Ethical Dilemma and the Process of Decision-Making

Dr Awdhesh Singh, IRS (Retd.)

Director Awdhesh Academy,

Former Commissioner (Customs & Indirect Taxes)

Prevention of Corruption Act

Permission of start investigation (Before amendment) • CBI needs no permission to make cases of outright corruption like

trap cases

• CBI can start investigation against any Central Government public servant

• For the inquiry against a joint secretary or above officer in the Government, investigation should be approved by a competent authority which would be either an Additional Director, a Special Director or the Director of the CBI.

Amendment of PCA (Insertion of 17A)

• Investigating agencies will have to get prior sanction of the appropriate authority in government to probe officials in certain cases, including retired ones.

• Prior approval of the competent authority is now needed if the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties,

• Permission must be given within a period of three months, which may be extended by a further period of one month for genuine reasons.

Permission to Prosecute officers

• Permission of Central or State Government is required to prosecute the officers

• Permission is given by the authority competent to remove the officer from service.

• Permission for Group A officers is given by the Ministry

• Permission up to the rank Group B officers is given by the Head of Department

Other Important changes in PCA

• Criminal misconduct will now only cover misappropriation of property and possession of assets disproportionate to income.

• Punishment to bribe givers increased from three years up to seven years.

• A person compelled to give bribe would have to report the matter to the law enforcement authority or investigative agency within seven days to get immunity.

• The Special Judge shall ensure the completion of the trials within a period of two years from the date of filing of the case. A case has to be closed within four years.

Responsibility of Commercial organizations

• The changed law also includes commercial organisation into its ambit.

• “A commercial organisation shall be guilty of an offence and shall be punishable with fine if any person associated with the commercial organisation, gives or promises to give, any undue advantage to a public servant,”

Q. In which year, ‘Prevention of Corruption Act’ was passed.• 1962

• 1964

• 1988

• 1991

Q. How much time is provided for a bribe giver to report the matter to the law enforcement authority?A. 10 days

B. 7 days

C. 14 days

D. None of the above.

Central Vigilance Commission (CVC)

• 1955: Administrative Vigilance Division was set up in Ministry of Home Affairs for anti-corruption measures

• 1964: Central Vigilance Commission (CVC) was set through a Government of India resolution

• 1998: CVC ordinance was issued to give it a statuary status

• 2003: Central Vigilance Commissioner Act was passed by Parliament

Constitution of CVC

• Headed by a Central Vigilance Commissioner

• Consists of not more than two Vigilance Commissioner

• Appointed by President of India for a period of four years or till they attend the age of 65 years

• Shri Suresh N. Patel, former banker is the Vigilance Commissioner (looking the charge of CVC). He was the Managing Director & CEO of Andhra Bank.

Appointment of CVC

• CVC and VC are appointed by President of India on the recommendation of a Committee consisting of the

1. Prime Minister (Chairperson), 2. The Minister of Home Affairs (Member) and3. The Leader of the Opposition in the House of the People (Member).

• They are appointed for a period of four years or till they attend the age of 65 years, whichever is earlier.

• They can be removed only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the CVC or any VC, as the case may be, ought to be removed.

Functions of CVC

• Supervises the functioning of CBI investigations under Prevention of Corruption Act

• Supervises corruption complaints against officers of All Indian Services, Central Government Group A officers and the officers of Central PSUs and Autonomous organizations

• Investigates complaints received from Government

• Orders investigations into complaints

• Advises Central Government and its agencies/departments on corruption related matters

• Oversees the works of Chief Vigilance Officers (CVO)

Chief Vigilance Officer (CVO)

• Each organization of Central Government has a designated CVOs

• Most CVOs are from outside the departments on deputation

• They reports to the Head of the Organization

• CVOs acts as a nodal point to CVC and CBI for all vigilance related matters

• CVOs are guided by the CVC while performing their functions

Central Bureau of Investigation (CBI)

History of CBI

• The CBI was established in 1941 as the Special Police Establishment, tasked with domestic security.

• It was renamed the Central Bureau of Investigation on 1 April 1963.

Appointment of CBI Director

• The CBI director is selected based on the CVC Act 2003, and has a two-year term.

