PROJECT

CONSTITUTIONAL GOVERNANCE-I

On

CORRUPTION AS A POLITICAL AND SOCIAL THREAT TO

THE CONSTITUTIONALISM IN CONTEMPORARY: A
CRITICAL ANALYSIS

Submitted to:

MRS. RAJPUT SHRADDHA BHAUSINGH

Assistant Professor

Faculty of Constitutional Governance-I

Submitted by:

KUMAR KARTIKEYA
Roll No. 87

Semester III, Section C

Submitted on:

8th DECEMBER, 2020

HIDAYATULLAH NATIONAL LAW UNIVERSITY

UPARWARA POST, ABHANPUR, ATAL NAGAR, RAIPUR (C.G.) - 492002

 DECLARATION OF ORIGINALITY

I, KUMAR KARTIKEYA, have done research on the topic “CORRUPTION AS A POLITICAL

AND SOCIAL THERAT TO THE CONSTITUTIONALISM IN CONTEMPORARY: A
CRITICAL ANALYSIS”. I hereby declare that this Research Project has been prepared only for
academic purposes and is the outcome of the investigation and preparation done by me under the
able guidance and supervision of Mrs. Rajput Shraddha Bhausingh, Assistant Professor, Faculty
of Constitutional Governance- I, Hidayatullah National Law University, Raipur.

………………………..

KUMAR KRTIKEYA

Roll No. 87

Semester III, Section-C

2
 CERTIFICATE

This is to certify that Mr. KUMAR KARTIKEYA, Roll Number 87, student of Semester III,
Section-C of B.A.LL. B (Hons.), Hidayatullah National Law University, New Raipur
(Chhattisgarh) has done the research work on the project titled “CORRUPTION AS A
POLITICAL AND SOCIAL THERAT TO THE CONSTITUTIONALISM IN
CONTEMPORARY: A CRITICAL ANALYSIS” under my guidance and supervision. The
research work is fit for evaluation and submission.

Place: Raipur Mrs. Shraddha B. Rajput

Date: 20.11.2020 Faculty of Constitutional Governance I

.

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 ACKNOWLEDGEMENT
I have made this project with the assistance of many persons. I express my deepest regard and
gratitude for Shraddha Rajput ma’am. Her consistent supervision, constant inspiration and
invaluable guidance have been of immense help in understanding and carrying out the nuances of
the research.

I would like to thank my family and friends without whose support and encouragement this project
would not have been a reality.

I take this opportunity to also than the University and the Vice Chancellor for providing extensive
database resources in the library and through Internet. I would be grateful to receive comments
and suggestions to further improve this project report.

At the last I would like to add that I have worked immensely hard in the making of this project by
collecting facts, analysing data and reaching a conclusion.

I feel highly elated to work on the topic “CORRUPTION AS A POLITICAL AND SOCIAL
THERAT TO THE CONSTITUTIONALISM IN CONTEMPORARY: A CRITICAL
ANALYSIS”.

………………………

KUMAR KARTIKEYA
Semester III
Section C
Roll Number: 87

4
 TABLE OF CONTENTS

S No. Particulars Page No.

1. Declaration of Originality 2
2. Certificate 3
3. Acknowledgement 4
4. Introduction 6
5. Research Methodology 7
a. Problem of the Study 7
b. Rationale of the Study 7
c. Objectives of the Study 8
d. Review of Literature 8-9
e. Concept and Variables 9
f. Hypothesis 10
g. Research Design- Nature of Study, Sources of 10
Study
h. Chapterization of the Study 10
i. Time Duration of the Study 11
j. Limitations of the Study 11
k. Contribution of the Study 11
6. Chapterization
Chapter 1 12
Chapter 2 13
Chapter 3 14
Chapter 4 16
7. Major Findings, Conclusion and Suggestions 17
8. Bibliography 18

