C Raj Kumar*
School of Law, City University of Hong Kong
Corruption as a human rights issue in South Asia: law, development and governance**
The paper will examine the problem of corruption in a few countries in South Asia from a human rights perspective. The issues that the paper will address are those relating to: corruption as a human rights violation; corruption and its implications for the protection of the rule of law; the response to corruption from a human rights perspective; and the need for evolving rights-based approaches to fighting corruption with a view to empower the citizenry in South Asia.
This paper is expected to help understand the problem of corruption from a human rights and democratic governance standpoint. It is well known that corruption is widely prevalent in most countries in South Asia. Both domestic and international assessments of countries in South Asia have demonstrated their poor track record. Time and again, acts of corruption come to the public domain, but like many other ills affecting countries in South Asia, they are forgotten after momentary attention is paid to the problem. However, the people of South Asia know very well the extent to which corruption affects their daily lives. Corruption has a profound negative impact on the social, economic, and political fabric of society. Corruption in the countries South Asian countries violates human rights, undermines the rule of law, distorts the development process, and dis-empowers the state. This has led the state to lose gradually its capacity to govern. Corruption violates the legal and regulatory framework. While there are laws against corruption in countries in South Asia, the gap between the law in the books and the law in practice is wide. This paper hopes to develop a framework for understanding the linkages between corruption and human rights and how rights-based approaches can be effective in fighting corruption in South Asia. The article does not intend to provide a national perspective relating to corruption in different countries in South Asia. Some experiences of a few selected countries in South Asia, i.e. India, Sri Lanka, Bangladesh and Pakistan, will be examined with reference to certain issues in the paper with a view to recognising corruption as a human rights violation.
II. Overview of Corruption in South Asia
Corruption is an all-pervasive problem that is widely prevalent in South Asia. Corruption has become deeply institutionalised within the governance structure. The ground realities within South Asia reflect a high degree of apathy and helplessness in dealing with the problem. There is virtually no institution in South Asia that is free from corruption. While the extent of corruption is alarming and its impact on the institutions of governance is profound, there have been numerous instances of struggles and resistance from the people against corruption. Unfortunately, many of these struggles have not in any significant way altered the situation with regard to corruption. The legal and institutional structures relating to fighting corruption in South Asia have been strengthened over a period of time. Since corruption has become a way of life in countries in South Asia, the political will at the highest levels of government, including the Parliaments and Legislative Assemblies, is minimal. Due to this reason, the problem of corruption has been significantly "politicised". While corruption is a serious issue that affects the people of South Asia, very often, the legal systems of South Asia demonstrate its seeming willingness to address corruption. Paradoxically, this willingness is manifested most often after elections and when there is a change of government. There have been numerous instances of actions being taken to prosecute the politicians and bureaucrats who were serving under the previous government. Since most of these efforts are ingenuous and are largely intended to settle political scores, they do not withstand the legal processes and almost never end up in convictions.
The rankings of some of the countries in South Asia in the Global Corruption Report 2006 prepared by Transparency International (TI) in its Corruption Perception Index (CPI) are indeed discouraging: India – 70; Sri Lanka – 84; Nepal – 121; Pakistan – 142; Bangladesh – 156. While there could be some differences with regard to the extent of corruption in countries in South Asia, as reflected in their rankings, there is no doubt about the fact that these countries clearly face a serious problem with regard to corruption.
III. Theoretical Framework for Recognising Corruption as a Human Rights Issue
Broadly speaking, human rights are rights relating to life, liberty, equality and dignity. The global human rights discourse has attempted to evolve new meanings and understandings as to what constitutes "human rights" and how they can be promoted and protected. The entire gamut of civil, political, economic, social and cultural rights under the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have only reinforced the international community’s desire to provide normative framework for protecting the rights of people. The work of the United Nations Human Rights Committee (UNHRC) and the Committee on Economic, Social and Cultural Rights (CESCR) under both these covenants have further provided institutional frameworks for the implementation of rights.
Corruption is recognised as a crime that attracts criminal law sanctions under domestic statutes. There is no doubt about the fact that corruption is a crime; efforts to fight corruption should include the strengthening of criminal law mechanisms, including the law enforcement machinery and, in general, the effectiveness of the criminal justice system. But the experience of fighting corruption in developing countries in South Asia have demonstrated that corruption, besides being a crime that needs to be punished through the criminal law, has other consequences for governance. One of the most serious consequences of corruption for governance is its impact on the promotion and protection of human rights.
The first step in developing a theoretical framework for recognising corruption as a human rights issue is to examine the different types of human rights that are affected because of corruption. The right to equality is one of the fundamental human rights that is protected both within domestic constitutions and legal frameworks as well as under international human rights law. Article 26 of the ICCPR says: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law…"(i) The constitutions of India(ii), Sri Lanka(iii), Bangladesh(iv) and Pakistan(v) have similar provisions that protect the right to equality of its people. Corruption violates the right to equality as the people who pay bribes are given favoured treatment. Furthermore, the people who are not able to give bribes or who are not willing to bribe are discriminated against. Clearly, there is a violation of the right to equality – both substantive and procedural – due to corruption.
This basic framework can be further developed by understanding the impact of corruption on the implementation of specific rights that are guaranteed under both domestic and international human rights law. In fact, the problem of corruption is so writ large in South Asia that it affects both civil and political rights as well as economic, social and cultural rights in a significant manner. Whether it is the right to "freedom from torture", "right to a fair trial", "right to food", or "right to health", corruption on the part of government departments violates the human rights of people who are entitled to these services.
a. Corruption Undermines the Rule of Law
Protecting the rule of law is essential for progress and development in all societies. Most countries, including the countries in South Asia, have laws against corruption. The problem of corruption has been recognised and the legal and institutional framework to fight against corruption has been strengthened. However, there is a threshold problem that the countries in South Asia face concerning the protection of the rule of law. The laws relating to corruption are violated like many other laws and the enforcement machinery is weak for pursuing action against the violators. The relationship of the rule of law to corruption can be understood in three stages: first, there is wide disregard for the law and its instrumentalities and consequently, lack of respect for law. This includes the lack of respect for laws relating to corruption as well. Second, corruption is used as a method to violate laws, break rules and regulations, abuse powers and also exercise discretion in a wrongful manner. In all these aspects, the regulatory framework of the state apparatus is made dysfunctional due to institutionalised corruption across all departments of the government. Third, the laws and legal institutions are manipulated by way of corruption where corruption becomes a tool for promoting lack of respect for the rule of law. In this context, many violations and violators overcome legal scrutiny or law enforcement by paying bribes and engaging in other forms of corrupt behaviour. This has created a situation where the rule of law is replaced by the rule of powerful people, be it politicians, bureaucrats, businesspersons, or other powerful interest groups who are able to manipulate the law enforcement machinery due to corruption. Even when anti-corruption cases come before the court of law, there is a strong element of non-legal and political factors in play that undermine the neutrality of the criminal justice system and all the legal and judicial processes relating to fighting corruption. The rule of law is protected only when there is a fairly predictable legal system that responds to needs and problems in a fair, non-discriminatory, and effective manner, and there is access to justice. The problem of law enforcement, including anti-corruption law, attacks the very basis of democracy and the time has come to tackle it in a systematic manner in South Asian countries. While there is no single solution, it is important to recognise that initiatives should primarily be intended to inculcate a respect for law among the citizenry. This means all legal, institutional, judicial, and constitutional measures to ensure the rule of law should be oriented towards inculcating a respect for law on the basis of the belief that it will be enforced equally and fairly. This can help in ensuring corruption-free governance.
