VALEDICTORY ADDRESS IN THE NATIONAL CONFERENCE

ON “EFFECTS OF CORRUPTION ON GOOD GOVERNANCE

AND HUMAN RIGHTS”

- Y. K. Sabharwal,
Chief Justice of India

I must compliment the National Human Rights Commission for

organizing this National Conference on the topic of “Effects of

Corruption on Good Governance and Human Rights”. The topic is of

great relevance in present day world and engages us in three major

concerns of every modern civil society, namely, the need for good

governance, not merely governance; the anxiety to preserve and protect

human rights, in particular, when they come in conflict with the acts of

omission and commission of those providing the governance; and, last

but not the least, the corrupt practices plaguing the corridors of power.

India, we can proudly proclaim, is one of the front-runners in the

comity of nations that cherish principles of civil society. After being

subjected to exploitation and oppression of centuries of foreign rule,

when India regained its freedom, one thing was clear in our mind, that we

must set up an egalitarian society based on principles of equality, fairness

and justice, one characterized by the belief that all people should have

equal political, social, and economic rights.

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 We put our act together and gave to ourselves the Constitution

thereby resolving that we shall establish India as a Democratic Republic

which would secure to all its citizens equality of status and of

opportunity; liberty of thought, expression, belief, faith and worship; and

most important of all, Justice in all its dimensions including social,

economic and political. We resolved that while promoting fraternity

amongst the citizens and working for unity & integrity of the nation, we

shall also assure to every person, citizen or alien, dignity of the

individual.

Our track record over the last almost six decades has been a mixed

bag of successes and failures on these fronts. As a modern State, eager to

march ahead in the spheres of development and economic progress, we

have taken giant strides. India today is not merely a developing country.

It is almost on the doorsteps of being welcomed into the club of

developed world. With a large trained and educated intelligentsia that

comprises of professionals in all conceivable fields, we are almost a force

to reckon with; a force that is second to none in abilities and capabilities

and a force that can compete with the best. India has made significant

progress contributing to varied branches of knowledge designed to

subserve the interests of the humanity as a whole. Our burgeoning

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population did put brakes on the development in many a way. Yet, over

one billion Indians are also counted today as one of our assets.

The advancement that we made as a nation could not have come

about without proper guidance and without regulation by the State

machinery. We must grant it to all the three chief organs of the State in

India for their valuable contribution in making some of the dreams of our

founding fathers a stark reality.

Baseness and depravity in public life and of the rulers or those

engaged by them for governance has been a source of disquiet even in

advanced societies at different stages of their history. In a quote that has

been attributed to Abraham Lincoln it has been said: -

“I see in the near future a crisis

approaching that unnerves me and causes
me to tremble for the safety of my
country ……………… an era of corruption in
high places will follow, and the money-
power of the country will endeavour to
prolong its reign by working upon the
prejudices of the people until the
wealth is aggregated in a few hands and
the Republic is destroyed.”

Everything that has happened in the life of India as a State after

independence cannot be termed as positive. The hydra of communalism,

corruption in all walks of life, discrimination and inequalities perpetrated

in different ways at different times, violation of human rights of the

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individuals by the State, or of one Section of the society by another, are

some of the jarring notes of the music that we have been playing. They

represent the ugly side of our face, which we cannot hide. These are

grand ground realities that cannot, rather ought not, be brushed under the

carpet. All of them individually and collectively are pointer to our failure

at some level in discharging our obligation to provide good governance.

As is required in a democratic society, we must always be ready to

debate the issues that arise out of these concerns and do periodic

introspection. The platform of this Conference is, therefore, a welcome

step facilitating thinkers from diverse backgrounds to assemble and put

their heads together on these concerns from the perspective of human

rights. These debates have the potential not only to identify the causes &

effects but also throw up for consideration the corrective measures.

Going by the agenda of this Conference, I am sure the scope for

corruption and its overall impact on the governance in various aspects of

human activity would have already been debated and discussed

threadbare by the participants over these two days. Your concerns have

focused attention on corruption in education, health and employment

sector, corruption in electoral system of the country which, to my mind, is

the starting point as also the end point of all corruption since it involves

grabbing State power at any cost. You have already discussed amongst

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yourselves as to how corruption erodes the human rights regime and as a

consequence renders governance into a state of ‘non-governance’. I

would share some of my thoughts on these subjects with you.

Modern State wedded to the principle of general public welfare is

duty-bound to provide such governance as can guarantee to one and all,

without discrimination, the basic human rights. Towards this end, we

have evolved basic rights, which seek to provide to each of us the right of

equality, not merely in theory, but in practice. The right to liberty of

thought, expression & belief; right to justice; right to development and

various such other rights, in my view, spring from right to equality, which

is the most basic of all human rights. When we talk of good governance,

the claim of every modern State to certification of its positive

performance requires to be tested on the touchstone of human rights.

