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Corruption in India: Controlmeasures and consequencesKrishna K. Tummala aa Professor and Director of the Graduate Programme in PublicAdministration , Kansas State University , USAPublished online: 02 Jan 2008.

To cite this article: Krishna K. Tummala (2002) Corruption in India: Controlmeasures and consequences, Asian Journal of Political Science, 10:2, 43-69, DOI:10.1080/02185370208434210

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Asian Journal of Political Science Volume 10 Number 2 (December 2002)

Corruption in India: ControlMeasures and Consequences

Krishna K. Tummala*

If we rank all the fields of man's activity by profitability, politics willbe the most lucrative business.

— Mikhail Khodorkovsky, Russian bank tycoon.

Much has been written on corruption in the Third World. Studying the phenomenon oftransactional corruption, however, is fraught with many shortcomings. The insidiouscorruption of subverting the regimes or abusing the constitution for political or partisangain is paid little attention. This article analyses corruption in India within its social,cultural, and political contexts. The workings of the various anti-corruption measuresare also examined. The concept of regime corruption is studied. The article concludesthat curbing corruption largely depends upon the social attitudes. In particular, thepolitical parties should not only take the blame for the current situation, they should alsoplay an active role in correcting the pernicious practice of corruption.

Introduction

Studying corruption is generally fraught with two shortcomings: definitionaland operational. Moreover, corruption is conventionally viewed as atransactional evil where money changes hands either in anticipation of

favours, or favours already conferred. Thus, the most pernicious form of corruption,which is the subversion of a regime,'or abusing the Constitution for political and/or partisan gain, has been neglected by scholars. This article analyses corruptionin India in its multi-faceted context and is divided into seven sections. First, theIndian policy context is described. Then, the institutional measures available to

* Krishna K. Tummala, Ph.D., is Professor and Director of the Graduate Programme inPublic Administration at the Kansas State University, USA.

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contain corruption are broadly explained. Following this, the role of the mediaand civil society groups in fighting corruption is analysed. The extent of corruptionin India is discussed next, followed by an examination of the implementation ofthe anti-corruption measures. Then the concept of regime corruption is studied.Finally, the concluding section summarises the major arguments and providessome suggestions.

"The folklore of corruption"1 must be approached with great caution as thetask of defining corruption is precarious for several reasons. First, at times allactions, including inefficient performance, are considered as being corrupt althoughit is commonly viewed in transactional terms. Second, sometimes the debateneeds to be tempered by certain culture specific imperatives. For example, in theHindu culture, while visiting an elder or a superior, one is expected to carry a gift(however small or inconsequential it is) as a mark of respect and not as aninstrument of corruption. Third, there is a certain duality in less developedcountries where an individual's personal life is judged by indigenous culturalstandards while the official conduct is largely assessed by Western norms. Fourth,a distinction must also be made between the magnitude or size and frequency ofthe bribe, and its pervasiveness. Given the above considerations, a more usefuldefinition is that given by Carl J. Friedrich who contended that corruption "is akind of behaviour which deviates from the norm actually prevalent or believed toprevail in a given context... It is deviant behaviour associated with a particularmotivation, namely that of private gain at public expense.... Such private gainmay be monetary, and in the minds of the general public it usually is, but it maytake other forms."2

Corruption thus is dysfunctional as it deviates from established norms.Hence it is illegal. It is inequitable as only those with resources can make thingshappen, and those in crucial seats of power get rich due to unearned income. Itis wasteful in an economic sense because resources are spent on an activity thatdoes not deserve any further expenditure, to start with. It also leads to a lot ofmisery for the client who is taken hostage.

The Indian Policy Context

Before dwelling on corruption and the institutional arrangements made to fightit, one must put the Indian scene in perspective. It is argued here that thediversity and prevailing contradictions result in a certain normlessness, and thepolitico-economic system provides various power points and opportunities forcorruption.

Diversity and ContradictionsIndia has a population of 997.5 million in 1999, and a total land area of3,287,263 sq km.3 There are 16 languages (including English) and 1,652

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Krishna K. Tummala • 45

dialects, and several religions with a predominant majority of Hindus (81.3%)and Muslims (12%) constituting the minority. India is also a land of starkcontradictions as it is the largest working democracy, with 29 states (includingDelhi) and six union territories but no constitutional status was provided forlocal self-government until the passage of the 73rd and 74th constitutionalamendments in 1992. To accommodate the country's diversity, India optedfor a federal form of government known as the "Union of India."

As the fifth largest economy in the world, and rated as the 11th largestindustrial nation, India still has nearly two-thirds of its population living offagriculture, forestry and fisheries. With a 1999 GDP of US$ 447 billion and a 6%average annual growth rate during 1990-99, its per capita GDP is still onlyUS$450.4 The lowest fifth of the population has only 8.5% of wealth while thetop fifth enjoys 42.5%. Its exports in 1999 amounted to US$37.5 billion while itsimports were US$45.6 billion. With 74% of its population living in rural areas,India has only 60% of its land arable. With only a 27-year average life span at thetime of independence in 1947, the average Indian now lives up to 64 years. Thecrude birth rate of India's population in 1999 was 23.7, and its crude death ratewas 8.4 as the infant mortality per 1,000 live births was 64.9.5 With over a US$44billion revenue for 1996-97, it has an estimated external public debt of over $74billion.6 Though the figures are imprecise, it is estimated that nearly a third of thepopulation lives in poverty.7

With only 53.5% of its population literate8 (State of Kerala in the southboasts 90% while Rajasthan in the north languishes at about 40%), the nation with219 universities produces the second largest number of scientists and engineers inthe world. However, the gap between literate men and women is around 30% insome states such Bihar, and as low as 7% in Mizoram.9

India had a female Prime Minister, Indira Gandhi, who was considered tobe one of the most powerful democratic leaders in the world, and recently votedas the "Woman of the Century" in a poll conducted by BBC.10 But the currentgovernment is having trouble in getting a law passed which would reserve 33% ofall legislative and parliamentary seats for women. A nation which has beenstruggling with the inequities of the caste system, after all decided in 1990 toextend preference in public service on the basis of caste (further to the MandalCommission's recommendation in 1980).

India exploded its first nuclear device in 1974, and by 1998, it had testedfive nuclear bombs and several ballistic missiles capable of carrying nuclearwarheads. Thus, India joined the select nuclear club, but has refused to sign theComprehensive Test Ban Treaty. It fought three bloody wars with Pakistan, andwas defeated by China in 1962. According to Washington-based World Watch, itleads the Third World among arms producers (followed by Israel).11 But it stillprofesses to be the leader of non-aligned peaceful nations.

While the country entered the electronic age in the 1990s, a large part of itin fact still languishes in the age of the bullock-cart. For example, the village ofPlahi in the Punjab with its 3,800 population, enjoys the use of the Internet, has

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solar, lighting, and indoor toilets. But it is not accessible by road and motorvehicles cannot be driven,into the village from its nearest town,' Phagwars, whichi s t h r e e k i l o m e t r e s a w a y . 1 2 ;-,••.:.•'' • : ;•• ,•:••• - ! • - • : ; : •• ; : , ' • . :

: Despite the fact it is sufficiently modernised and Westernised as well,India still clings to a lot of its traditions and some occult beliefs. In 1989, anall female crew flew a Boeing jet on a domestic flight. But in July 2002, policecould not prevent a case of suttee (which is outlawed) where a wife wasallegedly forced to kill herself on the funeral pyre of her deceased husband.The country has the largest railway network in the world and ever since itsgreen revolution, it has the capacity to feed its population. Yet it:failedmiserably to either rush aid or feed the millions rendered homeless in frequentcyclone and famine disasters.13 • : •'< •• ••';' •••-;-••'.-. •'•

The current government led by the nationalist Bharatiya Janata Party (BJP)came into prominence after it destroyed the Babri mosque in 1992 which wasallegedly built upon a Hindu temple. But once in power, it showed a goodmeasure of secularism in a way by appointing a lower caste Christian, a' SyrianChristian, a Protestant, a Muslim, and people of other religions as Governors ofStates.14 It also showed the door to one of its own prominent party man, KalyanSingh, Chief Minister of Uttar Pradesh, who could not deliver support to theparty in the 1999 parliamentary election, and has been leading a private agitationto build a Hindu temple on the grounds of the mosque that was destroyed.

