Administrative Law
Short Description
Project regarding doctrine of public accountability in India....
Description
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CHAPTER – 1
1.1 1.1 Intr Introd oduc ucti tion on 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. acc ountable. It has a variety of independent authorities and commissions that perform accountability functions vis-à-vis different parts of the government. Public accountability is the hallmar of modern democratic governance. !emocracy remains a paper procedure if those in po"er cannot be held accountable in public for their acts and omissions, for their decisions, their policies, and their expenditures. Publ Public ic accou account ntab abil ility ity,, as an insti institu tutio tion, n, there therefo fore re,, is the the comp complem lemen entt of publ public ic management. # A traditional cornerstone of democracy is the notion that each political representative and public official is subject to "hat is no"n as accountability. Accountability may be defined in several "ays. $irst it is the responsibility of a government and its agents to achieve previously set objectives and to account for them in public% secondly it is the commitment commitment re&uired from public public officials officials ' individually individually and collectively ' to accept public responsibility for their actions and inactions% and finally, it is the obligation of a subordinate to eep his or her superior informed of the execution of responsibility. Publ Public ic acco accoun untab tabili ility ty mean meanss the the obli obliga gati tion on to ans" ans"er er publi publicly cly-- to repor report, t, to an acceptable standard of ans"ering, for the discharge of responsibilities that affect the public in important "ays. It is the obligation to ans"er to ans"er for a responsibility conferred. (he obligation to ans"er publicly arises as a fairness obligation "henever authorities intend something that "ould affect the public in important "ays. (hus the obligation extends beyond ans"ering for responsibilities formally or legally concerned. )esponsibility is the obligation to act and accountability is the obligation to report on 1 *eaning of Public Accountability Accountability +a" onstitutional Administrative Administrative Essay, niassignment, niassignment, $eb. #/, /0#1, #23// p.m.4, https://www.uniassignment.com/essay-samples/law/meaning-of-public-accountability-lawconstitutional-administrative-essay.php
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the responsibilities. (hese are separate obligations. (he purpose of having authorities ans"er publicly for their responsibilities is to let citi5ens mae reasonably informed decisions about the safety and fairness of authorities6 intentions. 7hen citi5ens are reasonably informed they can act to condemned, alter or halt authorities6 intentions. (his means that citi5ens have more control over "hat affects them. (he (he conc concep eptt of acco accoun unta tabi bili lity ty on its its o"n o"n does does not not nece necess ssar aril ily y impl imply y publ public ic accountability. Public accountability goes hand in hand "ith representative democracy and its associated rights of citi5ens and obligations for political representatives and public officials. (he ultimate value of public accountability is that the elected public representatives and public officials are re&uired to conduct public dialogue among themselves on "hat they do and intend doing, and on the suppositions is that secrecy on matters matters of public public managem management ent conceal concealss maladm maladmini inistra stratio tion, n, mismanag mismanageme ement nt and corruption. (he ethical base of public accountability is the level of accord created bet"een government authority and the government6s accountability to the public. (he true function of public accountability should be not to focus on negative aspects only. (he concept of public accountability is a matter of vital public concern. All the three organs of the government- legislature, executive and judiciary are subject to public accountability. It is settled la" that all discretionary po"ers must be exercised reasonably and in larger public interest. In In Henley Henley v. Lyme Corporation 2 8est .9 stated3 ' :;o" I tae it to be perfectly clear, that if a public officer, abuses his office, either by b y an act of omission or commission and the conse&uence of that is an injury to an individual an action may be maintained against such public officer. officer.ery rec recen ently tly in Arvind atttaraya v. !tate of "aharashtra#, the =upreme ourt set aside order of transfer of a public officer observing that the action "as not taen in public interests but "as a case of vi victi ctimi mi5ed 5ed of an ho hone nest st of offi fice cer. r. ?it is mo most st un unfo fortu rtuna nate te th that at th thee @o @ove vern rnme ment nt
2 #/4 B 8ing C#3 #D0 E) CCB 3 #CC14 = #C3 AI) #CC1 = D01
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demorali5e the officers "ho discharge their honestly and diligently and brings the persons indulging in blac mareting and contra banding li&uor.< In a federal system lie that of India, public accountability is a t"o "ay process involving up"ard accountability and do"n"ard accountability. p"ard accountability comes through the governmental control over administrative authorities lie po"er to dissolve them, approval of budget, auditing of budgets etc. !o"n"ard accountability is to public "hich is relatively "ea and it comes primarily through their mandate in elections.
