Constitutional protection to corruption!

[goodboy_mentor]

Our endemic corruption lies in Article 311 of our constitution because we have a provision to safeguard corruption and make bureaucrats stay away from being sensitive to the problems of common people.

The nature of endemic corruption is that it flows Top Down. If an underling is corrupt and his higher authority is not, the underling is unlikely to last very long in his position. Worse, he runs the risk of being punished for the crime, sooner or later. Thus corruption is top down. It is as simple as that.

Corruption happens when a person holds the power to permit or deny an applicant. And is not accountable for the decision – or lack of a decision – to the applicant. This is the– no accountability to stakeholders. This immunity from prosecution or punishment is provided by articles in our (Indian) constitution. Suffice it to say that in India, we need the permission of the perpetrator’s highest authority (often The President) to even investigate let alone prosecute him. This argument has been used since the British Raj and the new rulers, the so called civil servants took it forward with glee.

When the size of the organization becomes unwieldy and very decentralized as is the case of government in India, the need for protection against misuse must gain far greater weightage. The permissions must also be decentralized and so must be the criteria for granting such permissions be less protective.

Rampart corruption in bureaucracy shows the crucial failure of “Doctrine of pleasure” incorporated in the Indian constitution to protect government servants by giving them almost total everlasting unqualified immunity. How can a person who is not accountable to you and me be a servant? Some will be quick to point out that they are called government servants, not yours or mine. That only means government, in our democracy, isn’t the servant of the people. Thus, there is no accountability of government. And that’s where all corruption starts. No accountability. Specific accountability, not general, vague, ‘answerable to the people’ kind of accountability.

I suggest that at the very heart of our endemic corruption lies Article 311 in our constitution. This is where it all starts. The magic cure for eradicating corruption is to drop this unqualified, everlasting, personal immunity to each and every civil servant from being a constitutional right. The legal brains can figure out how it’s to be done. But the important thing is to eliminate the protection against accountability to stakeholders being restored.

Doctrine of pleasure and its proviso article 311 of Indian Constitution:

The doctrine of pleasure owes its origin to common law. The rule in England was that a civil servant can hold his office during the pleasure of the crown and the service will be terminated any time the crown wishes the same rule is applied in India. The member of Defence services or civil services of the union or All-India services hold their office during the pleasure of president. Similarly member of state services holds the office during the pleasure of governor. the provisions related to services under union and state is contained under part XIV of the Indian constitution.

The article 311 acts as a safeguard to civil servants. It reads as under;

(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where, it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply —
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

Where there is an infringement of Article 311, the orders passed by the disciplinary authority are void ab-initio and in the eye of law "no more than a piece of waste paper" and the Government servant will be deemed to have continued in service or in the case of reduction in rank, in his previous post throughout.

[nagarifle]

i think that you got it in a nut shell, which can not be cracked, i might add.

[goodboy_mentor]

which can not be cracked

Probably legal brains can, if they try hard and smart!