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CHAPTER 1

1.1 Introduction

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.
It has a variety of independent authorities and commissions that perform accountability
functions vis--vis different parts of the government.

Public accountability is the hallmark of modern democratic governance. Democracy

remains a paper procedure if those in power cannot be held accountable in public for
their acts and omissions, for their decisions, their policies, and their expenditures.
Public accountability, as an institution, therefore, is the complement of public
management. 1

A traditional cornerstone of democracy is the notion that each political representative

and public official is subject to what is known as accountability. Accountability may be
defined in several ways. First 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 required from public officials individually and collectively to accept
public responsibility for their actions and inactions; and finally, it is the obligation of a
subordinate to keep his or her superior informed of the execution of responsibility.

Public accountability means the obligation to answer publicly- to report, to an

acceptable standard of answering, for the discharge of responsibilities that affect the
public in important ways. It is the obligation to answer to answer for a responsibility
conferred. The obligation to answer publicly arises as a fairness obligation whenever
authorities intend something that would affect the public in important ways. Thus the
obligation extends beyond answering for responsibilities formally or legally concerned.
Responsibility is the obligation to act and accountability is the obligation to report on

1 Meaning of Public Accountability Law Constitutional Administrative Essay, Uniassignment, (Feb. 12, 2017,
14:22 p.m.), https://www.uniassignment.com/essay-samples/law/meaning-of-public-accountability-law-
constitutional-administrative-essay.php
 Page | 2

the responsibilities. These are separate obligations. The purpose of having authorities
answer publicly for their responsibilities is to let citizens make reasonably informed
decisions about the safety and fairness of authorities intentions. When citizens are
reasonably informed they can act to condemned, alter or halt authorities intentions.
This means that citizens have more control over what affects them.

The concept of accountability on its own does not necessarily imply public
accountability. Public accountability goes hand in hand with representative democracy
and its associated rights of citizens and obligations for political representatives and
public officials. The ultimate value of public accountability is that the elected public
representatives and public officials are required to conduct public dialogue among
themselves on what they do and intend doing, and on the suppositions is that secrecy on
matters of public management conceals maladministration, mismanagement and
corruption. The ethical base of public accountability is the level of accord created
between government authority and the governments accountability to the public. The
true function of public accountability should be not to focus on negative aspects only.

The 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 law that all discretionary powers must be exercised reasonably and in larger
public interest. In Henley v. Lyme Corporation2 Best C.J stated: Now I take it to be
perfectly clear, that if a public officer, abuses his office, either by an act of omission or
commission and the consequence of that is an injury to an individual an action may be
maintained against such public officer.

In various cases, the Supreme Court has applied the above principle by granting
appropriate relief to aggrieved parties or by directing the defaulter to pay damages,
compensation or costs to the person who has suffered. Very recently in Arvind
Datttaraya v. State of Maharashtra3, the Supreme Court set aside order of transfer of a
public officer observing that the action was not taken in public interests but was a case
of victimized of an honest officer. it is most unfortunate that the Government

2 (1828) 5 Bing 91: 130 ER 995

3 (1997) 6 SCC 169: AIR 1997 SC 3067

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demoralize the officers who discharge their honestly and diligently and brings the
persons indulging in black marketing and contra banding liquor.

In a federal system like that of India, public accountability is a two way process
involving upward accountability and downward accountability. Upward accountability
comes through the governmental control over administrative authorities like power to
dissolve them, approval of budget, auditing of budgets etc. Downward accountability is
to public which is relatively weak and it comes primarily through their mandate in
elections.

1.2 Research Methodology

1.1.1 Problem

This project report seeks to appraise the doctrine of public accountability and its
growth, position and relevance in India.

1.1.2 Rationale of the study

The study is significant to find the rationale behind the working of the three organs of
the State Legislature, Executive and Judiciary and the exercise of their power in
favour of public interest.

1.1.3 Objectives

1. To analyze the evolution of doctrine of public accountability in India.

2. To seek out the evils hampering the transparency of the government.
3. To study the mechanisms to enforce public accountability.
4. To study the working of the doctrine in the contemporary times and draw out
appropriate conclusions.

1.1.4 Review of Literature

1) C.K. Thakker, Administrative Law, Second Edition, Eastern Book Company, 2012

The book is exhaustive with the doctrines and case laws regarding administrative
law. It also analyses the doctrine of public accountability and its relevance in the
organs of the government. It had been descriptively well-explained the situations
where to public accountability applies for the betterment of public.
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2) C.K. Takwani, Lectures on Administrative Law, Sixth Edition, Eastern Book

Company, 2017

This literature deals with all the major aspects of the Administrative Law. It also
simply but aptly explains the doctrine of public accountability as well as
illustrative cases to present the application of the doctrine.

3) Edited by Venkataeshwarier Subhramaniam, Public Administration in the Third

World: An International Handbook, Greenwood Publishing Group, 1990

This handbook gives a detailed, objective picture of the evolution, structure and
processes of public administration in representative Third World countries. It gives
an analysis of British doctrine of public accountability and its enforcement
mechanism and significance in the parliament.

