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Mrunal [Polity] 2nd ARC: Ethics and Corruption (4th Report): Election Reforms, State Funding of Elections Mrunal

[Polity] 2nd ARC: Ethics and Corruption (4th Report): Election Reforms, State Funding of Elections
1. 2. 3. 4. 5.
What is Ethics? What is Rule of Law? Two Viewpoints in Fighting Corruption 3 Factors behind Corruption in India Politics and Ethics 1. Election =Mother of corruption 2. Criminalization of politics 3. Election reforms already in process 6. Election Funding 1. Three Patterns of State Funding of Elections 2. Election Funding In India 3. Dinesh Goswami Committee on Electoral Reforms 4. Indrajit Gupta Committee on State Funding of Elections 5. Election and Other Related Laws Act 2003

6. 2nd ARC Recommendation on Election Funding 7. anti-defection legislation 1. 91st Amendment 2003 2. Anti Defection : EC 8. Disqualification of Candidate 9. Publication of Accounts by Political Parties 10. Coalition Politics and Ethics 11. CEC Appointment method should be changed 12. Disposal of Election Petitions 13. Disqualification for Membership (art.102) 14. Ethics in Public Life 15. Code of Conduct for Ministers 16. 2nd ARC on Ministers code of conduct 17. 2nd ARC on Legislators Code of Conduct 18. Separation of Powers: Executive vs Legislative 19. 2nd ARC on Separation of Powers 20. Mock Questions First some fodder quotes for Essays related to Corruption and Ethics: 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)
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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)

Blame games
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 Caesars wife but of Caesar himself. If any of the democratic institutions leaves space, the mafia or extraconstitutional 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; judiciarys independence; ability of business
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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 The implicit assumption is that until values are restored, nothing much can be done to improve the conduct of human beings most human beings are fundamentally decent and socially conscious, but there is always a small proportion of people, which cannot reconcile individual goals with the good of society. purpose of organized government is to punish such deviant behaviour If good behaviour is consistently rewarded and bad behaviour consistently punished, the bulk of the people follow the straight and narrow path.

Second Approach:Punish the Guilty

Both approaches should be pursued side by side because 1. 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 2. But Values without institutional support (and punishment) will soon be weakened and dissipated.

Mindmap
Check this Excellent Mindmap prepared from unthta.wordpress.com

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3 Factors behind Corruption in India

coloniallegacy colonial legacy of unchallenged authority and propensity to exercise power arbitrarily. In a society which worships power, it is easy for public officials to deviate from ethical conduct asymmetry of power in our society. Nearly 90% of our people are in the unorganized sector. And nearly 70% of the organized workers with job security and regular monthly wage are employed by the state directly or through public sector undertaking Such asymmetry of power reduces societal pressure to conform to ethical behaviour and makes it easy to indulge in corruption. In the pre-LPG era, the over regulation, severe restrictions on economic activity, excessive state control, near-monopoly of the government in many sectors and an economy of scarcity all created conditions conducive to unbridled corruption. many state subsidies and beneficiary-oriented programmes enhanced opportunities to indulge in corruption and reduced the citizens capacity to resist extortionary demands.

asymmetry of power

Opportunity

Two types of Corruption

coercive corruption Citizens are forced to pay bribes. (for example Ration card,
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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
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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).
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It has been decided that the death of an independent candidate would not lead to the cancellation of an election.

Election Funding
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 minimalist pattern maximalist pattern mixed pattern UK, Ireland, Australia, New Zealand and Canada are examples of this pattern public funding not merely for elections but even for other party activities, as in Sweden and Germany. partial reimbursement for public funding of elections as in France, Netherlands and South Korea

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.
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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.

anti-defection legislation
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
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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 candidates right to contest and the communitys 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 Head Chief Vigilance Commissioner (CVC) Selection Committee PM HM Opp Leader Lok Sabha
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Mrunal [Polity] 2nd ARC: Ethics and Corruption (4th Report): Election Reforms, State Funding of Elections Mrunal

National Human Rights Commission (NHRC)

PM HM Opp Leader Lok Sabha Opp Leader Rajya Sabha Speaker Depty. Chairman Rajya Sabha

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
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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 1. 2. 3. 4. 5. 6. 7. Selflessness: Integrity Objectivity Accountability Openness Honesty Leadership

Code of Conduct for Ministers

Government of India has prescribed following Code of Conduct to Ministers

Before becoming minister

person shall disclose to the Prime Minister, or the Chief Minister, His assets and liabilities, business interests, of himself and of members of his family all immovable property shares and debentures cash holdings jewellery and He shall sever all connections, with the conduct and management of any business in which he was interested before his appointment as Minister. But the Easiest Way is not always the Best Way.

