This article is written by Vipasha Verma, a student currently pursuing B.B.A.,LL.B (Hons.) at National Law University, Odisha. This is an article which deals with the concept of Public Accountability and the evolution and application of its Doctrine.
When Confucius’ disciple Zigong asked him about the government more than 2000 years ago, he stated three things that a government required: weapons, food, and trust. He said that if the ruler cannot keep his hold on all three, he should first give up weapons and then food. However, what should be guarded till the end is trust because “without trust we cannot stand”.
The need for public accountability exists due to the need for a relationship of trust between the public sector and the public. It is about the principle of illustrating reliability, competence, and honesty in a manner to permit the public to judge their leaders and trust them in handling their money and resources.
This article explores the concept of public accountability, the evolution and scope of the Doctrine of Public Accountability, the need for such a doctrine, and it discusses impediment to transparency of government such as corruption. It further elaborates on a highly applauded legislation of The RTI Act (2005) and highlights two cases that demonstrated the need for public accountability.
Accountability in itself has a wide reaching ambit, however, public accountability must be understood in the context of the relationship between the general public and its government. Democratic countries have been founded upon the establishment of an elected legislature, and on that account, a system of checks and balances. It has multiple authorities that are independent of each other and have the power to hold each other accountable.
In India, public accountability is a product of its federal structure, consisting of a two way process:
- Upward accountability: Control of the government, such as the jurisdiction to dissolve, approve and audit fiscal plans of administrative authorities.
- Downward accountability: This is a weaker authority, as it rests with the public only through the power of the electoral process.
The Indian Scenario
Public Accountability in India suffers from practical application. Systems of formal accountability, such as right to information laws and experiments with e-governance, are set up all over the country, however, they are not put in place with an intention for them to work. Good laws, for instance The RTI Act (2005), have been passed, but enforcement and monitoring is overlooked. Mandates are formulated and funds are provided to public agencies, but the government still falls short on proper assessment and penalisation to hold them accountable. Although accounts are publicly audited and parliamentary reviews are regularly done, however, follow-ups would most likely leave a desire for more transparency. In the current circumstance, it is evident that formal mechanisms work as long as actual accountability is guaranteed on ground.
Doctrine of Public Accountability
In the last decade, Doctrine of Public Accountability has been materialising steadily as a facet of administrative law. The development of this doctrine is key in establishing a check in the increase of misuse of power by government servants and provision of a just and speedy relief to people who may have suffered at the hands of such exploitation. The premises of this doctrine is that the administrative authorities power and discretion is a public trust placed in their hands and should be exercised in realisation of such conviction.
Evolution of The Doctrine
The Doctrine of Public Accountability had and continues to have its growth through cases discussed and argued upon in courts. The case of Attorney General of Hong Kong v Reid (1993) is one of the most illustrative cases of bribes and constructive trusts i.e., a judicial remedy for a party deprived of their rights due to a person holding their property through illegal means.
In this case, a prosecutor appointed by the Crown was paid in bribes for burying criminal cases. With that bribe money, he purchased certain properties. It was held by the court that a gift received and accepted by a public officer as payment to breach his public duties is a bribe. Further, it was held that there existed a fiduciary duty, therefore, the owners are constructive trustees of the Crown. This meant that money was owed to the person who had suffered by the fiduciary, and he had to hold money acquired as a constructive trust.
This case was further followed in India by the Supreme Court in the case of Attorney General of India v Amritlal Prajivandas (1994). In this case, the validity of the SAFEMA Act (1976), which mandated release of properties that were received as incentives for smuggling or some other malafide activity.
The Doctrine was further elaborated upon in the famous case of DDA v Skipper Construction Corporation (1996). In this case, the general public was prioritised and said to be defrauded even if there existed a fiduciary relationship or not or there was involvement of a public officer or not. The Supreme Court said that it has the authority to pass orders irrespective of the above-mentioned requirements, if there was an illegal acquirement of properties. It was also held that Indian courts are not simply courts of law but also courts of equity.
Through another judgment, Nilabati Behera v State of Orissa (1993), courts now award compensation and exemplary costs are imposed on fundamental rights violation because of power abuse by a public officer. In this case, it was held that recognition of such a claim exists under public law. Human rights of the aggrieved were recommended to be given constitutional protection through public law review under Article 226 and Article 32 of The Constitution of India (1950). There is also evidence of Judicial Activism in this doctrine as courts recognize the proper accountability of authorities that do not discharge their statutory duty efficiently.
The Need For The Doctrine: Corruption
Public corruption is as old as public administration itself. While countries endeavour to become social welfare states, it has inevitably resulted in the expansion of bureaucracy in size as well as in number. This expansion has consequently resulted in a huge amount of work for administrative authorities and the application of their discretion and power. It is an age-old tale, discretion and power always bring with the possibility of their abuse.
In its 14th report, the Law Commission had emphasised the disturbing amount of administrative action in India that can go unchecked as it uses its discretionary powers without public accountability. It also highlighted the increase in number of administrative adjudication evident by the increase in administrative tribunals. The issue of public accountability is foundationally connected with the issues of executive jurisdiction, delegated legislation, and adjudication.
The most important body that enforces public accountability is the Central Bureau of Investigation (CBI). Earlier, it existed under the Executive but that overshadowed its purpose to enforce accountability in the government itself due to the absence of independence, therefore, it was separated by the Supreme Court and brought under the aegis of the Central Vigilance Commission (CVC). Other directions were given by the Court to ensure the purpose of the CBI is not impeded and to make it the prime body of enforcing transparency in government functions.
Sanathan Commission had highlighted the problem of India’s corruption problem by observing that witnesses told them how a regular percentage is paid by the parties to the transaction of purchase, construction, sale, and other businesses on the government’s behalf. This percentage is distributed among officials in agreed proportions.
