Administrative Law Project

A PROJECT REPORT ON DOCTORINE OF ACCOUNTABILITY

 Submitted to: Asst. Professor Priya Umbarkar  Faculty of Law

Submitted by: Aman Das B.A. LL.B Sem 4th

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ACKNOWLEDGEMENT The success and final outcome outcome of this ro!ect re"uired a lot of #uidance and assistance from many eole and we are e$tremely fortunate to ha%e #ot this all alon# the comletion of our   ro!ect work. &hate%er we had done is only due to such #uidance and assistance and we would not for#et to thank them. &e resect and thank Asst. Prof. P'()A U*BA'+A', for #i%in# us an oortunity to do the  ro!ect work in “ D-T-'(/0 -F A-U/TAB(L(T)1 and ro%idin# us all suort su ort and #uidance which made us to comlete the ro!ect on time. &e are e$tremely #rateful to her for   ro%idin# such a nice suort and #uidance. #uidance.

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DECLARATION ( hereby declare that the ro!ect work entitled “DOCTORINE OF ACCOUNTABILITY” submitted to the *ATS LA& S2--L, is a record of a work done by me under the #uidance of Asst. Prof. P'()A U*BA'+A', Faculty of Law, *ATS U/(30'S(T), and this ro!ect work has not erformed the basis for the award of any decree or diloma and similar ro!ect if any.

A*A/ DAS B.A. LL.B. S0* 4th

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TABLE OF CONTENT ACKNOWLEDGEMENT............................................................................................ 2 DECLARATION........................................................................................................ 3 ADMINISTRATIVE LAW............................................................................................ 5 NATURE AND SCOPE OF ADMINISTRATIVE LAW......................................................6 INDIAN ADMINISTRATIVE LAW................................................................................6 DOCTORINE OF ACCOUNTABILITY.......................................................................... 7 EVOLUTION OF DOCTRINE.....................................................................................8 SCOPE OF PUBLIC ACCOUNTABILITY...................................................................... 8 CORRUPTION- AN IMPEDIMENT IN TRANSPARENCY............................................. RIG!T TO INFORMATION AS A TOOL FOR PUBLIC ACCOUNTABILITY....................1"  #UDICIAL REVIEW................................................................................................. 16  #UDICIAL REVIEW AS A PART OF BASIC STRUCTURE.............................................17 L$%$&'&$() () &*+ ,(+ (/ +0$+......................................................................18 C()4$()........................................................................................................... 1

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ADMINISTRATIVE LAW Administrative law is the body of law that #o%erns the acti%ities of administrati%e a#encies of #o%ernment. o%ernment a#ency action can include rulemakin#, ad!udication, or  the enforcement of a secific re#ulatory a#enda. Administrati%e law is considered a branch of ublic law. As a body of law, administrati%e law deals with the decision5makin# of  administrati%e units of #o%ernment 6for e$amle, tribunals, boards or commissions7 that are  art of a national re#ulatory scheme in such areas as olice law, international trade, manufacturin#, the en%ironment, ta$ation, broadcastin#, immi#ration and transort. Administrati%e law e$anded #reatly durin# the twentieth century, as le#islati%e bodies worldwide created more #o%ernment a#encies to re#ulate the increasin#ly comle$ social, economic and olitical sheres of human interaction.

*any !urists ha%e made attemts to define it, but none of the definitions has comletely demarcated the nature, scoe and content of administrati%e law. 0ither the definitions are too  broad and include much more than necessary or they are too narrow and do not include all essential in#redients. For some it is the law relatin# to the control of owers of the #o%ernment. The main ob!ect of this law is to rotect indi%idual ri#hts. -thers lace #reater  emhasis uon rules which are desi#ned to ensure that the administration effecti%ely  erforms the tasks assi#ned to it. )et others hi#hli#ht the rincial ob!ecti%e of  Administrati%e Law as ensurin# #o%ernmental accountability, and fosterin# articiation by interested arties in the decision makin# rocess.

Ivr Jennin!s

8Administrati%e Law is the law relatin# to the administration. (t determines the or#ani9ation,  owers and duties of the administrati%e authorities.:

"ennit# C$l% Davis

;Administrati%e Law is the law concernin# the owers and rocedures of administrati%e a#encies, includin# esecially the law #o%ernin# !udicial re%iew of administrati%e action.1 (n one resect, this definition is roer as it uts emhasis on rocedure followed by administrati%e a#encies in e$ercisin# their owers. 2owe%er, it does not include the substanti%e laws made by these a#encies. Accordin# to Da%is, an administrati%e a#ency is a #o%ernmental authority, other than a court and a le#islature which affects the ri#hts of   ri%ate arties either throu#h administrati%e ad!udication or rule5makin#.