b. Corruption Impedes Development
Corruption impedes development significantly in South Asia. The countries in South Asia are some of the poorest countries in the world as demonstrated by the United Nations Development Programme (UNDP) in the Human Development Index (HDI) published in the Human Development Report 2006. The HDI rankings of countries in South Asia are: India – 126; Sri Lanka – 93; Bangladesh – 137; and Pakistan – 134, out of 177 countries that have been ranked. Development objectives of countries are inextricably linked to resources and the efficient and effective of use of resources. If these resources that are supposed to be used for fulfilling development objectives are transferred and wasted due to corruption, then it inevitably impedes development and delays progress. Empirical studies have also demonstrated the links between corruption and development. It has been observed: "…The research generally shows that countries can derive a very large "development dividend" from better governance. We estimate that a country that improves its governance from a relatively low level to an average level could almost triple the income per capita of its population in the long term, and similarly reduce infant mortality and illiteracy..."(vi) The eight millennium development goals (MDGs), which include halving extreme poverty to halting the spread of HIV/AIDS and providing universal primary education all by the target date of 2015, have a direct relationship with the need to ensure corruption-free governance. Corruption undermines the state’s capacity to achieve the MDGs. The 2006 Corruption Perception Index prepared by Transparency International reinforces the strong linkages between prevalence of corruption and the problem of poverty in poor countries. "Corruption traps millions in poverty," said Transparency International Chair, Huguette Labelle. "Despite a decade of progress in establishing anti-corruption laws and regulations, today’s results indicate that much remains to be done before we see meaningful improvements in the lives of the world’s poorest citizens."(vii) It was noted: "…A strong correlation between corruption and poverty is evident in the results of the 2006 CPI. Almost three-quarters of the countries in the CPI score below five (including all low-income countries and all but two African states) indicating that most countries in the world face serious perceived levels of domestic corruption..."(viii)
Corruption has substantial negative consequences for development. The development of countries in South Asia to a large measure depends upon the economic policies and social consequences of these policies. Corruption affects both these aspects in a number of ways. It affects economic growth, discourages foreign investment, diverts resources for infrastructure development, health and other public services, education, and anti-poverty programs. In essence, corruption poses serious challenges for governance and the countries in South Asia cannot achieve the goals of development without ensuring corruption-free governance. The development process ought to be based upon principles of transparency in governance and accountability of the administration. However, due to corruption, there is inefficiency and inequity in resource allocation. The countries in South Asia are not be able to sufficiently fulfil their MDGs and in that process, are struggling to achieve social and economic development. In this context, there is a need to formulate integrated governance policies based on human rights and human development. This notion of "developmentalizing rights" is extremely relevant for countries in South Asia and should be understood by evaluating the effectiveness of rights-based approaches to development and how the "right to development" can be implemented.(ix)
c. Corruption Promotes Mis-governance
Corruption promotes mis-governance as the integrity of the legal, judicial and administrative apparatus is affected. The World Bank has observed that "Governance is the process and institutions by which authority in a country is exercised: (i) the process by which governments are selected, held accountable, monitored, and replaced; (ii) the capacity of governments to manage resources efficiently, and to formulate, implement, and enforce sound policies and regulations; and, (iii) the respect for the institutions that govern economic and social interactions among them…"(x) Corruption profoundly affects the implementation of various policies relating to governance. Governance mechanisms are inevitably undermined due to corrupt acts of the people who hold and exercise powers. Another aspect of governance is related to the misallocation of resources due to corruption, as the governance priorities of a country become negatively influenced by corruption. There is a need to understand the relevance of the right to good governance in the process of institutionalisation of human rights. The discussion on good governance should also focus on the effectiveness of anticorruption institutions and how these experiences could be usefully drawn for institutionalising transparency in governance. Ultimately, good governance is instrumental to securing sovereignty.
IV. Implications of Recognising Corruption as a Human Rights Violation
It is important to note that the recognition of corruption as a human rights violation in South Asia is not necessarily going to immediately reduce the incidence of corruption. Human rights discourse achieves exposure of the violations and also empowers the victims and others to resist future human rights violations and to seek redress for past violations. The notion of empowerment is deeply embedded in recognising human rights. Corruption of the form that is prevalent in countries in South Asia has affected every governance mechanism and institution in place, making a mockery of democracy and the rule of law. In this social and political context, there is an urgent need to examine the problem of corruption from different perspectives not strictly limited to the criminal law approach of pursuing corruption as another serious crime. Corrupt acts of government officials and departments are more than serious crimes for which the law enforcement machinery takes actions. There are numerous consequences of recognising corruption as a human rights violation in countries in South Asia. First, the moment the crime of corruption is recognised as a human rights violation, it creates a type of social, political, and moral response that is not generated by a crime, notwithstanding the seriousness of the act. Second, the human rights of people are typically protected under the Constitution or other domestic legislation and would invite serious constitutional scrutiny by courts and other institutions. Third, the recognition of corruption as a human rights violation, besides inviting international attention, would also possibly bring into focus the violations of provisions of the international human rights treaties that countries in South Asia have ratified. Finally, the response to human rights violations is based upon efforts to empower individuals and institutions so that there is proper redress for the victims of violations and that there is resistance to any such future occurrence. It will be useful to specifically outline some of the consequences of the recognition of corruption as a human rights violation in South Asian countries.
The recognition of corruption as a human rights violation has certain implications for other legal and constitutional rights. The legal system of a country is based upon respect for legal and constitutional rights of citizens. If corruption is recognised as a human rights violation, then the response of the state to deal with corruption ought to be the same as it deals with other human rights violations. Certainly, human rights violations that occur in countries in South Asia do receive greater attention, even though the redress for such violations or, for that matter, the response of the state to such violations may not be as effective as they ought to be. Nevertheless, corruption couched in the language of human rights becomes more serious than an act of crime perpetrated by the bribe receiver or the persons who are involved in committing the crime of corruption. Corruption attacks the very foundations of democratic governance which constitutional democracies in South Asia cherish to protect. Constitutionalism and the rule of law cannot be promoted in countries in South Asia without eradicating corruption. The human rights approach is one tool that ought to be used effectively in highlighting the problem of corruption and in particular recognising the violations of civil, political, economic, social and cultural rights of the people of South Asia due to corruption.
