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Good Governance and Fundamental Rights
"Good governance is perhaps the single most important factor in eradicating poverty and promoting development."

                                               - UN Secretary - General Kofi Annan

1. Meaning of Good Governance:
Good governance is associated with efficient and effective administration in a democratic framework. It is considered as citizen-friendly, citizen caring and responsive administration. Good governance emerged as a powerful idea when multilateral and bilateral agencies like the World Bank, UNDP, OECD, ADB, etc. realized that project success substantially depended on conditions of governance in the aid receiving countries [1].

In general, good governance is perceived as a normative principle of administrative law, which obliges the State to perform its functions in a manner that promotes the values of efficiency, non-corruptibility, and responsiveness to civil society [2]. According to the World Bank, governance is "the manner in which power is exercised in the management of a country's economic and social resources for development. "United Nation Development programme while defining concept of good governance placed greater emphasis on sustainable human development .the UNDP emphasizes the human development, the elimination of poverty and public administration [3]. 

As per the Oxford dictionary, 
Administration means 
(a). Management of a business, institution, a government agency. 
(b). the management of public affairs; government, 
(c). the administration of justice, etc. 

Govern or Governance means
(a). rule or control with authority.
(b). conduct the policy and affairs of government and organizations. 
(c). Influence or determine a course of action. 
(d). Be the predominating influence. 
(e). Be a standard or principle for; constitute a law for; serve to decide. 
(f). Check or control {especially passions}. Adding "effective or good" makes them better. 

Simply put, Effective Administration = Effective Management & Good Governance = Good Management of India [4]. 

2. Origin:
The use of the term "good governance" was initially articulated in a 1989 World Bank publication [5]. The concept of good governance in international law has also been well received under the rubric of human rights. Increasingly, in international development literature, the concept of good governance parallels a normative (rule-setting) formulation, which reflects the degree to which it promulgates the universality of civil, cultural, economic, political and social rights [6]. 

The United Nations High Commissioner for Human Rights (UHCHR) identifies five key attributes of good governance [7] as follows: 
1) Transparency; 
2) Responsibility; 
3) Accountability;
4) Participation and; 
5) Responsiveness 

The concept of governance is as old as human civilization. What is "Governance"? It simply means the process of decision making and the process by which decisions are implemented. 

The quality of governance depends, in a large measure, upon the indulgence shown by subjects.

Speaking on basis of experiences of medieval period and the times of colonial rule, in particular in the continents of Africa and Asia, some political scientists would use sarcasm in describing the system of governance one such scientist [8] said: "the marvel of all history is the patience with which men and women submit to burdens unnecessarily laid upon them by their governments". Yet others [9] would not mince words in describing the business of governance thus: "So they [the government] go on in strange paradox, decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all-powerful to be impotent". 

The world has come a long way since the times of such skepticism. The majority of the member States of the comity of nations today are founded on the principle of "Welfare State", run with full participation of their respective inhabitants, striving to achieve the common good and in the process affording optimum opportunity and involvement for growth of the individual so as to sub serve the societal interests. This has led to evolution of "Good Governance", as opposed to mere governance, as the umbrella concept encompassing within it a system of governance that is able to unequivocally discover the basic values of the society where standards concern economic, political and socio-cultural issues including those involving human rights, and follows the same through an accountable and upright administration.
 
3. Good Governance and Fundamental Rights:
The Karnataka Lokayukta Hon'ble Mr. Justice N. Santosh Hegde in the first CIPS Foundation Day Lecture said that Good governance is a fundamental right of a citizen and democracy. Such governance includes factors such as transparency and accountability. It also includes values such as justice and equity. It must ensure that the citizens', especially the poorest, basic needs are met and they have a life with dignity. Good governance implies an administration that is sensitive and responsive to the needs of the people and is effective in coping with emerging challenges in society by framing and implementing appropriate laws and measures. It includes strict rules of accountability. 

It could be centered on community groups or individuals and based on a notion of rights as inherently comprising duties. Rulers must be strictly bound by generally accepted norms and controlled by institutions to enforce those. Good governance must be made a fundamental right and justiciable there was scope for corruption within the Constitutional framework as well as outside it. Therefore, good governance must be made a fundamental right under the Constitution. 

The government must amend laws to include a timeframe to carry out work in a transparent manner that ensured accountability. Penal clauses must also be introduced so that action could be taken against the official. Provision must be made for compensating the wronged citizen making good governance a fundamental right, widening the scope of the definition of corruption and creating the Lokpal institution through an act of Parliament. More importantly, the Lokpal institution should be accountable to the Lok Sabha and the general public [10]. According to the UN High Commissioner for Human Rights, the true test of "good" governance is the degree to which it delivers on the promise of human rights: civil, cultural, economic, political and social rights. 

The key question is: are the institutions of governance effectively guaranteeing the right to health, adequate housing, sufficient food, quality education, fair justice and personal security?

The concept of good governance has been clarified by the work of the Commission on Human Rights. Its resolution 2000/64 expressly linked good governance to an enabling environment conducive to the enjoyment of human rights and "prompting growth and sustainable human development." 

