How Are Ministers Made Accountable to Parliament?

Instead of the function of governing, for which it is radically unfit, the proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable, and, if the men who compose the government abuse their trust, or fulfil it in a manner which conflicts with the deliberate sense of the nation, to expel them from office, and either expressly or virtually appoint their successors.

John Stuart Mill [1]

Dr. B.R. Ambedkar in his address to the Constituent Assembly, comparing the presidential form of democracy to that of parliamentary said “you can have a system which can give you more stability but less responsibility. The British system on the other hand gives you more responsibility but less stability.” He argued that there is daily and period assessment in a parliamentary system whereas there is only periodic assessment in presidential system such as USA. We adopted for a more responsible government over a stable one. [2] A responsible government means that the government is responsible to Parliament and more precisely to House of People i.e. government’s authority depends upon its having the confidence of the elected House. [3]

Part I lays down the theoretical framework for accountability and for assessing an institution. Part II analyses various parliamentary instrumentalities available to enforce accountability and outlines Constitutional provisions on such accountability. Part III ponders on the question of limits on accountability of the Council of ministers to the Parliament.

Theoretical Framework

I. (a) What is accountability?

Accountability means obligations to account for all actions or omissions one does. The word accountability in the context of political institutions has over the years moved beyond the traditional definition of keeping accounts. Accountability entails following components: [4]

Transparency

Representativeness

Responsiveness and

Power to sanction misdeeds

The concept of Accountability in Political institutions is an essential component to the ideology establishing a responsible government. [5]

Accountability entails two kinds of obligations:

Explanatory accountability: obligation to give account i.e. to answer, disclose, explain or justify. [6]

Remedial Accountability: obligation to account for action or inaction i.e. to be “answerable” for the misgovernment and subsequent and appropriate changes. This is retrospective or a posteriori. [7]

Does Accountability mean Control?

“Accountability” and “control” are complementary [8] in the sense that both have a character of relativity i.e. degree of accountability. It contemplates either a legal obligation to account or a established convention. [9]

I. (b) Chain of Delegation & Accountability:

Parliamentary democracy is characterised by the presence of agency relationship between various actors in democracy. Delegation is a consequence of lack of ability or information of the citizen or the task does not merit ordinary citizen’s effort or time. [10] This delegation can be identified in four prominent discrete stages: [11]

From the electorate to the elected representative

From the legislator to the executive (Prime Minster and his Council of Ministers)

From the Prime Minister and Council of Ministers to the various departments of the Government, and

From the heads of various departments to bureaucrats.

Hence, the Council of ministers are agents of the parliament who are agents of the ultimate principal the electorate. Delegation and accountability run parallel to each other but in opposite direction. Agent has defined set of objectives and rules which govern his actions delegated by the principal. Hence an agent is accountable to the principle for the acts done on behalf of the principal and the latter is empowered to reward or reprimand for the former’s acts. [12]

I. (c) Why Accountability?

A person is accountable by virtue of taking up any responsibility. In Parliamentary democracy, it considered that the will of the People is embodied by the parliament and hence it must be able to oversee the way in which public policy is carried out so as to ensure that it keeps in step with the objectives of socio-economic progress, efficient administration and the aspiration, of the people as a whole. [13]

Accountable mechanism is called for because of the following major functional aspects [14] :

Democratic control: As noted above the ultimate principle in the nation are electorate, so by the chain of delegation of work through agents and the corresponding accountability ensures that the electorate is aware of functioning which would ensure them in taking informed decision. [15]

Integrity of the Institution: Accountability ensures the public character of the institution is not compromised by corruption, nepotism, abuse of power and other forms of inappropriate behaviour. [16]

Enhancing Performance: The sanction component of accountability promotes review of performance leading to setting standards and norms to be internalised and followed respectively. [17]

Legitimacy: Accountability and its associated mechanisms help induce confidence among the electorate and legitimacy to the institution by having easy access to the government. [18]

Catharsis: It is a purifying function which is finding a mechanism to reconcile the various discrepancies such as scandals, disasters, shortcomings etc., by conducting enquires, investigations or hearing affected parties. [19]

