The Meaning Of Public Accountability Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

INTRODUCTION

Accountability is one of these golden concepts that no one can be against. It is increasingly used in political discourse and policy documents because it conveys an image of transparency and trustworthiness. [1] 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. [2] 

As a concept, however, "public accountability" is rather exclusive. It is hurrah-word, like learning, responsibility, or solidarity- nobody can be against it. Accountability has moved further beyond its bookkeeping origins and has become a symbol for good governance, both in the public and in the private sector. Accountability does not refer to sovereigns holding their subjects to account, but to the reverse, it is the authorities themselves who are being held accountable by their citizens. [3] 

Meaning of Accountability

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. [4] 

Meaning of Public Accountability

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 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. [5] As George Washington put in a 1796 letter:

"I am sure the mass of Citizens in these United States mean well, and I firmly believe they will always act as well, whenever they can obtain a right understanding of matters...." [6] 

Adequate public answering is central to society working properly. As pioneers in the subject Day and Klein put in:

"It is a tradition of political thought which sees the defining characteristic of democracy as stemming not merely from the election of those who are given delegated power to run society’s affairs...but from their continuing obligation to explain and justify their conduct in public." [7] 

The essence of the public answering obligation is the requirement that authorities, when what they propose would affect citizens in important ways, will disclose their intentions and their reasoning, their performance standards, and their actual performance and learning. And they are to meet reasonable standards of timeliness, fairness and completeness in their answering. To install public answering to a reasonable standard, citizens must agree on what it means. At present we have a variety of notions of accountability that keep the concept unclear. Newspapers editorials and articles usually confuse responsibility with accountability, and journalists don’t see their jobs as helping to bring about public answering. Public Accountability is the obligation resting on each public functionary to act in the public interest and according to his or her conscience, with solutions for every matter based on professionalism and participitation, and divulgment as a safety measure. It is a natural consequence and an essential safeguard against power; the delegation of authority also implies the delegation of accountability. [8] 

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 government’s accountability to the public. The true function of public accountability should be not to focus on negative aspects only. [9] 

Public Accountability as an Icon

In the centuries that passed since the reign of William I of England, accountability has slowly struggled out of its etymological bondage with accounting. In modern political discourse, "accountability" and "accountable" no longer convey a stuffy image of bookkeeping and financial administration, but they hold strong promises of fair and equitable governance. The concept has become a rhetorical device; it serves as a synonym for many loosely defined political desiderata, such as transparency, equity, democracy, efficiency, and integrity. [10] 

The word "accountability" occurs in the title of between fifty and seventy proposed bills in each two year term in the United States. The focus of these "accountability bills" is extremely broad and ranged from the Accountability for Accountants Act, the Accountability for Presidential Gifts Act etc. The use of the term "accountability" is usually limited to the title of these Acts. It is merely used as an ideograph, as a rhetorical tool to convey an image of good governance and to rally supporters. Accountability has become an icon for good governance. [11] 

Public Accountability as a Social Relation

"Public Accountability" is not just another political catchword; it also refers to institutionalised practices of account giving. Accountability may be defined as a social relationship in which an actor feels an obligation to explain and to justify his or her conduct to some significant other. The relationship between the actor and the forum, the account giving, usually consists of at least three elements or stages. First of all, the actor must feel obliged to inform the forum about his conduct, by providing various sorts of data about the performance of tasks, about outcomes, or about their procedures. The conduct that is to explained and justified can vary enormously, from budget scrutiny in case of financial of accountability, to administrative fairness in case of legal accountability. In the wake of administrative deviance, policy failures, or disasters, public officials can be forced to appear in administrative or penal courts or to testify before parliamentary committees. [12] 

Second, the information can prompt the forum to interrogate the actor and to question the adequacy of the information or the legitimacy of the conduct. Third, the forum usually passes judgment on the conduct of the actor. It may be approve of an annual account, denounce a policy, or publicly condemn the behaviour of a manager or an agency. In passing a negative judgment the forum frequently impose some sort of sanctions on the accountor. These sanctions can be highly formalised, such as fines, disciplinary measures or even penal sanctions, but often the punishment will only be implicit or informal, such as the very fact of having to give an account in front of television cameras, or of having your public image or career severely damaged by the negative publicity that results from the process. [13] 

Doctrine of Public Accountability

The concept of public accountability is a matter of vital public concern. All the three organs of the government, viz. Legislature, executive and judiciary are subject to public accountability.