Corruption cannot be fought against unless systemic changes are made in the method of government functioning in public administration. Depoliticisation of bureaucracy and their only job should be to function as per the requirements of their profession. Government’s success or failure rate is hugely dependent on public administration efficiency, however, if it is regularly interfered with and asked to function in a way completely opposite to its mandate, it will never be efficient.
A noble legislation introduced for the benefit of transparency in public administration is the Prevention of Corruption Act (1988). In the PV Narsimha Rao v State (CBI/SPE) (JMM Bribery Case) (1998), the court held that public servants’ ambit of the PCA will cover Members of Parliament and Members of Legislative Assemblies. Immunity must not be granted to these persons under Article 105 of The Constitution of India (1950) for offences committed outside the Parliament/Legislature.
However, the judgement was heavily criticised, for blindsiding the public by naming corruption when Article 105 does not deal with enabling a provision against corruption. While the immunity exists for legislative independence, however, give and take of bribes does not come under the legislative process.
RTI As A Tool To Enforce The Doctrine
Absence of participation by the general public can be attributed to lack of information about the government process. The Supreme Court, while giving opinion, in the case of SP Gupta v President of India (1981), on the importance of an open government, said that the the demand for government’s openness is grounded in the reason that the exercise of their right to vote, choosing their leaders for the next five years, and then returning into passivity without any interest in the government is not what democracy is.
In 1975, during the case of Raj Narain v State of Uttar Pradesh, the Court held that secrets must not exist in a government where agents are held responsible for their conduct. In 1982, during the S.P. Gupta Case, the court elaborated on the positive trend of liberal democracies moving towards an open government and how India should be no exception to this new democratic culture. In 1997, in the case of Dinesh Trivedi v Union of India (1997), it was held that to secure participation of the general public in the democratic process, vital decisions taken by the government should be conveyed to them and the basis thereof.
The Supreme Court judgment, in the Raj Narain case, of right to know in 1975 to the enactment of Right To Information (RTI) Act in 2005, the country has come a long way. The passage of this act made way for a new administrative culture and provide a boost to democracy. The Chief Information Commissioner of India hailed the legislation as outstanding and unprecedented as per the response of the public.
A landmark legislation, the RTI Act has all central, state, and local governments and public authorities under its ambit. It also has applicability on the judiciary and the legislature. ‘Information’ has been defined as including the right to inspect work, documents, and records that are held by the government and also permits the extraction of certified samples for verification.
Over the years, there have been many appeals to amend the law to allow the refusal of information that is irrelevant to an applicant. However, refusal of information is not the answer. Proactive disclosure can prove to be a highly positive step. The RTI Act in itself has its basis on the principle of ‘Maximum Disclosure’ and ‘Minimum Exceptions’, i.e. revealing almost all information and making an exception in cases where the information is absolutely necessary to be kept confidential. While government offices are flooded with frivolous applications, the way to deal with this is to make information available to the public domain voluntarily. Rather than cursing the exposure of the RTI Act, public officials should treat it as an allowance of expression of opinions and a shield against claims of manipulation.
RTI is continuously proving to be an effective tool for tackling corruption. Achievements of those like the civil society organisation ‘Parivartan’ in Delhi, wherein they collected information about the flow of public funds is the best illustration of how information can be used to hold the government accountable. However, it is evident that more work needs to be done. In a report by Transparency International, If India was to reduce corruption to the level of Scandinavian countries, there would be a 12% increase in investment and a 1.5% per annum growth rate in the GDP.
Medical Council of India Case
In Dr. Ketan Desai v The State (2010), a petition was filed against Ketan Desai, Medical Council of India President, for large scale bungling in medical admissions of medical colleges in Pune, Ghaziabad, and Punjab as well as granting them recognition. Details of an income tax raid were presented in the petition, wherein it showed the existence of an unexplained receipt of 6.5 million rupees through bank drafts in wife’s, daughter’s name.
Since, the objective of the Medical Council is to maintain uniform standards of the Council and recognise/de-recognise medical colleges on the basis of such standards, Desai’s actions came directly under the ambit of a public servant. It was ruled that Ketan Desai had taken advantage of his position and misused such power as president. He was removed from the position as well as the office and also penalised with fine and custody. Through such incidents, the public is defrauded while public servants benefit themselves.
Commonwealth Games Case
In Suresh Kalmadi v The CBI (2012), Chief of the Organising Committee of the CWG, had acquired the government a massive loss due awarding the TSR contract to an expensive firm. Facts revealed that it was a conspiracy to award an expensive contract on purpose even though there was a much cheaper option. A total loss of about Rs 95 Crore was calculated due the difference of costs between Swiss Timing and MSL Spain. After his arrest, Kalmadi had filed an appeal in the Supreme Court which is still ongoing.
Owing to the malpractices of such public servants, the government had to bear the burden of costs at a rate 1000% higher than what it would’ve originally cost. The taxpayers have been defrauded and will have to pay the price for lack of accountability. The Court must ensure that such offenders pay for their actions.
The task of the government does not come to an end after creating institutions, laws and measures, it’s when the real job of making sure these laws are effective starts. Indian Judiciary has been proactive in the area of public administration and the evolution of this doctrine. However, if corruption is not tackled with, proper accountability for execution of roles becomes a long lost dream.
By passing legislation such The RTI Act (2005), the government has illustrated its intention to establish good governance, however, a lot still needs to be done to ensure effective application of this act and that comes with public officials taking a step forward to ensure the rightful usage of taxpayers money and transparency of government. Small steps such as implementation of performance appraisal mechanisms for honest officials can go a long way to incentivize other officials to follow suit.
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