I. (d) Limits on Accountability:

A limit on the accountability of a public institution to the governed is a very contentious issue. It means it is confiding something from those who gave legitimacy to the institution. Theoretically limits are imposed when excesses of accountability leads to dysfunction i.e. bringing ineffectiveness or inefficiency or other components essential to governance. Following are the consequences due to the excesses in above major functional aspects:

Rule-obsession: Rigorous democratic control would turn agencies into rule-obsessed bureaucracies. [20]

Proceduralism: Greater emphasis on protection of integrity of the institution would greatly affect the efficiency and effectiveness of the government due to excessive proceduralism. [21]

Rigidity: Fear of excessive scrutiny lead to excessive caution followed the bureaucracy which in turn might stagnate the growth. [22]

Scapegoating: Excessive catharsis would lead to scapegoating of capable individuals. [23]

How does knowledge of function of various agents help in answer the question of limits on accountability of the Council of Ministers to the Parliament?

I. (e) What are They Accountable For?

In the present context, apart from its capacity as a legislature the Parliament especially the lower house exercises control over the executive. It has to criticise, supervise administration, and influence governmental policy. [24] The functions of Indian Executive are not completely “Executive” in nature. Certain functions of the Executive are judicial and legislative in nature though in a limited way. [25] Their functions are co-extensive to the Parliament but executive in nature. [26]

Council of Ministers is accountable to the Parliament for their actions or inactions in carrying on their roles. It is a paradox in the Constitution that we rely on the Lok Sabha to make the government accountable where as the majority in the House comprises of people who are responsible for the formation of the government. However, this does not take away the merit of collective responsibility of the government to Parliament. [27]

Is there any obligation on the Parliament to enforce accountability? Or is there an obligation on the Council of Ministers to submit to the Parliament?

There is no binding legal obligation on the Parliament to enforce such accountability. However, it is the duty conferred by the electorate to represent, formulate policy and supervise the government. The Government has to submit itself to the Parliament only if the latter asks so. However, it is the nature of a responsible government to submit itself to the Constitutional controls and be subjected to all forms of accountability. [28]

It is argued that in an ideal parliamentary democracy the Parliament prescribes or indicates limits, guidelines or policies of the government; the government has to account for everything before, during and after exercise of control by Parliament and any failure of policy or abuse of power should be remedied subsequently. [29]

I. (f) Extent of Accountability:

In ex post facto accountability, the government is made to account for the actions vis-a-vis obligation under any policy or any enactment or power conferred by the Parliament. Basically, ministers are accountable for their action done in their official capacity. For conducting any investigation into the actions of the administration, considering the complexity in the functioning of the modern government it may be needed for technical resources and information for ensuring proper scrutiny. [30]

Are Ministers Accountable for the Actions of the Civil Servants?

The administrative accountability in India can best be described as technical and indirect. [31] The minister is the source of authority for decision making. He derives such authority from the legislature and from the electorate. It is impracticable for the minister to take every decision at every level. In Indian scenario the role of the political executive ends in devising policy and implementation is left to the civil servants. [32] Any discrepancies in the implementation would result in the officials being made answerable. [33] However, in Mundhra Deal case [34] Justice Chagla opined that ministers are responsible for the action taken by civil servants. This is based on a theory that in a parliamentary system:

It is the role of the political executive to make decisions on major policy.

The role of the civil servant is to guide the minister in making decisions keeping in view of the existing legal framework.

Part II

Accountability Enforcing Mechanisms & Its Effectiveness

As noted above that there is a periodic assessment of the Parliament by electorate through the election and there is no legal obligation on the Parliament to enforce accountability. Hence, the functioning of the legislature i.e. enforcing accountability would be plagued by with some view as to how it too will be held accountable in elections. [35] Every institution has its own standards and requirements in reviewing their actions in order to have a meaningful outcome i.e. the purpose of such review.

