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Corruption and Human Rights in IndiaComparative Perspectives on Transparency and Good Governance$

C. Raj Kumar

Print publication date: 2011

Print ISBN-13: 9780198077329

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780198077329.001.0001

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The Way Forward: Establishing an Independent Commission against Corruption

The Way Forward: Establishing an Independent Commission against Corruption

Chapter:
(p.171) 6 The Way Forward: Establishing an Independent Commission against Corruption
Source:
Corruption and Human Rights in India
Author(s):

C. Raj Kumar

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198077329.003.0006

Abstract and Keywords

This chapter examines the proposal for the establishment of an Independent Commission Against Corruption (ICAC) in India. It contends that this proposal recognizes the inherent challenges of any institutional approach to seeking reforms, given the bottlenecks and obstacles for enforcement of the rule of law. It discusses the necessary framework for a successful anti-corruption agency, according to Transparency International. These include committed political backing at the highest levels of government, adequate resources to undertake its mission, and adequate powers of access to documentation and for the questioning of witnesses.

Keywords:   ICAC, India, anti-corruption agency, institutional approach, Transparency International, political backing, adequate resources

Creating the Right Political Environment for Combating Corruption

Fighting corruption has inevitably become the most urgent need for addressing all major challenges to governance in India. While a number of approaches have been attempted to fight corruption in India, none of them has been very effective so far. Given the complexities of the multi-layered police and other law enforcement agencies that are working in India, it is important to develop a more focused approach to combating corruption.1 The proposal to establish an Independent Commission Against Corruption (ICAC) in India recognizes the inherent challenges of any institutional approach to seeking reforms in India, given the bottlenecks and obstacles for enforcement of the rule of law. A number of institutions entrusted with the responsibility of fighting corruption and ensuring probity in governance have not been successful.2 Establishing an (p.172) ICAC in India will not be the panacea for all ills relating to corruption. There has to be a multi-pronged strategy to fight corruption, which will involve the legal framework, the institutional mechanism, the investigation and prosecution machinery, the public awareness and education strategies, and civil society empowerment approaches.3 The fight against corruption will work only if all the above strategies are formulated bearing in mind that corruption is a serious problem of governance that violates human rights and undermines development.4

Transparency International in its TI Source Book 2000 describes the necessary framework for a successful anti-corruption agency:

  • Committed political backing at the highest levels of government;

  • Adequate resources to undertake its mission;

  • Political and operational independence to investigate even at the highest levels of government;

  • Adequate powers of access to documentation and for the questioning of witnesses;

  • ‘User-friendly’ laws (including the criminalization of ‘illicit enrichment’); and

  • Leadership which is seen as being of the highest integrity.5

The proposal to establish an ICAC in India needs to address each of the above institutional challenges so that the ICAC is duly empowered to fight corruption. It is useful to briefly discuss these challenges here.

(p.173) Committed Political Backing at the Highest Levels of Government

There is an urgent need for political backing at the highest levels of government in India. While civil society activism and a citizenry that seeks accountability of the government can help in creating the circumstances for developing a political consensus to fight corruption, the much needed political backing is important so that the top political brass in India is both convinced of the seriousness of the problem of corruption and its huge impact on development and governance, and gives its fullest commitment to find ways to fight corruption.6 This is exactly how it happened in Singapore, when the political leaders made extraordinary efforts to wage a war-footage exercise against corruption. The political consensus that needs to be developed should not be limited to the ruling party, but also should cut across other political parties, including the political opposition. The need for highlighting the negative effects of corruption on the Indian economy and development of various states cannot be underestimated.7 This will not only raise awareness of the ill effects of corruption among the parliamentarians and legislators, but will also give an opportunity to exert pressure on the citizens belonging to different constituencies to persuade their elected representatives to support this initiative. The biggest challenge in developing political consensus among the politicians in India to support the establishment of an ICAC is their own sense of insecurity that such a move will create tougher legal and institutional frameworks which will impose higher standards of transparency and accountability on their conduct and actions. The proposal thus needs to come from the highest echelons of government, backed by a detailed policy framework and implementation agenda, including a projection of possible results in the form of economic benefit, development dividend, and governance (p.174) reforms that could be the possible outcome of an independent and effective ICAC.

Adequate Resources to Undertake Its Mission

The establishment of an ICAC will need allocated resources so that it can function effectively. Resources are critical for the effectiveness of institutions.8 The proposed ICAC in India should have its resources allocated in a manner that does not in any way compromise and undermine its autonomy. The ICAC needs massive resources to put together a comprehensive framework for the investigation and prosecution of crimes relating to corruption.9 As discussed earlier, the nature of crimes relating to corruption is such that a range of experts needs to be hired from different disciplines, including, but not limited to, finance, criminology, forensic sciences, and money laundering, in addition to police and law enforcement officials with proven experience in dealing with financial crimes. There is also a need for developing a robust infrastructure for the ICAC as it should be fully empowered to be able to take all steps that are needed to fight corruption.10 The resources that are needed for the ICAC are not only confined to the infrastructure and people, but are also needed to develop a powerful campaign that will galvanize support to the ICAC and to its ideals among the Indian citizenry. Gathering the support of civil society in India is central to the success of ICAC.11 This is also one of the reasons for keeping the policing and law enforcement functions of the police separate from the anti-corruption initiatives of ICAC. The staff of ICAC should be fully dedicated to fighting corruption at all levels of government.

(p.175) Political and Operational Independence to Investigate Even at the Highest Levels of Government

There is an inextricable link between each of these requirements for the success of an anti-corruption agency. Political and operational independence to investigate cases relating to corruption, however high up the political ladder a person is, becomes essential for maintaining the legitimacy of the ICAC. It is in this context that there is a need for general political reforms so that other forms of accountability are infused into the political process. In India, most of our institutions have become politicized and are therefore suffering from a credibility crisis.12 There is, at the same time a need to ensure that the independence of the ICAC does not develop into an institution that is not accountable to any other institution, and may itself assume an agenda without proper checks and balances to control the abuse of power. The TI Source Book 2000 has recognized this problem and has noted:

… just as an Anti-corruption Agency can be susceptible to those at the highest levels of government; it can also be used as a weapon with which to prosecute political opponents. Even where the independence of the office is respected and an Agency is able to operate freely, it occupies extremely difficult terrain. Imaginative thought has to be given as to how a powerful and independent anti-corruption body can itself be made accountable, and corruption within the organisation minimised.13

The power to investigate at the highest levels of government ought to be given to the ICAC so that it can function in an independent manner. Any exception to this principle will weaken the institution in the first place and in due course provide opportunities for undermining the investigative process.

(p.176) Adequate Powers of Access to Documentation and for Interrogating Witnesses

The powers of the ICAC should be clearly outlined in the legislation constituting it and should include all powers that are necessary for securing access to documentation for the purposes of investigation relating to corruption. The ICAC should be empowered such that it can discharge all functions that are available to police and law enforcement institutions. In this regard, the proposed ICAC should be an institutional mechanism different from the National Human Rights Commission in India. The NHRC's powers, as mentioned in the Protection of Human Rights Act, 1993, result in its effectiveness resting upon its moral authority as opposed to legal sanctions. It is empowered to issue directions that are in the form of ‘recommendations’, that are not enforceable, although they do have a very powerful persuasive value attached to them, given the NHRC's legitimacy and credibility as an institution. In addition, it is also empowered to take certain matters to the court with a view to seeking the latter's direction to implement its orders. The difference between the NHRC and the proposed ICAC should be clearly understood so that parallels between them are carefully drawn. The ICAC could be comparable to the Election Commission of India (ECI) with the powers and functions that are needed to be exercised as investigating and prosecuting cases relating to corruption constitutes one of the most important responsibilities for governance.

‘User-friendly’ Laws

The legal framework that establishes the ICAC should include all aspects of dealing with corruption. In addition to the criminalization of ‘illicit enrichment’, the law should have provisions that outline the framework for enforcement of the rule of law.14 The proposed ICAC should be able to access other legal and judicial institutions so (p.177) that the enforcement regime for fighting against corruption favours its efforts.