By linking good governance to sustainable human development, emphasizing principles such as accountability, participation and the enjoyment of human rights, the resolution stands as an implicit endorsement of the rights-based approach to development. In its resolution 2001/72, the Commission on Human Rights reaffirmed its earlier resolution by consensus. The following section builds on the ideas of democracy and democratic governance, that is, good governance relative to the development process [11]. 

The UNDP Human Development Report 2002 further elaborated on the concept of 'democratic governance' that is governance that would promote human development. Like the concept of 'good governance', democratic governance seeks efficient institutions, and a predictable economic and political environment necessary for economic growth and effective functioning of public services. But the concept of democratic governance concerns political freedom and human rights, and removal of discrimination as central objectives. A reform agenda would aim at building institutions and rules that are not just efficient but also fair, and that are developed through a democratic process in which all people have a real political voice. 

Democratic governance thus incorporates into the notion of good governance for development, democratic processes and institutions, and a concern with the securing of political and civil rights and freedoms as human rights [12].

The views evolved in UN Economic & Social Commission for Asia & the Pacific is almost identical. It holds that "Good Governance has 8 major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society." 

All these expressions convey theories pregnant with time-tested concepts. The "participation" in order to be effective, needs to be informed & organized and, therefore, depends upon the availability to the subjects "freedom of association & expression" on one hand and existence of "an organized civil society" on the other. This necessarily is a pointer to "representative democracy". The attribute of "rule of law" inheres as prerequisite "fair legal frameworks" that are enforced impartially and particularly "full protection of human rights", especially of the vulnerable sections of the society. 

The factor of "transparency" requires that information is freely available and the decisions are taken or enforced in a manner that adheres to the rules and regulations. The attribute of "responsiveness" necessitates that all public institutions and their processes strive "to serve all stake holders within a reasonable time frame". Democracy, liberty and the rule of law together represent the troika that is universally accepted now as the index of a civil society. Democracy signifies a government of, by and for the people. 

The protection of individual liberties follows the notion of democracy as a natural corollary. This entails the espousal of a methodical configuration of laws by which society might be regulated and different conflicting interests can be harmonized to the fullest extent. This is why "the rule of law" is indispensable. It envisages the pre-eminence of law as opposed to anarchy or capricious dictates. It involves equal accountability of all before the law irrespective of high or low status [13]. 

Democracy has been evolved through centuries of experience amongst the people, who care for human person, dignity & rights as the best and most acceptable form of good governance. It is a concept that occasions the idea that all citizens have a right to participate in the decision-making processes that lead to adoption of policies that are applicable to the societies [14].  India incorporated a number of basic human rights as guaranteed fundamental rights, elaborated in every possible manner, in Part III of the Constitution. These fundamental rights go much beyond the American Bill of Rights. 

They did draw upon the Universal Declaration of Human Rights issued by the United Nations in 1948 but went ahead of them by incorporating alongside, in Part IV of the Constitution, certain 'Directive Principles of State Policy' which are principles that would be fundamental for "good governance" of this country [15].  

The Directive Principles have been used as fundamental principles of governance tempered by the Fundamental Rights. From Article 37 time to time, adjustments have been made in the Fundamental Rights -- through legislative measures, executive action or judicial Pronouncements so as to further the object sought to be achieved by the Directive Principles. After all, the purpose of the Fundamental Rights on the one hand and the Directive Principles on the other is common; viz., to provide for an environment that can ensure dignified growth & development of each individual as a useful human being.

4. Role of Indian Judiciary:
There is no area where the judgments of Supreme Court have not played a significant contribution in the governance - good governance - whether it be - environment, human rights, gender justice, education, minorities, police reforms, elections and limits on constituent powers of Parliament to amend the Constitution. 

In Prem Shankar Shukla [16], the Supreme Court found the practice of using handcuffs and fetters on prisoners violating the guarantee of basic human dignity, which is part of the constitutional culture in India and thus not standing the test of equality before law (Article 14), fundamental freedoms (Article 19) and the right to life and personal liberty (Article 21). (iv) In Nilabati Behera, the Supreme Court asserted the jurisdiction of the judiciary as "protector of civil liberties" under the obligation "to repair damage caused by officers of the State to fundamental rights of the citizens", holding the State responsible to pay compensation to the near and dear ones of a person who has been deprived of life by their wrongful action, reading into Article 21 the "duty of care" which could not be denied to anyone. 

For this purpose, the court referred to Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 which lays down that "anyone who has been the victim of unlawful arrest or Detention shall have an enforceable right to compensation" [17]. In (vi) In Delhi Domestic Working Women's Forum, the Court asserted that "speedy trial is one of the essential requisites of law" and that expeditious investigations and trial only could give meaning to the guarantee of "equal protection of law" under Article 21 of the Constitution [18]. In (viii) In D.K. Basu [19], the Court found custodial torture "a naked violation of human dignity" and ruled that law does not permit the use of third degree methods or torture on an accused person since "actions of the State must be right, just and fair, torture for extracting any kind of confession would neither be right nor just nor fair". 

In Vishaka [20] Supreme Court said that "gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance. 

