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Commissions of Omission

Legally SpeakingCommissions of Omission

Regrettably, what we are witnessing today is an abject failure of the ‘public integrity system’, a failure of the agencies, laws and policies that are meant to promote the welfare and interests of those they are meant to protect.



Democracy is expressed through the will of the people’s representatives, who take an oath on the Constitution. This commitment to the Constitution includes good governance, which is in consonance with the rule of law and secures fundamental rights. After all, the efficacy of democracy and its daily rhythms, which manifests through efficient and equitable governance, translates into securing the well being of the people.

Every great adversity tests the fabric of a nation and the Covid-19 pandemic is indeed one such adversity. In times like this, it is the institutions of governance—legislative, judicial and executive—that are on trial on the touchstone of public interest. These institutions provide the framework for individuals and systems to function. Confidence in these institutions stems from their functional integrity, and the absence of integrity will inevitably lead to a breakdown of societal functioning, thereby weakening democracy and eroding trust and as also the sense of justice.

Integrity defined is a virtue—a proclivity to act in a morally justifiable manner, which is consistent with a clear set of coherent values and which creates trust. The robust disposition of a public institution to pursue its purpose, within the limits of legitimacy, consistent with its defined commitment constitutes “public institutional integrity”. This is the cornerstone of good governance which safeguards public interest and reinforces fundamental values to support a pluralistic democracy having respect for human rights. Institutional integrity is consistency between the institution’s mission statement and articulated values and how it conducts itself and is ensured by following robust and transparent practices which are meant to be perfected from time to time through legislative and constitutional mechanisms.

India’s founding fathers bequeathed a strong set of institutions of governance, with defined roles for each. The Parliament, the Judiciary, the Executive, the Election Commission, Comptroller and Auditor General, the Attorney General, are some such institutions of governance provided for in the Constitution of India.

With the development of rights jurisprudence, laws were enacted to ensure and uphold implementation of fundamental rights and to give effect to the non-justiciable directive principles. These laws provided for creation of Commissions and Boards at Central and State levels, to inter-alia, protect Human Rights (1993), Women (1990), Minorities (1992), Backward Classes (1993), Safai Karamcharis (1993) and Children (2005), Unorganized Workers (2008). These Commissions and Boards were to be manned by persons who had held high public offices and embodied “eminence, ability and integrity”: these being the legislatively ordained preconditions for such appointments.

In times of crisis, such institutions take on an enhanced importance, as members of the community seek help to navigate the chaos. In many ways, the current scenario is ripe for gauging the true mettle of our rights oriented institutions. Regrettably, what we are witnessing today is an abject failure of the “public integrity system”, a failure of the agencies, laws and policies that are meant to promote the welfare and interests of those they are meant to protect. These institutions and bodies have vast powers to secure well being and rights. Yet, as we see the human suffering and trauma unfolding in the aftermath of the lockdown, each of these rights oriented institutions (barring the National Human Rights Commission) can be identified by the stony silence they have maintained throughout this crisis, with no imminent signs of awakening from their slumber.

From amongst the searing images and visuals that captured the heartbreak and despair of those desperate to reach the safety of their homes, the image that commanded the nation’s attention: that of an exhausted child lying slumped on a suitcase being wheeled by his mother on the highway, and the news of a young 15-year-old Jyoti Kumari who cycled over 1,200 km for seven days carrying her ailing father, should have activated the National Commission for Protection of Child Rights. Unfortunately, the only response these images elicited was an invitation extended to the young lady by the Cycling Federation for trials, while the fate of that young child remains unknown. As regards the trauma of unorganized workers, the less about the functioning of Social Security Boards, the better.

The current functional paralysis of these institutions and their unwillingness to act, constitutes a derogation of rule of law, casting doubt on their institutional integrity. Statutory provisions contained in the institution creating statutes mean little if the values of an institution are not visible in action. When these rights oriented institutions of governance fail to act or to ameliorate the anguish of the people, it is clear that the legislative safeguards of integrity are mere words, with no substantial meaning. Law may prescribe norms for offices, but it is most important to ensure that such institutions of governance are manned by persons of the highest ethical standards and possess qualities of eminence, ability and integrity. Personal integrity, as a characteristic required of occupants of public office, has implications for institutional integrity and there is clearly very strong interplay between institutional integrity and personal integrity. The former cannot be realised successfully if it lacks occupants without the latter.

To ensure that these institutions function effectively and further the legislative mandate cast upon them, it is imperative to ensure merit and transparency in appointments, avoid favoritism and create an open culture where public integrity concerns and errors can be discussed clearly. Clear rules and procedure for redressal, alternate channels for reporting of integrity standards and impartial enforcement of laws and regulations will have to be created. Further, it is essential to re-examine the structures of these rights oriented institutions and vest in them the right degree of independence, funding and resources to enable them to function independently and effectively. Media and civil society organisations must channelise their energies to invoke the ample powers of these Commissions and Boards and consequently empower citizens to demand accountability of state actors. As Professor A.J. Brown noted, “public accountability is all about compliance…the concept of integrity is all about substance, inextricably linked with ideas of truth, honesty and trustworthiness, whether applied to individuals or institutions”.

If anything, the current situation has taught an important lesson—namely, that it is imperative to ensure that the integrity of these institutions is strengthened to preserve the democratic health of the country. If these rights oriented institutions continue to remain comatose, the trust deficit so created will be difficult to surmount.

Adv. Ketaki Goswami practises at the Supreme Court and Delhi High Court. Sr. Adv. Siddharth Luthra has served as Additional Solicitor General (ASG) of India and practises in the Supreme Court and Delhi High Court.


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