1.2 Research Methodology 1.1.1
Problem
(his project report sees to appraise the doctrine of public accountability and its gro"th, position and relevance in India. 1.1.2
Rationale o the study
(he study is significant to find the rationale behind the "oring of the three organs of the =tate ' +egislature, Executive and 9udiciary and the exercise of their po"er in favour of public interest. 1.1.!
#. /. D. 2.
"b#ecti$es
(o analy5e the evolution of doctrine of public accountability in India. (o see out the evils hampering the transparency of the government. (o study the mechanisms to enforce public accountability. (o study the "oring of the doctrine in the contemporary times and dra" out appropriate conclusions.
1.1.%
Re$ie& o 'iterature
#4 .F. (haer, Administrative +a", =econd Edition, Eastern 8oo ompany, /0#/ (he boo is exhaustive "ith the doctrines and case la"s regarding administrative la". It also analyses the doctrine of public accountability and its relevance in the organs of the government. It had been descriptively "ell-explained the situations "here to public accountability applies for the betterment of public.
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/4 .F. (a"ani, +ectures on Administrative +a", =ixth Edition, Eastern 8oo ompany, /0#1 (his literature deals "ith all the major aspects of the Administrative +a". It also simply but aptly explains the doctrine of public accountability as "ell as illustrative cases to present the application of the doctrine. D4 Edited by >enataesh"arier =ubhramaniam, Public Administration in the (hird 7orld3 An International Gandboo, @reen"ood Publishing @roup, #CC0 (his handboo gives a detailed, objective picture of the evolution, structure and processes of public administration in representative (hird 7orld countries. It gives an analysis of 8ritish doctrine of public accountability and its enforcement mechanism and significance in the parliament. 1.1.(
Hy)othesis
Public accountability means the obligation to ans"er publicly ' to report, to an acceptable standard of ans"ering, for the discharge of responsibilities that affect the public in important "ays. (he obligation to ans"er publicly arises as a fairness obligation "henever authorities intend something that "ould affect the public in important "ays. A traditional cornerstone of democracy is the notion that each political representative and public official is subject to "hat is no"n as accountability for the protection of public interest. 1.1.*
Conce)ts
#. Public Accountability ' (he concept of accountability on its o"n does not necessarily imply public accountability. Public accountability goes hand in hand "ith representative democracy and its associated rights of citi5ens and obligations for political representatives and public officials. (he basic purpose of the emergence of the doctrine is to chec the gro"ing misuse of po"er by the administration and to provide speedy relief to the victims of such exercise of po"er. (he doctrine is based on the premise that the po"er in the hands of administrative authorities is a public trust "hich must be exercised in the best interest of the people. /. Personal +iability ' A breach of duty gives rise in public la" to liability "hich is no"n as :misfeasance in public office.P. =ingh "as brought do"n% in #CC0, the handrashehar government met a similar fate% in #CC1, the I.F. @ujral government fell% and most recently, in #CCC, the A.8. >ajpayee government "as brought do"n. In an average Parliament, four to five no-confidence motions are introduced. 8ut their deterrent effect depends upon the contingencies of party politics, rather than the effectiveness of the mechanism itself. %.!.2 The "))osition 3
(he opposition is the constituent part of Parliament that has the most incentive to use the statutory po"ers of Parliament to eep the government accountable. In general, if the government commands a large share of the seats "ith uncheced majority control of the legislature, policy outcomes "ill reflect the government6s position. If the government has relatively fe"er seats and the opposition has bargaining resources, then policy maing could be shaped by the opposition. (he opposition6s ultimate sanctioning "eapon is that it might be a credible alternative in the next general election. In one sense, the incentives for monitoring and oversight of the executive simply do not exist3 the effort is high and the potential pay-off limited. Opposition parties are liely, therefore, to focus more of their attention on political scandals such as financial scams and corruption cases, "here they can attac individuals rather than try to force institutional and systemic changes. !uring the tenure of the 89P-led government from #CCC to /002, the ongress-led opposition used all of its might to stall proceedings on various corruption scandals, but did almost nothing to protest against the systemic governance "eanesses plaguing the country. 7hen the 89P moved into opposition
