By Abhinav Singh and Ritik Kanoujia
Considering the History of Corruption with regard to Education, we look at the various laws and recent judgments passed in this context.
Introduction
“Integrity, transparency and the fight against corruption have to be a part of the culture. They have to be thought as fundamental values.”
Corruption is defined as ‘the abuse of entrusted power for private gain’.[1] Corruption undermines democratic institutions, slows economic development and contributes to governmental instability.[2] It is a challenge that no country or sector claim to be immune to. The United Nations recognized corruption as a serious impediment to the holistic growth of any country in the beginning of the 21st Century, and adopted the UN Convention against Corruption in 2003, which came into force in 2005. The statute serves as the first legally binding instrument against corruption.
In Indian jurisprudence, the primary legislation that deals exclusively with combating corruption in government agencies and public sector businesses is the comprehensive Prevention of Corruption Act, 1988 (“PC Act”).[3] In addition, the country has been a signatory party to the above-mentioned convention since 2011. Despite these measures, India ranks at a dismal 80th position in the Corruption Perceptions Index of 2019,[4] with an average score of 41 on a scale from 100 (very clean) to 0 (highly corrupt).
One public sector that has, for long been embroiled in scandals and controversy is education. While international organizations such as UNICEF have stepped up their efforts by expanding education systems and advancing their strategic plans throughout the world in an attempt to create an environment where every child learns, India has not been able to follow suit.[5]
One must keep in mind the initiatives undertaken by India to raise the standards of education in India. In fact, India has gone as far as declaring “free and compulsory education for children between the ages of 6 to 14 years” as a fundamental right of every child under Article 21 A of the Constitution of India,[6] through the implementation of the Right to Education Act, 2010, making education an inherent positive right of an individual rather than a privilege in the process. Despite such measures, the education sector has not been able to do justice to the lofty expectations it set out to achieve. Rampant corruption,[7] leading to poor execution of these initiatives is the major cause for this debacle. The Teacher Recruitment Scam,[8] wherein the former Haryana Chief Minister Om Prakash Chautala and his son engaged in illegal selection of over 3,000 junior basic trained teachers by replacing the original selection list with fake ones, is a prime example of how faulty the current system is.
Through the years, the judiciary has taken keen interest in paving the ground for the fight against such unethical, malice-driven, profit making practices undertaken by public functionaries at the expense of the public they are meant to serve. Judiciary has made concerted efforts in keeping the sanctity attached to the educational sector intact. The importance of a service sector like education is undeniable. The future of India as a power house in world politics depends, to a large extent, on how knowledgeable the citizenry is. In this light, one must analyze the impact judiciary has had in dispelling corruption from the educational sector, and as a result, in upholding the rule of law and vital principles of democracy.
Incidences Of Judicial Activism In The Educational Sector
The Indian judiciary must be commended for adopting an inclusive approach of interpreting the PC Act, regardless of the settled principle of law that provides for strict interpretation of statutes that are penal in nature. In the case of Subramanian Swamy v. Manmohan Singh,[9] the Supreme Court (“SC’) took a lenient stance in determining the approach of courts when interpreting anti-corruption laws in India, stating in clear terms that in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.
By adopting this ratio in the case of CBI v. Ramesh Gelli,[10] SC expanded the definition of ‘public servant’ under the PC Act to include private actors into the ambit of the statute. Since Section 2(b) of the statute defines “public duty” as “a duty in the discharge of which the State, the public or the community at large has an interest”,[11] the Court concluded that performance of public functions is not the exclusive domain of the State. Such functions can be performed by private institutions as well. Thus the Court took a step forward in filling up the lacunae which the statute did not provide for originally.
