Synopsis

Topic :- Challenges of corruption and Good Governance: A Human Rights Perspective

Submitted by

Rahul kumar

20llmlaw09

Under the supervision of :

Assistant professor

Department of law

School of legal studies

Introduction

Corruption is a severe issue in India, with serious ramifications for both the rule of law and access to
justice. Corruption is ubiquitous in India's governance structure, compromising the efficacy of all
government institutions. Since independence, successive administrations have worked to lower
corruption levels in the nation through a variety of legal and institutional means. However, due to a
lack of political will and sincerity in taking meaningful actions to combat corruption, most of these
initiatives have failed to produce the desired outcomes.

Corruption in India isn't only a law enforcement problem where the state's current laws are broken
and can be fixed simply by enforcing them more strictly. Rather, corruption in India is a far deeper
issue that threatens the country's social foundation, as well as its political and bureaucratic
structures. While it is vital to strengthen the law enforcement apparatus, the greater issue with
corruption in India is how it violates human rights — particularly constitutional rights — granted by
the Indian Constitution. Furthermore, corruption in India breaches the fundamental pillars of Indian
democracy, which were intended to build a rule of law society in India. The promises made by the
Indian Constitution's authors, however, have been shattered over time by a scourge of corruption in
every institution. This has resulted in a smudge on the government's face from top to bottom.

In India, the current anti-corruption framework places much too much emphasis on the criminal
justice system for dealing with corruption – a system that is in crisis owing to corruption and other
issues. As a result, combatting corruption is equally critical for rebuilding public confidence in India's
criminal justice system. However, legislative constraints on corruption should place a greater
emphasis on promoting openness and accountability in government. The cornerstone for legislative
and institutional reforms to combat corruption must be citizen empowerment. In general, the
measures that have been attempted in this area thus far have failed.

However, given its good consequences, the growth of the right to information in India with the goals
of empowering Indian individuals and guaranteeing transparency is worth emphasising. A critical
examination of the right to information law and the operations of the Central Information
Commission ("CIC") and State Information Commissions ("SICs") reveals that these organisations are
new in India, carving out their own political space with the power to promote transparency and
accountability and enforce the right to information. However, the establishment of an independent
anti-corruption commission in India is urgently required in order to offer a stronger and more
effective legal and institutional framework for combating corruption.

The term "governance" is not a new one. It predates human civilisation. Simply simply, "governance"
refers to the process of making decisions and putting those decisions into action (or not
implemented). Corporate governance, international governance, national governance, and municipal
governance are all examples of governance.

There are eight key qualities of good governance. It is participatory, consensus oriented,
accountable, transparent, responsive, effective and efficient, equitable, and inclusive and it adheres
to the rule of law. It ensures that corruption is minimised, minorities' perspectives are considered,
and the voices of society's most vulnerable are heard in decision-making. It is also relevant to
society's current and future requirements.

Human rights are rights that we have simply because we are human beings; no state grants them.
Regardless of nationality, sex, national or ethnic origin, colour, religion, language, or any other
status, we all have these universal rights. They extend from the most basic - the right to live -
through the rights to food, education, job, health, and liberty, which make life worthwhile.
The Universal Declaration of Human Rights (UDHR), adopted by the UN General
Assembly in 1948, was the first legal document to set out the fundamental human rights to
be universally protected. The UDHR, which turned 70 in 2018, continues to be the foundation
of all international human rights law. Its 30 articles provide the principles and building blocks
of current and future human rights conventions, treaties and other legal instruments.

The UDHR, together with the 2 covenants - the International Covenant for Civil and Political
Rights, and the International Covenant for Economic, Social and Cultural Rights - make up
the International Bill of Rights.

Human beings are at the centre of the notion of "government of the people, for the people,
and by the people," and the state cannot offer good governance unless Human Rights are
prioritised.

The management of societal affairs in accordance with the universal principles of democracy
as a system of rule that maximises popular consent and participation, ruler legitimacy and
accountability, and ruler responsiveness to the expressed interests and needs of the public is
referred to as democratic governance. It is now widely acknowledged that the state has
primary responsibility for developing and executing policies related to good governance and
human rights. Good government will remain a faraway dream until human rights become the
primary focus. The rule of law is a higher ideal, and those in charge of the state must
acknowledge that adherence to the rule of law is a must-have for any community seeking
stability, peace, and social equality.

