Strengthening the Court System to Combat Corruption

I.   The Constitutional Perspective

                The Solemn Constitutional resolution by the People of India which ensures to all its Citizens Justice, social, economic and political, equality of status and of opportunity has its basis in clean administration for the governance of the Country at all levels without which these would simply be empty platitudes. The Constitutional directives even if followed only broadly by the State, expected to strive to promote welfare of the people, would leave no scope for a corrupt regime. The Constitutional duty of every Citizen to strive towards excellence in all spheres of individual activity is obviously in context of lawful activities that enhance individual and national prestige. The Constitutional Oaths of its functionaries bind them to faithful and conscientious discharge of duties without fear or favour, affection or illwill and to upholding the law. There is therefore, no scope in the Indian P olity for use of corrupt practices, such as bribery or fraud in the governance of the Country if these constitutional values are scrupulously observed, upheld and if need be, enforced. There are built in provisions in our Constitutional System to ensure that those guilty of this gross misconduct are impeached or removed. Collective wisdom is necessarily pure because no Society is so debased as to collectively declare negative values of avarice and self-aggrandizement which are at the root of corruption.

II.   The Effect

                There has been a global recognition of the devastating effect of corruption in public life. Those who are vulnerable to the evil effects of corruption are the poor and downtrodden who get exploited and are deprived of the benefits of Social Welfare Laws and Schemes intended for them; but the stream of help dries up before it reaches them.

III.   Court's Role

                Under the Scheme of checks and balances adopted to ensure that the authorities function within their constitutional limits, the Courts have an important role to pay and are armed with wide powers to ensure that any decision of a public authority that is founded on corrupt practice or is a fraud on exercise of power is set at naught, and the guilty punished. For the Courts, combating corruption is a task of high importance and brooks no casual or lenient approach. There is no room for compunction in dealing with a corrupt official or authority and only a swift decisive and deterrent approach is warranted by the Courts while dealing with the delinquents.

IV.   Need for Vigilance

                The power of judicial review of quasi-judicial functions of the departmental authorities and service tribunals is often pressed into service at various levels and stages. The Court system is designed to uphold and implement the law. Therefore, while on one hand it is the duty of the Court to protect violation of individual rights by arbitrary or malafide action of the Public authorities, it is equally or even more important to see that the judicial process is not abused by the crafty and the undeserving. The easiest cover for a delinquent offender, who is detected, is to run to the Court for an order to pre-empt departmental or punitive action against him. Amidst the hush-hush and well oiled illegality of the underworld of the corrupt, rarely the incidents are detected. When it is a loss to the State exchequer it is by conspiracy of corruption between the beneficiary Citizen and the obliging authority and no one would know about it unless it is detected by some vigilant eye that may occasionally open. When, however, it comes to a conflict of interest generated by adoption of a corrupt practice, it is more likely to come to light. Thus the instances brought before the Court are just a tip of the ice-berg. This by itself merits a vigilant attitude of the Court to ensure that its processes are not abused by securing cover of interim relief against the proceedings, and thwarting the prosecutions under the guise of matter being sub-judice.

V.   The System Errors

                The system of inquiring into the conduct of Officials and functionaries adopted by our legal system should be allowed to function and the Courts must resist any attempt to halt such proceedings, as it is done in election matters, where, once the election process commences, all disputes are to await adjudication till the election results are announced. This self-restraint requires knowledge of the role of the office that is abused, the impact on the Society of the wrong that is perpetrated and the relevant provisions of law that govern the case. Lack of minimum necessary expertise, though it gets camouflaged under the cover of power, is an area where the Court system needs to be strengthened to prevent system errors that will answer the cases wrongly and protect the guilty when the law intends it otherwise.

VI.   Multiple Liabilities of the Corrupt

                By virtue of all-pervading principles of natural justice the delinquent has sufficient safeguards during the inquiry proceedings and trials, and, the State has opportunity to place on record the material reflecting the corrupt malpractices alleged against the delinquent. The administrative authorities who are in the relevant field are closer to the ground realities of the set-up in which corruption was practiced, for deciding to take action. There are departmental appeals against the adverse orders and in most cases Tribunals to look into any alleged flaws. The superior Court’s main function should be to ensure that they follow the mandatory procedure and make orders in accordance with law. It has not to re-appreciate material for reviewing the departmental decisions like and appellate authority. So long the orders of punishment of the delinquents are made by an authority duly empowered and can be supported on the material considered by the competent authority to be sufficient, there should not be any attempt to substitute the Court’s opinion for providing an escape rout to the culprit. When not to exercise power of judicial review, is as important for preventing damage to the judicial system as is the need to exercise it to protect the innocent for upholding the system. A corrupt official is basically a criminal with multiple liabilities that he incurs. Any undue indulgence shown in dealing with his liabilities for such misconduct is bound to have impact on his treatment by the Court where he is tried. Often the decision to lodge a criminal complaint is deferred till the outcome of the departmental proceedings is known. Though criminal liability is based on the evidence led during the trial which is an independent proceeding, an efficient Court system is concerned with both, as it will be incongruous to have a person found guilty of corruption and therefore liable to be dismissed to move freely due to failure of his prosecution for the same misconduct which also amounts to an offence. The situation may turn out to be a financially viable one to such delinquent who may lose the job but remains sufficiently secured. Therefore, though the standards of proof may differ, there is a case of a unified approach to gathering data or material that can form the basis of the multiple liabilities arising from such misconduct which is also an offence. Until there is brought about a statutory change which will enable one set of material reflecting on the same conduct being gathered and assessed for multiple liabilities, the Courts should be vigilant of the deleterious effect that an interim interference with the proceedings or its outcome will have on his criminal liability which is of greater significance, because if convicted, the departmental removal would just be a matter of routine.

