Indian Legislation and Role of Judiciary for Controlling Corruption in India

INTRODUCTION

We inherited patrimony of corruption from the rulers of ancient India who expected the gifts in the form of ―Nazarana‖ from its citizens. In those days the important function of the employers was just to extract money from the common people to enrich the treasury of the rulers. And also nepotism was the important factor to appoint a person in key positions. Most often, Prime Minister‘s son succeeded his father, a governor‘s son as the next governor, a village headman‘s son as the next headman. Thus, nepotism as an evil was an alien concept in those days and the vocabulary had no proper word for it. So the issue of corruption is not peculiar to our country alone and it is a universal problem and has engaged the attention of the people even in the past also. But since there is a saddest failure on our part in controlling corruption, there is an inordinate increase and spread of corruption in all spheres of public life. At the same time it cannot be said that some countries are corruption free. Marginal dishonesty does not permit any State to be impeccable and hundred percent purity. The pervasiveness of corruption throughout the lower courts is closely connected to another problem. In a judicial system like India‘s, where higher court judges are selected from the ranks of lower court judges and lawyers, there is always a possibility of corrupt judges making it to higher courts but we are helpless in such condition because it is something unavoidable unless and until we all together take initiative at grass root level to weed out such evil. Consequently, in India, corruption has become a social phenomenon. There is hardly any area of activity that has remained wholly free from the impact of corruption. In fact, corruption has now been institutionalized and has become a commonly accepted way of life. As early as in September 1934, Mahatma Gandhi Ji, in his letter to Sardar Vallabhbhai Patel conveyed his decision to severe all official and physical connections with the Congress including the original membership, gave the reason that it was the menace of corruption ―that has crept into the organization‖ which impelled him to do so. Perhaps at that time the stream of corruption was quite narrow and small, but even that disturbed the

