CORRUPTION AS A CHALLENGE TO FAIR JUSTICE ADMINISTRATION by ARYAN BABELE

The protection of rule of law is an essential practice for any progressive society. Importance of rule of law comes into light only when there is access to justice even for vulnerable people and when they are not left behind as aggrieved victim. In India, ‘Access to Justice’ is a constitutionally enshrined fundamental right, but in absence of proper check on justice system and its instruments violations are sporadic due to a certain influence in administration. This influence is a reason for India’s problem of institutionalized corruption across all departments of the justice administration in India.[1] Protection of rule of law includes determined legal system that revert back problems and grieves in a fair, non discriminatory and efficient manner. But violations of law happen every day and rule of powerful people, be it bureaucrats, businesspersons etc, is able to overcome justice administration due to corruption. This is a strong reason of political influence which undermines the objective of criminal and constitutional justice system and all judicial processes.

The impact of corruption on rule of law and justice administration can be understood by chain of cause and effect relationship. First there is a cause that there is an extensive disregard for the law and the justice administration i.e. a lack of respect for justice functions which is rule of law. Therefore the effect of such an exercise results in abuse of discretion i.e. discretion becomes open to arbitrariness as laws and legal institutions are manipulated through institutionalized corruption which makes rule of law completely dysfunctional. Corruption becomes a tool for promoting disregard to the rule of law as it provides a medium to abuse of administrative discretion. As fair and non discriminatory administrative discretion is the chassis or the basic principle of rule of law.[2] Therefore it is important that constitutional and institutional procedure must be reformed such that to ensure that rule of law is in accordance with promotion of respect for law among the citizenry and the administration.

There are constant violations of law, creating vicious cycle of bribery and influence inducing skeptical public attitude towards justice administration. The main reason of such a corruption prevails in India is the political influence. This influence plays the part of catalyst in accentuating problems of politicization of crime. As corrupt acts are primarily violations of law, they have serious implications for the protection of the rule of law.[3] Therefore there is a need to induce the obedience for law in people, and Laos is the best example in Asia where a strong judicial system had been able to inspire the confidence in people by enforcing corruption-free measured to promote the good governance.[4] Even in Indian context, the Vohra Committee Report, suggested:

“A network of mafias is virtually running a parallel Government pushing the state apparatus into irrelevance.., there has been a rapid spread and growth of criminal gangs, armed senas, drug mafias, smuggling gangs, and economic lobbies in the country, which have over the years developed an intensive network of contacts with bureaucrats, government functionaries at local level, politicians, media persons, and strategically located individuals in non-state sector.”[5]

For such a strong justice system it is important to take in the consideration problems where corruption strikes. The following are forms of corruption negatively impacting on the justice administration.

(i) Abuse of Discretion in the Process of Justice Administration

Bribery seems inevitable in administration’s decision in India, as former Chief Justice of India P. Sathasivam said.[6] The state’s instruments are continuously abusing their decisions and blocking the fair and non discriminatory justice for vulnerable people which are not able to afford such powerful influence. Therefore bribery is an influence of powerful people which induces arbitrariness infused into the decision-making process of state’s institutions. India doesn’t have any specific statute on government procurement but the Constitution of India provides objective good governance i.e. Article 14. Since, Article 14 is much concerned about equality of law and its protection on classification basis so the government procurement is an area of governance where arbitrariness leads to abuse of discretion on account of corruption. Consequently, its impact is the loss of faith of victims in the criminal justice system. Therefore there is an urgent need of reforms in study of government procurement. A number of corruption ridden third world countries have taken steps to address this. In recent areas, Korea has taken on a number of initiatives to reform the government procurement process. It may be noted government procurement in Korea is worth USD83 billion a year.[7]

(ii) Discriminatory Justice Administration opposes the Rule of Law

Bribing influences administration’s decisions in favor of bribe givers and the people who do not give bribes they consequently in an unfair manner become victimized due to arbitrary justice administration undermining the rule of law. This victimization of people who do not give bribes is extremely discriminatory and undermines the rule of law on the basis of which all democratic societies are governed. Discrimination in administration due to bribery and other forms of corruption promotes a sense of frustration and helplessness among the victimized as there are no effective mechanisms for redress.[8] Victimization prominently exists in poor class of the people, and its vicious circle spares the people which capacity to bribe. This creates a gap of discrimination between poor people which become victimized and rich people which escapes the shackles of strict justice by giving bribes. Therefore corruption is one of the main reasons of discrimination in justice administration.

