Public Accountability

Its strength is that the consequence is real: the decision is quashed, or compensation is ordered. Its weaknesses are cost, delay, the need for a litigant, and the rule that the court reviews legality rather than merit, stated in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Facts. Unsuccessful candidates for the MBBS and BDS courses in the two government medical colleges of Jammu and Kashmir for 1988-89 challenged the selection as violating earlier directions of the High Court, which had told the State to entrust selection to a statutory independent body and, until then, to one free from executive influence. The State constituted a Competent Authority by a procedure order of 1987. The High Court allowed the petitions and issued a mandamus.

Held. Although the doctrine of separation of powers is not recognised in absolute rigidity, the Constitution makers meticulously defined the functions of the organs, which must function within their own spheres. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive; but while their power is subject to judicial restraint, the only check on the court's own power is the self imposed discipline of judicial restraint. In judicial review of administrative action the court is not an appellate authority, and the Constitution does not permit it to direct or advise the executive in matters of policy or to sermonise on matters within the sphere of the legislature or executive, provided those authorities stay within their constitutional and statutory limits.

Why it matters here. It marks the limit of legal accountability, and explains why the other mechanisms are needed. The courts can enforce legality; they cannot make the administration efficient, honest or responsive, and they say so themselves.

4. Institutional accountability

Bodies created specifically to hold the administration to account, all of which are treated in Module IV:

• The Lokpal at the Union level and the Lokayukta in the States, in [Lokpal: the Lokpal and Lokayuktas Act 2013] and [Lokayukta in Maharashtra: the 1971 Act, and the 2023 Act awaiting commencement];
• The Central Vigilance Commission, in [The Central Vigilance Commission];
• The criminal law of corruption, in [The Prevention of Corruption Act 1988];
• Commissions of inquiry, in [Public Inquiries and the Commissions of Inquiry Act 1952].

5. Accountability to the public directly

The Right to Information Act 2005 is the most important development of the last generation, because it changes the direction of accountability: instead of the administration reporting upwards, the citizen may demand the record. Section 4 requires proactive publication and reasons for decisions. It is treated in [Transparency and the Right to Information: a Constitutional Imperative] and the chapters that follow it.

Citizens' charters, service standards and grievance redress systems are the internal version, and they are treated in [Accountability and Responsiveness: Problems and Perspectives].

The press and civil society supply the scrutiny that makes the rest work, and are discussed in [Use of Media, Lobbying and Public Participation].

The accountability of the accountability mechanisms

Worth one paragraph, because it makes an answer stand out. Each mechanism has a gap that another is supposed to fill. The legislature cannot examine individual decisions, so the courts do. The courts cannot examine efficiency or honesty, so the audit and vigilance machinery does. The audit machinery reports and does not punish, so the criminal law does. The criminal law is slow and requires proof beyond reasonable doubt, so the Ombudsman machinery was proposed. And none of them reaches the individual citizen's ordinary grievance, which is what the Right to Information Act and grievance redress systems address. Accountability in India is therefore not one institution but a mesh, and its failures are usually failures of the joints.

A worked example

A district administration builds a bridge which collapses within a year. Trace the accountability.

Notice how many mechanisms exist and how few of them can, by themselves, produce a consequence. That is the honest picture, and stating it is worth more than reciting the list.

What it does NOT mean

It does not mean accountability equals liability. Being answerable is not the same as being liable to pay. Liability is the subject of the chapters that follow.

It does not mean the courts are the primary mechanism. They are the most visible, and they operate only when somebody sues.

It does not mean a recommendatory body is useless. A report that is published, debated and reported in the press has real force, even without a power to punish.

It does not mean accountability and independence conflict. A tribunal must be independent of the executive and accountable to the public through open hearings and reasoned decisions: [Tribunalisation and the Threat to Judicial Independence: the Tribunals Reforms Act 2021].

