[Polity] 2nd ARC Ethics and Corruption (4th Report): Election Reforms, State Funding of ElectionsDevendra Vishwakarma
- What is Ethics?
- What is Rule of Law?
- Two Viewpoints in Fighting Corruption
- 3 Factors behind Corruption in India
- Politics and Ethics
- Election =Mother of corruption
- Criminalization of politics
- Election reforms already in process
- Election Funding
- Three Patterns of State Funding of Elections
- Election Funding In India
- Dinesh Goswami Committee on Electoral Reforms
- Indrajit Gupta Committee on State Funding of Elections
- Election and Other Related Laws Act 2003
- 2nd ARC Recommendation on Election Funding
- anti-defection legislation
- 91st Amendment 2003
- Anti Defection : EC
- Disqualification of Candidate
- Publication of Accounts by Political Parties
- Coalition Politics and Ethics
- CEC Appointment method should be changed
- Disposal of Election Petitions
- Disqualification for Membership (art.102)
- Ethics in Public Life
- Code of Conduct for Ministers
- 2nd ARC on Ministers’ code of conduct
- 2nd ARC on Legislators’ Code of Conduct
- Separation of Powers: Executive vs Legislative
- 2nd ARC on Separation of Powers
- Mock Questions
First some fodder quotes for Essays related points from 2nd ARC ethics and corruption report:
- All that is necessary for the triumph of evil is that good men do nothing (Edmund Burke)
- The punishment suffered by the wise who refuse to take part in government, is to suffer under the government of bad men (-Plato)
- Righteousness is the foundation of good governance and peace. (Confucius)
- Man himself must become righteous and then only there shall be righteousness in the world.
- Be the change you wish to see in the world (Gandhi)
- The line separating good and evil passes not between states nor between classes… but through the middle of every human heart. (Aleksandr Solzhenitsyn)
What is Ethics?
- Ethics is a set of standards that helps guide conduct.
- Ethics is a set of standards that society places on itself
- Ethics helps to guide behaviour, choices and actions of citizens.
- The Crux of ethical behaviour does not lie in bold words and expression, but in their adoption in action.
- It may not always be possible to establish the criminal offence of misappropriation in a court, but a Government servant can still be removed from service for unethical conduct.
- E.g. An engineer may have deliberately permitted the construction of a defective irrigation dam or building. It may not be possible to get him convicted in court on charges of corruption but he could be removed from service on grounds of incompetence.
What is problem in Ethics?
- The present codes of conducts are not direct and to the point.
- They are full of vague sermons that rarely indicate prohibitions directly.
Law should be so succinct that it can be carried in the pocket of the coat and it should be so simple that it can be understood by a peasant (-Napoleon)
- We always find alibi for our lapses by quoting trespass from other democratic institutions, by resorting to a blame game.
- legislators blame the judiciary and vice versa
- civil services blame interference by the political executive or legislatures and vice versa.
- (but) The standard should be one of not only the conduct of Caesar’s wife but of Caesar himself.
- If any of the democratic institutions leaves space, the mafia or extra-constitutional authority occupies that space.
What is Rule of Law?
- Rule of law measures whether crime is properly punished or not; enforceability of contracts; extent of black market; enforceable rights of property; extent of tax evasion; judiciary’s independence; ability of business and people to challenge government action in courts etc
The purpose of a government is to make it easy for people to do good and difficult to do evil (British PM Gladstone)
- The word ‘corrupt’ is derived from the Latin word ‘corruptus’, meaning ‘to break or destroy’.
- The word ‘ethics’ is from the original Greek term ethikos,meaning ‘arising from habit’.
- Corruption is so deeply entrenched in the system that most people regard corruption as inevitable and any effort to fight it as futile.
- This cynicism is spreading so fast that it bodes ill for our democratic system itself.
Two Viewpoints in Fighting Corruption
|First Approach:Instill Values||
|Second Approach:Punish the Guilty||
Both approaches should be pursued side by side because
- Values are needed to serve as guiding stars, and they exist in abundance in our society. A sense of right and wrong is intrinsic to our culture and civilization
- But Values without institutional support (and punishment) will soon be weakened and dissipated.
Check this Excellent Mindmap prepared from unthta.wordpress.com
3 Factors behind Corruption in India
|asymmetry of power||
Two types of Corruption
|coercive corruption||Citizens are forced to pay bribes. (for example Ration card, Driving license, telephone connection).|
|collusive corruption||Bribe giver and bribe taker benefit at immense cost to society. (for example 2G, Coal scam)|
Post-LPG Reform Era
- monopoly and discretion increase the propensity to corruption while competition and transparency reduce corruption.
