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Re: Tackling Corruption



---"N. Arvind Kumar" <nak_@hotmail.com> wrote:
> I think Sanjeev's idea for corruption having a
> seperate section is an excellent idea. This will
> help us to focus more on other issues. Right now,
> topics which deserve more attention do not get
> enough of it as the corruption issue always 
> overshadows other issues.

KUSH:
You may set up a different section for tackling this issue of
corruption in India, no problems there.  However, if we are going to
offer any plausible solutions, then let them be based on  reality and
some recognized principles.  In this light let us examine some of
Arvind's points:

ARVIND:
> On the issue of corruption, I feel the following
> steps should be taken.
> * Politicians to be probed only by special courts.
>   These courts should not handle other cases. Such
>   courts must be treated equal to the High court.
>   In case the case goes to Supreme court for appeal,
>   once again a special judge who handles only 
>   cases regarding sitting politicians must be 
>   appointed. This will ensure speedy deliverance of
>   justice.

There is no problem with some courts and judges specializing in
certain areas. We have tax courts, etc.  But it appears you want these
courts to be the level of the "High Court" which is normally an
appellate court. I guess what you are suggesting here is that these
courts will have a panel (of three?) judges.  Then you make a very
disturbing suggestion:"politicians be probed..by [these] special
courts."  This is disturbing because it is not upto the judiciary to
"probe."  Activism on part of judiciary is an aberration not the norm.
 A court is there to decide on the basis of evidence presented.  For
example, it is wrong and never authorized in a democracy that a court
can or should order investigation against an individual as it violates
the separation of powers doctrine.

Yes, setting up special specialized courts will only solve 1/3 of the
problem.  The major problem in India is that you do not have
professional investigators and trained government attorneys
(prosecutors).  It is upto the investigators and the prosecutors to
"probe" when duly authorized to do so.  Arrests are then made and
charges brought against the accused.  The accused have to given every
opportunity and means to defend.  In other words you will also need
public defenders, since most of these cases will be criminal and what
if the person claims that he or she has no means to defend?  

ARVIND:
> 
> * The judge probing Dr.Jayalalitha, Justice Liberhans
>   was appointed Chief Justice of HP high court.
>   I can imagine why. A code to deal with such
>   situations should be evolved so that the cases
>   should not be affected just because a judge is
>   transferred.

KUSH:
This is an "internal" problem of politicization (which is the root
cause of all corruption).  Two things wrong here:  A judge should not
be doing the "probing."  He (rather a panel) should be hearing the
case and conducting the proceedings.  Appointments of Judges should be
for at least 10 years.  Transfers should be prohibited.

ARVIND:
 
> * Once convicted, he or she should not be allowed
>   to contest another election. The ban of 6 years
>   proposed now is a disgrace. The ban must be 
>   for life. 

KUSH:
We have to be careful that in our zeal for "harsh punishment" we throw
away reasonableness from the system.  The six year ban is a reasonable
period.  THE PROBLEM IS NO ONE IS BEING CONVICTED AND THEN
CONSEQUENTLY BANNED FOR SIX YEARS.

ARVIND:
> * When I used the phrase "repressive measures", I
>   did not mean that politicians should take the
>   law into their hands. All I meant is that the law
>   to deal with corruption should be made stronger
>   and the punishment should be harsh once convicted.
>   For example, rowdyism in the parliament as witnessed
>   during the women's reservation bill should invoke
>   an automatic disqualification.

KUSH:
Sorry, rowdism in parliamentary proceedings is not corruption by any
stretch of imagination.  Yes, we must come up with credible and
reasonable way regarding legislative proceedings and how discipline
can be eforced and how and who will should punish the violators.  But
certainly, you are not suggesting judicial meddling in legislative
affaris?

ARVIND:
> * I've always wondered what happens once the CAG
>   indicts the politicians. Nothing comes out of the
>   issue. A Parliamentary Affairs committee is set up
>   to whitewash the crime. Once the CAG indicts
>   someone, it should be mandatory to file a case and
>   submit the evidence.

