2nd ARC Report - Ethics in Governance

The 2nd ARC Report on Ethics in Governance delves into the imperative of ethical standards, offering recommendations to foster integrity and accountability within the framework of public administration.

Table of Contents

ETHICS AND ETHICAL BEHAVIOR

Ethics comprises a set of standards that society establishes to guide behavior, choices, and actions. While these standards alone don’t guarantee ethical behavior, a robust culture of integrity is essential. The essence of ethical behavior lies not merely in articulating standards but in their practical adoption, enforcement through sanctions for violations, establishing competent disciplinary bodies to investigate allegations promptly, and fostering a culture of integrity.

CORRUPTION AND ETHICS

Corruption serves as a significant indicator of ethical failure, with the term itself originating from the Latin word ‘corruptus,’ meaning ‘to break or destroy.’ Conversely, ‘ethics’ is derived from the Greek term ‘ethikos,’ signifying ‘arising from habit.’ Unfortunately, corruption has become habitual for many, ranging from high-profile cases to everyday instances affecting common people.
Current anti-corruption interventions are perceived as ineffective, leading to widespread public cynicism. These efforts are often viewed as mere posturing without a genuine intent to hold the corrupt accountable, potentially weaponized for partisan political motives. The entrenched nature of corruption fosters a belief in its inevitability, undermining faith in efforts to combat it and contributing to growing cynicism, which poses a threat to democratic systems.

Approaches in Dealing with Corruption and Abuse of Office

Two somewhat contradictory approaches exist in addressing corruption and abuse of office. The first emphasizes values and character, with many expressing concern over the decline in values leading to increased corruption.
The underlying assumption is that the restoration of values is a prerequisite for any significant improvement in human behavior.
The second perspective contends that the majority of individuals are inherently decent and socially conscious. However, a small fraction may deviate from societal norms, prioritizing personal gain over the public good. In this view, the organized government’s role is to identify and penalize such deviant behavior. Consistent rewards for good behavior and consequences for bad behavior are seen as powerful motivators for the majority to adhere to ethical conduct.

The Role of Values and Institutions in Promoting Ethical Conduct of Public Servants

In the practical realm, both values and institutions play crucial roles. While values act as guiding principles, they require institutional support for durability and as examples to others. Values, when unsupported by institutions, tend to weaken. Institutions provide the structure that preserves and gives substance to values. This principle underlies statecraft, laws, and institutions. For public servants with authority over decisions impacting lives and resource allocation, incentives and institutions are especially critical to curbing the temptation for personal gain at the public’s expense.

Factors in India that Aggravate Corruption and Abuse of Office

Corruption and abuse of office in Indian society are exacerbated by three primary factors. First, the colonial legacy has left a culture of unchecked authority and arbitrary exercise of power, particularly in a society that reveres power. Second, there exists a significant power imbalance, with around 90% of the population in the unorganized sector facing job insecurity and subsistence wages. Meanwhile, about 70% of organized workers, enjoying job security and regular wages, are employed by the state or public sector undertakings. This group, even the lowest-ranking public servants, enjoys better economic conditions than a considerable portion of the country’s population. The third factor is the educational background of public servants, who may be considered ‘educated’ in a predominantly illiterate and semi-literate society. Economic advantages and job security associated with government employment further contribute to the challenges in promoting ethical conduct.
The unequal distribution of power, a vestige of colonial authority, diminishes societal pressure for ethical behavior and facilitates corruption. Additionally, early post-independence policies unintentionally placed citizens at the State’s mercy through overregulation, strict economic restrictions, excessive state control, near-monopolies, and an economy of scarcity, fostering an environment conducive to corruption.
Moreover, state subsidies and beneficiary-oriented programs, coupled with an imbalanced power dynamic, transformed public servants into patrons and masters, reducing citizens to dependents. This heightened corruption opportunities and diminished citizens’ ability to resist extortionate demands. Over the past six decades, both in India and globally, lessons have been learned on combating corruption.
It is widely acknowledged that monopolies and discretion escalate corruption, whereas competition and transparency diminish it. India’s economic liberalization showcased a significant drop in corruption as competition increased and choices expanded, particularly in sectors like telecommunications, steel, cement, sugar, and two-wheelers. The introduction of technology and transparency has also played a crucial role in reducing corruption, as witnessed in services such as railway reservations and issuing driving licenses.
Over-centralization exacerbates corruption, as the distance between authority and accountability grows. India’s concentration of power both horizontally and vertically, with limited decision-makers, weakens the citizenry and fosters corruption. Strengthening democracy requires empowering citizens, and key instruments of accountability include the right to information, effective citizens’ charters, incentives for proactive citizen engagement, stakeholder involvement in public service delivery, public consultation in decision-making, and social auditing.
Enforcement of the rule of law and deterrent punishment against corruption is crucial for building an ethically sound society.

