DOCTRINE OF PUBLIC ACCOUNTABILITY- A COMPLETE OVERVIEW WITH OTHER ASPECTS

DOCTRINE OF PUBLIC ACCOUNTABILITY- A COMPLETE OVERVIEW WITH OTHER ASPECTS

 

Accountability is the process of holding persons or organizations responsible for performance as objectively as possible. This elusive concept keeps the image of trustworthiness, transparency and justice or the critics at a distance. Talking about public accountability, the ultimate accountability mechanism i.e., elections, has performed well. India being a federal state, public accountability is a two way process and involves upward accountability and downward accountability. Upward accountability comes through the governmental control over administrative authorities like power to dissolve 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.[1]

 

The doctrine holds that the authority given in the hands of Public Authority is on public trust which must be exercised in public interest. It is a matter of vital public concern as all the three organs of the government, viz. The legislature, executive and judiciary are subject to it. However, responsibility and accountability are separate obligations where former is the obligation to act and accountability is the obligation to report on the responsibilities.[2] The ‘public’ here relates to openness and the public sector. It is the obligation to answer, for a responsibility conferred, in fair, open and reasonable manner so that citizens become reasonably informed and could then also control such authorities’ intentions or actions that are ultimately going to affect them by way of condemnation, alteration or halt.[3]

 

It is sine qua non for democratic governance. It functions as democratic control since public servants who delegate power to agencies are also made accountable to citizens who can vote them out for poor performance. Secondly, it enhances the integrity of public governance by deterring them from corruption, nepotism, abuse of power be it delegated or primary and help overseers to trace such abuses. Thirdly, it fosters institutional learning by letting them ‘control’ and ‘prevent’ their wrongful conduct and to adjust their policies and procedures. Fourthly, it enhances legitimacy of public governance in the sense of transparency, responsiveness and answerability.[4] A breach of duty in public law gives rise to personal liability. Since an action cannot be divorced from actor in the same way a public officer who abuses his official position i.e. exploiting it not for public good larger welfare, he would be liable and can be directed to pay compensation, damages or costs.[5]

 

EVOLUTION OF DOCTRINE BY JUDICIARY

The doctrine is not available in substantive legislative form, it is a concept evolved by judiciary from time to time. An administrative action can be subjected to judicial review if discretionary power exercised is tainted by any vulnerability like illegality, irrationality[6] or procedural impropriety.

 

The most important case pertaining to the doctrine of accountability is that of A.G. Hong Kong v. Reid[7] where the Crown prosecutor took bribes to suppress certain criminal cases and purchased the property with the bribe money. The Court, in this case, held that the acceptance of any gift by a public official will constitute a bribe and the fiduciary owes money to the person to whom he owed a duty to and he could hold the bribe acquired therewith on constructive trust for that person. The scope of this Doctrine was amplified in DDA v. Skipper Construction Co[8]., where court held that whenever the general public is cheated by illegal possession of properties, a court can pass necessary orders ignoring of the fact that there was a fiduciary relationship or not or whether a holder of public office was involved or not, and the court further held that courts in India are both, courts of law and 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 Apex Court in Nilabati Behera v. State of Orissa[9] held that compensation and exemplary costs for violation of human rights and abuse of power by guilty public officials is a recognized claim 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.

 

Public Accountability is entirely emerging through judicial activism. Those who seek to invalidate and nullify any act or order must establish the charge of bad faith, abuse of power by authorities.[10] Courts now recognize the proper accountability of authorities that do not discharge their statutory duty efficiently. When vast powers are exercised by an institution that is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to ensure judiciousness as also want of arbitrariness.[11]

 

PUBLIC ACCOUTABLITY vs. CORRUPTION

With the growth of idea of welfare state and public administration and consequently bureaucracy, the scope of power and discretion widened. This brought with itself possibility of abuse. In Law Commission’s 14th report, it emphasized upon the unchecked exercise of discretionary power without public accountability. 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) which was brought under the aegis of the Central Vigilance Commission (CVC by Supreme Court. Sanathan Commission had observed that a regular percentage is paid by the parties to the transaction of purchase, construction, sale, and other businesses on the government’s behalf. In this corruption, 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 through de-politicisation of bureaucracy, strict enjoyment of office of profit, increase in public administration efficiency, less interference in discharging duties, bringing more transparency by legislations like Prevention of Corruption Act (1988).