Leadership that is Seen as Being of the Highest Integrity

The leadership of the ICAC and the officers who constitute it should be of the highest integrity. It is important that they be able to function in an independent and professional manner. Time and again, it has been noted in India that the law enforcement agencies are not allowed to function in an impartial and independent manner, a problem that must be rectified. Their work is constantly interfered with by political and other vested interests, leading to the guilty going scot-free.

Brian C. Harms observed:

No matter how effective the machinery one builds, without the proper foundation and support it will most certainly collapse. … The legal and policy initiatives create disincentives to be corrupt, and incentives to combat corruption. International financial institutions and Transparency International helps to educate the people to develop their own country's internal reform and stop accepting corrupt behaviour. Such internal reforms will establish a foundation upon which further anti-corruption efforts can be built …15

Further, it is important to recognize that the police and other law enforcement agencies in India are themselves perceived to be hugely corrupt and face a crisis of credibility. Credible institutions are not only important for all stakeholders in society to have confidence in the independence and impartiality of the institution, but are also necessary for their effective functioning. Credibility of the anti-corruption mechanism is thus critical for its success.

Moshe Maor has observed that ‘[a] credible judgment by either a public official or an agency requires a wide range of resources which revolves around three ongoing government commitments, namely, a commitment for independence, a commitment for guaranteed (p.178) operational capacity, and a commitment for wide jurisdiction.’16 The proposed ICAC in India has to be established on the basis of these three fundamental institutional requirements. In fact, these prerequisites are the sine qua non for the establishment of the ICAC, and their public legitimacy will depend upon how the government is able to deliver on them.

The commitment of the institution is necessary not only to ensure fairness in the process, but also to protect it from both internal and external threats that may question its integrity. Anti-corruption institutions like human rights institutions cannot be friendly with the government as it is part of their responsibility to keep a check on governmental abuse of power. To maintain a certain degree of autonomy and independence, these institutions have to take tough decisions, which may be adverse to both individuals and in some cases departments of the government. It is in this context that the credibility of an institution like that of the proposed ICAC is critical for its effectiveness in the fight against corruption.

Further, Moshe Maor has noted:

‘Credibility’ in the context of integrity management presumes these commitments, thus increasing public faith in decisions by public officials or agencies. Once one or more of these commitments is undermined, the result may be a creeping shadow of doubt in the public mind regarding decisions by public officials or agencies. The absence of this doubt is the essence of credibility …17

In the fight against corruption in any society, the trust and confidence of the people is critical. The citizenry ought to feel that the fight against corruption through any approach adopted by the government, including the effort of a specialized institution such as the proposed ICAC, is inherently legitimate and is genuinely aimed at improving governance and creating a rule-of-law society. Thus, the investigation, prosecution, and judicial proceedings relating to corruption ought to be fair and transparent.

(p.179) One of the major challenges in India in its past efforts to fight corruption has been the lack of legitimacy of anti-corruption initiatives due to the problem of politicization of crime in all its dimensions.18 Serious anti-corruption efforts have been undermined due to the lack of an impartial and unbiased approach to the investigation and prosecution of cases relating to corruption.19 Unfortunately, anti-corruption cases have become a tool for politicians and political parties to use against opposition parties and politicians belonging to other parties, to score political mileage rather than out of any genuine sense of seeking the truth, punishing the guilty, and upholding justice.20

There have been a number of instances when anti-corruption commissions have been established with a view to fighting corruption. But their effectiveness or otherwise will depend upon a number of factors. There is no doubt that the independence and autonomy of the anti-corruption commission is a significant factor that will determine the effectiveness of the commission. John Heilbrunn has observed:

Evidence of dysfunctional anti-corruption commissions is manifest in the numerous agencies that lack independence from the executive, receive no budgetary support from the legislature to investigate venal officials, and have no procedures for forwarding cases of corruption for prosecution by the relevant judicial authorities. Herein lays the dilemma for policymakers who want to reduce corruption and improve governance: whereas it may be desirable to enact policies to reduce corruption, a hollow commission leads to a reputation for token reforms, which undermines the political leadership's credibility. Indeed, it is easy to explain why anti-corruption commissions fail in so many places; it is far more difficult to explain why any succeed.21

(p.180) The effort to establish an ICAC in India is the culmination of the Indian society's desire to eliminate corruption. The citizens of India are indeed desirous of reducing, if not totally eliminating, corruption as it directly affects their lives. The recent Anna Hazare campaign and the resulting social movement to institute a Lokpal is but one reflection of the citizenry in India waking up and demanding a cure to the democratic deficit created by corruption.22 However, there is neither a political consensus that corruption is the most important governance issue, nor a reference to the approaches that need to be adopted to fight corruption.23 Under these circumstances, for any institutional approach to fight corruption to emerge is unlikely. However, it is important to develop a framework so that when the issue of corruption comes to the centre stage of politics and governance in India, there is greater understanding of the viable approaches to fight corruption. Heilbrunn has commented that there are four types of anti-corruption commissions. In his view,

… first is the universal model with its investigative, preventative, and communicative functions. The universal model is typified by Hong Kong's Independent Commission Against Corruption (ICAC). Second, the investigative model is characterized by a small and centralized investigative commission as operates in Singapore's Corrupt Practices Investigation Bureau (CPIB). Both the universal and investigative models are organizationally accountable to the executive.24

(p.181) In the Indian context, it is important to recognize that there have been various institutional approaches to fight corruption that have not met with success. If a new approach is formulated, it should encompass, within its fold, all aspects of the process relating to investigating and prosecuting allegations of corruption, in addition to educating and empowering people in the fight against corruption. The Hong Kong model and certain tenets of the Singaporean model with a certain degree of adaptability to the Indian context can be more suitable for India.25 Heilbrunn has also commented on two other models:

… the parliamentary model includes commissions that report to parliamentary committees and are independent from the executive and judicial branches of state. The parliamentary model is epitomized by the New South Wales Independent Commission Against Corruption that takes a preventive approach to fighting corruption. Finally, the multi-agency model includes a number of offices that are individually distinct, but together weave a web of agencies to fight corruption. The United States Office of Government Ethics with its preventative approach complements the Justice Department's investigative and prosecutorial powers in a concerted effort to reduce corruption.26

The Parliamentary model that prevails in Australia and the multiagency model in the United States are not suitable for India. Both these models presuppose a certain degree of credibility of democratic institutions.27 Unfortunately, the Indian institutions suffer from a large credibility crisis and will not able to function in an independent manner unless this independence is provided under the Constitution or by way of legislation. There have been huge challenges to maintain the independence of democratic institutions.28 While electoral democracy has been strongly established in India, we are far from (p.182) developing a democratic culture that respects the autonomy of institutions.29 In the Indian context, it needs to be recognized that democracy does not in itself provide an effective antidote for corruption. In this regard, Susan Rose-Ackerman has observed: ‘Democracy is not a cure for corruption, but democratic structures can provide the conditions needed for anti-corruption policies to succeed.’30

The legal system of a country needs to play an important role in strengthening the institutions and the rule of law that is the cornerstone of a democracy.31 In this regard, Claes Sandgren has observed, ‘The role of the legal system is to provide the institutional framework—rules as well as institutions that apply the rules—for good governance … The legal system is the warrant for this type of governance that counteracts corruption. Criminal law has a role to play, even though it is not as prominent as one may assume.’32

The accountability of anti-corruption institutions is vital in India, given the fact that a large number of institutions and law enforcement agencies have been politicized and their decisions have been marred with controversy.33 Due checks and balances need to be provided so that the ICAC does not become an all-powerful institution. Claes Sandgren has further observed,

In addition, the legal system also has the vital role of overseeing the institutions that fight corruption and to hold them accountable. Only if this task is accomplished in an effective way, and is seen as being effective, it is possible to gain and maintain the confidence of the public. Without such confidence, citizens cannot be expected to reject corruption and abstain from using bribes. In the end, the attitude of the public at large is crucial to the prospect of success for any effort to fight corruption.34

(p.183) The need for establishing an Independent Commission Against Corruption in India is based upon two factors:

Lack of Faith among the Citizenry in the Government's Anti-corruption Initiatives