THE INTEGRITY OF A STATE HINGES ON THE QUALITY OF ITS POLITICS

The pivotal factor influencing the integrity of a society and the prevalence of corruption is undeniably the quality of its politics. If the political landscape attracts and rewards individuals characterized by integrity, competence, and a genuine commitment to the public good, society remains secure, and integrity prevails. However, if honesty becomes incompatible with political survival, and the realm of public service lures undesirable, corrupt elements driven by personal gain, abuse of authority and corruption become the norm. In such a political environment, initiatives with positive intentions fail to yield significant benefits. While competition and decentralization can mitigate corruption in specific sectors, if the political arena fosters an insatiable appetite for illegitimate gains, corruption finds alternative avenues. Consequently, even as corruption diminishes in certain areas, it relocates to other, sometimes more perilous, sectors where competition is impractical, and the state holds a natural monopoly. Liberalization, therefore, necessitates concurrent political and governance reforms to reshape the incentives in politics and public office, fostering integrity and ethical conduct.

DISTINGUISHING BETWEEN COERCIVE AND COLLUSIVE CORRUPTION

Corruption is a global issue of grave concern, with all forms being condemnable, requiring the promotion of a culture of zero tolerance towards corruption. However, certain forms of corruption demand closer scrutiny due to their heightened malevolence. In a majority of bribery cases, citizens become involuntary victims of extortion, forced to pay a bribe to access a service rightfully entitled to them. Experience has shown that resisting corruption often results in a vicious cycle, leading citizens to incur more significant losses than succumbing to it, including delays, harassment, lost opportunities, wasted time and wages, uncertainty, and, in some instances, the potential danger of life or limb.
This coercive corruption portrays citizens as unwilling victims. On the other hand, collusive corruption involves a partnership between the bribe giver and corrupt public servants, with both parties benefiting at a considerable cost to society. This form of corruption manifests in various scenarios, such as the awarding of contracts for public works, procurement of goods and services, recruitment of employees, evasion of taxes, and the execution of substandard projects
Collusive breaches of regulations, the adulteration of foods and drugs, obstruction of justice, and the concealment or manipulation of evidence during investigations are all examples of perilous forms of corruption. As the economy moves away from state controls, extortionate corruption diminishes, and collusive corruption tends to rise. It is imperative to develop robust and effective measures to address this escalating threat of collusive corruption, which undermines the very foundations of our democracy and poses a danger to society. To combat collusive corruption, there needs to be a shift from the negative connotations of ‘business ethics’ to emphasizing ‘ethics in business.’

THE CRIMINALIZATION OF POLITICS

The criminalization of politics refers to the involvement of criminals in electoral processes, representing the vulnerable aspect of our political system. The rise of crime and violence in society, leading to the emergence of ‘mafia’ in various sectors, can be attributed to several root causes, including blatant violations of laws, poor service quality coupled with corruption, protection of lawbreakers based on political, group, class, communal, or caste affiliations, partisan interference in crime investigations, inadequate prosecution of cases, prolonged delays and high costs in the judicial process, mass withdrawal of cases, indiscriminate grant of parole, and large, illegal expenditures in elections.
Despite the flaws in the functioning of a democracy, it possesses a self-correcting mechanism. Key reforms include enhancing the accuracy of electoral rolls through efforts by the Election Commission, such as making voter registration more accessible, involving post offices in revision, and initiating the computerization of electoral rolls. The disclosure of candidates’ antecedents, including any convictions or pending criminal cases, has been mandated by the Supreme Court. The enforcement of the Code of Conduct for elections, empowered by Article 324 of the Constitution, has become binding, with the Election Commission issuing directives on campaign timings, prohibiting festoons/cutouts, requiring daily expenditure statements, appointing numerous observers, and ordering repolls in specific polling booths. Measures have also been taken to ensure free and fearless polling, including improved policing arrangements and the increased use of Central Forces, along with the extension of election periods beyond a single day.
Measures such as border sealing have been implemented by the state. Electronic voting machines were introduced nationwide during the Parliamentary Elections of 2004. It has been decided that the death of an independent candidate will not result in the cancellation of an election.
A reduction in the size of the Council of Ministers has been pursued as a reform. The first Administrative Reforms Commission recommended restricting the size to 10% over three decades ago. The Constitution (Ninety-first Amendment) Act, 2003 now limits the size of the Council of Ministers to 15% of the strength of the Lower House in Parliament/State legislature. This amendment aims to moderate the number of Ministers to some extent.

POLITICAL FUNDING REFORMS

In India, political parties have traditionally relied on private donations for funding. Globally, three main patterns of state funding for political parties and elections exist. The minimalist pattern partially subsidizes elections through grants or state-rendered services, with candidates being accountable for expenditure reporting during the election period. Examples include the UK, Ireland, Australia, New Zealand, and Canada. The maximalist pattern involves public funding not only for elections but also for other party activities, as seen in Sweden and Germany. A variety of mixed patterns, such as partial reimbursement for public funding on a matching grant basis, exist in countries like France, the Netherlands, and South Korea. While the Representation of the People Act sets limits on election expenditure, company donations to political parties were banned in 1969 but later allowed by a 1985 amendment to the Companies Act. Committees like the Dinesh Goswami Committee recommended limited support in kind for election-related expenses but proposed a ban on company donations. The Indrajit Gupta Committee suggested partial state funding mainly in kind. However, the National Committee for Review of the Constitution expressed the view that state funding of elections in India should be deferred until a better regulatory mechanism for political parties is developed.

