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The Doctrine of Public Accountability

Accountability refers to the process of holding people or organizations accountable for performance as objectively as possible. India, as a parliamentary democracy, has elected legislatures with supervisory 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 committees that perform functions of accountability to different parts of the government. The electoral process, which is the ultimate accountability mechanism in a democratic country, has performed well for more than 50 years. Public accountability is not so well in India. For the most part, formal accountability systems are put in place, but they are not necessarily designed to work.

Many good laws have been made, but they are not always enforced or monitored. Public agencies are given mandates and funds, but their performance may not be properly assessed and appropriate actions are taken to hold them accountable. Public audits and parliamentary reviews take place, but follow-up actions may leave much to be desired. It is clear that having formal accountability mechanisms does not guarantee effective accountability on the ground.

This doctrine has developed in light of judicial decisions in India. After analysing several Supreme Court decisions in this regard, the project then focuses on corruption as an evil that is an impediment to good governance and public accountability

Idea of the Doctrine
Accountability means being able to provide an explanation or justification, and to take responsibility for events or operations for one's own actions in relation to those events or operations. Accountability plays a particularly important role in the public sector.It is about being accountable for the ways in which one has spent money, exercised power, and control, mediated rights and used legally conferred discretionary powers in the public interest. It is fundamental to our system of government to whom such powers and responsibilities have been delegated must exercise them fairly and in accordance with the law in the public interest.

Over the past decade, the doctrine of Public Accountability has become increasingly prevalent as a facet of administrative law. The development of this doctrine is critical to curbing the increasing abuse of power by public officials and providing just and speedy redress to people who have suffered from exploitation. This doctrine assumes that the powers and discretion of administrative authorities are a public trust placed in their hands and that they should put this belief into practice. The main aim of this doctrine is to curb the increasing abuse of power by the administration and to provide prompt redress to the victims of such exercise of power.

The doctrine is based on the premise that the powers vested in a public authority are based on public trust and must be exercised in the best interests of the public. In any democratic society, it is of utmost importance that citizens are provided with sufficient information and knowledge about the functioning of government. Without accountability to the public, democracy cannot survive. The fundamental purpose of accountability is openness of government. The integrity of the legal system and public confidence depend on full disclosure of the facts.

Accountability to the public stems from the fact that judges act like legislators (who legislate from the bench) and not like ordinary or traditional courts. This is one of the examples of self-assumption of the legislature by the judiciary. Unbridled discretion is always a contradiction in practical life. The concept of public accountability is a matter of vital public interest. All three organs of government, i.e., the legislature, the executive and the judiciary, are subject to public accountability.

Public accountability means the obligation to be publicly accountable, i.e., to account to an acceptable standard for the performance of functions that significantly affect the public. It is the obligation to answer for a delegated responsibility. The duty to answer publicly arises as a duty of fairness whenever public authorities intend to do something that significantly affects the public. The obligation therefore goes beyond responding to formally or legally affected tasks.

Evolution of Public Accountability
The doctrine of Public Accountability has continued to evolve in cases that have been argued and debated in the courts. The case of Attorney General of Hong Kong v Reid (1993)[1] is one of the most illustrative cases of bribery and constructive trust, i.e., a remedy for a party who has been deprived of his rights because a person has taken possession of his property by illegal means. In this case, a Crown-appointed prosecutor was paid bribes to bury criminal cases.

He used this bribe money to buy certain properties. The court held that a gift received and accepted by a public official as payment for the breach of his or her public duties constitutes bribery. In addition, it was held that there was a fiduciary duty such that the owners were constructive trustees of the Crown. This meant that money was owed to the person aggrieved by the trustee and that he had to hold the money acquired as a constructive trust.

This case was followed up in India by the Supreme Court in the case of Attorney General of India v Amritlal Prajivandas (1994)[2]. This case dealt with the validity of the SAFEMA Act (1976), which mandates the release of assets obtained as inducements for smuggling or other dishonest acts. The doctrine was further elaborated in the famous case of DDA v Skipper Construction Corporation (1996)[3].

In that case, the general public was given priority and alleged to have been defrauded, whether or not there was a fiduciary relationship or whether or not a public official was involved. The Supreme Court stated that it has the power to pass orders irrespective of the above conditions where there was wrongful acquisition of property. It was also held that Indian courts are not only courts of law but also courts of equity.

Through another judgment, NilabatiBehera v. State of Orissa (1993)[4], the courts now award compensation and exemplary costs are imposed when a public servant abuses his power and thereby violates fundamental rights. In this case, it was held that such a claim is recognised in public law. It was recommended that the human rights of the aggrieved persons be given constitutional protection through a public law review under Article 226 and Article 32 of the Constitution of India. Judicial activism is also evident in this doctrine as the courts recognise the proper accountability of public authorities who fail to discharge their statutory duties effectively.

Indian Scenario
Public accountability in India lacks practical application. Systems of formal accountability, such as Right to Information Acts and experiments with e-governance, are being introduced all over the country. The RTI Act (2005), have been passed but enforcement and monitoring are neglected. Mandates are formulated and funds are allocated to public bodies, but the government fails to adequately assess and punish them to hold them accountable.

