NATIONAL
COMMISSION TO REVIEW THE
WORKING
OF THE CONSTITUTION
A
Consultation Paper*
on
PROBITY
IN GOVERNANCE
August
21, 2001
VIGYAN BHAWAN ANNEXE, NEW DELHI –
110 011
Email: <ncrwc@nic.in> Fax No.
011-3022082
|
Advisory
Panel
on Strengthening
of the institutions of Parliamentary Democracy;
(Working
of the Legislature, Executive and Judiciary;
their
accountability; problems of Administrative,
Social
and Economic Cost of Political Instability;
Exploring
the possibilities of stability
within
the discipline of
Parliamentary
Democracy)
Member-in-charge
Justice
Shri B.P. Jeevan Reddy Chairperson
Justice
Shri H.R. Khanna Members
q
Shri K. Parasaran q
Dr. Jayaprakash Narayan q
Dr. V. A. Pai Panandikar Member-Secretary
Dr.
Raghbir Singh |
ACKNOWLEDGEMENT
This
Consultation Paper on ‘Probity in Governance’ is based on a paper prepared by
Justice Shri B.P. Jeevan Reddy, Member of the Commission.
The Commission places on record its profound appreciation
of and gratitude to Justice Shri B.P. Jeevan Reddy for his contribution.
CONTENTS
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Pages |
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1. |
Introduction |
585 |
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2. |
Menace of corruption in
public life |
585 |
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3.
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Certain measures
required to be taken for ensuring probity in governance |
588 |
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A.
Need for enforcing section 5 of the Benami
Transactions (Prohibition) Act, 1988 |
588 |
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B.
Misfeasance in public office – a remedy |
590 |
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C.
Necessity for a law providing for
confiscation of illegally acquired assets of public servants |
594 |
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D.
Enactment of a Public Interest Disclosure
Act |
596 |
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E.
Enactment of a Freedom of Information Act |
598 |
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F.
Necessity for enacting a Lok Pal Bill in
addition to the Central Vigilance Commission Act |
601 |
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G.
Strengthening of the Criminal Judicial
System |
606 |
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QUESTIONNAIRE |
607 |
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ANNEXURE |
613 |
1. Introduction
1.1 Probity in
governance is an essential and vital requirement for an efficient and effective
system of governance and for socio-economic development. An important requisite for ensuring probity
in governance is absence of corruption. The other requirements are effective
laws, rules and regulations governing every aspect of public life and, more
important, an effective and fair implementation of those laws, etc. Indeed, a
proper, fair and effective enforcement of law is a facet of discipline.
Unfortunately for India, discipline is disappearing fast from public life and
without discipline, as the Scandinavian economist- sociologist, Gunnyar Myrdal,
has pointed out, no real progress is possible.
Discipline implies inter alia public and private morality and a
sense of honesty. While in the West a
man who rises to positions of higher authority develops greater respect for
laws, the opposite is true in our country. Here, the mark of a person holding
high position is the ease with which he can ignore the laws and regulations. We
are being swamped by a culture of indiscipline and untruth; morality, both
public and private, is at a premium.
This paper explores whether some legislative measures can be designed to
ensure probity in governance. It is true that instilling a sense of discipline
among the citizens is more the function of the society, its leaders, political
parties and public figures and less a matter which can be legislated upon. Even so, things have come to such a pass
that measures need to be contemplated.
2. Menace
of corruption in public life
2.1 Corruption
is an abuse of public resources or position in public life for private
gain. The scope for corruption
increases when control on the public administrators is fragile and the division
of power between political, executive and bureaucracy is ambiguous. Political corruption which is sometimes
inseparable from bureaucratic corruption tends to be more widespread in
authoritarian regimes where the public opinion and the Press are unable to
denounce corruption. The paradox of
India, however, is that in spite of a vigilant press and public opinion, the
level of corruption is exceptionally high.
This may be attributed to the utter insensitivity, lack of shame and the
absence of any sense of public morality among the bribe-takers. Indeed, they wear their badge of corruption
and shamelessness with equal élan and brazenness. The increase of opportunities in State intervention in economic
and social life has vastly increased the opportunity for political and
bureaucratic corruption, more particularly since politics has also become
professionalized. We have professional
politicians who are politicians on a full time basis, even when out of
office. India is rated at 73 out of 99
countries in the corruption perception index prepared by a non-governmental
organisation, Transparency International.
Corruption today poses a danger not only to the quality of governance
but is threatening the very foundations of our society and the State. Corruption in defence purchases, in other
purchases and contracts tend to underme the very security of the State. Some of the power contracts are casting such
financial burden upon some of the States that the very financial viability of
those States has fallen into doubt.
There seems to be a nexus between terrorism, drugs, smuggling, and
politicians, a fact which was emphasized in the Vohra Committee Report.
2.2 Corruption
has flourished because one does not see adequately successful examples of
effectively prosecuted cases of corruption.
Cases, poorly founded upon, half-hearted and incomplete investigation,
followed by a tardy and delayed trial confluence a morally ill-deserved but a
legally inevitable acquittal. The
acceptance of corruption as an inexorable reality has led to silent
reconciliation and resignation to such wrongs.
There needs to be a vital stimulation in the social consciousness of our
citizens – that is neither has a place in the personal nor socialŖ. It is true that the present
process of withdrawing the State from various sectors in which it should have
never entered or in which it is not capable of performing efficiently may
reduce the chances of corruption to some extent but even if we migrate to a
free market economy, there has to be regulation of economy as distinct from
restrictions upon the industrial activity. The requirements of governance would
yet call for entering into contracts, purchases and so on.
2.3 The Scandinavian economist-sociologist,
Gunnyar Myrdal, had described the Indian society as a ‘soft society’. He also
clarified what the expression ‘soft society’ means. According to him, a soft society is: (a) one which does not have
the political will to enact the laws necessary for its progress and development
and/or does not possess the political will to implement the laws, even when
made, and (b) where there is no discipline.
In fact, he has stressed the second aspect more than the first.
According to him, if there is no discipline in the society, no real or
meaningful development or progress is possible. It is the lack of discipline in the society - which expression
includes the administration and structures of governance at all levels - that
is contributing to corruption.
Corruption and indiscipline feed upon each other. One way of instilling the discipline among
the society may be to reduce the chances of corruption and to deal with it
sternly and mercilessly wherever it is found.
For this purpose, the inadequacies in the criminal judicial system have
to be redressed. Corruption is also
anti-poor. Take, for example, the Public Distribution System (PDS) and the
welfare schemes for the poor including Scheduled Castes (SCs) and Scheduled
Tribes (STs). It is well-known that a
substantial portion of grain, sugar and kerosene oil meant for PDS goes into
black-market and that hardly 16% of the funds meant for STs and SCs reach them
– all the rest is misappropriated by some of the members of the political and
official class and unscrupulous dealers and businessmen. The famous economist,
Late Mehbub-Ul-Haq succinctly and poignantly set out the ill-effects of
corruption in a South Asian country like ours.
He said:
“Corruption happens everywhere. It has been at the center of election campaigns in Italy and the
United Kingdom, led to the fall of governments in Japan and Indonesia, and
resulted in legislative action in Russia and the United States. But, if corruption exists in rich,
economically successful countries, why should South Asia be worried about
it? The answer is simple: South Asian
corruption has four key characteristics that make it far more damaging than
corruption in any other parts of the world.
First, corruption in South
Asia occurs up-stream, not down-stream.
Corruption at the top distorts fundamental decisions about development
priorities, policies, and projects. In industrial countries, these core
decisions are taken through transparent competition and on merit, even though
petty corruption may occur down-stream.
Second, corruption money
in South Asia has wings, not wheels.
Most of the corrupt gains made in the region are immediately smuggled
out to safe havens abroad. Whereas
there is some capital flight in other countries as well, a greater proportion
goes into investment. In other words,
it is more likely that corruption money in the North Asia is used to finance
business than to fill foreign accounts.
Third, corruption in South
Asia often leads to promotion, not prison.
The big fish – unless they belong to the opposition – rarely fry. In
contrast, industrialised countries often have a process of accountability where
even top leaders are investigated and prosecuted. For instance, former Italian Prime Minister Bettino Craxi was
forced to live in exile in Tunisia to escape extradition on corruption charges
in Rome. The most frustrating aspect of
corruption in South Asia is that the corrupt are often too powerful to go
through such an honest process of accountability.
Fourth, corruption in
South Asia occurs with 515 million people in poverty, not with per capita
incomes above twenty thousand dollars.
While corruption in rich rapidly growing countries may be tolerable,
though reprehensible, in poverty stricken South Asia, it is political dynamite
when the majority of the population cannot, but to massive human deprivation
and even more extreme income meet their basic needs while a few make fortunes
through corruption. Thus corruption in
South Asia does not lead to simply Cabinet portfolio shifts or newspaper
headlines inequalities. Combating
corruption in the region is not just about punishing corrupt politicians and
bureaucrats but about saving human lives. There are two dimensions of corruption.
One is the exploitative corruption where the public servant exploits the
helpless poor citizen. The other is
collusive corruption where the citizen corrupts the public servant by a bribe
because he gets financially better benefits.
Collusive corruption depends on black money.”Z
2.4 It may be
recalled that the Supreme Court had given certain directions in the case of
Vineet Narain vs. Union of India (AIR 1998 SC 889) for conferring statutory
status upon the Central Vigilance Commission and to insulate the Central Bureau
of Investigation and the Enforcement Directorate from political control and
pressures. In the said decision, the
Supreme Court referred with approval the recommendations of Lord Nolan CommitteeG on Standards in Public Life in the
United Kingdom. The following
principles of public life, of general application, were commended by the court:
“Principles of public lifef:
5. The general principles of conduct which
underpin public life need to be restated. We have done this. The seven principles
of selflessness, integrity, objectivity, accountability, openness, honesty and
leadership are set out (later on).
Codes of conduct:
6. All public bodies should draw up codes
of conduct incorporating these principles.
Independent scrutiny:
7. Internal systems for maintaining
standards should be supported by independent scrutiny.
Education:
8. More needs to be done to promote and
reinforce standards of conduct in public bodies, in particular through guidance
and training, including induction training.”
The Seven Principles of Public Life are stated in the Report by Lord
Nolan, thus -
“The Seven Principles of Public Life:
Selflessness:
Holders
of public office should take decisions solely in terms of the public
interest. They should not do so in
order to gain financial or other material benefits for themselves, their
family, or their friends.
Integrity:
Holders
of public office should not place themselves under any financial or other
obligation to outside individuals or organizations that might influence them in
the performance of their official duties.
Objectivity:
In
carrying out public business, including making public appointments, awarding
contracts, or recommending individuals for rewards and benefits, holders of
public office should make choices on merit.
Accountability:
Holders
of public office are accountable for their decisions and actions to the public
and must submit themselves to whatever scrutiny is appropriate to their office.
Openness:
Holders
of public office should be as open as possible about all the decisions and
actions that they take. They should
give reasons for their decisions and restrict information only when the wider
public interest clearly demands.
Honesty:
Holders
of public office have a duty to declare any private interests relating to their
public duties and to take steps to resolve any conflicts arising in a way that
protects the public interest.
Leadership:
Holders
of public office should promote and support these principles by leadership and
example.”.
2.5 The Supreme Court
observed further:
“These principles of
public life are of general application in every democracy and one is expected
to bear them in mind while scrutinizing the conduct of every holder of a public
office. It is trite that the holders of
public offices are entrusted with certain powers to be exercised in public
interest alone and, therefore, the office is held by them in trust for the
people. Any deviation from the path of
rectitude by any of them amounts to a breach of trust and must be severely
dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly
investigated and the offender against whom a prima facie case is made out
should be prosecuted expeditiously so that the majesty of law is upheld and the
rule of law vindicated. It is the duty
of the judiciary to enforce the rule of law and, therefore, to guard against
erosion of the rule of law.” (see AIR 1998 SC 889, at page 917)
2.6 An instance
and consequence of the adverse effects of corruption on Indian economy can be
gauged from the following statement by Prem Shankar Jha, a keen observer of
Indian economy:
“So
far, despite adopting some of the most liberal foreign investment laws in Asia,
India has not succeeded in seducing even one major international corporation
into using it as a global production platform.
