PROBITY IN GOVERNANCE: CONCEPT

  •  Probity in governance is an essential & vital requirement for an efficient and effective system of governance & for socio economic development to achieve. An important requisite is absence of corruption, which would entail the benefits of social development schemes as well as the fruits of nation’s economic development to reach the poor in its full vigor as envisaged by the forefathers of our nation.
  • Today only 16% of funds meant for poor reach them, rest all is misappropriated.
  • The other requirements are effective laws, rules & regulations governing public life & most importantly their effective implementation. In fact effective enforcement of law & absence of corruption is a facet of discipline which is fast disappearing from public life in India.
  • If there is no discipline in the society, no real or meaningful development or progress is possible. Corruption and indiscipline feed upon each other. Discipline implies a sense of morality & a sense of honesty towards one’s duties & laws governing the state.
  • In India, indiscipline can be observed in every walk of life, from bribing a traffic policeman for crossing the red light to accusing a female sexually harassed victim of bad character. Nobody seems to have a sense of morality & respect for the rule of law.
  • While in the west a man who rises to position of power develops greater respect for laws, the opposite is true in our country. Here the position of a person determines the ease with which he can escape the laws & regulations. Indiscipline is everywhere whether in public or private sphere, which is detrimental for our society & nation’s growth in the long run

 

PRINCIPLES OF PROBITY

 

  1. Accountability- It is a sense of responsibility towards one’s actions & an obligation to be able to explain the rationale for the decisions taken or the way the duty has been performed. Government should put in place efficient & effective mechanisms to ensure that the executive is held accountable for his practices and decisions.
  2. Transparency- For the proper functioning of the administrative machinery it is imperative that the process is transparent barring the conditions of nation’s security where secrecy is required, so that all the stakeholders have confidence in the system.
  3. Confidentiality- As a condition of employment, all public servants & people involved in a project or a department which pertains to sensitive information, must provide a formal undertaking to the government to keep the information confidential.
  4. Management of conflicts of interest- A conflict of interest in public service arises when the officials involved either try to use the information they have or exploit their position of authority for an unfair advantage either for themselves or for someone else. It is often unavoidable. However policies to deal with potential conflict of interests should be established with a rigorous measure outlined to deal with such cases, rather than deal with such issues on an ad hoc basis.
  5. Leadership – Holders of public office should promote and support these principles by leadership and set an example for others to emulate.

 

 

 

MEASURES REQUIRED FOR ENSURING PROBITY IN GOVERNANCE

For ensuring probity in governance, several legislative measures are necessary, some of which are as below:

  1. Need for enforcing Section 5 of the Benami Transaction( Prohibition) Act 1988
  2. Misfeasance in public office legislation
  3. Necessity for a law providing for confiscation of illegally acquired assets of public servants
  4. Enclosure of a public interest disclosure act
  5. Enactment of a freedom of information Act
  6. Enactment a Lok Pal Bill
  7. Enactment of a Central Vigilance Commission
  8. Establishment of a Civil Services Commission Board
  9. Suggestions of Central Vigilance Commission
  10. Ethics in government act
  11. Strengthening of criminal judicial system

Some of the above measures are discussed below in detail .

 

NEED FOR ENFORCING SECTION 5 OF THE BENAMI TRANSACTION(PROHIBITION) ACT 1988

This act was enacted by parliament in 1988. Clause a of section 2 of this act defines benami transaction as below:

Clause a of section 2:  A “benami transaction” means any transaction in which property is transferred to one person for a consideration paid or provided by another person.

In other words it means a transaction in which the person in whose name the property is held, on papers, is not the actual owner of that property e.g. a father buying a flat for his child.

Section 5:

(1) All properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedures as may be prescribed.

(2) For the removal of doubts, it is hereby declared that no amount shall be payable for the acquisition of any property under sub section 5(1).

This act prohibits a person from entering into benami transactions & disables any person from claiming, that though the property is held in another’s name, he himself is real owner of that.

Suggestions:

  • To implement this act in its true spirit government needs to establish an authority to seize such property under section 5 of the act. It is surprising but true that the central government has not thought of it so far to make rules for the said purpose. Though parliament did not prescribe a limit to do so but 26 years is a long time.
  • Also the act is of general purpose & does not differentiate between public servants & otherwise, which is imperative to be done forthwith.
  • It is important to have a separate & exhaustive law that deal exclusively with public servants as defined by Prevention of corruption act, 1988 & section 21 of Indian penal code. The statute may put the burden of proof on the holder of property to show that it was not acquired by him or her benami It is often seen that public servants issue benami property in name of their wives & kith &kins which needs to be curbed. Thus such a measure needs to be taken on an urgent basis.
  • Transfer of property act 1882&Registration act 1908 should be amended so that acquisition or transfer of any property in favour of or by a public servant would only be through registered instruments ensuring prior scrutiny or post transaction scrutiny. Property transactions without any registered documents, means a substantial loss of public revenue by way of stamp duty & registration charges.
  • The provision must define & cover not only all the public servants but also the family of public servants for the purpose.
  • An independent body to be set up to monitor & regulate the conduct of civil servants.