DEFECTION IN INDIAN POLITICAL LIFE

Defection is viewed as a manipulation of the political system for personal gain and has been a significant source of political corruption. Anti-defection legislation was enacted to address this issue, fixing a specific number above.
The permissibility of defection within a group created opportunities for ethical transgressions and opportunism in politics. Allowing defection in any form or context is undoubtedly a violation of political ethics. In 2003, the 91st Amendment to the Constitution tightened the anti-defection provisions of the Tenth Schedule, enacted in 1985. This amendment mandates that individuals switching political sides, whether individually or in groups, must resign their legislative membership. Defectors are now required to seek re-election and are prohibited from continuing in office by engineering a ‘split’ of one-third of members or under the guise of a ‘continuing split of a party.’ The amendment also prevents legislators from holding an office of profit post-defection. The Election Commission recommended that the President or Governor, based on the advice of the Election Commission, should decide the disqualification of members due to defection. This legal amendment appears necessary given the prolonged delays observed in recent cases of obvious defection, as highlighted by the Second Administrative Reforms Commission (ARC).

Advocating for the Right to Disqualify a Candidate with Serious Criminal Charges from Contesting Elections

There is a suggestion that disclosing past acquittals related to serious criminal charges would be valuable. With the delays in the criminal justice system, disqualification after conviction may be an insufficient safeguard. Some candidates face severe criminal charges like murder, abduction, rape, and dacoity unrelated to political agitations. In such cases, a fair balance between a candidate’s right to contest and the community’s right to good representation is necessary. Generally, it would be unwise and undemocratic to disqualify candidates arbitrarily. The people, as the ultimate sovereigns through the ballot box, must decide election outcomes. However, in cases where individuals face grave criminal charges framed by a trial court after a preliminary inquiry, preventing them from representing the people in legislatures until cleared of charges seems fair and prudent. Care must be taken to ensure that no political vendetta is involved in such charges and that individuals facing charges related to political agitations are not victimized. The Second ARC recommends amending Section 8 of the Representation of the People Act, 1951, to disqualify individuals facing charges related to grave and heinous offenses and corruption, with modifications suggested by the Election Commission.

Establishing an Ethical Framework for Coalition Politics in India

Coalition politics has become a prominent feature in the Indian polity in recent years, driven by the diversity and complexity of the Indian electorate and the vibrancy of our democracy. The ethical framework for coalition politics in India is essential for effective governance.
The necessity for coalition governments often arises due to the challenge of a single party securing a clear majority in our multiparty system. To legitimize a coalition, partners must agree on broad-based programs to ensure the fulfillment of socio-economic development goals. This understanding should be transformed into a common minimum program, either announced before the election or prior to the formation of the coalition government.
However, the ethics of coalition government are strained when partners change alliances mid-stream, forming new coalitions driven by opportunism and a thirst for power, disregarding the agreed-upon common minimum program for socio-economic development goals. The electorate’s explicit or implicit endorsement of the common program prior to or after the election is undermined, and the power bestowed by the people is misused. To preserve the people’s will, it is crucial to establish an ethical framework preventing opportunistic reshuffling of coalitions between elections. The Second Administrative Reforms Commission recommended amending the Constitution to mandate that if parties in a coalition, bound by a common program explicitly or implicitly agreed upon before or after elections, realign midstream with external parties, the members must seek a fresh mandate from the electorate.

ROLE OF THE ELECTION COMMISSION IN OUR DEMOCRACY AND ISSUES

The current process of appointing the Chief Election Commissioner and other Election Commissioners is outlined in Article 324 of the Constitution, stating that they are appointed by the President based on the Prime Minister’s advice. During the Constituent Assembly debates, suggestions were made that the Chief Election Commissioner’s appointment should enjoy the confidence of all parties, requiring confirmation by a 2/3 majority in both Houses. This early consideration reflected the belief that the appointment procedure should transcend partisan considerations.
In recent times, statutory bodies like the National Human Rights Commission (NHRC) and the Central Vigilance Commission (CVC) appoint their Chairpersons and Members based on broad-based Committees’ recommendations. For instance, the Committee for appointing the Chief Vigilance Commissioner includes the Prime Minister, the Home Minister, and the Leader of the Opposition in the Lok Sabha. The NHRC Committee, chaired by the Prime Minister, comprises members like the Speaker of the Lok Sabha, the Home Minister, the Leader of the Opposition in the Lok Sabha, the Leader of the Opposition in the Rajya Sabha, and the Deputy Chairman of the Rajya Sabha. The Second Administrative Reforms Commission proposed a collegium led by the Prime Minister, including the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Law Minister, and the Deputy Chairman.
The collegium consisting of the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Law Minister, and the Deputy Chairman of the Rajya Sabha should provide recommendations to the President for appointing the Chief Election Commissioner and the Election Commissioners.
The urgency for a distinct judicial framework to expedite the resolution of election petitions in India is evident. Presently, these petitions are filed in the High Court, and under the Representation of the People Act, they are meant to be resolved within six months. However, in practice, these petitions often linger for years, rendering them ineffective as the full term of the House expires. Various high-level committees and eminent individuals have suggested the need for a separate judicial setup. The National Commission to Review the Working of the Constitution (NCRWC) proposed the formation of special election benches within the High Courts dedicated solely to the disposal of election petitions. Recognizing the significant caseload in the High Courts, the Second Administrative Reforms Commission recommended the establishment of Special Election Tribunals at the regional level under Article 323B of the Constitution. These tribunals, comprising a High Court Judge and a senior civil servant with at least five years of election-related experience, should aim to resolve all election petitions and disputes within six months. Their decisions should be considered final, with appeal jurisdiction restricted to the Supreme Court. The term of these Tribunals should typically be one year, with the possibility of extension for up to six months in exceptional circumstances.

