ethics in governance by supreme court

8/11/2019 Ethics in Governance by Supreme Court

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National Colloquium onEthics in Governance Moving from Rhetoric to Results

Organized b!dministrative Reforms Commission andNational "udicial !cadem

#aledictor !ddress

$ "ustice %& '& (abhar)al*Chief "ustice of +ndia

Ever since independence, India has been one of the front-runners

in the comity of nations that cherish principles of civil society. India

sought to redeem the pledge taken in this behalf by evolving a

Constitution that dreamt of establishing an egalitarian society based on

principles of equality, fairness and justice, one characterized by the

belief that all people should have equal political, social and economic

rights. ur system of governance is founded on the lofty principle of

rule of la!, !herein the "tate po!er is divided amongst three chief

organs, each under a duty to conduct itself in a manner that subserves

the common good of all and achieve the objectives of a !elfare "tate.

#he checks and balances !ere put as inherent safeguards designed to

ensure compliance !ith the ma$im %&e you ever so high, the la! is

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concerning equality of status, equality before la!, equality in the matter

of opportunities for public employment, equitable distribution of

resources and national income etc.

India is no longer an impoverished "tate al!ays looking for

financial help even to feed millions of its population living in inhuman

conditions belo! poverty line. 2e are today a modern "tate having

taken giant strides in the spheres of development and economic

progress. urs is an economy that is perceived even by the developed

nations of the !est as one on the springboard for being catapulted into

the position of a global po!er in near future. #he changes in policies

and planning over the last t!o decades or so have contributed, to a

great degree, to the successes that !e have !itnessed in recent times,

particularly in matters concerning development and economic activity.

*s a result of liberalization, the role of public functionaries has

gradually been undergoing a change. "trict "tate controls are yielding

place to regulatory mechanisms. +enerally speaking, a sense of synergy pervading all stakeholders has been perceptible across the

board.

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#he flip side is that the massive economic progress

not!ithstanding, the fruits of development have not seen equitable

distribution. In spite of Constitutional mandate through 43rd

and 45th

*mendments for decentralization of "tate po!er by setting up

6anchayati aj institutions, regional imbalances arising out of

e$traneous / unhealthy considerations of caste or creed continue to

dog us. #he goal of total literacy remains a distant dream. 7ast rural

areas continue to be denied opportunities for gainful employment,

public health services, or basic amenities like electricity, potable !ater,

transportation etc. #he holders of public offices still treat the authority

in their hands as one besto!ing, upon them, the status of a ruler rather

than one in public service. Criminalization of politics and

politicization of bureaucracy firmly block the passage for attitudinal

change, resulting in nepotism, non-responsive conduct, apathy and

degeneration at all levels. #he hydra of corruption in public life

remains our constant companion.

*fter elapse of almost four decades since the first *dministrative

eforms Commission concluded its task, it !as in the fitness of things

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for the +overnment of India to constitute another *dministrative

eforms Commission, particularly !ith the object of achieving %a pro-

active, responsive, accountable, sustainable and efficient administration

for the country at all levels of the +overnment(. #he inclusion of this

objective in the terms of reference only rekindles the hope that India is

still alive to the goal of clean governance that !e had set for ourselves

through the Constitution adopted in ' 89.

#he areas of study by the *dministrative eforms Commission

include organizational structure of the +overnment, refurnishing of

personnel administration, strengthening financial management systems,

effective administration at state, district and panchayat level, "ocial

Capital, #rust and participative public service delivery, public order

etc. &ut, the subject of %ethics in governance(, to my mind, is of the

paramount importance since it goes to the root of other issues on the

agenda of the Commission. #he theme of ethical governance is closely

connected !ith the menace of corruption in public life. #here cannot be corruption and also ethical governance at the same time. &oth are

incompatible. :ence the imperative need for debate about effectiveness

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of anti-corruption measures. It is an area !hich concerns all the three

organs of the "tate. It is most appropriate that the *dministrative

eforms Commission has organized this ;ational Colloquium jointly

!ith the ;ational


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@rom this perspective, it encompasses %the mechanisms,

processes and situations through !hich citizens and groups articulate

their interests, e$ercise their legal rights, meeting their obligations and

mediate their differences(. *s a necessary corollary to the above, the

act of governance involves %the interface through !hich citizens

mediate and interact !ith the "tate(. #his indicates that quality of

governance depends largely upon the indulgence sho!n by the

subjects. "peaking on basis of e$periences of medieval period and the

times of colonial rule, in particular in the continents of *frica and *sia,

some political scientists !ould use sarcasm in describing the system of

governance in the !ords that I quoteA

%the marvel of all history is the patience !ith !hich men and!omen submit to burdens unnecessarily laid upon them by their governments(.

