National Law School of India Review

Volume 17 Issue 1 Article 3

2005

Constitutional Perspectives on Good Governance

Aditya Sudarshan

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 The HM. Seervai Gold Medal for Best Essay in
ConstitutionalLaw 2004

CONSTITUTIONAL PERSPECTIVES ON GOOD GOVERNANCE

Aditya Sudarshan*

This article assesses the Indian Constitution's perspective on the

notion of 'good governance' At a theoretical level, it analyzes the
key aspects of that notion, and shows how a liberal democratic
government is well suited to advancing them. Thereafter, the article
considers both theform and the functioning ofgovernment in India,
as established by its Constitution. It argues that while the nature of
such government is compatible with the idea of good governance, its
effectiveness in practice has been hindered by thefailure of the Courts
to subject politicalparties to constitutionalscrutiny, and to utilize,
for this purpose, the Directive Principlesand FundamentalDuties. It
also argues that amending the Indian Constitution, to expand the
principles ofjudicial and administrativeindependence, as well as to
incorporate the institution of the Ombudsman, would benefit its
working. The conclusion of the article, however, is that,
fundamentally, the governmental structure envisaged by the Indian
Constitution does promote good governance.

I. INTRODUCTION .......................................... 16
II. Two ASPECTS OF GOOD GOVERNANCE ....................... 17
III. CONSTITUTIONS AND CONSTITUTIONALISM .................... 19
IV. THE NATURE OF GOVERNMENT IN INDIA ................. ..... 20
V. THE EFFECTIVENESS OF GOVERNANCE IN INDIA ...... ........... 22
A. A RIGHT To GOOD GOVERNANCE? ................................. 24
B. THEMEANING OF'STATE' .................................. 25
C THE JUSTICIABILITY OF PARTS IV AND IV-A .................... 27
D. INDEPENDENCE OF THE PUBLIC PROSECUTOR ...... .. .......... 31

IVth Year B.A. LLB (Hons.) Student, National Law School of India University, Bangalore.
This article has been published in the STUDENT BAR REVIEW with the kind permission of
the Director, National Law School of India University, Bangalore.
Vol 17 Student Bar Review 2005

E. INDEPENDENCE OF TIE OVIL SERVICES ........... ........... 33

F. CORRUPnON AND TIlE OMuDsMAN .......... .......... ..... 34
VI. CONCLUSION ........................................... ...... 36

I. INTRODUCTION

Contemporary use of the term 'good governance' began with the World Bank's report
on Sub-Saharan Africa, in 1989, where it advanced the argument that economic and
social development hinges on the quality of governance. Today, major international
financial institutions and aid donors are increasingly making reforms towards good
governance a condition for funding, and development agencies in and outside the
United Nations ("U.N.") are emphasizing the role of governance in development.' In
parallel with this, the period from the end of the 1980's onwards has also seen liberal
democracy being widely represented as the ideal form of governance, universally. As a
result, the question of what 'good governance' consists of is of great contemporary
relevance. Moreover, given that the system of governance of anycountryis defined by
its Constitution, it is the constitutional perspective on good governance that is
paramount.

This article is primarily concerned with studying the notion of good governance in
relation to the Constitution of India. India is constituted as a sovereign, socialist,
secular, democratic republic, committed to securing justice, liberty, equality and
fraternity to its citizens. Nevertheless, it is evident that governance in India leaves
much to be desired, characterized as it is by such phenomena as the abuse of the
election process by political parties, the politicization of the judicial and administrative
processes, and widespread corruption. For this reason, in order to determine where
the fault lies with governance in India, it is important to consider whether, and if so
how, the Indian Constitution serves to promote good governance.

There are four sections to the article. The first investigates the notion of 'good
governance' and isolates its two chief aspects, relating, respectively, to the form and
the functioning of government. The second considers one widely accepted model as
to how a constitution ought to establish good governance. The third section analyzes
the Indian Constitution's perspective on the first aspect of good governance,
examining the nature of government that it envisages. The fourth deals at length with
the mechanisms by which it promotes effective governance, and the shortcomings in
those mechanisms, and finally, the article concludes with an overall assessment of the
Indian Constitution's approach to good governance.

See Carlos Santiso, Good Governance and Aid Effectiveness: The World Bank and
Conditionality, 7 GEO. PuB. POLY REV. 1 (2001).
 ConstitutionalPerspectives on Good Governance

II. Two ASPECTS OF GOOD GOVERNANCE

Given that 'good governance' is an adjectival term, it cannot be understood without
first understanding what 'governance' denotes. According to the World Bank, ("the
Bank") governance has three aspects - first, the form of political regime; second, the
process by which authority is exercised in the management of a country's economic
and social resources; and third, the capacity of governments to design, formulate and
implement policies.2 However, the Bank itself is concerned only with the latter two
aspects, which deal with governmental functioning, for the reason that its mandate
excludes consideration of the political dimensions of governance.3 As a result, while it
has pushed for greater transparency, accountability and the rule of law in making the
'neo-liberal' case for limited government and the creation of an environment
conducive to private economic activity, it has not suggested that this entails
subscription to any particular form of government. A comprehensive understanding
of what 'good governance' is, however, requires a consideration of this first aspect of
governance as well.

There is widespread international consensus today that democracy represents the ideal
form of government. Since the late 1980s, with the collapse of communism and the
decline of authoritarian regimes in Eastern Europe, Latin America, Africa and Asia,
democratic government has become a near-universal political aspiration.4 Moreover,
not only does the notion of democracy as it is understood today entail a government
founded on the principle of representation, it is also associated with particular political
institutions and political rights, such as are compatible with liberal political ideology5
The link between democracy and the liberal commitment to individual rights is
evident in the Universal Declaration of Human Rights of 1948,6 Art. 21 of which
mandates free and fair elections, and in the International Covenant on Civil and
Political Rights of 1966,7 Art. 25 of which recognizes a person's tight to take part in

2 WoRLD BANK, WORLD DEVELOPMENT REPORT 2002: BUILDING INSTITTIONS FOR

MARKETS 99-115 (2002).
See Chantal Thomas, Does the "Good Governance Policy" of the International Financial
Institutions privilege Markets at the expense of Democracy?, 14 CONN. J. INT'L L. 551
(1999) [hereinafter Thomas].
4 There is still a body of opinion that supports non-democratic, authoritarian regimes such as
those that exist in China, South Korea and Singapore, but "in the general climate of world
opinion, democratic governance has now achieved the status of being taken to be generally
right." See Amartya Sen, Democracy as a Universal Value, 10(3) J. DEMOCRACY 3, 4 (1999)
[hereinafter Sen].
I Nancy Kendal, Localizing Democracy and Good Governance, 15 PEACE REv. 259, 262
(2003). As a result, other conceptions of democracy, which link it to the achievement of
social and economic justice, have been sidelined.
6 GA Res. 217A(Il), U.N. GAOR, 3ti Sess., Supp. No. 16, at 71, UN. Doc. A/810 (1948).
7 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

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Vol 17 Student BarReview 2005

public affairs, and to participate in genuine elections. A consequence of the ubiquity

of the liberal democratic framework is that concepts such as the rule of law,
governmental accountability, transparency and responsiveness have come to be
regarded as components of 'good governance' in their own right, quite apart from
their perceived role in facilitating neo-liberal economic policy. In this respect,
therefore, the World Bank and other international financial institutions are in
agreement even with those who disagree with their economics. As a result, in relation
to the first aspect of governance (the form of government) 'good governance' is
almost synonymous with liberal democratic governance, founded on representation,
and "grounded in, limited by, and devoted to the protection of individual rights."

