Monopoly + Discretion - Accountability = Corruption
The following should be classified as offences under the Prevention of Corruption Act:
» Gross perversion of the Constitution and democratic institutions amounting to willful violation of oath of office
» Abuse of authority unduly favoring or harming someone
» Obstruction of justice
Squandering public money
» Prior sanction should not be necessary for prosecuting a public servant who has been trapped red- handed or in cases of possessing assets disproportionate to the known sources of income.
» The Prevention of Corruption Act should be amended to ensure that sanctioning authorities are not summoned and instead the documents can be obtained and produced before the courts by the appropriate authority.
» The Presiding Officer of a House of Legislature should be designated as the sanctioning authority for MPs and MLAs respectively.
» The requirement of prior sanction for prosecution now applicable to serving public servants should also apply to retired public servants for acts performed while in service.
» In all cases where the Government of India is empowered to grant sanction for prosecution, this power should be delegated to an Empowered Committee comprising the Central Vigilance Commissioner and the Departmental Secretary to Government.
In case of a difference of opinion between the two, the matter could be resolved by placing it before the full Central Vigilance Commission. In case, sanction is required against a Secretary to Government, then the Empowered Committee would comprise the Cabinet Secretary and the Central Vigilance Commissioner.
Similar arrangements may also be made at the State level. In all cases the order granting sanction for prosecution or otherwise shall be issued within two months. In case of refusal, the reasons for refusal should be placed before the respective legislature annually.
» In addition to the penalty in criminal cases, the law should provide that public servants who cause loss to the state or citizens by their corrupt acts should be made liable to make good the loss caused and, in addition, be liable for damages. This could be done by inserting a chapter in the Prevention of Corruption Act.
» A legal provision needs to be introduced fixing a time limit for various stages of trial. This could be done by amendments to the CrPC.
» Steps have to be taken to ensure that judges declared as Special Judges under the provisions of the Prevention of Corruption Act give primary attention to disposal of cases under the Act. Only if there is inadequate work under the Act, should the Special Judges be entrusted with other responsibilities.
» It has to be ensured that the proceedings of courts trying cases under the Prevention of Corruption Act are held on a day-to-day basis, and no deviation is permitted.
» The Supreme Court and the High Courts may lay down guidelines to preclude unwarranted adjournments and avoidable delays.
» The Prevention of Corruption Act should be suitably amended to include in its purview private sector providers of public utility services.
» Non-Governmental agencies, which receive substantial funding, should be covered under the Prevention of Corruption Act. Norms should be laid down that any institution or body that has received more than 50% of its annual operating costs, or a sum equal to or greater than Rs 1 crore during any of the preceding 3 years should be deemed to have obtained 'substantial funding' for that period and purpose of such funding.
The Corrupt Public Servants (Forfeiture of Property) Bill as suggested by the Law Commission should be enacted without further delay. Steps should be taken for immediate implementation of the Benami Transactions (Prohibition) Act, 1988.
(a) Legislation should be enacted immediately to provide protection to whistleblowers on the following lines proposed by the Law Commission:
» Whistleblowers exposing false claims, fraud or corruption should be protected by ensuring confidentiality and anonymity, protection from victimization in career, and other administrative measures to prevent bodily harm and harassment.
The legislation should cover corporate whistleblowers unearthing fraud or serious damage to public interest by willful acts of omission or commission.
A new law on 'Serious Economic Offences' should be enacted.
(b) A Serious Economic Offence may be defined as:
(i) One which involves a sum exceeding Rs 10 crores; or
(ii) Is likely to give rise to widespread public concern; or
(iii) Its investigation and prosecution are likely to require highly specialized knowledge of the financial market or of the behaviour of banks or other financial institutions; or
(iv) Involves significant international dimensions; or
(v) In the investigation of which there is requirement of legal, financial, investment and investigative skills to be brought together; or
(c) A Serious Frauds Office (SFO) should be set up (under the new law), to investigate and prosecute such offences. It should be attached to the Cabinet Secretariat. This office shall have powers to investigate and prosecute all such cases in Special Courts constituted for this purpose. The SFO should be staffed by experts from diverse disciplines.