All the Foreign Direct Investment that has come has been bent upon
exploiting the domestic market for consumer goods and durables. In a frank discussion in Singapore, fund
managers and corporate executives revealed that the main reason why they were
not prepared to mesh India into their global production plans was that even
after they had obtained all the clearances from the Central and State
Governments, they remained at the mercy of local bureaucrats and politicians.
Any one of them could stop their operations, and threatened to do so if they
were not given an adequate ‘inducement’.
Every change of government in a state led to a fresh set of demands and
a fresh set of negotiations with the new incumbents. To sum it up, the Chinese took larger bribes, but delivered
security of investment in return. Petty
bureaucrats who transgressed this principle received a bullet in the back of
the head in a football stadium. In
India, by contrast, they prospered while the enterprise sickened or died.”.
3. Certain
measures required to be taken for ensuring probity in governance:
3.0 For ensuring
probity in governance, several measures are necessary, some of which are
mentioned hereinbelow:
A. Need for enforcing section 5 of the Benami Transactions
(Prohibition) Act, 1988:
3.1.1 While many
provisions of the Benami Transactions (Prohibition) Act, 1988 are salutary, it
is necessary to take note of some of the anachronisms in the said Act. The
expression “benami transaction” is defined in clause (a) of section 2 of the
said Act. The said clause reads as under:-
‘(a) “benami transaction” means any
transaction in which property is transferred to one person for a consideration
paid or provided by another person;’.
3.1.2 This
definition appears to be susceptible to unchartered application taking in bona
fide transactions which do not injure public interest – say, a father
buying a flat for his child, paying the price in instalments. If the money for purchase is accounted for
and it is a transaction of advancement, it should not be voided. This is the
true meaning and purport of the definition. The Act, a statute containing nine
sections, perhaps requires to be modified and strengthened. Section 3
prohibits a person from entering into any benami transaction. Be that as it may, the Act prohibits “benami
transactions” and disables any person from claiming that though the property
stands in another’s name, he himself is the real owner. This Act, enacted as
far back as 1988 by Parliament, contains a very salutary and much desired
provision in section 5 which reads thus:
“5. Property held benami liable to acquisition:- (1) All properties held benami shall be
subject to acquisition by such authority, in such manner and after following
such procedures, as may be prescribed.
(2) For the removal of doubts, it is hereby
declared that no amount shall be payable for the acquisition of any property
under sub-section (1).”.
3.1.3 It is evident from a reading of section 5 that it can become effective and
operational only when rules are made under section 8 prescribing the authority,
the manner and procedure following which benami properties can be acquired by
the State (without paying any compensation).
In fact, section 8 expressly contemplates rules being made by the
Central Government for carrying out the purposes of the Act. It is surprising
that the Central Government has not so far thought it fit to make rules for the
above purpose. The Act is of general application; it applies to every benami
transaction, whether the persons concerned are public servants or not. It is
imperative that this is done forthwith, thus fulfilling the legislative
mandate.
3.1.4 Perhaps, it may be safer to have a separate
and exhaustive law relating to public servants. A law in relation to “public servants” as defined by section 2(c)
of the Prevention of Corruption Act, 1988 and section 21 of the Indian Penal
Code is a prime necessity. Such an Act
must be comprehensive in nature and must also deal with acquisition of assets
of public servants. The law must
provide the manner in which properties can be held by the wife, minor children,
near relations of a public servant and should stipulate that if circumstances
show that they are benamidars of the public servants (which expression should
be defined in the same manner as in section 2(c) of the Prevention of
Corruption Act, 1988 and section 21 of the Indian Penal Code), the same should
warrant a special provision which would declare the effects of holding of such
assets. The statute may also provide
that if proper statutory procedures of reporting and verification are not
followed, the burden of proof may be placed on the holder of the property to
show that the same was not acquired by him benami. It is also suggested that
amendments to the Transfer of Property Act, 1882 and the Registration Act, 1908
should be made by which acquisition or transfer of property in favour of or by
a public servant would only be through registered instruments warranting prior
scrutiny or post-transaction scrutiny. (In Delhi, majority of property transactions are done only on the
basis of power of attorney and wills; no registered documents are ever
executed- which incidentally means a substantial loss of public revenue by way
of stamp duty and registration charges).
This may be made applicable even in relation to transactions by which
even though a final conveyance may not be executed, yet interest in property
may be sought to be passed de facto. The provisions may cover not only
the public servants but all those within the family of the public servant. There must exist a clear definition of the
family of the public servants. The
Companies Act, 1961, which has enabled the near and dear ones of the corrupt to
float fabulously rich companies through complex cyclical money in poring also
needs to be amended. The status - financial and property matters - of a public
servant needs to be brought under the proposed comprehensive law relating to
public servants. We suggest that in the law, there should be a monitoring
mechanism not composed of officials of the executive government (since the
executive government can misuse such provisions to retaliate against unwilling
civil servants) but an independent Ombudsman who will regulate the civil
service. It is needless to add that in addition to stringent provisions
relating to public servants, public opinion should encourage concurrent inward
digestion of the principles (See The Executive and the Constitution,
page 94).
3.1.5 It may be recalled that the Benami
Transactions (Prohibition) Act, 1988 was made by Parliament about thirteen
years ago. It conferred the rule-making power upon the Central Government for
the purpose inter alia to make rules prescribing the requisite matter
contemplated by section 5. The Government has singularly failed in discharging
the duty placed upon it by Parliament. It is true that Parliament has not
prescribed any time limit for the purpose, but this is no answer. It is never done. In any event, the Central Government must have made the rules
within a reasonable time. A period of
thirteen years is too long. Central
Government cannot frustrate the intent and object of the Parliament by its
inaction. Indeed, it is under a
statutory obligation to take measures to effectuate the said provision, if the
same has not yet been done.
3.1.6 We must also clarify that the principle of the
decision of the Supreme Court in A.K. Roy has no application here. Firstly, that was a case of ‘conditional legislation’ (power to bring a
constitutional provision/enactment into force). Secondly, the matter related to
the constitutional amendment (to Article 22) effected in 1979 and the case
before the Supreme Court came up in 1981 i.e., within about two years. But when the very same question came up
before the Supreme Court in 1994 in A.G. of India vs Amratlal
Prajivandas, the nine-Judge Constitution Bench made certain pertinent
observations. While observing that it
was not necessary to decide the said question for the purpose of that case, the
Court noted with approval the argument of the Counsel that such delay on the
part of Central Government was not reasonable and that the Parliament while
enacting the said amendment Act could never have contemplated that it would be
converted into a dead letter by the Central Government by its inaction –
deliberate or otherwise.
3.1.7 We are, therefore, of the opinion that at
least now the Central
Government should enact a comprehensive law on public servants.
Such a measure would act as a salutary check-a deterrent - upon corrupt public
servants and would certainly be a measure to ensure probity in governance.
3.1.8 In this connection, it is necessary to
point out the inadequacies in the existing law, namely, the Prevention of
Corruption Act, 1988 and the Indian Penal Code. Mere prosecution under the IPC
or the Prevention of Corruption Act (PCA) is not sufficient, apart from the
fact that such prosecutions are very rarely launched and even when they are,
the conviction is much too rare. Unless
the fruits of corruption are taken away, you would not be fighting the corruption
truly and effectively. A law for forfeiture
of property of corrupt public servants otherwise then through the route of
conviction is absolutely essential. In other words, wherever a public servant
is found to have screened the illegally acquired assets in the name of a
benamidar, action should be taken under this Act and the Rules framed
thereunder, and those assets acquired by State without any compensation, as
indeed provided for expressly by the Act.
For this purpose, the appropriate authority (like the one specified
under section 5 of PCA) should be clothed with the necessary powers of
investigation, verification, enquiry and the power to gather and receive
information from any source, authority, institution or organization. So far as
the public servants are concerned, different authorities may be specified in
the States and at the Centre. So far as
Union and State Ministers are concerned, appropriate authorities have to be
created. For non-public servants, appropriate authorities may also have to be
specified. The only obligation of such
authorities should be to observe the principles of natural justice. It would not be a case of conviction by
criminal courts – it would be a purely civil remedy – against corruption. The burden of proving that the property is
not held ‘benami’ should be placed upon the holder of such property/asset.
B. Misfeasance in Public Office – A
Remedy
3.2.1 The Supreme Court in an innovative
exercise, examined executive actions of two former Union Ministers. It found
that one of them allotted petrol pumps in favour of fifteen persons which were
plainly vitiated by lack of transparency, nepotism and arbitrariness. The
allotments made mostly in favour of the relations of the Ministers or members
of his staff. In the case of the other Minister, the Court found that illegal
allotments had been made in relation to occupation of Government
accommodation. The Court, while taking
the view that no public servant could arrogate himself the power to act in a
manner which was plainly arbitrary, observed:
“It
is high time that the public servants should be held personally responsible for
their mala fide acts in the discharge of their functions as public
servants. With the change in
socio-economic outlook, the public servants are being entrusted with more and
more discretionary powers even in the field of distribution of government
wealth in various forms. We take it to
be perfectly clear, that if a public servant abuses his office either by an act
of omission or commission, and the consequence of that is injury to an individual
or loss of public property, an action may be maintained against such public
servant. No public servant can say “you
may set aside an order on the ground of mala fide but you cannot hold me
personally liable”. No public servant
can arrogate to himself the power to act in a manner which is arbitrary.”W.
3.2.2 On the question of allotments, the Court
opined how the Minister who was executive head of the department held a
position of trust. The court observed:
“The
government today – in a welfare State – provides large number of benefits to
the citizens. It distributes wealth in
the form of allotment of plots, houses, petrol pumps, gas agencies, mineral
leases, contracts, quotas and licences, etc.
Government distributes largesse in various forms. A Minister who is the executive head of the
department concerned distributes these benefits and largesse. He is elected by the people and is elevated
to a position where he holds a trust on behalf of the people. He has to deal with the people’s property in
a fair and just manner. He cannot
commit breach of trust reposed in him by the people…. A transparent and
objective criteria/procedure has to be evolved….”.1
3.2.3 The Supreme Court directed one Minister to
pay a sum of Rs. Fifty lakhs by way of exemplary damages to the government.
Likewise, the other Minister was asked to pay a sum of Rs. Sixty lakhs by way
of exemplary damages. The Court, in
both the cases, concluded that the actions of the Ministers amounted to a
misfeasance of public property.
3.2.4 The Supreme Court relied upon the well
stated position in Ramana Deyaram Shettey and Lucknow Development Authority to
hold that in the matter of grant of largesse, the Government and its officials
were expected to act in a fair, just and transparent manner and that if they
acted in a malicious and deliberate manner causing injury to the citizens of
the State, they could be held liable for damages. Rookes v. Barnard was relied upon to hold that exemplary damages
could be awarded for “oppressive, arbitrary and unconstitutional action by the
servants of the government.”. The Supreme Court then concluded:
“We
are of the view that the legal position that exemplary damages can be awarded in
a case where the action of a public servant is oppressive, arbitrary or
unconstitutional is unexceptionable”
[para 12 at page 598 of the decision in 1996 (6) SCC 593]. The same
principle was reiterated in the decision concerning the other Minister. It would not be out of place to mention
that the Supreme Court followed several other English decisions besides Rookes
v. Barnard in arriving at its decision.