If the first aspect of governance, as identified by the Bank, goes to the form of
government, then the second and third aspects are both concerned with the
functioning of that form. They can therefore be treated together as one aspect,
relating, not to questions of the equity or legitimacy of a political regime, but to its
effectiveness. The Bank's advocacy of what its researchers have called the six
dimensions of good governance9 - accountability (including civil liberties), political
stability, effective policymaking and public service delivery, a high quality regulatory
framework, the rule of law (including an independent judiciar) and control of
corruption- is aimed at ensuring that mismanagement does not impair aid
effectiveness, or hinder private economic activity.10 However, although the Bank itself
makes no commitment to advancing liberal democratic government, it has been
pointed out that 'good governance' (in the sense of the aforementioned principles)
and liberal democracy are in fact mutually reinforcing." The working conditions of
liberal democracy public participation, responsive, transparent and accountable
government and the rule of law - enable effective governance, and the functioning of
a liberal democracy is threatened by such phenomena as political corruption and
governmental arbitrariness.12 'Good governance', in its second aspect, requires
mechanisms to combat these evils.

To conclude, the concept of 'good governance' has two aspects. The first, which
relates to the fonn of government, is usually regarded as best exemplified in liberal
democracy. The second, which relates to the efficiency of government, requires that
the process of governance be free from corruption and caprice. Effectively, however,

8 Donald P. Konners & W.J. Thompson, Fundamentals in the Liberal Constitutional

Tradition, in CONsnTIJnONAL POUCY AN) CHANGE IN EUROPE 23, 24 (J. Hesse & N.
Johnson eds, 1995).
9 Carlos Santiso, Governance Conditionalityand the Reform ofMultilateralDevelopmental
Finance: The Role of the Group of Eight, available at http://www.g8/utambo.ca/govem
ance/saatiso2002-gov7.pdf (last visited Apr. 5, 2004) [hereinafter Santiso].
10 See Thomas, supra note 3.
" See Sen,supra note 4.
12See Santiso, supra note 9.

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 ConstitutionalPerspectiveson Good Governance

these two aspects tend to overlap, because several of the principles that constitute a
liberal democracy, such as the rule of law, also contribute to ensuring its effectiveness.
As a result, the extent to which a constitution promotes good governance depends to
a great deal on its success in establishing a liberal democratic framework The typical
process by which this is done is examined in the next section.

III. CONSTITUTIONS AND CONSTITUTIONALISM

The word 'constitution' is used chiefly in two senses. In its narrow sense it refers to a
"written document containing the principles of governmental organization."13 On this
view, the constitution of a State is that "written document or text which outlines the
powers of its parliament, government, courts, and other important national
institutions."14 The other sense of the word denotes simply a system of government.
The United Kingdom, for example, has no constitution in the narrow sense of the
term. Therefore, when the word 'constitution' is used in relation to it, it is used in its
broad sense, as a "description of the whole system of government of a country" 5 - i.e.,
a collection of rules, written and unwritten, legal and non-legal (customs, conventions,
understandings and usages) which describe a government and its operation.16 In this
article, however, it is the narrow sense of the term that is adopted, not only for the
reason that it is the more common usage, but also because it is applicable in relation
to the Constitution of India.

Consistent with the acceptance of liberal democracy as the most preferred form of
government, is the widespread subscription to the philosophy of constitutionalism.
Constitutionalism consists of the notion that the primary function of a constitution is
not to present a purely descriptive "power-map,"' 7 but "to set bounds on political
rule, in order to guarantee the freedom of citizens."' 1 It is said that most modem
wntten constitutions "spring from a belief in limited government" 9 and aim to secure
"the freedom of the individual and his protection against the abuse of power."20 The
purpose of government is conceived of as being the protection of the rights of

1 K.C. WHEARE, MODERN CONSTITUTIONS 3(1960) [hereinafter WHEARE].

1 ERIC BARENDT, AN INTRODUCION TO CONSrntrIoNAL LAW 1 (1998) [hereinafter
BARENDT].
1 See WHEARE,supra note 13, at 1.
16 Francis D. Wormuth, The Origins ofModern Constitutionalism,availableat http;//www.

constitution.org/cmt/wormuth/wormuth.htrn (ast visited May22, 2005).

17See BARENDT, supra note 14, at 6.
is Jutta Limbach, The Concept of the Supremacy of the Constitution, 64 MOD. L REV. 1, 10
(2001).
1 See WHEARE, supra note 13, at 7.

20 Nevil Johnson, Constitutionalism: Procedural Limits and Political Ends, in

CONsITUtIONAL POUiCY AND ClANGE IN EUROPE 46 ([.J. Hesse & N. Johnson eds,
1995).

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Vol 17 Student Bar Review 2005
individuals, and a liberal constitution does confer upon it the power to fulfill that
function. However, it also limits that power via 'negative' obligations, in order that
government "should not itself be destructive of the values it was intended to
promote."" Such a philosophy plays an important role in determining the principles
and institutions espoused by liberal democratic constitutions. Most commonly these
include; a) the idea of the supremacy of the constitution over governmental action; b)
a system of representative government, whereby the sovereign power is delegated by
the people to their elected representatives, for the day-to-day operation of
govenment; c) the separation of powers between the organs of the State - not in the
strict sense of division of legislative, executive and judicial powers among different
entities but in the sense of 'checks and balances'22 (mutual restraints) that they
exercise over each other and d) a declaration of the Fundamental Rights of the
people, which the government may not infringe. A constitution entrenching these
principles would establish 'good governance' in its first aspect- i.e. a liberal democratic
form of government. In order, however, to ensure the efficient functioning of that
government, and thereby 'good governance' in its second aspect, it would need to
effectively marshal those aspects of a liberal democratic government which
intrinsically contribute to its effectiveness, such as the principle of separation of
powers and the supremacy of the constitution, while also providing for structural and
institutional mechanisms to combat corruption and other retarding processes. Does
the Indian Constitution succeed in accomplishing these objectives? This is considered
over the next two sections.

IV. THE NATURE OF GOVERNMENT IN INDIA

The Constitution of India ("the Constitution") has been said to derive its 'spirit' from
the Objectives Resolution adopted by the Constituent Assembly on January 22,
1947.23 That Resolution was to secure to "all the people of India justice, social,
economic and political; equality of status, of opportunity, and before the lw; freedom
of thought, expression, belief, faith, worship, vocation, association and action, subject
to law and public morality,"24 and to provide safeguards "for minorities, backward and
tribal areas, and depressed and other backward classes."25 According to Granville
Austin, the goals that these principles represent, of national unity, democracy and
social revolution, form three strands of a 'seamless web' that runs through the
Constitution. In adopting them, the framers opted to establish a parliamentary
democracy modeled on the example of Britain, and similar in its fundamental

21 M. JAIN, INDIAN CONS'ITUITONAL LAW 6 (2003).

22See S.P. Dwivedi, Doctrine of Separation of Powers, 29 J CONST. PARLIAMENTARY STU1D.
252, 254 (2000) [hereinafter Dwivedi].
2 GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: TE INDIAN
EXPERIENCE 5 (2000).
21 1 LOK SABHA SECRETARIAT, CONSTITUENT ASSEMBLY DEBATES 59 (rev. ed. 1999)
[hereinafter CAD].
25 Id.

