Thursday, November 23, 2006

Office of Profit

The Constitution makers quite rightly wanted legislative office to be insulated from executive influence and manipulation.

Constitutional theory envisages that the elected legislature exercises oversight functions over the government. The making of laws, approval of the budget, and monitoring of all government actions are within the purview of the legislature. The executive branch of government should implement the laws, utilize the public money for the approved purposes, and be accountable to the legislature in its functioning. Therefore, if the legislators are beholden to the executive, the legislature can no longer retain its independence, and loses the ability to control the Council of Ministers and the army of officials and public servants. From this perspective, the Constitutional embargo on office of profit for legislators is both necessary and welcome.

But in India, both the Constitutional model of government and its actual practice in operation have completely reversed this logic. We accepted the Westminster model because of familiarity and historical association. In this model, the executive (Council of Ministers) is drawn from the legislature. While in theory, the legislature holds the government to account, in reality the government controls the legislature as long it has a majority in the House. The key issue for the government’s survival is sustaining its majority. Much of the struggle for power, compromise on cabinet composition, and patronage are linked to this need to satisfy the majority of legislators. This is the reason why the size of Council of Ministers became unwieldy over the decades. At last, the 91st Amendment to the Constitution enacted in 2003 limited the size of Council of Ministers to 15% of the Lower House. Chairmanships of Corporations, Parliamentary Secretaryships of various ministries, and other offices of profit are often inducements to legislators to satisfy their aspirations for rank, status and privilege, and a way of buying peace for the government. This is undoubtedly a perversion of the theory of separation of powers. But as long as such perversion is integral to our model of democracy, it would be very inadequate if we limited this discussion only to technical and legal issues relating to office of profit.

Constitutionally, a person cannot be a Minister unless he is an MP/MLA. Even if a non-MP/MLA is made a Minister, he must become an MP/MLA within six months. Given this, executive and legislature are fused in our system. But in countries like Britain and Germany, such fusion is not leading to corruption or patronage. That is because a political culture has been evolved, in which public office is a means for promoting social good, and not for private or family again. In our culture, public office is an extension of one’s property. That is why public office is a source of huge corruption and extortion, and is also often a heritable family property. And extending patronage to one’s friends and relations comes naturally with public office.

Given this propensity to abuse office, and the compulsions under which any government functions, we need to reexamine the definition of office of profit. Articles 102 and 191 of the Constitution relating to office have profit have been violated in spirit over the years, even when the letter is adhered to. As a result, the Legislatures kept on expanding the list of exemptions from disqualification under Articles 102 and 191. For instance, the Act 10 of 1959 listed scores of offices in the exemptions from disqualification under Article 102. There does not appear to be a clear rationale for such a list, except the expediency to protect holders of certain offices from time to time. Similar laws have been enacted by state Legislatures under Article 191, exempting hundreds of offices from disqualification for state legislature. Each time a legislator is appointed by the executive to an office which might be classified an office of profit, a law is enacted including such an office in the list of exempted categories.

Often, the crude criterion applied is whether or not the office carries a remuneration. In the process, the real distinction of whether executive authority is exercised in terms of decision making or direct involvement in deployment of public funds is often lost sight of. The Supreme Court’s clarification about the appointment and removal being in the hands of the executive branch of government does not help either, because many appointments made may be in advisory capacities

Nor do the existing norms apply to Local Area Development Schemes under which legislators are empowered to sanction public works and authorize expenditure of funds granted under MPLADs and MLALADs schemes. These schemes continue, despite the prevalence of corruption in allotting public works under these schemes. Several party leaders and legislators feel the need for discretionary public funds at their disposal in order to quickly execute public works to satisfy the needs of their constituencies. However, these schemes do seriously erode the notion of separation of powers, as the legislator directly becomes the executive. The argument advanced that legislators do not directly handle public funds under these schemes, as they are under the control of the District Magistrate is flawed. In fact, no Minister directly handles public money. Even the officials do not personally handle cash, except the treasury officials and disbursing officers. Making decisions on expenditure is clearly a key executive function, no matter who physically handles money.

