Probity in Public Life - Whither Standards?

Corruption has become a staple of Indian discourse of all hues and at all levels. It has become all pervasive and rampant. No critical observer of the Indian scene will disagree with the conclusion that along with democracy’s waffles, wobbles and flip-flops and bureaucratic red-tape corruption constitutes the most formidable obstacle to India’s emergence as an economic superpower. Therefore, tackling it brooks no delay nor complacency and vacillation. The existing apparatus to deal with corruption, both in the States and at the Centre is targeted and focused mainly at the permanent bureaucracy. It is necessary to appreciate, in this context that once can’t expect bureaucracy to be honest if the political leadership is corrupt. Probity of the political leadership is a sine-qua-non for the sustained growth, prosperity and well being of any nation.

Unfortunately, due to ignorance of law on the part of the ordinary citizen, the principle of juris-prudence that a person is presumed to be innocent till he is proved guilty in a court is being invoked, ad nauseam, to not only shield politicians whose reputation is under cloud, but to allow them, unfettered, to handle the affairs of the state in responsible positions of power and authority. To clarify the law of the land, presumption of innocence relates to a criminal offence and not to misdemeanor or malfeasance in public affairs or even inefficiency and negligence. To illustrate, a Government servant, entrusted with the custody of a large amount of money, may have misappropriated the money. While it may not be possible to establish the criminal offence of misappropriation in a court of law, the Government servant can still be held responsible for causing serious monetory loss to the State on the circumstances of the case and removed from service. A Tax official may have connived with leakage of revenue for return favours in the future. Such conduct may not provide the ingredients of a criminal offence even while constituting enough basis for exit from government employment.

These examples, even if they relate to government servants only, should help to make the distinction between what constitutes criminal misconduct punishable in a court of law and conduct which amounts to wrong doing, in violation of well recognised principles of probity and justifies prohibition from holding public office. To preserve such a distinction and to enable the State to deal with the errant behavior of corrupt officials, without necessarily having to haul them to a criminal court in each case, a set of rules, popularly known as ‘Conduct and Discipline Rules’, had been framed by the Governments at the Centre and in the States. For a criminal offence, the standard of proof, for holding a person guilty is one of being beyond the shadow of all doubt of an ordinary and prudent person. In a disciplinary case, the standard is one of preponderance of probability thrown up by the facts and circumstances of the case. It has been accepted by the highest court of the land that the facts and circumstances surrounding a case of misconduct by a Government servant may not warrant a conviction in a criminal court but could still justify his dismissal from service. A related aspect of this distinction is that while innocence is presumed till a verdict of guilt is handed down by a court, an acquittal by court doesn’t necessarily confirm such presumption of innocence. An acquittal may have been warranted by insufficiency of evidence to satisfy the standard of proof for criminal conviction described above. It can be due to benefit of doubt given to the accused on the nature of evidence. Only an honourable acquittal will justify the presumption of innocence even after acquittal. That is why the principle of juris prudence cited also envisages that a hundred guilty persons may escape punishment so that not a single innocent person is convicted.

The Prevention of Corruption Act 1947 was found inadequate to deal with corruption among public figures as the definition of Public Servant based on the nature of remuneration excluded them from its scope. Therefore, under a new and comprehensive Act brought on the statute book in 1988, the definition of a Public Servant was enlarged by changing the nexus from the nature of remuneration to discharge of Public duty. This has put persons elected to representative institutions of governance on par with government and quasi government servants. Even the revised Anti Corruption Law has not provided an adequate answer to the needs of probity in public life for the simple reason that in accordance with the juris prudential principle cited earlier it lets off far more persons than it punishes. What is worse, public figures have been taking shelter under the presumption of innocence during the pendency of criminal trial to continue in office or assume new offices of public duty and responsibility.

