uttaramimamsa explains dharma thus:
'Dharma is that which is indicated by the Vedas as conducive to the highest good':
Sa hi nisreyasena pumshamsamyunaktiti pra-tijaneemahe
tadabhidhiyate chodanalakshno ariho dharmaha. (Jaimini, 1-2)
Madhavacharya, minister to Hakka and Bukka, founder kings of Vijayanagar empire, in his commentary on Parashara Smriti, has briefly and precisely explained the meaning of dharma as follows:
Abhyudaya nisreyase sadhanatvena dharayati iti dharmaha
Sa ha lakshana pramanaabhyam chodana sutrair vyavasthapitahan
Dharma is that which sustains and ensures progress and welfare of all in this world and eternal bliss in the other world. Dharma is promulgated in the form of commands, positive and negative, vidhi and nishedha.
Therefore, dharma embraces every type of righteous conduct covering every aspect of life essential for the sustenance and welfare of the individual and society, and includes those rules that guide and enable those who believe in god and heaven to attain moksha (eternal bliss).
The Upanishads say very clearly that there is nothing beyond dharma. The same concept of dharma is also reflected by Tiruvalluvar: Irai kakkum vayyakam ellam avanai murai kakkum muttacheyim. The king protects the world and, if he acts according to justice or dharma, then the justice itself will protect him. Dharmo rakshati rakshitaha again reflects the same principle that if a person rules according to dharma, that dharma itself will protect him.
Thus, if we explore the roots of ethics in public administration, we find that we have a rich tradition. From our literature we find that there is a harmony between the individual, social and spiritual goals in our tradition. It is this harmony that provides a meaningful basis for ethics in public administration. Every individual has to strive to achieve moksha'atmano mokshartham. But at the same time his other responsibility is the well-being of the many'jagat hitayacha. In fact the goal in life for the individual as well as society has been ultimately distilled in the concept of dharma through thousands of years of our rich cultural tradition.
The Nature of Ethical Weakness at Present
Before we proceed further, it is worthwhile to have a look at the dynamics of ethics in public administration. This will help us to identify the basic elements that shape ethics in public administration. We can then appreciate how, while changes may be taking place in society due to various factors from time to time over centuries, values remain constant. As values remain constant, the principle of ethics also remains constant. As they remain constant, we all stand to gain by looking at the classical insights on ethics in public administration so that we can improve our current practice.
As a society evolves, it is realized that the behavior of people has to be regulated if society as a whole is to survive. The welfare of a society is the result of cooperation between its members. No man is an island. The Ten Commandments evolved because if everybody was indulging in stealing, murdering, or coveting his neighbor's wife, no orderly society could be possible. The Ten Commandments reflect the values that a society cherishes so that they become guidelines for action. The values are the fundamental principles that are essential for a good, orderly society. Practicing those values in terms of code of conducts gets translated into morals or ethics. As values of society remain the same, ethics also in principle remains constant. This is the underlying dynamism of ethics in public administration. So faster growth is not just a consequence of appropriate economic policy, savings rate, human capital and fiscal deficits, but, somewhat surprisingly, the level of honesty in the citizenry.
This is one area in which Indian citizenry can do with a little bit of brushing up. The damage usually gets done early, when children are taught that 'honesty is the best policy'. As they grow up, they realize that whoever taught them that lesson was not quite honest. There are many situations in life where a quick lie, a broken promise or a reneged contract can bring about gains.
Many people make a mistake in trying to cash in on these gains too often, not realizing that each time one does it, one tends to damage one's reputation. If a person breaks too many promises, people will be wary of getting into agreements with him or her. In other words, excessive dishonesty and corruption, as in our society, is a sign of several things but, importantly, of myopia. To a person interested in nothing but his or her own welfare, the Machiavellian lesson would be simple: try not to tell lies so that you can get away with the rare one when you have to. So even if people were fully selfish, if they calculated their own interest rationally (that is, without myopic short-sightedness), they would be more honest than they typically are.