KUSH:
What is a CAG and who has given it the power to indict?

ARVIND:
> 
> * As for the crime at the lower level, the first 
>   step should be to eliminate corruption in places
>   where there is a direct interaction with people,
>   viz., ration shops, passport office, tax office,
>   customs, RTO, police, corporation etc. This cannot
>   be done simultaneously. That will only result in
>   confusion. If tackled one after another, say, one
>   department every 2 months, I am confident that
>   corruption at the lower level can be removed.
>   (On a different note, the departments that need to
>   be computerised first are also the ones which 
>   interact with the people directly)

KUSH:
And how and who will remove corruption at the "lower level" while the
"upper level" continues to be corrupt.  You are assuming that you will
have a "force" of fully trained and professional people "tackling" the
corrupt?  Who and where are they going to obtain that training?

ARVIND:
>   In case of legislators, no confusion will arise
>   as the total number of legislators is just a few
>   thousands and it is easy to make them fall in 
>   line.
> 
> * Once the top level and low level corruption is
>   tackled, there will be pressure on the middle level
>   corruption to disappear.

KUSH:
All of the above assumes that you have an army of trained
professionals and trained judges, prosecutors and public defenders.
Not to mention an expanded and professionally jail system.  After all
this special force will be making arrests, prosecuting and putting a
lot of people in jail?

ARVIND:
> * Along with these steps, law in india itself needs to
>   be revamped completely. There are many outdated laws.
>   For example, you will be allowed to adopt a child 
>   depending on your religion, sex of the child, sex
>   of the biological children you already have and
>   previous adoptions. These restrictions have prevented
>   many children from living in a family despite poeple
>   willing to adopt them. Like everything else, the
>   legal system in india is in a sad state.

KUSH:
That many laws are outdated and should be re-written is not in dispute
(although I still could not connect antiquated adoption laws with
modern day corruption?!)  The question is how do you propose these
should be "revamped?"  Should we have a special "law" task-force on
IP?  Should we set up a National judiciary and legal reforms
committee?  Or are you proposing that the Indian parliament should
hold a special session and where revised laws can be presented?

ARVIND:
> * The number of judges in all courts need to be
>   increased. 75 supreme court judges for 100 crore
>   poeple should be okay.

KUSH:
And there are just NINE supreme court judges in the US.  Looks like
the US judicial system is in trouble.  What in your view is the role
of the Supreme court?  To be the highest trial court with different
"benches" as it has been made in India?  Or isn't the right role of
the supreme court is to make sure that all courts are administering
justice on established legal principles and that there is uniformity
and consistency in case law?  Right now the Indian Supreme court is a
joke. It divides itself up into various "benches".  A practice which
should be illegal and unconstitutional.   The solution is in training
more judges and creating a powerful system at the trial (district
level).  The high courts should be merely appellates courts, deciding
on technical and other legal matters.  The supreme court should be the
ultimate law giver or the law corrector whenever a constitutional
matter needs to be decided or when lower courts are divided over legal
matter.  Lastly, states must be given all legal authority in civil and
criminal matters. All states must have there own uniform civil and
criminal laws and there own judicial courts, including appellate and
state supreme courts (as we have here).
 
> ARVIND:
> Hopefully, this will be my last mail on the issue
> of corruption. And since I'm at the topic, I certainly
> think that what PV Narasimha Rao did to get the JMM
> votes was not lobbying but corruption.

KUSH:
All politicians know, that they can get away with murder.

ARVIND:
Finally, I suggest that "Making India the least
> corrupt country in the world in 2 years time" 
> should be part of our manifesto. This is not at all
> difficult to achieve.

KUSH:
We can suggest the urgency of the problem.  However, to think that
corruption can be stamped out of India in two years, is totally
unrealistic.  It will take more thatn two years to setup training
facilities for training law enforcement people (invesitgators,
prosecutors, judges), introducing technology and other professional
systems including records, national ID system, budgeting, accounting
and procurement.   That is why business enterpreneurs, alone cannot
make a society successful.  It takes a lot of others.
Regards,
KUSH KHATRI

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