Corruption and human rights - II

The constitutional quest to develop human rights against corruption goes beyond demanding that the government respect the rule of law.

THE pronouncements of various states in recent years give enough evidence to show that there is universal condemnation of corrupt practices by public officials and a general interest in cooperating to suppress them. The parties to the Criminal Law Convention expressly acknowledge that "corruption threatens the rule of law, democracy and human rights, undermines governance, fairness and social justice, distorts competition, hinders economic growth and endangers the stability of democratic institutions and moral foundations of society" (Council of Europe, Preamble to the Criminal Law Convention on Corruption, 2000). In the 1994 Summit of the Americas Declaration of Principles and Plan of Action, the heads of state of 34 nations of the southern hemisphere linked the survival of democracy to the eradication of corruption. "Effective democracy," they declared, "requires a comprehensive attack on corruption as a factor of social disintegration and distortion of the economic system that undermines the legitimacy of political institutions".

On December 16, 1996, the United Nations General Assembly acting on a recommendation of the Economic and Social Commission, adopted the U.N. Declaration against Corruption and Bribery in International Commercial Transactions. The declaration highlights the economic cost of corruption and bribery and points out that a stable and transparent environment for international commercial transaction is essential in all countries for the mobilisation of investment, finance, technology, skills and other resources across national borders. In the declaration, member-states pledged to make the bribing of foreign public officials a criminal offence in an effective and coordinated manner, and to deny tax deductibility on bribes paid by any private or public corporation or individual of one member-state to any public official or elected representative of another country.

Corruption was also the subject of a 1997 U.N. General Assembly Resolution entitled Action Against Corruption. The resolution underscored the General Assembly's concern about the serious problems posed by corrupt practices to the stability and security of societies, the values of democracy and morality, and to social, economic and political development. Professor Ndiva Kofele-Kale has argued that an emerging customary law norm that treats corruption as a crime under international law draws strong support from the following: 1. Consistent, widespread and representative state practice proscribing and criminalising corruption; 2. The widespread condemnation of acts of corruption as reflected in the preambles of multilateral anti-corruption treaties and in declarations and resolutions of international organisations; 3. Pronouncements by states in recent years that evidence a universal condemnation of corrupt practices by public officials; 4. A general interest in cooperating to suppress acts of corruption; and 5. The writings of noted publicists recognising corruption as a component of international economic crimes. Based on these factors, he has argued that there is a strong case for treating corruption as a crime under international law with individual responsibility and punishment attached to it.

As much as I agree with Prof. Kale on the fundamental thesis of recognising corruption as an international crime and thereby suggesting the development of a fundamental human right to a corruption-free society, I would like the development of this human right to be observed within the context of the states' constitutions. Thus, it is desirable that the constitutions of nation states have express provisions to recognise the fundamental human right either to a corruption-free society or to corruption-free service, which would enable national judiciaries to play a catalytic role in enforcing these rights. This proposal may be seen in the context of developing constitutional and legislative measures, which are necessary to ensure probity in governance in nation states. Thus, the question of the constitutionalisation of the right to corruption-free service with specific reference to India would be examined within the framework of protecting and promoting human rights and better governance.

Towards recognising a fundamental right to corruption-free service

As early as 1964, the Santhanam Committee, which was set up to examine the increasing menace of corruption in the administration, observed that the "tendency to subvert integrity in the public services instead of being isolated... is growing into an organised, well-planned racket". If anything, it has grown much larger and become even better organised since this report was prepared. Granville Austin has said that the Indian Constitution is first and foremost a social document. Thus, when those who drafted the Constitution included the chapters on fundamental rights and directive principles of state policy, they hoped and expected that these would give strength to the pursuit of the social revolution in India. Fundamental rights of the Constitution are in general those rights of citizens, or those negative obligations of the state not to encroach on individual liberty.

Although the fundamental rights primarily protect individuals and minority groups from capricious, prejudicial, state action, three of the articles are designed to protect the individual against the actions of other private citizens. Article 17 abolishes untouchability; Article 15(2) lays down that no citizen shall suffer any disability in the use of shops, restaurants, wells, roads and other public places on account of his religion, race, caste, sex or place of birth; Article 23 prohibits forced labour, which, although it had been practised by the state, was more commonly a case of landowner versus peasant struggle.

