The year 2010 was rocked by a series of mega scams and scandals. Now Union environment minister Jairam Ramesh has ordered the demolition of the 31-storey Adarsh cooperative housing society building in Mumbai terming it as ‘unauthorised.’ The minister discounted the other options of the government takeover of the building or demolition of that part of the structure in excess of the prescribed FSI (floor space index) because the first option would have bequeathed ‘substantial discretionary power’ to the government while the second option would have been tantamount to ‘regularising or condoning’ violations of the Coastal Regulation Zone (CRZ) Notification, 1991.

Discretion in the hands of unscrupulous people, doubtless, leads to corruption and nepotism. Sonia Gandhi also advocated for dispensing with the government’s discretionary powers to allocate land, which she described as the top source of corruption, while addressing the 83rd plenary session of the Congress.

Though nearly 20,000 Congress delegates were boisterous in their applause for each paragraph of the party president’s speech, none clapped when she admonished chief ministers and ministers to give up their discretionary powers. She was herself amazed at the lukewarm response and muttered with a wry smile, “No clapping for this”.

Abuse of discretion is the biggest source of corruption. The germ of corruption crept inside the belly of the body politic right after the country gained independence. The reports of A D Gorwala and Paul Appleby in early 1950s and 60s exclusively focused on administrative reforms. In 1950, Gorwala, an eminent civil servant, was asked by the government to recommend measures to improve the system of governance.

In his report submitted in 1951, he made two scathing observations that quite a few of Nehru’s ministers were corrupt and this was common knowledge, and that the government went out of its way to shield its ministers.

The history of corruption in post-independence India starts with the jeep scandal in 1948 when a transaction concerning purchase of 155 jeeps costing Rs 80 lakh was entered into by V K Krishna Menon, the then High Commissioner for India in London, with a foreign firm without observing normal procedure. The Indian army had placed orders for theses jeeps which were to be used in then troubled Hyderabad and Kashmir regions. The army had placed the services of a brigadier but Krishna Menon bypassed him and outsourced through an agent, Cleminsan.

LIC-Mundhra deal is the first financial scandal of independent India. With his clout, Haridas Mundhra, a Kolkata-based industrialist and stock speculator, got the LIC to invest Rs 1.24 crore in the shares of his six troubled companies. The investment was done under governmental pressure bypassing the LIC’s investment committee which was informed of the deal only after it had been struck. Then Congress MP Feroze Gandhi exposed the irregularity.

Speedy action

The government set up a one-man committee of Justice M C Chagla which submitted the report within a record 24 days. It held then finance minister T T Krishnamachari constitutionally responsible. TTK resigned and Mundhra was sentenced to jail. The committee recommended trial of then finance secretary H M patel and LIC official L S Vaidyanathan for suspected collusion. However, the unfortunate incident led to the setting up of the statutory Central Vigilance Commission to act as watchdog on corruption.

After this, there have been countless scams and scandals, but the top investigating agency, the Central Bureau of Investigation, has failed to stem the rot and get the culprits convicted as it is used for political ends by the powers that be. India has a poor record of prosecuting people for corruption. More than 9,000 cases filed by the CBI are pending in various courts and over 2,000 of them are pending for more than a decade. The conviction rate is an abysmal 40 per cent which is one of the lowest in the world.
Secondly, the ‘single directive’ which requires that sanctions of the appointing authority must be obtained before prosecuting the officers of the rank of joint secretary and above is another blatant and discriminatory provision which must be scrapped. In fact, the supreme court struck it down in Vineet Narain case, but the government brought it back through the rear door again. It again gives discretion which is abused. This is a discriminatory provision which violates the right to equality guaranteed by Article 14 of the constitution.

The National Commission to Review the Working of the Constitution recommended autonomous personal boards for advising the political executive in matters of placement, promotions, and transfers. It further recommended legally instituted accountability of public servants for their mala fide acts of omission and commission and their liability to pay damages.

Further, the definition of ‘corruption’ has to be widened as interpreted by the supreme court in Dr S Dutt vs State of UP where the court said, “The word ‘corrupt’ does not necessarily include the element of bribe taking. It is used in a much larger sense as denoting conduct which is morally unsound or debased.”

The word ‘corrupt’ has been judicially construed in several cases, notably, in Bibkhranjan Gupta vs The King, Justice Sen dealt at length with this word. He was contrasting section 196 with section 471 and observed that the word ‘corruptly’ was not synonymous with dishonestly or fraudulently but was much wider.