Therefore it seems necessary to sharply define office of profit to ensure clearer separation of powers. Legislators who are not Ministers often do have significant expertise from their own personal or professional background. In addition, their experience in public service gives them unique insights and understanding of public policy. Such expertise and insights would be valuable inputs to the executive in policy making. Therefore Committees and Commissions of a purely advisory nature can be constituted with legislators. The mere fact of such positions carrying certain remuneration and other perks does not make them executive offices. The Constitution recognized that holding of such offices in expert and advisory bodies does not violate separation of powers, and left it to Parliament and State Legislatures to exempt such non-executive offices from disqualification. But appointment in statutory or non-statutory executive authorities with direct decision making powers and day to day control of field personnel, or positions on the governing boards of public sector undertakings or as government nominees in private enterprises clearly carry direct executive responsibilities and involve decision making powers. Such appointments would undoubtedly violate separation of powers. Giving discretionary powers to legislators to sanction or approve public works is clearly an exercise of executive function, whether or not the government appoints the legislators to a designated office. It is necessary to sharply distinguish executive functions and exercise of executive authority while defining office of profit, irrespective of whether such a role or office carries a remuneration and perks.

Given these circumstances, it would be appropriate to amend the law on the following lines:

All offices in purely Advisory bodies where the experience and insights of a legislator would be inputs in governmental policy will not be treated as offices of profit, irrespective of the remuneration and perks associated with such an office.

All offices involving executive decision making and control of public funds, including positions on the governing boards of public undertakings and statutory and non-statutory authorities directly deciding policy or managing institutions or authorizing or approving expenditure shall be treated as offices of profit, and no legislator shall hold such offices.

If a serving minister, by virtue of office, is a member or head of certain organizations like Planning Commission, where close coordination and integration between the Council of Ministers and the organization or authority or committee is vital for the day-to-day functioning of government, it shall not be treated as office of profit.

Discretionary funds at the disposal of legislators or the power to determine specific projects and schemes, or select the beneficiaries or authorize expenditure shall constitute discharge of executive functions and will invite disqualification under Articles 102 and 191, irrespective of whether or not a new office is notified and held.


Lok Pal and the Prime Minister

One issue which has been debated for long is whether the office of Prime Minister should be brought under the jurisdiction of Lok Pal.

Those who believe that the Prime Minister’s conduct should be scrutinized by Lok Pal rightly argue that all public servants should be accountable. In a democracy, the citizen is the sovereign, and every public servant holds office to serve the citizens, spending tax money and exercising authority under the laws made on citizens’ behalf or under the Constitution which we, the people, gave unto ourselves. Therefore, no functionary, however high, should be exempt from scrutiny by Lok Pal.

In constitutional theory, in the Westminster model, the Prime Minister is the first among equals in a Council of Ministers exercising collective responsibility. Therefore, whatever rules apply to other Ministers should apply to the prime Minister as well.

However, there are deeper issues that need to be examined carefully. While the Prime Minister’s office was merely the first among equals in conception, over time the Prime Minister became the leader of the executive branch of government. The Cabinet accepts collective responsibility once decisions are made. That is why all policy debates are customarily within the Council of Ministers away from public gaze, and Ministers are not free to express their reservations or differences of opinion in public. It is the function of the Prime Minister to lead and to coordinate in framing of policies, decision making and execution of those policies and decisions. The Prime Minister’s unchallenged authority and leadership are critical to ensure cohesion and a sense of purpose in government, and to make our Constitutional scheme function in letter and in spirit. The Prime Minister is accountable to the Parliament, and on his survival depends the survival of the government. If the prime Minister’s conduct is open to formal scrutiny by extra-Parliamentary authorities, then the government’s viability is eroded and Parliament’s supremacy is in jeopardy.

