No one can doubt that corruption among public servants is one of the most serious problems facing the worldtoday, particularly in third world countries where it is most rampant. This corruption not only leads to largescale leakage of public funds meant for public services and development, it has other negative influences aswell in any society.
A former Prime Minister of India had estimated that 85% of the public funds leak away due to corruption.Even the funds that are actually spent on public works and development are often spent on projects which maynot be needed in public interest and have been selected to maximize the possibility and scale of kickbacks.These are usually large centralized projects where money flows to large contractors through a central source.This is one reason why corrupt governments promote centralized mega projects though they may not be in theinterests of the poor and weaker sections.
Large Dams and mega irrigation projects in India are a good example of this. Though they virtually bring nobenefits to the poor, who are often displaced and rendered homeless by such projects, they do often benefitthe rich particularly large corporations. However, a major reason why they are promoted by the government isbecause of the scope they offer for large centralized kickbacks. This then inevitably leads to the growth ofcorrupt megacorporations which come to posess enormous power and clout in corrupt societies. This not onlyperpetuates the cycle of corruption, it also undermines the institutions of accountability, leads to furtherdisempowerment of the poor and thus undermines democracy.
The illegitimate money made by corrupt public servants and the power that it gives them is then also usedto perpetuate them in office. This corrupt money is one of the main factors responsible for the continuedreelection of such politicians. They become masters of the people they are supposed to serve.
The seriousness of this problem in India can be estimated from the fact that a recent Chief Minister of theState of Punjab has been charged with possessing assets (which cannot be explained legitimately) which areseveral times the annual health and education budgets of the State. It has also been estimated that theillegitimate funds of Indians in Swiss banks or other secret tax havens is equal to the total GNP of India.
Corruption invariably is bred in and breeds a vicious cycle of lack of transparency and weak institutionsof accountability, which leads to further corruption, which leads to the empowerment and perpetuation ofcorrupt public servants and corrupt mega corporations, which leads to impoverishment and disempowerment of thepoor and marginalized sections, which then leads to further corruption.
The main reasons for the growth and institutionalization of corruption are: a culture of secrecy with lackof transparency, and weak institutions for securing the accountability of public servants, such as theVigilance bodies, the criminal investigative agencies and the judiciary. Sometimes the legal regime to dealwith corruption may be weak, but in more cases than not, including India, the legal regime has been frustratedby the weakening and corruption of the institutions to implement the regime. India has a strong andcomprehensive anti-corruption law.
However very few of the innumerable corrupt public servants are caught and brought to book. This is partlybecause of the culture of secrecy, which has been bred by not having an adequate law to provide for Right toInformation, while on the other hand, continuing with the colonial ‘Official Secrets Act’, which makes itan offence for a public official to disclose any information that he has acquired in his official capacity,(quite the opposite of a Whistle blower protection Act). This makes it difficult to detect corruption. Butequally importantly, the deep rooted and pervasive corruption has also afflicted the enforcement agencies andthe judiciary. This allows the few crooks who get caught to escape accountability and punishment.
Recently, because of an effective Right to Information campaign by civil society, we have seen theenactment of Transparency laws by many States and by Parliament. However in most cases, these laws are notstrong enough and almost invariably deny access to official files, notings and correspondence of publicofficials. Moreover the implementation of these laws is still poor, particularly in those parts of the countrywhere there isn’t a strong and organized civil society movement against corruption.
There has also been some attempt to reform and strengthen the institutions of accountability. Thusrecently, due to the intervention of the Supreme Court, the main agency to investigate corruption has beensought to be freed from the direct control of the political government and placed under the supervision of anindependent statutory Vigilance Commission. However, the all pervasive corruption has also seeped into thejudiciary which is also largely nonfunctional because of overload of work.