Human rights are violated, the rule of law is undermined, the development process is
distorted, and the Indian state is disempowered by corruption. Corruption infringes on Indian
citizens' human rights by impeding their ability to exercise their civic, political, economic,
social, and cultural rights. The article examines the link between corruption and human
rights, as well as how domestic and international legislation, particularly human rights, should
impact national anti-corruption initiatives. It critically evaluates the legal and institutional
approaches to fighting corruption from a human rights viewpoint, as well as the
consequences for public policy and governance changes.

Meaning of good governance

In a democratic context, good governance is related with efficient and effective
administration. It is regarded as a citizen-friendly, compassionate, and responsive
government. When international and bilateral institutions such as the World Bank, UNDP,
OECD, ADB, and others understood that project performance was heavily dependent on the
governance circumstances in aid-receiving countries, good governance became a potent
concept. In general, good governance is seen as an administrative law principle that requires
the government to carry out its tasks in a way that promotes the principles of efficiency, non-
corruptibility, and civil society responsiveness. "The method in which power is exerted in the
administration of a country's economic and social resources for development," according to
the World Bank. While defining the idea of good governance, the United Nations
Development Programme placed a stronger focus on long-term human development. Human
development, poverty eradication, and public administration are all priorities for the UNDP.
As per the Oxford dictionary, Administration means a. Management of a business,
institution, a government agency. b.the management of public affairs; government, c. the
administration of justice, etc. Govern or Governance means a. rule or control with
authority. b.conduct the policy and affairs of government and organizations. c. Influence
or determine a course of action. d. Be the predominating influence. e. Be a standard or
principle for; constitute a law for; serve to decide. f. Check or control {especially
passions}. Adding "effective or good" makes them better. Simply put, Effective
Administration = Effective Management & Good Governance = Good Management of
India.

Review of Literature

1. Dr. S.L. Goal, in his book “Good Governance” an integral approach, written that Good
governance is not a phenomenon which can be described in words, it is rather a
phenomenon which can be described in words, it is rather a phenomenon which can be felt
by people. Good efficient functioning of legislature, executive but depends on the efficient
functioning of legislature, executive, private institution, NGOs as well as the co-operation of
the people. Some of the important aspects of good governance are comparative public
administration, combating poverty, infrastructure administration, development
administration, international administration, area administration. With harnessing scientific
and technology potentialities, innovations, creativity, talent skill and knowledge and good
governance. However the author also talks about the essentials of good governance and the
recent developments.
2. C. Raj Kumar in his book “corruption and human rights in India” corruption is a phenomenon
that is widely prevalent in the administrative system of India and is one of India’s most
nagging problems, impeding growth and developing. It is institutionalized in India. Every
aspect of the governance apparatus is marred by this problem, with variation only in the
level of corruption. It has reached such alarming proportion that the governance structure of
India is affected by its social, economic, and political consequences, leading to the
misallocation of resources. The number of cases of corruption registered vary from state to
state and depend upon the range of factors. For example, between 200 to 2009 the two
state with the higher number of registered cases and also have the poorest rates of
conviction Maharashtra had the higher number of cases registered (4,566) with a conviction
rate of 27 percent; Rajasthan had the second highest number of registered cases at 3,770
with a conviction rate of one-third. There are huge challenges in relation to investigation,
prosecution, and conviction in cases relating to corruption. sBoth the domestic and
international human rights framework are under challenge due to the social expectations
generated by the language of human rights documents and their unfulfilled promises, and
the gap between the rhetoric of human rights and the reality of their enforcement. It is in
this context that there is a need to examine the relationship between corruption and human
rights. However the author also discussing on corruption and its impact on human rights,
corruption and its consequences for governance in asia: a comparative perspective, existing
framework for combating corruption in india, new legislative and institutional reforms for
eliminating corruption in india the way forward: establishing an independent commission
against corruption.

Methodology
  This work is entirely based on secondary data and employs a descriptive and analytical
methodology.
 Books, websites, law journals, media reports, and articles all contribute to the literature
review.