Indeed the Court pointed out that the principle of Rookes v. Barnard
was expressly affirmed by the House of Lords in Broome v. Cassell
(1972 AC 1027). The Court also referred
to the decision of the Court of Appeals in A.B. v. South West Water
Services Ltd. (1993 (1) All E.R. 609) as following and affirming the rule
in Rookes v. Barnard. It may
also be mentioned that as late as 1996, the U.K. High Court has held in Three
Rivers District Council v. Bank of England (1996 (3) All E.R. 558),
following earlier decisions that:
“The
tort of misfeasance in public office was concerned with a deliberate and
dishonest wrongful abuse of the powers given to a public officer and the
purpose of the tort was to provide compensation for those who suffered loss as
a result of improper abuse of power. It
was not to be equated with torts based on an intention to injure, although it
had some similarities to them. The
tort could be established in two alternative ways: (a) where a public officer
performed or omitted to perform an act with the object of injuring the plaintiff
(i.e. where there was targeted malice); and (b) where he performed an act which
he knew he had no power to perform and which he knew would injure the
plaintiff. Accordingly, malice, in the sense of an intention to injure the
plaintiff or a person in a class of which the plaintiff was a member, and
knowledge by the officer both that he had no power to do the act complained of
and that the act or omission would probably (but not that it would necessarily
or inevitably) injure the plaintiff or such a person, were alternative, not
cumulative, ingredients of the tort. To act with such knowledge was to act in a
sufficient sense maliciously.”.
3.2.5 This statement of law is indeed a faithful
reiteration of the law laid down by the Court of Appeals in Bourgoin S.A.
v. Ministry of Agriculture (1985 (3) All E.R. 585).
3.2.6 These decisions, certainly, were welcome
and enhanced the image of the Supreme Court in the public eye. The decisions
established that courts were concerned with public servants and ministers could
not escape consequences of their mala fide acts and orders. The decisions, in substance, demonstrated
the adage that “howsoever high you may be, the law is above you”. The decisions reinforced the rule of law and
not that of men and further that public servants must develop a respect for public
property and, above all, that public office is a trust and not a charter of
corruption, nepotism and personal gain.
3.2.7 However, the principle enunciated in the
above decisions were overruled in a subsequent decision of the Supreme Court in
a review petition filed by one of the Ministers. A reading of the judgment
(reported in AIR 1999 SC 2979) discloses that the review petition was allowed
on the following grounds:
The
petitioner before the court “Common Cause”, a registered society, was not one
of the applicants for allotment of petrol outlets and therefore has not
suffered any legal injury by the unlawful allotments made by the Minister. If
so, “how could then a finding of commission of misfeasance in public office by
the petitioner (the Minister) be recorded in proceedings under Article 32 and
that too at the instance of “Common Cause” on the basis of a Press
report”. Maybe, Common Cause was
justified in agitating the said question by way of public interest litigation
but that effort has already succeeded inasmuch as the 15 illegal allotments
were quashed. But the Court was not
entitled to go further and hold that the Minister has committed the tort of
misfeasance in public office and to award exemplary damages on that basis.
Damages can
be awarded for a tortious act to a particular plantiff who has suffered loss on
account of the said tortious action; “mere allotment of petrol outlets would
not constitute ‘misfeasance’ unless other essential elements were present”. True, it is that allotment of 15 outlets by
the Minister was wholly unjustified and was an instance of wanton misuse of
power, yet “it falls short of ‘misfeasance in public office’ which is a
specific tort and the ingredients of that tort are not wholly met in the case”. Hence, there was no occasion to award
exemplary damages.
Exemplary damages can no doubt be awarded against the
public servants in certain situations but not in a case like this. The decision of the House of Lords in Rookes
v. Bernard as affirmed in Broome
v. Cassell cannot be accepted; “if we were to apply the rule in Rookes
v. Bernard as upheld in Cassell and Company Limited v. Broome
invariably and unhesitatingly and were to award exemplary damages in every case
involving government officers or government servants, the result would be
appalling”.
The Court
further observed: “The petitioner does not on becoming the Minister.… assume
the role of a ‘trustee’ in the real sense nor does a ‘trust’ come into
existence in respect of the government properties”.
Examined
from the point of view of criminal breach of trust as defined in section 405 of
the Indian Penal Code, the ‘power to allot’ cannot be treated as ‘property’
within the meaning of section 405 IPC that is capable of being misutilised and
misappropriated.
The
direction to initiate criminal proceedings against the Minister concerned was
violative of the right to life and liberty guaranteed to him by article 21 of
the Constitution.
In exercise
of its powers under Article 32 of the Constitution, it was not permissible for
the Supreme Court “to direct the government to pay the exemplary damages to
itself”. (This was so held obviously
on the footing that a Minister of the government is part of the Government and
therefore the Government cannot be directed to pay damages to itself.)
3.2.8 While the moral vigour of the decisions
rendered in the aforesaid cases needs to be respected. Whether the principle of
damages for a tort of misfeasance must necessarily involve an ingredient of injury
to an agreed individual needs to be re-examined. The principle on which
liability can be placed on public servants must be clear and must also be a
fair principle consistent with need to act fearlessly and must not be capable
of comprehending bona fide actions, though may be concerned, of civil
servants. It is necessary that the principle must promote good governance. By
way of example, we may refer to the Andhra Pradesh Cooperative Society’s Act,
1964. Section 60 thereof provided that when an office bearer who was entrusted
with the organization, affairs of management of the society, misappropriated or
fraudulently retained any money or was guilty of any breach of trust, his
conduct could be inquired into and an order requiring him to repay or restore
the money or property by way of compensation would follow. It is necessary to
enact as a part of a comprehensive law relating to public servants, the
principles on the basis of which misfeasance can be rendered punishable. The principle must ensure that the
wrong-doing is palpably evident, and given the barest standards of
foreseeability, no two views are possible.
It is then, and then alone, that the public servant is exposed to
damages. Likewise, the principle may
deal with both the situations, i.e., a situation where a definite injury had
been caused to a third person and secondly where a declaration of wanton abuse
of power can be arrived at by satisfying judicially manageable standards. Public servants in both the cases must be
visited with the imposition of damages.
Likewise, the principles of quantification of damages need to be defined
since arbitrariness in arriving at figures may well become an area (of
non-liquet) where ‘no human law and justice may ever reach’. While drafting the legal provisions, there
must be an examination of the basic power structure, the composition of the
elite, of their fundamental structures in [see W. Michael Reisman, Folded Lies:
Bribery, Crusades and Reforms, 69-73 (1973)].
It is necessary that the principles must be clear and achieve the
desired result since there have been far too many moral crusades but few
successful prosecutions. While
adjusting the bona fides or mala fides of an executive act, the matter
should be one which is determinable contemporaneously with reference to clear
standards of foreseeability.
3.2.9 Section 60 of the Andhra Pradesh
Cooperative Societies Act, which carries the heading “Surcharge” reads as
follows:
“60.
Surcharge.- (1)
Where in the course of an audit under section 50 or any inquiry under section
51 or an inspection under section 52 or section 53, or the winding up of a
society, it appears that any person who is or was entrusted with the
organization, affairs or management of the society or any past or present
officer or servant of the society has misappropriated or fraudulently
retained any money or other property or has been guilty of breach of trust in
relation to the society or has caused any deficiency in the assets of the society by breach of trust or wilful
negligence or has made any payment contrary to the provisions of this Act, the
rules or the bye-laws, the Registrar himself, or any person specially
authorized by him in this behalf, of his own motion or on the application of
the committee, liquidator or any creditor or contributory, may inquire into the
conduct of such person or officer or servant and make an order requiring him to
repay or restore the money or property or any part thereof with interest at
such rate as the Registrar or the person authorized as aforesaid thinks just or
to contribute such sum to the assets of the society by way of compensation in
respect of the misappropriation, misapplication of funds, fraudulent retainer,
breach of trust or wilful negligence as the Registrar or the person authorized
as aforesaid thinks just:
Provided that no order shall be passed
against any person referred to in this sub-section unless the person concerned
has been given an opportunity of making his representation.
(2)
This section shall apply notwithstanding that such person or officer or servant
may have incurred criminal liability by his act.”
3.2.10 It may be remembered that a cooperative
society has an elected managing committee to run and manage its
affairs/business and also staff appointed to assist the persons in management
in their duties. Both elected members and the employees so appointed are within
the ambit of the above section. There is no reason why this principle cannot be
extended to the governing machinery at the Union and State level, where too
elected members form the government and run and manage the affairs of the State
with the assistance of a permanent bureaucracy. Even the statutory authorities
should be within the purview of this rule. The protective clauses usually found
in enactments only save the authorities from any suit or prosecution in respect
of acts done by them in ‘good faith’.
The protection does not and should not extend to acts done mala fide.
Where the mala fide action causes loss to the State, i.e. people as such, the
State must be entitled to recover the loss from the concerned official/
authority.
3.2.11
Several other enactments concerning the cooperative societies enacted by
the various States too contain similar provisions.
3.2.12 A comprehensive law needs to be enacted
to provide that where public servants cause loss to the State by their mala
fide actions or omissions of a palpable character to be defined, they should be made liable to make good the
loss caused by him to the State and, in addition, would be open to the
imposition of exemplary damages. The principles must include cases of
misuse of official position and acts outside authority. The expression ‘public
servant’ must be extended to ‘all public servants as defined in the Indian
Penal Code and in the Prevention of Corruption Act, 1988, which expression has
been interpreted to include Members of
Parliament, Members of State Legislatures and Councils and Ministers.
Such a law would have the merit of obviating several questions like whether
Government can be asked to pay damages to itself, whether the power to grant or
allot some benefit can be called ‘property’, whether such action of the public
servant constitutes a ‘tortuous action’, whether damages/ exemplary damages can
be awarded for such acts, and if so, on what basis and to what extent, whether
public office is a trust and questions of ‘locus standi’ and so on. It would
also contribute to avoidance of multiplicity of proceedings and would be more
effective than a mere criminal prosecution, whether under IPC or PC Act. The law must, however, provide that
proceedings thereunder can be taken on the basis of information received
including an audit report or a report of any commission, committee or body
competent to examine the relevant facts.
The authority empowered to take proceedings must be an independent high
level officer/agency whose tenure, conditions of service and independence
should be firmly and fully guaranteed as has been done in the case of Central
Vigilance Commissioner. Different authorities
may be prescribed for different classes of public servants. For example Ministers and Legislators may
constitute one category, Group A officers may constitute another category and
so on. Classification can also be done department-wise. This is, however, a
matter for the Parliament/Legislature to decide. It may be appropriate for
the Parliament and also State
Legislatures on similar lines to enact a new comprehensive law to deal with
public servants with reference to their public functions, relationship with the
State as well as the examination of their personal effects and private
properties. The fact, however, remains that such a course has become absolutely
essential and urgent. The public
servants must be put on notice that they will be responsible to make good the
loss caused by them to the State by their mala fide acts, to use a
comprehensive expression to done the grounds mentioned herein above – that they
should no longer be under the cosy impression that all that would happen in
such a case is that their mala fide order or action would be set aside by the
Court but that nothing would happen to them personally. They should be made aware that a mala fide
act or action on their part carries the liability for damages/compensation.
Creating personal liability of this kind would contribute greatly to good
governance and would emphasise the need for transparent, fair and honest
exercise of power. It would in no way
dampen the initiative of the Ministers or officials nor would it inhibit them
in any manner in effective discharge of their functions. A responsible government and the concept of
accountability are not anti-thetical to good governance; on the contrary they
promote it – they contribute to public good.
Mere errors of judgment or bona fide mistakes would certainly not
expose the public servants to such a consequence but where their actions are
mala fide, i.e., falling within any of the six grounds mentioned hereinabove,
they should be held responsible. If
such acts result in loss to the State, they must be made liable to make good
the same.