Collectively, people may have an interest in being even more honest and trustworthy than what the selfish rationality calculus induces. This is not always easy to understand. Let us
begin by noting that people use group characteristics to judge individuals. Thus, people hold views as to how trustworthy Indians are and how punctual Latinos are; about the ethics of Protestants and the materialism of Calvinists; about how dependable the Japanese are as business partners and about how untrustworthy such and such people are (let me leave the identity of this last group to the reader's imagination) and so on.
Something similar happens in the domain of corruption and dishonesty. Each such act hurts the nation or the community that one belongs to, but since that hurt does not enter the individual's calculations (especially so when the individual is selfish) people tend to 'overindulge' in corrupt and untrustworthy activities. Hence, nations where people are habitually (that is, not prompted merely by rational optimization) more honest, will tend to get more investment, trade and business. Many scholars direct their advice at the government or to politicians to act in certain ways, or to bureaucrats to carry out certain responsibilities. This new research in the role of trust is also a reminder that some of the responsibility lies with ordinary citizens as well.
We realize how values can lead to evolution of codes of ethical conduct. In the context of public administration what will be these values? The first of course is the concept of dharma or righteous behavior. When the British came and we inherited the British system of administration, we became familiar with the concept of the rule of law. The rule of law is nothing but the rule of dharma. As Brihadaranyaka Upanishad says, the law is above the king himself. In fact, it is necessary that we accept this, and try to shape our conduct and system in such a way that the principle of dharma or law is re-established. In the Indian democratic system we will be able to establish the rule of law only if we ensure that law makers do not become law breakers, or law breakers do not become law makers in the first instance.
Remedial Action against the Current Rot
I would like to present the following ideas in the context of current practices that have turned ours a highly corrupt country. We are looking at the issue only from the point of view of how the rule of law can be re-established with the help of the right type of law makers. The law makers in our country are the members of parliament and legislature. They can play a very important role in promoting a corruption-free government. Even in government, while the bureaucratic executive implements the law, it is also supervised by the political executive in the form of chief ministers, the prime minister and the cabinet. The political executive is also responsible to the legislature. The role of the law makers therefore can be seen from two different angles. The first relates to the enactment of the law and the second relates to the implementation of the law.
The minimum requirement for ensuring that our law makers are able to promote a corruption-free government is that the law makers should not themselves be law breakers. The Vohra Committee Report had highlighted one negative aspect of our politics, namely, the criminalization of politics. So if we want to start a process by which we will be able to achieve a corruption-free government, where law makers play a very effective role in achieving this objective, it is necessary that we should first take steps to ensure that law breakers and criminals do not become law makers.
As Central Vigilance Commissioner (CVC) my jurisdiction does not cover the judiciary and the legislature. Nevertheless, as a citizen of the country and as a CVC who is concerned with the impact of criminalization of politics and corruption in the executive, I have taken up the issue with the Chief Election Commissioner to see how we can amend the electoral law, particularly Representation of People's Act, to see that the law breakers do not become law makers. I have made the following suggestions for consideration:
No political party can be permitted to contest the elections unless it has got the latest annual accounts duly audited by an auditor as may be prescribed by a notified agency like the Election Commission, the CAG or the Supreme. Court.
No political party may be permitted to contest the elections unless it has cleared its income tax dues and has got the requisite certificate from the income tax authorities.
Complaints regarding corrupt practices during elections can be looked into by the Election Commission even before the date of polling. The Election Commission has an excellent communication system to receive complaints of this type and can immediately take action so that there will be a healthy check and deterrent effect on corrupt practices during elections. Prevention is always better than cure.
A person who has been accused of an offence involving moral turpitude or any other criminal offence cannot be permitted to contest elections. The Election Commission may identify these offences. Instead of going only by the gravity of the offence and FIR being filed, the critical test for applying the ban on the candidate contesting an election should be that a concerned judicial authority like a magistrate should have examined the FIRs and the data, and gone to the stage of framing a charge sheet.