 

MISFEASANCE IN PUBLIC OFFICE

  • Misfeasance in dictionary terms means a wrongful performance of a normally lawful act.
  • With the focus of governance towards that of a welfare state & the change in socio economic outlook the public servants are being entrusted with more discretionary powers in various forms, such as allotting housing to the homeless or even distribution of natural resources like petrol pumps etc.
  • However, it is often been observed that the public servants use such discretion for their own personal gains. All such acts results in a loss to the state & our constitutional dream of an egalitarian society & socio economic justice can never be achieved if this behavior is not curbed.

Suggestions

A legal framework related to public servants, explicitly stating the conditions for making the public servant responsible for his act of misfeasance is necessary:

  • The principle may deal with both the situations, i.e., a situation where a definite injury had been caused to a third person and secondly where a declaration of wanton abuse of power
  • The principles of quantification of damages need to be defined since an absence of such a criteria may further lead to arbitrariness in implementing the provision of the act.
  • The principle on which liability can be placed on public servants must be clear and must also be a fair principle consistent with need to act fearlessly and must not be capable of comprehending bona fide actions, though may be concerned, of civil servants. It is necessary that the principle must promote good governance.

 

NECESSITY FOR A LAW PROVIDING FOR THE CONFISCATION OF ILLEGALLY ACQUIRED ASSETS OF PUBLIC SERVANTS

There is an absolute necessity to enact a law providing for forfeiture of properties acquired by holders of ‘public office’ (including the offices/posts in the public sector corporations) by indulging in corrupt and illegal acts and deals, in the present state of our country.

The law should place the burden of proving that the attached properties were not acquired with the aid of monies/properties received in the course of corrupt deals upon the holder of that property in case of benami transaction or

  • The burden is on such public servant to account for the sources for the acquisition of disproportionate assets, and if he fails to satisfactorily account for his assets, he is liable to be convicted.
  • In fact Law Commission of India submitted its 166th Report on “the Corrupt Public Servants (Forfeiture of property) Bill” recommending to the Central Government to introduce a Bill in Parliament for forfeiture of illegally acquired properties of corrupt public servants. However the government has still not taken any steps in the desired direction.

 

ENACTMENT OF A PUBLIC INTEREST DISCLOSURE ACT

One of the measures adopted in several western countries to fight corruption and mal-administration is enactment of Public Interest Disclosure Acts, which are popularly called Whistle-blower Acts.

Objective of such an act should be to:

  • Improve the accountability amongst the public servants by encouraging people not to turn a blind eye to corrupt practices taking place around them & report it to the concerned authority
  • The Act should provides for protection of Whistle-blowers from dismissal and victimization by making appropriate provisions in that behalf
  • The Act should provide that the authority receiving such information should be an independent person and not be a part of the concerned government or public sector organization & he should maintain extreme caution in keeping the information confidential & the identity of the whistle blower anonymous.
  • It is necessary to ensure that the Whistle-blowing facility is not abused by malicious employees, out to achieve their personal grievance or grudges. The onus to clarify the same should be left with the appropriate authority. There must be a provision for punishing persons who lay false information out of such inadmissible motives.

 

CENTRAL VIGILANCE COMMISSION

  • CVC was established in 1964 pursuant to the recommendations of the Santanam Committee to advise the government in respect of matters pertaining to maintenance of integrity in administration
  • The jurisdiction of CVC extended to all public servants and employees of central public sector undertakings, nationalized banks and autonomous organizations
  • In Vineet Nair VsUoI case 1997, Supreme court directed the government to give CVC a statutory status & to make it independent coupled with accountability insulating it from political control.
  • Pursuant to the said directions, the Central Vigilance Commission Bill, 1999 was introduced in the parliament in 1999. It appears to be still pending before the Parliament.
  • An idea was floated by the commissioner of Central Vigilance Commission Shri N Vittal. He opined that corruption free governance should be made a fundamental right of the citizens & provisions should be incorporated in Part III of the constitution so that people demand it as their fundamental right & also be included in Part IV so that the state legislate & act in accordance with the guiding principle

 

ETHICS IN GOVERNMENT ACT

 US has in place Ethics in Government act which demands:

  • A person to provides for a full, true and complete disclosure of all kinds of assets including mortgages, movable assets, benefits under trusts and so on within 30 days of joining as a public official.
  • Empowers the Attorney General to bring a civil action in an appropriate US district court against any individual who knowingly and willfully files a false declaration & provides for custody of the declarations
  • It expressly provides that public shall have access to such declarations. Any US citizen is entitled to use the said reports for any lawful purpose & provides for review and scrutiny of these reports by specified authorities.

A similar provision could be put in place in India to promote better accountability & curb the problem of corruption.

 

STRENGTHENING OF CRIMINAL JUDICIAL SYSTEM

This is one of the most important requisites for ensuring probity in governance. The criminal judicial system consists of the police/investigating agency, the prosecuting agency, the advocates, witnesses and finally the judiciary.

Access to justice is based upon the principle that people should be able to rely upon the correct application of law & the implementing agencies do their jobs with utmost integrity. However in reality there are some countervailing factors:

  • Some citizens do not know their rights and also can’t afford legal aid to advocate on their behalf.
  • The most serious challenge is complexity of adjudication as legal proceedings are lengthy & judiciary lacks personnel and logistics to deal with this matter
  • The nexus between the elites, politicians & the bureaucracy doesn’t let the justice reach the common man

What we need today is a transparent mechanism to deal with such a menace & out of the box inventions in the wake of judicial activism. PIL is one of those.

 

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