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CHAPTER – 1
1.1 1.1 Intr Introd oduc ucti tion on Accountability refers to the process of holding persons or organisations responsible for performance as objectively as possible. India, as a parliamentary democracy, has elected legislatures that have oversight functions over the Executive and an independent judiciary that can hold both the legislative and executive arms of the state accountable. acc ountable. It has a variety of independent authorities and commissions that perform accountability functions vis-à-vis different parts of the government. Public accountability is the hallmar of modern democratic governance. !emocracy remains a paper procedure if those in po"er cannot be held accountable in public for their acts and omissions, for their decisions, their policies, and their expenditures. Publ Public ic accou account ntab abil ility ity,, as an insti institu tutio tion, n, there therefo fore re,, is the the comp complem lemen entt of publ public ic management. # A traditional cornerstone of democracy is the notion that each political representative and public official is subject to "hat is no"n as accountability. Accountability may be defined in several "ays. $irst it is the responsibility of a government and its agents to achieve previously set objectives and to account for them in public% secondly it is the commitment commitment re&uired from public public officials officials ' individually individually and collectively ' to accept public responsibility for their actions and inactions% and finally, it is the obligation of a subordinate to eep his or her superior informed of the execution of responsibility. Publ Public ic acco accoun untab tabili ility ty mean meanss the the obli obliga gati tion on to ans" ans"er er publi publicly cly-- to repor report, t, to an acceptable standard of ans"ering, for the discharge of responsibilities that affect the public in important "ays. It is the obligation to ans"er to ans"er for a responsibility conferred. (he obligation to ans"er publicly arises as a fairness obligation "henever authorities intend something that "ould affect the public in important "ays. (hus the obligation extends beyond ans"ering for responsibilities formally or legally concerned. )esponsibility is the obligation to act and accountability is the obligation to report on 1 *eaning of Public Accountability Accountability +a" onstitutional Administrative Administrative Essay, niassignment, niassignment, $eb. #/, /0#1, #23// p.m.4, https://www.uniassignment.com/essay-samples/law/meaning-of-public-accountability-lawconstitutional-administrative-essay.php
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the responsibilities. (hese are separate obligations. (he purpose of having authorities ans"er publicly for their responsibilities is to let citi5ens mae reasonably informed decisions about the safety and fairness of authorities6 intentions. 7hen citi5ens are reasonably informed they can act to condemned, alter or halt authorities6 intentions. (his means that citi5ens have more control over "hat affects them. (he (he conc concep eptt of acco accoun unta tabi bili lity ty on its its o"n o"n does does not not nece necess ssar aril ily y impl imply y publ public ic accountability. Public accountability goes hand in hand "ith representative democracy and its associated rights of citi5ens and obligations for political representatives and public officials. (he ultimate value of public accountability is that the elected public representatives and public officials are re&uired to conduct public dialogue among themselves on "hat they do and intend doing, and on the suppositions is that secrecy on matters matters of public public managem management ent conceal concealss maladm maladmini inistra stratio tion, n, mismanag mismanageme ement nt and corruption. (he ethical base of public accountability is the level of accord created bet"een government authority and the government6s accountability to the public. (he true function of public accountability should be not to focus on negative aspects only. (he concept of public accountability is a matter of vital public concern. All the three organs of the government- legislature, executive and judiciary are subject to public accountability. It is settled la" that all discretionary po"ers must be exercised reasonably and in larger public interest. In In Henley Henley v. Lyme Corporation 2 8est .9 stated3 ' :;o" I tae it to be perfectly clear, that if a public officer, abuses his office, either by b y an act of omission or commission and the conse&uence of that is an injury to an individual an action may be maintained against such public officer. officer.<< In various cases, the =upreme ourt has applied the above principle by granting appropriate relief to aggrieved parties or by directing the defaulter to pay damages, comp co mpen ensa satio tion n or co cost stss to th thee pe pers rson on "h "ho o ha hass su suff ffer ered ed.. >ery rec recen ently tly in Arvind atttaraya v. !tate of "aharashtra#, the =upreme ourt set aside order of transfer of a public officer observing that the action "as not taen in public interests but "as a case of vi victi ctimi mi5ed 5ed of an ho hone nest st of offi fice cer. r. ?it is mo most st un unfo fortu rtuna nate te th that at th thee @o @ove vern rnme ment nt
2 #/4 B 8ing C#3 #D0 E) CCB 3 #CC14 = #C3 AI) #CC1 = D01
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demorali5e the officers "ho discharge their honestly and diligently and brings the persons indulging in blac mareting and contra banding li&uor.< In a federal system lie that of India, public accountability is a t"o "ay process involving up"ard accountability and do"n"ard accountability. p"ard accountability comes through the governmental control over administrative authorities lie po"er to dissolve them, approval of budget, auditing of budgets etc. !o"n"ard accountability is to public "hich is relatively "ea and it comes primarily through their mandate in elections.
1.2 Research Methodology 1.1.1
Problem
(his project report sees to appraise the doctrine of public accountability and its gro"th, position and relevance in India. 1.1.2
Rationale o the study
(he study is significant to find the rationale behind the "oring of the three organs of the =tate ' +egislature, Executive and 9udiciary and the exercise of their po"er in favour of public interest. 1.1.!
#. /. D. 2.
"b#ecti$es
(o analy5e the evolution of doctrine of public accountability in India. (o see out the evils hampering the transparency of the government. (o study the mechanisms to enforce public accountability. (o study the "oring of the doctrine in the contemporary times and dra" out appropriate conclusions.
1.1.%
Re$ie& o 'iterature
#4 .F. (haer, Administrative +a", =econd Edition, Eastern 8oo ompany, /0#/ (he boo is exhaustive "ith the doctrines and case la"s regarding administrative la". It also analyses the doctrine of public accountability and its relevance in the organs of the government. It had been descriptively "ell-explained the situations "here to public accountability applies for the betterment of public.