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 Constitutional Perspectives on Good Governance

provisions to the written Constitutions of the West. 26 However, the Constitution was
framed in the interim between the dominance of the classical liberalism of the 19th
Century and the neo-liberalism of the late 20th Century, at a time when the idea of a
socialist constitution establishing a welfare state held wide currency. This
circumstance, together with the socio-economic realities prevailing in the country
immediately after independence, resulted in a Constitution that not only embodies the
essence of constitutionalism, but also adds to that philosophy in several important
respects.

The Constitution's comnitment to constitutionalism is undeniable. As a written

constitution, it is supreme over all governmental action. The Supreme Court of India
has pointed out that "no authority created under the Constitution is supreme; the
Constitution is supreme, and all the authorities function under the supreme law of the
land."27 The legislature's power to amend the Constitution is also limited,
procedurally, by the provisions of Art. 368 of the Constitution, and substantively, by
the basic structure doctrine, whereby the fundamental principles that structure the
Constitution are not alterable by amendment.28 The Constitution also establishes a
parliamentary form of representative government, which was preferred to the
presidential form of the kind present in the U.S., for the greater accountability it was
thought to afford. Given such a system of government, where the executive is drawn
from members of the legislature, there can be no strict principle of separation of
powers, but the Supreme Court has recognized that the Constitution "does not
contemplate assumption, by one organ or part of the State, of functions that
essentially belong to another."29 In addition, the Constitution provides for a system of
checks and balances between the organs of the State, exemplified in the Judicial review
of the actions of the legislature and executive, which has been held to be part of its
unamendable 'basic structure'.30 Finally, Part III of the Constitution contains a list of
Fundamental Rights. These primarily civil and political rights cannot be interfered
with by legislation or executive action, and in the event that they are, Art. 32 confers
the Supreme Court, and Art. 226 the High Courts, with the power to declare such
actions void.

However, the nature of government envisaged by the Constitution is not strictly in

conformity with the liberal democratic blueprint. The constitutional obligations
imposed on the government are not solely negative. Not only are some of the rights in
Part III 'positive rights', which require for their fulfilment affirmative action by the
government, as opposed to non-interference, but the entirety of Part IV of the
Constitution is concerned with such obligations. The Directive Principles of that part

26 Dr. BR Ambedkar's speech in response to criticisms of the Draft Constitution reflects this
view, see 7 CAD, supra note 24, at 31-44.
27 Golaknath v. State of Punjab, A.I.R 1967 S.C 1643, 1655.
28 Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461, 1534-36.
9 RamJawaya Kapur v. State of Punjab, Al.R 1955 S.C 549, 556.
30 Minerva Mills Ltd. v. Union of India, AI.R 1980 S.C 1789, 1825-26.

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Vol 17 Student Bar Review 2005
give expression to the principles embodied in the Preamble to the Constitution.
Through the achievement of an egalitarian social order, with universal access to
employment, health and education services, they seek to establish a welfare state.
Austin has identified the Constitution's goal of social revolution as underlying the
provisions of Part IV. Its deviation from a purely liberal constitution is unsurprising,
therefore, because the Constitution is "first and foremost a social document"31
intended to overthrow existing caste and class divisions. Moreover, Part IV-A of the
Constitution, consisting of a list of the Fundamental Duties of citizens, is intended to
entrench in the people a spirit of national unity, and of constitutional morality, which
historically have been absent, and thereby to promote social revolution. Finally, the
provisions of Part XVI of the Constitution, along with Arts. 16(4), 16(4A) and 16(4B),
in Part III, and Art. 46 in Part IV, envisage positive action by the State for the
protection of minorities and backward classes, for their security and to facilitate their
integration into the mainstream of national life. These provisions reflect the
Constitution's welfare-oriented philosophy, one that incorporates, and yet is richer
than, liberal constitutionalismY But while this philosophy itself is laudable, the
undeniable practical failings of governance in India raise questions about the
Constitution's promotion of effective governance, a matter that is dealt with in the
next section.

V. THE EFFECTIVENESS OF GOVERNANCE IN INDIA

At present, India lacks effective governance. The National Police Commission's 1979
report showed how political parties in India often seek to capitalize on caste and
community divisions to secure votes, employing for such purposes "muscle-men and
dadas."3 In recognition of this, the Law Commission has recommended that the
Constitution incorporate provisions specifically regulating the functioning of political
parties, along the lines of the provisions of the German Constitution, in order to
promote free and fair elections.34 There is also increasing concern over political
interference with the civil services and the judiciary. Large-scale, arbitrary transfers of
civil servants have led to the institution of what one commentator has called the
'transfer-raj' in Indian administration. In addition, the need for the judicial process to

31 See GRANVILLE AuIN, THE INDIAN CONSTITUION: CORNERSTONE OF A NATION 50

(1999).
32 The failure of a purely liberal constitution to actively provide for the things that people
"require and expect" is highlighted in Susan Bandes, The Negative Constitution: A
Critique,88 MICH. L. REV. 2271, 2347 (1990).
33 Shrious Maheshwaui, PoliticalReforms for True Governance, 44 INDIAN J. PUB. ADMIN.
307, 310 (1998).
3 LAw GOMISSION OF INDIA, 170m REPORT ON REFORM OF THE ELECTORAL LAws 18-33
(1999) [hereinafter LAW COMMISSION REPORT].
35 Dan Banik, The Transfer-Raj: Indian Civil Servants on the Move, 13 EUR. J.
DEVELOPMENTAL RES. 106, 129 (2001) [hereinafter Banik].

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 ConstitutionalPerspectives on Good Governance

"be kept clean and beyond the reason of whimsical political wills or agendas"36 was
emphasized recently by the Supreme Court, prompted by the 'Best Bakery'
proceedings in Gujarat.3 India has also been consistently ranked one of the most
corrupt countries in the world3 Given this state of affairs, what can be said of its
Constitution's approach to effective governance?

The Constitution's key provisions on governance are those in Part III (the chapter on
Fundamental Rights), Part IV (the Directive Principles) and Part IV-A (the
Fundamental Duties). As mentioned previously, one of the basic features of the
Constitution is judicial review, as an aspect of the principle of 'checks and balances'.39
It has been primarily through this mechanism that the Supreme Court and the High
Courts have sought to enforce effective, constitutional governance. However, on the
prevailing interpretation of Parts III, IV and IV-A, the judicial review of State action
extends only to cases of violation of Fundamental Rights. The Directive Principles
and Fundamental Duties have been used primarily to interpret and expand the scope
of these rights, but not as justiciable provisions in themselves.