C. Necessity for a law providing for
confiscation of illegally acquired assets of public servants
3.3.1 In the
decision reported in Delhi Development Authority v. Skipper
Construction Co. (P) Ltd. (AIR 1996 SC 2005), the Supreme Court made the
following observations:
“…
a law providing for forfeiture of properties acquired by holders of
‘public office’ (including the offices/posts in the public sector corporations)
by indulging in corrupt and illegal acts and deals, is a crying necessity in
the present state of our society. The
law must extend not only to – as does SAFEMA – properties acquired in the name
of the holders of such property but also to properties held in the names of his
spouse, children or other relatives and associates. Once it is proved that the holder of such office has indulged in
corrupt acts, all such properties should be attached forthwith. The law should
place the burden of proving that the attached properties were not acquired with
the aid of monies/properties received in the course of corrupt deals upon the
holder of that property as does SAFEMA whose validity has already been upheld
by this Court in the aforesaid decision of the larger Constitution Bench. Such a law has become an absolute necessity,
if the canker of corruption is not to prove the death-knell of this
nation. According to several
perceptive observers, indeed, it has already reached near-fatal dimensions. It is for the Parliament to act in this
matter, if they really mean business.”
3.3.2 Indeed, in
the above case the Supreme Court followed the law laid down by a nine-judge
Constitution Bench in Attorney General of India v. Amratlal
Prajivandas [1994 (5) SCC 54] while dealing with the constitutional
validity of the Smugglers and Foreign Exchange Manipulators (Forfeiture of
Property) Act, 1976 (13 of 1976) which provided a similar forfeiture of
illegally acquired assets of smugglers and foreign exchange violators. The nine-judge Bench, in a unanimous
decision observed that the laudable object behind the said enactment was:
“to forfeit the illegally acquired
properties of the convict/detenue irrespective of the fact that such properties
are held by or kept in the name of or screened in the name of any relative or
associate as defined in the said two Explanations. The idea is not to forfeit the independent properties of such
relatives or associates which they may have acquired independently but only to
reach the properties of the convict/detenue or properties traceable to him,
wherever they are, ignoring all the transactions with respect to those
properties.”.
3.3.3 SAFEMA, it
may be pointed out, placed the burden of proof squarely upon the smuggler and
foreign exchange manipulator to establish that the assets owned by him or by
the members of his family have been lawfully acquired. It was pointed out in the said nine-judge
Bench decision that such a course was inevitable in the light of the fact that
only the person who acquired properties can explain how he has come to acquire
those properties and that it is not possible for the authority to do so. It was observed in the said decision:
“…
The violation of foreign exchange laws and laws relating to export and
import necessarily involves violation of tax laws. Indeed, it is well known fact that over the last few decades,
smuggling, foreign exchange violation, tax evasion, drugs and crime have all
got mixed-up. Evasion of taxes is integral
to such activity. It would be difficult
for any authority to say, in the absence of any accounts or other relevant
material that among the properties acquired by smuggler, which of them or which
portions of them are attributable to smuggling and foreign exchange violations
and which properties or which portions thereof are attributable to violations
of other laws (which the Parliament has the power to make). It is probably for this reason that the
burden of proving that the properties specified in the show cause notice are
not illegally acquired properties is placed upon the person concerned. May be this is the case where a dangerous
disease requires a radical treatment.
Bitter medicine is not bad medicine.
In law it is not possible to say that definition is arbitrary or is
couched in unreasonably wide terms….”
3.3.4 It is,
therefore, quite appropriate that even in the proposed legislation to forfeit
the properties of corrupt public servants, the burden of proof should be placed
upon the holders of the property. This
indeed is the principle of section 106 of the Indian Evidence Act. 1872. The said section along with the illustration
appended to it reads as follows:
“106. Burden of proving fact especially within knowledge: When any fact is especially within the
knowledge of any person, the burden of proving that fact is upon him.
Illustrations:
(a) When a person does an act with some intention other than that which
the character and circumstances of the act suggest, the burden of proving that intention
is upon him.
(b) A is charged with
traveling on a railway without a ticket.
The burden of proving that he had a ticket is on him.”
3.3.5 It is on this
principle that in prevention of corruption statutes, the burden of proof is
very often laid upon the accused. It
has been held by the Supreme Court in C.S.D. Swami versus State
(AIR 1960 SC 7) that “… the Legislature has, thus, deliberately cast a burden
on the accused not only to offer a plausible explanation as to how he came by
his large wealth, but also to satisfy the Court that his explanation was worthy
of acceptance”. This case was decided
with reference to section 5(3) of Prevention of Corruption Act, 1947. The Court observed further “… section 5(3)
of the Act does not create a new offence but only lays down a rule of evidence,
enabling the Court to raise a presumption of guilt in certain circumstances” –
and thus an exception to the general rule of burden of proof in criminal
cases. To the same effect is the
decision in State of Maharashtra versus Wasudeo (1981 SC
1186). Construing section 5, the Court
held: “When section 5(1)(e) uses the words “for which the public servant is
unable to satisfactorily account”, it is implied that the burden is on such
public servant to account for the sources for the acquisition of
disproportionate assets”, and that if he fails to satisfactorily account for
his assets, he is liable to be convicted.
3.3.6 It is pointed
out by some that where the property has been acquired several years ago, the
person called upon to prove the sources of such acquisition may be under a
severe handicap, inasmuch as he may not have kept or preserved the records
relating to sources of such acquisition. This is however an aspect which the
Court or Tribunal would certainly keep in mind while determining whether the
person has discharged the burden that lay upon him.
3.3.7 The
philosophical basis for such confiscation was explained by the Supreme Court
in, the Attorney General of India, by invoking the concept of ‘implied trust’. The relationship between the government and
the public servant is of a fiduciary nature. In such a case, it was held, any
benefit obtained by a fiduciary through a breach of duty belongs in equity to
the beneficiary. It was further
observed that a gift accepted by a person in a fiduciary position as an
incentive for breach of his duty constituted a bribe and although in law it
belonged to the fiduciary, in equity he not only became a debtor for the amount
of the bribe to the person to whom the duty was owed, but he also held the
bribe and any property acquired therewith on ‘constructive trust’ for that
person. Any increase in the value of
such property belonged to the person injured/beneficiary and that in case of
any diminution in the asset, the wrong-doer was liable in person. It was also observed that unless there is a
law providing for prompt forfeiture of illegally acquired assets, they would be
spirited away beyond our shores to safe havens and numbered accounts.
3.3.8 Acting upon
the observations of the Supreme Court in the above two judgments, the Law
Commission of India submitted its 166th Report on “the Corrupt
Public Servants (Forfeiture of property) Bill” recommending to the Central
Government to introduce a Bill in Parliament for forfeiture of illegally
acquired properties of corrupt public servants. A draft Bill was also enclosed to the said Report. It is again a matter of regret that the
government has not thought it fit to take the desired steps.
3.3.9 We are of the opinion that a law as
recommended hereinabove, has become absolutely inescapable in today’s
situation. It would clothe the State with an effective means of checking corruption. Nobody suggests that such an enactment would by itself check
corruption. But even if a handful of cases concerning some notoriously corrupt
persons are dealt with under such enactment, it will have a sobering effect
upon other wrong-doers.
D. Enactment
of a Public Interest Disclosure Act
3.4.1 One of the measures
adopted in several western countries to fight corruption and mal-administration
is enactment of Public Interest Disclosure Acts, which are popularly called
Whistle-blower Acts. The object of such enactments is to improve accountability
in government and public sector organizations by encouraging people not to turn
a blind eye to mal-practice taking place in their organizations and to report
the same to the specified authority.
The motto of the British Act (Public Interest Disclosure Act, 1998) is “Address
the message rather than the messenger; and resist the temptation to cover up
serious mal-practices”. The Act
provides for protection of Whistle-blowers from dismissal and victimization by
making appropriate provisions in that behalf.
3.4.2 An experienced corrupt public servant knows
how to circumvent internal control proceedings. Such person indulges in such activity either by himself or in
collusion with others, whether employees or outsiders. Even so, wherever corruption or
mal-practice takes place, it cannot but be that some or the other person in the
organization knows it or comes to know of it.
The Act enables such person to lay such information before the specified authority and thus promote public
interest. It is true that such Whistle-blowing
has been looked upon until now with some kind of disfavour, but recently a
growing recognition has dawned upon all concerned that the persons who sound
the alarm of serious mal-practice, corruption or fraudulent activity in
government or public sector organizations deserve public thanks and support
rather than punished and humiliated for being ‘disloyal’ to their employers or
colleagues.
3.4.3 The Act is really aimed at improving
accountability within the government and public sector by allowing the
employees to inform the appropriate authorities of organizational or individual
wrong-doing either in a confidential manner or by a public report. The Act should provide that the authority
receiving such information should be an independent person and not be a part of
the concerned government or public sector organization. If any information is received by him
confidentially containing some allegations, he must investigate the same
without publicly humiliating the suspect or the Whistle-blower. He must adopt appropriate methods to ensure
the same. It must also be ensured that
the persons who lay correct and true information about such illegalities should
be rewarded which need not necessarily be financial in nature. It is equally necessary to ensure that this
Whistle-blowing facility is not abused by malicious employees, out to achieve
their personal grievance or vendetta.
3.4.4 Indeed, it is now believed that the law and
the society must help create a culture wherein honest interchanges are respected
and valued rather than punished. The
Act must ensure that the informants are protected against retribution and any
form of discrimination for reporting what they perceived to be wrong-doing,
i.e., for bona fide disclosures which may ultimately turn out to be not
entirely or substantially true.
3.4.5 It must be recognized, at the same time,
that there are certain pitfalls in such a measure in the sense that it is
liable to be abused by persons out of vindictiveness or for the purpose of
retaliation or for claiming rewards. It
must, however, be left to the appropriate authority to determine whether
information laid before him confidentially is substantially correct information
or whether the informant was acting bona fide or whether it is a totally
false information actuated by malice or vindictiveness. There must be a
provision for punishing persons who lay false information out of such
inadmissible motives.
3.4.6 It is believed in many developed countries
that while there are certainly some risks inherent in such a legislative
measure, it is better to run these risks rather than allow corruption and fraud
to continue or to leave the Whistle-blower to go to an outside agency. Undoubtedly, the balance between asking
people to blow the whistle and telling them that they themselves could be
subject to proceedings for laying incorrect information, is a fine one. The
situations arising under such a legislative measure, if handled sensitively,
may certainly prove a step forward rather than a step backward in the fight
against corruption and mal-administration.
3.4.7 In the British Act, the person/authority
specified to receive complaints of the above nature is called a regulator.
3.4.8 As the London Borough, Lambeth says in its
Whistle Blowing Charter, “if you believe something is wrong, speak out”.
3.4.9 In this connection, it would not be out of
place to refer to an organization in U.K., “Public Concern At Work”, active in
this field which has received the recognition of the government of the U.K. In
their White Paper, ‘The Governance of Public Bodies’, the government has
accepted the important role Whistle-blowing can play in ensuring probity and
accountability and in that connection referred to the said organization as ‘the
leading organization in this field’.
The said organization has published a number of papers espousing the
cause of Whistle-blowing including some case studies. It is stated in one of their papers as below:
“Standards in Public Life
In
policy terms the most important development in recent years has been the Nolan
Committee’s endorsement of whistle-blowing as a means of ensuring and
demonstrating high standards in public bodies.
Nolan’s 1996 recommendations, which are reproduced on the back cover,
were accepted by the Major Government in its 1997 White Paper on The Governance
of Public Bodies. The work of the Committee has also clarified the meaning of
whistle-blowing. As the White Paper
remarks, “The Nolan Committee used the term ‘whistle-blowing’ to mean the
confidential raising of problems within an organization or within an
independent review structure associated with that organization, not in the
popular pejorative sense of leaking information to the media.”
3.4.10 We
have also looked into the whistle-blower Acts enacted by various countries
viz., U.K., Australia, State of Michigan (USA) and Canada. We find that the Australian Act can serve as
a model for our country, no doubt, with appropriate changes.