In our Constitutional scheme of things, the Prime Minister is appointed on the basis of the President’s judgment of his commanding majority support in Parliament. All Ministers are then appointed only on the advice of the Prime Minister. The President cannot ordinarily dismiss the Prime Minister as long as he enjoys the majority support in the House of the People. But other Ministers are removed by the President at any time on the advice of the Prime Minister. No reasons are required to be given by the Prime Minister for removal of such Ministers. Integrity and competence of the Ministers are not sufficient conditions to continue in office. They must enjoy the confidence of the Prime Minister in order to hold office as Ministers. This scheme has been deliberately introduced in our Constitution to preserve the authority of the Prime Minister, and to ensure cohesion and coordination in the functioning of government. Any enquiry into a Prime Minister’s official conduct by any authority other than the Parliament would severely undermine the Prime Minister’s capacity to lead the government. Such weakening of Prime Minister’s authority would surely lead to serious failure of governance and lack of harmony and coordination, and would severely undermine public interest.

Those who argue that the Prime Minister is like any other Member of Parliament or any other minister are only technically correct. In reality, in all countries following the Parliamentary executive model drawing the Cabinet from the legislature, the Prime Minister became the leader of the country and government. The authority of the Prime Minister, as long as he enjoys Parliamentary support, has become synonymous with the nation’s dignity and prestige. A Prime Minister facing formal enquiry by a Lok Pal would cripple the government. One can argue that such an enquiry gives the opportunity to the incumbent to defend himself against baseless charges and clear his name. But the fact is, once there is a formal enquiry by a Lok Pal on charges, however baseless they are, the Prime Minister’s authority is severely eroded, and the government will be paralysed. Subsequent exoneration of the Prime Minister cannot undo the damage done to the country or to the office of the Prime Minister. If the Prime Minister is indeed guilty of serious indiscretions, the Parliament should be the judge of the matter, and the Lok Sabha should remove the Prime Minister from office.

No lengthy enquiry or impeachment is therefore contemplated in our scheme of things, and a mere passing of no-confidence motion without assigning reasons is sufficient to change government. In the directly elected executive model of government, the Parliament cannot remove the President who is the chief executive, and therefore a complex process of impeachment and an enquiry by Special Prosecutors to precede such an impeachment have become necessary.

It could be argued that since any minister could be removed on the Prime Minister’s advice, or Parliament’s as well, Lok Pal need not have jurisdiction on a Minister’s conduct also. But Parliament does not really sit in judgment of a Minister’s conduct. It is the Prime Minister and the Council of Ministers as a whole whose fate is determined by Parliament’s will. And the Prime Minister does not have the time or energy to personally investigate the conduct of a Minister. The government’s investigative agencies are controlled or influenced by the Ministers, and therefore it is hard for the Prime Minister to get objective assessment of the Ministers official conduct. Therefore, an independent, impartial body of high standing would be of great value in enforcing high standards of ethical conduct among Ministers.

A similar reasoning applies to members of Parliament, since Parliament’s time and energy cannot be consumed by detailed enquiry into the conduct of a Member. But the final decision of removing the Member must vest in Parliament, and that of removal of a Minister must be on the advice of the Prime Minister. The Parliament is responsible to the nation for its decisions, and the Prime Minister is responsible to the Parliament for his decisions. These responsibilities of Parliament and Prime Minister cannot be transferred to any unelected body.

Finally, while the Prime Minister is yet another member of Parliament in Constitutional theory, political evolution transformed him into the leader of the nation. Theoretically, each member of the legislature is elected by his constituents in our model of government. But over the past century, elections even in parliamentary system have become plebiscitary in nature. Most often, the Prime Minister’s personality, vision, and leadership are the issues which determine the electoral outcomes. Similarly, the opposition focuses its energies and hopes on its leader. The electoral contest is transformed into a test of acceptability of the leaders. The constituency contests have thus become increasingly dependent on the larger question of whose governmental leadership people trust or seek at that point of time.

Given this overwhelming political reality, it would be extremely unwise to subject the Prime Minister’s office to a prolonged public enquiry by any unelected functionary. The Parliament is the best forum we can trust to enforce integrity in the office of Prime Minister.