- Telephones, steel, cement, sugar and even two-wheelers are among the many sectors, which have seen enhanced supply and choice, reducing or even eliminating corruption after LPG reforms. (Liberalization, Privatization and Globalization)
- wherever technology and transparency have been introduced, corruption has been significantly contained.
- over-centralization increases corruption
- The more remotely power is exercised from the people, the greater is the distance between authority and accountability
- large number of functionaries between the citizen and final decision-makers makes accountability diffused and the temptation to abuse authority strong
- Right to Information, effective citizens’ charters have dramatically curbed corruption and promoted integrity and quality of decision making.
The way ahead
- The deregulation, liberalization and privatization are not necessarily the solution to fix corruption.
- Public example has to be made out of people convicted on corruption charge.
- All procedures, laws and regulations that breed corruption will have to be eliminated.
- Right to information has to be the starting point for some of these changes
- focus should be on e-governance and systemic change
- An honest system of governance will displace dishonest persons.
- Benami properties of corrupt public servants need to be forfeited, as also the assets illegally acquired from corrupt practices
- Whistleblower legislation has to be put in place to protect informants against retribution.
Politics and Ethics
- it is unrealistic and simplistic to expect perfection in politics in an ethically imperfect environment
- India was fortunate that high standards of ethical conduct were an integral part of the freedom struggle. Unfortunately, ethical capital started getting eroded after the transfer of power.
Election =mother of corruption
- There used to be time when excesses in elections were common for example imperfect electoral rolls, impersonation, booth-capturing, violence, inducements and intimidation, floor-crossing after elections to get into power.
- However, Election Commission and the Supreme Court have taken several steps since the late 1980s
- Yet, there is a widespread view that much more needs to be done to cleanse our political system.
Criminalization of politics
- It means participation of criminals in the electoral process
- Why rise of criminals in politics?
- protection for law-breakers on political, group, class, communal or caste grounds
- partisan interference in investigation of crimes and poor prosecution of cases,
- inordinate delays lasting over years and high costs in the judicial process,
- mass withdrawal of cases,
- Indiscriminate grant of parole.
Why Criminals enter politics?
- Opportunity to convert the policemen from being potential adversaries to allies.
- opportunity to influence investigations of crimes.
Why Political parties allow criminals?
- As for political parties, a criminal individuals is a ‘tool’ to secure votes through use of money and muscle power.
Election reforms already in process
- Improvement in Accuracy of Electoral Rolls.
- provision of photo-identity cards for all voters
- Supreme Court has directed that a candidate should declare any conviction by a court or whether a criminal case is pending against him
- EC has directed every candidate to file a declaration of assets and liabilities of the candidate and family members.
- Article 324 = EC has power to to “superintend, control and direct” elections.
- Using this power, Election Commission has made the Code of Conduct for elections binding in all respects.
- Similarly, EC has put prohibition of festoons/cutouts,
- required candidate to file on daily expenditure statements, during Election campaigns.
- appointment of a large number of observers, ordering of re-poll in specific polling booths.
- Electronic voting machines have been introduced throughout the country (in the parliamentary elections of 2004).
- It has been decided that the death of an independent candidate would not lead to the cancellation of an election.
- Large, illegal and illegitimate expenditure in elections is another root cause of corruption.
- While there are formal limits to expenditure, in reality, actual expenditure is alleged to be far higher.
- Therefore Cleansing elections is the most important route to improve ethical standards in politics
Three Patterns of State Funding of Elections
- Internationally, there are three broad patterns of state funding for political parties and elections
Election Funding In India
- Representation of the People Act puts limits on election expenditure,
- company donations to political party were banned in 1969 but later allowed by an amendment of the Companies Act in 1985
Dinesh Goswami Committee on Electoral Reforms
- set up in 1990
- recommended limited support, in kind, for vehicle fuel, hire charges of microphones, copies of electoral rolls etc.,
- It also recommended a ban on company donations.
Indrajit Gupta Committee on State Funding of Elections
- Recommended partial state funding mainly in kind for certain essential items.
Election and Other Related Laws Act 2003
- Gives Full tax exemption to individuals and corporates on all contributions to political parties
- Disclosure of party finances and contributions over Rs.20,000.
- Provides Indirect public funding to candidates of recognized parties – including free supply of electoral rolls
- Equitable sharing of time by the recognized political parties on the cable television network and other electronic media (public and private)
2nd ARC Recommendation:
- A system for partial state funding should be introduced in order to reduce the scope of illegitimate and unnecessary funding of expenditure for election.