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 INTRODUCTION

For genuine democracies, constitutions consist of overarching arrangements that determine the
political, legal and social structures by which society is to be governed. Constitutional provisions
are therefore considered to be paramount or fundamental law. Under these circumstances, if
constitutional law itself is inadequate, the nature of democracy and rule of law within a country is
affected. This research would try to analyse the present form of constitutionalism, how corruption
is affecting the performance of governments, how corruption can lead to political instability and
social disorder and its causing factors and how it can be put under check. The structure of modern
nations has been shaped with government being divided into executive, legislative and judicial
bodies, with the commonly accepted notion that these bodies and their powers must be separated.
Of course, the separation of powers does not mean these bodies function alone, rather they work
interdependently, but maintain their autonomy. Other tenets include the idea of limited
government and the supremacy of law. Together, these can be termed the concept of
constitutionalism. In other words, constitutionalism is the idea that government should be limited
in its powers and that its authority depends on its observation of these limitations. A constitution
is the legal and moral framework setting out these powers and their limitations. This framework
must represent the will of the people, and should therefore have been arrived at through consensus.

India is a democratic country with a written Constitution. Rule of Law is the basis for governance
of the country and all the administrative structures are expected to follow it in both letter and spirit.
It is expected that Constitutionalism is a natural corollary to governance in India. But the
experience with the process of governance in India in the last six decades is a mixed one. On the
one hand, we have excellent administrative structures put in place to oversee even the minutest of
details related to welfare maximization but crucially on the other it has only resulted in excessive
bureaucratization and eventual alienation of the rulers from the ruled. Due to the excessive
corruption prevailing in institutions of the state, The government loses its credibility, suffers
economic loss and hampers the growth rates. Since independence, those regions which were
backward remained the same, the gap between the rich and poor has widened, people at the bottom
level of the pyramid remained at the periphery of developmental process, bureaucracy retained
colonial characters and overall development remained much below the expectations of the people.

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 RESEARCH METHODOLOGY

This project work is descriptive and analytical in approach. It is a Non- empirical research project
that is conducted with secondary data, which is when you analyse various statutes, articles,
journals etc, That have been research already. It is largely based on secondary and electronic
sources of data. Class notes and other references as guided by faculty of Constitutional
Governance-1 were primarily helpful for the completion of this project. My research methodology
requires gathering relevant data from the specified books and other online sources. Several
magazines and reports and journals were used in the study.

RESEARCH PROBLEM

My research problem includes various constituent problems steming from the main topic-
Corruption. The main problems include to investigate the existing form of constitutionalism,
Corruption’s role in creating political instability, corruption as an instigating fuel of social distress,
main reasons of corruption and ways to tackle it.

RATIONALE

The main rationale behind choosing this topic as a research was the amount of growing
dissatisfaction among people regarding the governmental regimes and their inability to provide
relief in times of distress. The institutional crisis of the three organs of state is fuelled by a
destructive catalyst-Corruption on each layer of the work process. Several instances of lack of
accountability on government’s part and feeling of social distress among the common masses
makes this research a contemporary finding on the existing problem.

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OBJECTIVES

• To find out the true meaning of constitutionalism in contemporary and its degree of
variation from the original concept.
• To analyse the institutional damage of the three organs by corruption so as to create
distrust among the people.
• To find out the political instability and social disorder followed by the corruption’s
damage and its effect on limiting powers of government and jeopardising supremacy of
law.

RESEARCH QUESTION

The research question starts from finding the true meaning of contemporary constitutionalism in
today’s world, corruption’s effect on social and political deterrents to maintain a limited
government, how this institutional breakdown can be prevented by checking corruption through a
well-mechanised system.