If a person who has been charge sheeted for grave offences and moral turpitude as identified and notified by the Election Commission, is banned from fighting the elections, it will ensure that criminals do not enter politics and become representatives of the people. The responsibility can be cast on the candidate who must be asked to certify that he or she has not been charge sheeted or, if he or she has been, to give details. Such a person must also give details of the past punishment awarded by the court. We do not know what action the Election Commission might take. Nevertheless, I think it is necessary to have a nationwide debate on this issue so that appropriate action is taken to tackle the issue of corruption at the political level.
One of the reasons for corruption in government is that there are too many complicated and obsolete laws. The greater the number of laws, greater is the scope for red tape. Greater the scope of red tape, greater the temptation for corruption. It will be good if the law makers can have a look at the existing laws in the statute book and see how many of them can be done away with. In fact, when Shri I.K. Gujral was prime minister, the Indian government had set up the Jain Committee to identify the administrative laws that were obsolete. If I remember rightly, the committee identified about 3,500 laws of which about a third could be done away with. So in order to promote a corruption-free government we should start with a systematic campaign to remove obsolete laws from the statute book.
In addition to the removal of obsolete laws, there is need to introduce a system that will ensure that no law remains on the statute book forever and thereby become another source for corruption. We should therefore bring in a concept like the sunset principle as in the United States. No law remains on the statute book forever and has a life of say five or 10 years, at the end of which period, unless it is consciously reviewed and re-promulgated, it will exit the statute book. This will automatically ensure that we do not have laws cluttering the statute book.
The next important aspect is that law makers should pass laws that will promote an atmosphere of a corruption-free government. Transparency is increasingly recognized as a method for checking corruption. There is therefore an urgent need for passing a Freedom of Information Act. There is a fear that the Freedom of Information Act will be passed in such a way that there will be so many provisos and safety clauses that ultimately the basic objective of transparency in administration may be defeated. It will be necessary for law makers to ensure that such loopholes are not provided and citizens of the country have access to as much information as possible so that the degree of transparency in the government is enhanced. In fact, except for a small negative list of items having a bearing on the security of the nation or some aspects that have a direct bearing on maintenance of peace and so on, there should be no restriction at all for the public in accessing government information. To the extent our law makers are able to create such an environment, they will have taken an important step towards bringing in a culture of honesty in government.
The dynamics of corruption in government starts with a systematic attempt at politicizing the bureaucracy. Though in principle we are supposed to have a politically neutral permanent civil service of the British type, what we have in practice is the spoil system of the USA, without the corresponding checks and balances in that country that makes it far less corrupt than India. The simple instrument by which the political executive has found that the bureaucracy can be made to dance to its tunes is the instrument of transfers and postings. The importance of insulating at least the important and sensitive posts from this transfer instrument was highlighted by the Supreme Court in the Vineet Narain case, popularly known as the Hawala case. The Supreme Court pointed out that at least the two key investigating agencies of the Government of India, namely, the CBI and the Enforcement Directorate must be insulated from outside influences. This was sought to be achieved by making the Central Vigilance Commission a statutory body and making the CVC supervise the activities of the CBI. The CVC also chairs a committee in which the concerned secretaries are represented to choose the panel of names for the posts of director and senior officials of CBI as well as that of Enforcement Directorate. In addition, there is also an assured tenure of two years for the officials and they cannot be transferred without the consent of the CVC.
This initiative of the Supreme Court so far as CBI and ED are concerned points a way by which we can systematically depoliticize the executive, or at least reduce the possibility of corrupt elements in the bureaucracy getting into sensitive posts and exploiting their position. It will be worthwhile to identify all the sensitive posts in the government and bring in a discipline that these posts will be filled up from a panel of names recommended by ant objective and independent committee like the CVC's committee for the CBI and ED. The composition of this committee can be different for different posts. Once posted, the incumbents will have a minimum tenure of two or three years. This will promote a certain amount of objectivity and relieve the present situation where corrupt elements literally bribe their way into sensitive posts. The above method of investing the filling of key sensitive posts with objectivity will go a long way towards better control over corruption in government.