Thus the state, in addition to obeying the Constitution's (negative) injunctions against interfering with certain of the citizen's liberties, must fulfil its positive obligation to protect the citizen's rights from encroachment by society (Granville Austin, 1966). It is this negative injunction and positive obligation within the scheme of fundamental rights that needs to be built upon while evaluating the impact of corruption on governance administration in India. In India, corruption has scuttled the realisation of fundamental rights, discouraged any scope for the development of egalitarianism, and thereby significantly hindered the process of achieving a social revolution. This has resulted in liberty becoming the privilege of a few who happen to hold economic, bureaucratic, judicial or political power. "The struggle for career advancement," said former Secretary to the Government of India R.C. Dutt, "is greatly influenced by the surrounding moral atmosphere of the struggle for existence of different classes and groups in society...(This) has provided ample opportunities for corruption, and indeed for collective self-aggrandisement at the expense of the poor". P.N. Haksar thought "our civil services... are committed first of all to themselves and their nuclear family...(and beyond this to) making secure the future of our sons, daughters...and if possible... the members of our sub-caste, caste, community and region".

The concept of identifying corruption as a cause and an effect of poor governance and the resultant violation of human rights is a recent phenomenon. Its massive impact on the legitimacy of all institutions in India needs to be examined thoroughly. This observation rests on the argument that when the government of a country fails or neglects to curb or contain corruption, that government fails to fulfil its obligation to promote and protect fundamental human rights in the country. Nihal Jayawickrama, executive director of Transparency International ("Corruption - A Violator of Human Rights", 1998), argues that the three important ways by which corruption affects human rights are: 1. Corruption perpetuates discrimination; 2. Corruption prevents full realisation of economic, social and cultural rights; and 3. Corruption leads to the infringement of several civil and political rights.

I may add that in the Indian context corruption distorts the principle of equality before the law and equal protection of law, which is enshrined in the Constitution. It is clearly understood both from a legal and constitutional interpretation and from the plethora of judicial decisions in India that the principle of equality and non-arbitrariness is the "brooding omnipresence" (Justice P.N. Bhagwati in Maneka Gandhi vs Union of India) of the Indian Constitution. Corruption not only perpetrates injustice, resulting in the breakdown of the governance machinery, but also violates the fundamental rights that are guaranteed to citizens. Conversely, it may be argued that the present proposal to include the right to corruption-free service as a part of the scheme of fundamental rights might strengthen the other rights, including the right to equality and the freedoms that are enshrined in other portions of Chapters III and IV of the Constitution.

Interestingly, Article 11(2) of the Constitution of Eritrea provides that "all administrative institutions shall be free from corruption, discrimination and delay in the delivery of efficient and equitable public services". Even though this provision hardly guarantees a fundamental right to corruption-free service, the fact that "corruption" in administration has been constitutionally proscribed sets the right tone for the corruption discourse. However, developing countries like India need to think hard as to how to tackle corruption legally and, in this case, constitutionally. The Indian judiciary has progressively developed and expanded the scope of fundamental rights to include a plethora of rights, mostly, within the ambit of the "right to life" provision in Article 21 of the Constitution. A classic case in point is the initial judicial recognition of a fundamental right to education, through a creative interpretation that the right to life includes the right to education. It brought home the most valuable argument that life without education indeed amounts to vegetative existence.

The role the Indian judiciary has played in expanding the 'right to life' concept to include numerous economic and social rights, which were hitherto considered merely policy guidelines in the form of the directive principles of state policy, is amazing. The judiciary was able to justify all the rights that we claim today to be part and parcel of fundamental rights. It has resulted in the legislature bringing a constitutional amendment making the right to education a fundamental right.