ETHICS IN PUBLIC LIFE

Ethics in public life is rooted in the concepts of responsibility and accountability. In a democracy, every public officeholder is ultimately answerable to the people, and this accountability is upheld through a system of laws and rules enacted by elected representatives. Ethics serves as the foundation for the formulation of these laws and rules, reflecting the moral ideas and shared vision of what is considered good and just within society. In a democracy, where authority is derived from the people, all public functionaries are regarded as trustees of the people. As the role of government expands, public officials exert considerable influence over the lives of citizens, and the trustee relationship mandates that authority be wielded in the best interest of the people or the ‘public interest.’

Ethics in public life encompasses various dimensions, ranging from the expression of high moral values to the specifics of actions for which a public functionary can be legally held accountable. A comprehensive framework for ethical behavior should include the following elements:

Codifying ethical norms and practices.
Disclosing personal interests to prevent conflicts between public interest and personal gain.
Establishing a mechanism for enforcing relevant codes.
Providing norms for qualifying and disqualifying a public functionary from office.

The Nolan Committee, also known as the Committee on Standards in Public Life in the United Kingdom, presented seven fundamental principles of public life that have universal applicability in democracies:

Selflessness: Public officeholders should make decisions solely in the public interest, without seeking financial or material benefits for themselves, their families, or friends.
Integrity: Public officeholders should avoid any financial or other obligations to external individuals or organizations that could influence their official duties.
Objectivity: When carrying out public business, including appointments, contract awards, or recommendations for rewards, public officeholders should base their decisions on merit.
Accountability: Public officeholders are accountable for their decisions and actions to the public, subjecting themselves to appropriate scrutiny.
Openness: Public officeholders should strive to be as transparent as possible about their decisions and actions, providing reasons for their decisions and restricting information only when the wider public interest demands.
Honesty: Public officeholders have a duty to declare any private interests related to their public duties and to address conflicts in a manner that protects the public interest.
Leadership: Public officeholders should promote and support these principles through leadership and example.

Need for a code of ethics for ministers

While a Code of Conduct serves as a starting point for ensuring good conduct by Ministers, it is not comprehensive in its coverage and resembles more of a list. An ethical framework for public functionaries is crucial, encompassing ethical norms, conflict resolution mechanisms, and guidelines for transparency and accountability in decision-making.
While the Code of Conduct outlines prohibitions, it falls short of constituting a comprehensive Code of Ethics for Ministers. Therefore, in addition to the Code of Conduct, the establishment of a Code of Ethics becomes imperative to offer guidance on how Ministers can uphold the highest standards of constitutional and ethical conduct in their duties. This Code should be grounded in the overarching duty of Ministers to comply with the law, uphold the administration of justice, and safeguard the integrity of public life. It should also delineate the principles governing the relationship between Ministers and civil servants. The 2nd Administrative Reforms Commission (ARC), which examined codes of conduct in other countries, suggests that a Code of Ethics and a Code of Conduct for Ministers should encompass the following:

Ministers must uphold the highest ethical standards.
Ministers must adhere to the principle of collective responsibility.
Ministers have a duty to Parliament to be accountable for the policies, decisions, and actions of their departments and agencies.
Ministers must prevent conflicts between their public duties and private interests.
Ministers in the Lok Sabha must separate their roles as Minister and constituency members.
Ministers must refrain from using government resources for party or political purposes and take responsibility for their decisions.
Ministers must maintain the political impartiality of the Civil Service.
Ministers must comply with the requirements laid down by the two Houses of Parliament.
Ministers must recognize that the misuse of official position or information violates the trust placed in them as public functionaries.
Ministers must ensure the prudent use of public funds.
Ministers must function as instruments of good governance, providing services for the public’s betterment and fostering socio-economic development.
Ministers must act objectively, impartially, honestly, equitably, diligently, and in a fair and just manner.

The responsibility for ensuring compliance with the Code of Conduct rests with the Prime Minister for Union Ministers, the Prime Minister and the Union Home Minister for Chief Ministers, and the Chief Minister for Ministers of the State Government. The 2nd ARC recommends the establishment of dedicated units in the offices of the Prime Minister and Chief Ministers to monitor compliance with the Code of Conduct. An annual report detailing violations should be submitted to the respective legislature for consideration. Additionally, the Commission suggests making the Code of Conduct for Ministers, suitably expanded, and accessible to the public, aligning with the practice in some other countries.