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/4 .F. (a"ani, +ectures on Administrative +a", =ixth Edition, Eastern 8oo ompany, /0#1 (his literature deals "ith all the major aspects of the Administrative +a". It also simply but aptly explains the doctrine of public accountability as "ell as illustrative cases to present the application of the doctrine. D4 Edited by >enataesh"arier =ubhramaniam, Public Administration in the (hird 7orld3 An International Gandboo, @reen"ood Publishing @roup, #CC0 (his handboo gives a detailed, objective picture of the evolution, structure and processes of public administration in representative (hird 7orld countries. It gives an analysis of 8ritish doctrine of public accountability and its enforcement mechanism and significance in the parliament. 1.1.(
Hy)othesis
Public accountability means the obligation to ans"er publicly ' to report, to an acceptable standard of ans"ering, for the discharge of responsibilities that affect the public in important "ays. (he obligation to ans"er publicly arises as a fairness obligation "henever authorities intend something that "ould affect the public in important "ays. A traditional cornerstone of democracy is the notion that each political representative and public official is subject to "hat is no"n as accountability for the protection of public interest. 1.1.*
Conce)ts
#. Public Accountability ' (he concept of accountability on its o"n does not necessarily imply public accountability. Public accountability goes hand in hand "ith representative democracy and its associated rights of citi5ens and obligations for political representatives and public officials. (he basic purpose of the emergence of the doctrine is to chec the gro"ing misuse of po"er by the administration and to provide speedy relief to the victims of such exercise of po"er. (he doctrine is based on the premise that the po"er in the hands of administrative authorities is a public trust "hich must be exercised in the best interest of the people. /. Personal +iability ' A breach of duty gives rise in public la" to liability "hich is no"n as :misfeasance in public office<. Exercise of po"er by minister and public officers
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must be for public goods and to achieve "elfare of public at large. 7herever there is abuse of po"er by an individual, that person can be held liable.
D. 9udicial Accountability ' Accountability of the judiciary in respect of its judicial functions and orders is vouchsafed by provisions for appeal, reversion and revie" of orders. (he judiciary, an essential "ing of the =tate, is accountable, but not on the same plane as the accountability of the executive or the legislature or any other public institution. 1.1.+
Research ,esign
1. -ature o study (he nature of the study in this project is doctrinal and is primarily descriptive and
analytical. 2. ources o ,ata (his project is largely based on secondary and electronic sources of data.
8oos, case la"s, journals H other reference are primarily helpful for the completion of this project. 1.1./
Cha)teri0ation
hapter # has introduced the research project and proceeds to the research methodology. hapter / involves the study of the evolution of the doctrine of public accountability. hapter D gives a broad idea of the evil that accounts for the "eaness in the public accountability in the government. (his part tals about the corruption as an impediment in transparency. hapter 2 analyses the protection and enforcement mechanism of public accountability in all three organs of Indian @overnment. hapter B, at last, tals about the infamous cases and the issue of accountability in contemporary times. 1.1.
Time chedule
(he duration of the maing and completion of the project report had been days. (he project reached its completion on /#3#0 p.m. 1.1.1 Contribution o Research
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(his research sees to highlight the doctrine of public accountability and its enforcement in the three organs of the government ' legislature, executive and judiciary.
CHAPTER 32 2.1 E$olution o ,octrine o Public Accountability in India ' (he basic purpose of the doctrine of public accountability is to chec the gro"ing misuse of po"er by the administration and to provide speedy relief to the victims of such exercise of po"er. (he doctrine is based on the premise that the po"er in the hands of administrative authorities is a public trust "hich must be exercised in the best interest of the people. (herefore, the trustee public servant4 "ho enriches himself by misusing his office must hold the propertybenefit ac&uired by him as a constructive trustee. (he celebrated decision of the Privy ouncil in the A.@. of Hong $ong v. %eid & #CCD4 case has greatly "idened the scope of this principle. +ord (empleman observed that engaging in bribery is an evil practice "hich threatens the foundations of any civilised society. Any benefit obtained by a fiduciary, through a breach of duty, belongs in e&uity to the beneficiary the state4. All legal principles re&uire to be interpreted subject to this basic norm. (he Privy ouncil further observed that "hen a bribe is accepted by a fiduciary public servant4 in breach of his duty, then he holds that bribe in trust for the person to "hom the duty "as o"ed. If the property representing the bribe decreases in value, the fiduciary public servant4 must pay the difference bet"een that value and the initial amount of the bribe because he should not have accepted the bribe and incurred the ris of loss. If the property increases in value, the fiduciary is not entitled to any surplus in excess of the initial value of the bribe because he is not allo"ed by any means to mae a profit out of a breach of duty.