But when it comes to corruption, the judiciary in India has not been able to develop in clear terms any fundamental right to corruption-free service for the citizens. Article 14 of the Constitution guarantees equality before the law and equal protection of laws to all Indian citizens. Further, it may be argued that corruption directly violates the protection guaranteed under the equality clause, because a corrupt public servant discriminates against a person who does not bribe him as opposed to a person who bribes him. This isolated incident of discrimination gets institutionalised into an all-pervasive phenomenon, thereby violating the equality clause. Similarly, Article 19 gives Indian citizens the fundamental right to practise any business or profession. In India, public servants who hold positions of power and authority use their discretion to grant or deny permission to start business enterprises. The corrupt public servant often justifies such action by arguing (to himself) that he has the right to a share in the profit of the professional or the businessperson (N. Vittal, Central Vigilance Commissioner of India, 2000). Thus, the equality clause in Article 14 and the freedoms provided in Article 19 lose their meaning and relevance owing to the institutionalisation of corruption at every level of the citizens' interaction with the government.

There is an urgent need for a constitutional reform in the form of an amendment to the Constitution to include the fundamental right to corruption-free service. This is not to suggest that the mere inclusion of a fundamental right would result in an immediate success in the struggle to prevent corruption; it would, however, be a significant step in the right direction. It would open up several avenues for lawyers, judges, non-governmental organisations and parliamentarians to mobilise public opinion on the subject. The importance of the subject should not be underestimated as all our goals, ideals and aspirations of constitutional democracy rests on the legitimacy of the state as an institution to deliver the goods. The kind of corruption that is prevalent in India and other developing countries fundamentally threatens this structure. One hopes that the legislature will take the lead in this matter. I guess we are not far from the day when the Supreme Court of India would read Articles 14 (equality), 19 (freedoms) and even 21 (life) coupled with the directive principles of state policy that relate to good governance and sound public administration and conclude that Indian citizens indeed have a fundamental right to corruption-free service.

This is not to suggest that the lawmakers should actually wait to bring a constitutional amendment so as to include corruption-free service as a fundamental right. But experience has shown that in the area of law reform in India, the judiciary has indeed taken the lead. By way of constructive judgments, it has instructed as to what the law is or rather what the law ought to be. The parliamentarians have followed it up after adequate pressure from the civil society and the populace. Vittal supports the view that corruption-free service should be made a fundamental right by including such a provision in the Indian Constitution. His arguments are based on the fact that corruption-free service must become a fundamental right of every citizen in India, as that is a basic necessity for good governance. He supports the view of the United Nations Development Programme (UNDP) that good governance is indeed a universal human right and that the right to good governance should be part of fundamental rights.

Thus, the inclusion of the right to corruption-free service as a fundamental right would result in not only our recognising that corruption affects good governance, but also delineating the principle that the citizenry have a right to demand governance without corruption and if it is not given to them, they will be able to approach a court of law through the use of writ jurisdiction.

The possible objections to the inclusion of such a right would mostly come from those who are against the judiciary taking up the role of governance in India. It is worth noting that in so many ways the right to corruption-free service in so many ways is not very different from other fundamental rights that the judiciary has evolved through creative and progressive interpretation.

Subodh Mohite, Member of Lok Sabha, introduced a private ` Bill in the winter session of Parliament in 2000 for the inclusion of a new Article 17A in the fundamental rights chapter by which the citizen will be entitled to get corruption-free service from the state. It is anybody's guess as to what happened to the proposal. I would have liked the National Commission to Review the Working of the Constitution, which recently submitted a good report, to have proposed such an inclusion in the chapter on fundamental rights. Despite the recommendations of the Commission to deepen and expand the scope of fundamental rights within the Constitution, I am of the view that corruption-free service ought to have been made a fundamental right, and this would have added practical meaning and increased the relevance of the recommendations.

Thus, the constitutional quest to develop human rights against corruption goes beyond demanding that the government respect the rule of law. Even where the rule of law may be respected, the humanitarianism of human rights under the Indian Constitution cannot fall short of a tireless search to increase the level of constitutional protection beyond the negative requirement of disciplining the state to achieve equality, promote egalitarianism and uphold dignity. The fundamental human right to corruption-free service would be justified even within the Dworkinian scheme of taking rights seriously, if we are able to develop a theoretical argument that corruption affects equality and dignity. And hence the right to corruption-free service is part of the human rights jurisprudence that struggles to protect the dignity of Indians, who are entitled to equal treatment, concern and respect.

C. Raj Kumar, Lecturer at the School of Law, City University of Hong Kong, was a Rhodes Scholar at the University of Oxford and a Landon H. Gammon Fellow at the Harvard Law School..