REVIEW OF LITERATURE

• HANSEN‐MAGNUSSON, H. and WIENER, A. (2010), Studying Contemporary

Constitutionalism: Memory, Myth and Horizon. JCMS: Journal of Common Market
Studies, 48: 21-44- The approach is conceptualized following critical constructivist
research on constitutionalism that focuses on experience and expectation when studying
the contested meaning of norms in international relations. It argues that the concept of
memory offers an important view on the language‐based concept of experience which
extends beyond the confines of behavioural approaches that study habitual change with
regard to norms. The article offers a conceptual discussion of approaches to

8
 constitutionalism, emphasizing the distinction between modern and contemporary
constitutionalism and their respective foci on regulatory versus cultural practices,
introduces a praxeological dimension of horizons and elaborates on political memory and
myth as concepts of functional memory.
• Kahn, P. (1993). Interpretation and Authority in State Constitutionalism. Harvard Law
Review, 106(5), 1147-1168. doi:10.2307/1341687- The premise rests on an idea of state
sovereignty that at best is a romantic longing for vibrant local communities and at worst
misunderstands modern American constitutionalism. The aim is to show that state
constitutionalism can survive the abandonment of this premise and that, in fact, the
doctrine of unique state sources threatens to undermine the renewed interest in and
growth of state constitutional law.
• Constitutional Court Review 2019 Volume 9, 45–79 https://doi org/10 2989/CCR 2019
0003-This article has put forward a ‘democratic process’ theory, which includes a
specific case for ‘representation-reinforcing review’ aimed at promoting ‘principal/
agent’ accountability. The article shows that the Court’s implicit recognition in recent
cases of constitutional standards governing the relationship between representatives and
voters (a ‘principal/agent’ relationship) in a representative democracy and the express
principle of accountability in a constitutional state provides justification for the more
troubling decisions reached and bright lines for future cases.

CONCEPTS AND VARIABLES

The research deals with the issue of corruption and its potential threat towards the contemporary
constitutionalism. The social and political factors that leads to widespread corruption in each
domain of the state. The check and balances in the separation of powers and an independent
judiciary could mitigate the malpractice along with various well-implemented penal laws and
service rules so as to inculcate the right work-ethics.

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HYPOTHESIS

The main hypothesis involved in this research are as follows-

• Constitutionalism envisaged in its truest spirit is essential for the welfare of a democratic
nation.
• The sovereignty of the three organs of the state is jeopardised owing to the unwanted
interference by authorities through corruption.

RESEARCH DESIGN

The design of this research topic is of review nature. My research topic is “Corruption as a social
and political threat to the constitutionalism in contemporary: A critical analysis”. The data
collection method is secondary which is the collection of data from articles, magazines, journals,
websites etc. it is a Doctrinal (Non- empirical) research.

CHAPTERIZATION OF THE STUDY

The produced research is presented in successive chapters structured in easy to grasp format.
Chapter 1- Meaning and role of constitutionalism in contemporary, Chapter- 2 Corruption as a
destructive social and political catalyst for constitutionalism, Chapter-3 Instruments of restraint-
independent judiciary and division of powers, Chapter -4 Controlling corruption and finally
concluding the research and providing suggestions.

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TIME DURATION OF THE STUDY

The research project required 40 days of extensive study of the concepts covered and reach a
deducable conclusion so as to add a new logical finding to the existing literature.

LIMITATIONS OF THE STUDY

The research being generic in nature only tries to analyse and put forward solutions for well-
established democracies. Also, there is no specific account of economic growth of nations
possessing democracies.

CONTRIBUTIONS OF THE STUDY

This project deals with a unique approach of limiting or balancing powers while also giving room
to flexible administration so as to prevent over- regulatory regimes. Moreover, the solutions
include constitutional remedies of separation of powers to curb arbitrariness.

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 CHAPTER-1

MEANING AND ROLE OF CONSTITUIONALISM IN CONTEMPORARY

TIMES

Constitutionalism is the idea that government should be limited in its powers and that its
authority depends on its observation of these limitations. A constitution is the legal and moral
framework setting out these powers and their limitations. It usually refers to various
constitutional devices and procedures, such as the separation of powers between the legislature,
the executive and the judiciary1. The independence of the judiciary, due process or fair hearings
for those charged with criminal offences, and respect for individual rights, which are partly
constitutive of a liberal democratic system of government, independent judiciary, respect for
individual rights and the right to self- determination are essential features of constitutionalism.
The central purpose of constitutionalism is to limit governmental power, to check and restrain
the persons who hold public office and exercise political authority. The task before judiciary is
of balancing fundamental rights and age old religious traditions. Every religion has its own
practices, which are a mystery. There are beliefs not supported by reason.