A New Fundamental Right
Apart from the overwhelming importance of the rule of law, equally important is the empowerment of the citizen. Perhaps the most important law governing modern societies is the Constitution. In the context of the review of the Constitution, which is being undertaken by the Venkatachaliah Committee at present, I would also suggest a new right, the right to corruption-free service as a fundamental one for every citizen. As India has become a corrupt country today, the need for strengthening the citizen becomes important. The rationale for corruption-free service as a new fundamental right is worth exploring at this stage.
The fundamental rights enshrined in the Constitution represent two important facts. The first is that they are an explicit and significant articulation of the basic rights that every citizen must enjoy in a meaningful democracy, and the ideals articulated in the Preamble to the Constitution are realized in practice. The second important fact is that they represent the rights that a citizen must enjoy if we want to have good governance.
These rights have evolved over generations. They represent the lessons society has learnt from past experience when these rights were not available and consequently there was suffering and mis-governance. For example, the protection from double jeopardy must have arisen because there was a time when a person could be punished again and again for the same offence. The right to property must have arisen because there was a lime when these rights did not exist. The right to freedom of speech probably has been very much appreciated because we have seen in our own times regimes where this right did not exist, resulting in bad governance.
Fifty-three years of our existence as an independent nation and 50 years of working of the Constitution have resulted in one common experience for all Indian citizens. They cannot go to any public organization or office today and get the services they are supposed to without either paying a bribe or bringing influence by way of recommendations or references from VIPs.
A number of objections have been raised to the suggestion of the CVC. An example is the article by M.N. Buch in The Pioneer (25 February 2000), 'To Remove Corruption, Begin at the Thana'. The first argument against the CVC's suggestion is that other constitutions do not have such a provision. Another argument is that merely enshrining a new fundamental right may not really ensure us corruption-free service. A third is that already the concept of corruption-free service is enshrined in the Constitution. A fourth argument is: how will this right be implemented? In what follows, I have tried to answer all these objections.
The first reason why corruption-free service must become a fundamental right of every citizen is that it is a basic necessity for good governance. Good governance today can be considered to be a universal human right. We already have a National Human Rights Commission, and human rights have been recognized by the United Nations. In this era of globalization, human rights are getting articulated very effectively and also being implemented. The right to good governance must be a part of human rights, especially in the context of our current state in history. We have had experience of different types of regimes and governance, and we have adopted democracy, which ensures government of the people, by the people and for the people as the best model for good governance.
The negative impact of the phenomenon of corruption is now being recognized by international bodies like the World Bank, which have realized that good corporate governance is necessary in the context of globalization. Good governance cannot follow unless there is a check on corruption. This new fundamental right therefore should be taken as the crystallization of the experiences of the last century, which has seen greater interaction among various nations and the evolution of certain universal principles like those relating to human rights.
It is obvious that corruption, which is the use of public office for private profit, can never go along with good governance. In other words, corruption totally distorts the machinery of the government. If the public servant, while he is occupying an office, can utilize it for exploiting the citizen and enrich himself, should there not be a right on the part of the citizen to ensure that he is not exploited by the corrupt public servant? After all, a fundamental right like double jeopardy is only articulating the principle that the state, which has the power for punishment, will not use that power to punish a person more than once for an offence. Basically the fundamental right should be seen as a right given to the citizen to ensure that he has a level playing field so far as his interaction with the state, which has all the power, is concerned.