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after it lost the elections in /002, it began to behave exactly as ongress had done. Even "ith an opposition focused on corruption scandals, Parliament has yielded very fe" results and almost all of the parliamentary probes into these scandals have led no"here. 7hile in some cases this "as because the evidence "as generally inconclusive, in other cases it liely reflects collusion "ithin the political class to avoid institutional changes, "hich, "hile improving governance, might adversely affect their common interests. %.!.! Parliamentary Committees 3
Ideally, parliamentary committees "ould be a venue for the consideration of legislation introduced in Parliament. (he volume and complexity of legislation, the demands on the time of parliamentarians and Parliament6s preoccupation "ith the politics of the moment mae it difficult to give legislative business the attention it re&uires. Parliamentary committees could also provide a more vigilant locus of accountability. Each house also has functionally speciali5ed standing committees. (he most po"erful and important functional committees deal "ith financial mattersMthe ommittee on Public Accounts, the ommittee on Estimates and the ommittee on Public ndertaings. In order to improve parliamentary oversight of the executive, a second type of standing committee no"n as the departmentally related standing committee !)=4 "as created in #CCD, though three of these committees "ere created on an experimental basis as early as #CC. In all, there are #1 !)=s covering all of the ministries of the entral government. (hese committees are elected by both houses of Parliament and vary in si5e and composition. *ost !)=s can in principle, under the statutory po"ers accorded to them, revie" any aspect of the "orings of a particular ministry. (his includes, among other things, monitoring the annual performance of the ministry. 8ut for a number of reasons, these committees have had a very limited impact on the production and &uality of legislation and on the performance of the executive, even relative to the modest expectations of the oversight role of Parliament. It is a simple fact that Parliament itself tends to ignore the reports of its committees. *ost committee reports are not tabled for deliberation and discussion in Parliament at all. (he dilemma is that if the committee reports are at variance "ith the government,
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the majority has no interest in having them tabled% ho"ever, if they broadly uphold the government6s position, they are considered superfluous. nlie committees, say in the nited =tates ongress, parliamentary committees that examine bills are, for the most part, temporary. (hey are organi5ed for particular bills and are usually dissolved after the business of the bill is concluded. As a result, these committees are unable to do much of the "or on legislation and have to rely on the executive for everything, from information to expertise. (he most po"erful and "ell-established standing committees are the three finance committees ' the ommittee on Public Accounts, the ommittee on Estimates and the ommittee on Public ndertaingsM"hich are authori5ed to scrutini5e government finances.
CHAPTER – ( 5.1 A Contemporary look on Publi Aountability India has al"ays functioned under the clutches of corruption. (he t"o recent major events "hich symbolise complete flouting of norms of public accountability are the *edical ouncil of India *I4 scandal and ommon"ealth @ames 7@4 organisation in !elhi. (hese t"o cases amply mae it clear that corruption is deep rooted in Indian society and there is urgent need to mae the public officials accountable for their acts.