1.1.5 Hypothesis

Public accountability means the obligation to answer publicly to report, to an

acceptable standard of answering, for the discharge of responsibilities that affect the
public in important ways. The obligation to answer publicly arises as a fairness
obligation whenever authorities intend something that would affect the public in
important ways. A traditional cornerstone of democracy is the notion that each
political representative and public official is subject to what is known as
accountability for the protection of public interest.

1.1.6 Concepts

1. Public Accountability
The concept of accountability on its own does not necessarily imply public
accountability. Public accountability goes hand in hand with representative
democracy and its associated rights of citizens and obligations for political
representatives and public officials. The basic purpose of the emergence of the
doctrine is to check the growing misuse of power by the administration and to
provide speedy relief to the victims of such exercise of power. The doctrine is
based on the premise that the power in the hands of administrative authorities is a
public trust which must be exercised in the best interest of the people.

2. Personal Liability
A breach of duty gives rise in public law to liability which is known as
misfeasance in public office. Exercise of power by minister and public officers
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must be for public goods and to achieve welfare of public at large. Wherever
there is abuse of power by an individual, that person can be held liable.

3. Judicial Accountability
Accountability of the judiciary in respect of its judicial functions and orders is
vouchsafed by provisions for appeal, reversion and review of orders. The
judiciary, an essential wing of the State, is accountable, but not on the same plane
as the accountability of the executive or the legislature or any other public
institution.

1.1.7 Research Design

1. Nature of study
The nature of the study in this project is doctrinal and is primarily descriptive and
analytical.

2. Sources of Data
This project is largely based on secondary and electronic sources of data.
Books, case laws, journals & other reference are primarily helpful for the
completion of this project.

1.1.8 Chapterization

Chapter 1 has introduced the research project and proceeds to the research
methodology. Chapter 2 involves the study of the evolution of the doctrine of public
accountability. Chapter 3 gives a broad idea of the evil that accounts for the weakness
in the public accountability in the government. This part talks about the corruption as
an impediment in transparency. Chapter 4 analyses the protection and enforcement
mechanism of public accountability in all three organs of Indian Government. Chapter
5, at last, talks about the infamous cases and the issue of accountability in
contemporary times.

1.1.9 Time Schedule

The duration of the making and completion of the project report had been 8 days. The
project reached its completion on 21:10 p.m.

1.1.10 Contribution of Research

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This research seeks to highlight the doctrine of public accountability and its
enforcement in the three organs of the government legislature, executive and
judiciary.

CHAPTER -2

2.1 Evolution of Doctrine of Public Accountability in India

The basic purpose of the doctrine of public accountability is to check the growing
misuse of power by the administration and to provide speedy relief to the victims of such
exercise of power. The doctrine is based on the premise that the power in the hands of
administrative authorities is a public trust which must be exercised in the best interest of
the people. Therefore, the trustee (public servant) who enriches himself by misusing his
office must hold the property/benefit acquired by him as a constructive trustee.

The celebrated decision of the Privy Council in the A.G. of Hong Kong v. Reid4 (1993)
case has greatly widened the scope of this principle. Lord Templeman observed that
engaging in bribery is an evil practice which threatens the foundations of any civilised
society. Any benefit obtained by a fiduciary, through a breach of duty, belongs in equity to
the beneficiary (the state). All legal principles require to be interpreted subject to this basic
norm.

The Privy Council further observed that when a bribe is accepted by a fiduciary (public
servant) in breach of his duty, then he holds that bribe in trust for the person to whom the
duty was owed. If the property representing the bribe decreases in value, the fiduciary
(public servant) must pay the difference between that value and the initial amount of the
bribe because he should not have accepted the bribe and incurred the risk 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 allowed by any means to make a profit out of a
breach of duty.

4 [1993] UKPC 36
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It was 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 law it belonged to the fiduciary, in
equity he not only becomes a debtor for the amount of the bribe to the person to whom the
duty was owed but he also holds the bribe and any property acquired therewith in
constructive trust for the person.

In this case, the respondent, Reid, who was a Crown prosecutor in Hong Kong, took bribes
as an inducement to suppress certain criminal prosecutions, and acquired properties in
New Zealand in his name, in the name of his wife and his solicitor. The administration of
Hong Kong claimed these properties on the ground that the owners thereof are
constructive trustees for the Crown. The Privy Council upheld the claim. It observed that if
the theory of constructive trust is not applied and properties attached when available, the
danger is that properties may be sold and proceeds whisked away to some numbered bank
account. It further observed that one can understand the immorality of the bankers who
maintained numbered bank accounts but it is difficult to understand the amorality of the
governments and their laws which sanction such practices in effect encouraging them.

Judicial response in India is based on this concept of trust and equity which was developed
in Reids case. Thus while deciding the constitutionality of clause (c) of Section 3 (1) of
the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(SAFEMA), which provided for the forfeiture of properties earned by smuggling or other
illegal activities whether standing in his name or other parties, the apex court took
recourse to the principle of trust and equity. The Supreme Court in D.D.A. V. Skipper
Construction Co5., (1996), not only further followed the above principle but enlarged its
scope by stating that even if there was no fiduciary relationship or no holder of public
office was involved, if it is found that someone has acquired properties by defrauding the
people, and if it is found that the persons defrauded should be restored to the position in
which they would have been but for the said fraud, the court can go ahead with the
necessary orders.

