CONCEPT OF PUBLIC SERVICE
“Public services” is typically applied to
• Activities of government in the public domain, such as policing and public health;
• Activities done for the benefit of the public, like public service broadcasting or
rubbish collection; and
• ‘Social services’, like medical care, housing, education and social care.
This might seem to imply a definition by function, but public services cannot be identified simply in terms of the things they do. Services like energy supply, medical care or transport can be public services, but they can also be commercial activities. Some public services deliver things that might, in other circumstances, be considered to be part of industrial production – communications, roads, or water.
The term “public service” is used not just descriptively, but normatively. Saying that something is a public service makes a moral claim about the way that organisations should behave. It might be that in exploring the relationship between ‘public service’ and ‘public services’, we begin to identify some defining characteristics of the publicness of public services, and to explore the tensions between that and private provision.
M. Shamsul Haque of the University of Singapore attempts something of this sort in identifying five ‘specific criteria or measures of publicness’ as being:
- the extent of its distinction from the private sector: Haque goes on to identify impartiality, openness, equality and representation as being distinctly public characteristics.
- the scope and composition of service recipients: the greater the number and broader the scope of service recipients, Haque writes, the higher the degree of publicness, and he refers to a ‘shared and universally accessible domain involving the interest of all citizens’.
- the magnitude and intensity of its socioeconomic role: the wider a service’s societal impact, the greater the degree of its publicness.
- the degree of its public accountability: this goes beyond the existence of institutions to the extent to which those institutions are influenced by particular classes or sections of society.
- the level of public trust: that is, how much people trust the credibility, leadership or responsiveness of a service.
In that view, it seems that there are several characteristics of publicness in public services and that each of them, and overall publicness, are matters of degree more amenable to qualitative judgement than to quantitative measurement. This is important, because it implies that political processes and the changing policies they produce, rather than the technical certainties of economic theory, should be our guide.
Justifying public services:
The case for public service depends crucially on the proposition that a policy decision has to be made. What happens when decisions are left to the spontaneous interaction of individuals and groups – the “market” – are not satisfactory. Social criteria have to be applied instead. Justification of this position typically takes three forms.
- One is purely normative. Some things, and some states of being, are better than others. Morality is not subjective or individual; it is social in nature, and for it to work there have to be some shared values.
- The second main justification is that there is social value which is not accounted for by individual preferences. This is related to the idea of “social capital”, which suggests that something about the character of society itself is lost when people act exclusively in accordance with individual interests. Social capital is not truly a form of “capital”, then – it cannot be accumulated or transferred – but it has economic consequences.
- The third justification is more complex. Distinction between individual and social wants is still a difference between individual and aggregate objectives. However, there are also collective social objectives, and the results of collective decisions may legitimately look different from aggregate individualised preferences.
“The whole purpose of public services is … to collectively provide protection, help, restraint, education, recreation and care outside market relationships.”
PHILOSOPHICAL BASIS OF GOVERNANCE AND PROBITY
Philosophy of good governance was recognized by the pundits as the most effective tool for achieving sustainable development, cater to the needs of the mankind and establish a civilized society. Since then, the principle of good governance gained importance in almost all facets of administration and it became one of the most advocated theories in this domain.
The study of governance and its implications is at par with the concept of democracy and its enforcement. It is about how the government and the civil society arrive at a decision and implementation of the decision in meeting their needs. It is thus a two-pronged process of decision making and the procedures followed for the implementation of these decisions. But with the passage of time and advent of technology, it was felt necessary that the system of governance must take a step forward and come out from the boundary of just decision-making and implementing.
Evolution of Good Governance:
It is worth noting that the decisive moment that marked the transition from physics to ethics in philosophy is credited to Socrates (who is regarded as the founder of moral philosophy), as ethics and concern with the inner, rather than the outer world, became the chief object of thought and inquiry in the fifth century BC.
Good governance and political stability are for Aristotle the greatest goods. The chief reason for political instability and revolution is, said to be discontent arising from perceived, inequality. Everyone agrees that there should be justice, and that this is proportional equality, but there is no agreement on what the criterion for this should be: the democrats will claim it is freedom while oligarchs argue that it is wealth.
The way to ensure stability, therefore, is to prevent such discontent by giving as many people as possible, at least, some share of honours, offices, and profits. It is also important to seek to incorporate opponents of the constitution into structure. The most effective safeguard of all, however, is education. Through education, the state can habituate its young ones to the ways of the constitution. Without such habituation, the laws are powerless.
Aristotle sees morality as the basic foundation of political practices and
leadership. According to him, a leader must possess virtue in order “to be …
fit to hold office in his turn”. He goes further to say that a virtuous ruler or regime is a good one such ruler or regime rules to satisfy the interests of the citizens, and not his selfish interest.
Later on, in 1660, Hobbes’ Leviathan approached the concept of ethics and morality with rationality and objectivity, where the issues of state and common wealth were explored within the domain of political philosophy.
In addition, Kant differentiated the law in its relation to an external action (legality), and with the internal motivations of such actions (morality) Currently, westernised governance is facing challenges of corruption, financial misconduct and dishonesty, which complemented by the lack of moral values.
Table above demonstrates that in the twenty-first century we are experiencing ethical, moral and philosophical dilemmas. Public policy-makers, practitioners and scholars are more concerned with personal gain, professional success and ego-centred status.
Although it might seem as though there was a greater inclination toward self-centred theorising or self-serving practitioner-oriented behaviour towards the end of the twentieth century and the beginning of the twenty-first century, there is no empirical evidence to support this impression. Public administration practitioners today need to reconsider and re-adopt the ethical values established by Socrates.
“A theory of soul”, conceived by Lynch and Lynch deals with the philosophy of being a professional in Public Administration. Their theory presents three pairs of opposites:
1. Ego versus oneness: When people within the structures of an organisation think that it exists for its employees, and take the stance that performing services for the public is simply not important (or worse still, is an intrusion), then the organisation is without soul due to the overriding ego of the employees.
2. Body versus spirit: Lynch and Lynch point out that: ” … in the organizational (sic.) context we experience the body through organizational (sic.) loyalty such as being a member of a clan/a gang/a church/a corporation/a nation or some group … Spirit is the uplifting learning opportunity that moves us to new levels that usually are just a little higher than our present place but are seemingly without limit. With spirit, being part of the organisation is in itself motivation and often inclusion is part of the reason why an organisation has spirit. We feel enriched by ‘belonging’, because there is dynamism, style, grace and a sense of harmony that only exists if an organisation has spirit”.
3. Mind versus heart: The third and final pair of opposites that form part of the theory of soul, is mind vs heart. With organisations, heart is particularly important. In an organisational context, leaders must “listen, be patient; listen, suggest solutions; listen, revise; listen and move forward to ensure that leaders keep not only their promises but their credibility”. We should reflect on what we listen and from that reflection we can learn positive lessons.
In the modern era of globalisation and innovation, the term ‘good governance’ is fervently used in literature. In particular, the notion of ‘good governance’ is considered as a necessary pre-requisite for creating an environment amicable for eradicating poverty and ensuring sustainable human development.
Good governance has grown rapidly in the developed countries and has become a major ingredient for economic and political development. Buoyed by the emphatic success rate of the policies adopted for good governance in the developed countries, the third world countries have also made a far flung approach in this area and prioritised to boost the use of effective and efficient means of good governance for sustainable development in the socio, economic and political scenario. Innumerable steps were taken in this domain to establish an ardent and sophisticated scenario and set right the very concept of governance over government.
Characteristics of Good Governance:
Good governance is essential dovetailing policies which the respective states must ensure while formulating their policies, necessary vary according to the particular circumstances and needs of different societies. Simultaneously the responsibility for determining and implementing such practices, based on transparency and accountability. According to the World Bank document viz. ‘Governance and Development’, the parameters of good governance are as follows:
- Legitimacy of the political system. This implies limited and democratic government.
- Freedom of association and participation by various social, economic, religious, cultural and professional groups in the process of governance.
- Co-operation between government and civil society organizations.
- A sound administrative system leading to efficiency and effectiveness.
- 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.
- Bureaucratic accountability including transparency in administration, public policies, decision-making, monitoring and evaluation of government performance.
- Freedom of information and expression requires for the purpose of construction and formulation of public policies, decision-making, monitoring and evaluation of government performance.
In order to have the attributes of good governance, the policies adopted by the administration should have the following features:
Good governance should be accountable. Accountability is a fundamental requirement of good governance. Every decision taken has its own consequences and the decision maker has an obligation to report, explain and be answerable for the consequences of such decisions. Accountability in this context is about bridging the gap between the actors and the stake holders.
Good governance should be transparent. People should be able to follow and understand the decision-making process. It means that they will be able to clearly see how and why a decision was made.
For an effective and a result oriented transparent policy, it is not only about informing the people about decisions that affect them, but also lets them know the grounds on which such decisions have been taken. An informed citizen is always a resourceful one.
Good governance should follow the rule of law. “No one is above the law” and “Parity before Law” is the maxim that defines the principle of the rule of law. Rule of law not only guarantees the liberty of the stake holders with respect to their participation in the process of attainment of governance but it also set forth the parameters of goals to be achieved by the government and thereby it makes government more coherent and responsible in decision-making.
Good governance should be responsive. An administration who works for the betterment of its people and who is attentive as well as responsive to the demands of its stakeholders is said to set a paradigm of responsive governance. With its handful of resources and pro-active planning, it must effective to cope with emerging challenges in society.
Governance is said to be successful if it is receptive to the needs of the masses and cater to the demands of the community at stake in appropriate and responsive manner.
Good governance should be equitable and inclusive. If the interest of the stake holders is considered by the actors in the decision-making process, it leads to the well-being of the entire community and entails to sustainable development of the mankind. Inclusive nature of governance will curb down the vulnerability in the society and will provide equal opportunities to all member groups particularly the lower strata of the society to participate in the decision-making process.
Good governance should be participatory. Participation of the people in the development and decision-making process is one of the epitomes of good governance. In any kind of decision-making process, the stake holders should be allowed to participate and have their say in the setting of the governance.
Steps for ensuring Good Governance:
Good governance is not a state that can be created by chance nor can it be built over night. It must be demanded and nourished explicitly so that the foundation of the pyramid is deep rooted and it has a strong binding characteristic upon the society to which it belongs consciously. Without good governance, no number of developmental schemes can bring in improvement in the quality of life of the citizens.
A number of steps can be taken for improving the quality of governance which are enumerated below-
- Good Governance can be strengthened by democratic decentralization and active participation of people.
- An informed citizenry is an essential parameter for achieving good governance. Emphasis must be laid upon disclosure of information in the public domain and its easy access for the citizens.
- The use of information technology should be prioritised. Awareness must be created among the masses about the benefits of IT.
- Illiteracy is a major cause of hindrance for socio-economic development. Participation of all classes in the process of governance will help in curbing this impediment from the society.