Though the problem with the judiciary is universally acknowledged, there isn’t an organized civil societymovement to push judicial reforms. Those is power being largely corrupt, recognize that a non functional andcorrupt judiciary will allow them to escape punishment even when they get caught. Compounding the problem isthe opacity of the Swiss and other similar banking systems of Tax havens which provide an easy and relativelysafe method to obtain and retain corrupt wealth.
Solutions and the Role of Civil Society
The solutions to the problem and the critical role of civil society in implementing the solutions emergefrom the above analysis. It is clear from the experience of the National Campaign for People’s Right toInformation (NCPRI) that transparency in all aspects of government functioning is by far the most importantmeasure to deter corruption, particularly in an organized and vigilant civil society. If people could see whatofficial transactions were taking place and how, it would be difficult for corruption to remain undetected.The experience with the public hearings (called Jan Sunvais) conducted by the NCPRI has shown that open publicexposure of corruption is in most cases sufficient to bring corrupt officials to book.
It would be useful to illustrate how the technique of public hearings has been used to expose corruption inIndia. A detailed note on this and on the entire history of the Right to Information movement in India isavailable for those who are interested. Briefly however, it may be stated that public hearings have beenparticularly used to expose corruption in development works undertaken by the government at local levels-thevillage panchayats and the municipal districts.
Before such hearings, the NCPRI volunteers collected official records and documents (mainly accounts anddetails of work done), relating to development work done on roads, housing for the poor, employment generationschemes, minor water projects, using the newly enacted Transparency laws. These records were then examined bythe volunteers by cross checking whether the work shown to have been done in the official records had indeedbeen done on the ground; whether persons shown to have been paid wages had indeed been paid etc. In many casesthe reality on the ground did not match the records. A public hearing was then held after considerablepublicity in the local area in which all the residents of the region were invited. The concerned governmentofficials and their supervisors were also invited. Some well known public persons and journalists were alsoasked to witness these hearings.
At these hearings, the salient features of the official record were first publicly read out and then thedirectly concerned residents of the area who could from personal knowledge contradict the records, were askedto speak. They pointed out why the records were false, by saying for example, that while they were the personsshown in the records as having been paid certain wages, they had in fact received nothing or substantiallyless than what was shown in the records; or that the water handpump shown to have been installed at aparticular place, was never installed. The officials concerned were then invited to explain this. Mostofficials who did attend such hearings, did attempt to offer some explanation, but the explanations wereimmediately shown to be bogus by the local people present. These hearings therefore provided a convincingpublic exposure of corruption at the local level. This often led to immediate action against the officials andin some cases even to the return of the funds misappropriated. The hearings aroused enormous interest,particularly among the poor and marginal sections of society who otherwise felt helpless and powerless againstsuch corrupt officials. The very act of public exposure of such officials before their eyes was empowering andthey happily came and deposed against these officials at such hearings. These hearings at once demonstratedthe power of information to expose corruption and the salutary effect of such public exposure in bringingabout accountability.
While these public hearings have been a useful instrument to expose and deal with corruption at the locallevel, they would not be able to address corruption in high places, such as in complex mega contractsnegotiated at high levels of government. To expose such high level corruption, we need motivated civil societyorganizations with independent experts who are familiar with the working of these sectors and with projectfinances. The Centre for Public Integrity in the US has tried to use the Freedom of Information Act to accessbasic information regarding such contracts (the Iraq reconstruction contracts). However one needs moredetailed information including notings of officials on the files to get evidence of corruption in such cases.Unfortunately, most FOI Acts including the recent Indian law does not allow access to such information. Evenso, even a limited informed scrutiny of the contracts by independent experts, could be useful in exposingcorruption in such contracts.