THE OFFICE OF PROFIT LAW PROMOTES ETHICAL CONDUCT

Within the framework of an ideal democratic structure, the legislature holds a paramount position among the four pillars. It embodies the will of the people, with the executive being accountable to it. This underscores the need for ethical standards not only for the executive but equally emphatically for legislators. To ensure the ethical conduct of the legislature, amendments to the office of profit can be introduced based on the following principles:
All positions in purely advisory bodies, where a legislator’s experience, insights, and expertise contribute to governmental policy, should not be considered offices of profit, regardless of associated remuneration and perks.
Positions involving executive decision-making and control of public funds, including roles on the governing boards of public undertakings and statutory/non-statutory authorities directly influencing policy, managing institutions, or authorizing/approving expenditure, should be deemed offices of profit, and legislators should not hold such positions.
If a serving Minister, by virtue of office, is a member or head of certain organizations where close coordination with the Council of Ministers is vital for the government’s day-to-day functioning, it should not be considered an office of profit.
Discretionary fund usage, the power to determine specific projects and schemes, or select beneficiaries, authorizing expenditure, shall constitute the discharge of executive functions, leading to disqualification under Articles 102 and 191, irrespective of the notification of a new office. Consequently, schemes like MPLADS and MLALADS should be abolished.
Members of Parliament and Members of State Legislatures should be declared as ‘Public Authorities’ under the Right to Information Act, except when they are discharging legislative functions.

THE VALUES EXPECTED FROM CIVIL SERVANTS

Inculcating values that prioritize the greater societal good and fostering empathy for those requiring state interventions are not easily acquired skills post-joining civil services. Such attitudes necessitate nurturing over individual lifetimes and through successive generations. The right ethos takes time to evolve, and it must be acknowledged that enforcing norms of ‘right conduct’ cannot be achieved through rigid, mindless enforcement of laws and rules alone. Striking the right balance is crucial.
Within civil services, formal, enforceable codes, such as the Central Civil Services (Conduct) Rules – 1964 and analogous rules applicable to members of the All India Services or employees of various State Governments, outline norms of expected behavior. These Conduct Rules contain general principles and are complemented by inchoate conventions of propriety and acceptable behavior. Non-observance of such practices and conventions attracts social disapproval and stigma.

The term ‘conduct unbecoming of a government servant’ typically focuses on enumerating specific activities considered undesirable for government servants. While India lacks a prescribed Code of Ethics for civil servants, other countries have implemented such codes. Several generic expectations can be outlined for civil servants, including:

Allegiance to the ideals enshrined in the Preamble to the Constitution.
Apolitical functioning.
Prioritizing good governance for the betterment of the people as the primary goal of the civil service.
Duty to act objectively and impartially.
Accountability and transparency in decision-making.
Maintenance of the highest ethical standards.
Merit-based criteria in the selection of civil servants, considering the cultural, ethnic, and other diversities of the nation.
Ensuring economy and avoidance of wastage in expenditure.
Provision of a healthy and congenial work environment.
Encouraging communication, consultation, and cooperation in performing functions, with the participation of personnel at all levels in management.
To further specify duties and responsibilities, it is proposed to establish a Public Service Code and a Public Service Management Code. Violations of the Code would lead to punishments similar to the existing major and minor penalties, administered by the heads of institutions/organizations. The creation of a ‘Public Service Authority’ is also envisioned to oversee Code implementation, uphold the indicated values, and provide advice on matters related to values and the Code.

NATIONAL JUDICIAL COMMISSION TO CHECK DEVIANT BEHAVIOUR OF THE JUDGES

The independence of the judiciary is intrinsically tied to judicial ethics, crucial for maintaining public confidence in the rule of law. Any conduct by a judge that reflects a lack of integrity and dignity undermines citizens’ trust in the judiciary. Judges should uphold impeccable conduct at all times. The accountability of judges and a mechanism for addressing deviant behavior are vital aspects. Apart from impeachment under Articles 124(4) and 217(1), there is currently no mechanism to address inappropriate behavior or misdemeanors of judges.
While judicial conventions and norms were initially deemed sufficient, the impeachment provisions have proven impractical. Initiating impeachment proceedings is challenging and involves five difficult stages. A minimum of one hundred Lok Sabha members or fifty Rajya Sabha members must present a notice at the first stage. The Speaker or Chairman must admit the motion in the second stage; otherwise, the matter concludes. If a committee is appointed for an inquiry in the third stage, it presents a report to the Speaker or Chairman in the fourth stage. The final stage involves a vote in both Houses of Parliament, requiring a special majority for removal. Due to these complexities, establishing a National Judicial Commission is proposed to effectively address deviant behavior of judges and enhance accountability.
The fifth and final stage is reached when both Houses of Parliament proceed to act according to Section 6(3) of the Judges (Inquiry) Act. The inadequacy of the existing mechanism was affirmed in the K Veeraswami Case in 1991 and the futile impeachment proceedings in the case of V Ramaswami, even after adverse findings of the Judges’ Committee under the Judges Inquiry Act of 1968.
Therefore, it is suggested that Article 124 of the Constitution should be amended to introduce the National Judicial Council, and a corresponding change should be made to Article 217. Given the Council’s authority to oversee and discipline judges, further modifications to Article 217 (Clause 4) are necessary. The National Judicial Council should be empowered to establish the Code of Conduct for judges, encompassing the subordinate judiciary. It should be entrusted with the oversight of judges, empowered to investigate alleged misconduct, impose minor penalties, and recommend the removal of a judge if necessary. The President, based on the NJC’s recommendations, should be granted the authority to remove a Supreme Court or High Court Judge. A Judge of the Supreme Court should be designated as the Judicial Values Commissioner, responsible for enforcing the code of conduct. A similar arrangement should be implemented in the High Court.

