Ethics in Governance Summary

Significance of Ethics - from preface

" You must be the change that you wish to see in the world " - Mahatma Gandhi

"As human beings, our greatness lies not so much in being able to remake the world - that is the myth of the atomic age - as in being able to remake ourselves" - Mahatma Gandhi

The Mahatma's vision of a strong and prosperous India - Purna Swaraj - can never become a
reality if we do not address the issue of the stranglehold of corruption on our polity, economy and society in general. //Introduction//

Governance is admittedly the weak link in our quest for prosperity and equity. Elimination of corruption is not only a moral imperative but an economic necessity. The six perceived governance quality measures are

• voice and accountability
• absence of political instability and violence
• government effectiveness
• reasonableness of the regulatory burden
• the rule of law
• the absence of graft

The jurisprudential precedents have crowded out the real intent of Article 311 and created a heap of roadblocks in reducing corruption. Such a provision is not available in any of the democratic countries including the UK. While the honest have to be protected, the dishonest seem to corner the full benefit of Article 311.//Reason//

The reason for lax enforcement is a delay in sanctioning prosecution either out of patronage or misplaced compassion.

Integrity is much more than financial honesty. Public office should be treated as a trust. There are two facets to corruption:

• The institution which is highly corrupt
• Individuals who are highly corrupt.

The absence of rules is not a problem. The rule of law can only defeat the perverse mind but not defeat the perversity of the heart.

In to the words of Aleksandr Solzhenitsyn: "The line separating good and evil passes not between states nor between classes… but through the middle of every human heart"

The virtues may be compared to the Pole star which keeps its place and all other stars turn towards it.

Plato's quoted "The punishment suffered by the wise who refuse to take part in government, is to suffer under the government of bad men"

Confucius described righteousness as the foundation of good governance and peace.

Confucius emphasizes the righteousness for life and character building. This is in conformity with Dharma or righteousness as taught by all religions in the world and preached in Buddhism very predominantly in its fourth noble truth. //Religious view on corruption or ethics //

Ethics is a set of standards that helps guide conduct. One of the problems is that the present codes of conduct are not direct and to the point. They are full of vague sermons that rarely indicate prohibitions directly.//Definition of ethics//

Napoleon who said, 'Law should be so succinct that it can be carried in the pocket of the
coat and it should be so simple that it can be understood by a peasant'.

The standard for probity in public life should be not only conviction in a criminal court but propriety as determined by suitable independent institutions specifically constituted for the purpose. The Mudgal case is often cited as the noblest example of the early leadership's efforts at setting high standards of conduct in parliamentary life. Nowadays it is called lobbying and political campaign funding. Still, independent institutions to determine the propriety is yet to be constituted.

Public figures of suspect integrity hide behind the argument of their not having been convicted in a court. The standard should be one of not only the conduct of Caesar's wife but of Caesar himself.

The solution to the problem of corruption has to be more systemic than any other issue of governance. Merely shrinking the economic role of the state by resorting to deregulation, liberalization and privatization is not necessarily the solution to addressing the problem. Prevalent institutional arrangements have to be reviewed and made accountable and made more transparent and subjected to social audit and minimize discretionary powers.//Prescriptive solution//

There is a growing permissiveness in society to the phenomenon of corruption. Right to information has to be the starting point for some of these changes.//Descriptive solution//

The focus should be on e-governance and systemic change. An honest system of governance will displace dishonest persons. As Gladstone so aptly said, "The purpose of a government is to make it easy for people to do good and difficult to do evil".//Descriptive solution//

"Rivers do not drink their waters themselves, nor do trees eat their fruit, nor do the clouds eat the grains raised by them. The wealth of the noble is used solely for the benefit of others."