- One of the major hindrances observed in enhancing the quality of good governance is corruption. It is that blatant evil in the civil society which has caused maximum damage on the process of achieving maximum governance. Its adverse impact on the economy is deep rooted.
- Empowering women and deprived class of the society is an important aspect in achieving the target of good governance. This will also safeguard the constitutional rights of these sections of the society and will motivate the educationally and economically backward ones to engage in the development process. Empowering the society would also act as a panacea in curbing corruption from the society.
To ensure sustainable human development the ethos and ethics of good governance must be adhered to in principle. Though there are numerous challenges in achieving the paradigm of good governance in totality, but adequate steps in creating awareness among the masses and ensuring their active participation in large scale from grass root level will enable the state to curb the menace. Good governance sets the path of a successful and good government, which finally the foundation of a developed and civilized society
INFORMATION SHARING AND TRANSPARENCY IN GOVERNMENT
Right to information has been seen as the key to strengthening participatory democracy and ushering in people centred governance. Access to information can empower the poor and the weaker sections of society to demand and get information about public policies and actions, thereby leading to their welfare. Without good governance, no number of developmental schemes can bring improvements in the quality of life of the citizens. Good governance has four elements- transparency, accountability, predictability and participation.
Transparency refers to availability of information to the general public and clarity about functioning of governmental institutions. Right to information opens up government’s records to public scrutiny, thereby arming citizens with a vital tool to inform them about what the government does and how effectively, thus making the government more accountable. Transparency in government organisations makes them function more objectively thereby enhancing predictability. Information about functioning of government also enables citizens to participate in the governance process effectively. In a fundamental sense, right to information is a basic necessity of good governance.
In recognition of the need for transparency in public affairs, the Indian Parliament enacted the Right to Information Act (hereinafter referred to as the RTI Act or the Act) in 2005. It is a path breaking legislation empowering people and promoting transparency. While right to information is implicitly guaranteed by the Constitution, the Act sets out the practical regime for citizens to secure access to information on all matters of governance.
The most contentious issue in the implementation of the Right to Information Act relates to official secrets. In a democracy, people are sovereign and the elected government and its functionaries are public servants. Therefore, by the very nature of things, transparency should be the norm in all matters of governance. However, it is well recognised that public interest is best served if certain sensitive matters affecting national security are kept out of public gaze.
Similarly, the collective responsibility of the Cabinet demands uninhibited debate on public issues in the Council of Ministers, free from the pulls and pressures of day-to-day politics. People should have the unhindered right to know the decisions of the Cabinet and the reasons for these, but not what actually transpires within the confines of the ‘Cabinet room’. The Act recognizes these confidentiality requirements in matters of State and Section 8 of the Act exempts all such matters from disclosure.
Legislations that hinder Transparency in India:
1. The Official Secrets Act, 1923:
The Official Secrets Act, 1923 (hereinafter referred to as OSA), enacted during the colonial era, governs all matters of secrecy and confidentiality in governance. The law largely deals with matters of security and provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation. However, given the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception. While Section 5 of OSA was obviously intended to deal with potential breaches of national security, the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision converting practically every issue of governance into a confidential matter. This tendency was buttressed by the Civil Service Conduct Rules, 1964 which prohibit communication of an official document to anyone without authorization. Not surprisingly, Section 123 of the Indian Evidence Act, enacted in 1872, prohibits the giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter. Needless to say, even the instructions issued for classification of documents for security purposes and the official procedures displayed this tendency of holding back information.
It is the Official Secrets Act that has been regarded in many quarters as being primarily responsible for the excessive secrecy in government. Its “Catch-all” nature has invited sustained criticism and demand for its amendment. Section 5 of this Act provides for punishment for unauthorized disclosure of Official secrets but omits to define secrets”. OSA, in its present form is an obstacle for creation of a regime of freedom of information, and to that extent the provisions of OSA need to be amended.
When there is more than one law – one old and the other new – on the same subject, there is always some ambiguity and consequent confusion in implementation. This has been the experience with a number of such laws including some constitutional amendments. Such duplication and ambiguity also lead to needless litigation. Despite ‘implied repeal’ and provisions like ‘notwithstanding anything contained in any other law’ the old subordinate legislation, notifications and executive instructions continue unaltered and govern actual implementation. In order to send a strong signal about the change and for the sake of effective implementation, the old law/s should be repealed or modified to the extent necessary. Basic change and lazy legislation do not go together.
2. The Oath of Secrecy:
A Union Minister, while assuming office, is administered an oath of secrecy.
The National Commission to Review the Working of the Constitution (NCRWC), while examining the Right to Information had the following to say: “Government procedures and regulations shrouded in a veil of secrecy do not allow the clients to know how their cases are being handled. They shy away from questioning officers handling their cases……In this regard, government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. The traditional insistence on secrecy should be discarded. In fact, we should have an oath of transparency in place of an oath of secrecy”.
A Minister is a bridge between the people and the Government and owes his primary allegiance to the people who elect him. The existence of this provision of oath of secrecy and its administration along with the oath of office appears to be a legacy of the colonial era where the public was subjugated to the government. However, national security and larger public interest considerations of the country’s integrity and sovereignty may require a Minister or a public servant with sufficient justification not to disclose information. But a very public oath of secrecy at the time of assumption of office is both unnecessary and repugnant to the principles of democratic accountability, representative government and popular sovereignty. Oath of Secrecy may be dispensed with and substituted by a statutory arrangement and a written undertaking.
3. Exempted Organizations:
Certain categories of organizations have been exempted from the provisions of the Act. The list of organizations includes Border Security Force (BSF), Central Reserve Police force (CRPF), Assam Rifles etc., but the Armed Forces have been left outside the purview of the Act. When organizations such as BSF, CRPF, Assam Rifles are exempted, there is no rationale for not exempting the Armed Forces as well. The Second schedule needs to be periodically revised to include or exclude organizations in keeping with changing needs.
4. Classification of Information:
Apart from the somewhat indiscriminate application of OSA to information which was not intended to be secret, a major contributor to the culture of secrecy in the government is the tendency to classify information even where such classification is clearly unwarranted.
The task of classifying a document is vital in the larger national interest, and should be handled with great caution as any security classification denies access of information to public. Therefore, only officers of sufficient seniority should be empowered to classify documents. Moreover, under the existing instructions, information once classified continues to be so without any time limit. In other countries, even war secrets are brought into public domain after a lapse of a specified period, usually 30 years. It is therefore necessary to review such classified documents after a reasonable period.
RIGHT TO INFORMATION
The Right to Information means a right to information accessible under the Act which is held by or under the control of any public authority including a right to:
- Inspection of works, documents, records.
- Taking notes, extract or certified copies of documents or records.
- Take certifies sample of material and
- Obtain information in the form of diskettes, floppies, tapes, video or any other electronic mode or through print outs where such information is stored in a computer or any other devices.
It is generally very misunderstood by the people that right to information means only the right to seek information, this misconception is to be reduced by the Right to Information Act, 2005 up to a great extent by providing a comprehensive definition that clarifies the position, dispels the misunderstanding and makes clear that right to information includes:
- The right to seek information.
- The right to obtain information.
- The right to store information.
Right to information is a social legislation enacted for the benefit of the society at large. It is considered a basic human right, the foundation of a well-functioning democracy. Information adds something new to our awareness and removes the vagueness of our ideas. Soli Sorabjee stressing on the need of right to information intended to bring transparency and openness in administration and public life, says, “Absence of transparency in administration was one of the main grounds for all permeating corruption and using right to information would lead towards openness, accountability and integrity”.
Right to information in its narrow sense is only a right to access the information from the public bodies including right to have access to the records of the proceedings, meetings decision, orders, notification entries in government registers and files, account books, notices, rules, maps, data, drawing or work sits etc. and in broader sense it includes the right to access the information from public as well as private entities, who own, possess or control it. It broadly confers this right not only to the citizens but to everyone as human being, legal entities and foreigners as well. This right does not remain confined to the national boundaries but extends to the whole world including multinational corporations. There are some of the dimensions of the Right to Information:
- Information and freedom of press.
- Right of general people to know.
- Information to rivals/interested parties.
- Information which promotes transparency, openness and accountability in the working of all public authority, disclosure of which may also help in containing or discouraging corruption.
- Other information held by public authority.
- Information which is detained by or controlled by any public authority and one that can be accessed by the public authority under any of the law for the time being in force.
In general, following may constitute public interest favouring disclosure of information:
i. Promoting transparency and accountability of public authorities in making decision by them.
ii. Promoting transparency and accountability in spending the public money.
iii. Detecting corruption, injustice and negligence.
iv. Revealing the information affecting public safety.
v. Allowing disclosing information, permitting public to make an informed decision, promoting a debate and discussion on the issue of public importance.
The right to information, likely to reduce the corruption and increase administrative efficiency in so far as it provides every citizen of the country an enforceable right to question, examine, audit, review and assess government acts and decisions to ensure that these are consistent with the principles of public interest, integrity.
Right to Information and Public Accountability:
Public accountability is a facet of administrative efficiency and the publication of any information serves as an instrument for the oversight of citizens. Information is considered as one of the means for fighting against the corruption therefore the government that creates or produces the trustworthy flow of information creates greater openness, transparency and accountability. International experience also shows that countries allow their citizen’s access to public information held by the government, have checked on the reduction of the corruption and this resulted into the substantial increase in the administrative efficiency.
The public accountability is a part of the governance and the Government consist of public servant is accountable to the public for their service. Therefore, accountability and governance are the part and parcel of the government, which acts as principle and the agent and make an impact on the public. When any government agency translates any government policy into any programme, the success of such transaction is very much dependent on a clear understanding and outcome of the result that was sought. There is no surprising fact that the history of accountability and governance within the public has shifted from measuring inputs to measuring outputs and matching outputs to identifying outcomes. The only point that weakens the accountability or the effectiveness of the government or the public sector is the lack of information on any matter.
1. Freedom of Information Legislation Should be Guided by the Principle of Maximum Disclosure
The principle of maximum disclosure encapsulates the basic rationale underlying freedom of information legislation and a version of this is explicitly stated as an objective in a number of national laws. An important aspect of this principle is that the body seeking to deny access to information bears the onus of proving that it may legitimately be withheld. Another aspect of this principle is that the scope of the law should be broad and not only the citizens but everyone must be benefited from the information and any individual requesting access should not give any reason or need to show any particular interest in that information.
2. Public Bodies Should be Under an Obligation to Publish Key Information
It is not enough for the law simply to require public bodies to accede to request for information but effective access for many of the people depends on these public bodies actively publishing and disseminating key categories of information even without making any request from anyone. Though the scope of such obligation is totally depended on the resources available, but the amount of information covered should increase over time, particularly as new technologies make it easier and cheaper to publish and disseminate information and what information should be published again depends upon the public body concerned.
3. Public bodies must actively promote open government
A range of promotional measures may be needed to address the culture of secrecy and to ensure that the public are aware of the right to information and its implications for them. Another useful means or tool to tackle the culture of the secrecy is to provide the penalties for all those who wilfully obstruct access to information in any manner including by destroying records or inhibiting the work of the administrative oversight body.