• CBI director is appointed on the recommendation of CVC by a committee consisting of :

1. Prime Minister – Chairperson

2. Leader of Opposition – Member

3. Chief Justice of India or a Supreme Court Judge recommended by the Chief Justice – Member

Supervision of CBI

• The CBI is subject to supervision by the following:1. Ministry of Home Affairs: Cadre clearance

2. DoPT: Administration, budget and induction of non IPS officers

3. Law and Justice Ministry: Public prosecutors

4. Central Vigilance Commission: Anti-corruption cases

Supervision by Courts

• The High Courts and the Supreme Court also have the jurisdiction to order a CBI investigation into an offence alleged to have been committed in a state without the state's consent

• The court, however, clarified this is an extraordinary power which must be exercised sparingly, cautiously and only in exceptional situations.

Ethical Dilemma

Ethical Dilemma

• An ethical dilemma or ethical paradox is a decision-making problem between two possible moral imperatives, neither of which is unambiguously acceptable or preferable.

• Ethical dilemmas are the situations in which there is conflict between two of more moral values or principles where you have to choose one of the ethical principle and give up the other.

• Ethical situations involves actions and decisions which are based on moral agent’s choice and volition and which significantly affect other individuals.

Causes of Moral Dilemma

1: Conflict of Ethical Principles: The dilemma that arises due to conflict in the normative ethical principles like virtue ethics, deontology, teleology and relational ethics

2. Conflict of End and Means: The dilemma that is encountered in following the process of justice or achieving the end of justice viz. the conflicts between ends and means.

3: Conflicts of Prima-facie principles: The dilemma that arises due to the conflicts of different prima-facie principles like honesty, promise keeping, justice, beneficence etc.

1: Conflict of Ethical Principles

Ethical Principles

• There is no universal definition of ethics.

• The ethical principles sometimes conflicts with each other.

• The moral principles like Fairness, Honesty, Justice, Integrity, Truthfulness, Generosity and Benevolence sometimes conflict with each other

• Normative ethics investigates how one ought to act morally in a given situation

Normative ethical theories

• Virtue ethics: (Advocated by Aristotle) • It focuses on the inherent character of a person rather than on specific

actions.

• Deontology (Based on Immanuel Kant's Categorical Imperative)• Argues that moral laws and inviolable and must be followed in all cases

• Teleology (Utilitarianism)• Which holds that an action is right if it leads to the most happiness for the

greatest number of people.

• Relationship Ethics • Morality arises out of the experiences of empathy and compassion.

2: Ethical Dilemma of Means and Ends

End and Means

• Some people believe that end justifies means.

• Some people believes that means are as important as ends.

• If evil means are used to achieve good ends, it is unacceptable.

• The first sign of corruption in a society that is still alive is that the end justifies the means. (Georges Bernanos, a French author, and a soldier in World War I)

• They say, "Means are, after all, means." I would say, "Means are, after all, everything." As the means, so the end. There is no wall of separation between means and end. (Mahatma Gandhi)

• Process of justice must be followed to deliver justice.

Process of Justice

1. Equality of Access

2. Impartiality

3. Transparency

4. Efficiency

5. Participation

6. Right to Appeal

3: Ethical Dilemma of Prima-facie Principles

Prima Facie Principles

• W D Ross, a moral philosopher of 20th Century, traces moral dilemmas due to conflicts of certain prima-facie principles

• ‘Prima facie’ means ‘on first view’

• Prima facie principles points to the moral presumption, i.e. the way we must act in a situation in normal situation

• Presumption means that something is taken to be true unless proven otherwise e.g. everyone is treated to be innocent before a court of law unless proven guilty

Moral Presumption

• Moral presumption means that a moral agent (a moral person) should act in particular way under any given conditions.

• He can, however, ignore the presumption if there are special reasons or justification.

• For example, moral presumption is that we must always speak truth. However, under certain exceptional situation, we can ignore this principle for greater good.

Prima facie Principles

1. Principle of honesty

2. Principle of promise-keeping

3. Principle of Non-maleficence (Not harming others)

4. Principle of Beneficence (Doing good to others)

5. Principle of autonomy (freedom)

6. Principle of equality (justice)

1: Principle of Honesty

• We should tell the truth and we expect others to do the same with us

• Truth builds trust and strengthen the team-spirit

• Truth-telling means exchange of accurate information, hence effective action

• No relationship can survive based on falsehood and lies

2: Principle of Promise Keeping

• We are expected to keep our promises in official, social and family life

• Contracts must be honoured in letter and spirit

• When we promise something to other, he takes a course of action based on our promise.

• If promise is broken, the person acting on our promise suffer loss.

3: Principle of Non-maleficence

• Human beings must help each other

• At least, they must not harm each other for development of society

• Harming each other can lead to destruction of the society

• Harming is justified only in self-defense

4: Principle of Beneficence

• Similar to the principle of altruism

• We must do good to others & help others physically and psychologically • Physical: food, healthy, wealth, housing etc.

