A PROJECT REPORT ON DOCTORINE OF ACCOUNTABILITY
Submitted to: Asst. Professor Priya Umbarkar Faculty of Law
Submitted by: Aman Das B.A. LL.B Sem 4th
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ACKNOWLEDGEMENT The success and final outcome outcome of this ro!ect re"uired a lot of #uidance and assistance from many eole and we are e$tremely fortunate to ha%e #ot this all alon# the comletion of our ro!ect work. &hate%er we had done is only due to such #uidance and assistance and we would not for#et to thank them. &e resect and thank Asst. Prof. P'()A U*BA'+A', for #i%in# us an oortunity to do the ro!ect work in “ D-T-'(/0 -F A-U/TAB(L(T)1 and ro%idin# us all suort su ort and #uidance which made us to comlete the ro!ect on time. &e are e$tremely #rateful to her for ro%idin# such a nice suort and #uidance. #uidance.
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DECLARATION ( hereby declare that the ro!ect work entitled “DOCTORINE OF ACCOUNTABILITY” submitted to the *ATS LA& S2--L, is a record of a work done by me under the #uidance of Asst. Prof. P'()A U*BA'+A', Faculty of Law, *ATS U/(30'S(T), and this ro!ect work has not erformed the basis for the award of any decree or diloma and similar ro!ect if any.
A*A/ DAS B.A. LL.B. S0* 4th
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TABLE OF CONTENT ACKNOWLEDGEMENT............................................................................................ 2 DECLARATION........................................................................................................ 3 ADMINISTRATIVE LAW............................................................................................ 5 NATURE AND SCOPE OF ADMINISTRATIVE LAW......................................................6 INDIAN ADMINISTRATIVE LAW................................................................................6 DOCTORINE OF ACCOUNTABILITY.......................................................................... 7 EVOLUTION OF DOCTRINE.....................................................................................8 SCOPE OF PUBLIC ACCOUNTABILITY...................................................................... 8 CORRUPTION- AN IMPEDIMENT IN TRANSPARENCY............................................. RIG!T TO INFORMATION AS A TOOL FOR PUBLIC ACCOUNTABILITY....................1" #UDICIAL REVIEW................................................................................................. 16 #UDICIAL REVIEW AS A PART OF BASIC STRUCTURE.............................................17 L$%$&'&$() () &*+ ,(+ (/ +0$+......................................................................18 C()4$()........................................................................................................... 1
ADMINISTRATIVE LAW Administrative law is the body of law that #o%erns the acti%ities of administrati%e a#encies of #o%ernment. o%ernment a#ency action can include rulemakin#, ad!udication, or the enforcement of a secific re#ulatory a#enda. Administrati%e law is considered a branch of ublic law. As a body of law, administrati%e law deals with the decision5makin# of administrati%e units of #o%ernment 6for e$amle, tribunals, boards or commissions7 that are art of a national re#ulatory scheme in such areas as olice law, international trade, manufacturin#, the en%ironment, ta$ation, broadcastin#, immi#ration and transort. Administrati%e law e$anded #reatly durin# the twentieth century, as le#islati%e bodies worldwide created more #o%ernment a#encies to re#ulate the increasin#ly comle$ social, economic and olitical sheres of human interaction.
*any !urists ha%e made attemts to define it, but none of the definitions has comletely demarcated the nature, scoe and content of administrati%e law. 0ither the definitions are too broad and include much more than necessary or they are too narrow and do not include all essential in#redients. For some it is the law relatin# to the control of owers of the #o%ernment. The main ob!ect of this law is to rotect indi%idual ri#hts. -thers lace #reater emhasis uon rules which are desi#ned to ensure that the administration effecti%ely erforms the tasks assi#ned to it. )et others hi#hli#ht the rincial ob!ecti%e of Administrati%e Law as ensurin# #o%ernmental accountability, and fosterin# articiation by interested arties in the decision makin# rocess.
Ivr Jennin!s
8Administrati%e Law is the law relatin# to the administration. (t determines the or#ani9ation, owers and duties of the administrati%e authorities.:
"ennit# C$l% Davis
;Administrati%e Law is the law concernin# the owers and rocedures of administrati%e a#encies, includin# esecially the law #o%ernin# !udicial re%iew of administrati%e action.1 (n one resect, this definition is roer as it uts emhasis on rocedure followed by administrati%e a#encies in e$ercisin# their owers. 2owe%er, it does not include the substanti%e laws made by these a#encies. Accordin# to Da%is, an administrati%e a#ency is a #o%ernmental authority, other than a court and a le#islature which affects the ri#hts of ri%ate arties either throu#h administrati%e ad!udication or rule5makin#.