As per the United Nation’s Commission on Human Rights, the key

attributes of good governance include transparency, responsibility,

accountability, participation and responsiveness to the needs of the

people. Good governance is thus linked to an enabling environment

conducive to the enjoyment of Human Rights and promoting growth and

sustainable human development. The world community endorses ‘rights

based approach’ to development and tests the track record of each

Member State on its anvil. The expectation of every civil society of its

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Government thus is that it would fulfill its commitments and provide an

equitable atmosphere conducive for individual’s growth. A Government

is expected to be fully accountable to its people and transparent in the use

of public resources. It enforces the Human Rights including economic,

social and cultural rights and has no place for corruption of any kind

since corruption is a blight that invariably proves to be retrograde for

development. No wonder the World Bank views good governance and

anti-corruption measures as central to its poverty alleviation mission.

Let me recall what was mentioned by Mr. R. Venkataraman,

former President of India, in his address on “Good Governance” at a

function organized by FICCI in November 1999. He said that a good

Government is one which: -

is stable and truly representative of the majority of the

people,

maintains its territorial integrity and national

sovereignty,

accelerates economic growth and development

ensures the welfare of all sections of people,

and renders justice without delay.

Since human rights are also designed to attain human development,

good government has the protection of human rights as the top most

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priority on its agenda. Corruption retards development since public

money allocated for development unjustly reaches private coffers

depriving the citizenry of its use for their welfare.

India incorporated a number of basic human rights as guaranteed

fundamental rights, elaborated in every possible manner, in Part III of the

Constitution. These fundamental rights went much beyond the American

Bill of Rights. They did draw upon the Universal Declaration of Human

Rights issued by the United Nations in 1948 but went ahead of them by

incorporating alongside, in Part IV of the Constitution, certain ‘Directive

Principles of State Policy’ that, as per Article 37, are principles that

would be fundamental for good governance of this country.

We --– and when I talk of ‘We’, I mean to refer to all the three

organs of the State --– may have not yet come up to the expectations of

the People of India in certain ways. But, all actions of the State thus far

have been sobered by the guidance provided by the fundamental rights

and the Directive principles of State Policy.

The Directive Principles of State Policy canonized in the

Constitution have been used as fundamental principles of governance

tempered by the Fundamental Rights. On the other hand, adjustments

have been made in the Fundamental Rights, from time to time, through

legislative measures, executive action or judicial pronouncements so as to

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further the object sought to be achieved by the Directive Principles. After

all, the purpose of the Fundamental Rights on the one hand and the

Directive Principles on the other is common, and that is to provide for an

environment that can ensure dignified growth & development of each

individual as a useful human being.

The question, however, is as to whether we have accomplished the

task of ensuring to each individual all of his basic human rights in their

full bloom. Is every citizen provided healthcare, education, adequate

housing, sufficient food & clothing? Can we claim that there is no

injustice prevalent at social, economic or political level? Is every Indian

in a position to live life of dignity, free from prejudices or discrimination

of any kind? If the answer to any of these posers is in the negative, we

cannot yet proclaim that we are providing good governance in this

country.

Legislature, Judiciary and Executive are the three pillars that

sustain the goal of national development. A corrupt political system

denies true participation of people in the democratic process. A corrupt

judicial system works not only to deny Constitutional safeguards against

the basic human rights but also discriminates in the implementation of

laws. A corrupt executive can cripple the implementation of all welfare

measures aimed at achieving the target of Welfare State. Ad-hoc repairs

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of one organ alone would not do since it is the preservation of the overall

strength of the structure that controls its future.

I would not like to talk at length as to the instances of corruption in

different walks of our public life. The stories of defilement at all levels of

our polity, public institutions or various sections of society have been

abound and known to each of us. One may find a number of instances of

corrupt practices in elections to public bodies, cases of corruption by

public functionaries not limited to taking of paltry gains as illegal

gratification for doing or abstaining from doing the official duties. They

would extend to brazen abuse of office or authority so as to engage in

unjust enrichment of self or of the kith and kin; lure of the lucre rather

than the financial rules dictating the award of public contracts or State

patronage; favoritism on considerations of caste, creed etc.; use of

discretion for extraneous considerations; use of public sector enterprises

as personal chattel; protection of the corrupt by their superiors sharing the

corrupt designs of the former and so on. The world of corruption is

bottomless abyss.

We may spare ourselves a lengthy discourse on what forms

corruption can and has been taking in our country. We all know it too

well and it does not need to be catalogued once again. The anxiety

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instead has to be as to whether we have done sufficient to tackle this

menace and if not as to where have our efforts lacked.