In a few countries in South Asia, the judiciary is regarded with great reverence. The constitutional protections that protect the workings of these judiciaries have provided a framework for ensuring its independence and autonomy. The judiciary is entrusted with the task of interpreting the constitution and the laws of the state and to adjudicate all disputes. The judiciaries of India, Sri Lanka, Bangladesh and Pakistan have made good progress in interpreting the constitution and developing liberal human rights jurisprudence with a view to protect and promote the rights of the people. Although there are challenges to judicial independence in all these countries, and their effectiveness, credibility and legitimacy vary within them, they have made efforts to uphold human rights and the rule of law. It is in this context that the recognition of corruption as a human rights violation can empower the judiciary to appropriately interpret the constitution and other laws to ensure corruption-free governance. There have been a few cases decided by the courts in South Asia that have sought to ensure corruption-free governance, but they have been largely made with reference to the principles of right to equality or other anti-corruption legislation. So far, the judiciaries in South Asia have not recognised corruption as a human rights violation though doing so would help the judiciary tackle the problem of corruption in a more legally and constitutionally coherent manner. In this context, it needs to be mentioned that the scourge of corruption has still affected the judiciary in parts of South Asia. There have been allegations of corruption and other forms of abuse of power by judges, strongly indicating that there is need for ensuring greater transparency and accountability within the judiciary. This becomes important given the fact that judiciaries in countries in South Asia are entrusted with the task of interpreting the constitution and upholding it.
V. Expanding the Mandate of Human Rights Commissionsxi
There are various institutions in countries in South Asia that are engaged in the task of protecting and promoting human rights. India and Sri Lanka have established national human rights commissions, while Bangladesh and Pakistan have not. In Bangladesh, there have been efforts taken to establish a human rights commission, but they have not come to fruition. Besides these institutions, the judiciary, by virtue of its constitutional responsibilities, is committed to protecting human rights. It is proposed that for anti-corruption work to be broadened and for it to become a mainstream governance issue, there is need for various institutions to broaden their mandate to include human rights work as a focal point for promoting good governance.(xii)
The good governance agenda includes protection and promotion of human rights and rule of law. Both these functions will not be fully accomplished if corruption is rampant in the government. It is important that institutions like the National Human Rights Commission of India (NHRC) provide a framework on the basis of which corrupt acts of individuals and institutions that result in human rights violations are given due cognisance by the NHRC. It is recognised that the NHRC is overloaded by human rights cases that come before it. However, it is important that the corruption problem, when it takes a human rights contour, be duly recognised and steps are taken in that direction. The NHRC should attempt to understand the implications of corruption for human rights not only from a theoretical perspective but also from a practical standpoint. It would also be useful to examine from the various cases that come before the NHRC how many of them are due to some act of bribery or other forms of corruption. Further, the Research Division of the NHRC may consider supporting studies and researches conducted to examine both the human rights consequences of corruption and how far the human rights discourse can help in ensuring corruption-free governance.
One of the important developments that have taken place due to the institutionalisation of human rights in India through establishing certain commissions is that human rights have come to take certain democratic space within the domestic political discourse. However, the existence of democratic institutions does not necessarily mean that human rights violations do not occur or that their incidence is reduced. What it means is that there are institutional mechanisms available for victims of human rights violations to seek justice.(xiii) The effectiveness of these institutions in India is still a matter of opinion, but by and large, the NHRC has come to acquire a certain reputation because of its indispensability, impartiality, and independence. Of course, it needs to be noted that the powers of the NHRC are limited and their opinions on human rights issues are recommendations; however, they carry a lot of legitimacy and persuasiveness due to the composition of the commission.
The law enforcement agencies that are engaged in the task of anticorruption work (such as the CVC, the CBI, and the ED) may be truly empowered if institutions like the NHRC take cognisance of cases relating to corruption when it is a human rights issue. This will bring the corruption problem to the centre of the governance discourse in India as it will be a human rights violation and the consequences of such actions will be significant. The recognition of corruption as a human rights issue does not warrant any amendment to the Protection of Human Rights Act, 1993. The definition of ‘human rights’ given in Section 2 and the functions of the NHRC given in Section 12 are wide enough to include corruption as a violation of human rights. Speaking about the role of NHRCs at the 59th Session of the UN Commission on Human Rights on 16 April 2003, Justice A.S. Anand, the NHRC Chairperson, observed: "It is our view that national institutions are both catalysts and monitors of good governance within their respective jurisdictions and can play a unique role in the defence and furtherance of human rights if they are pro-active, if they take preventive measures to stave-off or mitigate violations, if they are fearless in bringing to book those who have violated human rights."(xiv)
The fact that the NHRC has recognised its role as a ‘catalyst and monitor of good governance’ is a step in the right direction for increasing the institutional mandate of the NHRC to recognise corruption as a human rights issue and to promote corruption-free governance. This statement should be supplemented by taking serious steps to understand the problem of corruption in India and to evolve human rights-based approaches to tackle this problem. In this regard, it is encouraging to note that the NHRC has been developing rights-based approaches to development in the area of population stabilisation and combating HIV. The NHRC can also engage with other anti-corruption agencies such as the CVC, the CBI, and the ED, which are most of the time on the ‘other side’ when it comes to the NHRC’s work relating to human rights. However, this institutional engagement must be a facet of good governance because if the NHRC has to take a proactive role in promoting good governance policies, it is necessary for it to understand the problem of corruption from a criminal law enforcement perspective as well.
VI. Efforts to Eliminate Corruption: National Experiences from South Asia(xv)
The problem of corruption in South Asia is manifested in the malfunctioning of institutions responsible for governance. There is no doubt that corruption creates a vicious atmosphere of lack of respect for law and undermines the effective functioning of democratic institutions. As a consequence, civil, political, economic, social, and cultural rights of people are violated. This situation has undermined the democratic foundations of the state in countries in South Asia. As noted earlier, the rule of law is protected only when there is a fairly predictable legal system that responds to problems in a reasonably fair, non-discriminatory, and effective manner. This means that all legal, institutional, judicial, and constitutional measures intended to take efforts against corruption should be oriented toward empowering the citizenry against corruption. In this context, the rights-based approaches to development and governance assume significance as rights are meant to empower people. There are two facets of empowerment that have to take place in developing countries for promoting effective anticorruption strategies. First, for popular sovereignty to be secure in South Asia, the people need to be empowered by either providing a right to corruption-free governance or interpreting other rights liberally to fulfil their right to corruption-free governance.
This should be supplemented by providing forums and institutions that work to ensure the protection and promotion of the right to corruption-free governance. Access to justice remains a priority for the enforcement of this right. The judiciary and other institutions should develop mechanisms so that access is available to victims of corruption and remedial measures are quick and effective in fulfilling their rights. Second, institutions that are already working in the field of anticorruption need to be duly empowered so that political interference or other forms of vested interests do not creep into the system and affect anticorruption work. For this to happen, transparency, institutional autonomy, and functional independence of the anticorruption institutions become mandatory. This inevitably means that there has to be political will at the highest level of the government so that anticorruption becomes an important policy of the government in securing genuine popular sovereignty.