Ethics – A New Class of Offences

The criminal law relating to corruption is limited in scope. The prevention of Corruption Act, 1988, for instance, lists offences of corruption and the penalties from Sections 7 to 15. These offences broadly cover acceptance of illegal gratification as a motive or reward for doing or forbearing to do any official act, or favouring or disfavouring any person; obtaining a valuable thing without consideration or inadequate consideration; and criminal misconduct involving receiving gratification, misappropriation, obtaining any pecuniary advantage to any person without any public interest, or being in possession of pecuniary resources or property disproportionate to his known sources of income. Attempts to commit such offences and abetment are also listed as offences, in keeping with the principles usually applied in the criminal law of the land. The accent is thus on consideration, gratification of all kinds and pecuniary advantage.

However, experience of the past decades shows that such a definition of corrupt practices is somewhat 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, amounting to willful violation of the oath of office. High Constitutional functionaries have time and again been found to have indulged 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. In some of those cases, the Supreme Court held individuals holding high office guilty of gross misconduct amounting to perversion of the Constitution. In such cases, except public opinion, political pressure and dictates of the conscience of the individual, there are no legal provisions to punish the perpetrators.

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. Nevertheless, the damage done by such willful acts or denial of one’s due by criminal neglect have profound consequences to society, and undermine the very framework of ethical governance and rule of law. Again, except a possible, but rare, departmental action, no crime is committed in most such cases under the current definition of corruption.

Third, obstruction or perversion of justice by unduly influencing law enforcement agencies and prosecution is an extremely common occurrence in our country. Again in most such cases, partisan considerations, nepotism and prejudice, and not pecuniary gain or gratification, may be the motives. The resultant failure of justice undermines public confidence in our justice system, and breeds anarchy and violence. It is such failure of justice which is creating a market demand for criminals in our society, and encouraging many citizens to take law into their own hands out of desperation. A whole industry of criminal gangs has come into being to provide rough and ready ‘justice’ through unlawful, and often violent and brutal means. In such cases, departmental action is insufficient to punish the guilty, nor is public opprobrium or forced resignation a sufficient deterrent.

Finally, squandering public money for ostentatious official life style, expensive furnishings and vehicles, and unreasonably high official expenditure have become increasingly 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 seriously undermined.

All these four types of willful abuse of office are extremely common in our country at all levels, and need to be firmly curbed if we are to maintain high standards of ethical conduct and protect public interest. Otherwise, public servants – elected or appointed – will be seen not as custodians of the common interest and sentinels of democracy, but will be perceived as buccaneers and adventurers with limitless power and unrestrained opportunities for personal aggrandizement and pursuing private agendas while occupying public office.

Therefore, there is a need for classifying the following as offences under the Prevention of Corruption Act or any other appropriate legislation:

Gross perversion of the Constitution and democratic institutions amounting to willful violation of oath of office.

Abuse of authority unduly favouring or harming someone

Obstruction of justice

Squandering public money


Tuesday, November 14, 2006

Reply to a mail we received recently

Dear friends,
We at Lok Satta Party believe in replying to each and every mail we receive.We are posting below a mail sent to us by one Mr.Kiran Kumar Reddy. Mr.Jayaprakash Narayan's reply follows.

We hope Mr.Kiran Kumar will not mind us making public his mail. Due to a technical problem, we unfortunately seem to have lost his email Id. Since we have no other way of contacting him,we are posting the reply here on the blog. We hope you see this Mr.Kiran and we apologise for the inconvenience!

Dear Jai prakash Narayan,

I wanted to talk to you about the grave problem of hunger and poverty in the country, I happened to see this news over TV and online.