Political EconomyOn the political economy front, the country started with democratic socialismunder the helm of its first Prime Minister, Jawaharlal Nehru, which resulted inone of the most administered states on a path of massive social engineering bycapturing the "commanding heights" of the national economy. However, by 1990,it turned towards economic liberalisation. Thus, a traditionally hoarding culturenow turned towards not only accumulation of wealth but also to a fully consumer-oriented one., In both cases, as will be shown below, the politicians andadministrators have been empowered to be corrupted also. . ,

It is important to note the cultural dimension of Hindu behaviour. Hinduismis not a proselytising religion but a way of life. Other religions such as Buddhismand Sikhism emanate from it. Hinduism is also tolerant and absorbing. Yet, whenthe,country was partitioned on,the eve of its independence in 1947, religiousfanaticism rose to such a level that it resulted in the largest migration of over 17million people across borders in both directions between a predominantly HinduIndia and an. Islamic theocracy, Pakistan. In 1971, as Pakistan was beingdismembered with the creation of a new nation, Bangladesh, out of former EastPakistan, as many as 10 million Bengali refugees poured into India, and to this daythe eastern states continue to agitate against these "foreigners". ,.••••••

Hinduism in general is also forgiving in nature at the personal level. Anerrant individual can always go to the superior (religious or otherwise) and fall

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on his/her feet, literally and unashamedly, and the chances are that leniency isshown almost immediately regardless of the fact the culprit may or may nothave repented for good. Nirad C. Chaudhuri observed thus: "The unlimitedcapacity to be a villain of the worst kind with an unlimited capacity for self-abasement before virtue and nobility is one of the most disarming traits of theIndian character...."15 Life at two different, and often contradictory, levels ofexistence for the Indian is not unusual. Even the most debased material livingcan co-exist with a high abstraction of life. Deviance in personal and materiallife is accepted and forgiven when the search is for a supposedly higher truth.The present and the observed, for the Hindu, is only maya or illusion. Thus, twoapparently contradictory, but not necessarily conflicting behaviour patterns aremanifest and tolerated in India.

While corruption was not invented by the Indians, there is no denying thefact that it is ubiquitous. Neither is corruption a modern-day development; nor isIndia's experience different from the experience of other nations. That corruptionwas of interest even historically is seen from the writings of Kautilya who statedthus during 300 B.C.:

Just as it is impossible not to taste the honey or the poison that finds itself at the tip ofthe tongue, so it is impossible for a government servant not to eat up, at least, a bit of theking's revenue. Just as fish moving under water cannot possibly be found out either as

: drinking or not drinking water, so government servants employed in the government: .. work cannot be found out [while] taking money [for themselves]...Government servants

: shall not only be confiscated of their ill-earned hoards, but also be transferred from one: work to another, so that they cannot either misappropriate government money or vomit

what they have eaten up. Those who increase the king's revenue instead of eating it up,and are loyally devoted to him, shall be made permanent in service.16 :

The British contributed generously to this scourge. To quote Cornwall Lewis, amember of the British House of Commons: "...no civilised Government existedon this earth which was more corrupt, more perfidious and more rapacious thanthe Government of the East India Company from 1765-84."17 At least oneGovernor-General of India, Warren Hastings, was impeached (but exonerated) inBritain for all his misdeeds in India. Modern-day India is no exception as it onlyexcels in corrupt practices. For example, the Central Vigilance Commissionrecognised as many as 33 modes of corruption.18

Institutional Measures

To deal with this ubiquitous phenomenon, several institutional measures, bothlegal and administrative, have been established by the Centre (federal level, as isknown commonly in India).19 The development of institutions to curb corruptionhas a long history. Section 161 of the Indian Penal Code of 1860, which was

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meant to deal with bribe-taking and favouritism, provides the most comprehensivedefinition of a corrupt person as one

...being or expecting to be a public servant, accepts, or obtains, or agrees to accept, orattempts to obtain from any person, for himself or for any other person, any gratificationwhatever, other than legal remuneration, as a motive or reward for doing or forbearingto do any official act for showing or forbearing to show, in the exercise of his officialfunctions, favour or disfavour to any person or for rendering or attempting to render anyservice or disservice to any person, with the Central or any state or with any publicservant as such....20

The Prevention of Corruption Act of 1947 narrowed the requirements to provemotives behind corruption. The First Five Year Plan in 1952 emphasised integrityin public life, and thought that corruption "not only inflicts wrongs which aredifficult to redress, but [it] undermines the structure of administration and theconfidence of the public in administration. There must, therefore, be a continuouswar against every species of corruption within the administration as well as inpublic life..."21 An Administrative Vigilance Commission was created withinthe Ministry of Home Affairs in 1955 with the responsibility to provide direction,and co-ordinate the various efforts of the ministries to deal with corruption.

Perhaps the most important development in this context was the Report ofthe Committee on Prevention of Corruption, otherwise known as the SanthanamCommittee, in 1964. This committee, following the logic that an executivebody impartially inquiring into its own conduct is more or less an anomaly,recommended the creation of a Commission, independent of any ministry, andheaded by a Commissioner. The government accepted it, and set up the CentralVigilance Commission. Each ministry also came to have a Vigilance Officer,whose appointment was subject to the veto of the Commissioner. The Preventionof Corruption Act of 1947 was also amended to make it a criminal offence topossess wealth disproportionate to the income of a public servant that cannot besatisfactorily explained. Thus, as of today, there are three agencies to deal withcorruption at the central government level: The Administrative VigilanceCommission (AVC); the Central Bureau of Investigation (CBI); and the CentralVigilance Commission (CVC) and the Chief Vigilance Officers in each ministryor department, and public undertakings. All these are endowed with investigativepowers. Each state has its own anti-corruption bureaus for dealing with vigilanceand anti-corruption work.

When a public servant is accused of corruption, the CVC itself mayundertake an investigation or entrust it to the CBI, or the concerned ministry ordepartment itself. Any such investigation report by a ministry must be submittedto the CVC which would recommend proper action such as criminal prosecutionto the ministry. In case such a recommendation was not accepted by the ministry,it should be noted in the report which would be placed before Parliament. TheAdministrative Reforms Commission recommended in 1966 the establishment of

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offices similar to the Ombudsman. Several attempts to create such an office —Lok Pal — have so far made no progress. Disgusted by the delay, the SupremeCourt of India admonished the government that "it would be a better idea toappoint a Lok Pal to look into corruption in public life."22 Some state governmentshave created the position of Lok Ayukta, but the record is uneven. In addition tothese, there are several Service Conduct Rules specifying the "dos" and "don'ts"for civil servants.

Role of the Media and Civil Society

In addition, it is important to discuss the nascent role of the media, and other civilsociety groups. India has always taken pride in its free press. Of late, the electronicmedium has combined with the proliferation of private television channels andthe dot.com entrepreneurs to constitute a new tool to curb corruption. Tworecent episodes are illustrative of the fact that investigative journalism has comeof age in India: the Tehelka expose and the Petrol Pump scam.

The Tehelka ExposeTarun Jit Tejpal (previously Managing Editor of Outlook) launched a websitecalled Tehelka.com.23 Investing a mere Rs. 210 thousand (about US$4,500 at thethen prevailing rate), he started a sting operation with a bogus company calledWest End International to sell an equally preposterous thermal camera to theMinistry of Defence. Trying to negotiate a deal, he ran 270 minutes of video tapewhich caught no less than the President of the BJP, Bangaru Laxman, taking abribe of a paltry sum of Rs. 100,000 (about US$2,200). It also showed thePresident of Samata Party, Jaya Jaitly, inviting the peddlers to the home of theDefence Minister, and the NDA Convener, George Fernandez, and receivingmoney supposedly for the party. Several high-ranking military officers were alsofilmed asking for good whiskey and women.

The scandal reached the Prime Minister's Office (PMO) as well with atleast two names, Brajesh Mishra and N. K. Singh, both close to Prime MinisterVajapayee, being mentioned. As some juicy segments of the tape were shown ona private television channel, the BJP-led NDA government rocked. Laxmanresigned in disgrace. Fernandez also resigned saying that he would keep out till theinvestigations into the allegation were completed. However, not too long after, hereturned to head the Defence Ministry as talk turned to a war, a possible nuclearone, between India and Pakistan. "Government Shamed and Crippled" was theheadline of one prominent magazine.24 The investigation is going on even now;but it is the messenger himself that is being investigated saying that he wasfinanced by unsavoury characters, in foreign countries to boot, to undermine theBJP and the NDA government. However, the outcome of the corruption chargesthemselves, or the allegations against Tejpal, is uncertain.