Some Arguments on the Constitutional Protection to Civil Servants

Civil servants in India benefit from unique protection through specific provisions in Part XIV of the Constitution, which authorize the regulation of their conditions of service. Article 311, subject to its provisos or exceptions, outlines a procedure aimed at ensuring the security of tenure and safeguarding against arbitrary dismissal, removal, or reduction in rank. These provisions are enforceable in a court of law, and any infringement of Article 311 renders disciplinary authority orders ab initio void. Both Articles 310 and 311 apply to all government servants.

Arguments in Favor of Retaining Article 311

Proponents argue that the safeguards under Article 311 are focused, and the framers of the Constitution recognized the rare situations in which even minimal safeguards would be unnecessary. The requirement for an opportunity to be heard is considered a fundamental principle of natural justice. Even if Article 311 were to be repealed, the need to provide an opportunity to be heard would remain. The stipulation that only the appointing authority or any other authority superior to it can impose the punishment of dismissal or removal seems reasonable, given the hierarchical structure of the government. Different levels of authority are designated for various categories of employees based on responsibilities, and higher responsibility corresponds to a higher position in the hierarchy. Additionally, if Article 310 stands without the procedural.
Disciplinary inquiries, rather than Article 311 itself, are responsible for conducting investigations and even facilitating the removal of errant government servants, without causing unnecessary delays.

Arguments in Favor of Repealing Article 311

It can be argued that if judicial decisions do not eliminate the need to take action against delinquent officials, why retain the Article with its potential to inadvertently protect the corrupt through unintended interpretations? In certain cases, the Supreme Court has not consistently taken a ‘pro-government’ stance, having struck down actions of the disciplinary authority in favor of the government. Acknowledging the increase in corruption and inefficiency in the government, major reforms are deemed necessary. While the government must act as a model employer, individual rights, especially those of corrupt and inefficient public servants, should not override the greater public good. Providing a reasonable opportunity for a government official against potentially arbitrary or vindictive action is essential, but this protection should be reasonable, not excessive. The criteria for assessing the legal protection that employees receive should be based on reasonableness. The protection of the security of tenure or permanency in civil service must not lead to situations where delayed action becomes a common reason for emboldening errant officials to act against the public interest. It has been established that, for proper compliance with the requirement of ‘reasonable opportunity’ as envisaged in Article 311(2), a government servant facing potential action should first be given an opportunity to deny the charges. If, following an inquiry, the charges are proven, and it is proposed to impose penalties such as dismissal, removal, or reduction in rank, the penalty may be imposed based on the findings of the inquiry, without the need for further opportunity for representation on the penalty.
The Second ARC recommended that the rights of a civil servant under the Constitution should be subordinate to the overall requirement of public interest and the contractual right of the State. The argument is that the rights of corrupt civil servants should not be deemed more important than ensuring an honest, efficient, and corruption-free administration. Ultimately, the public servant, as an agent of the State, cannot be superior to the State, and it is their fundamental duty to serve the State with integrity, devotion, honesty, impartiality, objectivity, transparency, and accountability. Hence, Article 311 need not continue to be a part of the Constitution. Instead, appropriate and comprehensive legislation under Article 309 could be framed to cover all aspects of recruitment and service, including dismissal, removal, or reduction in rank.

PRIME MINISTER AND THE JURISDICTION OF RASHTRIYA LOKAYUKTA

While the Prime Minister’s office was initially conceived as the first among equals, it has evolved into the leader of the executive branch over time. The Cabinet assumes collective responsibility once decisions are made, conducting policy debates within the Council of Ministers away from public scrutiny. Ministers are generally not permitted to express their reservations or differences of opinion in public. The Prime Minister plays a crucial role in leading and coordinating among Ministers in policy framing, decision-making, and policy execution.
Unchallenged authority and leadership are vital to maintaining cohesion and a sense of purpose in the government, ensuring the Constitutional scheme functions as intended. The Prime Minister is accountable to Parliament, and the government’s viability depends on its survival. If the Prime Minister’s conduct is subject to formal scrutiny by extra-Parliamentary authorities, it could jeopardize the government’s survival and Parliament’s supremacy. Although theoretically, constituents in our governmental model elect each legislature member, elections have increasingly become plebiscitary, often focusing on the Prime Minister’s personality, vision, and leadership. Consequently, the electoral contest centers around the acceptability of leaders, transforming constituency contests into a broader evaluation of whom people trust or seek as a governmental leader. Given this political reality, subjecting the Prime Minister’s office to prolonged public scrutiny by unelected functionaries would be imprudent. Ultimately, Parliament remains the most trustworthy forum to uphold integrity in the Prime Minister’s office.