[Patna: It’s a shocking tale of two Indias, the irony of which is clearly indicative of the stark socio-economic disparity.
While the country’s business entrepreneurs raised a toast to BSE benchmark Sensex breaching the 13,000 mark on Monday, thousands of miles away in Bihar, a man committed suicide after not having eaten for 13 days.
While stock markets' upward journey from 11K to 13K was marked with nationwide jubilation, this man's agony of starvation for 13 days was lost in anonymity.
Found hanging from the roof of a local passenger train in Patna, all proof that the man left behind of his identity was a suicide note that read: “I don't belong to this world. I am helpless.”
“His body was found tied to a small rack near the berth. He was in a standing position and had apparently hung himself,” says DIG, Railways, Ajay Verma.
In his suicide note, the man - yet to be identified - hasn’t blamed anyone.
All he has repeatedly insisted is that it was his poverty that drove him to starvation, which made him helpless enough to put an end to his life.
“The suicide note says he had not eaten for last 12 days and was only surviving on water. He has also written that no one really cared for him or asked him where he had come from. We’ll get to know more about his death after the post-mortem,” says Verma.
Having lost his battle with hunger after putting up a brave front almost 15 days, this man is perhaps India’s most touching face of hunger and poverty.
But will his thought-provoking suicide note be of any relevance for the powers that be, or will his desperation be lost in the loud celebrations of an India galloping towards the goal of a global superpower?]

My heart is breaking seeing this, where are we going as a society and country, this is not what we want to leave back for the future generations. I don’t think reading these kind of news or hearing this any Indian would be proud that we are doing excellent as a nation.

I feel we have no time and we should work as a movement in this and bring civil society as a part of this movement and make sure no one dies with hunger in this country, I don’t think any company in India or any middle class person or any educated person would have a problem in contributing for this.

The point is who makes them aware of the realities of this country, we should, and we should provide them a medium to contribute back to society especially with regard to aged and helpless people and also the kids on the streets.

Everyone feels sad and hurt hearing all this or reading these, but what can they do other than try and forget if not they cannot go about their daily lives. But I strongly feel we should have system in place where every citizen gets an opportunity to contribute to the hungry and needy in whichever way they can instead of just feeling a moment of un happiness/helplessness and then going about their routine. We should try and build a social security for aged and children of this country unless we take care of the basic needs of our aged and future generation, otherwise we cannot claim to be a great nation.

I think we should find a solution to make people AWARE AND AWAKEN them to this sad state of our country. We should encourage people to participate in these causes which help poor old and children.

There should be minimum 10 old aged home and child care centers in every district and anyone above 50 and below 15 should be given food and medicine and everything to live happily
These centers should be run by retired army with the help of prisoner in open jails or members of society who are interested in helping society.
These centers should be run by the local community without any political or governmental influence only the land and funds should be provided by government.
We should encourage companies contribute for these causes, the ones who contribute should be given privilege like a STAR status or something so that people are keen to go to these shops, so that when they buy something here or eat something here a little goes to the poor.
We should involve the great corporate world of India specially IT, Telecom, Banking and others to contribute to this cause which needs urgent attention, i.e. feed the poor.

I know a contrary argument is that we are going make people complacent but see even in a family set up would we not give care and support to a member who doesn’t work or needs us? The same way we should as a country take care of all its citizens. The argument of providing employment, education etc is fine but there is an urgent need to provide the needy with the most basic of human requirement, which is food - food for the old and children of the country no matter what.

I want to tell you Dr.JP that these are the main reasons that is making me come and join a movement such as the one you have started.

I think we should find a solution to make people awake of this sad state of country. Everyone sees the roads, airports, hotels, shopping malls and think we are progressing, actually we are building a society on the dead bodies of the poor people, they have equal right on this country and its resources and its no utility to them if our country is fast progressing because our progress is in fact taking away from them their most basic requirement, which is food.

I feel so sad and heart broken when I am writing to you, I don’t know how I could have helped the who man died of hunger and I think I don’t want his sacrifice to go waste. As a mark or respect to him I want to initiate this project of old age home and home for kids through our loksatta. I want to go through what he went through, even in a small way, so I skipped lunch, break fast but I feel its not enough.

Yours truly,
Kiran kumar reddy


Dear Kiran,
Thank you for the email.Like you, I am moved by the incident.Your passion and conviction are inspiring.I agree that we must also incorporate a program of minimum social security for all to ensure that the indigent and underclass can at least survive with some dignity.

While it is not easy,we, as a country can accomplish that.Let us be in touch to pursue the subject.

Warm regards

Jayaprakash Narayan