In this Conference, one relatively new and interesting approach to

the subject of corruption has been sought to be highlighted. Some

thinkers would build up a case for creating a new fundamental right that

would guarantee to all citizens of the country “corruption free

governance”. The proponents of this idea are critical of the existing

approach to deal with the corruption as a problem area of criminal justice

system. They seek to highlight the want of efficacy of the criminal law

responses in dealing with the issue.

Their concern about the weaknesses of the criminal law system is

not wholly unfounded. We cannot shy away from the reality of poor

conviction rate especially in cases of corruption involving such few high

& mighty as could be brought to book. The reasons for poor performance

of the criminal justice apparatus are well known. The loopholes in the law

concerning protection in the form of mandatory sanction, rules of

evidence and gratuitous stress on mercy, more often than not misplaced

mercy, in the matter of punishment may be cited as some of the areas that

ail the system. These have been discussed endlessly in various foraI.

Many sound suggestions have come up, from time to time, that would

help us all in knitting the net tighter so that guilty may not escape. But we

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continue harping on archaic jurisprudence that is totally inadequate to

meet the newer challenges.

The suggestion for inclusion of ‘corruption-free-service’ as a

Fundamental Right is founded on the premise that it will enhance efforts

to contain corruption and since corruption is a manifestation of a crisis in

governance, provision for such a Fundamental Right will create an

obligation on the part of the State to develop greater transparency and

greater accountability thereby empowering the judiciary to enforce this

right for the citizenry.

For purposes of deliberation, I must say that I welcome this

suggestion. It infuses a new life into the concern to create a corruption

free society. The debate that is bound to be generated as a consequence

would undoubtedly fashion increased awareness as to how corruption is

antithesis of development and as to how its domino effect is erosion of

human rights. But I would like to put in a caveat in this discussion.

As I see it, the right to ‘corruption-free’ governance is inherent in

the Fundamental Rights already in position in our Constitution. What is

implicit need not be made explicit. What is projected as the proposed

right can be enforced and, I must say, has been enforced by the judiciary

in India even without being expressly provided. I need not mention scores

and scores of cases in which the Supreme Court has set at naught the

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State action on account of it being discriminatory or it being the result of

abuse of office or vitiated on account of uncanalized discretion.

Corruption creates special extra-legal privileges for a few against others

and thus, beyond the pale of all doubts, is violative of the basic

fundamental rights of equality & equal opportunity.

It is conceded by the proponents of the theory of new Fundamental

Right that corruption results in precious resources of the country being

unconscionably eaten away by those in, or close to, power or those

having the pelf to influence the former category and thereby violates

civil, political, economic and social rights. This concession itself would

reinforce the view that corruption violates Fundamental Rights, as they

exist today and, therefore, express provision for corruption free society

may not add to the armory of the judiciary a new weapon against

corruption.

Rather, I am anxious that such express addition to Fundamental

Rights chapter may end up as creating another roadblock. Let me dilate

on this a little further.

We all know the reasons why the criminal law response to

corruption has not been very effective. The provision of sanction for

prosecution was meant to provide protective umbrella to the public

servants who were acting bonafide. This provision has been used, or

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rather abused, so as to protect even those who are prima facie guilty. The

authorities that are expected to consider the facts & evidence, and grant

sanction, many a time either sit over the request indefinitely or issue

sanction order in such mechanical manner as can never pass the judiciary

scrutiny. Given the fact that proper guidance is provided at every step of

the way, such approach itself smacks of malafide action. The unabashed

attitude of certain authorities in denying the sanction and refusing to even

give reasons for denial provide yet another dimension to the problem.

The law provides for the assets acquired as a result of corruption to

be attached, impounded or forfeited. Courtesy the Criminal Law

Amendment Ordinance of 1944 vintage, this process is governed by civil

procedure. The investigating or prosecuting agencies find the process of

attachment of illicit assets of corrupt public servant too cumbersome. In

cases where this process is initiated, it runs parallel to the criminal

proceedings. This creates further difficulties for the criminal law

apparatus. The public servant, as the defendant in each of these matters,

derives undue advantage by taking resort to dilatory tactics. Should the

concerned department also initiate disciplinary proceedings under the

conduct rules, the public servant actually starts enjoying at the cost of the

exchequer. He would delay each proceeding taking the excuse of

pendency of the other. And when the proceedings reach the stage of

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recording of evidence, he would add to the confusion by referring to

contradictions in the evidence of the common set of witnesses at different

stages. Under the existing rules of evidence this pushes the prosecuting

agency against the wall.