While being Minister

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so long as he remains a Minister, he shall furnish annually by the 31 st March to the Prime Minister, or the Chief Minister, as the case may be, a declaration regarding his assets and liabilities. refrain from buying from or selling to, the Government any immovable property refrain from starting, or joining, any business; ensure that the members of his family do not start, or participate in, business concerns, engaged in supplying goods or services to that Government if any member of his family sets up, or joins in the conduct and management of, any other business. report the matter to the Prime Minister, or the Chief Minister No Minister shoul accept contribution for any purpose, whether political, charitable or otherwise, personally, or through a member of his family, No Minister should not permit their spouse and dependents to accept employment under a Foreign Government. A Minister should-not accept valuable gifts except from close relatives, and he or members of his family should not accept any gifts at all from any person with whom he may have official dealings. A Minister should avoid attending, as far as possible, ostentatious or lavish parties given in his honour. He should stay in accommodation belonging Government such as circuit houses, dak bungalows etc)

Foreign Gifts
A Minister may receive gifts when he goes abroad or from foreign dignitaries in India These gifts are of two types

#1: Symbolic gifts

which are of symbolic nature, like a sword of honour, ceremonial robes It can be retained by the recipient minister

#2: Non-Symbolic gifts

second category of gifts would be those which are not of symbolic nature If its value is less than Rs. 5,000/- it can be retained by the Minister. Otherwise he will have the option to purchase it from the Toshakhana Only gifts of household goods which are retained by the Toshakhana, such as carpets, paintings, furniture etc. They will be kept in Rashtrapati Bhavan, Prime Ministers House or Raj Bhavan as State property. Commission

2nd ARC on Ministers code of conduct

Ministers in the Lok Sabha must keep separate their roles as Minister and
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constituency member; Ministers must not use government resources for party or political purposes Ministers must uphold the political impartiality of the Civil Service and not ask civil servants to act in any way, which would conflict with the duties and responsibilities of civil servants; Dedicated units should be set up in the offices of the Prime Minister and the Chief Ministers to receive public complaints regarding violation of the Code of Conduct Prime Minister or the Chief Minister should ensure the observance of the Code of Ethics and the Code of Conduct by Ministers. even in the case of coalition governments where the Ministers may belong to different parties

2nd ARC on Legislators Code of Conduct

Ethics Committees should be constituted in each house. Ethics Commissioner may be constituted by each House of Parliament. They would assist the Committee on Ethics in the discharge of its functions, and advise Members, when required, and maintain necessary records. Registers of Members Interests may be maintained with the declaration of interests by Members. The Rules of the US Congress and the Australian and Canadian Parliaments do not allow a legislator to vote if they have a direct pecuniary interest.

Separation of Powers: Executive vs Legislative

#1: giving offices
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 it is often noticed that the government controls the legislature as long it has a majority in the House. Therefore, Governments often have to appoint many ministers only to placate the ambitions of coaliation partners or faction leaders of their own party. This led of inflation of ministers. The 91st Amendment to the Constitution enacted in 2003 limited the size of Council of Ministers to 15% of the Lower House. So now, Governments (Executive) try to placate the coaliation partners or faction leaders of their own party by giving them Chairmanships of Corporations, Parliamentary Secretaryships of various ministries, and other offices of profit as sops to satisfy their aspirations for rank, status and privilege and a way of buying peace for the government. Therfore there is a need to examine this issue.

#2: MPLADS
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legislators are empowered to sanction public works and authorize expenditure of funds granted under MPLADs and MLALADs scheme. these schemes do seriously erode the notion of separation of powers as the legislator directly becomes the executive. (because) legislators do not directly handle public funds under these schemes, as these 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.

2nd ARC on Separation of Powers

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 the Planning Commission where coordination and integration is vital for the day-to-day functioning of government, it shall not be treated as office of profit. Schemes such as MPLADS and MLALADS should be abolished Members of Parliament and Members of State Legislatures should be declared as Public Authorities under the Right to Information Act, except when they are discharging legislative functions.

Concluding words
All great democracies went through the tortuous process of democratic transformation, which included corruption and blatant misuse of power. India has the strength and resilience to build a great democracy (but) We need to promote a culture of zero-tolerance of corruption and men and women of integrity, competence should enter politics. This is the gist of 2nd ARCs 4th report :Ethics in Governance. (upto Chapter #2 Minus Ethical Framework for Bureaucrats, Judges and Regulators.) To be Continued

Mock Questions
MCQ
Which of the following statements are correct? 1. The CVC is selected by a Committee made up of PM, HM and Leader of Opposition in Lok Sabha. 2. CEC is selected by a Committee made up of PM, HM, Leader of Oppositions
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in Lok Sabha and Rajya Sabha. 3. The provisions related to Defection are given in ninth Schedule of our Constitution. 4. Use of Electronic voting machines had been introduced in the parliamentary elections of 1999. Which of the following is not a recommendation of 2nd ARC? 1. 2. 3. 4. 5. Schemes such as MPLADS and MLALADS should be abolished Ethics Commissioner should be appointed in each House of Parliament. System for partial state funding should be introduced in elections. No changes are required in the the present system of CEC selection. Special Election Tribunals should be established to ensure speedy disposal of election petitions.

Descriptive
Write 120 words note on 1. 2. 3. 4. Electoral Reforms suggested by 2nd ARC. Salient Features of Whistleblowers Protection Bill Salient Features of Benami Transection Act Main provisions of Tenth Schedule.

Essay (1500+ words)

1. All that is necessary for the triumph of evil is that good men do nothing 2. The line separating good and evil passes not between states nor between classes, but through the middle of every human heart. 3. Rule of Law in India: ground realities and the road ahead

Interview
1. Are you in favor of State Funding of Election in India? Is it Feasible for such a large country? 2. What steps do you think are necessary to stop Criminalization of politics? 3. If Election is the mother of corruption, then shouldnt the election be scrapped? Hand the power to bureaucrats and country will run properly, dont you think? For more on Polity and 2nd ARC related articles, visit mrunal.org/polity

URL to article: http://mrunal.org/2012/09/polity-2nd-arc-ethics.html Posted By On 29/09/2012 @ 00:42 In the category polity

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