 

RTI AS A TOOL ENFORCING THE DOCTRINE

 

This doctrine cannot be enforced without transparency which is why Right of Information Act ushered in as a tool to find and rule out the arbitrariness by public authorities, to establish Rule of Law and to curb the lack of popular participation. It is right that “an open Government is the new democratic culture of an open society towards which every liberal democracy is moving”. In Dinesh Trivedi v. Union of India[12], court also 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. The Act brought new administrative culture and boosted democracy as it covers all central, state and local governmental bodies and applies on judiciary and the legislature also. The term “information” under the act means right to inspect work, documents and records held by the government and allows for the extraction of certified samples for verification. The Act is based on the principles of ‘Maximum Disclosure’ and ‘Minimum Exemptions.[13] It has already proved to be an effective instrument to tackle corruption in public service. The significant achievement like civil society organization ‘Parivartan’ in Delhi which collects information about flow of public funds, dubious decisions, etc are examples of the power of information. However, more needs to be done in this direction.[14] 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. Access to information needs to be encouraged on this ground alone.

 

Though being welcomed profusely, the law was demanded to be amended to refuse information that is not relevant to an applicant. But this is not the solution. The Government offices are flooded with frivolous RTI applications. The problem can only be solved if the Government voluntarily makes available such information in public domain. Proactive disclosures by authorities can be a very positive and people friendly step. Honest public officials consider it as a boon as it enables them to express their opinion fearlessly, objectively and give them an effective shield against external or internal pressures but dishonest ones laments over exposure.

 

LANDMARK JUDGEMENTS

 

In Dr. Ketan Desai v The State[15], 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. He was found with an unexplained receipt of 6.5 million rupees through bank drafts in wife’& daughter’s name. It was ruled that Ketan Desai had abused official powers as a public servant. He was removed from the position as well as the office and also penalized with fine and custody. It sets that the public got defrauded while public servants benefit themselves. In Suresh Kalmadi v The CBI[16] or popularly known as Commonwealth Games Case , chief of the Organizing Committee of the CWG, had acquired the government a massive loss of 95 crore by awarding the TSR contract to an expensive firm as a part of conspiracy. Central Vigilance Commission (CVC) has said that the works have been awarded at higher rates to non eligible company, besides poor site management and quality compromises. Due to such malpractices and delays in preparation, the work now costs the Government more than 1000% of what it was estimated. The taxpayers have to bear the burden of lack of accountability on part of the Organizing Committee. These people have been given absolute power and the saying “power corrupts and absolute power corrupts absolutely” is wholly applicable here. The Government needs to ensure that the people in charge of organizing the games are held accountable for their actions.

 

CONCLUSION

The doctrine is not in substantive form so, it is government only who is to ensure that laws institutions and other mechanisms for public accountability are effective. It is the hallmark of modern democratic governance as in its absence democracy would be a paper procedure. It evolved and fixes liability on public officials. Doctrine is an entirely emerging through judicial activism. Those who seek to invalidate and nullify any act or order must establish the charge of bad faith, abuse of power by authorities. It aims to check the growing misuse of power by the administration and to provide speedy relief to the victims of such exercise of power. However, corruption is an impediment in transparency to curb which Right to Information as a Tool for enforcing accountability came. All is not well with public accountability in India. 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. The government should also implement performance appraisal mechanisms and provide incentives to honest officials so that it encourages other officials to follow suit.

 


[1] Doctrine of Public Accountability, available at: https://www.lawteacher.net/free-law-essays/administrative-law/doctrine-of-public-accountability (last visited on April 25, 2021)

[2] Doctrine of Public Accountability, available at: https://nitimanthan.in/blog-posts/blog-niti-manthan/2020/06/28 /doctrine-public-accountability (last visited on April 25, 2021)

[3] Administration and good governance, available at: https://www.legalbites.in/administration-and-good-governance/ (last visited on April 25, 2021)

[4] Mark Boven, Public Accountability (2003) (Unpublished EGPA annual conference paper, Utrecht School of Governance).

[5] C. K. Takwani & M. C. Thakkar, Lectures on Administrative Law (Eastern Book Company, Lucknow, 6th edn., 2017).

[6]  Wednesbury’s definition of unreasonableness.

[7] UKPC 2 (1993)

[8] 1996 SCC (4) 622.

[9] (1993) SCR (2) 581

[10] Indian railways construction co. ltd. v. Ajay Kumar, (2003) 4 SCC 582.

[11] S.S. Dhanoa v. Union of India, (1991) 3 SCC 567: AIR 1997 SC 3067

[12] (1997) 4 SCC 306

[13] Revealing all information and making an exception in cases where information is absolutely necessary to be kept confidential.

[14] Malepati, H., ”Doctrine of public accountability in administrative law” Law Column, Dec 15, 2020.

[15] Dr Ketan Desai v. The State, Civil Appeal no.02 of 2010

[16] Suresh Kalmadi v. The CBI, Civil appeal no. 1692 of 2000

 

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