Thus, the concept of public accountability was extended to the private sector which is very
relevant in this age of privatisation and globalisation of economy. The court further held
that all properties must be immediately attached. The burden of proof to prove that the

5 1996 (4) SCC 622

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attached properties were not acquired with the aid of monies/properties received in the
course of corrupt deals shall lie on the holder of such properties. This is what equity means
and in India courts are not only courts of law but also courts of equity. In this case a
private company had purchased a plot of land in an auction from the Delhi Development
Authority but did not deposit the bid amount. When the DDA proposed cancellation of the
allotment, the company obtained a stay. Meanwhile, the company started selling space in
the proposed building. Thus, prospective buyers of space were cheated to the tune of about
Rs 14 crores.

Further elaborating the principle of public accountability, the court applied the doctrine of
"lifting the corporate veil" in order to fix accountability on persons who are the actual
operators of the corporate legal entity. The court observed that the concept of corporate
entity was evolved to encourage and promote trade and commerce but not to commit
illegality or to defraud people. In such cases the court would look behind the corporate
veil so as to do justice between the parties. The court further held that in order to
compensate those who are defrauded or cheated, it can pass necessary orders under Article
142 of the Constitution.

Though the court certainly put the right foot forward, it did not take a long stride. It missed
the opportunity of providing the doctrine of public accountability its due reach. The court
did not express any opinion on the question whether the misdeeds of public servants,
which are not only beyond their authority but done with mala fide intent, would also bind
them personally or the state corporation would be vicariously liable. It cannot be over-
emphasised that if the doctrine of accountability is to be given its full sweep, the concept
of state/corporation liability should be shifted to the officers liability where possible, so
that it may have an inhibiting effect on the temptation of public servants to misuse power
for personal gains.

However, the court observed that a law like the SAFEMA has become an absolute
necessity, if the cancer of corruption is not to prove the death-knell of this nation, and
suggested to Parliament to act in this matter.

In order to strengthen public accountability further in the State of Bihar v. Subhash Singh6
case (1997), the court held that the head of the department is ultimately responsible and
6 AIR 1997 SC 1390
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accountable unless there are special circumstances absolving him of the accountability.
The court has strengthened accountability procedures by applying the contempt law
against those who deliberately violate court orders. The court has also imposed cost
personally against erring officers for delay in the discharge of duties. In the same manner
where the public servant has caused a loss to the public exchequer, the court has allowed
the government to recover such loss personally from the erring officer. It has now become
an established law that the courts can award compensation and exemplary cost for the
abuse of power and violation of human rights by the state.

Thus a claim in public law for compensation in cases of violation of human rights and
abuse of power has become an acknowledged remedy. Every individual has an enforceable
right to compensation when he is a victim of violation of his Fundamental Rights and
abuse of power. Certainly, leaving the victim to the remedies available in civil law in such
situation limits the role of constitutional courts as protector and guarantor of human rights
of the people. Thus courts are under obligation to make state or its servants accountable to
the people by compensating them for the violation of their human rights. The Supreme
Courts recent decision in the Vineet Narain v. Union of India7 case (1998) separating the
CBI from the executive by vesting its superintendence in the statutory Central Vigilance
Commission (CVC), is a significant step in the direction of enforcing public
accountability.

Moving swiftly in the direction of enforcing accountability, the apex court in another pace-
setting judgement (JMM bribery case) held that members of Parliament and legislative
assemblies are public servants under the Prevention of Corruption Act. The Court further
observed that these members cannot also claim exemption from prosecution under Article
105 (2) of the Constitution regarding protection of privileges of M.Ps and M.L.As for any
offence committed outside Parliament/legislature. The Court held that Article 105 (2)
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. Thus, by
redefining the role of the state, fixing accountability at all levels and transparency in the
administration, the court is simply trying to make 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 1996 SCC (2) 199

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CHAPTER 3
3.1 Corruption An Impediment in Transparency

Public accountability in India is not as well enforced. Formal accountability systems are
put in place for the most part, but they are not necessarily made to work. Many good laws
have been enacted, but they are not always enforced or monitored. Public agencies are
given mandates and funds, but their performance may not be properly assessed and
suitable action taken to hold them accountable. Public audits of accounts and
parliamentary reviews are done, but follow 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.

The problem of administrative corruption is perhaps as old as public administration itself.

The enormous expansion of the governmental bureaucracy, both in size and range, has
highlighted the problem of effective public checks and control on public administration.
The adoption of the goals of a social welfare state in almost all developing countries has
resulted in an extension of bureaucracy in size and number. The expansion of
governmental tasks results in the increase in the volume of work where administrative
power and discretion can be used. Where there is power and discretion, there is always the
possibility of abuse.

The 14th report of the Law Commission, 1958 had pointed out that that there is a vast
sphere of administrative action in India in which the bureaucracy can exercise
discretionary authority without being accountable to citizens in any way in case of abuse
of authority. There has also been rise in administrative adjudication exhibited by the fact
that there has been rapid increase in number of administrative tribunals.
 P a g e | 11

The problems of executive discretion, delegated legislation and administrative

adjudication are vitally connected with the problem of public accountability of
administration.