#he !orld has come afar from the times of such skepticism. #he

majority of the member "tates of the free !orld today are founded on

the principle of %2elfare "tate(, run !ith full participation of their

respective inhabitants, striving to achieve the common good and in the

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process affording optimum opportunity and involvement for gro!th of

the individual so as to attain societal interests. #his has led to

evolution of %+ood +overnance(, as opposed to mere governance, as

the umbrella concept embracing !ithin a system of governance that is

able to unequivocally discover the basic values of the society !here

standards concern economic, political and socio-cultural issues

including those involving human rights, and one that follo!s the same

through an accountable and upright administration.

+ood governance is not a mirage or a utopian concept. It only

signifies the !ay an administration ameliorates the standard of living of

the members of its society by creating, and making available, the basic

amenities of life) providing its people security and the opportunity to

better their lot) instills hope in their hearts for a promising future)

providing, on an equal / equitable basis, access to opportunities for

personal gro!th) affording participation and capacity to influence, in

the decision-making in public affairs) sustaining a responsive judicialsystem !hich dispenses justice on merits in a fair, unbiased and

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meaningful manner) and maintaining accountability and honesty in

each !ing or functionary of the +overnment.

&aseness and depravity in governance and public life has been a

cause of unease even in advanced societies at different times in their

history. In a quote that has been attributed to *braham incoln, it has

been saidA -

%I see in the near future a crisis approaching thatunnerves me and causes me to tremble for the safety of my countryDDDDan era of corruption in high places!ill follo!, and the money-po!er of the country !illendeavour to prolong its reign by !orking upon the

prejudices of the people until the !ealth is aggregated ina fe! hands and the epublic is destroyed.(

*s per the nited ;ation?s Commission on :uman ights, the

key attributes of good governance include transparency, responsibility,

accountability, participation and responsiveness to the needs of the

people. +ood governance is thus linked to an enabling environment

conducive to the enjoyment of :uman ights and promoting gro!th

and sustainable human development. #he !orld community endorses

Frights based approach? to development and tests the track record of


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each member "tate on its anvil. #he e$pectation of every civil society

of its +overnment is that it !ould fulfill its commitments and provide

an equitable atmosphere conducive for individual?s gro!th. *

+overnment is e$pected to be fully accountable to its people and

transparent in the employ of public resources. It enforces the :uman

ights including economic, social / cultural rights and has no place

for corruption of any kind since dishonesty is anathema to economic

!ell-being as it transmits public money allocated for development

unjustly into private coffers depriving the citizenry of its use for their

!elfare. #his is the prime reason !hy the 2orld &ank vie!s good

governance and anti-corruption measures as central to its poverty

alleviation mission.

0r. . 7enkataraman, former 6resident of India said that a good

+overnment is one that %is stable and truly representative of the

majority of the people) maintains its territorial integrity and national

sovereignty) accelerates economic gro!th and development) ensuresthe !elfare of all sections of people) and renders justice !ithout delay(.

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"ince human rights are also designed to attain human

development, good government has the protection of human rights as

the top most priority on its agenda. +ood +overnance, in nutshell,

entails effective participation in public policy-making, the prevalence

of the rule of la! and an independent judiciary, besides a system of

institutional checks / balances through horizontal and vertical

separation of po!ers, and effective oversight agencies. esearchers at

the 2orld &ank Institute have similarly distinguished amongst the

main dimensions of good governance, key attributes including political

stability) +overnment effectiveness, !hich includes the quality of

policy making and public service delivery) accountability) civil

liberties) rule of la!, !hich includes protection of property rights)

Independence of the judiciary) and control of corruption. #he vie!s

evolved in ; Economic / "ocial Commission for *sia / the 6acific

are almost identical. It holds that %+ood +overnance has B major

characteristics. It is participatory, consensus oriented, accountable,

transparent, responsive, effective and efficient, equitable and inclusive

and follo!s the rule of la!. It assures that corruption is minimized, the

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vie! of minorities are taken into account and that the voices of the

most vulnerable in society are heard in decision-making. It is also

responsive to the present and future needs of society.(

*ll these e$pressions convey theories pregnant !ith time-tested

concepts. #he %participation( in order to be effective, needs to be

informed / organized and, therefore, depends upon the availability to

the subjects %freedom of association / e$pression( on one hand and

e$istence of %an organized civil society( on the other. #his necessarily

is a pointer to %representative democracy(. #he attribute of %rule of

la!( inheres as prerequisites %fair legal frame!orks( that are enforced

impartially and particularly %full protection of human rights(,

especially of the vulnerable sections of the society. #he factor of

%transparency( requires that information is freely available and the

decisions are taken or enforced in a manner that adheres to the rules

and regulations. #he attribute of %responsiveness( necessitates that all

public institutions and their processes strive %to serve all stake holders!ithin a reasonable time frame(.

