Doctorine of Accountability

DOCTORINE OF ACCOUNTABILITY

DOCTORINE OF ACCOUNTABILITY PRESENTATION ON ADMINISTRATIVE LAW

ADMINISTRATIVE LAW Administrative lawis the body oflawthat governs the activities ofadministrative agenciesofgovernment.Government agency action can includerulemaking,adjudication, or theenforcementof a specificregulatoryagenda. Administrative law is considered a branch ofpublic law. As a body of law, administrative law deals with the decision-making of administrative units of government. Administrative law expanded greatly during the twentieth century, as legislative bodies. DEFINATIONS Ivor Jennings Administrative Law is the law relating to the administration. It determines the organization, powers and duties of the administrative authorities. Kennith Culp Davis Administrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action.

NATURE AND SCOPE OF ADMINISTRATIVE LAW According to Jain N Jain- Administrative law deals with the composition and powers of the administrative authority, fixes the limits of the power of these authorities, prescribes the procedure to be followed by these authorities in exercising these powers and control these administrative authorities through judicial and other means. 1. FUNCTIONS PERFORM Administrative or executive It has two powers Discrenatory powers Ministerial powers Quasi Legislative Quasi Judicial 2. PROCEDURE FOR ADMINISTRATIVE LAWNatural JusticeRule of LawFair trialEquity, Justice and good conscience3. METHODS TO BE CONTROL TO ADMINISTRATIVE AUTHORITYParliamentary controlJudicial controlLokpal Central Vigilance Commission4. REMEDIESConstitutional Remedy- Article 32 and Article 226

Ordinary Remedy-Stay order, Declaration, Compensation, Injunction.DOCTORINE OF ACCOUNTABILITY Accountability refers to the process of holding persons or organisations responsible for performance as objectively as possible. 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. In a federal system like that of India, public accountability is a two way process involving 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.

EVOLUTION OF DOCTORINE OF ACCOUNTABILITY The most important case which elaborated the scope of doctrine of public accountability is A.G. Hong Kong v. Reid. 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 Supreme Court of India followed this case in A.G. of India v. Amritlal Prajivandaswhere court upheld the validity of SAFEMA act which provided for forfeiture of properties gained by smuggling or other malafide activities.SCOPE OF DOCTORINE OF ACCOUNTABILITY Public Accountability is a part of governance. It is the Government that is accountable to the public for delivering a broad set of outcomes but more importantly it is the public service consisting of public servants that constitutes the delivery mechanism. Therefore, the accountability and governance arrangements between Government which acts as the principal and the public service which is its agent, impact on the Governments ability to deliver and on its accountability to the public.RIGHT TO INFORMATION The right to information is defined in sec. 2(j) as a right to information accessible under the Act which is held by or under the control of any public authority and includes a right to (i) inspection of work, documents, records,(ii) Taking notes, extracts or certified copies of documents or records,(iii) Taking separate samples of material,(iv) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

CONSTITUTIONAL ASPECT OF RIGHT TO INFORMATION Article 19(1) (a) of the Constitution guarantees the fundamental rights to free speech and expression. The prerequisite for enjoying this right is knowledge and information. The absence of authentic information on matters of public interest will only encourage wild rumours and speculations and avoidable allegations against individuals and institutions. Therefore, the Right to Information becomes a constitutional right, being an aspect of the right to free speech and expression which includes the right to receive and collect information. This will also help the citizens perform their fundamental duties as set out in Article 51A of the Constitution. A fully informed citizen will certainly be better equipped for the performance of these duties. Thus, access to information would assist citizens in fulfilling these obligations.

MAIN POINTS OF RESOLUTION The Right to Information should also be extended in respect of companies, NGOs and international agencies whose activities are of a public nature and have a direct bearing on public interest.

The law should contain an appeal mechanism of anindependent nature to provide reliable redress to any citizen dissatisfied with any decision of a public authority under this law. In the present draft Bill, all appeals are to other Government authorities.

Similarly the restriction on confidential communications between the State and Centre and their agencies have no justification, unless they harm public interest.The restriction on disclosure of the record of discussions of Secretaries and other public servants also needs to be removed.

JUDICIAL REVIEW Judicial reviewis the doctrine under whichlegislativeandexecutiveactions are subject to review (and possible invalidation) by thejudiciary. A specific court with judicial review power may annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a writtenconstitution). Judicial review is an example ofcheck and balancesin a modern governmental system (where the judiciary checks the other branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review may differ from country to country and state to state.

JUDICIAL REVIEW AS A PART OF BASIC STRUCTURE Case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure. InS.P. Sampath Kumarv.Union of India (1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J., relying onMinerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature of the Constitution. CONCLUSION Accountability is one of those golden concepts that no one can be against. It is increasingly used in political discourse and policy documents because it conveys an image of transparency and trustworthiness. However, its evocative powers make it also a very elusive concept because it can mean many different things to different people, as anyone studying accountability will soon discover. This paper nevertheless tries to develop an analytical framework for the empirical study of accountability arrangements in the public domain. It starts from a narrow, relational definition of accountability and distinguishes a number of indicators that can be used to identify and classify accountability arrangements. Furthermore, it develops three perspectives to assess and evaluate accountability arrangements in the public domain.

TO, AssT prof priya umbarkarFROM, AMAN DASB.A. LL.B (4TH SEM)