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Mainstream, VOL XLIX, No 43, October 15, 2011

Concern over Corruption, Legal Measures and Limitations of Law

Wednesday 19 October 2011



There is nothing which has a deeper hold on public attention today than the issue of corruption. This cancerous problem needs to be addressed adequately and the remedy must be found immediately. The misery and wretchedness which press so heavily on the large majority of the very poor at this juncture of Indian history makes it imperative to address the issue quickly.

The enormous accumulation of wealth stacked up in personal houses and banks like the Swiss bank, the vulgar display of the same in personal multistorey buildings, marriage parties and pandals, or even the squandering of the same in gambling and in betting especially in sports (for example, horse race, cricket), and the utter poverty and destitution of the masses, manifesting a general (moral) deterioration or sheer absence of a social contract and concern, fills every mind today with painful apprehension and an upsetting attitude.

Feeling the painful pinch inflicted by corruption, everybody is talking about a “strong” Lokpal Bill to be enacted almost immediately by Parliament. Though people are mainly focusing on the abuse of public office for personal gain or for the benefit of a group of one’s allegiance, there are voices, feeble though those may be, in concerned discussions and consultations that corruption should be seen in a broader dimension than merely in its financial implications. They argue that “misconduct”, in terms of (i) injustice, malpractices, exclusion practices and improper discrimination done especially to the marginalised people (SCs, STs, BCs, minorities, women, children) and the failure to implement laws, programmes and schemes for the benefit of these marginalised categories, and (ii) corporate frauds, including misappropriation of natural resources, issues of corporate social accountability, of black money, tax evasion, ought to be under the new Bill. The latter’s scope could be enlarged to cover the abuse of all offices of trust for private gain.

We know very well that an enactment of a law is necessary for the prevention of corruption; but it is not in itself a sufficient measure. A law that is telling us to do or prevent us from doing something does not have the power within itself to enable us to do what the law is telling us to do. Because, law operates through fear. It is the absence of mutuality /love that makes law necessary. Due to self-regarding activity, human capacity to infringe and trample onto the rights of the other makes law inevitable.

A law is an ordinance of reason, for common good (the good of all and the good of each), made by one who has the welfare of the community at heart and hence the authority to promulgate it. So the authority of Parliament, having received its mandate through a democratic process, to enact a law needs to be respected and maintained by all means. Therefore, just a handful of persons ought not impose its will, whims and fancies onto the democratic structure symbolised in Parliament. Its authority is derived from the will of the people, a ‘will’ that is freely given to this authority-structure by a common consensus to preserve the common good, not to abuse it for amassing personal wealth. The authority to make a law is, thus, based on the will of the people and hence a delegated power for care and protection.

Yet, we know very well that, going beyond the law, it is necessary to adequately address the political economy and its structure underlying at the root of corruption. It is also necessary to introduce the criteria of personal and social integrity and uprightness in the recruitment of individuals to the highest services and judiciary and selection of candidates for elections by political parties. Further, the moral and cultural aspects for promoting good values of integrity, a culture of good governance, social responsi-bility and the constitutional values of Social Equality, Social Justice and Social Dignity ought to be cultivated by various means including human rights education. Besides, the democratic approach needs reemphasis. This implies the democratic process of governance, placement of accountability mechanisms in governance and structural mechanisms to maintain transparency in transactions at all levels of governance.

All these need our immediate attention so that democratic governance is experienced by the people as an effective, efficient and clean instrument of social transformation as required by the Constitution of India, and that the spirit manifested in Article 38 could be preserved, namely, “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life”; and further, “The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, …” This is a challenge as well as a task for all of us.

The author is the Research Director, Indian Social Institute, New Delhi.

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