There is an argument that other countries do not have this fundamental right in their constitutions. The countries with which we may be comparing ourselves are of two types. They may be countries that are developed like United States or Britain, which, thanks to years of evolution, have much less corrupt governments. So far as the common citizens in these countries are concerned, at least they do not have to face the problem of corruption at every stage when they interact with a public office. In India this is not the situation. Therefore, the Indian citizen has to be protected by being offered this additional right.
The other type of countries are those that are less developed than India or more corrupt than India. The point is, if these countries do not have such a fundamental right, should we also emulate them and sink deeper into the morass of corruption and bad governance? I am sure any sensible Indian would agree that it is better that we realize the corrosive effect of corruption, which is anti-national, anti-poor and anti-economic development. We must strengthen the foundation of good governance by including this right in the fundamental rights chapter.
The next question that is raised is how will] this fundamental right be different from other issues, like a fundamental right for breathing or fundamental right for housing, which one former prime minister is now raising? The fundamental right of corruption-free service is different because in the absence of this right, all the other rights that have been conferred on the citizen become meaningless. Take for example Article 14 of the Constitution, which confers on the citizen the fundamental right of equality before law and equal protection of law. If a citizen is interacting with a corrupt public servant, he or she is definitely not going to be treated on the same footing as another citizen who bribes that corrupt public servant. Thus, the principle of equality before law and equal protection of law is distorted because the corrupt public servant and the phenomenon of bribery.
Article 19 gives a fundamental right to business or profession. It is the experience of our permit license raj that one of the points generally made by public servants who control clearances is that the citizen who is in business is going to make a lot of profit because of the clearance. The corrupt public servant thinks that he or she has a right to share in the profit of the professional or the businessmen. This is the kind of corruption by which the public servant exploits the public office for his or her private gain. The fundamental right for profession or business therefore is directly affected by the public servant insisting on his or her rent. We can thus see that corruption goes directly against the guaranteed fundamental right of profession. The same can be said about the right for freedom of speech and freedom of movement. If a corrupt police official uses his or her power of office to restrict a citizen because the latter has not bribed him or her, then the official is indirectly preventing the exercise of the fundamental right of the citizen by his act of corruption.
At this stage, a point may be raised. So many fundamental rights are already in existence and are being not implemented; then how will addition of one more fundamental right make the situation better? The great advantage is that the inclusion of a new fundamental right like the right to corruption-free service sends a signal throughout the country that there is a national consensus on the problem of corruption as a social evil. So the Constitution confers a right on the citizen to enable him or her to take on the corrupt public servants. Widespread awareness about the inclusion of this new fundamental right will bring in a new generation of students who, right from their school days, will become aware of this right as they study the structure of governance in our country. Public awareness in turn will crystallize into public opinion, which will provide the requisite sanction for modifying social behavior.
Further, the very fact that this is a fundamental right will ensure that the highest court in the land, the Supreme Court, can be approached. In addition to the provisions relating to Prevention of Corruption Act or other preventions about misuse of public offices, the fact that a citizen's fundamental right has been violated will also make the courts take a more serious view. We can expect a series of decisions from the court, which in turn will go a long way in bringing about a sea change in the legal framework and the administrative culture under which the executive functions.
Criticisms like those from Buch do not take into account the fact that sometimes inclusion of a right in the Constitution itself leads to social changes. This probably can be said of the provisions made in our Constitution regarding the abolition of untouchability, non-discrimination, ill-treatment, empowerment of the weaker sections and so on.
It can be argued that the fundamental rights already enshrined in the Constitution also ensure the right for corruption-free service. If we consider that the state shall not deny any person equality before the law and equal protection of law within the territory of India, it can perhaps be argued that Article 29 (ii) need not be there at all. The main purpose of Article 29 (ii), from my plain reading of the Constitution, is to particularly articulate an important fundamental right of minorities, so that this is not lost sight of. More important, minorities can exercise their right and get the protection of the law in exercising their right.