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+ood +overnance depends upon endeavour to !ork out a broad

consensus in the society so as to achieve sustainable human

development. #his factor again underscores the significance of

representative democracy as the form of +overnment best suited to

provide good governance. "uch form of +overnment only can claim

inclusiveness and assure an environment that offers equity and

optimum opportunities for improvement and gro!th. f course, the

output !ould depend upon the efficiency in the sustainable use of

resources that are available. #he goal of good governance, ho!ever,

!ould elude a society if its system of governance does not have in

place the mechanism to hold the persons !ielding "tate po!er

accountable.

=emocracy, liberty and the rule of la! together represent the

troika that is universally accepted no! as the inde$ of a civil society.

=emocracy signifies a government of, by and for the people. #he

protection of individual liberties follo!s the notion of democracy as anatural corollary. #his entails the espousal of a methodical

configuration of la!s by !hich society might be regulated and different

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conflicting interests can be harmonized to the fullest e$tent. #his is

!hy %the rule of la!( is indispensable. It envisages the pre-eminence

of la! as opposed to anarchy or capricious dictates. In involves equal

accountability of all before the la! irrespective of high or lo! status.

=emocracy has been evolved through centuries of e$perience

amongst the people, !ho care for human person, dignity / rights as the

best and most acceptable form of good governance. It is a concept that

occasions the idea that all citizens have a right to participate in the

decision-making processes that lead to adoption of policies that are

applicable to the societies. It also means that there are some limits on

majority decision-making and, hence the inevitability of certain basic

rights being protected. It rests on maintaining a necessary equilibrium

bet!een the numerous competing interests, demands, constrains and

compulsions that e$ist in any civic society eager for development.

#hus, the key principles that constitute the foundations of a

modern democracy !edded to the concept of %!elfare state( and that of

the theory of %good governance( are common) namely full participation

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of all stake holders in the decision-making process ensured through

free and fair elections) guarantee of basic rights conducive for gro!th

of individual / society including freedom of speech and press, equality

before la! and of opportunities) rule of la! and independent /

effective judiciary. @rom this perspective, %true democracy( is

synonymous to %good governance(.

#he Constitution makers in India !ere !ary of the caution in the

!ordsA %2hen the legislative and e$ecutive po!ers are united in the

same person or body, there cannot be libertyDDD !here the po!er of

judging joined !ith the legislature, the life and liberty of the subject

!ould be e$posed to arbitrary control(, and further, %!here the po!er

of judging joined to the e$ecutive po!er, the judge might behave !ith

all the violence of an oppressor(.

#hus, in order to ensure that the basic structure of the

Constitution is not eroded) that the @undamental ights are not

abridged) that the rule of la! al!ays prevails) and that the Constitution

remained %supreme le$(, the fundamental and paramount la! of the

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land, the concept of judicial revie! has been planted as the

instrumentality and the Constitution has been declared to be the touch

stone of validity of all acts of each organ. @urther, in order to

guarantee that the rule of la! !ould inure to, and for, everyone and the

promises made by the Constitution !ould not remain mere paper

promises, the Constitution makers made provisions for independence

of the judiciary.

ne of the most important principles of just democratic

governance is the presence of constitutional limits on the e$tent of

government po!er. "uch limits include periodic elections, guarantees

of civil rights, and an independent judiciary, !hich allo!s citizens to

seek protection of their rights, and redress against government actions.

#hese limits help render branches of government accountable to each

other and to the people. *n independent judiciary is important for

preserving the rule of la! and is, therefore, most important facet of

good governance.

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&ut then, it takes more than strong courts to ensure that a nation?s

la!s are enforced constantly and fairly. #he la! must !illingly bind all

branches of government. #he rule of la! also is the basis for business

formation and the establishment of capital markets, !hich underpin

economic development. Citizens, directly or through their elected

representatives have to be involved in all levels of la!making.