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The Petrol Pump Scam 25

On 21 July 2002, the widely read English daily, The Indian Express, broke a storythat Ram Naik, the Petroleum Minister in the current NDA government led bythe BJP, changed the procedures to license dealers to sell petrol, kerosene andcooking gas. The chairmen of the 59 three-member individual Dealer SelectionCommittees across the country were given a virtual veto power. It was alsorequired that all applications be submitted through the state BJP chiefs office.The net result as reported was that nearly one half of the 3,850 licences wereissued to relatives of BJP colleagues and NDA partners. Thus, this came to be thelargest exercise in political patronage. Not surprisingly, the opposition parties inParliament criticised the BJP, which has claimed all along a higher moral ground,and asked for nothing less than the dismissal of the minister.

Prime Minister A. B. Vajpayee, stung as he was, cancelled as many as 3,565licences despite the fact that 2,131 licences have already come into operation. Healso announced an inquiry to review all licences issued between 1983 and 2000.But the government did not stop there. It went on an offensive and claimed thatthe previous Congress (I) government behaved no better in that their ownMinister, Satish Sharma, was forced to resign for a similar patronage exercise in1995 following the severe strictures passed by the Supreme Court. It also pointedout that some of the leaders of Congress (I) have in fact made recommendationsin favour of their own candidates or clients in the present allotment. Fearing thatthe Prime Minister's unilateral decision to cancel the licences might be questionedin a court of law, the government (at the time of this writing) is contemplatingissuing an Ordinance to this effect.

Development of Civil Society GroupsThe degradation of politics by extensive corruption also led to the developmentof many civil society groups with rather important participation by severalconcerned and committed individuals. For example, the Foundation for DemocraticReform, with its sotto voce, Lok Satta, claims itself as "a non-partisan people'smovement for reforms in the governance structure" in the country with a loftygoal that it is not interested in a "mere change of players, but change in the rulesof the game" as such. Several of these organisations are currently on a literalcrusade to empower the Election Commission to make it mandatory that allcandidates for elections must disclose their past life, so to speak, including theirassets and liabilities and criminal record, if any.26

Several individuals have also taken recourse to what is known as publicinterest litigation to serve as watchdogs and move the courts on any suspectedcorrupt practice. Needless to say, the political parties are in no mood for any ofthese reforms, just as the government appears to be lukewarm, as may be seen fromthe half-hearted attempts now going,through the policy-making process. On theother hand, political parties have helped criminalise politics and politicise crime.For example, in the last election in the State of Uttar Pradesh for the 403 seats in

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the Legislative Assembly, there were 910 candidates from all parties, 430 of whomwere accused of assorted crimes ranging from murder, rape, kidnapping for ransom,and dacoity. A Dhanajay Singh won the election despite the fact he was a "contractkiller" and had 43 different criminal cases against him including being the primesuspect in the murder of the State's Medical Health, Dr. Bacchiter Singh.27 Ofthose elected, 190 have criminal records leading to an observation that they mightas well form the government by themselves, as they have a near majority.28

Despite all these provisions, both administrative and political corruption is amatter of daily routine. However, while the magnitude of corruption is limited tosome of the higher levels of service, its incidence is more noticeable at the lowerlevels. It is also important to note that often corruption may not even be in termsof seeking something to be done which is illegal in itself. Quite often it is simple"speed money," to expedite an administrative decision, or action. This latter inparticular has become so endemic that it is accepted largely as a matter of course.

Incidence and Magnitude of Corruption

India's ranking on Transparency International's Corruption Perceptions Index hasdeclined from 35th position in 1995 to 71st position in 2002.29 Even among theIndians themselves, the picture has been bleak as may be seen from a 1995 pollwhich showed that corruption was pervasive among many professions, with 98%of the respondents believing that politicians were corrupt on the one hand, and38% of them believing that ordinary people were corrupt on the other hand. (SeeTable 1 below.)

Table 1: Perceived Extent of Corruption in India by Occupation, 1995

Occupation Perceived Extent of Corruption

Politicians 98%

Police 97%Civil servants 88%Lawyers 80%

Businessmen 76%Bank officials 69%Judges 66%

Journalists 55%

Teachers 43%Ordinary people 38%

Source: MODE poll, "Corruption All-Pervasive: Survey," Times of India, 14 January1995, p. 1

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To this must be added the phenomenon of "black money" defined as unaccountedincome which is concealed.30 This in effect results in the loss of tax revenue.Not only that, the government would lose control on effective national economicpolicies. There is a loss of capital in that this money is largely concealed.Moreover, this kind of money accounts for most of the nefarious politicalpractice of buying votes and candidates, and influencing government decisions.It is estimated that as much as one half of all income is underground. In 1973-74, it was estimated at Rs. 58 billion and by 1980-81 the amount rose to Rs. 183billion. The compound rate of growth is estimated to be 18% with non-corporatetax evasion at around Rs. 53 billion. By the 1990s, it was estimated that annuallyRs. 400 billion is generated as black money.31 Such hoarding and movement ofblack money not only results in mal-development of the country but alsoaccounts for the relative influence of the business class and the undue andunder-handed influence they exercise on the policy-makers, thus subverting thelegitimate democratic processes.

Added to this is the immense wealth that is accumulated by politiciansand civil servants holding positions of power and influence. In recent memory,former Prime Ministers Rajiv Gandhi and P. V. Narasimha Rao, among otherCabinet Ministers were accused of large-scale corruption (with the latter beingexonerated and the former's name yet to be cleared). Even the former Speakerof Lok Sabha (the lower House of Parliament), Balram Jhakar, faced majorcorruption charges at one time. There are 46 different corruption cases pendingbefore three special courts against former Chief Minister of the State of TamilNadu, Jayalalitha Jayaraman. Bihar Chief Minister Laloo Prasad Yadav wasforced to resign his office pending major corruption inquiries into the fodderscam. The list goes on and on, resulting in the general cynical belief that allcivil servants by nature are corrupt. Moreover, almost all the accused continueto be active political participants with impunity. Newspapers are replete withstories of raids of houses of politicians, civil servants and businessmen.

Government agency demands for kickbacks for the party in power fromeven foreign firms are widely known.32 As the general populace has taken all thisas a matter of course; corruption has become second nature. Any client can attestto the fact that petty bribery is a common practice. What are the causes ofcorruption in India?

The case of India was summed up by Robert Wade thus: "Severalstructural features of Indian society predispose the administrative and politicalsystem to a high level of corruption: acute scarcities; a large regulatory andallocative role of the state; a pre-eminent bureaucracy, faced with decliningreal salaries; a rapidly expanding middle class demanding access to the state."33

The earlier commitment to democratic socialism led to state intervention interms of licensing in many aspects of private life and private entrepreneurshipculminating in the great expansion of the public sector and its undertakings,and thus generating the label that it is a "permit Raj" which in turn led to thestranglehold that the bureaucracies exercise over people. Planned development,

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observed Kuldeep Mathur, "considerably helped the bureaucrats to acquireadministrative and political power, which expanded their role in the economy,permitting them greater opportunity to satisfy their self-interest."34

The Santhanam Committee as far back as in 1964 confirmed thus: "Thesudden extension of the economic activities of the Government with a largearmoury of regulations, controls, licences and permits provided new and largeopportunities [for corruption]."35 The New Economic Policy since 1990, withits liberalisation, inaugurated a neo-capitalist culture and whipped up a voraciousappetite for the accumulation of wealth. It has also transformed a largelytraditional and hoarding society into a consumer nation with great abandon andamorality. In other words, the opportunities for corruption are abundant in thisadministered society which is now hankering for all modern accoutrements.