4. Exceptions should be clearly and narrowly drawn and subject to strict “Harm” and “Public Interest” Tests
The regime of exception is one of the most difficult issues faced by those who drafts the freedom of information law and considered as one of the most problematical parts of many of the existing laws. It is obviously important that all the legitimate secret interest is adequately catered to in the law, otherwise public bodies will legally be required to disclose the information even though this may cause an unwarranted harm. The presumption in favour of disclosure means that the onus should be on the public body seeking to deny access to certain information to show that it may legitimately be withheld according to the three-part test for exemptions as follows:
- The information must relate to a legitimate aim listed in the law.
- Disclosure must threaten to cause substantial harm to that aim, and
- The harm to the aim must be greater than the public interest in having the information.
5. Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available
Effective access to information requires both that the law stipulates clear processes for deciding upon requests by public bodies, as well as a system for independent review of their decisions. Processes for accessing information are complex and this normally occupies a large part of existing freedom of information laws.
It is highly desirable that the appeals should go first to an independent administrative body either by establishing a new independent body for such purpose or allocates this task to an existing body such as the human rights commission or an ombudsman as already exercised by most of the more progressive national laws. Finally, the law should provide for the right to appeal form such administrative body to the courts as the courts really have the right authority to settle down standards of disclosure in the controversial matter and to ensure the possibility of a full, well-reasoned approach to difficult disclosure issues.
6. Meetings of Public Bodies Should be Open to the Public
Freedom of information includes the public’s right to know what the government is doing on its behalf and to participate in decision-making processes. Freedom of information legislation should therefore establish a presumption that all meetings of governing bodies are open to the public including the meetings of elected bodies and their committees, planning and zoning boards, boards of public, educational authorities and public industrial development agencies etc.
7. Laws which are inconsistent with the Principle of Maximum Disclosure Should be Amended or Repealed
If the culture of secrecy is to be addressed, the freedom of information law must take precedence over these laws. However, where potential conflicts cannot be resolved through interpretation, the provisions of the freedom of information law should overrule those of conflicting secrecy laws.
8. Individuals Who Release Information on Wrongdoing Whistle-Blowers Must be Protected
A freedom of information law should protect all those individual against any legal, administrative or employment – related sanctions for releasing information on wrongdoing. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement.
Protection from liability should also be provided to individuals who, reasonably and in good faith, disclose information in the excise of any power or duty under freedom information legislation. This effectively protects civil servants who have mistakenly, but in good faith, released information. This protection is very important for changing the culture of secrecy and the civil servants need not to have fear from disclosing the information.
In spite of the above-mentioned deficiencies, apprehensions and operational shortcomings, the Right to Information has unquestionably proved to be one of the significant milestones and a major step towards ensuring the participatory and transparent development process in the country. However, there is a need to continue the impetus of this legislation and should not allow it at any cost either to die down or to be converted into just a different piece of legislation languishing on any piece of paper. It is definitely in the interest of all the stakeholders to remain dedicated and cautious so that the objectives and purposes of this Act do not get frustrated by any bureaucratic manipulations. It is on the common people of the country to strengthen the values and culture of the openness, which is required to maintain healthy democratic governance where one and all has the right to know and also to be heard in a fair and impartial approach. This shall perhaps be one of the greatest contributions towards strengthen the democracy.
CODES OF ETHICS AND CODES OF CONDUCT
Most Civil Service regimes (certainly in the West) still equate “Public Sector Ethics” with anti-corruption efforts, and limit their engagement with professional practice issues to a minimalist written Code of Conduct or Code of Ethics, which is usually concerned with prohibiting conflict of interests and self-dealing, and encouraging political and other forms of impartiality, and (increasingly) service to the community. This is an insufficient effort. Publishing a Code of Ethics, by itself, will achieve little.
It is now generally recognised that meaningful and enforceable Ethics codes, linked to systemic practices and procedures, based on legislation, and backed by management leadership and high-level political commitment, and ongoing ‘professional ethics’ training, are essential. Ethical conduct and corruption in the public sector are the two sides of the one coin. To the extent that an organisation succeeds in enhancing its own ethical climate internally, and that which it operates in externally, (for example, by including suppliers and contractors within the scope of an ethics program), it reduces the acceptability of corruption. Conversely, control opportunities for corruption and you make room for ethical practices to become established.
The Code of Ethics is best regarded as a general statement of ‘core values’ which define the professional role of the civil service. In general, modern civil service Codes of Ethics set out broad high-level principles such as Integrity, Accountability, Responsibility, Trustworthiness, etc., but give little attention to how these principles are to be applied in specific circumstances. By contrast, Codes of Conduct usually set out specific standards of conduct expected in a range of realistic circumstances, representing a particular organisation’s preferred or required interpretation of the core values or principles which are seen as important to its work.
In most western civil service ‘Codes of Ethics’, (especially those developed over the period 1965-1990), there is a mixture of the two elements. The earlier the Code, the more likely it is to deal with ‘ethics’ in a general way, and ignore specific conduct or relationships. From about 1980 on, most Codes of Ethics include at least some of the more important (to the organization) specific conduct standards and prohibitions, and a good deal of procedural detail as well. From about 1990 onwards, the distinction between Codes of Ethics and Codes of Conduct began to be made more clearly. This was necessary for two main reasons:
– employers began to find that disciplinary action based on an alleged breach of the general principles set out in a non-specific Code of Ethics was easily defeated; and
– the new generation of civil servants born after the 1960’s could not be assumed to share the same ‘core values’ of their predecessors, or alternatively, the civil service of the 1980’s was very different from that of the 1970’s, and was changing rapidly, so that ‘core values’ became harder to assert with any certainty.
Code of Ethics for Civil Servants:
The Committee on Prevention of Corruption (‘Santhanam Committee’-1964) had remarked:
“For a country like India, development of her material resources and raising the standards of life of all classes are, indeed imperative. At the same time, the deterioration in the standards of public life has to be arrested. Ways and means have to be found to ensure that idealism and patriotism have the proper place in the ambition of our youth. The lack of moral earnestness, which has been a conspicuous feature of recent years, is perhaps the greatest single factor which hampers the growth of strong traditions of integrity and efficiency.”
The inculcation of values facilitating the subordination of the self to a larger, societal good, and engendering a spirit of empathy for those in need of ameliorative state interventions are not skills which could be easily imbibed after joining the civil services. Such attitudes need nurturing over not merely individual life-times, but through successive generations.
It must also be accepted that the existing framework for maintaining and promoting the norms of ‘right conduct’ cannot be enforced through a rigid mindless enforcement of laws and rules. It is all a question of striking the right balance. Within the civil services there are formal, enforceable codes setting out norms of expected behaviour with ‘sanctions’ prescribed for unacceptable departures from such norms. There are also inchoate conventions of propriety and acceptable behaviour without formal sanctions but with no observance of such practices and conventions attracting social disapproval and stigma.
The code of behaviour as enunciated in the Conduct Rules, while containing some general norms like ‘maintaining integrity and absolute devotion to duty’ and not indulging in ‘conduct unbecoming of a government servant’, is generally directed towards cataloguing specific activities deemed undesirable for government servants. There is no Code of Ethics prescribed for civil servants in India although such codes exist in other countries. What we have in India are several Conduct Rules, which prohibit a set of common activities. These Conduct Rules do serve a purpose, but they do not constitute a Code of Ethics.
There is, of late, a concern that more ‘generic norms’ need to be added to the list of accepted conduct. In this context, conflict of interest is an important area which should be adequately addressed in these codes. It is necessary to build safeguards to prevent conflict of interest.
Introduction of relevant Codes of Ethics and Conduct, to be effective, needs to be supported by a range of other mechanisms, training, and leadership by managers and political leaders alike. Examples of such mechanisms are given below.
1. Charters of Service as Ethics Standards: Charters of service-delivery developed by civil service agencies and parastatal increasingly emphasize service and accountability – the main aspects of civil service reform – and in doing so support a number of fundamental ethical principles and specific attitudes and practices:
2. Service: Citizens have rights to services of many kinds. Civil servants are expected to concentrate primarily on serving the community, and the government, and in so doing to put possibilities for personal advantage to one side. Unnecessary administrative impediments to effective service delivery, (‘bureaucracy’, or ‘red tape-ism’), should be identified and removed;
3. Accountability: Decisions made by civil servants and public officials should be made as transparent and open as possible. Reasons must be given for official decisions.
4. Complaints: Civil servants on behalf of their agencies are expected to provide effective mechanisms whereby citizens, including the business community, can lodge complaints about the agency’s performance, (or failure to perform) and receive appropriate remedies. Complaints processes should be internally monitored by each agency so as to ensure that systems are reviewed and performance is improved.
5. Laws Against ‘Maladministration’: ‘Maladministration’ refers to the making of an official decision in a manner which is contrary to law, arbitrary, unreasonable, without proper justification, lacking in procedural fairness, or made without due consideration of the merits of the matter, or made corruptly. In one respect at least, Maladministration may be no more than simple incompetence. The other aspects of Maladministration, however, shade into ‘Abuse of Office’ – misusing public office for private gain – which is the standard definition of Corruption.
6. Anti-Corruption Laws and Agencies: In addition to establishing anti-corruption agencies, under laws which protect the public for reporting corruption many countries have also established, and enforce, a higher duty on civil servants and public officials for mandatory reporting of all instances of suspected corruption and official misconduct, including significant breaches of the body’s code of ethics. Failure to report known or reasonably suspected cases may be used as the grounds for disciplinary measures to be taken against civil servants.
7. Right to Obtain Access To Official Information: Some governments provide citizens with a qualified right of access to any official information held by government agencies, civil servants, public officials and public bodies, usually under a ‘Freedom of Information’ law. The right of access generally does not operate where the responsible minister determines that disclosure of part or all of the official information sought by a person, or the disclosure of the existence of a such information, would be likely to compromise the national interest, the economy, an investigation of a criminal matter, or national security, or would otherwise not be in the public interest.
8. Right to Obtain Reasons: For Official Decisions In some countries, citizens have an unqualified right, under law, to be advised of the reasons for any official decision of which they are directly the subject. This includes the right to be advised, at the time of the decision and in writing, of the evidence and other information taken into account by the decisionmaker, and of the procedure, if any, for having the decision reviewed. This provision is seen as potentially a major contribution to the integrity and probity of official decision making, good governance, and the prevention and detection of corruption.
9. Right of Review of Official Decisions: In the interests of improved transparency and accountability, and recognising citizens’ rights to both substantive and procedural fairness, a number of countries have enacted laws which provide that a person who is adversely and directly affected by an official decision has a right to have the decision reviewed by an independent decisionmaker, who may make a fresh decision, or return the matter for reconsideration by the original decisionmaker.