The Central Bureau of Investigation (CBI) is the most important body which enforces
accountability. It was earlier under the Executive which was proving to be an impediment
to enforce accountability in higher echelons of Government. The Supreme Court separated
CBI from executive and vested its superintendence in the hands of Central Vigilance
Commission (CVC). Now CBI does not need prior approval of the Government to
investigate corruption cases. The court also gave several other directions to improve the
functioning of the CBI and to make it the most effective body to enforce transparency in
the government functionaries.

Sanatham Commission, 1962, while noting prevalence of corruption in India observed that
we are told by a large number of witnesses that in all contracts of construction, purchase,
sale and other regular business on behalf of the Government, a regular percentage is paid
by the parties to the transaction and this is shared in agreed proportions among the various
officials concerned".

Fighting against corruption cannot succeed unless the government does something to
change the system under which it has been operating particularly in the area of public
administration. The bureaucracy has to be depoliticized and be left with the authority and
power to operate according to the requirements of the professions. The success or failure
of government depends upon the efficiency of public administration but administration
cannot be efficient if it is interfered with or forced to act contrary to laid down procedures.
Simultaneously, the welfare of employees has to be taken care of. The need for a realistic
salary structure is obvious. This will help curtail corruption as money is a major motive
behind corruption.

Prevention of Corruption Act, 1988 (PCA) is a salient legislation in the area of public
accountability which was enacted to ensure transparency in government functions. The
Court in JMM Bribery8 case held that the Members of Parliament and Members of
Legislative Assemblies are covered within the ambit of public servants under PCA. The
court said that these persons cannot claim immunity from prosecution under Article 105
8 P.M. Narsimha Rao v. State (1998) 8 SCC (Jour) 1
 P a g e | 12

for any offence committed outside Parliament/Legislature. This judgment was however
criticized on other ground mainly that Article 105 is not an enabling provision for
corruption. The purpose of the immunity is legislative independence but giving or
receiving bribes is not part of legislative process.

CHAPTER 4

4.1 Enforcement and Protection of Public Accountability

In various cases, the Supreme Court 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 who has suffered.

Thus, 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 was held maintainable and the instrumentality of State was held
liable to pay compensation. In Arvind Dattatraya Dhande v State of Maharashtra9, the
Supreme Court set aside an order of transfer of a police officer observing that the action
was not taken in public interest but was a case of victimization of an honest officer at te
behest of persons interested to target such officials. It is most unfortunate that the
Government demoralizes the officers who discharge their duties honestly and diligently
and brings to book the persons indulging in black marketing and contrabanding
liquor.10

In S.S. Dhanoa v. Union of India11, the Supreme Court indicated that when important
functions are to be performed and a body is armed with uncontrolled powers, it is both
necessary and desirable that such powers are not exercised by an institution which is
accountable to none, it is politic to entrust its affairs to more hands than one. It helps to
ensure judiciousness as also want of arbitrariness.

9 (1997) 6 SCC 169: AIR 1997 SC 3067

10 C.K. Takwani, Lectures on Administrative Law, (6th Ed. 2017)

11 1991 SCR (3) 159

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Other instances of protective measures are

a) Personal Liability

A breach of duty gives rise in public law to liability which is known as "misfeasance in
public office". Exercise of power by ministers and public offices must be for public
good and to achieve welfare of public at large. Whenever there is abuse of power by an
individual, he can be held liable. An action cannot be divorced from the actor. A public
officer who abuses his official position can be directed to pay compensation, damages
or costs.

In Common Cause, A Registered Society v. Union of India12, the Petroleum Minister

made allotment of petrol pumps arbitrarily in favour of his relatives and friends.
Quashing the actions, the Supreme Court directed the Minister to pay fifty lakh rupees
as exemplary damages to public exchequer and fifty thousand rupees towards costs. It
may be, however, be stated that in a review petition, the Supreme Court applying wrong
principles of criminal law (Sections 405-09, Indian Penal Code), set aside the order of
payment of damages holding that there was no criminal breach of trust on the part of
the Minister though the Court affirmed the finding recorded in the main judgment that
an action of allotment of petrol pumps to kiths and kins by the Minister was arbitrary,
discriminatory and mala fide.

It is submitted that in Lucknow Development Authority v. MK. Gupta13, after referring to

various decisions, the Supreme Court right stated:

"When the court directs the payment of damages or compensation against the State the
ultimate sufferer is the common man. It is the tax payers money which is paid for
inaction of those who are entrusted under the Act to discharge their duties in accordance
with law. It is, therefore, necessary that the Commission when it is satisfied that a
complaint is entitled to compensation for harassment or mental agony or oppression,
which finding of course should be recorded carefully on material and convincing

12 (1995) 1 Scale 6

13 1994 AIR 787

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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 who are found responsible for such unpardonable behaviour by
dividing it proportionally where there are more than one functionaries."