Implementation of the Anti-Corruption Measures

While the opportunities for corruption abound, apparently the implementationof anti-corruption measures leaves much to be desired. Perhaps, it is becauseof the knowledge of the lax enforcement of anti-corruption laws, thatcorruption flourishes. As is the case with any criminal offence, there are twophases in dealing with corruption of public officials in general: the investigationitself, and the subsequent prosecution. The institutions which are establishedfor the first phase in India came under severe criticism in that they had notdone a proper job, or did not do the job at all in certain cases, depending onthe person who was accused or charged. While the court system itself isagonisingly slow, even not to present a case before a court as the investigationsare not complete is a near travesty of justice. When someone of substance ischarged, he or she almost always instantaneously and invariably claims somemedical emergency or disability, real or feigned, to stall the proceedings. TheSupreme Court of India dealt with this issue in the Vineet Narain case in1997 (otherwise known as the "Hawala" case, involving the violation offoreign exchange rules).35

To provide the gist of the case, consequent to an arrest on 25 March 1991,several raids were made on various premises of a S. K. Jain and his family. Largeamounts of Indian and foreign currencies, some notebooks, and a diary wereseized in the process. The latter contained the initials of several high-rankingpoliticians to whom vast amounts were said to have been illegally paid. Butnothing was done to further investigate the matter which led to a public interestlitigation filed on 10 October 1993 before the Supreme Court of India.

The petition was to "command performance of the duty under law toproperly investigate into the accusation of commission of crime and to file acharge-sheet in the competent court, if a prima facie case is made out." Theprimary issue here was "whether it is within the domain of judicial review andit could be an effective instrument for activating the investigative process which

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is under the control of the executive?" On 8 December 1997, the Courtanswered in the affirmative by invoking Articles 32 (the right to move theSupreme Court for the enforcement of Fundamental Rights] and 142 (the rightof the Supreme Court to issue orders enforceable throughout the country for"doing complete justice") as provided in the Constitution, and in defence of theRule of Law. It also observed: "Inertia was the common rule whenever thealleged offender was a powerful person." It found that the CBI and otherinvestigative agencies had not performed their primary duties, and directedthem to do that by stating that "none stands above the law so that an allegedoffence by him is not required to be investigated."

It is important to note that the Court was not attempting to deal with themerits of the case as such. Its interest was limited only to see that investigationsare conducted and the process of justice moved on without undue delay andpolitical interference. "It is reiterated," they said, "that any proceedings pendinghere has no bearing on the merits of the accusation, and is not to influence thetrial in any manner."

There were two other issues that came to the fore. First, under what cameto be known as the "Single Directive", the Government of India previously laiddown that to investigate a higher policy-making public servant, prior permissionmust be obtained from the head of the office concerned. The Court thought sucha requirement was inhibiting the investigation process, and quashed it.

The second issue was: to whom should the investigating agencies beresponsible? After all, in a parliamentary form of government, the Cabinet Ministerwho is heading the ministry or department (working under the principle ofcollective responsibility, and accountable to parliament) must be the final referralpoint. But experience has been such that the ministers either soft-pedalled caseswhen they or their own ilk are involved, and worse, even tried to hush it up foreither personal or partisan reasons. The Court did not hide its annoyance in thiscontext, and consequently assumed for itself the supervisory responsibility. Itadmonished the CBI thus: "The CBI would not take any instructions from, reportto, or furnish any particulars thereof to any authority personally interested in orlikely to be affected by the outcome of the investigations into any accusation. Thisdirection applies to any authority which exercises administrative control over theCBI by virtue of the office he holds, without any exception." The CBI thus wasinstead asked to report to the Court from time to time as to the progress of theinvestigation till the charge-sheets are filed in the appropriate courts.

The Court did not stop there. It further observed: "The constitution andworking of the investigating agencies revealed the lacuna of its [sic] inability toperform whenever powerful persons were involved. For this reason, a closeexamination of the constitution of these agencies and their control assumessignificance. No doubt, the overall control of the agencies and responsibility fortheir functioning has to be in the executive, but then a scheme giving the neededinsulation from extraneous influences even of the controlling executive isimperative."

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As these proceedings were going on in the Court, the Government of Indiaon 1 July 1993 constituted a committee headed by the Home Secretary, N. N.Vohra, who reported in a scathing tone how dismal the efforts to curb corruptionwere, and recommended the establishment of a nodal agency within the HomeMinistry [which deals with law and order in the country) to compile all theinformation provided by the various investigative agencies. It also recommendedthe need for improving the procedures for the constitution and monitoring thefunctioning of the intelligence agencies.

Yet another committee was later established (including Vohra) headed bythe Cabinet Secretary, which came to be known as the Independent ReviewCommittee (IRC). Noting that they see a general impression that the investigatingagencies are subject to extraneous pressures leading to dilatory tactics, theymade several recommendations such as the appointment of Special Courts todeal exclusively with foreign exchange rule violations, empowering theEnforcement Directorate to appoint special counsel for conducting trials, establishwithin the Ministry of Health medical boards to examine those accused whoclaim medical disability or emergency to stall the proceedings, and so on. It wasalso recommended that the CVC members be selected by a committee, and theappointment be made by the President of India conferring statutory status onthe Commission.

As the selection of the CBI Director itself tended to be controversial inthat the incumbent government might pick its own minion to subvert anyinvestigation, or transfer the incumbent to suit the needs of the day. The IRCalso recommended that a Selection Committee should identify a panel of namesfor the selection of the CBI Director, with the final selection to be made by theAppointments Committee of the Cabinet (ACC). While the Director musthave a minimum of a two-year tenure, any transfer is subject to the endorsementof the Selection Committee. Similarly, a Selection Committee headed by theCentral Vigilance Commissioner should recommend to the ACC a panel out ofwhich the appointment of the Director of Enforcement Directorate would bemade with a minimum two-year tenure and with the status of an Additional orSpecial Secretary to the Government.

Two events in 1999 illustrate the point: the transfer of the Director ofthe Enforcement Directorate, and the appointment of the VigilanceCommissioner. M.K. Bezbaruah, a civil servant heading the EnforcementDirectorate, was pursuing a number of very sensitive cases regarding violationsof the Foreign Exchange Regulations Act (FERA), 1973. The accused includedvery highly visible politicians and their associates such as Sasikala Natarajan,who was a close friend of Jayalalitha Jayaraman, the former Chief Minister andleader of AIADMK in Tamil Nadu, and a coalition partner of the BJPgovernment of Atal Behari Vajpayee at the Centre. Jayalalitha, who herself isbeing tried by three special judges in a slew of corruption charges, was allegedto have demanded the transfer of Bezbaruah under the threat that she wouldwithdraw her support knowing full well it was essential for the survival of the

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BJP government. As it was, she withdrew her support in late April 1999, andthe BJP government fell.

As if to confirm the suspicions, the Special Prosecutor, K. Kumar, whowas leading the investigations, was sacked in 1998. The Director himself wasabruptly transferred, despite the above cited Supreme Court directive whichinsisted that officials dealing with sensitive cases should not be transferred.The government argued that the Delhi Administration (to whose cadreBezbaruah belonged) wanted him back as the Transport Secretary. It shouldhowever be noted here that the Delhi government belonged to BJP, and thatin 1995 it was the same Chief Minister of Delhi who successfully had Bezbaruahmoved out of the Delhi Administration. Adding insult to injury, beforeremoving Bezbaruah as Director, the BJP government upgraded the positionto that of Special Secretary — two ranks higher than that of Bezbaruah—which made him ineligible for the position he was already holding. It may alsobe noted that the government later claimed before the Court that it wasunaware of the stipulation of the Supreme Court against transfers, as a wholesentence was in fact missing from the in-house draft. Needless to say, theSupreme Court charged that the government was misleading them, and incensedas they were, ordered the re-instatement of Bezbaruah as Director. Thegovernment had no alternative but to oblige, and in a face-saving effort saidthat the reappointment was "temporary."37

It should also be noted that the Enforcement Directorate itself had notdone a great job in the past, as the Director himself admitted. Of the 5,511corruption inquiries registered in 1977, only 159, or 3%, led to arrests, andcriminal prosecution launched against 92 - a mere 1.6%.38 The CBI could notget a single politician involved in the "Hawala" case convicted. It is equally clearthat the CBI was in fact subjected to many political pressures while investigatingthe corruption charges of high level public officials. So far, the CBI had beenlocated in the Prime Minister's Office. But with the Supreme Court's directiveit would pass under the control of the CVC in a way insofar as the latter wouldhave a say in who should be appointed as the Director of CBI as well as theEnforcement Directorate.