Explanation

It is settled law all the discretionary powers must be exercised reasonably and in larger public interest. Before one and half century, in Henly v. Lyme Corpn., [14] 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. The instances of this are so numerous that it would be a waste of time to refer to them." [15] 

Public offices, big or small, are sacred trusts. Every holder of public office is a trustee whose highest duty is to the people of the country. Every act of the holder of public office should be for public good. Emphasis now is on reviewability of every action of the State or its instrumentalities. All powers possessed by a public authority are for public good. [16] Incumbent of an institution discharging public function, being its creature, cannot be higher than the institution. In various cases, the Supreme Court has applied this principle by granting appropriate relief to the aggrieved parties or by directing the defaulter to pay damages, compensation or costs to the person who has suffered. [17] 

Thus, in case of defective construction of houses by statutory authorities, a complaint made by ‘consumer’ regarding use of substandard material and delay in delivery possession was held maintainable and the instrumentality of State was held liable to pay compensation. [18] . Again, when illegal and unauthorised electric supply resulted in breaking of fire causing death and destruction of property, it was held that the administration was liable to pay compensation. [19] In Arvind Dattatraya Dhande v. State of Maharashtra [20] , 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 victimisation of an honest officer at the behest of persons interested to target such officials. The Supreme Court said that:

"It is most unfortunate that the Government demoralises the officers who discharge their duties honestly and diligently and brings to book the persons indulging in black marketing and contrabanding liquor." [21] 

In S.S. Dhanoa v. Union of India [22] , 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 one individual however "all wise" he may be. When vast powers are 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. [23] 

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. [24] 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. [25] 

In Common Cause, A Registered Society v. Union of India [26] , 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 [27] , 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. [28] 

In Shiv Sagar Tiwari v. Union of India, allotment of shops/stalls was made by the Housing Minister ‘out of quote’ to her kith and kin. The Supreme Court not only set aside the allotment but also ordered the Minister to pay sixty lakh rupees to Government Exchequer.

It is submitted that in Lucknow Development Authority v. MK. Gupta, 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 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." [29] 

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.

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 Council [30] , 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. [31] 

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 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. [32] There should not be biased mind on account of ‘judicial obstinacy’. All judicial functionaries must possess inflinching character to decide every case objectively and with an unbiased mind. [33] 

Even on administrative side, the judiciary must act judiciously. [34] A judge cannot act in public controversies nor can he make disparaging remarks against the Chief Justice or against a Brother Judge. [35] 

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. [36] 

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 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. [37] 

Public Accountability and Devolution

Arguments regarding the devolution of authority can be divided into two separate sub-categories, the first focusing more on politics, and the second focusing on the enforcement process. The political one, sometimes identified with the idea of federalism, and sometimes with the idea of participatory democracy, argues that local institutions are more accountable to the people than centralised ones, and that devolution of power of such institutions will therefore improve the quality of government. The enforcement sub-category argues that private institutions can be accountable for their own behaviour, and that the government’s efforts to enforce the law should allow people to play an active role. [38] 

Devolution to Localities and the Political Process

Accountability arguments for the devolution of authority from the central government to localities are based on the idea that a political entity that governs a small group of people can be more readily controlled by those people than one that governs a large people. In other words, smaller governmental units are more accountable to their constituents. [39] 