10. Right to Procedural Fairness: Increasingly, citizens are becoming entitled by law to the protections of procedural fairness in the making of all official decisions about any matter which affects them directly. This means in particular that citizens will have the right to a hearing concerning the matter at issue before any final decision is made; and the right to know the case or allegation to be answered. They may also be entitled to professional representation in more serious matters.
11. Right Of Protected Disclosure Of Official Wrongdoing (‘Whistle-blower’ Protection): In the interests of improving accountability and fostering the fight against corruption, some countries have passed laws to establish a right whereby a person may make a protected ‘public interest disclosure’ of any suspected or actual corruption, misconduct, or Maladministration by a civil servant or public official.
Protections attached to the disclosure procedure should not be open to abuse: a person who makes a false public interest disclosure, knowing it to be false, commits an act of misconduct if the person is a civil servant or public official, or a breach of the criminal code -section if the person is a private citizen.
12. Public Finance management reforms: Many countries have traditionally adopted stringent statutory controls on the management and expenditure of public finances, in an effort to control public expenditure and to minimize corruption, waste and inefficiency. Most such measures are overseen by an independent Auditor General, who is usually an officer of the Parliament, rather than a civil service office.
13. Regulatory Reform: The elimination of unnecessary administrative ‘red tape’ – discretionary bureaucratic decision-making of little or no added value is potentially making a significant contribution to reducing the cost of government (by reducing the size of the public administration machinery), and the compliance costs to the community. Perhaps more important, however, is the contribution that reduction of administrative controls may make to controlling corruption, by reducing the number of administrative opportunities for bureaucrats to extract bribes and ‘facilitation payments’, or subvert the process outright by ‘losing’ the file.
14. Integrity Testing: Integrity tests are one measure for encouraging the observance of an organisation’s Code of Ethics / Code of Conduct. Integrity testing is generally employed by the employee’s agency or an anti-corruption body, to detect individuals who are prepared to accept a bribe, or other inducement, to act corruptly by doing (or not doing) something that they are required to do in their position. To be acceptable and credible, and fair, the ‘test’ set must be realistic, in that it must reflect the circumstances of the officer’s position in relation to his or her responsibilities, and be carried out in such a way that the test does not amount to ‘entrapment’.
15. Responsibilities Of Citizens In Dealing With Public Bodies: A relatively recent development in the integrity field has been the introduction of formal requirements that all citizens in their official dealings with public bodies, civil servants, and public officials, are required to observe a number of responsibilities of good citizenship, in relation to, for example, honesty , lawfulness, and the prevention of corruption. Under this provision, citizens are also expected to refrain from deceptive, dishonest or fraudulent conduct, to report any actual or suspected corruption, or misconduct to a proper authority, and to refrain from making frivolous or vexatious complaints or demands.
16. Human Resource Management Reform: Many countries are now re-considering the effect of past and current HRM practices on the ethical climate of their Civil Services. It may be fairly said that a civil service organisation which fails to implement, (through adequate and effective training and management leadership) and enforce (through effective leadership, disciplinary and management action) its Code of Ethics in practice, can expect to be ineffective in controlling corruption, and inefficient or incapable of providing services to the public.
Perhaps most important of all, Civil Service salaries must reflect the cost of an adequate standard of living, both to minimise individuals’ temptation to corruption, and to maximise the Civil Service’s ability to attract and retain talented employees who can make a contribution to their community. Performance may be taken into account in setting pay, increment, or bonus levels, but must be based on actual performance, objectively assessed, and properly documented. But by itself this implementation will be likely to be insufficient. Civil servants will not abide by an organisation’s published Ethics Code if they see major breaches of the Code routinely ignored by the management of the organization. Managers (including the political leadership of the organisation) must set the example.
It has been recognised world over that good governance is essential for sustainable development, both economic and social. The three essential aspects emphasised in good governance are transparency, accountability and responsiveness of the administration.
“Citizen’s Charters” initiative is a response to the quest for solving the problems which a citizen encounters, day in and day out, while dealing with the organisations providing public services. The concept of Citizen’s Charter enshrines the trust between the service provider and its users. The concept was first articulated and implemented in the United Kingdom by the Conservative Government of John Major in 1991 as a National Programme with a simple aim: to continuously improve the quality of public services for the people of the country so that these services respond to the needs and wishes of the users.
The six principles of the Citizen’s Charter movement as originally framed were:
- Quality: Improving the quality of services;
- Choice: Providing choice wherever possible;
- Standards: Specify what to expect and how to act if standards are not met;
- Value: Add value for the taxpayers’ money;
- Accountability: Be accountable to individuals and organisations; and
- Transparency: Ensure transparency in Rules/ Procedures/ Schemes/ Grievances.
Citizens have become more articulate and expect the administration not merely to respond to their demands but also to anticipate them. It was in this climate that since 1996 a consensus had evolved in the Government on effective and responsive administration. In a Conference of Chief Ministers of various States and Union Territories held on 24 May, 1997 in New Delhi, presided over by the Prime Minister of India, an “Action Plan for Effective and Responsive Government” at the Centre and State levels was adopted.
One of the major decisions at that Conference was that the Central and State Governments would formulate Citizen’s Charters, starting with those sectors that have a large public interface (e.g., Railways, Telecom, Posts, Public Distribution Systems).
Primarily an adaptation of the UK model, the Indian Citizen’s Charter has an additional component of ‘expectations from the clients’ or in other words ‘obligations of the users’. Involvement of consumer organisations, citizen groups, and other stakeholders in the formulation of the Citizen’s Charter is emphasised to ensure that the Citizen’s Charter meets the needs of the users. Regular monitoring, review and evaluation of the Charters, both internally and through external agencies, are enjoined.
Problems in Implementation of Charters:
Introduction and implementation of the concept of Citizen’s Charter in the Government of India was much more difficult due to rules and regulations and lengthy procedures and the rigid attitudes of the work force. The major obstacles encountered in this initiative were:
1. The general perception of organisations which formulated Citizen’s Charters was that the exercise was to be carried out because there was a direction from the top. The consultation process was minimal or largely absent. It thus, became one of the routine activities of the organisation and had no focus.
2. For any Charter to succeed, the employees responsible for its implementation should have proper training and orientation, as commitments of the Charter cannot be expected to be delivered by a workforce that is unaware of the spirit and content of the Charter. However, in many cases, the concerned staff were not adequately trained and sensitised.
3. Sometimes, transfers and reshuffles of concerned officers at the crucial stages of formulation/implementation of a Citizen’s Charter in an organisation severely undermined the strategic processes which were put in place and hampered the progress of the initiative.
4. Awareness campaigns to educate clients about the Charter were not conducted systematically.
5. In some cases, the standards/time norms of services mentioned in Citizen’s Charter were either too lax or too tight and were, therefore, unrealistic and created an unfavourable impression on the clients of the Charter.
6. The concept behind the Citizen’s Charter was not properly understood.
7. Information brochures, publicity materials, pamphlets produced earlier by the organisations were mistaken for Citizen’s Charters.
The following lessons have been learnt from the experience to date of implementing Citizen’s Charter initiative:
1. As with any new effort, the Citizen’s Charter initiative is bound to be looked at initially with skepticism by bureaucrats as well as citizens. An effective awareness campaign amongst all the stakeholders at the initial stage is essential to overcome this skepticism. These awareness campaigns should be designed and delivered innovatively and effectively.
2. The issuance of Citizen’s Charter will not change overnight the mindset of the staff and the clients, developed over a period of time. Therefore, regular, untiring and persistent efforts are required to bring about the attitudinal changes.
3. A new initiative always encounters barriers and misgivings from the staff. There is a natural resistance to change, particularly among the cutting-edge staff. Involving and consulting them at all the levels of formulation and implementation of Citizen’s Charter will go a long way in overcoming this resistance and will make them an equal partner in this exercise.
4. Instead of trying to reform all the processes at once and encounter massive resistance, it is advisable to break it into small components and tackle them one at a time.
5. The charter initiative should have an built-in mechanism for monitoring, evaluating and reviewing the working of the Charters, preferably through an outside agency.
QUALITY OF SERVICE DELIVERY
There are many reasons for the poor quality of public service delivery in India. Internally, administrative structures and responsibilities are highly fragmented, while human resource management places more weight on seniority than merit. It will obviously take time to reform these long-standing structures and systems. But experience throughout India shows that civil servants do respond to external pressure for delivery of better services.
Three key elements for success: Better public access to information – Stronger accountability – More independence from political interference
I. Better Access to Information: To demand better public services, citizens need to be better informed about service standards, norm and should have ready access to forms and other such material opening access to information short circuits the rent-seeking opportunities that secrecy provides. Citizens’ charters are one such vehicle to empower the public in their dealings with service providers. It is important, however, that such charters be developed in consultation with major stakeholders and widely disseminated.
One model is the charter developed by the Greater Mumbai Municipal Corporation in June 1999, with assistance from Praja (NGOs). NGOs can also do much in collecting raw data, transforming it into usable information, creating databanks that other organisations can tap and disseminate relevant information to a wider audience through report cards, surveys and public hearings. In Bangalore, for example, the Public Affairs Committee, conducted a user survey of maternity wards that led to a major restructuring of the service by the Bangalore City Corporation.
II. Stronger Accountability: The Indian administrative structure was designed in colonial times to facilitate the collection of revenue and preserve law and order. Government reporting relationships are inwardly focused and strongly hierarchical, with the pivotal role played by the district collector and authority flowed upwards to the district collector and magistrates, who in turn reported to superiors in the state capital. While a host of developmental function have been added since independence, these basic reporting relationships have survived largely unchanged.
Performance evaluation is weak and poorly linked to the system of rewards and promotions. Even more problematic is the failure to punish or weed out corrupt or incompetent officers. The process of sanctioning malfeasance or maladministration is fraught with multiple review and appeals stages, resulting in years of delay. In only a minority of cases are criminal or administrative sanctions imposed. As a result, India civil service has little to motivate than to better performance beyond their innate professional ethic.
Independent audits by the Comptroller and Auditor General (CAG) are one of the primary institutional mechanisms for executive accountability. But the CAG mainly focuses on financial irregularities. Some performance appraisals are carried out, but they rarely indicate how management can be strengthened. Discussion of CAG reports by the Public Account Committees of parliament and state assemblies are not open to the public and often come after a long delay, which reduces the prospects for effective follow up.
Clearly, audit procedures should be improved. But there should also be wider use of other accountability mechanisms. The Lok Ayukta (Ombudsman) in Karnataka seems to be generating good results and may hold valuable lessons for other states. The success of vigilance and ombudsman functions depends on having enough independence, budget and staff resources to investigate and prosecute corruption.
In addition, a comprehensive anticorruption strategy should include: a radical overhaul and simplification of the procedures for imposing major and minor penalties, expanded “whistle blower” protection and publication of the property and tax returns of senior officials. Each state should be asked to pass the Corrupt Public Servants (Forfeiture of Property) Act, already drafted by the Law Commission.