But the pledge taken by the former Home Minister Sri Gulzariv Lal Nanda to root out corruption within two years or else to retire from politics is an indirect admission that corruption and nepotism have assumed alarming proportions. Now, of course, that ―stream‖ has assumed threatening width and proportions and has almost flooded every nook and corner of the country, doing incalculable harm and destruction and rampant corruption has seeped into every step of the government structure, and what is more depressing is that the woes of the common man to get ordinary and routine things done in normal ways, and without loss of much time, have remained un-remedied, and his sufferings will go on unabated. The roots of corruption are in the hearts of many persons of all the classes in the society. The thirst for wealth and power has polluted the soul of people. Frustration and desires have corrupted their minds and blurred their vision. It is becoming obvious that corruption was no longer a question merely of individual moral turpitude. The breeding ground of corruption is the society of upper classes and from them it seeps into lower circles of ordinary citizens like rainwater from the sky above entering subterranean layers of the earth through pores in its surface. After independence, various factors came into existence, which breed corruption. The adoption of the welfare state resulted not only in rapid multiplication of the functions of the State, but also the assumptions of even new and unfamiliar duties. The activity of the government in the economic sphere extended. Regulations, controls, licenses and permits were introduced and they provided new opportunities for corruption. The quest for political power at different levels worsened the malady. Corruption is the final product in the process of administration and proceeded by mal-administration. From time to time, the Central and State Governments launched action against corruption but the efforts were not effective or even sustained. Weakness in the methods employed fostered doubts whether the government has any genuine concern with a clean and impartial administration. There was yet another notion in prevalence that our governors or rulers attempt to fire the corruption but not the perpetrators of corruption, as in most of the notorious cases the perpetrators are found to be rulers or governors only. ―Spare the rod and save the child‖ principle, probably, is applied to such ―honourable offenders‖. For the last several years there has been growing indication that corruption has stormed all aspects of our public life. Corruption is present in both political and administrative wings of all the countries in the world. But, it has assumed a frightening proportion in the recent years in India. From top to bottom cutting principal agents of proliferation of corruption are politicians who need vast sums of money to fight elections, dictators who regard the public exchequer as a storehouse of their private assets, bureaucrats who wield limitless power over ordinary citizens because the latter‘s needs are their permanent hostages and the business community that is ever busy in the odious exercise of counting and accumulating currency notes together with allies and co-sharers of the national wealth. In India the people are helpless, bound and compelled to elect corrupt politicians to rule the country. Very recently, we have seen the involvement of many political leaders of all the political parties in corrupt practices. Ultimately the common man has become a scapegoat in the present political system. Political corruption affects the society as a whole. People elect the representatives and choose political parties with the expectation that they rule to protect and safeguard the interest of the society. By electing the government people give an opportunity to get an access to the public resources and authority to take decisions which impact the lives of the people. After being given a privileged position of ruling to them i.e. politicians, acting out of greed they cause immense damage to the interest of the society ignoring the fact that they are also part of the society. Since people have lost faith in the politicians and the existing system, the judiciary should take the initiative and take the necessary steps to curb the menace of corruption. Unfortunately, it has also infected the judicial wing of the nation. Even though the corruption has spread to the judiciary still the people of India are reposing faith in the courts for unknown reasons. A strong uncertainty (ambivalence) clouds the public image of the Indian Judiciary. However, it reflects the uncertain state of India‘s democracy on a superficial level. Recent literature indicates that such a state of uncertainty has increased. On the other hand the role played by the Supreme Court and the High Court‘s applying the principle of judicial review and judicial activism is a good sign of hope to set shortcomings right. Awareness among the public which is the sole reason to insist on human rights and right to transparency and good governance and a right to free from corruption made the Supreme Court of India to get transformed into Supreme Court of Indians. The Supreme Court is very clear in this respect and declared by its action that howsoever high an individual may be, but the Law is above an individual. Stapenhust and Langseth observed that ―in a corrupt environment, resources may be directed towards non-productive areas - the police, the armed forces and other organs of social control as the elite move to protect themselves, their position and their weakening of market institutions, as rent seeking, rather than investment, becomes the major objective of policy makers‖. Some observers have also argued that, corruption can have positive effects under certain circumstances, by giving firms and individuals a means of avoiding burdensome regulations and ineffective legal systems. But this argument ignores the enormous discretion that many politicians and bureaucrats have (particularly in corrupt societies) over the creation and interpretation of counterproductive regulations. Instead of corruption being the ―grease‖ that lubricates the ―squeaky wheels‖ of a rigid administration, it fuels the growth of excessive and discretionary regulations. The argument that bribery can enhance efficiency by cutting down on the time needed to process permits is also questionable. This argument could not be substantiated by credible evidence and more over a Global Competitiveness Survey conducted in 1997 by World Economic Forum belied the aforesaid assumption and found that enterprises reporting a greater incidence of bribery also tend to spend a greater share of management time with bureaucrats and public officials negotiating licenses, permits, signatures, and taxes, and the cost of capital for firms tends to be higher where bribery is more prevalent. Indian economy becomes 6th largest economy in the world panned outing the reduction in red tape and bureaucracy in India because of economic liberalization. Though the growth has been uneven in both the social and the economical groups which resulted in poverty. Uneven distribution of wealth gives rise to endemic corruption. In India, corruption is treated as social phenomena. No area of activity is free from corruption and many people have accepted it as a way of life. Soul and heart of people are polluted from the thirst for wealth and power, their vision has become corrupted from frustration and desire which result as the root cause of corruption. Presently, all the countries are the victim of corruption which prevails in there both political and administrative wings. During recent years in India, it has assumed a frightening proportion of corruption from top to bottom, centre to local every office or organization of government has become corrupted. In the present political system, the common man has become a scapegoat. Since people have lost their faith in the existing system they have their last option which is judiciary as it acts as an independent body. To curb the menace of corruption the judiciary must take initiative and necessary steps. Application of Judicial Review and Judicial Activism by the Supreme Court and the High Court‘s is a good gesture of hope to set derelictions. The only reason to affirm on human rights, right to transparency, good governance and a right to free from corruption transform the Supreme Court of India into Supreme Court of Indians. The Supreme Court has stated that howsoever high an

To combat corruption, the plethora of laws has been incorporated which include both pre and post-constitutional laws, centre and state laws these are:

The main criminal code of India is the Indian Penal Code, covers all substantive aspect of criminal code. Criminal conspiracy1means when there is an agreement between two or more person to do an illegal act or to do legal act with illegal means. It constitutes when there is a joint evil intent to commit a crime. Section 120 D of the code provides for punishment for the attempt and states that anyone guilty for an attempt to commit a crime under this code is punishable for imprisonment for life or with imprisonment for a specified term. A person is said to be guilty of Criminal misappropriation when such person dishonestly misappropriates or convert any moveable property into his use, then that person is liable for punishment of with imprisonment of a term which may extend to 2 years or with fine or both. Criminal breach of trust constitutes when a person dishonestly misappropriates and converts the property which was entrusted to him by violating any law. Such person shall be punishable with imprisonment of for a term which may extend to three years, or with fine, or with both. Cheating is an offence under Section 417 of IPC when any person dishonestly or fraudulently deceive any person to deliver any property or to give consent to retain any property or deceive any person to do or omit to do any ac which will result in harming that person mind, reputation and property.