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NATURE AND SCOPE OF ADMINISTRATIVE LAW Accordin# to
. The owers %ested in administrati%e a#encies= ?. The re"uirements imosed by law uon the e$ercise of those owers= and @. 'emedies a%ailable a#ainst unlawful administrati%e actions.
INDIAN ADMINISTRATIVE LAW (n (ndia, The onstitution is sureme with discretionary owers at the other side in 0n#land the arliament is sureme. Law enacted by the arliament is authoritati%e and fully admired. /o erson can challen#e the %alidity of such law but only Ultra 3ires statute can challen#e under which it was taken >. Besides, Law enacted by the British arliament is the hi#hest form of law and re%ails o%er e%ery other form of Law ?. (n our (ndia on the other hand by the written onstitution ower of . The action must be taken in accordance with rules and re#ulations, ?. 'ules re#ulation and arent acts are also to be consonance to the onstitution, @. 'ules must be in accordance with rele%ant with statutes,
11C.K. T*'')$ L+&4+ () A9%$)$&'&$0+ L'. I)&(94&$() ,':+. 1
2 C*+)+; 0 C())<186=1 AL LER 77 <168= 1 WLR 22 3C.K. T*'')$ L+&4+ () A9%$)$&'&$0+ L' I)&(94&$() ,':+. 1 6
4. (f challen#e con%erted and acceted in Amendment, such amendment should be conformity with Basic structure.
DOCTORINE OF ACCOUNTABILITY Accountability refers to the rocess of holdin# ersons or or#anisations resonsible for erformance as ob!ecti%ely as ossible. (ndia, as a arliamentary democracy, has elected le#islatures that ha%e o%ersi#ht functions o%er the 0$ecuti%e and an independent judiciary that can hold both the le#islati%e and e$ecuti%e arms of the state accountable. (t has a %ariety of indeendent authorities and commissions that erform accountability functions %is55%is different arts of the #o%ernment. The electoral rocess, the ultimate accountability mechanism in a democratic country, has erformed well for o%er C years. (n a federal system like that of (ndia, ublic accountability is a two way rocess in%ol%in# uward accountability and downward accountability. Uward accountability comes throu#h the #o%ernmental control o%er administrati%e authorities like ower to dissol%e them, aro%al of bud#et, auditin# of bud#ets etc. Downward accountability is to ublic which is relati%ely weak and it comes rimarily throu#h their mandate in elections. All is not well with ublic accountability in (ndia. Formal accountability systems are ut in lace for the most art, but they are not necessarily made to work. *any #ood laws ha%e been enacted, but they are not always enforced or monitored. Public a#encies are #i%en mandates and funds, but their erformance may not be roerly assessed and suitable action taken to hold them accountable. Public audits of accounts and arliamentary re%iews are done, but follow u actions may lea%e much to be desired. (t is clear that the e$istence of formal mechanisms of accountability does not #uarantee actual accountability on the #round. This aer analyses how this doctrine has e%ol%ed in li#ht of !udicial decisions in (ndia. After analysin# %arious Ae$ ourt decisions in this re#ard, the aer then focuses on orrution bein# the e%il which is an imediment for #ood #o%ernance and ublic accountability. Also the aer looks into the 'i#ht To (nformation act which has heled in makin# ublic officials accountable for their acts and lastly two recent cases, *edical ouncil of (ndia and ommonwealth ames, ha%e been discussed which show that much needs to be done in (ndia so that the ublic officials can be discilined and (ndia can become a corrution free and transarent nation. 4
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EVOLUTION OF DOCTRINE The most imortant case which elaborated the scoe of doctrine of ublic accountability is A&'& (n! "n! v& Reid. (n this case, 'eid who was a rown rosecutor took bribes to suress certain criminal cases and urchased roerties with the bribe money. The 2on# +on# o%ernment claimed these roerties statin# that the owners thereof are constructi%e trustees of the rown. The ourt uheld the claim and obser%ed that a #ift taken by a ublic officer as an incenti%e for breach constituted a bribe. The fiduciary owes the money to the erson to whom he owed that duty and he hold the bribe ac"uired therewith on constructi%e trust for that erson. This case also alies to situations where fiduciary relationshi does not e$ist. The Sureme ourt of (ndia followed this case in A&'& ) India v& Amritlal Pra*ivandas where court uheld the %alidity of SAF0*A act which ro%ided for forfeiture of roerties #ained by smu##lin# or other malafide acti%ities. The scoe of this Doctrine was amlified in DDA v& +,i%%er Cnstr$-tin C . case where ourt stated that where%er the #eneral ublic is defrauded by ille#al ac"uire of roerties, the ourt can ass necessary orders irresecti%e of the fact that there was a fiduciary relationshi or not or whether a holder of ublic office was in%ol%ed or not. The court further ronounced that courts in (ndia are not only courts of law but also courts of e"uity. Affi$in# liability on the wron#doer is the need of the hour. &hat this means is that the ublic official needs to be held accountable for his actions. The ourts now award comensation as well as imose e$emlary costs for %iolation of erson:s fundamental ri#hts and for the abuse of ower on the #uilty ublic officer. The Ae$ ourt in Nila.ati Be#era v& +tate ) Orissa held that comensation for %iolation of human ri#hts and abuse of ower is a reco#ni9ed claim under ublic law. The court held that the human ri#hts of %ictims should be #i%en constitutional rotection by a%ailability of ublic law re%iew under Article ?? and Article @?.
