“Aid can work where there is good governance, and usually fails where governments are unable or unwilling to commit aid to improve the lives of their people.”[1]
Governance and Good Governance
The terms like ‘governance and good governance” are increasingly being used today. Bad governance is immensely disregarded and endeavours are being made to eradicate the same, so as to ensure ‘good governance’. Before explaining what good governance is, this article begins with explaining the concept of governance.
The term ‘governance’ has different shades and colours and covers various aspects of the manner in which authority is exercised and public affairs are conducted. In simple words, it implies the process of decision making and the process by which decisions are implemented.[2]
UNDP[3] views governance as the exercise of political, economic and administrative authority in the management of a country’s affairs at all levels. It comprises of mechanisms, processes and institutions through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and mediate their differences.[4] According to OECD,[5] the concept of governance denotes the use of political authority and exercise of control in a society in relation to the management of its resources for social and economic development.[6]
It can very well be established from the above definitions that governance subsume all processes, institutions, rules and regulations through which human activities take place, whether individually or collectively.
Good Governance has almost become a mantra the world over, in both developed and developing countries.[7] “If there is one most obvious lesson that can be drawn from the experience of the generation after independence in Africa, it is the crucial importance of establishing good governance. Almost every African country has witnessed a systematic regression of capacity in the last thirty years; the majority had better capacity at independence than they now possess. In practically every country, the civil service was found to be too large in non-essential areas and in critical need of personnel in others. The civil service is also too politicized and lacking in professionalism.[8] This context is familiar to the Indian scenario. It is observed that while some elements of good governance are universally recognized, some others have found acceptance only in certain countries. Those falling in the first category include corruption free administration, public accountability, transparency, rule of law, equality before law and equal protection of laws, sensitivity to people’s grievances, participative governance, predictability in decision-making, responsiveness to people’s needs and citizen friendliness.[9] The other elements which have been accepted by few include human rights, right to information, right to privacy, right to employment, right to education and so on.
SARC[10] summarized the core principles of good governance as comprising of:[11]
- Rule of law which requires that laws and their implementation be transparent, predictable, equitable and credible;
- Accountability at each level of administration;
- Minimization of unfettered discretion;
- Putting the citizen first;
- Government to be built on a strong ethical foundation; and
- Principle of subsidiarity, which implies both devolution and delegation of authority.
Though the term ‘good governance’ has not been expressly mentioned under the Indian Constitution, there are various provisions wherein this term has been given a comprehensive place. The Constitution has lain down that the state shall strive to promote welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all institutions of nation’s life. The fundamental rights are right to equality, seven freedoms under Article 19, right to life and personal liberty, right against exploitation, cultural and educational rights, right to freedom of religion and right to constitutional remedies. The Constitution has also laid down the Directive Principles of State Policy, which are not legally enforceable in Courts, but are nevertheless fundamental to the governance of the country.
However, it would be relevant to mention an attempt by The Government of India in the Ministry of Home Affairs which had undertaken an exercise in 2004 to prepare a concept paper on good governance. The paper covered familiar ground, that is, the role of civil society, electoral reforms, judicial reforms, civil service reforms, administrative procedure reforms, economic reforms, fiscal reforms, labour market reforms, citizen-centric reforms, rural decentralization, urban sector reforms, e-governance, etc. It also suggested a short-term action plan for transforming the government into a growth friendly, citizen-centric and performing government. But like most other initiatives, this is where it appears to have ended.[12]
A Passive Criminal Justice System
Everyday life in India is encountered by serious and constant violations of human rights. Needless to say, the graph of human right violations will come down only when the law asserts itself. One has to accept that law has lost its respect today and there is a lack of better incorporation of laws.
It would be appropriate to mention that the right to speedy trial has been recognized by the Supreme Court as a part of protection available under Article 21 of the Constitution. Unfortunately, all such pronouncements have remained on paper with pendency of cases reaching a figure of 3 crore. Of these, nearly 70 percent are criminal cases and the balance is civil cases.[13]
The late N.A. Palkhivala, one of the most stupendous advocates in the country, had rightly said;
‘I’m not aware of any country in the world where litigation goes on for as long a period as in India. The law may not be an ass, but in India it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in a community of snails. Justice has to be blind but I see no reason why it should also be lame; here it just hobbles along, barely able to walk.’