The crux of the report Ethics in Governance - from contents

Scope of ethical framework

• Ethics in politics
• Ethics in public Life
• International Approach to ethics
• Ethical framework for Ministers
• Ethical framework for legislators
• Office of Profit
• Code of Ethics for Civil Servants
• Code of Ethics for Regulators
• Ethical Framework for the Judiciary

Legal framework for fighting corruption

• Anti-Corruption laws in India and its evolution
• The Prevention of Corruption Act, 1988
• Corruption Involving the Private Sector
• Confiscation of illegally acquired properties
• Prohibition of "Benami " Transactions
• Protection to Whistle-blowers
• Serious Economic Offenses
• Prior concurrence for registration of case: Section 6A of the Delhi special police establishment Ac, 1946
• Immunity Enjoyed by Legislators
• Constitutional protection to civil servants - Article 311
• Disciplinary Proceedings
• Statutory Reporting Obligations

Institutional Framework

• Existing Institutions /Agencies
• Evaluation of the Anti-corruption Machinery in India
• The Lok Pal
• The Lokayukta
• Ombudsman at the Local Level
• Strengthening Investigation and prosecution

Social Infrastructure

• Citizens' Initiatives
• False Claims Act
• Role of Media
• Social Audit
• Building Societal Consensus

Systemic Reforms

• Importance of systemic Reforms
• Promoting Competition
• Simplifying Transactions
• Using Information Technology
• Promoting Transparency
• Integrity Pacts
• Reducing Discretion
• Supervision
• Ensuring Accessibility and Responsiveness
• Monitoring Complaints
• Reforming the civil Services
• Risk Management for Preventive Vigilance
• Audit
• Proactive Vigilance on Corruption
• Intelligence Gathering
• intelligence Gathering
• Vigilance Network

Protecting the Honest civil Servant

International Cooperation

Relationship between the political Executive and the Permanent Civil Service

Case studies / Comparative study

• Systemic Reform in a Few Sectors
• Honesty in Finland

Definition and Introduction

Ethics is a set of standards that society places on itself and which helps guide behaviour, choices and actions. But the ethical standards become ethical behaviour only when

• these ethical standards are adopted in actions
• there is a sanction against their violations //punishments, disqualification//
• there is a competent authority to investigate allegations of violation //Ombudsman, Judiciary, Election Commission//

Corruption is an important manifestation of the failure of ethics. The word 'corrupt' is derived from the Latin word 'corruptus', meaning 'to break or destroy'. The word 'ethics' is from the original Greek term ' ethikos ', meaning 'arising from habit'. It is unfortunate that corruption has, for many, become a matter of habit, ranging from grand corruption involving persons in high places to retail corruption touching the everyday life of common people.

Two somewhat contrary approaches in dealing with corruption

1. Instilling Values and ethics
   • There is an overemphasis on values and character - until values are restored, nothing much can be done to improve the conduct of human beings
2. Institutions to Punish Corrupt Behaviour and reward ethical behaviour
   • There is always a small proportion of people, which cannot reconcile individual goals with the good of society
   • purpose of organized government is to punish such deviant behaviour.

In the real world, both values and institutions matter. Values are guiding stars and exist in abundance. But values need to be sustained by Institutions. Values without institutional support will be weakened and dissipated. Institutions like container give shape to values.

Reason for corruption or abuse of public office in India is three factors

1. Colonial Legacy
   • Unchallenged authority and propensity to exercise power arbitrarily.
2. Asymmetry of Power
   • Nearly 90% of people belong to the unorganised sector and 70% of organised sector workers are government or PSU workers. Almost all of them are educated in a largely illiterate or semi-literate society
   • Economically even the lowest of a public servant is better off than most people.
3. State Policy
   • Conducive environment for unbridled corruption
     • Over-regulation
     • Restriction on economic activity
     • Excessive state control
     • Monopoly of Government
     • Economics of scarcity
   • This Conducive environment gave an opportunity for asymmetry of power converted the public servant into patron and master and reduced most citizens into mendicants

Based past experience in dealing with corruption in India

• Monopoly, discretion and over-centralisation increase corruption while competition and transparency and decentralisation reduce corruption. The competition came in and choice expanded, corruption plummeted. But there is a caveat, more on that later
• Wherever technology and transparency introduced corruption is contained. e.g railway reservation

Democracy requires the empowerment of citizens. It can happen through

• Right to Information (enhances transparency)
• Effective Citizen Charters (fixes responsibility )
• Public Consultations in decision making (participatory democracy)
• Social Auditing (improves accountability)

These above instrument curbs corruption and promotes integrity.