SCOPE OF PUBLIC ACCOUNTABILITY /Public Accountability: is a facet of administrati%e efficiency. Publicity of information ser%es as an instrument for the o%ersi#ht of citi9ens. By the same token it su##ests that law could become a means for fi#htin# corrution. Therefore, a o%ernment which roduces a trustworthy flow of information creates #reater certainty and transarency. This is esecially areciated by those who intend to in%est in the ountry. (nternational e$erience shows that countries that allow citi9ens access to ublic information ha%e seen a reduction in indicators of corrution and, conse"uently, substantial increases in administrati%e efficiency.
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8Public Accountability: is a art of #o%ernance. (t is the o%ernment that is accountable to the ublic for deli%erin# a broad set of outcomes but more imortantly it is the ublic ser%ice consistin# of ublic ser%ants that constitutes the deli%ery mechanism. Therefore, the accountability and #o%ernance arran#ements between o%ernment which acts as the rincial and the ublic ser%ice which is its a#ent, imact on the o%ernment:s ability to deli%er and on its accountability to the ublic. The challen#e lies in ensurin# that the ublic ser%ice is #eared to meet the e$ectations of the o%ernment of the day and that ublic ser%ice is neutral, whiche%er arty is in ower. &hen a o%ernment deartment translates a o%ernment:s olicy into ro#rammes, the success of that translation is %ery much deendent on a clear understandin# of and commitment to the outcomes that are sou#ht. (t is not surrisin# that the history of accountability and #o%ernance within the ublic ser%ice has shifted from measurin# ;inuts1 to measurin# ;oututs1, to matchin# oututs, and identify outcomes. The key which weakens accountability or the effecti%eness of the o%ernment or the ublic sector is the lack of information.
CORRUPTION- AN IMPEDIMENT IN TRANSPARENCY The roblem of administrati%e corrution is erhas as old as ublic administration itself. The enormous e$ansion of the #o%ernmental bureaucracy, both in si9e and ran#e, has hi#hli#hted the roblem of effecti%e ublic checks and control on ublic administration. The adotion of the #oals of a social welfare state in almost all de%eloin# countries has resulted in an e$tension of bureaucracy in si9e and number. The e$ansion of #o%ernmental tasks results in the increase in the %olume of work where administrati%e ower and discretion can be used. &here there is ower and discretion, there is always the ossibility of abuse. The law commission had ointed out in its fourteenth reort that there is a %ast shere of administrati%e action in (ndia in which the bureaucracy can e$ercise discretionary authority without bein# accountable to citi9ens in any way in case of abuse of authority. There has also been rise in administrati%e ad!udication e$hibited by the fact that there has been raid increase in number of administrati%e tribunals. The roblems of e$ecuti%e discretion, dele#ated le#islation and administrati%e ad!udication are %itally connected with the roblem of ublic accountability of administration. The entral Bureau of (n%esti#ation 6B(7 is the most imortant body which enforces accountability. (t was earlier under the 0$ecuti%e which was ro%in# to be an imediment to enforce accountability in hi#her echelons of o%ernment. The Sureme ourt searated B( from e$ecuti%e and %ested its suerintendence in the hands of entral 3i#ilance ommission 637. /ow B( does not need rior aro%al of the o%ernment to in%esti#ate corrution cases. The court also #a%e se%eral other directions to imro%e the functionin# of the B( and to make it the most effecti%e body to enforce transarency in the #o%ernment functionaries.