The obvious remedy to this state of affairs, is to draw a parallel with the government servants who are also public servants on the principle that what applies to goose should also apply to gander. In the case of a government servant, gross impropriety or serious misconduct, irrespective of whether it warrants a criminal prosecution or only departmental disciplinary action, is met with suspension from service. He is thus rendered “hors de combat“ or put out of further mischief to public interest, till his case is decided either in court or in the disciplinary enquiry. Even where the court acquits a government servant, he is still liable to removal from service on grounds of gross misdemeanor. Similarly, there is a compelling need to devise in relation to elected public representatives measures parallel to ‘Discipline and Conduct Rules’ applicable to government servants. These could be embodied in the form of a general code of conduct on the lines of the election code of conduct and can be accorded the status of a secondary legislation so that they have the force of law.

Analogous to suspension from service in the case of government servants, a bar to holding a public office during the pendency of an enquiry into ones conduct can be raised in respect of a public figure already elected to a representative institution. In respect of those seeking election or reelection, any such enquiry could act as a disqualification to contest till the outcome of the enquiry.

Now the question arises as to who will conduct enquires into allegations of corruption against elected representatives. The present practice of entrusting such enquires to the anti corruption agencies having jurisdiction over government servants etc., is obviously inappropriate and illsuited to the purpose for the simple reason that government servants entrusted with such probes will always be subject to the fear of retribution in the event of the probe ultimately coming to nought. India has already toyed with independent institutional arrangements like the Lokayukth in the States. At the Center there has been a proposal since a long time to legislate for the creation of the office Lok Pal. The urgent need is to bring on the statute book as early as possible a comprehensive Act for the constitution of Lok Pal at the Center and Lokayukths in the States with adequate jurisdiction to cover all elected representatives including the Prime Minister and Chief Ministers. It will be left entirely to the Lok Pal or Lok Ayukths as the case may be, to decide on the modalities and procedures of such probes, which will be made under their direct supervision. They can go the Public Prosecutor route which is in vogue in the US or create their own investigating machinery independent of the government. During the pendency of such enquires and criminal prosecutions, if instituted thereafter, the concerned persons should be barred from holding any public office. This will automatically create in them a vested interest to cooperate with the enquiry/prosecution and clear themselves of the allegations if they are truly innocent. If the enquiry finds substance in the allegations, the code of conduct can be automatically invoked to slap appropriate disqualifications against holding public office. Criminal prosecutions may be contemplated only in manifest cases of serious criminal misconduct.

The burden of this discussion is that the standard for probity in public life should be not conviction in a criminal court but propriety as determined by suitable independent institutions, specifically constituted for the purpose. Having virtually sworn allegiance to the West Minister model of parliamentary form of governance, we should also adopt the British practices in relation to misconduct of public figures. Ministers in Tony Blair’s government have had to resign on such minor improprieties like a telephonic call to the concerned to fast track the issue of a visa for the ‘nanny’ of the minister’s child or the grant of British citizenship to a generous contributor to the construction of a ‘millennium’ project started by the Government. The recent disqualification of MPs caught in the ‘cash for questions’ scandal is an endorsement of this proposition that there are remedies for corruption and related misdemeanor other than criminal prosecution and conviction in court.

India had missed its opportunity of formally setting high standards of public conduct at the time of Independence and immediately thereafter. On the other hand, it has slid so low, through continuous cynicism and persistentambivalence (Pratap Singh Kairon and Biju Patnaik being exceptions proving the rule) as to rank near the bottom of the International Corruption Index. We need to reverse the slide by prescribing stringent standards of probity in public life instead of providing shelter to public figures of suspect integrity behind the argument of not having been convicted in a court. As was emphasised by Prime Minister Dr. Manmohan Singh himself some years ago, during an inner party discussion, the standard should be one of not only Caesar but even Caesar’s wife being above suspicion. Or should we be reconciled to the most minimum standard as one respected political leader, fond of humour even at his own expense, quipped in private “These are days of common minimum programmes”.

(The author is a retd. DGP and former Governor of Tamilnadu)