Corruption is a serious issue that affects the entire governance process in India. Although, the recent passing of a Right to Information Act has helped to ensure transparency in governance, India does not have the necessary legal and institutional framework for whistleblower protection. The government of India has examined a proposed piece of legislation called The Public Interest Disclosure and Protection of Informers Bill, 2002, drafted by the Law Commission of India. In light of the recommendations, the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) passed a resolution (Government of India Resolution No.89, Gazette of India Part I Section I) to give protection to whistleblowers.(xvi)
While the protection that is granted under this resolution is not similar to statutory protection, it may be useful to provide a minimal degree of confidence to whistleblowers. The resolution authorised the Central Vigilance Commission (CVC) as the Designated Agency to receive written complaints or disclosure on any allegation of corruption or misuse of office by any employee of the Central Government or of any corporation established by or under any Central Act, government companies, societies or local authorities owned or controlled by the Central Government.(xvii) The limitation of "owned or controlled by the Central Government" has clearly excluded private companies, corporations and private institutions within the ambit of whistleblower protection, thereby adopting a narrow approach of protection unlike similar Japanese legislation. Section 6 of the resolution says that if a person is aggrieved by any action on the ground that he is being victimised due to the fact that he had filed a complaint or disclosure, he may file an application before the designated agency seeking redress.(xviii) Section 7 provides for witness protection.(xix) However, this is based on the opinion of the designated agency that the witness needs protection. Overall the protection that is granted to whistleblowers by way of policy regulations is very minimal and grossly underestimates the need for protection for whistleblowers.
b. Sri Lanka
The Commission to Investigate Allegations of Bribery or Corruption (CIABOC) in Sri Lanka was established by an act of Parliament. The preamble of the Commission to Investigate Allegations of Bribery or Corruption Act, No. 19 of 1994 clearly notes that it is "an act to provide for the establishment of a permanent commission to investigate allegations of bribery or corruption and to direct the institution of prosecutions for offences under the Bribery Act and the Declaration of Assets and Liabilities Law No.1 of 1975…". The legal framework of the act is sound when it comes to the powers and functions of the commission.
The Law Commission of Sri Lanka has already prepared a draft for a freedom of information law in Sri Lanka. It is noted that the Law Commission of Sri Lanka is currently discussing the draft legislation. It is important to recognise that the right to information is a useful tool for ensuring corruption-free governance. The general purpose of a freedom of information law is to promote transparency in governance and accountability in administration. But in societies where corruption is writ large, there is an urgent need to situate the anti-corruption framework into the freedom of information legislation. What this means is that the freedom of information law under consideration should specifically identify corruption as one of the bottlenecks that hinder the process of growth and development of Sri Lanka, and that the legislation should provide for suitable provisions to empower the people to fight against corruption. The focus of the freedom of information legislation in Sri Lanka should be to eliminate corruption so that the people of Sri Lanka are empowered. In fact, the empowerment that is being suggested through the freedom of information law is broader than the concept of whistleblower protection.
The freedom of information law would empower whistleblowers so that they can get whatever information they need from the concerned authority or government agency. But it will also empower the wider civil society, including non-governmental organisations and other individual and institutions, to seek information pertaining to the functioning of the government. Greater transparency provides for the necessary checks and balances in the governance process so that the government officials are accountable to the people. Electoral accountability is not sufficient. There is a need to ensure a more regular and direct sense of accountability, which can be assured by a freedom of information law. Further, it is important to ensure that provisions relating to the denial of disclosure of information are narrowly construed and that public interest disclosure is given full statutory protection.
It is time that the government of Sri Lanka consider passing a whistleblower protection law. This is based upon the following three arguments:
1. Recognition: The recognition of corruption to be a serious issue that violates human rights, undermines the rule of law and distorts the development process is the starting point for discussion relating to the possible responses for fighting corruption. The role of the CIABOC and non-governmental organisations like Transparency International in Sri Lanka may be helpful in the fight against corruption. But all these institutions, when dealing with corruption, are to a large extent crippled without a vibrant and active civil society that is fully empowered to fight against corruption. Also, there is a need to recognise the fact that although there is a sound legal framework in the form of a parliamentary act and a Bribery Commission that has extensive powers, the fight against corruption has not acquired the kind of legitimacy and support that is needed.
2. Response: The case for the passing of a whistleblower protection law in Sri Lanka is based upon underlining the need for a protective system for people who are willing to take the risk of exposing acts of corruption. The notion of a whistleblower has a number of aspects embraced into it. It has been observed that there are three pre-requisites for whistleblowing:(xx)
a. Whistleblowers must be confident that they will be protected if they do so, and that the decision to blow the whistle would not result in any adverse effects both for their employment and legal liability. This is very important not only to generate confidence among persons working in an organisation, but also to create an environment of mutual trust and a culture of integrity. Further, given the nature of corrupt acts committed by powerful and well connected individuals, there is a good chance that persons who have information relating to these acts of corruption may be hesitant for fear of reprisal or action against them for blowing the whistle. There should be a system in place to ensure that there is physical and legal protection against such threats that the act of reporting might pose to whistleblowers;
b. Whistleblowers must believe that blowing the whistle will serve some good purpose and that appropriate action will be taken by the agency. This is a question of institutional credibility. The legitimacy of any anti-corruption institution is dependant upon the trust and confidence it can generate from the people who are the real stake holders. Whistleblowers will blow the whistle if and when they know that their act will result in appropriate action that the agency may take. This is entirely dependant upon the reputation of the agency and factors like impartiality, objectivity, functional independence, operation efficiency and financial autonomy of the institution. There is a need to ensure that these factors are in place so that the whistleblower is encouraged to come forward with the relevant information that may be useful for fighting corruption;
c. Whistleblowers must be aware that they can make such a disclosure and how they should go about doing so, including to whom, how and what information can be released as a part of their acts. This is a crucial factor for whistleblowing to be successful. Most of the time, there is no proper guidance available as to what type of information is not confidential or the release of which is appropriate. Also, there is a tendency among governments to use secrecy and confidentiality as a tool to ensure that little information is available in the public domain as to how the government functions. This approach may very well change in Sri Lanka, considering the fact that the Law Commission of Sri Lanka is currently debating on the draft legislation relating to the Freedom of Information Law.
3. Empowerment: One of the important problems of fighting corruption, particularly at the lower end of government services, is that the victims of corruption are disempowered in the sense that they are helpless and are forced to pay bribes. The bribe receivers, or those who are the perpetrators of corruption, wield enormous power and abuse it with little control on their exercise of powers. Further, there are fewer oversight or supervisory mechanisms for the exercise of powers, and even if there are such bodies, corruption seems to have entered into these bodies as well. In this context, any approach to fight corruption ought to bear in mind that the trust and confidence deposed on individuals and institutions should be minimal. There is a need to have as much as possible a broad based anti-corruption mechanism with many institutions acting as a check on the exercise of powers. It is in this context that the system of whistleblower protection is extremely valuable. The fundamental rationale for supporting the notion of whistleblowers protection is that they can be useful for bringing information relating to acts of corruption to the knowledge of the investigation officials or to the concerned institutions. However, whistleblowers need to be truly empowered so that their zeal and enthusiasm to support corruption-free governance is legally and institutionally protected.
The whistleblower could be anybody, including, but not limited to, somebody who is a victim of corruption or a person who had some knowledge or information relating to a corrupt transaction; someone within the government who has received information relating to acts of corruption, but is not within his or her mandate to take any action on the particular complaint; a press reporter; an anti-corruption activist; or an NGO representative working in the field of corruption. The objective is to expand the base of persons who could be a whistleblower. In a truly democratic society, there is a need for every concerned citizen to be a whistleblower and it ought to become the duties and responsibility of citizenship. But the state cannot expect its citizens to discharge this type of duties relating to a good citizen until and unless there is a proper legal and institutional mechanism that provides protection to the whistleblower.