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NATURE AND SCOPE OF ADMINISTRATIVE LAW Accordin# to C for any offence committed outside ParliamentGLe#islature. This !ud#ment was howe%er critici9ed on other  #round mainly that Article >C is not an enablin# ro%ision for corrution. The urose of the immunity is le#islati%e indeendence but #i%in# or recei%in# bribes is not art of le#islati%e  rocess.

RIGHT TO INFORMATION AS A TOOL FOR PUBLIC ACCOUNTABILITY  An imortant factor resonsible for the absence of oular articiation in the #o%ernance  rocess is the lack of information. ommentin# on the need for a oen o%ernment, the Sureme ourt of (ndia obser%ed that the demand for oenness in the o%ernment is based on the reason that ;democracy does no consist merely in eole e$ercisin# their franchise once in fi%e years to choose their rulers and once the %otes are cast, then returnin# into  assi%ity and not takin# any interest in the o%ernment.1 &ay back in >EH in the case of Ra* Narain v& +tate ) Uttar Prades# , the Sureme ourt of (ndia obser%ed that in a #o%ernment like ours, where all the a#ents of the ublic must be resonsible for their conduct, there can be but few secrets. The eole of the country ha%e a ri#ht to know any ublic act. (n >E? in the S.P. uta case the ourt emhasi9ed that an oen o%ernment is the new democratic culture of an oen society towards which e%ery liberal democracy is mo%in# and our country should be no e$cetion. The ourt in >EEH in Dines# Trivedi v& Unin ) India   held that ;to ensure the continued articiation of the  eole in the democratic rocess they must be ket informed of the %ital decisions taken by the #o%ernment and the basis thereof. 'T( act is landmark le#islation and co%ers all central, state and local #o%ernmental bodies and in addition to the e$ecuti%e it also alies to the !udiciary and the le#islature. The term information under the act co%ers ri#ht to insect work, documents and records held by the #o%ernment and allows for the e$traction of certified samles for %erification.H

'i#ht to information has already ro%ed to be an effecti%e instrument for combatin# corrution in ublic ser%ice. The si#nificant achie%ements of ci%il society or#anisations like 8Pari%artan: in Delhi in collectin# information re#ardin# flow of ublic funds, dubious 6 .'&+'*+.)+& 7 .'&+'*+.)+& 1"

decisions etc. are e$amles of the ower of information, but more si#nificant asect of the e$erience is that much more needs to be done in this direction. Accordin# to Transarency (nternational, if (ndia were to reduce corrution to the le%el that e$ists in the Scandina%ian countries, in%estment could be increased by >?I and the DP #rowth rate by >.I er  annum. Access to information needs to be encoura#ed on this #round alone. The ;ri#ht to information1 is defined in sec. ?6!7 as a ri#ht to information accessible under  the Act which is held by or under the control of any ublic authority and includes a ri#ht to 6i7 insection of work, documents, records,  6ii7 Takin# notes, e$tracts or certified coies of documents or records,  6iii7 Takin# searate samles of material,  6i%7 -btainin# information in the form of diskettes, floies, taes, %ideo cassettes or in any other electronic mode or throu#h rintouts where such information is stored in a comuter or  in any other de%ice. The Act alies both to entral and State o%ernments and all ublic authorities. A ;ublic authority1 6sec. ?6h77 which is bound to furnish information means any authority or body or institution of self5#o%ernment established or constituted  6a7 by or under the onstitution,  6b7 by any other law made by Parliament,  6c7 by any other law made by State Le#islature,  6d7 By a notification issued or order made by the aroriate o%ernment and includes any 6i7 body owned, controlled or substantially financed,  6ii7 /on5#o%ernment or#ani9ation substantially financed.