4 J#CCDK FP D
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It "as further held that a gift accepted by a person in fiduciary position as an incentive for breach of duty constituted a bribe, and although in la" it belonged to the fiduciary, in e&uity he not only becomes a debtor for the amount of the bribe to the person to "hom the duty "as o"ed but he also holds the bribe and any property ac&uired there"ith in constructive trust for the person. In this case, the respondent, )eid, "ho "as a ro"n prosecutor in Gong Fong, too bribes as an inducement to suppress certain criminal prosecutions, and ac&uired properties in ;e" Lealand in his name, in the name of his "ife and his solicitor. (he administration of Gong Fong claimed these properties on the ground that the o"ners thereof are constructive trustees for the ro"n. (he Privy ouncil upheld the claim. It observed that if the theory of constructive trust is not applied and properties attached "hen available, the danger is that properties may be sold and proceeds "hised a"ay to some ?numbered ban account6. It further observed that one can understand the immorality of the baners "ho maintained numbered ban accounts but it is difficult to understand the amorality of the governments and their la"s "hich sanction such practices M in effect encouraging them. 9udicial response in India is based on this concept of trust and e&uity "hich "as developed in )eid6s case. (hus "hile deciding the constitutionality of clause c4 of =ection D #4 of the =mugglers and $oreign Exchange *anipulators $orfeiture of Property4 Act, #C1 =A$E*A4, "hich provided for the forfeiture of properties earned by smuggling or other illegal activities "hether standing in his name or other parties, the apex court too recourse to the principle of trust and e&uity. (he =upreme ourt in ..A. '. !(ipper Construction Co)., #CC4, not only further follo"ed the above principle but enlarged its scope by stating that even if there "as no fiduciary relationship or no holder of public office "as involved, if it is found that someone has ac&uired properties by defrauding the people, and if it is found that the persons defrauded should be restored to the position in "hich they "ould have been but for the said fraud, the court can go ahead "ith the necessary orders. (hus, the concept of public accountability "as extended to the private sector "hich is very relevant in this age of privatisation and globalisation of economy. (he court further held that all properties must be immediately attached. (he burden of proof to prove that the
5 #CC 24 = //
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attached properties "ere not ac&uired "ith the aid of moniesproperties received in the course of corrupt deals shall lie on the holder of such properties. (his is "hat e&uity means and in India courts are not only courts of la" but also courts of e&uity. In this case a private company had purchased a plot of land in an auction from the !elhi !evelopment Authority but did not deposit the bid amount. 7hen the !!A proposed cancellation of the allotment, the company obtained a stay. *ean"hile, the company started selling space in the proposed building. (hus, prospective buyers of space "ere cheated to the tune of about )s #2 crores. $urther elaborating the principle of public accountability, the court applied the doctrine of Nlifting the corporate veilN in order to fix accountability on persons "ho are the actual operators of the corporate legal entity. (he court observed that the concept of corporate entity "as evolved to encourage and promote trade and commerce but not to commit illegality or to defraud people. In such cases the court "ould loo behind the corporate veil so as to do justice bet"een the parties. (he court further held that in order to compensate those "ho are defrauded or cheated, it can pass necessary orders under Article #2/ of the onstitution. (hough the court certainly put the right foot for"ard, it did not tae a long stride. It missed the opportunity of providing the doctrine of public accountability its due reach. (he court did not express any opinion on the &uestion "hether the misdeeds of public servants, "hich are not only beyond their authority but done "ith mala fide intent, "ould also bind them personally or the state corporation "ould be vicariously liable. It cannot be overemphasised that if the doctrine of accountability is to be given its full s"eep, the concept of statecorporation liability should be shifted to the officer6s liability "here possible, so that it may have an inhibiting effect on the temptation of public servants to misuse po"er for personal gains. Go"ever, the court observed that a la" lie the =A$E*A has become an absolute necessity, if the cancer of corruption is not to prove the death-nell of this nation, and suggested to Parliament to act in this matter. In order to strengthen public accountability further in the !tate of *ihar v. !ubhash !ingh + case #CC14, the court held that the head of the department is ultimately responsible and
6 AI) #CC1 = #DC0
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accountable unless there are special circumstances absolving him of the accountability. (he court has strengthened accountability procedures by applying the contempt la" against those "ho deliberately violate court orders. (he court has also imposed cost personally against erring officers for delay in the discharge of duties. In the same manner "here the public servant has caused a loss to the public exche&uer, the court has allo"ed the government to recover such loss personally from the erring officer. It has no" become an established la" that the courts can a"ard compensation and exemplary cost for the abuse of po"er and violation of human rights by the state. (hus a claim in public la" for compensation in cases of violation of human rights and abuse of po"er has become an acno"ledged remedy. Every individual has an enforceable right to compensation "hen he is a victim of violation of his $undamental )ights and abuse of po"er. ertainly, leaving the victim to the remedies available in civil la" in such situation limits the role of constitutional courts as protector and guarantor of human rights of the people. (hus courts are under obligation to mae state or its servants accountable to the people by compensating them for the violation of their human rights. (he =upreme ourt6s recent decision in the 'ineet ,arain v. nion of ndia case #CC4 separating the 8I from the executive by vesting its superintendence in the statutory entral >igilance ommission >4, is a significant step in the direction of enforcing public accountability. *oving s"iftly in the direction of enforcing acc ountability, the apex court in another pacesetting judgement 9** bribery case4 held that members of Parliament and legislative assemblies are public servants under the Prevention of orruption Act. (he ourt further observed that these members cannot also claim exemption from prosecution under Article #0B /4 of the onstitution regarding protection of privileges of *.Ps and *.+.As for any offence committed outside Parliamentlegislature. (he ourt held that Article #0B /4 could not be interpreted as a charter of freedom of speech and also freedom for corruption. Parliamentary privilege cannot provide immunity against corruption and bribery. (hus, by redefining the role of the state, fixing accountability at all levels and transparency in the administration, the court is simply trying to mae government function better in the interest of the people. It is unfortunate if it is being considered by the government as interference in its area of operation.
7 #CC = /4 #CC
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CHAPTER – ! !.1 Corru)tion – An Im)ediment in Trans)arency Public accountability in India is not as "ell enforced. $ormal accountability systems are put in place for the most part, but they are not necessarily made to "or. *any good la"s have been enacted, but they are not al"ays enforced or monitored. Public agencies are given mandates and funds, but their performance may not be properly assessed and suitable action taen to hold them accountable. Public audits of accounts and parliamentary revie"s are done, but follo" up actions may leave much to be desired. It is clear that the existence of formal mechanisms of accountability does not guarantee actual accountability on the ground. (he problem of administrative corruption is perhaps as old as public administration itself. (he enormous expansion of the governmental bureaucracy, both in si5e and range, has highlighted the problem of effective public checs and control on public administration. (he adoption of the goals of a social "elfare state in almost all developing countries has resulted in an extension of bureaucracy in si5e and number. (he expansion of governmental tass results in the increase in the volume of "or "here administrative po"er and discretion can be used. 7here there is po"er and discretion, there is al"ays the possibility of abuse.