VII. Rights-Based Approaches to Anti-Corruption Measures(xxi)
Having recognised that corruption affects human rights and the rule of law, it is important to develop the right to corruption-free governance through a number of right-based strategies in South Asia. Rights based approaches to governance are those strategies that rest on the conceptual foundation that social and economic goals do not remain policy objectives, but get transformed into rights that are vested with the citizenry— increasing incentives for public vigilance. In this conception there are ‘right-bearers’ and ‘duty-holders’. Evolving rights-based approaches to governance will also help the countries in South Asia to achieve their MDGs. The people of South Asia will have the rights relating to various social and economic goals that were hitherto described as policy objectives. The representatives of the government are vested with the duty of ensuring the protection and promotion of the particular rights. It is not that the rights-based approaches to anti-corruption measures will automatically ensure corruption-free governance, nor that this approach is itself free from problems relating to enforcement. Rights by their very nature are claims on the government or its representatives to act in a particular manner. There are numerous legal, jurisprudential, and philosophical bases for rights to be enshrined in the constitution or for that matter to be used effectively for promoting democratic governance. By the same token, there are criticisms of rights-based approaches to constitutional governance, particularly in the area of economic, social, and cultural rights.
The bone of contention is with regard to whether rights ought to be expanded so as to include economic, social and cultural rights. Some commentators have observed that it is important to limit rights so that expanding the notion of rights and their attendant non-enforceability do not result in the dilution of traditional rights. But in the context of India, the judiciary has significantly developed the notion of rights without diluting these traditional rights. While the success of the judiciaries in South Asia in enforcing economic and social rights has been mixed, there is very little scepticism or doubt in the mind of the judiciary to continue its interventions when these rights are violated either in a constitutional sense or for that matter by legislation. In fact, the development of the ‘right to life’ jurisprudence is one such example in which the courts have not hesitated to include new rights as a part of the evolving nature of human rights and human dignity.
For example, in India, the fundamental right to education was initially recognised by the Supreme Court of India and followed by a constitutional amendment that specifically incorporated this right into the constitution. Notwithstanding these developments relating to ‘rights jurisprudence’ in South Asia, the notion of rights-based approaches to development and governance is not one without controversy or criticism. However, the conceptual basis for such an approach is indeed useful for formulating various effective anti-corruption measures. In this regard, it is useful to propose that there is a case for developing a fundamental right to corruption-free service in countries in South Asia. The formulation of such a right, along with the development of other rights-based approaches to development, will help in eliminating corruption and promoting integrity and good governance in the following specific ways:
Corruption-free Administration as a Facet of Constitutional Governance
The recognition of the right to corruption-free governance as a constitutionally recognised fundamental right has the potential to bring the problem of corruption to the central focus of political discourse. This will ensure that the state and all its instrumentalities act in accordance with the constitution and do not engage in any form of corrupt actions that will violate the fundamental rights of the people of South Asia. Constitutional governance means that the governance system is based upon the underlying ideals, goals, objectives, aspirations, and values of the constitution. Unfortunately, corruption has undermined all these constitutional values. The right to corruption-free governance has the potential to bring the corruption issue to the forefront of administration and all individuals and institutions within the government will be expected to take the necessary steps to fulfil this fundamental right.
Empowerment of the Judiciary to Ensure Corruption-free Governance
The recognition of the fundamental right to corruption-free governance will quickly empower the judiciary to bring forward the integration of anti-corruption discourse and human rights discourse. Both these discourses are about increasing the legitimacy of the state and ensuring accountability of the administration. The judiciary is best suited to continue this role as it has attempted in the past to create greater transparency and infuse institutional autonomy and independence to investigative agencies that engage in anti-corruption work. With the recognition of this right, the judiciary is in a far better position to develop jurisprudence relating to good governance.
Galvanising Social Consciousness for Corruption-free Governance
The formulation of the right to corruption-free governance will help in galvanising social consciousness on issues relating to bribery and other forms of corruption. It is necessary to garner the support of the citizens as it is their apathy and indifference to abuse of power that has resulted in a deep-rooted sense of institutionalised corruption in India. Political morality cannot be brought about without the development of individual morality. The particular right can help in creating greater support for corruption-free governance and also result in the citizens valuing integrity and rectitude as important criteria for electing their representatives. At the same time, citizens will feel a greater sense of urgency in reporting corrupt activity.
VIII. International Human Rights Framework for Recognising Corruption as a Human Rights Violation(xxii)
To understand the growth and development of the international human rights framework in its present form, it is necessary to appreciate the human rights movement as a continuous negotiation among states on universally accepted principles and norms. However, the so-called universal conception of human rights has come under attack by arguments relating to the cultural relativism of human rights, most recently embodied in the "Asian Values" debate. While the international human rights framework has moved from its modest origins in creating norms to enforcing human rights obligations and institutionalising human rights, it has also simultaneously expanded the notion of what constitutes human rights. This expansion has taken place prominently within the work of national courts in certain jurisdictions assuming the role of human rights arbiters and expanding constitutional rights to include a variety of economic and social rights in order to promote good governance.
The human rights framework in the ICCPR and the ICESCR are very useful for developing corruption prevention strategies, particularly with regard to the protection of the rule of law and the right to equality and non-discrimination. These corruption prevention strategies would rest on the premise that the human rights framework should provide a right to corruption free service based on the principle of freedom from corruption.
Article 1 of the ICCPR emphatically observes, "all people have the right of self-determination" and to "….freely pursue their economic, social and cultural development".(xxiii) Corruption, as argued earlier, clearly interferes in people's efforts to fulfil their economic self-determination. It also stifles the pursuit of economic, social and cultural development. The fact that corruption interferes in the free progress of people to realise their rights as mentioned in the ICCPR is a good starting point to integrate the human rights framework for developing corruption prevention strategies. Article 26 of the ICCPR observes that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law" and "….the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination,,,".(xxiv) The nature of official corruption is such that it clearly discriminates against people and favours bribe-givers over those who do not give bribes. These bribe-givers receive undue favoured status and are able to sue against the resources of the state, which they may not otherwise be entitled to. Corruption does not allow for the development of equality before the law as it is fundamentally at odds with the principle of equal treatment. A governance system that is free from corruption does not discriminate against people as well as ensuring that the state's largesse is distributed fairly and that the governmental decision-making are based on factors that are fair, just and reasonable. Corruption results in a) favoured or preferential treatment of certain persons who have managed to pay bribes or perform corrupt actions; b) unfair treatment or discrimination against people who refuse to pay bribes, resulting in their victimisation. Corruption clearly divides society on the basis of unfair and illegal considerations, culminating in gross disrespect for law and moral degradation. In corruption discourses that have examined the problem from a public policy standpoint, there is very little emphasis on the discriminatory aspects of corruption. But in practical terms, it is a natural outcome of most corrupt transactions. Individual corruption in day-to-day governmental functioning have reached such alarming proportions in developing countries like India that corruption is institutionalised within the governance system itself.