CON+TITUTIONAL A+PECT OF T(E RI'(T TO INFOR0ATION Article >E6>7 6a7 of the onstitution #uarantees the fundamental ri#hts to free seech and e$ression. The rere"uisite for en!oyin# this ri#ht is knowled#e and information. The absence of authentic information on matters of ublic interest will only encoura#e wild 11

rumours and seculations and a%oidable alle#ations a#ainst indi%iduals and institutions. Therefore, the 'i#ht to (nformation becomes a constitutional ri#ht, bein# an asect of the ri#ht to free seech and e$ression which includes the ri#ht to recei%e and collect information. This will also hel the citi9ens erform their fundamental duties as set out in Article >A of the onstitution. A fully informed citi9en will certainly be better e"uied for  the erformance of these duties. Thus, access to information would assist citi9ens in fulfillin# these obli#ations.

RI'(T TO INFOR0ATION I+ NOT AB+OLUTE As no ri#ht can be absolute, the 'i#ht to (nformation has to ha%e its limitations. There will always be areas of information that should remain rotected in ublic and national interest. *oreo%er, this unrestricted ri#ht can ha%e an ad%erse effect of an o%erload of demand on administration. So the information has to be roerly, clearly classified by an aroriate authority. The usual e$emtion ermittin# o%ernment to withhold access to information is #enerally in resect of the these mattersJ 6>7 (nternational relations and national security= 6?7 Law enforcement and re%ention of crime= 6@7 (nternal deliberations of the #o%ernment= 647 (nformation obtained in confidence from some source outside the o%ernment= 67 (nformation which, if disclosed, would %iolate the ri%acy of an indi%idual= 67 (nformation,  articularly of an economic nature, when disclosed, would confer an unfair ad%anta#e on some erson or sub!ect or #o%ernment= 6H7 (nformation which is co%ered by le#alGrofessional ri%ile#e, like communication between a le#al ad%isor and his client and 67 (nformation about scientific disco%eries and in%entions and imro%ements, essentially in the field of weaons. These cate#ories are broad and information of e%ery kind in relation to these matters cannot always be treated as secret. There may be occasions when information may ha%e to be disclosed in ublic interest, without comromisin# the national interest or ublic safety. For  e$amle, information about deloyment and mo%ement of armed forces and information about military oerations, "ualify for e$emtion. (nformation about the e$tent of defence e$enditure and transactions for the urchase of #uns and submarines and aircraft cannot be totally withheld at all sta#es.

NEED FOR RI'(T TO INFOR0ATION The 'i#ht to (nformation has already recei%ed !udicial reco#nition as a art of the fundamental ri#ht to free seech and e$ression. An Act is needed to ro%ide a statutory frame work for this ri#ht. This law will lay down the rocedure for translatin# this ri#ht into reality. (nformation is indisensable for the functionin# of a true democracy. Peole ha%e to be ket informed about current affairs and broad issues K olitical, social and economic. Free 12

e$chan#e of ideas and free debate are essentially desirable for the o%ernment of a free country. (n this A#e of (nformation, its %alue as a critical factor in socio5cultural, economic and  olitical de%eloment is bein# increasin#ly felt. (n a fast de%eloin# country like (ndia, a%ailability of information needs to be assured in the fastest and simlest form ossible. This is imortant because e%ery de%elomental rocess deends on the a%ailability of information. 'i#ht to know is also closely linked with other basic ri#hts such as freedom of seech and e$ression and ri#ht to education. (ts indeendent e$istence as an attribute of liberty cannot  be disuted. 3iewed from this an#le, information or knowled#e becomes an imortant resource. An e"uitable access to this resource must be #uaranteed. Soli Sorab!ee stressin# on the need of 'i#ht to (nformation aim at brin#in# transarency in administration and ublic life, says, Lack of transarency was one of the main causes for all  er%adin# corrution and 'i#ht to (nformation would lead to oenness, accountability and inte#rity. Accordin# to *r. P.B. Sawant, the barrier to information is the sin#le most cause resonsible for corrution in society. (t facilitates clandestine deals, arbitrary decisions, maniulations and embe99lements. Transarency in dealin#s, with their e%ery detail e$osed to the ublic %iew, should #o a lon# way in curtailin# corrution in ublic life. 