Even though there is massive corruption in India and people readily acknowledge the ill effects of it, there is little faith in the ability of the government and many of the existing institutions to fight corruption in an impartial and unbiased manner.35 Investigations relating to corruption have, by and large, suffered due to political intervention or other forms of biases that affect the integrity of the criminal justice process.36 The legal system is also marred by huge problems of delay and unpredictability, which have also affected anti-corruption efforts.37 While police and law enforcement agencies are at the vanguard of anti-corruption efforts, their role and functions need to be subjected to intense scrutiny, given the history of abuse of power, corruption, and other problems that police as an institution faces in India.38 This has resulted in a situation where the existing police system is not in a position to successfully carry out anti-corruption investigations and prosecutions. This is the case even with regard to one of India's highest investigative bodies, the Central Bureau of Investigation (CBI). The Supreme Court of India in Narain v. Union of India noted:

The sum and substance of these orders is that the CBI and other government agencies had not carried out their public duty to investigate the offences disclosed. … Even after this matter was brought to the court complaining of the inertia of CBI and the other agencies to investigate into the offences because of the alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to proceed with the investigation was apparent … The continuing inertia of the agencies to even commence a proper investigation could not be tolerated any (p.184) longer. In view of the persistence of that situation, it became necessary as the proceedings progressed to make some orders which would activate the CBI and the other agencies to at least commence a fruitful investigation.39

The judgment of the Supreme Court in this case is a reflection of the lack of independence of the investigative agencies in the fight against corruption. Further, citizens have little faith in the criminal justice system, given its inability to provide justice in timely, fair, and efficient manner.

Civil society activism in fighting corruption has significantly expanded in the recent years.40 The Global Integrity Report published by the Centre for Public Integrity has noted in relation to India:

Citizen groups and civil society initiatives are today carving out a space for themselves in the fight against corruption and misuse of authority … The police have traditionally enjoyed tremendous power and patronage from the political elite. Among the various public institutions, the police are rated as having the lowest credibility by the general public. The politicization of the police force is a matter of serious concern often resulting in the high-handedness, corruption, and arbitrary behavior on the part of the police force. While some efforts are today being made to improve the image of the police, the public perception of the police remains largely unchanged.41

The effectiveness of anti-corruption initiatives is significantly dependent upon an active and vibrant civil society.42 But for the civil society to play a dynamic role in the government's efforts to fight corruption, it should have confidence that the government and its anti-corruption institutions are not only serious about fighting corruption, but also have a properly devised plan and strategy to do (p.185) so.43 At each stage of the investigative process, there may be a need for input from the citizenry, and this information cannot be generated through coercion or undue influence. The Indian citizenry ought to feel socially obligated to share whatever information they may have in relation not only to assisting the investigative process, but also to reducing the incidence of corruption in the future.44

Community involvement in anti-corruption initiatives is the least apparent in India. Corruption is a problem that cannot be addressed solely by the law enforcement machinery or, for that matter, the ICAC. There needs to be a multi-pronged and participatory strategy for fighting corruption, and only that will ensure that the anti-corruption efforts of the ICAC are duly supplemented by the support of the public at large. Successful anti-corruption institutions have engaged with the community and have recognized the role of civil society as a vital mechanism in the fight against corruption.

Separating Anti-corruption Initiatives from Other Police Functions

Police and law enforcement agencies are themselves perceived to be corrupt in India.45 Thus, any anti-corruption strategy, including the establishment of a separate specialized institution to investigate and prosecute crimes relating to corruption, ought to focus on the nature of the institutional framework that needs to be created. Corruption in the police at all levels of their interaction with the public has left the latter with little faith in this institution, which is supposed to be the protector and guardian of the security of the people.46 The nature and extent of corruption in the police is observed by Arvind Verma: ‘The elitist nature of the police leadership, the politicization of the department, the unaccountability to the people and outdated management practices have all combined to make corruption endemic and even (p.186) acceptable within the organisation. The persistence of open corrupt practices by officers is clearly indicative that the organisation itself has become deviant …’47 Therefore, the need for totally separating anti-corruption initiatives from policing is essential to maintain the independence of the anti-corruption institution.

In the Indian context, the pool of officers who are drawn for anti-corruption work are people who, either before or after their tenure in this work, will be engaged in policing. This approach poses a number of problems for pursuing serious anti-corruption work. First, the work relating to anti-corruption has become much more specialized, and officers involved in this work may need to have knowledge of not only the law, but also in many cases knowledge of finance, as well as training in investigation relating to money laundering. Corruption today is not confined to petty corruption where even the proceeds of corrupt transaction are negligible and confined to India. While all cases relating to corruption ought to be pursued, it is important to develop a dedicated civil service mechanism with officers who will be trained and vested with the responsibility of fighting corruption. This is critical for the success of the institution.

Second, while policing involves a range of activities related to protecting law and order ensuring that persons who have committed crimes are brought to justice, the nature of corruption is such that there is an important element of abuse of power inherent in any corrupt transaction. The persons who are engaged in public corruption, besides violating the law, are also abusing the power that is vested with them by way of them being government officials. A sound understanding of anti-corruption law, the rules and regulations of the civil service, the techniques of investigation, collection of evidence, and development of a fool-proof case for conviction of the accused are all essential and can be done effectively only if there is a dedicated team whose sole responsibility is to take these matters to their logical conclusion.

(p.187) Third, the prosecution needs to be assisted by the investigating team in an effective manner so that the cases relating to corruption are brought to justice. If there are vested interests that work at this stage, there is good reason for anti-corruption efforts to fail. This is a real danger particularly when the incidence of police corruption is as high as it is in India.

Given the extent of police corruption in India, the anti-corruption institution may be frequently involved in the investigation of cases relating to corruption against police officials.48 There is thus a need for fundamental reforms in policing, and this should take place regardless of the anti-corruption mechanisms being created independent of the policing functions. In this context, Arvind Verma has observed:

The role and function of any police department is adversely affected if the prevailing norms and traditional ways of doing things encourage corrupt practices. Accordingly, the way to control corruption and reform system is to make change in the way things are being done. This calls for a major transformation of organisational structure, management practices, supervision procedures, decentralisation of power, creation of local accountability system, even a change in role and functions of the police in the society …49

A major policy change needs to take place for anti-corruption initiatives to be effective in India. Under the current system, the work relating to anti-corruption is pursued by the police and other law enforcement agencies, and in many cases there is a sufficient degree of overlap between these two functions.50 Further, the people involved in this work may simultaneously be involved in other aspects of policing. If fighting corruption is to take serious priority, as it should, then it is important to differentiate all efforts to fight corruption from other equally important and responsible ways of maintaining law and order, and the investigation and prosecution of all other crimes. At the state level, the Department of Vigilance and Anti-corruption that (p.188) is currently under the administrative system of the director general of police needs to be re-examined. In India, there are both central-and state-level agencies that are entrusted with the task of fighting corruption. Given the vastness of the country, this is inevitable, but there is an urgent need to re-examine the nature, scope, functions, jurisdiction, composition, and overlap of powers of these bodies with a view to infusing a greater degree of accountability, autonomy as well as effectiveness in the fight against corruption.

Towards Establishing an Independent Commission against Corruption

The institutional approach to fighting corruption is an attractive proposition its the focused approach. When there are too many institutions responsible for undertaking similar tasks, there is bound to be confusion and, in many instances, turf wars between the institutions as to who is more powerful in dealing with cases relating to corruption. The fundamental rationale for establishing a separate institution for dealing with corruption is to bring together the functioning of certain institutions, which are already working in the field of corruption, and to create a single nodal institution with all the powers, function and responsibilities to investigate and prosecute cases relating to corruption.

Establishing an ICAC in India could be one of the most effective ways to fight corruption.51 Hong Kong, as stated earlier, provides a useful model for an ICAC. The OECD52 has explained the procedure for investigation and prosecution in the Hong Kong ICAC Model thus:

  1. (p.189) (1) ICAC Report Centre receives a complaint (by individuals, legal persons, ICAC Regional Offices or by other governmental departments) about corruption;

  2. (2) The complaint is examined by ICAC and categorized with a view to pursue or not pursue further action;

  3. (3) For complaints with further action recommended, investigations will be carried out by ICAC's Operations Department;

  4. (4) For complaints with substantiated evidence, relevant details will be submitted for the institution of prosecution to the Secretary for Justice, head of the Department of Justice of the Hong Kong Special Administrative Region Government;

  5. (5) Prosecution of corruption will be conducted by the two ICAC sections (public sector and private sector corruption) of the Commercial Crime and Corruption Unit, Prosecutions Division, Department of Justice. It advises ICAC and handles its prosecutions.

