Certain public sector anti-corruption safeguards in India perform very well while others do not. India’s performance on the 2009 Global Integrity Index indicates a huge gap between anti-corruption policies and practice. The legal and institutional framework to curb corruption is well developed and the country receives high scores in terms of anti-corruption law and institutions. This was testified by an analysis conducted by Transparency India in 2007 to identify possible gaps between the UN Convention against Corruption (UNCAC) and the legal and institutional framework of India. The biggest substantial gap identified by the report was in the area of whistleblower protection. Thus, the law enforcement is significantly weak, suggesting a lack of political will to effectively address corruption challenges in the country.
The Legal Framework
Prevention of Corruption Act, 1988 (POCA) is India’s principal legislation against corruption. Its main thrust is to prohibit public servants from accepting or soliciting illegal gratification in the discharge of their official functions. In addition, bribe-givers and intermediaries may be held liable under POCA for bribing public officials. However, prosecution under POCA requires prior approval of high authorities which severely limits its usefulness particularly where there is collusive activity within government branches.
[The term “Public servant” under POCA (section 2) is quite broad, and includes central and state government employees, employees of government-owned corporations, judges, arbitrators, elected officials, and anyone authorized or required to perform a “public duty”.]
In addition to POCA’s prohibitions, various sections of the Indian Penal Code (IPC) provide criminal punishment for public servants who disobey relevant laws or procedures, frame incorrect or improper documents, unlawfully engage in trade, or abuse their position or discretion.
The Prevention of Money Laundering Act 2002 seeks to prevent money laundering including laundering of property through corruption and provides for confiscation of such a property. It mainly targets banks, financial institutions and intermediaries such stock market intermediaries. They must maintain records of all transactions exceeding Rs 10 lakhs. Later amendment has also brought non-profit organizations under PMLA. They have been the typical conduits for terror organizations. The Enforcement Directorate recently began action to attach properties of DMK-controlled Kalaignar TV under the PMLA to recover Rs 215 crore in connection with the 2G scam for which DMK MP Kanimozhi is in jail along with A Raja.
The 2005 Right to Information (RTI) Act represents one of the country’s most critical achievements in the fight against corruption. Under the provisions of the Act, any citizen may request information from a “public authority” which is required to reply within 30 days. The Act also requires every public authority to computerize its records for wide dissemination and to proactively publish certain categories of information for easy citizen access. This act provides citizens with a mechanism to control public spending. Many ani-corruption activists have been using the RTI to expose corruption. Lack of legal protection against whistleblowers, however, puts them in risky situation and many RTI activists have lost their lives in last six years.
No Protection to Whistleblowers
The lack of legal protection to whistleblowers was glaringly highlighted by the 2003 murder of Sri Satyendra Dubey, who exposed corruption in the National Highway Authority. Recent murder of an RTI activist, Shehla Masood in Bhopal is just another painful reminder of vulnerability of whistleblowers in this country.
After Dubey’s murder, government issued a resolution known as the Public Interest Disclosure Resolution (PIDR) authorizing the Central Vigilance Commission (CVC) to be the ‘Designated Agency’ to receive written complaints on any allegation of corruption or misuse of office and to recommend appropriate action. The CVC was also empowered to take action against anyone who leaks the names of whistleblowers and witnesses and may request police to investigate further. 1300 complaints were received by the CVC in next three years, but 30 whistleblowers faced harassed in spite of the confidentiality of PIDR complaints – as reported by the CVC.
The Central Bureau of Investigation (CBI) also has an online complaint mechanism which guarantees the protection of whistleblowers reporting corruption cases. But people want an explicit piece of legislation that protects the honest voice raisers and punishes those who harass them
The Institutional Framework
Note that Indiaendorsed the ADB-OECD Anti-Corruption Action Plan in 2001 and ratified the UN Convention against Corruption (UNCAC) and the UN Convention against Transnational Organized Crime (UNCTOC) recently in May 2011. Therefore, it is duty bound to bring its legislative framework closer to the International norms. Significant effort is required not just to strengthen the anti-graft laws but also to provide teeth and freedom to the implementing agencies. Following is a snapshot of current institutional framework that is supposed to prevent corruption.
There are various bodies in place for implementing anti-corruption policies and raising awareness on corruption issues. At the federal level, key institutions include the Supreme Court, the Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI), the Office of the Controller & Auditor General (C&AG), and the Chief Information Commission (CIC). At the Sate level, there are local anti-corruption bureaus such as the Anti-corruption Bureau of Maharashtra.