Quick revision

1. Three questions: accountable to whom, for what, and with what consequence.
2. Political: ministerial responsibility under Articles 75(3) and 164(2), questions, debates, no confidence, parliamentary committees. Weak sanction under a disciplined majority.
3. Financial: the Comptroller and Auditor General under Article 148, reports laid under Article 151, examined by the Public Accounts Committee.
4. Legal: judicial review, natural justice, the writs, and State liability. Its limit is that the court reviews legality and not merit: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.
5. Institutional: Lokpal and Lokayukta, the Central Vigilance Commission, the Prevention of Corruption Act 1988, commissions of inquiry.
6. Direct: the Right to Information Act 2005, especially section 4, citizens' charters and grievance redress, the press and civil society.
7. The mechanisms overlap and the failures are usually at the joints; most produce a report rather than a consequence.

Test yourself

1. What is public accountability, and how is it secured in India? It is the principle that those who exercise public power must be answerable for its exercise. In India it is secured through several overlapping mechanisms. Politically, the Council of Ministers is collectively responsible to the legislature under Articles 75(3) and 164(2), and the House scrutinises the administration through questions, debates and its committees. Financially, the Comptroller and Auditor General appointed under Article 148 audits the accounts and his reports are laid before the legislature under Article 151 and examined by the Public Accounts Committee. Legally, judicial review, the rules of natural justice, the writs under Articles 32 and 226, and the liability of the State in tort and contract provide redress. Institutionally, the Lokpal and Lokayuktas, the Central Vigilance Commission, the Prevention of Corruption Act 1988 and commissions of inquiry address maladministration and corruption. Directly, the Right to Information Act 2005 allows any citizen to obtain the record, and citizens' charters, grievance redress systems and a free press supply the rest.

2. What are the limits of judicial accountability? Judicial review operates only when a litigant with standing brings a case, and it is slow and expensive. It examines legality, not merit: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority, that the Constitution does not permit it to direct or advise the executive in matters of policy, and that the only check on the court's own power is self imposed judicial restraint. So a court can quash a decision made unlawfully but cannot make the administration efficient, honest or responsive, and cannot decide whether a policy is wise. Those gaps are what the audit, vigilance, Ombudsman and information mechanisms exist to fill.

3. Why is ministerial responsibility a weak form of accountability in practice? Because collective responsibility operates through a legislature in which the Government commands a majority, so the ultimate sanction of a vote of no confidence is rarely available. A minister answers for the policy of the department rather than for an individual officer's decision affecting an individual citizen, and the answer to a question is itself the whole of the consequence in most cases. The working parts of legislative accountability are therefore the committees, particularly the Public Accounts Committee acting on the reports of the Comptroller and Auditor General, rather than the floor of the House.

4. How has the Right to Information Act 2005 changed public accountability? It reversed the direction of the flow. Under the older mechanisms the administration reported upwards, to a minister, a committee or an auditor, and the citizen learned what those bodies chose to publish. Under the Act a citizen may demand the record directly, and section 4 obliges every public authority to publish a great deal without being asked, including its rules, instructions, manuals, the norms it has set for the discharge of its functions and the reasons for its administrative and quasi-judicial decisions. That makes every other mechanism more effective, because the material on which a question, an audit objection, a complaint to a Lokayukta or a writ petition can be founded is now obtainable.

5. "India has many accountability mechanisms and little accountability." Discuss. The criticism has force at the point of consequence. India has a dense mesh of mechanisms: legislative committees, the Comptroller and Auditor General, judicial review, commissions of inquiry, the Central Vigilance Commission, the Lokpal and Lokayuktas, the Prevention of Corruption Act 1988 and the Right to Information Act 2005. But most of them produce a report or a recommendation rather than a sanction. The audit report recommends, the inquiry commission's report is not a judgment, the vigilance commission advises, and the Lokayukta reports to the competent authority. The mechanisms that do produce a consequence, judicial review and criminal prosecution, are slow, require a complainant or an investigating agency and, in the case of the courts, are confined to legality. The answer is not more mechanisms but better joints between them, and in particular acting on what the existing bodies report.