Similarly, Article 17 specifically abolishes untouchability. This was a social evil that had
to be particularly mentioned in the Constitution as a fundamental right. Corruption is no less a social evil than untouchability and therefore why not specifically mention the need for eliminating corruption by making a fundamental right of every Indian citizen to get corruption-free service.
Another social evil that has been specifically abolished by inclusion in the fundamental rights is prohibition of traffic in human beings and forced labor (Article 23). Prohibition of employment of children in factories, etc. under Article 24 is another example of a social evil being eliminated by including the elimination and conferring the rights on the Indian citizens by specific mention in the chapter on fundamental rights.
Generally, the values in a society underlie traditions. Traditions in turn get crystallized into legislation. The soul of traditions or the most essential principles underlying the legislation get reflected in the Constitution. With the experience of the last 50 years of the working of the Constitution and international developments, especially the phenomenon of globalization, it is high time that we included the fundamental right for corruption-free service in the chapter on Fundamental Rights in the Constitution.
Such a measure will make patent what is presumed and latent. There are many who point out to the other provisions of the Constitution and say that corruption-free service follows by the observance of the other provisions of the Constitution. As we have seen above, the phenomenon of corruption in a way goes against the exercise of other fundamental rights mentioned in the Constitution. There is therefore a need for explicitly articulating corruption-free service as a patent fundamental right of the Indian citizen so that what is latent and lying hidden in the other provisions of the Constitution becomes explicit. Making this explicit has the advantage of sending a signal throughout the country about the commitment of the state for improving the quality of life of the citizens of this country.
There may be many who will say that at best this will remain only on paper. At best, it may be only a cosmetic verbal gesture. But the Constitution is not a cosmetic verbal document. It is a living document articulating the spirit of the people as crystallized by the legislature and interpreted by the judiciary. Including this fundamental right therefore may begin perhaps as a verbal gesture, but in the course of time, with the continuous interpretation of the right by the Supreme Court and the judiciary, we can expect that a social change can be brought about in society. After all, we have seen, for instance, the affirmative action in favor of weaker sections of society, Scheduled Castes and Scheduled Tribes, and minorities being articulated first in the Constitution and the subsequent history of 50 years and the judicial action. This has, in a way, resulted in bringing about social change. Bringing about social change, especially by way of checking I corruption and improving governance, there-fore is an important aspect, and inclusion of the new fundamental right can be taken as a first step in that long journey. The journey of a thousand miles begins with a single step, says a Chinese proverb. Perhaps as we begin the journey as a republic in the twenty-first century, articulating this new fundamental right may be a right step towards making India a well-governed country.
Citizen's Fundamental Rights in the Past
In fact, it is interesting that in the past, even though we had kings, citizens were also empowered. The general impression about ancient methods of ruling a country is that there was no say at all of the people in the affairs of the state, and that the king was all in all. The king of course had his ministers and other camp followers in the court, and whatever the king decided to do in consort with his ministers was the law that was enforced by his officials. This is what we all think was the state of affairs in ancient times. What is more, in the name of European historical research, it is even said that in those days the brahmins in the court were the de facto rulers, since they had the king under their thumb and that they got everything done to perpetuate their comforts and hegemony. It was, and still is, made to appear that democracy was something taught to us by Westerners.
In fact, even in Vedic times, eons ago, the country was being ruled with full scope for the common man's opinion, which was fully reflected in the conduct of the day-to-day affairs of the state. The Vedas talk about several methods of administration such as 'sabha', 'samiti' and 'vidhataa'. It was a group of intellectuals from among the people who got together, deliberated on all affairs of state and then laid down the norms, according to which the king ruled the country. Even European researchers say that such groups assisting the king in his administration did not comprise only the brahmins and the kshatriyas (the warriors), but provided for universal representation for every interest in the country. Sri Aurobindo's four chapters on 'Indian Polity' in his classic The Foundations of the Indian Culture reveal vividly the nature of true democratic grassroots governance in ancient India.