The first special legislation in India against corruption was enacted in 1947 in the year of independence. But many provisions of that Act were overlapping with the provisions of Indian Penal Code,1860. Therefore, in 1988 the prevention of corruption Act was enacted with the object to amending the existing anti-corruption laws. It outstretches the definition of the public officer mentioned in IPC and also with such definition it also includes cooperative society‘s office-bearer who receives financial aid from the government, employees working in universities, banks and public service commission. Six months of imprisonment to the public officer who takes gratification in respect of his official act other than legal remuneration. Imprisonment for six months minimum and maximum imprisonment of five years or fine, if a public servant without paying for valuable

1 Section 120, Indian Penal Code 1960

or public servant before a sanction is necessary to be obtained from central or state government. In M. Karunanidhi Vs. Union of India2, it was held by the Supreme Court that a Minister, Prime Minister and Chief Minister, is decided by a public servant in terms of clause (12) of Section 21 Indian Penal Code, 1860 itself, which coincides with Section 2 (c) (i) of the Prevention of Corruption Act, 1988. In Habibulla Khan Vs State of Orissa3, the court held that section 21 of IPC does not cover M.L.A in the definition but M.L.A comes under the purview of section 2 of Prevention of Corruption Act, 1988. Social, political and economic is considered as a goal of justice laid down in the preamble. The principle of social justice is one of the main concepts on which our preamble is based on. To promote social justice, the judiciary can promote it while delivering their judgment. In Bandhu Mukti Morcha vs. Union of India4] it was held by the Supreme Court that based on strict legal principle only the court proceeding shall be decided. It shall not be influenced by emotional appeal. The court must not trespass into the area which is reserved for the executive and legislative and executes its judicial function within its jurisdiction. In many cases, the Supreme Court had declared that judiciary is independent and it is considered to be one of the basic features of the constitution. Though our constitution promotes independent judiciary but nowhere is it defined that what constitutes independence of the judiciary. According to scholars independence of judiciary means when judge discharge its function in an unbiased manner free from all the external factors.

As per the Indian Constitution, India is a union of states, crime comes under the purview of state list in which only the state has the right to legislate. Therefore, the State agencies are under obligation and it‘s their responsibility to investigate and prosecute the crimes, including corruption cases, which occurs within the territorial jurisdiction of the State. Apart from States, there are certain territories, known as Union Territories, which are directly administered by the Government of India if there is any corruption case in such territory the Government of India has set up the Central Bureau of Investigation. There are certain agencies established to probe corruption cases in India which are outlined below:

2 1979 Crl.L.J.773: AIR 1979 SC. 898 3 1993 Crl. L.J. 3604 4 1984 (1) SCC 161

Corruption Bureau of States is established to investigate corruption cases within the states. These police agencies are responsible only to investigate, prevent and detect corruption cases and not to discharge other duties. After investigating the crime they launch a report for prosecution in a court of law.

Lokayukta, the office of ombudsman was set up in many states with the sole aim to inquire or probe complaints against ministers and public servants involved in corruption.

CENTRAL BUREAU OF INVESTIGATION

To investigate cases especially corruption cases in union territory CBI was established by the government of India. Under the Indian Constitution, the High Courts of various States and the Supreme Court of the country have powers to entrust the investigation of any crime to the CBI for investigation.