The second issue was the appointment of the Vigilance Commissioner.This appointment is crucial in that he or she would in turn help identifycandidates to head the other investigative agencies such as the CBI and theEnforcement Directorate. Pursuant to the Supreme Court directive, the BJPgovernment asked the Law Commission to draft a Bill, which was done byAugust 1998. By September 1998, the government passed an Ordinance, butthis was not necessarily in compliance with the Supreme Court directive. Forexample: "The Supreme Court did not envisage a multi-member CVC; theordinance does. The court did not specify that the Vigilance Commissioner willbe selected only from among civil servants; the ordinance does so. The SupremeCourt did not include the Personnel Secretary as an ex-officio member; theordinance does. Having the Personnel Secretary as an ex-officio member leaves

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the door open for influence-peddling by bureaucrats who may come under thescrutiny of the investigative agencies, since the former will have a major say intheir posting to the top slots in government."39

Moreover, the Single Directive which the Supreme Court thought wasinhibiting the prosecution of higher administrators on corruption charges, andhence was quashed, was brought back in the Ordinance when the permission ofthe CVC was required to prosecute any officials at the level of Joint Secretary andabove and other officials of government corporations and companies appointed bythe government. Thus, it is not surprising that Justice Jeevan Reddy, who chairedthe Law Commission was peeved enough at the Ordinance to say that once thegovernment "chose to ask the Law Commission to draft the CVC bill, they shouldhave studied it fully and then taken a decision."40

The Ordinance also stated that the Central Vigilance Commissioner andother Commissioners will be appointed by the President following therecommendation of a Committee consisting of the Prime Minister, Minister forHome Affairs, and the Leader of the Opposition in the Lok Sabha. In September1998, N. Vittal, a retired civil servant, was appointed to head the CVC for a termof four years. It is of interest to note that the 1977 Supreme Court directive citedabove stipulated that the CVC should be formed "from a panel of outstandingcivil servants and others with impeccable integrity" (emphasis added]. Neither didthe Law Commission's recommendation confine the appointment of a persononly from the civil service. But Section 3 (3) of the 1998 Ordinance issued by thegovernment confined the choice "from amongst persons who are or have been inan All India Service or in any civil service of the Union or in a civil post under theUnion having knowledge and experience in matters relating to vigilance, policy-making and administration including police administration." Thus, the currentappointment of a civil servant was criticised as being the result of the governmentsuccumbing to the pressures exerted by the civil servants (otherwise known as theIAS lobby).

The new Ordinance conferred statutory status on the CVC which wouldhave a Central Vigilance Commissioner on a four-year tenure, and three otherCommissioners with three-year terms. They can only be impeached, butotherwise cannot be removed from office. Procedurally, Ordinances issued bya government when Parliament is not in session would only be in effect for sixmonths. Beyond that, parliamentary approval is necessary. Thus the governmentintroduced the CVC Bill on 7 December 1998 in the Lok Sabha, whichapproved it. But, lacking a majority in the Rajya Sabha (or Upper House ofParliament), and to avoid defeat and the consequent embarrassment, the BJPgovernment did not even bring this on to the floor of Rajya Sabha whichmeans the Ordinance would have expired by 4 April 1999. Instead, thegovernment announced that it would issue an Executive Order on 5 April1999 to keep it going, but could not do it as Ordinances cannot be issuedwhile Parliament is in session. As noted above, the BJP coalition governmentwas voted out of office in late April 1999, but was re-elected with a more

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comfortable majority in November 1999, and announced that it would introducelegislation in Parliament.

Regime Corruption

As already noted, while more attention has been devoted to the issue of transactionalcorruption, not much is said about the more sinister and insidious practice ofregime corruption, which subverts the constitution and political institutions.Understanding a "regime" as a political system, the attempt here is to define twofacets of corruption of that system leading to a "de-institutionalisation" thatretards the development of the country. Regime corruption occurs when personaland partisan interests are confused with, and/or substituted for, the nationalinterests and the general welfare of the populace. Two aspects are relevant here:the misuse of constitutional provisions and the influence of personalities acting inan unconstitutional manner in the political and constitutional processes.

Misuse of Constitutional ProvisionsThe worst constitutional corrupt practice to date is the one concerning theEmergency Provisions. Most federal constitutions, with the notable exception ofthat of the United States of America, contain some provisions to contend withforces that might pull it apart under the pressures of the federating units.Independent India in particular had to contend with the trauma of partition (intoIndia and Pakistan), and the presence of several independent principalities locatedacross the length and breadth of the country. Thus one of the major initial needswas "the inclusion of adequate provisions in the Constitution which would enableunified, speedy and effective action in situations of an emergent nature."41 Moreover,as already seen above, a diverse country such as India will always have myriadfissiparous tendencies due to language, regional and cultural differences, whichare abetted by self-serving "pulp" leaders for short-term political gains that aredetrimental to the country. It is also important to note that the Constitution doesnot refer to either a Republic of India or a Federation of India, but to the "Unionof States." So, one of the primary tasks was to find ways to keep the nationtogether. To that end, Part XVIII, "Emergency Provisions" (Articles 352-360)were written into the Constitution.

Three types of emergencies were foreseen: due to war, external aggressionor armed rebellion (Article 352); because of the failure of constitutional machineryin the States (Article 356); and a financial emergency (Article 360). It is themisuse of Article 356 that demonstrates regime corruption at its worst.

Under Article 356, if the President is "satisfied" on receipt of a reportfrom the Governor of a State, "or otherwise," that a state government cannotbe run in accordance with the Constitution, he may proclaim an emergency.The Centre may take over the administration of the state by dismissing the

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duly elected government and dissolving the legislature of that state for twomonths, or three years with the approval of Parliament. As these powers cantransform a federal form into a near unitary government and thus pervert theoriginal Constitution, one would expect the Centre to use these withcircumspection. But such has not been the experience of late. While there hasbeen no financial emergencies so far and only four national emergencies, asmany as over 100 emergency were declared due to the supposed failure ofconstitutional machinery in the states. During the early years of the Republic,this provision was correctly invoked to either dismiss unstable or corruptgovernments which prompted M.V. Pylee, an authority on constitutional law,to conclude that "... in practice, the emergency provisions...have proved tobe...a protective device for responsible government."42 But the subsequentexperience proved beyond dispute that this process has been thoroughlypoliticised and perverted in that several state governments controlled by aparty (or parties) opposed to the party in power at the Centre were unjustlydismissed and presidential rule imposed, thus arbitrarily taking over the stategovernments under virtual Central control.43

Perhaps the most blatant abuse of these powers occurred in 1992. Afterthe 1991 general election, riding on the Rama Janambhumi issue, the BJPcame to power in four states: Uttar Pradesh (UP), Madhya Pradesh (MP),Rajasthan and Himachal Pradesh.(HP). However, following the demolition ofthe Babri mosque on 6 December 1992, the UP government was dismissed bythe Congress (I) Central government arguing that the former failed to preventinternal disturbance. This was followed by the dismissal of the other threegovernments which had nothing to do with the destruction of the mosqueexcept that they were all BJP governments.44 Not unexpectedly, the MP ChiefMinister, Sunderlal Patwa, went to court to challenge his dismissal. That StateHigh Court ruled in his favour stating that "...the consequences which flowfrom the Proclamation under Article 356 are drastic," and that "thisextraordinary power should not be permitted to be used or abused to achievepolitical ends."45 However, on appeal by the Central government, the SupremeCourt upheld the dismissal by stressing the secular nature of the countrywhich was threatened under the circumstances.

Two more egregious examples in this context followed, the first underthe United Front government (1997), and the second under the BJP rule(1998-99), both by-products of coalition politics. The first was in UP and thesecond was in Bihar, two states which seem to vie with each other forlawlessness to the point of anarchy.46 Following up on a year of President'srule, UP went to polls in 1996, and no party obtained the requisite majority toform a government though the BJP came out with the single largest plurality.However, the Governor of the State did not invite the BJP to form thegovernment. Instead he recommended that under Article 356 President's rulebe imposed.47 The BJP challenged the Proclamation, and the Allahabad HighCourt ruled in its favour by quashing the Proclamation of President's rule. But

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the Supreme Court stayed that order, and said that the Assembly should notbe dissolved so that a political solution could be found. Consequently, acoalition government was formed by the BJP and the Bahujan Samaj Party(BSP). But later, when this coalition was almost falling apart (as the BSP waspulling out], the BJP Chief Minister Kalyan Singh engineered several cross-overs from other parties and secured a majority on the floor of the House. Yetthe United Front government, under the pressure of its Defence MinisterMulayam Singh Yadav (a former Chief Minister of UP, and opposed to theBJP-BSP government in his state) recommended President's rule under Article356. But the President declined, and using his powers under Article 111returned the recommendation for a re-appraisal by the United Frontgovernment. Consequently, the government withdrew its recommendation,and Kalyan Singh continued as UP Chief Minister.