5 Governance and Accountability in the Public Sector, speech by Hon’ble Lianne Dalziel, 200 !"""#scoop#co#nz$#
Pre%ention of orrution Act, >E 6PA7 is a salient le#islation in the area of ublic accountability which was enacted to ensure transarency in #o%ernment functions. The ourt in J00 Bri.er1 -ase held that the *embers of Parliament and *embers of Le#islati%e Assemblies are co%ered within the ambit of ublic ser%ants under PA. The court said that these ersons cannot claim immunity from rosecution under Article >C for any offence committed outside ParliamentGLe#islature. This !ud#ment was howe%er critici9ed on other #round mainly that Article >C is not an enablin# ro%ision for corrution. The urose of the immunity is le#islati%e indeendence but #i%in# or recei%in# bribes is not art of le#islati%e rocess.
RIGHT TO INFORMATION AS A TOOL FOR PUBLIC ACCOUNTABILITY An imortant factor resonsible for the absence of oular articiation in the #o%ernance rocess is the lack of information. ommentin# on the need for a oen o%ernment, the Sureme ourt of (ndia obser%ed that the demand for oenness in the o%ernment is based on the reason that ;democracy does no consist merely in eole e$ercisin# their franchise once in fi%e years to choose their rulers and once the %otes are cast, then returnin# into assi%ity and not takin# any interest in the o%ernment.1 &ay back in >EH in the case of Ra* Narain v& +tate ) Uttar Prades# , the Sureme ourt of (ndia obser%ed that in a #o%ernment like ours, where all the a#ents of the ublic must be resonsible for their conduct, there can be but few secrets. The eole of the country ha%e a ri#ht to know any ublic act. (n >E? in the S.P. uta case the ourt emhasi9ed that an oen o%ernment is the new democratic culture of an oen society towards which e%ery liberal democracy is mo%in# and our country should be no e$cetion. The ourt in >EEH in Dines# Trivedi v& Unin ) India held that ;to ensure the continued articiation of the eole in the democratic rocess they must be ket informed of the %ital decisions taken by the #o%ernment and the basis thereof. 'T( act is landmark le#islation and co%ers all central, state and local #o%ernmental bodies and in addition to the e$ecuti%e it also alies to the !udiciary and the le#islature. The term information under the act co%ers ri#ht to insect work, documents and records held by the #o%ernment and allows for the e$traction of certified samles for %erification.H
'i#ht to information has already ro%ed to be an effecti%e instrument for combatin# corrution in ublic ser%ice. The si#nificant achie%ements of ci%il society or#anisations like 8Pari%artan: in Delhi in collectin# information re#ardin# flow of ublic funds, dubious 6 .'&+'*+.)+& 7 .'&+'*+.)+& 1"
decisions etc. are e$amles of the ower of information, but more si#nificant asect of the e$erience is that much more needs to be done in this direction. Accordin# to Transarency (nternational, if (ndia were to reduce corrution to the le%el that e$ists in the Scandina%ian countries, in%estment could be increased by >?I and the DP #rowth rate by >.I er annum. Access to information needs to be encoura#ed on this #round alone. The ;ri#ht to information1 is defined in sec. ?6!7 as a ri#ht to information accessible under the Act which is held by or under the control of any ublic authority and includes a ri#ht to 6i7 insection of work, documents, records, 6ii7 Takin# notes, e$tracts or certified coies of documents or records, 6iii7 Takin# searate samles of material, 6i%7 -btainin# information in the form of diskettes, floies, taes, %ideo cassettes or in any other electronic mode or throu#h rintouts where such information is stored in a comuter or in any other de%ice. The Act alies both to entral and State o%ernments and all ublic authorities. A ;ublic authority1 6sec. ?6h77 which is bound to furnish information means any authority or body or institution of self5#o%ernment established or constituted 6a7 by or under the onstitution, 6b7 by any other law made by Parliament, 6c7 by any other law made by State Le#islature, 6d7 By a notification issued or order made by the aroriate o%ernment and includes any 6i7 body owned, controlled or substantially financed, 6ii7 /on5#o%ernment or#ani9ation substantially financed.
CON+TITUTIONAL A+PECT OF T(E RI'(T TO INFOR0ATION Article >E6>7 6a7 of the onstitution #uarantees the fundamental ri#hts to free seech and e$ression. The rere"uisite for en!oyin# this ri#ht is knowled#e and information. The absence of authentic information on matters of ublic interest will only encoura#e wild 11
rumours and seculations and a%oidable alle#ations a#ainst indi%iduals and institutions. Therefore, the 'i#ht to (nformation becomes a constitutional ri#ht, bein# an asect of the ri#ht to free seech and e$ression which includes the ri#ht to recei%e and collect information. This will also hel the citi9ens erform their fundamental duties as set out in Article >A of the onstitution. A fully informed citi9en will certainly be better e"uied for the erformance of these duties. Thus, access to information would assist citi9ens in fulfillin# these obli#ations.