The most important determinant of the integrity of a society or the prevalence of corruption is the quality of politics. If politics attracts and rewards men and women of integrity, competence and passion for the public good, then the society is safe and integrity is maintained.//Political Culture//

Competition and decentralization reduces corruption in certain sectors but appetite for illegitimate funds in politics will open other avenues of corruption. Liberalization needs corresponding political governance reforms.

There are two types of corruption

• Coercive Corruption
  • Because victims loose more by resisting coercive corruption
  • To avoid delays, harassment, lost opportunity, loss of precious time and wages, uncertainty and at times danger to life
• Collusive Corruption
  • Due to collusion between bribe giver and corrupt official
  • For award of contracts, recruitment, favour, tax avoidance

As the economy is freed from state controls, coercive corruption declines and collusive corruption tends to increase.

Corruption is a global phenomenon and global concern. United Nations Convention against Corruption was adopted by the UN General Assembly
in 2003. ADB-OECD Anti-Corruption Action Plan, which has been signed by the Government of India. World Bank has also refused to fund projects whose implementation is tainted by corrupt practices.

Recent Anti-Corruption initiatives to reduce corruption in politics

• Supreme Court ruled that contesting candidates should file details regarding their wealth, educational qualification and criminal antecedents with their nomination.
• Right to Information Act
• introduction of information communication technologies, e-governance initiatives and automation of corruption-prone processes in administration

Corruption results in

• Black Money
• Serious economic offences and fraud
• Money Laundering
• Terror financing

Some Legislation to fight corruption

• Whistleblower legislation
• Benami properties act

Way forward

• Strengthen the institutional framework for investigating corrupt practices
• Awarding exemplary punishment making corruption high risk affair

Ethics in Governance has a much wider connotation. As the term governance involves non-state actors. Therefore ethics in governance need to include corporate ethics and ethics in business. It also includes ethics in every profession, voluntary organisation and civil society as they are also involved in governance. Finally, there should be ethics in citizen behaviour as it impinges directly on ethics in government and administration.

Aspects of ethics in governance

• Vigilance and Corruption
• Relationship between Political Executive and Permanent Civil Service
• Code of Conduct for different organs of Government

Ethical Framework

Ethics and Politics

Ethical framework for governance begins with ethical values in politics. Violation of Rule of law becomes the point of intervention for the judiciary.

Erosion of ethical Capital in politics in the following aspects

• Excesses in Election
  • In campaign-funding, use of illegitimate money, quantum of expenditure, imperfect electoral rolls, impersonation, booth-capturing, violence, inducements and intimidation, floor-crossing after elections
• Criminalisation of Politics
  • Participation of criminals in the electoral process is the soft underbelly of our political system
  • Root Causes
    • Flagrant violation of laws
    • poor quality of services and the corruption in them
    • protection for law-breakers on political, group, class, communal or caste grounds
    • partisan interference in the investigation of crimes and poor prosecution of cases
    • inordinate delays lasting over years and high costs in the judicial process
    • mass withdrawal of cases
    • the indiscriminate grant of parole, etc.,
  • " Acceptance of People " allows them to win the election
  • The opportunity to influence crime investigations and to convert the policemen from being potential adversaries to allies is the irresistible magnet drawing criminals to politics.
  • As for political parties, their ability to secure votes through the use of money and muscle power is what matters
  • A short term win-win situation for all, except for public good and good governance.
  • So Election commission stated that one in six legislators in India faced grave criminal charges.
  • Biggest root cause
    • Large, illegal and illegitimate expenditure in elections is another root cause of corruption.

Some Electoral Reforms

1. Improvement in accuracy of electoral improvements
   1. Through computerization and photo-identity cards
2. Disclosure of Antecedents of Candidates
   • Supreme Court directed to declare any conviction or pending cases and declaration of assets and liabilities candidates and family members
3. Disqualification of Persons Convicted of Criminal Offence
   • Supreme Court ruled in 2005 that Section 8(4) of the Representation of the People Act was unconstitutional as it violated equality before the law.
4. Enforcement of the code of conduct
   • The election commission had made the code of conduct for elections binding in all respects
5. Free and fearless polling
   • Strict policing to avoid excesses of election
   • Electronic Voting machine to stop malpractices
6. Reduction in size of council of Ministers
   • The Constitution (91^st Amendment) Act, 2003 restricts the size of the Council of Ministers to 15% of the strength of the Lower House in Parliament/State legislature.

