Professional Deviance of Architects: A Brief Analysis
In order to strengthen the implementation of the regulatory regime in India, it is essential to establish the Council of Architecture at the State level. This would provide for better supervision and regulation of the architectural practice in the country. Read – Professional Deviance of Architects: A Brief Analysis Introduction Deviance is an action or behaviour that violates… Read More »
In order to strengthen the implementation of the regulatory regime in India, it is essential to establish the Council of Architecture at the State level. This would provide for better supervision and regulation of the architectural practice in the country. Read – Professional Deviance of Architects: A Brief Analysis
Introduction
Deviance is an action or behaviour that violates the generally accepted norms of a group, organization, or society.[1] When people belonging to the privileged class commit violations of law for economic gains, it is known as the privileged class deviance. Professional deviance is one of the important branches of privileged class deviance, and architects have also been responsible for various professional deviances.
This work covers the professional deviance, or rather white-collar crimes to be specific, committed by the architects. Upon understanding the scope of professional practice of architects, this work seeks to throw some light on the professional duties, conduct, and liabilities of the architects in India. Furthermore, this work discusses the regulatory regime for architectural practice in India.
In the next part, this work focuses to differentiate the liabilities of the architects for committing civil wrongs from the professional deviance that they make for procuring personal or professional gains ¾ which is the essence of the presentation.
Furthermore, this work aims to give illustrations of white-collar crimes committed by architects, while dealing exclusively with corruption in the infrastructure sector. Finally, this work concludes with a few observations and suggestions to curb white-collar crimes in architectural practice.
Scope of the Profession
In order to understand professional deviance relating to architects, it is important to comprehend the scope of architectural practice. An ‘architect’ is one who possesses with due regard to aesthetic as well as a practical consideration, adequate skill and knowledge to enable him to originate to design and plan to arrange for and supervise the erection of buildings or other works calling for skill in design and planning as might in the course of his business be reasonably asked to carry out or in respect of which he offers his service as a specialist.[2]
Generally, he is engaged for the purpose of advising, examining the site, preparing designs, drawings, and plans and supervising and certifying construction[3].
The architectural practice in India includes site evaluation, analysis, and impact of proposed development on its immediate environs, structural designing, sanitary, plumbing, drainage, water supply, and sewerage designing, electrical, electronic, communication systems and designing etc.[4]
The stages of architectural practice in India are as follows[5]:
- Making a concept design
- Making preliminary design and drawings according to the client’s requirements
- Then, the design is made or altered for statutory approvals
- Working drawings and tender documents are prepared
- Appointment of contractors
- Supervising the construction
- Giving the completion certificate and releasing payments.
Regulatory Regime in India
The architectural practice and education in India are governed by the provisions of the Architects Act, 1972 (hereinafter ‘Act’), enacted by the Parliament of India, which came into force on 1st September 1972. It provides for the registration of architects, standards of education, recognized qualifications and standards of practice to be complied with by the practising architects.
The Council of Architecture, which is constituted by the Government of India under the Act, serves as a regulatory and supervisory body. It is responsible to regulate the education and practice of profession throughout India besides maintaining the register of architects.
Architects (Professional Conduct) Regulations 1989 were formulated by the Government under the Act. These regulations lay down the professional conduct that is expected of an architect during his/her architectural practice.
Any violation of the rules would amount to professional misconduct and actions apart from other liabilities will be taken. One rule that addresses the professional deviance part of the architects goes in this way: ‘not give or take discounts, commissions, gifts or other inducements for the introduction of Clients or of work’.
Additionally, the profession also prescribes in Conditions of Engagement and Scale of Charges the standard of fees and charges that ought to be collected by the architects for their service. Furthermore, the Council of Architecture publishes the list of defaulter architects, whose licenses were terminated for professional misconduct, on its website. This actually serves a good purpose to the clients.
Civil Liabilities
It is important to understand that the liabilities of the architects for committing civil wrongs is different from that of the professional deviance that they commit for procuring personal or professional gains.