Doctrine of public accountability is one of the most important emerging facets of

administrative law in recent times. The basic purpose of the emergence of the doctrine
is to check the growing misuse of power by the administration and to provide speedy
relief to the victims of such exercise of power. The doctrine is based on the premise that
the power in the hands of administrative authorities is a public trust which must be
exercised in the best interest of the people.

b) Limitations

The power of judicial review, however, must be exercised cautiously and with
circumspection. A court of law should not act as an appellate authority over the actions
taken by the government or instrumentalities of State. It cannot interfere with policy
decisions. In G.B. Mahajan v. Jalgaon Municipal Council14, it was contended that the
project undertaken by the local authority was unconventional. Repelling the
contention, the Supreme Court stated that the test should not be whether the project was
unconventional but whether it was impermissible. There must be a degree of public
accountability in all government actions, but the extent and scope of judicial review
differ in exercise of such power. The administration cannot be deprived of its power of
"right to trial and error" as long as it exercises that power bonafide and within the limits
of its authority.

c) Judicial Accountability

The doctrine of public accountability applies to judiciary as well. Every organ of the
government is subject to criticism for its flaws and drawbacks and judicial institution is
not an exception to it. An essential requirement of justice is that it should be dispensed
as quickly as possible. It has been rightly said: "Justice is delayed not denied." Delay in
disposal of cases can, therefore, be commented. Whereas comments and criticisms of

14 (1991) 3 SCC 91, 94

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judicial functioning, on matters of principle, are healthy aids for introspection and
improvement, the functioning of the Court in relation to a particular proceeding is not
permissible. There should not be biased mind on account of judicial obstinacy. All
judicial functionaries must possess unflinching character to decide every case
objectively and with an unbiased mind.

Even on administrative side, the judiciary must act judiciously. A judge cannot act in
public controversies nor can he make disparaging remarks against the Chief Justice or
against a brother judge.

d) Public Accountability Protections under Administrative Law

In a liberal democracy, political power is delivered through rules, against which

the government will be held accountable, rather than through unaccountable
compulsion. The size, geographical extent, importance and complexity of
government have determined that it must depend upon such codified rules of
behaviour to allow certainty and consistency in its decisions. Rules provide
governments with the ability to adjudicate efficiently in an enormous variety of
situations, irrespective of the organisation concerned or its location. This provides
governments with the assurance that policies are implemented without delay and
according to standards of delivery and management which do not have to be
contested in every instance. Governments that exercise arbitrary powers and
inconsistent authority, on the other hand, under which citizens cower in
apprehension and ignorance, do not accept that they are bound by rules known in
advance and upon which their behaviour can be judged. Citizens are instead left to
the mercy of capricious and unpredictable masters.

Administrative law provides the framework to ensure that government acts within
the powers allotted it by law and plays by the rules set for everyone. There is no
escape for public officials from legal retribution should they contrary to the law.
They are all responsible for their own actions, regardless of whether or not they do
so on the instructions of their superiors. The rule of law is absolute, from the Prime
Minister down. This, notes Dicey, is the foundation of the constitutional doctrine of
ministerial responsibility. The courts and tribunals that are given the responsibility
for implementing administrative law are expected to protect and promote those
 P a g e | 16

public service values which have come to be accepted as fundamental to the

protection of equality between citizens. These include access to services under
specified conditions, due process, openness, procedural fairness, participation,
impartiality, accountability and honesty.

e) Right to Information as a tool for enforcing Public Accountability -

An important factor responsible for the absence of popular participation in the

governance process is the lack of information. Commenting on the need for a open
Government, the Supreme Court of India observed that the demand for openness in
the Government 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 taking any interest in the
Government."

Way back in 1975 in the case of Raj Narain v. State of Uttar Pradesh 15, the
Supreme Court of India observed that in a government like ours, where all the
agents of the public must be responsible for their conduct, there can be but few
secrets. The people of the country have a right to know any public act. In 1982 in
the S.P. Gupta16 case the Court emphasized that an open Government is the new
democratic culture of an open society towards which every liberal democracy is
moving and our country should be no exception. The Court in 1997 in Dinesh
Trivedi v. Union of India17, held that to ensure the continued participation of the
people in the democratic process they must be kept informed of the vital decisions
taken by the government and the basis thereof.

India has travelled a long way from the Supreme Court judgment of right to know
in 1975 to 2005 when the Right to Information Act (RTI) was passed. RTI act
essentially tries to usher in a new administrative culture and further strengthen

15 1975 SCR (3) 333

16 1981 Supp (1) SCC 87

17 (1997) 4 SCC 306

 P a g e | 17

democracy. It has been hailed by the Chief Information Commissioner of India as

outstanding legislation in the world and unprecedented going by the public
response. RTI act is an important tool in the hands of people and it is bound to
change the mindset of the administrative machinery.

RTI act is landmark 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. The term information under the act covers right to inspect work,
documents and records held by the government and allows for the extraction of
certified samples for verification.