The legislature and courts have intervened to abolish religious practices which are crime under
the non-constitutional authorities. It is not only the authority of the judiciary which is under
challenge by social media, online articles & opinion needs but every kind of authority worth its
name. Our Constitution provides for parliamentary form of government. Presently, the
parliamentary system is at crossroads because of the declining number of sittings of legislatures,
persistent disruptions, declining quality of debates, growing number of legislatures with criminal
records, inadequate representation of women, and increase in money and muscle power in
elections, Electoral reforms, lack of inner democracy in functioning of the political parties
among others. Thus, there is a strong need to understand the truest sense of constitutionalism by
placing the government under requisite checks and protecting freedom and rights of individuals.

1
O'Donoghue, Aoife (2014). _Constitutionalism in Global Constitutionalisation_. Cambridge University Press.

12
 CHAPTER-2

CORRUPTION- A DESTRUCTIVE SOCIAL AND POLITICAL

CATALYST FOR CONSTITUTIONALISM

Corruption is the misuse of public power (by elected politician or appointed civil servant) for
private gain. Restraining the potential use and abuse of state power is a challenge for any
country. When this tendency works under those in power it can prove out to be lethal for a
democratic country. Corruption attacks the constitutionalism on two fronts-

1. Social lubricant for Arbitrary regimes and general mistrust- Widespread deviation from the
assigned function creates despotism which will lead to authoritarian, oppressive governments
jeopardising freedom of people. When all the other organs of the state whose primary function is
to check the government from extrapolating their domain, in lieu of money and personal gains
opt a blind eye towards their constitutional obligation, thus creating an arbitrary and
authoritarian regime. People’s freedom will be affected and their rights would be tampered with.
Bribery and corruption introduces an opaqueness into the relationship between buyers and
sellers, between those who issue contracts and those who tender for them, between those who
hold political power and citizens who must obey authority. This in turn leads to a weakening of
trust in ostensibly fair practice at one level, and in disillusionment with political and market
procedures at another level2.

2. Political deformations and single party rule- When the three organs will collude and effectively
function under the government’s direction, this will lead to hampering of political structure. In a
way this would further weaken the opposition and the basic formalities would suffer. The
government through its unopposed mandate will try and bring laws that directly or indirectly
bolster their authority and say in nation-making process and enforce their own ideological
agenda.To prevent this democratic disaster from happening, it is important for three institutions-
Legislature, executive and Judiciary to work independently and free from external pressure.

2
Yusuf, H. O. (2007). The Judiciary and Constitutionalism in Transitions: A Critique, Global Jurist

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 CHAPTER-3

INSTRUMENTS OF RESTRAINT: INDEPENDENT JUDICIARY AND

DIVISION OF POWERS

Sustainable development generally calls for formal mechanisms of restraint that hold the state
and its officials accountable for their actions3. To be enduring and credible, these mechanisms
must be anchored in core state institutions; if these are too weak, external mechanisms such as
international adjudication may substitute temporarily. The two principal formal mechanisms of
restraint are a strong, independent judiciary and the separation of powers.

JUDICIAL INDEPENDENCE AND EFFECTIVENESS- To prosper, economies need

institutional arrangements to resolve disputes among firms, citizens, and governments; to clarify
ambiguities in laws and regulations; and to enforce compliance. The special relation to the rest of
the state puts the judiciary in a unique position to support sustainable development, by holding
the other two branches accountable for their decisions and underpinning the credibility of the
overall business and political environment. Yet judiciaries can play this role only when three
core conditions are met: independence, the power to enforce rulings, and efficient organization.
Judicial independence has been repeatedly compromised in some countries, and in no country
has the judiciary been immune from political efforts to override its decisions. Legislatures and
executives have used a variety of gambits to rein in their judiciaries. The effectiveness of the
judiciary also depends on its decisions being enforced. In practice that means that other branches
of the government must consent to provide the resources needed for enforcement, including
personnel authorized by law to serve court documents, to seize and dispose of property, and to
turn the proceeds over to the winning parry. In many countries this enforcement capability is
constrained. Another important component of judicial effectiveness is organizational efficiency,
which is needed to avoid long delays in clearing cases.