The success of the public hearings led to an intensification of the RTI campaign which has eventually ledto RTI laws being enacted in about 10 States and in Parliament in India. It has also led to a demand for theright to Information about the criminal antecedents and assets of candidates contesting elections. PublicInterest petitions were filed in the Supreme Court by various civil society organizations for securing thisright. Allowing these petitions, the Supreme Court ruled that such disclosure was a fundamental right ofcitizens and also essential to make democracy meaningful. For the first time in the recently held elections in5 States, candidates were obliged to disclose on oath, their criminal antecedents and their assets andliabilities. It was found that even the requirement of such disclosure has deterred several candidates withcriminal records and unexplained assets from contesting. Various civil society groups including the NCPRI andTransparency International helped in quickly digesting and summarizing this information and putting it out inthe public domain. With greater civil society participation, it should be possible to expose those candidateswho have made false declarations and whose assets cannot be explained by legal sources of Income. A vigilantcivil society which continuously monitors and tracks the actions of elected representatives, particularly withreference to what they had professed and promised during their campaigns, would go a long way in holding themaccountable during the next round of elections. Such vigilance would undoubtedly be an enormous incentive tothem to maintain their integrity.
Today, technological progress has made it feasible to videotape all public offices throughout working hoursand maintain these records for public access. Such total transparency, while it would not eliminatecorruption, would certainly close many avenues for corruption. For example, one serious problem is the refusalof the police to register criminal complaints unless their palms are greased. This would not be possible ifthere was an accessible video record of the transaction between the police and the complainant at the policestation. The same would be true of many other government offices involved in public dealings, such as theIncome Tax office, the Municipal Corporation office and the Electricity office. Though such a measure would beresisted tooth and nail by the public servants, there is no reason why one should not have completetransparency in how public servants go about their official functions. The time has come for civil society tovigorously take up this campaign.
Apart from strong and comprehensive laws to ensure transparency and RTI, the legal regime must also containlaws to ensure protection to whistle blowers who expose corruption. This must include not only protection fromvictimization by the government, but also security against possible violence. India is beginning to see thespectre of violence unleashed against whistle blowers. The continuance of banking secrecy of Swiss likesystems is clearly anathema to a corruption free society. Such opacity must be ended if corruption in highplaces is to be curbed. After 9/11 there is a growing realization even among affluent countries that suchopacity of the banking systems also allows terrorists and other blue collar criminals to conceal their fundsand transfer them without detection. The provisions for mutual assistance in criminal matters envisaged by theUN protocol adopted yesterday are welcome, but do not go far enough. India has seen how much time it takes tobreak Swiss banking secrecy even when the information is sought to investigate criminal offences. This is anissue on which international civil society must come together to put pressure on such nations which have suchsecrecy.
It will be seen that countries where corruption flourishes also have weak and corrupt judiciaries. Anycountry which is serious about tackling corruption must urgently take up judicial reforms and ensure that thecriminal justice system works properly. In India, this is still a major problem and the higher judiciary iscompletely unaccountable. Judges of the Supreme Court and High Courts cannot be removed from office except bya procedure of impeachment which has been shown to be completely impractical. You cannot even investigate ajudge for a criminal offence without the permission of the Chief Justice of India. On top of this, anyone whomakes an allegation against a judge (even if it is true) can be punished for contempt of Court. It is only astrong civil society movement which can catalyse such reforms, since it suits those in power, including thejudiciary to continue with such a non functional and corrupt system.
It must be said however to the credit of the Indian judiciary that some of the much needed reforms havebeen pushed by the judiciary by the tool of Public Interest Litigation. This tool has also been used to goodeffect by civil society in some cases.
In summary, it may be stated that a corruption free society must have a) Strong and adequate laws such asAnti corruption Acts, Right to information Laws and laws to protect whistle blowers; b) Strong, independentand properly functioning institutions to enforce accountability, and criminal justice such as Investigativeagencies, Vigilance Commissions, and the Judiciary; and c) An organized and vigilant civil society whichmonitors the conduct of public officials and exposes corrupt ones. Till such time that there are adequate lawsand institutions, it is the civil society which has to mount public campaigns to put them in place.Ultimately, it is only a powerful civil society movement which can break the vicious cycle of corruption inany society.
Prashant Bhushan is a public interest lawyer in the Supreme Court.