(he #2th report of the +a" ommission, #CB had pointed out that that there is a vast sphere of administrative action in India in "hich the bureaucracy can exercise discretionary authority "ithout being accountable to citi5ens in any "ay in case of abuse of authority. (here has also been rise in administrative adjudication exhibited by the fact that there has been rapid increase in number of administrative tribunals.
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(he problems of executive discretion, delegated legislation and administrative adjudication are vitally connected "ith the problem of public accountability of administration. (he entral 8ureau of Investigation 8I4 is the most important body "hich enforces accountability. It "as earlier under the Executive "hich "as proving to be an impediment to enforce accountability in higher echelons of @overnment. (he =upreme ourt separated 8I from executive and vested its superintendence in the hands of entral >igilance ommission >4. ;o" 8I does not need prior approval of the @overnment to investigate corruption cases. (he court also gave several other directions to improve the functioning of the 8I and to mae it the most effective body to enforce transparency in the government functionaries. =anatham ommission, #C/, "hile noting prevalence of corruption in India observed that :"e are told by a large number of "itnesses that in all contracts of construction, purchase, sale and other regular business on behalf of the @overnment, a regular percentage is paid by the parties to the transaction and this is shared in agreed proportions among the various officials concernedN. $ighting against corruption cannot succeed unless the government does something to change the system under "hich it has been operating particularly in the area of public administration. (he bureaucracy has to be depolitici5ed and be left "ith the authority and po"er to operate according to the re&uirements of the professions. (he success or failure of government depends upon the efficiency of public administration but administration cannot be efficient if it is interfered "ith or forced to act contrary to laid do"n procedures. =imultaneously, the "elfare of employees has to be taen care of. (he need for a realistic salary structure is obvious. (his "ill help curtail corruption as money is a major motive behind corruption. Prevention of orruption Act, #C PA4 is a salient legislation in the area of public accountability "hich "as enacted to ensure transparency in government functions. (he ourt in 0"" *ribery1 case held that the *embers of Parliament and *embers of +egislative Assemblies are covered "ithin the ambit of public servants under PA. (he court said that these persons cannot claim immunity from prosecution under Article #0B
8 P.*. ;arsimha )ao v. =tate #CC4 = 9our4 #
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for any offence committed outside Parliament+egislature. (his judgment "as ho"ever critici5ed on other ground mainly that Article #0B is not an enabling provision for corruption. (he purpose of the immunity is legislative independence but giving or receiving bribes is not part of legislative process.
CHAPTER – % %.1 Enorcement and Protection o Public Accountability – In various cases, the =upreme ourt has applied this principle by granting appropriate relief to aggrieved parties or by directing the defaulter to pay damages, compensation or costs to the person "ho has suffered. (hus, in the case of defective construction of houses by statutory authorities, a complaint made by the :consumer< regarding use of substandard material and delay in delivering possession "as held maintainable and the instrumentality of =tate "as held liable to pay compensation. In Arvind attatraya hande v !tate of "aharashtra , the =upreme ourt set aside an order of transfer of a police officer observing that the action "as not taen in public interest but "as a case of victimi5ation of an honest officer at te behest of persons interested to target such officials. :It is most unfortunate that the @overnment demorali5es the officers "ho discharge their duties honestly and diligently and brings to boo the persons indulging in blac mareting and contrabanding li&uor.<#0 In !.!. hanoa v. nion of ndia 33, the =upreme ourt indicated that "hen important functions are to be performed and a body is armed "ith uncontrolled po"ers, it is both necessary and desirable that such po"ers are not exercised by an institution "hich is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to ensure judiciousness as also "ant of arbitrariness.
9 #CC14 = #C3 AI) #CC1 = D01 10 .F. (a"ani, +ectures on Administrative +a", th Ed. /0#14 11 #CC# =) D4 #BC
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Other instances of protective measures are ' a4 Personal +iability '
A breach of duty gives rise in public la" to liability "hich is no"n as Nmisfeasance in public officeN. Exercise of po"er by ministers and public offices must be for public good and to achieve "elfare of public at large. 7henever there is abuse of po"er by an individual, he can be held liable. An action cannot be divorced from the actor. A public officer "ho abuses his official position can be directed to pay compensation, damages or costs. In Common Cause4 A %egistered !ociety v. nion of ndia 32, the Petroleum *inister made allotment of petrol pumps arbitrarily in favour of his relatives and friends. uashing the actions, the =upreme ourt directed the *inister to pay fifty lah rupees as exemplary damages to public exche&uer and fifty thousand rupees to"ards costs. It may be, ho"ever, be stated that in a revie" petition, the =upreme ourt applying "rong principles of criminal la" =ections 20B-0C, Indian Penal ode4, set aside the order of payment of damages holding that there "as no criminal breach of trust on the part of the *inister though the ourt affirmed the finding recorded in the main judgment that an action of allotment of petrol pumps to ?iths and ins6 by the *inister "as arbitrary, discriminatory and mala fide. It is submitted that in Luc(now evelopment Authority v. "$. 5upta 3#, after referring to various decisions, the =upreme ourt right stated3 N7hen the court directs the payment of damages or compensation against the =tate the ultimate sufferer is the common man. It is the tax payers6 money "hich is paid for inaction of those "ho are entrusted under the Act to discharge their duties in accordance "ith la". It is, therefore, necessary that the ommission "hen it is satisfied that a complaint is entitled to compensation for harassment or mental agony or oppression, "hich finding of course should be recorded carefully on material and convincing
12 #CCB4 # =cale 13 #CC2 AI) 11
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circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those "ho are found responsible for such unpardonable behaviour by dividing it proportionally "here there are more than one functionaries.N !octrine of public accountability is one of the most important emerging facets of administrative la" in recent times. (he basic purpose of the emergence of the doctrine is to chec the gro"ing misuse of po"er by the administration and to provide speedy relief to the victims of such exercise of po"er. (he doctrine is based on the premise that the po"er in the hands of administrative authorities is a public trust "hich must be exercised in the best interest of the people.