(iii) Abuse of Discretion undermines the Rule of Law

It is a fact in despair that most people of third world countries are ignorant of their rights; therefore abuse of discretion in these countries by so called fair justice administration is possible serendipitously. Notwithstanding the fact that legislative reforms like The Lokpal Act have reduced the traditional arbitrariness of administrative discretion but each government of different times managed to create a loophole in these reforms and kept the sole authority of exercising discretion. This discretion which is still there in the mechanism of government functioning provided government officials to give arbitrary decision and favor a party in a bias manner in justice administration. This abuse of discretion is a root of the plant known as corruption. Corruption takes place on the account of abuse of discretion by administrations. There is a need to infuse transparency and accountability that will lead to non discriminatory and fair decisions. It is a necessity for every third world country like India to create accountable structures for justice administrations, particularly regarding their discretions. Further, decision making powers to one authority or authorities from same background should be limited if not altogether eliminated.

(iv) Determined Law Enforcement promotes Fair Justice Administration

In India, the department of justice is a lot of uncertainties and arbitrariness in law enforcement with regard to anti corruption laws. Investigation, Prosecution and Conviction of officials in anti corruption cases is done on the basis of high level grounds which are never possible to prove due to institutionalized corruption across all departments. Criminal Justice System seems working on ventilators when we talk about anti corruption cases. Inefficiency and lack of interest in criminal justice system with regards to corruption so in total disdain right now. John Quah has observed that the low risk of detection and punishment of acts of corruption in Asia is one of the causes for rampant corruption.[9] Therefore there are still chances to create better reforms by creating a special anti-corruption cell by appointing members from different backgrounds in toto and with regulation of appointees on regular basis because the lack of institutional autonomy and haphazard manner in which different agencies are main reason of corruption affecting rule of law.

Conclusion

Corruption is a discriminatory, unfair and criminal offence with regards to human rights of people. It blockades the process of achieving an effective justice administration and undermines the rule of law. It has done seminal damage to justice and human rights so that administration must be held accountable now for abuse of power. There are so many ways and means which in unity can help in an effective justice administration throughout India and prevent victimization. It is a necessity that corruption must be eliminated at roots only that is lower level of judiciary. Since corruption is disempowering force, the most effective way to root it out is through the empowerment of citizens both through popular self initiative and through institutional mechanisms that exist in the legal system. There is a need of movement of socioeconomic development of India, and the way ahead is to spread the notion of responsibility and accountability as imperatives.

Establishing a rule of law ensures low levels of corruption in justice administration. The relationship between justice administrations is directly proportional to rule of law i.e. accountability and fairness in discretion of administration. The success of Singapore and Hong Kong in substantially eliminating corruption is a useful case in point for countries like India to examine the need for ensuring independent institutions that fight corruption.[10]

“Success occurs where three conditions are met: comprehensive anticorruption legislation is enacted; an independent anticorruption agency is provided with sufficient personnel and resources; and the independent agency fairly enforces the anticorruption laws.”

 

[1] Elodie Beth, Corruption remains a major stumbling block for justice sector reforms: UNDP, UNDP (JAN 25, 2017 at 10:15 AM), http://www.in.undp.org/content/india/en/home/presscenter/pressreleases/2016/04/08/corruption-remains-a-major-stumbling-block-for-justice-sector-reforms-undp.html.

[2] Pekelis, Alexander H., Administrative Discretion and the Rule of Law, Vol. 10 Social Research, 22–37 (1943).

[3] Christopher Jaffrelot, Indian Democracy: The Rule of Law on Trial, 1 INDIAN REV. 17 (2002).

[4] Patrick Keuleers, UN Nations Development Programme Sub Regional Resource Facility for the Pacific, Northeast and Southeast Asia, Corruption in the Laos: Underlying Causes and Key Issues for Consideration, UNDP (JAN 25, 2017 at 1:30 PM), http://www.amanpalestine.org/English/documents/official/laos.pdf.

[5] R. Upadhyay, South Asia analysis group, politcal corruption in India: Analysis (2001), http://www. southasiaanalysis.org/papers3/paper219.htm (last visited Mar. 13, 2008).

[6] J Venkatesan, ‘Judiciary not untouched by corruption’, The Hindu, June 07, 2016 at 11.

[7] ADB/OECD, Curbing Corruption in Public Procurement in Asia and The Pacific: Progress and Challenges in 25 Countries, 69 (2009), http://www.adb.org/document/books/public-procurement-asia-pacific/public-procurement pdf.

[8] C. Raj Kumar, Corruption, Development and Good Governance: Challenges for promoting access to justice in Asia, 16 Mich. St. J.Int’l L., 475 (2007-2008)

[9] Jon S.T. Quah, Curbing Asian Corruption: An Impossible Dream, CURRENT HIST., Apr. 2006, at 176, available at http://iisdb.stanford.edu/pubs/21128/ Corruptionarticlejin_CH.pdf.

[10] Id.

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