In 2014 and 2012 a public notice was declared from the side of Supreme Court that political governance and executive administration conspiracy acted in 2G Spectrum case, Coalgate scam. In Coalgate scam5 supreme court ordered the mine owners that within 6 months they have to wind up their business and vacant the land, 214 licenses of 218 mines were cancelled on the ground that license was illegal and arbitrary and also for their bids transparent process were not followed. Only four licenses were granted in favour of Coal India Limited (CIL) and National Thermal Power Corporation (NTPC) and direction was issued against the licensee to pay Rs.295 per ton of coal they extract and also for the coal they have already extracted from the blocks they have to pay the same amount per ton i.e. Rs. 295. In 2G Spectrum Scam (2010), several directions were issued by the Supreme Court for effective investigation against the certain minister and other bureaucrats. In Vineet Narain Vs. Union of India6 supreme court had to consider two questions firstly, that for activating the investigation which was under the executive weather judicial review would be the effective instrument and secondly, in such situation is there any judicial remedy. The Supreme Court to ensure effective investigation by the state agencies evolved many new principles and has exhibited excellent judicial acumen and issued many guidelines on ―Judicial Integrity‖. In-State of Madras

5 2014 (9) SCC 614 6 1998 (1) SCC 226

by him as a bribe. But with time judiciary said that firstly, beyond a reasonable doubt it has to be proved that the accused has demanded the gratification and secondly, after proving the demand of gratification the role of statutory presumption comes into play. Without proving the demand for gratification by the accused the charges cannot be framed.

According to section 3 of the Prevention Corruption Act, 1988 the trial of cases falling under the Prevention Corruption Act 1988 can e dealt only by the judges designated ―Special Judges‖. ―Sessions Judge‖ (SJ) or ―Additional Sessions Judge‖ (ASJ) are appointed by the government among serving senior judicial officers, required to become an ASJ is to hold a degree in law and minimum of seven years‘ experience as a practicing advocate in a court of law is the minimum criteria for ASJ. Through a competitive examination, the selection is made. After serving as an ASJ for about 15 to 20 years ASJ is promoted to the rank of Sessions Judge. The Act requires holding a trial on a day-to-day basis, Special Judges. Section 5 of the Act laid down the power of the judge which is to grant pardon on the condition of that the person has to make full and true disclosure of all the facts and circumstances related to the commission of that offence and persons involved in the same, including him or herself.8 The judiciary is saddled with the responsibility of upholding the rule of law by interpreting, construing and applying the laws of the land in the resolution of disputes and act as checks on the two other arms while also adjudicating on contentious issues. Corruption has been tagged the bedrock of major challenges and economic woes facing the nation in recent time. Although, there is economic recession due to drop in oil prices, the level of impunity in different sectors of the economy as a result of corruption is alarming. Many analysts argued that corruption is synonymous with misappropriation of public funds and act of bribery, forgery which compromises transparency and due process in government transactions. Today, corruption is experienced across all religions, sexes, ages, political parties, professional, private and public entities. Its implications on the society are devastating which is why the administration of President Muhammadu Buhari takes it up as a

7 AIR 1958 SC 61 at p. 65. 8https://www.unafei.or.jp/publications/pdf/RS_No77/No77_12PA_Jain.pdf accessed on 04th August 2020 at 01:00 p.m

In his speech Inaugural, President Buhari noted that ―we face enormous challenges as a nation which includes insecurity, pervasive corruption, the hitherto unending and seemingly impossible fuel and power shortages are the immediate concerns‖… In order to achieve the objective of Nigeria democratic system, he said; ―the Federal Executive under my watch will not seek to encroach on the duties and functions of the Legislative and Judicial arms of government. The law enforcing authorities will be charged to operate within the Constitution. We shall rebuild and reform the public service to become more effective and more serviceable. We shall charge them to apply themselves with integrity to stabilize the system‖. Obviously, the government is placing so much importance on the judiciary as an institution to operate within the confines of the constitution and uphold the rule of law in all matters. The judiciary has a great role to play in the efforts to save the nation from imminent collapse under the weight of unbridled corruption. While delivering a speech at the 17th Annual Dinner of the Third Estate of Ilorin Emirate at Kwara Hotel, the Chief Judge of Kwara State, Justice S. D. Kawu said ―corruption covers conduct or behaviour which constitute a change from the generally accepted norms, laws for personal gain and acts done with intent to give some advantage inconsistent with official duty and the rights of others, which have become criminalized.‖ In his lecture titled ―Fighting Corruption: The Role of the Judiciary‖ Justice Kawu pointed out that in Nigeria today corruption manifested in the following manners: Inflation of contracts in return for kickbacks; falsification of accounts and official records in the public service to cover up fraudulent acts; falsification of documents mostly educational qualifications to secure public offices; examination malpractices in educational institutions involving students, lecturers and administrative staff members; bribery, extortion, gratification and perversion of Justice in the police and other law enforcement agencies and the Judiciary; inflation of workforce for financial gain i.e., ghost workers syndrome; tax evasion, over invoicing of goods, smuggling and oil bunkering; money laundering and other fraudulent practices in the banking and finance sectors amongst others. Consequently, factors responsible for the scourge of corruption in all facets of Nigeria socio-economic and political systems are: ―weak government institutions, inadequate salaries and poor working conditions in the civil service with little or no incentives and rewards for efficient performance, lack of openness

