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--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
todissolve 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 persons 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 governments 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 dont feel maltreated and perform their functions honestly