Ill. More Independence from Political Interference: This issue is sensitive, for the right to transfer civil servants in clearly vested within the political leadership under Article 310 of the Indian Constitution, which maintains that Civil servants serve at the “pleasure” of the ruling authorities. Yet few would disagree that both civil servants and politicians often abuse this power-the former in seeking prime postings, the latter for a variety of legitimate and occasionally illegitimate reasons. This resulted in a reduction of average tenure for key senior civil service positions to less than a year in state like Uttar Pradesh. Chronic political leaders’ rewards support and put its “own” staff into place.
India now needs to move from its decentralised patchwork towards an intergovernmental framework that improves service delivery without increasing fiscal pressures. Good fiscal management would suggest re-allocating public funds from central and state schemes to a well-designed fiscal framework for local governments guaranteeing their autonomy and accountability while helping them to match resource allocations with local preferences. It would also suggest creating incentives for local governments to collect a share of their revenues from local tax payers as through land taxes.
Flows of funds from the centre and state governments should depend on good local performance and resource mobilisation. Performance should be monitored not only by the local audit fund, but also by local journalists, civil society groups and panchayat leaders from neighbouring districts. This would help strengthen accountability and ensure greater participation and empowerment of local communities-one of. the primary objectives of the decentralisation process.
Many internal and external observers of Indian administration have argued that decentralisation and local empowerment will ultimately be essential in improving the quality of service delivery at the village level. Administrative evolution has often failed to take account of the limited capacity of local government, the economies of scale in delivering services, or the potential role of the private sector.
And a serious overlap of responsibilities among state, district, block and village governments obscures the lines of accountability to voters. For the most part, local governments still raise little revenue of their own (though the potential is much higher) and deliver few services. Instead they are usually treated by state and central bureaucracies as service agent for higher level government. The federal structure, the common institutions and practices across states and the ongoing program of decentralisation make India a fertile laboratory for reform. A variety of changes at the centre, state and local levels, implemented with varying degrees of success, can be quickly scaled up and disseminated across the country. India is a leader in the information technology revolution and states such as Andhra Pradesh and Karnataka are making impressive gain in applying information technology solutions to a variety of public sector problems. For all their weakness, cadres such as the Indian Administrative Service remain a tremendous reservoir of talent and capacity.
Perhaps most important, some broader dynamics-such as the rise of the Indian middle class and the growth of NGOs dedicated to governance-are fostering social demand for good governance. So, while the Indian public sector reform agenda has remained fairly fixed for a decade or more, India herself is changing in the ways that make reform more feasible. Despite a great influence of the political world, the Indian civil service has so far been able to keep its own identity.
Young persons in the Indian context are growing up in a society plagued by the erosion of values. There are some residues of our social milieu which affect the Indian employees’ fundamental disposition towards work. More important among these are the following:
- Whereas our business and political leaders glorify the work ethic of the West which preaches that ‘all work is service and a contribution to society and thus equally deserving of respect’, Indian society still upholds a hierarchical approach to work and looks down upon manual work.
- Added to this is the fact that a large number of young people from the middle classes are now being forced to seek employment as workmen in factories or in other lower rung jobs in business establishments. The result of this is that a large number of workmen in the factories are not too happy (and neither too proud) about ending up as workmen.
- The arrogance of the educated elite has been discussed at length by Nirad C Chaudhuri (1965) in his much-denigrated book, ‘The Continent of Circe.’ Many may not agree with him but it is a fact that we tend to be arrogant in our dealings with subordinates and servile when we confront our superiors. The author has heard some business leaders and technocrats talk about the ‘fragile self-esteem of Indians.‘ This fragile self-esteem is due mainly to the age-old arrogance of the superiors and the powerful, whether they be in society, business or government.
- A general apathy towards work and a lack of belief in the importance of their own work. Further, very few of our young people sincerely believe that hard work alone leads to recognition, professional advancement and material success.
- A general lack of trust in seniors and superiors and as such, a lack of trust in supervisors and managers leading to the perception that they are being exploited by management. Thus, although young people joining industries and business organizations are better educated and better trained, these characteristics result in certain undesirable personal traits which make them less amenable to discipline, and simultaneously raise (that is, worsen) their activation levels and substantially lower their response to challenges of responsibility.
This state of affairs and the overriding sense of apathy to work and lack of faith in oneself and one’s capabilities is compounded by the following factors:
- Heterogeneity of Indian society and persisting assumption of inequality of human beings handed down to us from antiquity.
- Nagging suspicion of fellow beings and the assumption that human nature is evil.
- An excessive dependence on the powerful on the one hand and the absence of gratitude on the other.
- An intrinsic reluctance to punish.
The atmosphere in the Indian industrial organizations today is characterized by a sense of apathy towards work, rampant indiscipline, excessive use of bureaucratic methods, lack of teamwork and cooperation and noncooperative and disruptive attitude of unions/associations resulting in low productivity, inefficiency, high manufacturing costs and delayed deliveries. The correction of this situation will require imaginative, radically different and properly coordinated efforts on many fronts—the government, the education system, managements of industrial organizations and trade union leaders.
Guidelines to Create a Conducive Climate:
The moulding of a new work culture will have to focus on the creation of loyalty and discipline at all hierarchical levels, promotion of cooperative effort or teamwork, motivation to improve the activation levels of all employees and also to make them more responsive to the challenges of responsibility.
The three action fronts, namely, organizational structure, leadership and work innovation, are discussed in some detail in the following paragraphs. Structural Changes Organizational structure should not be taken to mean only the hierarchical tree or the chain of command of the organization. It includes rules, regulations and procedures of the organization as well as decision-making, delegation and levels of operational discretion in the context of organizational objectives.
A formal organization is always better than an informal one since an informal organization leads to continuous bickering and chaos and, contrary to common belief, does not lead to improved understanding and teamwork. As Wilfred Brown says:
“the more formalisation that exists, the more clearly we will know the bounds of discretion which we are authorised to use and will be held responsible for and prescribed policies make clear to people the area in which they have freedom to act. Without a clearly defined area of freedom there is no freedom … there is no real freedom without laws“
However, formalization does not mean merely getting out policies, orders and circulars on every detail and making a bound ‘Administrative Manual.’ Real formalization means believing in the rules and procedures framed and implementing them. In India, there is formalization but at every opportunity, the application of management discretion leads invariably to a perceived partial treatment of employees. This causes a great amount of dissatisfaction and erosion of loyalty down the line.
Moreover, in many of the Indian organizations, there is overemphasis on hierarchical status in decision-making. The SAIL report on work culture states that most papers are scrutinized at no fewer than eight to nine levels before a decision is taken and lists the removal of overemphasis on hierarchical status as one of its priorities for action. There must be greater delegation to exercise responsibility and it must go hand-in-hand with accountability for actions and evaluation against performance.
A person must be made accountable only for things which are really under his control and evaluated against goals set through participation. Managements must be realistic and must not set unattainable goals. Moreover, too often, we have the superior holding all the ropes and pointing the finger at the subordinate at times of poor performance. Such an atmosphere cannot lead to teamwork and motivation.
While on the point of delegation or decentralization of authority, however, it is best to remember that whereas ‘there is much greater need for cooperation and participation (today) in managing the enterprise than when the technologies were simple and the chief possessed all the technical knowledge needed at the same time, decentralization is becoming an inadequate solution as technologies become more complex and even more functionalization becomes essential.’
Therefore, the organizational structure should be reconstructed so that:
- decentralization of operations and authority must take into account technological and operational constraints
- hierarchy in the organization should be based on responsibility levels (rather than seniority, span of control, etc.)
- within divisions/departments, delegation should be linked to responsibility and accountability
- as far as possible, broad and general policy decisions should only be made at the top and more specific decisions made at lower levels in the organizational structure
- the structure should ensure free flow of information among all departments and levels in the organization.
Two specific points which are peculiar to Indian organizations and probably to our subcontinent need to be mentioned. As already discussed, to make an organization viable, it is necessary to establish
(a) rules concerning attendance, hours and place of work, behaviour on the job, and
(b) regulations and procedures with regard to leave, travelling on duty, travelling and daily allowances, and medical and other fringe benefits.
These regulations and procedures must be based on trust. As against this, it seems that we take our employees to be basically dishonest and ready to cheat the company at every step. There are many checks and counterchecks and this not only results in a considerable waste of time but also causes widespread dissatisfaction among employees.
Secondly, in our organizations, different people and departments have different hours of work. The offices work for lesser number of hours than the production departments and shops. This operational inconsistency not only delays decisions and causes unnecessary production delays in some cases, but also, more importantly, causes heartburn.
Leadership is the single most important factor in motivation since subordinates want to be led and led effectively. Individuals work just hard enough to get by if there is little or no leadership. But with effective leadership they will work with zeal and confidence toward the peak of their capabilities. An effective leader is a ‘vehicle of change’ especially in the context of technological innovation and in effective management.
The primary task of the leader, whether he be a supervisor or a manager, is to get the subordinates to work hard at the tasks assigned to them. For this, he has to make available to them the wherewithal—whether it is a machine in good working order, or tools, fixtures and drawings, or measuring instruments, or materials, or necessary information, or adequate instructions.
Non-availability of the required resources is a major source of demotivation and even the most competent and otherwise committed employees are often dissatisfied due to reasons like poor communication, poor design, poor materials, shortages, delays and inadequate tooling. In such cases, the employees feel that their responsibility is only to the extent of mechanically doing the job.
For this reason, every department/section head should keep some time aside for
(a) daily check on vital equipment to identify defects and to work out plans of rectification with maintenance/services,
(b) periodic meetings with purchase, finance and personnel departments for sorting out outstanding issues.
Secondly, in today’s business environment, nothing of any significance can be achieved without teamwork and cooperative effort. To promote teamwork, a leader has to be committed to the job and set an example by deeds and actions (and not through periodic exhortations alone), be sincere and honest in his dealings with his subordinates, recognize the performers and reward them adequately, and actively promote teamwork by encouraging people in the group (department/division) who are always reaching out to the people they work with and help them do their job better.
The supervisor or the manager must solve individual grievances, however small they may seem at first. For this, he should give some time during the day for meeting his people and solving grievances, outside the formal grievance procedure, to the extent possible. Thirdly, the leader must also be a teacher to his men.
Finally, an effective manager must seek out informal group leaders among the employees in his department. Informal group leaders are often unobtrusive and not necessarily spokesmen. If they can be discovered, they often provide a most useful guide to group objectives and thinking. Such informal group leaders can facilitate the moulding of group thinking which in turn can help in improving activation levels as well as the responsiveness of individuals in the department.
Motivation through work, innovation or job enrichment is not only possible but also desirable from the point of view of both job performance and human satisfaction, since ‘work becomes more challenging and interesting for employees as their knowledge and skills improve and as they are increasingly able to influence decisions affecting their jobs’.
Changes of job content will only be acceptable to employees if they are treated as opportunities by the employees rather than unreasonable demands imposed by management. Therefore, for work innovation to be effective, it must only be brought about through participation. Work innovation has not only been attempted by the Japanese and the industrialized West but by a few Indian companies as well, albeit in a small way. This progressive trend must be taken forward but the companies, however, have to take a long-term perspective since there will always be a conflict between the views of those seeking the time-saving benefits of job simplification and those seeking to reinforce the powerful achievement motivation of employees through job enrichment.