The most astonishing feature of our Indian Judicial System is the large number of under trials which is about 2, 00,000. However, later, Hussainara Khatoon v. State of Bihar,[14] made judicial history in many ways. The Committee on Reforms of the Criminal Justice System made wide ranging recommendations to deal with two problems- huge pendency of cases and poor rate of conviction which have seriously tormented the Indian Criminal Justice System.[15] According to the Committee, two areas which need special attention for improving the quality of justice are prescribing required qualifications for judges and the quality of training being imparted in judicial academics. The Committee also dealt with the widely prevalent practice of perjury in criminal cases. But this report is still languishing like other reports and is not yet implemented.[16]
Judicial Activism and Good Governance
Judicial Activism has been an important subject of debate in the recent years and today the critics of the same have become its supporters. It is true that Judicial Activism has left positive impacts in the country but at the same time, it has left negative results too. The first and the foremost area of concern is that judicial activism has compromised the principle of separation of powers between the three organs of the state. A section of higher judiciary has put such liberal interpretation on its own powers under the Constitution that it has not hesitated in interfering in executive decision-making and even legislative functions.[17] The responsibility for managing public affairs should be well left to those on whom the Constitution has imposed such obligation and for which they are accountable to the people.[18]
The Supreme Court is not expected to interfere in any matter which is before Parliament or a State Legislature. But this norm has been breached more than once with the court asking the speakers of state legislatures when and how the meetings of the legislature are to be convened, how they are to be conducted, the observers who will attend the meetings, video graphing of the proceedings and so on. This has raised major questions about the independence of the legislatures.[19]
Finally, one must take into consideration the impact of the judicial activism in the everyday life of the country. It is agreeable that it has had positive impacts in the country but at the same time, it has also led the country to face serious challenges. For instance, the orders issued by the Supreme Court to clean the waters of River Ganga and Yamuna had no impact even after spending crores of rupees. Thus, there are lot of questions which directly hit the High Courts and the Supreme Court when public approaches them for the redressal of their grievances. If public authorities and the government officials were responsible enough then the public were not required to approach the courts. Since their doors are shut, public are left with no option but to seek court intervention.
Governance Deficit to be Understood
Though India claims to be a Secular State, yet the country has witnessed horrific communal violence from time to time among which the worst were the Anti-Sikh Riots in Delhi in 1984, following Indira Gandhi’s Assassination, Riots in December 1992 and January 1993 as a reaction to the demolition of the Babri Masjid and the Gujarat Riots in 2002. These riots had one thing in common that is, it has to be accepted that there is communalism of both Hindus and Muslims. Exemplary punishment must be imposed on all those who are guilty of disturbing peace and public tranquillity because the ground reality is completely opposite. Moreover, such communal rights should end up with the dismissal of the state government and the imposition of President’s Rule which has not been done in a single case. Moreover, widespread debate on subjects like Lokpal and Lokayukta should be given way. It has to be understood that they cannot erode corruption and maladministration by a magic rather they can only serve as a means to eradicate the same. Furthermore, governance is a serious subject and only when million eyes demand change, a better situation cannot be expected.
[1] Lee H. Hamilton.
[2] http://www.unescap.org/sites/default/files/good-governance.pdf as visited on January 8, 2015.
[3] United Nations Development Programme.
[4] Madhav Godbole, Good Governance: Never on India’s Radar pg no: 24 (Rupa Publications India Pvt. Ltd, New Delhi, 2014).
[5] Organization for Economic Cooperation and Development.
[6] Madhav Godbole, Good Governance: Never on India’s Radar pg no: 25 (Rupa Publications India Pvt. Ltd, New Delhi, 2014).
[7] Ibid.
[8] Report submitted by the African Governors of the World Bank to President James D. Wolfensohn, September 28, 1996.
[9] The Central Government’s lack of sensitivity was evident in the affidavit filed by the Archaeological Survey of India in the Supreme Court in the Sethusamudram Canal Project Case that Lord Ram never existed and there was historical evidence of Ram Setu (bridge) having been built at his behest. When there was a sharp public reaction and protests, the affidavit was hurriedly withdrawn by the government.
[10] The Second Administrative Reforms Commission.
[11] Madhav Godbole, Good Governance: Never on India’s Radar pg no: 26 (Rupa Publications India Pvt. Ltd, New Delhi, 2014).
[12] Madhav Godbole, Good Governance: Never on India’s Radar pg no: 29 (Rupa Publications India Pvt. Ltd, New Delhi, 2014).
[13] Ibid. pg 41.
[14] AIR 1979 SC 1369.
[15] Report submitted by Justice V.S Malimath Committee in March 2003.
[16] Supra note 13.
[17] Madhav Godbole, Good Governance: Never on India’s Radar pg no: 48 (Rupa Publications India Pvt. Ltd, New Delhi, 2014).
[18] Somnath Chatterjee, Former Speaker of Lok Sabha.
[19] Madhav Godbole, Good Governance: Never on India’s Radar pg no: 49 (Rupa Publications India Pvt. Ltd, New Delhi, 2014).
About the Author
Megha is a Final Year Law Student, pursuing B.A. LL.B. (Five-Year Integrated Course) from Faculty of Law, Mody University of Science & Technology, Rajasthan. She is inclined towards writing and research. Besides that, she loves blogging and runs her own blog here. Currently, she is interning with the Model Governance Foundation.