RI'(T TO INFOR0ATION I+ NOT AB+OLUTE As no ri#ht can be absolute, the 'i#ht to (nformation has to ha%e its limitations. There will always be areas of information that should remain rotected in ublic and national interest. *oreo%er, this unrestricted ri#ht can ha%e an ad%erse effect of an o%erload of demand on administration. So the information has to be roerly, clearly classified by an aroriate authority. The usual e$emtion ermittin# o%ernment to withhold access to information is #enerally in resect of the these mattersJ 6>7 (nternational relations and national security= 6?7 Law enforcement and re%ention of crime= 6@7 (nternal deliberations of the #o%ernment= 647 (nformation obtained in confidence from some source outside the o%ernment= 67 (nformation which, if disclosed, would %iolate the ri%acy of an indi%idual= 67 (nformation, articularly of an economic nature, when disclosed, would confer an unfair ad%anta#e on some erson or sub!ect or #o%ernment= 6H7 (nformation which is co%ered by le#alGrofessional ri%ile#e, like communication between a le#al ad%isor and his client and 67 (nformation about scientific disco%eries and in%entions and imro%ements, essentially in the field of weaons. These cate#ories are broad and information of e%ery kind in relation to these matters cannot always be treated as secret. There may be occasions when information may ha%e to be disclosed in ublic interest, without comromisin# the national interest or ublic safety. For e$amle, information about deloyment and mo%ement of armed forces and information about military oerations, "ualify for e$emtion. (nformation about the e$tent of defence e$enditure and transactions for the urchase of #uns and submarines and aircraft cannot be totally withheld at all sta#es.
NEED FOR RI'(T TO INFOR0ATION The 'i#ht to (nformation has already recei%ed !udicial reco#nition as a art of the fundamental ri#ht to free seech and e$ression. An Act is needed to ro%ide a statutory frame work for this ri#ht. This law will lay down the rocedure for translatin# this ri#ht into reality. (nformation is indisensable for the functionin# of a true democracy. Peole ha%e to be ket informed about current affairs and broad issues K olitical, social and economic. Free 12
e$chan#e of ideas and free debate are essentially desirable for the o%ernment of a free country. (n this A#e of (nformation, its %alue as a critical factor in socio5cultural, economic and olitical de%eloment is bein# increasin#ly felt. (n a fast de%eloin# country like (ndia, a%ailability of information needs to be assured in the fastest and simlest form ossible. This is imortant because e%ery de%elomental rocess deends on the a%ailability of information. 'i#ht to know is also closely linked with other basic ri#hts such as freedom of seech and e$ression and ri#ht to education. (ts indeendent e$istence as an attribute of liberty cannot be disuted. 3iewed from this an#le, information or knowled#e becomes an imortant resource. An e"uitable access to this resource must be #uaranteed. Soli Sorab!ee stressin# on the need of 'i#ht to (nformation aim at brin#in# transarency in administration and ublic life, says, Lack of transarency was one of the main causes for all er%adin# corrution and 'i#ht to (nformation would lead to oenness, accountability and inte#rity. Accordin# to *r. P.B. Sawant, the barrier to information is the sin#le most cause resonsible for corrution in society. (t facilitates clandestine deals, arbitrary decisions, maniulations and embe99lements. Transarency in dealin#s, with their e%ery detail e$osed to the ublic %iew, should #o a lon# way in curtailin# corrution in ublic life.
RI'(T TO INFOR0ATION IN OT(ER COUNTRIE+ (n recent years, many ommonwealth countries like anada, Australia, and /ew Mealand ha%e assed laws ro%idin# for the ri#ht of access to administrati%e information. USA, France and Scandina%ian countries ha%e also assed similar laws. US Freedom of (nformation Act ensures oenness in administration b y enablin# the ublic to demand information about issues as %aried as deterioratin# ci%ic amenities, assets of senators and utilisation of ublic funds. (t is not only the de%eloed countries that ha%e enacted freedom of information le#islation, similar trends are seen in the de%eloin# countries as well. The new South Africa onstitution secifically ro%ides the 'i#ht to (nformation in its Bill of 'i#hts55thus #i%in# it an e$licit constitutional status. *alaysia oerates an on5line data base system known as i%il Ser%ices Link, throu#h which a erson can access information re#ardin# functionin# of ublic administration. There is thus a #lobal swee of chan#e towards oenness and transarency.