6articipation in this process gives people a stake in the la! and

confidence that the la! !ill preserve their personal and property rights.

#he judicial system has an important role to play ultimately in

ensuring better public governance. #here may be introduced a plethora

of regulations, rules and procedures. &ut !hen disputes arise, they

have to be settled in a court of la!. #here could be, of course,

alternative dispute resolution mechanism like arbitration. rdinarily,

ho!ever, it is the judiciary that must first step in and ensure that

healthy practices prevail.

+oing by the agenda of this ;ational Colloquium, I am confident

that the scope for corruption and its overall impact on the governance

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in various aspects of the human activity have already been deliberated

upon at length by the delegates over these t!o days. It is a matter of

universal ackno!ledgement that corruption renders governance into a

state of %non governance(. It !ould be fruitless to narrate, once again,

the instances of corruption in different !alks of public life in our

country. #he stories of defilement at all levels in our institutions,

public or private, float around at regular intervals. Certain overzealous

and highly charged sections of the media have made it a matter of

routine for sting operations to lead to e$posG of corrupt practices in

almost each rung of the administrative hierarchy that governs us. I

must hasten to add here that the methodology adopted in such sting

operations at times is subject matter of ongoing debate. &e that as it

may, this by itself can never condone the misdemeanor that has been

bared to the public glare by such efforts adding to the disgust and

revulsion felt by la!-abiding citizenry. #he cases of corruption by

public figures are not limited to taking of paltry financial gains as

illegal gratification for doing or abstaining from doing the official

duties. #hey !ould e$tend to brazen abuse of office or authority for

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unjust enrichment of self or of the kith and kin, personal gain rather

than financial rules dictating the a!ard of public contracts or state

patronage, favouritism on considerations of caste, creed etc., use of

discretion for e$traneous considerations, use of public sector

enterprises as personal chattel, protection of the corrupt by their

superiors thereby indicating, almost openly, community of design and

so on and so forth.

It is perhaps not possible to dra! up a comprehensive list of areas

of activity that give rise to scope for corruption. #he discretionary

po!ers !ith !hich public authorities are vested by the administrative

rules are perhaps the biggest source of unethical practices. It is not that

the entire !ork force in the civil services stands compromised or has

sold its conscience on account of e$traneous influences. #he difficulty

stems from the fact that those !ho refuse to bo! do!n to the dictates

of unscrupulous elements, out to abuse the authority of the public

office to secure a favourable action, are easily marginalized !hile such public servants as treat the authority vested in them akin to a saleable

commodity manipulate the process so that they are able to oblige and

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amuse the po!ers-that-be and, in the bargain, shift their career graph

into fast track mode. ;o !onder, in this scenario, %transfer industry(

mushrooms and functions as a highly productive unit in different

+overnment departments. ;o !onder, an unholy politician-criminal-

bureaucrat ne$us evolves and thrives. ;o !onder, certain institutions in

our polity are not stirred to function unless proper palms are greased.

2hile !e all kno! that cancer of corruption has seeped into the

blood stream of our polity, the million dollar question that stares us in

the face is !hat can be done other than !hat !e have been doing in the

name of combating this evil all along. If a part of human body suffers

from gangrene, doctors might advise surgery. 2hen gangrene spreads

to all nooks and corners, probably surgical amputation cannot be the

mode of management. #he punitive methods in the form of criminal

la! on corruption and disciplinary action for breach of conduct rules of

the public servants on one hand and preventive measures in the form of

pro-active vigilance on the other may need to be strengthened and theloopholes plugged. &ut, to my mind, this may not suffice. *s history

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sho!s, unscrupulous elements have al!ays been one step ahead of the

la!. 2e need to do something over and above la! enforcement.

#he predicament that !e face today reminds me of a Chapter

from 0ahatma +andhi?s autobiography %0y E$periments !ith #ruth(.

&apu had established, in ' '', an institution that became famous by the

name of #olstoy @arm in "outh *frica. #aking it to be his filial

patrimonial duty to organize education for the children of the

inhabitants at the farm, he made certain arrangements leading by

e$ample, as al!ays, himself assuming the role of a schoolmaster. :e

!as confronted !ith the issue as to !hat kind of education !ould be

appropriate for the young children taken under his !ings. E$pressing

his thought process on the subject, the foremost of !hich mandated that

the instruction must lead to spiritual gro!th of the young minds, he

conceived a teacher as a person !ho !ould represent an %eternal object

lesson( for his pupils. :e e$pounded on this further in the !ords that I

quoteA -

%It !ould be idle for me, if I !ere a liar, to teach boys to tell the truth. * co!ard teacher !ould never

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succeed in making his boys valiant, and a stranger toself-restraint could never teach his pupils the value of self-restraint(.