3.4.11 In this
connection, we may refer to the episode relating to “Pentagon Papers” which
ultimately resulted in the decision of the U.S. Supreme Court in New York
Times v. United States (1971) 403 U.S. 713 = 29 L.Ed. 2d. 822. One
of the employees, Daniel Ellsberg, working in the defence department, came
across a classified study entitled “History of the U.S. Decision-making Process
on Vietnam Policy”. The study disclosed that the U.S. government has been
withholding from public true and correct information regarding its involvement
in Vietnam and that it has been guilty of misrepresenting to the American
people the issues and the facts relating to their involvement in Vietnam
conflict and other relevant facts vitally affecting the American lives and
interests. He did not know whom to
complain. There was no authority
outside the government to whom he could turn.
He therefore approached the two leading U.S. dailies, The New York Times
and The Washington Post with the material (he had secretly made copies of
it). The employee was arrested and
harassed for allegedly compromising the national security. The government
tried unsuccessfully to block the
publication of the said study, popularly known as ‘Pantagon Papers’ in the
aforesaid dailies. The affair turned out to be a serious embarrassment to the
U.S. government, and to its successive Presidents responsible for the American
involvement in Vietnam.
3.4.12 It
is obvious that had there been an independent authority (‘Regulator’) to whom
the employee could have turned with the information in his possession and had
such authority been empowered to enquire into the matter and make necessary
orders – and if called for in public interest, gone public with it, the
proceedings would have ended in an orderly manner and public interest served
much better and more promptly. It could
also have saved many lives, both American and Vietnamese. It goes without saying that these
disclosures led to public disenchantment with – nay, opposition to – Vietnam
war in U.S. and to its ultimate withdrawal from Vietnam on 30th
April, 1975.
3.4.13 It
is understood that the Law Commission of India is in the process of drafting a
Public Interest Disclosure Bill, for forwarding it to the Government of India.
E. Enactment
of a Freedom of Information Act
3.5.1 Right to receive and the right to impart
information has been held to be a part of freedom of speech and expression
guaranteed by sub-clause (a) of clause (1) of article 19 of the Constitution
subject of course to the reasonable restrictions, if any, that may be placed on
such right in terms of and to the extent permitted by clause (2) of the said
article. It has been held by the
Supreme Court in Secretary, Ministry of I&B v. Cricket
Association of Bengal (1995 (2) SCC 161) that:
“The freedom of speech and expression includes right to
acquire information and to disseminate it.
Freedom of speech and expression is necessary, for self-expression which
is an important means of free conscience and self-fulfillment. It enables
people to contribute to debates on social and moral issues. It is the best way to find a truest model of
anything, since it is only through it that the widest possible range of ideas
can circulate. It is the only vehicle
of political discourse so essential to democracy. Equally important is the role
it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore,
includes right to communicate through any media that is available whether print
or electronic or audio-visual such as advertisement, movie, article, speech,
etc. That is why freedom of speech and
expression includes freedom of the press.
The freedom of the press in turn includes right to circulate and also to
determine the volume of such circulation.
This freedom includes the freedom to communicate or circulate one’s
opinion without interference to as large a population in the country, as well
as abroad, as is possible to reach.”.
3.5.2
The fundamental values underlying the concept of freedom of speech, and
the functions that the freedom serves in a democratic society, are widely
accepted. They can be summarized in the
following form:
(i) First, freedom of speech is essential
to the development of the individual personality. The right to express oneself and to communicate with others is
central to the realization of one’s character and potentiality as a human
being. Conversely, suppression of
thought or opinion is an affront to a person’s dignity and integrity. In this respect freedom of speech is an end
in itself, not simply an instrument to attain other ends. As such it is not necessarily subordinate to
other goals of the society.
(ii) Second, freedom of speech is vital to
the attainment and advancement of knowledge.
As John Stuart Mill pointed out, an enlightened judgment is possible
only if one is willing to consider all facts and ideas, from whatever source,
and to test one’s conclusion against opposing views. Even speech that conveys false information or maligns ideas, has
value, for it compels us to retest and rethink accepted positions and thereby
promotes greater understanding. From
this function of free speech, it follows that the right to express oneself does
not depend upon whether society judges the communication to be true or false,
good or bad, socially useful or harmful.
All points of view, even a minority of one, are entitled to be heard.
(iii) Third, freedom of speech is a necessary
part of our system of democratic government.
Sovereignty resides in the people; in other words, the people are the
masters and the government is their servant.
If the people are to perform their role as sovereign and instruct
their government, they must have access to all information, ideas, and points
of view. This right of free speech is
crucial not only in determining policy but in checking the government in its
implementation of policy. The
implication of this position is that the government has no authority to
determine what may be said or heard by the citizens of the community.
(iv) Fourth, freedom of speech is vital to
the process of peaceful social change.
It allows ideas to be tested in advance before action is taken, it
legitimizes the decision reached, and it permits adaptation to new conditions
without the use of force. It does not
eliminate conflict in a society, but it does direct conflict into more
rational, less violent, channels. In
the words of Justice William J. Brennan in New York Times v. Sullivan
(1964), speech may often be “uninhibited, robust, and wide-open”.
3.5.3 It
would not be out of place to quote from the oft-quoted judgment of Brandies J.
in Whitney v. California, the following observation:
“… that the greatest menace to freedom is an inert people; that
public discussion is a political duty; and that this should be a fundamental
principle of the … government.”.
3.5.4 It must be recognized at the same time
that today the freedom of expression and in particular the freedom of
information is under a grave threat.
The “free market-place of ideas” – an expression used in several U.S.
Supreme Court judgments to denote freedom of speech and expression – is
analogous to the more general argument for a “free market economy”, as is
opined by Milton Friedman and Jane Friedman in their book “Free to Choose”. As
indeed pointed out by Jerome Barron (Access to Press – A new First Amendment
Right – 80 Harvard Law Review 1641-1967) “… if ever there were a self-operating
market place of ideas, it has long ceased to exist…. There is inequality in the power to communicate ideas just as
there is inequality in economic bargaining power; to recognize the latter and
deny the former is quixotic…. Changes in the communications industry have
destroyed the equilibrium in that market place. While it may have been still possible in 1925 to believe with
Justice Holmes that every idea is “acted on unless some other belief outweighs
it or some failure of energy stifle the movement at its birth”, it is
impossible to believe it now. Yet the Holmesian theory is not abandoned, even
though the advent of Radio and television has made even more evident that
philosophy’s unreality….” Another
jurist Herbert Marcuse similarly argues that “under the rule of monopolistic
media – themselves the mere instruments of economic and political power – a
mentality is created from which right and wrong, true and false are pre-defined
whenever they affect the vital interests of society” (Repressive Tolerance by
Herbert Marcuse).
3.5.5 How much more true all this sounds today
when the television and other means of mass communication have become
all-pervasive and all-encompassing.
What they represent passes for information and truth and our ideas and
views are imperceptibly formed by what we hear on television or read in
newspapers.
3.5.6 It is true that Press and media perform an
important and essential function in a democratic society and that
notwithstanding their ownership being in the hands of business tycoons and
notwithstanding their dependence on government-sponsored advertisements, they
are performing a highly valuable and useful function as guardian of the
citizens’ right to know and their right to impart their ideas and views to the
government and the public. As has been
rightly observed:
“The
functions that freedom of the press performs in a democratic society are, in
general, the same as those served by the system of freedom of expression as a
whole. Freedom of the press enhances the opportunity to achieve individual
fulfillment, advances knowledge and the search for understanding, is vital to
the process of self-government, and facilitates social change by the peaceful
interchange of ideas. More particularly
the press has been conceived as playing a special role in informing the public
and in monitoring the performance of government. Often referred to as the “fourth estate,” or the fourth branch of
government, an independent press is one of the principal institutions in our
society that possesses the resources and the capacity to confront the
government and other centers of established authority. This concept of a free press was forcefully
set forth by Justice Hugo L. Black in his opinion in New York Times Co. v
United States (1971) (The Pentagon Papers case): “In the first Amendment, the Founding
Fathers gave the free press the protection it must have to fulfill its
essential role in our democracy. The press was to serve the governed, not the
governors. The government’s power to censor the press was abolished so that the
press would remain forever free to censure the government. The press was protected so that it could
bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose
deception in government.”.
3.5.7 The Press is thus an important agent in
ensuring the citizens’ right to receive and impart information as a measure of
ensuring probity in governance.
3.5.8 Realising the importance of the freedom of
speech and expression including the freedom to receive and impart information,
some of the advanced countries have enacted Freedom of Information Acts. The object behind these enactments is to
ensure that the governmental activity is transparent, fair and open. Except in matters of defence, atomic energy
and matters concerning the security of the country, there is no room for
secrecy in the affairs of the government. Whether it is a matter of taking a
decision affecting the people or whether it is a transaction involving purchase
or sale of government property or whether the matter relates to entering into
contracts - in all these matters, the government should act in a transparent
manner which means that any and every citizen who wishes to obtain any
information with respect to any of those matters should be entitled to receive it.
In this connection, we may usefully refer to the Freedom of Information Act,
2000 enacted by the British Parliament on 30th November, 2000. The
main purpose of the Act is to implement the principles set out in the White
Paper insofar as it is appropriate to do so by primary legislation. Other matters will be dealt with in
secondary legislation, codes of practice or by administrative action. The Act provides a right of access to
recorded information held by public authorities, creates certain exemptions
from the duty to disclose information and establishes arrangements for
enforcement and appeal. The Act amends
the Data Protection Act, 1998 and the Public Records Act, 1958. Since the Act purports to implement the
principles set out in the White Paper which was issued in December 1997, it may
be appropriate to briefly refer to them.
In the White Paper entitled “Your Right to Know: the Government’s
Proposals for a Freedom of Information Act”, the following scheme of the Act
was indicated:
3.5.9 The new Act will provide for any
individual, company or other body to have a right of access to records or
information of any data held by a wide range of public bodies. Applicants need not state their purpose in
applying for information. The
authorities are bound to make certain information public as a matter of course.
3.5.10 Indeed, the authorities covered by the Act
are required to make certain information publicly available without request
(these include facts and analyses which the government considers important in
framing major policy proposals, explanatory material on dealing with the
public, operational information on costs, standards, targets and complaints
procedures of public servants) and further give reasons for administrative
decisions. There should be no
ministerial veto to prevent disclosures.
3.5.11 What is more, there is no exclusion in
favour of the Cabinet or Cabinet Committees from the purview of the Act. Access
will be allowed to documents and not merely to information. Of course, security
and intelligence services are excluded from the purview of the Act.
3.5.12
There is a similar exclusion – which has attracted a lot of criticism –
in favour of criminal and civil enforcement proceedings and the investigation
and prosecution functions of the police, prosecutors and “other bodies carrying
out law enforcement work such as the Department of Social Security or the
Immigration Service”, as well as the public sector employment records. There are certain other exemptions too.
3.5.13 In
view of the above scheme of the English Act, it may not be necessary to refer
to its provisions at any length.
3.5.14 The
Government of India too has recognized the importance of this right and has accordingly
introduced a Bill called the Freedom of Information Bill, 2000 (Bill No.98 of
2000) in Lok Sabha on 25th July, 2000. The Bill, as it stands, does ensure to a large extent the
freedom of information to citizens with respect to the functioning of the
government. It casts an obligation upon
public authorities to furnish such information wherever asked for. It would have been better if the said Bill
had also provided for the government making information public, without a
request therefor from anyone, concerning matters involving major policy
proposals and the major multilateral agreements proposed to be entered
into. This is for the reason that very
often the people who are really going to be affected by such policies and
agreements are not even aware of them.
The experience of WTO Agreements signed by the Government of India in
1994, without taking the Parliament or the States or the people into
confidence, and without a national debate on the pros and cons of the said
Agreements, is a telling example.
Purporting to exercise their power under article 73 read with article
253 and entry 14 of List I of the Seventh Schedule to the Constitution, the
Union Government has concluded several agreements covering not only the
subjects in Lists I and III of the said Schedule but also with respect to
subjects in List II, which are in the exclusive domain of the States – for
example, Agriculture and Public Health.
