Discretion: Root cause of Corruption
RAJESH KUMAR, ADVOCATE
Corruption is part and parcel of our life. A common person is faced with this problem, almost everytime he approaches Public authorities for any permission, exemption or for any other public benefit. There are numerous allegations against public authorities for corruption with respect to functions like permission for building a residential accommodation, opening up a restaurant or any other commercial activity, tax assessment, law enforcement, issuance of a ration card, passport or driving license, and even for providing public utilities like water, electricity or even a hospital bed. To eradicate this social evil of corruption, it is necessary to look into the root cause of this corruption and also into primary remedy available to the common citizens, the only victim of rampant corruption, against this menace of corruption.
Intermittently we find reports that on corruption index, prepared by various world organisations,
Honesty is the best policy, but like every policy even honesty, as a policy is judged everyday in the prevailing circumstances of the society. It is important to examine whether prevailing circumstances of our society admit honesty as the best policy. In this context I would like to quote John Lachs, quote, “The remarkable thing is that we are not unable to recognise wrong acts or gross injustices when we see them. What amazes us is how they could have come about when each of us did none but harmless acts. We look for someone to blame them, for conspiracies that may explain the horrors we all abhor. It is difficult to accept that often there is no person and no group that planned or caused it all.” unquote. Society has a peculiar tendency to blame individual for its ills. Society, generally, lacks courage to accept blame on itself. This weakness of the society is the biggest impediment in finding reasonable solutions of many of the problems, including corruption. Further lately a disturbing trend is obvious in our society; it tries to legislate away the problems and thus abdicates its responsibilities.
The fundamental question is “why do people pay bribe.” And the answer is obvious. People pay bribe to the public authorities because they have “Discretion”, discretion given by law itself. This discretion is either to accept or reject the request of a person and sometime just to delay it. Many a times these discretion are unfettered, absolute, and without any accountability. Further the person, aggrieved by abuse of discretion has no effective remedy against abuse of this discretionary power.
Let us take an example; say a person is requesting some public authority for a license. The authority may grant the license or may reject the application. The authority may delay the processing of the request for long amount of time. They may decide to “fully scrutinise the request” which may take years. They may make the person visit the office of the authority quite a number of times. Sometime the request may get misplaced and many a times the authority may be waiting for some report to come from some other authority which may take quite a long amount of time. The person is bewildered as what to do. Every visit to an office has some cost in terms of time, money and inconvenience. And then he founds a tout roaming around who advises him just to pay some amount, euphemistically called “Suvidha shulka” or convenience fee. Another discretion may be called discretion to delay or “pocket discretion”. The applicant is expected to pay “speed money” so that the authority will not apply this discretion against him. The point which needs to be appreciated that in this whole exercise no illegal favour have been given to the applicant so there is no possibility that any audit can find out this form of corruption.
This discretion of authorities is generally without any accountability or without any time limit within which they are expected to process the request. Thus when a license is issued to an ineligible person, authority is not responsible and even less responsible when a license is not issued to an eligible person. Law, which provides for these discretions, generally, doesn’t provide a time limit within which the decision has to be made. Further the law does not make the authority responsible if the purposes of law is not achieved. For example, there are stringent building laws and its violations are evident whenever one passes through any street of any city of this country. No municipal authority, the discretionary authority in this case, has ever been held responsible for violations of construction norms. In this manner, it appears that power, authority and discretion has been given to authorities but whether desired result is achieved or is seldom audited. When we make law, we have a certain purpose in mind but there is no institutional mechanism to audit at later stages whether laws are fulfilling the needs for which they are formulated.
Rule of Law is the basic feature of our Constitution. The classical jurists opposed every form of administrative discretion as negation of Rule of Law. However modern juristic thinking allows some amount of administrative discretion. Hon’ble apex court held that discretion must not be “arbitrary, vague or fanciful”. When discretion is used arbitrarily it becomes discrimination which is against constitutional norm of equality. There is no doubt that, theoretically, arbitrary discretion may be challenged in the court of law but the remedy is not too effective. In Indian socio-economic context where vast majority of the people is uneducated and poor, it is understandable that many a times these abuses of discretion pass unchallenged.
It is this discretion, which is root cause of corruption. So it is necessary that even at the stage of formulation of laws, proper verifiable limitations be placed on these discretions and proper and effective remedy be given in the hand of affected citizenry so that abuse of these discretion and resultant corruption may be effectively checked.