It has been said in &rihadaranyka pnishadA-

%Hou are !hat your deep, driving desire is.*s your desire is, so is your !ill.*s your !ill is, so is your deed.*s your deed is, so is your destiny.(

In amayana, 0aharshi 7almiki has underscored a very basic

principle of governance in simple !ords % Yatha Raja Tatha Praja (.

#he message is loud and clear. #he general erosion in values, ethics

morality or integrity that is seen in a society only mirrors the character

of those !ho run the affairs of that society.

2hat I am trying to lay stress on is that if any paradigm change

has to come in the matter of ethics in governance, it has to come from

the top in every section of our society. ike charity, may be more than

that, sense of morality also must begin from the door of the leader !ho

preaches it. 2hen those !ielding po!er of governance, !hichever

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!ing of the "tate they may belong to, set about standardizing norms for

conduct, they must first do so for themselves.

+overnment servants are controlled by Code of Conduct that is a

part and parcel of their service rules, infraction of !hich is e$pected to

result in disciplinary action. *lmost every +overnment department has

devised such a Code for its purposes, so much so that there seems a

plethora of such Codes prevailing. n the other hand, the penal la!

called the 6revention of Corruption *ct takes care of the role of

criminal justice system in dealing !ith the hazard.

#he common features of the Code of Conduct for different

categories of +overnment servants include e$pectation that he shall

maintain absolute integrity) devotion to duty) do nothing !hich is

unbecoming of a public office held by him) render his best judgment in

the performance of his official duties) be prompt and courteous) not

involve himself in acts of moral turpitude) not take part in party

politics) not be associated !ith activities that are pre-judicial to the

interests of the sovereignty and integrity of India or public order) not to

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engage himself in intervie!s !ith media, e$cept !ith the la!ful

authority of his superiors) not divulge official information !hich has

been entrusted to him in confidence) not accept pecuniary advantage, in

particular, from those !ith !hom he is involved in official duties) not

to engage himself in private trade or business !hile holding public

office) not to indulge in alcoholism or gambling) to manage his

financial affairs in such a manner that he is al!ays free from

indebtedness and not to involve himself in transactions relating to

property !ith persons having official dealings !ith him.

#he general impression that seems to prevail all over is that these

disciplinary rules and the criminal la! are meant to deal !ith

misconduct in the nature of corruption by +overnment servants only.

Every time a political leader is caught on the !rong foot, defences like

%politically motivated( apart, a debate commences as to !hat is the

import of the e$pression %public servant( for !hose control these

measures are designed. #he jurisdiction to deal !ith corrupt elementsunder the conduct rules is generally seen to be invoked !ith great

hesitation. * tendency seems to prevail to brush the scandals of

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corruption under the carpet, almost giving impression that the

authorities are more interested in shielding the corrupt rather than

cleansing the system. #he statutory provisions of mandatory sanction

meant to protect the honest public servants against malafide actions are

used as an umbrella to save ex facie guilty public servants from

criminal prosecution. #he debate on the propriety and justification of

%"ingle =irective( continues !ith the issue shuttling bet!een different

arms of the "tate. #here is a school of thought that !ould also hold

*rticle 3'' responsible for lack of sufficient and timely action in this

area. #he political class has al!ays laboured under the belief that no

code of ethics binds them in their conduct vis- -vis the people in !hose

service they claim to be active.

In 0ay 1999, the then "peaker of ok "abha had constituted a

6arliamentary Committee on Ethics. #he said Committee on Ethics

had submitted its @irst eport on 3' st *ugust 199'. #he eport

indicates that the Committee !as of the vie! that norms of ethical

behaviour for members of the legislature had been %adequately

provided for( in the rules / procedure, directions by the "peaker and

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in the conventions !hich have evolved over the years on the basis of

recommendations made by various 6arliamentary Committees. #he

Committee !as of the vie! that remedy !ith regard to unethical

behaviour on the part of the legislators lay in the strict enforcement of

the e$isting norms.