Over the years, the Supreme Court has interpreted the Fundamental Rights liberally,
and thereby sought to check below-par governance. In particular, Art. 21 of the
Constitution, which provides that no person shall be deprived of his life or personal
liberty except according to procedure established by law, has received a very wide
interpretation, such that several subsidiary rights have been read into it.40 For that
reason, it has been suggested that Art. 21 can be interpreted to provide a right to good
governance, enforceable by the Courts.*1 It has also been suggested that a right to
corruption- free service should be treated as implicit in Art. 21, as an entitlement of the

36 Zahira Habibulla Sheikh v. State of Gujarat, (2004) 4 S.CC 158, 197.

37 Id.
n Transparency International's 2004 Corruption Perception Index ranked India 90th out of
145 countries. See TI CoRRUPTION PERCEPTIONS INDEX 2004, available at http://www.
transparency.org/cpi/2004/cpi2004.en.html# cpi2004 (last visited June 9, 2005). Further, a
2002 World Economic Forum survey ranked India 45th out of 49 countries, on the honesty
of its officials. See Growth and Corruption in India, availableat http://www.ncpa.org/pi/
intemar/ pdinter/april98elhtml (last visited May22, 2005).
9 See Dwivedi, supra note 22.
See generally PARAMJIT S JASWAL & NISHTAJASWAL, HUMAN RIGHTS AND THE IAw 87-90
(1996); NISHTA JASWAL, ROLE OF THE SUPREMvE GCOURT WITH REGARD TO THE RiGiT TO
LIFE AND PERSONAL IDETITY (1990).
41 Madhav Godbole, Good Governance: A Distant Dream, 39 EcoN. & POL WKLY. 1103
(Mar. 13, 2004) [hereinafter Godbole]. See also S.P. SATHiE, JUDICAL ACTIVISM IN INDIA
123-129 (2002), where the author suggests the possibility of a right to honest and efficient
governance under CONST. OF INDIA art. 21.

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Vol 17 Student Bar Review 2005
citizen.42 However, it will be argued here that not only are there no such rights under
Art. 21, but also that there ought not to be. Instead, it will be argued that both the
scope and the legal force of the provisions of Part IV and IV-A have hitherto been
underestimated by the judiciary, and that on a true interpretation they serve to provide
a wide-ranging and potent tool for effective governance. Finally, three structural
amendments to the Constitution are proposed, with the object of strengthening its
ability to ensure effective governance. These are, first, the extension of the principle
of the independence of the judiciary to the public prosecutor, second, the explicit
establishment of the principle of the separation of the civil service from the executive,
and finally, the constitutional recognition of an Ombudsman, to tackle corruption as a
form of maladministration.

A. A Right to Good Governance?

The argument that Art. 21 guarantees a nght to good governance is simple. The right
to life under Art. 21 includes all those rights which are essential for the dignified
enjoyment of life, 4 and the concept of 'life' in Art. 21 extends to "all that gives
meaning to a man's life.""*In the absence of good governance, it is impossible for
citizens to lead a dignified and civilized life. Therefore, Art. 21 must guarantee a right
to good governance. The Allaliabad High Court has accepted this argument. 5
Nevertheless, it is a fallacious argument for the reason that it is incompatible with the
wording of Art. 21. It is evident from the language of Art. 21 that the right to life and
personal liberty can be restricted according to 'procedure established by law'. This
expression has been interpreted as referring to a procedure that is fair, just and
reasonable.4 For this reason, it has been held that all the rights contained in Art. 21,
including the rights that have been implied into it via interpretation, can be restricted,
and none of them are absolute4 From this it follows that Art. 21 does not
contemplate any right that cannot be restricted by a fair, just and reasonable
procedure. However, the right to good governance, if it existed, could not coherently
be said to be subject to restriction by a fair, just and reasonable procedure, since such
restriction would itself be an instance of 'good governance'. Therefore, such a right

41 See C. Raj Kumar, Corruption and Human Rights: Promoting Transparency ?n

Governanceand the FundamentalRight to Corruption-FreeService in India, 17 COLuM. J.
ASi AN L. 33 (2003).
43 Mohini Jain v. State of Karnataka, (1992) 3 S-CC 666, 679-680. See also Bandhua Mukti
Morcha v. Union of Tndia, (1984) 3 S.CC 161, 183.
4 Ramisharan Autyanuprasi v. Union of India, A.I.R 1989 S.C 549, 552. See also Olga Tellis v.
BombayMunicipal Corporation, Al.R 1986 S.C 180, 193-94.
4 See Gobardhan Lal v. State of Uttar Pradesh, (2000) 2 A.W.C. 1515:
MANU/UP/0316/2000.
46 Maneka Gandhi v. Union of India, A.I.R. 1978 S.C 597, 624. See also Francis Coraie v.
Union Territory of Delhi, A.I.R 1981 S.C 746, 750.
47 State of Punjab v. Ram Lubhaya Bagga, (1998) 4 S.C.C. 117, 132. See also Rai Bahadur
Divran v. The Industrial Tribunal, AI.R 1963 S.c 630, 634.

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 ConstitutionalPerspectiveson Good Governance

would, by its very nature, be an absolute right, and since Art. 21 does not guarantee
any absolute rights, it does not guarantee the right to good governance.

Moreover, it is also undesirable that such a right be recognized. Recently, the former
Foreign Secretary Madhav Godbole, and his colleague E.A.S. Sarma, filed a petition
before the Supreme Court on the state of the civil services in India, arguing for the
recognition of a fundamental right to good governance.48 The Court dismissed the
petition as "not necessary"49 and observed that it was not in favour of recognizing a
right to good governance, as that would entail the Court virtually running the
administration. Its decision is justifiable, given that no organ of the State can "usurp
the functions assigned to another."so Decisions as to governance and policy matters
are essentially the function of the legislature and the executive, and not the domain of
the Courts. 5' From this it follows that there can be no right which requires the Court
to consider questions of policy, in deciding what constitutes good govemance.

The argument for reading into Art. 21 a right to corruption-free service runs along the
same lines as that for recognizing the right to good governance, and is incorrect for
the same reason - namely, that the right to corruption-free service is also intrinsically
an absolute right. In addition, the incorporation of such a right is unlikely to curb
corruption in practice, because recourse to constitutional courts in every instance of
corruption is not a feasible option for most citizens. Instead, as will be argued
subsequently, corruption is best dealt with when treated as a facet of
maladministration, the mitigation of which requires the creation of the institution of
the Ombudsman.

However, this is not to undermine the constitutional role of the Courts in ensuring
effective governance. Although it does not provide any fundamental right to good
governance or corruption-free service, the Constitution, in Parts III, IV and IV-A,
does establish a set of justiciableprinciples of good governance. In fact, the prevailing
judicial interpretation of these principles appears to devalue both the scope of their
application and their legal force.

B. The Meaning of 'State'

All of the Directive Principles and most of the Fundamental Rights are restricted in
their application to the 'State', as defined in Art. 12 of the Constitution. That
definition is ambiguous. It mentions explicitly the Government, the Parliament of
India, the Government and the Legislatures of the States, and local authorities, but

48 See Godbole, supra note 41.

* The order of the Court, dated Apr. 23, 2004, in Madhav Godbole & Anr. v. Union of India
& Ors., available at http://courtnic.nic.in/SuprmeCourt/temp/wc6904p.txt (last visited
Apr. 28, 2004).
so Asif Harmeed v. State of Jammu and Kashmir, AI.R. 1989 S.C 1899, 1905.
5' BALCO Employees Union v. Union of India, A.R. 2002 S.C 350, 362-63.