With the fall of the United Front coalition, a new general election wascalled in 1998, and the BJP came to power at the Centre by forming a coalitiongovernment. Then it was its turn with the Bihar government occupying centrestage.This state was under the rule of Rabri Devi of Rashtriya Janata Dal (RID), whowas appointed as Chief Minister by her husband Laloo Prasad Yadav, who himselfwas the Chief Minister but had to resign under a plethora of corruption scandalswhich reached the courts.48 But knowing the pressures to invoke President's rule,Rabri Devi in her turn, in a preemptive stroke, went to the Legislative Assemblyand won confidence with 182 votes (in a House of 325). In any case, the BJPgovernment at the Centre , under the pressure of one its coalition partner, theSamatha Party, recommended the dismissal of her government in September1998. Again, the President returned the recommendation for reconsideration, andthe BJP government had to back off. But in February 1999, as the law and orderproblem deteriorated in the state with the massacre of several backward classpeople, the BJP government recommended for a second time the dismissal of theRabri Devi government, and the President obliged. Yet, as soon as the Proclamationwas issued, it was withdrawn, the first of such experience in Indian history, as theBJP government had only a rather razor thin majority in the Lok Sabha, and wasin a decisive minority in Rajya Sabha. Rabri Devi was restored to power, andgained the confidence of the Assembly on 17 March 1999 by a majority of 172 to85 votes with Congress (I) abstaining and still stating that she had no moral rightto continue. Not only was the Central government embarrassed, but Bihar remainedas lawless as it was before.

On the other hand, in the recent case of the state of Gujarat, one cannotfail to notice the reluctance of a party in power at the Centre to dismiss a stategovernment of their own party even when there is ample evidence to dismissit. On 27 February 2002, a train carrying Hindu pilgrims in Godhra was set onfire, allegedly by Muslims, resulting in some deaths. This led to serious riotsand several more deaths of people belonging to both religions. All the oppositionparties in the Parliament raised a hue and cry and demanded that the stategovernment of one Narendra Modi be dismissed and the President's rule

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imposed. But the NDA government led by the BJP did not oblige. Instead, itexonerated Modi. Further in a purportedly opportune move, Modi dismissedthe legislature and resigned. He also sought early elections (due in February2003] so that he could exploit the majority Hindu population's rancour. TheElection Commission which is responsible for the conduct of elections visitedthe state, and concluded that it would not hold early elections as the law andorder situation had not improved four months after the tragedy, and theelectoral rolls were not even ready. There is a constitutional issue that hasbeen raised by the BJP government in that no more than six months ought toelapse between sessions of a Legislative Assembly. The President, exercisinghis right under Article 143, sought an opinion on this from the Supreme Court(at the time of this writing).49

The above cases prove beyond any doubt the argument that attempts atcorrupting the Constitution for political purposes is a well-beaten path. Given thecontroversy and the misuse of the Constitution, there have been several demandsfor the deletion of Article 356 from the Constitution altogether, or at a minimum,provide some safeguards against its misuse. However, due to disagreement onwhat those safeguards should be, Article 356 stands in its original form.

The Influence of PersonalitiesRegarding the influence of personalities meddling with the constitutional process,three glaring cases may be mentioned. Sanjay Gandhi, the younger son of PrimeMinister Indira Gandhi, stands at the top. Occupying no elected positionwhatsoever, he almost ruled the country (till he was killed in an air crash] whilehis mother was at the helm of both the government and the Congress (I] party.For the declaration of a national Emergency in 1975 by his mother, and heruntimely call for elections and loss of power in 1977, and her later assassinationin 1984, not to mention the trauma that the nation had to suffer in the process,at least part of the blame should be placed on Sanjay Gandhi's ambition and hismother's complicity in grooming him as heir apparent.

The second case concerns Bal Thackery, leader of a Hindu party, ShivSena, in the state of Maharashtra. Without even being elected to the legislature,but with a small, well-organised, powerful and vocal group, he has been aking-maker in the state dictating who would be the Chief Minister there, andeven dictating to the Central government as to what it should, or should not,do for that state.

The third case is Sonia Gandhi, the Italian wife of Rajiv Gandhi (the olderson of former Prime Minister Indira Gandhi) who himself came to power after theassassination of his mother, and was assassinated in turn later. Without ever beingelected to any office, but as the widow of the slain leader, Sonia Gandhi wieldeda lot of clout within the party itself, and several governments paid due deferenceto her. It is reported that since 1991 all governments, including the non-Congress(I) ones, have routinely sent all foreign dignitaries visiting the county to her home

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despite the fact that protocol did not require it. (This practice was stopped onlyin November 1999, paradoxically after she was elected to Parliament and becamethe Leader of Opposition.]

With the fortunes of Congress (I) party steadily declining, the party bossesin an effort to regroup for the general election of 1999 and tap into the familyname wooed a total political novice and once completely reluctant Sonia Gandhito head the party. With her pedigree, so to speak, she became a formidable figure,and went to the electorate for the first time in her life. Though she was elected toParliament, the Congress (I) party itself came up with its worst-ever results. Theparty not only has a rule of "one man, one position", but in the past it also forcedthe President of the party to step aside when the party fared poorly in the electionas was the case with P. V. Narasimha Rao, or Sita Ram Kesri. Instead, after thedebacle of the 1999 election, Sonia Gandhi not only continued as the President ofthe party, but also was elected as the leader of the Parliamentary Congress (I]party and the leader of the Opposition in Parliament. Some sycophants have goneas far as projecting her daughter Priyanka, who appeared to have some politicalambitions before settling down to married life, as next in line of this "dynasty"(Rahul, the elder son, showed no political ambitions so far, just like his father,Rajiv, did initially.) That members of one family are continuously projected as thesaviours of a nation of one billion people with over 645 million electors showshow important personalities are in Indian politics, and without ever being electedto any office how much political clout they carry. This, of course, is inimical todemocracy and a perversion of the Constitution. Political corruption, highlightedby party corruption consequent to personality cults almost always leads to thearguments ofeven changing the Constitution. During Indira Gandhi's regime,there was continuous talk of changing the parliamentary system into a presidentialsystem to suit her style, and assure her election. Now, with three coalitiongovernments in as many years, there is talk of amending the Constitution toensure that the Parliament would sit for a full five-year term, all in the name ofstability, ostensibly. The BJP appointed a Constitutional Review Commissionwhich submitted a report by the middle of 2002 whose recommendations are yetto be discussed, much less implemented.

Not only politicians, but also some former civil servants fall into thistrap of personality cults. The prime example is the former Chief ElectionCommissioner, T. Seshan. As an appointee of the Government of India withan ostensible responsibility of conducting corruption-free, clean and fairelections, he had single-handedly run against all the elected politicians, includingPrime Minster P. V. Narasimha Rao, and nearly came to dictate how thegovernment had to be run while demanding that he be treated on par with theJustices of theSupreme Court and even change the Warrant of Precedence sothat he can have a place of pride. To end this near autocracy, the governmenthad to appoint two additional Election Commissioners which he challenged incourt by impugning the government's action as mala fide. To understand theseriousness of the single individual meddling with the Constitution and political

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processes, one only needs to turn to the opinion of the Supreme Court ofIndia. While clipping his wings, the Court said:

... Vast discretionary powers, with virtually no checks and balances, should not be left inthe hands of a single individual and it was desirable that more than one person shouldbe associated with the exercise of such discretionary powers... It is...contended that thestyle of functioning of the present CEC [Seshan] itself is sufficient reason to constitute amulti-member Commission so that the checks and balance mechanism that theConstitution provides for different institutions may ensure proper decision-making....The CEC is, it would appear, totally oblivious to a sense of decorum and discretion thathis high office requires even if the cause is laudable.50

Thus, personalities count a great deal in Indian politics, and corrupt as they are intheir quest for power and wealth, they treat the Constitution as a mereinconvenience, and help undermine it in more ways than one.