*part from this, the Committee recommended certain additional

norms that it chose to call as %general ethical principles(. #he thrust of

these %general ethical principles( recommended by the Committee !as

that the legislators must utilize their position to advance general !ell-

being of the people and in case of conflict bet!een their personal

interest and the public interest, they must resolve it so that personal

interests are subordinate to the duty of their public office. It !as

recommended that conflict bet!een private financial interests should

not result in public interest being jeopardized and the legislators must

maintain high standards of morality, dignity, decency and values in

public life and keep uppermost in their minds, the fundamental dutieslisted in 6art I7 * of the Constitution.

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#he eport itself indicated that the enforcement of the said

general ethical principles is a slave of the discretion of the legislatures?

Committee of 6rivileges. It is common kno!ledge that the instances of

such Committees actually finding legislators guilty of misdemeanor

have been too scant to be of real deterrent value. 2e cannot feed on

mere platitudes.

In the face of prevalent circumstances, some of !hich have been

highlighted by me, our efforts at combating corruption suffer for three

basic reasonsA -

JiK *bsence of a basic or minimal code of conduct that appliesuniformly to every holder of public office or authority,irrespective of the !ing of the "tate to !hich he belongs)

JiiK * procedure that offers escape routes, at every step of the !ay,to the delinquent) and

JiiiK ack of !ill or initiative on the part of authorities in catchingthe bull by the horns.

India is not alone in the quest for clean governance. #he then 6rime

0inister of nited Lingdom had set up a Committee on "tandards in

6ublic ife in ctober ' 5 !hich came to be kno!n as the F;olan

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Committee?. #he ;olan Committee submitted its first report in 0ay

' 8 focusing its attention at that time on the code of conduct for

members of 6arliament, 0inisters and Civil "ervants etc. as this, in the

vie!s of the Committee, !as a matter of %the greatest public concern(.

#he Committee e$amined the issues !ith a vie! to suggest adoption of

measures to reinforce public confidence in the holders of public offices.

It took note of cases of bribery, abuse of office, impropriety, re!ards

for past or future favours, states largesse etc. It observed that instances

indicating slackness in observance and enforcement of high standards

on the part of certain public figures, !hose cases get publicized in the

media, generate !idespread suspicion that more misconduct occurs

than comes to be revealed to the public gaze. #he Committee !as of

the vie! that if corrective measures !ere not promptly taken, there !as

a danger that an$iety and suspicion !ould give !ay to disillusionment

and cynicism. #he Committee evolved seven general principles of

conduct that underpin public life, the maintenance of !hich can restore

the public confidence.

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#o my mind, these seven general principles are of great merit and

significance for our purposes. #hey include the follo!ingA -

'. (elflessness A

"imply put, this means holders of public offices are e$pected

to conduct themselves such that they subserve public interest,

as against interest of the self.

1. +ntegrit A

#he concept is !ell kno!n. * public authority must insulate

itself from e$traneous influences in matters concerning

official duties.

3. Ob,ectivit A

#he duties of public office vest, in the holder, authority to take

decisions including making appointments, a!arding contracts,

recommending benefits etc. #he choices cannot be allo!ed to

be made on any criteria other than merit. #he decisions must

be based on reasons free from the vice of caprice. #he

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e$ecutive can take a leaf out of the book of judiciary by suo

motu supply of reasons for every action. #he requirement of

recording reasons is by itself a great safeguard that inhibits the

decision maker from being subjective.

-& !ccountabilit .

*ny public office is an office of trust. #herefore, public

figure e$ercising any state function, and this includes

members of the legislature, is accountable for all actions taken

in performance of the functions of that office. It naturally

flo!s from this that every act of commission or omission has

to yield to scrutiny, !hether by !ay of internal or e$ternal

audit mechanism. I am using the e$pression %audit( not in the

narro! sense of audit of accounts but appraisal of the causes

or consequences of every state action.

8. O/enness A

#here is no better disinfectant than sunlight. #ransparency

has to be the mantra of all official acts.


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scrupulously by conducting its proceedings in the open.

#ransparency brings along inherent checks. #he introduction

of % ight to Information( regime has indeed set the

administrative set up in our country on the right course.

. 0onest A

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mandatory declaration at the time of entry in public office and

periodically, thereafter, !ould only ensure the kind of probity

!e !ould like to be in place.

4. 1eadershi/ A

#his principle is articulation of the same idea as I referred in

the conte$t of 0ahatma +andhi?s E$periments !ith #ruth. *

true leader !ill al!ays lead by o!n e$ample. If a leader is

honest, sincere and committed to the task assigned to him, the

vibes created percolate do!n the hierarchy cleansing the

system that he controls.

