C. Raj Kumar , 30 May 2006, The Hindu
ON MAY 9-10, 2006, the National Human Rights Commission organised a conference on "Effects of Corruption on Good Governance and Human Rights" in New Delhi. This was the first time the NHRC examined the issue of corruption from a human rights standpoint. The gravity of human rights violations resulting from corrupt practices is no less than that of custodial violence or any other form of violation of civil, political, economic, social, and cultural rights. The most fundamental question the conference posed that needs to be addressed is: how can the NHRC operationalise the right to corruption-free governance with a view to protecting and promoting human rights in general?
Human rights have traditionally been understood to be rights relating to life, liberty, equality, and dignity. In the Indian context, Section 2(d) of the Protection of Human Rights Act, 1993, has defined "human rights" to mean, "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India." The preamble to The Right to Information Act, 2005, notes the specific issue of corruption: "… 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…" Further, human rights in India have also been given a strong constitutional foundation and have developed through innovative judicial interventions over more than five decades.
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 government. It is important that institutions like the NHRC provide a framework to take up cases of corrupt acts of individuals and institutions that result in human rights violations 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 is useful to examine how many of the various cases that come before the NHRC are due to some act of bribery or other forms of corruption. Further, the NHRC's research division may consider supporting studies on 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 due to the institutionalisation of human rights in India — through the setting up of the NHRC and State Human Rights Commissions — is that they have come to occupy a certain democratic space within the domestic political discourse. However, the existence of democratic institutions does not necessarily mean human rights violations do not occur or that their incidence is reduced. What it means is that there are institutional mechanisms available for victims to seek justice. 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 impartiality and independence. Of course, its powers are limited and its opinions on human rights issues are recommendations, though they carry a lot of legitimacy and persuasiveness because of the composition of the Commission.
The law enforcement agencies that are engaged in the task of anti-corruption work (such as the Central Vigilance Commission, the Central Bureau of Investigation, the Enforcement Directorate, etc.) would be truly empowered if institutions like the NHRC take cognisance of cases relating to corruption when it involves 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.
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 the leading anti-corruption agencies, which are most of the time on the "other side" when it comes to its work relating to human rights. However, this institutional engagement must be a facet of good governance. For, if the NHRC has to take a proactive role in promoting good governance policies, it has to understand the problem of corruption from a criminal law enforcement perspective as well.
Having recognised that corruption affects human rights and the rule of law, it is important for the NHRC to develop the right to corruption-free governance through a number of rights-based strategies in India. 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." The people will have 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 right.
A conceptual basis is essential for the NHRC to formulate various effective anti-corruption measures. Its role in protecting human rights by evolving rights-based approaches to development will help in eliminating corruption and promoting integrity and good governance in the following specific ways:
a) Corruption-free constitutional governance. The recognition of the right to corruption-free governance by the NHRC has the potential to bring the problem of corruption to the centre of the 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 Indian citizenry. This would require governance to be based upon the underlying ideals, goals, objectives, aspirations, and values of the Constitution. Unfortunately, corruption has undermined all these constitutional values. All individuals and institutions within the government would be expected to take the necessary steps to fulfil this fundamental right.
b) Empowering the judiciary and other institutions. The recognition of the right to corruption-free governance will quickly empower the judiciary to bring forward the integration of the anti-corruption discourse and the 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 in investigative agencies engaged in anti-corruption work. With the development of such a human right by the NHRC, the judiciary is in a far better position to develop jurisprudence relating to good governance.
c) Galvanising social consciousness. The development of the human right to corruption-free governance will help in galvanising social consciousness on issues relating to bribery and other forms of corruption. It is necessary for the NHRC to garner the support of the citizens, as it is their apathy and indifference to abuse of power that has resulted in corruption becoming institutionalised 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 on corrupt activity.
d) Revamping the mandate of the NHRC. There is a need for the NHRC to revamp its mandate in the light of massive institutionalised corruption that has not left any institution in India untouched. The fact of the matter is that all human rights are violated due to corruption. The Protection of Human Rights Act, 1993, in the first para notes that it is "An Act to provide for the constitution of a National Human Rights Commission … for better protection of Human Rights and for matters connected therewith or incidental thereto."
The NHRC must ensure that its investigations make due note that corruption is the root cause of potential violations of human rights. In this regard, the NHRC may have to work in cooperation with anti-corruption agencies like the Central Vigilance Commission. The purpose of the NHRC's new initiatives should be to ensure protection of human rights and promotion of corruption-free administration as a sine qua non for good governance.