Law Commission Report

The Law Commission had suggested in its 166th Report on “The Corrupt Public Servants (Forfeiture of Property) Bill, 1999”, that a law be made for confiscation of property acquired by corruption. It is not merely sufficient to remove a corrupt official from his office or to imprison him.    The fruits of his corruption must be confiscated to the State. The Benami Transactions (Prohibition) Act, 1988 provides for confiscation of property held benami in the name of other persons but the Act says that the appropriate procedure must be made under the rules. The Law Commission has pointed out repeatedly that rules have not been made since 1988 and that rules must be made to make the provision effective.   The same view was expressed by the Commission for Review of the Constitution. Unfortunately, neither a law for confiscation of property acquired by corrupt means has been made, nor steps have been taken to make the rules under the Benami Transactions Prohibition Act, 1988, during all these years.

The Law Commission has also given a Report (Report No.179) (2001) on the Whistle Blowers Law which is called Public Interest Disclosure (Protection) Act. This Report has not been translated into law by Parliament. However, in the case relating to Mr. Dubey who was killed in Bihar for bringing corruption to the notice of the Government, - Government has, at the instance of the Supreme Court, come forward with a notification under which they have designated the Vigilance Commissioner as the authority to receive complaints about corruption and mismanagement in Government. The Vigilance Commission has issued Circulars which are available on its website stating the manner in which complaints can be made to the Vigilance Commissioner confidentially and as to how the name of the complainant will be kept secret and how the complainant will be protected from harm or victimization. On account of lack of sufficient publicity in this behalf, the number of complaints filed confidentially before the Vigilance Commissioner is almost negligible. The proper thing for any good Government will be to enact the Whistle Blower Law on the basis of the draft Bill provided by the Law Commission.

Such laws as mentioned above coupled with the effective implementation of the Right to Information Act will go a long way in ensuring that the Government and public sector operate without the malaises of mismanagement, inefficiency or bribery.
Governance and Right to Information:

Definitions of Good Governance

“Good governance” means the efficient and effective administration in a democratic framework. It involves high level organizational efficiency and effectiveness corresponding in a responsive way in order to attain the predetermined desirable goals of society. According to the World Bank document entitled ‘Governance and Development (1992)’, the parameters of good governance are as follows:

   1. Legitimacy of the political system.  This implies limited and democratic government.
   2. Freedom of association and participation by various social, economic, religious, cultural and professional groups in the process of governance.
   3. An established legal framework based on the rule of law and independence of judiciary to protect human rights, secure social justice and guard against exploitation and abuse of power.
   4. Bureaucratic accountability including transparency in administration.
   5. Freedom of information and expression required for formulation of public policies, decision-making, monitoring and evaluation of government performance.

   6. A sound administrative system leading to efficiency and effectiveness.
   7. Co-operation between government and civil society organizations.

Similar principles have been enunciated by the OECD, which emphasizes on legitimate government, accountability of political and official elements of government, competence of government to make policy and deliver services; and respect for human rights and rule of law.

In light of the above, if one were to venture a list of parameters that go into determination of the quality of governance, the major factors would include limited Government, legitimacy of the Government, political and bureaucratic accountability, freedom of information and expression, transparency and cost effective administration, established legal framework based on rule of law for protecting the human life, securing social justice and checking abuse of power.[8]

Right to info. and its relationship with Good Governance

 The basic premise behind the right to information is that, since Government is ‘for the people’; it should be open and accountable and should have nothing to conceal from the people it purports to represent.   In a responsible Government like ours where all the agents of the public must be responsible for their conduct, there could be no secrets. The right to know, though not absolute, makes citizens wary when secrecy is claimed for common routine business of administration. Such secrecy is hardly desirable. Information is an antidote to corruption, it limits abuse of discretion, protects civil liberties, it provides consumer information, it provides people’s participation and brings awareness of laws and policies and is the elixir of the media.

Currently, the words “governance” and “good governance” are being increasingly used in development literature. “Bad governance” is being increasingly regarded as one of the root causes of all evil within our societies. Major donors and international financial institutions are increasingly basing their aid and loans on condition that schemes to ensure “good governance” are undertaken. Governance means the process of decision making and the process by which decisions are either implemented or failure in implementation is acknowledged and remedied.   Governance includes national governance, international governance, corporate governance and local governance. Government is one of the actors in governance and so is the public sector. All actors other than Government, public sector and the military constitute “civil society”.

According to a paper prepared by the Human Rights Initiative,[9] good governance has eight major facets. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It is assessed that if corruption is minimized, the views of the minorities and vulnerable members of society are heard, that promotes governance. Good governance is an ideal which is difficult to achieve in its totality. However, to ensure sustainable human development, action must be taken to work towards this ideal. The right to information is one of the methods by which success may be achieved in good governance.