There have been demands from different corners of the country that the law should
be amended to refuse information that is not relevant to an applicant. But refusing
information is not the answer to the problem. The answer lies in reducing the
need for such information. Proactive disclosures by authorities can be a very
positive and people friendly step. After all, the RTI act itself is based on the
principles of Maximum Disclosure and Minimum Exemptions. The
Government offices are flooded with RTI applications, some of which are indeed
frivolous. The problem can only be solved if the Government voluntarily makes
available such information in public domain. The Act also allows the people to
obtain information about the file noting so that people know how any
governmental decision is reached. Instead of lamenting the exposure RTI act could
give any public official, he should consider it as a boon. It will 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
welcome the exposure. It is only those who have to hide something that should fear
the exposure.

Right to information has already proved to be an effective instrument for

combating corruption in public service. The significant achievements of civil
society organisations like Parivartan in Delhi in collecting information regarding
flow of public funds, dubious decisions etc. are examples of the power of
information, but more significant aspect of the experience is that much more needs
to be done in this direction. According to Transparency International, if India were
to reduce corruption to the level that exists in the Scandinavian countries,
 P a g e | 18

investment could be increased by 12% and the GDP growth rate by 1.5% per
annum. Access to information needs to be encouraged on this ground alone.

4.2 Public Accountability and State

In India the basic principle is incorporated in Section 123 of the Evidence Act,
1872, which reads as under:

"No one shall be permitted to give any evidence deprived from unpublished official
records relating to any affairs of State, except with the permission of the officer at the
head of the department concerned, who shall give or withhold such permission as he
thinks fit."

Section 162 of the Act confers on a court the power to decide finally the validity of
the objection raised against production of document. Section 123 confers a great
advantage on the Government, inasmuch as inspite of non-production of relevant
evidence before the court, no adverse inference can be drawn against it if the claim of
privilege is upheld by the court. Thus, it undoubtedly constitutes a very serious
departure from the ordinary rules of evidence.

In the well-known case of S.P. Gupta v. Union of India18, popularly known as the
Judges transfer case, A privilege was claimed by the Government against disclosure
and production of certain documents. After considering a number of English as well
as American cases, the Court held that the provisions of the Evidence Act, 1872
should be constructed keeping in view our new democracy wedded to the basic values

18 1981 Supp (1) SCC 87

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enshrined in the Constitution. In a democracy, citizens ought to know what their

Government doing. No democratic Government can survive without accountability
and the basic postulate of accountability is that the people should have information
about the functioning of the Government. Therefore, disclosure of information in
regard to functioning of Government must be the rule and secrecy an exception
justified only where the strictest requirement of public interest so demands. Bhagwati,
J. observed:

"It is well settled that a court is not bound by the statement made by the Minister or
the head of the department claiming privilege. The court has to balance injury to the
State or public against risk of injustice to the cause."

4.2.1 Right to know

The modern trend is toward more open government. The right to know is part and
parcel of freedom of speech and expression and is thus a fundamental right guaranteed
under Article 19 of the Constitution. It is also equally paramount consideration that
justice not only be done but also be publicly recognised as having been done.

In Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd. 19,
Mukarji, J. Stated: "We must remember that the people at large have a right to know
in order to be able to take part in participatory development in the industrial life and
democracy. Right to know is a basic right which citizens of a free country aspire in the
broader horizon of the right to live in this age of our land under Article 21 of the
Constitution. That right has reached new dimensions and urgency. That right puts
greater responsibility upon those who take upon themselves responsibility to inform."

In the leading case of State of U.P. v. Raj Narain20, the Supreme Court rightly
observed, "In a government of responsibility like ours, where all the agents of the
public must be responsible, for their conduct, there can be but few secrets. The people
of this country have a right to know every public act, everything that is done in a
public way, by their public functionaries. They are entitled to know the particulars of

19 1989 AIR 190

20 1975 AIR 865

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every public transaction in all its bearing. The right to know, which is derived from
the concept of freedom of speech, though not absolute, is a factor which should make
one wary, when secrecy is claimed for transactions, which can at any rate, have no
repercussion on public security."

In Union of India v. Assn. For Democratic Reforms 21, the Supreme Court ruled that
every voter has a right to know antecedents including criminal activities of a
candidate contesting election for membership of Parliament or State Legislative
Assembly. The Election Commission, therefore, directed to call for an affidavit
necessary particular about the educational qualifications of a candidate, his assets and
properties, liabilities towards government or public financial institutions, accusation,
conviction, acquittal, in criminal cases, etc. The Court stated;

"The little man may think over before making the choice of electing law-breakers as
law-makers."

After the above decision, Parliament enacted the Act by the Representatives of People
(Third Amendment) Act, 2002 which required every candidate to supply information
about criminal case but not as to his assets, properties, etc. which was again
challenged in the Supreme Court.

Declaring the Amendment Act ultra vires, unconstitutional and infringing Article
19(1) (a) of the Constitution, the Court held that right to know could not be taken
away. According to the Court, Parliament by amending the Act has virtually overruled
a decision of the Supreme Court which was not permissible.

4.2.2 Freedom of Information Act

After more than half a century of the commencement of the Constitution which
included Part III (Fundamental Rights) and seven classic freedoms, no right of
information was recognised either by the Constitution or by an Act of Parliament. As
seen above, on judicial side, such right was upheld by the highest court of the country

21 AIR 2001 Delhi 126

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in several cases and it was also described as a basic right covered by Article 21 22 of the
Constitution. Parliament, however, did not consider it proper to enact a law for the said
purpose for all this period.