The education sector has been ravaged by controversies and scams in recent times. The firm and authoritative stance adopted by the judiciary in dealing with such turmoil and turbulence is admirable. This was on display when the apex court cancelled the degrees of 634 doctors associated with the Vyapam Scam in 2013 and again in the MBBS Admission Scam in the same year. In both cases, the Court acted as the guardian of rule of law and emphasized on the desire of building a nation on the touchstone of ethics and character, where fraud could not be allowed to trounce the very values on which the nation is built. The Vyapam scam was an entrance examination, admission and recruitment scam that was unearthed in the State of Madhya Pradesh and involved scamsters including politicians and businessmen who engaged bribing officials to manipulate a series of examinations while the MBBS Admission scam involved fraudulent nomination of undeserving candidates to MBBS seats, that had been originally allotted to Tripura, in medical colleges across the country. A conversation about scams that have plagued the educational sector in India would be incomplete without mentioning the fraud committed by the then chancellor of SRM College, TR Pachamuthu. Accused of obtaining money from students in lieu of medical seat in the college and not admitting them subsequently, his case was heard by the Madras High Court. The court decided in favour of the students, thereby ordering the accused to compensate the aggrieved families.
The judiciary in India has always sought to function as an independent and impartial body, dedicated towards serving as the custodian of the Constitution of India, and envisioning a society free from disputes, where transparency and accountability becomes bulwark of efficient functioning of the setup. The above mentioned cases are manifestations of how judiciary has led the charge against maliciously corrupt practices that stifle the core ideas enshrined in and emanated by the Constitution of India.
Corruption and Education: Dangerously Intertwined
The battle against corruption is a never ending one. The judiciary must be on its toes at all times to break through the shackles this menace. In this light, the recent judgment in the case of State of Gujarat v. Mansukhbhai Kanjibhai Shah,[12] is another effort by the judiciary to build upon and consolidate earlier initiatives, by expanding the contours of the Prevention of Corruption Act, 1988 to render it more effective in application.
In this case, an FIR was filed against the respondent, a trustee of ‘Sumandeep Charitable Trust’ which established and sponsored the deemed university “Sumandeep Vidyapeeth”, for conspiring to withhold the complainant’s elder daughter from appearing for the examination in pursuance of the MBBS course that she had been admitted to in 2012 in the above mentioned university unless a bribe of Rs. 25 lakhs be paid by the complainant’s father. Several undated cheques, drawn in the name of the institution worth more than Rs. 100 crores and certain fixed deposits were recovered through separate raids. Subsequently, a charge sheet was filed against the respondent for various offences under sections 7, 8, 10, 13(1)(b) and 13(2) of the PC Act read with Section 109 of the Indian Penal Code, 1860[13] (punishment for abetment, if not specified, should be same as that of offence committed through such abetment). The respondent was discharged by the High Court of Gujarat, which allowed the criminal revision application filed by him under Section 397 of the Criminal Procedure Code (“CrPC”).[14] Aggrieved by the decision, the State of Gujarat appealed to the Supreme Court of India.
Upon hearing the appeal, the apex court deliberated upon two issues to reach a decision: first, whether the respondent-trustee is a ‘public servant’ covered under Section 2(c) of the PC Act;[15] and second, whether the respondent could be discharged under Section 227 of CrPC (Discharge in case judge does not find sufficient ground for proceeding against the accused).[16]
The three judge bench refused to read the PC Act with the University Grants Commission Act, on account of being very distinct in their purpose, operation and object, and proceeded to accord an independent meaning to ‘University’ appearing in the PC Act. Since ‘deemed universities’ perform the public duty of imparting education and handing out educational degrees, akin to other universities, the Court concluded that such institutions came within the ambit of the term ‘University’ under the provisions of the PC Act. In order to ascertain whether the respondent is a public servant, the Court relied on the case of Manish Trivedi v. State of Rajasthan[17] where the Supreme Court had elaborated upon the legislative intent behind the enactment of the PC Act, that being the expansion of ambit of the expression ‘public servant’ to achieve the purpose of punishing and curbing corruption among public servants in order to purify public administration. By paying due consideration on the role played by the respondent in the administration of the university, the judges concluded that the trustee indeed held an office in the institution and discharged a public duty on account of being a public servant under Section 2(c) of the PC Act.