The 1999 Constitution of the Federal Republic of Nigeria as amended in Section 6 (6) provides the main function of the Judiciary as: ―interpretation and application of the law in the resolution of conflicts between individuals and groups or between individual or groups and government and its agencies.‖ In the course of carrying out her duty to adjudicate and interpret laws, the judiciary undertakes among others: the review of government actions; enforcement and protection of human rights and the maintenance of the rule of law. The pioneer Chairman of ICPC, Hon Justice Mustapha Akanbi was quoted to have itemized the roles of judiciary in corruption fight when he said ―the judiciary must be independent if it is to effectively play the role of an arbiter and ensure that the rule of law prevails; judges must be fair, just, and must not allow themselves to be influenced by extraneous considerations and that they should tower above corruption and always be true to their judicial oath.‖ It is important to note that the courts also administer the penal laws of the land which involve the punishment of deviant behaviours, corrupt practices is also seen as a deviant behavior that have been criminalized by the various governments in Nigeria through promulgation of laws among which are; Penal and Criminal Code Laws of the various states of the federation; Code of Conduct Bureau And Tribunal Act 1999; Advance Fee Fraud And other Related Offences Act, 2006; the Money Laundering Act, 2004; the Economic And Financial Crimes Commission (Establishment) Act, 2004; the Procurement Act, 2000 and the Independent Corrupt Practices and other Related Offences Commission (ICPC) Act. The independence of the judiciary have a role to play in the discharge of their duties, for instance, the constitution provided that the appointment of the superior judges of the courts in the country is handled by the executives, then, the judges would be expected to follow the whims and caprices of their appointers. Reports had it that the government was unable to get credible judges to man the anti-corruption courts about to be established by the administration of President Buhari. Another crucial matter subjugating the efforts of the judiciary in the fight against corruption is the inadequacy and ineffectiveness of extant laws in meeting up with the sophistication, complexity and magnitude of such crimes. Thus, the legislature needs to amend constitution existing provisions such as Section 29 (2) and (3) and Section 135 (2) ‗Evidence Acts‘, to support the corruption fight by enacting new laws and reviewing Basically, the judicial arm of government should begin to act constitutionally and avoid all forms of prejudicial activities in the interest of the rule of law. Without doubt, judges symbolize the judicial powers of the state; they stand out as the central figures in the judicial system and the administration of justice. Thus, the ICPC, EFCC and other anti-corruption agencies in Nigeria should work within the confines of the constitution and support the judiciary in adjudicating and interpreting laws for corruption related cases. In the submission on the role of judges on successful fight against corruption, Hon. Justice Pius Olayiwola Aderemi noted that Judges must undergo constant training not only in the general principles of law but also specifically in such areas dealing with EFCC, ICPC, money laundering, cyber-crime and other related offences.

In India, adequate law is there to curb corruption in the public sector. The Prevention of Corruption Act, 1988 is an exhaustive law covering all the aspects of corruption and corrupt practices by public servants. Apart from this Act, India is also a signatory to the United Nations Convention against Corruption (UNCAC). The sole idea for having a democratic government is that coequal and separate branches provide the balance among one another, which results in reducing the abuse of power and the potential for corruption. However, the need for the independent judiciary can be acknowledged with all permutations and combinations by the doctrine of separation of powers. Role of the judiciary as the independence of the judiciary rests upon the following points as it checks the functioning of the other organs. According to the provisions of the constitution, it ensures that all the organs of the State function within their respective areas Judiciary acts as a watchdog. Judiciary acts as a guardian of the Constitution and also helps in securing the doctrine of Separation of power.

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Research Scholar, Maharishi Arvind University, Jaipur