b4 +imitations (he po"er of judicial revie", ho"ever, must be exercised cautiously and "ith circumspection. A court of la" should not act as an appellate authority over the actions taen by the government or instrumentalities of =tate. It cannot interfere "ith policy decisions. In 5.*. "aha6an v. 0algaon "unicipal Council 3&, it "as contended that the project undertaen by the local authority "as ?unconventional6. )epelling the contention, the =upreme ourt stated that the test should not be "hether the project "as ?unconventional6 but "hether it "as ?impermissible6. (here must be a degree of public accountability in all government actions, but the extent and scope of judicial revie" differ in exercise of such po"er. (he administration cannot be deprived of its po"er of Nright to trial and errorN as long as it exercises that po"er bonafide and "ithin the limits of its authority. c4 9udicial Accountability
(he doctrine of public accountability applies to judiciary as "ell. Every organ of the government is subject to criticism for its fla"s and dra"bacs and judicial institution is not an exception to it. An essential re&uirement of justice is that it should be dispensed as &uicly as possible. It has been rightly said3 N9ustice is delayed not denied.N !elay in disposal of cases can, therefore, be commented. 7hereas comments and criticisms of
14 #CC#4 D = C#, C2
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judicial functioning, on matters of principle, are healthy aids for introspection and improvement, the functioning of the ourt in relation to a particular proceeding is not permissible. (here should not be biased mind on account of ?judicial obstinacy6. All judicial functionaries must possess unflinching character to decide every case objectively and "ith an unbiased mind. Even on administrative side, the judiciary must act judiciously. A judge cannot act in public controversies nor can he mae disparaging remars against the hief 9ustice or against a brother judge. d4 Public Accountability Protections under Administrative +a" In a liberal democracy, political po"er is delivered through rules, against "hich the government "ill be held accountable, rather than through unaccountable compulsion. (he si5e, geographical extent, importance and complexity of government have determined that it must depend upon such codified rules of behaviour to allo" certainty and consistency in its decisions. )ules provide governments "ith the ability to adjudicate efficiently in an enormous variety of situations, irrespective of the organisation concerned or its location. (his provides governments "ith the assurance that policies are implemented "ithout delay and according to standards of delivery and management "hich do not have to be contested in every instance. @overnments that exercise arbitrary po"ers and inconsistent authority, on the other hand, under "hich citi5ens co"er in apprehension and ignorance, do not accept that they are bound by rules no"n in advance and upon "hich their behaviour can be judged. iti5ens are instead left to the mercy of capricious and unpredictable masters. Administrative la" provides the frame"or to ensure that government acts "ithin the po"ers allotted it by la" and plays by the rules set for everyone. (here is no escape for public officials from legal retribution should they contrary to the la". (hey are all responsible for their o"n actions, regardless of "hether or not they do so on the instructions of their superiors. (he rule of la" is absolute, from the Prime *inister do"n. (his, notes !icey, is the foundation of the constitutional doctrine of ministerial responsibility. (he courts and tribunals that are given the responsibility for implementing administrative la" are expected to protect and promote those
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public service values "hich have come to be accepted as fundamental to the protection of e&uality bet"een citi5ens. (hese include access to services under specified conditions, due process, openness, procedural fairness, participation, impartiality, accountability and honesty.
e4 )ight to Information as a tool for enforcing Public Accountability 3 An important factor responsible for the absence of popular participation in the governance process is the lac of information. ommenting on the need for a open @overnment, the =upreme ourt of India observed that the demand for openness in the @overnment is based on the reason that :democracy does no consist merely in people exercising their franchise once in five years to choose their rulers and once the votes are cast, then returning into passivity and not taing any interest in the @overnment.N 7ay bac in #C1B in the case of %a6 ,arain v. !tate of ttar 7radesh 3), the =upreme ourt of India observed that in a government lie ours, "here all the agents of the public must be responsible for their conduct, there can be but fe" secrets. (he people of the country have a right to no" any public act. In #C/ in the !.7. 5upta 3+ case the ourt emphasi5ed that an open @overnment is the ne" democratic culture of an open society to"ards "hich every liberal democracy is moving and our country should be no exception. (he ourt in #CC1 in inesh 8rivedi v. nion of ndia 3 , held that :to ensure the continued participation of the people in the democratic process they must be ept informed of the vital decisions taen by the government and the basis thereof. India has travelled a long "ay from the =upreme ourt judgment of right to no" in #C1B to /00B "hen the )ight to Information Act )(I4 "as passed. )(I act essentially tries to usher in a ne" administrative culture and further strengthen
15 #C1B =) D4 DDD 16 #C# =upp #4 = 1 17 #CC14 2 = D0
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democracy. It has been hailed by the hief Information ommissioner of India as outstanding legislation in the "orld and unprecedented going by the public response. )(I act is an important tool in the hands of people and it is bound to change the mindset of the administrative machinery. )(I act is landmar legislation and covers all central, state and local governmental bodies and in addition to the executive it also applies to the judiciary and the legislature. (he term information under the act covers right to inspect "or, documents and records held by the government and allo"s for the extraction of certified samples for verification. (here have been demands from different corners of the country that the la" should be amended to refuse information that is not relevant to an applicant. 8ut refusing information is not the ans"er to the problem. (he ans"er lies in reducing the ?need6 for such information. Proactive disclosures by authorities can be a very positive and people friendly step. After all, the )(I act itself is based on the principles
of
?*aximum
!isclosure6
and
?*inimum
Exemptions6. (he
@overnment offices are flooded "ith )(I applications, some of "hich are indeed frivolous. (he problem can only be solved if the @overnment voluntarily maes available such information in public domain. (he Act also allo"s the people to obtain information about the file noting so that people no" ho" any governmental decision is reached. Instead of lamenting the exposure )(I act could give any public official, he should consider it as a boon. It "ill enable him to express his opinion fearlessly and objectively and give him an effective shield against pressures for manipulating his notings. In short, if he is honest, he should "elcome the exposure. It is only those "ho have to hide something that should fear the exposure. )ight to information has already proved to be an effective instrument for combating corruption in public service. (he significant achievements of civil society organisations lie ?Parivartan6 in !elhi in collecting information regarding flo" of public funds, dubious decisions etc. are examples of the po"er of information, but more significant aspect of the experience is that much more needs to be done in this direction. According to (ransparency International, if India "ere to reduce corruption to the level that exists in the =candinavian countries,
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investment could be increased by #/Q and the @!P gro"th rate by #.BQ per annum. Access to information needs to be encouraged on this ground alone.