II. (a) Mechanism for Enforcing Accountability of the Council of Ministers:

The accountability of the Executive is direct, continuous, concurrent and day-to-day. [36]

II. (a) 1. Procedural Devises to Raise Matters of Public Importance:

The following are devised by the Houses of the Parliament under the authority conferred by the Constitution under Article 118(1) [37]

Rules of Procedure and Conduct of Business in Lok Sabha

The Question Hour [38]

Half-an-Hour Discussions [39]

Adjournment Motions [40]

No-day-Yet named Motion [41]

Calling Attention Notices [42]

Private Members’ Resolutions [43]

Rule 377 & Special Mention [44]

Petition [45]

II. (a) 2. No-Confidence Motion:

Parliamentary form of government entails an institutional framework where the executive functions by virtue of confidence relationship to any parliamentary majority. [46] Thus, the House of People can introduce a motion of no-confidence against the government which on being sustained would result in the fall of the government. Reasons for loss of confidence against the government need not be stated.

II. (a) 3. Parliamentary Committees:

Parliamentary committees are of utmost importance at most of the business is carried out in committees. Two types of committees Standing committees and ad hoc committees comprising of members of the Houses with due representation from all political parties proportional to their strength in the House are mechanisms which ensure the functioning of the Parliament effectively. [47] Recently there was demand for having Departmentally Related Standing Committees in the nature of a shadow government but having far wider functions. [48]

The Constitution provides members of the Parliament and their Committees certain privileges, immunities and powers collectively and individually with an object to protect the freedom, the authority and the dignity of the House and to facilitate discharge of their duties without hindrance or interference. [49]

II. (b) Constitutional Checks on The Executive:

The Constitution of India has envisaged Parliamentary form of government where the Parliament is supreme. Certain provisions in the constitution authorises the Parliament to exercise control over the government. This can be broadly categorized into the following:

II. (b) (1) Policy & Administrative Matters:

The Council of Ministers are collectively responsible to the House of People by virtue of Article 75 (3). [50] By the above mechanisms the government is made answerable to all their actions and inactions. Ministers are individually responsible for acts specific to their departments. Collective responsibility means the political executive are held responsible for all the decisions and policies of each of their ministries and there departments as long as they enjoy the confidence of a majority of members of the Lok Sabha. [51]

Dismissal from the office by withdrawal of support by the legislature is the only sanction for enforcing responsibility. [52]

II. (b) (2) Parliamentary Control Relating to Legislative Matters:

Participation in Legislation: Generally bills are introduced by ministers relating to their departments. It is very rare that a Private member bills are introduced and subsequently passed by the houses. These bills in the second reading referred to the committees are thoroughly scrutinized and any evidence or documents required for such scrutiny by the committee is provided by the executive.

Ordinances: The President can proclaim ordinances in the absence of House in session. [53] However, the ordinance lapses if the Houses pass a resolution disapproving it. [54]

Emergency Provisions: The power of the executive to declare emergency at the State level is subject to parliamentary control. [55]

II. (b) (3) Parliamentary Control Relating to Financial Matters:

Financial supremacy of the Legislature is one of the basic feature of a Parliamentary democracy. [56] The executive has the duty to formulate annual financial statement popularly known as budget. [57] The Executive alone has the authority to initiative in financial matters. [58] Executive proposes the estimated level of its expenditure specifying the purpose for various amounts and has the power to propose a model for meeting such expenses. [59] It is feared that if a private member has the privilege to allocate expenditure then he might be biased in his judgement so as to benefit particular interests of the constituents. [60] Further, executive being the collector and spender of the money it would be in a better position to allocate. [61] Parliament’s control over financial matters is demonstrated below.

Consolidated Fund of India:

The income accrued to the Government by receipts, tax, non-tax and borrowings, loan repayments is credited to the Consolidated Fund of India. [62] Withdraw of money from the Fund can be done only in accordance with the provisions of the Constitution. [63] Article 113 [64] mandates that the demand for grants be approved by the Lok Sabha and then by virtue of Article 266 which subjects the appropriation of grant out of Consolidated Fund to provisions of Article 114 which necessitates that such appropriation be introduced as bill for the approval of the Parliament. [65] Article 114 (2) [66] makes the process of introducing the Bill for appropriation is a mere formality to give the effect of law to the grant approved by the Lok Sabha as amendments to the grant are prohibited.