The former encompasses matters in respect of which the architects are held liable for the want of care and skill and for negligence, whereas the latter deals with crimes committed in their professional capacity in order to make professional or personal gains. With respect to civil liabilities, it can be both contractual and tortious. It can be understood with the help of some illustrative cases. Generally, the duties of an architect towards the client depend upon the terms of the contract either oral or written.
In Dilbagh Rai v. Housing Board Haryana[6], the builders used sub-standard material in the construction of a house. It resulted in cracks in the roof. As a result of it, there was water leakage. The National Commission held that there was a breach of contract. Similarly, he can also be held tortiously liable. Like any other professional man, an architect incurs liability for failure to take care. He shall exercise reasonable care, skill and diligence of an ordinarily competent and skilled architect.
In S.P. Dhavaskar v. The Housing Commissioner, Karnataka Housing Board the builders constructed houses which were not up to the expected level due to the use of low-cost technology. Houses were constructed using soil stabilized mud blocks. But the soil stabilized mud blocks used for superstructure could not withstand heavy rains.
The National Commission held that there was a gross deficiency as the architects failed to exercise reasonable care in not foreseeing in the risk involved in the use of soil stabilized mud blocks. The architects were held liable. Apart from these, they can also be held liable for deficiency of service under the Consumer Protection Act, 1986.
White Collar Crimes vis-à-vis Architectural Practice
With respect to architectural practice, white collar crimes are rampant in the construction industry. The construction industry is perhaps one of the oldest industry in the world. The ancient monuments like the Egyptian pyramids, the temples of Greeks and Romans like Parthenon and Pantheon, the robust bridges, old Roman theatres, the citadels and many more are the best testament to it.[7] At the same time, there are many reports available depicting that the construction industry is one of the most corrupt sectors worldwide.[8]
The reason for corruption in construction is the nature of the construction project itself which facilities corruption.[9] Construction projects normally have a large number of participants linked together. Each link has its own contractual form where every item of work, acceptance of lower quality work extension of time or approval of additional payments provide an opportunity for corruption, indeed every contractual link provides the opportunity for someone to be engaged in corrupt practices.
Major reasons are project phases, size, uniqueness, the complexity of the projects, concealed work, lack of transparency and extent of government involvement. Architects form a part of the chain and contribute to the economic offences.
It is important to understand the specific areas where the architects contribute to the white-collar crimes in the infrastructure sector. They are as follows[10]:
- Manipulation of Design – A project owner appoints an architect to design a project. One of the competing contractors who is tendering for the project bribes the architect to provide a design with which only that contractor can fully comply. The bribe is the promise by the contractor of significant future work for the architect. The architect provides an appropriate design. This design can be manipulated to the advantage of the contractors.
- Inflated claim for variation – A contractor is instructed by the architect appointed by the project owner to carry out a variation to the works. The contract entitles the contractor to an extension of time and an additional payment in this circumstance. The contractor submits a written claim in respect of the variation to the architect which deliberately exaggerates the manpower, materials, equipment and time required to carry out the variation
- False extension of time application – In case of delay on the contractor’s part, the contractor submits a written claim to the architect appointed by the project owner which alleges that the whole delay was attributable to the change in specification. The architect accepts the contractor’s claim and awards the contractor an extension of time and additional payment. The project owner pays the additional payment.
- False variation claim – A contractor carries out work which is not in compliance with the contract specification. Under the contract, the architect is responsible for issuing variations. The contractor offers the architect a bribe if he confirms in writing that the work was carried out pursuant to a variation issued by the architect, and is therefore acceptable. The architect does so.
- Delayed issue of payment certificates – The project owner offers the architect a future appointment on another project if the architect delays the issue of payment certificates which are due to the contractor. The architect agrees.
- Set-off of false rectification costs – Under the contract, the architect appointed by the project owner is required to specify outstanding defects. The project owner persuades the architect to include, in the schedule of defects, additional purported defects which in fact are not outstanding.