Objective

To study the law relating to corruption and good governance in national and international level

To identify the problem n

Principles of Good Governance By United Nations

1. Participation:

o People should be able to voice their own opinions through

legitimate immediate organizations or representatives.
o This includes men and women, vulnerable sections of
society, backward classes, minorities, etc.
o Participation also implies freedom of association and
expression.
2. Rule of Law:

o Legal framework should be enforced impartially, especially

on human rights laws.
o Without rule of law, politics will follow the principle of matsya
nyaya ie law of fish which means the strong will prevail over
the weak.
3. Consensus Oriented:

o Consensus oriented decision-making ensures that even if

everyone does not achieve what they want to the fullest, a
common minimum can be achieved by everyone which will
not be detrimental to anyone.
o It mediates differing interests to meet the broad consensus
on the best interests of a community.
4. Equity and Inclusiveness:

o Good governance assures an equitable society.

o People should have opportunities to improve or maintain
their well-being.
5. Effectiveness and Efficiency:

o Processes and institutions should be able to produce results

that meet the needs of their community.
o Resources of the community should be used effectively for
the maximum output.
6. Accountability:

o Good governance aims towards betterment of people, and

this can not take place without the government being
accountable to the people.
o Governmental institutions, private sectors, and civil society
organizations should be held accountable to the public and
institutional stakeholders.
7. Transparency:

o Information should be accessible to the public and should be

understandable and monitored.
o It also means free media and access of information to them.
8. Responsiveness:

o Institutions and processes should serve all stakeholders in a

reasonable period of time.
some of the key laws and regulations addressing corruption

The Prevention of Corruption Act is the principal legislation in India which provides for
penalties in relation to corruption by public servants and also for those who are
involved in the abetment of an act of corruption. The term 'public servant' has been
broadly defined in the Prevention of Corruption Act to mean "any person who is in the
service or pay of the Government or remunerated by the Government for the
performance of a public duty".

Until 2018, the Prevention of Corruption Act only took into consideration and
criminalised bribe-taking by public servants and not bribegiving, thereby excluding
bribes given by private entities.

With the growing economy and foreign investment in India, there was an imminent
need to bring the Indian anti-corruption legal framework in conformity with current
international practices, and thereby amendments were proposed to be made to the
existing Prevention of Corruption Act.

The Prevention of Corruption Act was amended in 2018 by way of the Prevention of
Corruption (Amendment) Act, 2018 which sought to prospectively include, within its
scope, commercial organisations (which includes companies) and its employees who
are involved in the payment of bribes to public servants in order to (a) obtain or retain
business for such a commercial organisation; or (b) obtain or retain an advantage in the
conduct of business for the commercial organisation. In such instances, the ind

In such instances, the individual (being the officer/employee of such commercial

organisation) involved in payment of bribe and the commercial organisation, will be
held liable under the Prevention of Corruption Act, unless the organisation can prove
that it had adequate procedures in place to prevent such conduct by persons associated
with it. However, the individual/employee of such commercial organisation may still be
held liable if the offence is proved.

The other laws which deal with/regulate corruption and bribery in India have been
discussed below briefly:

 The Prevention of Money Laundering Act, 2002 aims to prevent instances of

money laundering and prohibits use of the 'proceeds of crime' in India. The
offence of money laundering prescribes strict punishment, including
imprisonment of up to 10 years and the attachment of property of accused
persons (even at a preliminary stage of investigation and not necessarily after
conviction).
 The Companies Act, 2013 (Companies Act) provides for corporate governance
and prevention of corruption and fraud in the corporate sector. The term 'fraud'
has been given a broad definition and is a criminal offence under the Companies
Act.
 In cases involving fraud specifically, Serious Frauds Investigation Office (SFIO) has
been set up under the Ministry of Corporate Affairs, Government of India which
is responsible for dealing with white collar crimes and offences in companies.
The SFIO conducts investigation under the provisions of the Companies Act.
 The Indian Penal Code, 1860 sets out provisions which can be interpreted to
cover bribery and fraud matters, including offences relating to criminal breach of
trust and cheating.
 The Foreign Contribution (Regulation) Act, 2010 regulates the acceptance and
use of foreign contributions and hospitality by individuals and corporations.
Prior registration or prior approval of the Ministry of Home Affairs is required for
receipt of foreign contributions and in the absence of such registration or
approval, receipt of foreign contributions may be considered illegal.
 The Lokpal and Lokayuktas Act, 2013 provides for an establishment of an
ombudsman for the central and state governments (Lokpal and Lokayuktas,
respectively). These bodies are required to act independently from the
government and have been empowered to investigate allegations of corruption
against public servants, which include the prime minister and other ministers.