Conclusion

The above discussion shows that a country may have all the institutional measuresand laws, but so long as these measures are wanting in proper working andimplementation, corruption will continue unabated. After analysing case lawpertaining to corruption, H. L. Mansukhani concluded that the Prevention ofCorruption Act turned out to be a "puerile piece of legislation", as it only morerigorously recognised several forms of bribes and corruption, but did not preventthem. According to him, it only created a new branch of evidentiary law whoseobjectives are neither moderate, nor practical.51 Similarly, both constitutional andlegal provisions are being continuously flouted or tampered with for personal,political and partisan reasons thus raising further legal and constitutional issues.Not only is sanctity of the Constitution undermined but the Rule of Law is alsonegated. Such a failure is attributed to several reasons.

First, the emphasis mostly is not so much on correcting the causes ofcorruption but on the effort to deal with the practices and outcomes of corruption.The second reason is poor leadership and lack of decent role models, bothadministrative and political. Third, an influential civil servant can always look forthe helping and interfering hand of a political master and feel secure just asinfluential politicians can take shelter behind their more powerful masters. Thereis also collusion between the political master and the civil servant either in sharingthe ill-earned income, or when the former protects the latter for providingfavours. Fourth, the anti-corruption measures have not been implementedimpartially and completely.

Fifth, sometimes the very Rule of Law and the various rights guaranteedto the civil servant in the name of assuring neutrality, may also contribute tothe difficulty in prosecuting corrupt cases, as paradoxical as it might sound.

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For example, Article 311 of the Constitution of India provides that no civilservant can be "dismissed or removed by an authority subordinate to that bywhich (s)he was appointed." The appointing authority at the Centre is thePresident of India which precludes any one else. Thus, the only weapon leftfor the subordinate political authority is the transfer, which of course is usedwith impunity leading to low morale, and further providing incentives to becorrupted by the political masters.

Sixth, as most everyone not only indulges in this, but also benefits by it,there is the apparent lack of political will to reform and prevent corruption.Largely, public service is no more considered a public trust but a great opportunityfor private gain. No wonder, following the Tehelka expose, a vast majority(83%) of respondents in a poll thought that the politicians are corrupt.52

Finally, perhaps the most crucial element in the process of combatingcorruption is the society's attitude towards corruption. For no amount of legalrestrictions would help combat corruption in India so long as the society itselfin general is lenient and tolerant. The Santhanam Committee aptly observedthus: "In the long run, the fight against corruption will succeed only to theextent to which a favourable social climate is created."53 But, as already seen,the Hindu system of life, as being not only absorbing but also forgiving in itselfappears to be a hurdle. A corrupt official can always count on the benevolenceof a superior authority.

The duality in life also is seen in that the same person while proclaiming a"holier than thou" attitude could also lead the most debased life. While preachingthe doctrine of non-attachment to material things, a Hindu could acquire immensewealth and enjoy a very profligate life. Stemming from the above, there is anassumption among many in India, however ill-informed it is, that public office isa sure and quick way of getting rich. Furthermore, the liberal and almost amoralattitude that appears to be taking hold since economic liberalisation in 1990 onlyencourages this attitude further. While deriding the all-pervasive corruptionintellectually and certainly rhetorically, people are all out on an acquisition binge.Thus nothing positive and constructive emerges. There in fact has been a generalrot in this context.

This attitude is further buttressed by transient governments. Pressured asthey are to survive in office, unscrupulous leaders resort to all sorts of illegal,amoral, and even unconstitutional means. In an effort just to remain in office,coalition governments have been succumbing to the pressures of their partnerswho have learnt that they can get a lot of political mileage by simple threats ofwithdrawal of their support, and by using, or attempting to use, legal andconstitutional provisions as partisan tools. In a way, the coalition governmentsare turning out to be hostages of pure partisan interests. The all-consumingeffort of these governments appears to be no more than keeping in office, anddoes not augur well for the development of the country.

Often times, it is argued that India has been spared the trauma ofconstitutional disruption by way of military interventions and so on as has

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been the case with its neighbours like Pakistan and Bangladesh because Indiahas been lucky to have political institutions firmly entrenched. Indeed, Indiais proudly displayed as the largest working democracy in the world. But it isnot enough to have only a shell of an institution while the spirit is lacking.This "de-institutionalisation" process, by subverting the Constitution andusing other political institutions for partisan ends is no more than keeping afacade of democracy. Prime Minister A.B. Vajpayee himself confessed thus:"The outershell of democracy is no doubt intact, but it appears to be moth-eaten from inside."54 A similar argument was made by Fareed Zakaria whenhe agonised over the rise of what he called "illiberal democracy" whengovernments duly elected by the people nonetheless ignore the constitutionallimits to their power.55

It indeed is hard to decide which is the cause and effect of corruption: Isthe society permissive, or is a corrupt regime corrupting the society? Thetraditional Sanskritic usage, yatha raja, tatha praja (as is the king, so is thepopulace) is often cited to blame the regime. On the other hand, there is thecynical theory that a people gets a government that it deserves. Indeed, the tophas to set an example before asking the masses to do what the elite cannot, orwill not, do. The best political tool on the horizon is the discipline and integrityof political parties and their leaders, as all else so far appears to have failed. Butsimultaneously, the nation as a collectivity ought to show its intolerance, andgive the corrupt the boot. A clear sweep of the polity, it appears, thus is the taskat hand for all reformers.

Notes

The author gratefully acknowledges the generous supply of research material from N.Jaya Prakash Narayan, M.D., IAS (retd.) of the Forum for Democratic Reform in India.He is also grateful to A. Premchand, David Rosenbloom and Arvind Verma forcommenting on an earlier draft of this article. However, he is responsible for the opinionsexpressed in the article.

1 The reference here is to the attitudes of people and their perception that themajority of public servants are corrupt. See Gunnar Myrdal, Asian Drama: AnInquiry into the Poverty of Nations, Vols. I and II (New York: Twentieth CenturyFund, 1968), p. 408.

2 Carl J. Friedrich, "Corruption Concepts in Historical Perspective," in Arnold J.Heidenheimer, Michael Johnston and Victor T. LeVine (eds.), Political Corruption:A Handbook (New Brunswick: Transaction Publishers, 1989), p. 15. See also Carl J.Friedrich, The Pathology of Politics: Violence, Betrayal, Corruption, Secrecy andPropaganda (New York: Harper and Row, 1972), pp. 127-41.

3 John Andrews, Pocket Asia, 6th edition (London: The Economist Newspaper Ltd.,2001), p. 68.

4 Ibid., p. 76.

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66 • Asian Journal of Political Science

5 Ibid., pp. 76-77.

6 99 Britannica Book of the Year (Chicago: Encyclopedia Britannica, 1999) on theInternet.

7 This lack of precision is due to the use of several criteria and different methodologiesfollowed. Using the amount of money needed to maintain a daily caloric value of2,400 in rural areas and 2,100 in urban areas per person, it was estimated in 1982that India had about 317 million poor persons. The Planning Commission estimatedthe number to be 37.4% of the population whereas the Indian Statistical Instituteput that number at over 43%.

8 Andrews, Pocket Asia, p. 77.

9 Data obtained from "Information on India" on the Internet, November 1999.

10 BBC poll, on the Internet [1 December 1999).

11 Between them, India and Israel were said to be producing more than half of ThirdWorld arms as far back as in 1989. The Times of India, 29 May 1989, p. 14.

12 See the story in India Tribune (Chicago), 4 December 1999, p. 8.

13 For example, after a cyclone in Orissa in November 1999, relief was rushed fromseveral places, but as many as 13,000 tons of food were left undelivered, 60,000pieces of clothing remained undistributed, and communications were yet to be re-established five weeks after the disaster. See the relevant stories in India Today, 22November 1999.

14 See, India Today, 29 November 1999, p. 7.

15 Nirad C. Chaudhuri, Thy Hand! Great Anarch! India: 1921-1952 (London: ChattoandWindus, 1987), p. 787.

16 R. Shama Sastry, Kautilya's Arthasastra, 8th edition (Mysore: Mysore Printing andPublishing House, 1967), p. 71. See also Upendra Thakur, Corruption in AncientIndia (New Delhi: Abhinav Publications, 1979).