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(n USA, the first amendment to the onstitution ro%ided for the freedom of seech and e$ression. The country had already assed the Freedom of (nformation 'eform Act >E, which seeks to amend and e$tend the ro%isions of re%ious le#islation on the same sub!ect. But this ri#ht is not absolute. 'ecently, the US Sureme ourt struck down two ro%isions of the ommunications Decency Act 6DA7, >EE, seekin# to rotect minors from harmful material on the (nternet recisely because they abrid#e the freedom of seech rotected by the first amendment. *oreo%er, the %a#ueness in the DA:s lan#ua#e, the ambi#uities re#ardin# its scoe and difficulties in adult5a#e %erification, make DA unfeasible in its alication to a multifaceted and unlimited form of communications such as (nternet. Sweden has been en!oyin# the ri#ht to know since >>C. (t was relaced in >E4E by a new Act which en!oyed the sanctity of bein# a art of the country:s onstitution itself. The rincile is that e%ery Swedish citi9en should ha%e access to %irtually all documents ket by the State or municial a#encies. (n Australia, the Freedom of (nformation Act was enacted in December >E?. (t #a%e citi9ens more access to the Federal o%ernment:s documents. &ith this, manuals used for makin# decisions were also made a%ailable. But in Australia, the ri#ht is curtailed where an a#ency can establish that non5disclosure is necessary for rotection of essential ublic interest and ri%ate and business affairs of a erson about whom information is sou#ht. 0%en the So%iets, under *ikhail orbache%, ha%e realised that the State does not claim monooly of truth any lon#er. lasnost has cast away the cloud of secrecy and stresses the riority of human %alues. 0%en as stes are taken to ensure oenness in matters affectin# the ublic, there has to be a #reater sense of resonsibility on the art of users of information in the media and elsewhere. E>> and >EE are intended to defend national security by renderin# inaccessible to the ublic certain cate#ories of official information. 2owe%er, the #o%ernment reco#nises that access to information is an essential art of its accountability. A recent le#islation #o%ernin# access to ublic information includes Local o%ernment 6Access to (nformation7 Act, >E= the 0n%ironment and Safety (nformation Act, >E, and the Access to 2ealth 'ecords Act >EEC are such laws. -n the other hand, Data Protection Act, >E4= the Access to Personal File Act= the Access to *edical 'eorts Act, >E, and the onsumer redit Act, >EH4, all ro%ide some rotection for different asects of ersonal information.E
LAND0AR" JUD'E0ENT+
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The need for 'i#ht to (nformation has been widely felt in all sectors of the country and this has also recei%ed !udicial reco#nition throu#h some landmark !ud#ements of (ndian courts. A Sureme ourt !ud#ement deli%ered by *r. EH7 case, E? that the ri#ht to know matured to the status of a constitutional ri#ht in the celebrated case of + P '$%ta vs& Unin ) India 6A('7 >E? S 6>4E7, oularly known as E 6>7 6a7. The Sureme ourt of (ndia has emhasised in the SP uta case 6>E?7 that oen o%ernment is the new democratic culture of an oen society towards which e%ery liberal democracy is mo%in# and our country should be no e$cetion. (n a country like (ndia which is committed to socialistic attern of society, ri#ht to know becomes a necessity for the oor, i#norant and illiterate masses. (n >E, the Bombay 2i#h ourt followed the SP uta !ud#ement in the well5known case Bombay 0n%ironmental rou and others %s. Pune antonment Board. The Bombay 2i#h ourt distin#uished between the ordinary citi9en lookin# for information and #rous of social acti%ists. This was considered a landmark !ud#ement concernin# access to information.>C 0ain %ints ) resl$tin
1" *&&,>>.&9.)$.$) 15
i.
The 'i#ht to (nformation should also be e$tended in resect of comanies, /-s and international a#encies whose acti%ities are of a ublic nature and ha%e a direct bearin# on ublic interest.
ii.
The law must contain stron#, enal ro%isions a#ainst wilful and wanton withholdin# or delay in sulyin# information or deliberately sulyin# misleadin# or inaccurate information.
iii.
The law should contain an aeal mechanism of an indeendent nature to ro%ide reliable redress to any citi9en dissatisfied with any decision of a ublic authority under this law. (n the resent draft Bill, all aeals are to other o%ernment authorities.
i%.
The cate#ories of information, which can be restricted or withheld by the o%ernment, are too wide in the draft Bill. (n articular, the restriction on disclosin# internal notin#s and official corresondence between ublic officials and offices has no !ustification whatsoe%er. (n a democracy, eole ha%e the ri#ht to know how and why a articular decision has been arri%ed at and who made what recommendations with what !ustification. &e do not suort the %iew that this will deter candour in the e$ression of %iews of ublic ser%ants. 2onest ublic ser%ants e$ressin# their oinions honestly cannot be deterred by the knowled#e that their oinions will become known to the eole.
%.
Similarly the restriction on confidential communications between the State and entre and their a#encies ha%e no !ustification, unless they harm ublic interest.
%i.