On the aspect of discharge of the respondent under Section 227 of CrPC, the Court relied on the case of Sajjan Kumar v. Central Bureau of Investigation,[18] wherein the apex court had laid down the scope of Section 227, stating that “in such circumstances where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court shall be fully justified in framing a charge and proceeding with the trial.” The Court opined that the material recovered by the police during raids was sufficient for raising suspicion against the respondent. On this ground, the judges did not find it prudent to discharge the respondent under Section 227 of CrPC.
Conclusion: The Way Forward
The no nonsense attitude of judiciary towards the menace of corruption is encouraging. The efforts made by courts in India to instill confidence among the masses by making public functionaries increasingly accountable and the system more transparent must be acknowledged. Judiciary is expected to curb excesses committed by other branches of the state. The principle of ‘checks and balances’ mandates the judiciary to place reasonable checks on the legislature and the executive to make them answerable to the public. In this regard, judiciary has been fairly successful.
However, India’s dismal performance on global corruption estimates signals that there is still much work left to be done. When such practices enter the realm of education, the very purpose of imparting knowledge is defeated. In a third world country like India, where education was till recently seen as a privilege rather than an inherent right, such an entry can have devastating impact upon the prospects of the country as a potential global leader in the years to come.
In this backdrop, the decision by the SC to include “deemed university” within the ambit of the PC Act leaves a positive imprint in the minds of those in the know. It must be understood, however, that while it is necessary to strengthen legal foundations to tackle the issue of corruption, the responsibility must be shared with the legislature and the executive. Since enactment and application of strong laws can only do so much, given that the main beneficiaries of corruption are politicians and officials themselves, other measures such as the formation of independent integrated regulatory systems to identify and prevent corruption in the public sector shall be considered. In addition, transparency in appointment, promotion and remuneration of public officials would go a long way in realizing the dream of a corruption free society.
The authors, Abhinav Singh and Ritik Kanoujia, are currently law students at the National Law University, Jodhpur.
[1] Transparency International, What is Corruption?, February 13, 1995, available https://www.transparency.org/en/what-is-corruption (Last visited on May 2, 2020).
[2] UN News, Corruption undermines democracy and contributes to instability, warns senior UN anti-crime official, August 28, 2019, available https://news.un.org/en/story/2019/08/1045081 (Last visited on May 2, 2020).
[3] The Prevention of Corruption Act, 1988, §2.
[4] Transparency International, Corruption Perceptions Index, January 29, 2019, available https://www.transparency.org/en/cpi/2019 (Last visited on May 2, 2020).
[5] UNICEF, UNICEF Education Strategy 2019–2030, September 11, 2019, available https://www.unicef.org/media/59856/file/UNICEF-education-strategy-2019-2030.pdf (Last visited on May 3, 2020).
[6] The Constitution of India, 1950, Art. 21(A).
[7] Vivek Deshpande, Maharashtra scholarship scam: Probe reveals institutes pocketed crores by using different ploys, August 22, 2017, available https://indianexpress.com/article/india/maharashtra-scholarship-scam-probe-reveals-institutes-pocketing-crores-by-using-different-ploys-4808880/ (Last visited on May 4, 2020).
[8] The Hindu, Chautala, son held guilty in teachers job scam, January 16, 2013, available https://www.thehindu.com/news/national/other-states/chautala-son-held-guilty-in-teachers-job-scam/article4312083.ece (Last visited on May 4, 2020).
[9] Subramanian Swamy v. Manmohan Singh, AIR 2012 SC 1185.
[10] CBI v. Ramesh Gelli, AIR 2016 SC 1063.
[11] The Prevention of Corruption Act, 1988, §2(b).
[12] State of Gujarat v. Mansukhbhai Kanjibhai Shah, MANU/SC/0417/2020.
[13] The Indian Penal Code, 1860, §109.
[14] The Code of Criminal Procedure, 1973, §397.
[15] The Prevention of Corruption Act, 1988, §2(c).
[16] The Code of Criminal Procedure, 1973, §227.
[17] Manish Trivedi v. State of Rajasthan, AIR 2014 SC 648.
[18] Sajjan Kumar v. Central Bureau of Investigation, 2010 9 SCC 368.
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