25
Vol 17 Student Bar Review 2005

also 'other authorities, as falling within the meaning of 'State'. Through a series of
decisions, the Supreme Court has adopted the view that the expression 'other
authorities' refers to the 'agencies' or 'instrumentalities' of the government. The test
used in all cases is whether the authority in question "is merely a cloak or cover for
the government"5 2 i.e., whether, even if it does possess an independent legal
personality, it is in reality the "alter ego"53 of the government. This interpretation of
'other authorities' has been justified on the ground that "the court should be anxious
to enlarge the scope and width of the Fundamental Rights."54 However, although it
correctly recognizes that all avatars of the government are equally subject to the
Fundamental Rights and Directive Principles, it ignores other entities that should also
be. This oversight becomes evident on a consideration of Art. 37 of the Constitution.

Art. 37, after providing that the provisions of Part IV are not enforceable by any
court, states that "the principles therein laid down are nevertheless fundamental in the
governance of the country (italics added)." Now, the Directive Principles it refers to
apply only to the 'State'. If they are fundamental in the governance of the country,
then it follows that 'State' must refer to every entity engaged in the governance of the
country. However, government is not the only entity involved in governance, when
understood as the functioning of a form of government. At least one other class of
entities which are widely recognized as crucial to governance in a parliamentary
democracy like India, are political parties. The Law Commission of India has pointed
out in its 170Lh Report that "a parliamentary democracy without political parties is
inconceivable,"55 and that in India "it is the political parties that form the government,
man the Parliament and run the governance of the country (italics added)."56 The
Supreme Court itself, in S.R. Bommai v. Union of India57 noted that "one cannot
conceive of a democratic form of Government without the political parties. They are
part of the political system and constitutional scheme. Nay, they are integral to the
governance of a democratic society."58 If that is so, then political parties are
undoubtedly 'State' for the purposes of Part IV of the Constitution, and since the
term has the same meaning for Part III, for it as well. In addition, since the Supreme
Court has also established that the Fundamental Duties in Part IV-A apply not just to
citizens but also to the State,59 they must therefore apply to political parties as well. In
Bommai's Case, while holding that political parties could not contravene the basic
features of the Constitution, the Court observed that it was its "duty.. to interpret

52Central Inland Water Transport Corporation v. Brojo Nath Ganguly, A.I.R 1986 S.C 1571,
1608.
5 Som Prakash v. Union of India, A.I.R 1981 S.C 212, 218.
5 Ajay Hasia v. Khalid Mujib, A.I.R 1981 S.C. 487, 493.
5 See LAW COMMISSION REPORT, supra note 34, at 43.
5 Id.
57 (1994) 3 S.C.C 1.
5' S.R Bommai v. Union of India, (1994) 3 S.CC 1, 236.
5 AIIMS Students Union v. AIMS, AlR 2001 S.C 3262,3280.

26
 ConstitutionalPerspectives on Good Governance

the Constitution to bring the political parties within the purview of constitutional
parameters for accountability.YCo The interpretation of 'State' suggested here is in
furtherance of that duty.

If the Constitution mandates that political parties must conform to Parts III, IV and
IV-A, then every aspect of their functioning, which has hitherto been considered
unregulated, becomes open to scrutiny. For example, parties that actively engage in
casteist or communal politics, and utilize force to procure votes, are violating Art. 21,
for failing to respect the dignity of individual citizens, as well as the fundamental duty
in Art. 51A(e), to promote harmony and the spirit of common brotherhood. The
internal organization and political goals of political parties must also be in conformity
with the Constitution. Therefore, parties that in their internal organization deny equal
opportunities to members on any of the grounds listed in Art. 15(1) religion, race,
caste, sex or place of birth - or that espouse ambitions which are inconsistent with the
Directive Principles, are thereby acting unconstitutionally. For these reasons, although
it is undoubtedly true that the Constitution ought to contain substantive provisions
defining political parties so as to give them explicit constitutional status, as the Law
Commission has recommended, it would be wrong to suggest that it does not at
present regulate their working.

C. The Justiciabilityof PartsIV and IV-A

The other aspect of the Constitution's theory of governance, the true potential of
which has so far been ignored, is the legal force it assigns to the Directive Principles
and the Fundamental Duties. Although the Fundamental Rights are undoubtedly
justiciable, since Arts. 32 and 226 of the Constitution explicitly provide for their
enforcement, the opposite appears at first blush to be the case with the Directive
Principles. Art. 37 of the Constitution begins by providing that "the provisions
contained in this Part shall not be enforceable by any court". The Supreme Court has
consistently interpreted this as meaning that the Directive Principles are not
justiciable.61 As a corollary of that view, it has also held that if a legislation or
executive action conflicts with a directive principle, the Court cannot declare it invalid
for that reason. 62

As per the prevailing judicial view, the primary utility of the Directive Principles is
only in interpretation, both in expanding the scope of the Fundamental Rights and in
determining whether laws imposing restrictions on these rights are reasonable, and
therefore valid. On the theory that the Fundamental Rights are a means to achieve
the ends specified in the Directive Principles, several of these principles (such as the

6 See S.R Bommai, (1994) 3 S.CC. at 175.

61 Deep Chand v. State of Uttar Pradesh, A.I.R. 1959 S.C. 648. See also 2 HM. SEERVAI,
'ONSTITUITONAL LAW OF INDIA 1033 (1976).
62 See Deep Chand, A.I.R 1959 S.C. 648.

27
Vol 17 Student Bar Review 2005

provision for free legal aid in Art. 39A6) have been read into Art. 21, thereby allowing
the Courts to enforce then Although such interpretations have enabled the Courts to
advance the goals specified in Part IV, it has been pointed out that the "'Directive
Principles as Fundamental Rights' theory is far from being clear from a jurisprudential
point of view."> Perhaps pan of the reason for the Court's espousal of such an
interpretation is the belief that it represents the only way that the Directive Principles
can be used effectively by the judiciary, as a tool to ensure good governance.
However, a closer examination of Art. 37 reveals that the Supreme Court's view that
the Directive Principles are not justiciable is incorrect, and that in fact they furnish, in
their own right, a set of judicially manageable principles delimiting State action.

Art. 37 provides only that the Directive Principles are not enforceable by any Court.
To 'enforce' means to -put into execution; to cause to take effect; to compel
obedience."6 5 'Enforcement' refers to the "execution of a law."66 Therefore, to state
that the Court cannot enforce a legal provision is to state only that it cannot issue
writs or orders to compel obedience to it. The reason that the Directive Principles are
made unenforceable is that the decision as to how and when to implement their
mandate is rightly that of the legislature and executive, not the judiciary. However, to
arrive at the conclusion that the Directive Principles are notjusticiableby virtue of the
fact that they are not enforceable is an error. Justiciability is distinct from
enforceability. In A.K Kaul v. Union ofIndia,67 the Supreme Court noted that: "On
account of want of judicially manageable standards, there may be matters which are
not susceptible to the judicial process. Such matters are regarded as non-justiciable.">
Thus, to say that a matter is justiciable - Lie., susceptible to the judicial process - is to
say that a judgment on it can be pronounced. Now, the concept of a 'judgment' was
explained in Gurdit Singh v. State ofPunjab,6 as follows:

A judgment of a court is an affirmation, by the authorised societal

agent of the state, speaking by warrant of law and in the name of the
state, of the legal consequences attending a proved or admitted state
of facts. Its declaratory, determinative and adjudicatory function is its
distinctive characteristic7o

63 Hoskot v. State of Maharashtra, (1978) 3 S.C. 544, 556-57.

64 Parmanand Singh, Fundamental Right to Reservation: A Rejoinder, (1995) 3 S.CC (J.) 6,
10.
65 BLACK'S LAW DICTIONARY 528 (6th ed. 1990) [hereinafter BLACK'S].

