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
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
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
(1993) 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
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). 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
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
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.
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) 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.
1975, in Raj Narain v. State of Uttar Pradesh
, 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
(1997), it was held that to ensure public participation in the
democratic process, important decisions of the government and their basis should
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
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
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
Bribery Case) (1998), 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.
- (1993) UKPC 2, (1993) UKPC 36, (1994) 1 AC 324, (1994) 1 All ER 1
- 1994 AIR 2179, 1994 SCC (5) 54
- 1996 AIR 2005, 1996 SCC (4) 622
- 1993 AIR 1960, 1993 SCR (2) 581
- AIR 1982 SC 149
- 1975 AIR 865
- Appeal (Civil), 2106-2109 of 1995
- Appeal (crl.) 1207 of 1997