DIVISION OF POWERS- Judiciaries may be capable of enforcing rules, but if the public has
little faith in those rules remaining stable, the state's credibility can still be compromised. The

3
antiago Basabe-Serrano. (2019) The Judges’ Academic Background as Determinant of the Quality of Judicial
Decisions in Latin American Supreme Courts. Justice System Journal 40:2, pages 110-125.

14
classic constitutional mechanism for restraining constant legislative changes is the horizontal and
vertical separation of powers. Power can be divided horizontally among the judiciary, the
legislature, and the executive, and vertically between central and local authorities4. The patterns
of a country's political party organization -which can range from a small number of highly
disciplined parties to a large number of parties whose members only loosely abide by a party
line, and that can govern only by forming multiparty coalitions-also influence the extent to
which political power is concentrated or diffused. The broader the separation of powers, the
greater will be the number of veto points to be navigated to change any rule-based
commitments5. Thus the separation of powers increases confidence in the stability of rules.. In
some countries legislative oversight is weak because of poor capacity and inadequate
information. In others the executive dominates a compliant legislature. But like the development
of a well-functioning judicial system, the formal elaboration of constitutional checks and
balances, or their more effective institutionalization, is a gradual process.

EXTERNAL MECHANISMS AND BUILDING FLEXIBILTY- To some extent, extraterritorial

and international restraints can substitute for limitations on the ability of national institutions to
enforce rules or to signal credibly that the rules will remain reasonably stable over time. One
option is to use extraterritorial adjudication to underpin the domestic judicial system..
Instruments for restraining government need to be complemented by institutional arrangements
that build in flexibility for the executive branch in formulating and implementing policies and
adapting to new information and changing circumstances. Delegated legislation authority is one
such freedom to executive agencies to define the substance and undertake the implementation of
policy. But they also require these agencies to follow procedures that open their decisions to
input and oversight by other arms of the state and by civil society and businesses Bureaucracies
are embedded in processes that provide ample opportunity for outside input and oversight, the
risk remains that officials will pursue personal rather than organizational goals. Self-seeking
behaviour can degenerate into corruption when private interests wield their influence in illegal
and secret ways, circumventing the legal and bureaucratic rules designed to keep them out.

4
Azfar, O., Nelson, W.R. Transparency, wages, and the separation of powers: An experimental analysis of
corruption. Public Choice 130, 471–493 (2007)
5
Scott A. Fritzen, J. Patrick Dobel. (2018) Transforming Corrupt Systems: What Have We Learned?. Public
Integrity 20:sup1, pages S60-S73

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 CHAPTER-4

CONTROLLING CORRUPTION

Corruption flourishes where distortions in the policy and regulatory regime provide scope for it
and where institutions of restraint are weak. The problem of corruption lies at the intersection of
the public and the private sectors. It is a two-way street. Private interests, domestic and external,
wield their influence through illegal means to take advantage of opportunities for corruption and
rent seeking, and public institutions succumb to these and other sources of corruption in the
absence of credible restraints.

CAUSES OF CORRUPTION-Any policy that creates an artificial gap between demand and
supply creates a profitable opportunity for opportunistic middlemen. Corruption may be high in a
country where the government system does little to deter bribes. Corruption can even persist in
countries with substantial press freedom and public resentment against it, if there is little hope of
independent judicial resolution of important cases6. Corruption may thrive if the consequences of
being caught and disciplined are low relative to the benefits.