Issues in political reforms

Despite the above reforms, the improvements are only marginal. Therefore more effective steps were suggested by 2nd ARC (given in brackets)

1. Reform of Political Funding (partial funding)
2. Tightening anti-defection (defection to be decided by President or Governor on advice of Election Commission)
3. Disqualification (Amend Section 8 of RPA 1951 to disqualify persons facing serious charges with modifications suggested by Election Commission)
4. False Declaration
5. Publication of Accounts by Political Parties

Reforms in Political Funding

In India Political parties source their funding through private donations. In order to eradicate the major source of political corruption, every committee setup to review political funding suggested state funding of elections. Internationally there are three broad patterns of state funding

1. Minimalist Pattern
   • Partially subsidized through state grants and state rendered services
   • Candidates are accountable to public authority for reporting and disclosure only for limited election period
   • E.g UK, Ireland, Australia, New Zealand
   • In US funding is private but subjected to strict reporting and disclosure to public authority as well as limits on contribution
2. Maximalist Pattern
   • State funding for elections and for other party activities
   • E.g - Sweden and Germany
   • Almost no private funding so less detailed regulation of contribution and expenditure
3. Variety of Mixed Pattern
   • For e.g matching grant basis in France, Netherlands, South Korea

Issues in political funding in India

• RPA Act limits election and banned company donations to political part in 1969.
• But Amendment in Companies Act in 1985 allowed company donations

Electoral Reform Committees and its recommendations

• Dinesh Goswami Committee on electoral reform
  • Set up in 1990 recommended limited election support in kind like fuel, free electoral rolls
  • And simultaneously ban company donations
• Indrajit Gupta Committee on state funding of elections
  • Recommended partial state funding mainly in kind
• National Committee for review of Constitution
  • Until better regulatory mechanism for political parties can be developed, state funding should be deferred
• Supreme Court
  • Repealed explanation-I of section 77 of RPA and clubbed 3rd party spending and political party spending under expenditure ceiling limits.
• 2003 Election and other related laws(amendment) Act in a spirit of bipartisanship
  • Full tax exemptions to donors on donations to political parties
  • Expenditure by 3rd parties and political parties to come under ceiling expenditure limit( but travel expenditure is exempt)
  • Disclosure of donations above Rs.20,000
  • Indirect public funding to recognized parties like free electoral rolls
  • Equitable sharing of screen time by recognized parties in TVs and other media

Tightening of anti-defection Law

• Anti-defection provisions of tenth Schedule was enacted in 1985
• In 2003 91st Amendment tightened the anti-defection provisions
  • Re-election to legislature is mandatory when switching political sides even if 1/3rd of members are switching
  • It bars legislators from holding any office of profit post-defection
• Election Commission recommended
  • Internal elections in political parties to elect their leaders.
  • Question of disqualification on ground of defection to be decided by President or Governor on advice of election commission

Disqualification

Candidates who face grave criminal charges like murder, abduction, rape and dacoity, unrelated to political agitations. But there is need for a fair reconciliation between the candidate's right to contest and the community's right to good representation.

So the balance can be achieved by disqualifying candidates having serious criminal charges including corruption charges. The Election Commission
has suggested that as a precaution against motivated cases, it may be provided that only cases filed six months before an election would lead to such disqualification.

False Declaration

Election Commission recommended all false declaration at the time of nomination to be considered as electoral offence under Section 31 of Representation of people act

Publication of Accounts by Political Parties

Election Commission recommended annually audited income and expenditure of all political parties and also they should be available for information of the public.

Coalition and Ethics

Coalition government is the electoral outcome due to the diversity and complexity of Indian electorate. The understanding between coalition translates into a common minimum programme and announced either prior to the election or before the formation of the coalition government.

But when the coalition partner switches side mid-stream driven by opportunism, the common minimum programme becomes non-existent and the power given by people is abused. Which is against the ethics of coalition government. So ARC recommended the following

Appointment of Chief Election Commissioner / Commissioners

• The procedure of appointment is mentioned in A324
• A324 stipulates they are appointed by President on advice of Prime Minister.
• Appointment of chairperson and members by NHRC and CVC are " broad based " with collegium headed by PM. Broad based because leader of opposition is a part of collegium.
• So election Commission recommended similar broad based collegium

Expediting Disposal of Election Petitions

Election petitions are filed in High Court and should be disposed of within 6 months according to Representation of People Act.