66 Id.
67 (1995) 4 S.CC 73.
68 A.K Kaul, (1995) 4 S.CC at 83.
69A.K 1974 S.C 1791.
7 GurditSingh, A.IR 1974 S.C at 1794.

28
 ConstitutionalPerspectives on Good Governance

The essence of a judgment is therefore a declaration.Judgments may be executory,

which both declare the rights of the parties and order for certain action to be taken as
a consequence. However, they may also be purely declaratory- "an adjudication of the
rights and status of litigants, even though no consequential relief is awarded."" This
suffices to show that a legal provision may be justiciable, without being enforceable.
In such cases, notwithstanding the unenforceabiliry of the provision in question, the
Court would nevertheless have the power to issue declaratory judgments based on it.

It follows from the above analysis that when Art. 37 provides that the Directive
Principles are not enforceable, this cannot be read to mean that they are not
justiciable. Furthermore, this conclusion is also supported by the legislative history of
Art. 37.

Clause 10 of the draft of the Constitution prepared by the Constitutional Adviser,

B.N. Rau, which was subsequently placed before the Drafting Committee of the
Constitution, read as follows:
The principles of policy set forth in Chapter III of this Part are
intended for the guidance of the State. While these principles are not
cognizable by any court, they are nevertheless fundamental in the
governance of the country and it shall be the duty of the State to
apply these principles in making laws?.

A marginal note appended to the clause read: "Cf Irish Constitution, Art. 45."7 Art.
45 of the Irish Constitution is almost identical to Rau's clause, and it too uses the
word 'cognizable.'74 Rau's clause was inserted into the Draft Constitution on
November 1, 1947, but subsequently on January 20, 1948, it was revised and the word
cognizable' was replaced with 'enforceable.'75 Now, a 'cognizable' matter is a
'justiciable' matter, one that is "within... the power given to the court by law to
adjudicate the controversy."76 It seems most likely that if the word 'cognizable' (which
has the same meaning as 'justiciable') in Rau's draft, was expressly replaced with
'enforceable' in the final Draft Constitution, this was in conscious recognition of the
different legal effects of the two concepts. Therefore, Art. 37 cannot be interpreted so
as to negate the justiciability of the Directive Principles.

7' See BLACK'S, supra note 65, at 409.

72 Draft Constitution hy the ConstitutionalAdviser, in 3 B. SHIVA RAO, Tm FRAMING OF
INDIA'S CONSTITUITON: SELECr DOCaTirS 7 (1968) (emphasis supplied).
73 Id.
74 See J.M. KELLY, THE IRISH CONSTITUTION 1117 (1994).
75 See Joseph Minattur, The Unenforceable Directives in the Indian Constitution, (1975) 1
S.CC 0.) 17
76 Samuel Goldwyn Inc. v. United Artists Corporation, 113 F.2d. 703, 707, CCA. 3 (Del.), Jun.
29, 1940.

29
Vol 17 Student Bar Review 2005

If the Directive Principles are justiciable, though not enforceable, then it follows that
the Courts have the power to declare invalid any legislation or executive action that
violates a Directive Principle. Further, if that were not the case, then the statement in
Art. 37 that these principles are "fundamental in the governance of the country"
would also be largely devoid of meaning. In addition, it cannot be disputed that the
determination of the relationship of a State action to the policies prescribed in Part IV
is judicially manageable. This was the premise of the invalidation by the Supreme
Court of the latter portion of Art. 31C of the Constitution, which was inserted by the
25th Amendment to provide that "no law containing a declaration that it is for giving
effect to such policy shall be called in question in any court on the ground that it does
not give effect to such policy."77 It has been held subsequently that the Court is
competent to determine whether a law gives effect to a Directive Principle7 It
follows that it is competent to determine whether a law contravenes a Directive
Principle as well. If the analysis conducted here is correct, then in such cases it would
be open to the Court to declare the law invalid. Such a declaration would be an
authoritative statement of the status of the law, and therefore can be expected, in the
vast majority of cases, to be respected by the executive, even in the absence of judicial
orders for its enforcement.

As to the Fundamental Duties in Part IV-A of the Constitution, there have been
comparatively few judicial pronouncements on them. The Constitution itself is silent
on whether or not these duties are justiciable. In the most recent decision involving a
fundamental duty - Art. 51A(a), the duty to respect the National Flag - the Supreme
Court declined to consider this question.Z However, its observation that the
"question as to whether Article 51-A is not justiciable or enforceable... takes a
backseat"so indicates that the Court has again failed to realize that justiciability and
enforceability are two different questions. In that light, a previous decision of the
Supreme Court, AIMS Students Union v. AIIMS,81 where it was held that
Fundamental Duties are not enforceable by writ, may indicate that the Court's view is
that they are on par with the Directive Principles. On the other hand, after holding
that the duties applied to the State, in addition to citizens, the Court in that case also
stated that "constitutional enactment of Fundamental Duties, if it has to have any
meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting
away from constitutional values."82 If this is taken to mean that State actions in
violation of the Fundamental Duties can be declared invalid by the Court, it is an
accurate proposition. As in the case of the Directive Principles, the Fundamental
Duties cannot be enforced by the Court against the State, because to do so would

1 See KesavanandaBharati,A.I.R 1973 S.C at 1607-09.

78Assam Sillirnanite Ltd. v. Union of India, A.R 1992 S.C 938, 945.
9Union of India v. Naveen Jindal, (2004) 2 S.C.C 510, 548.
80Id.
81See AIIMS Students Union, A.I.R 2001 S.C at 3281.
82 Id.

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 ConstitutionalPerspectives on Good Governance

require decisions of policy, but the general principle of the supremacy of the
Constitution over State action, and the Court's power to review such action against
the provisions of the Constitution, would nevertheless apply. The Supreme Court has
pointed out that "this power of judicial review is... implicit in a written constitution
and unless expressly excluded by a provision of the Constitution, the power of judicial
review is available in respect of exercise of powers under any of the provisions of the
constitution." 8' It follows that, like the Directive Principles, the Fundamental Duties
can also be used by the Courts to invalidate laws and executive actions that contravene
them.

The above analysis illustrates the potential of judicial review as a mechanism to

promote effective governance, particularly as regards the working of political parties,
under the Indian Constitution. However the other important hurdles to effective
governance in India- political interference with the judicial and administrative
processes, and corruption- are problems that the Constitution fails to address
adequately.
D. Independence of the PublicProsecutor
The concept of the independence of the judiciary has been held to be part of the
Constitution's basic structure.84 Several constitutional provisions, such as those
relating to the appointment, removal, transfer and salary of judges of the Supreme
Court and High Courts serve to insulate the judiciary from governmental interference.
In addition, the independence of the judiciary, including the subordinate judiciary, has
been enhanced through constructive interpretation by the Supreme Court.85 However,
one important omission in the principle of the independence of the judiciary as
recognized by the Constitution, which is clearly discernible from the recent Best
Bakery episode, is that of the independence of the publicprosecutor.