REDUCING CORRUPTION- 1-Clarify and streamline laws in ways that reduce official
discretion.2- Introduce market-based schemes that limit the discretion of regulator.3- Adopt
administrative reforms that introduce competitive pressures into government.4- Whistleblower
statutes protect and reward public employees who report the malfeasance of co-workers or
government contractors7. 5. Independent ombudsman commission work substantially to reduce
instances of corruption. 6- Public exposure of corruption through the media is another option.7-
Contract for services with a private company, possibly a foreign firm with no close ties to the
country.

6
Anthony M. Bertelli, Valentina Mele, Eleanor Florence Woodhouse, Corruption, Democracy, and Privately
Financed Infrastructure, Administration & Society, 10.1177/0095399720944548, (009539972094454), (2020).
7
MICELI MP, REHG M, NEAR JP, RYAN KC. Can Laws Protect Whistle-Blowers?: Results of a Naturally
Occurring Field Experiment. Work and Occupations. 1999;26(1):129-151. doi:10.1177/0730888499026001007

16
 CONCLUSION AND SOLUTIONS

Pressures for reform are on the rise everywhere. Private entrepreneurs and firms want the
credibility of state actions anchored by a well-functioning system of property rights. Citizens are
demanding more responsive and effective delivery of public services and greater probity in the
use of public resources. At the same time, globalization is increasing demands for a more agile
state, one that can respond quickly to changing circumstances. These pressures have magnified
the state's dilemma: how to check arbitrary decision-making without building rigidities that
inhibit innovation and change. The fundamental challenge is to devise institutional arrangements
that sustain a workable balance between flexibility and restraint. Governments should publish
budgets, revenue collection data, statutes and rules, and the proceedings of legislative bodies.
Financial data should be audited by an independent Authority. Unaudited secret funds or
extrabudgetary funds available to chief executives are an invitation to corruption. The rapid
development of rules of corporate governance around the world is also prompting companies to
focus on anti-corruption measures as part of their mechanisms to protect their reputations and the
interests of their shareholders. Their internal controls are increasingly being extended to a range
of ethics and integrity issues and a growing number of investment mangers are looking to these
controls as evidence that the companies undertake good business practice and are well managed.
In several countries the capricious exercise of state power coupled with rampant and
unpredictable corruption has undermined development. Reforming the civil service (for instance,
by raising pay and restraining political patronage in recruitment and promotion), reducing
opportunities for officials to act corruptly (for instance, by increasing competition and reducing
officials' discretionary authority), and enhancing accountability are other essential steps. s.
Strengthening mechanisms for monitoring and punishment of the people who pay bribes as well
as those who accept them will require vigorous enforcement of criminal law. But it will also
require oversight by formal institutions such as statutory boards and by ordinary citizens
(through voice and participation).

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 BIBLIOGRAPHY

1. Maxim Mironov, “Bad corruption, good corruption and growth”, Graduate School of
Business, University of Chicago, November 14th 2005.

2. David Kenedy, “The stakes of law, or Hale and Foucault”, p. 327.

3. “Why the “Haves” come out ahead: Speculations on the limits of legal change”, Marc
Galanter, Law and Society Review. Vol. 9, No. 1, (1974).

4. Andrew G. Berg and Jonothan D. Ostry, “Equality and efficiency”, Finance and
Development, IMF, 2011.
5. "How much do the corrupt earn?". The Economic Times. 11 September 2011. Archived
from the original on 8 April 2016. Retrieved 11 December 2011.
6. "Corruption in India – A rotten state". The Economist. 10 March 2011. Archived from
the original on 18 August 2012.
7. Dwivedy, Surendranath; Bhargava, G. S. (1967). "Political Corruption in India"
8. "Survey on Bribery and Corruption – Impact on Economy and Business
Environment" (PDF). KPMG. 2011. Archived (PDF) from the original on 8 November
2012.
9. Transparency International – the global coalition against corruption, Transparency.org,
archived from the original on 24 July 2011, retrieved 7 October 2011.

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