While accounts are publicly audited and parliamentary reviews are conducted regularly, follow up would most likely make one wish for more transparency. In the circumstances, it is obvious that formal mechanisms work as long as there is real accountability on the ground.

RTI Act, (2005): An important tool for this doctrine
The lack of public participation can be attributed to the lack of information about the workings of government. The Supreme Court in SP Gupta v. President of India (1981)[5] has commented on the importance of open government, stating that the requirement of openness of government is rooted in the fact that exercising the right to vote, electing leaders for the next five years and then being passive without any interest in government is not in the nature of democracy.

In 1975, in Raj Narain v. State of Uttar Pradesh[6], the Court held that there can be no secrets in a government whose representatives are held accountable for their conduct. In 1982, in S.P. Gupta, the Court explained the positive trend of liberal democracies towards open government and stated that India should not be an exception to this new democratic culture. In 1997, in Dinesh Trivedi v. Union of India (1997)[7], it was held that to ensure public participation in the democratic process, important decisions of the government and their basis should be communicated.

The country has come a long way since the Supreme Court's judgment in the Raj Narain Right to Know case in 1975 to the enactment of the Right to Information (RTI) Act in 2005. The passage of this Act paved the way for a new administrative culture and gave a boost to democracy. The Chief Information Commissioner of India described the Act as outstanding and unprecedented in terms of public response.

The RTI Act is a landmark and applies to all central, state and local governments and public authorities. It also applies to the judiciary and the legislature. The term "information" has been defined to include the right to inspect works, documents and records in the possession of the government, and also to take certified samples for verification.

Over the years, there have been many appeals to change the law to allow for the denial of information that is irrelevant to an applicant. However, denial of information is not the solution. Proactive disclosure can prove to be an extremely positive step. The RTI Act itself is based on the principle of 'maximum disclosure' and 'minimum exceptions', i.e. almost all information is disclosed and an exception is made only in cases where it is essential to keep the information confidential. The authorities are flooded with frivolous applications and the way to counter this is to voluntarily make the information available to the public. Instead of cursing the RTI Act, public servants should see it as permission to express their views and a shield against accusations of manipulation.

Time and again, the RTI Act proves to be an effective tool in the fight against corruption. The successes of organisations like the civil society organisation 'Parivartan' in Delhi, which collected information on the flow of public funds, are the best example of how information can be used to hold the government accountable. However, it is clear that more work needs to be done. According to a report by Transparency International, if India were to reduce corruption to the level of the Scandinavian countries, it would achieve a 12% increase in investment and an annual GDP growth rate of 1.5%.

Importance of this doctrine
Public corruption is as old as public administration itself. The drive of countries to become social welfare states has inevitably led to an expansion of bureaucracy, both in size and number. This expansion has subsequently led to an enormous amount of work for the administrative authorities and the use of their discretion and power. It is an old adage that discretion and power always carry with them the possibility of abuse.

In its 14th report, the Law Commission had highlighted the disturbing extent to which administrative action in India can go unchecked as authorities use their discretionary powers without public accountability. It also pointed to the increasing number of administrative decisions, evident in the proliferation of administrative tribunals. The issue of public accountability is closely related to the issues of executive responsibility, delegated legislation and jurisdiction.

The main body for enforcing public accountability is the Central Bureau of Investigation (CBI). It used to be under the Executive, but this overshadowed its purpose of enforcing accountability in the government itself due to its lack of independence. Hence, it was separated from the Supreme Court and placed under the Central Vigilance Commission (CVC). The court issued further directions to ensure that the purpose of the CBI was not compromised and to make it the main body for enforcing transparency in government functions.

The Sanathan Commission had highlighted the problem of corruption in India by noting that witnesses reported how a regular percentage is paid by parties in purchase, construction, sale and other transactions on behalf of the government. This percentage is shared among officials in an agreed ratio. Corruption can only be fought by systematically changing the way public administration works.

The depoliticisation of the bureaucracy and its only task should be to work according to the requirements of its profession. The success or failure of government depends to a large extent on the efficiency of the public administration, but it will never be efficient if it is regularly interfered with and asked to work in a way that is totally contrary to its mandate. A noble law introduced to promote transparency in public administration is the Prevention of Corruption Act (1988).

In PV Narsimha Rao v. State (CBI/SPE) (JMM Bribery Case) (1998)[8], the court held that the scope of the PCA for public servants includes members of Parliament and legislative assemblies. Such persons may not be granted immunity for offences committed outside the Parliament/legislature under Article 105 of the Constitution of India (1950). However, the ruling has been heavily criticised for misleading the public by naming corruption when Article 105 is not about enabling a provision against corruption. Immunity exists for the independence of the legislature, but the giving and taking of bribes does not fall under the legislative process.

End-Notes:
  1. (1993) UKPC 2, (1993) UKPC 36, (1994) 1 AC 324, (1994) 1 All ER 1
  2. 1994 AIR 2179, 1994 SCC (5) 54
  3. 1996 AIR 2005, 1996 SCC (4) 622
  4. 1993 AIR 1960, 1993 SCR (2) 581
  5. AIR 1982 SC 149
  6. 1975 AIR 865
  7. Appeal (Civil), 2106-2109 of 1995
  8. Appeal (crl.) 1207 of 1997

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