Implicit in this claim are at least three different thoughts. First, a government is more accountable to those it governs if it small, because it will need to be more attentive to the concerns of its constituency. Secondly, a government is more accountable to those it governs if the governed people are small, because the members of this group can communicate more readily with each other, and more readily organise political action. Thirdly, a government is more accountable to those it governs if its decision-makers are physically closer to those whom it governs, because such proximity causes the government to be more attentive and facilitates communication from the constituency. [40] 

The effectiveness of any decision-making unit depends on a variety of factors, including the information available to it, the quality of its personnel, its level of control over its subordinates, and its prestige among those who must follow its commands. And it is the central government that decides how decision-making authority will be divided between itself and the geographical subdivisions, and when that allocation will be changed. The argument that accountability is increased if authority is transferred from national to local authorities is not connected with federalism and relies only on the more general principle of managerial decentralisation. The accountability argument for devolution of authority to local authorities is conceptually connected to the principle of participatory democracy, as opposed to the principle of federalism. That is, devolution has nothing to do with the rights of states, qua states, and little to do with the rights of any government entity, but rather draws it conceptual force from the idea that citizen participation is essential if democracy is to prosper, or perhaps even survive. Participation democracy is a very popular idea these days, but it presents formidable difficulties when considered from either a descriptive or a perspective point of view. There should be continual involvement and constant vigilance of local populations, and their ability to monitor the quotidian decisions that constitute the bulk of virtually every assignment of government authority. Without such vigilance, the devolution of authority to local governments will, on the whole and with a few exceptions, decrease government accountability. [41] 

Devolution to Private Parties and the Enforcement Process

Unlike the accountability arguments for political devolution, the accountability arguments for devolution to private parties do not focus on the structure of the government, but rather on the government’s relationship to citizens. These arguments begin with the recognition, which other accountability arguments so often ignore, deny, or condemn, that enforcement of public policy directives is a crucial task of modern government. The basic idea is that enforcement will be more effective, that it will better accomplish its ultimate purpose, if private parties, whether organisations or individuals, are accountable for their actions. Such accountability can be achieved by transferring, or devolving, power from administrative agencies and other governmental institutions to these private parties. Thus, accountability arguments for enforcement devolution recommend that classic command and control regulations be replaced with a more cooperative and collaborative approach. [42] 

Public Accountability and Elections

The elected officials should be make a larger proportion of government decisions because these officials because these officials are more accountable to their constituents. There at least three such arguments: first, that legislator, being elected officials who are accountable to the people, should make basic policy decisions and not delegate extensive authority to administration; secondly, that the chief executive, being an elected official who is accountable, should control all executive agencies, including those that are currently independent; and thirdly, that elected state officials, because they are more accountable to the people, should not be subject to policy control by the federal administrative agencies. The innovation of accountability on behalf of state officials assumes the very point at issue in the federalism debate, namely the proper balance between state and federal authority. After all, citizens voted for federal officials as well as state officials, and the types of official for whom they vote at the state and federal levels are generally analogous. [43] 

Administrative Accountability & The Anti-Administrative Impulse

The Real Nature of Accountability

The real role of accountability in a modern state must be sought within the complex structure of the administrative hierarchies that constitute basic mechanism for governing. Accountability is one means by which superior controls subordinates, and thus a means by which policies promulgated at the highest levels of the government are translated into government action. Accountability involves two elements: first, a hierarchical relationship; and, secondly, a standard that the hierarchical superior imposes on a subordinate. The decision-maker must be aware that he will be held accountable before he decides, and he must accept the legitimacy of the person imposing the standard. It is the purpose of an administrative hierarchy to resolve these issues in a definitive manner; the hierarchy defines supervisory relationships and declares those relationships to be authoritative. In fact, administrative hierarchies typically display a feature that can be described as second-order accountability. Those who supervise subordinates, and hold these subordinates accountable in various ways, are themselves accountable to those superior to them, and specifically, they are accountable for the way in which they hold their subordinates accountable. An administrative hierarchy is frequently a chain of accountability, and the idea of accountability serves as an essential feature in the construction and operation of the hierarchy.