• Psychological: Happiness, security, respect

• Preventing others from coming to harm is a form of altruism

5: Principle of Autonomy

• Freedom is the greatest virtue and right to every person

• People should be free to lead their life provided they don’t violate a law or the similar rights of other people

• Moral agents must allow people to make their choices

6: Principle of Equality (Justice)

• All men are equal in the eyes of law

• Kant’s dictum: Moral rules should be universally applicable

• We must treat similarly placed individuals similarly

Ethical dilemma due to Prima Facie principles

• It is possible to follow all the principles most of the time

• However, sometime, there is a conflict between the principles and we have to chose one principle and discard other

• Such conflicting principles cause dilemma

• For example, speaking a lie to save the life of someone.

Ethical dilemma is a decision-making problem between two possible moral imperatives

A. One of them is right and the other one is wrong.

B. One of them is acceptable or preferable.

C. None of them is unambiguously acceptable or preferable

D. None of the above

Prima-facie principles do not include the principle ofA. Honesty

B. Promise keeping

C. Beneficence

D. Love

Principles of Ethical Decision making

Principles of Ethical Decision making

• The decisions of public servants should be based on certain morally justifiable principles

• Public servants are accountable to people, politicians, judiciary and media.

• They must be able to justify their actions on reasons and principles

• Ethical decision making must follow a process or steps that starts with identification of the problem and ends with its resolution

Steps of decision making

1. Analyse the problem

2. Get the facts

3. Ascertain the moral and ethical norms violated

4. Analyse different alternatives

5. Resolve the problem

Case Study

• The government school employs contractual teachers/shiksha-mitra

• You are a collector and you are informed that teachers are not teaching for the prescribed number of hours

• The career of the students are suffering due to the poor quality of education

• You must take steps to ensure good quality of education to the children

1. Analysis of Problem

• Teachers are not doing their duty despite getting paid from exchequer

• Children are deprived of their right to education

2. Get the Facts

• Norms for teaching hours

• Norms for number of teachers

• How many teachers performing below the norm?

• Whether the problem is in the knowledge of the Tehsil level?

• What attempts had been taken at lower level to solve the problem?

• How difficult is it to remove the teacher?

• How difficult is getting new teachers in the area?

• What is the role of DM in district education

Role of District Magistrate or the Collector

• A DM is the pivot in the district administration.

• A DM has broadly three functions• Collector of land revenue

• Magistrate of the district

• Highest administrative officer in the district

• Main agent for making the necessary co-ordination of the official agencies functioning within the district.

3. What are legal and moral norms

• Legal Angle• Indiscipline

• Breach of employment contract

• Dereliction of duty

• Moral Aspect• Misuse of public funds

• Moral responsibility

• Fairness to the children

• Fairness to the teacher

4. Analyzing the Alternatives

• Alter the working hour that may suit more to the students and teachers

• Introduce quality improvement programmes for teachers

• Hold a meeting with teachers and motivate them

• Apprise teachers of their duties and responsibilities

• Transfer the teachers to other schools

• Suspend the teacher and start enquiry

• Dismiss the teacher

• Appoint new teachers

5. Resolve the problem

• Take appropriate action and find an optimum solution

• Choose a solution that could be right according to the law and/or maximizes the benefits to the society

• Use virtue ethics, deontology, utilitarian principle, relational ethics etc.

Test of a right decision

• Based on the facts

• Should follow ethical principles.

• Should be in accordance with law and rules

• In harmony with public policy

• Does not violate the principle of natural justice

• Strike a balance between adherence to rules and discretion

• Intended to serve the people in the best way

• Balance the interest of individual and the society

Evans MacMillan Model

• Evans and MacMillan have developed a framework involving ten steps to make ethical decision-making efficient and practical.

• This framework is suitable for the public servants and the law enforcement officers.

• It addresses various issues of law, regulations, policy and procedures and other factors which are quite important for the civil servants.

Ten Steps of Ethical Decision-making

1. Establish the facts

2. Determine your legal obligations and duties

3. Establish the interested participants involved

4. Determine the ethical values of each participant

5. Consider normative ethical theories as an aide to determine a course of action

6. Consider options that would be ethically sound

7. Consideration of the possible negative and positive outcomes of each possible option.

8. Consideration of the press and media

9. Consideration of the Employer for Job Related Decisions

10. Consideration of the Employer for Other decisions

The decisions made by civil servants should beA. Moral

B. Justifiable

C. Legal

D. All the above