The negative effects of the said Agreements are becoming evident with
each passing day and are seriously eroding the viability of the domestic
industries (which were built up with huge public funds), agriculture and trade.
Be that as it may, the said Bill fills a great void though, it is true, several
improvements are possible in it. It is
understood that the said Bill has been referred to a Standing Committee. We are enclosing herewith a copy of the
recently enacted South African Freedom of Information Act (the promotion of
Access to Information Act, 2000) (Annexure) which covers both the public bodies
and private bodies. It can indeed serve
as a model enactment for any country committed to concept of freedom of
information. The necessity and
importance of an early enactment in terms of the said Bill - with some
improvements - cannot be over-emphasised.
It would be useful to notice the various provisions of the English Act
and the South African Act before finalizing the draft of the proposed Indian
legislation.
F.
Necessity for enacting a
Lok Pal Bill in addition to the Central Vigilance Commission Act
Institution of Lok Pal
3.6.1 Another measure for ensuring probity in
governance is the enactment of a Lok Pal Act and a Central Vigilance Commission
Act. It would be appropriate to deal
with the Lok Pal Act first.
3.6.2 In
their interim report on the “Problem of Redress of Citizens’ Grievances”
submitted in 1966, the Administrative Reforms Commission recommended inter
alia the setting up of the institution of Lok Pal. To give effect to this recommendation, a
Bill called the Lok Pal and Lokayukta Bill, 1968 was introduced in the fourth
Lok Sabha in 1968. It was referred to a
Joint Committee of the two Houses of Parliament and on the basis of its Report,
the Bill was passed by Lok Sabha in 1969.
But while the Bill was pending in the Rajya Sabha, the fourth Lok Sabha
was dissolved with the result that the Bill lapsed.
3.6.3 In 1971, the Bill passed by the previous
Lok Sabha was reintroduced in Lok Sabha under the same title but this Bill also
lapsed on the dissolution of the fifth Lok Sabha.
3.6.4 The Bills introduced in 1968 and 1971
covered complaints in respect of not only allegations of misconduct but also
grievances as to mal-administration.
Lok Pal was thought of as a single member body who could be described
roughly as a person who would combine in himself the functions of ombudsman as
known to the western countries such as Norway, Sweden, UK and the functions of
the Central Vigilance Commission as it was constituted under an administrative
order of the Central Government.
Complaints could be made under the said Bill against the union
ministers, union civil servants, union territory ministers and persons in the
service of local authorities and corporations, owned or controlled by the
Central Government. However, Members of Parliament and the State Chief
Ministers were not covered by the Bill. In short, these Bills were designed to
check abuse of power, corruption and other instances of mal-administration;
liberty was given to the aggrieved persons to approach specified authorities.
3.6.5 In
the year 1977, a fresh Bill called the Lok Pal Bill, 1977 was introduced in Lok
Sabha. It was again referred to a Joint Committee of both Houses of Parliament
which submitted its Report in July, 1978. While this Bill was under
consideration of the Lok Sabha, it was prorogued first and subsequently
dissolved. Accordingly, this Bill also
lapsed. It may be mentioned that the 1977 Bill did not take in grievances as to
mal-administration; it was confined to complaints as to misconduct or
corruption against specified categories of persons including Union Ministers,
Members of Parliament, State Chief Ministers and so on. This Bill brought
within its purview the Prime Minister and MLAs of Union Territories as well.
Civil servants were excluded from its purview.
The definition of ‘misconduct’ was widely worded to include instances of
abuse of power wherein a public man - if we can use that expression to denote
the persons brought within the purview of the Act - directly or indirectly, allows
his position to be taken advantage of by his relatives or associates. The Bill also provided that a public man
would be guilty of misconduct if he fails to act in accordance with norms of
integrity and conduct which ought to be followed by the class of public men to
which he belongs. Of course the Joint
Committee to which this Bill was referred had recommended that the said
requirement be omitted. Be that as it
may, this Bill also lapsed.
3.6.6 In
the year 1985, another Lok Pal Bill was introduced in Lok Sabha on the pattern
of the 1977 Bill. However the office
of the Prime Minister was excluded from its purview. The Lok Pal was to be a single member body and its jurisdiction
was confined to cases of corruption leaving out mal-administration and
grievances. Be that as it may, this
Bill also lapsed for the same reason as in the case of other such Bills.
3.6.7 In the year 1989, another Lok Pal Bill was
introduced. Under this, the Lok Pal
was to be a three-member body and the office of the Prime Minister was also
brought within its purview. There were
some changes in the matter of eligibility for appointment and removal which it
may not be necessary to mention here.
3.6.8 In
the year 1996, yet another Lok Pal Bill was introduced in the Lok Sabha on 13th
September, 1996. It was referred to the Department related Parliamentary
Standing Committee on Home Affairs for examination. The Standing Committee submitted its report to the Parliament on
9th May, 1997. But before
the government could finalise its thinking on the various recommendations of
the Committee, the Lok Sabha was dissolved on 4th December,
1997. Consequently, the Bill lapsed.
3.6.9
Another attempt at enacting the Lok Pal Act was made by the introduction
of a Lok Pal Bill in the Lok Sabha on 3rd August, 1998, being Bill
No. 90 of 1998. This Bill sought to
provide for setting up the office of Lok Pal with a chairperson and two members
with a fixed term. To ensure the
members of their independence, it is provided that they shall not be removed
from their office except by an order made by the President on the ground of
proved misbehaviour or incapacity after an inquiry made by a committee
consisting of the Chief Justice of India and two other judges of the Supreme
Court, next to the Chief Justice in seniority, in which inquiry the member has
been informed of the charges against him and given a reasonable opportunity of
being heard in respect of those charges. The chairman and members are to be
appointed by the President on the recommendation of the committee consisting of
the Vice President of India (chairman), Prime Minister, Speaker of Lok Sabha,
Minister of Home Affairs, Leader of the House to which the Prime Minister does
not belong, Leader of the Opposition in the Lok Sabha and Leader of the
Opposition in the Rajya Sabha. The
jurisdiction of the Lok Pal under this Bill is to inquire into allegations
constituting an offence punishable under the Prevention of Corruption Act, 1988. The Prime Minister, Union Ministers and
Members of Parliament are within its purview.
Clause 12 of the Bill provided that any person other than a public
servant may make a complaint under that legislation to the Lok Pal (the
expression ‘complaint’ is defined by sub-clause (c) to clause 2 to mean “a
complaint alleging that a public functionary has committed any offence
punishable under the Prevention of Corruption Act, 1988”. The expression ‘public functionary’ means
the Prime Minister, Union Ministers and Members of Parliament, both past and
present). If it becomes necessary in
the course of its inquiry, the Lok Pal is also empowered to inquire into any
act or conduct of any person other than a public functionary insofar as it is
necessary for an effective disposal of the matter within his jurisdiction.
Clause 13 provides for preliminary scrutiny of complaints by Lok Pal whereas
clause 14 provides for the procedure to be followed by Lok Pal in conducting
any inquiry. Clause 15 clothes the
Lok Pal with the power to summon any person or document from any person or
authority. The Lok Pal is also vested
with the powers of search and seizure by clause 16. Chapter IV of the Bill
which contains only one clause, namely, clause 18, creates an obligation on every
Member of Parliament to furnish a return of all assets owned by him and members
of his family and all liabilities incurred by him and the members of his
family, before the Lok Pal, within a period of 90 days from the date he enters
upon his office and continue to do so every year within 90 days of the
commencement of each financial year. The declaration has to be filed in the
prescribed form. The expression
‘family’ is defined to include the spouse and dependent children of such
member. This is certainly a
defect. It would be more appropriate if
the net is spread wider to include even major children and close relatives like
father-in-law, mother-in-law, brothers, brothers-in-law and close associates.
3.6.10
While examining the provisions of the Bill, we have come to believe that
while bringing the Prime Minister within the purview of the Lok Pal may be a
desirable step, it is necessary at the same time to regulate and circumscribe
that power. In our Constitutional
system, i.e., under the parliamentary form of government, the Prime Minister
occupies a unique position. He is the
kingpin of the entire governmental structure.
It is his image, his reputation and his personality that pervades the
entire government. The image of the government is very often identified with
the image of the Prime Minister. Because of the extraordinary power a Prime
Minister wields in a parliamentary system like ours, it is sometimes referred
to by jurists as ‘prime ministerial form of government’. A Prime Minister is normally the leader of
the majority party in the Lok Sabha or the leader of the coalition, if a
coalition forms the government. Because
of his very position and the power he wields, he attracts a good amount of
opposition, criticism, allegations and what not. If a Lok Pal were to take up each and every allegation or
accusation made against the Prime Minister by a political party or a group or a
person, it would hobble the Prime Minister in an effective discharge of his
functions. He can not afford to remain
under a cloud all the time nor can the nation afford a Prime Minister under a
cloud all the time. Probably for this
reason, in some of the earlier Bills, the Prime Minister was kept out of the
purview of the Lok Pal. But, as we have
said earlier, while it may be a desirable step to bring the Prime Minister
within the purview of Lok Pal, it should at the same time be provided that
before the Lok Pal undertakes any investigation, inquiry or any other
proceeding against the Prime Minister, he should first obtain the permission in
writing of the President therefor. It means that the Lok Pal shall place all
the relevant material before the President and must satisfy the President with
the facts and circumstances which call for an investigation and inquiry into
those allegations and charges. The requirement
of obtaining President’s permission would be in the nature of a check upon a
routine or mechanical initiation of inquiry by Lok Pal against the Prime
Minister. One has to keep in mind in
this behalf the distinction between legitimacy and legality. Legitimacy is a political concept. The Prime Minister normally represents the
will of the majority of the people, being the leader of the majority of elected representatives. The legitimacy to rule
belongs to him and his Council of Ministers.
As against this, Lok Pal, a mere appointee, cannot be so empowered as to
erode the image, reputation and personality of the Prime Minister by seeking to
investigate or inquire into each and every allegation. The requirements of President’s prior
permission or sanction as it may be called would ensure that an investigation
or inquiry into an allegation against the Prime Minister is taken up only where
it is backed by substantial and acceptable evidence. The nation cannot afford to have a Prime Minister under a cloud,
unless there are real and substantial grounds to believe that he may have been
guilty of some serious misconduct.
There is also a belief that the Prime Minister of a country should not
be subjected to Lok Pal as this would severely impair his independence and
freedom of judgement. The Prime Minister should have a free hand and absolute
independence which is most necessary.
Even if a particular Prime Minister is inclined that he should be
subjected to Lok Pal, his readiness should not weigh with the Commission. There
is a need to reconcile national interest and public interest and keeping in
view how prime ministerial discretion is exercised, it would be a retrograde
step. Anyhow, a new Bill titled The Lok
Pal Bill, 2001 covering the Prime Minister also was introduced in Lok Sabha on
14th August, 2001.
3.6.11 In this connection, it would not be out of
place to refer to the institution of the Independent Counsel created by Title
VI of the Ethics in Government Act in USA.
The Independent Counsel Act provides for appointment of an “independent
counsel” to investigate and if appropriate prosecute certain high ranking
government officials for violations of federal criminal laws. The Act requires the Attorney General, if
he is satisfied on receipt of information that it is “sufficient to constitute
grounds to investigate whether any person (covered by the Act) may have
violated any federal criminal law”, to conduct a preliminary investigation of
the matter. When the Attorney General
has completed this investigation, or 90 days has elapsed, he is required to
report to a special court (the Special Division) created by the Act “for the
purpose of appointing independent counsels”.
