Doctrine of Public Accountability

Accountability refers to the process of holding persons or organisations responsible for performance as objectively as possible [1]. 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-à-vis different parts of the government. The electoral process, the ultimate accountability mechanism in a democratic country, has performed well for over 50 years [2].

In a federal system like that of India, public accountability is a two way process involving upward accountability and downward accountability [3]. 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 [4].

All is not well with public accountability in India. 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. [5] It is clear that the existence of formal mechanisms of accountability does not guarantee actual accountability on the ground.

This paper analyses how this doctrine has evolved in light of judicial decisions in India. After analysing various Apex Court decisions in this regard, the paper then focuses on Corruption being the evil which is an impediment for good governance and public accountability. Also the paper looks into the Right To Information act which has helped in making public officials accountable for their acts and lastly two recent cases, Medical Council of India and Commonwealth Games, have been discussed which show that much needs to be done in India so that the public officials can be disciplined and India can become a corruption free and transparent nation.

EVOLUTION OF DOCTRINE

The most important case which elaborated the scope of doctrine of public accountability is A.G. Hong Kong v. Reid [6] . In this case, Reid who was a Crown prosecutor took bribes to suppress certain criminal cases and purchased properties with the bribe money. The Hong Kong Government claimed these properties stating that the owners thereof are constructive trustees of the Crown. The Court upheld the claim and observed that a gift taken by a public officer as an incentive for breach constituted a bribe. The fiduciary owes the money to the person to whom he owed that duty and he hold the bribe acquired therewith on constructive trust for that person. This case also applies to situations where fiduciary relationship does not exist.

The Supreme Court of India followed this case in A.G. of India v. Amritlal Prajivandas [7] where court upheld the validity of SAFEMA act which provided for forfeiture of properties gained by smuggling or other malafide activities.

The scope of this Doctrine was amplified in DDA v. Skipper Construction Co. [8] case where Court stated that wherever the general public is defrauded by illegal acquire of properties, the Court can pass necessary orders irrespective of the fact that there was a fiduciary relationship or not or whether a holder of public office was involved or not. The court further pronounced that courts in India are not only courts of law but also courts of equity.

Affixing liability on the wrongdoer is the need of the hour. What this means is that the public official needs to be held accountable for his actions. The Courts now award compensation as well as impose exemplary costs for violation of person’s fundamental rights and for the abuse of power on the guilty public officer. The Apex Court in Nilabati Behera v. State of Orissa [9] held that compensation for violation of human rights and abuse of power is a recognized claim under public law. The court held that the human rights of victims should be given constitutional protection by availability of public law review under Article 226 and Article 32. Judicial Activism in this field is evident from the fact that the court has evolved the principle of “polluter must pay” in case of environmental pollution [10] and that every administrative authority shall be held to be accountable for the proper and efficient discharge of its statutory duty [11] .

CORRUPTION- AN IMPEDIMENT IN TRANSPARENCY

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. [12]

The law commission had pointed out in its fourteenth report [13] 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.

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. [14] 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.

Sanathan Commission [15] 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. [16] 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. [17] 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 Bribery case [18] 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 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.

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.” [19]

Way back in 1975 in the case of Raj Narain v. State of Uttar Pradesh [20] , 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. Gupta case [21] 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 India [22] , 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. [23] RTI act essentially tries to usher in a new administrative culture and further strengthen 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. [24] 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. [25]

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’. [26] 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. [27] 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, investment could be increased by 12% and the GDP growth rate by 1.5% per annum. [28] Access to information needs to be encouraged on this ground alone.

MCI AND CWG CASES- BLOT ON GOOD GOVERNANCE

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.

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. [29] 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. [31] 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. [32] Due to such malpractices and delays in preparation the work now costs the Government more than 1000% of what it was estimated. [33] 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.

CONCLUSION

The government’s 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 don’t feel maltreated and perform their functions honestly.