%.2 Public Accountability and tate In India the basic principle is incorporated in =ection #/D of the Evidence Act, #1/, "hich reads as under3 N;o one shall be permitted to give any evidence deprived from unpublished official records relating to any affairs of =tate, except "ith the permission of the officer at the head of the department concerned, "ho shall give or "ithhold such permission as he thins fit.N =ection #/ of the Act confers on a court the po"er to decide finally the validity of the objection raised against production of document. =ection #/D confers a great advantage on the @overnment, inasmuch as inspite of non-production of relevant evidence before the court, no adverse inference can be dra"n against it if the claim of privilege is upheld by the court. (hus, it undoubtedly constitutes ?a very serious departure6 from the ordinary rules of evidence. In the "ell-no"n case of !.7. 5upta v. nion of ndia 31, popularly no"n as ?the 9udges6 transfer case, A privilege "as claimed by the @overnment against disclosure and production of certain documents. After considering a number of English as "ell as American cases, the ourt held that the provisions of the Evidence Act, #1/ should be constructed eeping in vie" our ne" democracy "edded to the basic values
18 #C# =upp #4 = 1
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enshrined in the onstitution. In a democracy, citi5ens ought to no" "hat their @overnment doing. ;o democratic @overnment can survive "ithout accountability and the basic postulate of accountability is that the people should have information about the functioning of the @overnment. (herefore, disclosure of information in regard to functioning of @overnment must be the rule and secrecy an exception justified only "here the strictest re&uirement of public interest so demands. 8hag"ati, 9. observed3 NIt is "ell settled that a court is not bound by the statement made by the *inister or the head of the department claiming privilege. (he court has to balance injury to the =tate or public against ris of injustice to the cause.N %.2.1 Right to 5no& –
(he modern trend is to"ard more open government. (he right to no" is part and parcel of freedom of speech and expression and is thus a fundamental right guaranteed under Article #C of the onstitution. It is also e&ually paramount consideration that justice not only be done but also be publicly recognised as having been done. In %eliance 7etrochemicals Ltd. v. ndian 9press ,ewspapers *ombay ;7< Ltd. 3, *uarji, 9. =tated3 N7e must remember that the people at large have a right to no" in order to be able to tae part in participatory development in the industrial life and democracy. )ight to no" is a basic right "hich citi5ens of a free country aspire in the broader hori5on of the right to live in this age of our land under Article /# of the onstitution. (hat right has reached ne" dimensions and urgency. (hat right puts greater responsibility upon those "ho tae upon themselves responsibility to inform.N In the leading case of !tate of .7. v. %a6 ,arain2=, the =upreme ourt rightly observed, NIn a government of responsibility lie ours, "here all the agents of the public must be responsible, for their conduct, there can be but fe" secrets. (he people of this country have a right to no" every public act, everything that is done in a public "ay, by their public functionaries. (hey are entitled to no" the particulars of
19 #CC AI) #C0 20 #C1B AI) B
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every public transaction in all its bearing. (he right to no", "hich is derived from the concept of freedom of speech, though not absolute, is a factor "hich should mae one "ary, "hen secrecy is claimed for transactions, "hich can at any rate, have no repercussion on public security.N In nion of ndia v. Assn. >or emocratic %eforms 23, the =upreme ourt ruled that every voter has a right to no" antecedents including criminal activities of a candidate contesting election for membership of Parliament or =tate +egislative Assembly. (he Election ommission, therefore, directed to call for an affidavit necessary particular about the educational &ualifications of a candidate, his assets and properties, liabilities to"ards government or public financial institutions, accusation, conviction, ac&uittal, in criminal cases, etc. (he ourt stated% N(he little man may thin over before maing the choice of electing la"-breaers as la"-maers.N After the above decision, Parliament enacted the Act by the )epresentatives of People (hird Amendment4 Act, /00/ "hich re&uired every candidate to supply information about criminal case but not as to his assets, properties, etc. "hich "as again challenged in the =upreme ourt. !eclaring the Amendment Act ultra vires, unconstitutional and infringing Article #C#4 a4 of the onstitution, the ourt held that right to no" could not be taen a"ay. According to the ourt, Parliament by amending the Act has virtually overruled a decision of the =upreme ourt "hich "as not permissible .
