Thursday, November 11, 2010

Corruption: Political and Civil Liability

Chavan and Kalmadi have paid the political price for corruption, and Raja may soon follow. Of course, political sanction does not require proof of guilt in a court of law and can therefore be (relatively) swift. Are we seeing the development of a political convention that serious allegations of corruption requires a public servant to resign? If so, does the convention apply only to elected officers or also to unelected bureaucrats and army officers? Is resignation necessary only from a state office or also from offices held in a political party? Should the person herself be accused of corruption, or tolerating/covering corruption of other people should also lead to resignation? Does anyone know of a good research article which throws light on how Indian politics has historically dealt with serious allegations of corruption (allegations involving Rajeev Gandhi, Narasimha Rao, LK Advani, Jayalalitha, George Fernandes, Lalu Yadav, Bangaru Laxman, Reddy brothers come to mind)? I am not so much interested in the moral question of whether those accused of corruption should resign as in whether we have a political convention that requires them to resign or be sacked (although, admittedly, they are connected).

Of course, few would be satisfied if the only price a corrupt person had to pay was political. Apart from the criminal liability under the Prevention of Corruption Act, the corrupt also have a personal civil liability under the tort of misfeasance in public office. In the Three Rivers District Council case, Lord Steyn laid down the ingredients of the tort in British law:
1. The defendant must be a public officer
2. The power was exercised as a public officer
3. The act was motivated by bad faith or malice (mere negligence is not enough, one must show abuse of power)
4. Other ingredients that require proof of damage caused to the plaintiff.

Anil Divan gives a good account of the acceptance and development of this British tort by the Indian Supreme Court in his contribution in Kirpal ed, Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (2000). It appears that the tort was subsumed within the public interest litigation system, and the final requirement of personal damage to the plaintiff was not insisted upon by the Supreme Court. Does anyone know of the development of this tort in India since the article was written? Given that the standard of proof in civil cases is lower than criminal cases, that there is no impunity provision protecting the public servant, that the liability is personal and exemplary damages can be sought, a case of misfeasance in public office may be worth exploring.
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