Recently, however, Parliament enacted the Freedom of Information Act, 2005. The
object of the Act as reflected in the Preamble states that it has been enacted "to provide
for freedom to every citizen to secure access to information under the control of public
authorities, consistent with public interest, in order to promote openness, transparency
and accountability in the administration.

4.3 Public Accountability and Parliament

Parliament serves as a locus of accountability and oversight in a democracy in an at

least two ways. First, Parliament is the agency through which government is held liable.
Second, elections are the mechanism through which parliamentarians are held
accountable. The actual workings of any Parliament will be governed by these
considerations.

4.3.1 Non-Confidence Motions -

Legislators can introduce a motion of no-confidence in the government, which, if

sustained, would result in the fall of the government. But the effectiveness of no-
confidence motions as a disciplining device depends upon the alternatives available to
replace a sitting government. In a very simple sense, a government with a substantial
majority in Parliament is unlikely to be much deterred by the introduction of no-
confidence motions. The most egregious failure of Parliament to prevent abuse of
executive powers occurred in 1975 when Indira Gandhi rammed resolutions approving
the presidential proclamation of an internal emergency through both houses of
Parliament, suspending the fundamental rights of citizens. The Congress party, then in
power, voted en masse to approve the emergency proclamations by a vote of 336 to 59.
Even when executive abuses of authority were as flagrant as those involved in the

22 Constitution of India, 1949

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declaration of an emergency, it proved impossible to break the ranks of a dominant

majority party.

No-confidence motions can be successful only in a very limited scenario where

governments have a small majority, and a small part of that constituent majority has
some reason to defect to another coalition or seek a general election that would result
from the dissolution of government. In the case of coalition governments, where no
single party dominates Parliament, some coalition partners in question would have to
prefer an alternative set of arrangements-essentially a different coalitionrather than
face elections. In the Indian case, no-confidence motions have been successful in
bringing down the government only under such conditions. Since 1989, this has
occurred four times. In 1989, the government headed by V.P. Singh was brought down;
in 1990, the Chandrashekhar government met a similar fate; in 1997, the I.K. Gujral
government fell; and most recently, in 1999, the A.B. Vajpayee government was
brought down. In an average Parliament, four to five no-confidence motions are
introduced. But their deterrent effect depends upon the contingencies of party politics,
rather than the effectiveness of the mechanism itself.

4.3.2 The Opposition -

The opposition is the constituent part of Parliament that has the most incentive to use
the statutory powers of Parliament to keep the government accountable. In general, if
the government commands a large share of the seats with unchecked majority control of
the legislature, policy outcomes will reflect the governments position. If the
government has relatively fewer seats and the opposition has bargaining resources, then
policy making could be shaped by the opposition. The oppositions ultimate sanctioning
weapon 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
exist: the effort is high and the potential pay-off limited. Opposition parties are likely,
therefore, to focus more of their attention on political scandals such as financial scams
and corruption cases, where they can attack individuals rather than try to force
institutional and systemic changes. During the tenure of the BJP-led government from
1999 to 2004, the Congress-led opposition used all of its might to stall proceedings on
various corruption scandals, but did almost nothing to protest against the systemic
governance weaknesses plaguing the country. When the BJP moved into opposition
 P a g e | 23

after it lost the elections in 2004, it began to behave exactly as Congress had done.
Even with an opposition focused on corruption scandals, Parliament has yielded very
few results and almost all of the parliamentary probes into these scandals have led
nowhere. While in some cases this was because the evidence was generally
inconclusive, in other cases it likely reflects collusion within the political class to avoid
institutional changes, which, while improving governance, might adversely affect their
common interests.

4.3.3 Parliamentary Committees -

Ideally, parliamentary committees would be a venue for the consideration of

legislation introduced in Parliament. The volume and complexity of legislation, the
demands on the time of parliamentarians and Parliaments preoccupation with the
politics of the moment make it difficult to give legislative business the attention it
requires. Parliamentary committees could also provide a more vigilant locus of
accountability.

Each house also has functionally specialized standing committees. The most powerful
and important functional committees deal with financial mattersthe Committee on
Public Accounts, the Committee on Estimates and the Committee on Public
Undertakings. In order to improve parliamentary oversight of the executive, a second
type of standing committee known as the departmentally related standing committee
(DRSC) was created in 1993, though three of these committees were created on an
experimental basis as early as 1989. In all, there are 17 DRSCs covering all of the
ministries of the Central government. These committees are elected by both houses of
Parliament and vary in size and composition.

Most DRSCs can in principle, under the statutory powers accorded to them, review any
aspect of the workings of a particular ministry. This includes, among other things,
monitoring the annual performance of the ministry. But for a number of reasons, these
committees have had a very limited impact on the production and quality 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.
Most committee reports are not tabled for deliberation and discussion in Parliament at
all. The dilemma is that if the committee reports are at variance with the government,
 P a g e | 24

the majority has no interest in having them tabled; however, if they broadly uphold the
governments position, they are considered superfluous.