The ICESCR, like the ICCPR, refers to the principle of equality and non-discrimination in the exercise of economic, social and cultural rights. The Committee on Economic, Social and Cultural Rights, in one of its General Comments(xxv), has referred to the legal obligation undertaken by state parties to the ICESCR. The non-discrimination aspect in Article 2 of the ICESCR is the "undertaking to guarantee" that relevant rights "will be exercised without discrimination". It may be argued that states ought to take steps to ensure that there is no discrimination in the efforts of their citizens to exercise their rights to work, food, health, education and other rights that are mentioned in the ICESCR. Corruption in exercise of the above-mentioned rights is a clear violation of this obligation. It is apparent that numerous development-oriented activities of states have been affected by corruption. The economic and social rights of people are eroded due to the corrupt transfer of public wealth to a few power holders. This has created a situation of further deprivation and impoverishment. Article 2(1) of the ICESCR obliges state parties "to take steps" for the realisation of rights. Steps taken should include also the removal of impediments in the realisation of economic and social rights. As corruption is one of biggest obstacles in the fulfilment of economic and social rights, states are obliged to make efforts against it. The ICESCR has also pointed that "all appropriate means, including particularly the adoption of legislative measures", may be taken to fulfil the legal obligations of member states under this covenant. The argument for freedom from corruption rests on the basic premise that other economic and social freedoms are significantly threatened by corruption. In particular, it is obvious that the democratic rights of citizens under Article 25 of the ICCPR are deeply impinged by corruption in the electoral process. This may extend to other democratic rights if corruption is deeply imbedded in the political processes of the state.
The need for promoting transparency and accountability has been noted as an important requirement for corruption-free governance. The Indian experience has demonstrated that the recognition of the right to information in India is an important step in ensuring a corruption-free service. Numerous factors played a part in the passage of the new law that recognised this right, including a sound international human rights framework that provided for the right to information. India is a state party to the ICCPR and Article 19 of the ICCPR protects the "freedom to seek, receive and impart information".(xxvi) It is notable that during the first session of the UN General Assembly in 1946, it adopted resolution 59(1) which stated: "freedom of information is a fundamental human right and . . . the touchstone of all the freedoms to which the UN is consecrated".(xxvii) The consequences of corruption on development are immense as the national and international funds that are allocated for development may be siphoned off due to corruption. Developing countries like India are provided with loans by other nations and multilateral lending institutions for various development-related activities. This has resulted in social expectations generated within the countries for development-related work. Corruption directly affects the pursuit of development work as the funds are misused, thereby delaying, and in numerous occasions deterring, the development process.(xxviii)
IX. Civil Society Activism and the Right to Information in India(xxix)
Civil society has come to occupy a predominant role in ensuring corruption-free governance.(xxx) One of the important objectives of human rights-based approaches to corruption-free administration is to empower civil society to ensure that transparency and accountability become the norm for governance. India is such a vast country that corruption-free governance cannot be established purely by relying upon the various investigative agencies and institutions. Civil society, including the media, has to be involved in a significant manner to ensure that corruption-free governance does not remain merely a policy goal or an institutional aspiration. Civil society is best suited to perform this role as it can devote itself to ensuring that the decisions of the government are made in a transparent and socially accountable manner. Further, civil society in India is part of the vibrant democratic set-up and is able to be involved in both rural and urban India at the grassroots levels. The problem of most human rights commitments has been the existence of a gap between theory and practice: policy and reality. Corruption-free governance should be part of civil society activism so that the people are empowered to seek transparency and accountability from decision-makers. Prashant Bhushan, a Senior Advocate of the Supreme Court of India, has observed: "…a corruption free society must have a) strong and adequate laws such as Anticorruption Acts, Right to information law, and laws to protect whistle blowers; b) Strong, independent, and properly functioning institutions to enforce accountability and criminal justice such as investigative agencies, vigilance commissions, and the judiciary; and c) an organised and vigilant civil society which monitors the conduct of public officials and exposes corrupt ones… Ultimately, it is only a powerful civil society movement, which can break the vicious cycle of corruption in any society."(xxxi)
It needs to be noted that the right to information is a powerful tool for formulating the right to corruption-free governance. The right to information is the first step in checking governmental corruption, as the people of India ought to be empowered by the availability of information on the decisions taken by the government that affect their lives. Commenting upon the relevance of the right to information for the control of corruption, Harsh Mander and Abha Joshi have observed: "the right to information is expected to improve the quality of decision making by public authorities, in both policy and administrative matters, by removing unnecessary secrecy surrounding the decision-making process…The cumulative impact on control of corruption and the arbitrary exercise of power, of the availability of such information to the citizen, would be momentous."(xxxii)
The constitutional foundation of the right to information rests on Part III of the Constitution of India, dealing with fundamental rights. Even though there is no specific right to information or for that matter right to freedom of the press as such in the Constitution, the right to information has been creatively interpreted and read into the Constitution by the judiciary.(xxxiii) The Constitution has a sound framework for protecting human rights in the form of the right to equal protection of laws and the right to equality before the law (Article 14), the right to freedom of speech and expression (Article 19(1)(a)) and the right to life and liberty (Article 21). This is further supported by the right to constitutional remedies provided in Article 32, which is the right to approach the High Courts and the Supreme Court through their writ jurisdiction for remedies in cases of violation of these rights.
The various efforts to curb corruption at all levels of governmental decision-making have acquired the form of efforts to promote transparency and enforce accountability through developing the right to information at the state and central levels. It initially started with the work of a grassroots mass-based organisation, known as the Mazdoor Kisan Shakti Sangathan (Labour Farmer Strength Organization-MKSS), in the state of Rajasthan. The origin of MKSS was so nondescript that it did not invite much attention. Members of the MKSS walked from village to village asking simple questions: Did the people know the amount of funds that was coming to their village for development? How was the money that came from different sources actually spent? Although these questions were simple, the poor and impoverished of India had never dared to ask.(xxxiv)
When this information was collected, the MKSS went to the Government Block Office, which is the authority that administers development funding in about 100 villages, with a request to provide detailed information on development expenditure.(xxxv) In response, they were told that there was no government rule that would allow villagers to demand such information and receive it.(xxxvi) This culminated in the MKSS launching a people’s campaign in the state of Rajasthan. The aim of the campaign was to conduct numerous public hearings in which cases of corruption and misappropriation of public funds were shared with a lot of people.(xxxvii)
Aruna Roy of the MKSS has observed that the right to information in Rajasthan was aimed at ending the arbitrary use of power.(xxxviii) The campaign of MKSS had focused on demanding transparency of official records, a social audit of government spending and redressal machinery for people who had not been given their due.(xxxix) The result of this powerful, mass-based, grass-roots civil society activism in the form of social struggle resulted in the state of Rajasthan passing a law on the right to information, which has in turn created an environment in which corruption is tolerated less and accountability of the government officials is enforced.(xl) The MKSS movement to seek the right to information came about due to large-scale, rampant embezzlement of public funds. The consequences of these corrupt actions were ‘non-employment of, or under-payment to, the local workforce, and non-existent or bad quality assets on the ground, which were meant for education, housing, or health facilities for the rural poor.(xli) The linkage between the human rights violations on account of institutionalised corruption and the lack of transparency and accountability(xlii) in governance led the MKSS to establish a ‘connection between the manipulation of official records and denial of life opportunities to the rural poor’.(xliii) This resulted in the movement to seek the right to access to official records as a part of the right to life and livelihood.(xliv) This civil society activism was followed by a nationwide movement to seek national legislation on freedom of information stemming from the work of the MKSS in Rajasthan. The important link between lack of transparency, absence of accountability, and institutionalised corruption gave the social and political impetus to seek the formulation of the right to information.(xlv)
The relevance of the right to information(xlvi) in India is much more than allowing the free flow of information from the government to the public. It is about people exercising their right to seek necessary information from the government so that the government and its representatives are held accountable to the public. The right to information ensures that governmental decisions are made in a transparent manner and that the people have the right to be informed of decisions that affect them. Interestingly, the right to know, ‘receive, and impart information has been recognised within the right to freedom of speech and expression(xlvii) under Article 19(1)(a) of the Constitution.(xlviii) The right to information law has now been enacted in a few states in India, including Rajasthan, Madhya Pradesh, Maharashtra, Goa, Tamil Nadu, Karnataka, Delhi, and Andhra Pradesh.(xlix) The Freedom of Information Bill, 2002 was passed by the Lok Sabha (lower house of the Indian parliament) on 3 December 2002 and by the Rajya Sabha (upper house of the Indian parliament) on 16 December 2002.(l) Further, for ensuring greater and more effective access to information, the Government of India resolved that the Freedom of Information Act, 2002 be made more progressive, participatory, and meaningful.(li) This was done after the proposals by the National Advisory Council suggested a number of changes. To facilitate these changes, the government decided to repeal the Freedom of Information Act, 2002 and adopted a new legislation, namely, The Right to Information Act, 2005 (Act No. 22 of 2005).(lii) This was published in the Gazette of India (Extraordinary) Part II—Section I, on 21 June 2005, and the Act received the assent of the President on 15 June 2005.(liii) The preamble to The Right to Information Act, 2005 notes: ‘An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected herewith or incidental thereto….’(liv) Noting the specific issue of corruption, the Preamble to the Act states, ‘…And whereas democracy requires an informed citizen and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed….’(lv)
Various departments, including some of those notorious for rampant corruption (such as the Delhi Development Authority), have created information supplying mechanisms. These legislative and administrative successes owe their impetus, drive, and culmination to civil society activism.