The restriction on disclosure of the record of discussions of Secretaries and other ublic ser%ants also needs to be remo%ed .
JUDICIAL REVIEW J$di-ial review is the doctrine under which le#islati%e and e$ecuti%e actions are sub!ect to
re%iew 6and ossible in%alidation7 by the !udiciary. A secific court with !udicial re%iew ower may annul the acts of the state when it finds them incomatible with a hi#her authority 6such as the terms of a written constitution7.
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*ost modern le#al systems allow the courts to re%iew administrati%e acts 6indi%idual decisions of a ublic body, such as a decision to #rant a subsidy or to withdraw a residence ermit7. (n most systems, this also includes re%iew of secondary le#islation 6le#ally5 enforceable rules of #eneral alicability adoted by administrati%e bodies7. Some countries 6notably France and ermany7 ha%e imlemented a system of administrati%e courts which are char#ed with resol%in# disutes between members of the ublic and the administration. (n other countries 6includin# the United States, Scotland and the /etherlands7, !udicial re%iew is carried out by re#ular ci%il courts althou#h it may be dele#ated to seciali9ed anels within these courts 6such as the Administrati%e ourt within the 2i#h ourt of 0n#land and &ales 7. The United States emloys a mi$ed system in which some administrati%e decisions are re%iewed by the United States district courts 6which are the #eneral trial courts7, some are re%iewed directly by the United States courts of aeals and others are re%iewed by seciali9ed tribunals such as the United States ourt of Aeals for 3eterans laims 6which, desite its name, is not technically art of the federal !udicial branch7. (t is "uite common that before a re"uest for !udicial re%iew of an administrati%e act is filed with a court, certain reliminary conditions 6such as a comlaint to the authority itself7 must be fulfilled. (n most countries, the courts aly secial rocedures in administrati%e cases. T#e %rvisins ) Arti-le 23 are4
Article >@ 6>7 ro%ides that all laws in force in the territory of (ndia immediately before the commencement of the onstitution of (ndia, in so far as they are inconsistent with the ro%ision of Part ((( dealin# with the fundamental ri#hts shall, to the e$tent of such inconsistency, be %oid. Article >@ 6?7 ro%ides the State Shall not make any law which takes away or abrid#es the fundamental ri#hts and any law made in contra%ention of this clause shall, to the e$tent of the contra%ention, be %oid. Article ?4 makes it clear that the le#islati%e owers of Parliament and of the State Le#islatures are sub!ect to the ro%isions of the onstitution. Parliament may make laws for the whole or any art of the territory of (ndia and the le#islature of State may make laws for the whole or any art of the State. /o law made by Parliament shall be deemed to be in%alid on the #round that it would ha%e been e$tra5territorial oeration. The State Le#islature can make law only for the State concerned and, therefore, the law made by the state Le#islature ha%in# oeration outside the State would be beyond its cometence and, therefore ultra %ires and %oid.
JUDICIAL REVIEW AS A PART OF BASIC STRUCTURE (n the celebrated case of "es#avanda B#arat#i v& +tate ) "erela , the Sureme ourt of (ndia the roounded the basic structure doctrine accordin# to which it said the le#islature can amend the onstitution, but it should not chan#e the basic structure of the onstitution, The
1.
Suremacy of the onstitution. 2. 'eublican and democratic form of o%ernment. 3. Secular character of the onstitution. 4. Searation of owers between the le#islature, the e$ecuti%e and the !udiciary. 5. Federal character of the onstitution.