  6. (6) Report will be subsequently made to ICAC's Operation Review Committee.53

Framework

The proposed ICAC in India should be a stand-alone autonomous institution and should not be under any ministry of the government, including the Prime Minister's Office. The ICAC should be established as an institution akin to the Election Commission of India. In fact, it would be appropriate for its establishment to be made through an amendment to the Constitution of India, which will provide a constitutional status to this commission. If that is not possible, given the political complexities of amending the constitution, it may be established by legislation. But the powers, functions and level of independence of ICAC should be in conformity to the guarantees that are provided to the Election Commission of India. Historically, anti-corruption institutions that have been established in India have not enjoyed institutional independence or functional autonomy. All investigative bodies, including police and law enforcement agencies, have come under one or more ministries of the Government of (p.190) India or the state government. This has made the independent and autonomous functioning of these institutions dependent upon the leadership and the integrity and impartiality of the heads of these institutions. While this is necessary and critical for the success of the ICAC, it is important to develop a more sustainable, process- and procedure-oriented institutional mechanism for ensuring independence. In the past, independence of the law enforcement agencies and the individual officers has been dependent upon two factors.

Honesty and Integrity of the Individual Officers and Heads of Anti-corruption Institutions

The problem with this approach is that it never helps to build a culture of institutional integrity as it depends far too much upon the individual officers who assume such positions. For anti-corruption efforts to be successful over a period of time, there is a need for a sustained approach to fighting corruption at all levels.54 Institutional integrity and the trust and confidence of the citizenry in the institution cannot be built overnight. The institutional apparatus, the organizational framework, and the need for maintaining the honesty and integrity of the anti-corruption investigative process ought to be deeply ingrained within the ICAC.55 Typically, institutions in India that are involved in the fight against corruption are under tremendous pressure from different vested interests, and their independence is only in rhetoric and hardly in practice.

Honesty, Integrity, and (in Some Cases) Benevolence of Politicians and Bureaucrats

The independence or otherwise of the ICAC should not be dependent upon the personal integrity or the benevolence of politicians and bureaucrats. Political and bureaucratic corruption in India is rampant. It is essential that the ICAC as an institution be established bearing in (p.191) mind the practical problems that are faced by agencies such as the CBI and the CVC, which undermine their independence and efficiency in fighting corruption. There is thus a need to develop an institutional framework that leaves little room for powers to be abused.

Independence

The ICAC needs to have a legal framework that ensures its independence and helps maintain its autonomy. The independence of the ICAC is the most important aspect relevant for its effective functioning. Police agencies in India are notoriously undermined by political intervention. The independence of the ICAC needs to be legally protected so that it does not depend upon the whim and fancy of the government in power. While the independence of the ICAC is critical, its own institutional accountability needs to be ensured. Independence and accountability are two sides of the same coin. While independence of the ICAC for its effective functioning is essential for it to be able to undertake its functions of investigation and prosecution without any fear or favour from other government agencies and politicians, there is also a need to ensure that it does not become an organization that is accountable to none. A fool-proof system of checks and balances needs to be introduced so that the functioning of the ICAC is independent from the executive, but will be overseen by an Independent Board of the ICAC, the membership of which will be mostly from outside the ICAC. This will ensure that the day-to-day activities of the ICAC are conducted by its officials and officers, but that the broad overseeing of its functions is undertaken by another body whose members include a cross-section of society as well as some ICAC representatives. It is important that the structure and framework of ICAC is diligently drawn so that the powers and functions of this anti-corruption agency fulfil the objectives of fighting corruption.

A number of the best practices that prevail in the world providing operational independence can be of use here. The reporting mechanism and internal oversight procedures should reflect a certain degree of rigorousness that is needed for the ICAC to perform what (p.192) will be an essentially sensitive set of duties and responsibilities. Along the same lines, the ICAC should have financial independence, and the funds that are needed for its effective functioning ought to be made available by the Parliament and not dependent upon governmental discretion. A useful example relating to financial independence in the context of an institution in India is the ECI. It has been noted, ‘It is a mark of ECI's independence that it has not faced any major funding problems … it is funded by the government through the Consolidate Fund … The ECI's accounts are subject to audit by the Comptroller and Auditor General and its report is tabled in the Parliament. This ensures the financial accountability of the ECI, and had worked smoothly.’56 I propose that the ICAC's financial independence should be ensured along the same lines as that of the ECI so that no government in the future can interfere in the working of the ICAC and adversely impact its financial independence.

Composition

The composition of the ICAC should be similar to that of the ECI. The ICAC should be given a constitutional status so that the level of engagement and interaction of the members of the ICAC is not only deemed to be important, but also perceived to be important. The appointment of the members of the ICAC should be done through the same process that is currently adopted for the appointment of the National Human Rights Commission. This will ensure that there is broad political consensus when it comes to the appointment of the members of the ICAC.

Powers

The ICAC should be empowered to be a nodal institution for undertaking the investigation and prosecution of all cases relating to (p.193) corruption under the state and Central Government. But it is important that the work of the ICAC be limited to cases of corruption that are not petty in nature, but amounts to a certain degree of significance either in terms of financial implications or in terms of their impact on the administration of justice or nature of the abuse of power. The ICAC should be empowered to determine its investigative procedures and processes.

The establishment of the ICAC in India by way of a constitutional amendment is essential to tackle the problem of corruption. While passing a constitutional amendment is no easy task, there have been steps taken by way of passing an amendment to the Constitution on matters relating to the right to education where there was a certain degree of political consensus. Political parties invariably raise the issue of corruption and level charges against each other during election campaigns. These allegations are made when parties or individuals need to criticize the opposition. In this process, the importance of the issue and the need for fair and transparent methods to discover the truth and to seek the punishment of the perpetrators of the crime of corruption is undermined. The credibility of the criminal justice process is significantly affected and crimes relating to corruption almost never end up in conviction, let alone punishment.

The business of investigating cases relating to corruption and seeking the prosecution of accused persons is an extremely important and a serious endeavour for a variety of reasons. There is no doubt that the criminal justice system in India is facing a huge crisis of credibility.57 The rule of law will be protected in India only if it is ensured that those who violate the law are meted the punishment that is appropriate for that violation. Rule of law ought to ensure that the legal system and the institutional mechanisms available treat all people in a fair and just manner; that acts of corruption committed by the most powerful and influential persons in the society are also investigated in a professional manner; and that justice is rendered.58

(p.194) Anti-corruption Initiatives and Human Rights Protection

The fact that the activities of the proposed ICAC can potentially infringe upon human rights underlines the need for strengthening the human rights machinery in India. If anti-corruption efforts are not adequately provided with democratic checks and balances, the fairly effective institutional approach of anti-corruption that is being proposed could become politicized.59 Politicization of the corruption issue does not bode well for law enforcement in India.60 Selective or partial enforcement of law violates the principle of equality and non-discrimination, and indeed threatens the foundations of the rule of law that is being proposed to be established through the ICAC.

Creating a Communications Office/Public Affairs Division

There is a need to create a communications office in the form of a public affairs division within the proposed ICAC. The purpose of creating a professionally organized and fully trained office that is responsible for providing the relevant information to the media and to the larger public domain is to increase the visibility of the commission. The fight against corruption has to involve the widest possible sections of civil society in India,61 and it is for this purpose that the interaction of the proposed ICAC with local and international media is critical. There should be a system by which cases relating to corruption that the proposed ICAC is investigating, or has completed investigating, are brought to the public domain without breaching any rule of confidentiality, or releasing information that would in any way jeopardize the process of investigation. The information that the communications office or the public affairs division of the proposed ICAC provides to the media through a press conference or other appropriate methods is to keep the people of India informed about (p.195) the workings of the proposed ICAC. Another important purpose is to ensure that corruption remains a firm and central issue within the social and political agenda of governance in India.