%.2.2
6reedom o Inormation Act –
After more than half a century of the commencement of the onstitution "hich included Part III $undamental )ights4 and seven classic freedoms, no right of information "as recognised either by the onstitution or by an Act of Parliament. As seen above, on judicial side, such right "as upheld by the highest court of the country
21 AI) /00# !elhi #/
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in several cases and it "as also described as a basic right covered by Article /# // of the onstitution. Parliament, ho"ever, did not consider it proper to enact a la" for the said purpose for all this period. )ecently, ho"ever, Parliament enacted the $reedom of Information Act, /00B. (he object of the Act as reflected in the Preamble states that it has been enacted Nto provide for freedom to every citi5en to secure access to information under the control of public authorities, consistent "ith public interest, in order to promote openness, transparency and accountability in the administration.
%.! Public Accountability and Parliament – Parliament serves as a locus of accountability and oversight in a democracy in an at least t"o "ays. $irst, Parliament is the agency through "hich government is held liable. =econd, elections are the mechanism through "hich parliamentarians are held accountable. (he actual "orings of any Parliament "ill be governed by these considerations. %.!.1 -on3Conidence Motions 3
+egislators can introduce a motion of no-confidence in the government, "hich, if sustained, "ould result in the fall of the government. 8ut the effectiveness of noconfidence motions as a disciplining device depends upon the alternatives available to replace a sitting government. In a very simple sense, a government "ith a substantial majority in Parliament is unliely to be much deterred by the introduction of noconfidence motions. (he most egregious failure of Parliament to prevent abuse of executive po"ers occurred in #C1B "hen Indira @andhi rammed resolutions approving the presidential proclamation of an internal emergency through both houses of Parliament, suspending the fundamental rights of citi5ens. (he ongress party, then in po"er, voted en masse to approve the emergency proclamations by a vote of DD to BC. Even "hen executive abuses of authority "ere as flagrant as those involved in the
22 onstitution of India, #C2C
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declaration of an emergency, it proved impossible to brea the rans of a dominant majority party. ;o-confidence motions can be successful only in a very limited scenario "here governments have a small majority, and a small part of that constituent majority has some reason to defect to another coalition or see a general election that "ould result from the dissolution of government. In the case of coalition governments, "here no single party dominates Parliament, some coalition partners in &uestion "ould have to prefer an alternative set of arrangements-essentially a different coalitionMrather than face elections. In the Indian case, no-confidence motions have been successful in bringing do"n the government only under such conditions. =ince #CC, this has occurred four times. In #CC, the government headed by >.P. =ingh "as brought do"n% in #CC0, the handrashehar government met a similar fate% in #CC1, the I.F. @ujral government fell% and most recently, in #CCC, the A.8. >ajpayee government "as brought do"n. In an average Parliament, four to five no-confidence motions are introduced. 8ut their deterrent effect depends upon the contingencies of party politics, rather than the effectiveness of the mechanism itself. %.!.2 The "))osition 3
(he opposition is the constituent part of Parliament that has the most incentive to use the statutory po"ers of Parliament to eep the government accountable. In general, if the government commands a large share of the seats "ith uncheced majority control of the legislature, policy outcomes "ill reflect the government6s position. If the government has relatively fe"er seats and the opposition has bargaining resources, then policy maing could be shaped by the opposition. (he opposition6s ultimate sanctioning "eapon is that it might be a credible alternative in the next general election. In one sense, the incentives for monitoring and oversight of the executive simply do not exist3 the effort is high and the potential pay-off limited. Opposition parties are liely, therefore, to focus more of their attention on political scandals such as financial scams and corruption cases, "here they can attac individuals rather than try to force institutional and systemic changes. !uring the tenure of the 89P-led government from #CCC to /002, the ongress-led opposition used all of its might to stall proceedings on various corruption scandals, but did almost nothing to protest against the systemic governance "eanesses plaguing the country. 7hen the 89P moved into opposition
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after it lost the elections in /002, it began to behave exactly as ongress had done. Even "ith an opposition focused on corruption scandals, Parliament has yielded very fe" results and almost all of the parliamentary probes into these scandals have led no"here. 7hile in some cases this "as because the evidence "as generally inconclusive, in other cases it liely reflects collusion "ithin the political class to avoid institutional changes, "hich, "hile improving governance, might adversely affect their common interests. %.!.! Parliamentary Committees 3
Ideally, parliamentary committees "ould be a venue for the consideration of legislation introduced in Parliament. (he volume and complexity of legislation, the demands on the time of parliamentarians and Parliament6s preoccupation "ith the politics of the moment mae it difficult to give legislative business the attention it re&uires. Parliamentary committees could also provide a more vigilant locus of accountability. Each house also has functionally speciali5ed standing committees. (he most po"erful and important functional committees deal "ith financial mattersMthe ommittee on Public Accounts, the ommittee on Estimates and the ommittee on Public ndertaings. In order to improve parliamentary oversight of the executive, a second type of standing committee no"n as the departmentally related standing committee !)=4 "as created in #CCD, though three of these committees "ere created on an experimental basis as early as #CC. In all, there are #1 !)=s covering all of the ministries of the entral government. (hese committees are elected by both houses of Parliament and vary in si5e and composition. *ost !)=s can in principle, under the statutory po"ers accorded to them, revie" any aspect of the "orings of a particular ministry. (his includes, among other things, monitoring the annual performance of the ministry. 8ut for a number of reasons, these committees have had a very limited impact on the production and &uality of legislation and on the performance of the executive, even relative to the modest expectations of the oversight role of Parliament. It is a simple fact that Parliament itself tends to ignore the reports of its committees. *ost committee reports are not tabled for deliberation and discussion in Parliament at all. (he dilemma is that if the committee reports are at variance "ith the government,
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the majority has no interest in having them tabled% ho"ever, if they broadly uphold the government6s position, they are considered superfluous. nlie committees, say in the nited =tates ongress, parliamentary committees that examine bills are, for the most part, temporary. (hey are organi5ed for particular bills and are usually dissolved after the business of the bill is concluded. As a result, these committees are unable to do much of the "or on legislation and have to rely on the executive for everything, from information to expertise. (he most po"erful and "ell-established standing committees are the three finance committees ' the ommittee on Public Accounts, the ommittee on Estimates and the ommittee on Public ndertaingsM"hich are authori5ed to scrutini5e government finances.