The second element involved in holding someone accountable is the standard that is applied. This standard may be either procedural or substantive, that is, it may specify a decision-making process or a desired result. A procedural standard instructs a subordinate how to carry out the task in question. A substantive standard instructs a subordinate what results he expected to achieve. In either case, the subordinate would be responsible for meeting the prescribed standard, and his job performance would be assessed on the basis of his ability to do so. [44] 

The Anti-Administrative Impulse

When viewed from this perspective, it seems apparent that voters cannot, through the process of election, hold a public official accountable in any real sense that local populations cannot hold local officials accountable, and that people cannot really be induced to be accountable for themselves. These relationships are all important ones, and serve useful functions in the governmental process, but they are not mechanisms of accountability. Consideration of the actual mechanism, as they are implemented in an administrative hierarchy, emphasises the distance between true accountability and elections, localism, and private responsibility.

Elected officials respond to some of the deeply felt, or widely held views of the electorate, local officials exhibit some similarity of outlook with those they govern, and private persons can sometimes be induced to consider the consequences of their actions from a public perspective. But these general and occasional correspondences do not enable actor to demand an explanation or justification of another actor for its actions, and to reward or punish that second actor on the basis of its performance. Obligations of this sort can only be imposed in a tightly integrated hierarchy, such as those found within the administrative apparatus. One can always slaps the word accountability down on the page if one wants to argue for the increased reliance on elected officials, local officials, or private officials, but the underlying concept does not apply. [45] 

MODULE II

PUBLIC ACCOUNTABILITY OF IMPORTANT PEOPLE AND ORGANISATIONS

"A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power knowledge gives." [46] -James Madison, Letter to W. T. Barry, August 4, 1822

In every democratic society, it is of utmost importance that the citizens get sufficient information and knowledge about the functioning of the Government. Democracy cannot survive without accountability to public. Discovery assists parties and the court to discover truth. The basic postulate of accountability is openness of the Government. The very integrity of judicial system and public confidence depend on full disclosure of facts. [47] 

2.1 Public Accountability and Crown Privilege/State

2.1.1 Position in England

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 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. [48] 

Duncan v. Cammell Laird & Co. Ltd. [49] is the leading case on this point. During Second World War, submarine Thetis failed to resurface after a trial drive resulting loss of 99 lives. In an action for negligence, the widow of one of the deceased sought discovery of certain documents in order to establish liability against government contractors. The Admiralty claimed ‘Crown Privilege’ which was upheld by the House of Lords. It laid down a ‘sweeping rule’ that an affidavit filed by the Minister that disclosure would be against the ‘public interest’ could not be called into question.

This decision was highly criticized. It was regarded as a ‘very formidable impediment to justice and fair play’ by Sir C.K. Allen and ‘opposed to the whole course of British Constitutional history’ by Goodhart.

In Conway v. Rimme [50] , the House of Lords reviewed the earlier legal position and laid down ‘more acceptable law’. A police constable was prosecuted for theft of an electric torch and was acquitted. He sued the prosecutor for malicious prosecution and applied for discovery of certain documents relevant for that purpose. ‘Crown Privilege’ was claimed. The House of Lords took advantage of their newly discovered power to depart from the doctrine of star decisis, overruled Duncan and disallowed the claim privilege. It held that privileges should not be claimed or allowed for routine or trivial documents and Crown should be accountable to the public by providing them necessary information which was not pre-judicial to the public interest. [51] 

2.1.2 Position in America

The America 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.

In New York Times v. United States [52] , (Pentagon Paper case), the Supreme Court refused to grant injunction against the newspapers restraining them from publishing certain contents of a study report. Justice Douglas stated: "Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open discussion based on full information and debates on public issues are vital to our national health".