The Decentralization of Powers, Growing Corruption, and Capture of Power by Local Political Elites

The 73rd and 74th amendments to the Constitution have solidified the decentralization of powers and functions to the third tier of the government hierarchy, aiming to democratize governance, bring it closer to the people, and enhance local administration accountability. However, concerns arise that decentralization without proper safeguards may lead to increased corruption if suitable accountability mechanisms, readily available at the Union Government and state government levels, are not simultaneously established. This situation creates a higher potential for corruption. A concerning trend is the growing corruption and power capture by local political elites with questionable integrity.
The 2nd ARC suggests establishing a system of Local Bodies Ombudsman to address corruption complaints against local bodies, including elected members and officials. These Ombudsmen could be constituted for a group of districts and should be empowered to conduct inquiries.
Concerning allegations of corruption against public functionaries in local bodies, establishing Local Bodies Ombudsmen with the authority to take action against elected members found guilty of misconduct is crucial. Amendments to the State Panchayat Raj Acts and Municipalities Acts are necessary to define the details. The Lokayukta of the state should hold overall superintendence over the Local Bodies Ombudsmen and be granted revisionary powers.
In light of the expanded Constitutional role for decentralized local governments, a separate vigilance oversight agency is recommended to investigate corruption and maladministration allegations against elected executives, members, and personnel of the three tiers of local bodies. Appointing Ombudsmen under the respective Panchayat Raj/Urban Local Bodies Acts in all States/UTs for connected districts is proposed by the 2nd ARC.

THE ROLE OF CITIZENS’ GROUPS TO ROOT OUT CORRUPTION

To combat corruption effectively, citizens’ groups can play a pivotal role through various measures:

Inviting civil societies to oversee government programs.
Establishing and disseminating service standards.
Establishing credible complaint mechanisms.
Assessing public confidence in anti-corruption institutions, judiciary, and law enforcement, and designing programs to improve trust levels.
Enforcing access to information.
Educating society on corruption events and instilling a moral commitment to integrity.
Using public hearings to audit government activities, where audiences gather to hear details of public work schemes, and residents provide their perceptions.
Initiating government or private sector-sponsored public education and awareness campaigns through various media channels.
Holding integrity workshops and public hearings at national and local levels periodically to discuss problems and suggest changes involving all participants.
Surveying and assessing public service delivery periodically.
Surveying corruption perceptions in general or specific sectors of government functioning.
Incorporating corruption as a subject in the education curriculum.
Setting up websites on corruption containing information, facilitating dialogue, and feedback from citizens, and involving former public servants in lobbying against corruption.

CITIZENS’ CHARTER AND THE ADMINISTRATION

The Citizens’ Charter should contain specific provisions and set out obligations for public services, specifying the time within which the department is obliged to provide a service or respond to a query or complaint. To make these charters effective tools for holding public servants accountable, the 2nd ARC emphasizes the need for comprehensive implementation.
The Citizens’ Charter should clearly define the remedy, penalty, or compensation in case of a default in meeting the standards outlined. It is preferable to have achievable promises rather than impractical lofty declarations. Involving citizens in assessing and maintaining ethics in major government offices and institutions with significant public contacts can be done at the state, district, and sub-district levels. The assessment may rely on citizens’ perceptions who have interacted with such offices, facilitated by professional agencies. Implementing a mechanism in government offices to maintain a database of all visitors would allow these individuals to provide feedback, forming the basis for a public office rating.
Actively pursuing a policy of incentivizing citizens’ participation and implementing a reward system for reporting corruption cases can bring such instances to light. Taking prompt action on citizens’ complaints not only addresses grievances but also motivates others to report their concerns. School awareness programs, ideally in high schools, can effectively bring about attitudinal changes by educating students about citizens’ roles in a democracy, civil society’s function, the harmful effects of corruption, principles of collective assertion in the fight against corruption, and providing exposure to the functioning of public institutions.

A HOLISTIC APPROACH TO COMBATING CORRUPTION

A holistic approach to combating corruption necessitates a balanced combination of punitive and preventive measures. Punitive measures act as a deterrent, while preventive measures reduce corruption opportunities by enhancing transparency, and accountability, reducing discretion, and rationalizing procedures. However, current initiatives are insufficient given the scale of corruption. The lack of transparency and weak accountability mechanisms in government operations create fertile ground for corruption. Bureaucratic complexity and procedures make it challenging for ordinary citizens to navigate the system, emphasizing the need for large-scale reforms in both systems and procedures.
In a monopolistic setting where the government provides most public services in India, there is a likelihood of arbitrariness, complacency, and corruption. Introducing an element of competition in the provision of public services becomes a useful tool to curb corruption. The telecommunications sector serves as a successful example, demonstrating that introducing competition can mitigate corruption. The Indian Telegraph Act of 1885, which designated the Department of Telecommunication as the exclusive policy maker, service provider, and licensor in telecommunications, contributed to a high incidence of corruption.
Due to policy reforms introducing competition, private players have significantly entered the national long-distance and cellular service sectors. This separation of policy-making from service provision has led to a notable decrease in service costs and widespread acknowledgment of a significant reduction in corrupt practices. Breaking the government’s monopoly in various service sectors and fostering healthy competition can play a pivotal role in minimizing corruption. Dismantling monopolies and introducing competition must be accompanied by a robust regulatory mechanism to ensure adherence to prescribed standards, safeguarding public interest. Each Ministry/Department, State Governments, and local bodies should promptly identify areas with existing functional monopolies and develop a time-bound roadmap for introducing competition, coupled with a regulatory framework to prevent any compromise on public interest.
Restructuring some Centrally Sponsored schemes to incentivize states to promote competition in service delivery can be considered. New national policies addressing large public interfaces should consistently incorporate provisions for fostering competition.