The conduct of the Best Bakery case in the Gujarat High Court, involving the burning
down of an establishment in Vadodara called 'Best Bakery' on the night of 1 March
2002, which caused the death of 14 persons, came up for consideration before the
Supreme Court in April 2004,86 leading to what Rajeev Dhavan has described as "its
severest indictment ever of the justice and governance system of any State." 87 The
Supreme Court, in ordering a retrial of the matter in the Maharashtra High Court,
observed that in Gujarat, "the investigation appears to be perfunctory and anything
but impartial without any definite object of finding out the truth and bringing to book

83 See A.K Kaul, (1995) 4 S.CC at 83.

84 Kumar Padma Prasad v. Union of India, A.I.R. 1992 S.C 1213, 1232.
See Supreme Court Advocates on Recond Organization v. Union of India, A.I.R 1994 S.C
268; Reference on the Principles and Procedures regarding appointment of Supreme Court
and High Court Judges in 1998, A.I.R. 1999 S.C 1.
86 Zabira Sheikh, (2004) 4 S.CC 158.
87 Rajeev Dhavan, Justice in Gujarat, THEM HINDU, Apr. 16, 2004, availableat http://www.
hindu.com/2004/04/16/stories/200404160023 1000.htm (last visited June 7, 2005).

31
Vol 17 Student BarReview 2005
those who were responsible for the crime"u and that the "public prosecutor appears
to have acted more as a defence counsel than one whose duty was to present the truth
before the Court."" These events bring to light a serious flaw in the system of justice
administration in India. The public prosecutor in India is an executive officer. He
represents the State and not the people, and is independent from the executive to only
a very limited extent.90 As such, the constitutional principle of separation of the
judiciary from the executive does not apply to the public prosecutor.
The Italian Constitution, on the other hand, is one that does make provision for the
independence of the public prosecutor. Art. 104(1) of the Italian Constitution
provides that "the judiciary constitutes an autonomous and independent branch of
government not subject to any other,"9' and Art. 104(3) makes the general public
prosecutor a member of the judiciary. In addition, Art. 108(2) provides that "the law
has to protect the independence of judges, of special courts, of the public prosecutors
attached to them, and of all those not belonging to the judiciary who participate in the
administration of justice." This has been described as "a system that offers an
unprecedented degree of freedom and independence in the execution of judicial duties
and the discharging of its functions, especially in cases involving the state, the
government and its officers."2 The Indian Constitution fails to note that securing the
independence of the judges does not secure the independence of the judicial process,
as is clear from the Best Bakery Case,93 because other players, in particular the public
prosecutor, are integral to that process as well. As a result, the incorporation of the
principle of the independence of the public prosecutor into the Indian Constitution by

88 See Zabira Sheikh, (2004) 4 S.C.C at 197.

S9 I
9o A line of Supreme Court decisions, from State of Bihar v. Ram Naresh Pandey A.IR 1957
S.C 389, to State of Orissa v. C Mohapatra, (1976) 4 S.CC 250, treated the public
prosecutor as first and foremost an executive officer. Although the Court has, in the period
after 1978, begun to emphasize those aspects of the prosecutor's role in which he is
independent of the Government (such as withdrawal of prosecution) in cases like Balwant
Singh v. State of Bihar, (1977) 4 S.CC 448 and Sheonandan Paswan v. State of Bihar,
A.I.R 1987 S.C. 877, the absence of a clear statement of principle on this issue has enabled
several States to subvert prosecutorial independence. The Urtar Pradesh legislature, for
example, has strengthened the power of the Government to appoint public prosecutors by
amending the INDIA CODE CRIM. PROC (1973).
91 CONsT. OF ITALY, availableat http://www.electionworld.org/italy.htrn (last visited May 5,
2004).
92 Carlo Rossetti, The Prosecution of Political Corruption: France, Italy and the USA, 13
EUR J. Soc Sa. 169, 171 (2000).
93 The case is currently being retried in Maharashtra before Special Judge, Abhay Thipsay, as
ordered by the Supreme Court. The retrial has been marred by controversy surrounding the
turning hostile of the chief prosecution witness, Zahira Habibulla Sheikh, raising fresh
issues as to the absence of adequate witness protection programs in the country See Bakery
Case: Court Issues Summons to Zaheera, OUTLOOK, Apr. 20, 2004, available at http-I/
www.outlookindia.com/ptinews.asp?id=293481 (last visited June 7,2005).

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 ConsitutionalPerpectives on Good Governance

amendment, and the constitutionalization of the office of the public prosecutor,

would greatly benefit governance in India.

E. Independence of the Civil Services

Part XII of the Constitution contains what the Supreme Court has described as
"provisions to protect civil service, as far as possible, from political or personal
influence and give it that position of stability and security, which is vital to its
successful working as an impartial and efficient instrument of the State."41However,
one of the incidents of government service is susceptibility to transfers of posting, of
which the Constitution makes no mention. In the last several years, the rate at which
transfers of civil servants are being effected prompted one newspaper to comment:
"Officials at all levels are repeatedly shifted from station to station in utter disregard
of the tenure policies or any concern about the disruption of public services delivery
and the adverse effect on the implementation of development programmes.""5 In
2000, the Allahabad High Court invalidated a transfer order and issued guidelines for
effecting transfers, with the observation that "over the last few decades there has been
continuous politicalisation (sic) of the bureaucracy and harassment of the Govern-
ment servants due to political interference."96 However, the decision was overruled by
the Supreme Court in April of 2004, where it was held that transfers were an inherent
condition of service and -that the order of transfer made even in transgression of
administrative guidelines cannot also be interfered with, as they (sic) do not confer any
legally enforceable rights, unless... shown to be vitiated by malafides or is (sic) made
in violation of any statutory provision."7

9 In Re: Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000) 4
S.CC 309,312.
5 Indian Express Newspapers Ltd., The Era of Transfer Raj, INDIAN EXPREss, Nov. 12,
1998, at 1.
96 See GobardhanLal, (2000) 2 A.W.C 1515.
9 State of Uttar Pradesh v. Gobardhan Lal, AIR 2004 S.C 2165: MANU/SC/0281/2004.

33
Vol 17 Student Bar Review 2005

The Supreme Court's decision illustrates the necessity for the explicit establishment of
the principle of the separation of the civil service from the executive, such as exists in
other Constitutions's but which, unlike the principle 'of the independence of the
judiciary, finds no mention in the Indian Constitution. Although it is undeniable that
transfers in the public interest are necessary for efficient administration, a recent study
concluded that "the current scenario... offers ample evidence that the system does
actually contribute to increasing corruption."" Arbitrary transfers need to be
constitutionally prohibited, and the explicit recognition of the independence of the
civil services would achieve that end.

F. Corruptionand the Ombudsman

The word 'corruption' is most often used to refer to "behavior by a public servant,
whether elected or appointed, which involves a deviation from his or her formal
duties because of reasons of personal gain to himself or herself or to other private
persons with whom the public servant is associated."oo As of now, corruption in
India is dealt with from the perspective of criminal law. The Prevention of Corruption
Act, 1988, which prohibits certain forms of bribery of public servants, is intended "to
consolidate and amend the law relating to the prevention of corruption" by
incorporating, with modifications, the provisions of Chapter IX of the Indian Penal
Code, 1860 and the Criminal Law Amendment Ordinance, 1944. However, it has
been pointed out that "in the history of independent India, there is no instance of a
person holding high position in public life or in bureaucracy having been punished for
corruption."Ic Given how widespread corruption in India is, it is evident that the
criminal law perspective on corruption is inadequate, perhaps for the reason that
"corruption has become so institutionalized in India that it is not sufficient that it be
handled by criminal law."102 Is there a constitutional solution to corruption?