X. The Way Forward
The empire of corruption has done seminal damage to good governance and the rule of law in South Asia. Corruption is discriminatory, an assault on the human rights of people, and should be regarded as more than merely a criminal offence. We must view corruption from the angle of human rights so that public institutions can be held accountable for abuse of power. We must encourage institutions like the NHRCs to begin taking cognisance of corruption cases to raise the profile of this linkage with human rights. We must also evolve a new language including the right to corruption-free governance as a fundamental and non-derogable human right so that the ideal of constitutional governance is upheld. There are various ways and means by which the judiciary can step in to correct the malaise of corruption in the light of inaction or apathy by the legislative and executive branches of the state. Corruption within the judiciary, mainly at the lower levels, ought to be an important target for elimination. Anticorruption work must involve grassroots civil society organisations on the lines of the MKSS in India that succeeded in getting a law enacted for the people’s right to information. Since corruption is a disempowering force, the most effective way to root it out is through empowerment of citizens both through popular self-initiative and through institutional mechanisms that exist in the legal system. A holistic war against corruption through legal and social action has been long overdue in South Asia. Until such a movement comes about, corruption would continue to eat into the socioeconomic development of countries in South Asia and take a heavy human toll.
I have argued in this paper in favour of a humanistic and liberal reinterpretation of ‘sovereignty’ in the wake of new thinking and new developments in world affairs. Sovereignty exercised as untrammelled power and irresponsibility of ruling classes to exploit and to dis-empower the citizens is an anachronistic idea that sadly prevails in countries in South Asia. Sovereignty exercised as the responsibility of the governing with human development as the end is the wave of the future that sadly has not yet gained prevalence in South Asia. Despite this ideal-reality paradox, the realisation that corruption ultimately hurts the state and its legitimacy is bound to dawn upon the majority of states that are pursuing short-sighted agendas.
The way forward is to spread the notions of responsibility and accountability as imperatives for strengthening, not weakening, sovereignty simultaneous to large-scale efforts of increasing the say of civil society in governance issues. A corruption-free state enhances its chances of perpetuation, reduces possibilities of unwarranted external interference, and raises its international stature. A non-discriminated, content and well-governed population confers internal stability – a key requisite for projecting power externally. Roping local civil society into this endeavour, in tandem with non-politicised international interventions, will produce a win-win situation.
It is possible for the countries in South Asia to succeed in the fight against corruption to ensure that transparency in governance becomes the basis for the development of the country. But for this to happen, there is a need for a wide variety of actors playing important roles as discussed in this report with a view to eliminating corruption from the society. The whistleblower protection laws that exist in a few countries will provide a useful framework for other countries in South Asia to demonstrate their commitment to ensure corruption-free governance. But there is also a need to examine the working of a number of institutions in South Asia and close partnerships with governmental institutions, non-governmental organisations and the civil society for the fight against corruption to succeed. No doubt, this is a long and arduous struggle, but the struggle is worth it as along the way many human rights will be protected and promotes and many people will be empowered.
* Assistant Professor and Juris Doctor Programme Leader, School of Law, City University of Hong Kong, Hong Kong, China. He was a Holding Redlich Distinguished Visiting Fellow, Castan Centre for Human Rights Law, Monash University in 2006. He can be reached at email@example.com
** Paper presented on 1 December 2006 at Human Rights 2006: The Year in Review Conference organized by the Castan Centre for Human Rights Law, Monash University, Melbourne, Australia. This article grew out of two previous publications of mine and a number of sections are drawn from my past research: Corruption and its Impact on Human Rights and the Rule of Law: Governance Perspectives", (January 2007), Human Rights, Justice and Constitutional Empowerment, pp. 153-182, OXFORD UNIVERSITY PRESS (OUP), 520 pages; and "Corruption and Human Rights: Promoting Transparency in Governance and the Fundamental Right to Corruption-Free Service in India", Fall 2003, Volume 17, No.1, COLUMBIA JOURNAL OF ASIAN LAW, pp.31-72.
(i) International Covenant on Civil and Political Rights, 1966.
(ii) Article 14 of the Constitution of India says, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
(iii) Article 12 (1) of the Constitution of the Democratic Socialist Republic of Sri Lanka says, "All persons are equal before the law and are entitled to the equal protection of the law…"
(iv) Article 27 of the Constitution of the People’s Republic of Bangladesh says, "All citizens are equal before law and are entitled to equal protection of law."
(v) Article 25(1) of the Constitution of the Islamic Republic of Pakistan says, "All citizens are equal before law and are entitled to equal protection of law…"
(vi) Daniel Kaufmann, Back to Basics—10 Myths About Governance and Corruption, Finance & Development (A Quarterly Magazine of the IMF), September 2005, Volume 42, Number 3.
Web: http://www.imf.org/external/pubs/ft/fandd/2005/09/basics.htm (last visited 5 February 2007)
(vii) "2006 Corruption Perceptions Index reinforces link between poverty and corruption", Press Release.
Web: http://www.transparency.org/news_room/in_focus/cpi_2006#pr (last visited 5 February 2007).