'Rudram' is a popular piece in the Vedas. It is found in the Taittiriya Samhitaof the Yajurveda. It is known for the words namo namah that run through most of the hymn. It is a hymn dedicated to Rudra. In it obeisance is paid to everything on earth, movable and un-movable. The idea is that everything on earth is permeated with the all-pervading god, the paramatma, and everything is siva swaroopa. While thus paying obeisance to everything, reference is made to 'sabha' and 'sabhapati'. The 'sabha' referred to is the body of people set for attending to the affairs of state and 'sabhapati' is the president of such a body. Whatever we mean by legislative assembly today was the sort of the set-up called 'sabha' in ancient times. To such an assembly, designed to do good to the common people, obeisance is paid in 'Rudram'. 'The will of the people is the will of the god' is not any new motto imported, but one that was there eons ago in Vedic times. We learn from the Vedas that members of such a 'sabha' or assembly must first of all be of high intellect, good conduct and, most important, have the talent and capacity to put across points of view effectively. In fact, there are very many mantras in the Vedas praying for these three qualities.
In olden days a ruler was not only not allowed to go his way but was obliged to run the country in such a manner as had been laid down by the shastras'Dharmashastra, Arthashastra and the shastra relating to jurisprudence. There was the rajaguru (the king's teacher), the ministers and an assembly of intellectuals, in consultation with whom the king ruled the country. This was the arrangement for ruling the entire country.
The point I am trying to emphasize is that even in olden days, during the reign of the Cholas, what we now consider as the democratic approach, namely, the election of members to a committee of administration was adopted. It is my desire to point out the difference between the two methods and to argue that how the older method was better. An administrator of a country or a town should have the proper qualification and should be fit to become administrator. It follows that only those who have the appropriate qualification and qualities could be permitted to stand for election and be appointed. In the case of the administration of a country, in ancient times the crown prince always stood by the side of the ruling king and had the advantage of being watched by the elders of the assembly who took care to canalize his energies in the right direction. When such elders retired or died, the crown prince would have by then developed experience and discrimination, such that he would be in a position to decide who would be the right people, similar to the old people, who could become members of the assemblies and guide him in the administration. Here the king or the crown prince himself had the appointing authority.
The Dharmashastra was concerned with the dharmic or the right ways of living. For the preservation of these dharmic ways it had divided the community into several sections and, to ensure that they functioned in unison, it laid down several guidelines and rules. Principally for this purpose, did the Dharmashastra come into being. Its very name is 'Dharmashastra' and not 'Rajyashastra'shastra concerned with the administration of a country. It came into being to establish righteousness, not only for the country as a whole for its functioning but also for the individual citizen in his day-to-day living. It clearly laid down that it was the duty of the king to ensure a dharmic (righteous) way of life for his people. The state administration was considered in the olden days as a part of establishing dharma, a righteous way of living. Shastras, such as the Arthashastra and Shukra Neetishastra came to be used principally for the administration of a state. Yet they all, by and large, followed the Dharmashastra. In some respects, however, provision was there to deviate slightly from the rules of the Dharmashastra to suit limited expediencies. But then the governing principle was that the basis of state administration should be such as not to endanger the spirit and structure ofDharmashastra. Wherever any conflict between Arthashastra and Dharmashastraarose, the latter was considered to have precedence over the former. TheDharmashastra is one of the four shastras among the fourteen vidyas, whereas the Arthashastra is only one of the four upangas (subordinate organ) of the Vedas. This is how Tamil kings of those days had claimed that they were followers ofDharmashastra and not Arthashastra. What I am trying to say is that it was not that those ancient kings did not make amendments to existing laws, but it was held that the basic structure of the Dharmashastra was to be maintained and not distorted by amendments to existing laws in the name of contingencies of state administration to suit the convenience of those ruling as they liked. While the tree of the administration of a kingdom was being protected, the tree whose roots wereDharmashastra, the protection was done without damaging the roots and new laws were just like branches of the tree. Just as the branches of a tree are clipped when needed, so were amendments made of even the new laws.