- Tenth Schedule was enacted in 1985
- It fixed a certain number above which defection in a group was permitted in the house.
- (but) Legalising such selective defection however, provided opportunities for transgressing political ethics and opportunism
- permitting defection in any form or context is a travesty of ethics in politics.
91st Amendment 2003
- It tightened the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985
- Now mandatory for all those switching political sides – whether singly or in groups – to resign their legislative membership.
- They now have to seek re-election if they defect and cannot continue in office by engineering a ‘split’ of one-third of members, or in the guise of a ‘continuing split of a party’
- bars legislators from holding, post-defection, any office of profit
- This Amendment has thus made defections virtually impossible and is an important step forward in cleansing politics
Anti Defection : EC
- Election Commission has also insisted on internal elections in political parties to elect their leaders.
- Election Commission has recommended that the question of disqualification of members on the ground of defection should also be decided by the President/Governor on the advice of the Election Commission.
- Therefore, 2nd ARC recommends that the issue of disqualification of members on grounds of defection should be decided by the President/Governor on the advice of the Election Commission
Disqualification of Candidate
- Given the delays in our criminal justice system, disqualification after conviction for crimes may be an insufficient safeguard.
- There are candidates who face grave criminal charges like murder, abduction, rape and dacoity, unrelated to political agitations.
- There is need for a fair reconciliation between the candidate’s right to contest and the community’s right to good representation.
- election outcome must be decided by the people who are the ultimate sovereigns through the ballot box.
- 2nd ARC recommends that Representation of the People Act needs to be amended to disqualify all persons facing charges related to grave and heinous offences and corruption. But only for the cases filed six months before an election would lead to such disqualification
Publication of Accounts by Political Parties
- Political parties have a responsibility to maintain proper accounts of their income and expenditure and get them audited annually.
- This needs to be acted upon early. The audited accounts should be available for information of the public.
Coalition Politics and Ethics
- Coalitions are often necessitated because it is difficult today for a single party to obtain a clear majority in the Legislature.
- ethics of coalition government is, however, seriously strained when the coalition partners change partnerships mid-stream and new coalitions are formed, primarily driven by opportunism and craving for power
- 2nd ARC recommends that Constitution should be amended to ensure that if one or more parties in a coalition realign midstream with one or more parties outside the coalition, then Members of that party or parties shall have to seek a fresh mandate from the electorate.
CEC Appointment method should be changed
- Article 324 = Chief Election Commissioner/Commissioners are to be appointed by the President on the advice of the Prime Minister
- (but) Heads of other statutory bodies are appointed based on the recommendations of a broad based Committee. For example
|Chief Vigilance Commissioner (CVC)||
|National Human Rights Commission (NHRC)||
2nd ARC recommends that CEC and other EC should be selected through such Committee.
Disposal of Election Petitions
- at present Election petitions in India are to be filed in the High Court
- such petitions should be disposed of within a period of 6 months (required under Representation of Peoples Act)
- (but) In actual practice however, such petitions remain pending for years and in the meanwhile, even the full term of the House expires thus rendering the election petition infructuous.
- National Commission to Review the Working of the Constitution (NCRWC) headed by Venkatchelliah, recommended that special election benches should be constituted in the High Courts for the disposal of election petitions
- 2nd ARC Recommends that Special Election Tribunals should be constituted at the regional level under Article 323B.
- These Special Election Tribunals will ensure speedy disposal of election petitions and disputes within a stipulated period of six months.
Disqualification for Membership (art.102)
Article 102 of the Constitution provides for disqualification for membership of either House of Parliament under following situations:
- if he holds any office of profit under the Government of India or the Government of any State
- if he is of unsound mind and stands so declared by a competent court;
- if he is an undischarged insolvent;
- if he is not a citizen of India,
- if he voluntarily acquired the citizenship of a foreign State
- if he is under any acknowledgement of allegiance or adherence to a foreign State;
- if he is so disqualified under the Tenth Schedule (Defection)
Ethics in Public Life
- in a democracy, all persons holding authority derive it from the people.
- all public functionaries are trustees of the people.
- higher the echelon in public service, the greater is the ambit of discretion
- Therefore it is difficult to provide laws and rules that can regulate the exercise of discretion in high places
Corruption and hypocrisy ought not to be inevitable products of democracy, as they undoubtedly are today (Gandhi)
Nolan Committee of United Kingdom
- It outlined the following seven principles of public life
Code of Conduct for Ministers
Government of India has prescribed following Code of Conduct to Ministers
Before becoming minister