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*I president !r Fetan !esai and t"o others "ere arrested in April /0#0 for allegedly accepting a bribe of )s / crore to grant recognition to a medical college in Punjab. (he main objectives of the *edical ouncil include maintenance of uniform standards of medical education and recommendation for recognitionde-recognition of medical &ualifications of medical institutions of India or foreign countries. JD0K =uch incidents clearly go against the mandate of *I and the general public is being defrauded by such acts. (hese public officials must be held accountable for their acts and most severe punishment must be a"arded so that such acts are never repeated as the public officials have no right to abuse their statutory authority. (here have been many reports that the 7@ games "hich are to be held in !elhi in October /0#0 are also not free of corruption and malpractices. entral >igilance ommission, >, has said in its observations that the "ors have been a"arded at higher rates, besides poor site management and &uality compromises. > also said that "or has been allotted to non eligible companies and there are poor &uality assurances. !ue to such malpractices and delays in preparation the "or no" costs the @overnment more than #00Q of "hat it "as estimated. (he taxpayers have to bear the burden of lac of accountability on part of the Organising ommittee. (he @overnment needs to ensure that the people in charge of organising the games are held accountable for their actions. (hese people have been given absolute po"er and the saying :po"er corrupts and absolute po"er corrupts absolutelyN is "holly applicable in this case .
MA7"R 6I-,I-8 $e" of the findings from the project report had been the establishment and enforcement of the doctrine in different countries. In England, ro"n has the special privilege of "ithholding disclosure of documents, referred as ?ro"n Privilege6. It can refuse to disclose a document or to ans"er any &uestion if in its opinion such disclosure or ans"er "ould be injurious to ?public
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interest6. (his doctrine is based on the "ell-no"n maxim solus populi est suprema le public "elfare is the highest la"4. (he public interest re&uires that justice should be done, but it may also re&uire non-disclosure of evidence in larger public interest. (his right can be exercised by the ro"n, even in those proceedings in "hich it is not a party. (he American legal system believes in disclosure of information and not in secrecy thereof. (he =A government thus is an ?open government6 than any other country. (hough American onstitution contains no provision as to getting information from the government, there are certain statues conferring such rights on citi5ens% for instance, the Administrative Procedure Act, #C2APA4, $reedom of Information Act, #C $oIA4, etc.
C"-C'9I"(he government6s tas does not end by creating institutions, la"s and other mechanisms for public accountability% they have to ensure that these la"s are effective. (he Indian 9udiciary has played an active role in the evolution of this doctrine and has helped in providing the Indian citi5ens an effective tool, by the "ay of compensation, to redress their grievances and to affix liability on public officials. (he problem of corruption as highlighted in the paper maes it difficult for the government to mae administrative institutions accountable for proper execution. (he @overnment, by passing legislation lie )ight to Information act, has sho"n its intention for ushering in an era of good governance and such legislation are "elcome as they help in enforcing accountability in administrative authorities. *uch needs to be done in this area and the public officials need to tae a step for"ard and ensure that the taxpayers6 money is properly utili5ed and the public functions are carri ed out smoothly and transparently. (he government should also implement performance appraisal mechanisms and provide incentives to honest officials so that it encourages other officials to follo" suit. (he salaries of @overnment officials also need to be raised to the level of their counterparts "oring in Private sphere so that they don6t feel maltreated and perform their functions honestly.
988ETI"-
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(herefore, in the present-day context, strengthening of the public accountability system should be the top priority of the government. Any system has three components3 structures and procedures% persons "ho manage the system% and environment in "hich the system "ors. Improvement is re&uired in all the three components. Every holder of public po"er, "here public element is present, should consider himself a trustee of society and must exhibit honesty, integrity, sincerity, faithfulness and transparency in all facets of public administration.
:I:'I"8RAPH; 7ebsites ' !octrine of Public Accountability, +a"teacher, https://www.lawteacher.net/free-lawessays/administrative-law/doctrine-of-public-accountability-administrative-lawessay.php
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niassignment,
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Essay,
https://www.uniassignment.com/essay-samples/law/meaning-of-public-
accountability-law-constitutional-administrative-essay.php
>ive Feretta, (ortious +iability of Administration in *odern (imes, +egalindia, http://www.legalindia.com/tortious-liability-of-administration-in-modern-times/ Geena
>erma,
9udicial
Accountability
in
India,
+egalservicesindia,
http://www.legalservicesindia.com/article/article/6udicial-accountability-in-india-)#13.html 8oos ' .F. (a"ani, +ectures on Administrative +a", th ed. /0#14 .F (haer, Administrative +a", /nd ed. /0#/4
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