As on date, the extent of the anticorruption laws is limited to the private and
government sectors in India, and does not have any extra-territorial jurisdiction to cover
instances of illegal gratification and payments made to foreign officials or persons
employed by public international organisations.

Pursuant to the changes to the Prevention of Corruption Act notified in 2018, there are
currently no further amendments being considered by the government.

Major causes of Corruption

In the past, when the crimes of corruption were increasing, the Central Government establishes a
committee to find out such illegal omissions which are being performed and were increasing the
corruption activities were need to be identified. Thus the Santhanam Committee was enforced
and the committee found various causes or measures by which the corruption was prevailing into
the system. The committee highlighted various causes, from them some of them are as follows –
problem of red tap-ism (delay in judicial proceedings), administrative delay, lack of transparency
is maintaining accounts and funds, lack of proper goods and services, exercise of personal
discretion and powers, etc.1

Two distinct divisions have been made in India in relation with classifying the corruption as well
as its practice. One is exploitative corruption and another one is collusive corruption. Starting
with the former type of corruption, as the name indicates that the exploitative corruption, where
the public servant or the private individual or a party, performs specific task by which the citizens
or the state has to suffer in leading with certain irregularities within the functioning of the state.

1
Major causes of corruption, available at: https://lawtimesjournal.in/corruption-human-rights-in-india/
(last visited on December 18, 2021)
And the latter part includes in the collusive form of corruption the citizen, who corrupts the
public servant for making their work easy by giving them better benefits and bribe.

Both such concepts relating to the corruption whether the role of normal citizens or the role of
public servant or either the private party, all one or the other way contributes to the increase in
level of corruption to fulfill illegal obligations just to raise their own benefits and which is truly
against the moral of the society, thus resulting in the affect of the human rights of the citizens. 2  

Impact of corruption on Human Rights

The role of State in the modern era is much wider as compared to the past activities of it. Thus the
State and its authority need to be more aware about the corruption activities whatsoever
prevailing. As the role of the State should always be lie in the welfare and accustomed to the
welfare of the general public at large and guarantee them without any type of discrimination, the
all human rights of which they are being prescribed by the Law of Land. Therefore State has
certain duties and obligations for the protection of Human rights which shall be protected,
fulfilled and respected without any discrimination.

Thus there could be the link between the human rights violation as well as with that of Corruption
activities. Corruption may amount to direct violations of the human rights when the act or
omission committed resulting into the criminal sort of activities leading with illegal violations as
well as including the corruption activities from the side of the State Authorities, thus preventing
the general public from accessing to such right. It may also have an indirect effect upon the
public at large when the other lines and staff below the authorities are too involved, contributing a
sequence or a chain of events resulting into the corruption misdeeds, also results in Human Rights
Violations.

Corruption & specific Human Rights

How corruption can contribute to the gross violations as well infringement of the human rights
has been disused in various Human Rights Norms and instruments such as:-

UDHR– Universal Declaration of Human Rights, 1948

ICCPR– The International Convention on Civil & Political Rights- 1966

ICESCR– International Convention on Economic, Social and Cultural Rights, 1976

These are such Basic structures which are there for the protection and promotion of the Human
Right Violations and thus Corruption has also been highlighted in these very documentations. It
has been very profoundly said that the corruption really infringes the Human Rights Violations,
particularly with human rights of Right to life, Liberty, freedom and equality. It also highlights
about the non discrimination rights, Right to participate in politics, fair trial and access to justice,

2
Major causes of corruption, available at: https://lawtimesjournal.in/corruption-human-rights-in-india/
(last visited on December 18, 2021)
right to information, right to food, water, housing, education, environment, various more
economical, social or cultural rights which also may gets violated wither directly or indirectly.