Unlike committees, say in the United States Congress, parliamentary committees that
examine bills are, for the most part, temporary. They are organized 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 work on legislation and have to rely on the
executive for everything, from information to expertise.

The most powerful and well-established standing committees are the three finance
committees the Committee on Public Accounts, the Committee on Estimates and the
Committee on Public Undertakingswhich are authorized to scrutinize government
finances.

CHAPTER 5

5.1 A Contemporary look on Public Accountability

India has always functioned under the clutches of corruption. The two recent major
events which symbolise complete flouting of norms of public accountability are the
Medical Council of India (MCI) scandal and Commonwealth Games (CWG) organisation
in Delhi. These two cases amply make it clear that corruption is deep rooted in Indian
society and there is urgent need to make the public officials accountable for their acts.
 P a g e | 25

MCI president Dr Ketan Desai and two others were arrested in April 2010 for allegedly
accepting a bribe of Rs 2 crore to grant recognition to a medical college in Punjab. The
main objectives of the Medical Council include maintenance of uniform standards of
medical education and recommendation for recognition/de-recognition of medical
qualifications of medical institutions of India or foreign countries. [30] Such incidents
clearly go against the mandate of MCI and the general public is being defrauded by such
acts. These public officials must be held accountable for their acts and most severe
punishment must be awarded so that such acts are never repeated as the public officials
have no right to abuse their statutory authority.

There have been many reports that the CWG games which are to be held in Delhi in
October 2010 are also not free of corruption and malpractices. Central Vigilance
Commission, CVC, has said in its observations that the works have been awarded at
higher rates, besides poor site management and quality compromises. CVC also said that
work has been allotted to non eligible companies and there are poor quality
assurances. Due to such malpractices and delays in preparation the work now costs the
Government more than 100% of what it was estimated. The taxpayers have to bear the
burden of lack of accountability on part of the Organising Committee. The Government
needs to ensure that the people in charge of organising the games are held accountable for
their actions. These people have been given absolute power and the saying power
corrupts and absolute power corrupts absolutely" is wholly applicable in this case.

MAJOR FINDINGS
Few of the findings from the project report had been the establishment and
enforcement of the doctrine in different countries.

In England, Crown has the special privilege of withholding disclosure of documents,

referred as Crown Privilege. It can refuse to disclose a document or to answer any
question if in its opinion such disclosure or answer would be injurious to public
 P a g e | 26

interest. This doctrine is based on the well-known maxim solus populi est suprema lex
(public welfare is the highest law). The public interest requires that justice should be
done, but it may also require non-disclosure of evidence in larger public interest. This
right can be exercised by the Crown, even in those proceedings in which it is not a party.

The American legal system believes in disclosure of information and not in secrecy
thereof. The USA government thus is an open government than any other country.
Though American Constitution contains no provision as to getting information from the
government, there are certain statues conferring such rights on citizens; for instance, the
Administrative Procedure Act, 1946(APA), Freedom of Information Act, 1966 (FoIA),
etc.

CONCLUSION
The governments task does not end by creating institutions, laws and other
mechanisms for public accountability; they have to ensure that these laws are effective.
The Indian Judiciary has played an active role in the evolution of this doctrine and has
helped in providing the Indian citizens an effective tool, by the way of compensation, to
redress their grievances and to affix liability on public officials. The problem of
corruption as highlighted in the paper makes it difficult for the government to make
administrative institutions accountable for proper execution. The Government, by
passing legislation like Right to Information act, has shown its intention for ushering in
an era of good governance and such legislation are welcome as they help in enforcing
accountability in administrative authorities. Much needs to be done in this area and the
public officials need to take a step forward and ensure that the taxpayers money is
properly utilized and the public functions are carried out smoothly and transparently. The
government should also implement performance appraisal mechanisms and provide
incentives to honest officials so that it encourages other officials to follow suit. The
salaries of Government officials also need to be raised to the level of their counterparts
working in Private sphere so that they dont feel maltreated and perform their functions
honestly.

SUGGESTIONS
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Therefore, in the present-day context, strengthening of the public accountability

system should be the top priority of the government. Any system has three components:
structures and procedures; persons who manage the system; and environment in which
the system works. Improvement is required in all the three components. Every holder of
public power, where 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.

BIBLIOGRAPHY

Websites
Doctrine of Public Accountability, Lawteacher, https://www.lawteacher.net/free-law-
essays/administrative-law/doctrine-of-public-accountability-administrative-law-
essay.php
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Meaning of Public Accountability Law Constitutional Administrative Essay,

Uniassignment, https://www.uniassignment.com/essay-samples/law/meaning-of-public-
accountability-law-constitutional-administrative-essay.php

Vivek Kerketta, Tortious Liability of Administration in Modern Times, Legalindia,

http://www.legalindia.com/tortious-liability-of-administration-in-modern-times/

Heena Verma, Judicial Accountability in India, Legalservicesindia,

http://www.legalservicesindia.com/article/article/judicial-accountability-in-india-538-
1.html

Books

C.K. Takwani, Lectures on Administrative Law, (6th ed. 2017)

C.K Thakker, Administrative Law, (2nd ed. 2012)