If the Attorney General determines that “there are no reasonable grounds
to believe that further investigation is warranted”, he must notify the Special
Division of this result. In such a
case, “the Division of the court shall have no power to appoint an independent
counsel”. If the Attorney General
determines that there are “reasonable grounds to believe that further
investigation or prosecution is warranted,” then, he “shall apply to the
Division of the court for the appointment of an independent counsel”. The Attorney General’s application to the
court shall contain sufficient information to assist the court in selecting an
independent counsel and in defining that independent counsel’s prosecutorial
jurisdiction. Upon receiving such information, the Special Division “shall
appoint an appropriate independent counsel and shall define that independent
counsel’s prosecutorial jurisdiction”. The independent counsel’s jurisdiction
is very wide. He is vested with the
full power and independent authority to exercise all investigative and prosecutorial
functions and powers of the Department of Justice, the Attorney General and any
other officer or employee of the Department of Justice. He can conduct grand jury proceedings and
other investigations, he can participate in civil and criminal court
proceedings and litigation and is also empowered to file appeals against any
decision in any case in which he has participated in an official capacity. His powers include initiating and conducting
prosecutions in any court of competent jurisdiction, framing and signing
indictments, filing information and handling all aspects of any case in the
name of the United States. He is
entitled to call for assistance from any department or authority. Moreover, when a matter is referred to an
independent counsel under the Act, the Attorney General in the Justice
Department is required to suspend all investigations and proceedings with
respect to the said matter.
3.6.12 The validity of the Independent Counsel Act
was challenged in the federal courts. The matter ultimately reached the United States
Supreme Court. While a majority of
seven judges led by Rehnquist C.J. upheld the validity of the Act holding that
it does not curtail or infringe the powers of the President vested in him by
clause 2 of section 2 of Article II of the U.S. Constitution, Scalia J. dissented (another Judge Kennedy J. took no
part in the decision of the case) – Morrison v. Olson, 487 U.S. 654
(1988). Though the dissenting opinion
of Scalia J. was criticized at that time as highly conservative, the events
since then have proved him right. The manner in which an independent counsel
appointed to investigate the Whitewater affair allegedly implicating President
Bill Clinton and his wife was hijacked to take in unrelated issues is an
instructive instance. Not able to find
any substance against the President in the Whitewater issue, the Independent
Counsel picked upon a case of suicide by a member of the White House staff and
finding nothing therein shifted to Paula Jones’ affair. While investigating the Paula Jones’ affair,
the independent counsel, Kenneth Starr, stumbled upon the Monica Lewinsky
affair and everyone knows how the whole thing was blown up beyond all sensible
and reasonable proportions leading to the impeachment proceedings and trial of
President Clinton in Senate. The following observations of Scalia J. in the
aforementioned case are pertinent:
“What
every prosecutor is practically required to do is to select the cases for
prosecution and to select those in which the offense is the most flagrant, the
public harm the greatest, and the proof the most certain. If the prosecutor is obliged to choose his
case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor; that he
will pick people that he thinks he should get, rather than cases that need to
be prosecuted. With the law books
filled with a great assortment of crimes, a prosecutor stands a fair chance of
finding at least a technical violation of some act on the part of almost
everyone. In such a case, it is not a
question of discovering the commission of a crime and then looking for the man
who has committed it, it is a question of picking the man and then searching
the law books, or putting investigators to work, to pin some offense on him. It is in this realm – in which the
prosecutor picks some person whom he dislikes or desires to embarrass, or
selects some group of unpopular persons and then looks for an offense, that the
greatest danger of abuse or prosecuting power lies. It is here that law
enforcement becomes personal, and the real crime becomes that of being
unpopular with the predominant or governing group, being attached to the wrong
political views, or being personally obnoxious to or in the way of the
prosecutor himself….…. The
mini-Executive that is the independent counsel, however, operating in an area
where so little is law and so much is discretion, is intentionally cut off from
the unifying influence of the Justice Department, and from the perspective that
multiple responsibilities provide. What
would normally be regarded as a technical violation (there are no rules
defining such things), may in his or her small world assume the proportions of
an indictable offense. What would
normally be regarded as an investigation that has reached the level of pursuing
such picayune matters that it should be concluded, may to him or her be an
investigation that ought to go on for another year. How frightening it must be to have your own independent counsel
and staff appointed, with nothing else to do but to investigate you until
investigation is no longer worthwhile – with whether it is worthwhile not
depending upon what such judgments usually hinge on, competing
responsibilities. And to have that
counsel and staff decide, with no basis for comparison, whether what you have
done is bad enough, willful enough, and provable enough, to warrant an
indictment…….. The notion that every
violation of law should be prosecuted, including – indeed, especially – every
violation by those in high places, is an attractive one, and it would be risky
to argue in an election campaign that that is not an absolutely overriding
value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may
fall. The reality is, however, that it
is not an absolutely overriding value…..”.
3.6.13 It is in the context of all the above
circumstances, that we are inclined to suggest that there ought to be a proviso
to clause 12 of the Lok Pal Bill in the following terms:
“Provided that before taking up any
investigation or inquiry against the Prime Minister on the basis of any
complaint or information received, the Lok Pal shall obtain the prior
permission in writing of the President therefor.”
3.6.14 Coming back the Bill, it is difficult to
predict whether the present Bill succeed in becoming an Act or would it meet
the same fate as its predecessors. But
so far as it goes, the Bill is welcome though in certain respects it requires
to be strengthened. The Bill rightly
provides that a proceeding before the Lok Pal shall to be deemed to be a
judicial proceeding within the meaning of section 193 of Indian Penal Code
(clause 15(2)) and further that it is not necessary for the Lok Pal to maintain
secrecy or other restriction upon the disclosure of information as provided in
the Official Secrets Act, 1923 or any other provision of law. But the Bill does not say that the
conclusions arrived at by the Lok Pal shall be final and that if any public
functionary is found guilty he should resign from his office including his
membership of the Parliament/Legislature forthwith. Instead of doing that, section 17 merely speaks of the
conclusions of the Lok Pal being communicated to the competent authority. (The expression “competent authority” is
defined by sub-clause (b) in clause 2 of the Bill to mean (i) in the case of
Prime Minister, the House of People; (ii) in the case of a member of the
Council of Ministers other than Prime Minister, the Prime Minister and (iii) in
the case of a Member of Parliament other than a minister, Rajya Sabha or Lok
Sabha, as the case may be). Maybe, the
Constitution may have to be amended to provide for an effective Lok Pal, with
his own machinery of investigation.
Central Vigilance Commission
3.7.1 So far as the Central Vigilance Commission
(CVC) is concerned, it has a long antecedent history. Pursuant to the recommendations of the Santanam Committee
constituted by the Government of India to advise the government in respect of
matters pertaining to maintenance of integrity in administration, the CVC was established
in 1964. The jurisdiction of CVC extended to all public servants and employees
of central public sector undertakings, nationalized banks and autonomous
organizations vide the resolution dated February 11, 1964 of the
Government of India, Ministry of Home Affairs. It continued to function as such
but without much effect until the Supreme Court directed in Vineet Narain
v. Union of India (1997 (7) SCALE 656) [AIR 1998 SC 889], on 18th
December, 1997, to give a statutory shape to the CVC and to endow it with wider
powers including supervision over Central Bureau of Investigation (CBI) and the
Enforcement Directorate (ED). Indeed
the Supreme Court, while giving the said directions had relied upon the report
of the Independent Review Committee (IRC) comprising Shri B.G. Deshmukh, former
Cabinet Secretary, Shri N.N. Vohra, Principal Secretary to the PM and Shri S.V.
Giri, Central Vigilance Commissioner, which Committee was constituted under the
Government Order dated 8th September, 1997. The directions of the Supreme Court are
quite elaborate and they extend to the appointment, powers and functioning of
CVC, CBI and ED, all designed to insulate the said institutions from political
control and to invest them with good amount of independence coupled with
accountability. (Those interested in perusing the said directions may refer to
the aforementioned decision of the Supreme Court.) Pursuant to the said directions, the Central Government has
drafted a Bill, being Bill No. 137 of 1999, called the Central Vigilance
Commission Bill, 1999 and has introduced the same in Lok Sabha on 20th
December, 1999. It appears to be
still pending before the Parliament.
Meanwhile, the CVC is acting under the authority of the decision of the
Supreme Court referred to above. It is
imperative that the Parliament passes the said Bill as early as possible,
keeping in mind the directions contained in the decision of the Supreme Court
in Vineet Narain.
Civil Services Commission Board
3.8.1 An ancillary suggestion in this behalf that
can be implemented without much ado, but which may have extremely beneficial
results, is the constitution of a Civil Services Commission Board for
overseeing appointment and transfer to senior posts. The idea is to take away
the power of transfer from the political executive which, according to the
universally held opinion, has not only been abused but has also been used in
such a manner as to make the bureaucracy, including the IAS, plaint, toothless
and corrupt. Maybe a Constitutional amendment is called for to provide for the
composition of such a Board. The
composition of the Board need not be exclusively non-political. It can be
headed by the Prime Minister or the Home Minister and its jurisdiction restricted
to certain high-level posts in the bureaucracy.
Suggestions of Central Vigilance
Commission
3.9 Yet another ancillary idea floated by
Shri N. Vittal, Central Vigilance Commissioner is to make the corruption-free
governance, a fundamental right of the citizen. He has suggested that an article
be inserted in Part III declaring such a right of the citizens. At any rate,
Shri Vittal suggests, a provision to that effect must be included in Part IV
(the Directive Principles of State Policy). He is of the opinion that such a
provision would enable the Central and State Governments to legislate standards
of probity and the rules governing the delivery of services to consumers of
those services and in the matter of transfer of public employees. He is also of the opinion that insertion of
such a right will provide an avenue for the civil society to demand
transparency, fair procedures and decent behaviour on the part of the officials
as also to demand public involvement in all matters affecting the public.
Ethics in Government Act of the United States of
America
3.10 In this
context, it would not be out of place to refer to certain provisions of the
Ethics in Government Act enacted by the US Congress in 1978. Section 101 which carries the heading “persons
required to file” says that “(a) within 30 days of assuming the position of an
officer or employee described in sub-section (f), an individual shall file a
report containing the information described in section 102(b) unless the
individual has left another position described in sub-section (f) within 30
days prior to assuming such new position or has already filed a report under
this title with respect to nomination for the new position or as a candidate
for the position. Sub-section (f)
includes the President, the Vice President, each officer or employee in the
executive branch, all government servants, members of the congress, officers or
employees of the Congress, judicial officers and employees of the judiciary. Section 102 provides the matters which such
declaration should contain. It is a very lengthy section and it is not feasible
to extract the whole of it. Suffice it
to mention that the section provides for a full, true and complete disclosure
of all kinds of assets including mortgages, movable assets, benefits under
trusts and so on. Section 103
prescribes the time within which the report should be filed and the person
before whom they should be filed. Section
104 empowers the Attorney General to bring a civil action in an appropriate US
district court against any individual who knowingly and wilfully files a false
declaration. Section 105 provides for
custody of the declarations; it expressly provides that public shall have
access to such declarations. Any US
citizen is entitled to use the said reports for any lawful purpose. Section 106 provides for review and scrutiny
of these reports by specified authorities.
Section 108 declares that the Comptroller General shall have access to
financial disclosure reports filed under the Act for the purpose of effectively
discharging his statutory functions.
It is a matter for consideration whether it would be
advisable for the Parliament to enact a legislation similar to the said U.S.
Act.
G. Strengthening
of the Criminal Judicial System
3.11 This is one of the most important
requisites for ensuring probity in governance.
The criminal judicial system consists of the police/investigating
agency, the prosecuting agency, the advocates, witnesses and finally the
judiciary. Inasmuch as this topic is dealt with in another paper, the same is
not being dilated upon in this Consultation Paper.
QUESTIONNAIRE
ON
PROBITY
IN GOVERNANCE
1. What, according to you,
are the precise reasons for the increasing menace of corruption in India?