SIMPLIFYING TRANSACTIONS AND ADMINISTRATION

The connection between corruption and complex work methods is evident. Ordinary citizens often face unnecessary hurdles when conducting transactions with the government, leading to potential bribery to avoid harassment. Complex hierarchies not only complicate work processes but also diffuse responsibility. Practices like territorial distribution of work contribute to overcrowding, encouraging citizens to pay “speed money” or enlist touts and middlemen to expedite processes. The use of manuals to define methodologies has diminished, but properly deployed and regularly updated documents can demystify administrative procedures and promote accountability, especially in the era of Information Technology and Right to Information. These documents serve as valuable resources for simplifying transactions, and providing clarity to literate service users. Instead of addressing abuse of authority by adding more administrative layers, which often result in further delays and corruption, it is crucial to seek effective solutions.
Addressing the root cause of the issue is imperative. Administrative reforms must prioritize the simplification of methods, with overarching principles including the adoption of a ‘single window’ approach, reduction of hierarchical tiers, and the establishment of time limits for disposal.
A comprehensive review and simplification of existing Departmental Manuals and Codes are necessary, with the Head of the Department taking the responsibility to regularly update and make them available online and in hard copies for purchase. Manuals should be written precisely, avoiding ambiguous phrases such as ‘left to the discretion of,’ ‘as far as possible,’ or ‘suitable decision may be taken.’ All rules and regulations governing permissions, licenses, etc., should follow this approach.
To incentivize simplification and streamlining of procedures, a system of rewards and incentives can be introduced in each government organization. The principle of ‘positive silence’ may be generally applied, acknowledging that it may not be suitable for all cases. For instances where permissions/licenses are required, a time limit for processing should be established, after which, if not granted, permission should be deemed as given. However, rules should stipulate that officials responsible for delays must face consequences in each such case.

Practice Questions

What are ethics and what is the crux of ethical behavior?
What is the relationship between corruption and ethics? Why are anti-corruption interventions perceived as ineffectual?
What are the approaches in dealing with corruption and abuse of office?
What is the role of values and institutions in promoting ethical conduct of public servants?
What are the factors in India that aggravate corruption and abuse of office?
Name some instruments of accountability that curb corruption, promote integrity and quality of decision-making.
How is the quality of politics of a state a determinant of integrity?
Do you think that citizens are victims of coercive corruption today? What could be potential dangers a citizen could face by resisting corruption? How is coercive corruption different from collusive corruption?
What is the criminalization of politics? What are the causes of the criminalization of politics? Suggest some of the measures to check the same.
Discuss some of the reforms that can be undertaken in political funding with special emphasis on state funding for elections.
“Defection has long been a malaise of Indian political life”. Comment.
Do you think that it is right to disqualify a candidate with grave criminal charges to contest the election?
Do you think there is a need to lay down an ethical framework for coalition politics in India?
“Given the far-reaching importance and critical role of the Election Commission in the working of our democracy, it would certainly be appropriate is constituted for selection of the Chief Election Commissioner and the Election Commissioners”. Discuss.
Do you think that there is a need for a separate judicial setup to expedite the disposal of election petitions?
Examine the role of ethics in public life? What should be the core elements of an ethical framework governing public life?
What are the ethical standards for holders of public office as per the Nolan Committee?
Government of India has prescribed a Code of Conduct that is applicable to Ministers of both the Union and State Governments but it is neither comprehensive in its coverage and is just a list of prohibitions”. In the light of this statement, examine the need for a code of ethics for ministers.
To maintain ethics in Legislature the law related to the office of profit should be amended to define office of profit based on certain principles that can promote ethical conduct.” Discuss.
“There is a set of enforceable norms for civil servants in India but there is no set of values expected from a civil servant”. In your opinion, what are the values expected from civil servants so that they develop empathy while serving society?
“Other than impeachment under Articles 124(4) and 217(1), there is no mechanism to proceed against any inappropriate behavior or misdemeanor of judges”. Explain how National Judicial Commission can help in checking deviant behavior of the judges requirement of public interest and the contractual right of the State.” Analyze the statement.
“The rights of a civil servant under the Constitution should be subordinate to the overall servants? Give arguments in favor of retaining and against retaining the constitutional protection to civil servants.
Why is it important to keep the Prime Minister outside the jurisdiction of Rashtriya Lokayukta?
“The 73rd and the 74th amendments to the Constitution have established decentralization of powers and functions, but the creation of in the absence of suitable accountability mechanisms a trend visible is the growing corruption and capture of power by local political elites with questionable integrity.” Examine.
Suggest some measures that the government can take to create an environment where the citizens’ groups can effectively participate to root out corruption.
Citizens Charters make administration both accountable and citizen-friendly.” How can the citizen charters be made more effective tools of accountability?
“A holistic approach for combating corruption would require an optimum mix of punitive and preventive measures.” Examine how promoting competition and de-monopolization accompanied by a ‘regulation mechanism’ can ensure performance so that public interest is protected.
“One of the maladies of administration in India is the multiplicity of layers in every decision-making process.” Suggest how simplifying transactions can help mitigate the malady.

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2nd ARC Report – Ethics in Governance