RI'(T TO INFOR0ATION IN OT(ER COUNTRIE+ (n recent years, many ommonwealth countries like anada, Australia, and /ew Mealand ha%e assed laws ro%idin# for the ri#ht of access to administrati%e information. USA, France and Scandina%ian countries ha%e also assed similar laws. US Freedom of (nformation Act ensures oenness in administration b y enablin# the ublic to demand information about issues as %aried as deterioratin# ci%ic amenities, assets of senators and utilisation of ublic funds. (t is not only the de%eloed countries that ha%e enacted freedom of information le#islation, similar trends are seen in the de%eloin# countries as well. The new South Africa onstitution secifically ro%ides the 'i#ht to (nformation in its Bill of 'i#hts55thus #i%in# it an e$licit constitutional status. *alaysia oerates an on5line data base system known as i%il Ser%ices Link, throu#h which a erson can access information re#ardin# functionin# of  ublic administration. There is thus a #lobal swee of chan#e towards oenness and transarency.

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(n USA, the first amendment to the onstitution ro%ided for the freedom of seech and e$ression. The country had already assed the Freedom of (nformation 'eform Act >E, which seeks to amend and e$tend the ro%isions of re%ious le#islation on the same sub!ect. But this ri#ht is not absolute. 'ecently, the US Sureme ourt struck down two ro%isions of the ommunications Decency Act 6DA7, >EE, seekin# to rotect minors from harmful material on the (nternet recisely because they abrid#e the freedom of seech rotected by the first amendment. *oreo%er, the %a#ueness in the DA:s lan#ua#e, the ambi#uities re#ardin# its scoe and difficulties in adult5a#e %erification, make DA unfeasible in its alication to a multifaceted and unlimited form of communications such as (nternet. Sweden has been en!oyin# the ri#ht to know since >>C. (t was relaced in >E4E by a new Act which en!oyed the sanctity of bein# a art of the country:s onstitution itself. The  rincile is that e%ery Swedish citi9en should ha%e access to %irtually all documents ket by the State or municial a#encies. (n Australia, the Freedom of (nformation Act was enacted in December >E?. (t #a%e citi9ens more access to the Federal o%ernment:s documents. &ith this, manuals used for makin# decisions were also made a%ailable. But in Australia, the ri#ht is curtailed where an a#ency can establish that non5disclosure is necessary for rotection of essential ublic interest and  ri%ate and business affairs of a erson about whom information is sou#ht. 0%en the So%iets, under *ikhail orbache%, ha%e realised that the State does not claim monooly of truth any lon#er. lasnost has cast away the cloud of secrecy and stresses the  riority of human %alues. 0%en as stes are taken to ensure oenness in matters affectin# the ublic, there has to be a #reater sense of resonsibility on the art of users of information in the media and elsewhere. E>> and >EE are intended to defend national security by renderin# inaccessible to the  ublic certain cate#ories of official information. 2owe%er, the #o%ernment reco#nises that access to information is an essential art of its accountability. A recent le#islation #o%ernin# access to ublic information includes Local o%ernment 6Access to (nformation7 Act, >E= the 0n%ironment and Safety (nformation Act, >E, and the Access to 2ealth 'ecords Act >EEC are such laws. -n the other hand, Data Protection Act, >E4= the Access to Personal File Act= the Access to *edical 'eorts Act, >E, and the onsumer redit Act, >EH4, all  ro%ide some rotection for different asects of ersonal information.E

LAND0AR" JUD'E0ENT+

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The need for 'i#ht to (nformation has been widely felt in all sectors of the country and this has also recei%ed !udicial reco#nition throu#h some landmark !ud#ements of (ndian courts. A Sureme ourt !ud#ement deli%ered by *r. EH7 case, E? that the ri#ht to know matured to the status of a constitutional ri#ht in the celebrated case of + P '$%ta vs& Unin ) India 6A('7 >E? S 6>4E7, oularly known as E 6>7 6a7. The Sureme ourt of (ndia has emhasised in the SP uta case 6>E?7 that oen o%ernment is the new democratic culture of an oen society towards which e%ery liberal democracy is mo%in# and our country should be no e$cetion. (n a country like (ndia which is committed to socialistic attern of society, ri#ht to know becomes a necessity for the oor, i#norant and illiterate masses. (n >E, the Bombay 2i#h ourt followed the SP uta !ud#ement in the well5known case Bombay 0n%ironmental rou and others %s. Pune antonment Board. The Bombay 2i#h ourt distin#uished between the ordinary citi9en lookin# for information and #rous of social acti%ists. This was considered a landmark !ud#ement concernin# access to information.>C 0ain %ints ) resl$tin

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i.

The 'i#ht to (nformation should also be e$tended in resect of comanies,  /-s and international a#encies whose acti%ities are of a ublic nature and ha%e a direct bearin# on ublic interest.

ii.