CHAPTER – ( 5.1 A Contemporary look on Publi Aountability India has al"ays functioned under the clutches of corruption. (he t"o recent major events "hich symbolise complete flouting of norms of public accountability are the *edical ouncil of India *I4 scandal and ommon"ealth @ames 7@4 organisation in !elhi. (hese t"o cases amply mae it clear that corruption is deep rooted in Indian society and there is urgent need to mae the public officials accountable for their acts.
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*I president !r Fetan !esai and t"o others "ere arrested in April /0#0 for allegedly accepting a bribe of )s / crore to grant recognition to a medical college in Punjab. (he main objectives of the *edical ouncil include maintenance of uniform standards of medical education and recommendation for recognitionde-recognition of medical &ualifications of medical institutions of India or foreign countries. JD0K =uch incidents clearly go against the mandate of *I and the general public is being defrauded by such acts. (hese public officials must be held accountable for their acts and most severe punishment must be a"arded so that such acts are never repeated as the public officials have no right to abuse their statutory authority. (here have been many reports that the 7@ games "hich are to be held in !elhi in October /0#0 are also not free of corruption and malpractices. entral >igilance ommission, >, has said in its observations that the "ors have been a"arded at higher rates, besides poor site management and &uality compromises. > also said that "or has been allotted to non eligible companies and there are poor &uality assurances. !ue to such malpractices and delays in preparation the "or no" costs the @overnment more than #00Q of "hat it "as estimated. (he taxpayers have to bear the burden of lac of accountability on part of the Organising ommittee. (he @overnment needs to ensure that the people in charge of organising the games are held accountable for their actions. (hese people have been given absolute po"er and the saying :po"er corrupts and absolute po"er corrupts absolutelyN is "holly applicable in this case .
MA7"R 6I-,I-8 $e" of the findings from the project report had been the establishment and enforcement of the doctrine in different countries. In England, ro"n has the special privilege of "ithholding disclosure of documents, referred as ?ro"n Privilege6. It can refuse to disclose a document or to ans"er any &uestion if in its opinion such disclosure or ans"er "ould be injurious to ?public
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interest6. (his doctrine is based on the "ell-no"n maxim solus populi est suprema le public "elfare is the highest la"4. (he public interest re&uires that justice should be done, but it may also re&uire non-disclosure of evidence in larger public interest. (his right can be exercised by the ro"n, even in those proceedings in "hich it is not a party. (he American legal system believes in disclosure of information and not in secrecy thereof. (he =A government thus is an ?open government6 than any other country. (hough American onstitution contains no provision as to getting information from the government, there are certain statues conferring such rights on citi5ens% for instance, the Administrative Procedure Act, #C2APA4, $reedom of Information Act, #C $oIA4, etc.
C"-C'9I"(he government6s tas does not end by creating institutions, la"s and other mechanisms for public accountability% they have to ensure that these la"s are effective. (he Indian 9udiciary has played an active role in the evolution of this doctrine and has helped in providing the Indian citi5ens an effective tool, by the "ay of compensation, to redress their grievances and to affix liability on public officials. (he problem of corruption as highlighted in the paper maes it difficult for the government to mae administrative institutions accountable for proper execution. (he @overnment, by passing legislation lie )ight to Information act, has sho"n its intention for ushering in an era of good governance and such legislation are "elcome as they help in enforcing accountability in administrative authorities. *uch needs to be done in this area and the public officials need to tae a step for"ard and ensure that the taxpayers6 money is properly utili5ed and the public functions are carri ed out smoothly and transparently. (he government should also implement performance appraisal mechanisms and provide incentives to honest officials so that it encourages other officials to follo" suit. (he salaries of @overnment officials also need to be raised to the level of their counterparts "oring in Private sphere so that they don6t feel maltreated and perform their functions honestly.
988ETI"-
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(herefore, in the present-day context, strengthening of the public accountability system should be the top priority of the government. Any system has three components3 structures and procedures% persons "ho manage the system% and environment in "hich the system "ors. Improvement is re&uired in all the three components. Every holder of public po"er, "here public element is present, should consider himself a trustee of society and must exhibit honesty, integrity, sincerity, faithfulness and transparency in all facets of public administration.
:I:'I"8RAPH; 7ebsites ' !octrine of Public Accountability, +a"teacher, https://www.lawteacher.net/free-lawessays/administrative-law/doctrine-of-public-accountability-administrative-lawessay.php
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of
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niassignment,
Accountability
+a"
onstitutional
Administrative
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Essay,
https://www.uniassignment.com/essay-samples/law/meaning-of-public-
accountability-law-constitutional-administrative-essay.php
>ive Feretta, (ortious +iability of Administration in *odern (imes, +egalindia, http://www.legalindia.com/tortious-liability-of-administration-in-modern-times/ Geena
>erma,
9udicial
Accountability
in
India,
+egalservicesindia,
http://www.legalservicesindia.com/article/article/6udicial-accountability-in-india-)#13.html 8oos ' .F. (a"ani, +ectures on Administrative +a", th ed. /0#14 .F (haer, Administrative +a", /nd ed. /0#/4