17 Quoted in M.V. Pylee, Constitutional History of India, 1600-1950, 2nd rev. ed.(Bombay: Asia Publishing House (P) Ltd., 1980), p. 4.

18 The 33 modes of corruption are listed under two categories: practices involvingthe public, and those internal to administration. The former include bribery overtenders, contracts, quotas and licences; acceptance of substandard stores; forgeryand conniving at false assessments of claims and income-tax; irregularities intransport bookings; intentional delays in order to obtain "speed money", briberyfor performance of what should be normal duties, or for their non-performance;acceptance of gifts to use influence; misuse of powers; and carrying on privatebusiness under cover of official duties. Corrupt practices internal to theadministration cover misappropriation of public money and of stores;production of false claims for allowances and reimbursement, and of forgedcertificates of age, community, educational qualifications, etc., abuse of officialposition or powers; acceptance of illegal gratification in recruitment, postings,transfers and promotions; misuse of government employees for private work;misuse of advances sanctioned for purchases and leave travel concessions;cheating in connection with the sale and purchase of land; and unauthorisedoccupation and sub-letting of government residential quarters. Report of theCentral Vigilance Commission, 1966 (New Delhi: CVC, 1967), pp. 15-16 and32-33.

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19 For an analysis of corruption and the statutes dealing with it see, for example, J. B.Montiero, Corruption: Control of Maladministration (Bombay: Manaktalas, 1966); L.Michael Hager, "Bureaucratic Corruption in India: Legal Control ofMaladministration," Comparative Political Studies, Vol. 6, No. 2 (July 1973), pp.197-219; Leslie Palmier, The Control of Bureaucratic Corruption: Case Studies in Asia(New Delhi: Allied Publishers Private Limited, 1985); R. K. Nigam and V. G.Kesary (eds.), Public Sector Management and Vigilance (New Delhi: DocumentationCenter for Corporate Business Policy Research, 1982);N. S. Chakravarthy,"Management and Administration in India—Impact of Vigilance Machinery," IndianJournal of Public Administration Vol. 36, No. 4 (October-December 1990), pp. 845-68.

20 Quoted by B. Venktatappiah, "Office, Misuse of," in David L. Sills (ed.),International Encyclopedia of Social Sciences, Vol. II (New York: Macmillan, 1968), p.272.

21 First Five Year Plan, p. 115.

22 "SC questions delay in appointment of Lok Pal," Times of India (wysig://21/http://timesofindia.indiatim...), 22 August 2002.

23 Prior to this defence scandal, this group exposed the infamous cricket match-fixingscandal.

24 "Government Shamed and Crippled," was the headline on the cover page of theprestigious weekly, India Today, 21 March 2001.

25 Information on this scam is gathered from several stories in the print medium:Indian Express (Sunday Exclusive), wysiwyg://mainFrame://www.indian.express.com/ (22 August 2002), timesofindia.indiatime (22 and 23August 2002), Rajeec Deshpande, "Filth in the Fuel," India Today, 19 August 2002,pp. 10-12.

26 For details see: www.loksatta.org. There are many committed individuals toonumerous to mention here.

27 See http://headlines.sify.com (26 February 2002).

28 See http://headlines.sify.com (9 July 2002).

29 See Transparency International's web site: http://www.transparency.org.

30 See Kamal Nayan Kabra, India's Black Economy and Maldevelopment (New Delhi:Patriot Publishers, 1986); Ram L. Chugh and J. S. Uppal, Black Economy in India(Delhi: Tata-McGraw Hill Publishing Company Limited, 1986).

31 See The Indian Express (Hyderabad), 9 July 1990, p. 4. The current exchange rate isUS$1= Rs. 44.

32 For example, Green Markets reported that such demands made on Americanfertiliser trade firms alone would have yielded Rs. 250 million for the Congress (I)party as US$3-5 were kicked back on each ton of fertiliser imported into India. Seethe report in Indian Express (Hyderabad), 2 August 1989, p. 1.

33 Robert Wade, "The Market for Public Office: Why the Indian State is no Better atDevelopment," World Development, Vol.13, No. 4 (1985), p. 486.

34 Kuldeep Mathur/'Bureaucracy in India: Development and Pursuit of Self-interest,"Indian Journal of Public Administration, Vol. 37, No. 4 (October-December 1991),p. 639.

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35 K. Santhanam, Report of the Committee on Prevention of Corruption (New Delhi:Government of India Press, 1964), p. 7.

36 Vineet Narain et al., Union of India et al, 1998 ISC 226. All the quotes that followin the text, unless otherwise specified, are from this decision.

37 Ironically, Bezbaruah himself was accused of corruption by a former DeputyDirector (Delhi zone), Ashok Agarwal, who himself was divested of his sensitiveposition, and his house was raided previously. See India Today, 19 April 1999, pp.22-23.

38 See the interview with Bezbaruah in Frontline on Line, Vol. 15, No. 20 (26September - 9 October 1998).

39 Sudha Mahalingam, "Vigilance Commission: Issues for Vigilance," Frontline on Line,Vol. 15, No. 19 (12-25 September 1998), p. 4.

40 Indian Express (New Delhi), 5 September 1998, p. 1.

41 B. Shiva Rao (ed.), The Framing of the Constitution of India: A Study, Vol. 5 (NewDelhi: Indian Institute of Public Administration, 1968), p. 802.

42 M.V. Pylee, India's Constitution, 2nd ed. (Bombay: Asia Publishing House, 1967), p.347.

43 For further discussion, see Krishna K. Tummala, "The Indian Union and EmergencyPowers," International Political Science Review, Vol. 17, No. 4 (October 1996), pp.373-84.

44 The issue here was the BJP claim that a mosque was built by the Mughal EmperorBaber in Ayodhya in UP on a site which was originally considered to be a templecomplex for the Hindu God Rama, and that mosque be removed (in fact it wasdestroyed by a mob as the BJP State government stood silently in December 1992)and a temple for Rama be re-built. For an analysis of this situation, see Krishna K.Tummala, "Religion and Politics in India," Asian Journal of Political Science, Vol.1,No. 2 (December 1993), pp. 57-76.

45 Sunderlal Patwa v. Union of India, A.I.R. 1993 MP 214.

46 It is reported that there were at least 96 armies of gangsters operating in UttarPradesh with nearly 57 of them patronised by one political party or the other. Asmany as 209 candidates contesting the 1996 elections had criminal records, with 10of them already convicted. Thirty-two of those elected had criminal records. SeeIndia Today, 15 April 1997, p. 25. In case of Bihar, during 1991-99 there had been58,565 murders, 18,485 kidnappings, 8,377 rapes, 495 political murders, and 390massacres. See The Hindu On Line, 14 February 1999, p. 7.

47 For further details, see Krishna K. Tummala, "Constitutional Government andPolitics in India: The Case of Uttar Pradesh," Asian Journal of Political Science, Vol.6, No 2. (December 1998), pp. 79-97.

48 The charge against Laloo Prasad Yadav was misappropriation of funds to the tune ofRs. 27.8 billion. There were 1,200 judicial contempt strictures and 2,186 pendingcontempt cases in the State. See India Today, 5 October 1998, p. 15.

49 See www.indian-express.com (18 August 2002). For further discussion of thereligious politics, see Krishna K. Tummala, "Fundamentalism vs. Democracy:Religious Politics of the Bharatiya Janata Party in India," in Santhosh Saha (ed.),Religious Fundamentalism in the Contemporary World: Critical Social and PoliticalIssues (New York: Lexington Books, forthcoming).

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50 In T. N. Seshan v. Union of India, Supreme Court Almanac 1995 (4) Scale, 14 July1995, pp. 348-52.

51 H. L. Mansukhani, Corruption and Public Servants (New Delhi: Vikas PublishingHouse, 1979).

52 See, India Today-ORG-MARG poll, as reported in India Today, 26 March 2001, p.17.

53 Santhanam Committee, op. cit., p. 101.

54 Quoted in India Today, 15 February 1999, p. 8.

55 Fareed Zakaria, "The Rise of Illiberal Democracy," Foreign Affairs, Vol. 76, No. 6(November-December 1997), pp. 22-43.

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