Conclusion: A Three-pronged Strategy
We will be able to tackle corruption only if we are able to follow a three-point strategy. The first is the simplification of rules and regulations so that the scope for corruption is reduced. The second is empowering the public and ushering in greater transparency. The third is effective punishment. We have just seen how in the past the public was empowered in our country. We have also seen how Manu and Tiruvalluvar had both highlighted the need for effective punishment.
In the context of corruption in India today, I will suggest the following for consideration for effective punishment of the corrupt. It is important to have laws that will punish the corrupt. Corruption today in our country has become a low-risk high-profit business activity. The Law Commission in its 167th report had suggested the enactment of the Corrupt Public Servants (Forfeiture of Property) Act, This Act has been pending with the government since February 1999. It is high time that this law was enacted so that corrupt public servants do not take advantage of the present legal process themselves to escape punishment. The highlights of the Act are given in the following paragraphs.
As from the commencement of this Act, it shall not be lawful for any person to whom this Act applies to hold any illegally acquired property either by himself or through any other person on his behalf. Where any person holds any illegally acquired property in contravention of the provisions of subsection (1), such property shall be liable to forfeiture by the central government in accordance with the provisions of this Act. Notwithstanding anything contained in this Act, a person holding any illegally acquired property in contravention of the provisions of subsection (1) shall, on conviction by a criminal court, be also liable for punishment with imprisonment that will not be less than seven years and may extend to 14 years.
The provisions of this Act shall apply to:
every public servant who (a) has been found guilty of corruption in a disciplinary/departmental inquiry, (b) is holding or is in possession of properties that are disproportionate to his known means of income; (c) is found holding or in possession of properties whether in the course of a search, raid or survey by an authority or in any other manner whatsoever, for which he cannot furnish an acceptable explanation or which are disproportionate to his known means of income;
every person who is a relative of the public servant referred to in clause (1);
every associate of the public servant referred to in clause (1);
any holder of any property that was at any time previously held by the public
servant referred to in clause (1), unless such holder proves that he was a transferee in good faith for adequate consideration; and
any person who has deposited any amounts or other movable properties in any bank
or any other concern outside the territory of India, or has acquired any properties outside the territory of India without the requisite permission of the appropriate authority in India.
Many a time, apart from the plethora of laws leading to delays, causing red tape and corruption, many laws themselves provide cushions of safety for the corrupt. These cushions of safety must be systematically removed.
In addition to passing fresh legislation like the Corrupt Public Servants (Forfeiture of Property) Act, law-makers should also insist on implementing laws that have already been passed and have a bearing on checking corruption. For example, in 1988 the Benami Transaction Prohibition Act was passed. Section 5 provides for confiscation of benami properties and Section 8 provides for the government to prescribe the rules under which confiscation could take place. The CVC had requested the government in January 1999 to notify the rules. This has not yet been done.
Prompt action on implementation of such laws will go a long way in fostering a corruption-free government. If there are any difficulties in registration, they can be suitably modified so that the present situation where a law has been on the statute book for nearly 12 years but not yet implemented can be corrected.
As the above analysis shows, three things stand out as the stable features for ensuring ethics in public administration. The first is the need for observing dharma or the principle 'however high you may be, the law is above you'. The concept of rajadharma has to be practiced. In order to ensure that rajadharma is practiced, law-breakers should not become law-makers. There is need for making changes in our system so that the majesty of the law is maintained. The second important aspect is protecting the weak and ensuring that the concept of bahujana sukhayacha bahujana hitaya cha is practiced. This is possible only if we observe the third principle of effective punishment as Manu has said.
I have given some ideas on how we can empower the public in today's time by even making corruption-free service for every citizen of this country a fundamental right, and enacting and implementing laws to give deterrent punishment for the corrupt. Finally, the ethics in public administration will depend a lot on those who are in positions of power.