There are some more important measures to be taken for developing a positive work culture:
- Be fair but firm in dealings with subordinates.
- Take active interest in the personal and family needs/ problems of subordinates.
- Take immediate action in cases of indiscipline and do not condone indiscipline in any form and at any level.
- Discourage overemphasis on hierarchical status and ‘pulling of rank’ in day-to-day dealings.
- Promote information sharing and communication through periodical departmental meetings, production committees and small group activities/quality circles.
- Promote setting of goals/targets and decision making through consultation and participative forums and ensure consistency in decision-making.
In conclusion, it is stressed again that the development of a positive work culture is the most vital issue which must be tackled if the Indian organized sector wants to reverse the current trend of erosion of productivity, lack of innovativeness and the rising cost of end products.
Development of a national work ethos requires coordinated efforts on many fronts and by many agencies, such as the government, schools and colleges, technical institutes and professional institutions, and managements of industrial and business organizations. This is a complex and difficult task but a task which must be pursued relentlessly and with sincerity of purpose.
UTILIZATION OF PUBLIC FUNDS
The capacity of each Government to deliver its political programme, strengthen the economy, enable the private sector to flourish, generate higher incomes
and living standards for its citizens, ensure security and the rule of law, and preserve social cohesion – all on a long-term, sustainable basis – depends not just on the resources at its disposal, but how they are used.
Spending public funds obliges the Government to make choices on priorities, through a regular budgetary cycle of planning, negotiation and implementation. Maximising the effectiveness and efficiency of public expenditure means securing the greatest value from these spending decisions, applying controls and avoiding waste, errors, fraud and corruption. Public sector organisations have
a duty to citizens and businesses to ensure that each Rupee is managed prudently.
Weaknesses in the Budgetary Process:
The World Bank after analysing the budgetary processes of several countries came to the conclusion that government budgets generally have the following shortcomings.
Weaknesses that undermine public sector performance include:
i. Poor planning;
ii. No links between policy making, planning and budgeting;
iii. Poor expenditure control;
iv. Inadequate funding of operations and maintenance;
v. Little relationship between budget as formulated and budget as executed;
vi. Inadequate accounting systems;
vii. Unreliability in the flow of budgeted funds to agencies and to lower levels of government;
viii. Poor management of external aid;
ix. Poor cash management;
x. Inadequate reporting of financial performance; and
xi. Poorly motivated staff.”
Many of the weaknesses in budgeting reflect the failure to address linkages between the various functions of budgeting. The following factors contribute to budget systems and processes that create a disabling environment for performance in the public sector, both by commission and by omission:
- Almost exclusive focus on inputs, with performance judged largely in terms of spending no more, or less, than appropriated in the budget;
- Input focus takes a short-term approach to budget decision making; failure to adequately take account of longer-term costs (potential and real), and biases in the choice of policy instruments (e.g., between capital and current spending and between spending, doing, and regulation) because of the short-term horizon;
- A bottom-up approach to budgeting that means that even if the ultimate stance of fiscal policy was appropriate (and increasingly after 1973 it was not) game playing by both line and central agencies led to high transaction costs to squeeze the bottom-up bids into the appropriate fiscal policy box;
- A tendency to budget in real terms, leading either to pressure on aggregate spending where inflation is significant (which was often validated through supplementary appropriations) or arbitrary cuts during budget execution with adverse consequences at the agency level;
- Cabinet decision making focused on distributing the gains from fiscal drag across new spending proposals;
- Cabinet and/or central agencies extensively involved in micro-decision making on all aspects of funding for ongoing policy;
- Last minute, across-the-board cuts, including during budget execution; • Weak decision making and last-minute cuts cause unpredictability of funding for existing government policy; this is highlighted to the centre by central budget agencies on the alert to identify and rake back “fortuitous savings;”
- Strong incentives to spend everything in the budget early in the year and as quickly as possible, since the current year’s spending is the starting point for the annual budget haggle and the fear of across-the-board cuts during execution;
- Existing policy itself (as opposed to its funding) subject to very little scrutiny from one year to the next. (This and previous point epitomize the worst dimension of incremental budgeting);
- Poor linkages between policy and resources at the centre, between the centre and line agencies, and within line agencies because of incremental budgeting;
- A lack of clarity to purpose and task and therefore poor information on the performance of policies, programmes and services, and their cost because of poor linkages;
- The linking together (in association with the point above) within government departments of policy advising, regulation, service delivery and funding and an aversion to user charging; and
- Overall, few incentives to improve the performance of resources provided.
Attempts are continuously being made to overcome as many of the shortcomings as possible.
The common elements of the budgetary reforms are:
1. Medium-term budget frameworks: Medium-term budget frameworks form the basis for achieving fiscal consolidation. They need to clearly state the government’s medium-term fiscal objectives in terms of high-level targets such as the level of aggregate revenue, expenditure, deficit/surplus, and debt.
Budgets are however enacted for a time period of one year, and are notorious for their short-term focus. This short-term time horizon is often criticised for impeding effective expenditure management; decisions on resource allocation are said to be made on an ad hoc or piecemeal basis with the implications of past and present decisions beyond the next year being neglected.
Medium-term budget frameworks aim to bridge this gap. Their successful implementation has been nothing short of a “cultural revolution” in governments. Although the level of detail of such frameworks varies from country to country, they generally mirror the format of the budget, i.e. the medium-term frameworks are at the same level of detail as the annual budget.
These are rolling frameworks that are presented with the budget each year; year-1 in the previous year’s framework becomes the basis for the budget and a new year-3 is added. This has greatly increased the effectiveness of planning and eased the annual budget process.
2. Prudent economic assumptions: Deviations from the forecast of the key economic assumption underlying the budget are the government’s key fiscal risk. There is no single factor more responsible for “de-railing” fiscal consolidation programmes than the use of incorrect economic assumptions.
Furthermore, a comparison should be made between the economic assumptions used in the budget and what private sector forecasters are applying for the same time period where practicable. The establishment of an independent body to recommend the economic assumptions to be used in the budget may be considered as well. All this serves to place safeguards against the use of unrealistic, or “optimistic,” economic assumptions.
3. Top-down budgeting techniques: Budgeting has traditionally operated on a bottom-up principle. This means that all agencies and all ministries send requests for funding to the finance ministry. These requests greatly exceed what they realistically believe they will get. Budgeting then consists of the Finance Ministry negotiating with these ministries and agencies until some common point is found. This bottom-up system has several disadvantages to it.
First, it is very time consuming and it is essentially a game; all participants know that the initial requests are not realistic.
Second, this process has an inherent bias for increasing expenditures; all new programmes, or expansion of existing programs, are financed by new requests; there was no system for reallocation within spending ministries and there were no pre-set spending limits.
Third, it was difficult to reflect political priorities in this system as it was a bottom-up exercise with the budget “emerging” at the end of this process. This manner of budgeting is now being abandoned and replaced with a new top-down approach to budget formulation. This has been of great assistance in achieving fiscal consolidation.
The starting point for the new system is for the government to make a binding political decision as to the total level of expenditures and to divide them among individual spending ministries. This decision is made possible by the medium-term expenditure frameworks which contain baseline expenditure information, i.e. what the budget would look like if no new policy decisions were made.
The Finance Ministry concerns itself only with the level of aggregate expenditure for each ministry; not the internal allocations. “Each minister is his own Finance Minister,” is the saying in some countries. Each ministry has a total amount and it can freely reallocate that money among its various agencies and programmes.
This has several advantages to it. It serves to hamper creeping increases in expenditures as new policies are funded by reallocations from other areas within the ministry. It creates ownership in the respective ministries for the actions that are taken. Decisions are also better informed as spending ministries are in the best position to judge the relative merits of their programmes. The role of the Ministry of Finance is to verify that the offsetting cuts to finance new programmes are real.
4. Relaxing central input controls: Relaxing central input controls is another feature of successful fiscal consolidation strategy. This is based on the simple premise that the heads of individual agencies are in the best position to choose the most efficient mix of inputs to carry out the agency’s activities. The end-result is that an agency can produce the same services at less cost, or more services at the same cost. This greatly facilitates fiscal consolidation strategies by mitigating their effects on services.
This can be seen as the public sector’s version of “deregulation”. The consolidation of budget appropriation lines is rather straightforward and simple. It is now common for agencies to receive one single appropriation for all of their operating expenditures.
5. An increased focus on results: An increased focus on results is a direct quid pro quo for relaxing input controls as described above. Accountability in the public sector has traditionally been based on compliance with rules and procedures. It didn’t matter what you did as long as you observed the rules. Now, when the public sector is deregulated, a new results-based system is needed to hold managers accountable.
This is a fundamental change: holding managers accountable for what they do, not how they do it. Effectively implementing this is, however, very difficult in practice. The difficulties can be divided into several groups of issues. At the most basic level, some government activities simply lend themselves to results measurement much more readily than others.
For example, an agency that produces a single or a few homogenous products or services can be rather easily measured. On the other hand, agencies that produce heterogeneous and individualised services can be very difficult to measure. The majority of government services fall into the latter category. Various social services are the outstanding example.
Outputs are the goods and services that government agencies produce. Outcomes are the impact on, or the consequences for, the community of the outputs that are produced. An example highlights this. A government may wish to reduce the number of fatalities on highways caused by drunk drivers. This would be the outcome. In order to achieve this, it may launch a series of advertisements in the media highlighting the dangers of drunken driving.
A combination of the outputs and outcome measurement is the optimum choice, but experience shows that one will always dominate. It is a well-known phenomenon in management that “what gets measured, gets managed.”
6. Budget transparency: Increased transparency in budgeting made significant advances in the late 1980s and early 1990s. The budget is the principal policy document of government, where the government’s policy objectives are reconciled and implemented in concrete terms. Budget transparency – openness about policy intentions, formulation and implementation – is therefore at the core of good governance agenda.
If we take a look at fiscal transparency in concrete terms, we can say that it has three essential elements:
• The first is the release of budget data. The systematic and timely release of all relevant fiscal information is what we typically associate with budget transparency. It is an absolute pre-requisite, but it is not enough.
• The second element is an effective role for the legislature. It must be able to scrutinise the budget reports and independently review them. It must be able to debate and influence budget policy and be in a position to effectively hold the government to account. This is both in terms of the constitutional role of the legislature and the level of resources that the legislature has at its disposal.
• The third element is an effective role for civil society, through the media and nongovernmental organisations. Citizens, directly or through these vehicles, must be in a position to influence budget policy and must be in a position to hold the government to account. In many ways, it is a similar role to that of the legislature albeit only indirectly. These three elements work together.
The scrutiny of fiscal information by the legislature and by civil society can only take place if the information is released in the first place. Similarly, released budget information is only of value if it is effectively scrutinised by the legislature and by civil society. The legislature and civil society have a very similar function, one is responsible for shaping budget policy and for holding government directly to account while the other performs this role indirectly.