2e obser%ed that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the onstitution. 2e added that the structure was built on the basic foundation of di#nity and freedom of the indi%idual which could not by any form of amendment be destroyed. (t was also obser%ed in that case that the abo%e are only illustrati%e and not e$hausti%e of all the limitations on the ower of amendment of the onstitution. The onstitutional bench in Indira Ne#r$ 'and#i v& Ra* Narain 6>EH Su S >.7 held that EH7 > S >?4 at >?.7, P./. Bha#wati, .<., relyin# on *iner%a *ills Ltd. 66>EC7 @ S ?.7 declared that it was well settled that !udicial re%iew was a basic and essential feature of the onstitution. (f the ower of !udicial re%iew was absolutely taken away, the onstitution would cease to be what it was. (n Samath +umar the ourt further declared that if a law made under Article @?@5A6>7 were to e$clude the !urisdiction of the 2i#h ourt under Articles ?? and ??H without settin# u an effecti%e alternati%e institutional mechanism or arran#ement for !udicial re%iew, it would be %iolati%e of the basic structure and hence outside the constituent ower of Parliament. (n "i#t (ll#an v& 5a-#ill#$r 6>EE? Su 6?7 S >, H>, ara >?C7 another onstitution Bench, while e$aminin# the %alidity of ara H of the Tenth Schedule to the onstitution which e$cluded !udicial re%iew of the decision of the SeakerGhairman on the "uestion of dis"ualification of *LAs and *Ps, obser%ed that it was unnecessary to ronounce on the contention whether !udicial re%iew is a basic feature of the onstitution and ara H of the Tenth Schedule %iolated such basic structure. Subse"uently, in L& C#andra "$mar v& Unin ) India 6>EEH7 @ S ?>7 a lar#er Bench of se%en
Limitation on t! "o#!$ o% $!&i!#' The e$ansion of the hori9on of !udicial re%iew is seen both with re%erence and susicion= re%erence in as much as the !udicial re%iew is a creati%e element of interretation, which ser%es as an omniresent and otentially omniotent check on the le#islati%e and e$ecuti%e branches of #o%ernment. But at the same time there is a dan#er that they may tresass into the owers #i%en to the le#islature and the e$ecuti%e. 11 *&&,>>.%()9'?.(% 18
-ne many say that if there is any limitation on !udicial re%iew other than constitutional and rocedural that is a roduct of !udicial self5restraint. As !ustice Dwi%edi emathically obser%ed, Structural socio5olitical %alue choices in%ol%e a comle$ and comlicated olitical rocess. This court is hardly fitted for erformin# that function. (n the absence of any e$licit onstitutional norms and for want of comlete e%idence, the court:s structural %alue choices will be lar#ely sub!ecti%e. -ur ersonal redilections will una%oidably enter into the scale and #i%e colour to our !ud#ment. Sub!ecti%ism is calculated to undermine le#al certainty, an essential element of rule of law. The abo%e obser%ations also re%eal another assumtion to suort an attitude of self5restraint, %i9., and the element sub!ecti%e ness in !udicial decision on issues ha%in# socio5olitical si#nificance. &hen one looks at the decisions of the Sureme ourt on certain "uestions of fundamental issues of constitutional law one can see that there is a shar di%ision amon# the !ud#es of the ae$ court on such basic "uestions of ower of the Parliament to amend the onstitution, federal relations, owers of the President etc. This atly demonstrates the obser%ation of the !ud#e. This would mean that thou#h there has been e$ansion of owers of !udicial re%iew one cannot also say that this cannot be o%erturned.
these factors may only be %iewed as undesirable.
Con()*+ion Accountability is an essential art of the rule of law. (t is essential for another reason, as in the earlier editions of Dicey, of course modified in later editions, referrin# to ? Accountability is one of those #olden concets that no one can be a#ainst. (t is increasin#ly used in olitical discourse and olicy documents because it con%eys an ima#e of transarency and trustworthiness. 2owe%er, its e%ocati%e owers make it also a %ery elusi%e concet because it can mean many different thin#s to different eole, as anyone studyin# accountability will soon disco%er. This aer ne%ertheless tries to de%elo an analytical framework for the emirical study of accountability arran#ements in the ublic domain. (t starts from a narrow, relational definition of accountability and distin#uishes a number of indicators that can be used to identify and classify accountability arran#ements. Furthermore, it de%elos three ersecti%es to assess and e%aluate accountability arran#ements in the ublic domain.>@
12 *&&,>>.%()9'?.(%> 2"
BIBLO'RAP(Y
www.#oo#le.co.in www.rrtd.nic.in indialawyers.wordress.com www.le#alser%icesindia.com
13 T*$ ,',+ $ ') '9',&+9 ')9 +@&+)9+9 0+$() (/ ' *',&+ () ,4$ '(4)&'$$&; *$* $ + ,4$*+9 $) E. F+$+ L. L;))+ C. P($&& <+9.= The Oxford Handbook of Public Management, O@/(9 O@/(9 U)$0+$&; P+ 2""5 ')9 ' D4&* ,',+ *$* ' ,4$*+9 $) W. B'+ K. Y+$':$& <+9.= Publieke verantwoording A%&+9'% B((% 2""5. I &*') P'4 & !'& P+&+ M'$ T*(%' S*$+%') ')9 M'$'))+ 0') 9+ S&++: /( &*+$ 0'4'+ (%%+)& () ,+0$(4 0+$() (/ &*$ ,',+. 21
www.manuatrafast.com www.lawteacher.net www.lawnotes.in suremecourtofindia.nic.in
BOO"+
Administrative Law, Fifth Edition (1991) By Dr. S. P. Sathe Administrative law, Eihth Edition (!"1!) By #.P. $ASSE% Administrative law, Fifteenth Edition (!"1!) By &.P.D 'ESA#
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