The Commission, while endorsing the suggestion of the National Commission to Review the Working of the Constitution, recommends that suitable amendments be effected to Article 105(2) of the Constitution to provide that the immunity enjoyed by Members of Parliament does not cover corrupt acts committed by them in connection with their duties in the House or otherwise.
» Article 311 of the Constitution should be repealed.
» Simultaneously, Article 310 of the Constitution should also be repealed.
» Suitable legislation to provide for all necessary terms and conditions of services should be provided under Article 309, to protect the bona fide actions of public servants taken in public interest; this should be made applicable to the States.
» Necessary protection to public servants against arbitrary action should be provided through such legislation under Article 309.
» The Constitution should be amended to provide for a national Ombudsman to be called the Rashtriya Lokayukta. The role and jurisdiction of the Rashtriya Lokayukta should be defined in the Constitution while the composition, mode of appointment and other details can be decided by Parliament through legislation.
» The jurisdiction of Rashtriya Lokayukta should extend to all Ministers of the Union (except the Prime Minister), all state Chief Ministers, all persons holding public office equivalent in rank to a Union Minister, and Members of Parliament. In case the enquiry against a public functionary establishes the involvement of any other public official along with the public functionary, the Rashtriya Lokayukta would have the power to enquire against such public servant(s) also.
» The Prime Minister should be kept out of the jurisdiction of the Rashtriya Lokayukta.
» The Rashtriya Lokayukta should consist of a serving or retired Judge of the Supreme Court as the Chairperson, an eminent jurist as Member and the Central Vigilance Commissioner as the ex-officio Member.
» The Chairperson of the Rashtriya Lokayukta should be selected from a panel of sitting Judges of the Supreme Court who have more than three years of service, by a Committee consisting of the Vice President of India, the Prime Minister, the Leader of the Opposition, the Speaker of the Lok Sabha and the Chief Justice of India.
In case it is not possible to appoint a sitting Judge, the Committee may appoint a retired Supreme Court Judge. The same Committee may select the Member (i.e. an eminent jurist) of the Rashtriya Lokayukta.
The Chairperson and Member of the Rashtriya Lokayukta should be appointed for only one term of three years and they should not hold any public office under the government thereafter, the only exception being that they can become the Chief Justice of India, if their services are so required.
» The Rashtriya Lokayukta should also be entrusted with the task of undertaking a national campaign for raising the standards of ethics in public life.
On lokayukta
» The Constitution should be amended to incorporate a provision making it obligatory on the part of State Governments to establish the institution of Lokayukta and stipulate the general principles about its structure, power and functions.
» The Lokayukta should be a multi-member body consisting of a judicial Member in the Chair, an eminent jurist or eminent administrator with impeccable credentials as Member and the head of the State Vigilance Commission {as referred in para 4.4.9(e) below} as ex-officio Member.
» The Chairperson of the Lokayukta should be selected from a panel of retired Supreme Court Judges or retired Chief Justices of High Court, by a Committee consisting of the Chief Minister, Chief Justice of the High Court and the Leader of the Opposition in the Legislative Assembly. The same Committee should select the second Member from among eminent jurists/administrators. There is no need to have an Up-Lokayukta.
» The jurisdiction of the Lokayukta would extend to only cases involving corruption. They should not look into general public grievances.
» The Lokayukta should deal with cases of corruption against Ministers and MLAs.
» Each State should constitute a State Vigilance Commission to look into cases of corruption against State Government
» The Anti Corruption Bureaus should be brought under the control of the State Vigilance Commission.
The Chairperson and Members of the Lokayukta should be appointed strictly for one term only and they should not hold any public office under government thereafter.
» The Lokayukta should have its own machinery for investigation. Initially, it may take officers on deputation from the State Government, but over a period of five years, it should take steps to recruit its own cadre, and train them properly.
» All cases of corruption should be referred to Rashtriya Lokayukta or Lokayukta and these should not be referred to any Commission of Inquiry.
On citizen's charter
» Citizens' Charters should be made effective by stipulating the service levels and also the remedy if these service levels are not met.
» Citizens may be involved in the assessment and maintenance of ethics in important government institutions and offices.
» Reward schemes should be introduced to incentivize citizens' initiatives.
» School awareness programmes should be introduced, highlighting the importance of ethics and how corruption can be combated.
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