Corruption is not referred to in the Constitution. It has been argued previously that
treating corruption as a violation of Fundamental Rights is not likely to curb it in
practice. Instead, perhaps the best approach is to treat it as a problem of bad
governance.o3 If one of the aspects of good governance is efficient governance, then
corruption is undoubtedly a threat to it. The recent U.N. Convention against
Corruption of 2004 makes mention of "the seriousness of problems and threats posed

98 See, e.g., CONST. OF MALAWI an. 193, available at http://www.sdnp.org/mw/constitut/

ddindx.htmil (last visited May 25, 2005).
9 See Banik, supra note 35.
'o Joseph Lapalomnbara, Structuraland InstitutionalAspects of Corruption,61 Soc RES. 325,
328 (1994).
101S.P. SATHE, JUDICIAL ACTIVISM IN INDIA 147 (2002).
102 C Rajkuniar, Corruption and Human Rights II, FRONTLINE, Oct. 12, 2002, available at
http://www.frontlineonnet.com/thehindu/fline/flnsub.htm (last visited Apr. 6, 2004).
101 See Daniel Kaufman, Corruption should be treated as a problem of Bad Governance, 3
EuR. AFF. 5 (2000).

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 ConstitutionalPerspectives on Good Governance

by corruption to the stability and security of societies, undermining the institutions

and values of democracy, ethical values and justice and jeopardizing sustainable
development and the rule of law."104 Thus, corruption needs to be tackled in a broad-
based manner, as an aspect of maladministration,and experience shows that one of
the most successful institutions worldwide to curb maladrinistration is that of the
Ombudsman.

The institution of the Ombudsman originated in Sweden, and its function was "to
provide oversight in the application of law, promote consistent application of this law
and to point out imprecisions (sic) in the legislature's work."105 Since then it has
spread to a number of countries, including Denmark, Norway, France, New Zealand,
South Africa and England, with modifications suited to local conditions. Typically, the
Ombudsman is an individual of high status appointed by Parliament, but who
functions independently of it. He investigates the complaints of citizens against
government departments and if they are found justified, assists in remedying the
grievance.106 In some countries, he possesses the power to initiate prosecutions
himself; while in others his powers are only persuasive. On the whole, the institution
of the Ombudsman "works exceedingly well"107 and its wide mandate to curb
maladministration of all forms allows it to tackle corruption from the right
perspective.1os The Ombudsman also reduces the burden of the judiciary, by dealing
with administrative grievances that might otherwise require a judicial solution.109

In India, there have been several abortive attempts to institute a Lok Pal, or Federal
Ombudsman, through legislation. Several State Governments have setup Ombuds-
men, called Lok Ayuktas. However, since the basis of the institution of the
Ombudsman is tie constitutional principle of checks and balances,1, it ought,
therefore, to be a constitutionally recognized institution, as it is in several other
countries. S. 182(1)(a) of the South African Constitution, for example, provides: "The
Public Protector [the South African Ombudsmanj has the power, as regulated by
national legislation... to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged or suspected to be

10 43 LLM. 37 (2004).
105 Jennifer
Gannett, Providing Guardianship of Fundamental Rights and Essential
Governmental Oversight, NEWENG. J. INT'L & COMP. L. 519, 523 (2003).
106 S.P. SATHE, ADMINISTRATIVE LAW 685 (2004).
107 Kenneth Davis, Ombudsmen in America: Officers to Criticize Administrative Action,
109 U. PA. L. REV. 1057 (1961) [hereinafter Davis].
108 Gary Pienaar, The Role of the Ombudsman in Fighting Corruption, available at http://
www.transparency.org/iacc/9thiacc/program.htm (last visited Apr. 18, 2004).
109 Id
110See Davis, supra note 107, at 1061.

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Va~l 17 Student BarReview 2005

improper or to result in anyimpropnetyor prejudice...""' A similar recognition of the

office of the Ombudsman is required in the Indian Constitution. If this is done, it is
likely to benefit greatly the fight against corruption by recognizing that it represents
only one species of maladministration.

VI. CONCLUSION
Having examined, through the course of this article, the Indian Constitution's
perspective on good governance, that perspective can now be assessed. It has been
noted that good governance, as it is understood today, has two aspects. In relation to
the form of government, it refers to a liberal democratic regime and in relation to the
functioning of government, it refers to efficient, effective and non-corrupt
governance. The role of a constitution in establishing such a system of good
governance is commonly deemed to be fulfilled through an espousal of the
philosophy of liberal constitutionalism, the constitutive principles of which further
good governance in both its aspects.

The form of goverment that the Indian Constitution establishes is compatible with
the received notion of 'good governance', in its first aspect. It is a liberal democratic
government, embodying both the principle of representation and the political values
of liberal ideology. However, it also adds to this notion, thereby enriching it, by
imposing obligations on the government that are not solely of non-interference, as in
a purely liberal regime, but also of positive action, so as to effect social and economic
change and realize a welfare state. This represents an important contribution of the
Indian Constitution to the prevailing notion of good governance.
Unfortunately, criticisms of governance in India are connonplace with respect to the
second aspect of governance, i.e., governmental functioning. For the most part,
however, the system of government as envisaged by the Constitution is well suited to
advancing efficient governance. It has been argued here that although no judicially
enforceable right to good governance exists under the Indian Constitution,
nevertheless the principle of judicial review, as an aspect of the institutional checks
and balances that the Indian Constitution incorporates, is particularly potent. It
extends not just to actions of the Government, but also to those of political parties,
and such actions can be tested against not just the Fundamental Rights, but also the
Directive Principles and Fundamental Duties. Should this proposition be accepted by
the Courts, it might greatly assist the promotion of good governance, especially the
process of free and fair elections through the regulation of political parties. This
aspect of the Constitution's perspective on effective governance, when interpreted in
the manner argued for, is therefore satisfactory. There do, however, exist
shortcomings in that perspective with respect to ensuring the effectiveness of the
judicial and administrative processes, and curbing corruption. It has been argued that
the Constitution needs to accord the public prosecutor the same independence that it

See CONST. OF SoUnI AFlcA, available at http://www-gov.za/consitution/1996/96

cons.htr (last visited Apr. 23, 2004).
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 ConstitutionalPerspectives on Good Governance

does judges, so as to enable the impartial operation of justice, and that it needs to
establish explicitly the principle of the independence of the civil service, so as to check
administrative arbitrariness. As regards corruption, a case has been made for adopting
the institution of the Ombudsman, as an independent constitutional entity intended to
tackle corruption as an aspect of bad governance.

However, addressing these shortcomings requires only either the extension of already
existing constitutional principles of independent judicial and administrative
functioning to new areas, or, in the case of the Ombudsman, the incorporation of an
additional agent of governance. This indicates that the core of the Indian
Constitution's perspective on governance, as is reflected, in particular, in Pans Ill, IV
and IV-A, is sound. If in spite of this governance in India continues to flounder, the
fault cannot be with the Constitution, but with the culture within which it operates.
Clearly, if a culture of moral and ethical behaviour exists, good governance is bound
to flourish - and if it does not, then, to borrow the words of Judge Learned Hand, "no
constitution, no law, no court can save it; no constitution, no law, no court, can even
do much to help it."112

Il2 LEARNED HAND, TIE SPIRIT OF LIBERTY 190 (1944).

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