2.1.3 Position in India

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." [53] 

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 India [54] , 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 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." [55] 

2.1.4 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. [56] 

In Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd. [57] , 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." [58] 

In the leading case of State of U.P. v. Raj Narain [59] , 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 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." [60] 

In Union of India v. Assn. For Democratic Reforms [61] , 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 virus, 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. [62] 

2.1.5 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 in several cases and it was also described as a basic right covered by Article 21 of the Constitution. Parliament, however, did not consider it proper to enact a law for the said purpose for all this period. [63] 

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. [64] 

2.2 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. [65] 

2.2.1 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 declaration of an emergency, it proved impossible to break the ranks of a dominant majority party. [66] 

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 coalition—rather 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. [67] 

2.2.2The 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 government’s position. If the government has relatively fewer seats and the opposition has bargaining resources, then policy making could be shaped by the opposition. The opposition’s ultimate sanctioning weapon is that it might be a credible alternative in the next general election. [68] 

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 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. [69] 

2.2.3 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 Parliament’s 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 matters—the 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. [70] 

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, the majority has no interest in having them tabled; however, if they broadly uphold the government’s 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. [71] 

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 Undertakings—which are authorized to scrutinize government finances.

MODULE III

PUBLIC ACCOUNTABILITY: AN EFFECTIVE REMEDY TO TACKLE CORRPUTION AND FOR GOOD GOVERNENCE

3.1 Public Accountability and Check on Corruption

Corruption can be checked by structure that creates independent sources of power and information inside and outside the government. Although not sufficiently taken by themselves, these options complement other reform strategies by reducing corrupt opportunities and increasing the risks of paying and accepting payoffs. There are several linked with aspects in a system of public accountability over and above the checks provided by democratic elections.

Outsiders, such as ordinary citizens or the media, can obtain information about how the government is operating and have a way of expressing their displeasure about general policies. Non-governmental organisations can organise easily and face few legal hurdles. They may even be subsidized.

The structure of government includes guarantees that protect the individual against the state. Government actions may be checked by a specific Bill of Rights that limits state power, and individuals can appeal attempts to extort bribes. The legal system provides protection and perhaps rewards to individuals who come forward to "blow the whistle", on corrupt practices, but the State is also constrained by legal rules that protect the accused.

Higher level governments and international organisations can use what leverage they have to constrain the behaviour of individual governments.

The threat of exit can be a powerful constraint on governments, reducing corrupt opportunities and limiting the scope for waste. [72] 

First, the private sector, particularly an independent media, can be important check on the arbitrary exercise of power by government, but only if the government provides information, if the press is not controlled, and if people can organise into associations. Accountability to the public requires both that individuals can find out what the state is doing and that they can use this information to hold public actors accountable. Governments must publish budgets, revenue collections, statutes and rules, and the proceedings of legislative bodies. Financial data should be independently audited. Secret funds available to chief executives and top ministers are an invitation to corruption. Procedural regulations must keep the process open and fair. Scandals frequently occur because top officials overrule tender boards or because lower level operates without formal controls on their purchasing decisions.

Freedom of Information acts in the United States and in a number of European countries are important preconditions for effective public oversight. These laws permit citizens to request information as members of the public without showing that their own personal situation will be affected. [73] 

Finding out what is happening is of little value however, unless people can use their knowledge to influence government. Individuals face a similar free rider problem in seeking to control political and bureaucratic processes and to limit malfeasance. Information may be, in principle, available, but no one may have an incentive to look at it. Laws that make it easy to establish associations and non-profits will help. For example, Transparency International has local forums that carry out a range of activities including participation in Integrity Workshops, sometimes organised with the help of aid agencies. These workshops bring together concerned people from both the public and the private sectors to discuss the problem of corruption. Non-profit organisations can carry out and publish public opinion surveys that reveal public attitudes towards government services. An alternative to NGO surveys of service users is the creation of "hot lines" so that citizens can complain directly to the government. [74] 