7. Modern financial management practices: The modernisation of financial management within governments made great advances during the past ten years. The sheer scale of government means that such improvements had a material effect on fiscal outcomes. These include the introduction of accruals, capital charges, carry-overs of unused appropriations, and interest-bearing accounts. Each of these is discussed below.
I. Accruals: Cash and accruals represent two end points on a spectrum of possible accounting and budgeting bases. The cash end of the spectrum has traditionally been applied by Member-countries for their public sector activities
The objective of moving to accruals is to make the true cost of government more transparent. Instead of spikes in expenditures when individual capital projects are undertaken, accruals incorporate them into the annual operating expenditures through an allowance for depreciation.
Treating loans and guarantee programmes on an accrual basis fosters more attention to the risks of default by those who have been granted them, especially if there is a requirement for such default risks to be prefunded. In a cash system, outstanding government debts can be designed in such a way that all interest expenditure is paid in a lump-sum at the end of the loan rather than being spread through the years when the loan was outstanding as would be the case under accruals.
All of these examples show how a focus on cash only, can distort the true cost of government. A further objective for adopting accruals is to improve decision-making in government by using this enhanced information.
II. Capital charges: Capital has tended to be viewed as a free good in the public sector. Once an asset was in place, there was no mechanism to track and charge for the cost of capital tied up in the asset.
Capital charging regimes generally operate as follows. The government decides to levy a charge on the cost of capital tied up in all assets in an agency. For example, if an agency has 10 million in assets, the government will levy a charge (often equivalent to the long-term government bond rate), of 10%. This means that the agency will have to pay the finance ministry 1 million annually.
When the system is first introduced, the appropriations to all agencies will be increased by the amount of their capital charge, so there’s no net impact on agencies or for the government as a whole. However, agencies will in future be allowed to dispose of the assets and thus relieving themselves of the capital charge. This creates the incentive.
Thus, they could decide to sell excess assets or move from high-priced areas to lower-priced areas and use the amount of the capital charge they save for other purposes. This has had a great impact on asset management in government, a field that was simply neglected previously.
III. Carry-overs: All countries operate on the principle of an annual budget. Previously, this meant that all appropriations lapsed at the end of the fiscal year thus creating a great and irrational rush to spend moneys before the end of the fiscal year. Not only because they would otherwise lose the money this year, but also because future years appropriations would take account of this underspending as well. You were losing what you did not spend in one year, permanently. This has now changed with operating expenditures generally being freely transferable (sometimes up to a certain limit) from one year to the next.
Only in cases where an agency continuously, year-on-year, builds up carryovers does the Ministry of Finance intervene. The advent of medium-term expenditure frameworks also gives a benchmark for agencies to see that their appropriations are in fact being carried-over.
IV. Interest-bearing accounts: Some countries have also introduced interest-bearing accounts for agencies. This means, for example, that the appropriation of an agency is divided into twelfths (representing each month) and deposited into an agency’s account (either within the finance ministry or with a commercial bank.) If an agency spends at less than this rate, they will receive interest on the difference. If they spend at a faster rate, they will pay interest on the difference.
V. Performance Budgeting: Unlike the traditional line item budget, a performance budget reflects the goal/ objectives of the organization and spells out performance targets. These targets are sought to be achieved through a strategy(s). Unit costs are associated with the strategy and allocations are accordingly made for achievement of the objectives. A Performance Budget gives an indication of how the funds spent are expected to give outputs and ultimately the outcomes. However, performance budgeting has a limitation – it is not easy to arrive at standard unit costs especially in social programmes which require a multi-pronged approach.
VI. Zero-based Budgeting (ZBB): The concept of zero-based budgeting was introduced in the 1970s. As the name suggests, every budgeting cycle starts from scratch. Unlike the earlier systems where only incremental changes were made in the allocation, under zero-based budgeting every activity is evaluated each time a budget is made and only if it is established that the activity is necessary, are funds allocated to it.
The basic purpose of ZBB is phasing out of programmes/activities which do not have relevance anymore. However, because of the efforts involved in preparing a zero-based budget and institutional resistance related to personnel issues, no government ever implemented a full zero-based budget, but in modified forms the basic principles of ZBB are often used.
The effective management of public finances – known as public financial management (PFM) – is fundamental to the development and growth of individual economies. As populations increase, as resources become scarcer or as economies grow more complex, the importance of PFM rises.
One reason PFM is so essential is that the tax-paying citizens of any country expect their public finances to be well-managed. They expect them to be allocated effectively, used to deliver quality services, and to provide a secure and stable environment in which society may exist and prosper. They also expect finances to be collected and expended fairly and according to the law, with surpluses, deficits and debt levels understood and in control.
Additionally, the private and public sectors are highly inter-dependent and must have confidence in each other if they are to work together to grow cities and nations. This kind of confidence requires government accountability and transparency in both decision-making and reporting.
Governments are responsible to their citizens and taxpayers for implementing effective systems of public financial management and for utilising those systems to safeguard, and ultimately enhance, a country’s economic sovereignty.
CHALLENGES OF CORRUPTION
“A fallacy promoted by some in the field of anti-corruption and at times also by the international community is that one “fights corruption by fighting corruption” – through yet another anti-corruption campaign, the creation of more “commissions” and ethics agencies, and the incessant drafting of new laws, decrees, and codes of conduct. Overall, such initiatives appear to have little impact, and are often politically expedient ways of reacting to pressures to do something about corruption, substituting for the need for fundamental and systemic governance reforms”.
Monopoly + Discretion – Accountability = Corruption
Corruption in Indian Administrative Corruption in India has become a social phenomenon. It is widespread and is found increasing at an alarming pace. There is hardly any area of activity that has remained wholly free from the impact of corruption. In fact, corruption has now been institutionalised and has become a commonly accepted way of life. In India, acceptance of bribes, commission, under the table payment and gifts, by the politicians or the bureaucrats are no longer frowned upon and even subtle ways have been discovered to legitimise them as a part of normal life activities.
Such an ethos has been created in the society that corruption has ceased to be regarded as a crime any longer. Thus, the must invidious form of immoral behaviour on the part of bureaucracy in India is the phenomenon of corruption. The all-pervasive incidence of corruption in Indian administrative system presents a picture of corrupt officials wheeling and dealing in bribery, extortion, nepotism and misuse of official position. It has given rise to a public misperception that unless proven otherwise a civil servant in all probability is a corrupt official.
As the craving for material goods and benefits continues to increase, prices for such goods and services rise. Civil servants who are in charge of the provision or regulation of such services will continue to face temptation and some may try to avail themselves of whatever opportunities their position provides them. Their actions, in turn, tend to conform the prevailing public view that officials are generally corrupt. And of course, nothing is so corrupting as a suspicion of corruption. Other factors causing corruption and unethical conduct among civil servants are job scarcity, insufficient salary and the ever-increasing power being given to them by the State to regulate its economy and social affairs.
Experience has shown that the exercise of regulatory authority has actually contributed to an increase in corruption in various spheres of administrative control and enforcement. Administrative corruption in India has also been encouraged by the pervasive spread of the soft-state syndrome, a rigid bureaucracy, exclusivist process of decision-making in an over-centralised government, abysmally low pay of civil servants and lack of stringent and effective internal control mechanism.
According to N. Vittal, the Central Vigilance Commission, Government of India, corruption flourishes in the system because of five basic reasons:
1) scarcity of goods and services,
2) red tape and complicated rules and procedures,
3) lack of transparency in decision-making,
4) legal cushions of safety we have built for the corrupt people under the very healthy principle that everybody is innocent till proved guilty, and
5) tribalism among the corrupt who protect each other.
A consequence of a valueless polity governing the country has been the continuing erosion of the integrity of the Civil service. To achieve their short-term objectives, the political executive has been deploying pliant functionaries, handpicked affiliations, to man key assignments. This has resulted in the judicial services, being demoralised and their functioning adversely effected. There are no more any role models- unknown persons of dubious distinction can get appointments to the highest posts in the country.
There is a tendency to blame solely, the state-governed economy and permit ‘license-inspector Raj’, for all ills, including proliferation of corruption, to all levels. When the concepts of State control of economic activity and the system of permits, quotas and licenses were ushered in by the political rules, Indian bureaucracy enlarged its power by creating a number of rules and regulations and thereby secured a stranglehold in the entire administrative mechanism.
Ostensibly, this was done to control the private sector and to ensure honest administration. The actual result was totally different and indeed devastating. The control mechanisms were used for unabashed corrupt practices by politicians as well as by bureaucrats.
But more serious of all has been the adverse effect on the pace of economic development. In order to avoid individual responsibility and accountability, the bureaucracy has created ‘group’ or ‘committees’ for the consideration of significant matters requiring government approval. These group or committees meet once in a while. This has caused, over the years, serious delays in project implementation as well as huge cost runs.
The bureaucracy has ensured that there is no audit and accountability for the billions lost due to inactions or delays in decision-making. If there is gross inefficiency in the managements of the country’s affairs and if the benefits of development have been denied to millions of India’s poor, the blame lies to a considerable extent on the shoulders of bureaucrats. Rules and regulations, red tape, forms and questionnaires, instead of facilitating and quickening the pace of development, have hampered it insensitively.
As C.P.Srivastava, says “do not blame the politicians solely for all the ills of the country today the bureaucrats are equally responsible for defiling lndia’s administration”. It was not only the political class which started looking at public offices as a gateway to richness and luxury, but also the mandarins headed by the ‘steel frame’ – the term to describe the civil service set up under the British, become the instrument of state intervention adopted to promote policies of development.
Evolution of the Anti-Corruption Laws in India:
In the pre-independence period, the Indian Penal Code (IPC) was the main tool to combat corruption in public life. The Code had a chapter on ‘Offences by Public Servants’. Sections 161 to 165 provided the legal framework to prosecute corrupt public servants.
The Second World War created shortages which gave opportunity to unscrupulous elements to exploit the situation leading to large scale corruption in public life. This situation continued even after the war. The lawmakers concerned about this menace, felt that drastic legislative measures need to be taken. Hence the Prevention of Corruption Act, 1947 was enacted to fight the evils of bribery and corruption.
This Act did not redefine nor expand the definition of offences related to corruption, already existing in the IPC. However, the law defined a new offence – ‘Criminal misconduct in discharge of official duty’ – for which enhanced punishment was stipulated. The Act also provided that the statement by bribe-giver would not subject him to prosecution.
Amendments in 1964: The anti-corruption laws underwent comprehensive amendments in 1964. The definition of ‘Public Servant’ under the IPC was expanded. The CrPC was amended to provide in camera trial if either party or the court so desires. The presumption which was available under Section 4 of The Prevention of Corruption Act, was extended.
Section 5(A) was amended so as to empower the State Governments to authorize officers of the rank of Inspectors of Police to investigate cases under the Act (earlier, this could be done only with the approval of the Magistrate (The Santhanam Committee recommended this).