I referred to politicization of bureaucracy and criminalization of

politics. #hese t!o phenomenon together seem to constitute the major

cause of all that ails in our polity today. 7ested interests tend to control

"tate actions by offering pelf or using arm-t!isting tactics through the

aegis of their henchmen in political e$ecutive, !hich acts through

compromised sections of the bureaucracy. It is common kno!ledge

that civil services consist of various lobby groups. Every time there is

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a change in the political climate of a "tate the group of bureaucrats

loyal to the ne! political party in po!er takes over positions of

authority at appropriate levels. #he undue and unholy loyalty to

political masters reflects in the decisions taken by such civil servants.

It is commonplace to see senior bureaucrats vying !ith each other for

political patronage, offices of profit, re!ards, a!ards and post-retiral

settlement, at times in constitutional authoritative positions. #ake for

e$ample, the eminent office of +overnor. It !as conceived in the

Constitution as one to be filled by a detached non-partisan person.

"arkaria Commission had, in fact, recommended that an aspirant for

such a position should be a person !ho has not taken too great a part in

politics generally and particularly in the recent past. In practice,

ho!ever, the office of +overnor is connected by a revolving door !ith

t!o passages, one leading to civil services and other to active politics.

;o !onder, senior loyal bureaucrats assume responsibilities of

governorship immediately after laying do!n the offices of civil servant

or are ready to enter politics by !ay of nomination to the legislatures.

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#his is !hy, unlike in the case of civil services, members of the

judiciary are generally e$pected to be asocial.

&ut the fact remains that there are certain minimum standards of

ethics and proper conduct in public life that can be applied to every

person connected !ith governance or public duties, right from the

inferior most up to the highest authority of the land. It has perhaps

become necessary to evolve such a minimum Code of Conduct for

universal application across the board for holder of every public office,

breach !hereof should be construed as indiscipline for purposes of

control under the service jurisprudence on one hand and an offence for

penal consequences to follo!, through the mechanism of criminal

justice apparatus on the other.

#he difficulty !ith our system is that !e tend to engage ourselves

more in debate than real action. ne e$ample that I can quote in this

conte$t is the subject of police reforms, in particular reforms

concerning accountability of police forces to the public at large and to

rule of la! on one hand and insulation of investigative police agencies

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from political interference on the other. eforms have been suggested

on almost identical lines, over the last three decades, by various

Commissions and Committees. Het, !e continue to be governed by

6olice *ct that !as given to us by the aliens in 'B ', in the initial years

of &ritish ule in India.

In the same conte$t, I !ould like to touch upon one of the several

deficient provisions of the criminal la! on corruption. #he la!

provides for the assets acquired as a result of corruption to be attached,

impounded or forfeited. Courtesy the Criminal a! *mendment

rdinance of ' 55 vintage, this process is governed by civil procedure.

#he investigating or prosecuting agencies find the process of

attachment of illicit assets of corrupt public servant too cumbersome.

In cases !here this process is initiated, it runs parallel to the criminal

proceedings. #his creates further difficulties for the criminal la!

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

derives undue advantage by taking resort to dilatory tactics. "hould theconcerned department also initiate disciplinary proceedings under the

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

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the e$chequer. :e !ould delay each proceeding taking the e$cuse of

pendency of the other. *nd !hen the proceedings reach the stage of

recording of evidence, he !ould add to the confusion by referring to

contradictions in the evidence of the common set of !itnesses at

different stages. nder the e$isting rules of evidence, this pushes the

prosecuting agency against the !all.

In ' , "upreme Court pointed out the inadequacy of the anti-

corruption measures in the case of 2elhi 2evelo/ment !uthorit v&

(3i//er Construction Co& 456 1td MJ' K 5 "CC 11N. #he Court

recommended enactment of a "*@E0* like la! that %should place the

burden of proving that the attached properties !ere not acquired !ith

the aid of moniesOproperties received in the course of corrupt deals

upon the holder of that property(.

#he a! Commission of India took the above suggestion of the

"upreme Court seriously and suggested in its ' th report the enactment

of a special la!, also taking pains of drafting its &ill called the

%Corrupt 6ublic "ervants J@orfeiture of 6ropertyK &ill( !hich !as sent

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to the +overnment of India in @ebruary ' . 2e still a!ait the

outcome of the said proposal.

#he right of silence on the part of an accused facing criminal

charge needs reconsideration, in certain cases, balancing genuine /

bonafide rights of accused on one hand and quest for truth on the other.

