ZERO TOLERENCE

ZERO TOLERENCE

Zero tolerance means “a form of policing that allows no crime or anti-social behaviour to be overlooked,” or  the policy or practice of not tolerating undesirable behavior, such as violence or illegal drug use, especially in the automatic imposition of severe penalties for first offenses.  As the name of a form of policing this term came into use in the USA in the 1970's. This method typically involved allocating additional law-enforcement resources to areas where some form of crime, e.g. mugging or prostitution, was endemic and then applying the strict and uncompromising letter of the law. The term was reported in The New York Times in December 1972. The name, as well as the policing method, has since migrated to other countries. The term had been used in the USA in other contexts prior to the policing usage, for example, seeds which were treated with pesticides were often described as having 'zero tolerance' to disease. Also, in October 1943, The Ogden Standard-Examiner reported a precision machine tool called a 'Zero-Tol': "The device makes it possible to set four tools at once. After the tools are set up, they return to their exact positions without special attention from the operator.                                                                                                                       How to tackle corruption with the aid of Zero Tolerance Policy is the subject matter of this article. What is so new about corruption? Corruption was known even in the time of Yagnavalkya. Our scriptures talk about anti social activities called corruption. The corrupt are referred to as utkochajeevi in Yagnavalkya Smriti. In fact Smriti recommends recovery of entire ill gotten wealth from the corrupt and banning him out of the state as punishment. The smriti goes a step further and says that the ruler, the rajah, should deploy secret service to ascertain the work of the officers and should reward the work of the honest officers and punish the corrupt ones. Manu says in his Manu Smriti when a public servant expects money for carrying out the work of the needy people, the rajah or the ruler or government should completely strip away all the assets of the official and exile him from the country. Manu uses the words tesham sarvaswamadhaya meaning all his assets. In this sense, Manu is more harsh than Yagnavalkya who recommended stripping of only the ill gotten wealth of the corrupt.                                         In India today, people are tolerating corruption because they find that there is no way out. They are considering it to be inevitable. But if we can show that corruption is not inevitable, then it will become intolerable.        In the context of tackling of criminal “ Zero tolerance” means that no case of corruption will be tolerated and the corrupt would be punished. Zero tolerance became a popular expression when Rudolph Giuliani, the Mayor of New York applied it to tackle crime when he became the mayor of one the most crime ridden cities of the U.S. He succeeded spectacularly.                                                                                       As we all know Indian democracy is always greedy of black money. The  elections also involve a lot of black money and it is this use of black money in elections which has also brought about the criminalization of politics highlighted by the Vohra Committee. After all, the story of the Hawala scam started by the police stumbling to the Jain diaries in their effort to trace the money received by the Kashmir militants. The 1993 Bombay blasts which took away the life of 300 people was made possible because RDX could be India is ranked 66 out of 85 in the Corruption Perception Index 1998 by the German non-government organization Transparency International based in Berlin. This means that 65 countries were perceived to be less corrupt than India and 19 were perceived to be more corrupt.  To fight against corruption we have to the principle of zero tolerance. How to operate principle pf zero tolerance is the issue.                                      Before going further about the operational part of zero tolerance let us look into the back drop of the past Indian scenario of corruption. The first stage was the corrupting of the institutions and the second stage was the institutionalization of corruption. Corrupting of the institutions in turn has finally led to the institutionalization of corruption. When there is contempt for the law and this is combined with the criminalization of politics, corruption flourishes. An honest public servant becomes misfit when he tries to implement the law under such a situation.                                                                                                              As S S Gill in his book The Pathology of Corruption have pointed out there are  the corrupt politician (neta), the corrupt bureaucrat (babu), the corrupt business (lala), the corrupt NGO (jhola) and finally the criminal (dada). According to him there are five reasons why our system encourages corruption. These are (i) scarcity of goods and services, (ii) lack of transparency, (iii) red tape and delay due to obsolete rules and procedures which are time consuming and encourage speed money, (iv) cushions of legal safety which have been laid down by various pronouncements of the courts on the principle that everybody is innocent till proved guilty. The net result is that the corrupt are able to engage the best lawyers and quibble their way through the system. Three elements are needed to accelerate the goal of Zero Tolerance. 1.  Simplify rules and procedures so that the scope for corruption is reduced to the minimum. In simple words the old terminology RED TAPISM maut be avoided. 2. Transparency and empowering of the public. Right to Information Act is a welcoming step for transferring power to people and a transparent administration. 3. The last one is awarding effective punishment. Today corruption is a low risk high profit business.                                 To control corruption and prevent the practice of bribery some suggestions are placing for consideration.