In 1996, Supreme Court pointed out the inadequacy of the anti-

corruption measures in the case of Delhi Development Authority v.
Skipper Construction Co. (P) Ltd., [(1996) 4 SCC 622]. I may quote
the following observations [at page 642] of the judgment to refresh the
memory of one and all: -
“…….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, is a crying necessity in the
present state of our society. The law must extend not
only to — as does SAFEMA — properties acquired in the
name of the holder of such office but also to properties
held in the names of his spouse, children or other
relatives and associates. Once it is proved that the
holder of such office has indulged in corrupt acts, all
such properties should be attached forthwith. 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 as does SAFEMA
whose validity has already been upheld by this Court in
the aforesaid decision of the larger Constitution Bench.
Such a law has become an absolute necessity, if the
canker of corruption is not to prove the death-knell of
this nation. According to several perceptive observers,
indeed, it has already reached near-fatal dimensions. It
is for Parliament to act in this matter, if they really
mean business.”

The Law Commission of India took the above suggestion of the

Supreme Court seriously and suggested in its 166th report the enactment

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of a special law, also taking pains of drafting its Bill called the “Corrupt

Public Servants (Forfeiture of Property) Bill” which was sent to the

Government of India in February 1999. People of India still await the

outcome of the said proposal.

If as a result of creation of a Fundamental Right to ‘corruption-

free-service’, the issues of fact of individual cases are to be

simultaneously, and additionally, addressed in the High Courts or

Supreme Court, invoking their respective jurisdictions on account of

violation of Fundamental Rights, it might add to the advantage of the

corrupt more than those seeking to nail them. Multiplicity of proceedings

is never a happy scenario. I would leave the subject for further discussion

and debate. Since the theory is a new one, I would say that it deserves, in

all fairness, to be examined from all possible angles. Especially so

because its significance lies in its perceived potential to provide the much

needed impetuous to jurisprudential growth from the standpoint of

victims, which has been relatively a neglected area in our system of

governance, in general and judicial administration, in particular.

Corruption may have been in existence from times immemorial as,

in 300 BC, Kautilya is said to have compared a corrupt servant of the

King with a fish under the sea drinking water with impunity. But then, the

fight against corruption in public offices is also of earlier times as our

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ancient scriptures were constrained to proclaim Rajdharma to be the

guiding principle. The efforts to rid us of this scourge have to go on

unabated. Our responses have to be tailored in such a way that the noose

is tightened by making criminal law apparatus more effective and

accountable. Criminal Justice system is our best bet since it is not only

punitive for the offender but also preventive for others sharing his bent of

mind, by providing the element of deterrence.

Besides provision for forfeiture of illicit property acquired through

corrupt acts, there is a good case for ensuring that requirement for

‘Sanction for prosecution’ is not used as a shield to protect the corrupt.

There is need to bring in autonomy and transparency in the process for

‘Sanction’ so that the concerned authorities are also accountable, deliver

their verdict within specified time-frame, and in case of failure to do so,

be answerable to some superior high-powered & autonomous body,

which could be called ‘Anti-Corruption Commission’ and which could be

assigned the role of overseeing investigation and prosecution in cases of

corruption in high places and also be the revisional authority in case

request for sanction has been declined. It also needs to be arranged that

the sanctioning authorities do not deny sanction for prosecution without

assigning reasons since that is in itself a good check on abuse of such

power.

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 Georges Bernanos in his essay “Why Freedom” said thus: -

“The first sign of corruption in a

society that is still alive is that the
end justifies the means.”

While those responsible for governance in this country are duty-

bound to continue taking appropriate measures so as to root out

corruption, the society at large will also have to contribute by engaging

itself in some introspection since it is the social mores that are reflected

in the character of those vested with State power in public offices.

The fiction “To Kill A Mockingbird” by Harper Lee is an

engrossing Courtroom drama depicting a criminal trial. The character

named ‘Atticus Finch’ at one place says: -

“Best way to clear the air is to have

it all out in the open.”

I find these simple words to be great guiding principles. The best

course in the fight against corruption is through the principles of

transparency and accountability. In this direction, the role of judiciary and

media has to be that of partners in action as they can provide the check. It

is the duty of the other organs of the State to strengthen these two. Mere

platitudes would no longer suffice. Something concrete needs to be done

and very urgently, unless we ourselves intend to lend a hand in ringing

the death knell of our nation as cautioned by the Judiciary a decade ago.

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 I would conclude by appealing to all saner elements in our polity

and society, cherishing the dream of a bright future for our beloved

country, that each of us have an onerous duty to perform here, required to

be accomplished before it is too late. I would borrow the words of

Edmund Burke that go as follows: -

“All it requires for evil to triumph is

for good men to do nothing.”

*******

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