Other deviances include conducting architectural practice without due registration. The architects who were involved in the 2014 Moulivakkam building collapse in Chennai were later found to have not registered with the Council of Architecture under the Act. When these professionals engage with the public sectors, they involve economic offences.
In 2016, an architect in Washington, D.C was found to have bribed the official in Cleveland Veterans Administration for getting insider information so as to enable their firm to procure the contracts in bidding.[11]
In India, architects join hands with the government officials in committing white-collar crimes. In construction cases, the architects are authorized to give completion certificate after the completion, and corruption happens at this place.
In 2017, an architect, along with the engineers of Vadodara Urban Development Authority (VUDA), was arrested for demanding a bribe for providing the completion certificate.[12]
Conclusion
In order to strengthen the implementation of the regulatory regime in India, it is essential to establish the Council of Architecture at the State level. This would provide for better supervision and regulation of the architectural practice in the country.
With emerging Public-Private Partnerships, India needs to bring strict laws with respect to economic offences in the private sector. This is one of the major areas where India is lagging behind the developed countries.
As seen, in most of the cases, the architects join hands with the public officials and commit these crimes. However, with the existing laws, equal punishments cannot be imposed as corruption laws are stricter when it comes to public officials.
The private architects can only be punished for cheating, criminal breach of trust etc. under the Indian Penal Code, 1860. Furthermore, legal protection to the whistleblowers in the private sector should be given to curb these kinds of economic offences.
Currently, they are protected only by the concerned establishment’s internal policy. This is one of the drawbacks in the system. With the growing investments in the construction sector in India, these changes should be necessarily imparted.
Sources
[1] Jeffrey Ross, Policing Issues: Challenges & Controversies (2011)
[2] See R.v. Architects Registration Tribunal, Ex. P. Jaggar, [l945]2 All E.R. 131 at p.134 (K.B.)
[3] G.T. Gajria, Law Relating To Building And Engineering Contracts In India 66 (1979)
[4] Comprehensive Architectural Services, Council of Architecture Available at: https://www.coa.gov.in/index1.php?lang=1&level=2&sublinkid=294&lid=81 (Last accessed on 21/10/2018)
[5] Ibid.
[6] Dilbagh Rai v. Housing Board Haryana 1994) 3 C.P.J. 23 (N.C.).
[7] Ahmed Stifi, The Cause Of Corruption In Construction, Young Professionals (11 July, 2017) Available at http://fidic.org/content/cause-corruption-construction-ahmed-stifi-germany (Last accessed on 25/10/2018)
[8] Stifi, A.; Gehbauer, F. and Gentes, S. The Picture of Integrity from Lean Management’s Point Of View: The Relationship between Integrity Management System and Last Planner System; Proceedings of 22th International Group of Lean Construction, Oslo, Norway (2014).
[9] Stansbury, N. Anti-Corruption Training Manual: Infrastructure, Construction and Engineering Sectors, Global Infrastructure Anti-Corruption Centre. Chesham, Buckinghamshire, UK (2008)
[10] Examples of Corruption in Infrastructure, Global Infrastructure Anti- Global Infrastructure Anti-Corruption Centre (2008) Available at: http://www.giaccentre.org/documents/GIACC.CORRUPTIONEXAMPLES.pdf (Last accessed on 24.08.2018)
[11] Architect sentenced to 33 months in prison for bribing former Cleveland VA head (March 31, 2016) Available at: https://www.cleveland.com/court-justice/index.ssf/2016/03/architect_sentenced_to_33_mont.html (Last accessed on 24.08.2018)
[12] VUDA engineer, architect arrested for Rs 4 lakh bribe (July 22, 2017) Available at: https://timesofindia.indiatimes.com/city/vadodara/vuda-engineer-architect-arrested-for-rs-4-lakh-bribe/articleshow/59690346.cms (Last accessed on 24.08.2018)