VII.   The Ominous Prerogative

                Ascertaining criminal liability for corrupt conduct of a public servant is an elaborate statutory exercise. If properly pursued it can have a salutary effect in curbing corruption. There is no more embarrassing thing for a public servant or a high public dignitary than to face a prosecution for corruption or fraud. The stigma that it carries should serve as an effective deterrent. In the fields where the prosecution can be set in motion only after a green signal of the higher authority or at the behest of public officials, the Courts are more or less mute spectators. Only mandamus in case of failure of duty to consider and take decision on the question may lie, but not a direction to vie sanction because, as held in Mansukhlal Chauhan Vs. State of Gujarat (1997) 7 SCC 622, a sanction issued by an authority on the directions of the High Court would be invalid as it takes away the discretion o f the authority not to grant sanction. Leaving it to public Officials the task of the deciding whether a person violating the law should be prosecuted, such as; for violation of pollution control laws, forest offences, municipal offences, prevention of food adulteration laws etc., has often proved to be counter productive. The authority to decide whether a person should be prosecuted or not can be an incessant source of corruption. Investing the power to grant sanction for prosecution in an independent body headed by an experienced judicial mind can strengthen the drive against corruption. The requirement to grant sanction for the prosecution of a public servant amounts to conferring a prerogative by which the authority empowered to sanction the prosecution can say it alone is the one who can decide whether the criminal law should be enforced in these Courts or not. Should the sanctioning authority be allowed to have such prerogative to suspend or dispense the laws ? If it does not give consent to the p rosecution of the public servant, who during investigation or inquiry appears to be guilty of corruption, it should be made possible for anyone of the public at large, who is adversely affected, to come to the Court and ask that the law be enforced. Thomas Fuller’s words uttered more than 300 years ago still rend the air "Be your ever so high, the law is above you." The Criminal Justice system will effectively control corruption if the Court is allowed its due role of being the ultimate arbiter for deciding whether prosecution should be launched by the public official empowered to decide and file the complaint.

VIII.   Sub-Judice as a Ruse

                Often a modus operandi is adopted whereby, under some or the other pretext, a case is filed or got filed in the Court on the ground of some alleged illegality but the real purpose is to thwart the prosecution of the culprit under the pretext of the matter having become sub-judice. In pollution matters, it is not unknown that the proceedings are often resorted to under Article 226 of the Constitution raising some controversy over refusal of statutorily required consent of the Pollution Control Board and whilst the petition remains pending, an excuse is often put up by the Board for not launching the prosecution on the spacious ground of the matter being sub-judice, not-withstanding the fact that the prosecutions are normally not stayed. All this at whose and what cost? If an industrialist can successfully dodge his prosecution in league with an obliging official, by using the court proceeding s as the medium of their game, due to a prolonged pendency of a case before the unsuspecting Court wanting to remove pollution by keeping the matter for months and years before it for monitoring the progress, it is high time to say quits and focus the attention on a more effective course of criminal prosecutions by the Officials empowered to launch them and empowering the Courts to issue mandate on them when they falter or delay rather than leave the matter of setting into motion the criminal law entirely in such raw and crafty hands. It will be a matter of considerable interest and fruitful outcome for a researcher to examine how the factor of pendency of proceedings particularly in the Writ jurisdiction of the High Courts is used by the parties in collusion with the obliging corrupt officials to avoid their prosecutions under the pretext of the matter being sub-judice. The Courts need to become acutely aware of their processes being used as a platform enabling the corrupt officials to thrive on the mi suse of their power, and react suitably before it is too late.

IX.   Conclusion

                We now stand at the threshold of heightened public awareness. Ethics in public service is crucial to success of any democratic set-up. The strength of the Court system to combat corruption lies in its own stature and image to a large extent as also in its own accountability and respect for the law. This is reflected from the dictum of the majority decision (J.S.Verma, J dissenting) of the Apex Court in K. Veera Swami V. Union of India (1991) 3 SCC 655, that, there is no law providing protection for judges from criminal prosecution. The existing Court system is efficient but it has to derive its strength from those who man it and whose adequate extent of knowledge, experience, involvement and determination alone can effectively curb the evil of corruption .