In recent years, the Supreme Court has taken a stronger stance against corruption. It has challenged the powers of states in several instances. For example, in 2007 in Uttar Pradesh, it challenged the state governor’s powers to pardon politically connected individuals based on arbitrary considerations. In other instances, judges have taken on a stronger role in responding to public interest litigation over official corruption and environmental issues. In December 2006, in a landmark ruling, the Supreme Court ruled that prosecutors do not need prior permission to begin proceedings against politicians facing corruption charges. It has also started addressing corruption in the police by mandating the establishment of a police commission to look into these matters and has ruled that corrupt officers can be prosecuted without government consent.
The Central Vigilance Commission (CVC) is the apex watchdog agency established in 1964. The CVC can investigate complaints against high level public officials at the central level; not at the state level. In 2005-09, CVC slapped penalties on 13,061 CASES (average 2612 per year).
Mandate: Oversees and supervises vigilance and anti-corruption work in all central government ministries, departments and PSUs. All group A officers (joint secretary and above) come under its ambit.
Limitation: Needs prior sanction to prosecute. Cannot probe officials below Jt Secy level until government refers case. Limited staff, normally on deputation.
The Central Bureau of Investigation (CBI) is the prime investigating agency of the central government and is generally referred to as a credible and respected institution in the country. It is placed under the Ministry of Personnel, Pensions & Grievances and consists of three divisions: the Anti-Corruption Division, the Special Crimes Division and the Economic Offenses Division. The Supreme and High Courts can instruct the CBI to conduct investigations.
Mandate: Investigates offenses by central government and PSU employees. States too can seek help. Also probes criminal cases.
Limitation: Cannot probe or frame charges on its own. Cases have to be referred. Is under government control and not autonomous.
The Office of the Comptroller and Auditor General (C & AG) is the apex auditing body. The C & AG has produced several reports on state departments such as railways, public sector enterprise, and tax administration. These reports have revealed many financial irregularities, suggesting a lack of monitoring of public expenses, poor targeting and corrupt practices in many branches of government. The most recent example is its report on Commonwealth Games that nailed the corrupt organizing committee members.
Mandate: Audits accounts of all government departments/ ministries/PSUs. Look into discrepancies of expenses made by government/departments government controlled companies. Submits reports to Parliament that are then referred to the Public Accounts Committee.
Limitation: Limited to audits and accounts. Cannot probe corruption as defined by the Prevention of Corruption Act; has powers only to recommend; no investigative or prosecution powers.
The Chief Information Commission (CIC) was established in 2005 and came into operation in 2006. It has delivered decisions instructing government, courts, universities, police, and ministries on how to share information of public interest. State information commissions have also been opened, thus giving practical shape to the 2005 Right to Information (RTI) Act. Of India’s 28 states, 26 have officially constituted information commissions to implement the RTI Act. Nine pioneered access to information laws before the RTI Act was passed. It is hoped that the CIC will help spread the culture of public seeking information under the RTI and expose wrong doings.
E-Governance has considerably increased the speed of government services in a number of areas and reduced opportunities for bribery. A wide range of public services have been digitized such as obtaining licenses, paying taxes and clearing goods. The National Portal of India (http://india.gov.in) was subsequently created and lists all the services that have been digitized.
Pending Anti-Corruption Legislation
Important pieces of anti-corruption legislation have been pending for years, including the Corrupt Public Servants Bill, the Lok Pal Bill, which is supposed to address corruption in high offices, including the office of the Prime Minister, and the Judge Inquiry Bill designed to introduce an inquiry mechanism for allegations and complaints against members of the judiciary. Election Commission’s recommendation to debar candidates with a criminal background from parliamentary and assembly elections is also awaiting action by the law makers.
The assessment of the legal and institutional anti-corruption framework points to a combination of robust institutions and lack of accountability in key areas. Some institutions such as the Supreme Court or the Election Commission have taken a stronger stance to combat malpractice in recent years, while key pieces of legislation such as the RTI Act promote greater bureaucratic transparency, granting citizens access to public records.
Despite these emerging trends, however, the institutional anti-corruption framework generally suffers from a lack of coordination, and overlapping and conflicting mandates between institutions addressing corruption. Key institutions often lack the staff and resources to fulfill their mandate adequately and struggle to protect themselves from political interference. Often, they primarily focus on investigating alleged cases of corruption at the expense of preventive activities. Influential politicians and senior officials are rarely convicted for corruption, eroding public confidence in the political will to effectively tackle corruption.