Dissemination of the Procedures for Approaching the ICAC

Most of the time, even with a sound legal and institutional framework in many countries, little information about the functioning of anti-corruption institutions is disseminated to the wider public. There is a need to publicize the existence of the commission along with the procedure that is in place for receiving complaints, the process of taking cognizance of complaints and the approximate time taken for investigation/response, etc. through the mass media and all channels of communication. A great deal of ingenuity and creativity is required for successfully handling this matter as this will ensure citizens' participation in governance. As discussed earlier, the fight against corruption in India cannot be handled only by the proposed ICAC. It has to seek every possible encouragement and support from all individuals and institutions within and external to the government. In particular, for getting the people involved, there is a need for constant education by using multiple channels of communication. The representatives of the ICAC should be regularly invited to give talks and lectures by educational institutions. Further, a close relationship between officials of the ICAC and academic circles of human rights, constitutional law, administrative law, and criminal justice needs to be established.

Invoking Strong Political Commitments to Reduce Corruption and Non-interference in Corruption Proceedings

People-centred Approach to Anti-corruption Work

This means that the ICAC should pursue anti-corruption cases with a view to empowering the people of India who are actually the victims (p.196) of corruption.62 Earlier, it was noted that corruption disproportionately affects the poor and the disempowered. In developing societies like India, there are far too many people who are struggling to fulfil their basic needs. If corruption is brought to the central agenda of governance, it is possible to develop a consensus among the political parties, although genuine change relating to honesty and integrity in politics will take a long time. The need for commitments from politicians at the highest levels in the government can be crucial, particularly when the proposed ICAC is able to achieve key convictions in anti-corruption cases. Also, any form of interference in the proceedings besides violating existing laws and the independence that is guaranteed to the proposed ICAC under the law would also discourage the staff of the ICAC through pursuing these matters with the commitment they would have otherwise had. The credibility of the proposed ICAC will also suffer if there is any form of interference or appearance of impropriety by the officials of the ICAC. Thus, the proposed ICAC has to steadfastly guard against any interference that may affect it in a direct or indirect manner in exercising its duties and obligations.

Training of Parliamentarians

This is a subject that will take a fair amount of convincing to implement. The proposed ICAC should interact with the secretariat of the Parliament to provide suitable training programmes on issues relating to corruption to the parliamentarians. Political corruption needs to be curbed for developing a good governance framework.63 While every effort ought to be taken by the proposed ICAC to pursue the investigation, prosecution, and conviction of persons who are corrupt, whether they are politicians, bureaucrats, judges or any other individual or institution64 in Indian society under the functional (p.197) jurisdiction of the proposed ICAC, equal efforts need to be taken to educate and train people about the ill effects of corruption and how it violates human rights, undermines the rule of law and distorts the development process in India.65

ICAC and its Relationship with Other Institutions—Formal and Informal

As discussed earlier, corruption is a multifaceted problem. The response to corruption should also be holistic, and hence the proposed ICAC should work with and engage, to the widest extent possible, with other commissions and institutions in India, including, but not limited to, the National Human Rights Commission, Comptroller and Auditor General of India, and other similar institutions. Obviously, the relationship and interaction that the proposed ICAC expects to establish with each of these institutions will vary and depend upon the institutional mandate of the respective institutions. Nevertheless, there is a good argument that corruption affects the efficient functioning of government and violates the rights of people besides undermining the rule of law. It is in this context that anti-corruption efforts can acquire greater legitimacy both within and without the government and its institutions.

The proposed ICAC needs to work on partnerships with governmental institutions and non-governmental organizations in India and overseas. These partnerships would be of varied nature, with the purpose to engage in capacity building so that the ICAC becomes a truly nodal organization to ensure corruption-free governance. The officials of the ICAC should be in a position to conduct seminars/presentations and other forms of training programmes in government departments in India. The ICAC should also work closely with the private sector, particularly on matters relating to corporate fraud and other forms of corruption that take place in corporations.

(p.198) Linkage with the Comptroller and Auditor General's Department

There needs to be a broad level of engagement and interaction between the ICAC and the OCAG with a view to providing support in training. There is a need to institutionalize this relationship so that the interaction is not in an ad hoc capacity, but based on shared principles and values of institutions within government workings to ensure good governance.

Relationship with the Media

The proposed ICAC should constantly work towards aggressively pursuing the anti-corruption agenda and involve the media in bringing information on arrests, indictments, trials, and convictions to the public domain. In free and democratic societies, the media plays an important role in exposing acts of corruption and insisting on transparency in governance and accountability of administrators. Independence of the media is essential for ensuring transparency. If it is not independent, this may hinder the establishment of an open and transparent relationship with the media; the impartial and objective approach of the proposed ICAC can also help in influencing the media organizations. In this context, it is important for the ICAC to maintain its independence and autonomy and to deal with cases relating to corruption in an impartial, objective, and efficient manner. This will generate greater confidence among the media in the working of the proposed ICAC.

Interaction with NGOs and Civil Society

The proposed ICAC needs to expand its partnership with NGOs and the wider civil society in India for fighting corruption. The empowerment of NGOs and civil society is critical for ensuring that the fight against corruption has the necessary credibility, which is extremely important particularly when corruption is writ large in (p.199) society and people are generally cynical about government initiatives that intend to eliminate it.66

Further, since the institutional credibility of anti-corruption agencies in India has suffered in the past, there is a need to work closely with NGOs and civil society for achieving corruption-free governance.67 Civil society, including the media, has to be involved in a significant manner in India to ensure that corruption-free governance does not remain a policy goal or an institutional aspiration. Civil society is best suited to perform this role, as it can devote itself exclusively to ensuring that the decisions of the government are made in a transparent and socially accountable manner.68

Further, civil society in India is part of the democratic set-up and should be involved in both rural and urban India at the grassroots levels. The problem of most human rights commitments has been the existence of a gap between theory and practice, policy and reality.

Corruption-free governance should be part of civil society activism so that the people are empowered to seek transparency and accountability from decision-makers.69 Further, in many instances NGOs and civil society will also be whistleblowers, and working closely with the proposed ICAC will provide the right kind of trust and confidence for both. This, however, does not mean that the proposed ICAC needs to accept or condone all approaches adopted by NGOs and civil society.

(p.200) The Way Forward: A Cohesive Approach to Combating Corruption

The empire of corruption has done the greatest possible damage to good governance and the rule of law in India.70 We need to view corruption from the perspectives of access to justice and human rights so that public institutions can be held accountable for the abuse of power. We must encourage institutions like the National Human Rights Commission and State Human Rights Commissions in India to begin taking cognizance of corruption cases so as to raise the profile of this linkage with human rights. We must also evolve a new language, including the right to corruption-free governance, as a fundamental and non-derogable human right so that the ideal of constitutional governance is implemented.71 There are various ways and means by which the judiciary can take measures to eliminate the malaise of corruption in light of inaction or apathy by the legislative and executive branches of the state.72

Corruption within the judiciary, mainly at the lower levels, ought to be an important target for elimination.73 Anti-corruption work must involve grassroots civil society organizations along the lines of the MKSS in India. Since corruption is a disempowering force, the most effective way to root it out is through the empowerment of citizens both through popular grassroots people's initiatives and through institutional mechanisms that exist in the legal system.74 A holistic approach to fighting corruption through legal and social action has been long overdue in India. Until such a movement comes about, (p.201) corruption will continue to eat into the socio-economic development of India and exact a heavy human toll.75

I have argued in favour of a humanistic and liberal reinterpretation of ‘sovereignty’ in the wake of new thinking and new developments in world affairs. Sovereignty exercised as an untrammelled power with irresponsible government institutions exploiting and disempowering citizens results in the lack of accountability. Sovereignty exercised as the responsibility of the governing power with human development as the desired end is the wave of the future that sadly has not yet gained prevalence in India.76 The way forward is to spread this notion of responsibility and accountability as imperatives for strengthening sovereignty, simultaneous to large-scale efforts of increasing the presence and participation of civil society in governance issues. A corruption-free state enhances its chances of perpetuation, reduces possibilities of unwarranted external interference, and attracts foreign talent and investments by raising its international stature. A population that is content, well-governed, and not discriminated against confers internal stability—a key requisite for projecting power externally.77 Roping local civil society into this endeavour, in tandem with non-politicized international interventions, will produce tangible results.