In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein and for the formulation of guidelines to achieve this purpose…. in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at all workplaces, guidelines and norms are hereby laid down for strict observance at all workplaces or other institutions, until a legislation is enacted for the purpose. 

This is done in exercise of the power available under Article 32 for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by the Supreme Court under Article 141 of the Constitution." Judiciary has, thus, played a crucial role in development and evolution of society in general and in ensuring good governance by those holding reins of power in particular. Perhaps, there can be no two views about the significance of the role expected of judiciary, viz, the goal and good governance in a free society.

5. Core Characteristics of Good Governance:
  • Participation - All men and women should have a voice in decision-making, either directly or through legitimate intermediate institutions that represent their interests. Such broad participation is built on freedom of association and speech, as well as capacities to participate constructively
  • Rule of law - Legal frameworks should be fair and enforced impartially, particularly the laws on human rights
  • Transparency - Transparency is built on the free flow of information. Processes, institutions and information are directly accessible to those concerned with them, and enough information is provided to understand and monitor them
  • Responsiveness - Institutions and processes try to serve all stakeholders
  • Consensus orientation - Good governance mediates differing interests to reach a broad consensus on what is in the best interest of the group and, where possible, on policies and procedures
  • Equity - All men and women have opportunities to improve or maintain their well being
  • Effectiveness and efficiency - Processes and institutions produce results that meet needs while making the best use of resources
  • Accountability - Decision-makers in government, the private sector and civil society organizations are accountable to the public, as well as to institutional stakeholders. This accountability differs depending on the organization and whether the decision is internal or external to an organization.
  • Strategic vision - Leaders and the public have a broad and long-term perspective on good governance and human development, along with a sense of what is needed for such development. There is also an understanding of the historical, cultural and social complexities in which that perspective is grounded [21]. 
6. Suggestions and Conclusion: 
  • Decontrol of all higher & technical education, including vocational education and training. Government should only concentrate from KG to Class 10th. License Raj in education to go! School drop rate is 94%. Rs. 50,000 Crores per year is repatriated for Indian students studying abroad! 
  • 65% of Indians live in rural India. The average Indian earns about US$1.66 per day. As per the World Bank, the Poverty Line threshold was US$1 per day per person now the same has been revised to US$2 per day per head. Because of this the central as well as State Governments have various schemes to benefit the poor, needy and down trodden. It is estimated that such funds hardly reach the people for whom this is meant. The total sum under various schemes amounts to Rs. 36,000 crores per year or Rs. 3000 crores per month, nearly Rs. 100 crores per day. Experiments conducted in some blocks in the state of Gujarat have shown that by investing about Rs 1 lac per year, it is possible to organize the channeling of nearly Rs. 100 lacs funds meant for the poor and needy. This actual case study deserves the highest attention
  • Drinking Water disinfection @ 5np for 100 liters of water CSR Prevention is better than cure. It is much more economical; providing clean drinking water rather than curing the people after wards when they are sick. Local solutions available. 
From the above discussion it should be clear that good governance is an ideal which is difficult to achieve in its totality. Very few countries and societies have come close to achieving good governance in its totality. However, to ensure sustainable human development, actions must be taken to work towards this ideal with the aim of making it a reality. 

References:
[1] Rajalakshmi Mishra, Good Governance and Changing Role of Bureaucracy in Developing Countries: The Indian Expirience, in Globalization and Good Governance 204, (R.B.Jain., ed., 2005).
[2] Compare J.N. Rosenau, Along the Domestic-Foreign Frontier: Exploring Governance in a Turbulent World (Cambridge: Cambridge University Press, 1997).
[3] Sam Agere, Promoting Good Governance: Principles, Practices, Perspectives, Commonwealth Secretariat Marlborough House Pall Mall, London UK, 200, p.3.
[4] http://www.wakeupcall.org/administration_in_india/india_superpower.php
[5] World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth (Washington: World Bank, 1989) [World Bank,Africa].
[6] Office of the High Commissioner for Human Rights, Development - Good Governance, online: OHCHR http://www.ohchr.org/english/issues/development/governance/
[7] Ibid.
[8] William H. Borah.
[9] Sir Winston Churchill, former Prime Minister of England, in an Address on 12th November 1936.
[10] http://www.thehindu.com/news/cities/Mangalore/article2213679.ece
[11] http://www.unhchr.ch/development/governance-01
[12] Source: UNDP, Human Development Report 2002.
[13] Justice Y K Sabharwal, Role of Judiciary in Good Governance
[14] See Article 25 of the International Covenant on Civil and Political Rights; Article 3 of Protocol I to the European Convention on Human Rights; and Article 23 of the International American Convention on Human Rights.
[15] Article 37 of the Indian Constitution.
[16] 1980 SCC 526.
[17] 1993 SCC 746.
[18] 1995 SCC 14.
[19] AIR 1997 SC 610.
[20] (1997) 6 SCC 241.
[21] UNDP Report, Governance for Sustainable Human Development, 1997.

Published by 
Mr. Sandip Bhosale
LL.M Student at Rajiv Gandhi National University of Law, Patiala
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Published by Sandip Bhosale on June 27, 2012



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