However in actual practice they remain pending for years. So National commission to Review working of Constitution recommended special election benches in every High court. So 2nd ARC recommended

Ground of disqualification for Membership

Article 102 of constitution provides for disqualification for membership of parliament.

Article 102(e) that Parliament has also been authorized to pass a law to include any further conditions for such disqualification.

Mahatma Gandhi Quoted. " Corruption and hypocrisy ought not to be inevitable products of democracy, as they undoubtedly are today. "

Ethics in Public Life

Ethics is grounded in the notion of responsibility and accountability. Every public official is ultimately accountable to people which is enforced through rules and regulations. Ethics provides basis for creation of laws. Morality shapes the character of these laws and rules.

" Public functionaries are trustees of the people " therefore they ought to act on public interest.

Any framework of ethical behaviour must include the following elements:

• Codifying ethical norms and practices.
• Disclosing personal interest to avoid conflict between public interest and personal gain.
• Creating a mechanism for enforcing the relevant codes.
• Providing norms for qualifying and disqualifying a public functionary from office.

A system of laws and rules, however elaborate, cannot provide for all situations. Therefore there is need for code of conduct or ethical code in public life. In this context UK came up with Committee on standards in Public Life, popularly know as Nolan Committee. It outlines 7 principles of public life

1. Selflessness
   • Holders of public office should take decisions solely in terms of public interest
   • They should not do so in order to gain financial or other material benefits for themselves, their family or their friends.
2. Integrity
   • Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that might influence them in the performance of their official duties.
3. Objectivity
   • In carrying out public business, including making public appointments, awarding contracts or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
4. Accountability
   • Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
5. Openness
   • Holders of public office should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
6. Honesty
   • Holders of public office have a duty to declare any private interests relating to
     their public duties and to take steps to resolve any conflicts arising in a way that protects
     the public interest.
7. Leadership
   • Holders of public office should promote and support these principles by leadership and example.

International Approach to Ethics

General Assembly adopted the United Nations Convention against Corruption in 2003 of which India is a signatory but yet to ratify it.

Code of Conduct/Ethics for its Ministers, legislators and civil servants. There is a Ministerial Code in UK, in the US Senate a Code of Conduct and in Canada a 'Guide for Ministers'. In Belize, the Code of Conduct for public functionaries is prescribed in the Constitution itself.

Ethical Framework for Ministers

Government of India has prescribed following Code of Conduct to Ministers

• Before becoming a minister, candidate shall disclose  to the Prime Minister, or the Chief Minister,
  • His assets and liabilities,
  • business interests, of himself and of members of his family
  • all immovable property
  • shares and debentures
  • cash holdings
  • jewelry
  • shall sever all ties with any business in which he was interested before his appointment as Minister.
• After becoming minister
  • Furnish annually to the Prime Minister, or the Chief Minister, as the case may be, a declaration regarding his assets and liabilities.
  • Refrain from buying from or selling to, the Government any immovable property
  • Refrain from starting, or joining, any business;
  • Ensure that the members of his family do not start, or participate in, business concerns, engaged in supplying goods or services to that Government
  • If any member of his family sets up, or joins in the conduct and management of, any other business, report the matter to the Prime Minister, or the Chief Minister
  • No Minister should accept any contribution through a member of his family
  • No Minister should not permit their spouse and dependents to accept employment under a Foreign Government.
  • A Minister should-not accept valuable gifts except from close relatives,
  • He or members of his family should not accept any gifts at all from any person with whom he may have official dealings.
  • A Minister may receive gifts when he goes abroad or from foreign dignitaries in India. These gifts are of two types
    • Symbolic Gifts like sword of honour, ceremonial robes can be retained
    • Non Symbolic Gifts that are valued below Rs.5000 can be retained else to be deposited in Toshakhana (Can purchase certain household items and not all if he likes)
  • A Minister should avoid attending, as far as possible, ostentatious or lavish parties given in his honour.
  • He should stay in accommodation belonging  Government such as circuit houses, dak bungalows etc)

To be continued .......