It is possible for India to succeed in the fight against corruption and ensure that transparency in governance becomes the basis for the development of the country.78 But for this to happen, there is a need, as discussed in this work, for a wide variety of actors playing important roles towards eliminating corruption from society.79 The whistleblower protection laws that exist in a number of countries will provide a useful framework for India to demonstrate its commitment to ensuring corruption-free governance.80

(p.202) But there is also a need to examine the workings of a number of institutions in Asia and to foster close partnerships with such governmental institutions, non-governmental organizations, and civil society for the fight against corruption to succeed. No doubt, this is a long and arduous struggle, but the struggle is worth it as, along the way, many human rights will be protected and promoted and many people will be empowered.

The following specific suggestions are to ensure that the problem of corruption receives the highest priority and attention for ensuring access to justice and the promotion of development policies:

Laws

The legal framework for fighting corruption needs to be strengthened as a facet of both legal and judicial reforms. The existing legislative framework for fighting corruption in India needs to be thoroughly examined. Efforts ought to be taken to ensure that laws, rules, and regulations for fighting corruption are in place.81 But it is important to note that anti-corruption laws will not be effective if the law enforcement machinery and the rule of law culture in a society is weak.82 Hence, there is a need for taking efforts to protect the rule of law and empowering the law enforcement machinery, including the police, prosecution, and other agencies that may be involved in the fight against corruption.83

Institutions

The legal framework for fighting corruption should be supplemented by establishing and empowering institutions. A number of institutions are involved in varying capacities in the fight against corruption. Since corruption is inextricably connected to creating obstacles in the path of access to justice, and to a lack of effective development (p.203) policies, appropriate institutions should be in place to deal with it.84 The judiciary and human rights commissions are best suited to deal with corruption as a violation of human rights that inhibits access to justice.85

The consequences of corruption on development are profound. It is here that the anti-corruption machinery needs to be strengthened and the need for independent commissions against corruption becomes necessary.86 Independent anti-corruption institutions, like the ICAC as proposed in this book, have the potential to act as a watchdog for ensuring that corruption does not become a hindrance to development and the resources of the state are distributed in a fair and equitable manner.87

Role of Judiciary and Adjudicative Mechanisms

The judiciary and its adjudicative mechanisms have an important role to play in the fight against corruption. At times, the judiciary may be subject to criticism on the grounds that it is interfering in the affairs of the executive. However, the judiciary in India has not shied away from its responsibilities and remains an institution that enjoys tremendous moral legitimacy and constitutional status to intervene in various human rights issues. It is important to recognize that the role of the judiciary in upholding the Constitution should not be overemphasized and will have its inherent limitations. The judiciary is far more effective when it comes to empowering other institutions than it is when taking upon itself the responsibility of fighting corruption.88 It is in this context that the interface of corruption and (p.204) human rights is useful for the judiciary to take steps to implement human rights.89

Constitutions at best may provide the political and institutional venue for promoting a rights discourse. They are also written at a time when momentous political changes take place in a country and the framers objectively attempt to transform society. Constitutional guarantees cannot ensure that protection of human rights unless they succeed in engaging the democratic processes in society, an empowering function that should be the goal of constitutionalism. Corruption of the kind that prevails in India disempowers individuals and institutions.90 It is important that there are independent democratic institutions that function effectively in ensuring that the governance system adheres to the principle of rule of law and the Constitution. Constitutionalism should be understood as encompassing all such institutions—a principle that encompasses a variety of political theory ideals, demonstrating a framework of governance that is based upon human rights, fundamental freedoms, and human dignity.

The constitutionalization of human rights creates a theoretical framework for their protection and from it flow the various legal, judicial, democratic, and institutional mechanisms that ensure it. The judiciary will be able to best perform its constitutional functions only when the independence of other democratic institutions is guaranteed and the government adheres to certain principles of constitutional governance. Human rights and constitutional freedoms are central principles for liberal democratic societies.

Further, formal mechanisms for the protection of human rights through the constitutional apparatus and their enforcement by the judiciary can fail, particularly when these institutions operate under (p.205) limitations.91 Greater space should be provided for democratic dissent and resistance to intrusions on human rights. This space is also typically addressed by liberal constitutions both in rights guarantees and democratic commitments. It should also be autonomous, so that citizens take upon themselves the task of protecting and promoting human rights and fundamental freedoms.92 The right to information that is provided both as a constitutional and a legal right is one such example whereby the focus is on empowering the Indian citizenry to seek transparency in governance.93 It is possible that resistance from citizens can actually serve as a check upon the democratic branches of the government to ensure that human rights are duly protected,94 and that violations of any nature, including acts of corruption, are met with serious criticism in the form of democratic dissent. More importantly, there is a need for people's resistance and movements to ensure the protection and promotion of human rights.95

While a sound constitutional framework, an independent judiciary, and other democratic institutions are upholding the Constitution of India, the principles of constitutionalism have not yet permeated our political culture. It is here that we have a long way to go in ensuring that human rights, justice, and constitutional empowerment become the sine qua non of democratic governance in India.96

The role of the judiciary in fighting corruption and improving governance is a central element of constitutionalism in Indian democracy.97 The dialectical relationship between promoting constitutionalism and the development of judicial governance presents three important challenges for understanding the role of law and institutional politics in India:

(p.206) Role of the Judiciary

The judiciary is uniquely placed in the matrix of power structures within the system of governance. Judges are not elected but clearly have the power and indeed the responsibility to check the exercise of powers and actions of elected representatives and appointed officials. The judiciary as an institution is vastly respected, notwithstanding huge challenges in ensuring access to justice, judicial process, and issues of transparency and accountability.98 It is vested with ensuring that the rights and freedoms of the people are protected and the powers exercised by the government in adopting policies are in accordance with the Constitution and other pieces of legislation.99

In theory, if the different branches of the government adhere to the basic principle of separation of powers and function within their limits, it is considered a sound system of governance. In practice, however, a number of issues and challenges have emerged. It is in this context that the three branches of the government—the legislature, the executive, and the judiciary—need to have a certain degree of trust in, and deference to, the actions of one another in matters within their respective jurisdictions.

However, trust and deference in relation to the actions of a particular branch should not undermine the judiciary's responsibility to adjudicate on the constitutional and legislative validity of the actions of the government. Clearly, this delicate balancing act of rightfully intervening when necessary requires a deeper understanding and appreciation of the principles of constitutionalism.100 Rule of law is about all people and institutions respecting laws and acting in accordance with the law. The legislature and the executive as collective powerhouses are bound by these principles as much as ordinary citizens are. When acts of corruption are brought before the judiciary for adjudication, it is important for it as an institution to take account of all legislative and constitutionally available mechanisms in upholding the right to corruption-free governance. The credibility (p.207) of the judiciary as an institution needs to be effectively used, notwithstanding the fact that there have been recent issues of corruption within the judiciary that have undermined its reputation.101

Judicial Governance

The term ‘judicial governance’ in itself is subject to challenge as the judiciary is not supposed to be involved in ‘governance’. However, the effort of the Indian judiciary to infuse accountability in the functioning of government institutions, and the growth and development of human rights jurisprudence has demonstrated the central importance of judicial governance.102 This has posed critical challenges to parliamentary accountability and executive powers and, more importantly, reinforced the need for improving the efficiency and effectiveness of governmental institutions.

The need for social reform preceded the conferment of the role of guardian of individual rights on the judiciary by the Constituent Assembly. Hence, the protection of liberties within the constitutional framework needed to be balanced with the achievement of social reform. The Supreme Court perceived itself as an institutional guardian of individual liberties against political aggression. In that regard, it went beyond the framers' vision of achieving an immediate social revolution. It took upon itself a role similar to that of the United States Supreme Court as defined by Chief Justice Marshall in Marbury v. Madison (1803).103 This perception led the court to develop implied limitations on the powers of the political branch that is analogous to the US judiciary's approach to the separation of powers. The best known of these implied limitations, the ‘basic features limitation’, precludes the amendment of the Constitution by Parliament in ways that displace its basic features.104

(p.208) Civil Society Expectations

Legal provisions relating to human rights as a normative framework provide little guidance and help for the masses in India who are aspiring to fulfil their basic rights, in particular their right to acquire and experience the basic needs of survival and existence. Civil society seeks to enforce good governance so that all human rights are promoted and protected.105

Undoubtedly, the wider civil society has embraced the notion of judicial governance, given the fact that it provides certain social expectations for creating accountability. The relaxation of the rules of locus standi, recognition of a range of human rights under the ‘right to life’ provision of the Constitution, and the development of public interest litigation106 are important milestones in meeting civil society expectations on the working of the judiciary.107 However, given the range of injustices in our society, institutional responses, including those of the judiciary, need to be further expanded.108 The Indian experience has demonstrated that the initial judicial recognition of human rights has culminated in the passage of an amendment that guarantees the fundamental right to education.