In short, no money in the Consolidated Fund will be available to the Government for any purpose unless it obtains a grant from the Lok Sabha; further the House cannot authorize a grant unless there is a demand by the Government specifying the need and amount which it plans to spend. [67]

Contingency Fund of India [68] :

The Parliament has established a Contingency Fund under the disposal of the President with a view to meet unforeseen expenditure of an emergent nature. [69] Any amount expended form the Contingency Fund is returned to the Fund from the Consolidated Fund of India after approval of the Parliament.

Excess Grant & Supplementary Grant [70] :

Despite the Contingency Fund the Government incurs expenditure then it can obtain “Excess Grant” or “Supplementary Grant” by approaching the House of People for such grant. [71] This provision is designed to defend those officials who in good faith have done something which at that point is contrary to law. [72]

Necessitating the approval of the House of People for appropriation of money from Consolidated Fund to Contingency Fund or for giving Excess Grant ensures no amount being expended without the scrutiny. [73]

Borrowings:

As per Article 292 [74] the Government of India can borrow amount upon the security of the Consolidated Fund of India but within the limits prescribed by the Parliament.

All the above provisions have in theory an underlying assumption of a democratic principle of subordination of the executive to elected representatives i.e. Lok Sabha. For an effective control government must depend on the Lok Sabha for its financial requirements. [75] The absence of all these mechanisms would entail direct access to all the money ready for disposal at the instance of the executive. It is opined that lack of such mechanisms would mean that the representatives of the people would lose control over government spending which is considered as bedrock of the democratic functioning of Government. [76]

The nature of control of Parliament in both the matters is political in nature. [77]

This mechanism ensures proper scrutiny i.e. could point out the failure of the government in proper estimation or governing properly.

II. (c) Effectiveness of Accountability Mechanisms:

All these mechanisms have their own drawbacks. Parliamentary instrumentalities for discussion in the House is concerned, there is hardly any debate in the recent past. There are numerous legislation which have not debated at all in the floor of the house. Stalling of the proceedings by the opposition to gain political mileage, protests etc have resulted in complete inefficiency in functioning of the House. [78] In reality, the effectiveness of no-confidence motion is crippled because of limited alternatives available to replace the incumbent government as this would be possible only in cases of minority government or defections.

Members of Parliament work under the dicta of their political bosses and hence as the ruling party commands majority on its own, effectiveness of Parliament is greatly crippled. Legislation and ordinances are passed without undergoing rigorous review.

The objective of through financial scrutiny is managing resources effectively and efficiently. However, the audit reports of the CAG has clearly demonstrated how the States have overspent and obtained excess grant for a humongous amounts. [79]

Part III

Limits on Accountability of the Council of Ministers

III. (a) Should There Be Any Accountability?

The demand for accountability arises due to mistrust on the institution. This mistrust could mean the ability of the institution to their commitment to the task. Hence, eliminating accountability means placing trust on the institution unless the objectives are not that of a welfare state. Part I under “Why Accountability?” notes the principle behind Parliament being made to have surveillance over the executive. It can be inferred that the trust is not placed on the Executive by the people i.e. they are susceptible for abuse of power.

Since, under the current scenario complete trust cannot be entrusted on the Executive an accountable mechanism needs to be in place.

III. (b) The Issue:

Part II has adequately demonstrated that the Political Executive is accountable to the Parliament and why there is a need for such accountability. It follows whether there should be any limits on such accountability? Ascertaining the limits on the accountability of the government to the legislature has implications on one of the basic features of our Constitution the Parliamentary democracy i.e. supremacy of the Legislature.

III. (c) Consequences of Limits on Accountability:

Since we have agreed to have accountability the next question is should there be unlimited accountability to the legislature. It would be unsound to answer such question with compliance to any doctrine. It brings about rigidity in the institution. The answer to such question should be based on the consequences that it would entail.

III. (c) (1) The Myth of Supremacy of Constitution:

Limits on accountability would entail a compromise on the principle of supremacy of the Constitution. However, there is a great paradox in theory and in reality regarding the Supremacy of the Constitution. It is the Executive which controls the Parliament and not the other way round.