http://press-pubs.uchicago.edu/founders/documents/v1ch17s9.html ( may be pleased to see the ideas of Montesquo from his book "spitrit of laws" on the need for seperation of powers for good governance and political liberties.)
Corruption: its sources and remedies. An idea
Corruption:In India and else where all over the world ,the number of complaints against the state machinery and its lack of transparency procedures, lack of accountability, abuse of public state and corporate power are increasing. Lack of transparency and accountability combined with ineffective remedial systems against the complaints leads to aggregated arbitrary and discriminatory exercise of state and public power in all walks of public life. It is productive of corruption in all walks of public life affecting free development of country specific and more so in an environment of globalization of economies with divided national sovereign powers.
Sources: it is the combination more than one basic power in natural person holding the state or public office. Secondly it is lack checks and balances to maintain the separation of powers and lack of effective independent judicial review power at all levels of public life to safe guard the constitutional rule of law.
Trend:Increasing productive powers of people, industrialization and commercialization, globalization of trade and commerce, generates increase of market power including corporate houses’ power, market regulatory powers of state as well as sale of rights, privileges and other state largesse. We see this trend all over the world.
Public demands:This brings in to focus the public demands democratization of such powers, for rule of law, transparency and accountability procedures in exercise of public and state power. It is continuous process.
New awakening:The electronic media, now social networking media through internet led World Wide Web and cyber world connections has empowered the public with power to know the secrets and abuse of state and corporate powers by natural persons at the board rooms, the wilkileaks breaking the secret codes is new awakening and power of people to resist such abuse of public power.
Focal points of resistence:Corruption, Secrecy and illegality and abuse by some people at one end and the resistance against the corruption, demand for transparency and accountability, confiscation of ill-gotten and illegal money and properties at other end are the focal points of public agitations all over the world.
New discrimination?:Fighting individual instances id misconduct though appears to be good at setting example to others; it may be productive of sense of discrimination and an heart burning to the social groups whom they belong to in a country like ours .Take the example of Ex CJI and CBI probe against his alleged misconduct in public judicial office. or Raja of 2G spectrum when similar allegations are also made against several political, judicial. And bureaucratic natural persons either holding or demitting offices or beneficiaries through them.
Need for clear vision:While all corrupt practices are illegal and immoral, and the sources of such corrupt practices such as secrecy and lack of transparency and accountability are inherently inbuilt in the legal and constitutional systems in our country as well as almost many countries across the globe including the developed world, we need a clear vision of sources of such corruption and the remedial institutional environment to be built in to our legal and constitutional systems.
An idea of Personal seperation of powers in walks of public life:My study of lessons from history has brought me to conclude in my article titled “Application of principle of personal separation powers in all walks of public life”(http://www.aplegalservices.com) and to hold to an idea . it is extracted below:
I see this tendency to increase in future with increasing public power to the global proportions and global institutions taking place as a matter of convenience and necessity of the global transactions and unless sufficient and adequate institutional environment to safeguard in prevention of combining of more than two powers in the same person over the same subject matter and maintaining such personal separation of powers or even a more workable foot proof institutional mechanism is devised and enforced the life, liberty and property of individual citizen and a person will become more at peril and the warnings of original framers of the Constitution of America as well as Montesquo should be ever reminding everybody of this and succeeding generations.
I, therefore, suggest that every public power including sovereign public power other than private power has to be divided into its three component powers i.e. legislative, executive and judicial at every level and its organizational hierarchy and the persons occupying any of the offices or posts connected with one branch should not hold the office or post connected to the other two branches of public power and there should be total personal separation of power in so far as judicial branch is concerned and the State should take every step for personal separation of these powers against all the existing governmental, public, private institutions exercising public powers and further to see that who ever intends to create an institutional organization with public powers should create such offices and posts on the basis of principle of separation of powers and the persons holding such offices on the basis of personal separation of powers and the persons holding the judicial power not under the control of said institution but under the control of the sovereign judicial power of the State. It should be made a condition by the State at the time of granting such charter or permission either under Companies Act, Cooperative Societies Act, Trust Act or any other such acts for registration as a juristic person including political parties and religious bodies and in case of breach of such institutional environment should provide an opportunity to fall in line with the above said principle, failing which said institution should be disorganized and disbanded. This should be made applicable for all including local self-governments, public or private corporate bodies, charitable endowment trust or other organizations wherever there is a likelihood of concentration of public power and there should be adequate checks and balances within these three offices or posts one with the other without however much affecting private initiative and public good.
The above statement of policy advise can be decomposed to the following limbs:
1) State should take every step for personal separation of powers against all the existing governmental, public, private institutions exercising public powers
2) Who ever intend to create the institutional organization with public powers should create such offices and posts on the basis of principle of separation of powers;
3) Personal separation of powers and persons holding the judicial power not under the control of said institution but under the control of sovereign judicial power of the state
4) It should be made a condition by the state at the time of granting such charter of permission either under the companies act, cooperative act, trusts act or any such Acts for the registration as a juristic person including the political parties and religious bodies
5) Incase of breach of such institutional environment should provide an opportunity to fall in line, failing which said institution should be disorganized and with the above principle to be disbanded.,