2hile there is a good case for need to protect, and possibly re!ard,

honest public servants, there is indeed a greater need to punish the

black sheep since it is they !ho seem to be gradually taking on the

mantle of role models. =eterrent punishment for the corrupt, through

proceedings that are e$peditious, is an object in !hich the judiciary and

the e$ecutive !ill have to play a concerted role.

;o reforms in governance can ever be complete unless the

measures also take into account the e$pectations of the people at large

for judicial reforms. It is common kno!ledge that government is the

major litigant in each rung of the judicial hierarchy. #herefore, if

judicial reforms lead to e$peditious disposal of cases, the +overnment

!ould be the main beneficiary. "uggestions for appropriate mechanism

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to revie! the position taken by the +overnment in disputes coming

before the courts of la! have been made from time to time. #he object

of such a revie! mechanism is to curtail unnecessary and avoidable

litigation. nfortunately, these suggestions have al!ays received half-

hearted response. #he "tate can ill-afford !astage of resources by

engaging itself in legal disputes that are not going to serve public

interest. * sense of accountability has to be brought about by

sensitizing the officialdom at appropriate levels so that there is periodic

appraisal of each ongoing litigation involving +overnment and

irresponsible contest or prosecution of cases is not resorted to.


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ne of the areas on !hich the Court focused in the case of (alem

!dvocate 7ar !ssociation !as the apathetic attitude of administrators

facing the prospect of litigation. #he court has pointed out that a more

responsive and responsible action in the !ake of notice uOs B9 C6C can

save the e$chequer from !astage of public money. #he follo!ing

observations of the Court need reiterationA-

9:& DDDD. 2herever the statutory provision requiresservice of notice as a condition precedent for filing of suitand prescribed period therefor, it is not only necessary for the +overnments or departments or other statutory bodiesto send a reply to such a notice but it is further necessary to

properly deal !ith all material points and issues raised inthe notice. #he +overnments, government departments or statutory authorities are defendants in a large number of suits pending in various courts in the country.


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Central +overnment has been called upon by the Court to e$amine the

suggestion that the e$penditure on compulsory reference of cases to

mediation or conciliation ought to be borne by the "tate. * positive

response from the +overnment !ould be in line !ith its constitutional

obligation under *rticles '5, 1', 34, 3B, 3 * and 154.

I have already touched upon the abuse of the legal provisions

regarding sanction for prosecution under 6revention of Corruption *ct

for purposes of shielding the corrupt. 6ursuant to directions of the

"upreme Court in the case of #ineet Narain >?@ , the

Central 7igilance Commission has been accorded statutory status. It is

the ape$ authority on the subject of vigilance in the country. If !e are

serious on the question of administrative reforms leading to ethics in

governance, it is high time C7C is vested !ith the authority to consider

the question of sanction for prosecution in a manner that is final and

binding on one and all. Leeping it as an authority !hose

recommendations can be flouted !ith immunity renders it to the position of a !hite elephant. "ince it is a high po!ered body !ith

special e$pertise in the subject of vigilance, its role rather needs to be

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e$panded so as to arm it !ith the po!er to monitor the investigation

and prosecution of cases of corruption involving the high functionaries,

at least such cases as are investigated by C&I.

ast but not the least, optimism being one of my !eaknesses, I

am still hopeful that !e shall see, !ithin our life time, the institution of

ok 6al being put in position as that !ould be the mother of all reforms

for dealing !ith unscrupulous elements in the high echelons of our

system of governance and !ithout !hich the proper results can never

be attained. "uch mbudsman, ho!ever, !ill have to be a truly

independent, autonomous and self-sustaining authority !hich is

equipped !ith po!ers of investigation, prosecution and necessary

follo!-up.

*ny machinery is as good as the man !orking it. #he !idespread

corruption that !e notice all around only mirrors the general erosion of

morality and ethics in our society. :.0. "eervai, in his address as part

of "ir Chimanlal "etalvad ectures series in ' 49, had observedA -

%#he ultimate guarantee against abuse of po!er,legislature, judicial and e$ecutive, lies in the political

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and legal safeguards against such abuse, in a vigilant public opinion, and in the sense of justice in the people generally.(

If !e !ant to reform, attitudinal reforms !ill have to be first

brought about even in our private lives. I !ould conclude by

borro!ing the !ords of *ndre &eteille. :e saidA -

%* Constitution may indicate the direction in !hich!e are to move, but the social structure !ill decideho! far !e are able to move and at !hat pace(.

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ethics in governance by supreme court

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