The law must contain stron#, enal ro%isions a#ainst wilful and wanton withholdin# or delay in sulyin# information or deliberately sulyin# misleadin# or inaccurate information.

iii.

The law should contain an aeal mechanism of an indeendent nature to  ro%ide reliable redress to any citi9en dissatisfied with any decision of a ublic authority under this law. (n the resent draft Bill, all aeals are to other  o%ernment authorities.

i%.

The cate#ories of information, which can be restricted or withheld by the o%ernment, are too wide in the draft Bill. (n articular, the restriction on disclosin# internal notin#s and official corresondence between ublic officials and offices has no !ustification whatsoe%er. (n a democracy, eole ha%e the ri#ht to know how and why a articular decision has been arri%ed at and who made what recommendations with what !ustification. &e do not suort the %iew that this will deter candour in the e$ression of %iews of   ublic ser%ants. 2onest ublic ser%ants e$ressin# their oinions honestly cannot be deterred by the knowled#e that their oinions will become known to the eole.

%.

Similarly the restriction on confidential communications between the State and entre and their a#encies ha%e no !ustification, unless they harm ublic interest.

%i.

The restriction on disclosure of the record of discussions of Secretaries and other ublic ser%ants also needs to be remo%ed .

 JUDICIAL REVIEW J$di-ial review is the doctrine under which le#islati%e and e$ecuti%e actions are sub!ect to

re%iew 6and ossible in%alidation7 by the !udiciary. A secific court with !udicial re%iew  ower may annul the acts of the state when it finds them incomatible with a hi#her authority 6such as the terms of a written constitution7. @ 6>7 ro%ides that all laws in force in the territory of (ndia immediately before the commencement of the onstitution of (ndia, in so far as they are inconsistent with the  ro%ision of Part ((( dealin# with the fundamental ri#hts shall, to the e$tent of such inconsistency, be %oid. Article >@ 6?7 ro%ides the State Shall not make any law which takes away or abrid#es the fundamental ri#hts and any law made in contra%ention of this clause shall, to the e$tent of the contra%ention, be %oid. Article ?4 makes it clear that the le#islati%e owers of Parliament and of the State Le#islatures are sub!ect to the ro%isions of the onstitution. Parliament may make laws for  the whole or any art of the territory of (ndia and the le#islature of State may make laws for  the whole or any art of the State. /o law made by Parliament shall be deemed to be in%alid on the #round that it would ha%e been e$tra5territorial oeration. The State Le#islature can make law only for the State concerned and, therefore, the law made by the state Le#islature ha%in# oeration outside the State would be beyond its cometence and, therefore ultra %ires and %oid.

 JUDICIAL REVIEW AS A PART OF BASIC STRUCTURE (n the celebrated case of "es#avanda B#arat#i v& +tate ) "erela , the Sureme ourt of  (ndia the roounded the basic structure doctrine accordin# to which it said the le#islature can amend the onstitution, but it should not chan#e the basic structure of the onstitution, The EH Su S >.7 held that >.%()9'?.(% 18

-ne many say that if there is any limitation on !udicial re%iew other than constitutional and  rocedural that is a roduct of !udicial self5restraint. As !ustice Dwi%edi emathically obser%ed, Structural socio5olitical %alue choices in%ol%e a comle$ and comlicated  olitical rocess. This court is hardly fitted for erformin# that function. (n the absence of  any e$licit onstitutional norms and for want of comlete e%idence, the court:s structural %alue choices will be lar#ely sub!ecti%e. -ur ersonal redilections will una%oidably enter  into the scale and #i%e colour to our !ud#ment. Sub!ecti%ism is calculated to undermine le#al certainty, an essential element of rule of law. The abo%e obser%ations also re%eal another assumtion to suort an attitude of self5restraint, %i9., and the element sub!ecti%e ness in !udicial decision on issues ha%in# socio5olitical si#nificance. &hen one looks at the decisions of the Sureme ourt on certain "uestions of  fundamental issues of constitutional law one can see that there is a shar di%ision amon# the  !ud#es of the ae$ court on such basic "uestions of ower of the Parliament to amend the onstitution, federal relations, owers of the President etc. This atly demonstrates the obser%ation of the !ud#e. This would mean that thou#h there has been e$ansion of owers of   !udicial re%iew one cannot also say that this cannot be o%erturned.