The second aspect of accountability is the way the government structure protects individuals against the State. The forms of administrative law and the protection they provide to individuals are of critical importance. The Ombudsman represents one route for citizen complaints. Many countries have established Ombudsmen to hear complaints of all kinds, not just those related to malfeasance. These offices help can help increase the accountability of government agencies to ordinary citizens, but they are seldom a way to uncover large scale systematic corruption and most have no authority to initiate lawsuits. Ombudsmen and other complaints mechanisms are insufficient if people are unwilling to complain. Reporting the peculations can be dangerous. Thus, governments should consider promulgating whistleblower statutes that protect and reward those in the public and the private sector who report malfeasance. However, whistleblower protection is obviously pointless unless the prosecutorial system follows up, the courts are incorruptible and relatively efficiently run and the penalties are severe enough to deter potential offenders. [75] 

A system of public administration implies that once a law or regulation is put in place, individuals and groups both inside and outside the government have the ability to find out how it is being administered, to complain, and to set in motion a legal or political enforcement process. To be a meaningful anticorruption check, however, knowledge must be combined with the existence of institutions that can effective action both to promulgate new laws and to enforce existing ones. [76] 

3.2 Indian Perspective: Transparency and Accountability in Governance through Right to Information

The good governance approach of administering states needs to focus on the principles of transparency and accountability. It is important that decisions are taken in a transparent manner and that the decision-makers are held accountable. The form of accountability, which is what the good governance approach of governmental decision-making promotes, is broader than that of electoral accountability. While democratic governance involves some form of accountability of the rules by the ruled electing them to office, accountability of governance seeks to ensure that the people who are making decisions are involving the public in the process of making that decision. This is possible only if the decisions are made in a transparent manner. Governmental decisions acquire legitimacy if the right to information of the people is duly protected and they are in a position to enforce this right. In order to ensure a corruption-free society, it is necessary to empower the people so that they can resist the practices of official corruption. From the perspective of civil society activism, such resistance to corruption needs to start with the empowerment of the citizenry and this is possible through the development of the right to information. For democratic governance to be meaningful, it is necessary that "citizens must have access to information about what their government is doing and how decisions have been reached". [77] 

In the context of India, the recent struggles to curb corruption at all levels of governmental decision-making have taken the form of efforts to promote transparency and enforce accountability by promoting the right to information at the state and central levels. This effort began with the work of a grass-roots organization, which called itself the Mazdoor Kisan Shakti Sangathan (Labour Farmer Strength Organization or MKSS) in the Indian state of Rajasthan. The initial phase of the work of the MKSS was so small that it hardly attracted any attention. The members of the MKSS walked from village to village asking simple questions: did the people know the amount of development funds coming to their village? How was the money that came from different sources actually spent? Although these questions were relatively simple, they were questions the poor and impoverished of India had never dared to ask before. [78] 

After collecting this information, the MKSS went to the Government Block Office, which is the authority that administers development funding in about 100 villages, with a request for detailed information on development expenditure. To this, they were told that there was no government rule that would allow villagers to demand and receive such information. This resulted in the MKSS launching a people's campaign in the state of Rajasthan. The focus of the campaign was on conducting numerous public hearings in which cases of corruption and misappropriation of public funds were opened to the public. Ms. Aruna Roy of the MKSS has observed that the right to information in Rajasthan was aimed at ending the arbitrary use of power. The campaign by the MKSS demanded transparency in official records, a social audit of government spending and a mechanism of redress for people who had not been given their due. The result of this powerful, grass-roots mass civil society activism in the form of social struggle resulted in the state of Rajasthan passing a law on the right to information, as well as creating an environment in which corruption is tolerated less and accountability of government officials is enforced. [79] 

A nationwide movement to seek national legislation on the freedom of information followed the social activism generated by the work of t