If democracy is to become meaningful in India, it should be based on two important factors: the enforcement of the rule of law and the reform of the political system—each dependant on the other.109 The judiciary is well-suited to support both these initiatives.

(p.209) Information

One of the most effective tools for reducing corruption in the functioning of governments has been the effective use of the right to information,110 which underlines the importance of transparency and accountability in governmental functioning.111 While there are bottlenecks in the right to information framework, this approach has great potential for throwing open the institutions of government to public accountability.112 It ensures that the powers exercised by the state and its instrumentalities are subject to public scrutiny and, more importantly, serious accountability. Accordingly, wide ranges of possibilities are available for using the information to create an accountable and transparent framework of governance.113

Media

The role of media in the fight against corruption is critical. Worldwide, the media has played an important role in bringing the instances of violations of access to justice to the public domain. The media has played a dominant role in raising issues of development and how corruption has contributed to it. This role needs to be further improved and the media needs to take more responsible steps to act as a custodian of India's democracy and rule of law. It is important to promote the role of media as the availability and dissemination of information becomes complex. In many cases, there is a need for experts in different fields to understand the nature of investments made and the financial transactions involved in allegations of corruption.114 The media has the necessary human and other resources to seek this information, analyse it, and make it available for the public to (p.210) understand. This role of media is critical for raising awareness and contributing to the empowerment of the wider civil society.115

Civil Society

The role of civil society is central to the fight against corruption. Corruption and the lack of access to justice are symptomatic of a larger problem within societies.116 The only way to reduce corruption and provide for mechanisms that create greater access to justice is to empower civil society.117 The role of domestic and international civil society is important as it is the best placed to situate the problem of corruption from the standpoint of access to justice.118 Once recognized as such, the strategies that may be adopted for fighting corruption may include a variety of democratic measures that will put pressure on governments to deal with the problem of corruption.

Training of Legal Officers

While the proposed ICAC will be engaged in the prosecution of persons against whom it has initiated proceedings, there needs to be an emphasis on the training of legal officers. In the past, many of the anti-corruption proceedings initiated in India have not resulted in convictions.119 There numerous factors for this, many of which may be beyond the proposed ICAC's powers and mandate to investigate or rectify. But one of the reasons could be the lack of sufficient expertise and experience of legal officers in handling such cases.

There is a need to provide for a regular, substantive, and sustained training of legal officers by both domestic and international experts with a view to enhancing the substantive and procedural knowledge relating to the legal framework as well as advocacy skills that may be (p.211) useful to pursuing these cases in the courts. The training programmes should become an ongoing feature and should become institutionalized within the working of the ICAC.

Training of Judges

There is a need to emphasize the training and sensitization of judges to deal with corruption cases. The judiciary is a very important organ of the government and is entrusted with the responsibility to ensure that the other organs act in accordance with the Constitution.120 Corruption violates the spirit of the Constitution besides undermining the democratic ideals and principles of the constitution.121 The judiciary has to play a very important role in India to ensure corruption-free governance.122 In this context, the proposed ICAC may have to work with the judicial training academy and other members of the judicial fraternity, including senior members of the judiciary, to impress upon them the need for training judges to deal with cases relating to corruption.123 The exact modus operandi of the training, including who will be responsible for the actual training, are details that will have to be decided by the judiciary itself, and independence of judiciary should not be undermined in any way in this process.124

Creating Increased Citizen Awareness

Creating increased awareness among citizens about corruption and its effects is another important element in combating corruption—particularly when this group awareness is accompanied by the public's ability to act as a group against it. The need for creating awareness through a wide range of mechanisms is critical for corruption. The awareness should be focused on all aspects of the problem of (p.212) corruption, including its causes and consequences. The efforts of the government to eliminate corruption and the information relating to the institutional mechanisms that are put in place to investigate allegation of corruption need to be widely disseminated. The purpose of the awareness should be both to inform and to empower citizenry.

Conclusion

The problem of corruption, when examined as a human rights issue, produces an entirely new and indeed important approach to ensure that good governance remains the goal of public administration in India. In the context of Hong Kong (or Singapore), the success achieved in combating corruption may not have been sustained, if it had remained purely within the domain of law enforcement and public policy discourse. Community education and participation of the people in generating an attitudinal change was deemed one of the initial goals of the ICAC's approach. There is a need for the empowerment of the people of India to fight against corruption on the basis of developing certain rights against corruption.

The human rights approach to corruption control mechanism makes the people of India central players in the corruption resistance movement. The law enforcement work of the government to ensure corruption-free governance ought to be perceived as a part of the right of the people of India to seek a corruption-free government. Concomitantly, it then becomes the duty of the government to ensure that all of its affairs are conducted in a manner that promotes transparency, accountability, and integrity in public administration. The human rights approaches of corruption control mechanisms are expected to enhance the institutional approach of the proposed ICAC's fight against corruption in India. Constitutional governance is an important dimension of the rule-of-law framework that needs to be established in India. If this framework needs to work in the context of various social, economic, and political transitions that occur in India, the anti-corruption initiatives should be integrated with the human rights discourse and ensure collaborations with in countries (p.213) that have successfully managed to curb the menace of corruption to a large extent.

Corruption is a significant impediment to the achievement of good governance in India.125 While it has been noted that criminal law and public policy approaches to the problem have been met with mixed results, there has not been any serious effort to develop a human rights approach to corruption. The right to information in India needs to be integrated with the right to transparency126 and the right to corruption-free governance. This approach integrted to handling corruption will ensure that the political and bureaucratic machinery in India is accountable to its people.

Accountability is infused by building legal and institutional mechanisms so that official corruption is not tolerated at any level of the decision-making process.127 The change of political culture in India is possible only if the right to corruption-free governance is guaranteed through the empowerment of the Indian citizenry.128 It is in this context that the role of the media and other members of civil society become important. The media should expose the corrupt actions of politicians and bureaucrats. Strengthening of the judiciary should be accompanied by the passage of laws, rules, and regulations that are intended to punish acts of corruption. The problem of corruption has the potential to affect democratic decision-making, and has threatened the rule of law in India. While the foundations of democracy are deeply rooted in India, corruption has undoubtedly sowed the seeds of civic and political discontent. Furthermore, the lack of political and bureaucratic transparency and accountability culminate in a sense of callous indifference among the people. Indeed, these discouraging trends in Indian society must be thwarted by the rights-based approach to fighting corruption, which is one way to extend accountability mechanisms for the promotion of good governance.

Notes:

(1) Moshe Maor, ‘Feeling the Heat? Anti-corruption Mechanisms in Comparative Perspective’, 12 Governance 1 (2004).

(2) Ibid.

(3) Ibid.

(4) See Alan Doig and Stephanie Mclvor, ‘Corruption and Its Control in the Developmental Context: An Analysis and Selective Review of the Literature’, 20 Third World Q. 657 (1999).

(5) Transparency Intʼl, ‘Confronting Corruption: The Elements of a National Integrity System’, 96 (2000), available at http://www.transparency.org/publications/sourcebook (last visited 17 June 2009).

(6) Doig and Mclvor, ‘Corruption and Its Control in the Developmental Context’.

(7) Ibid.

(8) Maor, ‘Feeling the Heat?’

(9) Ibid.

(10) Ibid.

(11) Sunil Sondhi, ‘Combating Corruption in India: The Role of Civil Society’ 18–26, Paper for XVIII World Conference of the Int’l Pol. Sc. Assoc. (2000), available at http://www.sunilsondhi.com/resources/Combating+Corruption.pdf (last visited 11 May 2011).