Good Governance And Fundamental Rights:

The Karnataka Lokayukta Hon’ble Mr. Justice N. Santosh Hegde in First CIPS
Foundation Day Lecture said that Good governance is a fundamental right of a citizen
and democracy. Such governance includes factors such as transparency and
accountability. It also includes values such as justice and equity. It must ensure that the
citizens’, especially the poorest, basic needs are met and they have a life with
dignity. Good governance implies an administration that is sensitive and responsive to
the needs of the people and is effective in coping with emerging challenges in society by
framing and implementing appropriate laws and measures. It includes strict rules of
accountability. It could be centered on community groups or individuals and based on a
notion of rights as inherently comprising duties. Rulers must be strictly bound by
generally accepted norms and controlled by institutions to enforce those. Good
governance must be made a fundamental right and justiciable there was scope for
corruption within the Constitutional framework as well as outside it. Therefore, good
governance must be made a fundamental right under the Constitution. The government
must amend laws to include a timeframe to carry out work in a transparent manner that
ensured accountability. Penal clauses must also be introduced so that action could be
taken against the official. Provision must be made for compensating the wronged citizen
making good governance a fundamental right, widening the scope of the definition of
corruption and creating the Lokpal institution through an act of Parliament. More
importantly, the Lokpal institution should be accountable to the Lok Sabha and the
general public. According to the UN High Commissioner for Human Rights, the true test
of"good" governance is the degree to which it delivers on the promise of human rights:
civil, cultural, economic, political and social rights. The key question is: are the
institutions of governance effectively guaranteeing the right to health, adequate housing,
sufficient food, quality education, fair justice and personal security?

The concept of good governance has been clarified by the work of the Commission on
Human Rights. Its resolution 2000/64 expressly linked good governance to an enabling
environment conducive to the enjoyment of human rights and "prompting growth and
sustainable human development." By linking good governance to sustainable human
development, emphasizing principles such as accountability, participation and the
enjoyment of human rights, the resolution stands as an implicit endorsement of the
rights-based approach to development.

Role of Indian Judiciary:

There is no area in which the Supreme Court's decisions haven't had a substantial
impact on good governance, whether it's the environment, human rights, gender justice,
education, minorities, police reforms, elections, or constraints on Parliament's
constituent powers to change the Constitution. The Supreme Court found in Prem
Shankar Shukla that the practise of handcuffing and fettering prisoners violated the
guarantee of basic human dignity, which is part of India's constitutional culture, and thus
did not pass the test of equality before the law (Article 14), fundamental freedoms
(Article 19), and the right to life and personal liberty (Article 21).
The Supreme Court in Nilabati Behera asserted the judiciary's jurisdiction as a protector
of civil liberties under the obligation to repair damage caused by officers of the State to
fundamental rights of citizens, holding the State liable to pay compensation to the
relatives of a person who has been deprived of life by their wrongful action, reading into
Article 21 the duty of care that could not be denied to anyone. The court based its
decision on Article 9 (5) of the 1966 International Covenant on Civil and Political Rights,
which states that "anyone who has been the victim of wrongful arrest or detention will
have an enforceable right to compensation."

The Court stated in Delhi Domestic Working Women's Forum that "speedy trial is one of
the key requisites of law," and that only quick investigations and trials could give
substance to Article 21 of the Constitution's promise of "equal protection of law."

The Supreme Court ruled in D.K. Basu that custodial torture is "a naked violation of
human dignity" and that the use of third-degree methods or torture on an accused
person is illegal because "state actions must be right, just, and fair," and "torture for
extracting any kind of confession would neither be right, just, nor fair." Gender equality
involves protection from sexual harassment and the ability to work with dignity, which is
a globally recognised basic human right, according to the Supreme Court in Vishaka.

The common minimum requirement of this right has received global acceptance. In the
absence of domestic law occupying the field, to formulate effective measures to check
the evil of sexual harassment of working women at all workplaces, the contents of
international conventions and norms are significant for the purpose of interpretation of
the guarantee of gender equality, right to work with human dignity in Articles 14, 15,
19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment
implicit therein and for the formulation of guidelines to achieve this purpose…. in the
absence of enacted law to provide for the effective enforcement of the basic human right
of gender equality and guarantee against sexual harassment and abuse, more
particularly against sexual harassment at all workplaces, guidelines and norms are
hereby laid down for strict observance at all workplaces or other institutions, until a
legislation is enacted for the purpose. This is done in exercise of the power available
under Article 32 for enforcement of the fundamental rights and it is further emphasized
that this would be treated as

the law declared by the Supreme Court under Article 141 of the Constitution.†
Judiciary has, thus, played a crucial role in development and evolution of society in
general and in ensuring good governance by those holding reins of power in particular.
Perhaps, there can be no two views about the significance of the role expected of
judiciary, viz, the goal and good governance in a free society.