The Prevention of Corruption Act, 1988: It consolidated the provisions of the Prevention of Corruption Act 1947, the Criminal Law Amendment Act, 1952 and some provisions of IPC. Besides, it has certain provisions intended to effectively combat corruption among public servants.
Few features of the Act include – A new concept – ‘Public duty’ is introduced in the Act. All cases under the Act are to be tried only by Special Judges. Proceedings of the court have to be held on a day-to-day basis. Penalties prescribed for various offences are enhanced.
Dimensions of Corruption:
However, experience of the past decades shows that such an indirect definition of corrupt practices is paradoxically restrictive and a whole range of official conduct, detrimental to public interest, is not covered by strong penal provisions. In particular, there are four types of official conduct which cause immense damage to public interest, which do not explicitly constitute violation of criminal law.
The first and possibly the most important of these is gross perversion of the Constitution and democratic institutions, including, wilful violation of the oath of office. Constitutional functionaries have sometimes been found to indulge in such constitutional perversion out of partisan considerations or personal pique. In most such cases, there may be neither illegal consideration nor pecuniary advantage, nor any form of gratification involved.
The second such class of offences is abuse of authority unduly favouring or harming someone, without any pecuniary consideration or gratification. In such cases, often partisan interests, nepotism and personal prejudices play a role, though no corruption is involved in the restrictive, ‘legal’ sense of the term.
Third, obstruction or perversion of justice by unduly influencing law enforcement agencies and prosecution is a common occurrence in our country. Again, in most such cases, partisan considerations, nepotism and prejudice, and not pecuniary gain or gratification, may be the motive. The resultant failure of justice undermines public confidence in the system and breeds anarchy and violence.
Finally, squandering public money, including ostentatious official life-styles, has become more common. In all such cases, there is neither private pecuniary gain nor specific gain or loss to any citizen. There is also no misappropriation involved. The public exchequer at large suffers and both public interest and citizens’ trust in government are undermined.
It is generally believed that all these four types of wilful abuse of office are on the increase in our country at all levels and need to be firmly curbed if we are to protect public interest and our democratic system. Otherwise, public servants – elected or appointed – will be seen not as custodians of public interest and sentinels of democracy but as opportunists working for personal aggrandizement and pursuing private agendas while occupying public office. There is therefore need for classifying the following as offences under the Prevention of Corruption Act.
Collusive Bribery: In any corrupt transaction, there are two parties – the bribe-giver and the bribetaker. The offence of bribery can be classified into two categories. In one category the bribe giver is a victim of extortion, he is compelled to pay for a simple service, because if he does not submit to the extortionary demands of the public servant, he ends up losing much more than the bribe. The delays, harassment, uncertainty, lost opportunity, loss of work and wages – all resulting from non-compliance with demands for a bribe – are so great that the citizen is sucked into a vicious cycle of corruption for day-to-day survival.
Besides, there is another category of cases where the bribe-giver and bribe-taker together fleece society, and the bribegiver is as guilty or even more guilty than the bribe-taker. These are cases of execution of substandard works, distortion of competition, robbing the public exchequer, commissions in public procurement, tax evasion by collusion, and causing direct harm to people by spurious drugs and violation of safety norms.
These two categories of corruption are also termed as ‘coercive’ and ‘collusive’ corruption respectively. With the rapidly growing economy, cases of coercive corruption are on the increase, and, at times, these often assume the magnitude of ‘serious economic offences. ‘Collusive’ corruption needs to be dealt with by effective legal measures so that both the bribe-giver and the bribe-taker do not escape punishment. Also, the punishment for collusive corruption should be made more stringent.
Section 7 of the Prevention of Corruption Act needs to be amended to provide for a special offence of ‘collusive bribery’. An offence could be classified as ‘collusive bribery’ if the outcome or intended outcome of the transaction leads to a loss to the state, public or public interest. The punishment for all such cases of collusive bribery should be double that of other cases of bribery. The law may be suitably amended in this regard.
1. Dispensing with sanction in cases where public servants have been trapped red-handed or in cases of possessing assets disproportionate to their known sources of income: There are a number of cases of public servants being caught red handed while demanding/accepting bribes. The omnibus protection given under Section 19 of the Prevention of Corruption Act sometimes comes in the way of bringing corrupt public servants to justice as often the sanction is delayed or denied. The intention of the legislation appears to be to provide adequate protection to public servants in the discharge of their legitimate official duties.
This objective can well be served if this provision is limited to such cases where the alleged misconduct is directly connected with the discharge of official duties. Such a protection is not required for offences which are basically based on the direct evidence.
2. Validity of sanction for prosecution: It has been found that sanctioning authorities are often summoned to adduce evidence on the sanction they had given, and this takes place several years later. A number of cases are discharged/acquitted on the grounds that the sanctioning authority had not applied its mind while giving the sanction.
There is need for amending the Prevention of Corruption Act to ensure that sanctioning authorities are not summoned as witnesses and if a trial court desires to summon the sanctioning authority, it should record the reasons for doing so. This should be at the first stage, even before framing of charges by the court.
3. Sanctioning authority for MPs and MLAs: Section 2 (definition) of the Prevention of Corruption Act does not explicitly include MPs or MLAs. This issue, whether elected representatives are public servants or not, came up for determination before various courts. The Supreme Court in P.V. Narasimha Rao vs State held as follows:
“We think that the view of the Orissa High Court that a member of a Legislative Assembly is a public servant is correct. (…) The seat of each constituency is permanent and substantive. It is filled, ordinarily for the duration of the legislative term, by the successful candidate in the election for the constituency. When the legislative term is over, the seat is filled by the successful candidate at the next election. There is, therefore, no doubt in our minds that a Member of Parliament, or of a Legislative Assembly, holds an office and he is required and authorized thereby to carry out a public duty. In a word, a Member of Parliament or of a Legislative Assembly is a public servant for the purposes of the said Act”.
Authority for according sanction for prosecution under Section 19 of the Prevention of Corruption Act, should be stipulated in case of elected representatives. This Authority, in case of Members of Parliament should be the Speaker or Chairman, as the case may be. A similar procedure may be adopted by State Legislatures.
4. Protection to those persons who have ceased to be public servants at the time of taking cognizance of the offence by the court: The Supreme Court has held that where the accused had ceased to be a public servant on the day the court took cognizance of the offence, the provisions of Section 6 (Prevention of Corruption Act, 1947) would not apply and the prosecution against him will not be vitiated by the lack of a previous sanction by the competent authority. The objective of this provision was to provide protection to the public servant from malicious prosecution, and his/her status at the time of the commission of the alleged offence is relevant rather than his/her status at the time of taking cognizance of the offence by the court. The interpretation given by the courts may lead to a situation where a person who superannuates, or resigns from service would not get the protection of this provision, even if the alleged offence was committed while he/she was in service. Therefore, the law should be amended so that retired public servants can also get the same level of protection, as a serving public servant.
5. Expediting sanctions: It has been represented to the Commission that many a time there is substantial delay in obtaining sanction for prosecution from government, with the result that corrupt officials are often not brought to book. Procedure for granting sanction, where government is the competent authority, needs to be streamlined so that there is no delay in processing such cases
6. Liability of Corrupt Public Servants to Pay Damages: While corrupt acts of a public servant are liable for punishment under the Prevention of Corruption Act, there is no civil liability for the wrong doer nor is there a provision for compensation to the person/organization which has been wronged or has suffered damage because of the misconduct of the public servant.
Cases where public servants cause loss to the State or citizens by their corrupt acts, they should be made liable to make good the loss so caused, and in addition, should be made liable for damages. This may be provided by insertion of a chapter in the Prevention of Corruption Act.
7. Speeding up Trials under the Prevention of Corruption Act: The average time taken by trial courts in the disposal of cases has increased over the years.
A legal provision needs to be introduced fixing a time limit for various stages of trial. This could be done by amendments to the CrPC. Steps have to be taken to ensure that judges declared as Special Judges under the provisions of the Prevention of Corruption Act give primary attention to disposal of cases under the Act. Only if there is inadequate work under the Act, should the Special Judges be entrusted with other responsibilities.
It has to be ensured that the proceedings of courts trying cases under the Prevention of Corruption Act are held on a day-to-day basis, and no deviation is permitted. The Supreme Court and the High Courts may lay down guidelines to preclude unwarranted adjournments and avoidable delays.
Corruption in private organisations:
According to the Bribe Payers Index 2006 of Transparency International, businesses from India, China and Russia, who are at the bottom of the index, had the greatest propensity to pay bribes. This raises the issue of how corruption in private bodies should be dealt with.
Corruption in the private sector does not come under the purview of the Prevention of Corruption Act. However, if the private sector (or any person engaged by them) is involved in bribing any public authority then he/she is liable to be punished for the offence of abetment of bribery under the Prevention of Corruption Act.
A large number of public services, which were traditionally done by government agencies, are being entrusted to non-government agencies. In such cases, persons engaged by the private agency replace the role of erstwhile public servants. It is therefore necessary to bring such agencies within the fold of the Prevention of Corruption Act.
In order to prevent corruption, each State Party shall take such measures as may be necessary, in accordance with its domestic laws and regulations regarding the maintenance of books and records, financial statement disclosures and accounting and auditing standards, to prohibit the following acts carried out for the purpose of committing any of the offences established in accordance with this Convention:
(a) The establishment of off-the-books accounts;
(b) The making of off-the-books or inadequately identified transactions;
(c) The recording of non-existent expenditure;
(d) The entry of liabilities with incorrect identification of their objects; (e) The use of false documents; and
(f) The intentional destruction of bookkeeping documents earlier than foreseen by the law.
In India, the Companies Act, 1956 provides the statutory framework which governs the internal processes of a Company. The Company is a juridical person whose internal processes are determined by the Companies Act and its Articles of Association. In case of non-compliance, the penal provisions are invoked against the Company and its officers in default
Though the offence of corruption or bribery is not specified under the Companies Act, 1956, instances of wrong doing by substantial aid from government. As these agencies spend public money it would be desirable that persons engaged by such organizations be deemed to be public servants for the purpose of the Prevention of Corruption Act. Measures to achieve these ends may include:
(a) Promoting cooperation between law enforcement agencies and relevant private entities;
(b) Promoting the development of standards and procedures designed to safeguard the integrity of relevant private entities, including codes of conduct for the correct, honourable and proper performance of the activities of business and all relevant professions and the prevention of conflicts of interest, and for the promotion of the use of good commercial practices among businesses and in the contractual relations of businesses with the State;
(c) Promoting transparency among private entities, including, where appropriate, measures regarding the identity of legal and natural persons involved in the establishment and management of corporate entities;
(d) Preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licenses granted by public authorities for commercial activities;
(e) Preventing conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.
Corruption within the private sector should be tackled through the effective enforcement of existing laws and regulations. Bringing the activities of the entire private sector within the fold of the Prevention of Corruption Act is neither desirable nor practical.