(12) See Upendra Baxi, The Crisis of the Indian Legal System (1980) (Noida: Vikas Publishers).

(13) Transparency Intʼl, ‘Confronting Corruption’, p. 104.

(14) Doig and Mclvor, ‘Corruption and Its Control in the Developmental Context’.

(15) Brian C. Harms, ‘Holding Public Officials Accountable in the International Realm: A New Multi-layered Strategy To Combat Corruption’, 33 Cornell Intʼl L.J. 159 (2000).

(16) Maor, ‘Feeling the Heat?’.

(17) Ibid.

(18) See Baxi, Liberty and Corruption.

(19) Ibid.

(20) Ibid.

(21) John R. Heilbrunn, ‘Anti-corruption Commissions: Panacea or Real Medicine to Fight Corruption?’ (2004), available at http://siteresources.worldbank.org/WBI/Resources/wbi37234Heilbrunn.pdf. (last visited 19 June 2009).

(22) For a good analysis of this issue, see Shamnad Basheer, ‘Hazare and the Potential Curing of a Democratic Deficit?’ Law & Other Things (19 April 2011), available at http://lawandotherthings.blogspot.com/2011/04/hazare-and-potential-curing-of.html (last visited 20 May 2011). For a critique of government's Lokpal Bill, see Iftikhar Gilani, ‘The Fatal Flaws in the Government's Lokpal Bill’, Tehelka (25 May 2011), http://www.tehelka.com/story_main49.asp?filename=Ws050411ACTIVISM.asp (last visited 26 May 2011). See also ‘Bring Private Sector under Lokpal Bill’ The Hindu (15 April 2011), available at http://www.hindu.com/2011/04/15/stories/2011041555360700.htm (last visited 26 May 2011).

(23) Baxi, Liberty and Corruption.

(24) Heilbrunn, ‘Anti-corruption Commissions’.

(25) For a similar argument for establishing the ICAC in Japan, see C. Raj Kumar, ‘Corruption in Japan: Institutionalizing the Right to Information, Transparency and the Right to Corruption-free Governance’, 10 New Eng. J. Intʼl & Comp. L. 29 (2004).

(26) Heilbrunn, ‘Anti-corruption Commissions’.

(27) Ibid.

(28) Ibid.

(29) Harms, ‘Holding Public Officials Accountable in the International Realm’.

(30) Susan Rose-Ackerman, ‘Political Corruption and Democracy’, 14 Conn. J. Intʼl L. 363 (1999).

(31) Ibid.

(32) Claes Sandgren, ‘Combating Corruption: The Misunderstood Role of Law’, 39 Intʼl Law. 717 (2005).

(33) Baxi, Liberty and Corruption.

(34) Sandgren, ‘Combating Corruption’.

(35) Baxi, Liberty and Corruption.

(36) Ibid.

(37) Baxi, The Crisis of the Indian Legal System.

(38) Ibid.

(39) AIR (1998) SC 889.

(40) Sondhi, ‘Combating Corruption in India’.

(41) Sandeep Shastri, ‘Integrity Assessment’, in Center for Public Integrity (ed.), Global Integrity: An Investigative Report Tracking Corruption, Openness and Accountability in 25 Countries: India 7 (2004), available at http://www.globalintegrity.org/reports/2004/docs/2004/2004India.pdf. (last visited June 20, 2009).

(42) Sondhi, ‘Combating Corruption in India’.

(43) Ibid.

(44) Ibid.

(45) Baxi, The Crisis of the Indian Legal System.

(46) Ibid.

(47) Arvind Verma, ‘Cultural Roots of Police Corruption in India’, 22 Policing: Intʼl J. Police Strategies & Mgmt. 264 (1999).

(48) Ibid.

(49) Ibid.

(50) Ibid.

(51) For an analysis of the establishment and working of the ICAC in Hong Kong, see Jean A. Yeung, ‘Fighting Corruption: The Hong Kong Experience’, presentation paper for the seminar on International Experiences on Good Governance and Fighting Corruption (17 February 2000) (on file with author).

(52) OECD, ‘Specialized Anti-corruption Institutions: Review of Models’ (2006), available at http://www.oecd.org/dataoecd/7/4/39971975.pdf.

(53) Ibid., p. 35.

(54) Young, ‘Fighting Corruption’.

(55) Ibid.

(56) Vijay Patidar and Ajay Jha, ‘Case Study: India—India: A Model of an Independent ECI’ (Ace Project: The Electoral Knowledge Network), available at http://aceproject.org/ero-en/regions/asia/IN/India%20-%20The%20Embodiment%20of%20EMB%20Independence.pdf (last visited 21 July 2010).

(57) Ibid.

(58) Baxi, The Crisis of the Indian Legal System.

(59) Ibid.

(60) Baxi, Liberty and Corruption.

(61) Ibid.

(62) Ibid.

(63) See Moshe Maor, ‘Feeling the Heat? Anti-corruption Mechanisms in Comparative Perspective’, 17 Governance 1 (2004).

(64) Ibid.

(65) Ibid.

(66) Krishna K. Tummala, ‘Regime Corruption in India’, 14 Asian J. Pol. Sc. 1 (2006).

(67) Ibid.

(68) Ibid.

(69) Jon S. T. Quah, ‘Corruption in Asian Countries: Can It Be Minimized?’ 59 Pub. Admin. Rev. 483 (1999).

(70) C. Raj Kumar, ‘Corruption, Development and Good Governance: Challenges for Promoting Access to Justice in Asia’, 16 Mich. St. J. Intʼl L 475, 568 (2008).

(71) Ibid.

(72) Ibid.

(73) Ibid., p. 569.

(74) Ibid.

(75) Ibid.

(76) Ibid.

(77) Ibid.

(78) Ibid.

(79) Ibid.

(80) Ibid.

(81) Ibid., p. 570.

(82) Ibid.

(83) Ibid.

(84) Ibid.

(85) Ibid.

(86) Ibid.

(87) Ibid.

(88) See Rajeev Dhavan, ‘Judicial Corruption’, The Hindu, 22 February 2002, available at http://www.hinduonnet.com/2002/02/22/stories/2002022200031000.htm (last visited 25 June 2009).

(89) Ibid.

(90) Prashant Bhushan, ‘Judging the Judges’, Outlook (21 January 2009), available at http://www.judicialreforms.org/files/judging_the_judges.pdf (last visited 25 June 2009); A.G. Noorani, ‘Against the Law’, Frontline (October 2008), available at http://www.flonnet.com/fl2523/stories/20081121252308300.htm (last visited 20 May 2011).

(91) See Upendra Baxi, The Crisis of the Indian Legal System.

(92) Ibid.

(93) See S.P. Sathe, The Right to Information.

(94) Ibid.

(95) Ibid.

(96) See S.P. Sathe, ‘Judicial Activism: The Indian Experience’, 6 Wash. U. J. L. & Poly 29 (2001).

(97) Ibid.

(98) Ibid.

(99) Ibid.

(101) Dhavan, ‘Judicial Corruption’.

(102) Sathe, Judicial Activism in India (2006) (New Delhi: Oxford University Press).

(103) For excellent discussions on this see S.P. Sathe, Judicial Activism in India, pp. 25–100.

(104) Ibid., p. 78.

(105) Jon S. T. Quah, ‘Corruption in Asian Countries: Can It Be Minimized?’ 59 Pub. Admin. Rev. 483 (1999).

(106) See Ashok H. Desai and S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’, in B.N. Kirpal et al. (eds.), Supreme but not Infallible: Essays in Honour of the Supreme Court of India, p. 159.

(107) See Upendra Baxi, Courage, Craft and Contention: The Indian Supreme Court in the Eighties (1985) (Bombay: N.M. Tripathi).

(109) Sathe, ‘Judicial Activism’.

(110) Sathe, The Right to Information.

(111) Kumar, ‘Corruption, Development and Good Governance’, p. 572.

(116) Ibid., p. 572.

(119) See Baxi, Liberty and Corruption.

(120) Sathe, Judicial Activism in India.

(121) Bhushan, ‘Judging the Judges’.

(123) Dhavan, ‘Judicial Corruption’.

(125) Maor, note 63.

(127) Sathe, note 96.