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2. Do you find that –
(a) the
laws are inadequate Yes
¸ No ¸
(b) the
laws are adequate, but their implementation
and enforcement are lagging behind Yes
¸ No ¸
3. What are your suggestions for amendments to –
(a) Indian
Penal Code
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(b) Prevention
of Corruption Act, 1988
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4. An essential requirement
of an efficient and effective system of governance and for socio-economic development
of the nation is probity in governance. Do you agree to this assertion?
Yes ¸ No ¸
5. Do you agree that the control on public administration is
fragile and the division of powers between the political, executive and
bureaucracy is ambiguous?
Yes ¸ No ¸
6. Do you agree that the
present process of the State withdrawing from various sectors will reduce the
chances of corruption?
Yes ¸ No ¸
7. According to
Scandinavian economist-sociologist Mr.Gunnyar Myrdal, India is a “soft society”
that is where there is no discipline and which has neither the political will
to enact the laws necessary for its progress and development nor has the
political will to implement them. Do you agree to the above view?
Yes ¸ No ¸
8. Though the Benami
Transactions (Prohibition) Act, 1988 was enacted as far back as 1988, the
Central Government has not yet framed any rules for the effective use of the
provisions of the Act. Do you agree
that by framing the requisite rules by the Central Government, the law will
become sufficiently effective? If not,
what are your specific suggestions for making the law effective in this regard?
Yes ¸ No ¸
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Suggestions: |
9. Unless
the fruits of corruption (that is the property acquired by corrupt means by
public servants and others) are taken away by a law of forfeiture of property.
it is difficult to effectively remove corruption. Do you subscribe to this
proposition?
Yes ¸ No ¸
10. Should the Benami
Transactions (Prohibitions) Act, 1988 be amended specifically empowering the
appropriate authority appointed under the said Act to forfeit the assets
illegally acquired by a public servant and held by him or any one else as Benami
and no compensation should be given to any body in such cases?
Yes ¸ No ¸
11. Similarly the law should
define appropriate authority in respect of property illegally acquired by
ministers and other persons in public life other than public servants. Do you
agree to this suggestion?
Yes ¸ No ¸
12. Should civil remedies against corruption
be provided?
Yes ¸ No ¸
13. Should the burden of
proof that a property is not held benami be placed on the holder of the
property?
Yes ¸ No ¸
14. Do you agree that the
competent authorities need to observe only the minimum requirements of
principles of Natural Justice in dealing with the forfeiture of Benami property
acquired by corrupt means?
Yes
¸ No ¸
15. In the matter of a
review petition relating to the case against Satish Sharma in the Supreme Court
of India, the court has held that a minister of the Government is a part of the
Government and therefore, the Government cannot be directed to pay damages to
itself. This decision gives rise to a situation which cry out for clarity.
Should it not, therefore, be necessary to coherently lay down the principles on
which damages could be levied upon the public servants for their acts of
misfeasance, malfeasance and nonfeasance for promotion of good governance?
Yes
¸ No ¸
16. Do you agree that with a
view to putting an end to all kinds of legal controversies and technicalities,
it is advisable to enact a law on the lines of Section 60 of the Andhra Pradesh
Co-operative Societies Act, 1964, which reads as under, with an additional
provision for exemplary damages in case of abuse of power;-
“60.
Surcharge. - (1) Where in the course of an audit under section 50 or any inquiry
under section 51 or an inspection under section 52 or section 53, or the
winding up of a society, it appears that any person who is or was entrusted
with the organization, affairs or management of the society or any past or
present officer or servant of the society has misappropriated or fraudulently
retained any money or other property or has been guilty of breach of trust in
relation to the society or has caused any deficiency in the assets of the
society by breach of trust or willful negligence or has made any payment
contrary to the provisions of this Act, the rules or the bye-laws, the
Registrar himself, or any person specially authorized by him in this behalf, of
his own motion or on the application of the committee, liquidator or any
creditor or contributory may, inquire into the context of such person or
officer or servant and make an order requiring him to repay or restore the
money or property or any part thereof with interest at such rate as the
Registrar or the person authorized as aforesaid thinks just or to contribute to
such sums to the assets of the society by way of compensation in respect of the
misappropriation, misapplication of the funds, fraudulent retainer, breach of
trust or wilful negligence as the Registrar or the person authorized as
aforesaid thinks just:
Provided that no order shall be passed against any person referred to in
sub-section unless the person concerned has been given an opportunity of making
his representation.
(2)
This section shall apply notwithstanding that such person or officer or servant
may have incurred criminal liability by his act.”.
Yes
¸ No ¸
17. Do you agree that the
principles of section 60 of the Andhra Pradesh Co-operative Societies Act, 1964
should be extended to the governing machinery at the Union and State levels
where the elected members form the Government
and run and manage the affairs of the state with the assistance of a
permanent bureaucracy?
Yes ¸ No ¸
18. Should it not be
provided that in case malafide action by public servants, they should be made
liable to make good the loss suffered by the state?
Yes ¸ No ¸
19. In Satish Sharma and
Sheila Kaul’s cases, it is found that they are not mere cases of monitory loss
to the state; they are much more grievous. They are cases of misuse of official
positions, an act outside the authority. In such cases, the paper suggests, it
may not be possible to prove actual corruption nor is it necessary to prove it.
Hence, a law providing imposition of exemplary damages should be made. Such a
law would have the merit of obviating several questions like whether the
Government can be asked to pay damages to itself, whether the power to grant or
allot some benefit can be called property, whether such action of the public servant
“which term includes members of Parliament/legislators and ministers
constitutes a tortious action, whether damages/exemplary damages can be awarded
for such acts and if so, on what basis and to what extent; whether public
office is a trust and questions of locus standi and so on. Do you agree
with these suggestions? Please give your detailed views.
Yes ¸ No ¸
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Suggestions: |
20. The violation of foreign
exchange laws and laws relating to export and import necessarily involve violation
of tax laws as well. Indeed, it is a
well known fact that over the last few decades, smuggling, foreign exchange
violation, tax evasion, drugs trafficking and crimes have all got mixed up. In
these circumstances, it is felt that only a person who acquired properties can
explain how he has come to acquire those properties and that it is not possible
for the competent authority to do so. Hence it is suggested that the burden of
proof that the property specified in the show cause notice are not illegally
acquired properties should be placed upon the person concerned.
(a)
Do you agree to the above suggestion?
Yes ¸ No ¸
(b)
If you do not agree, please specify your
suggestions in this regard.
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Suggestions |
21. The Paper observes that unless there is a
law providing for prompt forfeiture of illegally acquired assets, such assets
would be spirited away beyond our shores to safe havens and numbered accounts.
For this purpose, the Law Commission of India, vide its 166th
Report, recommended to the Central Government for enactment of a legislation
for forfeiture of illegally acquired properties by corrupt public servants.
This would clothe the state with an effective means of checking corruption.
What are your specific suggestions in this regard?
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Suggestions |
22. The
Paper suggests that as a step to fight against corruption and
mal-administration leading to probity and accountability in governance, the Government
should undertake a legislation of a Public Interest Disclosure Act which is
popularly called in the western countries as a Whistle-blower’s Act encouraging
persons to sound an alarm of serious malpractices, corruption or fraudulent
activity in Government or public sector organization. The informants should be
protected from any form of discrimination, punishment and humiliation for being
disloyal to their employers or colleagues on this account. However, there must
be a provision for punishing persons who lay false information actuated by or
out of malice and vindictiveness. What, according to you, should be the broad
framework of such a legislation in India?
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Suggestions |
23. The Press has been conceived
as playing a special role in informing the public and in monitoring the
performance of Government. It is often termed as the “Fourth Estate”. The Press
is, thus, an important agent in ensuring the citizen’s right to receive and
impart information as a measure of probity in governance. How far, according to
you, the Press in India discharge their duties in this regard?
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Suggestions |
24. The Freedom of
Information Bill, 2000 which was introduced in Lok Sabha on 25th July,
2000 has not yet been enacted. It may be seen that the Promotion of Access to
Information Act, 2000 enacted by the Republic of South Africa, as annexed to
the Consultation Paper is more comprehensive in nature than the Indian Bill.
Would you like to suggest modifications of the Freedom of Information Bill,
2000?
Yes ¸ No ¸
If
your answer is in the affirmative, please give detailed suggestions in this
regard.
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Suggestions |
24. Do you agree to the suggestion
that except for matters relating to defence, atomic energy and matters
concerning the security of the country, there is no room for secrecy in the
affairs of the Government?
Yes ¸ No ¸
25. Do you agree that the lack
of freedom of information in Governmental activities especially relating to
major multilateral agreements and policy proposals is a major cause which
hinders national debate and leads to negative effects on the people?
Yes ¸ No ¸
26. The Lok Pal legislation
is pending before Parliament. Should the investigations/ inquiry in respect of
allegations against the Prime Minister by Lok Pal be with the previous sanction
of the President so as to ensure that such investigation or inquiry would be backed
up by real, substantial and acceptable evidence and not on petty political
rivalry?
Yes ¸ No ¸
27. Do you agree to the
suggestion to amend the Constitution of India for making the institution of Lok
Pal as a Constitutional institution to make that office more effective and
dignified?
Yes ¸ No ¸
28. Do you consider it
appropriate to amend the Constitution of India for constituting a Civil
Services Commission Board for overseeing appointments and transfer of officers
to senior posts so as to avoid frequent political interference in such matters?
Yes ¸ No ¸
29. (a)
Do you support the idea of making corruption free governance as a Fundamental
Right of the citizens (by amending Part III of the Constitution); or
Yes ¸ No ¸
(b) In case your answer to (a) is in
the negative, do you support the idea of making a provision in Part IV
(Directive Principles of State Policy) of the Constitution of India directing
the state to endeavour to make a corruption-free governance paving way for the
society to demand transparency, fair procedure and decent behaviour on the part
of the officials and to demand public involvement in all matters affecting the
public.
Yes ¸ No ¸
30. The Ethics
in Government Act by the U.S. Congress in 1978 provided for filing of financial
disclosure statements by certain public authorities before assuming their
office and that these statements are open for and use in evidence against them
by the public. Do you agree with the suggestion that a similar legislation
should be undertaken by Parliament requiring all persons aspiring for and
holding public offices and their family members should make declaration of
their assets?
Yes ¸ No ¸
31. What
are your suggestions for strengthening the criminal judicial system in the
country for ensuring probity in governance?
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Suggestions: |
32. Do
you have any further suggestions to make on the issues on probity in governance
discussed in the Consultation Paper? Please give details.
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Suggestions: |
ANNEXURE
PROMOTION OF ACCESS TO INFORMATION ACT
REPUBLIC OF SOUTH
AFRICA
ACT
To give effect to the
constitutional right of access to any information held by the State and any
information that is held by another person and that is required for the exercise
or protection of any rights; and to provide for matters connected therewith.
PREAMBLE
RECOGNISING THAT—
* the system of government in South Africa before 27 April
1994, amongst others, resulted in a secretive and unresponsive culture in public
and private bodies which often led to an abuse of power and human rights
violations;
* section 8 of the Constitution provides for the horizontal application of the rights in the Bill of Rights to juristic persons to the extent required by the nature of the rights and the nature of those juristic persons;
*
section 32(1)(a) of the Constitution provides that everyone has
the right of access to any information held by the State;
*
section 32(1)(b) of the Constitution provides for the horizontal
application of the right of access to information held by another person to
everyone when that information is required for the exercise or protection of
any rights;
* and national legislation must be enacted to give effect to this right in section 32 of the Constitution;
AND BEARING IN MIND THAT—
* the State must respect, protect, promote and fulfil, at
least, all the rights in the Bill of Rights which is the cornerstone of
democracy in South Africa;
* the right of access to any information held by a public or private body may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution;
* reasonable legislative measures may, in terms of section 32(2) of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfil the right of access to information;
AND IN ORDER TO—
* foster a culture of transparency and accountability in
public and private bodies by giving effect to the right of access to
information;
* actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights,
BE IT THEREFORE ENACTED by the
Parliament of the Republic of South Africa, as follows:—