(ix) C. Raj Kumar, "Corruption, Human Rights, and Development: Sovereignty and State Capacity to Promote Good Governance", 99 Am. Soc'y Int'l L. Proc. 416.
(x) Governance: A Participatory, Action-Oriented Program, Program Brief Document 2001, World Bank Institute. Web: http://info.worldbank.org/etools/docs/library/205639/fy02_brief.pdf (last visited 5 February 2007)
(xi) This section is drawn from a previous work, C. Raj Kumar, "Corruption and its Impact on Human Rights and the Rule of Law: Governance Perspective", HUMAN RIGHTS, JUSTICE AND CONSTITUTIONAL EMPOWERMENT (eds. C. Raj Kumar and K. Chockalingam), Oxford University Press (2007).
(xii) See generally, C. Raj Kumar, ‘National Human Rights Institutions—Good Governance Perspectives on Institutionalization of Human Rights’, American University International Law Review, Vol. 19, No. 2, 2003, pp. 259–300.
(xiii) See generally, C. Raj Kumar, ‘Role and Contribution of National Human Rights Commissions in Promoting National and International Human Rights Norms in the National Context’, Indian Journal of Public Administration (IJPA), Vol. XLVII, No. 2, April–June 2001, pp. 222–36.
(xiv) Important Statements/Decisions/Opinions of the Commission, Journal of the NHRC, Vol. 2, 2003, pp. 148–75.
(xv) The initial part of this section is drawn from an earlier work, C. Raj Kumar, "Corruption, Human Rights, and Development: Sovereignty and State Capacity to Promote Good Governance", 99 Am. Soc'y Int'l L. Proc. 416.
(xvi) Government of India Resolution No. 89, Gazette of India, Part I Section I, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), New Delhi, the 21st April 2004 (as corrected by the corrigendum of 29th April 2004), Smt. Manjula Gautam, Additional Secretary, Government of India.
(xx) Chris Wheeler, "Drafting and Implementing Whistleblower Protection Laws", in Controlling Corruption in Asia and the Pacific, ADB/OECD Anti-Corruption Initiative for Asia and the Pacific.
(xxi) This section is drawn from a previous work, C. Raj Kumar, "Corruption and its Impact on Human Rights and the Rule of Law: Governance Perspective", HUMAN RIGHTS, JUSTICE AND CONSTITUTIONAL EMPOWERMENT (eds. C. Raj Kumar and K. Chockalingam), Oxford University Press (2007).
(xxii) Parts of this section are drawn from a previous work, C. Raj Kumar, "Corruption and Human Rights: Promoting Transparency in Governance and the Fundamental Right to Corruption-Free Service", 17 Colum. J. Asian L. 31.
(xxiii) Henry Steiner and Philip Alston, International Human Rights in Context (Oxford University Press 2d ed., 2000).
(xxiv) International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966,art. 26, 999 U.N.T.S. 171.
(xxv) Comment, Committee on Economic, Social and Cultural Rights, No.3 (1990) UN Doc.E/1991/23, Annex III.
(xxvi) International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, article 26, 999 U.N.T.S. 171, article 19.
(xxvii) "Article 19, What you don't know can hurt you".
Web: http://www.indiatogether.org/stories/art19.htm (last visited 5 February 2007).
(xxviii) For understanding the impact of corruption on development, see Cheryl W. Gray & Daniel Kaufmann, Corruption and Development, Finance & Development, March 1998.
(xxix) This section is drawn from a previous work, C. Raj Kumar, "Corruption and its Impact on Human Rights and the Rule of Law: Governance Perspective", HUMAN RIGHTS, JUSTICE AND CONSTITUTIONAL EMPOWERMENT (eds. C. Raj Kumar and K. Chockalingam), Oxford University Press (2007).
(xxx) See generally, Sunil Sodhi, ‘Combating Corruption in India—The Role of Civil Society’, paper prepared for the XVIII World Congress of International Political Science Association, 1–5 August 2000, Quebec City.
(xxxi) Prashant Bhushan, ‘Fighting Corruption: The Critical Role of Civil Society’.
Web: http://www.unodc.org/pdf/crime/corruption/merida_e.pdf (last visited 5 February 2007).
(xxxii) Harsh Mander and Abha Joshi, ‘The Movement for Right to Information in India—People’s Power for the Control of Corruption’, Commonwealth Human Rights Initiative (CHRI), New Delhi.
(xxxiii) See Granville Austin, The Indian Constitution—Cornerstone of a Nation, Oxford University Press, New Delhi (1966). See also, Granville Austin, Working a Democratic Constitution—The Indian Experience, Oxford University Press, New Delhi (1999).
(xxxiv) Bunker Roy, ‘The Power of Information—A Grassroots Organization in India Defeats Corruption’, D+C Development and Cooperation, Deutsche Stiftung fur internationale Entwicklung (DSE), Frankfurt.
Web: http://www.dse.de/zeitschr/de202-11.htm (last visited 5 February 2007).
(xxxviii) Kalpana Sharma, ‘Right to Information will check Corruption’, The Hindu, 24 February 2002, National Page.
Web: http://www.hinduonnet.com/2002/02/24/stories/2002022400251200.htm (last visited 5 February 2007).
(xlii) For further reading, see Karnataka Working Group’s 2002 Report, ‘Improving Accountability in Panchayati Raj’ (2003).
Web: http://www.indiatogether.org/2003/jan/govkarpri02.htm (last visited 5 February 2007).
See also, Prashant Bhushan, ‘India Approves Freedom of Information Law—The Freedom of Information Bill 2002’, National Campaign for the People’s Right to Information, December 2002.
Web: http://www.freedominfo.org/news/india/ (last visited 5 February 2007);
Neelabh Mishra, ‘A Battle Half Won’, Combat Law, Issue 6, India Together.
Web: http://www.indiatogether.org/bin/pfriend/cgi (last visited 5 February 2007).
(xlv) For further reading, see Karnataka Working Group’s 2002 Report, ‘Reinventing Rural Governance’, January 2003.
Web: http://www.indiatogether.org/2003/jan/govkarpri01.htm (last visited 5 February 2007).
(xlvi) Bela Bhatia and Jean Dreze, ‘Freedom of Information is Key to Anti-Corruption Campaign in Rural India’ (1998),
Web: http://www.transparency.org/working_papers/bhatia-dreze/bhatia-dreze.html (last visited 5 February 2007).
(xlvii) S.P. Gupta v. Union of India AIR 1982 SC 149 at 234; Secretary, Ministry of I&B, Government of India v. Cricket Association of Bengal (1995) 2 SCC 161.
(xlviii) Mahendra P. Singh, Constitution of India, V.N Shukla (ed.), Eastern Book Company, 10th edn. 2001 & Supp. 2003.
(xlix) Prashant Bhushan, ‘India Approves Freedom of Information Law—The Freedom of Information Bill 2002’ (2002).
Web: http:// www.freedominfo.org/news/india/ (last visited 5 February 2007).
(l) Neelabh Mishra, ‘A Battle Half Won’.
Web: http://www.indiatogether.org/bin/pfriend/cgi (last visited 5 February 2007).
(li) Shalu Nigam, Right to Information Law and Practice, JBA Publishers, 2006, p. 155.
(liii) Ibid, p. 156.
(liv) Preamble of The Right to Information Act, 2005.