Suggestions

Identification: Identify the sensitive administrative departments vulnerable to corruption as most corrupt, average corrupt and corrupt.                                 Publishing the list: Corruption index like TI has to be prepared by Government agencies after a survey and study. The list must rank the departments. An average Indian may not forget the strike of Delhi Air Customs when it was observed that the Delhi Air Customs were the most corrupt. Even identifying a department and openly cautioning the public is prohibited by association of labor class and white collar managerial. Zero tolerance of corruption should begin with zero tolerance of the so called “Fair named departments” or   "Reputed" government departments which are known to be corrupt but which behave like an angry porcupine the moment someone mentions about their being a corrupt. The lost prepared by the Governmental agency must be published every year. This will definitely bring down the level of corruption. This will also help authorities to focus attention on the most corrupt departments. This situation will make the honest sin such department shameful and become whistleblowers in the department.                                                               Anti-Corruption convention: Under the Indian legal system the bribe giver and bribe taker are guilty under the prevention of corruption Act., 1988. The Supreme Court in the JMM case held that the bribe receiving MP is not be guilty but the bribe giving person, even if he is an MP, is guilty of corruption. So, the Chambers of Commerce and the whole business and industry should come together and emulate the 34 OECD countries who have signed the anti bribery convention. The Chambers of Commerce should come together and openly sign an anti bribery convention and ensure that their members will not bribe.                                Whistleblowers Clubs: The encouragement to youth to blow the whistle when a corrupt practice is noted by them. Form associations all over the country by name “Whistleblowers Club”. The members of this club must be given protection of  law.                                                                                                             Primary education to children: Intolerance of corruption can be bred in the culture of the people if we are able to use our education system to send the right signals.                                                                                                                                     Anti-Corruption Clubs: Encourage in colleges and educational institutions anti-corruption clubs. The members of the NVC may be authorized to check and expose cases of corruption which will result ultimately in effective punishment. This may be one method by which the entire nation can be mobilized to fight corrupt and the principle of zero tolerance will have an added meaning.                                                                                                                              APS (Annual Property Statements):   Public servants and Public men must file their annual property returns.                                                                                               Effective implementation of law: Speedy and effective prosecution of the offender must be implemented. The delinquents must be dealt with departmentally. Iron hand theory of punishment is a must to handle corruption.                        Trap: This is an effective method to tackle the most corrupted public servant.                                                                                                                 Modify Criminal Law Amendment ordinance 1944: A new Act by name Corrupt Public Servants (Forfeiture of Property) Act to be passed immediately. The present Ordinance is suiting the purpose to deal with the Benami holders of ill-gotten money. The new Act must give a broad canvass to the definition of assets of the offender. The Law Commission has already drafted the Corrupt Public Servants (Forfeiture of Property) Act.                                                                                     Dismissal not suspension: Out right dismissal of the public servant from the service after registration of the corrupt case must become order of the departmental procedure instead of suspension, a week end holidays for the public servant. After a long period of suspension he enjoys the period of suspension as duty with eligible leave and payment and allowance. If the he is acquitted of benefit to doubt he is dismissal must continue must be the rule and reinstate him must only be an exemption.                                                  Supply of Information:  Even after the coming in to action  of the RI Act the Indian administration and judiciary are reluctant to abide to the intention of the Act. This attitude must be changed. Law givers are law breakers in this case.          The Benami Transactions (Prohibition) Act 1988: This Act must specify that if there is no legal source to acquire an asset it is the burden of the purchaser to prove that source. This Act is applicable to any of the provisions  in Prevention of Corruption Act, 1988. A clear procedure may be prescribed for confiscation of benami property under Section 8 of the Benami Transaction Prohibition Act.                                                                                                  Availability of Information: Information technology and Right to information’s Acts are steps to achieve the passing of information to the people. For example, in Andhra Pradesh, the registration and transfer of property which normally takes a long time under the present practice is done in a few hours instead of weeks or months as in other States. We can contrast AP experience with what happens in the Delhi Development Authority where again we are dealing with transfer of property or the registration offices in Delhi and in other states. Extensive use of information technology to check corruption should be part of the zero tolerance approach to corruption.                                                Implement sunset principles: The obsolete laws must be repealed and new laws with new vision may be codified. The Jain Committee has recommended that out of the 2500 administrative laws, about 1300 should be scrapped. The presence of obsolete laws and time consuming procedures which are breeding grounds for corruption.

Epilogue

Equating the crime of rape with murder, Justice S Radhakrishnan and Justice Roshan Dala of High Court bench, in Mumbai on January 11, 2008 declared a “zero tolerance policy” towards rapists and asked lower courts to deal with such cases “with sensitivity, sternly and severely.” Equating the heinousness of rape with murder, which legally is the most serious of crimes, the judges deplored the tendency to take a “sympathetic attitude” towards persons accused of rape and of blaming “lack of tough laws” for being lenient. “Whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female,” said the bench and added,                                                        “Social interest needs to be cared for, protected, and strengthened by a string of deterrence inbuilt in the sentencing system.”                                                                       Let us hope that  the words of the Hon’ble High Court will come into application in corruption cases also?

 Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights)